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Civil Appeal Nos. 1819 1821 of 1970. Appeals by Special Leave from the Judgment and Order dated the 8/9th July 1969 of the High Court at Bombay in Income Tax Reference No. 29 of 1963. G.C. Sharma, O.P. Dua, Annoop Sharma and P.K. Mukherjee for the Appellants. S.T. Desai, P.L. Juneja and S.P. Nayar for the Respondent. The Judgment of the Court was delivered by CHANDRACHUD, J. The appellant, Surjit Lal Chhabda, had three sources of income. He had a share in the profits of two partnership firms, he received interest from Bank accounts and he received rent from an immovable property called "Kathoke Lodge". These were his self acquired properties and until the assessment year 1956 57, he used to be assessed as an individual in respect of the income thereof. On January 26, 1956 he made a sworn declaration before a Presidency Magistrate in Bombay that he had thrown the property Kathoke Lodge into the 'family hotchpot ' in order to impress that property with the character of joint family property and that he would be holding that property as the Karta of the joint Hindu family consisting of himself, his wife and one child. That child was an unmarried daughter. In the assessment proceedings for 1957 58, the appellant contended that since he had abandoned all separate claims to Kathoke Lodge, 167 the income which he received from that property should be assessed in the status of a Hindu Undivided Family. The income tax authorities and the Income tax Appellate Tribunal rejected that contention for varying reasons. The Income tax Officer held that in the absence of a nucleus of joint family property, there was nothing with which the appellant could mingle his separate property and secondly, that there could not be a Hindu undivided family without there being undivided family property. The appellant carried the matter in appeal to the Appellant Assistant Commissioner who differed from the Income tax Officer on both the points but dismissed the appeal on two other grounds. The A.A.C. held that even after the declaration, the appellant was dealing with the income of Kathoke Lodge in the same way as before which showed that the declaration was not acted upon and secondly, that even assuming that the property was thrown into the common stock and was therefore joint family property, the income from that property could still be taxed in the appellant 's hands as he was the sole male member of the family. The Tribunal accepted the declaration as genuine and differed from the A.A.C. 's finding that it was not acted upon. The appellant, according to the Tribunal, was the Karta of the joint Hindu family and it was irrelevant as to how he dealt with the joint family income. The Tribunal however held that the appellant had invested his separate property with the character of joint family property, he being a sole surviving coparcener continued to have the same absolute and unrestricted interest in the property as before and therefore, in law, the property had to be treated as his separate property. The appellant moved the Tribunal for referring five questions to the High Court while the respondent applied for the reference of one other question. The Tribunal referred the following question only for the opinion of the Bombay High Court under section 66(1) of the Income tax Act, 1922: "Whether, on the facts and in the circumstances of the case, the income from property known as 'Kathoke Lodge ' was to be assessed separately as the income of the Hindu undivided family of which the assessee was karta?" In the High Court, it was contended on behalf of the appellant that it is open to a male member of a joint Hindu family to convert his self acquired property into joint family property by throwing it into the common hotchpot; that for effectuating this purpose it is neither necessary that there should be an ancestral or joint family nucleus nor that there should be more than one male in the joint family; and since Kathoke Lodge was impressed with the character of joint family property, its income belonged to the joint Hindu family of which the appellant was the Karta, the other members being his wife and unmarried daughter. On the other hand, the Department contended that it was contrary to the basic concept of a Hindu Undivided Family that a single male along with females could form a joint Hindu family; that though a joint Hindu family could include a wife and unmarried daughters, a 168 sole male member could not constitute a joint Hindu family along with females; and that it was necessary for the formation of a joint Hindu family that there should be more than one male capable of claiming partition of the joint family property. In the alternative, it was urged by the Department that a single male could form a joint Hindu family along with a coparcener 's widow who is capable of making an adoption to her deceased husband but not with his own wife and unmarried daughter. The argument that the existence of ancestral or joint family property was an essential pre requisite to throwing the self acquired property into the common stock was raised but was not pressed in the High Court. On these contentions, the real controversy before the High Court was whether a single male can form a joint Hindu family with his wife and unmarried daughter; if yes, whether the Karta of such a family can impress his self acquired property with the character of joint family property by throwing it into the family hotchpot; and, lastly, whether the income of such property can be assessed as the income of the joint family. The High Court did not enter into these questions and made its task simple by saying: "Several authorities were referred to on either side in support of their respective contentions. We do not, however, propose in deciding this reference to go into the larger question as to whether the property of the assessee, which was originally self acquired property, assumed the character of a Hindu undivided family property, as to what are the incidents of a Hindu undivided family property and under what circumstances can separate property become Hindu undivided family property. Some of these questions have been directly answered in the authorities which were cited before us. "The question referred is confined to the 'income ' from Kathoke Lodge. We would, therefore, without going into these larger questions, prefer to rest our decision on the short point whether the income from the property known as Kathoke Lodge after the declaration was the income of a Hindu undivided family and in this respect whether the principle laid down by the Privy Council in Kalyanji 's case was correctly applied. " The High Court assumed for the purposes of argument that there need not be more than one male member for forming a joint Hindu family as a taxable unit and that a joint Hindu family could lawfully consist of a single male member, his wife and unmarried daughter. On these assumptions the High Court concluded that Kathoke Lodge, from the date of the declaration by which it was thrown into the common stock, was the Property of the Hindu undivided family. It, however, held: "But the assessee has no son and therefore no undivided family. His ownership of the property and its income in fact remains the same as before. The fact of the existence of a wife or of a wife and daughter would make no difference 169 to his ownership of that property. His position as a member of the joint family after the declaration would be the same as that of a sole surviving coparcener, but it is now settled law that a person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. That is the position which the assessee held so far as his property is concerned. So far as the income is concerned, he has the complete power of disposal over the income and, even assuming that he is the karta of a joint Hindu family, there is no one who can question his spending, i.e., whether or not it is for legal necessity or other justifiable purpose. If then, his right to the income remains under his personal law the same as it was before he made the declaration, the question arises whether under the Income tax Act it must be held to be the income of the karta of the Hindu undivided family. That is precisely the question which the Privy Council answered against the assessee in Kalyanji 's case. .In our opinion, therefore, the assessee 's case would fall squarely within the principle enunciated by their Lord ships of the Privy Council in Kalyanji 's case and upon that view the income in the hands of the assessee would be liable to be assessed as his individual income. " The Privy Council decision on which the High Court relies is Kalyanji Vithaldas vs Commissioner of Income tax.(1) The judgment of the High Court is reported in Before examining the validity of the High Court 's reliance on Kalyanji 's case and the correctness of its conclusion that the instant case falls within the ratio of that decision, it is necessary to have regard to the principles of Hindu Law governing joint families. The High Court did not examine those principles, calling them "larger questions", and preferred wholly to rely on, so to say, the magic touch of Kalyanji 's case. It assumed that a joint family may consist of a single male, a wife and daughter which means that it assumed that the appellant was a member of a joint Hindu family consisting of himself, his wife and daughter. However, in the very next breath the High Court concluded: "But the assessee has no son and therefore no undivided family." An examination of fundamentals might have saved the High Court from the inconsistency that a single male can constitute a "joint family" with his wife and daughter but if that male has no son, there can be no "undivided family". In the first place, joint family and undivided family are synonymous terms. Secondly, when one says that a joint Hindu family consists of a single male, his wife and daughter, one implies necessarily that there is no son. If there were a son, there would be two males. For our limited purpose, fundamentals do not any more require a study of Sastric texts, digests and commentaries because judicial decisions rendered over the last century and more have given a legalistic form to what was in a large measure a mingling of religious and 170 moral edicts with rules of positive laws. Hindu law today, apart from the piecemeal codification of some of its branches like the laws of marriage, succession, minority, guardianship, adoption and maintenance is Judge made law, though that does not detract from the juristic weight of Smritis like the Yajnavalkya Smriti nor from the profundity of Vijnaneshwara 's Commentary on it, the critique bearing the humble title of 'Mitakshara '. The appellant is governed by the Mitakshara school of Hindu law but that is not of any particular consequence for the purposes of this appeal. The differences between the Mitakshara and Dayabhaga schools on the birth right of coparceners and the rules of inheritance have no bearing on the issues arising in this appeal, particularly on the question whether a single male can constitute a joint or undivided family with his wife and unmarried daughter. A joint Hindu family under the Dayabhaga is, like a Mitakshara family, normally joint in food, worship and estate. In both systems, the property of joint family may consist of ancestral property, joint acquisitions and of self acquisitions thrown into the common stock(1). In fact, whatever be the school of Hindu law by which a person is governed, the basic concept of Hindu undivided family in the sense of who can be its members is just the same. Section 2(9) of the Income tax Act, 1922 defines a "person" to include inter alia a "Hindu undivided family". Under sections 3 and 55 of that Act, a Hindu undivided family is a taxable unit for the purposes of income tax and super tax. The expression 'Hindu undivided family ' finds reference in these and other provisions of the Act but that expression is not defined in the Act. The reason of the omission evidently is that the expression has a well known connotation under the Hindu Law and being aware of it, the legislature did not want to define the expression separately in the Act. Therefore, the expression 'Hindu undivided family must be construed in the sense in which it is under stood under the Hindu law(1). There is no substance in the contention of the respondent that in the absence of an antecedent history of jointness, appellant cannot constitute a joint Hindu family with his wife and unmarried daughter. The lack of such history was never before pleaded and not only does it find no support from the record but such an assumption ignores the plain truth that the joint and undivided family is the normal condition of Hindu society. The presumption therefore is that the members of a Hindu family are living in a state of union, unless the contrary is established.(3) The strength of the presumption may vary from case to case depending upon the degree of relationship of the members and the farther one goes from the founder of the family, the 171 weaker may be the presumption. But, generally speaking, the normal state of every Hindu family is joint and in the absence of proof of division, such is the legal presumption. Thus, a man who separates from his father or brothers may, nevertheless continue to be joint with the members of his own branch. He becomes the head of a new joint family, if he has a family, and if he obtains property on partition with his father and brothers, that property becomes the ancestral property of his branch, qua him and his male issue. It is true that the appellant cannot constitute a coparcenary with his wife and unmarried daughter but under the Income tax Act a Hindu undivided family, not a coparcenary, is a taxable unit. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage (sapratibandha days), cannot be coparceners. But we are concerned under the Income tax Act with the question whether the appellant 's wife and unmarried daughter can with him be members of a Hindu undivided family and not of a coparcenary. In the words of Sir George Rankin who delivered the opinion of the Judicial Committee in Kalyanji 's case : "The phrase `Hindu undivided family ' is used in the statute with reference, not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words `Hindu co parcenary ', all the more that it is not possible to say on the face of the Act that no female can be a member." (p. 95). Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father 's family and becomes a member of her husband 's family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. "The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence. "(1) 172 The joint Hindu family, with all its incidents, is thus a creature of law and cannot be created by act of parties, except to the extent to which a stranger may be affiliated to the family by adoption. But the absence of an antecedent history of jointness between the appellant and his ancestors is no impediment to the appellant, his wife and unmarried daughter forming a joint Hindu family. The appellant 's wife became his sapinda on her marriage with him. The daughter too, on her birth, became a sapinda and until she leaves the family by marriage, the tie of sapindaship will bind her to the family of her birth. As said by Golapchandra Sarkar Sastri in his "Hindu Law" (Eighth Ed., p. 240), "Those that are called by nature to live together, continue to do so" and form a joint Hindu family. The appellant is not by contract seeking to introduce in his family strangers not bound to the family by the tie of sapindaship. The wife and unmarried daughter are members of his family. He is not by agreement making them so. And as a Hindu male, he himself can be the stock of a fresh descent so as to be able to constitute an undivided family with his wife and daughter. That it does not take more than one male to form a joint Hindu family with females is well established. In Gowli Buddanna vs Commissioner of Income tax, Mysore, Bangalore(1), one Buddappa, his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family. On Buddappa 's death a question arose whether the adopted son who was the sole surviving coparcener could form a joint Hindu family with his mother and sisters and could accordingly be assessed in the status of a manager of the Hindu undivided family. Speaking for the Court, Shah J. observed : "The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has no force. The expression `Hindu undivided family ' in the Income tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members, and apparently the Income tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two male members. " In N. V. Narendranath vs Commissioner of Wealth tax, Andhra Pradesh, Hyderabad(2), the appellant filed returns for Wealth Tax in the status of a Hindu undivided family which at the material time consisted of himself, his wife and two minor daughters. The claim to be assessed in the status of a Hindu undivided family rested on the circumstance that the wealth returned consisted of ancestral property received or deemed to have been received by the appellant on partition with his father and brothers. The High Court held that as the appellant 's family did not have any other male coparcener, the assets must 173 be held to belong to him as an individual and not to the Hindu undivided family. That decision was set aside by this Court on the ground that a joint Hindu family could consist under the Hindu law of a single male member, his wife and daughters and that it was not necessary that the assessable unit should consist of at least two male members. In both of these cases, Gowli Buddanna 's and Narendranath 's the assessee was a member of a pre existing joint family and had, in one case on the death of his father and in the other on partition, become the sole surviving coparcener. But the decision in those cases did not rest on the consideration that there was an antecedent history of jointness. The alternative argument in Gowli Buddanna 's case (p. 266) was an independent argument uncorrelated to the pre existence of a joint family. The passage which we have extracted from the judgment of Shah J. in that case shows that the decision of this Court did not proceed from any such consideration. The Court held in terms categorical that the Hindu undivided family as an assessable entity need not consist of at least two male members. The same is true of the decision in Narendranath 's case (see p. 886). Thus the contention of the Department that in the absence of a pre existing joint family the appellant cannot constitute a Hindu undivided family with his wife and unmarried daughter must fail. The view of the High Court that the appellant has "no son and therefore no undivided family" is plainly unsound and must also be rejected. Accordingly, the question whether the income of the Kathoke Lodge can be assessed in the hands of the appellant as a Karta or manager of the joint family must be decided on the basis that the appellant, his wife and unmarried daughter are members of a Hindu undivided family. By the declaration of January 26, 1956, the appellant threw Kathoke Lodge into the family hotchpot abandoning all separate claims to that property. The genuineness of that declaration was accepted by the Tribunal. The High Court too decided the reference on the footing that the appellant had thrown the property into the common hotchpot and that `after the declaration, the property . would be property of a Hindu undivided family in the hands of the assessee" (p. 471). Learned counsel for the Department attempted to raise a new contention before us that there is no such thing under the Hindu law as impressing separate property with the character of joint, family property, that the only doctrine known in this behalf to Hindu law is the doctrine of blending and since, prior to the declaration the family hotchpot in the instant case was empty, there was nothing with which the Kathoke Lodge or its income could be blended and therefore, the declaration is ineffective to convert that property into joint family property. Learned counsel for the appellant cited several decisions of the High Courts to controvert the Department 's contention. But apart from the merits of the point we ruled that the contention was not open to the Department. The statement of case framed by the Tribunal shows that such a contention was not raised before the Tribunal. The Commissioner of Income tax himself asked for the reference of a question to the High 174 Court for its opinion. That question concerns the point whether having regard to the conduct of the appellant his self acquired property could be said to be impressed with the character of joint family property. The question did not cover the contention raised before us on behalf of the Department. But above all, though an argument was raised in the High Court on behalf of the Department that for the operation of the doctrine of blending it was essential that there should exist not only a coparcenary but also a coparcenary property, learned counsel who appeared for the Department in the High Court "did not, after some discussion, press that there should necessarily be coparcenary property. " This was not a concession on a question of law in the sense as to what the true legal position was. What the Department 's counsel stated in the High Court was that he did not want to press the particular point. In our opinion, it is not open to the Department to take before us a contention which in the first place does not arise out of the reference and which the Department 's counsel in the High Court raised but did not press. Having examined the true nature of an undivided family under the Hindu law and in view of the findings of the Tribunal and the High Court on the second aspect, two points emerge clear : Firstly that the appellant constituted a Hindu undivided family with his wife and unmarried daughter and secondly that Kathoke Lodge which was the appellant 's separate property was thrown by him in the family hotchpot. It remains now to consider whether the income of Kathoke Lodge must be assessed in the hands of the appellant as an individual or whether it can be assessed in his status as manager of the Hindu undivided family. Since the conclusion reached by the High Court that the income of Kathoke Lodge cannot be assessed in the appellant 's status as a manager of the Hindu undivided family is based wholly on the decision in Kalyanji 's case and since that decision also loomed large in the arguments before us, it is necessary to examine it closely. The relevant facts of that case are these : One Sicka had two sons, Moolji and Purshottom. From his first wife, Moolji had two sons, Kanji and Sewdas both of whom were married but neither of whom had a son. From his second wife, Moolji had a son Mohan Das. Kanji had a wife and a daughter while Sewdas had a wife but no issue. Moolji, Kanji and Sewdas separated from one another in about 1919. In the same year Moolji made gifts of capital to Kanji and Sewdas. Moolji continued to live jointly with his second wife and the son Mohan Das born of her. Purshottom had a wife, a son and a daughter. There was another family of which the head was one Vithaldas. He had three sons, Kalyanji, Chaturbhuj and Champsi. Kalyanji had a wife, three sons and a daughter while Chaturbhuj had a wife and daughters. Moolji and Purshottom, the two sons of Sicka, who had already separated from each other started in 1912 a business called Moolji Sicka and Company in partnership with Kalyanji, the son of Vithaldas. 175 The three partners employed their self acquired properties for the purpose of that business. In course of time, Moolji 's sons Kanji and Sewdas, and Vithaldas ' sons Chaturbhuj and Champsi were taken into the partnership with the result that by 1930 the partnership came to consist of seven partners : Moolji, his sons Kanji and Sewdas; Moolji 's brother Purshottom; and Vithaldas 's sons Kalyanji, Chaturbhuj and Champsi. The interest of Kanji and Sewdas in the firm was a gift from their father Moolji and that of Chaturbhuj a gift from his brother Kalyanji. Those of the partners whose interest in the firm was separate property were not shown to have thrown that property or the receipts therefrom into the common stock. The Privy Council had six appeals before it which were filed by the partners of the firm except Chapsi. The appeals related to the assessment year 1931 32. The controversy was whether the partners should each be assessed to super tax upon his share of the profits as an individual or whether the six shares should each be assessed as income of a Hindu undivided family. Three partners out of the six, namely, Moolji, Purshotom and Kalyanji, were each members of a Hindu undivided family. Each of these three partners had a son or sons from whom he was not divided. But the income which these partners received from the firm was their separate and self acquired property. Since the income was not thrown into the common stock, the Privy Council held that it could not be regarded as the income of the respective joint families. The fourth partner Chaturbhuj had no son. His interest in the firm was obtained from his brother Kalyanji and therefore the income which he received from his share in the profits of the firm was a self acquired and not ancestral property. The Privy Council observed that even if Chaturbhuj were to have a son, that son would have taken by birth no interest in the income which fell to Chaturbhuj 's share and therefore the income was assessable in the hands of Chaturbhuj as his separate income and not that of the joint Hindu family. According to the Privy Council, in none of the cases of these four partners was the result affected by the fact that any partner had a wife and a daughter or a wife and more than one daughter. If the mere existence of a son did not make a father 's self acquired property joint family property, it was untenable that the existence of a wife or a daughter could do so. In the case of the remaining two partners, Kanji and Sewdas, their interest in the firm was obtained under a gift from their father. The Privy Council assumed, without deciding the question, that such an interest was ancestral property in the hands of the sons so that if either Kanji or Sewdas had a son, the son would have taken interest in the property by birth. But neither Kanji nor Sewdas had a son. Kanji 's family consisted of himself, his wife and daughter while Sewdas 's family consisted of himself and his wife. The Privy Council held that the wife and daughter may be entitled to be maintained out of a person 's separate as well as joint family property but the mere existence of a wife or daughter did not make ancestral property joint. 176 The crucial facts in Kalyanji 's case on which the ultimate decision rested are these : (i) In regard to three partners, Moolji, Purshottom and Kalyanji, though each of them was the head of his joint family which included in every case a son or sons, the income which each received from the firm was his separate and self acquired property which was not thrown into the common stock. (ii) In regard to Chaturbhuj, though he had no son, that fact was irrelevant because his interest in the firm was his self acquired or separate property in which the son could have taken no interest by birth. (iii) And in regard to Kanji and Sewdas, even if their interest in the firm was assumed to be ancestral property, the income which they received from the firm was their separate property as neither of them had a son who could take interest in the ancestral property by birth. The appeals of the six partners before the Privy Council fall into two classes. Those of Moolji, Purshottom, Kalyanji and Chaturbhuj fall in one class while those of Kanji and Sewdas fall in another class. There is a point of distinction between the cases of the four partners falling within the first class on one hand and that of the appellant on the other. But the point of distinction is not that Moolji, Purshottom and Kalyanji had a son or sons and the appellant has none, because though the three partners were heads of their respective joint families which included in every case a son or sons, the income which each received from the firm was his separate and self acquired property which was not thrown into the common stock. The mere existence of a son or sons in a joint Hindu family does not make the father 's separate or self acquired property joint family property. Though Chaturbhuj had no son that fact would not by itself bring his case on par with the appellant 's because Chaturbhuj 's interest in the firm was his separate property which also was not thrown in the common stock. If the mere fact that Moolji, Purshottom and Kalyanji had each a son or sons did not make their separate property joint family property, the mere existence of a wife or daughter could not bring about that result in Chaturbhuj 's case. As contrasted with the cases of these four partners, Kathoke Lodge which was once the separate property of the appellant was thrown by him in the common stock, which raises the question whether that circumstance is sufficient to justify the assessment of the income from that property in the appellant 's status as the manager of the joint family. On this point the cases of Kanji and Sewdas furnish a near parallel. They did not have to throw their interest in the firm in the common stock because that interest was, on assumption, their ancestral property. But even though the property was ancestral, the income which they received from it was treated as their separate property as neither of them had a son who could take interest in the ancestral property by birth. Applying that analogy, even if Kathoke Lodge were to be an ancestral asset, its income would still have to be treated as the appellant 's separate property as he has no son who could take interest in that property by birth. On this reasoning, the effect of the appellant throwing Kathoke Lodge into the family hotchpot could not be more telling than if that property was his ancestral property. 177 But then it is urged by the learned counsel for the appellant that the Privy Council was in error in its decision on the nature of income received by Kanji and Sewdas from what was assumed to be ancestral property and therefore the decision on that aspect of the matter ought not to be followed in determining the true nature of the income received by the appellant from Kathoke Lodge. This submission is founded on the disapproval by this Court of certain observations made by the Privy Council in Kalyanji 's case. The Privy Council, in its judgment in Kalyanji 's case, referred in passing to "Laxminarayan 's case" and observed that "The Bombay High Court on the other hand, in Lakshminarayan 's case having held that the assessee his wife and mother were a Hindi undivided family, arrived too readily at the conclusion that the income was the income of the family". The decision of the Bombay High Court which the Privy Council had in mind is Commissioner of Income tax, Bombay vs Gomedalli Lakshminarayan There is a fundamental distinction between Lakshminarayan 's case and Kalyanji 's case which, with respect the Privy Council failed to notice. In Lakshminarayan 's case the joint Hindu family consisted of a father, his wife, their son and the son 's wife. The property of the joint family was ancestral in the hands of the father and the son 's had acquired by birth an interest therein. (See the Judgment of Rangnekar J. at p. 369). There was a subsisting undivided family during the father 's life time and that undivided family did not come to an end on the father 's death. The same undivided family continued after the death of the father, with the son, his mother and his wife as its members. The effect of the father 's death was merely this that the son, instead of the father, became the manager of the joint family. The income from ancestral property was the income of the joint family during the father 's life time and after his death it continued to be the income of the self same joint family. The only change that had come about was that one link in the chain was snapped by death. But the death of a member of a joint Hindu family does not ordinarily disrupt the joint family. The Bombay High Court therefore held that the income of the ancestral property should be assessed in the son 's status as a manager of the undivided family and not in his individual capacity. When Lakshminarayan 's case came up before the Privy Council in appeal(1), it regarded itself as bound by the interpretation put in Kalyanji 's case on the expression "Hindu undivided family" as employed in section 55 of the Indian Income tax Act and observed that the facts of the case were not materially different from the facts of Kalyanji 's case. The Privy Council therefore answered the question by holding that "the income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male member as his own individual income for the purposes of assessment to super tax under Sec. 55 of the Indian Income Tax Act, 1922". The decision of the Privy Council in Lakshminarayan 's case and the observations made by it in Kalyanji 's case regarding the view taken 178 by the Bombay High Court in Lakshminarayan 's case were expressly disapproved by this Court at least in two cases. In Gowli Buddanna 's case(1), after discussing the decisions in Kalyanji 's case and Lakshminarayan 's case this Court observed : "It may however be recalled that in Kalyanji Vithaldas 's case income assessed to tax belonged separately to four out of six partners; of the remaining two it was from an ancestral source but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In Gomedalli Lakshminarayan 's case the property from which income accrued belonged to a Hindu undivided family and the effect of the death of the father who was a manager was merely to invest the rights of a manager upon the son. The income from the property was and continued to remain the income of the undivided family. This distinction which had a vital bearing on the issue falling to be determined was not given effect to by the Judicial Committee in A. P. Swamy Gomedalli 's case. " In Narendranath 's(2) case too this Court disapproved of the Privy Council decision in Lakshminarayan 's case and pointed out that the Privy Council had failed to notice the distinction between the facts of Kalyanji 's case and those of Lakshminarayan 's case in observing that the Bombay High Court "arrived too readily at the conclusion that the income was the income of the family". The appellant 's counsel is thus right in his submission that the observations made by the Privy Council in Kalyanji 's case as regards the correctness of the Bombay view in Lakshminarayan 's case is not good law. In fact, the decision of the Privy Council in appeal from the judgment of the Bombay High Court in Lakshminarayan 's case has itself been disapproved by this Court. But that does not affect the correctness of the Privy Council decision in Kalyanji 's case itself as regards the nature of the income received by the six partners from the firm. That part of the judgment in Kalyanji 's case has never been doubted and is open to no exception. For the matter of that, the error of the Privy Council 's decision in Lakshminarayan 's case consisted in overlooking the factual distinction between that case and Kalyanji 's case, as a result of which the ratio of Kalyanji 's case came to be wrongly applied to Lakshminarayan 's case. The ratio of Kalyanji 's case would therefore apply to the instant case, the parallel being furnished by the cases of Kanji and Sewdas. But a word of explanation is necessary in the interests of clarity. The reason why the cases of Kanji and Sewdas furnish a close parallel is the very reason for which their cases were held by this Court to be distinguishable from Lakshminarayan 's case. In Lakshminarayan 's case the property was ancestral in the hands of the father, the son had acquired an interest by birth therein, there was a subsisting Hindu un 179 divided family during the life time of the father and since that family did not come to an end on the death of the father, the Bombay High Court had rightly held that the income continued to be income of the joint family and was liable to super tax as such income. In regard to Moolji, Purshottom, Kalyanji and Chaturbhuj no such question arose as their interest in the firm was their separate property which was not thrown into the common stock. As regards Kanji and Sewdas, they were divided from their father Moolji at least since 1919 in which year Moolji made gifts of capital to them. Kanji joined the firm in 1919 and Sewdas in 1930. The assessment year in reference to which the dispute arose was 1931 32. Thus the gifted property of which the income was to be charged to super tax was not the ancestral or joint family property of a subsisting Hindu undivided family consisting of Moolji, Kanji and Sewdas. Were it so, the case would have fallen within the ratio of the judgment of the Bombay High Court in Lakshminarayan 's case. As in the cases of Kanji and Sewdas, so here, the property of which the income is to be brought to tax was not the joint family property of a subsisting Hindu undivided family which had devolved on a sole surviving coparcener. In that latter class of cases the view has been consistently taken, except for the decision of the Privy Council in Lakshminarayan 's case, that property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. The decision of the Privy Council in Attorney General of Ceylon vs A. R. Arunachalam Chettiar and Others(1), the decisions of this Court in the cases of Gowli Buddanna and Narendranath and the decision of the Bombay High Court in Lakshminarayan 's case fall within that class and are not to be confused with cases like the one on hand, which fall within the rule in Kalyanji 's case. In Arunachalam Chettiar 's case, a father and son constituted a joint Hindu family along with females including the widow of a pre deceased son. On the death of the son in 1934 the father became the sole surviving coparcener. By a Ceylonese Ordinance, property passing on the death of a member of a Hindu undivided family was exempt from payment of Estate Duty. On the death of the father a question arose whether, in view of the ordinance, his estate was liable to Estate Duty. The Privy Council held that the father was at his death a member of a Hindu undivided family, the same undivided family of which his son, when alive was a member, and of which the continuity was preserved after the father 's death by adoptions made by the widows who were members of the family. In Gowli Buddanna 's case, there was a subsisting Hindu undivided family between a father, his wife, two unmarried daughters and an adopted son. In respect of the income from dealings of the family, the father was assessed during his life time in the status of a manager of the Hindu undivided family. After the death of the father the adopted son contended that he should be assessed as an individual. This contention was rejected uniformly at all stages. After examining various authorities including Kalyanji 's case, Lakshminaryan 's case and Arunachalam 's case, this Court held that property which belongs to a Hindu undivided family does not cease to belong 180 to it because of the temporary reduction of the coparcenary unit to a single individual, who possesses rights which an owner of property may possess. A similar view was taken by this Court in Narendranath 's case which raised a question under the Wealth Tax Act. Narendranath 's family consisted, at the material time, of his wife and two minor daughters. Since the wealth returned consisted of ancestral property received by him on partition with his father and brothers, it was held by this Court that his status was that of a Hindu undivided family and not that of an individual. While dealing with the question whether the assets which came to Narendranath 's share on partition ceased to bear the character of joint family properties and became his individual property, this Court observed : "In this connection, a distinction must be drawn between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him : (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee." After referring to Kalyanji 's case and noticing the observation of the Judicial Committee that income from an ancestral source does not necessarily become the income of the undivided family consisting of a man, his wife and daughter, this Court held : "Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case is whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener. " In the result the Court concluded that the case fell within the rule in Gowli Buddanna 's case. There are thus two classes of cases, each requiring a different approach. In cases falling within the rule in Gowli Buddanna 's case, the question to ask is whether property which belonged to a subsisting undivided family ceases to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of property may possess. For the matter of that, the same question has to be asked in cases where the family, for the time being, consists of widows of deceased coparceners as in Commissioner of Income tax, Madras vs Rm. Veerappa Chettiar(1), so long as the property which was originally of the joint Hindu family 181 remains in the hands of the widows of the members of the family and is not divided amongst them. In cases falling within the rule in Kalyanji 's case, the question to ask is whether property which did not belong to a subsisting undivided family has truly acquired the character of joint family property in the hands of the assessee. In this class of cases, the composition of the family is a matter of great relevance for, though a joint Hindu family may consist of a man, his wife and daughter, the mere existence of a wife and daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family. The appellant 's case falls within the rule in Kalyanji 's case since the property, before it came into his hands, was not impressed with the character of joint family property. It is of great relevance that he has no son and his joint family consists, for the time being, of himself, his wife and daughter. Once it is realised that there are two distinct classes of cases which require a different approach, there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes of cases. In Kalyanji 's case the Privy Council observed: "In an extra legal sense, and even for some purposes of legal theory, ancestral property may perhaps be described, and usefully described, as family property; but it does not follow that in the eye of the Hindu law it belongs save in certain circumstances, to the family as distinct from the individual. By reason of its origin a man 's property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his death in a particular way; but if, in spite of all such facts, his personal law regards him as the owner, the property as his property and the income therefrom as his income, it is chargeable to income tax as his, i.e., as the income of an individual. In their Lordships ' view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of having a wife and daughters. " On the other hand, in Arunachalam 's case which falls within the rule in Gowli Buddanna 's case, the Privy Council observed: "But though it may be correct to speak of him (the sole surviving coparcener) as the 'owner ', yet it is still correct 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, notwithstanding his so called ownership, just because the property has been and has not ceased to be 182 joint family property. it would not 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 coparcener and that in the hands of two or more coparceners. " Holding that it was an irrelevant consideration that a single coparcener could alienate the property in a manner not open to one of several coparceners, the Privy Council said: "Let it be assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labelled the surviving coparcener 'owner ', he then attributed to his ownership such a congeries of rights that the property could no longer be called 'joint family property '. The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word 'owner ' in this connection. It is only by analysing 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. " These two sets of tests, both evolved by the Privy Council govern two distinct sets of cases and there is no inconsistency between the two tests. The test evolved in Kalyanji 's case, not in Arunachalam 's or Gowli Buddanna 's case, has to be applied to the instant case. Kathoke Lodge was not an asset of a pre existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant has no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpot. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for any purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains what it was even after the property was thrown into the family hotchpot: the right of maintenance, neither more nor less. Thus, Kathoke Lodge may be usefully described as the property of the family after it was thrown into the common stock but it does not follow that in the eye of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a sole surviving coparcener. 183 The property which the appellant has put into the common stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge the alienation. Since the personal law of the appellant regards him as the owner of Kathoke Lodge and the income therefrom as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income tax as his individual income and not that of the family. For these reasons, we dismiss the appeal but there will be no order as to costs. P.H.P. Appeal dismissed.

The appellant Surjit Lal was the owner of an immovable property called "Kathoke Lodge". He used to derive rent income from the said property in addition to deriving income under other heads. In 1956, he made a declaration throwing the said property into the family hotchpotch. The family consisted of himself his wife and an unmarried daughter. The appellant contended before the Income Tax Officer that the rent income derived from the said property should be assessed in the status of a Hindu Undivided Family. The Income Tax Officer held: 1. In the absence of a nucleus of joint family property there was nothing with which the appellant could mingle his separate property. There could not be a Hindu Undivided family without there being Undivided family property. An appeal filed before the Appellate Assistant Commissioner was dismissed but on the following grounds: (1) After the declaration the appellant was dealing with the income of the property in the same way as before and, therefore, the declaration was not acted upon. (2) Even assuming that the property was thrown into the common stock and was therefore joint family property, the income from that property could still be taxed in the appellant 's hands as he was the sole male member of the family. The matter was further taken to the Income Tax Appellate Tribunal by the appellant. The Tribunal accepted the declaration as genuine and differed from the A.A.C. that it was not acted upon. The Tribunal however, held that though the appellant had invested his separate property with the character of joint family property, he being a sole surviving coparcener continued to have the same absolute and unrestricted interest in the property as before and, therefore, in law, the property had to be treated as his separate property. Thereafter the Tribunal referred the question of law to the High Court. Before the High Court it was contended by the appellant that it is open to a male member of a joint Hindu Family to convert his self acquire property into joint family property by throwing it into the common hotchpotch, and that it was not necessary that there should be an ancestral nucleus or that there should be more than one male in the joint family. On the other hand, the department contended that it was contrary to the basic concept of a Hindu undivided family that a single male alongwith females could form a joint Hindu family and that it was necessary for the formation of a joint Hindu family that there should be more than one male entitled to claim partition of the joint family property. 165 The High Court did not go into the larger question and assumed for the purpose of argument that there need not be more than one male member for forming a joint Hindu family as a taxable unit. The High Court held that since the assessee had no son, there was no undivided family. According to the High Court, the case of the appellant fell within the ratio laid down by the Privy Council in Kalyanji 's case and that since under the personal law, the right to the income remained as it was before the appellant made the declaration, the income from Kathoke Lodge was liable to be assessed as the appellant 's individual income. Dismissing an appeal by Special Leave, ^ HELD: (1) Even in the absence of an antecedent history of jointness, the appellant could constitute a joint Hindu Family with his wife and unmarried daughter. True that the appellant could not constitute a coparcenary with his wife and unmarried daughter but under the Income Tax Act a Hindu undivided family, not a coparcenary is taxable unit. A Hindu coparcenary is a much narrower body than the joint family. [170F, 171B] (2) The joint family with all its incidents, is a creature of law and cannot be created by act of parties except to the extent to which a stranger may be affiliated to the family by adoption. The appellant, however, was not by contract seeking to introduce in his family strangers not bound to the family by the tie of a sapindaship. That it does not take more than one male to form a joint Hindu family with females, is well established. [172A & G] (3) The contention of the Department that since prior to the declaration. the family hotchpotch in the instant case was empty and there was nothing with which the property or its income could be blended and therefore, the declaration is ineffective to convert that property into joint family property was not raised before the Tribunal, and the same was not pressed in the High Court. It was, therefore, not open to the department to take before this Court a contention which in the first place does not arise out of the reference and which the department 's counsel in the High Court raised but did not press. [173G H, 174A C] (4) The cases of Kanji and Sewdas in Kalyanji 's case furnish a near parallel to the present case. Though the property in their hands was assumed to be ancestral, income which Kanji and Sewdas received from it was treated as their separate property, as neither of them had a son who could take interest in the ancestral property by birth. Applying that analogy, even if Kathoke lodge were to be an ancestral asset, its income would still have to be treated as the appellant 's separate property as he had no son who could take interest in that property by birth. The ratio of Kalyanji 's case would, therefore, apply to the instant case. The reason why the case of Kanji and Sewdas furnished a close parallel is the very reason for which their cases were held by this Court to be distinguishable from Lakshmi Narain 's case. In Lakshmi Narain 's case the property was ancestral in the hands of the father, the son had acquired an interest by birth therein there was a subsisting Hindu Undivided family during the lifetime of the father and since that family did not come to an end on the death of the father, the Bombay High Court rightly held that the income continued to be the income of the joint family and was liable to be taxed as such. The property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. [176 D G, 177A, 178, G H, 179A] (5) There are thus two classes of cases each requiring a different approach. In cases where the property belongs to a subsisting undivided family the property does not cease to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of property may possess, or for that matter even if the family for the time being consists only of widows of deceased coparceners. In cases where the property did not belong to a subsisting undivided family, whether any property has acquired the 166 character of joint family property has acquired the character of joint family property in the hands of an assessee depends on the composition of the family. A joint Hindu family can consist of a man, his wife and daughter but the mere existence of a wife or daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family. Once it is realised that there are two distinct classes of cases which require a different approach there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes of cases. Kathoke Lodge was not an asset of a pre existing joint family. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpotch. The appellant had no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpotch. Not being co parceners of the appellant, they have neither a right by birth in the property nor the right to demand partition nor indeed the right to restrain the appellant from alienating the property for any purpose whatsoever. The property which the appellant has put into the common stock may change its legal incidence on the birth of a son but until that event happens, the property in the eyes of Hindu Law is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpotch as he finds it. [180 G, H, 181 A D, 182 E H, 183A] (7) Since the personal law of the appellant regards him as the owner of Kathoke lodge and the income therefrom as his income even after the property was thrown into the family hotchpotch, the income would be chargeable to income tax as his individual income and not that of the family. [183B C]

Appeal No. 323 of 1965. Appeal by special leave from the judgment and decree dated February 16, 1961 of the Patna High Court in Appeal from Original Decree No. 500 of 1955. S.C. Agarwal, K.N.K. Nair, Anil Kumar Gupta and S.P. Singh, for the appellants. 418 Sarjoo Prasad and U.P. Singh, for respondent No. 1. The Judgment of the Court was delivered by Bachawat, J. The Bihar Subai Sunni Majlis e Awaqaf a body corporate established under the Bihar Wakfs Act, 1947 instituted a suit or setting aside a registered mokarrari lease deed dated November 18, 1949 executed by defendant No. 4 Sheikh Gholam Bari in favour of defendants 1 to 3 and for restoration of possession of the properties covered by the document, viz., the houses and shops being holdings Nos. 27 and 28 formerly known as holdings Nos. 22 and 23 in Ward No. 8 at Mohalla Muradpore P.S. Pirbahore in the city of Patna (Baakipur). The plaintiff 's case is that the properties were dedicated by way of waqf by a waqfnama dated August 20, 1827 executed by Mst. Bibi Mannu Khanam Jan. The successive Mutawallis under this deed were Sheikh Azmatullah, Sheikh Ataullah, Sheikh Habibur Rahman, Bibi Zaibunnissa and Sheikh Gholam Bari. The Trial Court decreed the suit and this decree was confirmed by the High Court. Both the courts concurrently found that Mst. Bibi Mannu Khanam Jan dedicated the properties by way of waqf by a deed dated August 20, 1827. The correctness of this finding is challenged in this appeal. In Mohalla Muradpore in the city of Patna (Baakipur) there is an ancient mosque known as the mosque of Mst. Bibi Mannu Khanam Jan. It is not disputed now that Mst. Bibi Mannu Khanam Jan established this mosque. There are shops, rooms, katra and other structures to the east, west and the south of the mosque. To the east of the mosque are the disputed holdings Nos. 27 and 28. On September 25, 1948 Gholam Bari filed before the Waqf Board a return in Form No. 1 under Rules 6 and 11 of the Bihar Waqfs Act, 1948. In this return he stated that the properties were given in waqf to the mosque by Mst. Bibi Mannu Khanam/an under the deed of waqf dated August 20, 1827. With this return he filed an English translation of the wakf deed. The translation was attested by him. P.W. 5 Mehdi Hasan, the Nazir of the Waqf Board proved that Gholam Bari also filed the original waqf nama together with its copy in Persian. The copy bore the following endorsement signed by Gholam Bari: 'The copy corresponds to the original. ' The original waqfnama was returned to Gholam Bari and the copy was retained in the office of the Waqf Board. At the trial Gholam Bari did not produce the original deed. Accordingly the copy of the deed and its translation were exhibited. The Trial Court and in the High Court Misra J. accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence. We agree with this finding. Tarkeshwarnath J. ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiff 's custody. We agree with Misra J. that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiff 's office. Under sec. 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, and when after the notice mentioned in sec. 66, such person does not produce it. Where the case falls under section 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of section 65(a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued ,that el. (f) of section 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence, a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f). In the case of A Collision Between The Ava(1) a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a) Cl. (f) of sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said: "By section 65 in cases under cls. (a) and (c) any secondary evidence is admissible; in cases under cls. (e) and (f) only a certified copy. The present case falls under cl. (a) or (c) and also under (f). In such a case which rule applies ? I think the words, 'In cases (a), (c) and (d) any secondary evidence is admissible, ' are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received. " The existence of the deed of waqf dated August 20, 1827 is proved by numerous admissions made by Gholam Bari and his predecessors in title. The existence of the deed was admitted in a petition filed by Bibi Zaibunnisa before ,the District Judge, Patna on January 13, 1928, in the return filed before the plaintiff by Gholam Bari on September 25, 1948, in the petition dated February 15, 1949 and a statement dated March 21, 1949 filed by him before the President of the Bihar Subai Sunni Majlis e Awaqaf. (1) I.L.R. 420 Other documents and admissions also clearly show that the disputed holdings are waqf properties. The copy of the waqf deed shows that Bibi Mannu Khanam Jan appeared before the Darulquazaya Azimabad for admitting the execution and making a declaration and the Quazi signed the deed and put the seal of the Registry office on 21st Rabiul Awal. 1233 A.H. The year 1233 is evidently a mistake for 1243. The deed was executed on 19th Muharram 1243 A.H. corresponding to 20th August 1827. No copy of this deed is now found in the records of the registration office. It appears that the document was presented for registration under Regulation XXXIX of 1793. Under that Regulation the Quaz is were required to keep copies of all deeds and other papers which they might draw up or attest, to keep a list of such papers and to deliver the list and papers to their successors. The Regulation made no provision for the maintenance of a proper register book. The disputed waqf deed was registered in 1827. At this distance of time no copy of the deed is traceable in the registration office. But from other unimpeachable evidence, it is satisfactorily established that Mst. Bibi Mannu Khanam Jan executed the waqf deed dated August 20, 1827 and that the disputed holdings are waqf properties. In this view of the matter it is not disputed that the courts below rightly decreed the suit. V.P.S. Appeal dismissed.

The 1st respondent waqf filed a suit against the appellants 'and the 3rd respondent, for setting aside a lease deed executed by the 3rd respondent in favour of the appellants, on the ground that the properties covered by the lease deed were waqf properties dedicated by a deed of waqf of the year 1827. The existence of the deed of waqf was proved by numerous 'admissions by the 3rd respondent and others who were its mutawallis. The 3rd respondent had produced the original deed along with the return filed by him before the Waqf Board under rr. 6 and 11 made under the Bihar Waqfs Act, 1948, and stated that the properties in dispute were waqf properties. He also produced a plain copy in Persian and an English translation of the original deed of waqf. He attested the English translation and made an endorsement on the Persian copy that it corresponded to the original. The original, after comparison. was returned to him, and the copy and translation were retained in the office of Waqf Board. At the triaL, the 3rd respondent did not produce the original even though a notice was issued to him for its production. No copy of the deed was traceable in the registration office. The first respondent, therefore, relied upon the copy and the translation in the office of the Waqf Board. The high Court decreed the suit and the High Court confirmed the decree. In the appeal to this Court, on the question whether the copy was admissible in evidence to show that the disputed properties were waqf properties, HELD: The case fell under section 65(a) of the Evidence Act and so the copy was admissible, since any secondary evidence of the existence and contents of the original document was admissible. Though the case may also fall under section 65(f), it is not necessary to produce a certified copy of the deed as el. (a) is not controlled by cl. The copy as well as other unimpeachable evidence established that the disputed properties were waqf properties. [419 D E; 420 D] In the matter of a collision between the 'Ava ' and the Brenhilda Cal. 568, approved.

Civil Appeal Nos. 793 to 794 of 1971. Appeal by Special Leave from the Judgment and order dated the 7th August, 1970 of the Kerala High Court at Ernakulam in Income Tax Reference No. 9 of 1968. T. section Krishnamoorthy Iyer, N. Sudhakaran and K. M. K. Nair; for the Appellent (In CA 793/71) K. M. K. Nair; for the appellant (In C.A. 794/71). 658 D. V. Patel and A. section Nambiar; for the Respondent. The Judgment of the Court was delivered by GUPTA, J. One T. V. Kochvared who owned rubber plantations in Trichur was assessed by the Agricultural Income Tax other, Trichue on a net agricultural income of Rs. 31,662/ and Rs 30,856/ respectively for the assessment years 1959 60 and 1960 61. The assessee had in his possession immature rubber plantation covering 193 acres dung the assessment year 1960 61. In computing their income for the said two years. the Agricultural Income tax Officer had disallowed out of the expenses clammed for the upkeep and maintenance of the immature area Rs. 2500/ for the year 1959 60 and Rs.3500/ for the year 1960 61. T. V. Kochuvareed died in 1961 leaving behind him as his heir and legal representative his wife who is the respondent before us. On March 13, 1963 the Commissioner of Agricultural Income tax issued a notice under section 34 of the Kerala Agricultural Income tax Act, 1960 to the respondent, which was served on her on March 15, 1963, proposing to revise suo motu the assessment for the said two year son the ground that the deductions allowed were excessive and without any proper basis as a result of which Rs. 16,800/ for the year 1959 60, and Rs. 25,800/ for 1960 61 had "escaped assessment". The respondent was asked to file objections, if any within fifteen days of the receipt of the notice. The respondent in her objection contended that the proposed revision of her husband 's income which was said to have " escaped assessment" was outside the scope of section 34. On this objection another notice was served on her on September 26, 1966 stating that the expression "escaped assessment "used in the earlier notice was inadvertent and asking the respondent to file further objections, if she liked, after this eradication. The respondent filed further objections on October 12, 1966 which the Commissioner rejected by his order dated August 23, 1967 and remanded the cases to the Agricultural Income tax officer for fresh disposal. The relevant part of this order is as follows: "In these circumstances I find that the disallowance of Rs. 2500/ for 1959 60 and Rs. 3500/ for 1960 61 towards upkeep and maintenance of immature area is irregular as it is not based on any rational method. The orders of assessment for these years are therefore set aside and the cases are remanded to the Agricultural Income tax Officer, Trichur, for fresh disposal according to law after examining each item of expenditure individually and the general charges by applying the principles laid down by the Kerala High Court in its judgment reported in At the instance of the respondent the Commissioner of Agricultural Income tax referred the following question of law to the High Court of Kerala under section 60(2) of the Kerala Agricultural Income Tax Act, 1950: 659 Whether on the facts and in the circumstances of the case the Commissioner has jurisdiction to pass an order in this case under section 34 of the Agricultural Income Tax Act, 1950. The High Court by a majority held that the power of revision vested in the Commissioner under section 34 of the Act could not be invoked for the purpose of assessing income that had "escaped assessment:" and that such income could be assessed only by resorting to the procedure under section 35 of the Act. In these appeals by special leave the appellant questions the correctness of this decision. It is necessary to refer to the relevant provisions of the Act before proceeding to consider the contentions of the parties. Section 3 provides that agricultural income tax shall be charged for each financial year on the total agricultural income of the previous year at the rate or rates specified in the Schedule to the Act. Total agricultural income is defined in section 2(s) as the aggregate of all agricultural income mentioned in section 4 computed in accordance with the provisions of section 5 including all income of the description specified in section 9 and all receipts of the description specified in section 10(a), (c) and (d). Section 5 enumerates the deductions from the total income which have to be made in computing the agricultural income. Section 17(1) of the Act requires every person whose total agricultural income during the previous year exceeded the limit which is not chargeable to agricultural income tax, to furnish to the Agricultural Income tax officer a return stating his total agricultural income in that year and the expenditure incurred by him out of that income. Section 18 deals with the powers of the Agricultural Income tax officer to assess the total agricultural income of the assessee and determine the sum payable by him. Section 19 authorises the Agricultural Income tax officer to cancel the assessment in certain cases at the instance of the assessee and to make a fresh assessment in accordance with the provisions of section 18. Section 31 provides an appeal to the Assistant Commissioner against any order of assessment with which the assessee is dissatisfied. Sub section (7) of the section requires the Assistant Commissioner to communicate the orders passed by him disposing of the sessee objecting to an order passed by an Assistant Commissioner may appeal to the appellate Tribunal. Sub section (2) of the section permits the Commissioner if he objects to any order passed by the Assistant Commissioner under section 31, to direct the Agricultural Income tax Officer to appeal to the appellate Tribunal against such order. Subsection (5) of section 32 provides that the appellate Tribunal after giving both parties an opportunity of being heard may pass such order thereon as he thinks fit. The tribunal is required to Communicate the order to the assessee and to the Commissioner. Section 34 and section 35 are the two most important section for the purpose of these appeals. Section 34 which confers on the Commissioner revisional powers is in these terms: 660 "34. Revision. (1). The Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee. (2) Any order passed under subsection (1) shall be final subject to any reference that may be made to the High Court under section 60. " Section 35 which deals with income escaping assessment reads: "35. Income escaping assessment.(1) If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income tax Officer may, at any time within three years, of that end of that year serve on the person liable to pay the tax or in the case of a company on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 17 and may proceed to assess or re assess such income and the provisions of this Act shall so far as may be, apply accordingly as if the notice were a notice issued under that sub section; Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be; Provided further that the Agricultural Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so. (2) No order of assessment under section 18 or of assessment or reassessment under sub section (1) of this section shall be made after the expiry of three years from the end of the year in which the agricultural income was first assessable; Provided that where a notice under sub section (1) has been issued within the time therein limited, the assessment or reassessment to be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if at the time of the assessment or reassessment the three years aforesaid have already elapsed; 661 Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 19 or to an assessment or reassessment made in consequence of, or to give effect to any finding or direction contained in, an order under section 31, section 32, section 34 or section 60. (3) In computing the period of limitation for the purposes of this section, any period during which the assessment proceeding is stayed by an order or injunction of any court or other competent authority shall be excluded. " Section 35 as it originally stood contained only the provision now contained in sub section (1) including the first proviso. The second proviso to sub section (1), and sub sections (2) and (3) were introduced and the original provision was renumbered as sub section (1) by an amending Act in 1964, but the newly added provisions were given effect from April 1, 1958. Section 35 as extracted above was therefore, applicable in a proper case during the two assessment years we are concerned with. It would appear that sub section (2) prescribes a time limit of three years for reassessment under sub section (1) of this section from the end of the year in which the agricultural income was first assessed though the first proviso to sub section (2) extends the time for reassessment in a case where notice under sub section (1) had been issued within the time prescribed by the sub section, till the expiry of one year from the date of service of the notice even if at the time of reassessment the prescribed period of three years had elapsed. The second proviso to sub section (2) states that the limitation of time prescribed by section 35 will not apply to an assessment or reassessment made in consequence of any direction contained in an order under section 31, section 32, section 34 or section 60. Section 36 empowers the authority which passed an order on appeal or revision, within three years from the date of such order, and the Agricultural Income tax Officer within three years from the date of any assessment made by him, to rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be. Sub section (1) of section 60 provides that the assessee or the Commissioner may require the appellate tribunal to refer to the High Court any question of law arising out of an order under section 32(5). Sub section (2) of section 60 permits an assesee who is served with a notice of an order under section 34 which is prejudicial to him to require the Commissioner to refer to the High Court any question of law arising out of such order. The majority decision of the High Court took the view that this was a case of escaped assessment and that the power of revision conferred on the Commissioner by section 34 of the Act could not be utilised for the purpose of reassessment of income that escaped assessment disregarding the provisions of section 35. Sub section (1) of section 34 makes it clear that the power of revision is exercisable "subject to the provisions of this Act. " It was pointed out in the majority judgment that section 35 contains a specific provision for reassessment of income that had escaped assessment and it was held that revisional powers under section 34 could be availed of to reopen cases of escaped assessment 662 only within the time limit and in accordance with the procedure prescribed by section 35. Before us, Mr. Patel, learned counsel for the respondent, reiterated the same contention. Mr. Krishnamurthy Iyer appearing for the appellant challenged the decision of the High Court on two grounds: (1) the income sought to be reassed was not income that had "escaped" assessment and, as such, the provisions of section 35 are not relevant for the present purpose, and (2) assuming this was a case of income escaping assessment, even then the second proviso to sub section (2) of section 35 removes the bar of time for any assessment or reassessment made to give effect to a direction under section 34. On the first question the High Court found, relying on the decision of this Court in Maharajadhiraj Sir Kameshwar Singh vs State of Bihar, that this was a case of escaped income. In Kameshwar Singh 's case one of the provisions that came up for interpretation was section 26 of the Bihar Agricultural which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal. It was held in Kameshawar Singh 's case that under section 26 of the Bihar Act, the Agricultural Income tax Officer was competent to "assess any item of income which he had omitted to tax earlier, even though in the return that income was inlcuded and the Agricultural Income tax Officer then thought that it was exempt". The same view was taken in an earlier decision of this Court, Kamal Singh vs Commissioner of Income tax, that : "even if the assessee has submitted a return of his income, case may well occur where the whole of the income has not been assessed garded as having escaped assessment". But the question that arises in the case before us is not covered by either of these decisions. This is not a case where the Agricultural Income tax Officer omitted to assess any item of income disclosed in the assessee 's return. Here the assessee made a full disclosure of his income and claimed certain deductions. It is not disputed that he was entitled to claim some dedcations for the maintenance of the immature rubber planation. The Agricultural Income tax Officer may have committed an error in allowing deductions to the extent he did, but he did so after applying his mind to the claim. Every case of under assessment is not a case of escaped assessment. The view we take finds support from the decision of this Court in Deputy Commissioner of Agricultural Income tax and Sales Tax, Quilon and another vs Dhanalakshmi Vilas Cashew Co. On the other question, the High Court held that the order of the Commissioner directing the Agricultural Income tax Officer to reassess the income for the two years was bad, having been made after the expiry of the period prescribed by section 35 for the reassessment of income that had escaped assessment. For the appellant it was contended 663 that the second proviso to section 35 removed the limitation of time in the case of a reassessment made in consequence of a direction or order under section 34. As we have held that this was not a case of escaped assessment, this other question does not arise for consideration. In our opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should therefore be answered in the affirmative. The appeals are allowed, but in the circumstances of the case we make no order as to costs. V.P.S. Appeals allowed.

The assessee made a full disclosure of his income and claimed expenses incurred for the maintenance of his immature rubber plantations as deductions. The Agricultural Income Tax Officer, after considering the matter, allowed such deductions as he thought proper. The appellant Commissioner, in exercise of his revisional powers under section 34, Kerala Agricultural Income Tax Act, 1950, issued notice to the respondent (widow of the assessee) proposing to revise the assessment on the ground that the deductions allowed were excessive. The appellant, after considering the respondent 's objections, held that the deductions allowed were excessive and remanded the matter to the Agricultural Income Tax Officer for fresh disposal according to law. At the instance of the respondent, the question whether the appellant had jurisdiction to pass the order under section 34 was referred to the High Court, and the High Court, on the view that it was a case of re opening escaped assessment held, relying on Maharajadhiraj Sir Kameshwar Singh vs State of Bihar, , that the power of revision vested in the Commissioner under section 34 could not be invoked for the purpose of assessing income that had escaped assessment, and that such income could be assessed only by resorting to the procedure prescribed by section 35. within the time limit prescribed therein. Allowing the appeal to this Court, ^ HELD:(1) Every case of under assessment is not a case of escaped assessment. The Agricultural Income Tax Officer may have committed an error in allowing the deductions to the extent he did, but he did so after applying his mind to the claims. This is not a case where the officer omitted to assess any item of income disclosed in the assessee 's return as in the case relied on by the High Court and as in kamal Singh vs C.I.T. Therefore, it is not a case of reopening escaped assessment. [662F H] Deputy Commissioner of Agricultural Income tax and Sales Tax, Quilon and another vs Dhanalakshmi Vils Cashew Co., (1969) 24 S.T.C. 491, followed. (2) Since it is not a case of escaped assessment, the appellant had jurisdiction to make the order under section 34. [663B]

Civil Appeal No. 774 of 1966. Appeal by special leave from the judgment and decree dated August 31, 1965 of the Punjab High Court in Letters Patent Appeal No. 91 of 1961. Harbans Singh, for the appellant. 804 Bishan Narain and S.K. 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 a division bench. of the Punjab High Court decreeing the suit filed by the respondent for possession of certain land by preemption. The facts may be shortly stated: Santa Singh was the owner of some land in village Samadh Bhai, tehsil Moga. He died leaving a widow Smt. Sobhi. He also left a daughter Smt. Jai Kaur from his other wife. On February 3, 1958 Smt. Sobhi sold 73 kanals 14 marlas of land to the appellants, the sale consideration mentioned in the sale deed being Rs. 8,000/ . Jai Kaur filed a suit for possession by pre emption of the land which had been sold by Smt. Sobhi. According to her a consideration of Rs. 4,000/ only had been paid by the vendee. The trial court decreed the suit in May 1959 granting a decree for possession on payment of Rs. 6,500/ together with costs. The second Additional Judge to whom an appeal was taken dismissed it. In the High Court the learned Single Judge took the view that Smt. Jai Kaur not being the daughter of the vendor Smt. Sobhi had no right of pre emption under section 15(2) of the Punjab Pre emption Act, 1913 'as amended by the Punjab Pre emption Amendment Act, 1960. The suit was dismissed. Jai Kaur filed an appeal under clause 10 of the Letters Patent of the High Court. Relying on an amendment made by the Punjab Pre emption Amendment Act 1964 in the first paragraph of clause (b) of sub section (2) of section 15 of the Punjab Pre emption Act, hereinafter called the Act, the Division Bench reversed the judgment of the Single Judge and decreed the plaintiff 's suit. The relevant provisions of the statute may now be noticed together with the amendments made in 1960 and 1964. Section 15 of the Act was substituted by section 4 of the Amendment Act, 1960. According to the substituted section the right of pre emption in respect of agricultural land and village immovable property shall vest thus : (1) (2) Notwithstanding anything contained in sub section (1) (a) where the sale is by a female of land or property to which she h,as succeeded through her father or brother or the sale in respect of such land or property is by the scan or daughter of 805 such female, after inheritance, the fight of preemption shall vest, (i) if the sale is 'by such female, in her brother or brother 's son; (ii) if the sale is by the son or daughter of such female, in the mother 's brother or the mother 's brother 's sons of the vendor or vendors;" By the Amendment Act 1964 in the first paragraph of section 15(2) (b) between the words "such" and "female" the words "husband of the" were inserted. The result was that after the amendment the portion of clause (b) relevant for our purpose was to read as follows: "FIRST, in the son or daughter of such husband of the female. " Now if the Amendment Act of 1964 could be regarded as having retrospective operation so as to affect pending proceedings there can be no dispute that the judgment of the division bench was light and must be affirmed. The contention which has been raised on behalf of the appellants is that. there is no indication in the Amendment Act of 1964 that it was to have retrospective operation and therefore the 'amendment made by it should be deemed to be only prospective. It may be mentioned that by section 6 of the Amendment Act of 1960 a new section 31 was inserted in the Act. That section provided, "no court shall pass a decree in a suit for pre emption whether instituted be,fore or after the commencement of the Punjab Pre emption Amendment Act of 1960 which is inconsistent with the provisions of the said Act." in Ram Sarup vs Munshi & Ors.(1) this Court held that the language used in section 31 was comprehensive enough so as to require an appellate court to give effect to the substantive provisions of the Amending Act whether the appeal before it was one against a decree granting pre emption or one refusing that relief. Although section 31 was inserted in the Act for all times the phraseology employed therein does not show that its language was meant to cover those amendments which would be made subsequent to the Amendment Act of 1960. The word "said" can have reference in the context only to the enactment of 1960 and to no other. it would not be legitimate for the courts to give an extended effect to a provision used and words employed warranted such a course being followed. That does not appear to be the case here. It appears to us that the Amendment Act of 1964 was merely of a clarificatory or declaratory nature. Even in the absence of the words which were inserted by the Amendment Act of 1964 in section 15(2)(b) the only possible interpretation and meaning of (1) ; 806 the words "in the son or daughter of such female" could have reference to and cover the sort or daughter of the husband of the female. The entire scheme of sub section (2) of section 15 is that the right of pre emption has been confined to the issues of the last male holder from whom the property which has been sold came by inheritance. Looking at clause (a) of sub section (2) where the properly which has been sold has come to the female from her ,father or brother by succession the right of pre emption has been given to. her brother or brother 's son. As has been observed in Mota Singh vs Prem Parkash Kaur & Ors.(1), the predominant idea seems to be that the property must not go outside the line of the last male holder and the right has been given to his male linea descendants. Where the sale is by the son or the daughter of such female the right is given to the mother 's brother or their sons. The principle which has been kept in view is that the person on whom the right of pre emption is conferred must be a male lineal descendant of the last male holder of the property sold. This is so with regard to clause (a) of sub section Coming to clause (b) where the sale is by a female of land or property to which she has succeeded through her husband or through her son in case the son has inherited the same from his father the right of pre emption is to vest firstly in the son or daughter of such female and secondly in the husband 's brother or husband 's brother 's son of such female. Now if the son or daughter of the female who has sold the property could refer to her son or daughter from a husband other than the one from whom the property devolved on her, it would be contrary to the scheme and purpose of sub section (2) which essentially is to vest the right of pre emption in the lineal descendants of the last male holder. Similarly it is unthinkable that a husband 's brother or husband 's brother 's son should have reference to a husband to whom the property never belonged. In other words it could never be intended that if a female has had a previous husband who has either died or with whom the marriage has been dissolved and the female has remarried and succeeded to the property of her second husband the brother or the brother 's son of her previous husband should be able to claim the right of pre emption when they had nothing whatsoever to do with the property sought to be preempted. It would follow that under clause (b) the right of preemption would vest firstly in the son or daughter of the husband of the female meaning thereby either her own off spring ,from the husband whom she has succeeded or the son or daughter of that husband even from another wife. If the above discussion is kept in view there is no difficulty in attributing a retroactive intention to the legislature when the Amendment Act of 1964 was enacted. It is well settled that if a (1) I.E.R. [1961] Punj. 807 statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions. We are in entire agreement with the following view expressed in a recent full bench decision of the Punjab High Court in Moti Ram vs Bakhwant Singh & Ors. (1) in which a similar point came up ,for consideration: "A close analysis of paragraphs (First) and (Secondly) of clause (b) of sub section (2) of section 15 before the amendment introduced by Punjab Act 13 of 1964 would demonstrate that a son of the husband of a female vendor though not born from her womb would be entitled to preempt, particularly when the husband 's brother and even the son of the husband 's brother of that female are accorded the right of preemption. To reiterate, the right of preemption is accorded manifestly on the principle of consanguinity, the property of the female vendor 'being that of her husband, and there is no reason why the step son should be excluded and the nephew of the husband included. From this alone it must be inferred that the Legislature had intended to include a step son and consequently retrospective operation had to be given to the amending Act as such a construction appears to be in consonance 'and harmony with the purpose of the Act". The result, therefore, is that the respondent was entitled to. exercise, her right of preemption under paragraph First of cl. (b) of sub section (2) of section 15 even before the amendment made in 1964. At any rate whatever doubts existed they were removed by the Amendment Act of 1964 which must be given retrospective operation. The appeal consequently fails and it is dismissed with coats. R.K.P.S. Appeal dismissed (1) I.L.R.[19681] Punjab 104, 120.

S, the owner of some land in a village in Punjab, died leaving a widow and the respondent, his daughter by another wife. The widow sold a part of the land in February 1958 to the appellants, whereupon the respondent filed a suit for possession by pre emption of the land sold. The trial court decreed the suit and a first appeal was dismissed. A single bench of the High Court allowed the second appeal on the view that the respondent not being the widow 's daughter, had no right of pre emption under section 15(2) of the Punjab Pre emption Act, 1913, as amended by the Punjab Pre emption Amendment Act, 1960. However, a division bench in a Letters Patent appeal, relying on an amendment made by the PUnjab Preemption Amendment Act, 1964 in section 15(2)(b), reversed the judgment of the single bench and decreed the suit. It was contended in appeal to this Court that there is no indication in the Amendment Act of 1964 that it is to have retrospective operation and the amendment made by it should be deemed to be only prospective. HELD: The Amendment Act of 1964 was merely of a clarificatory or declaratory nature. Even in the absence of words which were inserted by the Amendment Act of 1964 under section 15(2)(b) the only possible interpretation and meaning of the words "in the son or daughter of such female" could have reference to and cover the son or daughter of the husband of the 'female. The entire scheme of section 15(2) is that the right of pre emption has been confined to the issues of the last male holder from whom the property which has been sold came by inheritance. [805 H] Under section 15(2)(b) the right of pre emption would vest firstly in the son or daughter of the husband of the female meaning thereby either her own off springs from the husband whom she had succeeded or the son or daughter of that husband even from another wife. [806 G] In the present case the respondent was entitled to exercise her right of pre emption under paragraph First of clause (b) of section 15(2) even before the Amendment of 1964. Whatever doubts existed they were removed by that Act which must be given retrospective operation. [807 E F] Ram Sarup vs Munshi & Ors, ; and Mota Singh vs Prem Parkash Kaur & Ors., I.L.R. [1961] Punj. 614, 627; referred to.

Civil Appeal No. 906 of 1984. From the Judgment and Order dated 8.7.1980 of the Bombay High Court in Second Appeal No. 663 of 1971. V.N. Ganpule for the Appellant. S.V. Deshpande for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The short question which arises for consideration in this case is whether a person adopted by a Hindu widow after the coming into force of the (hereinafter referred to as 'the Act ') can claim a share in the property which had devolved on a sole surviving coparcener on the death of the husband of the widow who took him in adoption. One Shamrao, who was governed by the Mitakshara Hindu Law died leaving behind him two sons Dharma (the appellant in this appeal) and Miragu. Miragu died issueless in the year 1928 leaving behind him his widow Champabai respondent No. 2. The properties owned by the joint family of Dharma and Miragu passed on to the hands of Dharma who was the sole surviving coparcener on the death of Miragu. Under the law, as it stood then, Champabai had only a right of maintenance in the joint family properties. The Act came into force on 1080 21st December, 1956. On 9.8.1968 she took Pandurang, the 1st respondent, in adoption and immediately thereafter a suit was filed by Pandurang and Champabai in Regular Civil Suit No. 457 of 1968 on the file of the Civil Judge, Junior Division, Barsi for partition and separate possession of one half share in the properties of the joint family of which Dharma, the appellant herein, and Miragu were coparceners. Before the said adoption took place, two items of the joint family properties had been sold in favour of Defendant Nos. 3 and 17 for consideration. Champabai had instituted a suit for maintenance against Dharma and obtained a decree for maintenance. Dharma resisted the suit on the ground that Pandurang was not entitled to claim any share in the properties which originally belonged to the joint family in view of clause (c) of the proviso to section 12 of the Act and the properties which had been sold by him in favour of third parties could not in any event be the subject matter of the partition suit. The Trial Court dismissed the suit. Pandurang and Champabai filed an appeal against the decree of the Trial Court before the District Court, Sholapur in Civil Appeal No. 222 of 1970. The learned District Judge allowed the appeal and passed a preliminary decree for partition in favour of Pandurang and Champabai and separate possession of one half share of the joint family properties except the two fields which had been sold earlier in favour of third parties. Aggrieved by the decree of the District Judge, the appellant filed an appeal before the High Court of Bombay in Second Appeal No. 663 of 1971. The High Court affirmed the decree passed by the learned District Judge following the decision of that Court in Y.K. Nalavade and Others vs Anand G. Chavan and Others, A.I.R. 1981 Bombay 109 in which it had been held that clause (c) of the proviso to section 12 of the Act was not a bar to such a suit for partition. This appeal by special leave is filed by the appellant against the judgment of the High Court of Bombay. The only question urged on behalf of the appellant before us is that the suit for partition should have been dismissed by the High Court as the 1st respondent Pandurang could not divest Dharma the appellant of any part of the estate which had been vested in him before the adoption in view of clause (c) of the proviso to section 12 of the Act. Section 12 of the Act reads thus: 12. 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 1081 deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption. " It is argued that Pandurang became the child of the adoptive mother for all purposes with effect from the date of the adoption and only from that date all the ties of Pandurang in the family of his birth should be deemed to have been severed and replaced by those created by the adoption in the adoptive family and, therefore, Pandurang, the adopted son could not claim a share in the joint family properties which had devolved on the appellant by survivorship on the death of Miragu. In support of this contention the appellant relied upon the decision of this Court in Sawan Ram & Others vs Kala Wanti & Others, ; The facts involved in that case were these. A widow, whose husband had died before the Hindu Succession Act came into force, adopted the second respondent in that case after the commencement of the Act. On the widow 's death the appellant in that case, claiming to be the nearest reversioner of her husband, filed a suit challenging the adoption. The Trial Court dismissed the suit and the decree of the Trial Court was affirmed by the High Court. Against the decree of the High Court the appellant therein filed an appeal by special leave before this Court. In that appeal, the appellant contended that (i) the adoption was invalid under clause (ii) of section 6 read with section 9(2) of the Act as the son was given in adoption by his mother, even though the father was alive, and (ii) since under the Act an independent right of adoption had been given to Hindu female, if a widow adopted a son, he could become the adopted son of the widow only and could not be considered to be the son of her deceased husband also. This Court negatived both the contentions. We are not 1082 concerned with the first ground for purposes of this case. On the second contention this Court held that the provision in section 12 of the Act made it clear that the adopted son of a Hindu female, who had been married, was in fact the adopted son of her husband also. That decision was sufficient to dismiss the suit filed by the appellant as the adopted son in that case being the nearest heir was entitled to claim the properties involved in the suit to the exclusion of the appellant therein who was a more distant heir was not, therefore, entitled to lay claim to any part of the suit properties. In the course of the said decision a decision of the Andhra Pradesh High Court in Narra Hanumantha Rao vs Narra Hanumayya and Others, [1964] 1 Andhra Weekly Reporter 156 I.L.R. had been cited before this Court. In that case the High Court of Andhra Pradesh had taken the view that clause (c) of the proviso to section 12 of the Act laid down explicity that the adoption of a son or daughter by a male or female Hindu was not to result in the divesting of any estate vested in any person prior to the adoption and that clause (c) also applied to the interest which passed on by survivorship on the death of a coparcener to the remaining coparceners. As pointed out earlier the said question did not actually arise in the appeal before this Court. This Court, however, observed as follows: "It may, however, be mentioned that the conclusion which we have arrived at does not indicate that the ultimate decision given by the Andhra Pradesh High Court was in any way incorrect. As we have mentioned earlier, the question in that case was whether E, after the adoption by D, the widow of B, could divest C of the rights which had already vested in C before the adoption. It is significant that by the year 1936 C was the sole male member of the Hindu joint family which owned the disputed property. B died in the year 1924 and A died in 1936. By that time, the Hindu Women 's Rights to Property Act had not been enacted and consequently, C, as the sole male survivor of the family became full owner of that property. In these circumstances, it was clear that after the adoption of E by D, E could not divest C of the rights already vested in him in view of the special provisions contained in clause (c) of the proviso to section 12 of the Act. It appears that, by making such a provision, the Act has narrowed down the rights of an adopted child as compared with the rights of a child born posthumously. Under the Shastriclaw, if a child was adopted by a widow, he was treated as a natural born child 1083 and, consequently, he could divest other members of the family of rights vested in them prior to his adoption. It was only with the limited object of avoiding any such consequence on the adoption of a child by a Hindu widow that these provisions in clause (c) of the proviso to section 12, and section 13 of the Act were incorporated. In that respect, the rights of the adopted child were restricted. It is to be noted that this restriction was placed on the rights of a child adopted by either a male Hindu or a female Hindu and not merely in a case of adoption by a female Hindu. This restriction on the rights of the adopted child cannot, therefore, in our opinion, lead to any inference that a child adopted by a widow will not be deemed to be the adopted son of her deceased husband. The second ground taken on behalf of the appellant also, therefore, fails. " It is no doubt true that the above observations appear to support a case of the appellant but since we are of the view that these observations were not necessary for deciding the case which was before the Court they have to be held obiter dicta. In Sitabai & Anr. vs Ram Chandra, ; which was again decided by a bench of three Judges, this Court was called upon to decide a case which was more or less similar to the one before us. In that case the facts were these. Two brothers were in possession of ancestral properties consisting of a house and tenancy rights of an ordinary tenant in agricultural lands. The elder brother died in 1930 leaving a widow, the first appellant therein. The first appellant continued to live with the younger brother and had an illegitimate son by him, the respondent therein. In March, 1958, she adopted the second appellant, and some time later, the surviving brother died. After his putative father died, the respondent who was the illegitimate son took possession of all the joint family properties. The two appellants thereupon filed a suit for ejectment. The Trial Court decreed the suit. The first appellate court held that a will executed by the respondent 's father (the younger brother) was valid in so far as his half share in the house was concerned and, therefore, modified the decree by granting a half share of the house to the respondent. In second appeal, the High Court held that the appellants were not entitled to any relief and that their suit should be dismissed on two grounds, namely, (i) the joint family properties ceased to have that character in the hands of the surviving brother when he became the sole surviving coparcener, and (2) the second appellant did not become, on his adoption, a copar 1084 cener with his uncle in the joint family properties. In this Court the appellants in that appeal questioned both the conclusions reached by the High Court. On the first contention, this Court held that the joint family properties continued to retain their character in the hands of the surviving brother, as the widow (the first appellant) of the elder brother was still alive and continued to enjoy the right of maintenance out of the joint family properties following the decision of this Court in Gowli Buddanna vs Commissioner of Income Tax, Mysore, Bangalore; , On the second contention this Court held that the scheme of sections 11 and 12 of the Act was that in the case of adoption by a widow the adopted child became absorbed in the adoptive family to which the widow belonged. It further observed that though section 14 of the Act did not expressly state that the child adopted by a widow became the adopted son of her deceased husband, it was a necessary implication of sections 12 and 14 of the Act and that was why section 14 of the Act provided that when a widow adopted a child and subsequently married, that husband became the step father of the adopted child. Therefore, when the second appellant was adopted by the first appellant he became the adopted son of the first appellant and her deceased husband, namely, the elder brother, and hence became a coparcener with the surviving brother in the joint family properties, and after the death of the surviving brother the second appellant became the sole surviving coparcener entitled to the possession of all the joint family properties except those bequeathed under the will, that is, except the half share of the house. Applying the above decision it has to be held in the case before us that the joint family properties which belonged to the joint family consisting of Dharma the appellant and his brother Miragu continued to retain the character of joint family properties in the hands of Dharma the appellant as Champabai, the widow of Miragu was still alive and continued to enjoy the right of maintenance out of the said joint family properties. It should also be held that Pandurang the 1st respondent on adoption became the adopted son of Miragu and became a coparcener with Dharma the appellant in the joint family properties. When once he became a member of the coparcenary which owned the joint family properties he was entitled to institute a suit for partition and separate possession of his one half share in the joint family properties, of course, except those which had been alienated in favour of third parties before the adoption by Dharma the appellant. The effect of section 12 of the Act again came up for consideration before this Court in Vasant and Another vs Dattu and Others, A.I.R. 1987 S.C. 399. In that case interpreting clause (c) to the proviso 1085 of section 12 of the Act Chinnappa Reddy, J. who spoke for the Court observed that in a case of this nature where the joint family properties had passed on to the hands of the remaining members of the coparcenary on the death of one of the coparceners no vesting of the property actually took place in the remaining coparceners while their share in the joint family properties might have increased on the death of one of the coparceners which was bound to decrease on the introduction of one more member into the family either by birth or by adoption. In the above connection, the Court observed thus: "4. We are concerned with proviso (c) to section 12. The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold the estate, but, with more members than before. There is no fresh vesting or divesting of the estate in anyone. The learned Counsel for the appellants urged that on the death of a member of a joint family the property must be considered to have vested in the remaining members by survivorship. It is not possible to agree with this argument. The property, no doubt passes by survivorship, but there is no question of any vesting or divesting in the sense contemplated by section 12 of the Act. To interpret section 12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family. We do not think that such a result was in the contemplation of Parliament at all. " We respectfully agree with the above observations of this Court in Vasant 's case (supra). The joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary pro 1086 perty as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property. If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alientation cannot object to alientations made before he was begotten or adopted. The decision of the High Court of Bombay in Y.K. Nalavade 's case (supra) which was followed by the High Court in dismissing the appeal, out of which the present appeal arises, has been rightly given. We agree with the reasons given by the High Court of Bombay in that decision for taking the view that clause (c) to proviso of section 12 of the Act would not be attracted to a case of this nature since as observed by this Court in Vasant 's case (supra) there was no 'vesting ' of joint family property in Dharma the appellant took place on the death of Miragu and no 'divesting ' or property took place when Pandurang the first respondent was adopted. The decision of the Andhra Pradesh High Court in Narra Hanumantha Rao 's case (supra) which takes a contrary view is not approved by us. It, therefore, stands overruled. The joint family properties continued to remain in the hands of Dharma the appellant as joint family properties and that on his adoption Pandurang the 1st respondent became a member of the coparcenary entitled to claim one half share in them except those items which had been sold by Dharma the appellant. In the result this appeal fails and it is dismissed. There is no order as to costs. H.S.K. Appeal dismissed.

% A person had two sons, the appellant Dharma and another Miragu. Miragu died issueless in 1928 leaving behind his widow, respondent No. 2. The Joint family property devolved on the appellant as sole surviving coparcener. The appellant disposed of certain properties. In 1956 the came into force. In 1968 the widow took respondent No. 1 in adoption. Respondent Nos. 1 and 2 filed a suit for partition and separate possession of one half share in the property of the joint family. Trial Court dismissed the suit. Respondent Nos. 1 and 2 filed an appeal which was allowed by the District Judge and a preliminary decree for partition and separate possession was passed. The appellant filed an appeal before the High Court and the High Court affirmed the decree passed by the District Judge. Hence this appeal by special leave. The contention of the appellant was that respondent No. 1 could not divest him of any part of the estate which had been vested in him before the adoption of respondent No. 1 in view of clause (c) of the proviso to section 12 of the Act. Dismissing the appeal, this Court, ^ HELD: The Joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. 1078 If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparceners in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property. If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted. [1085G H; 1086A C] In the instant case the joint family properties which belonged to the joint family consisting of Dharma the appellant and his brother Miragu continued to retain the character of joint family properties in the hands of Dharma the appellant as Champabai, the widow of Miragu was still alive and continued to enjoy the right of maintenance out of the said joint family properties. Pandurang the 1st respondent on adoption became the adopted son of Miragu and became a coparcener with Dharma the appellant in the joint family properties. When once he became a member of the coparcenary which owned the joint family properties he was entitled to institute a suit for partition and separate possession of his one half share in the joint family properties, of course, except those which had been alienated in favour of third parties before the adoption by Dharma the appellant. [1084E G] Clause (c) to proviso of section 12 of the Act would not be attracted in the instant case since there was no 'vesting ' of joint family property in Dharma the appellant which took place on the death of Miragu and no 'divesting ' of property took place when Pandurang the first respondent was adopted. [1086D E] The Joint family properties continued to remain in the hands of Dharma the appellant as joint family properties and that on his adoption Pandurang the 1st respondent became a member of the coparce 1079 nary entitled to claim one half share in them except those items which had been sold by Dharma the appellant. [1086F] Y.K. Nalavade and Ors. vs Anand G. Chavan and Ors., A.I.R. 1981 Bombay 109, approved. Sawan Ram & Ors. vs Kala Wanti & Ors., [1967] 3 S.C.R. 687; Sitabai and Anr. vs Ram Chandra, ; , referred to. Narra Hanumantha Rao vs Narra Hanumayya and Ors., [1964] 1 Andhra Weekly Reporter 156 I.L.R. , overruled. Gowli Buddanna vs Commissioner of Income Tax, Mysore Bangalore, ; ; Vasant and Anr. vs Dattu and Ors., A.I.R. 1987 S.C. 399, followed.

ition (Civil) No. 873 of 1990. (Under Article 32 of the Constitiution of India) WITH Contempt Petition No. 6 of 1991. AND Civil Appeal Nos. 309 to 373 of 1992. R.K. Garg, Kapil Sibal, V. Lakshmi Narayanan, D.K. Garg and P. Mahale for the Petitioners. R.N. Narasimhamurthy, Kh. Nobin Singh and M. Veerappa for the Respondents. The Judgment of the Court was delivered by R.M. SAHAI, J. Teachers appointed temporarily for three months or less, by privately managed degree colleges receiving cent per cent grant in aid, controlled administratively and financially by the Educational Department of the State of Karnataka, seek regularisation of their services by invoking principle of equitable estoppel arising from implied assurance due to their continuance, as such, for years with a break of a day or two every three months. Another basis for direction to regularise is founded on denial of similar treatment by the State as has been extended to contract teachers and local teachers appointed in government or vocational colleges. Payment of fixed salary instead of regular emoluments for eight months in a year and that too for number of years is yet another grievance. Ad hoc appointments, a convenient way of entry usually from back door, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence. They are individual problem to begin with, become a family problem with passage of time and end with human problem in court of law. It is unjust and unfair to those who are lesser fortunate in society with little or no approach even though better qualified, more meritorious and well deserving. The infection is 401 widespread in government or semi government departments of State financed institutions. It arises either because the appointing authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure or to avoid loss of work etc. Or the rules or circulars issued by the department itself empower the authority to do so as a stop gap arrangement. The former is an abuse of power. It is unpardonable. Even if it is found to have been resorted to as a genuine emergency measure the courts should be reluctant to grant indulgence. Latter gives rise to equities which have bothered courts every now and then. Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at times without following the procedure, and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it. Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks. In State of Karnataka it is basically State created problem due to defective rule and absence of any provsions to effectively deal with such a situation. What is surprising is that till today the State has not been able to bring out a comprehensive legislation on such an important aspect as education and the appointment, selection, promotion, transfer, payment of salary etc. of teachers is regulated by government orders issued from time to time. Since 1980 it is governed by an order issued by Educational and Youth Services Department of the State of Karnataka on 3rd October, 1981. Clause 5 of the Order reads as under: "Any appoinment for a period of three months or less in a College shall be made, subject to approval of the Director within one month from the date of appointment by the Management or such authority as the Management by Order, may specify in that behalf. Such temporary appointments may, however, be continued for a further period of not more than three months, with one day 's break when selection through the Selection Committee is likely to take time. The Director may, for reasons to be recorded in writing refuse approval for the said appointment and the services of the person so appointed shall be terminated forthwith. " Appointments for more than three months is to be by a regularly constituted selection committee under clause 4 of the order. But if is for three months or less than the appointment could be made by the 402 Management under clause 5 subject to approval by the Director. It could be continued for further period of three months if there was delay in regular appointment. But the direction to re appoint with one day 's break is not understandable. If the intention was to differentiate between appointments for more than three months and others it was a futile exercise. That had already been achieved by providing two different methods of selection one by Selection Committee and ohter by Management. Distinction between appointment against temporary and permanent vacancies are well known in service law. It was unnecessary to make it appear crude. If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State. Such provisions cannot withstand the test of arbitrariness. That is why the High Court, while disposing of CMW 6232 of 1990 B.R. Parineeth & Ors. vs The State of Karnataka & Others, along with many other petitions by its order dated 3rd July, 1990, criticised such practice as pernicious. The rule making authority lost sight of fact that such policy was likely to give dominance to vested interests who leave no opportunity to exploit the educated youth who have to survive even at cost of one meal a day. That is apparent from continuance of these teachers for 8 to 10 years with sword of termination hanging on their head ready to strike every three months at the instance of either the management or the Director. Provision of stop gap appointments might have been well intended and may be necessary as well but their improper use results in abuse. And that is what has happened on a large scale. The helplessness expressed by the State in the counter affidavit that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing. It sounds like surrender in favour of private managements. Another obnoxious part is the emoluments that have been paid to the temporary teachers. The order provides that the teacher shall be paid a fixed salary which is ten rupees less than the minimum payable to regular employee. This method of payment is again beyond comprehension. An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, non availability of permanent vacancy or as stop gap arrangement till the regular selection is completed, yet there can be no justification for paying a teacher, so appointed a fixed salary by adopting a different method of payment than a regular teacher. Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution. The evil inherent in it is that apart from the teachers being at the beck and call of the management are in danger of being exploited as has been done by the management 403 committees of State of Karnataka who have utilized the services of these teachers for 8 to 10 years by paying a meagre salary when probably during this period if they would have been paid according to the salary payable to a regular teacher they would have been getting much more. Payment of nearly eight months ' salary, by resorting to clause 5, and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust. A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorded in accordance with rules but no discrimination can be made for same job on basis of method of recruitment. Such injustice is abhorring to the constitutional scheme. While deprecating direction by the government to break service for a day or two and paying fixed salary to temporary employees we must condemn the practice of management of not making regular selection utmost within six months of occurrence of vacancy. Nor the helplessness of government can be appreciated as expressed in the counter affidavit that despite orders the management continued with it. If the government could not take effective measure either by superseding the management or stopping grant in aid then either it was working under pressure from Management of the private aided institutions or it was itself interested in continuing such unfortunate state of affairs. In either case the equities have been created because of doing of state itself, therefore, it should resolve it. One such method was adopted by the High Court in invididual petitions filed by the teachers by directing the Director of Education to hold selection. In pursuance of it some of the teachers have been regularised. But substantial number still remain due to State 's going back on its agreement before the court by creating obstacles in implementation of the order. Many of them who have have faced selection and have secured higher marks and are in zone of selection are being denied the benefit because it is claimed that such regularisation would be contrary to reservation policy of the State. The policy is under challenge in another proceedings in the Court. Without entering into validity of the policy which according to petitioner results in cent per cent reservation we are of opinion that such practice should be put an end to, therefore, following directions are necessary to be issued: (1) Provision in clause 5 of one day 's break in service is struck down as ultra vires. (2) Orders for payment of fixed salary to temporary teachers is declared invalid. But it shall operate prospectively. A teacher appointed temporarily shall be paid the salary that is admissible to any teacher appointed regularly. 404 (3) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made. (4) Management shall take steps, whenever necessary, to fill up permanent vacancies in accordance with rules. Delay in filling up the vacancies shall not entitle the management or Director to terminate the services of temporary teachers except for adequate reasons. But it shall entitle the government to take such steps including supersession of management or stopping grants in aid if permitted under law to compel the institutions to comply with the rules. So far these petitioners and teachers similarly situated are concerned, it could not be disputed that many of those teachers who appeared for selection in pursuance of the High Court order secured sufficiently high marks but they could not be regularised because the vacancies are said to be reserved. But what has been lost sight of is that petitioners are seeking regularisation on posts on which they have been working and not fresh appointments, therefore, they could not be denied benefit of the High Court 's order specially when no such difficulty was pointed out and it was on agreement by the respondents that the order was passed. No material has been brought on record to show that any action was taken prior to decision by the High Court against any institution for not following the reservation policy. To deny therefore the benefit of selection held on agreement by the respondents is being unjust to such selectees. Further the State of Karnataka appears to have been regularising services of adhoc teachers. Till now it has regularised services of contract lecturers, local candidates, University lecturers,Engineering colleges, lecturers etc. It may not furnish, any basis for petitioners to claim that the State may be directed to issue similar order regularsing services of teachers of privately managed colleges. All the same such policy decisions of government in favour of one or the other set of employees of sister department are bound to raise hopes and expectations in employees of other departments. That is why it is incumbent on governments to be more circumspect in taking such decisions. The petitioners may not be able to build up any challenge on discrimination as employees of government colleges and private colleges may not belong to the same class yet their claim cannot be negatived on the respondents ' stand in the counter affidavit that the regularisation of temporary teachers who have not faced selection shall impair educational standard without explaining the effect of regularisation of temporary teachers of University and even technical colleges. Such being the unfortunate state of affairs this Court is left with no option but to issue following directions to respondents for not honoring its com 405 mitments before the High court and acting contrary to the spirit of the order, and also due to failure of governemt in remaining vigilant against private management of the college by issuing timely directions and taking effective steps for enforcing the rules: (1) Services of such temporary teachers who have worked as such for three years, including the break till today shall not be terminated. They shall be absorbed as and when regular vacancies arise. (2) If regular selections have been made the governemt shall create additional posts to accommodate such selected candidates. (3) The teachers who have undergone the process of selection under the directions of the High Court and have been appointed because of the reservation policy of the Government be regularly appointed by creating additional posts. (4) From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post. (5) Such teachers shall be continued in service even during vacations. For these reasons this petition succeeds and is allowed. The direction is issued to respondents in the terms indicated above. Civil Appeal Nos. 309 373 of 1992 arising out of SLP (Civil) Nos. 13131 95 of 1990 challenging the order of High Court in CMW 6232 of 1990 decided on 3rd July, 1990 is disposed of accordingly. Contempt Petition No. 6 of 1991 alleging violation of status quo order granted in W.P. (Civil) No. 873 of 1990 need not be decided. It is directed to be filed. The petitioners shall be entitled to their cost from the State of Karnataka. T.N.A. Petition allowed.

The Education and Youth Services Department of the State of Karnataka issued an order dated 3rd October 1981 which provided two different methods of selection of teachers in private aided degree colleges one by Selection Committee and another by Management. Under the order appointments for more than three months could be made by a selection committee whereas temporary appointments for less than 3 months could be made by the Management and such temporary appointments could be continued for a futher period of not more than 3 months, with one day 's break in service. The Government order also provided that such temporary teachers shall be paid fixed salary being ten rupees less than the minimum payable to regular teachers. The teachers temporarily appointed under the said order accordingly continued in service for a long period but with a break of a day or two every three months in their service. Subsequently, they filed a writ petition in this Court seeking regularisation of their services by invoking the principle of equitable estoppel arising from implied assurance due to their long continuance. It was contended on behalf of the petitioners that; (i) since the State has regularised the services of contract teachers and local teachers appointed in Government or vocational colleges they should also he extended similar treatment; and (ii) payment of fixed salary instead of regular emoluments for eight months in a year was discriminatory and arbitrary. 398 Allowing the petition, this Court, HELD: 1. Provision of one day 's break in service in the Government order is deprecated and is struck down as ultra vires. If the intention was to differentiate between appointments for more than three months and others it was a futile exercise. That was already achieved by providing two different methods of selection one by Selection Committee and other by Management. Distinction between appointment against temporary and permanent vacancies are well known in service law. It was unnecessary to make it appear crude. If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State. Such provisions cannot withstand the test of arbitrariness. [403 G; 402 A B] B.R. Parineeth & Ors. vs The State of Karnataka & Ors. CMW 6232 of 1990 decided on 3.7.1990, referred to. Order for payment of fixed salary to temporary teachers is declared invalid. An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, non availability of permanent vacancy or as stop gap arrangement till the regular selection is completed, yet there can be no justification for paying a teacher, so appointed, a fixed salary by adopting a different method of payment than a regular teacher. Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution. [403 G; 402 F G] 2.1 Payment of nearly eight months ' salary by resorting to government order and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust. Such injustice is abhorring to the constitutional scheme. [403 A B;] 3. The practice of management of not making regular selection utmost within six months of occurrence of vacancy is condemned. The helplessness expressed by the State that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing and sounds like surrender in favour of private managements. [403 C, 402 E] 3.1 Managements shall take steps, whenever necessary, to fill up permanent vacancies in accordance with rules. Delay in filling 399 up the vacancies shall not entitle the management or director to terminate the services of temporary teachers except for adequate reasons. But it shall entitle the government to take such steps including supersession of management or stopping grants in aid if premitted under law to compel the institutions to comply with the rules. [404 B] 4. Regularisation of services of teachers of Government colleges by the State may not furnish, any basis for petitioners to claim that the state may be directed to issue similar order regularizing services of teachers of privately managed colleges. All the same such policy decisions of government in favour of one or the other set of employees of sister department are bound to raise hope and expectations in employees of other departments. Therefore, it is incumbent on governments to be more circumspect in taking such decisions. [404 E G] 5. Ad hoc appointments, a convenient way of entry usually from backdoor, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence. The infection is widespread in government or semi government departments or State financed institutions. Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at time without following the procedure and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it. Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks. [400 G H; 401 C D] 6. In the circumstances of the case following directions are issued: a) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made; [404 A] b) Services of such temporary teachers who have worked as such for three years, including the break till today shall not be terminated. They shall be absorbed as and when regular vacancies arise; [405 B] 400 c) If regular selections have been made the government shall creat additional posts to accommodate such selected candidates; [405 B] d) From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post. [405 D]

l 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. V.A. Seyid Muhammad, S.P. Nayar and B.D. Sharma ', for the appellants. S.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 country liquor shop in Bela Road for the year 1949 50 on March 23, 1949. The auction took place in pursuance of the conditions of "Auction of Excise Shops in Delhi for the year Clauses 31 and 33 of the conditions were to the following effect: "31. The Chief Commissioner is under no obligation to grant any license until he is assured of financial status of the bidder. At the conclusion of the auction an enquiry will be made into the financial position of any bidder not 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. 596 33. All final bids will be made subject to the confirmation by the Chief Commissioner who may reject any bid without assigning any reasons. If no bid 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 not made by the respondent. In these circumstances the Chief Commissioner did not confirm 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 confirmed 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 court 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 confirmation by the Chief Commissioner under cl. 33 and since the auction in favour of the respondent was not accepted by him there was no binding obligation between the parties. The decree of the trial court was upheld by the lower appellate court. In second appeal False, J., took the view that cl. 3 3 was not in consonance with the statutory rules and the contract 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 court. 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 597 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 contract, 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 contract 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 contended 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 completion of the formalities before the conclusion 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, exhibit D 28, states that "all final bids will be made subject to the confirmation by the Chief Commissioner who may reject any bid without assigning any reasons. " It is, therefore, clear that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. When the bid is so withdrawn before the confirmation of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on the resale. An acceptance of an offer may be either absolute or conditional. If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place. This view is borne out by the 598 decision of the Court of Appeal in Hussey vs 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 contract and the Court of Appeal held that the acceptance was conditional and there was no binding contract and that V could withdraw at any time Until P 's 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 containing no reference whatever to title. The alleged acceptance was an acceptance of the offer, so far as price was concerned, 'subject to the title being approved by our solicitors '. There was no acceptance 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 counsel for the Respondents, to nothing 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 not give a right to the purchaser to say that the title shall be approved by any one, either by his solicitor or his conveyancing counsel, 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 condition 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 not possible to accept this argument. As we have already shown the first part of cl. 21 deals with a completed sale and the second part deals with a situation where the auction is conducted 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 contract 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 not disputed that the (1) at 676. 599 Chief Commissioner has disapproved the bid offered by the respondent. If the Chief Commissioner had granted sanction under cl. 33 of exhibit D 23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale. As the essential pre requisites of a completed sale are missing in this case there is no liability 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. 50 D of 1960 is correct and this appeal must be dismissed with costs. G.C. Appeal dismissed.

The respondent gave the highest bid at an auction for the sale of license for a country liquor shop in Delhi for the year 1949 50. Under cl. 31 of the conditions of sale for that year, the Chief Commissioner was under no obligation to grant a license until he was assured of the financial status of the bidder. Under el. 33 all final bids were made subject to confirmation by the Chief Commissioner who could reject any bid assigning any reasons. However under cl. 21 of r. 5.34 of the Delhi Liquor License Rules a person to whom a shop had been sold had to pay one sixth of the annual fee within seven days of the auction. The respondent not having paid one sixth of the annual fee as required by the said cl. 21, the Chief Commissioner did not confirm his bid. Resale of the excise shop was ordered. At the new auction it was sold at a lower price. The Collector Delhi thereupon held the respondent liable to pay the difference between his bid and the bid for which the shop was later sold, and commenced proceedings for the recovery of the sum. The respondent filed a suit in the Court of the Senior Subordinate Judge, Delhi praying for a permanent injunction restraining the appellants (Union of India & Ors.) from taking any proceedings for the recovery of the amount. The trial judge decreed the suit. The decree was upheld by the first appellate court. In second appeal the Single Judge decided against the respondent. The Division Bench decided in his favour. The appellants came to this Court with certificate. It was contended on behalf of the appellants that the respondent was under a legal obligation to pay one sixth of the annual fee within seven days of the auction under el. 21 of r. 5.34; it was due to his default that a resale of the excise shop was ordered; and 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. HELD: (i) An acceptance of an offer may be either absolute or conditional. If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place. [H 597] From cl. 33 of the conditions of sale it is clear that the contract of sale is not complete till it is confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. If the bid is so withdrawn before the confirmslion of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on resale. [G H 597] Hussers vs Horne Payne, , 676, referred to. 595 (ii) The phrase "person to whom a shop has been sold" in el. 21 r. 5.34 cannot be accepted to mean a "person whose bid has bern provisionally accepted". The first part of el.; 21 deals with a completed sale and the second part with a situation where the auction is conducted 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 licence either by public auction or by private contract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder. [F G 598] In the present case the first part of d. 21 was applicable. If the Chief Commissioner had not disapproved the bid offered by the respondent under el. 33 of the conditions of sale, the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale. As the essential prerequisites of a completed sale were lacking in this case there was no liability imposed on the respondent for payment of the deficiency in the price. [598 H; 599 A B]

Civil Appeal No. 1969 of 1986 From the Judgment and order dated 26.9.1984 of the Delhi High Court in Civil Writ Petition No. 2329 of 1984. Govinda Mukhoty, K.G. Bhagat and Mahabir Singh for the Appellant. G.B. Pai, O.C. Mathur, Miss Meera Mathur, D.N. Mishra and section Sukumaran for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. A CAT scan of this appeal reveals three problems, viz: I. Whether a rule or regulation framed by a public sector undertaking which is an authority under the control of Government of India and is a 'State ' within the parameters 927 of Article 12 of the Constitution of India empowering the employer to terminate the services of an employee by giving notice of the prescribed period or payment of salary for the notice period in lieu of such notice is constitutional? II. If it is unconstitutional, whether the employee whose services are terminated under the said rule or regulation is always and invariably entitled to reinstatement? Whether option to pay compensation in lieu of reinstatement can be given to the employer in fit cases? III. What would be the appropriate amount to be reason ably awarded in lieu of reinstatement? These are the questions which call for answers in this appeal. ' Undisputed are the following facts, the same being incapable of being disputed: (1) The respondent Corporation (I.T.D.C.) is 'State ' within the parameters of Article 12 of the Constitution of India it being an instrumentality of the State as per the law enunciated by this Court in Central Inland Water Transport Corporation Limited & Anr. vs Brojo Nath Ganguly and Anr. and Central Inland Water Transport Corporation Limited & Anr. vs Taran Kanti Sengupta & Anr., (2) Appellant was an employee of the Respondent Corporation holding the post of Manager of Hotel Ranjit, New Delhi, at the material time when his services were terminated by the impugned order.2 (3) Services of the Appellant were terminated in exercise of powers under Rule 31 (v) of the ITDC Conduct Discipline and Appeal Rules 1978, (ITDC rules) by 1.By Special Leave arising out of W.P. No. 2329 of 1984 dismissed by the High Court of Delhi summarily by its order dated 26.9.1984. Annexure P 10, Memorandum No. P B(OP) 22 dated 18th September. 928 giving pay for 3 months in lieu of 3 months ' notice,3 under the said rule. Rule 31 (v) of the I.T.D.C. Rules, the constitutional validity of which is questioned from the platform of Articles 14 and 16 (1) of the Constitution of India, provides: "31. Termination of services: The services of an employee may be terminated by giving such notice or notice pay as may be prescribed in the contract of service in the following manner: i) X X X X ii) X X X X iii) X X X X iv) X X X X v) of an employee who has completed his probationary period and who has been confirmed or deemed to be confirmed by giving him 90 days ' notice or pay in lieu thereof. " This rule cannot co exist with Articles 14 and 16 (1) of the Constitution of India. The said rule must therefore die, so that the fundamental rights guaranteed by the aforesaid constitutional provisions remain alive. For, otherwise, the guarantee enshrined in articles 14 and 16 of the constitution can be set at naught simply by framing a rule authorizing termination of an employee by merely giving a notice. In order to uphold the validity of the rule in question it will have to be held that the tenure of service of a citizen who takes up employment with the 3. Memorandum No. P B (OP) 22 dated 18th September, 1984. "Please be advised that your services are no longer required hence stand terminated with immediate effect. In accordance with rule No. 31(v) of ITDC Conduct, Discipline and Appeal Rule 1978, you are hereby paid three months pay in lieu of notice and a cheque No. 089988 dated 18.9.84 drawn on State Bank of India, New Delhi, representing a sum of Rs.7,950 (Rupees Seven Thousand Nine Hundred and Fifty only) is enclosed. " 929 State will depend on the pleasure or whim of the competent authority unguided by any principle or policy. And that the services of an employee can be terminated even though there is no rational ground for doing so, even arbitrarily or capriciously. To uphold this right is to accord a "magna carta" to the authorities invested with these powers to practise uncontrolled discrimination at their pleasure and caprice on considerations not necessarily based on the welfare of the organisation but possibly based on personal likes and dislikes, personal preferences and prejudices. An employee may be retained solely on the ground that he is a sycophant and indulges in flattery, whereas the services of one who is meritorious (but who is wanting in the art of sycophancy and temperamentally incapable of indulging in flattery) may be terminated. The power may be exercised even on the unarticulated ground that the former belongs to the same religious faith or is the disciple of the same religious teacher or holds opinions congenial to him. The power may be exercised depending on whether or not the concerned employee belongs to the same region, or to the same caste as that of the authority exercising the power, of course without saying so. Such power may be exercised even in order to make way for another employee who is a favourite of the concerned authority. Provincialism, casteism, nepotism, religious fanatism, and several other obnoxious factors may in that case freely operate on the mind of the competent authority in deciding whom to retain and whom to get rid of. And these dangers are not imaginary ones. They are very much real in organisations where there is a confluence of employees streaming in from different states. Such a rule is capable of robbing an employee of his dignity, and making him a supine person whose destiny is at the mercy of the concerned authority (whom he must humour) notwithstanding the constitutional guarantee enshrined in Articles 14 and 16 of the Constitution of India. To hold otherwise is to hold that the fundamental right embedded in Articles 14 and 16 (1) is a mere paper tiger and that it is so ethereal that it can be nullified or eschewed by a simple device of framing a rule which authorizes termination of the service of an employee by merely giving a notice of termination. Under the circumstances the rule in question must be held to be unconstitutional and void. This Court has struck down similar rules in similar situations. In State Electricity Board vs D.B. Ghosh, [1985] 2 S.C.R. 1014, Chinnappa Reddy J. speaking for a three Judge Bench of this Court has observed. that a (similar) regulation,4 authorizing the 4. Regulation 34 of Regulations framed by West Bengal State Electricity Board reading the 930 termination of the services of a permanent employee, by serving three months ' notice or on payment of salary for the corresponding period in lieu thereof, was ex facie 'totally arbitrary ' and 'capable of vicious discrimination '. And that it was a naked 'hire and fire ' rule and parallel of which was to be found only in the "Henary VIII clause" which deserved to be banised altogether from employer employee relationship. The regulation thus offended Article 14 of the Constitution of India and deserved to be struck down on that account. In Central Inland Water Transport Corporation Limited and Anr. vs Brojo Nath Ganguly and Another AND Central Inland Water Transport Corporation Limited & Anr. vs Tarun Kanti Sengupta and Anr. (Supra) a Division Bench of this Court has struck down a similar rule5 in so far as it authorized termination of employment by serving a notice thereunder as being violative of article 14 of the Constitution of India, inter alia, in as much as it was capable of being selectively applied in a vicious manner by recourse to 'pick and choose ' formula. There is, under the circumstances, no escape from the conclusion that Rule 31(v) of the aforesaid ITDC rules which provides for termination of the services of the employees of the respondent corporation simply by giving 90 days ' notice or by payment of salary for the notice period in lieu of such notice, deserves to be quashed. As the occasion so demands, we feel constrained to place in focus and highlight an important dimension of the matter. The impugned regulation is extremely wide in its coverage in the sense that it embraces the 'blue collar ' workmen, the 'white collar ' employees, as also the 'gold collar ' (managerial cadre) employees of the Undertaking. In so far as the 'blue collar ' and 'white collar ' employees are concerned, the quashing does not pose any problem. In so far as the 'gold collar ' (managerial cadre) employees are concerned, the consequence of quashing of the "34. In case of a permanent employees, his services may be terminated by serving three months ' notice or on payment of salary for the corresponding period in lieu thereof. Rule 9 (i) of (Service, Discipline and Appeal) Rules of 1979 of Central Inland Water Transport Corporation Ltd. reading: "9. Termination of employment for Acts other than misdemeanour. (i) The employment of a permanent employee shall be subject to termination on three months ' notice on either side. The notice shall be in writing on either side. The company may pay the equivalent of three months ' basic pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice. " 931 regulation calls for some reflection. In the private sector, the managerial cadre of employees is altogether excluded from the purview of the Industrial Disputes Act and similar labour legislations. The private sector can cut the dead wood and can get rid of a managerial cadre employee in case he is considered to be wanting in performance or in integrity. Not so the public sector under a rule similar to the impugned rule. Public sector undertakings may under the circumstances be exposed to irreversible damage at the hands of a 'gold collar ' employee (belonging to a high managerial cadre) on account of the faulty policy decisions or on account of lack of efficiency or probity of such an employee. The very existence of the undertaking may be endangered beyond recall. Neither the capitalist world nor the communist world (where an employee has to face a death sentence if a charge of corruption is established) feels handicapped or helpless and countenances such a situation. Not being able to perform as per expectation or failure to rise to the expectations or failure to measure up to the demands of the office is not misconduct. Such an employee cannot thus be replaced at all. If this situation were to be tolerated by an undertaking merely because it belongs to the public sector, it would be most unfortunate not only for the undertaking but also for the Nation. The public sector is perched on the commanding heights of the National Economy. Failure of the public sector might well wreck the National Economy. On the other hand the success of the public sector means prosperity for the collective community (and not for an individual Industrial House). The profits it makes in one unit can enable it to run a losing unit, as also to develop or expand the existing units, and start new units, so as to the generate more employment and produce more goods and services for the community. The public sector need not therefore be encumbered with unnecessary shackles or made lame. It is wondered whether such a situation can be remedied by enacting a regulation permitting the termination of the employment of employee belonging to higher managerial cadre, if the undertaking has reason to believe, that his performance is unsatisfactory or inadequate, or there is a bonafide suspicion about his integrity, these being factors which cannot be called into aid to subject him to a disciplinary proceeding. If termination is made, under such a rule or regulation, perhaps it may not attract the vice of arbitrariness or discrimination condemned by Articles 14 and 16(1) of the Constitution of India, inasmuch as the factor operating in the case of such an employee will place him in a class by himself and the classification would have sufficient nexus with the object sought to be achieved. Of course it is for the concerned authorities to tackle the sensitive problem after due deliberation. We need say no more. 932 Time is now ripe to turn to the next question as to whether it is obligatory to direct reinstatement when the concerned regulation is found to be void. In the sphere of employer employee relations in Public Sector Undertakings, to which Article 12 of the Constitution of India is attracted, it cannot be posited that reinstatement must invariably follow as a consequence of holding that an order of termination of service of an employee is void. No doubt in regard to 'blue collar ' workmen and 'white collar ' employees other than those belonging to the managerial or similar high level cadre, reinstatement would be a rule, and compensation in lieu thereof a rare exception. In so far as the high level managerial cadre is concerned, the matter deserves to be viewed from an altogether different perspective a larger perspective which must take into account the demands of National Interest and the resultant compulsion to ensure the success of the public sector in its competitive co existence with the private sector. The public sector can never fulfil its life aim or successfully vie with the private sector if it is not managed by capable and efficient personnel with unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of the 'policy makers ' of such undertakings. Then and then only can the public sector undertaking achieve the goals of 1. maximum production for the benefit of the community, 2. social justice for workers, consumers and the people, and 3. reasonable return on the public funds invested in the undertaking. It is in public interest that such undertakings or their Board of Directors are not compelled and obliged to entrust their managements to personnel in whom, on reasonable grounds, they have no trust or faith and with whom they are in a bonafide manner unable to function harmoniously as a team working arm in arm with success in the aforesaid three dimensional sense as their common goal. These factors have to be taken into account by the Court at the time of passing the consequential order, for the Court has full discretion in the matter of granting relief, and the Court can sculpture the relief to suit the needs of the matter at hand. The Court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the Court. So far as the facts of this case are concerned, we are satisfied that 933 this is a fit case for granting compensation in lieu of reinstatement, instead of granting 'reinstatement '. For, it cannot be said that the apprehension voiced by the respondent Corporation as regards the negative consequences of reinstatement is unreasonable. We do not propose to pronounce on the validity or otherwise of the allegations and counter allegations made by the parties in their respective affidavits. Suffice it to say that the relations between the parties appear to have been strained beyond the point of no return. The Trade Union of the employees has lodged a strong protest and even held out a threat of strike, in the context of some acts of the Appellant. Such unrest among the workmen is likely to have a prejudicial effect on the working of the undertaking which would prima facie be detrimental to the larger National interest, not to speak of detriment to the interest of concerned undertaking. We are not impressed by the submission that the Union is virtually a 'company 's Union. In any case such disputed questions of facts cannot be resolved in this forum. We are prima facie satisfied that the apprehension is not ill founded. What is more, reinstatement is perhaps not even in the interest of the appellant as he cannot give his best in the less than cordial atmosphere and it will also result in misery to him, let alone the other side. Neither the undertaking nor the appellant can improve their image or performance, or, achieve success. In fact it appears to us that both sides will be unhappy and miserable. These are valid reasons for concluding that compensation in lieu of reinstatement, and not reinstatement, is warranted in the circumstances of the present case. Counsel for the appellant having forcefully pressed the claim for reinstatement, has contended that in case the Court is disinclined to order reinstatement, the appellant ought to be awarded the full salary and allowances which would have accrued to him till the date of his superannuation which is more than 8 years away. We think it would be unreasonable to award 8 years ' salary and allowances, as lump sum compensation in lieu of reinstatement. We consider it unreasonable because: (i) To do so would tantamount to paying to the appellant EVERY MONTH 20% OVER AND ABOVE what he would have earned if he was continued in service WITHOUT DOING ANY WORK as the lump sum payment of 8 years ' salary invested at 15% interest (it being the current rate of interest) would yield a monthly recurring amount equivalent to his current monthly salary 'plus ' 20%; 934 (ii) To do so would be tantamount to paying to him his present salary etc. plus 20% more every month not only till his date of retirement but till his death (if he lives longer) and also to his heirs thereafter, IN PERPETUITY. (iii) Besides, the corpus of the lumpsum amount so paid as compensation would remain with him in tact. Obvious it is, therefore, that the Court would be conferring a 'bonanza ' on him and not compensating him by accepting this formula. The submission, accordingly, deserves to be repelled unhesitatingly. In our considered opinion, compensation equivalent lo 3.33 years ' salary (including allowances as admissible) on the basis of the last pay and allowances drawn by the appellant would be a reasonable amount to award in lieu of reinstatement taking into account the following factors viz: 1. The corpus if invested at the prevailing rate of interest (15%) will yield 50% of the annual salary and allowances. In other words every year he will get 50% of what he would have earned by way of salary and allowances with four additional advantages: (i) He will be getting this amount without working. (ii) He can work somewhere else and can earn annually whatever he is worth over and above, getting 50% of the salary he would have earned. (iii) If he had been reinstated he would have earned the salary only upto the date of superannuation (upto 55, 58 or 60 as the case may be) unless he died earlier. As against this 50% he would be getting annually he would get not only beyond the date of superannuation, for his & lifetime (if he lives longer), but even his heirs would get it in perpetuity after his demise. (iv) The corpus of lump sum compensation would re main intact, in any event. No doubt he will not have the advantage of further promotion, but 935 then what are his prospects, given the present relationship? Besides, the chances of promotion can be set off against the risk of a departmental disciplinary proceeding. Factors (i), (ii), (iii) and (iv) are of such great significance that compensation on the basis of 50% of his annual salary and allowances is much more to his advantage. We are thus satisfied that compensation in lieu of reinstatement on the aforesaid basis is more than reasonable. therefore. direct that: I The Respondent Corporation shall reinstate the appellant with full back wages (including usual allowances), or, at its option, II The Respondent Corporation shall pay to the appellant: (1) Salary including usual allowances for the period commencing from the date of termination of his service under the impugned order till the date of payment of compensation equivalent to 3.33 years ' salary including usual allowances to him. (2) Provident Fund amount payable to the appellant and retirement benefits computed as on the date of payment as per clause 1 shall be paid to him within 3 months from the said date. III The appellant shall vacate and make over possession of the premises provided to the appellant by the respondent company before the expiry of 3 months from the date of this order or within one month of the day on which payment under clause II is made, whichever is later. IV Respondent shall pay the costs to the Appellant. V Interim order shall stand vacated subject to the direction embodied in Clause III. VI Since the amount is being paid in one lump sum, it is likely that the employer may take recourse to Section 192 of the Income tax Act, 1961 which provides that any person responsible for paying any income chargeable under the head 'Salaries ', shall, at the time of payment, deduct income tax on the amount payable at the average rate of 936 income computed on the basis of the rates in force for the financial year in which the payment is made, on the estimated income of the assessee under this head for that financial year. If, therefore, the employer proceeds to deduct Income tax as provided by Section 192, we would like to make it abundantly clear that the appellant would be entitled to relief under Section 89 of the Income tax Act which provides that where by reason of any portion of asses see 's salary being paid in arrears or in advance by reason of his having received in any one financial year salary for more than 12 months or a payment which under the provisions of clause (3) of Section 17 is a profit in lieu of salary, his income is assessed at a higher rate than that it would otherwise have been assessed, the Income tax officer shall on an application made to him in this behalf grant such relief as may be prescribed. The prescribed relief is set out in Rule 21 A of the Income tax Rules. The appellant is entitled to relief under Section 89 because compensation herein awarded includes salary which has been in arrears as also the compensation in lieu of reinstatement and the relief should be given as provided by Section 89 of the Income tax Act read with Rule 21 A of the Income tax Rules. The appellant is indisputably entitled to the same. If any application is required to be made, the appellant may submit the same to the competent authority and the Corporation shall, through its Tax Consultant, assist the appellant for obtaining the relief. The appeal is allowed. The order of the High Court is set aside. Order in the aforesaid terms is passed. P.S.S. Appeal allowed.

Rule 31(v) of the Indian Tourism Development Corporation (Conduct, Discipline and Appeal) Rules, 1978 provides that the services of an employee, who had completed his probationary period and who has been confirmed or deemed to be confirmed, may be terminated by giving him 90 days ' notice or pay in lieu thereof. The services of the appellant, who was an employee of the respondent Corporation holding the post of Manager of a Hotel at the material time were terminated by Memorandum No. P B(OP) 22 dated 18th September, 1984, in exercise of the powers under the said rule by giving him pay for three months in lieu of notice. Aggrieved by the said order the appellant filed a writ petition in the High Court assailing the constitutional validity of r. 31(v) of the said Rules, which was summarily dismissed. Allowing the appeal by special leave, the Court, ^ HELD: 1. The Indian Tourism Development Corporation is an 924 instrumentality of the State and, therefore, 'State ' within the parameters of Article 12 of the Constitution of India. [927D E] Central Inland Water Transport Corporation Ltd. & Anr. vs Brojo Nath Ganguly & Anr., applied. 2.1 Rule 31(v) of the Indian Tourism Development Corporation (Conduct, Discipline and Appeal) Rules, 1978, is unconstitutional and void, for such a rule which provides for termination of the services of the employees of the respondent Corporation simply by giving ninety days ' notice or by payment of salary for the notice period in lieu of such notice, cannot co exist with Articles 14 and 16(1) of the Constitution of India. The fundamental right embedded in these Articles is not a mere paper tiger nor is it so ethereal that it can be nullified or eschewed by a simple device of framing a rule which authorises termination of the services of an employee by merely giving a notice of termination. [930D E;928F;929F] 2.2 The tenure of service of a citizen who takes up employment with the State cannot be made to depend on the pleasure or whim of the competent authority unguided by any principle or policy, nor his services allowed to be terminated on an irrational ground arbitrarily or capriciously. The authorities cannot be invested with uncontrolled discriminatory power to practise on considerations not necessarily based on the welfare of the organisation but possibly based on personal likes and dislikes, personal preferences and prejudices. Provincialism, casteism, nepotism, religious fanaticism, and several other obnoxious factors may in that case freely operate on the mind of the competent authority in deciding whom to retain and whom to get rid of. And these dangers are not imaginary ones. They are very much real in organisations where there is a confluence of employees streaming in from different States. Such a rule as in the instant case, is capable of robbing an employee of the dignity, and making him a supine person whose destiny is at the mercy of the concerned authority. The impugned rule, therefore, deserves to be quashed. [928H; 929A B; D F] Central Inland Water Transport Corporation Limited & Anr. vs Brojo Nath Ganguly & Anr., ; State Electricity Board vs D. B. Ghosh, [1985] 2 S.C.R. 1014, referred to. 3.1 The Court has full discretion in the matter of granting relief to suit the needs of the matter at hand. If satisfied that ends of justice so demand, the Court can certainly direct that the employer shall have the 925 option not to reinstate, provided the employer pays reasonable compensation as indicated by it. [932G] 3.2 In the sphere of employer employee relations in public sector undertakings, to which Article 12 of the Constitution of India is attracted, it cannot be posited that reinstatement must invariably follow as a consequence of holding that an order of termination of service of an employee is void. Though in regard to workmen and employees, reinstatement would be a rule, and compensation in lieu thereof a rare exception, as regards the high level managerial cadre the matter deserves to be viewed from an altogether different perspective. [932A C] 3.3 The public sector needs to be managed by capable and efficient personal with unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of the policy makers. It is but in public interest that such undertakings or their Board of Directors are not compelled and obliged to entrust their managements to personnel in whom, on reasonable grounds, they have no trust or faith and with whom they are in a bonafide manner unable to function harmoniously as a team. These factors have to be taken into account by the Court at the time of passing the consequential order. [932E G] In the instant case, it cannot be said that the apprehension voiced by the respondent Corporation as regards the negative consequences of reinstatement is unreasonable. The relations between the parties appear to have been strained beyond the point of no return. The Trade Union of the employees has lodged a strong protest and even held out a threat of strike, in the context of some acts of the appellants. Such unrest among the workmen is likely to have a prejudicial effect on the working of the undertaking which would prima facie be detrimental to the larger National Interest. In such a situation neither the undertaking nor the appellant can improve their image or performance. It is, therefore, a fit case for granting compensation in lieu of reinstatement. [933A C] 4. In the private sector the managerial cadre of employees is altogether excluded from the purview of the Industrial Disputes Act and similar labour legislations. It can cut the dead wood and can get rid of a managerial cadre employee in case he is considered to be wanting in performance or in integrity. Not so in the public sector under a rule similar to r. 31(v). Public sector undertakings may under the circumstances be exposed to irreversible damage at the hands of an employee belonging to a high managerial cadre on account of the faulty policy 926 decisions or on account of lack of efficiency or probity of such an employee. The very existence of the undertaking may be endangered beyond recall. Such a situation can be remedied by enacting a regulation permitting the termination of the employment of employee belonging to higher managerial cadre, if the undertaking has reason to believe that his performance is unsatisfactory or inadequate, or there is a bonafide suspicion about his integrity, these being factors which cannot be called into aid to subject him to a disciplinary proceeding. If termination is made under such a rule or regulation, perhaps it may not attract the vice of arbitrariness or discrimination condemned by Articles 14 and 16(1) of the Constitution of India, inasmuch as the factors operating in the case of such an employee will place him in a class by himself and the classification would have sufficient nexus with the object sought to be achieved. [931A H] [Taking into account various factors, compensation equivalent to 3.33 years ' salary (including allowances as admissible) on the basis of the last pay and allowances drawn by the appellant was determined to be a reasonable amount to award in lieu of reinstatement, with statutory relief under section 89 of the Income tax Act, 1961 read with r. 21 A of the Income tax Rules, 1961.] [934C D; 936D E]

ivil Appeal Nos. 281 285 of 1970. From the Judgment and Order dated 25/28 4 1969 of the Gujarat High Court in SCA Nos. 1520, 850, 1079, and 1117 of 1967 and 201 of 1968. section T. Desai, P. H. Parekh, C. B. Singh and M. N. Shroff for the Appellants. Mrs. E. Udayarathnam for respondent No. 1 in CA 284/70. The Judgment of the Court was delivered by VENKATARAMIAH, J. These five appeals by certificate are preferred by the State of Gujarat against the common judgment dated April 25/28, 1969 delivered in five petitions under Article 226 of the Constitution on the file of the High Court of Gujarat in which the constitutional validity of the Resolution of the Government of Gujarat bearing No. L.B.B. 3964/101585 C dated December 28, 1966 issuing directions regarding the procedure to be followed in the disposal of 'bhatha lands ' with effect from January 1, 1967 inter alia providing for showing preference to Harijans, adivasis, backward class persons and co operative farming societies consisting of landless labourers or small holders in the matter of cultivation rights over bhatha land was challenged. The expression 'bhatha land ' means land which forms part of the bed of a river on which vegetables, melon, cucumber etc. can be grown during the lean period after the rainy season is over when the level of the water in the river is quite low. The cultivation of this land is possible only till the next rainy season and when the river swells during the rainy season, the said land again gets submerged under the river water. The occupancy rights over such land 1186 cannot ordinarily be granted on a permanent basis as in the case of other cultivable lands in view of the land getting submerged under river water every year for 4 5 months. The lands in question are situated in the Bombay area of the State of Gujarat. Till the year 1951, the cultivation rights over bhatha lands in the area in question were being disposed of by public auction and the successful bidders were being treated as lessees of the lands for short periods. In the year 1951, the State Government ordered that the leasehold rights over bhatha lands should be disposed of by selection in the following order of priority: 1. Bona fide agriculturists who had cultivated the land personally for five years or more. Adjacent land holders who, in the Collector 's opinion, had insufficient land for maintenance of their families. Co operative farming societies and 4. Priority holders under the Waste Land Rules. The above order was cancelled and superseded by the Government Resolution dated September 19, 1962 which provided that on the expiry of the then existing leases, not held by co operative farming societies, bhatha lands should be disposed of on the basis of five years ' lease by public auction. Experience showed that only the moneyed people were able to purchase the lease hold rights at the public auction and persons belonging to Scheduled Castes, Scheduled Tribes and other weaker sections of society were not even able to participate in such auctions. In the year 1964 however, lease hold rights over bhatha lands were disposed of on eksal basis by public auction. The question relating to the procedure to be followed in the disposal of the lease hold rights over bhatha lands was discussed at the meeting of the Collectors held in 1965 66 and after taking into consideration all relevant matters and the suggestions made at the above said meeting, the State Government passed the following Resolution in supersession of all existing orders: "Government of Gujarat Revenue Department No. L.B.B. 3964/101585 C Sachivalaya, Ahmedabad 15 Date: 28 12 1966 RESOLUTION OF GOVERNMENT In cancellation of all existing orders in regard to disposal of Bet and Bhatha land by auction, Government is pleased to direct that 1187 existing procedure of disposal of Bhatha land by auction should be discontinued from 1st January, 1967 and such land should be disposed of according to instructions detailed below: 1. The existing lease held by co operative society should be renewed on their expiry only to the members of co operative society. Individually held land less than 16 acres excluding the bet bhatha land and the total holding of the number including the land to be granted is not more than the member or members 16 acres. If condition (1) is fulfilled the lease in favour of the co operative societies should be renewed for a further period of 10 years on payment of revised rent which should be fixed on the basis of the factors enumerated hereinafter instruction number (6) below. As regards Bhatha lands which have been leased in favour of individuals such lease should not be renewed but on the expiry of such lease the lands should be disposed of to priority holders as enumerated in instruction No. 5 on payment of rent to be determined on the basis of factors enumerated in instruction No. 6. There will be no objection to renew the lease in favour of such individual if he is otherwise eligible as per principles fixed in this G.R. 4. As regards new Bet Bhatha lands which are to be disposed of for the first time they should also be granted to priority holders as mentioned in instruction No. 5, on the basis of rent charged for similar lands which have been disposed of as per instructions contained in the G.R. or which have been disposed of in the past by auction. The priority for disposal of Bet Bhatha land should be as under: 1. Bona fide agriculturists of the village who are holding land less than 5 acres. Preference in this case will be given to Harijan adivasi and backward class people. Holders of the land adjoining the Bet Bhatha land holding land less than 16 acres and who in the opinion of Collector have a genuine need of additional lands for maintenance of their families. Inter se preference in this case also will be as per (1) above. Co operative farming societies of Harijans, adivasi and backward class persons. 1188 4. Co operative farming societies consisting of landless labourers or small holders. Any of the priority holders under the waste land rules. The individuals as well as co operatives of the village in which the Bet Bhatha lands are situated will have their first priority while the individuals and co operative societies of neighbouring villages within a radius of 5 miles shall be given priority in the order of nearness from village where the Bet Bhatha Lands are situated. If there are claims of two equal priority holders for the same land the disposal will be by lots. " Thereafter twenty two members belonging to Waghari Harijan community were granted lease hold rights in respect of a bhatha land for a period of ten years pursuant to the above Government Resolution by the Collector of Ahmedabad on July 18, 1967. The relevant part of the aforesaid order of the Collector dated July 18, 1967 reads as follows: No. C.B.A.R.E.V. 165 District Collector 's Office Ahmedabad 18 7 67 . . . ORDER It is hereby ordered that under mentioned twenty two members of Waghari Harijan Ganotia Samuha Kheti Mandali (unlimited) Santhal, have been granted lands for cultivation, out of the Government BHATHA LANDS, for the period of ten years each member not to have more than four acres of land, on the conditions hereinafter mentioned. . . Names of members of the Waghari Harijan Ganotia Samuha Kheti Mandali (unlimited) . . . TERMS 1. These lands are granted on the condition that Waghari Harijan Ganotia Samuha Kheti Mandali (unlimited) must get itself registered within one year. Either the individual or a co operative society shall not be granted BET BHATHA LANDS at more than one place. 1189 3. Within the period of fifteen days from the date of the harvest of the crop from BET BHATHA lands shall be paid up. Rules regarding suspension or remission of land revenue shall not be applicable to the realization of this rent. The land shall be cultivated personally by the grantee, unless under exceptional circumstances. The decision of the Collector regarding the existence of such exceptional circumstances shall be final on this condition. Lease shall be terminated, without granting any compensation. Rent shall be fixed and payable according to sections 6 and 7 of Government Resolution Revenue Department No. L.B.B. 3964 101585 G dated 28 12 1966. All conditions mentioned in PATTA shall be complied with. 7. The Collector shall be authorised to revoke the lease deed before the expiration of the period of the lease. Unless lease deeds are executed, the occupation of the land shall be treated as unauthorised one. Besides conditions mentioned above, all conditions mentioned in Government Resolution Revenue Department No. L.B.B. 3964 101585 G dated 28 12 1966 shall be applicable to this grant. This grant shall be valid for the period of ten years from the year 1967 68. This grant expires on 31 5 1977. Lease deed to be executed and kept in record. Sd/ Niranjan Singh, Collector, Ahmedabad." Aggrieved by the above grant, the petitioners in Special Civil Application No. 1079 of 1967 which was one of the writ petitions out of which these appeals arise questioned the validity of the Government Resolution dated December 28, 1966 and the order of the Collector granting the lease dated July 18, 1967 in favour of the said twenty two persons. In the other four petitions also, the said Resolution and certain grants made by the Collector were questioned. The petitioners in all the petitions alleged that some of them were in possession of portions of the lands which had been disposed of by the order of the Collector by virtue of the eksal tenures created in their favour under auctions held in or about the year 1964 and they could not be dispossessed without following the procedure prescribed by 1190 section 79 A read with section 202 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code '). One of them alleged that he was a permanent tenant of a portion of the land. They contended that the Government Resolution dated December 28, 1966 and the grants made by the Collector on the basis of the said Resolution were liable to be struck down on the ground that they were violative of Article 14 of the Constitution. Their main grievance was that they had been arbitrarily deprived of an opportunity to offer bids at public auctions and to acquire lease hold rights. They prayed for the issue of a writ in the nature of mandamus directing the State Government and the Revenue authorities not to dispossess them on the basis of the impugned Resolution of the Government and the orders of the Collector. The State Government and the other respondents in the writ petitions resisted the petitions. After hearing the parties, the High Court quashed the Government Resolution and the grants made by the Collector holding that they were ultra vires the scheme of the Code and were also violative of Article 14 of the Constitution. The State Government was directed not to take into consideration the Government circular issued pursuant to the impugned Resolution while considering the question of renewal of leases or disposal of bhatha lands in question and not to dispossess the writ petitioners except in due course of law. The State Government has questioned the order made by the High Court in these appeals. Before going into the question relating to the validity of the impugned Resolution and the grants made by the Collector, it is necessary to deal with the question whether any of the writ petitioners were in possession of the lands in question. The allegation made by them in this regard was denied by the State Government. In the course of the counter affidavits filed before the High Court, it was pleaded on behalf of the State Government that none of the writ petitioners was in possession of any portion of the lands in question on the date of the petition that some of them who continued to remain in possession of certain portions of the land after the expiry of the eksal leases were dispossessed in accordance with law and that the land had been handed over to the grantees as per kabza receipts. Dealing with the question of possession, the High Court observed in the course of its order as follows: "The petitioners claim in these petitions that they were cultivating these lands as tenants, except the petitioner in Sp. C.A. No. 1079/1967 who claims to be a permanent tenant. The case of the petitioners was that at the relevant time they had been given Eksali (of one year) leases on the 1191 expiry of which their right of renewal was completely taken away by the aforesaid circular. The circular had completely fettered the discretion of the competent authorities under the Bombay Land Revenue Code, 1879, hereinafter referred to as 'the Code ' and had created an absolute rule excluding the petitioners so much so that they could not even now give a bid at any public auction for these lands. Even though in Sp. C.A. No. 1079/67 the case of the petitioner was of a lease in perpetuity the State had controverted this allegation and no such grant was produced. The case of the State was that the petitioner was in illegal possession after the Eksali lease in 1964. Therefore, even that case also stands on the same footing. In view of the said disputed questions of facts which cannot be resolved by us, the petitioner, therefore, challenged the impugned circular on the grounds (1) that it is ultra vires the Code, especially as it creates an absolute rule excluding the petitioners who would have been entitled under the provisions of the Land Revenue Code to get these leases by bidding at the public auction as per the relevant rules. The impugned order in this connection violates the policy of the Code which is to augment the Government revenue and which does not contain any policy of excluding any person from the disposal of these unalienated Government lands, (2) the petitioners, further challenge the impugned order on the ground that it is discriminatory and violates Article 14 and the inequality is writ large on the face of the entire order especially the so called reservations in favour of Harijans, adivasis and backward class people are so excessive that all the 100 per cent lands would get reserved for them under this policy of priority and the petitioners would be completely excluded. " There is no reference to the question of possession of the land by the respondents in any other part of the judgment of the High Court. From the portion of the judgment extracted above, it is seen that the High Court did not record any firm finding on the question of possession of any part of the land by any of the writ petitioners. It, therefore, follows that the direction issued by the High Court to the State Government and the Revenue authorities not to dispossess the writ petitioners except in due course of law becomes unsustainable. What remains to be considered in these appeals is whether the impugned Resolution and the orders of the Collector are valid or not. 1192 There is no dispute that the writ petitioners were not eligible under the impugned Resolution for any grant being made in preference to the grantees in these cases and if the impugned Resolution is valid, the grants made by the Collector become unassailable. It is on account of the above position the writ petitioner challenged the validity of the Resolution passed by the Government on December 28, 1966. The High Court quashed the said Resolution on two grounds: (1) that the act of the State Government in passing the Resolution amounted to a fraud on the statute as the power of the State under the Code which was a taxation measure had been utilized for a collateral purpose of achieving a welfare scheme and (2) that the Resolution was violative of Article 14 of the Constitution as there was no rational nexus between the object to be achieved by the Code viz realization of land revenue and the classification of persons eligible for the grant of lease hold rights in respect of bhatha lands into several groups. On the first ground, the High Court observed as follows: "The Code in terms directs the statutory authority, the Collector to make disposal exercising his judicial discretion, of course, subject to the statutory rules or even subject to the orders of the Government which have statutory force. The whole purpose and object of the Land Revenue Code is never to exclude any citizen, and such exclusion by way of an absolute rules leaving no discretion even to the statutory authority would be completely beyond the scope of a regulatory measure. This would be prescribing the end and not prescribing means to an end. The end has been laid down by the Legislature in this case and it is one of augmenting the land revenue, and for the purpose of revenue administration under this Code, if any disposal is made, the disposal would be ordinarily to augment land revenue. It may be that in exceptional cases, the authority may give remission as in famine years or on other grounds which are specified under the scheme of the Code or the Rules. The end which is envisaged to be achieved by the Code is one of getting revenue augmented which is the obvious end of any taxation measure. The end which the impugned regulation seeks to achieve is totally a different end. " From a reading of the above observations of the High Court, it becomes obvious that the High Court felt that the Resolution which had been passed with a view to showing preference to members belonging to Scheduled Castes, Scheduled Tribes and backward classes, landless persons who belonged to the weaker sections of 1193 society and members of co operative farming societies did not subserve the object of the Code i.e. realization of maximum revenue. The High Court also felt that there was no scope for the passing of any order or resolution in the nature of a welfare measure while administering the provisions of the code. In order to examine the correctness of the above view of the High Court, it is necessary to refer to some of the relevant provisions of the Code. The Preamble of the Code provides that it had been passed as it was found expedient to consolidate and amend the law relating to Revenue officers and to the assessment and recovery of Land Revenue and to other matters connected with the Land Revenue Administration. Chapters II and III of the Code deal with constitution powers officers provision relating to the security to be furnished by certain Revenue officers and the liability of principals and sureties. Chapter V of the Code is entitled 'Of Lands and Land Revenue ' and contains sections 37 to 59. Section 37 of the Code declares that 'all public roads, loans and paths, the bridges, ditches, dikes, and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below high watermark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and water courses, and all standing and flowing water, and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any right of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of the Government and it shall be lawful for the Collector subject to the order of the State Government, to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by the Government concerned, subject always to the rights of way, and all other rights of the public or of individual legally subsisting. ' The aforesaid section 37 of the Code vests the rights in all properties referred to therein the State Government and provides that it is lawful for the Collector subject to the orders of the State Government to dispose of them in such manner as he may deem fit or as may be authorised by the general rules sanctioned by the Government. The State Government is thus constituted the proprietor of the several items referred to therein. While the Collector has been given the power of disposal of the land belonging to the Government, he can do so only in accordance with the other provisions of the Code and the Rules made thereunder and subject to any order or resolution passed by the State Government. The power of the State Government to make orders under section 37(1) of the Code is not in the 1194 nature of appellate or revisional powers which are dealt with separately under sections 203 and 211 of the Code but is in the nature of an administrative power enabling the State Government to regulate the power of the Collector. Section 38 of the Code authorises the survey officers whilst survey operations are proceeding under Chapter VIII of the Code and at any other time the Collector to set apart lands which belonged to the State Government and not in the lawful occupation of any person or aggregate of persons, in unalienated villages or unalienated portions of villages, for free pasturage for the village cattle, for forest reserves, or for any other public or municipal purpose; and lands assigned specially for any such purpose shall not be otherwise used without the sanction of the Collector. Section 39 of the Code restricts the right of grazzing on free pasturage lands to the cattle of the village or villages to which such lands belong or have been assigned. Section 44 of the Code recognizes the existence of certain privileges of villagers or of certain classes of persons to cut fire wood or timber for domestic or other purposes even in the case of villages or lands in which the rights of the Government to the trees have been reserved under section 40 of the Code. Section 48 of the Code sets out the manner of assessment and alteration of assessment of any land. It provides that the land revenue leviable on any land shall be assessed with reference to the use of the land (a) for the purpose of agriculture, (b) for the purpose of building and (c) for a purpose other than agriculture or building. Sub section (3) of section 48 of the Code empowers the Collector or a survey officer, subject to any rules made in this behalf, to prohibit the use for certain purposes of any land liable to the payment of land revenue and to summarily evict any holder who uses or attempts to use the same for any such prohibited purpose. Chapter VIII lays down the procedure to be followed in the course of survey and settlement proceedings thus ensuring that there is an equitable classification of lands for purposes of levy of just assessment in the light of the relevant economic factors. The principles underlying the said procedure prohibit the levy of oppressive or excessive revenue. There is no scope for levy of extortionate revenue which may be termed as rackrent. Chapter VI of the Code deals with the provisions relating to the grant, use and relinquishment of land. Section 62 of the Code which lays down the conditions subject to which unoccupied land may be granted provides that the Collector may, subject to such rules as may from time to time be made by the State Government, require the payment of a price for unalienated land or to sell the same by auction or to annex such conditions as he may deem fit. Rule 37 of the 1195 Bombay Land Revenue Rules, 1921 (hereinafter referred to as 'the Rules ') which are promulgated by the State Government in exercise of its powers under sections 213 and 214 of the Code provides that any unoccupied survey number not assigned for any special purpose may, at the Collector 's discretion, be granted for agricultural purposes to such person as the Collector 's deems fit, either upon payment of a price fixed by the Collector, or without charge, or may be put up to public auction. When land is granted under section 62 read with Rule 37, the grantee acquires a heritable and transferable occupancy right over the land granted, subject to the lawful conditions imposed under the grant. The proviso to section 68 of the Code, however, provides that notwithstanding any provision in the Code, it shall not be unlawful for the Collector at any time to grant permission to any person to occupy any unalienated unoccupied land for such period and on such conditions as he may, subject to rules made by the State Government in that behalf prescribe and in any such case the occupancy shall be held only for the period and subject to the conditions so prescribed. Rule 32 of the Rules provides that land may be given free of price and free of revenue, whether in perpetuity or for a term, for any of the purposes specified in column 1 referred to in the table given below that rule viz. for sites for the construction at the cost of a municipality, a panchayat or other local bodies of schools or colleges etc., for sites used or to be used in connection with any scheme under the Community Development Programme, for sites used or to be used as market yards under the management of market committees established under the Gujarat Agricultural Produce Markets Act, 1963 etc. Rule 35 of the Rules empowers the Collector to exempt from payment of land revenue without any limit lands used for sites of hospitals, dispensaries, schools etc. Under Rule 41 of the Rules, land situated in the bed of a river and not included in a survey number can, save as otherwise provided in sections 46 and 64, ordinarily be leased annually by auction to the highest bidder for the term of one year or such further period as the Collector may think fit and the accepted bid should be deemed to be the land revenue chargeable on such land. The language of this rule also enables the State Government to dispose of such lands in any other equitable way. This Rule, however, does not apply to a land which is situated in the bed of a river and which is included in a survey number. Rule 42 of the Rules empowers the Collector to dispose of unoccupied land required or suitable for building sites or other non agricultural purpose either by public auction or in his discretion by private arrangement either upon payment of a price fixed by him, or without charge, as he deems fit. 1196 These and the other provisions of the Code and the Rules made thereunder show that it is open to the Collector to dispose of unoccupied lands belonging to the Government either for cultivation or for any other purpose in favour of individuals or aggregate of individuals either free of charge or at an upset price to be fixed by him or by public auction. A historical review of the several Government orders passed under the Code shows that lands belonging to Government had been set apart free of charge for several public purposes such as free pasturage, burial grounds, roads, religious institutions, village sites, cattle stands, dhobies ' ghats, potters ' grounds, threshing floors etc. Land revenue was remitted when there were drought conditions. Forfeited holdings were often given back to defaulters who had not paid land revenue once again on payment of arrears out of compassion. Tagavi loans were given by Government to occupants to improve lands. Some of the Government orders relating to grants of lands to private individuals may be stated here by way of illustration. An order passed by the Government of Bombay in the year 1931 authorised grant of lands to kolis and other wild tribes in jungle tracts without payment of any occupancy price. Another order passed in 1924 directed that grants of waste lands to members belonging depressed classes should be liberally made. An order of the year 1925 for grants of lands to co operative societies free of charge. Liberal grants of lands were made to military pensioners at concessional rates. All these orders were passed during the British rule by the State Government in exercise of its powers under the Code. The dominant purpose of the Code, therefore, appears to be public welfare, even though land revenue which was recoverable under the Code constituted an important source of revenue of the State Government. After India became independent, land reforms measures had to be introduced by the States in India to prevent concentration of land in a few hands and to impose ceiling on the extent of land that could be held by an individual or a family, to take possession of land from individuals or families which was in excess of the ceiling so imposed and to distribute such excess land amongst persons belonging to Scheduled Castes, Scheduled Tribes and other weaker sections of society. All these laws were made in order to implement the Directive Principles of State Policy contained in Articles 38, 39 and 46 of the Constitution by strengthening agrarian economy. Never before was there a greater need as during the post Constitution period for administering land revenue laws in an equitable manner so that the economic interests of the weaker sections of the society and in particular of members belonging to the Scheduled Castes and Scheduled Tribes are protected 1197 and promoted. It has to be mentioned here that there is no provision in the Code or the Rules made thereunder which prohibits disposal of occupancy rights or lease hold rights in respect of unoccupied lands in any manner other than public auction. When it is felt that it is necessary to acquire excessive lands in the hands of private individuals for distribution amongst the landless and other deserving persons, it is equally necessary to observe the same rule while distributing the land which belongs to the State Government. In view of the foregoing, we are of the view that the conclusion reached by the High Court that the basic scheme of the Code was the realization of land revenue by disposing of unoccupied lands by public auction alone appears to be baseless. We, therefore, find it difficult to agree that the impugned Resolution which provides for the disposal of bhatha lands amongst bonafide agriculturists, harijans, adivasis and backward class people and other persons mentioned therein without resorting to public auction but by having recourse to the procedure set out in it is contrary to the letter and the spirit of the code. We, therefore, set aside the finding of the High Court on the above question. We shall now proceed to examine the question whether the impugned Resolution is violative of Article 14 of the Constitution. The grievance of the writ petitioners was that they were denied the opportunity to acquire the lease hold rights at the public auction as a consequence of the policy of disposal of bhatha lands contained in the Resolution. The finding of the High Court on the above question appears to have been influenced by its view on the object with which the Code was enacted and this becomes obvious from the following observation of the High Court: "As we have already pointed out, the object sought to be achieved is completely a collateral object and the criteria which are adopted for the alleged classification viz. the membership of the co operative society and the persons being Harijans, Adivasis or backward class people have no rational nexus whatever to the object of augmenting land revenue, which would be the implicit object underlying the entire Code, including this statutory power of disposal of the said lands for the benefit of the public. The Code never contemplated any exclusion of persons when such statutory power was sought to be exercised by the State by any statutory order. Therefore, this statutory order clearly violates Article 14 of the Constitution and even on that ground it must be struck down. " For the purpose of determining the question whether the impugned Resolution is violative of Article 14 of the Constitution or not, it is 1198 necessary to examine whether the classification adopted by the State Government is based upon some intelligible differentia which distinguishes individuals and co operative societies in whose favour grants of lease hold rights in bhatha lands are required to be made by the Collector from others and whether the said classification bears any reasonable relation to the object underlying the Code. The High Court has proceeded on the basis that the classification made by the Resolution does not have any rational relation to the object of the Code which according to it was realization of revenue and nothing more than that. We have explained earlier that the object of the Code is to make provision for an equitable distribution of available land amongst persons who are in need of it. As mentioned earlier, the State Government is under an obligation to ensure that the ownership and the control of material resources of the community are so distributed as best to subserve the common good and the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. In India which is predominantly an agricultural country, land forms the most important means of production. It is well known that unemployment among the masses is on the increase because employment opportunities are not increasing at the same rate at which the population is increasing. Consequently we find in India to day a large number of landless persons and persons with uneconomic holdings in villages who are either unemployed or under employed. It is also equally well known that persons belonging to Scheduled Castes and Scheduled Tribes form the bulk of such landless persons or owners of uneconomic holdings who are in need of special care. It is also the settled policy of the State Governments to encourage co operative movement, which is embarked upon with a view to preventing exploitation of economically weaker sections of society by others. The State Government in the instant case appears to have passed the impugned Resolution in order to grant leases in respect of bhatha lands in favour of landless persons or persons having very small extents of land or persons belonging to Scheduled Castes, Scheduled Tribes and backward classes and members of co operative societies at a reasonable rent without being put to the necessity of offering bids at a public auction where it is well known that only moneyed persons can become successful bidders. The impugned Resolution lays down the procedure to be followed in the disposal of lease hold rights in respect of bhatha lands. It does not relate to all unoccupied lands available in the State of Gujarat. The total extent of bhatha lands available in the State of Gujarat when compared with other available unoccupied lands may be a very small extent. The writ petitioners on whom the burden of proving that the impugned 1199 Resolution is discriminatory have not furnished any information about the extent of Bhatha lands available for disposal. Clauses (1) and (2) of the Resolution provide that the existing leases held by cooperative societies should be renewed on their expiry only in favour of the members of such co operative societies subject to certain conditions for a further period of ten years on payment of revised rent which should be fixed on the basis of the factors referred to therein. Clause (3) of the Resolution provides that leases of bhatha lands granted in favour of individuals should not be renewed on their expiry but they should be disposed of in favour of bonafide agriculturists who belong to the weaker sections of society and co operative farming societies on the basis of priority set out in clause (5) thereof. The rent payable by them should again be determined in accordance with the instructions given in the Resolution. The Resolution is designed to bring about distribution of agricultural lands as best to subserve the common good thus eliminating concentration of wealth and means of production to the common detriment. It helps persons, who are in need of lands for their bare maintenance and who have otherwise no chance of getting them, to acquire lands at a low rate of rent. The classification made in the impugned Resolution of persons or co operative societies who are eligible to secure grants of lease hold rights, according to us, bears a reasonable relation to the object with which the Code is enacted. It cannot be characterised as arbitrary. We do not find that there is any infirmity in the above classification. The Resolution aims at bringing about social and economic justice and assists people who are not strong enough to secure lease hold rights of a public auction for purposes of cultivation. The leases to be granted are not for any unlimited period. At the end of the period prescribed in the leases, it will be open to the Collector to dispose them of afresh. In the above circumstances, we hold that the High Court was in error in holding that the Resolution was violative of Article 14 of the Constitution. For the foregoing reasons, we allow these appeals, set aside the common judgment and order passed by the High Court and dismiss the writ petitions. We feel that in the circumstances of the case, the State Government should pay the costs of respondent No. 1 in Civil Appeal No. 284 of 1970. We order accordingly. The other parties shall bear their own costs. N.V.K. Appeals allowed.

The expression "bhatha land" means land which forms part of the bed of a river on which vegetables, melon, cucumber etc. can be grown during the lean period after the rainy season is over, when the level of the water in the river is quite low. The cultivation of such land is possible only till the next rainy season as the land gets submerged under the river water. The occupancy rights over such land cannot ordinarily be granted on a permanent basis as in the case of cultivable lands, in view of the fact that the land gets submerged under the river water every year for 4 5 months. Till the year 1951 the cultivation rights over 'bhatha lands ' were disposed of by public auction and the successful bidders were treated as lessors of the lands for short periods. In the year, 1951 the State Government ordered that the leasehold rights over 'bhatha lands ' should be disposed of by selection, the order of priority being (1) bona fide agriculturists who had cultivated the land personally for five years or more, (2) adjacent land holders who had insufficient land for maintenance of their families, (3) cooperative farming societies and (4) priority holders under the Waste Land Rules. This order was however cancelled and superseded by the Government Resolution dated September 19, 1962 which provided that on the expiry of the then existing leases, not held by cooperative farming societies, bhatha land should be disposed of on the basis of five years ' lease by public auction. Experience showed that only the moneyed people were able to purchase the leasehold rights at the public auction and persons belonging to Scheduled Castes and Scheduled Tribes and the other weaker sections of society were not even able to participate in such auctions. Consequently, in the year 1964 leasehold rights over bhatha lands were disposed of on ekasal basis by public auctions. The question relating to the disposal of leasehold rights over bhatha lands was discussed at the meeting of the District Collectors held in 1965 1966 and in pursuance to the suggestions made at the meeting and after considering all relevant matters the State Government by a Resolution dated 28th December, 1966, directed that the existing procedure for disposal of bhatha lands by auction be discontinued with effect from January 1, 1967 and the disposal of such lands were ordered to be in the following priority: (1) bona fide agriculturists of the village who were holding land less than 5 acres, preference being given to harijans, adivasi and backward class people (2) holders of the land adjoining the 1183 bhatha land holding less than 16 acres and having genuine need of additional land for maintenance of their families; (3) cooperative farming societies of harijans, adivasi and backward classes people, (4) cooperative farming societies consisting of landless labourers or small holders and (5) any of the priority holders under the Waste Land Rules. In pursuance to the aforesaid Resolution, the Collector by his Order dated July 18, 1967, granted 22 members belonging to Waghari Harijan Community leasehold rights in respect of bhatha lands for a period of 10 years. The respondents questioned the validity of the Government Resolution dated December 28, 1966 and the Order of the Collector dated July 18, 1967 granting the lease, in their writ petitions. They alleged that some of them were in possession of portions of the land of which they had been dispossessed by the Order of the Collector by virtue of the eksal tenures created in their favour in the auctions held in or about the year 1964 and that they could not be dispossessed without following the procedure prescribed by section 79(A) read with section 202 of the Bombay Land Revenue Code, 1879. They also contended that the Government Resolution dated December 28, 1966 and the grants made by the Collector on the basis of the said Resolution were liable to be struck down on the ground that they were violative of Article 14 of the Constitution and that they had been arbitrarily deprived of an opportunity to offer bids at public auctions and to acquire leashold rights. The State Government contested the petitions on the ground that none of the respondents was in possession of the lands in question on the date of the writ petitions and that some of them who continued to remain in possession of certain portions of the land after the expiry of the eksal lease were dispossessed in accordance with law and that the lands have been handed over to the grantees as per the Kabza receipts. The Resolution dated December 28, 1966, was passed in order to grant lease in respect of bhatha lands in favour of the landless persons or persons having small extent of lands or persons belonging to Scheduled Castes, Scheduled Tribes and backward classes and members of cooperative societies at reasonable rent without being put to the necessity of offering bids at public auctions, where only moneyed persons could become successful bidders. The High Court quashed the Resolution on two grounds: (1) That the act of the State Government in passing the Resolution amounted to a fraud on the Statute as the power of the State under the Code which was a taxation measure had been utilized for a collateral purpose of achieving a welfare scheme and (2) that the Resolution was violative of Article 14 of the Constitution as there was no rational nexus between the object to be achieved by the Code viz. realisation of land revenue and the classification of persons eligible for the grant of lease hold rights in respect of bhatha lands into several groups. It further directed the State Government not to take into consideration the Government 's circular issued pursuant to the impugned Resolution while considering the question of renewal of leases or disposal of bhatha lands and not to dispossess the writ petitioners except in due course of law. Allowing the appeals, ^ HELD: 1(i) The Preamble of the Code provides that it had been passed as it was found expedient to consolidate and amend the law relating to Revenue 1184 Officers and to the assessment and recovery of Land Revenue and to other matters connected with Land Revenue Administration. [1193B]. (ii) The other provisions of the Code and the Rules made thereunder show that it is open to the Collector to dispose of unoccupied lands belonging to the Government either for cultivation or for any other purpose in favour of individuals or aggregate of individuals either free of charge or at an upset price to be fixed by him or by public auction. A review of the several Government orders passed under the Code shows that lands belonging to Government had been set apart free of charge for several public purposes such as free pasturage, burial grounds, roads, religious institutions, dhobies ' ghats, potters ' grounds, threshing floors etc. Land revenue was remitted when there were drought conditions. Forfeited holdings were often given back to defaulters who had not paid land revenue once again, on payment of arrears out of compassion. Tagavi loans were given by Government to occupants to improve lands. The dominant purpose of the Code, therefore appears to be public welfare, even though land revenue which was recoverable under the Code constituted an important source of revenue of the State Government. [1196A E] (iii) After India became independent, land reform measures had to be introduced by the States in India to prevent concentration of land in a few hands and to impose ceiling on the extent of land that could be held by an individual or a family, to take possession of land from individuals or families which was in excess of the ceiling so imposed and to distribute such excess land amongst persons belonging to Scheduled Castes, Scheduled Tribes and other weaker sections of society. All these laws were made in order to implement the Directive Principles of State Policy contained in Articles 38, 39 and 46 of the constitution by strengthening agrarian economy. Never before was there a greater need as during the post Constitution period for administering land revenue laws in an equitable manner so that the economic interests of the weaker sections of the society and in particular of members belonging to Scheduled Castes and Scheduled Tribes are protected and promoted. [1196F H] (iv) There is no provision in the Code or the Rules made thereunder which prohibits disposal of occupancy rights or leasehold rights in respect of unoccupied lands in any manner other than public auction. [1197A] (v) The conclusion reached by the High Court that the basic scheme of the Code was the realization of land revenue by disposing of unoccupied lands by public auction alone appears to be baseless. [1197B] (vi) The finding of the High Court that the impugned Resolution which provides for the disposal of bhabha lands amongst bona fide agriculturists, harijans, adivasis and backward class people and other persons mentioned therein without resorting to public auction but by having recourse to the procedure set out in it is contrary to the latter and the spirit of the Code is set aside. [1197C] 2(i) The Resolution is designed to bring about distribution of agricultural lands as best to subserve the common good thus eliminating concentration of wealth and means of production to the common detriment. It helps persons, who are in need of lands for their bare maintenance and who have otherwise no chance of getting them, to acquire lands at a low rate of rent. [1199D] 1185 (ii) The classification made in the impugned Resolution of persons or cooperative societies who are eligible to secure grants of leasehold rights, bears a reasonable relation to the object with which the Code is enacted. It cannot be characterised as arbitrary. There is no infirmity in the above classification. The Resolution aims at bringing about social and economic justice and assists people who are not strong enough to secure leasehold rights at a public auction for purposes of cultivation. The leases to be granted are not for any unlimited period. [1199E] (iii) The High Court was in error in holding that the Resolution was violative of Article 14 of the Constitution. [1199F] 3. The High Court did not record any firm finding on the question of possession of any part of the land by any of the writ petitioners. The direction issued by the High Court to the State Government and the Revenue authorities not to dispossess the writ petitions except in due course of law therefore becomes unsustainable. [1191H]

Writ Petition (Crl.) No. 562 of 1986 (Under Article 32 of the Constitution of India.) Ms. Geetha Ramaseshan and Ms. Seita Vaidilingam for the Petitioner. D.N. Dwivedi, Ashok K. Srivastava and section Suri for the Respondents. 75 The Judgment of the Court was delivered by THAKKAR, J. Not only the option to 'make up ' or 'break up ' but also the right to 'haul up ' the erring husband before a Criminal Court, is claimed by the aggrieved wife irrespective of the fact that the husband of an erring wife does not have a corresponding right. Or else the conscience of the 'EQUALITY ' clause will not be appeased is the plea made by the anguished wife. Accordingly, a constitutional gun has been pointed at the provision which in its effect permits only the husband of the adulteress to prosecute the adulterer but does not permit the wife of the adulterer to do so. True it is, neither of the spouses can prosecute each other. But the aggrieved wife complains that to deny her the right to prosecute her offending husband for the offence of adultery punishable under Section 497 of the Indian Penal Code is to violate the Constitution by discriminating against her on the ground of her sex. The provision which disables the wife from prosecuting the husband for such an offence is embodied in Section 198(1) read with Section 198(2)i of the Code of Criminal Procedure, 1973 which carves out an exception to the general rule that any one can set the criminal law in motion. The constitutional validity of this provision which disables the wife from prosecuting the husband, has been called into question by a wife by way of the present petition under Article 32 of the Constitution of India. Be it realised that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law 1. "198. Prosecution for offence against marriage (1) No Court shall take congnizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that (a) xxxxx (b) xxxxx (2) For the purposes of sub section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code; Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf. " 76 permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband. And that in so far as and to the extent Section 198(2) of the Code of Criminal Procedure operates as a fetter on the wife in prosecuting her adulterer husband, the relevant provisions is unconstitutional on the ground of obnoxious discrimination, she asserts. This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu vs Union of India & Anr., ; in the context of a challenge to the constitutionality of Section 4972 of the Indian Penal Code by an adulterer who had been prosecuted for the offence of adultery under Section 497 of the Indian Penal Code by the husband of the adultress. Three grounds were pressed into service in support of the challenge rooted in Article 14 of the Constitution of India in Sowmithri Vishnu 's case (supra). Ground No. 2 was in the following terms: "Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. This ground of challenge has been dealt with by this Court in para 8 of the said judgment wherein Chandrachud, CJ. spoke thus on behalf of the Court: "In so far as the second of the three grounds is concerned, Section 497 does not envisage the prosecution of the wife by the husband for 'adultery '. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed the section provides, expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow 2. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor. " 77 the wife to prosecute the husband for adultery. The contemplation of the law, evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery as defined in Section 497 is considered by the legislature as an offence against the sanctity of the matrimonial home, and act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought with the net of the law. In a sense, we revert to the same plint. Who can prosecute who for which offence depends firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute. " Thus this very argument has already been repulsed by this Court, albeit, in the context of the challenge to Section 497 of the Indian Penal Code. The same bullet has now been fired in order to assail Section 198(2) of the Criminal Procedure Code in so far as it confines the right to prosecute the adulterer to the aggrieved husband of the adulteress. The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife, in as much as by the very definition of the offence, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social good will be promoted by permitting them to 'make up ' or 'break up ' the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offence in a spirit of 'forgive and forget ' and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the Court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law. Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed 78 by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the 'outsider ' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man ' alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in 'favour ' of the woman rather than 'against ' her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as Section 198( l) read with section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practised in circumscribing the scope of Section 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer. The provision in question is therefore not vulnerable to the charge of hostile discrimination against a woman and cannot be successfully assailed from that platform. The petition must therefore fail and be dismissed.

% The constitutional validity of Section 198 Cr. P.C. has been called into question by a wife by way of the present petition under Article 32 of the Constitution of India. The petitioner wife contended that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband. The petitioner asserted that in so far as and to the extent Section 198(2) of the Code of Criminal Procedure operates as a fetter on the wife in prosecutising her adulterer husband, the relevant provisions is unconstitutional on the ground of abnoxious discrimination, Dismissing the petition, this Court, ^ HELD: 1. Admittedly under the law, the aggrieved husband, whose wife has been disloyal to him, has no right under the law to prosecute his wife, inasmuch as by the very definition of the offence, only a man can commit adultery, not a woman. As between the husband and the wife social good will be promoted by permitting them to 'make up ' or 'break up ' the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offence in a spirit of 'forgive and forget ' and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps the children are saved from the trauma of one of their parents being jailed 74 at the instance of the other parent. [77E G] 2. Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Section 497 of the Indian Penal Code and section 198(1) read with section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the 'outsider ' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man ' alone can be punished and not the erring woman. [77H; 78A B] Sowmithri Vishnu vs Union of India & Anr., ; , referred to. Section 198 Cr. P.C. is not vulnerable to the charge of hostile discrimination against a woman. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in 'favour ' of the woman rather than 'against ' her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as Section 198(1) read with section 198(2) does not permit her to do so. The law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. [78C E]

vil Appeal Nos. 778 and 781 of 1976. From the Judgment and Order dated 30.6. 1975 and 8.8. 1975 of the Kerala High Court in Writ Appeal Nos. 126 and 378 of 1973. V. Gaurishanker, section Rajappa and Ms. A. Subhashmi for the Appellant. G. Vishwanatha Iyer. Mrs. K. Prasanti and N. Sudhakaran for the Respondent. The Judgment of the Court was delivered by SINGH, J. These appeals on certificate issued by the High Court under Article 133 of the Constitution are direct ed against the order and judgment of the High Court of Kerala. Briefly, the facts giving rise to these appeals are: the respondent was a member of the erstwhile Nilambut Kovilagam governed by the Madras Marumakkathyyam Act, she was assessed to Income Tax as Hindu Undivided Family as the family pos sessed considerable property including lands. forests and other properties. The Income Tax Officer assessed the re spondent for the assessment years 1967 68, 1968 69 and 1969 70 treating the members of the family included within the HUF. Before the Income Tax Officer, the respondent raised a plea, that there had been division of Tavazhi under a partition agreement dated 3.7. 1958 whereby all lands except forest lands were divided among the members of the family. The respondent further claimed that the members of the Tavazhi swelled to 14 and these members effected a division in status by a registered document dated 21.2. She further alleged that the division of Tavazhi into 14 shares was effected by a Civil Court decree in partition suit No. O.S. 22/1961 in the Court of Kozhikode. It was pointed out on behalf of the respondent that the partition suit was decreed and the properties were 477 allotted to the respective share holders. The Civil Court had appointed a commissioner to divide the property by metes and bounds in accordance to the shares of individual mem bers. The respondent further claimed that since the status of HUF was disrupted on account of the decree of partition the HUF could not be assessed to income tax, instead the income derived by individual members could be considered for assessment. The Income Tax Officer rejected the respondent 's claim and assessed the respondent as the head of the Tavazhi for the assessment years 1967 68, 1968 69 and 1969 70 by his order dated 16.3. 1970/ 27.3. The Income Tax Officer held that the decree of the Civil Court merely conferred right on the members of the family for separate possession of the land falling to their share after the physical parti tion, and the final partition could be made on application made by _ individual members after depositing Commissioner 's fee. Since the Civil Court decree was a preliminary decree and no final decree had been passed and no actual partition had been effected and no physical partition by metes and bounds had taken place in pursuance of the decree of partition, the status of HUF continued for purposes of assessment. The Income Tax Officer observed that earlier the assessee was assessed having the status of HUF, and since no other evi dence except the decree of the Civil Court had been produced by her to show that there has been a real partition, there fore, the assessee 's claim for partition could not be ac cepted. The respondent filed a writ petition in the High Court under Article 226 of the Constitution for quashing the orders of the Income Tax Officer on the ground that he failed to recognise the disruption of HUF in making the assessment. A learned single of the High Court allowed the writ petition and quashed the assessment orders. On appeal at the instance of the Revenue, a Division Bench of the High Court affirmed the order of the single Judge. On an applica tion made on behalf of the Revenue the High Court granted certificate under Article 133 of the Constitution. Hence these appeals. The learned single Judge held that Section 171 of the Income Tax Act does not apply to a case where the division was effected before commencement of the accounting period, and the HUF having received no income during the accounting period it could not be assessed tax notwithstanding the fiction introduced by Section 171. In appeal the Division Bench held that there was no express provision in Section 171 nor was there any necessary implication arising from the provisions of the Section that the income of the family after its division must 478 be treated or deemed to be the income of the HUF inspite of disruption of joint status '. The Bench held that a HUF is a separate and distinct entity from the members constituting it and if that entity does not receive any income, the members ' income could not be assessed as income of the HUF. The Division Bench further held that since there had been partition in the family and Tavazhi had ceased to be HUF long before the accounting periods, the provisions of the Act could not be pressed into service for the purpose of taxing the income of the individual members of the family treating them having the status of HUF with the aid of Section 17 1 of the Act. The main question which fails for consideration is as to whether the partition as effected by the agreement dated 21.2. 1963 and also the decree of the Civil Court amount to "partition" under the explanation to Section 171 of the Act and further whether the Income Tax Officer acted contrary to law in holding that inspite of the partition as alleged by the respondent, the status of HUF was not disrupted and that status continued for the purposes of assessment during the relevant assessment years. Under Section 171 a Hindu Family assessed as HUF, is deemed for the purposes of the Act to continue as HUF except where partition is proved to have been effected in accordance with the section. The section further provides that if any person at the time of making of assessment claims that partition total or partial has taken place among the members of the HUF, the Income Tax Officer is required to make an inquiry after giving notice to all the members of the family, and to record findings on the question of partition. If on inquiry he comes to the finding that there has been partition, individual liability of members is to be computed according to the portion of the joint family property allotted to them. What would amount to partition for the purposes of the Section is contained in the Explanation to the Section which defines partition as under: "Explanation In this Section (a) 'partition ' means (i) where the property admits of a physical division, a physical division of the property, but a physical division of the income without a physical division of the property producing the income shall not be deemed to be a partition; or (ii) where the property does not admit of a physical divi sion, then such division as the property admits of, but a 479 mere severance of status shall not be deemed to be a parti tion. " The above definition of the partition does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided then there should be division of the property to the extent it is possible otherwise the severance of status will not amount to partition. In considering the factum of partition for the purposes of assessment it is not permissible to ignore the special meaning assigned to partition under the explanation, even if the partition is effected through a decree of the court. Ordinarily decree of a Civil Court in a partition suit is good evidence in proof of partition but under Sec tion 171 a legal fiction has been introduced according to which a preliminary decree of partition is not enough. instead there should be actual physical division of the property pursuant to final decree. by metes and bounds. The Legislature has assigned special meaning to partition under the aforesaid Explanation with a view to safeguard the interest of the Revenue. Any assessee claiming partition of HUF must prove the disruption of the status of HUF in ac cordance with the provisions of Section 171 having special regard to the Explanation. The assessee must prove that a partition effected by agreement or through court 's decree, was followed by actual physical division of the property. In the absence of such proof partition is not sufficient to disrupt the status of Hindu Undivided Family for the purpose of assessment of tax. Under the Hindu Law members of a joint family may agree to partition of the joint family property by private settlement, agreement, arbitration or through court 's decree. Members of the family may also agree to share the income from the property according to their re spective share. In all such eventualities joint status of family may be disrupted but such disruption of family status is not recognised by the Legislature for purposes of Income Tax. Section 171 of the Act and the Explanation to it, prescribes a special meaning to partition which is different from the general principles of Hindu Law. It contains a deeming provision under which partition of the property of HUF is accepted only if there has been actual physical division of the property, in the absence of any such proof, the HUF shall be deemed to continue for the purpose of assessment of tax. Any agreement between the members of the joint family effecting partition, or a decree of the Court for partition cannot terminate the status of HUF unless it is shown that the joint family property was physically divided in accordance with the agreement or decree of the Court. 480 On behalf of the respondent it was urged that the High Court has placed reliance on a Full Bench decision of Kerala High Court in Parameswaran Nambudiripad vs Inspecting As sistant Commissioner of Agricultural Income tax, 72 I.T.R. 664 where it was held that if the HUF was in fact not in existence during any part of an accounting period. and the HUF as such had not received any income, the family could not be assessed to tax as HUF. The view taken by the Full Bench has been approved by this Court in Inspecting Assist ant Commissioner of Agricultural Income Tax and Sales Tax (Special), Kozhikode vs Poomuli Manekkal Parameswaran Nam boodiripad, 33 I .T.R. 108. On a careful scrutiny of the judgment of this Court we find that in that case interpreta tion of Section 29 of the Kerala Agricultural Income Tax Act 1950 as amended in 1964 was involved. Section 29 after its amendment in 1964 made provision for assessment of Agricul tural tax after partition of a Hindu Undivided Family. Under that Section there was no provision in the nature of Expla nation to Section 171 of the Income Tax Act. This Court had no occasion to interpret Section 171 instead the Court interpreted Section 29 of that Act which is quite different from Section 17 1, therefore the appellant cannot draw any support from that decision. In Kaloomal Tapeshwar Prasad vs C.I.T., Kanpur, this Court interpreted Section 171 of the Act in detail. On an elaborate discussion the Court held that under the Hindu Law it is not necessary that the property must in every case be partitioned by metes and bounds or physically into different portions to complete a partition. Disruption of status can be brought about by any of the modes permissible under the Hindu Law and it is open to the parties to enjoy their share of property in any manner known to law according to their desire but the Income Tax Law does not accept any such partition for the purposes of assessment of tax instead it has introduced certain conditions of its own to give effect to the partition under Section 17 1 of the Act. The Court held that in order to claim disruption of HUF on the basis of partition it is necessary to show that the partition had been effected physically by metes ,red bounds. and in the absence of any such proof, the property would continue to be treated as belonging to the HUF and its income would continue to be included in its total income treating the assesse as HUF. The High Court referred to Section 25A of the Income Tax Act, 1922 and placed reliance on a number of decisions in holding that in view of the decree of Civil Court for parti tion. the HUF status had been disrupted and since there was no evidence on record to show that the HUF had received any income in the accounting year, the income received by indi vidual members of the joint family could not be 481 treated to be the income of HUF. The High Court placed reliance on the Privy Council decision in Sunder Singh Majithia vs Commissioner of Income Tax, and a number of other decisions also in holding that the legal fiction introduced under Section 171 of the Act could not be extended to create tax liability on the HUF even after disruption of its status, pursuant to the Civil Court 's decree for partition. We do not consider it neces sary to discuss those decisions, as the purpose and object of Section 171 and the extent of the legal fiction intro duced by it has already been considered by this Court in Kaloomal 's case. The view taken by the High Court under the impugned judgment is not sustainable in law as it is con trary to that decision. In Shankar Narayanan vs Income Tax Officer, 153 I .T.R. 562 a learned Judge of the Kerala High Court while considering the interpretation of Section 171 held that the view taken by the High Court in the Judgment trader appeal Income Tax Officer, Assessment V Calicut vs Smt. N.K. Sarada Thampatty, ceased to be good law in view of the decision of this Court in Kaloomal 's case. In the instant case since there was no dispute that prior to the assessment year 1967 68 the assessment was made against the HUF of which the respondent was a member. The respondent for the first time raised the plea of partition and disruption of HUF in the proceedings for the assessment years 1967 68, 1968 69 and 1969 70. There was no dispute before the income Tax Officer that there had been no physi cal division of the properties by metes and bounds, there fore the Income Tax Officer was justified in holding that the status of HUF had not been disrupted, and the income derived from the properties for the purposes of assessment continued to be impressed with the HUF character. The High Court in our opinion committed error in quashing the order of the Income Tax Officer. In the result, we allow the appeals and set aside the order of the High Court and dis miss the writ petition filed by the respondent. There will be no order as to costs. V.P. Appeals allowed.

Respondent was assessed for the assessment years of 1967 68, 1968 69 and 1969 70 treating her as the head of the HUF. She contended before the income Tax Officer that under the partition agreement dated 3.7.1958 the Tavazhi was divided, the HUF status of the Tavazhi was disrupted on account of the CIvil Court decree made in a partition suit and the properties were divided into 14 shares and the HUF could not be assessed to income tax. The Income Tax Officer rejected the claim of the respondent on the ground that since the preliminary decree of the Civil Court, and not become final and no physical or actual partition had taken place; the status of HUF continued for the purpose of Tax. The Single Judge of the High Court allowed the Writ Petition of the respondent holding that Section 171 of the Income Tax Act does not apply to a case where the division was effected before the commence 474 ment of the accounting period and HUF having received no income during the accounting period it could not be assessed to tax notwithstanding the legal fiction under Section 171. In appeal the Division Bench held that there was no express provision in Section 171 nor was there any necessary impli cation arising from the provisions of the section that the income of the family after its division must be treated or deemed to be the income of the HUF inspite of disruption of joint status. The Bench held that HUF is a separate and distinct entity from the members constituting it and if that entity does not receive any income, the members ' income could not he assessed as income of the HUF. The Division Bench further held that since there had been partition in the family and Tavazhi had ceased to he HUF long before the accounting periods, the provisions of the Act could not he pressed into service for the purpose of taxing the income of the individual members of the family treating them having the status of HUF with the aid of Section 171 of the Act. The High Court granted certificate to the Revenue under Article 133 of the Constitution. Hence these appeals. Allowing the appeal, the Court, HELD: 1. Under Section 171 a Hindu Family assessed as HUF, is deemed for the purposes of the Act to continue as HUF except where partition is proved to have been effected in accordance with the section. The section further provides that if any person at the time of making of assessment claims that partition total or partial has taken place among the members of the HUF, the Income Tax Officer is required to make an inquiry after giving notice to all the members of the family, and to record findings on the question of parti tion. If on inquiry he comes to the finding that there has been partition, individual liability of members is to be computed according to the portion of the joint family property allotted to them. The definition of partition does not recognise a partition even if it is effected by a decree of court unless there is a physical division of the property and if the property is not capable of being physically divided then there should be division of the property to the extent it is possible otherwise the severance of status will not amount to partition. In considering the factum of partition for the purposes of assessment it is not permissible to ignore the special meaning assigned to partition under the explanation, even if the partition is effected through a decree of the court. Ordinarily decree of a Civil Court in a partition suit is good evidence in proof of partition but under Sec tion 171 a legal fiction has 475 been introduced according to which a preliminary decree of partition is not enough, instead there should be actual physical division of the property pursuant to final decree, by metes and bounds. The Legislature has assigned a special meaning to partition under the aforesaid Explanation with a view to safeguard the interest of the Revenue. Any assessee claiming partition of HUF must prove the disruption of the status of HUF in accordance with the provisions of Section 171 having special regard to the Explanation. The assessee must prove that a partition ef fected by agreement or through court 's decree, was followed by actual physical division of the property. In the absence of such proof partition is not sufficient to disrupt the status of Hindu Undivided Family for the purpose of assess ment of tax. Under the Hindu Law members of a joint family may agree to partition of the joint family property by private settlement, agreement, arbitration or through court 's de cree. Members of the family may also agree to share the income from the property according to their respective share. In all such eventualities joint status of family may be disrupted but such disruption of family status is not recognised by the Legislature for purposes of Income Tax. Section 171 of the Act and the Explanation to it, prescribes a special meaning to partition which is different from the general principles of Hindu Law. It contains a deeming provision under which partition of the property of HUF is accepted only if there has been actual physical division of the property, in the absence of any such proof, the HUF shall be deemed to continue for the purpose of assessment of tax. Any agreement between the members of the joint family effecting partition, or a decree of the Court for partition cannot terminate the status of HUF unless it is shown that the joint family property was physically divided in accord ance with the agreement or decree of the Court. The respondent for the first time raised the plea of partition and disruption of HUF in the proceedings for the assessment years 1967 68, 1968 69 and 1969 70. There had been no physical division of the properties by metes and bounds. The status of HUF had not been disrupted, and the income derived from the properties for the purposes of assessment continued to be impressed with the HUF character. Parameswaran Nambudiripad vs Inspecting Assistant Com missioner of Agricultural Income tax, ; In specting Assistant Commissioner of Agricultural Income Tax and Sales Tax (Special), Kozhikode vs Poomulli Manekkal Parameswaran Namboodiripad, , distinguished. 476 Kaloomal Tapeshwar Prasad vs C.I.T., Kanpur, 133 I.T.R. 690, followed. Sunder Singh Majithia vs Commissioner of Income Tax, Shankar Narayanan vs Income Tax Offi cer, , referred.

Nos. 232,233, 286, 309, 320, 351, 319, 350, 354 and 490 of 1951. Applications under article 32 of the Constitution for writs to enforce the fundamental rights of the petitioners. C. K. Daphtar (R. M. Hajarnavis, with him) for the petitioner in Petition No. 232. M. C. Setalvad (G. N. Joshi and B. M. Hajarnavis, with him) for the petitioner: in Petition No. 233. B. M. Hajarnavis for the petitioners in Petitions Nos. 286, 309 and 320. V. N. Swami for the petitioners in Petitions Nos., 350 and 351. N. section Bindra (B. section Narula with him) for the petitioners in Petitions Nos. '319, 354 and 490. T. L. Shivde, Advocate General of Madhya Pradesh, for the respondent in all the petitions, the State of Madhya Pradesh. December 22. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. These are petitions under article 32 of the Constitution of India for directions or orders or writs to enforce the fundaments rights, of the petitioners to property by prohibiting, the respondent, the State of Madhya Pradesh, from enforcing their alleged rights under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. The several petitioners entered into contracts and agreements with the previous proprietors of certain estates and mahals in the State under which it is said they acquired the rights to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac and to cut and carry away teak and timber and miscellaneous special of trees called hardwood and 478 bamboos. The contracts and agreements are in 'writing some of them are registered. There is no dispute about their genuineness, and it has not been alleged that they are 'collusive or fraudulent transactions. Their dates and the several sums of money paid as consideration are set out in the petitions. The petitioners allege that they have spent large sums of money in the exercise of their rights, and his fact too is not controverted. Petitions Nos. 232, 233, 286, 309 and 320 of 1951 relate to tendu leaves which grow in shrub jungles and which are used in the manufacture of beedis or country made cigarettes, a very extensive and competitive business carried on by some of the petitioners involving an outlay of one to two lakhs of rupees in some cases. For instance, 406 contracts are involved in Petition No. 232 of 1951 ; the consideration paid comes to Rs. 1,65,385 and the expenses are alleged to be in the region of Rs. 1,90,000. In Petition No. 233 of 1951 there are 785 contracts; the purchase money is Rs. 1,10,605 and the outlay byway of 'expenses is said to be Rs. 50,000. Petition No. 319 of 1951 relates to the culture and cultivation of lac, and there are several lease deeds of different dates enuring for different periods; two of them go up to the years 1966 and 1967. Teak,, timber and hardwood form the subject matter of the rights involved in Petition No. 350 of 1951 and the registered lease deed is dated 8th October, 1949, and it is for a term of ten years. Petition No. 351 of 1952 involves tendu leaves and miscellaneous forest produce and timber. Petition No. 354 of 1951 relates to bamboo forests, and Petition No. 490 of 1951 to hardwood and bamboo. The contentions of the petitioners are mainly three in number. They say that the rights acquired by them under these contracts and agreements were got before the passing of the Madhya Pradesh Abolition 479 of Proprietary Rights Act, 1950, and that the legislation therefore does not affect them. It is urged next that they are not proprietors within the meaning of the Act and consequently the Act does not apply to them. Lastly, the question is raised that the Act itself is ultra vires, as many of its material provisions offend their fundamental rights guaranteed under the Constitution. The full title of the Act is the " Madhya Pradesh, Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 ", and it is Madhya Pradesh Act I of 1951. It came into force on 26th January, 1951. On the very next day, there was a notification under section 3 of the Act putting an end to all proprietary rights in estates, mahals and alienated villages and vesting the same in the State for the purposes of the State free of all encumbrances with effect from 31st March, 1952. The validity of the Act was questioned by the affected proprietors in Visheshwar Rao vs The State of Madhya Pradesh (1) before this Court, and the Act was held to be valid. The petitioners are concluded. We have to consider only the other two points raised on behalf of the petitioners. It is clear from the provisions in the impugned Act that only those rights of the proprietor vest in the State which the proprietor had on the specified date. Section 3 provides that on and from a date to be specified by a notification by the State Government, all proprietary rights in an estate or mahal vesting in a proprietor shall pass from him to and vest in the State. The consequences of vesting are given in section 4 of the Act, and it is provided that the vesting will take place, notwithstanding anything. contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act. But this again deals only with the rights existing on the date of the notification the section is not retrospective. (1) 480 Clause (a) speaks of all rights,title and interest vesting in the proprietor or any person having interest in such propreitory right through the proprietor. Clause (b) is to this effect "all grants and confirmation Of title of or to land in the property so vesting Or Of or, to any right or privilege in respect of such property orland revenue in respect thereof shall, whether liable to resumption or not, determine;" The right or privilege referred to is the right or privilege of the proprietor or any person having interest in the proprietary right through the proprietor. Clause (c) is quite clear on the subject; it runs thus: "all rents and cossesi in respect of any holding in the property so vesting for any period after the date of vesting and which. but for the vesting, would be payable to the proprietor shall vest in and be payable to the State Government. ." The words " after the date of vesting " are important. Sub section (3) of section 4 says Nothing contained in subsection (1) shall operate as a bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting by virtue of his proprietary rights and any such sum shall be recoverable by him by any process of law which but for this Act would be available to him. " If the outgoing proprietor is entitled to, recover any sums as quid pro quo for what he has parted with under the transfer, it can only be on the basis that the transfer is a good and valid transaction unaffected by the Act. Section 6 is very material, and it is in these terms ' (1) Except as provided in sub section (2), the transfer of any right in the property 'Which is liable 481 to vest in the state under this Act made by the proprietor at any time after the 16th March, 1950, shall,. as from the date of vesting, be void. (2) Where on the. application of the transferor or the transferee, the Deputy Commissioner is satisfied that any transfer of property referred to in subsection (1) was made by a proprietor in good faith and in the ordinary course of village management, he may declare that the transfer shall, not be void* after the date of vesting. " The date, 16th March, 1950, is probably the date when legislation on these lines was actively thought of, and sub section (1) hits at transfers made after this date. This means that transfers before that date are not to be regarded as void. Even in the case of transfers after the said date, sub section (2). provides that the Deputy Commissioner may declare that they .are not void after the date of vesting, provided they were made in good faith and in the ordinary course of management. , The scheme of the Act as can be gathered from the provisions referred to above makes it reasonably clear that whatever was done before 16th March, 1950, by the proprietors by way of transfer of rights is not to, be disturbed or affected, and that what vests in the State is what the proprietors had oil the vesting date. If the proprietor had any rights after the date of vesting which he could enforce against the transferee such as a lessee or a licensee, those rights would no doubt vest in the State. In all these petitions, the several contracts and, agreements were before the date of vesting, and many of them were prior even to the 16th March, 1950. The petitioners had taken possession of the subject matter of the contracts, namely, tendu leaves, lac palsadies, teak, timber and hardwood, bamboos and miscellaneous forest produce. Under the Indian Sale of Goods Act, "goods" include growing crops, grass and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale 482 notwithstanding the definition of "immovable property " in section 3 (25) of the General Clauses Act of 1897. In Petition No. 232 of 1951 two sample agreements relating to tendu leaves are given as annexures A and B to the petitions. They may be quoted in extenso for a clear understanding of the nature of the right created. Exhibit A dated 16th November, 1950, is in these terms: " Receipt written in favour of Seth Chhotabhai Jethbai Patel Company shop Gondia, and written by Shri Madhavrao Gangadhar Rao Chitnavis shop Itan receipt is written that we are owners of forests of Tendu leaves of Monza Sawarla 0 12 0 Mauza Khatkheda 0 5 0 Mouza Nati Kheda 0 16 0 and Monza Welwa 0 16 0. We have given contract (Theka) of cutting Tendu leaves from these four villages for one year that is till the end of June for Rs. 2,500 out of this we had received Rs. 300 on 21st September, 1950, at Bhandara and the balance Rs. 2,200 was received from your Bhandara shop through Balubhai. Nothing remains to be paid to us. You have a right to coppice the trees. " The terms of Exhibit B dated 12th July, 1948, Emitting unnecessary portions are as follows: In the year 1948 A.D. theka patra is executed that in consideration of the amount received as detailed above I had given the full tendu leaves jungle for taking out tendu leaves for five years from 1949 A.D. to 1053 A.D. I have immediately given possession. Now you can take tendu leaves of the tendu leaves forests described above every year for five years till the end of June, 1953. You may coppice the plants and take leaves. At the end of June, 1953, you should return my jungle without damage or loss to me. After the end of the period it depends upon my will whether or not I give you the forests on theka (again). If any one obstructs you in coppicing or taking away leaves, I will be responsible for the damages. Hence I have executed 483 this theka pathi for five years for consideration after reading and understanding. I agree with it. Dated 12th July, 1948, by pen of Waman Sadeshic Amte Petition Writer Bhandara. " The contracts and agreements appear to be in essence and effect licenses granted to the transferees to cut, gather and carry away the produce in the shape of tendu leaves, or lac, or timber, or wood. A similar agreement came up for consideration by the Judicial Committee of the Privy Council in Mohanlal Hargovind of Jubbulpore vs Commissioner of Income tax, Central Provinces and Berar, Nagpur (1) in connection with a question arising out of the Income tax Act. Some of the observations contained in the judgment dealing with the nature of such an agreement are useful and may be quoted here : " The contracts grant no interest in land and no interest in the trees or plants themselves. They are simply and solely contracts giving to the grantees the right to pick and carry away leaves, which, of course, implies the right to appropriate them as their own property. The small right of cultivation given in the first of the two contracts is merely ancillary and is of no more significance than would be e.g., a right to spray a fruit tree en to the person who has bought the crop of apples. The contracts are short term contracts. The picking of the leaves under them has to start at once or practically at once and to proceed continuously. " There is nothing in the Act to affect the validity of the several contracts and agreements. The petitioner are neither proprietors within the meaning of the Act nor persons having any interest in the proprietary right through the proprietors. There is no provision in the Act which extinguishes their rights in favour of the State. 'What exactly is meant by a ,proprietary right " under the revenue laws has been (1).I.L.R. , 63 484 pointed out at page 217 of Volume I of Baden Powell 's Land Systems of British India, where he says: The first thing that will strike the student is the .use of the term ' proprietary right ' in these pages and in Indian Revenue Books generally. It does not occur in text books on English law or jurisprudence. I presume that the use of such a phrase is due to the ad feeling that we rarely acknowledge anything like a complete unfettered right vested in any one person. The interest in the soil has come to be virtually shared between two or even more grades, the cause of which we just now discussed. It is true that, in many cases, only one person is called ' landlord ' or ' actual proprietor ' but his right is limited; the rest of the right, so to speak, is in the hands of the other grades, even though they are called 'tenants ' or by some vague title such as ' tenure holders. ' In many cases, as we have seen, this division of right is accentuated by the use of terms like sub proprietor ' or proprietor. of his holding '. The 'proprietary right seems then a natural expression for the interest held by a landlord, when that interest is not the entire 'bundle of rights ' (which in the aggregate make up an absolute or complete estate) but only some of them, the re mainder being enjoyed by other persons. " The definitions given in the Act do not abrogate or vary this meaning. The respondent State cannot invoke in its aid section 3, sub clause (1) of the Act which speaks of the vestina of proprietary rights free of all encumbrances, because the rights of the petitioners either as buyers or lessees or licensees are not encumbrances as ordinarily understood. The last part of clause (a) of section 4 (1) indicates that mortgage debts and charges on the proprietary right are meant by encumbrances. In this view, it becomes unnecessary to consider the question as to when title in the property passes to the transferee. Section 4, sub section (3) of the Indian Sale of Goods Act which lays down that in the case of sale of future goods the contract amounts 485 only to an agreement to sell does not seem to be applicable to the contracts and agreements here, as the goods are not " future goods " as defined in subclause (6) of the Act which states that they mean goods to be manufactured or produced or acquired by the seller after the making of the contract of sale. Benjamin says in his treatise on Sale (8th Edition) at page 136: " Things not yet existing which may be sold (that is to say, a right to which may be immediately granted) are those which are said to have a potential existence, that is, things which are the natural produce, or expected increase of some thing already owned or possessed by the seller. A man may sell the crop of hay to be grown in his field, the wool to be clipped from his sheep at a future time, the milk that his cows will yield in the coming month, and similar things. Of such things there could be, according to the authorities, an immediate grant or assignment, whereas there could only be an agreement to sell where the subject of the contract is something to be afterwards acquired; as the wool of any sheep, or the milk of any cows, which the seller might buy within the year, or any goods to which he might obtain title within the next six months. " The goods covered by the present petitions are goods which have a potential existence, and according to the decisions discussed by the learned author, there can be a sale of a present right to the goods as soon as they come into existence. Whether title passes on the date of the contract itself or later is really dependent on the intention of the parties, and as already stated, in these petitions the stipulated consideration has passed from the transferees to the proprietors, and possession also has been taken. We hold that the respondent has no right to interfere with the rights of the several petitioners under the contracts and agreements in their favour set out in their petitions, and we hereby issue a writ prohibiting the State from interfering in any manner whatsoever with the enjoyment of those rights by the 486 petitioners. In cases where the periods under the contracts have expired, or where the proprietors have ill to recover anything from the transferees after he date of vesting, the State will be at perfect liberty to assert and enforce its rights standing in the shoes of the proprietors. The respondent will pay the petitioners their respective costs. Petition allowed. Agent for the petitioners in Petitions Nos. 232, 233, 286, 309 and 320 : Bajinder Narain. Agent for the petitioners in Petitions Nos. 360 and 351: M. section H. Sastri. Agent for the petitioners in Petitions Nos. 319, 354 and 490: Harbans Singh. Agent for the respondents in all petitions: G. H. Rajadhyaksha.

The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act of 1950 put an end to all proprietary rights in estates, mahals and alienated villages situated in the State and vested them in the State for the purposes of the State, free from all encumbrances. The petitioners, who had entered into various contracts and agreements with the proprietors of the estates before the date on which the estates vested in the State under the Act (and,some of them even before the 16th March, 1950) under which they were entitled to pluck, collect and carry away tendu leaves, to cultivate, culture and acquire lac, and to out and carry away teak and timber and other species of trees, applied for writs under art 32 of the Constitution prohibiting the State from interfering with the rights they had, acquired under the contracts with the proprietors: Held, (i) On construction of the contracts in a question, that the contracts were in essence and effect licenses granted to the petitioners to cut, gather and carry away produce in the shape of tendu leaves, lac, timber, or wood and the petitioners were neither proprietors nor persons having any interest in the proprietary rights through the proprietors, within the meaning of the Act; (ii) The rights of the petitioners were not encumbrances within the meaning of the expression "free from encumbrances in section 3 . 1) of the Act and the petitioners were entitled to a writ against the State prohibiting the State from interfering with the rights of the petitioners under the contracts which they had entered into with the proprietors. Mohanlal Hargovind vs Commissioner of Income tax, C.P,& Berar (I.L.R. [19491 Nag. 892) referred to. Held also, that section 4 (3) of the Indian Sale of Goods Act which lays flown that in the case of sale of future goods the contract 477 amounts only to an agreement to sell did not apply to the contracts in the present case as "future goods" are defined in the Act as meaning goods to be manufactured or produced or acquired by the seller after making the contract of sale.

any case of successful prosecution of the husband or wife at the instance of the wife or the husband could be brought to the notice of the Supreme Court in the course of the arguments in this appeal would show that the spouses had not lightly rushed in the past to criminal courts with complaints of criminal breach of trust against the other spouses though in the day to day life. There must have been numerous instance where the wife had used the property or cash of the husband for purposes different from the one for which they were given by the husband to be applied by the wife and vice versa. Therefore, the minimum requirement in such cases is a specific separate agreement whereby the property of the wife or husband was entrusted to the husband or wife and or his or her close relations. In the absence of such a specific separate agreement in the present case the complaint was rightly quashed. [242D F] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 684 of 1982 From the judgment and order dt. the 31st May, 1982 of the High Court of Punjab & Haryana at Chandigarh in Crl. No. 4876M/81. V.C. Mahajan, and N.S. Das Bahl for the Appellant. Altat Ahamed for the Respondents. Mrs. U. Kapoor for the Intervener. T The following Judgments were delivered FAZAL ALI, J. Sometimes the law which is meant to impart justice and fair play to the citizens or people of the count is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants it negatives their well established rights in law. The present case reveals the sad story of a helpless married woman who, having been turned out by her husband without returning her ornaments, money and clothes despite repeated demands, and dishonestly misappropriating the same, seems to have got some relief by the court of the first instance but to her utter dismay and disappointment when she moved the High Court she was forced like a dumb driven cattle to seek the dilatory remedy of a civil suit such was the strange and harsh approach of the High Court, with due respect, which seems to have shed all the norms of justice and fair play. Even so, the High Court is not much to be blamed because in the process of following precedents or decisions of doubtful validity of some courts, it tried to follow suit. It may be stated that even the old 199 classic Hindu law jurists and celebrated sages conceded certain substantial rights to the women, one of which was what is called Saudayika or stridhan, with which we are concerned here. This now brings us to a brief discussion of the nature, character and concomitants of stridhan. In the instant case, we are mainly concerned with that part of stridhan which is the absolute property of a married women during coverture. Sir Gooroodas Banerjee in 'Hindu Law of Marriage and Stridhana ' while describing the nature of stridhan quoted Katyayana thus: "Neither the husband, nor the son, nor the father, nor the brother, has power to use or to alien the legal property of a woman. And if any of them shall consume such property against her own consent he shall be compelled to pay its value with interest to her, and shall also pay a fine to the king. Whatever she has put amicably into the hands of her husband afflicted by disease, suffering from disease, or sorely pressed by creditors, he should repay that by his own freewill. " (P.341) At another place while referring to the nature of a husband 's rights over stridhan during coverture, the author referring to Manu says thus: " . and by the law as expounded by the commentators of the different schools, the unqualified dominion of the husband is limited to only some descriptions of the wife 's property, while as regards the rest he is allowed only a qualified right of use under certain circumstances specifically defined." (p.340) Similarly, while describing the nature of stridhan generally, which is known as saudayika, the author says thus: "First, take the case of property obtained by gift. Gifts of affectionate kinderd, which are known by the name saudayika stridhana, constitute a woman 's absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, namely, the right of use in times of distress. " 200 The entire classical text on the subject has been summarised by N.R. Raghavachariar in 'Hindu Law ' (5th Edn) at page 533 (section 487) where the following statement is made: "487. Powers During Coverture. Saudayika, meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will, she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure by gift or will without reference to her husband and property acquired by it is equally subject to such rights. Ordinarily, the husband has no manner of right or interest in it. But in times of extreme distress, as in famine, illness or imprisonment, or for the performance of indispensable duty the husband can take and utilise it for his personal purposes, though even then he is morally bound to restore it or its value when able to do so. But this right is purely personal to him and cannot be availed of by a holder of a decree against the husband, and if the husband dies with out utilising the property for the liquidation of his debts, his creditors cannot claim to proceed against it in the place of her husband. " To the same effect is Maines ' treatise on Hindu Law at page 728. The characteristics of Saudayika have also been spelt out by Mulla 's Hindu law at page 168 (section 113) which gives a complete list of the stridhan property of a woman both before and during coverture, which may be extracted thus: "113. Manu enumerates six kinds of stridhana: 1. Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagni). Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband 201 (adhyavanhanika) 3. Gifts made in token of love, that is, says Katyayana, those made through affection by her father in law and mother in law (pritidatta), and those made at time the of her making obeisance at the feet of elders (padavan danika). Gifts made by father. Gifts made by mother. Gifts made by a brother. " It is, therefore, manifest that the position of stridhan of a Hindu married woman 's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt. Such being the nature and character of stridhan of a woman, it is difficult to countenance the view of the Punjab & Haryana High Court in Vinod Kumar Sethi & Ors. vs State of Punjab & An.(l) that the stridhan property of a married woman becomes a joint property as soon as she enters her matrimonial home. We shall deal with this aspect of the matter a little later. We would first like to narrate the facts of the case to show how the complaint filed by the appellant was wrongly quashed by the High Court. The general allegations made in the complaint may be summarised as follows: (1) 202 The complainant was married to Suraj Kumar, Accused No. 1 (respondent) on 4.2.72 at Ludhiana according to Hindu rites and customs in the presence of respectable persons. Accused No.2 was the father and accused Nos.3 to 5 were brothers and No.6 was brother in law of accused No.; It is further alleged that all the accused attended and actively participated in the marriage of the complainant and demanded dowry. The must important allegation made by the appellant was that her parents and relatives gave by way of dowry articles worth Rs. 60,000/ inclusive of gold ornaments, clothes and other things which were entrusted to accused Nos.1 to 6 on 5.2.72 which were taken into possession by them. Soon after the marriage, accused No. 1 started harassing, teasing and beating the complainant and ultimately turned her out alongwith her children sometime in the year 1977. It was avered in para 4 of the complaint that accused never returned the articles to her, the relevant portion of the allegations may be extracted thus: "The articles above mentioned were never given by the accused to the complainant for her use and possession of the same was illegally, dishonestly and malafidely retained by the accused in order to make a wrongful gain to them selves and wrongful loss to the complainant. The accused refused to give the entrusted articles of dowry, which were the stridhan of the complainant. On 10.2.1981 when the accused Nos. 1 to 5 came to Ludhiana to attend the proceeding u/s 125 Cr.P.C., filed by the complainant in the Court of Shri S.S. Tiwana, they were persuaded by the parents of the complainant to send the articles entrusted to them at the time of marriage but they gave flat refusal to its notice which was served upon the accused No.1 which was dated 17.12.80, but to no effect. The accused have thus dishonestly used and converted the articles aforementioned to their own use, who are still in possession of the same in violation of the direction given by the parents of complainant. The parents of the complainant directed the accused at the time of marriage to give the articles to the complainant for her use, in the presence of the aforesaid persons, but the accused have not done the needful of the demand and have thus committed criminal breach of trust punishable u/s 406 IPC." 203 A perusal of the allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to them in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible to us. All the ingredients of an offense under s.405 IPC were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complainant should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction under s.482 Cr. P.C. is totally unwarranted by law. We might also mention that alongwith the complaint, a list of valuable articles had also been given, the relevant portion of which may be extracted thus; I. " Jewellery" 1. Nine complete gold sets 2. One complete diamond set 3. Three gold rings 4. Two golden Bahi (Baju Band) 5. One golden chain 6. One shingar patti with golden tikka 7. One golden nath (Nose ring) 8. Twelve golden bangles II. Silver articles 1. Six glasses and one jug 2. Two surma danies 3. One tagari 4. Two payals III. Clothes Fifty one sarees, twenty one suits alongwith petti 204 coats, blouses, nighties, shawls, sweaters, night suits, gowns and woollen coat etc., six complete beds with sheets, etc. " A perusal of the list reveals that so far as the jewellery and clothes, blouses, nighties and gowns are concerned they could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that the ornaments and sarees and other articles mentioned above could also be used by the husband, If, therefore, despite demands these articles were refused to be returned to the wife by the husband and his parents, it amounted to an offence of criminal breach of trust. In mentioning the articles in the list, we have omitted furniture and utensils which though also belonged to the complainant yet there is some room for saying that these were meant for joint use of the husband and wife. Thus, the facts mentioned in the complaint taken at their face value reveal a clear allegation that the stridhan property of the appellant was entrusted to the husband who refused to return the same to her Some courts were of the opinion that in view of section 27 of the and section 14 of the Hindu Succession act, the concept of stridhan property of a woman was completely abolished. For instance, the Punjab & Haryana High Court in a case reported in Surindra Mohan etc. vs Smt. Kiran Saini(1) held thus: "That under the present law on claim can be made on the basis of stridhan, as it has now been completely abolished and cannot avail against statute which makes it the joint property of the parties. " We are of the opinion that this view of the High Court is not legally sustainable because neither of the two Acts, referred to above, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished. All that the two sections, mentioned above, provide is that if the husband re (1) 1977 Chandigarh Law Report 212 205 fuses to return the stridhan property of his wife, it will be open to the wife to recover the same by properly constituted suit. The sections nowhere provide that the concept of stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away. In a later decision in Bhai Sher Singh & Anr. vs Smt. Virinder Kaur(1), it was very rightly pointed out by the same High Court that section 27 of the Marriage Act merely provides an alternate remedy to the wife to bring a properly constituted suit in respect of the stridhan property which the husband refused to return. Thus, it is clear that section 27 merely provides for an alternate remedy and does not touch or affect in any way the Criminal liability of the husband in case it is proved that he has dishonestly misappropriated that stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that the two Acts mentioned above take away the stridhan right of a woman at the most these Acts merely modify the concept of stridhan. It may be useful to refer to certain pertinent observations in the aforesaid case. "The aforementioned passage shows that a female has an absolute right to use her stridhan in any way she likes and even if her husband can take this property at the time of distress, this right is personal to him, The allegations made in the instant complaint are not that the husband of the respondent has placed her ornaments and jewellery etc. Out of her way. What has been alleged therein is that the petitioners who are the parents in law of the respondent have converted the ornaments and clothes, etc. presented to the respondent at the time of her marriage to their own use. Section 27 of the empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which may jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a crimi (1) 206 nal complaint if the property belonging to her is criminally misappropriated by her husband. ' ' In these circumstances, the decision reported in 1977 Chandigrah Law Reporter 212 can no longer be considered good law. Even in Vinod Kumar 's case (supra) the Full Bench reiterated the view that section 27 in no way abolishes stridhan but expressly recognises the property exclusively owned by the wife. In this connection, the Court observed thus: "The express words of the provision refer to property 'which may belong jointly to both the husband and the wife '. It nowhere says that all the wife 's property be longs jointly to the couple or that Stridhan is abolished and she cannot be the exclusive owner thereof. Indeed, in using the above terminology the statute expressly recognises that property which is exclusively owned by the wife is not within the ambit of Section 27 of the Equally no other provision in the could be pointed out which erodes the concept of Stridhan or in anyway incapacitates the Hindu wife to hold property as an exclusive owner. " The sheet anchor of the arguments of the counsel for the respondents which is based on the decision of the Punjab & Haryana High Court in Vinod Kumar 's case is that the moment a woman after Marriage enters her matrimonial home, her stridhan property becomes a joint properly of both the spouses and the question of application of section 406 I.P.C is completely eliminated. It is true that to a great extent this part of the argument of the learned counsel is supported by the aforesaid decision but, in our opinion, the decision, so far as this aspect of the matter is concerned, is wholly unsustainable. We would first extract the exact ratio held by the High Court in Vinod Kumar 's case: "To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the moveable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as 207 involving any entrustment or passing of dominion over property day to day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break up. Therefore, the very essential prerequisites and the core ingredients of the offence under S.406 of the Penal Code would be lacking in a charge of criminal breach of trust of property by one spouse against the other. " These observations on doubt support the contention of the learned counsel for the respondent but we find it impossible to agree with the aforesaid observations for the reasons that we shall give hereafter. We fail to understand the logic of the reasoning adopted by the High Court in investing the pure and simple stridhan of the wife with the character of a joint property. We are surprised that the High Court should have taken the view that a woman 's absolute property though well recognised by law is interpreted by it as being shorn its qualities and attributes once a bride enters her matrimonial home. We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of then to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under sections 405 and 406, IPC. Afterall how could any reasonable person expect a newly married women living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the 208 absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, it seems to that us even if the personal property of the wife is jointly kept, it would be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observations of the High Court at other places regarding the inapplicability of section 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. the two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong deer in cases like arson, accidents, etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under section 406 I.P.C. Or render the ingredients of section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law. Coming back to the theory of matrimonial home and the stridhan becoming a joint property of the two spouses, the logical effect of the observation made by the High Court is that once a woman enters her matrimonial home she completely loses her exclusive stridhan by the same being treated as a joint property of the spouses. In other words, if this view is taken in its literal sense the consequence would be to deprive the wife of the absolute character and nature of her stridhan and make the husband a co owner of the same such a concept is neither contemplated nor known to Hindu law of stridhan, nor does it appeal to pure 209 common sense. It is impossible to uphold the view that once a married woman enters her matrimonial home her stridhan property undergoes a vital change so as to protect the husband from being prosecuted even if he dishonestly misappropriates the same. For instance, properties like jewellery, clothing, cash, etc. given by her parents as gifts cannot be touched by the husband except in very extreme circumstances, viz., where the husband is in imprisonment or is in serious distress. Even then the religion and the law enjoins that the husband must compensate the wife and if he cannot do so, he must pay fine to the King which means that the husband would` be liable to penal action under the present law of the land. One of the arguments addressed by the counsel for the respondent which had appealed to thee full Bench of the Pun jab & Haryana High Court in Vinod Kumar 's case (supra) as also to our learned Brother Varadarajan, J., is that after entering the matrimonial home the custody of the stridhan entrusted by the wife to her husband becomes a sort of a partnership firm and in this view of the matter the question of criminal breach of trust does not arise. In our opinion, it is neither appropriate nor apposite to import the concept of partnership in the relationship of husband and wife for the simple reason that the concept of partnership is entirely different from that of the husband 's keeping the stridhan in his custody. Section 4 of the (hereinafter referred to as the 'Partnership Act ') defines 'partnership ' thus: "partnership" is the relation between persons who have agreed to share the profit of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm" and the name under which their business is carried on is called the "firm name". The essential ingredients of a partnership are: (1) that there should be an actual or physical overt act on the part of two persons to embark an a business adventure. (2) that if any business is carried on by one or any 210 of the partners the profits of the business shall be shared by them in the ratio contained in the partnership agreement. It is, therefore, manifest that in a partnership the wife must by some clear and specific act indicates that the stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any would have to be shared by both. In other words, one of the essential conditions of a partnership firm is that every partner must have dominion over the property by virtue of the fact that he is a partner. This aspect of the matter was highlighted in a decision of this Court in Velji a Raghavji vs State of Maharashtra(1) where the following observations were made: ". Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of section 405. In order to establish 'entrustment of dominion ' over property to an accused person the mere existence of that person 's dominion over property is not enough. It must be further shown that his dominion . was the result of entrustment. " In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home she had entrusted the property to her husband so as to make him part owner of the same. Therefore, the question of the husband 's having dominion over the property does not at all arise. In fact, the wife has nothing to do with the partnership, if any, and the husband is a pure and simple custodian of the property and cannot use the same for any purpose without her consent. A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a a partnership as defined in the Partnership Act. In the instant case, there is also no question of the wife constituting herself a partner with her husband merely by allowing him to keep the articles or money in his custody. There is neither any pleading nor any allegation that after her marriage, the appe (1)AIR 211 llant transferred all her properties to her husband for carrying on a partnership business in accordance with the provisions of the Partnership Act. Thus, in our opinion, it cannot be said that a bare act of keeping stridhan property in the custody of the husband constitutes a partnership and, therefore, a criminal case under section 406 IPC is not maintainable. It is not necessary for us to multiply cases on this point on which there does not appear to be any controversy. We have already pointed out that the stridhan of a woman is her absolute property and the husband has no interest in the same and the entrustment to him is just like something which he wife keeps in a Bank and can withdraw any amount whenever she likes without any hitch or hindrance and the husband cannot use the stridhan for his personal purposes unless he obtains the tacit consent of his wife. When the essential conditions of a partnership do not exist the mere act or factum of entrustment of stridhan would not constitute any co ownership or legal partnership as defined under s.4 of the Partnership Act. To sum up the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with loss , of business by using the said property which was never intended by her while entrusting possession of stridhan.) On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on b half of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under s.406 of the IPC. On a parity of reasoning, it is mainfest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property. For these reasons, the custody or entrustment of stridhan with the husband does not amount to a partnership in any sense of the term and therefore, we are unable to agree with view taken in Vinod Kumar 's case as also with the opinion expressed by our Brother on the points arising in the case. Another serious consequence as a result of the ratio of the full Bench decision in Vinod Kumar 's case would be to render the 212 provisions of section 406 IPC inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan of his wife. Furthermore, we shall hereafter show that the view of the Full Bench is in direct contravention of a long course of decisions of this Court on the ingredients of section 405 IPC. Before coming to this chapter, we would like to say a few things more about the judgment of the High Court which on deeper probe and careful scrutiny seems to be self contradictory. We are clearly of the opinion that the concept of stridhan property of a married woman becoming a joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu Law of Sadayika which has been administered since more than a century by High Courts, Privy Council as also this Court. By a pure and simple figment of the fertile imagination the Judges in Vinod Kumar 's case seem to have rewritten the law of criminal breach of trust contained in sections 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code. A more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses to return, even then the provisions of section 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married woman demands her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view, in our opinion, is not only contradictory but what the High Court has said before regarding the applicability of s.27 of the and the nature of stridhan as referred to above is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to us to be inspired by a spirit of male chauvininism so as to exclude the husband from criminal lability merely because his wife has refused to live in her matrimonial 213 home. We are indeed surprised how could the High Court, functioning in a civilised and socialistic society such as ours, play havoc with judicial interpretation of an important branch of law. We shall now show how the final view taken by the High Court is clearly contradictory to what it has observed before. In paragraphs 22A, 23 and 24 of the judgment, the High Court observes as follows: "It must, therefore, be unreservedly stated that the law, as it stands today, visualises a complete and full ownership of her individual property by a Hindu wife and in this context the factum of marriage is of little or no relevance and she can own and possess property in the same manner as a Hindu male. Once it is held that a Hindu wife can own property in her own right, then it is purely a question of fact whether the dowry or the traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone or jointly to the couple. . For instance jewellery meant for the personal wearing of the bride, wedding apparel made to her measures specifically, cash amounts put into a fixed deposit ill a bank expressly in her E name; are obvious examples of dowry raising the strongest, if not conclusive presumption, of her separate owner ship in these articles. Once it is found as a fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere factum of marriage would alter any such property right and divest her of ownership either totally or partially. " In these paragraphs the High Court unequivocally and categorically expresses the view that a Hindu woman has complete and full ownership of her individual property and the factum of marriage is of no relevance to determine the nature of the property It also holds that articles like jewellery, wedding apparel and cash, etc., cannot alter any such property right. In view of this clear finding given by the High Court, how could it make a complete volte face by holding that these very properties after marriage become joint property of both the spouses. The High Court has not realised that the theory or philosophy of matrimonial home 214 propounded by it stands directly contradicted by its own observations referred to above. In paragraph 49 of the judgment, the High Court clearly finds that the mere use by the relations of the husband would not have the effect of passing the possession of the property to the Hindu undivided family and in this connection observes thus : Equally, the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness Of control and custody of the couple to undefined and unreasonable limits. Consequently, there is no reason to assume that the mere user or enjoyment of the dowry by other members of the house hold, would have the effect of passing the possession and control thereof jointly to the Hindu Undivided Family as such." Thus, these observations run counter and are totally inconsistent and irreconcilable with the view taken by the High Court in paragraph 41 where it has observed thus: "In the light of the above it would be farcical to assume that despite the factum of a marriage and a common matrimonial home the two spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion over the exclusive property of the other. . The matrimonial home so long as it subsist presumes a jointness of custody and possession by the spouses of their individual as also of their joint properties line. The inevitable presumption during the existence or the imminent break up of the matrimonial home there fore is one of joint possession of the spouses which might perhaps be dislodged by the special terms of a written contract. However, to be precise this presumption of joint possession properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate break up thereof. " At other places the High Court has observed thus: 215 "47. In view of the above, it would be equally untenable to hold that either the desertion or the expulsion of one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this pre requisite under S.405, Indian Penal Code. The joint custody and possession once established would thereafter. . exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents, which would preclude the essentials of entrustment or dominion over the property which form the cornerstone of criminality under s.405, Indian Penal Code. It cannot, therefore, be prim. facie presumed that these are exclusively the ownership of the wife or inevitably entrusted either to the husband or his close relations. As was noticed earlier, if an irate wife in a tantrums abandons the matrimonial home, such like property does not in the eye of law become entrusted to the parents in law or other close relations of the husband No such gullible presumption of entrustment or passing of the dominion of property can be raised in such a situation to come within the mischief of criminality for breach of trust. Entrustment or dominion over the property has to be unequivocally alleged and conclusively established by proof later. " The High Court had itself rightly spelt out the legal propositions that the pure and traditional presents given to a bride in a Hindu wedding may be divided into three categories, viz., (a) property intended for exclusive use of the bride, e. g., her personal jewellery, wearing apparel, etc. 216 (b) articles of dowry which may be for common use and enjoyment in the matrimonial home, and (c) articles given as presents to the husband or the parent in law and other members of his family. With regard to category (a) above, the High Court observed thus: "Similarly as regards the first category of articles meant for the exclusive use of the bride she would retain her pristine ownership therein irrespective or her entry and presence in the matrimonial home or that of her parents in law." The High Court thus accepts the well established rule of Hindu law of stridhan that that articles mentioned in category (a) are meant for the exclusive use of the bride and are her personal property. Unfortunately, however, with regard to category (c) while discussing the question of the rights of the bride to her exclusive property upon her entry in her matrimonial home, the High Court has wrongly applied what it had previously held with regard to category (a). In one breath the Judges say that the bride is entitled to retain her ownership irrespective of her entry and presence in the matrimonial home and in the other they come to the conclusion that the moment a married woman enters her matrimonial home, all her properties, including her exclusive property, become a joint property by a fiction of being placed in the custody of her husband or his relations. While we agree with the first part of the categories, as extracted above, we find it difficult to accept the other propositions adumbrated at a later stage of the judgment which have been fully discussed by us. We fail to understand how the High Court while finding that joint enjoyment does not divest a Hindu wife of her exclusive ownership still chose to treat it a joint property of the two spouses by the mere factum of joint user. The two views expressed by the High Court stand contradicted by its own findings and are wholly understandable. Thus, a detailed analysis of the judgment of the Punjab & Haryana High Court in Vinod Kumar 's case (supra) appears to us to be a mass of confusion and lacks both clarity and coherence. We are, therefore, unable 217 to uphold or support the view of the High Court that upon entering the matrimonial home the ownership of stridhan property becomes joint with her husband or his relations To this extent, therefore, we overrule this decision and hold that with regard to the stridhan property of a married woman, even if it is placed in the custody of her husband or in laws they would be deemed to be trustees and bound to return the same if and when demanded by her. The Supreme Court in a large number of cases has held that the fundamental core of the offence of criminal breach of trust. is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the Court though not its conclusion, are clearly established. That the view of the High Court is absolutely wrong would be clear from a number of authorities, some of which we would like to discuss here. In Chelloor Manaklal Narayan Ittiravi Nambudiri vs State of Travancore(1) this Court made the following observations: "As laid down in section 385, Cochin Penal Code (corresponding to section 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit." In Jaswantrai Manilal Akhaney vs, State of Bombay(2) Sinha, J. (as he then was) observed thus: "For an offence under section 409, Indian Penal Code, the first essential ingredient to be proved is that the property was entrusted But when section 405 which defines "criminal breach of trust speaks of a person being (1) (2) ; 218 in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain events. " In Akharbhai Nazorali vs Md. Hussain Bhai(1) the Madhya Pradesh High Court made the following observations: "It may be that the deduction and retention of the employees ' contribution is a trust created by virtue of that very fact, or by virtue of a provision in statute or statutory rule. But even apart from the latter, the mere fact of telling the employees that it is their contribution to the provident fund scheme and then making a deduction or recovery and retaining it, constitutes the offence of criminal breach of trust. This is so obvious that nothing more need be said about it." These observations were fully endorsed and approved by this Court in Harihar Prasad Dubey vs Tulsi Das Mundhra & Ors.(2 where the following observations were made: "This, in our opinion, is a correct statement of the position and we also agree with the learned Judge of the Madhya Pradesh High Court that "this so obvious that nothing more need be said about it We, therefore, think that the impugned order quashing the charge against the respondents is obviously wrong." In Basudeb Patra vs Kanai Lal Haldar(3) the Calcutta High Court observed thus: "Whereas the illustration to section 405 show equally clearly that the property comes into. (1) AIR 1961 M. P. 37: (2) ; (3) AIR 1949 Calcutta 207, 219 the possession of the accused either by an express entrustment or by some process placing the accused in a position of trust. . On the facts of the present case, which, as I have said, are not open to question at this stage, it is quite clear that the ornaments were handed over to the petitioner by the beneficial owner in the confidence that they would be returned to the beneficial owner in due time after having been used for the purpose for which they were handed over. If this is not an entrustment, if is impossible to conceive what can be an entrustment." (Emphasis ours) This ratio was fully approved by this Court in Velji Raghavji Patel vs State of Maharashtra(1) where the following observation were made: "In order to establish " entrustment of dominion" over property to an accused person the mere existence of that person 's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J. the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person. " In the case of State of Gujrat vs Jaswantlal Nathalal,(2) Hegde, J., speaking for the Court, observed thus: "The expression 'entrustment ' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. " In Sushil Kumar Gupta vs Joy Shanker Bhattacharjee(3) this Court observed thus: (1) ; (2) ; (3) ; 220 "The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it or converts it to his own use. The appellant 's manner of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust. " In the case of Superintendent & Remembrancer of Legal Affairs, West Bengal vs S.K. Roy (1) this Court held that for 'entrustment ' two things are necessary, viz., (l) the entrustment may arise in "any manner" whether or not it is fraudulent, and (2) the accused must have acquisition or dominion over the property. In Bhai Sher Jang Singh & Anr. vs Smt. Virinder Kaur (supra) the Punjab & Haryana High Court observed thus: It might be that some of the articles which were presented to her are for the use of both the spouses but the ornaments and things of the like nature are certainly meant for her and her alone. When she makes an allegation in the complaint that either her husband or her parents in law had converted to their own use the ornaments forming the part of her stridhan which she had entrusted to them, the Court has to give legal effect to such allegation and to assume that such ornaments had been made the subject matter of criminal breach of trust. It is settled law that even in a criminal complaint the complainant is under no obligation to plead the legal effect of the allegations made. All that is required is that the facts constituting a complaint should be specifically mentioned so that the Court may be able to perform its duty of punishing the accused under the appropriate provision of law if such allegations are made out. Further more, in a case like this a complaint cannot be quashed without giving the aggrieve wife an opportunity of proving that the ornaments had been given to her at the time of her marriage for her use only." (Emphasis supplied) We fully endorse this decision and hold that it lays down the correct law on the subject. (1) [1974] 4 S.C.C. 230. 221 There is a judgment of the Allahabad High Court which more or less takes the same view as the Punjab & Haryana High Court in Vinod Kumar 's case (supra). In Criminal Misc. Case No. 676 of 1981 (connected with) Criminal Misc. Case No. 2753 of 1981, Kailash Nath Agarwal & Ors. vs Prem Pal Agarwal & Anr., (decided on 22.12.1983), the Allahabad High Court, out of the three categories laid down by Punjab & Haryana High Court in Vinod Kumar 's case, accepted only the third category, viz., articles which constitute the individual property of the person for whose use it was given, and held that the rest of the property falling under categories (a) and (b) would be property exclusively meant for the use of the bride and once it was brought to the family home, the possession would be joint unless by an express written agreement there was an entrustment of the property of the bride to other members of the family. The Allahabad High Court thus also accepts the concept of the property being a joint property in the matrimonial home. By and large this decision toes the line of the view taken by the Punjab and Haryana High Court in Vinod Kumar 's case. Furthermore, the High Court has gravely erred in holding that the property could only be claimed by filing a properly constituted civil suit or in accordance with the provisions of the Dowry Prohibition Act or the as the case may be. This proposition, in our opinion, is wholly incorrect as conceded even by the Punjab , & Haryana High Court in Vinod Kumar 's case. There is an earlier decision of the Punjab & Haryana High Court which clearly holds that where there is a clear allegation of entrustment by the wife against the husband, he could be prosecuted by a criminal court on a complaint filed by the wife. In this connection, the Court in Avtar Singh & Anr. vs Kirpal Kaur Criminal Misc. No.2144 M of 1979 and Criminal Misc. No.2145 of 1979, decided on 16 8.79) made the following observations: "In my opinion, where certain thing is lying in trust with a person, offence of dishonest misappropriation would be committed on a date the demand for return of the entrusted articles is made and the same is declined. According to the complaint, the first demand for the return of the articles was made on January 27, 1976 and it was that date when the demand was declined. Hence, the offence of misappropriation of the dowry articles lying in trust was committed on January 27, 1976. " 222 We find ourselves in entire agreement with this decision and hold that this was correctly decided. This Court has pointed out more than once that the High Court should very sparingly exercise its discretion under section 482 Cr. In L.V. Jadhav vs Shankarrao Abasaheb Pawar & Ors.(l) (to which two of us were a party), this Court made the following observations: "The High Court, we cannot refrain from observing, might well have refused to invoke its inherent powers at the very threshold in order to quash the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen." In Smt. Nagawwa vs Veeranna Shivalingappa Konjalgi & Ors.(2) this Court observed as follows : "Thus, it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in suing process is capricious and arbitrary having been either on no evidence or on materials which are wholly irrelevant or inadmissible; and (1) AIR [1983]SC 1219. (2) [1976] Supp. SCR123 223 (4) where the complaint suffers from fundamental legal defects, such as, want of section, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and pro vide sufficient guidelines to indicate contingencies where the High Court can quash proceedings. " B The same principles would apply mutatis mutandis to a criminal complaint. We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court justified in quashing the complaint at that stage. It is well settled by a long course of this Court that for the purpose of exercising its power under section 482 Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of s.405 & 406, I.P.C. are not made out, the High Court would be justified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove her case. It is, of course, open to the accused at the trial to take whatever defence that were open to him but that stage had not yet come and therefore, the High Court was totally ill advised to speculate on the merits of the case at that stage and quash the proceedings. We have narrated the facts in detail in the earlier part of our judgment but we might again, even at the risk of repetition, indicate the bare facts which prima facie make out a clear case under s.406, IPC against the accused. The important portions of the complaint may be spelt out thus: (1) that all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage. (2) that the parents of the appellant spent Rs,75,000 on the marriage and dowry articles worth Rs.60,000 224 (inclusive of jewellery, wearing apparel, etc.) were given and entrusted to accused Nos.1 to 6 at the time of the Doli on 5.2.72, (3) that the articles entrusted to the accused were meant for the exclusive use of the appellant, (4) that the dowry articles were never given by the accused to the appellant even for her use and possession of the same was illegally, dishonestly and mala fidely retained by the accused in order to obtain a wrongful gain to themselves and wrongful loss to the appellant, (5) that on 11.12.1980 in the morning, the accused brought the appellant to Ludhiana in three clothes and refused to give the entrusted articles which were the stridhan of the appellant. Taking all the allegations made above, by no stretch of imagination can it be said that the allegations do not prima facie amount to an offence of criminal breach of trust against the respondent. Thus, there can be no room for doubt that all the facts stated in the complaint constitute an offence under section 406 IPC and the appellant cannot be denied the right to prove her case at the trial by per empting it at the very behest by the order passed by the High Court. We therefore, overrule the decisions of the Punjab & Haryana High Court in Vinod Kumar 's case. By way of post script we might add that we are indeed amazed to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property of a married women that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relatives. Thus, if the husband or his relatives misappropriate the same and refuse to hand it over to the wife and convert them to their own use and even though these facts are clearly alleged in a complaint for an offence under section 405/406 I.P.C., some courts take the complaint is not maintainable. Thus, even when clear and specific allegations are made in the complaint 225 that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague. The allegations of the complainant in this appeal and the appeal before the Allahabad and the Punjab & Haryana High Court show that it is not so but is a pure figment of the High Court 's imagination as a result of which the High Court completely shut their eyes to the fact that the husband could also be guilty under section 405/406 I P.C. in view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. We cannot countenance such a wrong and perverse approach. For the reasons given above, we are satisfied that as the complaint prima facie disclosed an offence of criminal breach of trust as defined in section 405/406 of the Indian Penal Code the High Court was not justified in quashing`the complaint. We, therefore, allow this appeal, set aside the judgment of the High Court and restore the complaint filed by the appellant and direct that the accused may be summoned, if not already summoned, and put on trial in accordance with law. VARADARAJAN, J. This criminal appeal by special leave is directed against the judgment of a learned Single Judge of the Punjab and Haryana High Court in Criminal Misc. Case No.4876 of 1981. The appellant, Pratibha Rani is the estranged wife of the first respondent Suraj Kumar who is the brother of the second respondent Krishan Lal. One Rattan Chand is the father of respondents 1 and 2 and two others Chander Kumar and Vishwinder Kumar. One Jugal Kumar is the brother in law of the first respondent. The appellant filed a criminal complaint for an offence under s.406 I.P.C. against her husband and his father and brothers and brother in law mentioned above in the Court of the Additional Chief Judicial Magistrate, Ludhiana, alleging that she was married to the first respondent at Ludhiana on 4. 2. 1972 according to the Hindu rites and customs. The material averments in the complaint 226 are these: The aforesaid persons, namely, father, brother and brother in law of the first respondent attended the marriage and demanded dowry from the appellant 's parents as consideration for the marriage. Accordingly, dowry articles mentioned in the list appended to the complaint, worth Rs. 60,000, in the form of golden articles, clothes and other valuables were given and entrusted to the respondents and four others mentioned in the complaint at Ludhiana time of 'doli ' on 5.2.1972 in the presence of Kapur Chand Jain and six others. The six respondents in the complaint started teasing, harassing and beating the appellant and they kept her without even food to extract more money from her parents. They turned out the appellant with her children in the beginning of 1977. After a great deal of persuasion and intervention by Panchayatdars, respondent 1 came to Ludhiana and took the appellant to his house after giving an undertaking in writing on 21. 6. 1977 not to misbehave with and maltreat the appellant her children. But after some time all the respondents in the complaint started maltreating the appellant and misbehaving with her. The articles mentioned in the list were never given by the respondents in the complaint to the appellant for her use but were retained by them illegally and with the dishonest intention of causing wrongful gain to themselves and wrongful loss to the appellant. The respondents in the complaint brought the appellant to Ludhiana at 4.30 a.m. On 11.12.1980 and left her near Kailash Cinema Chowk. They refused to give the articles mentioned in the list which are the stridhan of the appellant to her. When the appellant 's husband and his brother, Vishwinder Kumar, respondents 1 and 5 in the complaint, came to Ludhiana on 10.2.1981 to attend the proceeding started by the appellant under section 125 Cr. P.C., her parents persuaded them to return the articles entrusted to them at the time of the marriage but they flatly refused to comply with that demand. The articles have not been returned in spite of service of notice dated 17. 1981 on the first respondent. Thus the respondents in the complaint have dishonestly converted the articles belonging to the appellant for their use in violation of the direction of the appellant 's parents given at the time of the marriage to give the articles for the appellant 's use. The respondents in this appeal filed Criminal Misc. Case No.4876 of 1981 in the Punjab and Haryana High Court under s.482 of the Code of Criminal procedure for quashing the criminal 227 Proceedings and the complaint taken on file by the Additional Chief Judicial Magistrate, Ludhiana under section 406 I.P.C. and his order summoning them. Sukhdev Singh Kang, J. before whom the matter came up in the High Court relied strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi & Ors. vs State of PunJab and Ors.(l) and has observed in his judgment that the mere handing over of the articles of dowry of stridhana to the husband and other relations at the time of the marriage does not constitute entrustment in the sense of the word used in sections 405 and 406 I P.C. and that it does not amount to passing of dominion over those articles to them. The learned Judge has observed that there can be such an entrustment only by a subsequent conscious act of volition ` and that in the absence of such an act any allegations of breach of trust between the husband and wife cannot constitute an offence under s.406 I.P.C. The learned Judge has further observed that between the husband and wife there is always a jointness of control and possession of the properties of the spouse within the matrimonial home and that it goes against the very concept of entrustment of his or her property by one spouse to the other. In this view, he allowed the petition and quashed the proceeding arising out of the appellant 's complaint, observing that the allegations in the appellant 's complaint are similar to the one in Vinod Kumar 's case (supra) and that this case is fully covered by the ratio in that decision. The appellant has, therefore, come to this Court in appeal by special leave, impleading the petitioners before the High Court, who are only two out of the six respondents in the complaint, as respondents in this appeal. In a petition under s.482 Cr. P.C. for quashing a criminal complaint, the allegations made in the complaint have to be taken to be correct in order to find out whether they constitute the various ingredient of the offence alleged. In Nagawa Veernna Shivalingappa Konjalgi & Ors ) illustrations have been given of cases in which it may be safely held that an order of a Magistrate issuing process against an accused can be quashed or set aside. They are: (1) (2) 228 (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same, taken at their face value, make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are palpably absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects such as want of sanction, or absence of a complaint by a legally competent authority and the like." Article 126 in Mulla 's Hindu Law, Fifteenth Edition, describing what constitutes Stridhana reads: "property given or bequeathed to a Hindu female whether during maidenhood, coverture or widowhood by her parents and their relation or by her husband and his relations is stridhana according to all schools except that the Dayabhaga does not recognise immovable property given or bequeathed by husband to his wife as stridhana." Section 2 of the Dowry prohibition Act, 1961 defines "dowry" as meaning: "any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to the marriage, or by any other person to either party to the marriage or to any other person at or before of after the marriage in connection with the marriage of the said parties but does not include dower or mahr in the case of person to whom the Muslim personal law (Shariat) applies. " 229 In the present complaint of the wife against the husband and , his three brothers, father and brother in law, it is alleged that the marriage was performed at Ludhiana on 4.2.1972 according to Hindu rites and customs and that the father and three brothers and the brother in law of the husband attended the marriage and demanded dowry from the wife 's parents as consideration for the marriage and that accordingly dowry articles worth Rs.60,000, mentioned in the list attached to the complaint, consisting of gold articles, clothes and other valuables were given and entrusted to the husband and the other five respondents in the complaint, at the time of the 'doli ' at Ludhiana on 5.2. 1972 in the presence of Kapur Chand Jain and six other persons. For the purpose of the petition under s.482 Cr. P.C. those articles must be prima facie considered to be dowry or stridhana of the appellant wife. In Velji Raghavjl Patel vs State of Maharashtra,(1) it is observed: "Upon the plain reading of s.405, I.P.C. it is obvious that before a person can be said to have committed criminal breach of trust it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use or disposed of in violation of any direction of law etc. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of the kind which satisfies the requirements of section 405. In order to establish "entrustment of dominion" over property to an accused person the mere existence of that person 's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris C.J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person. If in the absence of such a a special agreement a partner receives money belonging to the partnership he cannot be said to have received it in a (1) ; 230 fiduciary capacity or in other words cannot be held to have been "entrusted" with dominion over partnership properties. " In State of Gujarat vs Jaswantlal Nathalal(1) it is observed: "Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the owner ship of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust see Jaswantrai Manilal Akhaney vs State of Bombay ; , 498 500. The expression 'entrustment ' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to anther, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. " In Sushil Kumar Gupta vs Joy Shankar Bhattacharyya(2), it is observed: "The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it, dishonestly misappropriates it, or converts it to his own use, or dishonestly uses it or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do. " In Superintendent Remembrancer of Legal Affairs, West Bengal vs S.K. Roy(8), it is observed: "There are, however, two distinct parts involved in the commission of the offence of criminal breach of trust. The first consists of the creation of an obligation in rela (1) ; (2) ; (3) [1974] 4 SCC,230. 231 tion to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. The most important ingredient of an offence under section 406, which is alleged by the wife against her husband, his three brothers, father and brother in law in her complaint in the present case is the entrustment of the dowry articles to the respondent in the complaint and ,their dishonest conversion thereof to their own use. There is no doubt an allegation in the complaint that these articles were given and entrusted to the respondents in the complaint at Ludhiana at the time of doll on 5 2 1972. Apart from the husband the other respondents in the complaint, as already stated, are his father, three brothers and brother in law. The articles were given for the use of the wife If so, could there be entrustment of the articles to such a number of diverse persons? In the background of what usually happens in Hindu marriages namely, placing of the articles presented to the bride in the presence of the elders and others assembled for the occasion and removal thereof after the function is over it has to be seen whether the allegation made in the complaint amounts to entrustment as required by law to make out an offence under section 406 l. This question has been considered in detail by a Full Bench of the Punjab and Haryana High Court in Vinod Kumar 's case (supra) after an analysis of several decision relating to the question. The learned Single Judge who has quashed the complaint in the present case on a petition of the husband and one of his brothers has heavily relied upon that Full Bench decision of his Court. What runs through the judgment of the learned Judges in that case is the concern of the Court for the peaceful and harmonious relationship between the spouses in a matrimonial home and a careful consideration of the question whether the ingredient of entrustment" exists in such cases. Therefore, it is necessary to note what has been observed in some of the paragraphs of the judgment to that case. The learned Chief justice speaking for the Bench has observed: "21. The present set of cases presents a sad spectacle of a house divided against itself, not merely in the biblical but in the literal sense, where wives are ranged against their husbands in acrimonious criminal prosecu 232 tions. The challenge on behalf of the husbands and their relations is focussed basically against the charge of breach of trust under Section 406 of the Indian Penal Code, levelled against them. Now the core of the argument on behalf of the petitioners is that the very concept of any entrustment or passing dominion over her property by the wife to the husband does not arise at all so long as the marriage subsists. The contention is that the very nature of the conjugal relationship itself would negative any such stand. On this premise it is contended that the basic pre requisite of the entrustment of property or dominion over property being lacking and non existent, no offence under Section 406, Indian renal Code, can possibly be made out. Therefore, it was argued that even accepting the first information reports as they do not and indeed cannot disclose a cognizable offence under Section 406. The petitioners, therefore, seek the quashing of the proceedings forthwith rather than being obliged to go through the tortuous mill of a police investigation or the consequent criminal trial." "25. Now apart from the principle, the most ancient texts of Hindu Law have always been categoric that dowry, as commonly understood, was stridhana and thus in the exclusive ownership of the bride." "26. Now once it is so held that articles of dowry and traditional presents given at the wedding are owned by the bride individually in her own right, then one fails to see how by the mere fact of her bringing the same into her husband 's or parents in law 's household, would forth with divest her of the ownership thereof. Separate and individual right to property of the wife therein cannot vanish into thin air the moment the threshold of the matrimonial home is crossed. To say that at that point of time she would cease to own such property altogether and the title therein would pass to her husband or in any case she would lose half of her right therein and become merely a joint owner of the same, with the family of her husband, does not appear to me as even remotely warranted either by the statute, principles or logic. No such marriage hazard against the wife can be implied in law. 233 Once she owns property exclusively, she would continue to hold and own it as such despite marriage and coverture and the factum of entering the matrimonial home. " "35. To conclude on this aspect, I find nothing in the codification of Hindu Law which in any way abolishes the concept of stridhana or the right of a Hindu wife to exclusive individual ownership. Indeed the resultant effect of such enactments is to put the Hindu female wholly at par with the Hindu male, if not at a higher pedestal with regard to individual ownership of the property. Now having held as above that Hindu wife can exclusively own and hold property including her dowry and traditional presents given at the wedding, the decks are cleared for tackling the core question posed at the very outset. What indeed is the true legal relationship of the husband and wife qua the property individually owned by each within the four walls of the matrimonial home? Does the wife stand entrusted with the property belonging to her husband individually and vice versa the husband stands entrusted with such property vesting in the exclusive ownership of the wife? It is the answer to this question which in essence would determine the attraction and applicability of Section 405, I.P.C betwixt the spouses. " "41. It bears 'repetition that the question herein has to be examined against the backdrop of the matrimonial home. What truly is the concept and essence thereof had come up for exhaustive consideration earlier before a Full Bench in Kailash Vati vs Ayodhia Parkash, ILR (1977) 1 Punj. & Har. 642 in the context of Hindu Law itself. It is, therefore, apt to refer to the authoritative enunciation therein: "To my mind, the idea of the matrimonial home appears to lie at the very centre of the concept of marriage in all civilised societies. It is indeed around it that generally the marriage tie revolves. The home epitomizes the finer nuances of the marital status. The bundle of indefinable rights and duties which 234 bind the husband and the wife can perhaps be best understood only in the context of their living together in the marital home The significance of the conjugal home in the marriage tie is indeed so patent that it would perhaps be wasteful to elaborate the 8 same at any great length. Indeed, the marital status and the conjugal home have been almost used as interchangeable terms." and "To summarise, I have attempted to show by reference to Anglo American Jurisprudence that the a concept of the marital home lies at the very centre of the idea of marriage in all civilised societies. Perhaps from primeval times when human beings lived sheltered in subterranean caves to the modern day when many live perched in flats in high rise apartments within the megapolis, the husband and the wife have always hankered for a place which may be their very own and which they may call a home. The innumerable mutual obligations and rights which stem from the living together of man and wife are undoubtedly beyond any precise definition and stand epitomized by the concept of the matrimonial home. " In the light of the above it would be farcical to assume that despite the factum of a marriage and a common matrimonial home the two Spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion over the exclusive property of the other. Rather it appears to me that the conjugal relationship and the existence of a matrimonial home automatically obviates any such hyper technicalities of an entrustment or dominion over property. It seems inapt to conceive the relationship as a day to day entrustment of the property of the husband to the custody of the wife or vice versa of the property of the wife to the husband. The matrimonial home so long as it subsists presumes a jointness of custody and possession by the spouses of their individual as also of their joint properties which can not be divided by any metaphorical line. In a homely metaphor in the context of the modern commercialised world it has been said that the marriage relationship is not one of 235 "I and You limited" but that of "We limited". Whilst the law undoubtedly now clearly recognises the individual ownership of property by the husband and wife, the necessary assumption in law, therefore, would be that during the existence or even the imminent break up the matrimonial home the concept of jaintness of possession therein seems to be a paramount one. The inevitable presumption during the existence or the imminent break up of the matrimonial home therefore is one of joint possession of the spouses which might perhaps be dislodged by the special terms of a written contract. However, to be precise this presumption of joint possession of properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate break up thereof." "42 43. The aforesaid position seems to be well borne out by a homely example which was rightly advanced by Mr. Bhandare on behalf of the petitioners. It was submitted that where a husband entrusts a specific amount to a wife for paying the school fees of their children but in a shopping spree she converts the same into sarees for herself, would she thereby become liable to breach of trust under Section 406, Indian Penal Code? The answer would obviously appear to be in the negative. Similarly where a husband misuses or even appropriates any property exclusively belonging to his wife within the matrimonial home he hardly comes within the ambit of criminality under Section 406, Indian Penal Code. Usually if not invariably where the husband is the bread winner he brings home the month 's wages and bands them over to the wife to be spent on the family. Would it be possible to say that if she use the same for herself and even against the consent of her husband she would be committing a criminal breach of trust? Obviously the answer would appear to be in the negative." "44. One may now turn precisely to the language of the Code itself. 405 is in the following terms: 236 "405. Criminal Breach of trust: Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in, which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other Person so to do, commits criminal breach of trust. " It is well setted that from a legal contract, or violation of direction of law, the entrustment of property or dominion over property are the per requisites for the applicability of the aforesaid provision. Once it is held as above, that property within the matrimonial home is in the joint possession and custody (despite rights of the individual ownership therein) then these very per requisites of entrustment or dominion over property cannot be easily satisfied betwixt the spouses inter se. It is indeed well settled that the very concept of the jointness of possession and custody would rule out the entrustment or dominion over property betwixt such joint custodians. In line with the concept of joint ownership where the possession of one joint owner is deemed to be the possession of all, the analogy,is to be extended that existence of the property within the matrimonial home rises a presumption that both the husband the wife are in possession thereof jointly and not that each one has entrusted his exclusive property to the custody of other. Subscribing to the latter view would be both overly hypertechnical and subversive of the very concept of marriage, the matrimonial home and the inevitable mutual trust which conjugality necessarily involves." "45. It is obviously because of the afore said legal position and this inarticulate peremise underlying the same that the learned counsel for the State and the complainants were unable to cite even a single case of conviction for criminal breach of trust betwixt husband and wife. Even when 237 pointedly asked, counsel conceded that despite the diligent research neither under the Indian Penal Code, nor under the analogous provisions of English law could they lay their hands for over a century and a half on any case where such a conviction had been upheld. This paucity, rather the total absence of precedent, indirectly buttresses the view I have expressed above on principle and the statutory provisions. An analogy in their context may well be drawn from the Law of Partnership. However, at the very outset I would notice that the position is not identical because partnership envisages a joint or co ownership of partnership property whereas in a conjugal relationship, as shown above, the spouses may well be the individual and exclusive owners of their respective properties. Nevertheless a marked similarity therein is that in partnership, co ownership necessarily connotes a jointness of possession of partnership properties whilst the same position inheres in the matrimonial home where the spouses are deemed to be jointly in possession and custody. Now, barring some ancient notes of discordance, it seems to be now well accepted that a partner cannot be held guilty of criminal breach of trust qua partnership property except by virtue of a special agreement either written or conclusively established. This had always been so in English law until it was specifically and altered by Statute 31 and 32 Victoria c. 116 and it is now governed by the special provisions of the same and subsequent legislation. In India, however, in the absence of any statutory change, the legal position would continue to be the same. This came up for pointed consideration before a Full Bench of five Judges in Bhuban Mohan Das vs Surendra Mohan Das, AIR 1951 Cal, 69. The relief sought therein of quashing the proceedings under section 406, Indian Penal Code, betwixt partners, was granted whilst holding that a charge under section 406, Indian Penal Code cannot be framed against a person who, according to the complainant, is a partner with him and is accused of the offence in respect of property belonging to them as partners. P.B. Mukharji, J. in his concurring judgment observed as under (Para 46) : "The question here is of much broader application and of a more fundamental nature. Its fundamen 238 tal nature is this that the very conception of partner ship precludes possibility of entrustment or dominion of the partnership property by one partner as against the other and, therefore, precludes any possible operation of the crime under Section 406 Penal Code, of criminal breach of trust by one partner against the other in respect of the partnership property." The aforesaid view has been expressly referred to and approved by their Lordships in Velji Raghavji vs State of Maharashtra,(1) with the following added observations (at pp. 1435 36) : ". Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. out it is not dominion of this kind which satisfies the requirements of S.405. In order to establish `entrustment of dominion ' over property to an accused person the mere existence of that person 's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J., the prosecution must establish that dominion over the assets or a particular asset of the partnership was, by a special agreement between the parties entrusted to the accused person. If in the absence of such a special agreement partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary capacity or in other words cannot be held to have been 'entrusted ' with dominion over partnership properties. " If that is so in the partnership relation it appears to me that it would be more so in the conjugal relationship with regard to the property within the matrimonial home." "46. . The nature, character and the incident of property within the matrimonial home, so long as the marriage subsists, seem to be such that except by a special written agreement, no entrustment or dominion etc. Of the individual property of the spouses to each other can b e presumed. Equally, herein the specific and ascertainable (I) A.T.R. 1965 S.C. 1433 239 property of each spouse within the matrimonial home can , be so equivocal and problematic as to oust the requisite mens rea with consequent criminality with regard thereto until the title to such property is clearly and specifically established. If the civil remedy seems to be adequate betwixt partners, during the subsistence of partnership there is no reason why it would not equally be so betwixt spouses in an existing matrimonial home during the subsistence of the conjugal relationship. As already referred to, apart from the civil remedy under the general law, added provisions exist in this context under S.27 of the buttressed by the procedural provisions of 0.32 A of the Code of Civil Procedure. " "47. In view of the above, it would be equally untenable to hold that either the desertion or the expulsion one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this pre requisite under S.405, Indian Penal Code. The joint custody and possession once established would thereafter exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents, which would preclude the essentials entrustment of dominion over the property which form the corner stone of criminality under S.405, Indian Penal Code." "49. Equally the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness of control and custody of the couple to undefined 240 and unreasonable limits. Consequently, there is no reason to assume that the mere use or enjoyment of dowry by other members of the household, would have the effect of passing the possession and control thereof Jointly to the Hindu Undivided Family a such. " "50. In the aforesaid context, pointed reference must be made to the opening word 'whoever ' of S.405 of the Code to highlight that the criminal law does not take ken of any proximity of relationship for the offence of breach of trust. "Whoever" would include within its ambit the parents in law, the brothers in law, sisters in law (and other close relations of the husband) of a Hindu wife provided that the basic ingredients of entrustment or passing of dominion over her separate individual property stands fully satisfied. Apart from the peculiarity of the conjugal relationship and the consequent sharing of the matrimonial home, the existence of the blood relationship of the parties does not seem to be relevant for the applicability or otherwise of S.406 of the Code, Since the other members of the Hindu Joint family, to which the husband may belong, would not be covered by the presumption of jointness of custody v and possession of their individual properties by the spouses alone, they cannot by the mere fact of kinship be excluded from the scope of sections 405 and 406 of the Code. " "56. To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home cannotes a jointness of possession and custody by the spouses even with regard to the movable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any entrustment or passing of dominion over property day to day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break up. There fore, the very essential pre requisites and the core ingredients of the offence under S.406 of the Penal Code would be lacking in a charge of criminal breach of trust of 241 property by one spouse against the other. Inevitably, therefore, the purported allegations of breach of trust betwixt husband and wife so long as the conjugal relation ship lasts and the matrimonial home subsists, cannot constitute an offence under Section 406 of the Indian Penal Code, subject to any special written agreement. Equally, as against the close relations of the husband, no facile presumption of entrustment and dominion over the dowry can be raised prims facie and this inevitably has to be by a subsequent conscious act of volition which must be specifically alleged and conclusively established by proof. Lastly, because of the definition in section 2 of the Dowry Prohibition Act, the offences under the said Act cannot come within the ambit of section 406 of the Indian Penal Code as these cannot stand together on the same set of facts." "57. Hence the answer (to the question) posed at the very outset is rendered in the affirmative. The bond of matrimony, therefore, bar the spectre of the criminal breach of trust qua the property of the spouses at the very threshold of the matrimonial home. It cannot enter its hallowed precincts except through the back door of a special written contract to the contrary with regard to such property. " I have extracted above several passages from the Judgment of the learned judges of the Full Bench in Vinod Kumar 's case (supra) since I share their view and concern for peace and harmony in matrimonial homes and feel that the learned Single Judge who has quashed the wife 's complaint in the present case was justified in relying heavily upon that judgment of the Full Bench. In these circumstances, 1 think that in the absence of a separate agreement and specific entrustment by the wife to the husband and of his relations and vice versa of the property of the husband to the wife and or her relation, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of s.406 I.P.C. The offense of criminal breach of trust is cognizable and non bailable and punishable with imprisonment for a term of three years or 242 with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well wishers and patching up their differences. Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife or the husband would have disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. It is seen from para 45 of the judgment in Vinod Kumar 's case (supra) that in spite of diligent research no instance of any case of successful prosecution of the husband of wife at the instance of the wife or the husband could be brought to the notice of the learned Judges. It may be stated that none was brought to the notice of this Court either in the course of the arguments in this appeal. This would show that the spouses had not lightly rushed in the past to criminal courts with complaints of criminal breach of trust against the other spouses though in the day to day life there must have been numerous instances where the wife had used the property or cash of the husband for purposes different from the one for which they were given by the husband to be applied by the wife and vice versa. I am anxious that no light hearted change should be brought about in the position and that the minimum requirement in such cases is a specific separate agreement whereby the property of the wife to husband was entrusted to the husband or wife and or his or her close relations. In the absence of such a specific separate agreement in the complaint, in the present case, I am of the opinion that the learned Single Judge was perfectly justified in following the decision of the Full Bench in Vinod Kumar s case (supra) and quashing the wife 's complaint filed against the husband and his close relations. I would, therefore, dismiss the appeal. In view of the majority decision, this appeal is allowed, the judgment of the High Court is set aside and the complaint filed by the appellant is restored. The accused may now be summoned and put on trial in accordance with law.

The appellant Pratibha Rani, the estranged wife of the first respondent Suraj Kumar, filed a criminal complaint against her husband, his father, his three brothers and a brother in law in the court of the Additional Chief Judicial Magistrate, Ludhiana, alleging; (i) that she was married to the first respondent at Ludhiana on 4 2. 1972 according to Hindu rites and customs; (ii) that the aforesaid persons, namely, father, brothers and brother in law of the first respondent attended the marriage and demanded dowry from the appellants ' parents as consideration for the marriage; (iii) that the dowry articles mentioned in the list worth Rs 60,000 in the form of gold ornaments, clothes and other valuables were given and entrusted to the respondents and four others at Ludhiana at the time of 'doli ' on 5. 2. 1972 in the presence of Kapur Chand Jain and six others; (iv) that all the six respondents, from the time of marriage started teasing, harassing and beating her and they kept her without even food to extract more money from her parents; (v) that they turned out the appellant with her children in the beginnings of 1977 (vi) that after a great deal of persuasion and intervention by Panchayatdars, respondent No. I came 192 to Ludhiana and took her to his house, after giving an undertaking in writing on 21. 6. 1977 not to misbehave with and not to maltreat the appellant and her children; (vii) that after some time all the respondents in the Complaint not only started again maltreating the appellant and misbehaving with her, but also brought the appellant at 4.30 a.m. On 11.12.80 and left her near Kailash Cinema Chowk, (viii) that the articles (the stridhana) mentioned in the list appended to the complaint were never given by the respondents to the appellant for her use but were retained by them illegally and with the dishonest intention of causing wrongful gain to themselves and wrongful loss to the appellant y (ix) that when the appellants ' husband and his brother, Vishwinder Kumar, respondent 1 and 5 in the complaint, came to Ludhiana on 10 2.81 to attend the proceedings started by the appellant under section 125 Criminal Penal Code her parents persuaded them to return the articles entrusted to them at the time of the marriage but they flatly refused to comply with that demand; (x) that the articles have not been returned in spite of service of notice dated 17.12.81 on the first respondent; (xi) that the respondents in the complaint have dishonestly, thus, converted the articles belonging to the appellant for their use in violation of the instructions of the appellants ' parents given at the time of the marriage to give the articles for the appellants ' use and that (xii) they individually and jointly committed the offences under sections 405 and 406 Indian Penal Code. Thereupon respondent No. 1 filed Criminal Misc. Application No. 4876 of 1981 in the Punjab and Haryana High Court under section 482 of the Code of Criminal Procedure for quashing the criminal proceedings and the complaint taken on file by the Additional Chief Judicial Magistrate, Ludhiana under section 406 IPC and his order summoning them. A Learned Single Judge of the High Court relying strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi & Ors. vs State of Punjab & Ors. reported in allowed the petition and quashed the proceedings arising out of the appellants ' complaint, observing that the allegations in the appellants ' complaint are similar to the one in that case and therefore, fully covered by the ratio in that decision. Hence the appeal by special leave. Allowing the appeal, the Court, ^ HELD; (Per E.lzal Ali, J.) (on behalf of Sabyasachi Mukharji, J. and himself) 1.1 The stridhan property of a married woman cannot acquire the character of a joint property of both the spouses as soon as she enters her matrimonial home so as to eliminate the application of section 406 IPC. The position of stridhan of a Hindu married woman 's property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes She may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. The entrustment to the husband of the stridhan property is just like something which the wife keeps in a bank and can withdraw any amount when ever she likes without any hitch or hindrance. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as 193 in famine, illness or the like, the husband can utilize it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt. [206F; 201D E] Suraj Kumar & Anr. vs Pratibha Rani, Criminal Misc. Petition No. 4876 of 1981 Punjab & Haryana High Court reversed. Vinod Kumar Sethi & Ors. vs State of Punjab & Anr. ; Surinder Mohan vs Smt Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Vati vs Ayodhya Parkash, ILR (1977) 1 Punjab & Haryana 642 (FB) overruled. 1.2 A perusal of the allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to the n in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible. A perusal of the list reveals that so far as the jewellery and clothes, blouses, nighties and gowns are concerned they could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that the [ornaments and sarees and other articles mentioned above could also be used by the husband. If, therefore, despite demands these articles were refused to be returned to the wife by the husband and his parents, it amounted to an offence of criminal breach of trust. All the ingredients of an offence under section 405 IPC were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complaint should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction by the High Court under section 482 Cr. P. is totally unwarranted by law. [203A; 204B D; 203B C] 2.1 Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. The mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. In the case of stridhan properly also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under sections 405 and 406 IPC. Just as a newly married woman living in the same house and under the same roof cannot be expected to keep her personal property or belongings like jewellery, clothing, etc. under her own lock and key thus showing a spirit of distrust to the husband at the very behest, a husband cannot be permitted to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, even if the personal property of the wife is jointly kept it would be deemed to be expressly or impleedly kept in the custody of the husband and i f he dishonestly misappropriates or refuses 194 to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. [207E G; 208B Cl 2.2 It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two remedies are under civil law and the other under criminal law are not mutually exclusive but coextensive and essentially differ in their content and consequences. Therefore, it cannot be said that, if the husband dishonestly misappropriates the stridhan property of his wife though kept in his custody, that would not par prosecution under section 406 IPC or render the ingredients of section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband no action against him can be taken as no offence is committed is to override and distort the real intent of law. [208E F] 3.1 Neither section 27 of the nor section 14 of the Hindu Succession Act, go to the extent of providing that the claim of a woman on the basis of stridhan is completely abolished, or that a remedy under the criminal law for breach of trust is taken away. All that the two sections, provide is that if the husband refuses to return the stridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit. [204G H; 205A] 3.2 Section 27 of the merely provides for an alternate remedy and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that these two Acts take away the stridhan right of a woman at the most these Acts merely modify the concept of stridhan. [205C D] Bhai Sher Jang Singh & Anr. vs Smt. Virinder Kaur, approved. Surinder Mohan vs Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212 over ruled. 4.1 It is neither appropriate nor apposite to import the concept of partner ship of husband and wife for the simple reason that the concept of partnership is entirely different from that of the husbands ' keeping the stridhan in his custody. From the definition of the partnership in section 4 of the Indian Partnership Act, it is manifest that in a partnership the wife must by some clear and specific act indicate that the stridhan which has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any, would have to be shared by both. A pure and simple act of entrustment of the stridhan to the husband does not attract any of the essential ingredients of a partnership as defined in the Partnership Act. When the essential conditions of a partnership do not exist. the mere factum of entrustment of stridhan would not constitute any co ownership or legal partnership, There is also no 195 question of the wife, constituting herself a partner with her husband merely by allowing him to keep the article or money in his custody. Further, in this case, there is, neither any pleading nor any allegation that after her marriage, the appellant transferred all her properties to her husband for carrying on a partnership business in accordance with the provisions of the Partnership Act. Therefore, a criminal prosecution under section 406 IPC is maintainable. [209E; 210B C; G; 211C D] Vinod Kumar Sethi & Ors. vs State of Punjab & Anr. ; Surinder Mohan etc. V. Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Vati vs Ayodhya Parkash, ILR (1973) 1 Punjab & Haryana, P 612; Kailash Nath Agarwal & Ors. vs Prem Pal Agarwal & Anr. case No. 676 of 1981 connected with Crl. case No. 2753 of 1981 decided on 22.12.83 Allahabad High Court overruled. In the instant case, however, there is neither any allegation nor anything in the complaint to show that when the wife entered her matrimonial home she had entrusted property to her husband so as to make him part owner of the same. Therefore, the question Or the husband having dominion over the property does not at all arise. In fact the wife has nothing to do With the partnership, if any and the husband is a pure and simple custodian of the property and cannot use the Same for any purposed without her consent. [210E F] The concept of stridhan property of a married woman becoming joint property of both the spouses as soon as she enters her matrimonial home and continues to be so until she remains there or even if there is a break in the matrimonial alliance, is in direct contravention of Hindu law of Sadayika which has been administered since more than a century by High Court, Privy Council and also the Supreme Court. [212C D] 4.2 The Full Bench decision in Vinod Kumar 's case would not only render the provisions of section 406 IPC inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan of his wife, but also be in direct contravention of a long course of decisions of Supreme Court on the ingredients of section 405 IPC. [212A B] By a pure and simple figment of the fertile imaginations, the Judges in the Vinod Kamat 's case seem to have rewritten the law of criminal breach of trust contained in sections 405 and 406 IPC so as to carve out an imaginary exception to the application of the Penal Code more tragic consequence of the view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses lo return even then the provisions of section 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married demands her stridhan property from her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the 196 Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view is not only contradictory but what the High Court has said before regarding the applicability of section 27 of the and the nature of stridhan is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to be inspired by a spirit of male chauvinism so as to exclude the husband from criminal liability merely because his wife has refused to live in her matrimonial home. The High Court, functioning in a civilised and socialistic society such as ours cannot play such a havoc with judicial interpretation of an important branch of law. The High Court cannot make a complete volte face by holding that these very properties after marriage become joint property of both the spouses. The High Court has not realised that the theory or philosophy of matrimonial home propounded by it stands directly contradicted by its own observations. [212D H; 213A; H; 214A] 4.3 The fundamental core of the offence of criminal breach of trust is that a property must be entrusted and the dominion of the property should be given to the trustee. In the present case, all these conditions, even according to the findings of the High Court though not its conclusions are clearly established. [217C] Chelloor Manaklal Narayan Ittiravi Nambudiri vs State of Travancore; AIR 1953 SC478; Jaswantrai Manilal Akhaney vs State of Bombay; , ; State of Gujarat vs Jaswantlal Nathalal ; ; Sushil Kumar Gupta vs Joy Shankar Bhattacharjee; , ; Superintendent [4] SCC 230 referred to. Harihar Prasad Dubey v Tulsi Das Mundhra & Ors. AIR 1949 Calcutta 207; Akharbhai Nasarali vs Md. Hussain Bhai AIR 1961 MP 37; Basudeb Patra vs Kana. Lal Haldar, AIR 1949 Calcutta 207, Bhai Sher Jang Singh and Anr. vs Smt. Virinder Kaur, 1979 Crl. L J. 493; Avtar Singh and Anr vs Kirpal Kaur, Crl. No. 2144 of 1979 and Cr l Misc. No. 2145 of 1979 approved. Vinod Kumar Sethi & Ors. v State of Punjab and Anr. ATR 1982 Punjab 372; Surinder Mohan etc. vs Smt. Kiran Saini, 1977 Chandigarh Law Reporter 212; Kailash Nath Agarwal & Ors vs Prem Pal Agarwal & Anr. Case No. 676 of 1981 connected with Crl. case No. 2753 of 1981, Allahabad High Court: Kailash Vati vs Ayodhya Parkash, ILR (1977) 1 Punjab d: Haryana 642 overruled. For the purpose of exercising its power under section 482 Cr. PC to quash a First Information Report or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and the ingredients of section 405 and 406 IPC are not made out, the High Court would be justified in quashing the proceedings. In the present case, the allegations are both clear, specific and unambiguous and 197 therefore, the complaint should have been given a chance to prove her case. It is, of course open to the accused at the trial to take whatever defences that were open to him or her but that stage had not yet come and therefore, the High Court was totally ill advised to speculate on the merits of the case at that stage and quash the proceedings. Since all the facts stated in the complaint constituted an offence under section 406 IPC, the appellant cannot be denied the right to prove her case at the trial by pre empting it the very behest by the order passed by the High Court. [223D H; 224D E ] Vinod Kumar Sethi & Ors. vs State of Punjab & Anr, , over led. L.V. Jadhav vs Shakarrao Abasaheb Pawar & Ors. AIR 1983 SC 1219; Smt. Nagawa vs Veeranna Shivalingappa Konjalgi & ors. [1976] Supp. SCR 123 applied. OBSERVATION (It is surprising to find that so deeply drowned and inherently engrossed are some of the High Courts in the concept of matrimonial home qua the stridhan property of a married woman that they simply refuse to believe that such properties are meant for the exclusive use of the wife and could also be legally entrusted to the husband or his relations. Thus, if the husband or his relations misappropriate the same and refuse to hand it over to the wife and convert them to their own use and even though these facts arc clearly alleged in a complaint for an offence under section 405/406 IPC, some courts take the view that the complaint is not maintainable. Thus even when clear and specific allegations are made in the complaint that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague, and completely shut their eyes to the fact that the husband could also be guilty under section 405/406 IPC in view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and even if it is so, no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. The Supreme Court cannot continuance such a wrong and perverse approach.) [224G H, 225A C] Per A. Varadarajan, J. (dissenting) 1.1 In the absence of a separate agreement and specific entrustment by the wife to the husband and or his relations and vice versa of the property of the husband to the wife and or her relation, it would not be possible to draw an inference of entrustment of custody or dominion over the property of one spouse to the other and his or her relations so as to attract the stringent provisions of section 406 IPC. The offence of criminal break of trust is cognizable and non bailable and punishable with imprisonment for a term of three years or with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and well wishers and patching up their differences. [241G H; 242A] 198 1.2 Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife of the husband would have disastrous effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. [242B]

: Criminal Appeal No. 282 of 1971. (Appeal by Special Leave from the Judgment and Order dated 12 4 1971 of the Allahabad High Court in Criminal Appeal No. 1909/68). S.K. Mehta, for the appellants. D.P. Uniyal and O.P. Rana, for the respondent, 233 R.L. Kohli, for the Intervener. The Judgment of the Court was delivered by FAZAL ALI, J. It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normal ly visited with the onerous penalty of law. This is what appears to have happened in this appeal by special leave in which the appellants appear to have got themselves involved in an armed conflict with the prosecution party resulting in the death of the deceased, injuries to some of the prosecu tion witnesses and injuries to three of the accused them selves. The prosecution case in short is that on July 18, 1966, at about 7 30 to 8 00 in the morning when Ram Khelawan and his companions were removing weeds from the paddy crop sown by them in the field which included a portion of the Chak Road which had recently been encroached by the complainants ' party and amalgamated with their fields, Ram Ratan and Ram Samujh armed with lathis and Din Bandhu and Ram Sajiwan carrying a ballam and Biroo respectively entered the field of Ram Khelawan with their bullocks and insited on passing through the field along with their bullocks, which according to them was a public road. The complainants protested against the highhanded action of the party of the accused on which Ram Ratan exhorted his companions to assault the deceased Murli as a consequence of which Ram Sajiwan as saulted Murli in the abdomen with his Biroo as a result of which MurIi sustained serious injuries and fell down in the field and ultimately succumbed to the injuries. The other members of the complainants ' party, namely, Ram Khela wan Manohar Sarabjit, Mewa Lal and Satrohan were also assaulted by Ram Ratan and his party. Soon after the occurrence Rameshwar Pathak, a police officer, who happened to be present at the spot recorded the statement of P.W. 1 Ram Khelawan which was treated as the F.I.R. and after conducting the usual investigation submitted a chargesheet against all the accused persons who were put on trial before the Sessions Judge, Barabanki. The Learned Sessions Judge acquitted the accused Din Bandhu and convicted the appellant Ram Sajiwan under section 302 I.P.C. Ram Ratan and Ram Samujh were convicted under sections 326/34 I.P.C. and sentenced to eight years ' rigorous imprisonment. Three appellants Ram Ratan, Ram Sajiwan and Ram Samujh were further convicted under section 447 I.P.C. to three months ' rigorous imprisonment and under sections 324/34 I.P.C. to two years 'rigorous imprison ment under each of the two counts. and under sections 323/34 I.P.C. to six months ' rigorous imprisonment and ordered that all the sentences shall run concurrently. The accused persons filed an appeal before the High Court of Allahabad which was also dismissed and thereafter they obtained spe cial leave of this Court and hence this appeal before us. 234 The defence of the accused was that shortly before the occurrence proceedings for consolidation of holdings had taken place in the village as a result of which the Revenue authorities provided a Chak Road which passed through plot Nos. 853, 854, 864, 823 and 887. This Chak Road was meant to boa public road to enable the. residents of the village to pass through this road with their cattle. This road happened to be adjacent to the field of Ram Khelawan P.W. 1 and he took undue advantage of the proximity of the road and encroached upon the same and amalgamated it with his cultiv able field. The accused persons wanted t0 assert their lawful right over the Chak Road and it was the prosecution party which was the aggressor and started assaulting the accused as a result of which three persons on the side of the accused received serious injuries. The accused, there fore, assaulted the deceased in self defence. Even other wise, the accused pleaded innocence. Both the courts below have come to a concurrent finding of fact that the occurrence took place as alleged by the prosecution and that the accused persons were the aggressors and had opened the assault on the deceased. The Trial Court has also the High Court have concurrently found, on a full and complete appreciation of the evidence., that although the place of occurrence was a part of the Chak Road, yet the complainant Ram Khelawan had encroached on the same and some time before the occurrence had brought the land under culti vation over which he had grown paddy crop. The evidence of the Sub Inspector who visited the spot clearly shows that he found paddy crop grown at the height of 4 or 6 digits. The learned counsel for the appellants has not been able to show that the concurrent finding of fact arrived at by the Ses sions Judge and the High Court on this point is in any way not borne out by the evidence. The learned counsel for the appellants submitted two points before us. In the first place, he submitted that the finding of the High Court impliedly shows that the accused were trying to, assert their lawful right over the Chak Road which was wrongfully occupied by the complainant and was in possession of the villagers. The accused, therefore, had every right to throw out the complainants ' party who were trespassers by force. The accused were, therefore, acting in the exercise of their right of private defence of person and property and were. justified in causing the death of the deceased, particularly in view of the serious injuries received by three of the party of the accused. Reliance was placed, particularly on the Injury Reports of Ram Samujh, Harnam and Ram Ratan. It appears that Ram Samujh received two injuries one being a lacerated wound 3 cm X 3/4 cm X 1 cm deep on the posterior part of head and a contusion on the right side of the head, while Harnam had four contusions and Ram Ratan had two. lacerated wounds in the region of the ear, one punctured wound in the left forearm and one contusion. It was submitted that in view of the serious injuries, some of which were inflicted by sharp cutting weapons, it would not be said that the appellants had exceeded their right of private defence. The argument is no doubt attractive, but on closer scrutiny we find that it is not tenable. In view of the clear finding of the High Court and the Sessions Judge that the land in dispute was in the settled possession of the complainant Ram Khelawan 235 who rightly or wrongly encroached upon the road and convert ed it into his cultivable land the accused had no right to throw the complainant by force. In fact the Sessions Judge found thus: "There is also no doubt that from the evidence on record adduced by the prosecution and the defence, it appears that the Chak Road, if any was existing, was encroached upon by Ram Khelawan and his family members. So far as the question whether the Chak Road was encroached upon, there was hardly any discrepancy between the statements of the prosecution witnesses and the defence. It has been admitted by Ram Khelawan P.W. 1 that before the occurrence Ram Rattan and several other villagers whose Chaks are situated in the east of Ram Khelawan Chak used to say that he had encroached upon the Chak Road, and that in the absence of that Chak Road, from where they should take their bullocks to their Chaks. . . .From these admissions also it is amply proved that in fact there was a Chak Road but it was later encroached upon by the complainant Ram Khelawan. " The High Court also found: "It is thus clear that assuming that the consolidation authorities had formed a Chak Road adjoining the Chak of Ram KheIawan, it had been taken possession of by Ram Khelawan included in his Chak ploughed by him and paddy crop had been sown therein. It is thus obvi ous that Ram Khelawan had established his possession over the land where the incident took place and had been in peaceful possession thereof for 2 to 3 weeks at least before the occurrence took place. " It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accom plished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occur rence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true owner. While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet, as this Court has indicated recently, one of the tests is to find out who had grown the crop on the land in dispute. In Puran Singh & Others vs State 236 of Punjab(1), this matter was comprehensively considered and on of us (Fazal Ali, J.) who spoke for the Court observed as follows: "We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to. when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the posses sion of a trespasser must be effective, undis turbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the word 'settled possession ' nor is it a ritualistic formula which can be confined in a strait jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner . . . Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes: (i) that the trespasser must be in actual physical possession of property over a sufficiently long period; (ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus pros sendie. The nature of possession of the tres passer would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) that one of the usual tests to determine the quality of settled possessions, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true Owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the tres passer will have a right of private defence and the true owner will have no right of private defence. " In this case there is a clear finding of the High Court and the Sessions Judge that the complainant Ram Khelawan had encroached upon the land in dispute, had converted it into culturable field and had grown paddy crop which the com plainants ' party was trying to weed out on the day when the occurrence took place. In these circumstances, therefore, the complainant was undoubtedly in posses (1) [1975] Supp. S.C.R. 299. 237 sion of the land and the appellants had no right to commit trespass on the land and engage the complainants in a seri ous fight. As the complainant Ram Khelawan was in peaceful possession of the land to the knowledge of the appellants, he was in law entitled to defend his possession. The com plainant, therefore, was fully justified in protesting to the accused when they tried to pass through his field and caused damage to the paddy crop by forcibly taking the bullocks through the field. In these circumstances the appellants who were undoubtedly the aggressors and had opened the. assault could not claim any right of private defence either of person or property. For these reasons, therefore, we agree with the finding of the High Court that the accused are not entitled to claim the right of private defence, nor can it be said that in causing the murderous assault on the deceased they had merely exercised their right of private defence of property. It is true that the appellants were trying to exercise their lawful right over a portion of the land which had been left apart as a public road for the use of villagers by the Revenue authorities, but as a complaint had already been filed before the Pan chayat the appellant should have allowed the law to take its course instead of taking the law in their own hands by making an armed trespass into the property. However, there can be no doubt that there was no common intention on the part of all the accused to cause the death of the deceased Murli or to cause grievous injuries to him which was an individual act of the appellant Ram Sajiwan. The other appellants Ram Rattan and Ram Samujh, therefore, cannot be convicted under sections 325/34 I.P.C. Another point canvassed before us by counsel for the appellant was that although three persons on the side of the accused had sustained serious injuries, the prosecution has not given any explanation which shows that the origin of the prosecution is shrouded in mystery. This contention is also without any substance. The evidence of the eye witnesses examined by the prosecution clearly shows that some of them were also armed with lathis and sharp cutting weapons, and they have also stated that they wielded their weapons when the accused attached the complainants ' party and that this was done in selfdefence. In view of the injuries on the person of the deceased and the prosecution witnesses, name ly, Manohar, Sarabjit, Mewa Lal, Satrohan and Ram Khelawan, there can be No. doubt that there was a mutual fight. Thus in the instant case, the prosecution has given sufficient explanation for the injuries sustained by the accused per sons and the prosecution case cannot be thrown out on this ground. Lastly it was submitted that so far as Ram Sajiwan was concerned the evidence given by the eye witnesses regarding the manner of the assault is inconsistent with the medical evidence. In this connection reliance was placed by counsel for the: appellants on the evidence of the Doctor which is to the effect that the injury on the deceased Mufti was undoubtedly caused by a Biroo but it could have been caused only if the Biroo after being struck in the abdomen was rotated. Much capital has been made out of this admission made by the Doctor,but on a close scrutiny we find that this circumstance is not sufficient 238 to put the prosecution out of court. There is clear and consistent evidence of the eye witnesses that the deceased had been assaulted in the abdomen and this fact has been accepted by the two courts concurrently that the deceased Murli was assaulted by Ram Sajiwan with a Biroo. The medi cal evidence clearly shows that the deceased had an injury in the abdomen which could be caused by a Biroo. The exact manner in which the Biroo was pierced in the abdomen of the deceased could not have been observed by the witnesses, particularly in view of the mutual fight. Since the injury could be caused if the Biroo was rotated after being pierced, it must be presumed in the circumstances that the assailant must have rotated the Biroo after having pierced it in the abdomen of the deceased, otherwise the injuries could not have been caused to the deceased. In these cir cumstances, therefore, we are not able to agree with counsel for the appellants that the assault on the deceased by Ram Sajiwan is in any way inconsistent with the medical evi dence. For these reasons, therefore, we find ourselves in agreement with the High Court that the prosecution has proved its case against this accused beyond reasonable doubt. The injuries caused by the other appellants on the person of Manohar, Sarabjit, Mewa Lal, Satrohan and Ram Khelawan have been proved by the eye witness whose evidence has been accepted by the High Court as also the Sessions Judge. We see no reason to interfere with the assessment of the evidence by the two Courts. The only point that remains for consideration is as to the exact offence committed by the appellants. In the first place, once it is held that the appellants had no right of private defence of person of property, appellant Ram Sajiwan cannot escape conviction under section 302 I.P.C. simpliciter, because the injury caused by him to the deceased was suffi cient to cause the death of the deceased. The appellant Ram Sajiwan was rightly convicted under section 302 I.P.C. and as the minimum sentence is life imprisonment we cannot do anything about the sentence either. We would like to observe, howev er, that the facts, of the case do raise some amount of sympathy for the accused Ram Sajiwan who was really trying to assert his lawful right against the complainant who was a trespasser. The appellant was fighting for a just and righteous cause though not in a strictly lawful manner. If the appellant had succeeded he would have been able to secure the right over the Chak Road which was left by the Revenue authorities for the benefit of the villagers. These considerations, therefore, may weigh with the Government for considering the question of remitting a portion of the sentence imposed on the appellant Ram Sajiwan and the learned counsel appearing for the State has assured us that these considerations would be conveyed to the Government. So far as the other appellants are concerned, as the object of the appellants was merely to assert a supposed or bona fide claim of right, it cannot be said that they had any common intention to cause grievous hurt. In these circumstances, therefore, the charge under sections 326/34 I.P.C. must necessarily fall. The conviction under section 447 I.P.C. as also that under sections 324/34 and 323/34 I.P.C. cannot be interfered with in view of the evidence of assault made by the appellants on the 239 witnesses Ram Khelawan, Manohar, Sarabjit, Mewa Lal, Satro han with their respective weapons. Having regard to the fact that the appellants made a concerted attack either with a Biroo or lathis respectively on the aforesaid prosecution witnesses they had undoubtedly a common intention to cause simple hurt to these witnesses. For these reasons, therefore, we would affirm the con victions and sentences passed on the appellant Ram Sajiwan but allow the appeal of the other appellants viz. Ram Rattan and Ram Samujh to this extent that their convictions and sentences under sections 326/34 I.P.C. are set aside, but their convictions and sentences under sections 324/34, 323/34 and 447 I.P.C. will stand. If the appellants have already served out their sentences they may be released. M. R. Appeal dismissed.

The complainant Ram Khelawan had illegally encroached upon a portion of a public road and grown a paddy crop on it. A complaint against him was pending before the Panchay at. He was in peaceful possession of the land to the knowl edge of the appellants who nevertheless went armed and tried to exercise their right over the public road, by passing through the field with their cattle and thereby damaging the crop. The complainants protested and a fight ensued, as a result of which, one of the complainants ' party died and injuries were received by both sides. The appellants plead ed the right of private defence of property and person, which they had exceeded, but were concurrently found guilty by both, the Trial Court and the High Court. Dismissing the appeal the Court, HELD: (1) A true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under, the law. [235 F G, 236 A] Puran Singh & Ors. vs State of Punjab [1975] Supp. S.C.R. 299, applied. The Court further observed: It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normally visited with the onerous penalty of law. [233 A B] (2) The complainant Ram Khelawan was in peaceful posses sion of the land to the knowledge of the appellants and he was in law entitled to defend his possession. The appel lants who were the aggressors and had opened the assault, could not claim any right of private defence either of person or property. [237 A B]

Civil Appeals Nos. 27l6 27l8 of 1972 Appeals by Special Leave from the Judgment and Order dated the 14 7 1972 of the Kerala High Court in income Tax Reference Nos. 100, 101 and 102 of 1970 WITH CIVIL APPEAL NOS. 365 367 of 1978. From the Judgment and order dated the 24th May, 1977 of the Kerala High Court in I.T.R. Nos. 55, 56 and 57 of 1975 J. L. Nain and Mrs. Saroja Gopalakrishnan for the Appellant in all the appeals. P. J. Francis, section P. Nayar and Miss A. Subhashini for Respondent in all the appeals. The Judgment of the Court was delivered by UNTWALIA J. These six appeals have been heard together as a common question of law in relation to the assessment of the same assessee arises in them. Civil Appeals 2716 2718 of 1972 relate to the assessment years 1964 65, 1965 66 and 1966 67. The assessee appellant is a registered firm carrying on business at several places in the State of Kerala. Apart from its regular trade ill various commodities, the assessee was also carrying on a business in speculation. Apropos the speculation business of the assessee the Income Tax officer determined a loss of Rs. 40,510/ ; a loss of Rs. 598/ and a profit of Rs. 1,36,264/ for the assessment years 1964 65, 1965 66 and 1966 67 respectively. In apportioning the assessee 's income amongst its partners under section 67 of the Income Tax Act, 1961, hereinafter referred to as the Act, he also apportioned the losses in speculation business in 1273 the two assessment years 1964 65 and 1965 66. The profit in speculation business as computed for the assessment year 1966 67 was also apportioned by the Income Tax officer amongst the partners. The assessee contended before the Income Tax officer that the losses in the speculation business could not be apportioned between the partners but should be carried forward and set off against the profit in the said business made in the assessment year 1966 67. The Income Tax Officer rejected this contention. But the Appellate Assistant Commissioner in appeal following the decision of this Court in Commissioner of Income Tax, Gujarat vs Kantilal Nathuchand Samt accepted the assessee 's stand. The department took the matter in second appeal before the Income Tax Appellate Tribunal. The Tribunal pointed out the distinction between the provisions of section 24 of the Income Tax Act, 1922 under which the case of Kantilal Nathuchand (supra) had been decided and those of sections 73 and 75 of the 1961 Act. It, therefore, allowed the department 's appeal. On being asked by the assessee to state a case and make a reference to the High Court, the Tribunal referred the following question of law for its opinion: "Whether, on the facts and in the circumstances of the case, and on a true interpretation of the various provisions of the Income tax Act, 1961, the Tribunal was correct in holding that a registered firm was not entitled to have its losses in speculation business carried forward for set off against future profits in speculation business." The High Court of Kerala on a consideration of the relevant provisions of the Act contained in Chapter VI has answered the reference in favour of the Revenue and against the assessee. The decision of the High Court is reported in M.D. Kevasia & Co. vs Commissioner of Income Tax, Kerala. Civil Appeals 2716 to 2718 of 1972 have been filed in this Court by special leave. Identical questions arose in respect of the assessment years 1967 68, 1968 69 and 1969 70. The High Court answered the references made in respect of those three years also against the assessee by its judgment and order dated the 24th May, 1977. Civil Appeals 365 to 367 of 1978 have been preferred from the said decision of the High Court. 1274 In the case of Kantilal Nathuchand (supra) the question for con sideration was whether on a true interpretation of the various provisions of the Indian Income Tax Act, 1922 speculation losses of the assessee firm for the assessment years 1958 59 and 1959 60 should be set off against its speculation profit in its assessment for the assessment year 1960 61. The provisions contained in section 2 (1) and the two provisos appended thereto were not very clear and some apparent conflict arose between the first and the second proviso. On a consideration of the same this Court held that speculation losses of a registered firm kept apart under the first proviso to section 24(1) in computing its total income for one year could not be apportioned between the partners, and the registered firm could claim to carry for ward such. losses and have it set off against speculation profits of the firm of a later year in accordance with section 24(2). But the provisions of law contained in Chapter VI of the Act have made a considerable departure from the corresponding provisions of the 1922 Act. In these cases we are only concerned with the question of set off of speculation losses against the profits of a other speculation business. In this connection it would suffice to read only the relevant provisions of sections 73 and 75 as they stood at the relevant time. They are as follows: "73. Losses in speculation business (1) Any loss, computed in respect of a speculation business carried on by the assessee, shall not be set off except against profits and gains, if any, of another speculation business (2) Where for any assessment year any loss computed in respect of a speculation business has not been wholly set off under sub section (1), so much of the loss as is not so set off or the whole loss where the assessee had no income from any other speculation business, shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and (i) it shall be set off against the profits and gains, if any, of any speculation business carried on by him assess able for that assessment year; and (ii) if the loss cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the following assessment year and so on." 75. Losses of registered firms (1) Where the assessee is a registered firm, any loss which cannot be set off against 1275 any other income of the firm shall be apportioned between the partners of the firm, and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70, 71, 72, 73 and 74. (2) Nothing contained in sub section (1) of section 72, sub section (2) of section 73 or sub section (1) of section 74 shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of the aforesaid sections. " On reading the above provisions of section 73 it is manifest that the assessee 's loss in speculation business cannot be set off except against profits and gains, if any, of another speculation business. For the purpose of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of 8 years as provided in sub section (4) of section 73. But it is to be noticed that the provision contained in sub section (2) is "subject to the other provision of this Chapter", which includes section 75. In the latter section it is clearly provided that where the assessee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of the loss set off and carried forward for set off under section 73. The matter is put beyond any pale of doubt and challenge in sub section (2) of section 75 when it says that nothing contained in sub section (2) of section 73 shall entitle a assessee, being a registered firm, to have its loss carried forward and set off under the provisions of section 73(2). The Tribunal and the High Court, therefore, were right in holding that the ratio of the decision of this Court in Kantilal Nathunchand 's case (supra) cannot be applied in respect of the assessment made under the Act. Identical views have been expressed by the High Court of Gujarat in Commissioner of Income Tax, Gujarat III vs Dhanji Shamji(1) and the High Court of Punjab and Haryana in Choudhary Cotton Ginning and Pressing Factory vs Commissioner of Income Tax, Punjab. ( 2) For the reasons stated above, we dismiss all the appeals with costs. Hearing fee one set only. V.D.K. Appeals dismissed.

The assessee appellant is a registered firm carrying on business at several places in the State of Kerala. Apart from its regular trade in various commondities, the assessee was also carrying on a business in speculation. In respect of the losses during the assessment years 1964 65, 1965 66 and the profit during the assessment year 1966 67, the Income Tax Officer apportioned the aforesaid losses and profits amongst the partners and rejected the assessee 's contention that the losses in speculation business should be carried forward and set off against the profit in the said business made in the assessment year 1966 67. But the Appellate Assistant Commissioner, following the decision of this Court in C.I.T., Gujarat vs Kantilal Nathuchand Sami, accepted the assessee 's stand. The Tribunal on second appeal answered in favour of the Revenue and the High Court also answered the reference against the assessee. Dismissing the appeals by special leave the Court, ^ HELD :1. The case of Kantilal Nathu Chand was decided on a true interpretation of Section 24(1) of the Income Tax Act 1922 and the two provisions appended thereto. But the provisions of law contained in Chapter VI of the 1961 Act have made a considerable departure from the corresponding provisions of the 1922 Act. [1274A, B D] It is clear from the provisions of Section 73 of the 1961 Act that the assessee 's loss in speculation business cannot be set off except against profits and gains, if any, of another speculation business. [1275B] 2. For the purpose of set off it is permissible to carry forward the losses to the following assessment year or years subject to the limit of eight years as provided in Section 73 of the 1961 Act. [1275C] 3. The provision contained in Sub section (2) of Section 73 of the 1961 Act is "subject to the other provisions of this Chapter", which includes section 75. Under section 75 where the assesee is a registered firm, for the purpose of set off and carry forward of the loss apportionment between the partners of the firm has got to be made and they alone are entitled to have the amount of the loss set off and carried forward for set off. The matter is put beyond any 1272 pale of doubt and challenge in sub section (2) of section 75 when it says that nothing contained in sub section (2) of section 73 shall entitle any assessee, being a registered firm to have its loss carried forward and set off under the provisions of Section 73(2). [1275D E] C.I.T., Gujarat vs Kantilal Nathu Chand, 1 SCR 813; distinguished. C.I.T., Gujarat III vs Dhanji Shamji, Chowdary Cotton Ginning and Processing Factory vs C.I.T., Punjab 109, I.T.R. p. 6; approved. M. G. Devasia & Co. vs C.I.T., Kerala, ; affirmed.

Appeal No. 24 of 1955. Appeal by special leave from the judgment and decree dated March 11, 1949, of the Bombay High Court, in Letters Patent Appeal No. 22 of 1945, arising out of the judgment and decree dated August 3, 1944, of the said High Court in Second Appeal No. 754 of 1942. 695 M. section K. Sastri, for the appellants. Naunit Lal, for respondents. September 11. The Judgment of the Court was delivered by DAS C. J. This appeal by special leave has arisen out of Original Suit No. 582 of 1937 filed in the Court of the Subordinate Judge of Chikodi by one Tukaram Shidappa Borgavi alias Teli (since deceased) and his son Mallappa Tukaram Borgavi alis Teli (1st respondent herein) against the appellants for the redemption of certain mortgaged property and possession thereof free from encumbrances and for other ancillary reliefs. The mortgaged property consists of R. section No. 301 which is Devasthan Inam Lands burdened with the obligation to supply oil for Nand Deep, i.e., keeping a lamp always burning before Shri Tholaba Deity in the village of Nipani. The said property originally belonged to two brothers Shiddappa and Annappa. The khata of the land, however, stood in the name of Shiddappa as the registered occupant under section 74 of the Bombay Land Revenue Code, 1879 (Bombay Act V of 1879). The facts material for our present purpose may now be stated. On January 23, 1888, Shiddappa and Annappa executed a usufructuary mortgage (Ex.D 51) in favour of Lalchand Bhavanchand Gujar and Tuljaram Bhavanchand Gujar for Rs. 1,300 made up of Rs. 1,100 due under a previous mortgage and Rs. 200 presently advanced in cash. That deed provided that the mortgage money would be repaid within a period of three years and that the mortgagors would pay the judi and incur the expenses of the Nand Deep and that on failure of the mortgagors to meet the said out goings, the mortgagees would incur the said expenses and add the same to their claim on the mortgage. On March 10, 1900, Shiddappa alone executed a simple mortgage (exhibit D 52) for Rs. 600 in favour of the same mortgagees. A part of the consideration for this simple mortgage consisted of moneys borrowed by both the brothers on bonds executed by both of them. This simple mortgage deed provided 696 that the mortgagees would bear the expenses of the Nand Deep and debit the same to the mortgagors in the mortgage account. On March 22, 1900, before the simple mortgage deed was presented for registration, Shidappa, who was the registered occupant, gave a Rajinama under section 74 of the Bombay Revenue Code recording his desire to submit an unconditional surrender of the above mentioned khata of R. section No. 307 from the end of the then current year. On the same day, the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property may be granted to them. Both the Rajinama and the Kabuliyat were sanctioned by the Mamlatdar on May 5,1900. Shiddappa having died, Annappa in 1905 applied to the Mamlatdar alleging that the mortgaged property was Devasthan Inam and praying for the cancellation of the transfer in favour of the mortgagees and for placing the mortgaged property in his name. This application was rejected. In 1907 Shiddappa 's son Tukaram (the original first plaintiff herein)and Annappa, the brother of Shiddappa, filed suits against the mortgagees for accounts to be taken under the Deccan Agriculturists ' Relief Act. That suit having been dismissed, they appealed to the District Court, Belgaum, but that appeal was dismissed on March 15, 1909. Annappa again applied for the lands being put in his possession, but that application also was rejected on August 4, 1910. Thereafter, in 1911 Annappa and Tukaram, the brother and son respectively of Shiddappa, filed C. section No. 362 of 1911 under the same Deccan Agriculturists ' Relief Act for the same reliefs. That suit was also dismissed and the appeal there from met with a like fate on March 17,1914. In 1922 Annappa died without any issue. The mortgagee Lalchand died issueless and the mortgagee Tuljaram died leaving a son named Lilachand Tuljaram who became entitled to the entire mortgage securities. On November 1, 1937, Tukaram and, his son Ganpat, alleging that they were the legal representatives of both Shiddappa and Annappa, filed Original Suit No. 586 of 1937, out of which this appeal arises, against the appellants Lilachand and his three sons for the redemption of the mortgages. In the 697 written statement the defendants appellants pleaded that the deceased Shiddappa having sold the mortgaged property to the mortgagees, the equity of redemption became extinguished and that as Shiddappa alone was the registered occupant, the Rajinama given by him, was valid and binding on Annappa. They further alleged that the plaintiffs were not the heirs of the deceased Annappa, for the latter had died after having transferred his interests in the mortgaged properties to others. It transpires that Annappa died in 1922 after having made and published his last will and testament bequeathing his interest in the mortgaged properties to one Krishna Kallappa, that Krishna Kallappa applied for Letters of Administration in respect of Annappa 's estate and that in spite of the opposition of Tukaram, Letters of Administration with a copy of the will annexed was granted to Krishna Kallappa. Krishna Kallappa having died, his four sons were added as party defendants to this suit and then on their own application they were transposed to the category of plaintiffs. The trial Court held that the Rajinama executed by Shiddappa did not extinguish the title of the mortgagors in the mortgaged property, that the plaintiffs were agriculturists, that they were bound to pay the amount also under the simple mortgage and that on taking accounts the mortgages had redeemed themselves. Accordingly the trial court passed a decree for possession declaring that both the mortgages had been satisfied. The mortgagees, defendants 1 to 4, appealed to the District Court, Belgaum, in Regular Civil Appeal No. 322 of 1940. The District Court held that by the Rajinama, Shiddappa intended to convey the title in the suit land to the mortgagees and hence Shiddappa 's heirs, the plaintiffs 1 and 2, could not claim redemption of Shiddappa 's one half share in the suit land. As regards Annappa 's share, the learned Judge held that the Rajinama had not the effect of transferring the interest of Annappa to the mortgagees and that inasmuch as the mortgages were subsisting, the defendants could not acquire title by adverse possession. In this view he allowed the appeal in part with the result that 698 the suit was dismissed so far as the claims of plaintiffs 1 and 2 were concerned but the claims of plaintiffs 3 to 6 as the legal representatives of Annappa were upheld and they were allowed to redeem Annappa 's one half share of and in the mortgaged property on payment of one half of the amounts due under the two mortgages. The mortgagee defendants 1 to 4 appealed to the High Court in Second Appeal No. 754 of 1942 against that part of the decree which rejected their claim to Annappa 's share and the plaintiffs 1 and 2 also filed Second Appeal No. 1011 of 1942 against the dismissal of their claim for redemption of one half share of Shiddappa in the mortgaged property. Both the appeals were disposed of by a common judgment by Weston, J. The learned Judge held that, so far as Shiddappa 's share was concerned, the Rajinama was a complete relinquishment of his interest, but as regards Annappa 's share, he agreed with the District Judge 's conclusion that Shiddappa could not bind Annappa 's share by the Rajinama and in this view of the matter he dismissed both the appeals. Against this decree both the parties preferred Letters Patent Appeals, namely, L.P.A. No. 22 of 1945 which was filed by defendants 1 to 4 and L.P.A. No. 16 of 1945 which was filed by plaintiffs 1 and 2. The Division Bench dismissed both the appeals. The present plaintiff No. 1, the son of Tukaram (the deceased son of Shiddappa who was the original plaintiff No. 1) has not come up to this Court and, therefore, the decision of the Division Bench has become final so far as he is concerned. The High Court having refused to grant leave to appeal to this Court, the mortgagees defendants 1 to 4 applied to and obtained from this Court special leave to appeal against the decision of the Division Bench in so far as it upheld the rejection of their claims to Annappa 's half share in the mortgaged property. Hence the present appeal. The plaintiffs respondents, who are the legal representatives of Annappa and against whom the present appeal is directed, have not entered appearance in this appeal. Learned advocate appearing in support of the appeal urges that the Rajinama and the Kabuliyat taken 699 together evidenced a transfer of title from the mortgagors to the mortgagees and, therefore, operated to extinguish the equity of redemption not only of Shiddappa but also of Annappa, for there is sufficient evidence on record that Shiddappa was the manager and karta of the joint family and that in the matter of passing the Rajinama he had acted in that capacity and, therefore, the Rajinama was binding on his brother Annappa. As pointed out by the Division Bench in their judgment in the Letters Patent Appeal, this case of Shiddappa having acted as karta was nowhere made by the defendants appellants in their written statement and, in agreement with the High Court, we declined to allow learned advocate for the appellants to make out such a new case. This case being thus out of the way, learned advocate for the appellants urges that under section 74 of the Bombay Land Revenue Code, as Shiddappa was the registered occupant, the Rajinama filed by him operated upon the entire occupancy and amounted to a relinquishment of the rights of both the brothers Shiddappa and Annappa. Section 74 of the Bombay Land Revenue Act, as it stood at all material times, ran as follows : " An occupant may, by giving written notice to the Mamlatdar or Mahalkari, relinquish his occupancy, either absolutely or in favour of a specified person; provided that such relinquishment applied to the entire occupancy or to whole survey numbers, or recognized shares of Survey Numbers. An absolute relinquishment shall be deemed to to have effect from the close of the current year, and notice thereof must be given before the 31st March in such year, or before such other date as may be from time to time prescribed in this behalf for each district by the Governor in Council. A relinquishment in favour of a specified person may be made at any time. When there are more occupants than one, the notice of relinquishment must be given by the registered occupant; and the person, if any, in whose favour an occupancy is relinquished, or, if such 700 occupancy is relinquished in favour of more persons than one, the principal of such persons, must enter into a written agreement to become the registered occupant, and his name shall thereupon be substituted in the records for that of the previous registered occupant. " Reliance is placed on the concluding paragraph of the section which provides that when a relinquishment is made in favour of more persons than one the principal one of such persons must enter into a written agreement to become the registered occupant and his name shall thereupon be substituted in the records for that of the previous registered occupant. This provision, it is said, makes it clear that so far as the revenue authorities are concerned, it is the registered occupant who represents the entire occupancy and the fact that the notice of relinquishment must, under the section, be given by the registered occupant also supports the contention that the Rajinama passed by the registered occupant binds all the occupants. We are unable to accept this argument as correct. The concluding paragraph of the section clearly recognises that a relinquishment may be in favour of more persons than one. It is true that the principal one of such persons must enter into a written agreement to become the registered occupant. This is for facilitating the purpose of the Code but it does not mean that the other persons in whose favour the occupancy is relinquished cease to have any right. That their right as occupants remains is clearly recognised by the opening paragraph of the section which gives an occupant a right to relinquish his occupancy either absolutely or in favour of a specified person. This right is given to all occupants, if there are more than one, for the singular includes the plural. It is true that where there are more occupants than one, the notice of relinquishment on behalf of any occupant must be given by the registered occupant. That does not mean, in the absence of any specific pleading and cogent proof, that a notice of relinquishment given by the registered occupant must necessarily be a notice on behalf of all occupants or any particular occupant other than the 701 registered occupant, or that the registered occupant has the right to give such a notice without reference to the other occupants so as to effect their interest in the occupancy. Turning to the Rajinama, it is clear that Shiddappa did not purport to file, the same on behalf of Annappa nor had he any right to do so; by reason only of his being the registered occupant. In Lalchand Sakharam Marwadi vs Khendu Kedu Ughade (1) one out of four brother mortgagors, who was the registered occupant of the mortgage land, passed a Rajinama of the land in favour of the mortgagee, who executed a Kabuliyat for the same. The remaining three mortgagors sued to redeem the mortgage alleging that the Rajinama passed by their brother conveyed only his interest and nothing more. It was held that though the conveying brother was a co mortgagor with the plaintiffs, he had no right to sell their interest in the equity of redemption and that, so far ' as they, were concerned, he was in the same position as an outsider. It is true that no specific reference was made in the judgment to section 74 of the Bombay Land Revenue Code, but the actual decision in that case, the facts of which are very similar to those of the instant case, quite clearly indicates the court 's understanding of the law applicable to those facts and that law was nothing but the provisions of section 74 of the Code. In our opinion, on a correct interpretation of section 74, where there are more occupants than one in respect of the same occupancy each occupant has his own rights and the fact of registration of one of them as the registered occupant attracts the operation of the Code and confers certain rights or imposes certain obligations on the registered occupant as laid down in the Code but does not take away the rights of other occupants. It is true that if any of the occupants other than the registered occupant desires to relinquish his occupancy. he cannot himself give a notice of relinquishment but must give it by and through the registered occupant Nevertheless the registered occupant, in the absence of any authority, express or implied, to be clearly pleaded and strictly proved, has no inherent or independent (1) , 89 702 right to give any such notice so as to affect the interests of the other occupants. In our opinion the Rajinama passed by Shiddappa did not affect the right of Annappa and his equity of redemption subsisted at all material times. In our judgment the conclusion of the Division Bench of the High Court in the Letters Patent Appeals was correct and the principal contention urged before us must be repelled. Learned Advocate for the appellant then faintly urges that Annappa 's interest in the property was extinguished by reason of the adverse possession exercised by the mortgagees Since at least 1905 when the claim of the Annappa to get the mortgaged property registered in his name failed. It should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage. Therefore their possession had a lawful origin. A mere assertion of an adverse title on the part of the appellants cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation prescribed for a suit for redemption. In view of the observation of the Judicial Committee in Khiarajmal vs Daim (1), the learned advocate for the appellants did not seriously press the point of limitation any further. No other point having been urged before us in this appeal, the appeal must, for reasons stated above, be dismissed. As the respondents did not appear, there will be no order as to costs. Appeal dismissed. (1) (1904) L. R. 32 Ind. App.

The suit out of which the present appeal arose was one for redemption of some occupancy lands, owned and mortgaged by two brothers, S and A, the Khata of the lands standing in the name of S as the registered occupant under section 74 of the Bombay Land Revenue Code, 1879. The mortgage, which was a usufructuary one, was executed by S and A in 1888 in favour of the predecessors in interest of the appellants. By a Rajinama filed under section 74 of the Code in 1900, S made an unconditional 88 694 surrender of the occupancy. On the same day the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property might be granted to them. Both the Rajinama and the Kabuliyat were granted by the Mamlatdar. By the Rajinama S did not, however, purport to relinquish the occupancy on behalf of A. After the death of S, A applied to the Mamlatdar for the cancellation of the transfer in favour of the mortgagees and registering the mortgaged property in his name. That application was rejected. The heirs of S, claiming also to be the heirs of A, brought the suit for redemption. The defence of the appellants was that the plaintiffs were not the heirs of A and that the right of redemption in the entire occupancy had been extinguished by the Rajinama. The administrators of the estate of A were then added as defendants but were later on transposed to the category of co plaintiffs. The courts below found against the appellants. Hence this appeal by special leave. The question for determination was whether the surrender by S amounted to a relinquishment of the entire occupancy including the share of A. Held, that the Rajinama could in no way affect the right of A to his share, in the occupancy and the right of redemption in respect of his share still subsisted. Under section 74 of the Bombay Land Revenue Code, 1879, rightly construed, the registered occupant had no inherent or independent right, in the absence of any authority, express or implied, which must be clearly pleaded and strictly proved, to give a notice of relinquishment so as to affect the interest of other occupants as well. Although the section conferred certain rights and imposed certain obligations on the registered occupant, it was not intended to take away the rights of other occupants. Lalchand Sakharam Marwadi vs Khendu Kedu Ugbade, 22 Bom. L.R. 1431, referred to. Held, further, that even though A 's application to get the mortgaged property registered his name had failed, there could be no question of adverse possession since the possession of the mortgagees had a lawful origin in the usufructuary mortgage. Nor could a mere assertion of adverse title affect the subsisting equity of redemption or shorten the prescribed period of limitation for the suit. Khiarajmal vs Diam, I.L.R. , referred to.

: Civil Appeal No. 151 of 1960. Appeal by special leave from the judgment and order dated November 23, 1959, of the Madhya Pradesh High Court, Jabalpur, in First Appeal No. 78 of 1959, arising out of the judgment and order dated May 12, 1959, of the Election Tribunal, Raigarh, in Election Petition No. 76/1957. G. section Pathak and G. C. Mathur, for the appellants. N.C. Chatterjee, S . K. Kapur, Y. section Dharamadhikaree and A. G. Ratnaparkhi, for respondent No. 1. 1960. April 22. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. Does the failure of a candi date to specify his age as required by the prescribed form of the nomination paper amount to a defect of a 652 substantial character under section 36(4) of the Representation of the People Act, 43 of 1951 (hereinafter called the Act)? That is the point of law which arises for our decision in the present appeal. The said point arises in this way. On February 25, 1957, polling took place at the General Election to the Madhya Pradesh Legislative Assembly from the Mamendragarh Double Member Constituency. Thirteen candidates had offered themselves for election either for the general or the reserved seat at the said election. Mr. Brijendralal Gupta, appellant I and Thakur Raghubir Singh, appellant 2, were the Congress candidates while respondents 1 and 7 had been adopted by the Praja Socialist Party, respondent 4 and one Sadhuram by the Jan Sangh and the remaining candidates had filed their nominations as independent candidates. Udebhan Tiwari, respondent 5, bad omitted to make the declaration regarding his age in his nomination paper. This defect was discovered at the time of the scrutiny of the nomination papers on February 1, 1957, and as a result his nomination paper was rejected by the returning officer. Subsequently respondent 6 withdrew his candidature with the result that eleven candidates took part in the contest. After the polling took place and the votes secured by the contesting candidates were counted appellants 1 and 2 were declared duly elected to the General and the Reserved seat respectively. Thereupon Jwalaprasad, respondent 1, filed an election petition under section 81 of the Act challenging the election of the appellants on several grounds, one of which was that the nomination of respondent 5 had been improperly rejected. He, therefore, played that the election of the appellants should be declared void and he himself should be declared as having been duly elected. This election petition was made over for trial to the Election Tribunal, Raigarh. On the contentions raised by the parties before it the Election Tribunal framed as many as 49 issues; but in the present appeal we are concerned with only three of them which related to the rejection of the nomination of respondent 5. These three issues were (1) whether the nomination paper of respondent 5 was improperly rejected because of the omission to 653 fill in the age in the prescribed column, (2) whether at the time of the scrutiny respondent 5 was personally present and brought to the notice of the returning officer that his age was above 25 and the omission is simply accidental, and (3) if so, whether the rejection of the said nomination paper has rendered the whole election void ab initio under section 100(1)(c) of the Act. The Tribunal held that respondent 5 did not make any attempt to rectify the defect in the nomination paper, that the returning officer could not in law have allowed respondent 5 to remedy the said defect at the stage of the scrutiny of the nomination, and that the error in the nomination was a defect of a substantial character with the result that the rejection of the nomination paper was according to the Tribunal proper. In accordance with these findings the Tribunal dismissed the election petition. Respondent 1 then preferred an appeal against the decision of the Tribunal before the High Court of Madhya Pradesh at Jabalpur under section 116A of the Act. The High Court has allowed the appeal; it has held that respondent 5 had at the time of the scrutiny offered to supply the omission but the returning officer refused to allow him to do so, that the returning officer was bound to make a summary enquiry before rejecting respondent 5 's nomination paper, and that the non mention of the age in the nomination paper was not a defect of a substantial character. In consequence, according to the High Court, the rejection of respondent 5 's nomination paper was improper; that is why the High Court set aside the election of the appellants under section 100(1)(c) of the Act. It is against this decision of the High Court that the appellants have come to this Court by special leave. The learned counsel for the appellants wanted to challenge the correctness of the finding recorded by the High Court that respondent 5 offered to correct the defect in his nomination paper by supplying evidence about his age and that the returning officer had refused to give him an opportunity to do so. It is true that on this question the Tribunal had found in favour of the appellants; but, in our opinion, it was open to the High Court to consider the correctness or the 85 654 propriety of the said finding because the jurisdiction a of the High Court under section 116A of the Act is wide enough and is not confined to questions of law. It has been urged before us that the decision on this Darrow question of fact depends upon the appreciation of oral evidence led by the parties, and it was suggested that the High Court was not justified in interfering with the conclusion of the Tribunal on that point. We are not impressed by this argument. We would, therefore, deal with the present appeal on the basis that respondent 5 attempted to rectify the omission but was not allowed to do so by the returning officer. Therefore, if the defect in the nomination paper of respondent 5 was not of a substantial character the High Court 's decision would be right on the other hand, if the said defect is of a substantial character then the rejection of respondent 5 's nomination paper would be proper and the fact that respondent 5 was not allowed an opportunity to rectify the said omission would make no difference in law. That is how the only point which calls for our decision is whether the omission, in question is a substantial defect under 36(4) of the Act. Before dealing with this question it is relevant to refer to sections 33, 34 and read section 36. Section 33 provides for the presentation of the nomination paper and prescribes the requirements for a valid nomination. Section 33(1) is important for our purpose. It provides that on or before the date appointed under el. (a) of IS. 30 each candidate shall, either in person or by his proposer, between the hours of eleven o 'clock in the forenoon and three o 'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Section 33(2) lays down that a candidate shall not be deemed to be qualified to be chosen to fill a reserved seat unless his nomination paper contains a declaration prescribed by it. Sub section (3) deals with the case of a candidate who, having held any office referred to in el. (f) of section 71, hag been dismissed and a period of five years has not elapsed since the 655 dismissal, and lays down that the nomination paper of such a person shall be accompanied by a certificate as specified. Sub section (4) requires that on the presentation of a nomination paper the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. The proviso to this subsection requires the returning officer to permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected, and where necessary, it authorises him to direct that any clerical or printing error in the said entry shall be overlooked. We are not concerned with the remaining two sub sections of section 33. Section 34 deals with deposits and provides that a candidate shall not deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited the amounts as prescribed in cls. (a), (b) and (c). Section 36 deals with the scrutiny of nomination&, authorises the returning officer to hold an enquiry,, ,prescribes the procedure to be followed by him in holding such an enquiry, required him to endorse his decisions on the points raised in the scrutiny, and to prepare a list of validly nominated candidates that is to say, whose nominations have been found valid, and to affix it to his notice board. Section 36(1) provides that on the date fixed for the scrutiny of nominations under section 30, the candidates and the other persons specified in it may attend at such time and place as the returning officer may appoint, and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33. Sub section (2) deals with the examination of nomination papers by the returning officer, and it provides that the said officer shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, (a) that the candidate either is not qualified or is disqualified for being chosen to till 656 the seat under any of the following provisions that may be applicable, viz., articles 84, 102, 173 and 19 1, and Part 11 of this Act, (b) that there has been a failure to comply with any of the provisions of section 33 or section 34, or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine. Sub section (4) lays down that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Sub section (5) prescribes the procedure for the scrutiny, and subs. (6) requires that the returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and in case of rejection he shall record in writing a brief statement of his reasons for such rejection. Sub section (7) provides that for the purpose of this section a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950). Sub 'section (8) requires the returning officer to prepare a list of validly nominated candidates and affix it to his notice board. It is clear that section 33 requires that a nomination paper must be completed in the prescribed form and signed by the candidate and by the elector of the constituency as proposer. The form prescribed in that behalf is Form No. 2B. The relevant portion of the prescribed form reads thus: Form 2B. Nomination Paper (See rule 4) Election to the Legislative Assembly of. . (State) (To be filled in by the proposer) I hereby nominate. . . as a candidate for election from the. . . Assembly Constituency. Full name of proposer. . . 2. Electoral roll number of proposer. . 3. Name of candidate 's ++father/husband. . . 4. Full postal address of candidate. . . 5. Electoral roll number of candidate. . . Date . Signature of proposer. 657 (To be filled by the candidate) 1, the above mentioned candidate, assent to this nomination and hereby declare (a) that I have completed. . . years of age; (b) that the symbols I have chosen are in order of preference (i) . . . . . . (ii) . . . . . . and (iii) . . . . . . Date Signature of candidate. Strike out one of the alternatives as necessary. It is common ground that the first part of the nomination paper which has to be filled in by the proposer was in order and the second part was duly 'signed by the candidate but failed to declare his age as prescribed by (a) above. When the returning officer noticed this omission he made an order rejecting respondent 5 'S nomination. The brief statement of reasons which the returning officer has recorded shows that he held that the failure of respondent 5 to declare his age cannot be treated as clerical or technical error, but is of a substantial nature since declaration as to age was necessary in order to entitle a candidate to be qualified under article 173 of the Constitution. The returning officer has also noted that he took the objection suo moto and rejected the nomination paper of respondent 5. Thus there is no doubt that respondent 5 's omitted to specify his age before he signed his nomination paper and in that sense his nomination paper has not been completed in the prescribed form. The question which arises for our decision is whether respondent 5 's omission to specify his age in his nomination paper amounts to a defect, and if yes,whether it is a defect of a substantial character under section 36(4) of the Act. On behalf of the appellants it has been conceded before us that the omission in question undoubtedly constitutes failure to comply with the provisions of A. 33, and so it attracts the provisions of section 36(2)(b) of the Act, but it is urged that the said omission does not amount to a defect under section 36(4) much less a defect which is of a substantial character. The argument is 658 that section 36(4) can apply only to such cases of non compliance with section 33 which can be said to amount to defects and not others, and since the omission in question is not a defect there is no scope for invoking the provisions of that, sub section. In support of this argument reliance has been placed on two English decisions. In The Queen vs Tugwell (1) Cockburn, C. J., held that the 9 votes whose validity was impeached had to be struck off because they had not complied with section 32 of the Municipal Corporation Act (5 & 6 Wm. 4, c. 76) and so section 142 could not cure their defect. The voting papers in question contained the Christian name and the surname of the candidate and his place of abode and nothing more, whereas section 32 required that they should also contain the description of the candidate. In other words, there was a total omission to supply the description required by section 32. It was, however, urged that the said omission should be treated as inaccurate description, and so the validity of the impugned votes should be sustained under section 142 which provides, inter alia, that no inaccurate description of any person shall hinder the full operation of the Act in respect of such person provided that the description of such person is such as to be commonly understood. Cockburn, C. J., held that in the cases of the 9 votes in question they were not dealing with the inaccurate description but a total omission of description which is one of the things required by section 32, and so section 142 was inapplicable. It appears that Lush,J., and Hannen,J. agreed with the conclusion of the Chief Justice with some hesitation. To the same effect is the decision in Baldwin vs Ellis (2). In that case the omission to state in the nomination paper the name of the parish for which the person nominated was qualified as a local government elector was held to be non compliance with the requirements of rule 4 of the Rural District Councillors Election Order, 1898, and that the said omission could not be cured by section 13 of the Ballot Act of 1872 since that section applied only to cases where there had been a wrongful admission of a nomination paper and not to those where a nomination paper had been rejected. It was also (1) (2) 650 held that the omission in question cannot be treated as inaccurate description of the person nominate within rule 13 of the Order of 1898 but was a clear non compliance with the requirements of rule 4 of that Order and as such it was not cured by rule 33. It would thus be seen that in both the decisions the question as to whether the particular omission amounted to an inaccurate description was decided in the light of the specific provision of the statute, and so they cannot sustain the broad argument that in no case can omission be treated as a defect. We may also incidentally point out that Halsbury has read these decisions in the same way (3). On the other hand the dictionary meaning of the word " defect" is "lack or absence of something essential to completeness", and in that sense omission to specify the age call and would be treated as a defect under section 36(4). Defect also means " a flaw or a fault or an imperfection"; but whether or not it includes an omission must necessarily depend upon the context in which the word is used. In our opinion, having regard to the context it would be unreasonable to hold that the word " defect " under section 36(4) excludes all cases of omission to specify the details prescribed by the statute in the nomination paper. We must accordingly reject the appellants ' argument that the omission in question is not a defect under section 36(4). The next question which we must consider is whether in the case of such an omission it was obligatory on the returning officer to hold an enquiry under section 36(2) of the Act. The High Court has held that the returning officer ought to have held an enquiry under section 36(2)(a) and satisfied himself whether or not respondent 5 was eligible to stand for the election. In our opinion the High Court was in error in coming to this conclusion. If the nomination paper of respondent 5 did not comply with the provisions of section 33 the case fell squarely under section 36(2)(b) and the only question which can arise in such a case is whether or not the defect arising from the failure to comply with the provisions of section 33 is of a substantial character or not. If the defect is not of a substantial (3) Halsbury 's 'Laws of England", Vol. 14, 3rd Ed., paragraphs foot note (a) on p. 95. 660 character the returning officer shall not reject the nomination paper on the ground of the said defect; if, on the other hand, the defect is of a substantial character the returning officer has to reject the nomination paper on the ground of the said defect, That is the effect of the provisions of section 36(2)(b) and (4) read together. An enquiry which is necessary under section 36(2)(a) may and can be held for instance in cases where the nomination paper shows the age of the candidate as above 25, but an objection has been raised that in fact he is below 25 and as such incompetent to stand for election under article 173 of the Constitution; in other words, the impugned nomination has complied with the provisions of section 33 and as such does Dot fall under section 36(2)(b) at all, nevertheless the validity of the nomination can be challenged on the ground that, in fact article 173 is not complied with. Cases falling under this class must be distinguished from cases falling under section 36(2)(b). In the latter class of cases the failure to comply with the provisions of section 33 being established there is no scope for any enquiry under section 36(2) (a). Once the alleged non compliance is proved, the defective nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character. Therefore, it is not right to hold that even after the returning officer was satisfied that the omission to specify his age showed that the nomination paper of respondent 5 had not complied with the provisions of section 33, he should still have held an enquiry under section 36(2) (a). Non compliance with the provisions of section 33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the non compliance in question is of a substantial character. That takes us to the question as to whether the failure to specify the age in the nomination paper amounts to a defect of a substantial character under section 36(4) or not. There is little doubt that the age of the candidate is as important as his identity, and in requiring the candidate to specify his age the prescribed form has given a place of importance to the declaration about the candidate 's age. Just as the 661 nomination paper must show the full name of the candidate and his electoral roll number, and just as the nomination paper must be duly signed by the candidate, so must it contain the declaration by the candidate about his age. It is significant that the statement about the age of the candidate is required to be made by the candidate above his signature and is substantially treated as his declaration in that behalf. That being the requirement of the prescribed nomination form it is difficult to hold that the failure to specify the age does not amount to a defect of a substantial character. The prima facie eligibility of the person to stand as a candidate which depends under article 173 of the Constitution, inter alia, on his having completed the age of 25 years is an important matter, and it is in respect of such an important matter that the prescribed form requires the candidate to make the declaration. It would, we think, be unreasonable to hold that the failure to make a declara tion on such an important matter is a defect of an unsubstantial character. In this connection, it is relevant to refer to the fact that the declaration as to the symbols which the prescribed form of the nomination paper requires the candidate to make is by the proviso to rule 5 given a subsidiary place. The proviso to rule 5 shows that any non compliance with the provisions of sub rule (2) of rule 5 shall not be deemed to be a defect of a substantial character within the meaning of section 36, sub section In other words, this proviso seems to suggest that, according to the rule making authority, failure to comply with the require ments as to the declaration of symbols as specified in rule 5, sub rule (2), would have been treated as a defect, of a substantial character; that is why the proviso expressly provides to the contrary. This would incidentally show that the failure to specify the age can. not be treated as a defect of an unsubstantial character. On behalf of the respondents it has, however, been urged before us that the returning officer should not be astute to reject the nomination papers on technical grounds, and that in the present case the returning officer should have looked at the electoral roll and satisfied himself that respondent 5 was duly qualified 86 662 to stand for the election. His age is 48 and it was shown in the electoral roll against his name. It was thus a simple matter of looking at the electoral roll be satisfied that the omission to specify the age in the nomination form was no more than a technical breach of the requirements of section 33. We are not impressed by this argument. As we have already observed, in cases of non compliance with section 33 which attract the provisions of section 36(2)(b), there would be no occasion to hold an enquiry under section 36(2)(a). The only point to consider in such cases would be whether the defects in question are substantial or not; and so the argument that the returning officer could have easily verified the age of respondent 5 is not really material in construing section 36(4). In this connection it is relevant to consider the effect of the presumption which is raised under section 36(7) of the Act and its effect. As we have already noticed, under section 36(7) a certified copy of the entry in the electoral roll shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency ; but it must be remembered that this presumption is raised for the purposes of this section and it is made expressly subject to the last clause of this subsection, that is to say, the presumption can arise unless it is proved that the person in question is subject to any of the disqualifications men tioned in section 16 of the Act of 1950. The use of the adjective " conclusive " which qualifies" evidence " is technically inappropriate because the presumption arising from the production of the certified copy is by no means conclusive. It is also significant that in regard to the conclusive character of the relevant evidence the material provision as it stood originally has been subsequently amended by Act 27 of 1956. Originally the provision was that the relevant entry shall be conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe the nomination paper as the case may be. The Legislature apparently thought that the presumption authorised by these words was unduly wide, and so, by the amendment, the prima facie and rebuttable presumption is now limited 663 to the capacity of the person concerned to be treated as an elector and nothing more, and that too unless it is proved that he suffers from any disqualification ' mentioned in section 16. Section 16 to which reference has thus been made prescribes disqualifications for registration in an electoral roll under three heads, (a) that the person is not a citizen of India, (b) that he is of unsound mind and stands so declared by a competent court, or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt and illegal practices and other offences in connection with elections. Thus the position is that the certified copy of the relevant entry would prima facie show that the person concerned is not subject to any of the said disqualifications, but this prima facie presumption can be rebutted by evidence to the contrary. There is yet another aspect of this matter to which reference may be made. The rebuttable presumption which arises under section 36(7) merely refers to the status of the person concerned as an elector. Let us consider what this presumption means. An elector under section 2, sub s.1, (e), of the Act in relation to a constituency means " a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Act of 1950". That takes us to the conditions prescribed by section 19 of the Act of 1950 for registration in the electoral roll. Section 19 provides that subject to the foregoing provisions of Part III of the said Act every person who, on the qualifying date (a) is not less than 21 years of age, and (b) is ordinarily resident is a constituency, shall be entitled to be registered in the electoral roll for that constituency. Thus when a presumption is raised under section 36(7) it may mean prima facie that the person concerned is not less than 21 years of age and is ordinarily resident in that constituency; but for the validity of the nomination paper it has to be proved that the candidate has completed 25 years of age. article 173 of the Constitution which prescribes the qualification for membership of State Legislature provides 664 that a person shall not be qualified in that behalf unless he (a) is a citizen of India, (b) is, in the case of a seat in the Legislative Assembly, not less than 25 years of age, and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament. Confining ourselves to the requirement about age it is obvious that the presumption raised under section 36(7) would not be enough to justify the plea about validity of the nomination paper because the said presumption only tends to show that the person concerned has completed 21 years of age. It is clear that in regard to persons between 21 to 25 years of age their names would be registered in the electoral and so they would be electors if otherwise qualified and yet they would not be entitled to stand for election to the State Legislature. Thus it would not be correct to assume that a reference to the certified copy of the electoral roll would in every case decisively show that the age of the candidate satisfied the test prescribed by article 173 of the Constitution; in other words, the requirement about the completion of 25 years of age is outside the presumption under section 36(7), and that must be the reason why the prescribed nomination form requires that the candidate in signing the said form must make a declaration about his age. This consideration supports our conclusion that the declaration about the age is a matter of importance and failure to comply with the said requirement cannot be treated as a defect of an unsubstantial character. It now remains to consider some of the decisions which were cited before us by the learned counsel for both the parties. In Rattan Anmol Singh vs Atma Ram(1) this Court has held that the attestation required in the case of proposers and seconders who are not able to write their names is not a technical or unsubstantial matter, and so the failure to comply with the said requirement would amount to a defect of a substantial character. The appellants contend, and with some force, that this decision supports their case that like the attestation required in the case of an illiterate proposer or seconder the declaration as to the (1) ; , 665 age of the candidate is a matter of substantial importance, and failure to comply with the requirement of the prescribed form in that behalf cannot be treated as a defect which is not of a substantial character. In Pranlal Thakorlal Munshi vs Indubhai Bhailabhai Amin (1), the Election Tribunal, Baroda, has held that the omission by the candidate to mention his age in the nomination paper is a defect of a substantial character and that his nomination paper had been properly rejected on that account. The appellants have naturally relied on this decision in support of their case. The appellants have then referred us to certain decisions where the effect of the failure to specify the electoral roll number or other particulars has been considered, and it has been held that the failure in question amounts to a substantial defect under section 36(4) of the Act. (Vide: Rup Lal vs Jugraj Singh (2 ); Brij Sundar Sharma vs Election Tribunal, Jaipur (3 ); Balasubrahmanyan vs Election Tribunal, Vellore (4); and Ramayan Shukla vs Rajendra Prasad Singh (5). By parity of reasoning the appellants contend that the failure to mention the age is undoubtedly a substantial defect. It is unnecessary for us to consider the merits of these decisions. On the other hand the respondents have relied on the decision of this Court in the case of Durga Shankar Mehta vs Thakur Raghuraj Singh (6). Indeed it appears from the judgment of the High Court under appeal that in coming to its decision the High Court was influenced by certain observations made by Mukherjea, J., as he then was, in dealing with the case of Durga Shankar (6). In that case the validity of the election of Vasant Rao, respondent 2, was challenged before the Election Tribunal on the ground that he was not eligible to stand for election since at all material times he was under 25 years of age. It was, how ever, clear that no objection was taken before the returning officer in respect of the nomination paper of respondent 2, and the said nomination paper had been accepted by there turning officer. The question (1) (1958) 15 E.L.R 484. (3) (5) [1955] S.C.R. 267. 666 which was raised before this Court was whether the acceptance of respondent 2 's nomination paper could be said to be improper, and this Court held that the acceptance would have been improper if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the returning officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the returning officer came to the wrong conclusion on the materials placed before him. Since neither of these things had happened in that case, the Court held that the acceptance must be deemed to be a proper acceptance. Even so it was observed that the validity of respondent 2 's election could be challenged under section 100(2)(c) of the Act. With that aspect of the matter we are, however, not concerned in the present appeal. It would thus be clear that in the case of Durga Shankar (1) this Court had no occasion to consider the scope and effect of section 36(2Xb) and (4) of the Act at all, and so the observations made in the judgment on which reliance had been placed by the respondents in support of their plea that an enquiry should have been held in the present case do not really help us. The said observations must, with respect, be read in the context of the dispute which was raised before this Court in that case. The respondents have also relied upon the decision of this Court in Pratap Singh vs Shri Krishna Gupta (2). In that case this Court has no doubt observed that courts should not adopt a technical attitude in dealing with election matters and that " it is the substance that must count and it must take precedence over mere form ; but in appreciating the effect of these observations it is necessary to bear in mind the points which arose for decision in that case. It was the failure of the candidate to mention his occupation as required by rule 9 (1)(i) on which the validity of his nomination was impeached, and in dealing with that point this Court had to consider the effect of section 23 of the C. P. and Berar Municipalities Act, 2 of 1922, which provided that anything done or any proceeding taken under the said Act shall not be questioned on account (1) [1955] 1 S.C.R. 267 (2) A.I.R. 1956 S.C. 140, 141, 667 of any defect or irregularity not affecting the merits of the case. So the short point which the Court had to decide was whether the defect in the nomination form affected the merits of the case, and it held that there was no doubt that the said failure, could riot possibly affect the merits of the case. It was in the context of this legal position that the Court disapproved of the technical attitude adopted by the High Court in dealing with the question of the validity of the impugned nomination. It is significant, however, that even in that case the Court has referred with approval to its earlier decision in the case of Rattan Ammol Singh (1). There is another decision of this Court on which the respondents have relied. That is the case of Karnail Singh vs Election Tribunal, Hissar (2). It appears that in that case the nomination paper of Sher Singh had been rejected on the ground that column 8 in the nomination form was not duly filled up. The defect to which objection was taken was that the name of the sub division had not been stated under the relevant columns, though on evidence it was quite clear that there was no defect in identifying the candidate and that the candidate himself pointed out to the returning officer the entry of his name in the electoral roll, and this Court held that the defect in question was purely technical and that the Tribunal was perfectly right in holding that the nomination paper had been improperly rejected. It is difficult to see how this decision can assist the respondents at all. As we have already pointed out the omission to make a declaration about the age is, in our opinion, an omission to comply with the substantial requirement prescribed by the form and it cannot be compared with the omission with which this Court was concerned in the case of Karnail Singh (2). There is one more decision on which the respondents have relied. In Pt. Charanjit Lal Ram Sarup vs Lahri Singh Ram Narain (3) the Punjab High Court was dealing with a case where the nomination paper of a candidate had been rejected not only on account of the omission to state the age in the nomination paper but also for the reason that no evidence was led by the (1) [1955) 1 S.C.R. 481. (2) (3) A.I.R, 1958 Punj. 433. 668 candidate concerned or by his representatives or agents to show that the candidate had completed his 25 years though the returning officer had directed that such evidence should be led. It appears that the Election Tribunal also found that on the evidence adduced before it could not be determined with any amount of certainty as to whether at the time of filing the nomination paper Mr. Pirthi,the candidate in question, was above or below 25 years of age. That is why it was held that the rejection of the nomination paper could not be said to be improper. One of the points urged before the Punjab High Court was that the omission to state the age was not a defect of a substantial character but the High Court did not feel called upon to give a firm finding on this point, because in the case before it there was not only the impugned omission but there was also no material before the returning officer whereby that omission could be made good. We ought, however, to add that though on the facts proved in that case the election petition should have been dealt with under section 36(2)(b) and (4) it was apparently considered as falling under section 36(2)(a) and that, as we have already pointed out, is not the true legal position. Besides there are certain general observations made in the judgment which would indicate that the High Court was inclined to hold that the defect arising from the failure to declare the age in the nomination form was not of a substantial character. It is unnecessary to add that these observations do not correctly represent the effect of section 36(2)(b) and section 36(4) of the Act. In the result the appeal is allowed, the decision of the High Court is set aside and that of the Tribunal restored with costs throughout. Appeal allowed.

Thirteen candidates filed their nomination papers for election to the Legislative Assembly of Madhya Pradesh. The nomination of U was rejected on the ground that he failed to give a declaration as to his age as required in the nomination paper. After the poll the appellants were declared duly elected. Thereupon one of the unsuccessful candidates J filed an election petition challenging the election of the appellants, inter alia, on the ground that the nomination of U had been improperly rejected. The Election Tribunal dismissed the petition holding that U made no attempt before the returning officer to remedy the defect in the nomination paper, that the defect could not in law have been remedied at the stage of the scrutiny that the defect was of a substantial character and that the rejection of the nomination was proper. On appeal the High Court held that at the time of the scrutiny U had offered to supply the omission but the returning officer had refused to allow him to do so, that the returning officer was bound to make a summary enquiry before rejecting the nomination, that the non mention of age in the nomination paper was not a defect of a substantial character and that the rejection of the nomination was improper and consequently allowed the appeal and set aside the election of the appellants: 651 Held, that the omission to give the declaration as to age in the nomination paper was a defect of substantial character within the meaning of section 36(4), Representation of the People Act, 1951, and the rejection of the nomination for such an omission was proper. Rattan Anmol Singh vs Atma Ram, ; , Pranlal Thakorlal Munshi vs lndubhai Bhailabhai Amin, , Rup Lal vs jugaraj Singh, , Brij Sundar Sharma vs Election Tribunal, Jaipur, , Balasubyahmanyan vs Election Tribunal, Vellore, and Ramayan Shukla vs Rajendra Prasad Singh , referred to. Durga Shankar Mehta vs Thakur Raghuraj Singh, [1955] S.C. 140 and Karnail Singh vs Election Tribunal Hissar, , distinguished. Charanjit Lal Ram Sarup vs Lohri Singh Ram Narain, A.I.R. 1958 Punj. 433, disapproved. The word " defect" in section 36(4) included an omission to specify the details prescribed in the nomination. The distinction drawn in English cases between an " omission " and " inaccurate description" depended upon the specific provisions of the English statutes and did not obtain under the Indian Law. The Queen vs Tugwell, and Baldwin vs Ellis, , distinguished. Cases failing under section 36(2) (b) must be distinguished from those falling under section 36(2) (a). Where the nomination paper did not comply with the provisions of section 33 of the Act the case fell under section 36(2) (b) and the defective nomination had to be accepted or rejected according as the defect was of an unsubstantial or of a substantial character. In such a case it was not necessary for the returning officer to hold any enquiry.

vil Appeal No. 64 of 1951. On appeal from the Judgment and 646 Decree dated the 16th April. 1948, of the High Court of Judicature at Allahabad (Malik C.J. and Prasad J.) in First Appeal No 358 of 1943 arising out of the ent and Decree dated the 22nd February, 1943, Judgment and Decree dated the 22nd February, 1943 of the Court of the Additional Civil Judge Benares, in Original Suit No. 33 of 1938. Gopi Nath Kunzru (K. B, Asthana, with him) the appel lants. Krishna Shankar for the respondents. April 25. The judgment of the Court was delivered by DAs J. This appeal arises out of an application by five out of ten judgment debtors made under section 8 of the U.P. Debt Redemption Act (No. of 1940) for ascertaining the amount due by them in accordance with the provisions of sections 9 and 10 of that Act and for amending the decree passed on March 31, 1939, by the Additional Civil Judge, Banaras, in O.S. No. 33 of 1938. The facts materi al for the purposes of this appeal may now be briefly stated. By a mortgage deed executed on June 22, 1922, Madho Ram, Sita Ram, Jai Ram aud Lakshman, all sons of Pandit Raja Ram Pant Sess, mortgaged cer tain immovable properties in favour of Damodarji, son of Kamta Nathji, owner of the Kothi Joshi Shivanath Vishwanath for the due repayment of the sum of Rs. 8,000 advanced on that date by a cheque together with interest thereon at 12 annas per cent per mensem with quar terly rests. On July 28, 1931, the said mortgagors and their sons executed a mortgage over the same properties in favour of Kothi Kamta Nathji Vishwanathji for the due repayment of Rs. 3,000 with interest thereon at twelve annas per cent per mensem with quarterly rests. It is recited in the deed that the sum of Rs. 8,000 was advanced on this date by a cheque and that the amount was utilised in paying up the amount due under the earlier 647 mortgage deed to Damodarji proprietor of Kothi Shivanath Vishwanath. In 1935 the U.P. Agriculturists ' Relief Act (No. XXVII of 1934) came into force. On May 1938, Girjadharji, son of Damodarji, and Murlidharji, minor son of Gangadharji who was another son of Damodarji, filed suit No. 33 of 1938 in the Court of the Additional Civil Judge, Banaras, against the mortgagors and their sons for the recovery Rs. 9,477 2 0 due as principal and interest up to date of suit and for further interest under the mortgage deed of July 28, 1931. It appears from the judgment of the High Court under 'appeal that in their written statement the mortgagors claimed the benefit of the U.P. Agriculturists ' Relief Act (No. XXVII of 1934). The plaintiffs contended that the mortgagors were members of a joint Hindu family and as Sita Ram one of the mortgagors was assessed to income tax the mortgagors were not agriculturists as defined in section 2 (2) of that Act and, therefore, could not claim the benefit conferred on the agriculturists by that Act. The trial Court, by its judgment dated March 31, 1939, held that though Sita Ram was assessed to incometax for the year 1931 32, the amount of such in cometax did not exceed the amount of cess payable on the land held by him and consequently the second proviso to section 2 (2) did not apply to him and he was, therefore, an agriculturist and as the other mortgagors were also agricul turists all of them were entitled to the benefits under the Act. Accordingly, after scaling down the interest, a sum of Rs. 9,497 14 1 was declared to be due for principal, interest and costs up to March 31, 1939, and a preliminary mortgage decree for sale was passed in that suit. In 1940 the U.P. Debt Redemption Act (No. XIII of 1940) came into force. On April 11, 1942, five of the judgment debtors made an application under section 8 of this Act before the Additional Civil Judge, Banaras, who passed the decree. In the petition it was stated that the debt was actually advanced in 1922, that the petitioners were agri culturists within 648 the meaning of Act XIII of 1940, that the decreeholders can only get interest at the reduced rate of Rs. 4 8 0 per cent. per annum from 1922, and that after adjustment of accounts nothing will be found ,outstanding against the petitioners. The prayer was that an account of the money lending business be made from the beginning of 1922 and the decree in suit No. 33 of 1938 be modified by reducing the amount due thereunder. The decree holders filed a petition of objection asserting, inter alia, that the petitioners were by no means agriculturists, that they and the respond ents Nos. 3 to 7 were members of a joint Hindu family at the time of the execution of the mortgage deed of July 28, 1931, that Sita Ram used to pay income tax at the date of the mortgage in suit and paid even at the time of the applica tion, that all the members of the petitioners ' family were not agriculturists within the meaning of the Act and were, therefore, not entitled to the benefits thereof, that the debt advanced under the mortgage deed of July 28, 1931, was not a "loan" as defined in the Act and, therefore, the Act did not apply. It will be noticed that although the judg ment debtors applicants specifically prayed for the accounts being taken from 1922, when the loan was said to have been actually advanced, the decree holders, in their petition of objection, did not contest that position. At the hearing of the application before the Additional Civil Judge, the learned pleader for the decree holders admitted that with the exception of Sita Ram the remaining judgment debtors were agriculturists under Act No. XIII of 1940 but that as Sita Ram was a party to the mortgage in suit they were not entitled to the benefit of the Act. Two witnesses, namely Suraj Mani Tripathi and Sita Ram, were examined on behalf of the judgment debtors applicants. Sita Ram stated that since 1907 he had been a teacher in Harish Chandra Intermediate College of Banaras, that in 1930 his salary was Rs. 90 per month, that since February 1932 to 1936 he paid incometax and that after that he paid no in come tax. 649 His evidence was corroborated by Suraj Mani Tripathi who was the Accountant of the College from 1930 to 1042. Referring to the College Acquittance Roll Suraj Mani Tripathi deposed that the pay of Sita Ram was Rs. 90 per month throughout 1930, that in 1930 no income tax was levied, that in 1931 also his salary was Rs. 90 per month and that no income tax was deducted in 1931 too, that the first deduction of in come tax from his salary was made in February 1932. No rebutting evidence was adduced by the decree holders on the hearing of the application under section 8 of the Act of 1940. The income tax assessment form filed during the trial of the mortgage suit and marked as exhibits is dated Febru ary 9, 1933, and shows that on that date Sita Ram was as sessed at Rs. 1 14 0 as income tax on Rs. 180 for the year 1931 32. By his judgment delivered on February 22, 1943, the Additional Civil Judge found that Sita Ram was not assessed to income tax either at the date of the application under section 8 or at the date of the mortgage of 1931 and, there fore, held that the applicants were agriculturists and that the case related to a loan as defined in Act XIII of 1940. He then went on to discuss the question whether the account should be reopened from June 2, 1922, when the earlier mortgage was executed or from July 28, 1931, when the mort gage in suit was executed. The decree holders who did not adduce any evidence on the hearing of the application evi dently relied on the evidence adduced in suit No. 33 of 1938. After discussing that evidence the learned Judge came to the conclusion that so far as the judgment debtors were concerned the mortgagees in the two mortgages were one and the same. He adversely commented on the non production of the books of account by the decree holders. Re opening the accounts from June 2, 1922, the learned Judge concluded that the whole of the principal and interest payable accord ing to the Act had been fully discharged and that nothing remained due by the judgmentdebtors under the decree in suit No. 33 of 1938. He 650 accordingly declared that the decree stood discharged in full and directed a note to that effect to be made in the Register of Suits. The decree holders having appealed to the High Court, a Division Bench (B. Mallik, C.J. and 'Bind Basni Prasad J.) by its judgment delivered on April 16, 1948, held that the question whether Sita Ram was or was not an agriculturist on July 28, 1931, was not material as it was not denied that all the judgment, debtors were agriculturists on the date of suit. Reference was made by the learned Judges to section 21 and it was stated that by reason of that section the mortgage amount could be recovered only from the mortgaged property and not personally from the mortgagors and accord ingly the proviso to the definition of "loan" in section 2 (9) of the Act had no application and it was, therefore, not necessary to show that the borrowers were agriculturists at the date when the advance was made and that as the judgment debtors were admittedly agriculturists at the date of the suit, the case was fully covered by the Full Bench decision of that High Court in Ketki Kunwar vs Ram Saroop (1). The High Court, therefore, dismissed the appeal on this point alone. The question whether the account should be reopened from 1922 or from 1931 was not raised by the decree holders at all. ]he decree holders have now come up on appeal before us on a certificate granted by the High Court under section 110 of the Code of Civil Procedure. Sri G.N. Kunzru appearing in support of this appeal has strongly questioned the correctness of the Full Bench deci sion relied on by the High Court and the interpretation put by the High Court on section 21 and section 2(9) of the Act. As we think this appeal can be decided on a simpler ground we do not consider it necessary, on this occasion, to express any opinion on either of these questions which are by no means free from doubt. (1) I.L.R. [1943] All. 35; A.I.R. 1942 All. 390; (1942) A. L.J. 578. 651 The present application has been made under section 8 of the U. P. Debt Redemption Act, 1940, subsection (1) of which, omitting the proviso, runs as ' follows: "Notwithstanding the provisions of any decree, or of any law for the time being in force, an agriculturist or a workman liable to pay the amount due under a decree to which this Act applies passed before the commencement of this Act, may apply to the Civil Court which passed the decree or to which the execution of the decree has been transferred, for the amendment of the decree by reduction according to the provisions of this Act of the amount due under it, and on receipt of such application the Court shall, after notice to the opposite party, calculate the amount due from the appli cant in accordance with the provisions of sections 9 and 10 and shall amend the decree accordingly. " It is clear from the wording of the sub section that there are three pre requisites for exercise of the right conferred by it, namely, (1) that the application must be by an agriculturist and (2)that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and (3) that that decree was passed before the commencement of this Act. That the judgment debtors appli cants were agriculturists at the date when suit No. 33 of 1938 was filed and also in 1942 when the application under section 8 was made is conceded by Sri G.N. Kunzru. The decree in that suit was passed on March 31, 1939, which was well before the commencement of the Act. The only question that remains is whether the amount was due under a decree to which the Act applies. Under section 2(6) of the Act the phrase "decree to which this Act applies" means a decree passed before or after the commencement of this Act in a suit to which this Act applies. Section 2(17) defines the phrase "suit to which this Act applies" as meaning any suit or proceeding relating to a loan. The question then, arises: was the decree under which the judgment debtors applicants are liable passed in a suit 652 relating to a loan ? Loan is thus defined in sec tion 2(9): 'Loan ' means an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does not include an advance the liability for the repayment of which has, by a contract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a co operative society or by a schedule bank: Provided that an advance recoverable from an agricul turist or from an agriculturist and other persons jointly shall not be deemed to be a loan for the purposes of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly." In order to be a "loan" the advance must be recoverable from an agriculturist. The word "recoverable" seems, prima facie, to indicate that the crucial point of time is when the advance becomes recover able, i.e., when the amount advanced becomes or falls due. Under the mortgage of 1931 the date of redemption was 6 years from the date of execution, i.e., in July 1937. Sri Kunzru concedes that Sita Ram was not as sessed to income tax.since 1936. Assuming, but without deciding, that the proviso to section 2 (9) applies and that in order to be a "loan" it must be shown that the advance was made to one who, at the date of the advance, was an agriculturist as defined in section 2(3) of the Act the question has yet to be answered, namely, had Sita Ram ceased to be an agriculturist by reason of clause (b) of the provi so to section 2(3), that is to say, by reason of his being assessed to income tax on July 28, 1931. According to the evidence of Surai Mani Tripathi and Sita Ram 653 income tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February 9, 1933. Therefore, Sita Ram was not assessed to incometax on July 28. It is not disputed that the taxable minimum was reduced from Rs. 2,000 perannum to Rs. 1,000 per annum by the Indian Finance (Supplementary & Extending)Act, 1931, which was enacted on November 26, 1931. Therefore, at the date of the advance, i.e., on July 28, 1931, Sita Ram Whose salary was below Rs. 2,000 per annum was not only not actually assessed to in come tax but was not even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduc tion of incometax out of the salary was in the month of February 1932 and the income tax assessment form for 1931 32 (Ex.S) shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year. The position therefore is that Sita Ram was not assessed to income tax at the date of the advance in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under section 8 in 1942. It consequently follows that he was an agriculturist on all these dates. The other judgment debtors were admittedly agriculturists. Therefore, the application under section 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by section 2(9). The Courts below therefore, were right in their conclusion that the judgment debtors applicants were entitled to the benefit of the Act. Sri G.N. Kunzru finally submitted that in any case the accounts could not be taken from 1922, for the mortgagees under the two mortgages were different. We have already pointed out that this point was not specifically taken in the decree holders ' petition of objection. The trial Court held as a fact that so far as the judgment debtors were concerned the 654 mortgagees were the same in both the mortgages. Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922, that ground was not specifi cally urged before the High Court. The determination of that question must necessarily involve an investigation into facts. We do not think, in the absence of a plea in this behalfin the decree holders ' petition of objection and also in view of their failure and neglect to raise this question before the High Court, it will be right for this final court of appeal, at this stage and in the circumstances of this case, to permit the appellants to raise this question of fact. The result, therefore, is that this appeal must stand dis missed with costs. Appeal dismissed.

A mortgage was executed by several persons on the 28th July, 1931. The term of the mortgage, namely six years, expired in July 1937, the mortgagees instituted a suit in May 1938 and a decree was passed in March 1939. An applica tion for relief under the U.P. Debt Redemption Act (XIII of 1940) was made on 11th April, 1942, and this application was resisted on the ground that S, one of the mortgagors, had been assessed to income tax and was therefore not an agri culturist, and the suit was not consequently "a suit to which the Act applied. " The evidence showed that S was earning a monthly salary of Rs. 90 and that from February 1932 he had been assessed to income tax till the year 1936. The High Court held, relying on the Full Bench ruling in Ketki Kunwar vs Ram Saroop (I.L.R. 1943 All. 35), that under sec. 21 of the Act the mortgage money could be recovered only from the mortgaged property and not personally and that the proviso to sec. 2 (9) of the Act had therefore no application and the question whether S was an agriculturist on the date of the mortgage was immaterial. As S was admit tedly an agriculturist on the date of the suit, the High Court held that the judgment debtors were entitled to relief under the Act. On appeal Held, that, assuming that the proviso to sec. 2 (9) applied and that in order to be a "loan" within the meaning of the Act it must be shown that the advance was made to one who at the date of the advance was an agriculturist, S was not an agriculturist on the 28th. July, 1931, as the Indian Finance (Supplementary and Extending)Act of 1931 which reduced the taxable minimum from Rs. 2,000 to Rs. 1,000 was passed only in November 1931 and income tax was first deducted from his salary only in February, 1932. Quaere: Whether the Full Bench decision in Ketki Kuwar vs Ram Saroop (I.L.R. 1943 All. 35) is correct.

ivil Appeal No. 417 of 1984. From the Judgment and Order dated 12.8.1981 of the Delhi High Court in C.W.P. No. 1835 of 1981. A.K. Ganguli, A. Sharan for the Appellant. Kapil Sibal, Additional Solicitor General, Raju Rama chandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents. T. Prasad for the Secretary, Ministry of Defence. The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal, by special leave, is directed against the order dated August 12, 1981, passed by the High Court of Delhi dismissing the writ petition filed by the appellant. In the writ petition the appellant had challenged the validity of the finding and the sentence recorded by the General Court Martial on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Staff confirming the findings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, passed by the Central Government dismissing the petition filed by the appellant under Section 164(2) of the (hereinafter referred to as 'the Act '). 48 The appellant held a permanent commission, as an offi cer, in the regular army and was holding the substantive rank of Captain. He was officiating as a Major. On December 27, 1974, the appellant took over as the Officer Commanding of 38 Coy. ASC (Sup) Type 'A ' attached to the Military Hospital, Jhansi. In August 1975, the appellant had gone to attend a training course and he returned in the first week of November 1975. In his absence Captain G.C. Chhabra was the officer commanding the unit of the appellant. During this period Captain Chhabra submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowkidars and sweepers. The said Contingent Bill was returned by the Controller of Defence Accounts (CDA) Meerut with certain objections. Thereupon the appellant submitted a fresh Contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the difference in the amounts mentioned in the two Contingent Bills, the CDA reported the matter to the headquarters for investiga tion and a Court of Enquiry blamed the appellant for certain lapses. The said report of the Court of Enquiry was considered by the General Officer Commanding, M.P., Bihar and Orissa Area, who, on January 7, 1977 recommended that 'severe displeasure ' (to be recorded) of the General Officer Com manding in Chief of the Central Command be awarded to the appellant. The General Officer Commanding in Chief. Central Command did not agree with the said opinion and by order dated August 26, 1977, directed that disciplinary action be taken against the appellant for the lapses. In view of the aforesaid order passed by the General Officer Commanding in Chief, Central Command, a charge sheet dated July 20. 1978, containing three charges was served on the appellant and it was directed that he be tried by Gener al Court Martial. The first charge was in respect of the offence under Section 52(f) of the Act, i.e. doing a thing with intent to defraud. the second charge was alternative to the first charge and was in respect of offence under Section 63 of the Act, i.e. committing an act prejudicial to good order and military discipline and the third charge was also in respect of offence under Section 63 of the Act. The appellant pleaded not guilty to the charges. The prosecution examined 22 witnesses to prove the charges. The General Court Martial. on November 29, 1978, found the appellant not guilty of the second charge but found him guilty of the first and the third charge and awarded the sentence of dismissal from service. The appellant submit 49 ted a petition dated December 18, 1978, to the Chief of Army Staff wherein he prayed that the findings and the sentence of the General Court Martial be not confirmed. The findings and sentence of the General Court Martial were confirmed by the Chief of the Army Staff by his order dated May 11, 1979. The appellant, thereafter, submitted a post confirmation petition under Section 164(2) of the Act. The said petition of the appellant was rejected by the Central Government by order dated May 6, 1980. The appellant thereupon filed the writ petition in the High Court of Delhi. The said writ petition was dismissed, in limine, by the High Court by order dated August 12, 1981. The appellant approached this Court for grant of special leave to appeal against the said order of the Delhi High Court. By order dated January 24, 1984, special leave to appeal was granted by this Court. By the said order it was directed that the appeal be listed for final hearing before the Constitution Bench. The said order does not indicate the reason why the appeal was directed to be heard by the Constitution Bench. The learned counsel for the appellant has stated that this direction has been given by this Court for the reason that the appeal involves the question as to whether it was incumbent for the Chief of the Army Staff, while confirming the findings and the sentence of the General Court Martial, and for the Central Govern ment, while rejecting the post confirmation petition of the appellant, to record their reasons for the orders passed by them. We propose to deal with this question first. It may be mentioned that this question has been consid ered by this Court in Som Datt Datta vs Union of India and Others, ; In that case it was contended before this Court that the order of the Chief of Army Staff confirming the proceedings of the Court Martial under Sec tion 164 of the Act was illegal since no reason had been given in support of the order by the Chief of the Army Staff and that the Central Government had also not given any reason while dismissing the appeal of the petitioner in that case under Section 165 of the Act and that the order of the Central Government was also illegal. This contention was negatived. After referring to the provisions contained in Sections 164, 165 and 162 of the Act this Court pointed that while Section 162 of the Act expressly provides that the Chief of the Army Staff may "for reasons based on the merits of the case" set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed, there is no express obligation imposed by Sections 164 and 165 of the Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial. This Court observed that no other section of the Act or any of the rules made 50 therein had been brought to its notice from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority. This Court did not accept the contention that apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is a general principle or a rule of natural justice that a statutory tribunal should always and in every case give reasons m support of its decision. Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Datta 's case (supra) to the extent it holds that there is no general principle or rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision needs reconsid eration inasmuch as it is not in consonance with the other decisions of this Court. In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in Bhagat Raja vs The Union of India and Others, ; ; Mahabir Prasad Santosh Kumar vs State of U.P. and Others, ; ; Woolcombers of India Ltd. vs Woolcombers Workers Union and Another, and Siemens Engineering & Manufacturing Co. of India Limited vs Union of India and Another, The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is no requirement in law that reasons be given by the con firming authority while confirming the finding or sentence of the Court Martial or by the Central Government while dealing with the post confirmation petition submitted under Section 164 of the Act and that the decision of this Court in Som Datt Datta 's case (supra) in this regard does not call for reconsideration. The question under consideration can be divided into two parts: (i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and (ii) If so, does the said principle apply to an order con firming the findings and sentence of a Court Martial and post confirmation proceedings under the Act? On the first part of the question there is divergence of opinion in the common law countries. The legal position in the United States is different from that in other common law countries. 51 In the United States the courts have insisted upon recording of reasons for its decision by an administrative authority on the premise that the authority should give clear indication that it has exercised the discretion with which it has been empowered because "administrative process will best be vindicated by clarity in its exercise" Phelps Dodge Corporation vs National Labour Relations Board, [1940] 85 Law Edn. 1271 at P. 1284. The said requirement of record ing of reasons has also been justified on the basis that such a decision is subject to judicial review and "the Courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review" and that "the orderly functioning of the process of review requires that the grounds upon which the administra tive agency acted be clearly disclosed and adequately sustained." Securities and Exchange Commission vs Chenery Corporation, ; at P. 636. In John T. Dunlop vs Waiter Bachowski, ; 377) it has been observed that a statement of reasons serves purposes other than judicial review inasmuch as the reasons promotes thought by the authority and compels it to cover the rele vant points and eschew irrelevancies and assures careful administrative consideration. The Federal Administrative Procedure Act, 1946 which prescribed the basic procedural principles which are to govern formal administrative proce dures contained an express provision (Section g(b) ) to the effect that all decisions shall indicate a statement of findings and conclusions as well as reasons or basis the, for upon all the material issues of fact, law or discretion presented on the record. The said provision is now contained in Section 557(c) of Title 5 of the United States Code (1982 edition). Similar provision is contained in the state stat utes. In England the position at Common law is that there is no requirement that reasons should be given for its decision by the administrative authority (See: Regina vs Gaming Board for Great Britain Ex Party Benaim and Khaida, [1970] 2 Q.B. 417 at p. 431 and McInnes vs Onslow Fane and Another, at p. 1531). There are, however, observa tions in some judgments wherein the importance of reasons has been emphasised. In his dissenting judgment in Breen vs Amalgamated Engineering Union and Others, Lord Denning M.R., has observed that: "the giving of reasons is one of the fundamental of good administration." (P. 191) In Alexander Machinery (Dudley) Ltd. vs Crabtree, Sir John Donaldson, as President of the National Industrial Relations Court, has observed that: 52 "failure to give reasons amounts to a denial of justice. " In Regina vs Immigration Appeal Tribunal Ex parte Khan (Mahmud), Lord Lane, CJ., while expressing his reservation on the proposition that any failure to give reasons means a denial of justice, has observed: "A party appearing before a tribunal is entitled to know either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind." (P. 794) The Committee on Ministers ' Powers (Donoughmore Commit tee) in its report submitted in 1932, recommended that "any party affected by a decision should be informed of the reasons on which the decision is based" and that "such a decision should be in the form of a reasoned document avail able to the parties affected." (P. 100) The Committee on Administrative Tribunals and Enquiries (Franks Committee) in its report submitted in 1957, recommended that "decisions of tribunals should be reasoned and as full as possible." The said Committee has observed: "Almost all witnesses have advocated the giving of reasoned decisions by tribunals. We are convinced that if tribunal proceedings are to be fair to the citizen reasons should be given to the fullest practicable extent. A decision is apt to be better if the reasons for it have to be set out in writing because the reasons are then more likely to have been properly thought out. Further, a reasoned decision is essential in order that, where there is a right of appeal, the applicant can assess whether he has good grounds of appeal and know the case he will have to meet if he decides to appeal." (Para 98) The recommendations of the Donoughmore Committee and the Franks Committee led to the enactment of the Tribunals and Enquiries Act, 1958 in United Kingdom. Section 12 of that Act prescribed that it shall be the duty of the Tribunal or Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving of notification of the decision to support the deci sion. The said Act has been replaced by the Tribunals and Enquiries Act, 1971 which contains a similar provision in Section 12. This requirement is. however, confined. in its applications to tribunals and statu 53 tory authorities specified in Schedule I to the said enact ment. In respect of the tribunals and authorities which are not covered by the aforesaid enactment, the position, as prevails at common law, applies. The Committee of JUSTICE in its Report, Administration Under Law, submitted in 1971, has expressed the view: "No single factor has inhibited the development of English administrative law as seriously as the absence of any gener al obligation upon public authorities to give reasons for their decisions. " The law in Canada appears to be the same as in England. In Pure Spring Co. Ltd. vs Minister of National Revenue, at P. 539 it was held that when a Minister makes a determination in his discretion he is not required by law to give any reasons for such a determination. In some recent decisions, however, the Courts have recognised that in certain situations there would be an implied duty to state the reasons or grounds for a decision (See: Re R D.R. Construction Ltd. And Rent Review Commission, and Re Yarmouth Housing Ltd. And Rent Review Commission, In the Province of Ontario the Statutory Powers Procedure Act, 1971 was enacted which provided that "a tribunal shall give its final deci sion, if any, in any proceedings in writing and shall give reasons in writing therefore if requested by a party." (Section 17). The said Act has now been replaced by the Statutory Powers and Procedure Act, 1980, which contains a similar provision. The position at common law is no different in Australia. The Court of Appeal of the Supreme Court of New South Wales in Osmond vs Public service Board of New South Wales, had held that the common law requires those entrusted by Statute with the discretionary power to make decisions which will affect other persons to act fairly in the performance of their statutory functions and normally this will require an obligation to state the reasons for their decisions. The said decision was overruled by the High Court of Australia in Public Service Board of New South Wales vs Osmond, and it has been held that there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests or defeat the legitimate or reasonable expectations, of other persons. Gibbs CJ., in his leading judgment, has expressed the view that "the 'rules of natural justice are 54 designed to ensure fairness in the making of a decision and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made. " The learned Chief Justice has. however. observed that "even assuming that in special circumstances natural justice may require reasons to be given, the present case is not such a case." (P. 568). Deane J., gave a concur ring judgment, wherein after stating that "the exercise of a decision making power in a way which adversely affects others is less likely to be. or appear to be, arbitrary if the decision maker formulates and provides reasons for his decision", the learned Judge has proceeded to hold that "the stage has not been reached in this country where it is a general prima facie requirement of the common law rules of natural justice or procedural fair play that the administra tive decision maker. having extended to persons who might be adversely affected by a decision an adequate opportunity of being heard. is bound to furnish reasons for the exercise of a statutory decision making power." (P. 572). The learned Judge has further observed that the common law rules of natural justice or procedural fair play are neither stand ardized nor immutable and that their content may vary with changes in contemporary practice and standards. In view of the statutory developments that have taken place in other countries to which reference was made by the Court of Ap peal, Deane, J. has observed that the said developments "are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision maker should be under a duty to give reasons." (P. 573). This position at common law has been altered by the Commonwealth Administrative Decisions (Judicial Review) Act. Section 13 of the said Act enables a person who is entitled to apply for review the decision before the Federal Court to request the decision maker to furnish him with a statement in writing setting out the findings on material questions of fact, referring to the evidence or other mate rial on which those findings were based and giving the reasons for the decision and on such a request being made the decision maker has to prepare the statement and furnish it to the persons who made the request as soon as practica ble and in any event within 28 days. The provisions of this Act are not applicable to the classes of decisions mentioned in Schedule I to the Act. A similar duty to give reasons has also been imposed by Sections 28 and 37 of the commonwealth Administrative Appeals Tribunal Act. In India the matter was considered by the Law Commission in 55 the 14th Report relating to reform in Judicial Administra tion. The Law Commission recommended: "In the case of administrative decisions provision should be made that they should be accompanied by reasons. The reasons will make it possible to test the validity of these deci sions by the machinery of appropriate writs." (Vol. II P. 694). No laws has, however, been enacted in pursuance of these recommendations, imposing a general duty to record the reasons for its decision by an administrative authority though the requirement to give reasons is found in some statutes. The question as to whether an administrative authority should record the reasons for its decision has come up for consideration before this Court in a number of cases. In M/s. Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunjhunwala and Others, ; , a Constitution Bench of this Court. while dealing with an order passed by the Central Government in exercise of its appellate powers under Section 111(3) of the in the matter of refusal by a company to register the transfer of shares, has held that there was no proper trial of the appeals before the Central Government since no reasons had been given in support of the order passed by the Deputy Secretary who heard the appeals. In that case it has been observed: "If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this Court under Article 136 of the Constitution we fail to see how the power of this Court can be effectively exercised if reasons are not given by the Central Government in support of its order." (P. 357) In Madhya Pradesh Industries Ltd. vs Union of India and Others, ; the order passed by the Central Government dismissing the revision petition under Rule 55 of the Mineral Concession Roles, 1960, was challenged before this Court on the ground that it did not contain reasons. Bachawat, J., speaking for himself and Mudholkar, J., re jected this contention on the view that the reason for rejecting the revision application appeared on the face of the order because the Central Government had agreed with the reasons given by 56 the State Government in its order. The learned Judges did not agree with the submission that omission to give reasons for the decision is of itself a sufficient ground for quash ing it and held that for the purpose of an appeal under Article 136 orders of courts and tribunals stand on the same footing. The learned Judges pointed out that an order of court dismissing a revision application often gives no reasons but this is not a sufficient ground for quashing it and likewise an order of an administrative tribunal reject ing a revision application cannot be pronounced to be in valid on the sole ground that it does not give reasons for the rejection. The decision in Hari Nagar Sugar Mills case (supra) was distinguished on the ground that in that case the Central Government had reversed the decision appealed against without giving any reasons and the record did not disclose any apparent ground for the reversal. According to the learned Judges there is a vital difference between an order of reversal and an order of affirmance. Subba Rao, J., as he then was, did to concur with this view and found that the order of the Central Government was vitiated as it did not disclose any reasons for rejecting the revision applica tion. The learned Judge has observed: "In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necessary concomi tants of a Welfare State. But arbitrariness in their func tioning destroys the concept of a welfare State itself. Self discipline and supervision exclude or at any rate minimize arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bounds, A reasoned order is a desirable condition of judicial disposal." (P. 472). "If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officer may turn out to be a potent weapon for abuse of power. But, if reasons for an order are given, it will be an effective restraint on such abuse, as the order, if its discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard." (P. 472). 57 "There is an essential distinction between a court and an administrative tribunal. A Judge is trained to look at things objectively, uninfluenced by considerations of policy or expediency; but an executive officer generally looks at things from the standpoint of policy and expediency. The habit of mind of an executive officer so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affect ing the rights of parties; and the least they should do is to give reasons for their orders. Even in the case of appel late courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or revisional court agrees with the reasoned judgment of the subordinate court or there are no legally permissible grounds to interfere with it. But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the first tribunal is laconic and does not give any reasons." (P. 472 73). With reference to an order of affirmance the learned Judge observed that where the original tribunal gives rea sons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons and that what is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by refer ence to those given by the original tribunal. This matter was considered by a Constitution Bench of this Court in Bhagat Raja case (supra) where also the order under challenge had been passed by the Central Government in exercise of its revisional powers under Section 30 of the read with rules 54 and 55 of the Mineral Concession Rules, 1960. Dealing with the question as to whether it was incum bent on the Central Government to give any reasons for its decision on review this Court has observed: "The decisions of tribunals in India are subject to the supervisory powers of the High Courts under article 227 of the Constitution and of appellate powers of this Court under article 136. It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word "rejected", or "dismissed". In 58 such a case, this Court can probably only exercise its appeallate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealing with the appeal." (P. 309). This Court has referred to the decision in Madhya pra desh Industries case (supra) and the observations of Subba Rao, J., referred to above, in that decision have been quoted with approval. After taking note of the observations of Bachawat, J., in that case, the learned Judges have held: "After all a tribunal which exercises judicial or quasijudi cial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of par ties of far reaching consequences to them are adjudicated upon in a summary fashion, without giving a personal hearing when proposals and counter proposals are made and examined, the least that can be expected is that the tribunals shall tell the party why the decision is going against him in all cases where the law gives a further right of appeal." (P.315). Reference has already been made to Som Datt Datta 's case (supra) wherein a Constitution Bench of this Court has held that the confirming authority, while confirming the findings and sentence of a Court Martial, and the Central Government, while dealing with an appeal under Section 165 of the Act, are not required to record the reasons for their decision and it has been observed that apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, it could not be said that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. In that case the Court was primarily concerned with the interpretation of the provisions of Act and the Army Rules, 1954. There is no reference to the earlier decisions in Harinagar Sugar Mills case (supra) and Bhagat Raja case (supra) wherein the duty to record reasons was imposed in view of the appellate jurisdiction of this Court and the supervisory jurisdiction of the High Court under Articles 136 and 227 of the Consti tution of India respectively. In Travancore Rayon Ltd. vs Union of India, 59 "The Court insists upon disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceedings before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deter rent against possible arbitrary action by the executive authority invested with the judicial power." (P. 46) In Mahabir Prasad Santosh Kumar vs State of U.P. and Others (supra) the District Magistrate had cancelled the licence granted under the ' U.P Sugar Dealers ' Licensing Order, 1962 without giving any reason and the State Govern ment had dismissed the appeal against the said order of the District Magistrate without recording the reasons. This Court has held: "The practice of the executive authority dismissing statuto ry appeal against orders which prima facie seriously preju dice the rights of the aggrieved party without giving rea sons is a negation of the rule of law." (P. 204) "Recording of reasons in support of a decision on a disputed claim by a quasi judicial authority ensures that the deci sion is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may deter mine whether the facts were properly ascertained, the rele vant law was correctly applied and the decision was just." (P. 205) In Woolcombers of India Ltd. case (supra) this Court was dealing with an award of an Industrial Tribunal. It was found that the award stated only the conclusions and it did not give the supporting reasons. This Court has observed: "The giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrari 60 ness in reaching the conclusions. The very search for rea sons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Second, it is a well known principle that justice should not only be done but should also appear to be done. Unreasoned conclusions may be just but they may not appear to be just to those who read them. Reasoned conclu sions, on the other hand, will have also the appearance of justice. Third, it should be remembered that an appeal generally lies from the decision of judicial and quasi judicial authorities to this Court by special leave granted under Article 136. A judgment which does not disclose the reasons, will be of little assistance to the Court." (P. 507) In Siemens Engineering & Manufacturing Co. of India Limited case (supra) this Court was dealing with an appeal against the order of the Central Government on a revision applica tion under the . This Court has laid down: "It is now settled law that where an authority makes an order in exercise of a quasi judicial function it must record its reasons in support of the order it makes. Every quasijudicial order must be supported by reasons." (P 495) "If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then along administrative au thorities and tribunals, exercising quasi judicial function will be able to justify their existence and carry credibili ty with the people by inspiring confidence in the adjudica tory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partera, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its 61 proper spirit and mere pretence of compliance with it would not satisfy the requirement of law." (496) Tarachand Khatri vs Municipal Corporation of Delhi & Others, [1977] 2 SCR 198 was a case where an inquiry was conducted into charges of misconduct and the disciplinary authority, agreeing with the findings of the Inquiry Offi cer, had imposed the penalty of dismissal. The said order of dismissal was challenged on the ground that the disciplinary authority had not given its reasons for passing the order. The said contention was negatived by this Court and distinc tion was drawn between an order of affirmance and an order of reversal. It was observed: " . . while it may be necessary for a disciplinary or administrative authority exercising quasi judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the Inquiry Officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition too broadly to say that even an ordi nary concurrence must be supported by reasons." (P. 208) In Raipur Development Authority and Others vs Mls. Chokhamal Contractors and Others, [1989] 2 S.C.C. 721 a Constitution Bench of this Court was considering the ques tion whether it is obligatory for an arbitrator under the Arbitration Act, 194(1 to give reasons for the award. It was argued that the requirement of giving reasons for the deci sion is a part of the rules of natural justice which are also applicable to the award of an arbitrator and reliance was placed on the decisions in Bhagat Raja case (Supra) and Siemens Engineering Co. case (Supra). The said contention was rejected by this Court. After referring to the decisions in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and Siemens Engineering Co. case (Supra) this Court has ob served: "It is no doubt true that in the decisions pertaining to Administrative Law, this court in some cases has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rules. It would be in the interest of the world of commerce that the said rule is confined to the area of Administrative Law . . But at the same time it has to be borne in mind that what applies generally to settlement of disputes by 62 authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settle ment of private disputes." (P. 751 52) The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consid eration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decisionmaking. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by con siderations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi judicial func tions, would no doubt facilitate the exercise of its juris diction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the re cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrari ness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to deci sions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an admin istrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added 63 that it is not required that the reasons should be as elabo rate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional author ity agrees with the reasons contained in the order under challenge. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasi judicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donough more Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi judi cial. The committee expressed the opinion that "there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that "where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity." (P 80) Prof. H.W.R. Wade has also ex pressed the view that "natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man 's sense of justice." (See Wade, Administra tive Law, 6th Edn. P. 548). In Siemens Engineering Co. case (Supra) this Court has taken the same view when it observed that "the rule requiring reasons to be given in support of an order is, like the principles of audi alteram parlem, a basic principle of natural justice which must inform every quasi judicial process." This decision proceeds on the basis that the two well known principles of natural justice, namely (i) that no man should be a Judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two princi ples there may be rules which seek to ensure fairness in the process of decision making and can be regarded as part of the principles of natural justice. This view is in conso nance with the law laid down by this Court in A.K. Kraipak and Others vs Union of India and Others, , wherein it has been held: 64 "The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice." (P. 468 69) A similar trend is discernible m the decisions of Eng lish Courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. (See: R. vs Deputy Industrial Injuries Commissioner ex P. Moore, ; Mahon vs Air New Zealand Ltd., The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about re cording of reasons for its decision by an administrative authority exercising quasi judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making. Keep ing in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by adminis trative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an adminis trative authority including exercise of judicial or quasi judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provi sion to that affect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Deci sions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the sub ject matter, the scheme and the provisions of the 65 enactment. The public interest underlying such a provision would outweight the salutary purpose served by the require ment to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administra tive authority exercising judicial or quasi judicial func tions is required to record the reasons for its decision. We may now come to the second part of the question, namely, whether the confirming authority is required to record its reasons for confirming the finding and sentence of the court martial and the Central Government or the competent authority entitled to deal with the post confirma tion petition is required to record its reasons for the order passed by it on such petition. For that purpose it will be necessary to determine whether the Act or the Army Rules, 1954 (hereinafter referred to as 'the Rules ') ex pressly or by necessary implication dispense with the re quirement of recording reasons. We propose to consider this aspect in a broader perspective to include the findings and sentence of the court martial and examine whether reasons are required to be recorded at the stage of (i) recording of findings and sentence by the court martial; (ii) confirma tion of the findings and sentence of the court martial; and (iii) consideration of post confirmation petition. Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part Ill shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them. By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judg ment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Forces. Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any Court or tribunal constituted by or under any law relat ing to the Armed Forces. This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of 66 proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said pro ceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record. Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for the findings and sentence of the court martial. Section 108 of the Act makes provision for four kinds of courts martial, namely, (a) general courts martial; (b) district courts martial; (c) summary general courtsmar tial and (d) summary courts martial. The procedure of court martial is prescribed in Chapter XI (Sections 128 to 152) of the Act. Section 129 prescribes that every general court martial shall, and every district or summary general court martial, may be attended by a judge advocate, who shall be either an officer belonging to the department of the Judge Advocate General, or if no such officer is available, an officer approved of by the Judge Advocate General or any of his deputies. In sub section (1) of Section 131 it is pro vided that subject to the provisions of sub sections (2) and (3) every decision of a courtmartial shall be passed by an absolute majority of votes, and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused. In sub section (2) it is laid down that no sentence of death shall be passed by a general courtmartial without the concurrence of at least two thirds of the members of the court and sub section (3) provides that no sentence of death shall be passed by a summary general court martial without the concurrence of all the members. With regard to the procedure at trial before the General and District courts martial further provisions are made in Rules 37 to 105 of the Rules. In Rule 60 it is provided that the judge advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case and that after the summing up of the judge advocate no other address shall be allowed. Rule 61 prescribes that the Court shall deliberate on its findings in closed court in the presence of the judge advocate and the opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately. Rule 62 prescribes the form, record and announcement of finding and in sub rule (1) it is provided that the finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of "Guilty" or of "Not guilty". Sub rule (10) of Rule 62 lays down that the finding on charge shall be announced forthwith in open court as subject to confirmation. Rule 64 lays down 67 that in cases where the finding on any charge is guilty, the court, before deliberating on its sentence, shall, whenever possible take evidence in the matters specified in sub rule (1) and thereafter the accused has a right to address the court thereon and in mitigation of punishment. Rule 65 makes provision for sentence and provides that the court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offence in each charge and in respect of which it can be legally given, and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given. Rule 66 makes provisions for recommendation to mercy and sub rule (1) prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its recommendation. Sub rule (1) of Rule 67 lays down that the sentence together with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court. The powers and duties of judge advocate are pre scribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case before the court proceeds to deliberate upon its find ing and the court, in following the opinion of the judge advocate on a legal point may record that it has decided in consequences of that opinion. The said rule also prescribes that the judge advocate has, equally with the presiding officer, the duty of taking care that the accused does not suffer any disadvantage in consequences of his position as such, or of his ignorance or incapacity to examine or cross examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him neces sary or desirable to elicit the truth. It is further laid down that in fulfilling his duties, the judgeadvocate must be careful to maintain an entirely impartial position. From the provisions referred to above it is evident that the judge advocate plays an important role during the courts of trial at a general court martial and he is enjoined to maintain an impartial position. The court martial records its findings after the judge advocate has summed up the evidence and has given his opinion upon the legal bearing of the case. The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of "guilty" or of "not guilty". It is also required that the sentence should be announced forth with in open court. Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy. There is no such require 68 ment in other provisions relating to recording of findings and sentence. Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to have a specific provi sion for recording of reasons for the recommendation to mercy. The said provisions thus negative a requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the courtmartial makes a recommendation to mercy. In our opinion, therefore, at the stage of recording of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court mar tial makes such a recommendation. As regards confirmation of the findings and sentence of the court martial it may be mentioned that Section 153 of the Act lays down that no finding or sentence of a General, District or summary General, Court Martial shall be valid except so far as it may be confirmed as provided by the Act. Section 158 lays down that the confirming authority may while confirming the sentence of a court martial mitigate or remit the punishment thereby awarded, or commute that pun ishment to any punishment lower in the scale laid down in Section 71. Section 160 empowers the confirming authority to revise the finding or sentence of the court martial and in sub section (1) of Section 160 it is provided that on such revision, the court, if so directed by the confirming au thority, may take additional evidence. The confirmation of the finding and sentence is not required in respect of summary court martial and in Section 162 it is provided that the proceedings of every summary court martial shall Without delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer; and such officer or the Chief of the Army Staff or any officer empowered in this behalf may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed. In Rule 69 it is provided that the proceedings of a general court martial shall be submitted by the judge advocate at the trial for review to the deputy or assistant judge advocate general of the command who shall then forward it to the confirming officer and in case of district court martial it is provided that the proceedings should be sent by the presiding officer, who must, in all cases. where the sentence is dismissal or above, seek advice of the deputy or assistant judge advocate general of the command before confirmation. Rule 70 lays down that upon receiving the proceedings of a general or district Court Martial, the confirming authority may 69 confirm or refuse confirmation or reserve confirmation for superior authority, and the confirmation, non confirmation, or reservation shall be entered in and form part of the proceedings. Rule 71 lays down that the charge, finding and sentence, and any recommendation to mercy shall, together with the confirmation or non confirmation of the proceed ings, be promulgated in such manner as the confirming au thority may direct, and if no direction is given, according to custom of the service and until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated. The provisions mentioned above show that confirmation of the findings and sentence of the court martial is necessary before the said finding or sentence become operative. In other words the confirmation of the findings and sentence is an integral part of the proceedings of a court martial and before the findings and sentence of a court martial are confirmed the same are examined by the deputy or assistant judge advocate general of the command which is intended as a check on the legality and propriety of the proceedings as well as the findings and sentence of the court martial. Moreover we find that in Section 162 an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary courtmartial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of proceedings for confirmation. The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceed ings of a summary court martial are set aside or the sen tence is reduced and not when the findings and sentence are confirmed. Section 162 thus negatives a requirement to give reasons on the part of the confirming authority while con firming the findings and sentence of a court martial and it must be held that the confirming authority is not required to record reasons while confirming the findings and sentence of the courtmartial. With regard to post confirmation proceedings we find that subsection (2) of Section 164 of the Act provides that any person subject to the Act who considers himself ag grieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders 70 thereon as it or he thinks fit. In so far as the findings and sentence of a court martial and the proceedings for confirmation of such findings and sentence are concerned it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same. Has the legislature made a departure from the said scheme in respect of post confirmation proceedings? There is nothing in the language of sub section (2) of Section 164 which may lend support to such an intention. Nor is there anything in the nature of post confirmation proceedings which may require recording of reasons for an order passed on the post confirmation petition even though reasons are not required to be recorded at the stage of recording of findings and sentence by a court martial and at the stage of confirmation of the findings and sentence of the court martial by the confirming authority. With regard to record ing of reasons the considerations which apply at the stage of recording of findings and sentence by the court martial and at the stage of confirmation of findings and sentence of the courtmartial by the confirming authority are equally applicable at the stage of consideration of the post confir mation petition. Since reasons are not required to be re corded at the first two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post confirmation petition under Section 164(2) of the Act. For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the post confir mation petition. Since we have arrived at the same conclu sion as in Sorn Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is. therefore, rejected. But that is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the CourtMartial or by the Central Government while passing its order on the post confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings. We will, therefore, examine the other contentions that have 71 been urged by Shri Ganguli in support of the appeal. The first contention that has been urged by Shri Ganguli in this regard is that under sub section (1) of Section 164 of the Act the appellant had a right to make a representa tion to the confirming authority before the confirmation of the findings and sentence recorded by the court martial and that the said right was denied inasmuch as the appellant was not supplied with the copies of the relevant record of the court martial to enable him to make a complete representa tion and further that the representation submitted by the appellant under sub section (1) of Section 164 was not considered by the confirming authority before it passed the order dated May 11, 1979 confirming the findings and sen tence of the court martial. The learned Additional Solicitor General, on the other hand, has urged that under sub section (1) of Section 164 no right has been conferred on a person aggrieved by the findings or sentence of a court martial to make a representation to the confirming authority before the confirmation of the said findings or sentence. The submis sion of learned Additional Solicitor General is that while sub section (1) of Section 164 refers to an order passed by a court martial, sub section (2) of Section 164 deals with the findings or sentence of a court martial and that the only right that has been conferred on a person aggrieved by the finding or sentence of a court martial is that under sub section (2) of Section 164 and the said right is avail able after the finding and sentence has been confirmed by the confirming authority. We find considerable force in the aforesaid submission of learned Additional Solicitor Gener al. Section 164 of the Act provides as under: "(1) Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any tinging or sentence of such court martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correct ness. legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who 72 confirmed such finding or sentence and the Central Govern ment, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit. " In sub section (1) reference is made to orders passed by a courtmartial and enables a person aggrieved by an order to present a petition against the same. The said petition has to be presented to the officer or the authority empowered to confirm any finding or sentence of such court martial and the said authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of any proceedings to which the order relates. Sub section (2), on the other hand, makes specific reference to finding or sentence of a court martial. and confers a right on any person feeling aggrieved by a finding or sentence of any court martial which has been confirmed, to present a peti tion to the Central Government, Chief of the Army Staff or any prescribed officer. The use of the expression "order" in sub section (1) and the expression "finding or sentence" in sub section (2) indicates that the scope of sub section (1) and sub section (2) is not the same and the expression "order" in sub section (1) cannot be construed to include a "finding or sentence". In other words in so far as the finding and sentence of the court martial is concerned the only remedy that is available to a person aggrieved by the same is under sub section (2) and the said remedy can be invoked only after the finding or sentence has been con firmed by the confirming authority and not before the con firmation of the same. Rule 147 of the Rules also lends support to this view. In the said Rule it is laid down that every person tried by a court martial shall be entitled on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required, and before the proceedings are destroyed, to obtain from the officer or person having the custody of the proceeding a copy thereof including the proceedings upon revision, if any. This Rule envisages that the copies of proceedings of a court martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed. This means that the appellant cannot make a grievance about non supply of the copies of the proceedings of the court martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of the court martial before the confirmation of the said finding and sentence. Though a person aggrieved by the finding or sentence of a courtmar tial has no right to make a representation before the confi ramtion 73 Of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the court martial. In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming au thority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979. According to the counter affidavit filed on behalf of Union of India this was due to the reason that the said represen tation had not been received by the confirming authority till the passing of the order of confirmation. It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of con firmation. Since we have held that the appellant had no legal right to make a representation at that stage the non consideration of the same by the confirming authority before the passing of the order of confirmation would not vitiate the said order. Shri Ganguli next contended that the first and the second charge levelled against the appellant are identical in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the first charge can not be sustained. It is no doubt true that the allegations contained in the first and the second charge are practically the same. But as mentioned earlier, the second charge was by way of alternative to the first charge. The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time. Since the appellant had been found guilty of the first charge he was acquitted of the second charge. There is, therefore, no infirmity in the court martial having found the appellant guilty of the first charge while holding him not guilty of the second charge. Shri Ganguli has also urged that the findings recorded by the court martial on the first and third charges are perverse inasmuch as there is no evidence to establish these charges. We find no substance in this contention. The first charge was that the appellant on or about December 1975, having received 60.61 meters woollen serge from M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and pants for Class IV civilian employees of his unit with intent to defraud 74 got 19 altered ordnance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received. To prove this charge the prosecution exam ined Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December, 1975. The evidence of these witnesses is corroborated by B.D. Joshi, Chowkidar, P.W. 3, who has deposed that in the last week of December, 1975, the appellant had told him in his office that cloth for their liveries had been received and they should give their measurements. As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/sub. P. Vishwambharam P.W. 19 who has deposed that he was called by the appellant to his office in the last week of December, 1975 or the first week of January, 1976 and that on reaching there he found ordnance pattern woolien pants lying by the side of the room wall next to the appellant 's table and that the appellant had called Mohd. Sharif P.W. 15 to his office and had asked him to take out 19 woolien trousers out of the lot kept there in the office. After Mohd. Sharif had select ed 19 woollen trousers the appellant told Mohd. Sharif to take away these pants for alteration and refitting. The judge advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, in holding the appellant guilty of the first charge, has acted upon it. It cannot, therefore, be said that there is no evidence to establish the first charge levelled against the appellant and the findings recorded by the court martial in respect of the said charge is based on no evidence or is perverse. The third charge, is that the appellant having come to know that Capt. Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 omitted to initiate action against Capt. Chhabra. In his summing up before the court martial the judge advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Exh. 'CC ') raising cert in objection with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 and pointed out that the said letter was received in the unit on or about November 28, 1975 and bears the initials of the appellant with the aforesaid date and remark "Q Spk with details". This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975. It is not the case of the appellant that he made any complaint against Captain 75 Chhabra thereafter. It cannot, therefore, be said that the finding recorded by the court martial on the third charge is based on no evidence and is perverse. In the result we find no merit in this appeal and the same is accordingly dismissed. But in the circumstances there will be no order as to costs. R.N.J. Appeal dismissed.

The Appellant was officiating as a Major though he held a substantive rank of Captain as a permanent Commissioned Officer of the army when on December 27, 1974 he took over as the Officer Commanding 38 Coy. A.S.C. (Sup) Type 'A ' attached to the Military Hospital, Jhansi. In August, 1975 the Appellant went to attend a training course and returned in the first week of November. In his absence Captain G.C. Chhabra was commanding the unit of the appellant and he submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowki dars and sweepers. The said Bill was returned by the Con troller of Defence Accounts (CDA) with certain objections. Thereupon the appellant submitted a fresh contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57. In view of the wide difference in the two Contingent Bills, the CDA reported the matter to the Headquarters for investigation and a Court Enquiry blamed the appellant for certain lapses. After considering the said report of the Court of En quiry the General Officer Commanding, M.P., Bihar and Orissa recommended that 'severe displeasure ' (to be recorded) of the General Officer Commanding in Chief of the Central Command be awarded to the appellant. The General Officer Commanding in Chief Central Command, however. did not agree with the said opinion and by order dated August 26, 1977 directed that disciplinary action be taken against the appellant for the lapses. Pursuant to the said order a charge sheet dated July 20, 1978 containing three charges was served on the appellant and it was directed that he be tried by General Court Mar tial. The first charge was, doing of a thing with intent to defraud under section 52(f) of the Act. The second charge was alternative to the first charge i.e. commit 45 ting an act prejudicial to good order and military disci pline under section 63 of the Act and the third charge was also in respect of offence under section 63 of the Act. 'the appellant pleaded not guilty to the charges. The General Court Martial on November 29, 1978 found him guilty of first and third charge and awarded the sentence of dis missal from service. Thereupon the appellant submitted petition dated December 18, 1978 to the Chief of Army Staff praying that the findings of the General Court Martial be not confirmed. The Chief of the Army Staff by his order dated May 11, 1979 confirmed the findings and sentence of the General Court Martial. The appellant thereafter submit ted a post confirmation petition under section 164(2) of the Act. This was rejected by the Central Government by order dated May 6, 1980. Thereupon the appellant filed a writ petition in the High Court of Delhi which was dismissed in limine. Hence this appeal by special leave directed to be heard by the Constitution Bench for the reason that it involves the question as to whether it was incumbent for the Chief of the Army Staff, while confirming the findings and sentence of the General Court Martial and for the Central Government while rejecting the post confirmation petition of the appellant to record their reasons for the orders passed by them. Dismissing the appeal, this Court, HELD: The requirement that reasons be recorded should govern the decisions of an administrative authority exercis ing quasi judicial functions irrespective of the fact wheth er the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. [62H; 63A B] The need for recording of reasons is greater in a case where the order is passed at the original stage. The appel late or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revision al authority agrees with the reasons contained in the order under challenge. [63B] Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administra tive authority exercising judicial or quasi judicial func tions is required to record ' the reasons for its decision. [65B] 46 The provisions contained in the and the Army Rules, 1954 negative a requirement to give reasons for its findings and sentence by a Court Martial and reasons are not required to be recorded in cases where the Court Martial makes a recommendation to mercy. Similarly, reasons are not required to be recorded for an order passed by the confirm ing authority confirming the findings and sentence recorded by the Court Martial as well as for the order passed by the Central Government dismissing the post confirmation peti tion. [70E F] Sub section (1) of section 164 of the enables a person aggrieved by an order passed by a Court Martial to present a petition against the same. The expression "order" under sub section (1) does not include a finding or sentence of the Court Martial and in so far as the finding and sen tence of the Court Martial is concerned the only remedy that is available to a person aggrieved by the same is under sub section (2) of section 164 of the and the said remedy can be invoked only after the finding or sentence has been confirmed by the confirming authority and not before the confirmation of the same. [72B; D E] Though a person aggrieved by the finding or sentence of a Court Martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person ag grieved by the finding or sentence of a Court Martial it is expected that the confirming authority shall give due con sideration to the same while confirming the finding and sentence of the Court Martial. [72H; 73A] Som Datt Datta vs Union of India & Ors., [1969] 2 S.C.R. 177; Bhagat Raja vs The Union of India & Ors., ; ; Mahabir Prasad Santosh Kumar vs State of U.P. & Ors., ; ; Woolcombers of India Ltd. vs Woolcombers Workers Union & Ant., [1974] I S.C.R. 503; Siemens Engineering & Manufacturing Co. of India Ltd. vs Union of India & Anr., ; Phelps Dodge Corporation vs National Labour Relations Board, [1940] 85 Law Edn. 1271 at p. 1284; Securities and Exchange Commis sion vs Chenery Corporation; , at p. 636; John T. Dunlop vs Waiter Bachewski, ; 377; Regina vs Gaming Board for Great Britain, Exparte Benaim & Khaida, ; at p. 431; Mc Innes vs Onslow Fane & Anr., at p. 1531; Breen vs Amalgamated Engineering Union & Ors., ; Alexander Machinery (Dudley) Ltd. vs Crabtree, [1974] I.C.R. 120; Regina vs Immigration Appeal Tribunal Ex Parte Khan (Mahmud), ; Pure Spring Co. Ltd. vs Minister of National Revenue, 47 at p. 539; Re R.D.R. Construction Ltd. & Rent Review Commission, 168; Re Yar mouth Housing Ltd. & Rent Review Commission, ; Osmond vs Public Service Board of New South Wales, ; Public Service Board of New South Wales vs Osmond, ; M/s. Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunjhunwala & Ors., ; ; Madhya Pradesh Industries Ltd. vs Union of India & Ors., ; ; Tranvancore Rayon Ltd. vs Union of India; , ; Tarachand Khatri vs Municipal Corporation of Delhi & Ors., [1977] 2 S.C.R. 198; Raipur Development Authority & Ors. vs M/s. Chokhamal Con tractors & Ors., [1989] 2 S.C.C. 721; A.K. Kraipak & Ors. vs Union of India & Ors. , ; R. vs Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456 and Mahon vs Air New Zealand Ltd., , referred to.

minal Appeal No. 398 of 1993. From the Judgment and Order dated 12.3.1992 of the IVth Metropolitan Megistrate, Hyderabad in Crl. M.P. No. 92/92 in C.C. No. 234 of 1985. WITH Writ Petition No. 623 of 1993. (Under Article 32 of the Constitution of India) K.K. Venugopal, L.K. Pandey and section Anand for the Petitioner. D.P. Gupta. Solicitor General and Ms. A. Subhashni for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Special leave granted. The brief facts leading to this appeal are that the appellant 's daughter Geetha married respondent No. 1 (original accused No. 1) sometime in October 1976 according to Hindu rites and thereafter left for Ireland. A daughter was born to the couple on July 27, 1978 in Ireland. She was named Nivedita. In April 1979, the couple along with the child moved to the United States of America, the Child travelling on an Irish passport. In October 1979 Geetha wrote to her mother. the appellant, expressing her desire that Nivedita should be brought up under her care in India. On the appellant expressing her willingness to look after the child, Nivedita was sent to India via Bombay where the appellant received her. The child then remained in the custody of the appellant. In March 1980 Geetha returned to 470 India presumbly because her husband had developer intimacy with an American girl and had started to ill treat her. Within a week after her arrival in India she committed suicide by setting herself on fire. Nivedita continued to remain in the care and custody of the appellant. The first respondent married the American girl, with whom he had developed intimacy, sometime in the year 1983 84 and embraced Christianity. Thereupon the appellant filed an application in the Court of the Chief judge, City Civil Court, Hyderabad, being O.P. No. 203 of 1984, for appointing her as the guardian of the person of the minor child under the provisions of , Respondent No. 1 entered an appearance in the said proceedings through his Advocate and sought time to file a counter. Leter, he returned to India on December 14, 1984, After reaching India he obtained a duplicate passportfor Nivedita and thereafter with the help of his associates picked up Nivedita fromher school ignoring the protests of the Head Mistress of the School. The HeadMistress immediately filed a complaint with the commissioner of police and informed the appellant about the same who in turn lodged a First Information Report in that behalf. On enquiry the appellant 's son traced respon dent No. 1 and his three companions (who had assisted him in procuring the child) at the Madras Airport. Despite his entreaties, respondent No. 1 forcibly took the child to U.S.A via Singapore. Since then Nivedita is in the custody of respondent No. 1 and his newly married wife Maureen. After thus removing the child from the lawful custody of the appellant, respondent No. 1 's Advocate withdrew from the guardianship proceedings. The Court, however, appointed the appellant as the guardian of the person of Nivedita. The appellant also filed a complaint alleging kidnapping against respondent No. 1 and his three companions who had aided and abetted him in the Court of the IVth Metropolitan Magistrate. Hyderabad, which came to be numbered as C.C.No. 234 of 1985. Process was issued in the said proceedings land the accused persons were duly served. The respondents thereafter moved an application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code ') for quashing the process on the plea that in law a father is entitled to his daughter 's custody and hence cannot be liable under section 363, [PC. In that application the High Court directed that the child be produced before it. However, the child was not produced before the Court and the Court ultimately dismissed the application against which a Special Leave Petition was filed in this Court. This Court also rejected the Special Leave Petition. On the other hand while the application under Section 482 of the Code was pending in the High Court, the father of respondent No. 1 filed an application for rescinding the order appointing the appellant as the guardian of the person of Nivedita. In the meantime, the Supreme Court in New Jersey U.S.A., was moved which court passed an order permitting respondent No.1 to retain No. 1 to retain the custody of the child on the ground that the Indian Courts had violated the due process clause. The Chief Judge, City Civil Court, Hyderabad, ultimately dismissed the father 's application for rescinding the 471 earlier order by which the appellant was appointed the guardian of the person of the child. As staed earlier the Superior Court, New Jersey, having permitted respondent No. 1 to retain the custody of Nivedita, the child 's step mother Maureen applied for permission to adopt Nivedita who had by then been converted to Christianty. On that permission being granted the adopted mother and respondent No. 1 sent the Child to a Christian school. In the complaint lodged against respondent No. 1 and his associates. respondent No. 1 applied for exemption from personal attendance which was granted on condition that he will appear whenever called upon to do so by the court. Respondent No. 1 was thus represented in the said complaint through his Advocate. In the said criminal complaint after framing the charge for kidnapping evidence of the prosecution witnesses was recorded in the presence of the Advocate for respondent No. 1 and the other respondents and on completion of the evidence respondent No. 1 's Advocate sought permission to be examined in place of respondent No. 1 under section 313 of the Code. This permission was granted and he was examined under section 313 of the Code. On completion of the examination the appellant not being satisfied with some of the replies given by the Advocate filed an application prayino that respondent No. 1 should be directed to personally appear in Court and be examined under section 3 13 of the Code. The learned Magistrate dismissed the said application whereupon the present appeal has been filed on the plea that no appeal or revision lay against the order impugned herein. These are the averments on which the present appeal is founded. The question then is whether the learned Magistrate was right in examining the Advocate of respondent No. 1 in place of respondent No. 1 himself under section 313 of the Code? Sub section (1) of section 313 reads as under: "Power to examine the accused (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court (a)May at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b)shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: 472 Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). " This sub section was introduced in its present form pursuant to the recommendations made in the 41st Report of the Law Commission. It now begins with the words 'in every inquiry or trial ' to set at rest any doubt in regard to its application to summons cases. the old sub section (1) of section 342 has now been divided into two clauses (a) & (b). Clause (a) uses the expression 1 may to indicate that the matter is left to the discretion of the Court to put questions to the accused at any stage of the inquiry or trial whereas clause (b) uses the expression 'shall ' to convey that it is mandatory for the Court to examine the accused after the witnesses for the prosecution have been examined before he is called on for his defence. The proviso is a new provision Which came to be added to sub section (1) with a view to enabling the Court to dispense with the examination of the accused under clause (b) in a summons case if the Court has already dispensed with his personal attendance at an earlier point of time. Therefore, if the Court on completion of the prosecution evidence finds that there are certain circumstances appearing in the evidence against the accused, the Court is obliged by clause (b) to question the accused before he is called on for his defence. This provision is general in nature and applies to all inquiries and trials under the Code. The purpose of the said provision is to give the accused an opportunity to explain the circumstances appearing against him in evidence tendered by the prosecution so that the said explanation can be weighed vis a vis the prosecution evidence before the Court reaches its conclusion in that behalf. It is thus clear on a plain reading of section 313 (1) of the Code, that the Court is empowered by clause (a) to question the accused at any stage of the inquiry or trial while clause (b) obligate the Court to question the accused before he enters of his defence on any circumstance appearing in the prosecution evidence against him. The section incorporates a rule of audi alteram partem and is actually intended for the benefit of the accused person. The newly added proviso is in the nature of an exception to clause (b) of subsection (1) of section 313 of the Code. It applies to a summons case; it states in no uncertain terms that in a summons case where the court has dispensed with the personal attendance of the accused it would be open to the court to dispense with the examination of the accused under clause (b) of section 313 (1) of the Cods. Even in cases where the personal presence of the accused has been dispensed with under section 205(1) or section 317 of the Code the Magistrate can dispense with the mandatory requirement of clause (b) only in a summons case i.e, a case other than a warrant case This is clear on plain reading of the definitions of a summons 473 case in Section 2(w)and a warrant case in section 2(x)of the Code. A warrant case is defined as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Since an offence under section 363 IPC is punishable with imprisonment for a term exceeding two years it is a warrant case and not a summons case. Therefore, even in cases where the court has dispensed with the personal attendance of the accused under section 205(1) or section 317 of the Code, the court cannot dispense with the examination of the accused under clause (b) of section 313 of the Code because such examination is mandatory. If the accused is a company or a juridical person it may be open to examine the person conversant with the facts of the case. It would thus appear that the mandate of section 313 (1) (b) demands that the accused person, if not a company or other juridical person, most be personally examined to explain the incriminating circumstances appearing against him in the prosecution evi dence and the examination of his lawyer would not be sufficient compliance with the mandate of said provision. A similar question arose for consideration in Bibhuti Bhushan Das Gupta & Anr. vs State of West Bengal ; = under the provisions of the old Code. In that case this Court noticed that the accused was not personally examined under section 342 of the Code. It was submitted that the trial was vitiated as the accused was not personally examined as required by section 342 of the old Code. The said argument was sought to be repelled on the ground that the examination of the pleader was sufficient compliance with the said provision since the pleader was authorised to appear on behalf of the accused and do all acts which the accused could personally do. Dealing with this submission this court on a reading of Section 342 pointed out that the privilege of making a statement under that section is personal to the accused and the requirement cannot be satisfied by examining his pleader in his place. The right of the pleader to represent the accused does not extend to the pleader answering questions under section 342 in place of the accused person. The submission that such a view will cause inconvenience and harassment to the accused was also repelled in the following words: "We are not impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of section 342. The examination under the section becomes necessary when at the close of the prosecution evidence the magistrate finds that there are incriminating circumstances requiring an explanation by the accused. " 474 Proceeding further this Court observed as under "There are exceptional cases when an examination of the accused personally under section 342 is not necessary or possible. Where the accused is a company or other juridical person it cannot be examined personally. It may be that the Court may then examine a director or some other agent on its behalf. " It is another matter that in that case this Court did not interfere with the conviction and sentence on the ground that the non examination of the accused had not caused any prejudice and in the absence of material showing prejudice the conviction and sentence could be sustained by virtue of old section 537 (section 465 of the new Code). In the result the order impugned in the present appeal/writ petition of the learned Magistrate cannot be allowed to stand, more so in the instant case for the reason that the accused may raise the plea of violation of the due process clause if the order is sought to be executed in the foreign court. We, therefore, set aside the order of the learned Magistrate and direct him to pass appropriate orders in the light of this judgment in regard to the examination of the accused under section 313(1) (b) of the Code. As the prosecution is pending since long, the learned Magistrate will take it up immediately, SPS. Appeal disposed of.

The daughter of the appellant was married to the respondent and a girt child was born out of the wed lock. The couple went to the U.S.A. alongwith the child, but the latter was sent back on her mother 's behests. While the child was in the custody of the appellant the mother also came back, and committed suicide, leaving the child in the custody of the appellant. Meanwhile the first respondent married an American girl and embraced christianity. Thereupon the appellant applied to the local court for appointment as guardian of the child. The respondent appeared in court but took the child to U.S.A. forcibly, and entrusted her to the custody of his newly wedded wife. On being appointed as guardian of the child the appellant filed a complaint of kidnapping against the respondent and three others. The respondent applied for exemption from personal appearance in the proceedings in criminal court. The permission was granted subject to the condition that he will appear whenever called upon to do so. On the completion of the evidence, the advocate of the respondent sought permission for examination under section 313 Cr. P.C. in place of the respondent. Thereupon the appellant sought direction for personal appearance of the respondent for being examined under Section 313 Cr. The Magistrate dismissed the application of the appellant This Court examined the provision of Sub Section (1) of Section 313 Cr. P.C. and, HELD:Introduced in its present form pursuant to the recommendations made in the 41st Report of the La* Commission, sub section (1) of 468 Section 313 begins with the words: "In every inquiry or trial. " (472 B) The old sub section (1) of Section 342 has been divided Into two (a) & (b). Clause (a) us" the expression 'may ' to indicate dot the matter is left to the discretion of the court to put questions to the accused at any stage of the inquiry or trial, whereas clause (b) uses the expression "shall" to convey that it is mandatory for the court to examine the accused after the witnesses for the prosecution have been examined. (472 C) The proviso was added to sub section (1) with a view to enabling the court to dispense with the examination of the under clause (b) in a summons case in the court has already dispensed with this personal attandence if the court on completion of the prosection evidence finds that there are certain circumstances appearing in the evidence against the accused, the court is obliged by clause (b) to question the accused before be Ls called upon to enter his defence. (472 D) Section 313 (1) applies to all inquiries and trials under the co&, to give the accused an opportunity to explain the circumstances appearing against him. The trial court is empowered by clause (a) to question the at any stage of inquiry or trial, while clause (b) obligates it to question the accused before he enters his defence. The rule of audi alterm partem incorporated therein is intended for the benefit of the accused. (472 F) The proviso is in the nature of an exception to dawn (b) of sub section (1) of section 313 Cr. P.C. and applies to a sommons case. Where the personal presence of the accused has been dispensed with, the magistrate can dispense with the mandatory requirement of clause(b). (472 G) Since the offence under section 363 [PC is punishable with imprisonment for a term exceeding two years it is a warrant cm, so even if the court has dispensed with the personal attendence of the accused the examination of the accused u/s 313 Cr. P.C. is mandatory. The examination of a lawyer would not be sufficient complaince@ with the @ate of the mid provision. (473 B) BibhWi Bhushen Dat GWM & Aar. vs State of West Be"W, A.I.R. (1%9) S.C. 381= 11%9] 2 SCR 104, referred to. 469 In that case this court pointed out that the privilege of making a statement under Section 342 of the old code, is personal to the accused. This requirement cannot be satisfied by examining his pleader in his place, as the right of the pleader to represent the accused does not extend to the pleader answering questions under section 342 (now 313) Cr. P.C. (473 E) This court set aside the impugned order and directed the trial magistrate, to pass appropriate orders in regard to the examination of the respondent under section 313 (1) (b) Cr. P. C. (474 D)

Appeal No. 80 of 1962. Appeal from the judgment and decree dated December 19, 1957, of the Madras High Court in C.M. Appeal No. 303 of 1956. A. V. Viswanatha Sastri, V. Ratnam and R. Ganapathy Iyer, for the appellant. G.S. Pathak and R. Thiagarajan, for the respondent. July 24, 1964. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by certificate raises the question whether a decree obtained in a suit to enforce a debt incurred after the Madras Agriculturists Relief Act, 1938 (Act 4 of 1938), hereinafter called the Parent Act. came into force could be scaled down under section 13 of the Parent Act. The facts are as follows: On February 15, 1964, the appellant and 4 others executed a mortgage deed in favour of Kaverlal Chordia for a sum of Rs. 2,00,000 payable after three years with interest at 9 per cent. per annum. On January 24, 1946, the mortgagee assigned the said mortgage 308 in favour of the respondent. Certain payments towards principal and interest were made thereunder. On February 28, 1950, the assignee mortgagee i.e., the respondent, filed a suit, O.S. No. 55 of 1950, in the Court of the Subordinate Judge, Nilgiris, Ootacamund, for the recovery of Rs. 1,98,487 8 0, made up of Rs. 1,50,000 for the balance of the principal and Rs. 48,487 8 0 for interest due on tile mortgage. The suit ended in a compromise dated December 21, 1950, under which a decree was passed for Rs. 1,50,000 on account of principal, with interest and further interest at 9 per cent. per annum and costs, subject to some concessions being shown in the event of payments, being made in certain specified instalments. Thereafter, certain payments were made towards the decree. In due course the respondent filed I.A. No. 382 of 1953 for the passing of a final decree. On June 24, 1955, the appellant filed O.P. No. 24 of 1955 for scaling down the debt. The respondent, inter alia, contended in his objections filed against the said application that as the debt sought to be scaled down was incurred subsequent to March 22, 1938, which is the date of the commencement of the Parent Act. the decree could not be scaled down under section 19(2) of the Parent Act. The learned Subordinate Judge overruled the objection and held by his order dated August 10, 1956. that the decree was liable to be scaled down in terms of section 13 of the Parent Act. He accordingly scaled down the decree debt. On appeal, a Division Bench of the Madras High Court held that as the statutory right to have the interest scaled down was not put forward before the consent decree was passed, the decree could not be scaled down at the stage of the final decree proceedings. It further held that section 19(2) of the Parent Act only applied to debts payable at the commencement of the &aid Act and therefore, the application for scaling down the decree was not maintainable. In the result it set aside the order of the Subordinate Judge and dismissed the petition for scaling down the debt. Hence the present appeal. Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, did not press the appellant 's claim under section 19(2) of the Parent Act, but put it under section 13 of the said Act. 309 He took us through the relevant provisions of the Parent Act, which according to him disclose the legislative policy undermining the sacrosanctity of decrees and pressed on us to hold, on a scrutiny of the provisions of section 13 of the Parent Act in the light of the said policy, that the decree made in respect of a debt incurred after the Parent Act came into force was liable to be scaled down thereunder. Mr. Pathak, learned counsel for the respondent, makes a distinction between the substantive and procedural pro visions and contends that the Parent Act does not make any provision for scaling down decrees made in respect of debts incurred after the said Act came into force. The general scheme of the Parent Act gathered therefrom may be briefly stated thus. The main object of the Parent Act was to give relief to agriculturists. "Debt" has been defined in section 3 (iii) of the Parent Act as any liability in cash or kind, whether secured or unsecured, due from an agriculturist, whether payable under a decree or order of a civil or revenue court or otherwise. This definition is rather com prehensive; it takes in secured, unsecured and decree debts due from an agriculturist. Section 7 of the Parent Act declares that a debt so defined has to be scaled down in the manner prescribed by the said Act. Section 8 provides the mode of scaling down debts incurred before, 1932 and section 9, the debts incurred after 1932 but before March 22, 1938; and section 13 deals with the scaling down of debts incurred after the commencement of the Parent Act. The relief granted under the said Act varies with the date of the debt depending upon whether it falls under one or other of the said three periods. While sections 7, 8, 9 and 13 give the principles for scaling down a debt, section 19 provides the machinery for scaling down. Section 19 of the Parent Act. as amended in 1948, reads: "(1) Where before the commencement of this Act a court has passed a decree for the repayment of a debt, it shall, on the application of any judgment debtor who is an agriculturist. apply the provisions of this Act to such decree 310 and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amena the decree accordingly or enter satisfaction. as the case may be: (2) The provisions of subsection (1). shall also apply to cases where, after the commencement of this Act, a Court has passed a decree for the repayment of a debt payable at such commencement. It may be mentioned that the second clause was inserted by the Amending Act of 1948. Before the amendment there was a conflict of view on the question whether section 19(1) could be invoked in amending a decree passed after the commencement of the Parent Act in respect of a debt incurred before the said Act. Sub section (2) made the position clear and declared that it could be done. The position, therefore, is that in the case of debts other than decree debts, the scaling down process will have to be resorted to in an appropriate proceeding taken in respect of the debt and in the case of decrees in respect of debts incurred before the Parent Act whether made before or after the said Act, by filing an application under section 19(1) or (2) of the Board Act, as the case may be But section 19 on its express terms does not permit the filing of an application for amending a decree by scaling down a debt incurred after the Parent Act came into force. Doubtless, as Mr. Viswanatha Sastri contents, the Parent Act, to some extent, undermines the sanctity of decrees, but that is to implement the policy of the Legislature to give relief to agriculturists over burdened with debts. But a Court, particularly in the case of an expropriatory measure like the Act, cannot rely upon the supposed policy of the Legislature and extend the scope of the relief given to agiculturists by analogy. The scope of the relief shall necessarily be confined to that given by the Act expressly or by necessary implication. A fair reading of sub sections (1) and (2) of section 19 of the Parent Act disclose beyond any reasonable doubt that the Legislature does not provide thereunder any machinery for reopening a decree made in respect of a debt incurred after the Act came into force. 311 Realizing this difficulty ' Mr. Viswanatha Sastri relied upon the provisions of section 13 itself and contends that the said section provides, in the case of debts incurred after the Parent Act came into force, both for the substantive relief as well as for the machinery to give the said relief. The said section reads: "In any proceeding for recovery of a debt, the Court shall scale down all interest due on any debt incurred by an agriculturist after the commencement of this Act, so as not to exceed a sum calculated at 6 1/4 per cent. per annum, simple interest. . . " The Government by notification reduced the rates of interest to 5 1/2 per cent per annum with effect from July 29, 1947. Let us scrutinize the provisions of the section in the light of the arguments advanced. Learned counsel asks us to read the words "decree debt" instead of "debt" in section 13 of the Parent Act, for "debt" is defined to take in a decree debt, and by so reading, he contends, in any proceeding, which, according to him, includes, a final decree application, the court shall scale down all interest in the manner prescribed thereunder. It is further argued that final decree proceedings are only proceedings in a suit and, therefore, the word "recovery" in the sub section is appropriate in the context of a decree debt. This argument, if accepted, disturbs the entire scheme of the Parent Act. Section 13 is one of the group of sections viz., sections 8, 9 and 13, dealing with the principles of scaling down in a proceeding for the recovery of a debt. But where a decree is to be amended, the Act has taken care to provide expressly for the amendment of the decree. If the Legislature intended to provide for the amendment of decrees even in cases falling 'under section 13, it would have added another appropriate clause in section 19. The absence of any such clause indicates an intention that in cases of debts comprehended by section 13, the Legislature gives only a limited relief expressly thereunder. It is said, so far as the reopening of decrees after the Parent Act came into force is concerned, whether in respect of 312 debts incurred before or after the said Act, there cannot possibly be a justification for a difference in the manner of their treatment. A plausible reason can be discerned for this legislative distinction between debts incurred before the Act and those incurred after the Act; for, in the former when the debts were incurred the Act was not in existence and, as the debtors could not have anticipated the provisions of the Act, they were given the summary remedy, but the agriculturists who incurred debts after the Parent Act with open eyes were denied the same; while in the former, they were allowed to reopen decrees made in respect of the said debts before or after the Act, in the latter they could claim relief only in an appropriate proceeding before the decree was made and that too was confined to the limited relief in regard to the rate of interest provided thereunder. The difference in the treatment of the two categories of decrees was brought about by sub section (2) of section 19 added by a later amendment. Whatever may be the reason for the difference, we cannot extend the scope of section 13 by analogy or by stretching the meaning of the words "proceeding" and "recovery". Reliance is placed upon section 13 A of the Parent Act which reads: "Where a debt is incurred by a reason who would be an agriculturist as defined in section 3(ii) but for the operation of proviso (B) or proviso (C) to that section the rate of interest applicable to the debt shall be the rate applicable to it under the law custom, contract or decree of Court under which the debt arises or the rate applicable to an agriculturist under section 13, whichever rate 'is less." On the basis of this section a contention is raised that sections 13 and 13A relate to the same subject matter with the difference that while section 13 applies to agriculturists who incurred debts after the Parent Act came into force, section 13A applies to persons who would be agriculturists but for the provisos (B) and (C) of section 1 (ii) in respect of debts in curred after the Act, and as a fair reading of section 13 A indi cates that it applies to decrees made in regard to debts in 313 curred after the Act, it must be interpreted reasonably that section 13 also applies to such decrees. Mr. Pathak, learned ,counsel for the respondent, on the other hand, contends that section 13 A only applies to pre Act debts, as section 7 which declares the scheme of scaling down of debts applies only to pre Act debts and the only exception to it is section 13 A. Be that as it may, we cannot construe section 13 with the aid of section 13 A which was introduced by the Amending Act 23 of 1948. This appeal does not call for an interpretation of section 13 A of the Act and we shall not express any opinion thereon. The legal position may be briefly stated thus. Section 7, 8, 9 and 13 form a group of sections providing the principles of scaling down of debts incurred by agricul turists under different situations. A debt can be scaled down in an appropriate proceeding taken in respect of the same. But in the case of debts that have ripened into decrees, section 19(1) and (2) prescribe a special procedure for reopening the decree only in respect of debts incurred before the Parent Act. The Parent Act does not provide for the reopening of decrees made in respect of debts incurred after it came into force, and for understandable reasons the relief in respect of such decrees is specifically confined only to a concession in the rate of interest. For the foregoing reasons, we hold that the order of the High Court is correct . In the result, the appeal fails and is dismissed with costs.

The respondent, who was the assignee mortgagee of a mortgage deed executed on February 15, 1945 by the appellant for a certain sum payable with interest, filed a suit for the recovery of the sum with Interest. The suit ended in a compromise under which a decree was passed and certain payments were made towards the decree. In due course the respondent moved for the passing of a final decree. The appellant applied for scaling down of the debt under the Madras Agriculturists Relief Act. The respondent, inter alia, contended in his objections filed against this application that as the debt sought to be scaled down was incurred subsequent to the date of commencement of the Act, the decree could not be scaled down under section 19(2) of the 307 Act. The Subordinate Judge overruled the objection and held that the debt was liable to be scaled down in terms of section 13 of the Act. On appeal, the High Court held that as the statutory right to have the interest scaled down was not put forward before the consent decree was passed, the decree could not be scaled down at the stage of the final decree R proceedings. It further held that section 19(2) of the Act only applied to debts payable at the commencement of the Act and, therefore, the application for scaling down the decree was not maintainable. On appeal by certificate, Held: Sections 7, 8, 9 and 13 form a group of sections providing the principles of scaling down of debts incurred by agriculturists under different situations. A debt can be scaled down in an appropriate proceeding taken in respect of the same. But in case of debts that have ripened into decrees, section 19(1) and (2) prescribe a special procedure for reopening the decree only in respect of debts incurred before the Act. The Madras Agriculturists Relief Act does not provide for the reopening of decrees made in respect of debts incurred after it came into force, and for understandable reasons the relief in respect of such decrees is specifically confined only to a concession in the rate of interest.

Appeal No. 172 of 1955. Appeal by special leave from the judgment and order dated February 26, 1953, of the Bombay High Court in Appeal No. 108 of 1952, arising out ' of the Judgment and order dated July 8, 1952, of the said High Court in its Ordinary Original and Civil Jurisdiction in Misc. No. 48 of 1952. R. J. Kolah, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellant. H. N. Sanyal, Additional Solicitor General of India,K. N. Rajagopal Sastri and D. Gupta, for the respondents. May 5. The Judgment of the Court was delivered by HIDAYATULLAH, J. This appeal, by special leave of this Court, is directed against the judgment and order of the High Court of Judicature at Bombay dated February 26, 1953, in Appeal No. 108 of 1952. By that judgment, the Divisional Bench (Chagla, C. J. and Shah, J.) declined to interfere, in Letters Patent Appeal, with the judgment of Tendolkar, J., dated July 8, 1952, in Miscellaneous Application No. 48 of 1952. In the petition which was originally filed in the High Court under article 226 of the Constitution, a writ of mandamus was asked against the Union of India and two Income tax Officers to compel them to give effect to the appellate order of the Appellate Assistant Commissioner of I. T. F. Range, Bombay, dated April 29, 1949. The High Court in both the judgments declined the writ. The facts of the case are as follows: The appellant, Messrs. Sarupchand arid Hukamehand and Co., (hereinafter referred to as the assessee firm) was carrying on business, inter alia, as shroffs, merchants and 989 commission agents at Bombay, Indore, Ujjain and Calcutta. It had, in the relevant account years, two partners, Sir Sarupchand Hukamchand and Sri Hiralal Kalyanmal. The two partners were also separately liable to income tax, the former as a Hindu undivided family and the latter as an individual. We are concerned here with the assessment years 1940 41, 194142 and 1942 43. These correspond to the account years, 1995 1996 (Samvat) to 1997 1998 (Samvat). When the assessment of the assessee firm was made, the Income tax Officer, Section VIII (Central), Bombay, treated the firm as " resident and ordinarily resident ". For the assessment year 1940 41 the Income tax Officer found a profit of Rs. 80,358, and applying section 23(5)(b) of the Indian Income tax Act (hereafter called the Act), he proceeded to treat the firm which was unregistered as registered for the purpose of assessment. On March 15, 1945, he therefore assessed the two partners carrying the profit into their individual returns and made no demand upon the firm. It appears that an application for registration had already been filed under section 26A of the Act before the Income tax Officer, but it was rejected and quite correctly because no instrument of partnership was disclosed. That order was also passed on the same date. For the assessment years 1941 42 and 1942 43, the Income tax Officer by his orders dated July 31, 1945, and October 31, 1945, respectively, treated the firm as " resident and ordinarily resident " and as an unregistered firm. For the first of the two assessment years, he assessed the firm on a total income of Rs. 2,30,798 to income tax and super tax, and for the second year, its British Indian income was taken at Rs. 2,62,827 and the total income at Rs. 7,00,116 and was also treated accordingly. The assessee firm appealed against these assessments. The Appellate Assistant Commissioner by his order passed in the consolidated appeals on April 29, 1949, held that the assessee firm was non resident and excluded the income of the firm outside British India, though it was included in the total word income for the purpose of computing the rate of tax. 990 He also found error in the computation of income made by the Income tax Officer, and held that in the assessment year 1940 41 there was a loss of Rs. 1,61,084 in the total world income of the assessee firm. For the subsequent years also there were slight variations in the amounts determined by the Income tax Officer, but it was held that the assessee firm had made profits in those years. The following is the summary of the findings of the Appellate Assistant Commissioner, as given by him in his order: Assess Income in Income Total ment British outside world year India British income. India Rs. Rs. Rs. 1940 41 Loss 2,26,028 74,944Loss 1,61,084 1941 42 1,27,062 1,08,236 2,35,298 1942 43 2,62,827 4,41,789 7,04,616 In addition to these findings, the Appellate Assistant Commissioner added a direction to the following effect : " The Income tax Officer is directed to modify the assessments accordingly. " When the matter reached the Income tax Officer, he gave effect to the order of the Appellate Assistant Commissioner under section 31 of the Act and carried the loss to the partners in their assessments for the year 1940 41, and granted a refund of Rs. 16,977 11 0 to Sir Sarupchand Hukamchand and Rs. 68,339 to Sri Hiralal Kalyanmal. The assessee firm, however, was not satisfied, and embarked upon voluminous correspondence beginning with a letter dated September 10, 1949, by which it claimed that inasmuch as it had been shown to have incurred a loss in the first of the three assessment years, it could not for that year be treated as a registered firm, and that as an unregistered firm it was entitled therefore to carry forward the loss to the subsequent years. In addition to the correspondence, the assessee firm moved in turn the Income tax Officer 991 as well as the Appellate Assistant Commissioner respectively under section 35 of the Act for rectification of the assessment to the same effect. The officers of the Department at both levels declined to interfere, and stated that the direction of the Income tax Officer under section 23(5)(b) was not appealable, and had become final. They also pointed out that the period during which the original order of the Income tax Officer could be rectified (viz., 4 years) had already run out, and that the petitions were accordingly out of time. The assessee firm moved the Commissioner as well as the Central Board of Revenue, but failed to get the desired order. Finally, after the receipt of the order of the Central Board of Revenue, the assesee firm applied on July 16, 1951, to the Additional Income tax Officer, Section VIII (Central), to give effect to an order which the assessee firm had secured from the Appellate Assistant Commissioner earlier. By that order, the Appellate Assistant Commissioner had, at the request of the assessee firm, directed the Income tax Officer to take the losses of the first assessment year into the accounts of the partners, which direction, in the opinion of the Appellate Assistant Commissioner, his predecessor had omitted to make in the first instance. It was after this that fresh assessment forms were drawn up, and the refund was determined. It may be pointed out here that the partners withdrew the amount of refund, though in making the request to the Additional Income tax Officer the assessee firm had reserved its right "to move further in the matter as may be advised ", and had pointed out that the action was without prejudice to such rights. Having failed to obtain relief from the Department, the appellate authorities and the Central Board of Revenue, the assessee firm filed the petition under article 226 of the Constitution in the High Court of Judicature at Bombay. That petition was heard by Tendolkar, J., and he declined to interfere mainly on the ground that it was possible to take two views of the matter whether after a profit assessment was turned into a loss assessment by the Appellate Assistant 992 Commissioner, the original order of the Income tax Officer under section 23(5)(b) remained outstanding or not. He thought that this was not a fit case for the issuance of a writ of mandamus by the High Court. In appeal which was taken from this decision, Chagla, C. J., looked at proviso (d) to section 24(2), and also came to the view that there was a possibility of two views being taken in the matter, and that the learned single Judge was right in not interfering. Shah, J., in a concurring judgment, explained what he considered was the meaning of section 23(5)(b) read with section 24(2), proviso (d), but he also felt that this was not a case in which a Writ could be claimed against the Union of India or the Income tax Officers. Chagla, C. J., however, expressed the hope that the taxing authorities would not deny the assessee firm its rights under the Act on any technical ground, such as limitation, or failure to pursue a particular procedure. In the result, the Divisional Bench sustained the order of Tendolkar, J., who had dismissed the petition earlier. This Court on May 3, 1954, granted special leave to appeal against the judgment of the Divisional Bench. Before arguing on merits of the appeal, the learned Additional Solicitor General and subsequently Mr. Rajagopala Sastri who took over the argument, raised three objections to the present appeal. According to them, the petition in the High Court was directed against the Union of India and the two Income tax Officers who had dealt with this matter, and the relief which was claimed could be granted by none of them. They further argued that mandamus was an inappropriate writ to issue in this matter, when the order passed by the Income tax Officer under section 23(5)(b) was not appealable and the Appellate Assistant Commissioner could do nothing about it in the appeal against the quantum of assessment. They also stated that the relief asked for in the petition could not be granted by the High Court, and that the powers of this Court were accordingly limited. We shall deal with these objections, when we have determined the essence of the matter. Under section 23(5)(b), a power is conferred on the Income tax Officer to treat an unregistered firm as a registered 993 firm, if by adopting that method more tax and supertax would be realisable from the individual partners in their own assessments than in assessing the firm. I The clause may be quoted in extenso for ready reference here : 23(5). " Notwithstanding anything contained in the foregoing sub sections, when the assessee is a firm and the total income of the firm has been assessed under sub section (1), sub section (3) or sub section (4), as the case may be, (b) in the case of an unregistered firm, the Income tax Officer may instead of determining the sum payable by the firm itself proceed in the manner laid down in clause (a) as applicable to a registered firm, if, in his opinion, the aggregate amount of the tax including super tax, if any, payable by the partners under such procedure would be greater than the aggregate amount which would be payable by the firm and the partners individually if the firm were assessed as an unregistered firm. " The contention of the assessee firm is that the action of the Income tax Officer in treating an unregistered firm as a registered firm is mainly in the interests of the Revenue and he can act if more revenue would be available and not otherwise. When an unregistered firm makes a loss, it is entitled to carry forward the loss for a certain number of years till it is absorbed in the profits, if any, of subsequent years. By carrying the loss to the account of the individual partners, relief is afforded to them in their own income tax payment, and there is presently a loss of revenue to the State. This, according to the assessee firm, is outside the jurisdiction of the Income tax Officer, because his action is conditioned upon realisation of more revenue and not creating loss for the State. Learned counsel for the Department agree that there would be, in the assessment year in which there is a loss by an unregistered firm, a loss to the Revenue if it is carried into the accounts of the partners ; but they contend that there is no inhibition against the 125 994 action and refer to proviso (d) to section 24(2) as indicating that such a course is perfectly valid. The assessee firm also contends that the moment loss was determined by the Appellate Assistant Commissioner, the previous order made by the Income tax Officer under section 23(5)(b) of the Act automatically fell to the ground and the loss could only be carried forward in the future assessments of the unregistered assessee firm and not in the account of the partners. The assessee firm contends that the direction by the Appellate Assistant Commissioner to modify the assessments of the three years accordingly implied the reopening of the entire question whether this unregistered firm could be treated as a registered firm for purposes of assessment in the first year. The Department, on the other hand, refers to the provisions of section 30 of the Act to show that an appeal lies to the Appellate Assistant Commissioner on the grounds expressly mentioned there and none other. It further points out that this is not one of the grounds on which the appeal could have been taken, and the Act cannot by implication be deemed to have conferred on the Appellate Assistant Commissioner a power which he ordinarily did not possess under the Act. The order of the Income tax Officer to treat the unregistered firm as registered must, therefore, be held to be outstanding, and all that has happened in the case is to take that order to its logical conclusion in the light of the assessed loss of the firm, in the three years under assessment. This question was argued before us in great detail,, as apparently it had also been in the Court below. There is no doubt that the matter is one of some complexity, which is not unusual in a statute of the type we are considering, but, in our opinion, only one correct view of the matter was possible, and with all due, respect, the High Court made but little attempt to determine it. We shall now attempt to lay down the interpretation of the various sections bearing upon the matter. Section 23(5)(b) has already been quoted. It will appear from it that the Income tax Officer is given the option to apply the procedure laid down in cl. (a) to an unregistered firm, if, in his 995 opinion, the aggregate amount of tax including supertax, if any, payable by the partners under such procedure would be greater than the aggregate amount of tax which would be payable by the firm and the partners individually, if the firm was assessed as an unregistered firm. Clause (a) provides that the sum payable by the firm shall not be determined but the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined. To put it simply, in the case of a registered firm its assessable income is first determined, but is not processed further to determine the tax. Instead, the shares of the partners in the assessable income are determined in accordance with the particulars furnished by them, and the resultant amounts are respectively carried to each partner 's return and included in his income, and the tax on the total is determined. In the case of an unregistered firm, the assessable income is found out, and then the tax payable by the unregistered firm is determined and a demand issued. If there is a loss, then the loss is carried forward to the succeeding years till it is absorbed or for six (now, eight) years but no further. Previously, the number of years ranged from one to six, but there is no need to refer to the provision in detail. What happened in this case was that for the assessment year 1940 41, the Income tax Officer determined the assessable income at Rs. 80,358. He felt that more tax was likely to be realised if the partners were assessed instead of the firm, and he accordingly decided to apply the procedure laid down in section 23(5)(b) to the firm. In passing his order, the Income tax Officer observed as follows: " The firm is an unregistered one but the aggregate amount of tax payable by the partners would be greater by applying the procedure laid down in Sec. 23(5)(a) of the Act than the aggregate amount which would be payable by the firm and the partners individually if the firm were assessed as an unregistered one. I therefore order under Sec. 23(5)(b) of the 996 Act that the procedure laid down in Sec. 23(5)(a) should be applied and the firm declared N. D. for the assessment year 1940 41 ". It is no doubt true that if the Income tax Officer had determined a loss, he could not and probably would not have passed this order, which would have had the immediate effect of loss to the Revenue of the sums which have now been ordered to be refunded to the partners of this unregistered firm. The Department, however, says that the assessment for 1940 41 except in so far as profit was converted into loss has become final and cannot be set aside now. It relies on Commissioner of Income tax, Bombay and Aden vs Khemchand Ramdas (1) and Commissioner of Income tax vs Tribune Trust, Lahore (1). There is no doubt that an assessment which has once been made does become final, subject only to the powers exercisable under sections 34 and 35 of the Act. The position, however, is different when the assessment itself is subject to appeal, and the Appellate Assistant Commissioner passes an order converting the profit into a loss, and gives a direction to the Income tax Officer to modify the assessment accordingly. The position then was that the Income tax Officer had exercised his powers under section 23(5)(b) as there was a profit. When the Appellate Assistant Commissioner found a loss it became clear that the Income tax Officer had, by an erroneous finding of profit assumed jurisdiction to act under section 23(5)(b). The reversal of the finding of profit destroyed the substratum of the jurisdiction of the Income tax Officer to act under that clause and his order automatically fell through. The Department 's contention that such an order is referable to cl. (a) of section 31(3) and does not involve the setting aside of the order under section 23(5)(b) passed earlier by the Income tax Officer is not correct. No doubt, the right of appeal given to the assessee under section 30 is limited to the matters therein contained, but the relief which the appellate authority can give is to be found in section 31(3). The assessment order having come before the Appellate Assistant Commissioner, he (1) (2) 997 can, under cl. (a), confirm, reduce, enhance or annul the assessment. Under cl. (b) he can set aside the assessment and direct the Income tax Officer to make a fresh assessment, after making such further enquiries as the Income tax Officer thinks fit or the Appellate Assistant Commissioner directs, and the Income tax Officer must thereupon proceed to make fresh assessment and determine the amount of tax payable on the basis of such fresh assessment. It is contended by the Department that the order of the Appellate Assistant Commissioner was passed under cl. (a) and not cl. (b), and there being no fresh assessment ordered, the only thing that the Income tax Officer could do was to redetermine the tax within the limits of his own order under section 23(5)(b) of the Act, which applied cl. (a) of that sub section to this case. In our opinion, this is not a correct approach. Even if the order be referred to cl. (a) of section 31(3), the effect, in law, was the annulment of the assessment which had, been made in the case, and the necessary consequence of the determination of the loss in the assessable income remained to be worked out. The Income tax Officer worked it out by carrying the losses to the return of the partners. Under what section could he do so except under section 23(5)(b) ? There was no authorisation under section 31(4) of the Act and the second proviso to section 24 was clear. In such a case, the Income tax Officer was required once again to apply his mind to determine whether it would be in the interests of Revenue to proceed, as he had done before. It is manifest that if he had done this duty in the interests of the Revenue, as the law indeed contemplates, he would never have passed the order that the loss of the firm should be carried to the accounts of the partners immediately in that year of assessment. Learned counsel for the Department admits that no Income tax Officer would have, with a loss by the firm, given relief on the basis of that loss to the partners, but he contends that this is not illegal in view of the special provisions of proviso (d) to section 24(2) of the Act. We accordingly proceed to consider the effect of that proviso, which reads as follows: 998 " Provided that (d) where an unregistered firm is assessed as a registered firm under clause (b) of sub section (5) of Section 23, during any year, its losses shall also be carried forward and set off under this section as if it were a registered firm ". From this, it is argued, as it was argued in the High Court, that even the losses of an unregistered firm can be carried to the partners ' account, as if the firm were registered. No doubt, if the proviso is read in an extended manner, the result for would follow; but a careful reading of it would show that it was not designed to enable the Income tax Officer to forego the obligation laid on him by cl. (b) of section 23(5), to find out the interests of the Revenue. To read this proviso as enabling the Income tax Officer to overlook the said clause is to give no meaning to the words " during any year". Those words form a material part of the proviso, because the proviso with or without those words makes an entirely different sense. Without those words, it gives a general power to carry the losses to the partner 's account. With those words, it only provides for a continent in which an unregistered firm treated as such in the previous years, is sought in any particular year to be treated as a regis tered firm, and by reason of its carrying some business losses in the past, arrangement for the carrying forward and absorption of those losses has to be made for the year in which it is to be treated as a registered firm. In that event, the proviso provides that its losses shall be carried to the partners ' account, as if it were a registered firm. It is inconceivable that if the firm was carrying heavy business losses, it would suddenly be treated in a year of assessment as a registered firm, so that its losses might give relief to the partners and not give revenue to the State. This proviso would only be resorted to, when in spite of taking the, losses to the accounts of the partners, more revenue would be available to the State. The proviso is an enabling one. An unregistered firm, treated as such in previous years, may, during any year, be treated as a registered firm provided the Revenue would 999 benefit. It may be that the firm may have made a loss in that year or was carrying a loss from the previous years but, if by treating the firm as registered, the Revenue would be benefited, the proviso can be used. But there is no general power to act this way to the detriment of the Revenue. To give any other interpretation to this proviso will mean that the words " during any year " have not received any meaning and that the proviso is interpreted to make it not incumbent on the Income tax Officer to consider the interests of the Revenue, as required by cl. (b) of section 23(5). The two Provisions must be read in harmony, and when so read, yield the only result that proviso (d) is to be invoked, subject to the conditions under section 23(5)(b) to obtain more revenue for the State by applying section 23(5)(a). It would appear, therefore, that the Income tax Officer in the light of the losses determined by the Appellate Assistant Commissioner, was under a duty to apply his mind de novo to the problem which he had undertaken, when he resorted to section 23(5) (b). It is admitted that if the matter had been so plain to him, he would not have, if he did his duty correctly under that provision, carried the losses to the partners ' account. The only question, therefore, Which survives for determination is whether the order of the Appellate Assistant Commissioner left the Income tax Officer free of his earlier order, and whether he was under a duty to reconsider the position under section 23(5) (b). When the basis for assessing a profit was gone, it is manifest that there was nothing but loss to carry forward to the partners ' account. With the fall of the assessment in this manner, fell the need for applying the special provisions of cl. (b) of section 23(5) to the case. Indeed, the duty of the Income tax Officer indicated a contrary course, if he was to act under section 23(5) (b) at all. The order of the Appellate Assistant Commissioner was passed in respect of three years ' assessment, and was a consolidated order. He set out in parallel columns the income and losses of the firm and not of the partners and directed the Income tax Officer to 1000 modify the assessments accordingly. The intention obviously underlying that order was to put the matter at the stage at which the assessable income of the assembly firm was determined before computing the tax thereupon. To compute the tax, the Income fax Officer had to determine whether the loss occasioned in the first year should be carried forward to the assessee firm in the subsequent year, and he could not give effect to the order of the Appellate Assistant Commissioner fully, unless he determined once again the question under section 23(5) (b). In other words, the implication of the appellate 'order was to take the matter prior to the order regarding the treatment of the unregistered firm as a registered firm, and of necessity, that order fell to the ground as being passed beyond that stage. It is contended on the strength of the ruling of the Privy Council in Commissioner of Income tax vs The Tribune Trust, Lahore (1) that once the assessment is final and valid, it remains so until it is set aside, but once it has become final, it cannot be altered except under sections 34 and 35. No exception can be taken to the statement of the law by the Privy Council, which, with all due respect, is absolutely correct, but it is impossible to hold, on analogy, that the order determining that this unregistered firm should be treated as registered, had equally become final and not open to further consideration. Learned counsel for the Depart ment also urged on the strength of Commissioner of Income tax vs McMillan & Co. (2) and Commissioner of Income tax vs Amritlal Bhogilal & Co. (3), that if the powers of the Appellate Assistant Commissioner did not involve a review of the determination by the Income tax Officer under 'section 23(5) (b), this result could not indirectly follow. No doubt, the Appellate Assistant Commissioner could not, if the matter had gone before him in appeal against the order under that section, have interfered. But the Appellate Assistant Commissioner was exercising his powers under section 31 of the Act and annulling the assessment (1) (2) ; , (3) 1001 of the first year and converting a profit in that year into a loss. None can deny that he had that power in the appeal which was before him. Section 31(4) of the Act enjoins that where as the result of an appeal any change is made in the assessment of a firm, the Appellate Assistant Commissioner may authorise the Income tax Officer to amend accordingly any assessment made on any partner of the firm. This power was implicit in the order which the Appellate Assistant Commissioner passed, namely, that there was a loss in the assessment year in question and the assessments for the three years had to be modified. The Income tax Officer therefore was under a duty to modify the assessments of the partners accordingly, and to take the matter up again from the point at which the order of the Appellate Assistant Commissioner had placed it. He had once again to determine whether he would, in the altered circumstances, apply s.23(5)(b) to this case or not. In our opinion, the Income tax Officers in questiondid not do their duty as required by law, and we should, therefore, by a writ compel them to do so. As regards the argument that the petition is directed against wrong persons and for a wrong relief, we do not think that it is so. The petition sought relief against the Union of India, which, in any event, was not concerned with this matter, and was wrongly joined. But the two Income tax Officers who dealt with this matter, were required under the statute to do their duty once again in the matter of the application of section 23(5) (b) of the Act. That they failed to apply their mind to this matter under a wrong apprehension of the law is manifest, and they did not give effect to the orders of the Appellate Assistant Commissioner. The assessee firm having failed to secure this relief from all the authorities superior to the Income tax Officers, it was open to the High Court by a writ to order the Income tax Officer concerned to hear and determine this matter in accordance with law. This is precisely the relief which was claimed in the High Court and is now claimed in the present appeal. We 126 1002 think, with due respect, that the High Court should have, on a correct appraisal of the legal situation, ordered this relief, and we accordingly, after explaining the law applicable to the case, order the appropriate Income tax Officer to hear and determine this matter in the light of our observations. We may set down here that the two partners of the firm to whom relief has been given by way of refund after the Appellate Assistant Commissioner 's order undertook unconditionally to refund the amounts, before the matter is considered. by the Income tax Officer. We order that the two partners shall return the amounts in the manner to be ordered by the Income tax Officer, before action is taken to determine the matter. In the result, the appeal is allowed with costs throughout to be paid by respondents 2 and 3. The Union of India shall, however, bear its own costs. It may be noted that no separate costs were incurred by it either in this Court or in the Court below. It joined respondents 2 and 3 in the statement of the case filed in this Court and also appeared through the same counsel in both the Courts. Appeal allowed.

The Income tax Officer found that the assessee, an unregis tered firm, had made a profit in the assessment year 1940 41. He treated it as registered under section 23(5)(b) of the Act, assessed the partners and carried the profit to their individual returns, making no demand on the firm. For the next two assessment years, however, the firm was assessed as unregistered firm. For all the three assessment years, the Income tax Officer treated the firm as " resident and ordinarily resident ". The firm appealed against all these assessments. The appeals were all consolidated and heard together by the Appellate Assistant Commissioner. He found that the firm was non resident, the computation of income made by the Income tax Officer was erroneous, that in the assessment year 1940 41 there was a loss and during the subsequent years the firm had made profits. He, therefore, directed the Income tax Officer to modify the assessments accordingly. Thereupon the Income tax Officer gave relief to the partners for the year 1940 41 and directed certain refunds to be made to them. The firm was not satisfied and moved both the Income tax Officer and the Appellate Assistant Commissioner 987 found to have incurred a loss in the first of the three assessment years, it could not for that year be treated as a registered firm and was entitled to carry forward the loss to the subsequent years. They declined to interfere on the ground that the direction of the Income tax Officer under section 23(5)(b), not being appealable, had become final and the time within which the original order of the Income tax Officer could be rectified had also run out. The firm went up to the Commissioner and the Central Board of Revenue, but to no effect. Thereafter it moved the High Court under article 226 of the Constitution. The single Judge who heard the matter declined to interfere. The Division Bench on appeal agreed with the single judge. The firm appealed to this Court. The question for decision was whether after the finding of profit made by the Income tax Officer had been turned to one of loss by the Appellate Assistant Commissioner on appeal, the original decision of the Income tax Officer to treat the firm as a registered one under section 23(5)(b) could remain intact. Held, that since the Income tax Officer could treat an un registered firm as a registered one under section 23(5)(b) of the Indian Income tax Act only if there was a profit, the reversal of the finding of profit made by him by the Appellate Assistant Commissioner must automatically take away the jurisdiction of the Income tax Officer to act under that section and his order made thereunder must fall through. It made no difference in the instant case, whether the Appellate Assistant Commissioner 's order was one under cl. (a) Of section 31(3) or under cl. (b) of that section, for the effect of the order in law in either case would be the same, namely, the annulment of the assessment resulting in the restoration of the case back to its original position. It was not correct to suggest that under proviso (d) to section 24(2) Of the Act the losses of an unregistered firm could be carried to the partners ' account as if the firm was registered. That proviso was not intended to enable the Income tax Officer to forego the obligation laid on him by cl. (b) Of section 23(5), i.e., to find out the interest of the Revenue, and thus to render the words 'during any year in proviso redundant. The effect of the provisions of section 23(5)(b) and the proviso (d) to section 24(2), which must be read together, was that the proviso was to be invoked subject to the conditions under section 23(5)(b) to obtain more revenue for the State by applying section 23(5)(a). Although the Appellate Assistant Commissioner could not have interfered with the order made by the Income tax Officer under section 23(5)(b) of the Act in an appeal against that order, the position must be different when the assessment itself was subject to appeal under section 31 Of the Act, and the Appellate Assistant Commissioner under section 31(4) authorised the Income tax Officer to modify the assessment in the light of his direction. It would, therefore, be the duty of the Income tax Officer to consider de 988 novo whether in the altered circumstances the provisions of section 23(5)(b) of the Act could at all be applied. Commissioner of Income tax vs Tribune Trust, Lahore, , Commissioner of Income tax vs McMillan & Co., ; and Commissioner of Income tax vs Amritlal Bhogilal & CO., , considered.

N: Criminal Appeal No. 129 of 1971 . Appeal by Special Leave from the Judgment and order dated the 4th March, 1971 of the Bombay High Court at Bombay in Criminal Appeal No. 1502 of 1969. R B. Datar and Rajen Yash Paul, for the Appellant. M. N Shroff, for the Respondent. The Judgment of the Court was delivered by BHAGWATI, J. The appellant and one Mohd. Yusuf Gulam Mohd. were charged for an offence under section 379 read with s 34 of the Indian Penal Code for snatching two sarees from one Govind whilst he was carrying them from the show of his master to that of a washer and dyer. The learned Presidency Magistrate, who tried the case, accepted the prosecution evidence and found the appellant and Mohd. Yusuf Gulam Mohd. guilty of the offence under section 379 read with section 34 and 664 Sentenced each of their to suffer rigorous imprisonment for six months. It does not appear from the judgment of the learned Presidency Magistrate that, though the appellant was only seventeen years and three months old at the date of the offence and the offence was not punishable with imprisonment for life, the attention of the learned presidency Magistrate was invited to the provisions of section 6 of the Probation of offenders Act, 1958. The appellant preferred an appeal against the order of conviction and sentence to the High Court of p Bombay but the appeal was unsuccessful. The High Court took the same view of the evidence as the learned Presidency Magistrate and confirmed the conviction of the appellant under section 379 read with section 34. So far as the question of sentence was concerned, a submission was made on behalf of the appellant that since he was a young boy of about seventeen years and three months and this was his first offence, leniency should be shown tow him. But the High Court r observed that age alone was not sufficient to invoke the mercy of the Court and the appellant had not done anything since the date of the offence to deserve the mercy of the Court and it did not, therefore, see any reason to interfere with the sentence of imprisonment passed against the appellant. It appears that once again the provisions of section 6 of the Probation of offenders Act, 1958 were not specifically brought to the notice of the High Court and the sentence of imprisonment was maintained by the High Court without applying its mind to those provisions. Hence the appellant preferred a petition for special leave to this Court and on that petition, this Court granted special leave limited to the question "whether the provisions of the Probation of offenders Act should have been applied in the case". We are concerned in this appeal with section 6 of the Probation of offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act. Subsection (1) of section 6, on a plain grammatical reading of its language, provides that when any person under twenty one years age is found guilty of having committed an offence punishable with imprisonment, but not with imprisonment for life, the Court, by which the person is found guilty, shall not impose any sentence of imprisonment, unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender it would not be desirable to deal with him 665 him under section 3 or section 4. This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the state of trial court but also at the stage "High court or any other Court when the case comes before it on appeal or in revision. '. Vide section 11, sub section (1) of the Act. It is, therefore, obvious that even though the point relating to the applicability of section 6 was not raised before the learned Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society. Here, we find that whatever date be taken as the relevant date for determining the applicability of section 6 whether the date of the offence or the date of the judgment of the learned Presidency Magistrate or the date of the judgment of the High Court the appellant was below twenty one years age. The offence of which he is found guilty is an offence under section 379 read with section 34 and it is clearly an offence punishable with imprisonment but not with imprisonment for life. The conditions requisite for the applicability of section 6 are, therefore, plainly satisfied and under section 6, Sub section (1) it is not competent to the Court to impose ant sentence of imprisonment on the appellant, unless the Court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the appellant, it would not be desirable to deal with him under section 3 or section 4. It is true that sub section (2) of section 6 requires that for the purpose of satisfying itself whether it would not be desirable to deal with the appellant under section 3 or section 4, the Court is required to call for a report from the Probation officer and consider the report, if any, but we do not think it necessary in the present case to call for any report from the Probation officer nor to remand the case to the learned Presidency Magistrate for passing an appropriate order after calling for a report from the Probation officer and considering it. We have on record the antecedent history giving the background of the appellant. The appellant was at one time a well known child film actor and he actually won several awards for acting in films. It appears that at some subsequent stage he fell in bad company and took to evil ways The offence which he is convicted is, no doubt, an offence as theft which cannot be lightly ignored, but it is comparatively of a minor characters in that only two sarees were snatched away from the hands of Govind, perhaps under the stress of economic necessity. Moreover, this is a false offence of the appellant. We are, therefore, not at all satisfied 12 L925SupCI/75 666 that it would not be desirable to deal with the appellant under section 3 or section 4 and consequently, the sentence of imprisonment passed on the appellant must be set aside. We accordingly set aside the sentence of imprisonment passed on the appellant and direct that he be released on his entering into a bond wit one surety in the sum of Rs. 500/ to appear in the Court of the Presidency Magistrate to receive sentence, whenever called upon to do so within a period of six months and during that period to keep the peace and be of good behaviour. The learned Presidency Magistrate is directed to take the necessary bond from the appellant and the necessary surety bond from a surety to his satisfaction. The appellant will continue on bail till such time as these directions are carried out, after which the bail bond will stand canceled. P.B.R. Appeal allowed.

On the question whether the provisions of the Probation of offenders Act 1958 should have been applied in this case, Allowing the appeal, ^ HELD: (1) Even though the point relating to the applicability of s.6 was not raised before the Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them is responsible and useful members of society. [665 B C] (2) Section 6 lays down an injunction not to impose a sentence of imprisonment on a reason who is under 21 years of ' age and is found guilty of having committed an offence punishable with imprisonment other the that for if unless it is satisfied that it would not be desirable to deal with him under section 3 or section 4. 'This inhibition on the power of the court to impose a sentence of imprisonment applies not only at the state of trial but also at the stage of "High, Court or any other court when the case comes before it in appeal or revision" section 11 (i) [664 H] In the instant case the appellant was below 21 years of age. The appellant was at one time a well known child film actor and won several awards for acting in films. Subsequently he fell in bad company and took to evil ways. The offence of theft of two Sarees, though it could not be lightly ignored. was of minor. character and this was the first offence of the appellant. It Count be said that it would not be desirable to deal with the appellant under section 3 or section 4 of the Act. [665 G H]

iminal Appeal No.24 of 1968. Appeal by special leave from the judgment and order dated December 13, 14, 1967 of the Bombay High Court in Criminal Appeal No. 380 of 1966. A. section R. Chari and A. G. Ratnaparkhi, for the appellant. G. L. Sanghi and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Dua, J. In this appeal by special leave we are only concerned with the conviction of one out of four accused persons jointly tried for the murder of one Mohd. Yahya. The appellant Noor Mohammed Mahamed Yusef Momin, accused No. 4, in the trial court was jointly tried with three others in the court of the second Additional Sessions Judge, Thana on the following three charges "That you accused nos. 1 to 4 on or about the 16th day of April, 1965 at Bhiwandi entered into an agreement to commit the murder of Mohamed Yahya and that the same illegal act was done in pursuance of the said agreement and thereby you committed an offence punishable under section 120B of the Indian Penal Code and within my cognizance. That You accused nos. 1, 2 and 3 on or about the 17th day of April, 1965 at about 11 p.m. at Bhiwandi 121 in furtherance of common intention of you all and accused No. 4 to commit the murder of the deceased Mahamed Yahya did commit his murder by intentionally causing his death by assaulting him by knife and thereby committed an offence punishable under section 302 read with section 34 of the Indian Penal Code and within my cognizance. In the alternative you accused No. 4 on 17th of April, 1965 at Bhiwandi abetted the commission of the offence of murder of Mahamed Yahya by accused nos. 1 to 3 which offence was committed in consequence of your abetment and that you thereby committed an offence punishable under sections 109 and 302 of the Indian Penal Code and within my cognizance. " The trial court convicted Mohd. Taki Haji Hussein Momin, accused No. 1 under section 302, I.P.C. and sentenced him to imprisonment for life. He was acquitted of the other charges. His three co accused were acquitted of all the charges. 'Accused No. 1 appealed to the Bombay High Court against his conviction whereas the State appealed against the acquittal of the other three. The High Court, after considering the evidence on the record, upheld the conviction of accused No. 1 and reversed the order of acquittal of the other three. Accused nos. 2, 3 and 4 (Chinwa Ca, Ahmed Hessan Momin, Abdul Rahamen Bacchu Momin, and Nur Mahamed Mahamed Yusef Momin respectively) were held guilty of the offence under section 120 B, I.P.C. as also of the offence under section 302, read with section 34, I.P.C. Accused No. 4 was in addition held guilty of the offence under section 302 read with section 109, I.P.C. Accused nos. 2, 3 and 4 were sentenced to imprisonment for life both under section 120 B, I.P.C. and section 302 read with section 34, I.P.C. Accused No. 4, appellant in this Court, was also separately sentenced to imprisonment for life for the offence under section 302 read with section 109, I.P.C. Incidentally it may be mentioned that Jaitunbi, widow of the deceased Mohd. Yahya, had also appealed to the Bombay High Court challenging the acquittal of accused nos. 2, 3 and 4 on all charges and of accused No. 1 on the charges other than that of murder under section 302, I.P.C. This appeal which was treated as an application under section 417(3), Cr. P.C. was held not to be maintainable. As already indicated, this Court granted special leave only to the appellant who was accused No. 4 in the trial court. Before narrating the prosecution story the inter se relationship of the accused persons may be stated. Abdul Rehman Bacchu Momin. accused No. 3, is the husband of the sister of the appellant Noor Mohammed 's wife. Chinwa alias Ahmed Hessan L11 Sup. CI/70 9 122 Momin, accused No. 2, is the brother of Kallu, who is the son in law of the appellant, accused No. 4. Mohd. Taki, accused No. 1, is the servant of Kallu. All these persons are the residents of the same place and the deceased Mohd. Yahya was a close neighbour of the appellant. According to the prosecution there were constant disputes between the, appellant and the deceased over the right of passage and the right to tap water, and it is not disputed that both sides had made reports and counter reports with the police against each other. The climax reached on April 16, 1965 in the morning at 7 O ' clock. On that day Mohd. Yahya, when going out of his house, found that there was a heap of earth and a cot belonging to the appellant obstructing his way. A cow belonging to the appellant was also standing in the passage. In order to clear his way the deceased picked up a stone and hurled it at the cow. This offended the appellant and he in retaliation threw a glass which he was holding towards the deceased and also abused him. The deceased reported this incident to the police station. The appellant also went to the police station and made a counter complaint against the deceased. When the deceased :and the appellant had gone to the police station the two wives of the appellant abused Jaitunbi, wife of the deceased, with the result that Jaitunbi also went to the police.station to lodge a report. But this report was not recorded. A little later, the wives, sisters and children of the appellant again abused Jaitunbi and pelted stones at her. Jaitunbi went to the police station again to lodge a complaint, the same day at about 10 a.m. When the deceased was lying on a cot in his house the appellant came up to the door of the former 's house asking him to get down. On enquiry by the deceased as to why he should get down the appellant replied that he would serve the deceased with his last tea. At that time the appellant was accompanied by four or five persons including Chinwa, accused No. 2. It is said that all of them abused the decreased. Chinwa, accused No., 2, held a knife in his hand which he is stated to have opened by pressing the button and as he tried to enter the house of the deceased, the latter 's daughter, Noorjahan, went by the back door to the police station to lodge a complaint. This part of the story is not admitted by the accused. On Noorjahan 's complaint the police came to the spot in a van and after interrogating the persons present the police party took with them accused nos. 2 and 3. The appellant is stated to have offered to reach the police station himself a little later. In view of these incidents Jaitunbi apparently felt somewhat frightened and advised her husband, deceased Mohd. Yahya, to go to Bombay to avoid further clashes with the appellant. Mohd. Yahya, acting on his wife 's advice, went away to Bombay but 123 returned on the evening of April 17, 1965 bringing with him some female guests. In those days an Urus was being held near Par Naka and it appears that it was to attend this Urus that the female guests came with him. Seeing Mohd. Yahya back from Bombay, the appellant asked his nephew Latif, who was sleeping on a cot outside the house, to go in, loudly uttering that a dead body was to be kept on that cot. The deceased who had reached home at about 9.30 P.M. a little later went out to a pan shop near the Navyug Hotel. The deceased accompained by two unidentified persons followed him. Soon after, Mohd. Yahya was stabbed with a knife and this news reached his house. At the Par Naka two constables, Bhika Bahiram and Suvamasing, who were on duty in connection with the Urus, on learning of some disturbance near the Navyug Hotel and noticing some commotion, proceeded to the lane where a crowd had collected. On the way, accused No. 3 told them that nothing untoward had happened; but the two constables nevertheless proceeded further and reached the spot where Mohd. Yahya was lying in injured condition. Someone from the upper storey of a house nearby shouted that the assailants were running away. Constable Bhika Behiram asked Suvarnasing to attend to the injured person and he himself chased the two persons trying to escape. He caught Mohd. Taki, accused No. 1, in a lane near the municipal office. The other person who could not be caught was identified by Bhika Bahiram as Chinwa, accused No. 2, who was known to him. Suvamasing in the mean time, feeling that Bhika Bahiram would need his help also followed him and found him grappling ' with Mohd. Taki. Both the constables over powered Mohd. Taki, who had a knife in his pocket and whose clothes were bloodstained. Mohd. Taki was brought back to the place where Mohd. Yahya was lying injured. Mohd. Yahya was taken to the hospital in a bullock cart but he expired soon thereafter. In the report ' lodged by constable Bhika Bahiram, the names of accused nos. 1 and 2 were mentioned and accused No. 3 was described as an old man with moustaches, wearing a lungi. The appellant was not arrested, though his statement was recorded during the investigation on April, 19, 1965. He appears to have absconded soon thereafter and was arrested on June 18, 1965. The case against the appellant is to be considered in the background of the order of conviction against the other three co accused which has become final, this Court having declined special leave against their conviction. The High Court, on a consideration of the entire evidence, came to the conclusion that all the accused (nos. 1 to 4) had hatched a plan to commit the murder of Mohd. Yahya after his return from Bombay and it was in pursuance of that conspiracy 124 that he was murdered on the night of April 17, 1965. The appellant, along with accused nos. 2 and 3, was also held guilty of an offence under section 302 read with section 34, I.P.C. He was further held guilty of an offence under section 302 read with section 109, I.P.C. The appellants ' conviction on all these counts is challenged in this Court. So far as section 34, I.P.C. is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability 'being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Section 109, I.P.C. on the other hand may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Turning to the charge under section 120 B, I.P.C. criminal conspiracy was made a substantive offence in 1913 by the introduction of Chapter V A in the Indian Penal Code. Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done an illegal act or an act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by section 107, I.P.C. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested, quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proof of conspiracy is largely inferential though the inference, must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto. In the present case the High Court, after referring to the evidence of Laxmibai, (P.W. 7) and Hari Chavan (P.W. 13) (whom 125 that court expressly described as independent witnesses) and also of Murlidhar (P.W. 12), expressed its opinion in these words "All this evidence would show that at least since the 16th of April, 1965 the accused nos. 2, 3, and 4 were acting in concert and had something common in their mind. It would also show the presence of the accused No. 2 with a knife, at the incident of the 16th April, 1965 and his threatening the deceased with the knife and the acts and words used by the accused No. 4 Mohammad Noora inspiring the accused No. 2 and some other persons who were with him to beat and kill Mohammad Yahya, the subsequent utterances of the accused No. 4 when the deceased returned from Bombay on the night of the 17th of April, 1965, the following of the deceased Mohammad Yahya by the accused No. 4 alongwith two persons when Mohammad Yahya went out to have a pan, the death of Mohammad Yahya soon thereafter, then running of the four persons from the scene of the offence the accused No. 3 misleading the police constable with respect to the incident, the accused nos. 1 and 2 running away from the scene of the offence eluding the police constables, the accused No. 1 being caught after some struggle near the Municipal Office and found with his clothes stained with blood and having a knife in his shirt pocket, all these circumstances, taken together, would show that the accused nos. 1 to 4 must have met previously before causing of the injuries to deceased and must have hatched out a plan of causing the death of the deceased or causing at least grievous injuries to the deceased. Otherwise the presence of all the four accused near the scene of the offence at the time the incident occurred cannot be satisfactorily explained. The accused No. 4 had known that the deceased had returned from Bombay and the ominous words he used while asking his nephew Lateef to get down from the cot would suggest that he had still in mind that idea of doing away with the deceased and must have collected the other colleagues of his to carry out the plan which must have been hatched out prior to the incident. That inference can reasonably be drawn from the circumstances established in the case and it is in pursuance of that pre planning to do away with the deceased, all the four accused must have followed the deceased when he went out that night and the deceased was stabbed by at least some of these accused persons. " The High Court also believed the evidence of Noorjehan (P.W. 11) and Jaitunbi, (P. W. 5). In its opinion though these two 126 witnesses were, to a certain extent, interested their evidence appeared to it to be natural and its tenor did not show that they were deposing falsely. On a consideration of the entire material on the record the High Court felt that all the four accused persons must have hatched a plan to commit the murder of Mohd. Yahya after his return from Bombay and it was in pursuance of this conspiracy that Mohd. Yahya was murdered on the night of April 17, 1965. The court took into account the facts that accused No. 1 was caught after some chase near the scene of occurrence, accused No. 2 was identified though he made good his escape, accused No. 3, who was also identified by description, tried to mislead the police constables, and that accused No. 4 was seen following the deceased just before the murder with two or three persons. On this material the High Court upheld the appellant 's conviction. Under article 136 of the Constitution this Court does not normally proceed to review and appraise the evidence for itself and the conclusions of the High Court on questions of fact on appreciation of evidence are considered to be final. This is so even if this Court were to feel that a different view of the evidence is possible. But in this case, as it was represented that the evidence on the record does not support the conclusion of the High Court and that grave and substantial injustice had been caused, we undertook to go into the evidence, with the help of the counsel for the parties, to satisfy ourselves if there is any sufficient ground for interference on appeal by special leave. Hari Chavan, (P.W. 13), has deposed that on April 16, 1965 at about 10.30 a.m. the appellant, while standing near the steps of Mohd. Yahya 's house, exported three of his companions, one of whom was accused No. 2 who had a knife in his hand, to beat the deceased, the actual words used being, "Beat him : Kill him : I shall look to the consequences". This evidence is corroborated by Laxmibai, (P.W. 7) and both of these witnesses have been believed by the High Court. Laxmibai (P.W. 7) actually saw the appellant with the two others following the deceased about 15 or 20 minutes before the murder. We are unable to find any cogent ground for disagreeing with the High Court. On this evidence not only animus on the part of the appellant but also instigation by him must be held to be fully established. This evidence would also support the charge of criminal conspiracy against the appellant. Indeed, the evidence of Jaitunbi (P.W. 5) and Noorjehan (P.W. 1) also shows that the appellant on April 16, 1965 and on the evening Of April 17, on Mohd. Yahya 's return from Bombay and a short time before his murder, openly gave expression to his strong feelings of animosity against the deceased which leaves little doubt that he was thinking of doing away with Mohd. Yahya 's life. The admitted strained relations between the parties which reached the climax on April 16, 1965 and the evidence just discussed, in our opinion, clearly 127 establishes the complicity of the appellant in the murder of the deceased. The charges under section 302 read with section 109, I.P.C. and of conspiracy are thus fully supportable on the evidence. In regard to the 'charge under section 302 read with section 34, I.P.C. also Jaitunbi (P.W. 5) has deposed that on the date of the occurrence at about 9.30 p.m. the appellant asked his nephew Latif who was sleeping on the cot outside to go inside the house because a dead body was to be kept on that cot. Thereafter it is in the evidence of Laxmibai (P.W. 7), that the appellant accompanied by two persons followed the deceased when the latter went to the Pan shop. About 20 minutes later the news of Mohd. Yahya 's murder reached his house. From this evidence it seems highly probable that at the time of the actual murder of Mohd. Yahya the appellant was either present with the other three co accused or was somewhere nearby. But this evidence does not seem to be enough to prove beyond reasonable doubt his presence at the spot in the company of the other accused when the murder was actually committed. For, it may be that after leaving the house he stayed away and the persons actually taking part in the murder were only the other three co accused. We are, therefore, inclined to give to the appellant the benefit of doubt in regard to the charge under section 302 read with section 34, I.P.C. This would, however, be of little practical benefit to the appellant because he has already been given the lesser sentence. This appeal is, therefore, accepted only to the extent that the appellant 's conviction under section 302 read with section 34 is set aside. In all other respects this appeal fails and is dismissed. R.K.P.S. Appeal allowed in part.

Four accused were charged with the offences under section 120 B (conspiracy to commit murder) and section 302 read with section 34. The fourth accused was also charged under section 302 read with section 109 for the offence of abetting the murder committed by the other three accused. The accused 2 to 4 were related to one another while the first accused was a servant of the brother of the second accused. There were constant disputes between the fourth accused and the deceased over a right of passage and the right to tap water. The day before the murder the fourth accused, went to the house of the deceased and exhorted his companions, one of whom was the second accused, to kill the deceased. On the next day (the day of the murder) the fourth accused threatened to kill the deceased and later, accompanied by the 1st and 2nd accused, followed the deceased when he went out at about 10 p.m. Fifteen minutes after the deceased was thus seen being followed by the accused, the deceased was stabbed. The third accused tried to persuade the two constables who were proceeding towards the scene when they heard the disturbance that nothing untoward had happened, but the constables proceeded to the scene, and, on noticing the wounded body of the deceased, chased and caught the first accused and recognised the second accused who had escaped. One of the constables lodged the first information against the accused 1 to 3. The fourth accused was absconding and after he was arrested, all the accused were put up for trial. The High Court convicted the first accused under section 302 I.P.C., and accused two to four for offences under section 120 B and section 302 read with section 34, I.P.C. The fourth accused was also convicted for the offence under section 302 read with section 109. In appeal by special leave to this Court by the 'fourth accused, this Court examined the evidence, contrary to its usual practice, as it was represented that the evidence did not support the conclusion of the High Court, and HELD : The evidence clearly established the complicity of the appellant in the murder of the deceased, and the charges under section 302 read with section 109 I.P.C. and of conspiracy were fully supported by the evidence. As regards the charge under section 302 read with section 34, though, it was highly probable that at the time of the actual murder the appellant was either present with the other three co accused or was somewhere nearby, the evidence did not establish beyond reasonable doubt his presence at or near the spot when the murder was actually committed, and therefore, he must be given the benefit of doubt in regard to that charge. Section 34 embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. 120 Section 109, on the other hand, may be attracted even if the abettor is not present when the offence abetted is committed provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal emission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Criminal conspiracy is a substantive offence under section 120 B I.P.C. It differs from the other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment, the substantive offence of criminal conspiracy is wider in amplitude than abetment by conspiracy as contemplated by section 107 I.P.C. Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming, but like other offences it can be proved by circumstantial evidence. Surrounding circumstance and antecedent and subsequent conduct, among other factors constitute relevant material. In fact, because of the difficulties of having direct evidence of criminal conspiracy, once 'reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by any one of them in reference to their common intention after the same is entertained becomes, according to the law of evidence relevant for proving both conspiracy and the offences committed pursuant thereto. (124B H]

Civil Appeal No. 712 F. Of 1980. From the Judgment and order dated 20.12.1978 of the Gujarat High Court in Special C.A. No. 1()73 of 1975. V.M. Tarkunde, Dr. D.Y. Chandrachud, section Bharatari and P.H. Parekh for the Appellants. P.S. Poti, M.N. Shroff, K.M.M. Khan and Mrs. H. Wahi for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by special leave is directed against the judgment of the Gujarat High Court in a dispute centered round seniority of government employees in the Gujarat Sub ordinate Secretariat Service. The short facts necessary for disposal of the two contentions raised in this appeal are the following: 613 On May 1, 1960, the State of Bombay was bifurcated into two States Maharashtra and Gujarat. Prior to that date the six appellants in this appeal had joined Government service as Clerks cum typists. The Subordinate Secretariat Service was then divided into four grades (i) Clerk cum typist (ii) Junior Assistant (iii) Senior Assistant and (iv) Superintendent. Promotions were available from the lower tier to the upper one. When Gujarat became a separate State Government business in the Secretariat was divided into 9 departments separate in every respect so far as the Subordinate service was concerned. On October 12, 1960, by a Government Resolution the cadre of Superintendents became a common one covering all the departments in the Secretariat. Until then seniority was being determined department wise and promotions had also been regulated on the same basis in all the four grades. Under the new arrangement promotion to the post of Superintendent was handled by the General Administration Department out of a common list of Senior Assistants. On September 25, 1964, under another resolution of Government the grades of Junior Assistants and Senior Assistants were merged into a single one known as Assistants w.e.f. October 1, 1964, and a common seniority list of Government servants working as Assistants was prepared. A quota system was introduced for recruitment of Assistants. At one state, the ratio was 3: 1, promotees being the smaller proportion and later it was changed to 2: 1. On July 19, 1969, a seniority list of Assistants was prepared on quota basis and taking into account continuous officiation in the cadre of Assistants. The list was assailed before the High Court. The court found by judgment dated March 9, 1972 that promotees were in excess of the ratio and accordingly gave direction for a fresh list to be drawn up. On October 11, 1974, Government resolved to have a common cadre of Clerk cum typist and promotion to the post of Assistant was provided therefrom. In 1975, the October Resolution of Government was challenged before the High Court by filing two writ petitions. In the meantime, in 1977, a set of rules known as the Gujarat Subordinate Secretariat Service (Seniority of Assistants) Rules, 1977 were framed under the proviso to Article 389 of the Constitution with retrospective effect from May 1, 1960. Rule 4 of the Rules laid down the principle for determining seniority by providing that seniority among the promotees Assistants inter se shall be fixed on the basis of their length of service in the joint cadre of Clerk cum typist for all departments of the Secretariat as a whole. In December, 1978, the two writ petitions were dismissed. The High Court held that the object of the Rules of 1977 was to equalise the chances of promotions to the selection cadre and since the rules took care of the promotee officers by ensuring non reversion, the rules were indeed not retrospective. H 614 Several consequential dircctions were given. It is this judgment which is now under appeal. The main contention advanced by Mr. Tarkunde in the appeal is that the rule regarding seniority is retrospective in operation and takes away the vested right of the appellants to prospects of promotions. In support of his submission he has relied upon three decisions of this Court, namely, Mervyn vs Collector of Customs, Bombay & Ors., ; Roshan Lal Tandan vs Union of India, [ ; and State of Jammu & Kashmir vs Triloki Nath Khosa & ORS., l 1. Each one of these is a decision of the Constitution Bench. We do not find that on facts any of these cases has any support to offer for the point in dispute. Mervyn 's case was that of Appraisers of the Customs Department and challenge was to the validity of the rotational system in fixing the seniority of Principal Appraisers. The Court struck down the method used by Government in fixing the seniority of Principal Appraisers on a finding that there was denial of equality of opportunity. The dispute in this case is different from what came in Mervyn case for determination. This will be apparent when we presently deal with what exactly is the problem in the matter before us. Roshan Lal 's case dealt with recruitment into one cadre from two sources. Even when recruitment from the two sources merged into one cadre, favourable. treatment was given to recruits from one source regarding further promotion. The Court found this to be violative of Articles 14 and 16 of the Constitution. This again is not relevant for resolving the dispute in hand. Triloki Nath 's case was dealing with the Engineering Service of Jammu & Kashmir. There was direct recruitment of decree holders in civil engineering as also by transfer of degree or diploma holders who had served as Supervisors for a period of not less than 5 years for recruitment to the cadre of Assistant Engineers. The relevant rule provided that recruitment to the post of Executive Engineers and above was to be made by promotion only and Assistant Engineers who possessed a degree in engineering alone were eligible for such promotion. This rule, therefore, disqualified diplomaholders for being promoted as Executive Engineers and they challenged the constitutionality of the rule by contending that it was discriminatory. The Court found that even after there was one cadre, for the promotional post therefrom, a higher qualification could be prescribed and those out of the common cadre who satisfied that requirement could be made eligible for promotion. As we have already pointed out in the instant case the State decided at stages to switch over to the common cadre in respect of all the four grades of the Subordinate Service. Before common grades 615 had been formed promotion was granted departmentwise. When ultimately a common cadre came into existence and all that was done by 1974 it was realised that if seniority as given in the respective departments were taken as final for all purpose there would be prejudice. Undoubtedly the common cadre was for the purpose of increasing the efficiency by introducing a spirit of total competition by enlarging the field of choice for filling up the promotional posts and in the interest of discipline too. After a common cadre was formed, the general feeling of dissatisfaction on account of disparity of seniority became apparent. The 1977 Rules were introduced in this background to ease the situation. The scheme of this rule protected the rank then held by every member of the service notwithstanding alteration of seniority on the new basis. This, therefore, made it clear that accrued benefits were not to be interfered with. To that extent the 1977 Rules were not retroactive. In spite of the protection of Rule regarding the post then held, the Rules brought about a change in the inter se seniority by adopting the date of initial recruitment and the length of service became the basis for refixing seniority. Total length of service for such purpose is a well known concept and could not said to be arbitrary. Undoubtedly one of the consequences of the change in the basis was likely to effect prospects of promotion a matter in future. Two aspects have to be borne in mind while considering the challenge of the appellants to this situation. It was a historical necessity and the peculiar situation that arose out of Government 's decision to create a common cadre with four grades in the entire Secretariat. We would like to point out with appropriate emphasis that there was no challenge to creation of the common cadre and certainly Government was competent to do so. The second aspect to be borne in mind is that rules of seniority are a matter for the employer to frame and even though prospects of promotion in future were likely to be prejudiced by introduction of a new set of rules to regulate seniority, if the rules were made bona fide and to meet exigencies of the service, no entertainable grievance could be made. If these are the tests to apply, we do not think the appellants have indeed any grievance to make. In our view, therefore, the High Court rightly dismissed the contention and found that appellants were not entitled to relief Mr. Tarkunde next urged about the quota. We find that the High Court has not dealt with the question. We do not propose to go into that aspect. We accordingly dismiss the appeal but leave parties to bear their own costs throughout. S.L. Appeal dismissed.

% The appellants had joined the government service as clerks cum typists before the bifurcation, in May, 1960, of the State of Bombay into Maharashtra and Gujarat States. The Subordinate Secretariat Service then consisted of four grades (i) Clerk cum typist, (ii) Junior Assistant, (iii) Senior Assistant, and (iv) Superintendent. On the formation of Gujarat State, Government business in the secretariat was divided into nine separate Departments so far as the Subordinate service was concerned. Later, by a government Resolution, a common cadre of Superintendents for all the departments was created, and promotion to the post of the Superintendent was directed to be made out of a common list of senior assistants, and by another resolution, the grades of the senior assistants and junior assistants were merged into one post termed as Assistant, and a common seniority list of the Assistants was prepared. In October, 1974, by another Resolution, a common cadre of the clerks cum typists was created and promotion to the post of Assistant was provided therefrom. This October Resolution of the government was challenged before the High Court by two writ petitions. In the meantime, the Gujarat Subordinate Secretariat Service (Seniority of Assistants) Rules, 1977, were framed, which were to come into operation with retrospective effect from May, 1960. Rule 4 of the Rules laid down the principle for determining seniority by providing that seniority among promotees Assistants inter se shall be fixed on the basis of their length of service in the joint cadre of clerk cum typist for all Departments of the Secretariat as a whole. The High Court passed an order, dismissing the two writ petitions. The order of the High Court is appealed against by Special Leave in this Court, mainly on the ground that the retrospective operation of the Rules regarding seniority takes away the vested rights of the appellants of their prospects of promotions. Dismissing the appeal, the Court, 612 ^ HELD: A Common cadre was created for increasing efficiency A and in the interests of discipline. After the formation of the common cadre, general feeling of dissatisfaction owing to disparity of seniority was generated. The 1977 rules were introduced to ease that situation. The scheme of the Rule regarding seniority protected the rank then held by every member of the service notwithstanding the alteration of seniority on the new basis. To that extent, the 1977 rules were not retrospective. [615B C] There was no challenge to the creation of the common cadre. Secondly, the rules of seniority are a matter for the employer to frame, and even though the prospects of promotion were likely to be prejudiced by the introduction of some new set of rules to regulate seniority, if the rules were made bona fide to meet the exigencies of the service, no entertainable grievance could be made, and the appellants have no grievance to make. [615E FI Mervyn vs Collector of Customs, Bombay and others, [1966] 3 S.C.R.600; Roshan Lal Tandan vs Union of India, [1968]1 S.C.R.185 and State of Jammu & Kashmir vs Triloki Nath Khosa & others, [1974] I S.C.R. 771, relied upon.

Appeal No. 317 of 1955. Appeal by special leave from the judgment and order dated October 18, 1952, of the Income tax Appellate Tribunal, Calcutta Bench, in Income tax Appeal No. 807/1950 51. A. V. Viswanatha Sastri and section C. Mazumdar, for the appellant. 62 484 C. K. Daphtary, Solicitor General of India, K. N. Rajagopal Sastri, R. Ganapathy Iyer, R. H. Dhebar and D. Gupta, for the respondent. September 2. The Judgment of the Court was delivered by SARKAR J. In 1944, the appellant was a resident of Lahore. On October 14, 1944, he was assessed to income tax by the Income tax Officer, Lahore, for the assessment year 1944 45 on an income of Rs. 49,047. As is well known, in August, 1947, India was partitioned and Lahore came to be included in the newly created Dominion of Pakistan and went out of India. After the partition, the appellant shifted to Delhi and was residing there at all material times. The appellant held shares in a company called Indra Singh and Sons Ltd. which had its office at Calcutta. The other shares in that company were held by Indra Singh and Ajaib Singh. The holdings of all the shareholders were equal. An annual general meeting of this company was held on April 17, 1943, in which the accounts for the year ending March 31, 1942, were placed for consideration. The accounts were passed at the meeting but no dividend. was declared though the accounts disclosed large profits. On June 11, 1947, an Income tax Officer of Calcutta passed an order under section 23A of the Income tax Act that Rs. 14,23,110 being the undistributed portion of the assessable income of the company for the year ending March 31, 1942, after the deductions provided in the section, be deemed to have been distributed as dividend among the three shareholders on the date of the general meeting, that is, April 17, 1943. As a result of this order a sum of Rs. 4,74,370. being his share of the amount directed to be distributed, had under the section, to be included in the income of the appellant for the assessment year 1944 45. The validity of this order was never challenged. The Income tax Officer, Calcutta, informed the Income tax Officer, Delhi, of the order made by him under a. 23A. Thereupon the Income tax Officer, Delhi, on April 10, 1948, issued a notice under a. 34 485 of the Act to the appellant then residing in Delhi, requiring him to file within thirty five days, a revised return for the year 1944 45 as a part of his income for that year had escaped assessment. Obviously the notice was on the basis that the said sum of Rs. 4,74,370 had escaped assessment for the year 1944 45. On February 10, 1949, the appellant submitted a revised return under protest and included in it the said sum of Rs. 4,74,370. The Income tax Officer, Delhi, then reopened the earlier assessment and on March 25, 1949, made a fresh assessment order for 1944 45 assessing the appellant on an income of Rs. 5,23,417. The appellant appealed against this order to the Appellate Assistant Commissioner but his appeal was dismissed. He then appealed to the Income tax Appellate Tribunal but was again unsuccessful. He has filed the present appeal with special leave of this Court against the judgment and order of the Income tax Appellate Tribunal. A preliminary point as to the maintainability of this appeal was taken by the learned Solicitor General appearing on behalf of the respondent Commissioner of Income tax, that the appellant having been unsuccessful in availing himself of the other remedy provided in the Act should not be allowed the extraordinary remedy of approaching this Court with special leave. Now, under the Income tax Act, the appellant could apply to the Tribunal to refer to a High Court any question of law that arose out of the former 's decision. The Act itself gave no right of appeal at all from that decision, nor any other remedy against it. The appellant had applied to the Tribunal for an order referring certain questions arising out of its decision to the ' High Court at Calcutta but was unsuccessful in getting an order for reasons to be presently stated. The Tribunal was in Calcutta. The appellant, who was in Delhi, asked a firm of income tax practitioners named section K. Sawday & Co. in Cal cutta, to move the Tribunal for an order of reference. Sawday & Co. had the necessary petition and papers prepared. They sent these to the appellant at Delhi by post on January 5,1953, for his signature and the 486 papers reached Delhi on January 7, 1953. The appellant who was then the Defence Minister of the Government of India, was at the time, away from Delhi on official tour. Immediately on his return from tour he signed the papers and on January 21/22, 1953, sent them from Delhi by post to Sawday & Co. in Calcutta. The papers reached Calcutta on January 24, 1953, but were not delivered to Sawday & Co. before January 28, 1953, due to a postman 's default as was admitted by the postal authority concerned. Sawday & Co. filed the petition in the Tribunal on the same date but that was one day too late as it should have been filed on January 27, 1953. The Tribunal thereupon dismissed the application as having been made out of time. The appellant appealed against this dismissal to the High Court at Calcutta but the High Court dismissed the appeal. In these circumstances, the appellant moved this Court for special leave to appeal and asked for condonation of delay in moving this Court, placing before it all the facts which we have earlier mentioned. This Court on a consideration of these facts condoned the delay and granted special leave. There was no attempt by the appellant to overreach or mislead the Court and the Court in its discretion gave the leave. In these circumstances, we are unable to agree with the contention that the appellant is not entitled to proceed with this appeal, because he could have availed himself of the remedy provided by the Act and was by his own conduct, unable to do so. This Court had inspite of this thought fit to grant leave to the appellant to appeal from the decision of the Tribunal. Further the learned counsel for the appellant intends to confine himself to questions of law arising from the Judgment of the Tribunal. We, therefore, see no reason why the appeal should not be heard. The main question in this appeal is whether the proceedings taken against the appellant under section 34 of the Act were valid. That section has been amended but we are concerned with it as it stood on April 10, 1948, when the notice under it was issued. The first point is that the proceedings under section 34 487 could not be taken by the Income tax Officer, Delhi. It is said that the proceedings under that section are only a continuation of the original assessment proceedings, and therefore, it is the Officer who made the original assessment order or his successor in office, who alone could start the fresh proceedings. It is hence contended that it is the Income tax Officer, Lahore, who could proceed against the appellant under section 34 and the Income tax Officer, Delhi, had no jurisdiction to do so. The contention then comes to this that in the circumstances of this case, ' no proceedings under section 34 could be taken against the appellant in India at all. The learned Solicitor General said that this was an objection as to the place of assessment under section 64 of the Act, and could not be entertained as it had not been taken within the time provided under the second proviso to sub sec. (3) of that section. If that proviso applied to the present case, the appellant had to raise the objection that proceedings under section 34 could not be taken at Delhi within the thirty five days Mentioned in the notice under the section. It is said that this had not been done. It seems to us however that the proviso would apply only if an objection to a place of assessment had been taken under section 64 and the objection that the appellant has taken in this case is not one under that section. That section applies where the assessment can be made in one place or another in India and an objection is taken to one of such places. Here the contention is that the assessment under section 34 can be made only in Lahore and therefore cannot be made. in India at all. To such a contention section 64 has no application. The Solicitor General 's point must therefore fail. We are however of the opinion that the contention of the appellant is without foundation. Section 34 provides that in the cases mentioned in it, the income may be assessed or reassessed and the provisions of the Act shall, so far as may be, apply accordingly as if the notice issued under the section had been issued under section 22(2) of the Act. Now the place where an assessment is to be made pursuant to a notice under 488 s.22(2) has to be determined under section 64. Indeed that is the only provision in the Act for deciding the proper place for any assessment. There is nothing which makes section 64 inapplicable to an assessment made under section 34. Therefore, it seems to us clear, that the place where an assessment under section 34 can be made has to be decided under section 64. Now the appellant was not carrying on any business, profession or vocation. He was working as the Defence Minister of the Government of India and residing in Delhi. He could be properly assessed by the Income tax Officer, Delhi, under section 64(2) if the assessment was the original assessment. This is not in dispute. It follows that no objection can legitimately be taken by the appellant to his assessment under section 34 by the Income tax Officer, Delhi. We find nothing in the two cases cited by Mr.Sastri, who appeared for the appellant, to support the contention that in this case the assessment under section 34 could not have been made in India at all. In neither of these cases any question as to the place of assessment tinder section 34 or any other section arose. In the first, C. V. Govindarajulu vs Commissioner of Income tax,, Madras (1), it was held that the proceedings under section 34 and the original assessment proceedings were not separate and therefore in the former, a penalty could be levied under section 28 for failure to submit a return pursuant to a general notice under section 22(1) on which the latter were deemed to have commenced. It does not follow that because the two assessments are not separate for certain purposes, the latter must take place only where the first had been made. In the second, Lakshminarain Bhadani V. Commissioner of Income tax, Bihar & Orissa (2), this Court held that a proceeding under section 34 may be taken against a karta of a Hindu undivided family to reopen an original assessment on the family, though in the meantime, there had been a disruption of the family and an order in respect of it had been passed under section 25A(1) of the Act. It was said that the position was as if the Income tax Officer was proceeding to assess the (1) I.L.R. (2) 489 income of the Hindu undivided family as in the year (if assessment. This of course does not mean that the assessment under section 34 must take place at the place where the original assessment was made or not at all. Then it is said that the Income tax Officer reassessed the appellant 's income under section 34 on the basis that part of it, namely, the dividend that became liable to be included in the appellant 's income under section 23A, had escaped assessment. It is contended that on a proper reading of section 34 this would not be a case of income escaping assessment because that section applies to income actually escaping assessment and not to income deemed to have escaped assessment which is all that has happened in the present case. It is said that in order that income may escape assessment there must in fact have been an income. It is also said that in order to apply section 34 to this case two fictions have to be resorted to, namely, (a) bringing an income into existence where none existed and (b) holding that income has escaped assessment where no income actually did so. It is argued that the language of section 34 does not permit two fictions being created, and that as the section reopens a closed transaction, it must be strictly construed. Reliance was placed on certain decisions in support of this contention. First, we were referred to two English cases, namely, Dodworth vs Dale (1) and D. & G. R. Rankine vs Commissioners Inland Revenue (2). These cases do not assist the appellant for they were not concerned with a statutory provision like section 23A on which the present case turns and which requires that an assessee would be deemed to have received a certain income on a specified date in the past and also requires that income to be included in his total income for assessment to tax. The other case to which we were referred was the decision of this Court in Chatturam Horliram Ltd. V. Commissioner of Income tax, Bihar and Orissa (3) where it was said that the contention " that the escapement from assessment (1) (2) (3) ; , 300 301. 490 is not to be equated to non assessment simpliciter, is not without force,". This Court however in the very next sentence proceeded to state clearly that " it is unnecessary to lay down what exactly constitutes `escapement from assessment" '. The actual decision in this case affords no assistance to the appellant and has not been relied on by him. It is clear from what we have read from the judgment in it that it does not lay down a test to decide when an income may be said to have escaped assessment. On its own merits also we are unable to accept the argument of the learned counsel for the appellant. Section 23A requires that on an order being made under it, the undistributed portion of the assessable income of the company for a year as computed for income tax purposes and after the deductions provided in the section, is to be ',deemed to have been distributed as dividends amongst the shareholders as at the date of the general meeting ", being the meeting at which the accounts for the year concerned were passed, and "thereupon, the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income ". The section creates a fictional income arising as on a specified date in the past and it does so for the purpose of that income being included in the income of the shareholders for assessment of their income tax. The income must therefore be 'deemed to have been in existence on the date mentioned for the purpose of assessment to tax. It is as if it actually existed then. Now if the assessment for the relevant year does not include that income, it has escaped assessment. That is what happened in this case. Therefore the case is one to which a. 34 would clearly apply. It is said that section 23A was meant to apply only to cases where pending assessment for any year, an order is made under that section creating a fictional income in that Year. We see no reason however so to restrict the operation of the section: the words in ' it do not warrant such restriction. There is no limitation of time as to when an order under B. 23A can be made. 491 Therefore it can be made at a time when the assessment of the income of the shareholder for the year concerned has been completed. There is no reason why that order should not be given effect to by proceedings duly taken under section 34. We do not also agree that the rejection of the appellant 's present argument will compel us to raise two fictions. There is only one fiction, namely, that raised by section 23A. That fiction having been raised, the income that has thereby to be deemed to exist must be held to have actually escaped assessment. We are unable to agree that in order to apply section 34 to an income deemed to exist under section 23A, we would have to read the former section to cover a case where income has to be deemed to have escaped assessment. If the income had come into existence, and not been assessed, it has escaped assessment; it is not a case where the income has to be deemed to have escaped assessment. In our view, therefore, the present contention of the appellant must fail and the income deemed to have been received by him by virtue of the order made tinder section 23A on June 11, 1947, must be held to have escaped assessment for the year 1944 45 and his income must therefore be liable to reassessment under section 34. It is now necessary to refer to one of the reasons on which the judgment of the Tribunal is based. It was there said that " It was incumbent on the Income tax Officer, Calcutta ' passing the order under section 23A to have included the sum of Rs. 4,74,370/ in the other assessed income of the assessee and to have recomputed the assessable income and the tax thereon". It was held that " the Income tax Officer, Delhi, went wrong in having recourse to the provisions of section 34 and making an assessment thereunder " but that this a mounted to a mere irregularity not vitiating the assessment made under that section. In the end the Tribunal observed,, " Anyhow, the Tribunal is empowered to substitute its own order for that of the Income Tax Officer and acting under that power we assess the assessee under the provisions of See. 23A(1) of the Indian Income tax Act 63 492 It seems to us that the Tribunal was wrong in the view that it took. The learned Solicitor General conceded that this is so. We are unable to agree that an assessment could be made under section 23A. That section does not provide for any assessment being made. It only talks of the fictional income being included in the total income of the shareholders " for the purpose of assessing his total income". The assessment therefore has to be made under the other provisions of the Act including section 34, authorising assessments. In our view, the assessment in this case had been properly made by the Income tax Officer, Delhi, under the pro. visions of section 34. Lastly, it is said that a. 23A is unconstitutional inasmuch as it was beyond the competence of the legislature that enacted it. This section has been redrafted and amended several times since it was first enacted in 1930. We are concerned with the section as it stood on June 11, 1947, when the order under it was made in this case. Sub section (1) of the section in the form that it stood then and that is the material portion of the section for our purposes was enacted by Act VII of 1939. It is that sub section which gave the power to make an order that the undistributed portion of the assessable income of the company shall be deemed to have been distributed as dividends and provided that thereupon the proportionate share thereof of each shareholder shall be ' included in his income for assessment. The enactment was by the Central legislature which then derived its competence to legislate from the Government of India Act, 1935. There is no doubt, and neither is it disputed, that sub section had been enacted under the power contained in entry 54 of List I in the Seventh Schedule to the Government of India Act, 1935. The entry read, " Taxes on income other than agricultural income". The argument of Mr. Sastri is that this entry only authorises legislation for taxing a person on his income; under it a law cannot be made taxing one person on the income of another. Mr. Sastri says that in law a company and its shareholders are different persons a proposition 493 which is indisputable and therefore section 23A is incompetent as it purports to tax the shareholders on the income of the company in which they hold shares, He points out, and this again is not in dispute, that the section does not give a right to a shareholder on an order being made under it, to realise from the company the dividend, which by the order is to be deemed to have been paid to him. He says, and this also seems right, that the income remains the income of the company and a shareholder is taxed on a portion of it representing the dividend deemed to have been paid to him. In spite of all this it seems to us that the legislation was not incompetent. Under entry 54 a law could of course be passed imposing a tax on a person on his own income. It is not disputed that under that entry a law could also be passed to prevent a person from evading the tax payable on his own income. As is well known the legislative entries have to be read in a very wide manner and so as to include all subsidiary and ancillary matters. So Entry 54 should be read not only as authorising the imposition of a tax but also as authorizing an enactment which prevents the tax imposed being evaded. If it were not to be so read, then the admitted power to tax a person on his own income might often be made infructuous by ingenious contrivances. Experience has shown that attempts to evade the tax are often made. Now it seems to us that section 23A was enacted for preventing such evasion of tax. The conditions of its applicability clearly lead to that conclusion. The first condition is that the company must have distributed as dividend less than sixty per cent of its assessable income after deduction of income tax and supertax payable by it. The taxing authority must then be satisfied Chat the payment of a dividend or of a larger dividend than that declared, would, in view of losses incurred in earlier years or the smallness of the profit made, be unreasonable. Lastly, the section does not apply to a company in which the public are substantially interested or a subsidiary company of a public company whose shares are held by the parent 494 company or by the nominees thereof The section provides by an explanation as follows: For the purpose of this sub section, a company shall be deemed to be a company in which the public are substantially interested if shares of the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than twenty five per cent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public (not including a company to which the provisions of this sub section apply), and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange in the taxable territories or in fact freely transferable by the holders to other members of the public. The section thus applies to a company in which at least 75 per cent of the voting power lies in the hands of persons other than the public, which can only mean, a group of persons allied together in the same interest. The company would thus have to be one which is controlled by a group. The group can do what it likes with the affairs of the company, of course, within the bounds of the Companies Act. It lies solely in its hands to decide whether a dividend shall be declared or not. When therefore in spite of there being money reasonably available for the purpose, it decides not to declare a dividend it is clear that it does so because it does not want to take the dividend. Now it may not want to take the dividend if it wants to evade payment of tax thereon. Thus by not declaring the dividend the persons constituting the group in control, could evade payment of super tax, which, of course, is a form of income tax. They would be able to evade the super tax because super tax is payable on the dividend in the hands of the shareholders even though it may have been paid by the company on the profits out of which the dividend is paid, and because the rate at which super tax is payable by a company may be lower than the rate at which that tax is payable by other 495 assessees. By providing that in the circumstances mentioned in it, the available assessable income of a company would be deemed to have been distributed as dividend and be taxable in the hands of the shareholders as income received by them, the section would prevent the members of such a group from evading by the exercise of their controlling power over the company, payment of tax on income that would have come to them. That being so, the section would be within entry 54. In conceivable circumstances the section may work hardship on members of the public who hold shares in such a company but that would not take the section outside the competence of the legislature. It would still be an enactment preventing evasion of tax. Considerations of hardship are irrelevant for deciding questions of legislative competence. It is further quite clear that in the absence of a provision like section 23A it is possible so to manipulate the affairs of a company of this kind as to prevent the undistributed profits from ever being taxed and experience seems to have shown that this has often happened. The following passage from Simon 's Income Tax, 2nd Edn., Vol. 3, p. 341, fully illustrates the situation : " Generally speaking, surtax is charged only on individuals, not on companies or other bodies corporate. Various devices have been adopted from time to time to enable the individual to avoid surtax on his real total income or on a portion of it, and one method involved the formation of what is popularly called a 'one man company '. The individual transferred his assets, in exchange for shares, to a limited company, specially registered for the purpose, which thereafter received the income from the assets concerned. The individual 's total income for tax purposes was then limited to the amount of the dividends distributed to him as practically the only shareholder, which distribution was in his own control. The balance of the income, which was not so distributed, remained with the company to form, in effect, a fund of savings accumulated from income which had not immediately 64 496 attracted surtax. Should the individual wish to avail himself of the use of any part of these savings he could effect this by borrowing from the company, any interest payable by him going to swell the savings fund; and at any time the individual could acquire the whole balance of the fund in the character of capital by putting the company into liquidation. " The section prevents the evasion of tax by, among others, the means mentioned by Simon. The learned Solicitor General sought to support the competence of the legislature to enact the section also on another ground. He said that entry 54 permitted tax on income and contended that it. authorised taxing of A on the income of B. He said that, where a shareholder was taxed on the income of the company, the two being considered separate legal entities, the tax was none the less on income though the burden of the tax was put on one to whom the income had not accrued or by whom it had not been received and so was within the scope of entry 54. In support of this contention he referred to B. M. Amina Umma vs Income Tax Officer. Kozhikode (1), Janab Jameelamma vs The Income tax 'Officer, Nagapattnam (2) and C. W. Spencer vs Income Tax Officer(3). As earlier stated, Mr. Sastri disputes the correctness of this contention. We do not consider it necessary to pronounce on this question or as to the correctness of the decisions cited so far as they support it. In our view, the legislative competence to enact the section can be clearly upheld on the ground that it was to prevent evasion of in come tax and that would be enough to dispose of the argument advanced by Mr. Sastri that the section was an incompetent piece of legislation. This appeal therefore fails and it is dismissed with Costs. Appeal dismissed.

The appellant, at the time a resident of Lahore, was asses sed to income tax on an income of Rs. 49,047 for the assessment year 1944 45 by the Income tax Officer, Lahore. After the partition in 1947 he shifted to Delhi and resided there. He was one of the three share holders of a company called Indra Singh and Sons Ltd. of Calcutta, the shares of all the three shareholders being equal. The company at a meeting held oil April 17, 1943, passed its accounts for the year ending March 31, 1942, but declared no dividends although the accounts disclosed large profits. On June 11, 1947, the Income tax Officer, Calcutta, passed an order under section 23A of the Income tax Act that the sum of Rs. 4,74,370, being the appellant 's share of the undistributed assessable income of the company, be included in his income for the assessment year 1944 45. Thereupon the Income tax Officer, Delhi, on April 10, 1948, issued a notice to the appellant, who was then working as the Defence Minister of India and residing in Delhi, under section 34 of the Act to file a revised return, which he did under protest, reopened the earlier assessment and by a fresh order made on March 25, 1949, assessed the appellant on an income of Rs. 5,23,417 for the year in question. It was contended on behalf of the appellant that the proceeding under section 34 could be held only in Lahore and not in India at all. The question for determination was whether the Income tax Officer, Delhi, could validly reassess the appellant under section 34 of the Act. Held, that the issue of a notice under section 34 of the Income tax Act, 1922, under the provision of the section itself, attracted such provisions of the Act as might apply to a notice issued under section 22(2) of the Act and since section 64 of the Act was the only provision under which the place of assessment upon a notice under section 22(2) could be determined, in absence of anything to the contrary in the Act, section 64 applied to an assessment under section 34 of the Act. The appellant was, therefore, rightly assessed by the Income tax Officer, Delhi, under section 64(2) of the Act. 483 C. V.Govindarajulu vs Commissioner of Income tax, Madras, I.L.R. and Lakshminarain Bhadani vs Commissioner of Income tax, Bihar and Orissa, , held inapplicable. The time specified by the proviso to section 64(3) could have no application since the contention in the present case was that the assessment under section 34 could be made only in Lahore and not in India at all. Section 23A of the Act, as it then stood, raised only one fiction, and not two, and that was of an income arising on a specific date in the past with the purpose that such income might be included in the income of a share holder for assessment. That income must, therefore, be deemed to have existed on the date for the purpose of assessment and, if not included in the assessment for the relevant year, must be taken to have actually escaped assessment so as to attract section 34 of the Act. Dodworth vs Dale, , D. & G. R. Rankine vs Com missioners of Inland Revenue, and Chatturam Horliram Ltd. vs Commissioner of Income tax, Bihar and Orissa, ; , held inapplicable. There is no warrant for the proposition that section 23A of the Act was meant to apply only to cases where pending assessment for any year, an order is made under that section creating a fictional income that year. Such an order could, therefore, be made even after the assessment of the income of the share holder for the year concerned had already been completed. But section 23A does not itself provide for any assessment being made and that has to be made under other provisions of the Act authorising assessment including section 34. It is not correct to say that section 23A(1), as it then stood, was beyond the competence of the Legislature and was as such unconstitutional. Under Entry 54 of List I of the Seventh Schedule to the Government of India Act, 1935, the Legislature could pass not only a law imposing a, tax on a person on his own income but also a law preventing him from evading the tax payable on his income and there can be no doubt that section 23A, properly construed, was meant to prevent such evasion.

itions Nos. 147, 320 69, 459, 4335 4434/85 etc. (Under Article 32 of the Constitution). For the Appearing Parties: B. Datta RishiKesh M.K. Rama murti MA. Krishnamurty. Anis Suhrawardy M section Gujaral S.C. Maheshwari PP Singh C. V. Subba Rao R.N. Poddar C.P. Pardey V.R Verma R P. Singh Indira Sawhney S.C. Patel Harbans Singh G.N. Chowdhary Narinder R D. Uradhyay PK. Jain K.R. Nagaraja Shakil Ahmed Syed NS. Das Bahl K R.P. Pillai D.Goburdhan C. Malhotra SN. Chowdhary V.K. Pandit Manoj Saxena Madan, Sharma G.S. Narayan Ms. Halida Khatoon K K Gupta C. Agarwala h. Satish Ms. A. Subhashini Sambandam and Pillai P.N. Gupta Mrs. Jayashree Wad and Raju Ramachandran. The Judgment of the Court was delivered by DESAI,J. Articles 41 and 42 of the Constitution notwithstanding, there are certain grey areas where the rule of hire and fire, a legacy of laissez faire even in Government employment still rules the roost. Casual labour employed on projects also known as 'projects casual labour ' is one such segment of employment where one may serve for years and remain a daily rated worker without a weekly off, without any security of service, without the protection of equal pay for equal work. In short at the sweet will and mercy of the local 839 satraps. Even the formidable railwaymen 's unions least cared for these helpless and hapless workmen. Suddenly a torrent of writ petitions and petitions for special leave awakened this Court to the plight of these workmen. In quick succession, 48 writ petitions and 32 petitions for special leave flooded this Court. In each writ petition / S.L.P., the grievance was that even though the workmen styled as 'project casual labour ' had put in continuous service for years on end to wit ranging from 1974 till 1983, yet their services were terminated with impunity under the specious plea that the project on which they were employed has been wound np on its completion and their services were no more needed. No one is unaware of the fact that Railway Ministry has a perspective plan spreading over years say decades and projects are waiting in queue for execution and year these workmen were shunted out (to use a cliche from the railway vocabulary) without any chance of being re employed. Some of them rushed to the court and obtained interim relief. Some were not so fortunate. At one stage some of these petitions were set down for final hearing and the judgment was reserved. When some other similar matters came up, Mr. K.G. Bhagat, the then learned Additional Solicitor General, requested the Court not to render the judgment because he would take up the matter with the Railway Ministry to find a just and humane solution affecting the livelihood of these unfortunate workmen. As the future of lakhs of workmen going under the label of casual project labour was likely to be affected, we repeatedly adjourned these matters to enable the Railway Ministry to work out a scientific scheme. Railway Ministry framed a Scheme and circulated the same amongst others to all the General Managers of Indian Railways including production units as per its circular No. E(NG)II/84/CL/41 dated June 1, 1984. In the Scheme it was stated that all the General Managers were directed to implement the decision of the Railway Ministry by the target dates It was further stated that a detailed letter regarding group 5 1(ii) would follow. Such a letter was issued on June 25, 1984. Thereafter, these matters were set out for examining the fairness and justness of the Scheme and whether the Court would be in a position to dispose of these petitions in view of the Scheme. That is how these matters came up before us. The relevant portions of the Scheme read as under: 840 "5.1. As a result of such deliberations, the Ministry of Railways have now decided in principle that casual labour employed on project (also known as 'project casual labour ') may be treated as temporary on completion of 360 days of continuous employment. The Ministry have decided further as under: (a) These orders will cover: (i) Casual labour on projects who are in service as on 1.1.84; and (ii) Casual labour on projects who, though not In service on 1.1.84, had been in service on Railways earlier and had already completed the above prescribed period (360 days) of continuous employment or will complete the said prescribed period of continuous employment on re engagement in future. (A detailed letter regarding this group follows). (b) The decision should be implemented in phases according to the schedule given below: Length of service Date from which Date by which (i.e. (i.e.continuous may be treated decision should employment). as temporary be implemented (i) Those who have 1.1.1984 31.12.1984 completed five yearsof service as on 1.1.84 (ii) Those who have 1.1.1985 31.12.1985 completed three years but less than five years of service as on 1.1.1984 (iii) Those who have 1.1.1986 31.12.1986 ted 360 days but less than three years of service on 1.1.1984 841 (iv) Those who complete 1.1.1987 or 31.3.1987 360 days after the date on which 1.1.1984 360 days are completed which ever is later. The Ministry would like to clarify here that casual labour on projects who have completed 180 days of continuous employment would continue to be entitled to the benefits now admissible to them (so long as they fulfil the conditions in this regard) till they become due for the benefits mentioned in the preceding sub paragraph. " By and large the scheme certainly is an improvement on the present situation though not wholly satisfactory. However, the railway being the biggest employer and having regard to the nature of its work, it would have to engage casual labour and therefore, as a preliminary step towards realisation of the ideal enshrined in Articles 41 and 42, we propose to put our stamp of approval on the scheme with one major variation which we proceed to herein set out. The Scheme envisages that it would be applicable to casual labour on projects who were in service as on January 1, 1984. The choice of this date does not commend to us, for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous court 's order. To illustrate, in some matters, the court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Those in respect of whom the court granted interim relief be stay/suspension of the order of retrenchment, they would be treated in service on 1.1.1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the Scheme. There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock 842 at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson 's choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court. Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 (a) (i) by modifying the date from 1.1.1984 to 1.1.1981. With this modification and consequent rescheduling in absorption from that date onward, the Scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by re casting the stages consistent with the change in the date as herein directed. To avoid violation of article 14, the scientific and equitable way if implementing the scheme is for the Railway administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Sec. 25G of the has been accepted. We direct accordingly. All these writ petitions and special leave petitions shall stand disposed of consistent with the scheme as modified by this judgment and the directions herein given. The scheme as would stand modified by the directions here in given forms part of this judgment and a copy of it shall be annexed to this judgment. Learned counsel Shri Anis Suhrawardy has put in the maximum labour in making a very useful compilation. He must have spent days and months! The compilation helped us the most 843 in dealing with the writ petitions and the special leave petitions and in ascertaining the proper principle. Such a compilation ought to have been prepared by the Railway administration. Therefore, we direct the Union of India to pay Rs. 5,000 as and by way of costs to Shri Anis Suhrawardy, advocate, Supreme Court. M.L.A. Petitions dismissed.

The petitioner workmen styled as 'Project Casual Labour ' in these writ petitions and special leave petitions contended that even though they had put in continuous service for years, their services were terminated on the ground that the project on which they were employed has been wound up on its completion and their services were no more needed. After the conclusion of the hearing in some of the matters, the Railway Ministry framed a scheme to find a just and humane solution affecting the livelihood of the petitioner It provided that casual labour employed on projects may be treated as temporary on completion of 360 days of continuous employment. Disposing of the petitions, ^ HELD: 1. (i) By and large the scheme certainly is an improvement on the present situation though not wholly satisfactory. However the Railway being the biggest employer and having regard to the nature of its work, it would have to engage casual labour and therefore, as a preliminary step towards realisation of the ideal enshrined in Articles 41 and 42, this Court proposes to put its stamp of approval on the scheme with one major variation which is herein set out. [841D] 1. (ii) The scheme envisages that it would be applicable to casual labour on projects who were In service as on January 1, 1984. The choice of this date does not commend, for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous court 's order, since, in some matters, the court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Those in respect of when the Court granted interim relief by stay suspension of the order of retrenchment, they would be treated in service on l. l. 1981 while others who fail to obtain interim rel if though similarly situated 838 would be pushed down in the implementation of the scheme. Therefore, those who could not come to the Court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment. Keeping in view all the aspects of the matter, the Court modifies part 5.1 (a) (i) of the scheme by modifying the date from 1.1.1984 to 1.1. With this modification and consequent rescheduling in absorption from that date onward, the scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by re casting the stages consistent with the change in the date as herein directed. [841E G; 842B C] (2) To avoid violation of article 14, the scientific and equitable way of implementing the scheme is for the Railway administration to prepare, a list of project casual labour with reference to each division OF each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, the court is considerably influenced by the statutory recognition of the principle of last come first go or to reverse it first come last go as enunciated in s.25G of the . [842D F]

l Appeal No. 3381 of 1982. From the judgment and order dated 18.10 82 of the High Court of Delhi in C.M. (M)) No. 174/82. V.M. Tarkunde, B. Dutta and Mrs. & Mr. A. Minocha for the Appellant. L N. Sinha and Mr. Parmod Dayal, for the Respondent. The Judgment Or the Court was delivered by TULZAPURKAR. The only question raised in this appeal is whether a warrant for recovery of possession can be issued ill favour of a landlord without notice to the tenant under section 21 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) ? A tenancy for a limited period of three years commencing from 1.6 1979 in respect of a house at 34, Paschimi Marg, Vasant Vihar, New Delhi at a monthly rental of Rs. 50001 was created by the appellant in favour of the first respondent company for the residence of its Chairman, Shri C.L. Sachdev after obtaining the requisite permission under s.21 of the Act. It appears that the said house was constructed by the appellant for his own use and occupation but having taken a loan for its construction he was desirous of clearing the said before occupying the same and he, therefore, offered in writing the tenancy for a limited period of three years to the first respondent company, and since the offer was accepted a joint application seeking permission of the Rent Controller under s.21 for creating such limited tenancy was made by the parties on 9th May, 1979 in which it was expressly stated that three years tenancy was being created as the appellant had to clear the construction loan; the proposed lease deed containing the terms and conditions of letting was annexed thereto, clause 2 whereof expressly recited that the premises shall be used by the respondent Company only for the residential purposes of its Chair man, Shri C.L. Sachdev (second respondent). On 10th May 1979 the parties appeared before the Rent Controller and their statements were recorded; the second respondent stated on oath that the premises were being taken by the respondent company for the residence of its Chairman (i.e. himself) on a monthly rental of Rs. 5000/ for 903 three years with effect from 1.6.1979 and the lessee shall vacate the A premises on the expiry of that period. By his order passed on that very day the Rent Controller, on being satisfied that the requirements of s.21 had been fulfilled, 1, granted permission for the creation of the tenancy for the said period which Was to expire on 31st May 1982. The appellant was desirous of getting possession of the house at the expiry of the period but before applying for possession under s.21 of the Act, by two registered letters one dated 1st March 1982 and the other dated 5th May 1982 h called upon the respondents to hand over vacant possession of the leased premises on the due date as the period permitted by the Rent Controller was coming to an end and also because h required the, pretenses for himself. There was no reply to any of this letters nor was possession handed over and, therefore, the appellant filed application under s.21 for recovery of possession before the Rent Controller on 1st July 1982; the application was directed to be registered on that day and the appellant was directed to file a certified copy of the plan on 16.7.1982; the appellant, however, filed the certified copy of the plan on the 6th July 1982; the Rent Controller, therefore cancelled the date 16th July 1982 fixed for filing the plan, took on record certified copy of the plan and issued warrant of possession in favour of the appellant. On 9.7.1982 the appellant took possession of the house through the bailiff and started residing therein with his family members. On 14th July 1982 the respondents filed a writ petition (C.M. No. (Main) 174 of 1982) in the Delhi High Court under article 227 of the Constitution seeking to quash the warrant of possession issued by the Rent Controller on 6.7.1982 and the further proceedings taken in pursuance thereof on two grounds: (3) that the initial order dated 10th May 1979 granting permission to create the limited tenancy was vitiated by fraud practised by the appellant inasmuch as he had suppressed the fact that an earlier application for such permission his been declined on the ground that premises had been let out for commercial cam residential purposes and therefore, there Was no executable order pursuant to which any warrant for possession could be issued under s.21 of the Act and (b) that the issuance of a warrant for recovery of possession on 6th July 1982 without notice to the tenant was erroneous in have and in violation of principles of natural justice and such non issuance of notice on the part of the Rent Controller had deprived the tenant of an opportunity to prove his case of fraud. By this reply the appellant denied all the allegations made in the Writ Peti 904 tion and particularly denied that the premises were let out for commercial cum residential purposes or that permission on the earlier occasion had been declined on that ground or that any fraud was practised by him as alleged at the time when the order granting permission was passed on 10th May 1979; it was asserted that the earlier application for permission was not refused but was got with drawn for technical defect. The appellant also disputed that anoints to the tenant Was contemplated by s.21 of the Act before issuing the warrant for recovery of possession thereunder; he also pleaded that on the facts of the case the respondents had ample opportunity to approach the Rent Controller to prove their case of alleged fraud inasmuch as the appellant had issued two registered notices to the respondents informing them that he was desirous of recovering possession at the expiry of the lease period and as such though there was no requirement of a notice in law, the principles of natural justice could be said to have been substantially observed. By its judgment and order dated 18th October 1982 the High Court allowed the writ petition, quashed the warrant of possession issued by the Rent Controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also directed that possession be restored to the tenant. In doing so the High Court took the view that no warrant for recovery of possession under s.21 of the Act could be issued in favour of the landlord without issuance of a notice to the tenant. It is this view of the High Court that is being challenged before us by the appellant in this appeal. In support of the appeal the principal contention of the counsel for the appellant has been that neither s.21 of the Act nor any Rules framed thereunder require or contemplate the service of a notice on the tenant before issuing the warrant of possession for the purpose of putting the landlord in vacant possession of the leased premises at the expiry of the limited period for which the tenancy has been permitted to be created under the Rent Controller 's order. Counsel submitted that s.21 postulates summary eviction of the tenant by a process which is really in the nature of executing the earlier order creating a tenancy for a limited period as no fresh eviction order is contemplated and that insistence upon a prior notice to the tenant before issuing the warrant of possession followed by an elaborate inquiry would defeat the very object or purposes for which s.21 has been enacted and incorporated in the Act which, 905 as explained by this Court in S.B. Noronah vs Prem Kumari Khanna,(l) is to afford an assurance to the landlord that he will get back possession forthwith at the expiry of the fixed period of tenancy but for which a landlord would never let out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period. Counsel for the appellant pointed out that even under the Civil Procedure Code no prior notice is required to be served on a judgment debtor when execution processes say for attachment and sale of his properties or even for dispossessing him are taken within two years of the decree. Counsel for the appellant, therefore, urged that the High Court was ; error in taking the view that a warrant of possession could not be issued in favour of the landlord without service of a prior notice upon the tenant under C s.21, and according to him the decision in Noronaths case (supra on which High Court has relied in this behalf is not on this point. Counsel for the appellant further urged that even in a case where fraud is alleged to have been practised by the landlord in obtaining the Rent Controller 's sanction for creating the limited tenancy the section does not cast any duty or obligation upon the Rent Controller to invite a plea of fraud from the tenant by issuing notice to him after the landlord has applied for recovery of possession under that section Further the counsel pointed out that in the facts of the instant case the fraud, if at all there was any, was known to the tenant right from the time the limited tenancy was created under the Rent Controller 's order and the respondents could have approach the Rent Controller to have the issue decided at any time during the three years period and in any case at least immediately after the receipt of two registered letters from the appellant 's which were issue months ahead of the appellant 's application for recovery of possession under s.21. Counsel, therefore, urged both in law as well as on the facts of the present case the service of a notice by the Rent Controller upon the tenant before issuing warrant of possession was uncalled for and not required and the High Court was in error in taking the view it did; in any case the High Court was wrong in directing the restoration of possession back to the respondents when the matter was remanded by it to the Rent Controller for hearing and adjudicating upon the tenant 's objection and the appellant 's possession need not have been disturbed pending such adjudication. (1) [1980] I S.C.R. 281. 906 On the other hand counsel for the respondents strongly sup ported the view taken by the High Court and in that behalf relied upon this Court`s decision in the Noronah 's case (supra) which has the view that even at the execution stage it is open to the tenant to put forward a case of fraud in the matter of obtain g Rent Controller 's permission at the initial stag, for creating a limited tenancy and the Rent controller is bound to hold an inquiry when such a plea of fraud is put forward by the tenant and according to counsel such inquiry into the, plea of fraud would not be possible unless notice is served Upon the tenant before issuing the warrant of possession . In order to decide the question raised in the appeal it will be necessary to set out section 21 of the Act. The section ruts thus: "21. Recovery of possession in case of tenancies for limited period where a landlord does not require the whole or any part of premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed in the manner , let the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period , vacate such premises then, notwithstanding anything contained in section 14 or any other law the Controller may , on an application mad to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premise or part thereof by evicting the tenant and every other person who may be in occupation of such premises . An analysis of the provision will show that in regard to tenancies for limited period mentioned there in only two orders are contemplated by the section: (i) an order by the Rent Controller sanctioning or permitting the creation of 3 tenancy for a particular fixed period only, and (ii) an order by the Rent Controller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period. It is also clear that before passing the first order the Rent Controller is required to satisfy himself that the two conditions mentioned in the section are genuinely satisfied in every 907 case, namely, (a) that the landlord does not require the premises A 'for a particular period ' only and (b) that the letting itself is for residential purposes and no other. The landlord 's non requirement of the premises for a particular period may arise out of various circumstances; for instance, being an Officer he may be going on some other assignment for a particular period or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the construction he may desire to clear it of before occupying the premises for his own use, etc. It cannot be disputed that both the condition must be truly fulfilled and not by Way of any make belief before the Rent Controller grants his permission for the creation of such limited toenails but once such laminated tenancy is properly created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period to be passed as matter of course because the tenant, in view of the non obstinate clause contained in the section, has no right or protection whatsoever under law to continue the possession nor has he any defense to eviction and the section does not Contemplate the passing of any order of eviction against the tenant before issuing the warrant of possession in favour of the landlord. It is the clear that the second order contemplated by the section is in the nature Or a process in execution whereunder the landlord has to put in possession of the leased premises by evicting the tenant and every occupant thereof, and no notice to the tenant is contemplated before issuing the warrant of possession for putting the landlord in possession As far as the Delhi Rent Control Rules 1956 framed by the Central Government under section 56 of the Act are concerned there is only one rule being Rule 5 which merely provides for period of limitation by saying that every application for recovery of possession under sec. 21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy and there is no rule requiring a notice being served upon the tenant before the issuance Or warrant of possession to evict him. Counsel for the respondents relied upon sec. 37 of the Act to canvas the contention the service of a prior notice Upon the tenant before he is evicted would be necessary but that deals with the practice and procedure required to be followed by the Rent Controller in proceedings before him and it mainly provides that subject to any rules 908 That may be made under the Act the Controller shall, while holding an inquiry in any proceeding before him, follow as may b the practice and procedure of a court of small causes, including the recording of evidence. In particular counsel relied upon sub sec. (1) of sec. 37 which provides that "no order which prejudicially affects any person shall be made by the Controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and ,any evidence he may produce in support of the same have been considered by the Controller. " In our view all that sub sec. (1) does is to incorporate a rule of natural justice, namely, that an order prejudicially affecting a person shall not be made without hearing him and considering his objections if any to the proposed order. But an order can be said to affect a person prejudicially only if any right of his would b affected adversely and as stated earlier in view of the non obstinate clause contained in sec. 21 the tenant on the expiry of the limited period his no right or protection what so ever under any law to continue in possession and as such the issuance of a warrant of possession directing him to vacate the premises in his occupation cannot be regarded as one which prejudicially affects him. Section 37 (1) therefore, cannot be construed as requiring service of a prior notice upon the tenant before issuance of a warrant of possession against him. In other words neither sec. 21 nor sec. 37 nor the Rules framed under the Act require service of any prior notice upon the tenant before he is evicted and the order directing issuance of warrant of possession under sec. 21, without prior notice to the tenant, for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannot be regarded as illegal, invalid or unwarranted. The question at issue could also be considered by having regard to the object or purpose with which section 21 has been enacted and incorporated in the Act. It cannot be disputed that sec. 21 carves out tenancies of particular category for special treatment and the raison d 'etre of the provision has been explained by this Court in Noronah 's case (supra) in these words: "Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity crises. One source of such spare accommodation which is usually shy is potentially vacant building or a part 909 thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back. If an officer is going on other assignment for a particular period, or the owner has official quarters so that he can let out if he is confident that on his retirement he will be able to re occupy, such accommodation may add to the total lease worthy houses. The problem is felt most for residential uses. But no one will part with possession because the lessee will be come a statutory tenant and, even if bonafide requirement is made out the litigative tiers are so many and the law 's delays so tantalising that no realist in his sense will trust the sweet promises of a tenant that h will return the building after the stipulated period. So the law has to make itself credit worthy. The long distance between institutions of recovery proceedings and actual dispossession runs often into a decade or more a factor of despair which can be obviated only by a special procedure. Section 21 is the answer. ' 'The law seeks to persuade the owner of a premise available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession." (Emphasis supplier). It is thus clear that the object of incorporated section 21 in the Act is to provide a special procedure that will ensure to the landlord vacant possession of the leased premises forthwith at the expiry of the fixed period of tenancy but for which he would be shy to let out his premises and would continue to keep them vacant even though he may not require the premises for a fixed period. Moreover the assurance of getting vacant possession forthwith is further strengthened by the provision that under the warrant of possession not merely the tenant but every person who may be in occupation is also to be evicted. If such is the avowed object of prescribing the special procedure then service of a prior notice on the tenant upon receipt of the landlord 's application for recovery of possession and inviting his objections followed by in elaborate enquiry in which evidence may have to be recorded will really frustrate that object. In our view precisely for this reason the scheme of sec. 21 and the connected relevant provisions do not require service of a prior notice on the tenant before issuing the warrant of possession against 910 him for putting the landlord in possession of the leased premises, for, the law has to make itself credit worthy. Strong reliance was placed by counsel for the respondents on the decision of this Court in Noronah '.s case (supra) where according to counsel a view has been taken that even at the second stage when the landlord applies for recovery of possession under sec 21, the Rent Controller must satisfy himself by such inquiry he may make about the compulsive requirements of that provision that is to say, whether the twin conditions requisite for granting, the permission for the creation Or limited tenancy had been really fulfilled or not and counsel argued that no such inquiry would be possible unless on receipt of landlord s application. for recovery of possession a notice served is upon the tenant which would enable the tenant to put forth a plea that at initial stage a mindless order granting, permission ion for the creation of limited tenancy had been made with it the will condition being really satisfied or that the said initial order granting permission was the result of either fraud on the part of ' the landlord or collusion between the parties Counsel urged that a more ritulistic enforcement the condition of ' the permission udders sec. 21 or a mechanical grant of permission thereunder would amount to subverting the whole effect of sec. 21 and it is well settled fraud and collusion (especially collusion between two to unequal the strong and the weak) will vitiate completely the permission so granted and render it non est. 'therefore, it would be the duty of the Rent Controller to hear and adjudicate upon such pleas of the tenant before issuing warrant of possession in favour of the landlord. At the outset we would like to observe that in Noronah 's case the question whether a prior notice is required to be served upon the tenant before issuance of warrant of possession in favour of the landlord under sec. 21, did not arise for consideration. It was a case where upon receipt of landlord`s application for reconvey of possession under the section the tenant raised pleas that the premises had been let out for non residential purposes and that the sanction or permission granted for the creation of the limited tenancy was vitiated by fraud and collusion and the question that arose for consideration was whether at that stage the Rent Controller should consider those peas even when reside at the stage. In other words all that the said case decided in that if such please by the tenant event at the exception 911 stage (i.e. at the stage of passing the second order) the Rent Controller should consider and adjudicate upon such pleas but the decision is no authority for the proposition that upon receipt of landlord 's application for recovery of possession the Rent Controller must issue a notice to the tenant inviting from him the pleas of fraud, collusion etc. and hold an inquiry into such pleas before issuing the warrant of possession in favour of the landlord; for there cannot be a presumption that in very case there was a m re ritualistic observance of the procedure contemplated while passing the initial order granting pertain or that the Controls had passed a mindless order or that the order granting permission was the result of either fraud on the part of the landlord or collusion between the strong and the weak. In fact clean in Noronah case this Court has observed that there will be a presumption in favour of the sanction or permission being regular and if that be so, we fail to appreciate as to why the Rent Controller should invite such pleas of fraud, collusion etc. at the instance of the tenant by being required to serve a notice upon, him before issuing the warrant of possession in favour of the landlord especially when the scheme of sec. 21 and the connected relevant provisions do not require it. what then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a l limited tenancy or where such permission has procured by fraud practised by the landlord or was a result of collusion between n the strong and the weak ? Must the tenant in scull cases be unceremoniously evicted without his plea being inquired into ? The answer is obviously in the negative. At the same time must he be permitted to protract the delivery of possess on of the leased premises to the I Landlord on a false plea of fraud or collusion or that there was a mechanical grant of permission and thus defeat the very subject of the special procedure provided for the benefit of the landlord in sec. 21 ? The answer must again be in the negative. In our view these two competing claims must be harmonized and the solution lies not in insisting upon service of a prior notice on the tenant b fore the issuance of the warrant of possession to evict him but by insisting upon his approach the leant Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission. Either it is a mechanical grantor permission or it is procured by fraud practised by the landlord or it is the result 912 of collusion between two unequals but in each case there is no reason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of the fixed period under sec. 21 but there is every reason why the tenant should make an i mediate approach to the Rent Controller to have his pleas adjudicated by him as soon as facts and circumstances giving rise to such pleas come to his knowledge or are discovered by him with due diligence. The special procedure provided for the benefit of the landlord in sec. 21 warrants such immediate approach on the part of the tenant. Of course if the tenant aliunde comes to know about landlord 's application for recovery of possession and puts forth his plea of fraud or collusion etc. at that stave the Rent Controller would inquire into such plea but he may run the risk of getting it rejected as an afterthought. There is however no need to imply any obligation on the part of the Rent Controller r to serve a notice on the tenant inviting him to file his objections before issuing the warrant of possession in favour of the landlord. Having regard to the above discussion we are clearly of the view that the High Court Was in error in taking the view that no warrant for recovery of possession under sec. 21 could be issued without serving a notice on the tenant. We hold that the Rent Controller 's order directing the issuance of warrant of possession in favour of the appellant landlord herein and the further proceedings of putting him in position of the suit premises in pursuance thereof were valid and proper and ought not to have been quashed by the High Court. However, since the High Court has remanded the matter back to the Rent Controller for adjudication upon pleas of the respondent tenant we not propose to interfere with that e the order and the adjudication of the objections raised by the respondent talent may be proceeded with and decided in accordance with the law but on the facts of the instant case there was no justification for the direction issued by the High Court that pending such adjudication possession of the premises be restored to the respondent tenant. Admittedly in the instant case long before he applied for recovery of possession under sec. 21 of the Act the appellant had sent two registered notices to the registered notices calling upon it to vacate the, premises as the period of the limited tenancy was about to expire and also because he wanted the premises for his own use and occupation and nothing was done by the respondents and it was only after the warrant of possession had been executed and the landlord got possession of the premises 913 in question that the respondent company approached the High A Court by means of a Writ Petition challenging the issuance of warrant of possession on the ground that no prior notice had been served upon him and that the first order granting permission for limited tenancy was the result of fraud practised by the landlord. Obviously the respondent company has thought fit to raise the plea of fraud belatedly. We, would therefore, quash that part of the High Cortege order which directs restoration of possession of the suit premises to the respondent company during the i of the proceedings before the, Rent Controller and direct that the appellant 's possession of the suit premises which he has secured in pursuance, of the warrant of possession shall not be disturbed till the respondent company objections and or pleas are finally decided. Since the appeal substantially succeeds the respondents are directed to ply the, cost of the appeal to appellants. S.R. Appeal allowed.

A tenancy for a limited period of three years commencing from 1.6.79 in respect of a house at 34, Paschimi Marg, Vasant Vihar, New Delhi at a monthly rental of Rs. 5,000 was created by the appellant in favour of the first respondent company for the residence of its Chairman, Shri C.L. Sachdev after obtaining the requisite permission under section 21 of the Delhi Rent Control Act. In the application filed before the Rent Controller and in the proposed lease deed it was specifically stated that the appellant landlord in order to clear the loan taken by him for the construction of the premises was creating the limited tenancy for a period of three years. The appellant was desirous of getting possession of the house at the expiry of the period i.e 31st May, 1982 but before applying for possession under section 21 of the Act, by two registered letter one dated 1st March, 1981 and the other dated 5th May, 1982 he called upon the respondents to hand over vacant possession of the leased premises on the due date. The respondent neither replied these letters nor did handover possession. Therefore, the appellant filed an application under section 21 for recovery of possession before the Rent Controller On 1st July, 1982. On 9.7.82 the appellant took possession of the house through the bailiff and started residing therein with his family members. On 14th July 1982 the respondents filed a writ petition (CM No. (Main) 174 of 1982) in the Delhi High Court under Article 227 of the Constitution seeking to quash the warrant of possession issued by the Rent Controller on 6.7.1982 and further proceedings taken in pursuance thereof on two grounds: (a) that the initial order dated 10th May, 1979 granting permission to create the limited tenancy was vitiated by fraud practiced by the appellant in as much as he had suppressed the fact that an earlier application for such permission has been declined on the ground that premises had been let out for commercial cum residential purposes and therefore, there was no executable order pursuant to which and warrant for possession could be issued under section 21 of the Act and (b) that the issuance of a warrant for recovery of possession on 6th July 1982 without notice to the tenant was erroneous law and in violation of the principle of natural justice and such nonissuance of notice on the part of the Rent Controller had deprived the tenant of an opportunity to prove his case of fraud. By his reply the appellant denied all the allegation made in the Writ Petition. 900 The High Court took the view that no warrant for recovery of possession under section 21 of the Act would be issued in favour of the landlord without issuance of a notice to the tenant, and by its judgment and order dated 18th October, 1982 allowed the writ petition, quashed the warrant of possession Issued by the Rent Controller and sent the matter back to him for hearing and adjudicating upon the objections of the tenant to the issuance of such warrant of possession and in the meanwhile it also is directed that possession be restored to the tenant. Hence the appeal by special leave Allowing the appeal, the Court, ^ HELD: 1.1. Neither section 21 and 37 of the Delhi Rent Control Act 1958 nor the Rules framed under t`he Act require service of any prior notice upon the tenant before he is evicted and in the instant case, the order directing issuance of warrant of possession under section 21 without prior notice to the tenant, for the purpose of putting the landlord in possession of the leased premises at the expiry of the limited tenancy cannot be regarded as illegal, invalid or unwarranted. [908 E F] 1.2. An analysis of section 21 of the Delhi Rent Control Act will show that in regard to tenancies for limited period mentioned therein only two orders arc contemplated; (i) an order by the Rent Controller sand or permitting the creation of a tenancy for a particular fixed period only, and (ii) an order by the Rent Controller putting the landlord in vacant possession of the leased premises by evicting the tenant and every other occupier thereof at the expiry of that period. Before passing the first order the Rent Controller is required to satisfy himself that the two conditions mentioned in the section are genuinely satisfied in every case, namely, (a) that the landlord does not require the premises for a particular period only and (h) that the letting itself is for residential purposes and no other. The landlord s non requirement OF the premises for a particular period may arise out of various circumstances for instance, being an officer he may be going on some other assignment for a particular period or being in occupation of official quarters he may have to vacate the same on his retirement or having borrowed a loan for the same on his retirement or having borrowed a loan for the construction he may issuer to clear it of before occupying the premises for this own use, etc. Both the conditions must be truly fulfilled and not by way of any make belief before the Rent Controller grants his permission for the creation of such limited tenancy but once such limited tenancy is properly created the second order of putting the landlord in vacant possession of the leased premises by evicting the tenant at the expiry of the fixed period has to be passed as a matter of course because the tonality, in view of the non obstinate clause contained in section 21, has no right or protection whatsoever under law to continue in possession nor has he any defense to eviction. The second order contemplated by section 21 is in the nature OF a process in execution where under landlord has to be put in possession of the leased premises by evicting the tenant and every other occupant thereof, and no notice to the tenant is contemplated before issuing ll the warrant of possession for putting the landlord in possession. [906 G H; 907 A E] 901 1.3. Section 21 carves out tenancies of particular category for A special treatment and provides a special procedure that will ensure to the landlord vacant possession of the leased premises forth with at the expiry of the fixed period of tenancy, evicting whoever be in actual possession Such being the avowed object of prescribing the special procedure, service of a prior notice on the tenant upon receipt of the landlord 's application for recovery of possession and inviting his objections followed by an elaborate inquiry in which evidence may have to be recorded will rally frustrate that object. [909F G] section B. Noronah vs Prem Kumari Khanna, [1980] I SCR 201, followed. 1.4 In ease there was in fact a mere ritualistic observance of the procedure while granting permission for the creation of a limited tenancy or where such permission was procured by fraud practised by the landlord or as a result of collusion between the strong and the weak, the solution lies not in insisting upon service of a prior notice on the tenant before the issuance of the warrant of possession to evict him but by insisting upon his approaching the Rent Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission, and certainly not to wait till the landlord makes his application for recovery of possession after the 1) expiry of the fixed period under section 21. The special procedure provided for the benefit of the landlord in section 21 warrants such immediate approach on the part of the tenant. Of course, if the tenant aliunde comes to know about landlord 's application for recovery of possession and puts forth his plea of fraud or collusion etc. at that stage the Rent Controller would inquire into such plea but he may run the risk of getting it rejected as an after thought. [912A D] 1.5. Except Rule 5 which deals with applications made under section 21 and which merely provides for period of limitation by saying that every application under section 21 shall be made by the landlord within six months from the date of the expiry of the period of tenancy, there is no other rule in Delhi Rent Control Rules 1959 framed by the Central Government under section 56 of the Delhi Rent Control Act, requiring a notice being served upon the tenant before the issuance of warrant or possession to evict him. [907E G] 1.6. Section 37 (1) of the Act also, cannot be construed as requiring service of a prior notice upon the tenant before issuance of a warrant of possession against him. All that sub section (1) of section 31 of Delhi Rent Control Act does is to incorporate a rule of natural justice, namely, that an order prejudicially affecting a person shall not be made without hearing him and considering his objections if any to the proposed order. But an order can be said to affect a person prejudicially only if any right of his would be affected adversely and in view of the non obstinate clause contained in section 21 the tenant on the expiry of the limited period has no right or protection whatsoever under any law to continue in possession and as such the issuances of a warrant of possession directing him to vacate the premises in his Occupation cannot be regarded as one which prejudicially affect him. [907H; 908C D]

ivil Appeal No. 1387 of 1987. From the Judgment and Order dated 25.9.1986 of the Andhra Pradesh High Court in C.W. Appeal No. 1027 of 1986. A.K. Sen, K. Srinivasamurthy and Kailash Vasdev for the Appellants. M.K. Ramamurthi and M.A. Krishna Murthy, for the Re spondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. The State Bank of India and two of its officers have filed this appeal by special leave against the judgment of a Division Bench of the High Court of Andhra Pradesh in Writ Appeal No. 1027 of 1986 dated 25.9.1986 affirming the judgment dated 28.3. 1986 of the learned Single Judge in Writ Petition No. 5133 of 1984 issuing a direction to the appellants to promote the respondent, Mohd. Mynuddin to the Middle Management Grade Scale III. The respondent who was holding the post of the Manager, S.I.B. Division, State Bank of India, Vijayawada (Andhra Pradesh) which was a post in Middle Management Grade Scale II filed the above writ petition before the High Court in the year 1984 complaining that he had been wrongly denied promotion to the Middle Management Grade Scale III along with some others who belonged to his batch 535 without any reasonable ground, even though he was fully eligible for such promotion. On the above basis he prayed for the issue of a direction to the management to promote him to the higher post with effect from 1979. According to the appellants his case was not considered in the year 1979 on account of inadequacy of material regarding his eligibil ity but when it was brought to the notice of the management that he had necessary eligibility for the post, his case was considered in 1982 for the vacancies of 1980 and 1981 but he was not selected. Again his case for promotion was consid ered on 13.8.1983. Then again he was found not fit for promotion and, therefore, he was not promoted. The main contention of the respondent before the High Court was that since there were no adverse remarks in any of his confidential reports, he should have been promoted to the higher post. The learned Single Judge noticed that in the confidential reports relating to the respondent it had been recorded that his service was 'satisfactory ' in the years 1977 78, 1979 80 and 1980 81 and that there were no adverse remarks against the respondent. The learned Single Judge, therefore. found that on the material placed before the Court there was nothing which disentitled the respondent to the promotion in question and that the action of the management in not promoting him was arbitrary. The learned Single Judge accordingly allowed the writ petition and issued a direction to the appellants to promote the respond ent to the post of Middle Management Grade Scale III with effect from 1.8. 1979 when his batch mates were promoted and that he should be given all consequential benefits. Ag grieved by the judgment of the learned Single Judge the appellants filed an appeal before the Division Bench of the High Court which, as stated earlier. dismissed the appeal affirming the judgment of the learned Single Judge by its order dated 25.9. against which this appeal by special leave is filed. It is admitted that the posts in the Middle Management Grade Scale III in the State Bank of India are posts to which appointments are made by selection. The State Bank of India stated before the High Court that the promotion to Middle Management Grade Scale I11 posts depended not merely upon the eligibility but on merit and such promotion was accorded only after a proper evaluation of the service records, performance appraisal and potentiality of the officer concerned to assume higher responsibilities. The evaluation was done by the Selection Committee. which was expected to go into several aspects including the merits and demerits or all the candidates who were eligible. It was further pleaded that the mere absence of adverse remarks did not entitle an employee to promotion to the next higher 536 grade automatically when promotion was by selection. It was further pleaded that after applying the relevant tests laid down by several circulars issued by the Management embodying the guidelines in respect of the selection of officers for promotion to the Middle Management Grade Scale III it was found from time to time that the respondent was not entitled to be promoted. It was further pleaded before us that in any event the High Court was not right in issuing a direction to the management to promote the respondent to the higher post particularly in the absence of any plea of mala fides. The learned counsel for the appellants, however, has very fairly stated that even now the management is willing to consider the case of the respondent for promotion on a proper ap praisal of the relevant material by the Selection Committee. Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory '. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials. If promo tion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. There is good reason for taking this view. The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds scientific, technical, financial, industrial. commer cial, administrative, educational etc. The methods of evalu ation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, there fore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer. Of course. the process of selection adopted by them should always be 537 honest and fair. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstance other considerations will arise. The nature of the writ that can be issued in cases like the one before us has been considered by this Court in the State of Mysore and Anr. vs Syed Mahmood and Ors. , [ ; In that case rule 43(b) of the Mysore State Civil Services General Recruitment Rules, 1957 re quired promotion to be made by selection on the basis of seniority cum merit, that is seniority subject to the fit ness of the candidate to discharge the duties of the post from among persons eligible for promotion. While making selections for promotions to the posts of senior statistical assistants from the cadre of junior statistical assistants, the State Government did not consider the case of the re spondents therein who were junior statistical assistants, and published a list promoting persons ranking below them in point of seniority. The respondents therein filed writ petition before the High Court. The High Court while refus ing to quash the seniority list directed the appellant State to promote the respondents as from the dates on which their juniors were promoted and treat their promotion as effective from that date. In the appeal filed against the judgment of the High Court this Court observed that while making selec tions for promotion to the posts of senior statistical assistants from the cadre of junior statistical assistants, in 1959, the State Government was under a duty to consider whether having regard to their seniority and fitness they should be promoted. Since the promotions were irregularly made the respondents therein were entitled to ask the State Government to reconsider their case. In the circumstances. this Court observed, that the High Court could only issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniori ty and fitness, the respondents should have been promoted on the relevant dates when officers junior to them were promot ed and that instead of issuing such a writ the High Court had wrongly issued a writ directing the State Government to promote them with retrospective effect. This Court further observed that the High Court ought not to have issued such a writ without giving the State Government an opportunity in the first instance to consider their fitness for promotion in 1959. The ratio of the above decision is that where the State Government or a statutory authority is under an obli gation to promote an employee to a higher post which has to be filled up by selection the State Government or the statu tory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the Court should not ordinarily issue a writ to the Government or the statutory authority to promote an officer straightaway. The principle enunciated in the above decision 538 is equally applicable to the case on hand. It is seen that the Selection Committee constituted by the State Bank of India has considered the case of the respondent for promotion to the vacancies of the years 1980 and 1981 and for the subsequent period from time to time. The Selection Committee did not find the respondent fit for promotion on all such occasions. There is no allegation of bias or mala fides urged against the members of the Selec tion Committee or the management. On the material placed before us we hold that at all relevant times the case of the promotion of respondent has been considered in accordance with law. No other contention is urged before us. On the facts and in the circumstances of the case we do not find any error committed by the appellants. The High Court was not. therefore, right in directing the appellants to promote the respondent with effect from 1979. As mentioned earlier. the learned counsel for the appellants has submitted that the Selection Committee constituted by the appellants would again consider the case of the respondent for promotion on a proper appraisal of the relevant material. In the circumstances, we feel that the direction issued by the High Court should be set aside and we accordingly do so. The appellants are, however, directed to consider the case of the respondent for promotion within four months from today and if on an assessment of the relevant material the State Bank of India finds that the respondent is fit to be promoted, he shall be promoted forthwith. This appeal is accordingly disposed of. There will. however be no order as to costs. P.S.S. Appeal allowed.

The respondent holding a Middle Management Grade Scale II post in the appellant Bank was found not fit for promo tion to Grade Scale III by the Selection Committee in the year 1979 and superseded. His case was again considered in the years 1980, 1981 and 1983 but denied promotion. He filed a writ petition in the High Court in 1984 for the issue of a direction to the management to promote him to the higher post with effect from 1979 with the assertion that he was fully eligible for such promotion. The Single Judge noticed that in respondent 's confiden tial reports for the years 1977 78, 1979 80 and 1980 81 it had been recorded that his service was 'satisfactory ' and that there were no adverse remarks against him. He, there fore, took the view that there was nothing which disentitled the respondent to promotion and that the action of the management in not promoting him was arbitrary, and accord ingly issued a direction to the appellants to promote the respondent with effect from 1.8.1979 when his batch mates were promoted. The Division Bench dismissed the appeal filed by the appellants. In this appeal by special leave it was contended for the appellants that the promotion to Middle Management Grade Scale III posts depended not merely upon the eligibility but on merit and such promotion was accorded only after a proper evaluation by the Selection Committee of the service re cords, performance appraisal and potentiality of the officer concerned to assume higher responsibilities, that the mere 533 absence of adverse remarks did not entitle an employee to promotion to the next higher grade automatically when promo tion was by selection. that after applying the relevant tests laid down by the management for promotion to the Middle Management Grade Scale III it was found from time to time that the respondent was not entitled to be promoted, and that in any event the High Court was not right in issu ing a direction to the management to promote the respondent to the higher post particularly in the absence of any plea of mala fides. Allowing the appeal, HELD: The High Court was not right in directing the appellants to promote the respondent to the Middle Manage ment Grade Scale 111 with effect from 1979. [538C] If promotion has been denied arbitrarily or without any reason ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the management to consider the question of promotion. This is because the Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post which is to be filled up by selection. The duties of such posts may need skills of different kinds scientific. technical, financial, industrial, commercial, administrative, educational etc. The evaluation of the abilities should, therefore, in the public interest ordi narily be left to be done by the individual or a committee consisting of persons who have the knowledge of the require ments of a given post. [536E H] Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the higher post as a matter of right by virtue of seniority alone with effect from the date on which his juniors are promoted. It is not sufficient that in his confidential reports it is recorded that his services are 'satisfactory '. An officer may be capable of discharging the duties of the post held by him satisfactorily but he may not be fit for the higher post. Before any such promotion can be effected it is the duty of the management to consider the case of the officer concerned on the basis of the relevant materials. Of course, the process of selection adopted by them should always he honest and fair. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstances other considerations will arise. [536C E; H; 537A] 534 State of Mysore and Anr. vs Syed Mohmood and ors. , [1968]3 S.C.R. 363, applied. In the instant case at all relevant times the case of the promotion of respondent has been considered in accord ance with law by the selection committee constituted by the appellant Bank and it did not find him fit for promotion on all such occasions. There is no allegation of bias or mala fides urged against the members of the selection committee or the management. The appellants, therefore, cannot be said to have committed any error is not promoting the respondent. ]538B C] The appellants are directed to consider the case of the respondent for promotion within four months from the date of the judgment. and if found fit to promote him forthwith. [538E]

Civil Appeal Nos. 563 & 564 of 1975. From the Judgment and Orders dated 15.11.71 and 9.5.72 of the Allahabad High Court in I.T.R. No. 67 of 1969 and 724 of 1971. B.B. Ahuja, Ms. A Subhashini and K.C. Dua for the Appellants. S.C. Manchanda, Mrs. A.K. Verma and Joel Pares for the Respondents. The Judgment of the Court was delivered by KANIA, J. This is an appeal against the judgment of a Division Bench of the Allahabad High Court in Income tax Reference No. 67 of 1969. The appeal has been filed at the instance of the Commissioner of Income tax, U.P. The relevant facts are as follows: The respondent (assessee) is a Co operative Society registered under the Co oprative Societies Act, 1912. It carries on the business of manufacture and sale of sugar and runs at a Mill situated at Bazpur. The relevant assessment year is the assessment year 1961 62, the corresponding to the accounting year 1st July, 1959 to 30th June, 1960, which was the relevant co operative year. The assessee had established a fund called "Loss Equalization and Capital Redemption Reserve Fund". On the opening day of the year of account, namely, 1st July, 1959, a sum of Rs.1,30,196 stood to the credit of 1037 this fund. During the relevant accounting year, the respondent society added a sum of Rs.5,15.863 to this fund by deduction from the price payable by the respondent to its members for the supply of sugarcane received from its members. These deductions were made under the provisions of bye law 50 of the Bye laws of the respondent society, to which we shall presently come. Bye law 50 under which the said amount was deducted from the price payable by the respondent to its members for the supply of sugarcane at the relevant time ran as follows: "There shall be established a Loss Equalisation and Capital Redemption Reserve Fund in the Society. Every producer shareholder shall deposit every year a sum not less than 32 np and not more than 48 np per quintal of the sugarcane supplied by him to the society as may be determined by the Board. After adjusting the losses, if any, in the working year the deposits shall be allowed to accumulate and utilised for repayment of the initial loan from the Industrial Finance Corporation of India and thereafter for redeeming Government share. The balance of the said deposit after meeting losses shall be used in being converted into share capital in accordance with bye law 44(xix) and each producer share holder shall be issued shares of the society of the corresponding value in lieu thereof. " During the accounting year, the respondent debited a sum of Rs.2,34,354 to the said fund by adjusting this amount against the loss brought forward from the previous year, with the result that at the close of the said year on 30th June, 1960, the account showed a credit balance of Rs.4,11,705. A meeting of the Sub Committee of the respondent society which was held on August 26, 1964 took the view that bye law 50 was not clear as to whether the fund in question was perpetual or terminable and also that it was not clear as to how the liability for the loss of the respondent society can be fastened on the said fund. The Sub Committee recommended an amendment of the bye law 50 and pursuant to this recommendation, at a general meeting of the respondent held on 30th June, 1965, bye law 50 was amended to run as follows: "There shall be established a Loss Equalisation and Capital 1038 Redemption Reserve Fund in the Society. Every producer share holder shall deposit every year a sum not less than 32 paise and not more than 48 paise per quintal of the sugarcane supplied by him to the society as may be terminated by the Board, until the shares to be subscribed by a member are fully paid up. The amounts standing to the credit of this fund presently or to be credited in future shall be used for making the partly paid shares fully paid up. The balance of the said account shall be refunded to the members concerned soon after the present loan from the Industrial Finance Corporation of India is repaid, whereafter the fund shall cease to exist. This amended bye law shall be deemed to have come into force from 1st July, 1958. " It may be mentioned here that the respondent society came into existence in 1958 59 and the original bye laws came into force from 1st July, 1958. The Income tax Officer in assessing the respondent for the relevant assessment year held that the said sum of Rs.5,15,863 represented a revenue receipt and was liable to be included in the taxable income of the assessee. On appeal the Appellate Assistant Commissioner affirmed the view of the Income tax Officer holding that the case has to be decided on the basis of the bye law as it stood during the relevant accounting year. The respondent assessee went in appeal to the Income tax Appellate Tribunal which took the view that the amended Clause 50 must be held to be operative even during the relevant previous year in view of the retrospective amendment thereof and that in view of the said amended bye law 50 the deposits made by the members by way of deductions from the price as contemplated in bye law 50 were in the nature of permanent liabilities and hence they were capital receipts and not liable to be included in the taxable income of the respondent assessee. The tribunal allowed the appeal of the assessee and directed that the said amount of Rs.5,15,863 should be deducted from the taxable income of the assessee as determined by the Income tax Officer. At the instance of the Commissioner a reference was made to the Allahabad High Court and the question framed for determination of the High Court was as follows: "Whether on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in holding that the amount of Rs.5,15,863 was not a revenue receipt liable to tax?" 1039 The Division Bench of the High Court which disposed of the said reference agreed with the view of the Tribunal that the bye law 50 of the bye laws of the society was validly amended with retrospective effect and that retrospective effect must be given to that bye law. The Division Bench took the view that in view of the amended bye law the amount of Rs.5,15,863 was not an amount which the society could deal with as its income or according to its will and hence the source of the receipt was diverted. The High Court answered the question referred to it in affirmative and in favour of the assessee. The present appeal is directed against the said decision of the High Court. Before coming to the contentions urged by the respective counsel, it will be useful to take note of the relevant statutory provisions and the relevant rules. The respondent society was registered under the Co operative Societies Act of 1912. Clause (a) of Section 2 of the said Act of 1912 defines "bye laws" as registered bye laws for the time being in force and includes a registered amendment of the bye laws. Section 6 deals with the conditions for the registration of a co operative society. Section 43 confers upon the State Government power to make rules for registered societies to carry out the purposes of the said Act. The relevant portion of clause (c) of sub Section (2) of Section 43 runs as follows: "In particular and without prejudice to the generality of the foregoing power, such rules may prescribe the matters in respect of which a society may or shall make bye laws, and the procedure to be followed in making, altering and abrogating bye laws, and the conditions to be satisfied prior to such making, alteration or abrogation. " Clause (e) of Section 43(2) runs as follows: "In particular and without prejudice to the generality of the foregoing power, such rules may regulate the manner in which funds may be raised by means of shares or debentures or otherwise;" Pursuant to the powers conferred under Section 43 of the Co operative Societies Registration Act, 1912, the Government of U.P. framed certain rules known as United Provinces Co operative Societies Rules, 1936 for registered societies and these rules were in force at the relevant time. The relevant portion of Rule 8 under heading "III Bye laws" ran as follows: 1040 "A society shall, subject to the provisions of the Act and of the rules, make bye law in respect of the following matters, namely: (1) the name of the society; (2) its registered address; (3) its aims and objects; (4) the purposes for which its funds may be applied;" Rule 10 conferred power on a society to make bye laws in respect of any other matter incidental to the management of its business. Rule 11 which deals with the amendment of rules runs as follows: "An amendment may be made in the bye laws, i.e. a bye law may be altered or rescinded or a new bye law added by a resolution passed by the votes of at least two thirds of the members present at a special meeting called for the purpose. " It was submitted by Mr. Ahuja, learned counsel for the appellant (revenue) that the amendment of bye law 50, although it was purported to be made with retrospective effect could, in fact, have no retrospective effect in law. It was submitted by him that a co operative society governed by the was not a body constituted by the said Act nor a statutory body. The power to make bye laws was conferred upon the society by delegation under rules which themselves were framed by the Government in exercise of power delegated to the Government by the legislature under Section 43 of the aforesaid Act of 1912. It was submitted by him that as there was no delegation of any power on the respondent society to make bye laws with retrospective effect, it had no power to do so and the amendment of bye law 50 made by the society, although purporting to be retrospective, could not be given any such effect. In support of this submission, Mr. Ahuja relied upon the decision of this Court in Income tax Officer, Alleppey vs M.C. Poonnoose & Ors., [1970] 1 S.C.R. p. 678 in which the Court held as follows: "Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same 1041 so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such lenguage is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye law which can operate with retrospective effect (see Subba Rao J., in Dr. Indramani Pyarelal Gupta vs W.R. Nathu & Others. ; majority not having expressed any different opinion on the point; Modi Food Products Ltd., vs Commissioner of Sales Tax U.P., A.I.R. 1956 All. 356; India Sugar Refineries Ltd. vs State of Mysore, A.I.R. 1960 Mys. 326 and General section Shivedev Singh & Another vs The State of Punjab & Others, The aforesaid observations have been cited with approval by this Court in Hukum Chand etc. vs Union of India & Others, [1973] 1 S.C.R. p. 896 where the Central Govenment was held to have acted in excess of its powers in so far as it gave retrospective effect to the Explanation to Rule 49 framed under the , exercising the powers conferred by Section 40 of the Act. We may also refer here to the decision of this Court in Co operative Central Bank Ltd. & Ors. vs Additional Industrial Tribunal, Andhra Pradesh & Ors., [1970] 1 S.C.R.p. 205 where it has been stated by this Court as follows: "We are unable to accept the submission that the bye laws of a co operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt 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 not apply to bye laws of the nature that a co operative society is empowered by the Act to make. The bye laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. " We may mention that the Act under which the bye laws were framed was the Andhra Pradesh Co operative Societies Act, 1964. 1042 In the light of the decisions discussed earlier, it appears to us that the respondent society had no authority in law to amend bye law 50 with retrospective effect as it purported to do. We have already pointed out the power of the society to amend its bye laws arises from the provisions of Rule 11 of the United Provinces Co operative Societies Rules, 1936, which rule has been made under the powers conferred by Section 43 of the United Provinces . There is nothing expressly or impliedly in Rule 11 which confers any power on the society to amend its bye laws with retrospective effect and in the absence of any such power being conferred, either expressly or by implication, it cannot be said that the society had any power to amend its bye laws with retrospective effect. Mr. Manchanda, learned counsel for the respondent society placed strong reliance on the decision of this Court in Dr. Indramani Pyarelal Gupta vs W.R. Nathu and Others, [1963] 1 S.C.R. p. 721 where it was held that the substituted bye law 52AA of the East India Cotton Association made by the Central Government in exercise of the power conferred upon it under Section 12 of the Forward Contracts (Regulation) Act, 1952 and which, very shortly stated, conferred power on the Forward Markets Commission, after notifying with the Chairman of the Board of the East India Cotton Association, to close hedge contracts in the eventualities mentioned in the said rule was not invalid in law or ultra vires the Constitution. On a proper construction, the amended or substituted bye law applied not only to contracts to be entered into futute but also to subsisting contracts. This Court pointed out that, in that case, the power to make bye laws so as to affect the rights in subsisting contracts followed as a necessary implication from the terms of Section 11 of the Forward Contracts (Regulation) Act, 1952. In the case before us, however, there is nothing in Section 43 of the U.P. or Rule 11 of the United Provinces Co operative Societies Rules, 1936 to indicate that there is any power, express or by implied, in a co operative society registered under that Act to make bye laws with retrospective effect in respect of its business. In view of the above discussion, in our view, the amendment of bye law 50 of the respondent society cannot have any retrospective effect and the amounts deducted from the amounts payable to members for the supply of sugarcane, will have to be dealt with as if they were deducted under the provisions of bye law 50 as it stood in the relevant accounting period. If the provisions of the unamended bye law are to be applied, it 1043 is clear that these amounts which were deducted by the respondent from the price payable to its members on account of supply of sugarcane were deducted by the respondent from the price payable to its members on account of supply of sugarcane were deducted in the course of the trading operations of the respondent and these deductions were a part of its trading operations. The receipts by way of these deductions must, therefore, be regarded as revenue receipts and are liable to be included in the taxable income of the respondent. It is urged by Mr. Manchanda, that these receipts have been described in the bye law 50 as deposits, but we fail to see how they can really be regarded as deposits. It was held by this Court in Chowringhee Sales Bureau P. Ltd. vs Commissioner of Income tax, West Bengal, [1973] 87 I.T.R. p. 541 that it is the true nature and quality of the receipt and not the head under which it is entered in the account books as would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as a trading receipt. The same principle can be derived from the decision of this Court in Punjab Distilling Industries Ltd. vs Commissioner of Income tax, Simla, [1959] 35 I.T.R. p. 519. In that case, the assessee carried on business as a distiller of country liquor and sold the produce of its distiller to licensed wholesalers. Under a scheme devised by the Government, the distiller (assessee) was entitled to charge the wholesaler a price for the bottles in which the liquor was supplied, at rates fixed by the Government, which he was bound to repay when the bottles were returned. In addition to the price fixed under the Government scheme, the assessee took from the wholesalers certain further amounts, described as security deposits without the Government 's sanction and entirely as a condition imposed by the assessee itself for the sale of its liquor. The moneys described as security deposits were also returned as and when the bottles were returned but in this case the entire sum taken in one transaction was refunded when 90 per cent of the bottles covered by it were returned. The price of the bottles received by the assessee was entered by it in its general trading account while the additional sum was entered in the general ledger under the heading "empty bottles return security deposit account. " The question was whether the assessee could be assessed to tax on the balance of the amounts of these additional sums left after the refunds made out of the same. It was held that the additional amount described as security deposit by the assessee was really an extra price for the bottles and was a part of the consideration for the sale of liquor; it did not make any difference that the additional amount was entered in a separate ledger termed "empty bottles return deposit account". It was held that these additional 1044 amounts, which remained after the refunds were made, were trading receipts of the assessee and liable to tax. Applying these principles to the present case, in our opinion, it makes no difference that in the bye law, these amounts have been referred to as deposits and the account in which these receipts were entered has been called "Loss Equalisation and Capital Redemption Reserve Fund". The essence of a deposit is that there must be a liability to return it to the party by whom or on whose behalf is made on the fulfillment of certain conditions. Under the amended bye law, the amounts deducted from the price and credited to the said fund were first liable to be used in adjusting the losses of the respondent society in the working year; thereafter in the repayment of initial loan from the Industrial Finance Corporation of India and then for redeeming the Government share and only in the event of any balance being left, it was liable to be converted to share capital. The primary purpose for which the deposits were liable to be used were not to issue shares to the members from whose amounts the deductions were made but for the discharging liabilities of the respondent society. In these circumstances, the receipts constituted by these deductions were really trading receipts of the assessee society and are liable to be included in its taxable income. In our view, the learned judges of the High Court were, with respect, in error in answering the question referred in the negative. In our opinion, the question referred must be answered in affirmative and in favour of the revenue. In the result, the appeal succeeds and is allowed with costs. The respondent shall also pay to the appellant the costs incurred in Income tax Reference No. 67 of 1979. CIVIL APPEAL No.564 OF 1975 This is an appeal against the judgment of a Division Bench of the Allahabad High Court in Income tax Reference No. 724 of 1971. The question referred to us for determination is as follows: "Whether on the facts and in the circumstances of the case, the sum of Rs.6,11,846 credited during the year of account to the loss equalisation and capital redemption reserve fund by deposits received from producer members of the society under Clause 50 of its bye laws is of revenue nature assessable to tax"? 1045 In view of our decision, the appeal must be allowed and the question referred answered in the affirmative and in favour of the revenue. The appeal is allowed. No order as to costs. S.L. Appeal allowed.

Civil Appeal No. 563 of 1975 filed in the Court was directed against the Judgment of the High Court in an Income tax Reference. The respondent (assessee) was a registered co operative Society, carrying on business of manufacture and sale of sugar. The respondent had established a fund called "Loss Equalisation and Capital Redemption Reserve Fund" to which it added, during the relevant accounting year, a sum of Rs.5,15,863 by deduction from the price payable by the respondent to its members for the supply of sugarcane received from the members. The deductions were made under bye law 50 of the Byelaws of the society, which was amended later. The Income tax Officer in assessing the respondent for the relevant assessment year held that the sum above mentioned represented a revenue receipt and was liable to be included in the taxable income of the assessee. On appeal, the Assistant Commissioner affirmed the view of the Income tax Officer, holding that the case had to be decided on the basis of the bye law as it stood during the relevant accounting year. The respondent assessee appealed to the Income tax Appellate Tribunal, which held that the amended bye law was operative even during the relevant previous year in view of the retrospective amendment thereof and that in view of the said amended bye law 50 the deposits made by the members by way of deductions from the price as contemplated in the bye law 50 were in the nature of permanent liabilities and hence they were capital receipts and not liable to be included in the taxable income of the assessee. The Tribunal directed that the said amount of Rs. 5,15,863 be deducted 1035 from the taxable income of the assessee. At the instance of the appellant, a reference was made to the High Court for the determination of the question whether the Income tax Appellate Tribunal was right in holding that the amount of Rs.5,15,863 was not a revenue receipt liable to tax. The High Court answered the question in the affirmative and in favour of the assessee. The Commissioner of Income tax moved this Court by this appeal against the decision of the High Court. The appellant contended that the amendment of the bye law 50, which was purported to be made with retrospective effect, could have no retrospective effect in law. There was no delegation of power to the respondent society to make bye laws with retrospective effect. Allowing the appeal, the Court, ^ HELD:The respondent society had no authority in law to amend its bye law 50 with retrospective effect. The amendment of bye law 50 could not have any retrospective effect and the amounts deducted from the amounts payable to members for the supply of sugarcane, would have to be dealt with as if they were deducted under the provisions of bye law 50 as it stood in the relevant accounting period. If the provisions of the unamended bye law were applied, it was clear that the amounts deducted by the respondent from the price payable to its members on account of supply of sugarcane were deducted in the course of the trading operations of the respondent and these deductions were a part of its trading operations. The receipts by way of these deductions must be regarded as revenue receipts and were liable to be included in the taxable income of the respondent. Those receipts could not be regarded as deposits. The receipts constituted by the deductions were really trading receipts of the assessee society and were liable to be included in its taxable income. The High Court was in error and the question referred must be answered in favour of the revenue. [1042A, G H;1044D E] Civil Appeal No. 564 of 1975 was filed against the judgment of the High Court in an income tax reference in which the question referred for determination was whether a sum credited during the year of account to the loss equalisation and capital redemption reserve fund by deposits received from producer members of the society under clause 50 of its bye laws was in the nature of a revenue receipt assessable to tax. Allowing the appeal, the Court, 1036 HELD:In view of its decision in Civil Appeal No. 563 of 1975, the Court answered the question referred in the affirmative and in favour of the revenue. [1045A] Income tax Officer, Alleppey vs M.C. Poonnoose and Ors., ; ; Hukam Chand etc. vs Union of India & others; , ; Co operative Central Bank Ltd. & Ors. vs Additional Industrial Tribunal, Andhra Pradesh & Ors., ; Dr. Indramani Pyarelal Gupta vs W.R. Nathu and others; , ; Chowringhee Sales Bureau P. Ltd. vs Commissioner of Income tax West Bengal, and Punjab Distilling Industries Ltd. vs Commissioner of Income tax Simla, , referred to.

: Criminal Appeal No. 76 of 1974. Appeal by Special Leave from the Judgment dated 9 11 1973 of the Delhi High Court in, Criminal Appeal No. 174 of 1972. R. L. Kohli (Amicus Curiae) and R. C. Kohli for the Appellant. Hardayal Hardy, Miss A. Subhashini and R. N. Poddar for the Respondent. The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by special leave is filed against the judgment of the High Court of Delhi in Criminal Appeal No. 174 1972 convicting the appellant, Dara Singh, of an offence punishable under section 23F of the Foreign Exchange Regulation Act, 1947 (Act No. 7 of 1947) (hereinafter referred to as 'the Act ') and sentencing him to imprisonment for a term of one year with a direction that the said sentence should be served by him concurrently with the sentence of imprisonment for life imposed on him in another case on a charge of murder. 989 The facts leading to this appeal can be summarised thus: On March 28, 1963 foreign currencies amounting to $ 185 and U.S. $ 13060 besides Indian currency amounting to Rs. 1,300 were seized from the appellant by the Railway Police at the Railway Station at Sangrur. Thereupon proceedings were initiated against the appellant for contravention of sections 4 and 9 of the Act under section 23 (1) (a) read with section 23D of the Act before the Director of Enforcement of Foreign Exchange Regulation appointed by the Central Government for the purpose of enforcing the provisions of the Act. By an ex parte order dated May 12, 1967, the Director of Enforcement held the appellant guilty of contravention of provisions of section 9 of the Act read with the Central Government Notification No. F. 1(67 EC/57, dated 25 9 1958 as amended upto 6 3 1961) and section 4(1) of the Act and imposed on him a penalty of Rs. 6,000 which the appellant was directed to pay to the Directorate of Enforcement within forty five days of the issue of the order. As the penalty was not paid within forty five days from the date of the issue of the order of the Director of Enforcement, a complaint was lodged on November 13, 1969 by the Deputy Director of Enforcement before the Judicial Magistrate, First Class, New Delhi under section 23F of the Act. In the complaint it was specifically stated that a copy of the order of the Director of Enforcement imposing the penalty on the appellant had been served on him on May 4, 1968 and that as the appellant had not deposited the penalty with the 1 Directorate of Enforcement within forty five days from the date of the order, the appellant was liable to be punished under section 23F of the Act. The appellant denied that he had been served with the copy of the order of the Director of Enforcement imposing penalty on him and further stated that he did not Know that he had to pay the penalty in question. The learned Magistrate acquitted the appellant by his order dated July 29, 1972 holding that it had not been established that the order passed by the Director of Enforcement had been served on the appellant on May 4, 1968 as alleged in the complaint and that, therefore, there were no grounds to hold the appellant guilty of contravention of section 23F of the Act which read thus: "23F. If any person fails to pay the penalty imposed by the Director of Enforcement or the Appellate Board or the High Court, or fails to comply with any of their directions or orders, he shall, on conviction before a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. " The Magistrate while acquitting the appellant rejected the plea of the complainant that the appellant was liable to be punished under 990 section 23F since he had in any event come to know of the order of the Director of Enforcement on the date on which he appeared in the Court i.e., on August 7, 1970 and the charge had been framed by the Magistrate on March 4, 1972 after the expiry of a period of forty five days from the date on which the appellant had appeared in the Court by observing that "he could not be convicted in the case on that count because these allegations are not contained even in the charge much less in the complaint". Aggrieved by the decision of acquittal of the Magistrate, the Director of Enforcement filed an appeal before the High Court of Delhi with the special leave of that court granted under section 417(3) of the Code of Criminal Procedure. As the appellant who was undergoing imprisonment for life imposed on him in another case at the Central Jail Ferozepur did not make any arrangement for his defence before the High Court, an advocate was appointed as amicus curiae to assist the court in the appeal. After hearing learned counsel who appeared in the case, the High Court by its judgment dated November 9, 1973 reversed the order of acquittal passed by the Magistrate, found the appellant guilty of The offence punishable under section 23F of the Act and sentenced him to imprisonment for a term of one year. While doing so, the High Court agreed with the finding of the Magistrate that the order of the Director of Enforcement imposing penalty on the appellant had not been served on the appellant on May 4, 1968 as alleged in the complaint but it was of the view that since the appellant had come to know about the order on August 7, 1970 when he appeared before the Magistrate and he had not paid the penalty within a reasonable time thereafter, he was liable to be punished under section 23F of the Act. The relevant part of the judgment of the High Court reads thus: "The order of acquittal made by the learned trial Magistrate proceeds, in our opinion, on an altogether erroneous view of the provisions of section 23F of the Act. For proving the guilt of Dara Singh in the light of the charge framed against him, it had only to be established that he had failed to pay the penalty imposed by the Director of Enforcement. As was ordered by the Director of Enforcement the penalty had to be paid within 45 days from the date of issue of the adjudication order. Obviously, however, no payment could be made unless the person on whom the penalty was imposed had come to know about the order. At the latest Dara Singh came to know about the adjudication order on ' August 7, 1970, if not earlier. He should have, therefore, paid the penalty within a reasonable period from that date and in any case within 45 days from 991 the said date. The penalty not having been paid or deposited by Dara Singh, he was clearly guilty of contravention of the adjudication order made by the Director of Enforcement and should have been, convicted under section 23F of the Act". The question which arises for consideration in this appeal is whether the High Court was right in the circumstances of the case in finding the appellant guilty of the offence in question. It is necessary at this stage to refer briefly to some of the provisions of the Act and the Adjudication Proceedings and Appeal Rules, 1957 (hereinafter referred to as 'the Rules ') framed under section 27 of the Act. Under Clause (a) of sub section (1) of section "3 of the Act, the Director of Enforcement is empowered to levy penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by him in the manner provided in the Act in any person is found to contravene the provisions of section 4, section 9 or any of the other provisions referred to in section 23(1). Section 23D of the Act requires the Director of Enforcement to hold an inquiry in the prescribed manner against any person who is liable to be proceeded against under clause (a) of section 23 (1) after giving him a reasonable opportunity of being heard and if on such inquiry, the Director of Enforcement is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of section 23 of the Act. An appeal lies to the Appellate Board under section 23E of the Act against the order of the Director of Enforcement imposing penalty. Rules 3, 4 and 5 of the Rules set out the procedure to be followed by the Director of Enforcement in holding the enquiry under section 23D of the Act. Rule 3 of the Rules among others provides for the issue of a notice to the person against whom proceedings are initiated for contravention of the provisions referred to in section 23(1) of the Act and for giving an opportunity to him to defend himself in the proceedings before the Director of Enforcement. Sub rule (7) of Rule 3 of the Rules provides that if, upon consideration of the evidence produced before the Director, the Director is satisfied that the person has committed the contravention, he may, by order in writing impose such penalty as he thinks fit in accordance with the provisions of clause (a) of sub section (1) of section 23. There is no rule requiring the person against whom an order is made to appear before the Director of Enforcement on any specified date on which the order would be pronounced in his presence. Rule 4 of the Rules requires the Director of Enforcement to specify in his order the provisions of the Act or of the Rules, 992 directions or orders made thereunder in respect of which contravention has taken place and to give brief reasons for his decision. Rule 5 of the Rules requires that a copy of the order made under sub rule (7) of Rule 3 shall be supplied free of charge to the person against whom the order is made and that every copy of such order shall state that the copy is supplied free of charge for the use of the person to whom it is issued and that an appeal lies against that order to the Appellate Board under section 23E within thirty days of the date of the order. Rule of the Rules states that every appeal presented to the Appellate Board under section 23E of the Act shall be in the form of a memorandum signed by the appellant and the memorandum shall be accompanied by a copy of the order appealed against. Having regard to the aforesaid provisions of the Act and the Rules, it has to be held that the service of a copy of the order made under sub rule (7) of Rule 3 of the Rules on the person against whom the said order is made is not an empty formality. In the absence of a provision of law requiring the Director of Enforcement to pronounce his order in the presence of the person against whom it is made, the only date on which it can be deemed to have been effectively made is the date on which he gets the knowledge of the order either by the supply of a copy of the order or by any other means because first, the statute provides a remedy to the person against whom the order is made by way of an appeal to be preferred within the prescribed period from the date of the order to the Appellate Board under section 23E of the Act and secondly noncompliance with the order would expose him to the punishment that may be imposed on him under section 23F of the Act. It would be wholly unjust to compute the period of limitation to file an appeal from a date earlier than the date on which the party who is entitled to prefer an appeal has the knowledge of the order. In cases where an order which is appealable is not pronounced in the presence of the person against whom it is made, it should be assumed that unless there is any specific provision of law to the contrary the date of his knowledge of the order is the date of the order for the purpose of computing the period of limitation irrespective of the date on which it is actually passed. (Vide Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer & Anr. It is equally so even in the case of an order non compliance of which would lead to prosecution and consequent imposition of penalty. When the law lays down that non compliance with an order would expose the person against whom it is made to 993 criminal liability, it is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non compliance with it. The information or knowledge which he may gather about such order in the course of the criminal proceedings instituted for non compliance with it cannot be a substitute for the knowledge of the order as mentioned above, which should ordinarily precede the institution of such proceedings. Under section 23F of the Act if any person fails to pay the penalty imposed by the Director of Enforcement, he on conviction is liable to be punished with imprisonment which may extend to two years or with fine or with both. No person can be convicted under section 23F for failure to pay the penalty imposed on him by the (Director of Enforcement when he is not at all informed earlier about the imposition of the penalty. Hence in the absence of proof of his knowledge of the order either by the supply of the copy of the order under Rule 5 of the Rules or in any other manner, it cannot be said that such person has failed to pay the penalty imposed on him under the Act and has become liable to be proceeded against under section 23F. As mentioned earlier, the specific case set out in the complaint was that a copy of the order of the Director of Enforcement had been served on the appellant on May 4, 1968 and that both the Magistrate and the High Court refused to accept it. The finding of the High e Court is that the appellant must have come to know of the order on! August 7, 1970 when he appeared before the Magistrate. It is; therefore, obvious that on the date on which The complaint was filed before the Magistrate i.e. On November 13, 1969 or on the date on which process was issued by the Magistrate on taking cognisance of the case to The appellant to appear before him pursuant to which he appeared before him on August 7, 1970, the appellant had not even the knowledge of the passing of the order imposing penalty on him let alone the specific provision of the Act or the Rules which according to the order he had violated and the reasons in support of the order. The appellant had not, therefore, committed any offence punishable under section 23F of the Act on those dates. The Magistrate could not, therefore, take cognisance of any offence punishable under section 23F of the Act on the date on which he issued process to the appellant to appear before him. Even the charge framed against the appellant did not state that the order imposing penalty on him had been communicated to him on August 7, 1970 and the he was being tried for an offence punishable under section 23F for non compliance with the order so communicated on August 7, 1970. 994 The charge only contained the gist of what was stated in the complaint on November 13, 1969. The High Court was, therefore, in error in the circumstances of the case in setting aside the order of acquittal passed by the Magistrate and in finding the appellant guilty of the offence complained of. In the result, the appeal is allowed and the conviction of the appellant and the sentence imposed on him by the High Court are set aside. The order of acquittal passed by the Magistrate is restored. At the time of grating special leave to appeal in this case, as it was stated that the appellant had been acquitted of the charge of murder, the sentence of imprisonment for life had been cancelled and that he had been undergoing imprisonment awarded by the High Court under section 23F of the Act, this Court granted bail to the appellant to the satisfaction of the trial court and directed that he should be released on bail unless he was required to be in prison in connection with or on account of any other case. It is not known whether the appellant was in fact released on bail pursuant to the above order. If he is on bail, his bail bond stands cancelled. P.B.R. Appeal allowed.

An exparte order holding the appellant guilty of certain offences under the Foreign Exchange Regulation Act and imposing penalty for such contravention was passed by the Director of Enforcement. On completion of 45 days of the issue of the order within which period the penalty was required to be paid, a complaint was lodged with the Judicial Magistrate, 1st class alleging that even though a copy of the impugned order had been served on the appellant, he failed to deposit the penalty and, that, therefore, he was liable to be punished under section 23F of the Act. Accepting the appellant 's plea that no copy of the impugned order having been served on him there was no ground to hold him guilty of contravention of section 23F the Magistrate acquitted him. The Magistrate, at the same time, rejected the complainant 's contention that even assuming that the impugned order had not been received by the appellant he had come to know of it on the date he appeared before the Magistrate and when the charge had been framed against him and his failure to pay the penalty despite this knowledge was enough to attract the provisions of section 23F. He held that these allegations were stated neither in the complaint nor in the charge and, therefore, the appellant could not be convicted. Although the High Court, on appeal, upheld the finding of the Magistrate that the impugned order had not been served on the appellant it was of the view that since the appellant had come to know about the order then he appeared before the Magistrate but still had not paid the penalty within a reasonable time thereafter, he was liable to be punished under section 23F of the Act. Allowing the appeal. ^ HELD: The appellant had not committed any offence punishable under section 23F of the Act. [993G] When the law lays down that non compliance with an order would expose The person against whom it is made to criminal liability, It is reasonable to hold that in the absence of proof of knowledge of the order no penal action H can be taken against him for non compliance with that order. The information or knowledge which he may gather about such order in the course of criminal 988 proceedings instituted for non compliance with it cannot be a substitute for the knowledge of the order, which should ordinarily precede the institution of such proceedings. The High Court was, therefore, in error in the circumstances of the case in setting aside the order of acquittal passed by the Magistrate and in finding the appellant guilty of the offence complained of. [992H] The rules framed under the Act set out the procedure to be followed by the Director in holding an enquiry under section 23D of the Act. Although, there is no rule requiring a person against whom an order is made to appear before the Director on the date of pronouncement of his order, rule 5 of the Rules requires that a copy of the order passed under rule 3(7) should be supplied free of charge to the person against whom the order is made. In the absence of a provision requiring the service of a notice on such a person informing him that the order would be pronounced on a specified future date, the only date on which the order can be deemed to have been effectively made is the date on which he gets knowledge of the order either by supply of a copy of the order or by any other means. The period of limitation to appeal cannot be computed from a date earlier than the date on which the aggrieved party has knowledge of the order. In the absence of proof of knowledge of the order either by supply of its copy or in any other manner the person failing to pay the penalty cannot be proceeded against under section 23F. [991H, 992F] In the instant case the Magistrate and the High Court refused to accept the plea of the Director that a copy of the impugned order had been served on the appellant. Neither on the date of the complaint nor on the date on which process was issued by the Magistrate had the appellant knowledge of the order imposing the penalty; nor did the charge state that the impugned order had been communicated to him and that he was being tried for non compliance with that order.

ppeal No. 79 of 1962. Appeal by special leave from the judgment and decree dated February 20, 1958 of the Madras High Court in Second Appeal Lo. 91 of 1955. M. section K. Sastri and M. section Narasimhan, for the appellants. K. N. Rajagopal Sastri and B. K. B. Naidu, for respondents Nos. 1 to 4. March 6, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C.J. This appeal by Special leave raises a short question about the correctness, propriety and legality of the decree passed by the Madras High Court in second appeal No. 91. of 1955. The respondents had sued the appellants in the Court of the District Munsif of Thiruvaiyaru for a mandatory injunction directing the removal of certain masonry structure standing on the suit site which was marked as A B C D in the plan attached to the plaint and for a permanent injunction restraining the appellants from building upon or otherwise encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village in which the suit property was situated. According to the respondents, the plot on which encroachment had been caused by the construction of the masonry structure by the appellants was a street and the reliefs they claimed were on the basis that the said property formed part of a public street and the appellants had no right to encroach upon it. This suit had been instituted by the respondents in a representative capacity on behalf of themselves and other residents in the locality. The appellants disputed the main allegation of the res pondents that the masonry structure to which the respondents had objected, stood on any part of the public street. According to them, the plot on which the masonry structure stood along with the adjoining property belonged to them as 51 absolute owners and as such, they were entitled to use it in any manner they pleased. On these pleadings, appropriate issues were framed by the learned trial Judge and on considering the evidence, findings were recorded by him in favour of the respondents. In the result, the respondents ' suit was decreed and injunction was issued against the appellants. The appellants then took the dispute before the Subordi nate Judge at Kumbakonam. On the substantive issues which arose between the parties, the learned Subordinate Judge made findings against the respondents and in consequence, the decree passed by the Trial Court was set aside. The learned Subordinate Judge, however, made it clear that it might be open to the respondents to agitate "against any case of customary rights in the nature of an easement in their favour, if they can legally do so, without any bar, and if they are so advised. " That question was left by him as undecided as it did not arise before him in the present suit. This decree was challenged by the respondents by preferring a second appeal before the Madras High Court. BasheerAhmed Sayeed J. who heard this appeal, passed a decree which is challenged before us by the appellants in the present appeal. All that the learned Judge has done in his judgment is to state that "after a careful consideration of all the issues that arise for decision in this Second Appeal, 1 am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms," and then the learned Judge has proceeded to set out the terms of his decree in clauses (1), (2) & (3), the 3rd clause being sub divided into clauses (a), (b) & (c). As to the costs, the learned Judge directed that parties should bear their own costs throughout. The appellants contend that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. Before dealing with this contention, however, it is neces sary to refer to a preliminary objection raised by Mr. Raja gopal Sastri on behalf of the respondents. He contends that it was open to the appellants to apply for leave to file a Letters Patent appeal against the judgment of the learned Single Judge and since the appellants have not adopted that course, it is not open to them to come to this Court by special leave. He has, therefore, argued that either the leave granted by this Court to the appellants should be revoked, or the appeal should be dismissed on the ground that this was not a matter in which this Court will interfere having regard to the fact that a remedy available to the appellant under the Letters Patent of the Madras High Court has not been availed of by them. In resisting this preliminary objection, Mr. M. section K. Sastri for the appellants has relied on the decision of this Court in 52 Raruha Singh vs Achal Singh and Others(1). In that case, this Court allowed an appeal preferred against a second appellate decision of the Madhya Pradesh High Court on the ground that the said impugned decision had interfered with a finding of fact contrary to the provisions of section 100 of the Civil Procedure Code. It appears that a preliminary objection had been raised in that case by the respondents similar to the one which is raised in the present appeal, and in rejecting that preliminary objection, this Court observed that "since leave has been ranted, we do not think we can or should virtually revoke the leave by accepting the preliminary objection. " It is because of this observation that this appeal has been referred to a larger Bench. It is true that the statement on which Mr. M. section K. Sastri relies does seem to support his contention; but we are satisfied that the said statement should no, be interpreted as laying down a general proposition that if special leave is ranted in a given case, it can never be revoked. On several occasions, this Court has revoked special leave when facts were brought to its notice to justify the adoption of that course, and so we do not think Mr. M. section K. Sastri is justified in contending that leave granted to the appellants under article 136. as in the present case, can never be revoked. The true position is that in a given case, if the respondent brings to the notice of this Court facts which would justify the Court in revoking the leave already granted, this Court would, in the interests of justice, not hesitate to adopt that course. Therefore, the question which falls to be considered is whether the present appeal should be dismissed solely on the ground that the appellants did not apply for leave under the relevant clause of the Letters Patent of the Madras High Court. There is no doubt that if a party wants to avail himself of the remedy provided by article 136 in cases where the decree of the High Court under appeal has been passed under section 100 C. P. C., it is necessary that the party must apply for leave under the Letters Patent, if the relevant clause of the Letters Patent provides for an appeal to a Division Bench against the ,decision of a single Judge. Normally, an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent Appeal has been availed of. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that article 133(3) expressly provides that normally an appeal will not lie to this Court from the judgment, decree, or final order of one Judge of the High Court, It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such cases, it is necessary that the remedy 53 by way of a Letters Patent Appeal must be resorted to before a party comes to this Court. Even so, we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case. In dealing with the respondents ' contention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had not applied for leave under the relevant clause of the Letters Patent it is necessary to bear in mind one relevant fact. If at the stage when special leave is granted, the respondent caveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal, and it appers that the said ground is argued and rejected on the merits and consequently special leave is granted, then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. If, however, the caveator does not appear, or having appeared, does not raise this point, or even if he raises the point the Court does not decide it before granting special leave, the same point can be raised at the time of final hearing. In such a case, there would be no technical bar of res judicata, and the de cision on the point will depend upon a proper consideration of all the relevant facts. Reverting then to the main point raised by the appellants in this appeal, we do not think we would be justified in refus ing to deal with the merits of the appeal solely on the round that the appellants did not move the learned single Judge for leave to prefer an appeal before a Division Bench of the Madras High Court. The infirmity in the judgment under appeal is so glaring that the ends of justice require that we should set aside the decree and send the matter back to the Madras High Court for disposal in accordance with law. The limitations placed by section 100, C.P.C., on the jurisdiction and powers of the High Courts in dealing with second appeals are well known and the procedure which has to be followed by the High Courts in dealing with such appeals is also well established. In the present case, the learned Judge has passed an order which reads more like an award made by an arbitrator who, 54 by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with second appeals, it must obviously be corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. That is why we think we cannot uphold the preliminary objection raised by Mr. Rajagopal Sastri, even though we disapprove of the conduct of the appellants in coming to this Court without attempting to obtain the leave of the learned single Judge to file a Letters Patent Appeal before a Division Bench of the Madras High Court. Therefore, without expressing any opinion on the merits of the decree passed in second appeal, we set it aside on the ground that the judgment delivered by the learned judge does not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure. The result is, the appeal is allowed, the decree passed by the High Court is set aside and second appeal No. 91 of 1955 is sent back to the Madras High Court with a direction that it should be dealt with in accordance with law. The costs of this appeal would be costs in the second appeal. Appeal allowed.

The respondents brought a suit for a mandatory injunction directing the removal of certain masonry structure on suit site and for a permanent injunction restraining the appellants from encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village. They claimed that the suit property formed part of a public street and the appellants had no right to encroach upon it. The appellants claimed the suit property as absolute owners and as such, they were entitled to use it in any manner they pleased. The trial. Court decreed the suit. On appeal, the learned Subordinate Judge set aside the decree. On challenge of this decree by the respondents in second appeal before the High Court, the learned single Judge passed a decree in their favour. All that the learned Judge stated in his judgment was that "after a careful consideration of all the issues that arise for decision in this second appeal, I am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms" and then he proceeded to set out the terms of his decree. On appeal by Special Leave the appellants contended that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. The respondents, raised a preliminary objection that since the appellants did not avail themselves of the remedy available to them under the Letters Patent of the High Court either the special Leave granted by this Court should be revoked, or the appeal should be dismissed. Held: It would not be possible to lay down an unqualified rule that special leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case special leave has been granted, it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case. 50 Raruha Singh vs Achal, A.I.R. 1961, S.C. 1097, referred to. In the present case, the learned Judge passed an order which reads more like an award made by an arbitrator who, by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with second appeals, it must obviously be corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. Therefore, the decree passed in second appeal, must be set aside on the ground that the judgment delivered by the learned Judge did not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure.

ce Act 1948 covers all factories or establishment with 20 or more employees and the benefit is intended to be given to institutions with more than that number. Because the legislation is beneficial it should also apply to factories or establishments with less than 20 employees is not the contention on behalf of the appellant. If that be not so, in finding out whether a partner would be an employee a liberal construction is not warranted. [127H, 128A] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3500 of 1984. Appeal by Special leave from the Judgment and order dated the 3rd August, 1981 of the Kerala High Court in M.F.A. No. 442 of 1979. M.K. Banerjee, Addl. General, Girish Chandra and R.N. Poddar for the Appellant. The Judgment of the Court was delivered by RANGANATH MISRA, J. The short point which arises for determination in this appeal by special leave is as to whether a partner of a firm is an "employee ' within the meaning of Section 2(9) of the (hereinafter called 'the Act '). Respondent Ramanuja Match Industries which is a firm is engaged in manufacturing of matches within the Trichur area of Kerala State and the question as to whether it is covered under the provisions of the Act fell for consideration. The Inspector found that there were 18 regular employees and three of the partners who worked regularly for wages were to be put together. Thus the number of 20 employees as required by the Act was satisfied and the respondent did incur liability for contribution The respondent challenged its liability before the Employees Insurance Court at Calicut by contending that partners were not employees and when the three partners were excluded, the total number of employees did not exceed the statutory minimum. The 122 Insurance Court found in favour of the respondent and an appeal under the Act was carried to the High Court by the appellant and a Division Bench of that Court following its earlier decision in Regional Director of E.S.I. Corporation vs M/s. Oosmanja Tile Works, Alwaye,(l) held that partners were not employees. It is against this decision that the present appeal has been carried. There is no dispute that under the Act, liability to pay contribution arises only when 20 or more persons are employed for wages. It is also not disputed that in the case of the respondent unless the three partners are included, the basic number of 20 is not reached and no liability under the Act accrues. The term 'employee ' has been defined in section 2(9) of the Act to mean "any person employed for wages in or in connection with the work of a factory or establishment to which the Act applies and "one of the alternative in clauses (i), (ii) or (iii). 'Wages ' has been defined in sub section (22) of that section to mean "all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled. " It is thus clear that in order that some one may be an employee within the meaning of the Act, he has to be employed for wages. The concept of wages would bring in the contract of employment. The Shorter oxford English Dictionary gives the meaning of 'employ ' to be "to use the services of for some special business; to have or maintain in one 's service". In common parlance the concept of employee would take with it the correlation of the employer. The term 'employer ' had not been defined in the Act but in the absence of an employer who would provide the employment, there would indeed be no employee. In fact, that concept is clear in the scheme of the Industrial Disputes Act of 1947 and the definition of the term 'employer ' in section 2(g) of that Act makes the position clear. It is appropriate that at this stage we refer to the position of a partner qua the firm. Section 4 of the Partnership Act, 1932 defines 'partnership ' and one of the essential requisites of a partner ship is that there must be mutual agency between the partners. (1) I.L.R. 1975 (2) Kerala 207. 123 Full Bench of the Patna High Court in Seth Hira Lal & Anr. vs A Sheikh Jamaluddin and Anr.,(1) rightly emphasised upon the position that an important element in the definition of partnership is that it must be carried on by all or any one of the partners acting for all. Section 18 of the Partnership Act statutorily declares every partner to be an agent of the firm for the purposes of the business of the firm and Section 19 states that an act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. A partnership firm is not a legal entity. This Court in Champaran Cane Concern vs State of Bihar and Anr. ,(2) pointed out that in a partnership each partner acts an agent of the other. The position of a partner qua the firm is thus not that of a master and a servant or employee which concept involves an element of subordination but that of equality. The partnership business belongs to the partners and each one of them is an owner thereof. In common parlance the status of a partner qua the firm is thus different from employees working under the firm, it may be that a partner is being paid some remuneration for any special attention which he devotes but that would not involve any change of status and bring him within the definition of employee. Learned counsel for the appellant strongly relied on a case of the Rajasthan High Court in Regional Director of E.S.I. Corporation, Jaipur vs P.C. Kasliwal and Anr. ,(3) The learned Single Judge has taken the view that a partner can be employed by the firm and if he draws emoluments within the prescribed limits for the work of the factory, he would be an employee under section 2(9) of the Act. In the same decision it has also been held that a sleeping partner drawing a monthly allowance merely because he is a partner would not come within the ambit of the Act as an employee and contribution in respect of such partner would not be payable. As against this view there is a Division Bench decision of the Kerala High Court in Regional Director of E.S.I. Corporation vs M/s. Oosmanja Tile Works, alwaye (supra), where it has been held that a managing partner of a firm is not an employee if merely he receives salary or other remuneration. Strong reliance has been placed by (1) [1946] 224 Indian Cases 106. (1) ; (2) [1981] Labour & Industrial Cases 671. 124 the Kerala High Court on the position that such managing partner is not an employee who is working under a contract of service. In fact, in the present case support has been drawn from this decision of the High Court as a precedent and following the ratio of that decision, the High Court has decided against the appellant. The Rajasthan High Court has obviously not been alive to the definition of the term 'employee ' in section 2(9) of the Act though the definition has been extracted in extenso. The status of a partner qua the firm with reference to the provisions of the Partnership Act the concept of "employer" and "employee" and the importance of the definition of "wages" have also been lost sight of in adjudicating whether a partner is an employee. We are, therefore, not inclined to accept the view of the Rajasthan High Court. On the other hand, the view taken by the Kerala High Court seems to be the correct one and fits in with the position of a partner qua his firm and the jurisprudential approach to the matter. The respondent did not choose to appear in this Court to support the order of the High Court. We have, however, come across several judicial opinions of American and English Courts taking the view that a person cannot be the employee of the firm of which he is a partner. In Words and Phrases Permanent Edition Vols. 14 and 14A (1974 reprint), several such decisions of the American State Courts have been referred to in support of the view that a partner cannot be an employee of his firm and we propose to refer to some of the more apt ones. In Dube vs Robinson(1) it has been held that in a partnership each partner is an agent of the others as well as a principal; but he is not in hire as an employee and that he may perform labour even with the employees of the partnership and of the same kind as they perform does not make him an employee of the other partners or of the partnership, and hence such partner cannot be counted to constitute one of the workmen ' necessary for application of the Employers ' Liability and Workman 's Compensation Act to the partnership business. In United States Fidelity & Guarantee Company vs Neal(2) it has been held that a partner not an employee of the partnership within the Compensation Act though at the time of the injury he was performing special services under contract with his partner, (1) (2) 125 separate and independent from the articles of partnership, and is A being paid compensation therefore in addition to his shale in profits. Again, in Le Clear vs Smith,(1) it was held that a partner, though he received a salary in addition to his share of the profits, was an employer and an not employee entitled to compensation under the Workman 's Compensation Law, where the insurer did not insure the employers. In Berger Fidelity Union Casualty Co., vs Texas,(2) it has been held that a member of an employer firm cannot be an employee thereof. In Wearer vs Weinberger,(3) it was held that "employee" is a person who renders service to another, usually for wages, salary or other financial consideration, and who, in performance of such service, is entirely subject to the direction and control of the other, such other being the employer. Crooks vs Glena Falls Indemnity Co. ,(4) is an authority for the view that an employee is one who is subject to the absolute control and direction of the employer in regard to any act, labour or work to be done in course and scope of his employment. In Morici Corporation vs U.S.D.C. California. ,(5) the Court held that the test to determine whether one person is another 's employee, is whether or not he is subject to control of the other person. In Burker vs Friedman,(6) it was held that partners cannot be regarded as employees rather than as employers who own and manage operation of business, and, hence, cannot be included as employees. Wright vs Deareter(7) took the view that partners were not employees for purposes of requirement that compensation law be complied with when there are three or more employees. Though we have not come across any decision of the U.S. Supreme Court on the point, these authorities under various legislations are clearly indicative of the principle that a partner who belongs to the class of employer cannot rank as employee because he also works for wages for the partnership. Undoubtedly the term employee is the co relative of employer. (1) (2) 293 S.W. 235. (3) 392 F. Suppl. (4) 203. (5) 500 F. Suppl. (6) (7) 126 We may usefully refer here to an English decision. The Court of Appeal in Ellis vs Joseph Ellis & Co.,(1) was called upon to decide whether a partner of a firm could be its employee. The short facts relevant for our purpose available in the judgment of Collins M.R. are: "The deceased appears to have been a skilled workman and, by agreement with his partners, he worked at the mine, sometimes on the surface and sometimes under ground, for wages; and, while working underground, he met with an accident which occasioned his death. His representative thereupon claimed compensation under the Workman 's Compensation Act, 1897, on behalf of her self and his children. The question is whether, having regard to his position as one of the partners, he can be regarded as a workman in the employ of the partnership, and the partners as his employers within the meaning of the Act. When one looks at the provisions of the Act, they do not appear to be applicable to a case like the present. The supposition that the deceased man was employed, within the meaning of that term as used in the Act (not very different from the definition here), would appear to involve that he, as one of the partners, must be looked upon as occupying the position of being one of his own employers. It seems to me that, when one comes to analyse an arrangement of this kind, namely, one by which a partner himself works, and receives sums which are called wages, it really does not create the relation of employers adjusting the amount that must be taken to have been contributed to the partnership assets by a partner who has made what is really a contribution in kind, and does not affect his relation to the other partners which is that of co adventurer and not employee". Lord Justice Mathew pithily but with emphasis added: "The argument on behalf of the applicant in this appeal appears to involve a legal impossibility, namely, that the same person can occupy the position of being both master and servant, employer and employed." (1) 127 Lord Justice Cozens Hardy also spoke in the same strain: "All that our decision in this case amounts to, I think, is that the Act only applies where there is on one side an employer, and on the other side a workman, who are different persons. " This is in complete accord with our view. F.C. Bock and F.F. Manix in their book, the Australian Income Tax Law and Practice (1960 Edn., Vol. 3, page 3092) have said: "The decision of the High Court in Rose vs Federal Commissioner of Taxation(l) established that there is nothing in the relevant income tax legislation to warrant treating a partnership as a distinct legal entity. A partner cannot therefore, also be an employee of the partnership, for a man cannot be his own employer . . " It is thus clear that in the United States, Great Britain and Australia, a partner is not treated as an employee of his firm merely because he receives a wage or remuneration for work done for the firm. This view is in complete accord with the jurisprudential approach. In the absence of any statutory mandate, we do not think there is any scope for accepting the view of the Rajasthan High Court. Counsel for the appellant emphasised on the feature that the statute is a beneficial one and the Court should not interpret a provision occurring therein in such a way that the benefit would be withheld from employees. We do not doubt that beneficial legislations should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme. The Act covers all factories or establishment with 20 or more employees and the benefit is intended to be given to institutions with more than that number. It is not the (1) ; 128 contention of counsel that because the legislation is beneficial it should also apply to factories or establishments with less than 20 employees. If that be not so, in finding out whether a partner would be an employee a liberal construction is not warranted. A person who would not answer the definition cannot be taken into account for the purpose of fixing the statutory minimum. We are therefore, not inclined to accept the contention of counsel that on the basis of the statute being beneficial, a partner should also count as an employee. Once we hold that the three partners were not employees, on the admitted fact the total number of employees would be less than 20, the Act would not be applicable to the establishment in question. There is no merit in the appeal and the same is, therefore, to be dismissed. At the hearing the respondent was not represented; we, therefore, make no direction for costs. N. V. K. Appeal dismissed.

The Respondent firm was engaged in the manufacturing of matches. The Inspector of the Employees State Insurance Corporation who inspected the firm found that there were 18 regular employees and three of the partners worked regularly for wages. As the number of employees were over 20 he held that the Respondent firm incurred liability for contribution under the . The Respondent challenged its liability before the Employees Insurance Court by contending that partners were not employees and that when the three partners were excluded, the total number of employees did not exceed the statutory minimum. The Insurance Court found in favour of the respondent. The Employees State Insurance Corporation appealed to. The High Court, which held following its earlier decision in Regional Director of E.S.I. Corporation vs Mls. Oosmalua Tiite Works, Alwayes I.L.R. 1975(2) Kerala 201 that partners were not employees. In the appeal to this Court on the question whether a partner of a firm is an "employee 'l within the meaning of section 2(9) of the , H 120 Dismissinhe Appeal, ^ HELD: 1. The three partners were not employees. On this admitted fact the total number of employees would be less than 20. The would not therefore be applicable to the respondent establishment. [128C] 2. The term 'employee ' has been defined in section 2(9) of the to mean any person employed for wages in or in connection with the work of a factory or establishment to which the Act applies. ". Wages") has been defined in sub section (22) of that section to mean all remuneration paid or payable, in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled. ". In order that some one may be an employee within the meaning of the Act, he has to be employed for wages. The concept of wages would bring in the contract of employment, and the concept of employee would take with it the correlation of the employer. The term 'employer ' has not been defined in the Act. In the absence of an employer who would provide the employment, there would be no employee. (122D F) 3. A partnership firm is not a legal entity. In a partnership each partner acts as an agent of the other. The position of a partner qua the firm is thus not that a master and a servant or employer and employee which concept involves an element of subordination but that of equality. The partnership business belongs to the partners and each one of them is an owner thereof. In common parlance the status of a partner qua the firm is thus different from employees working under the firm, it may be that a partner is being paid some remuneration for any special attention which he devotes but that would not involve any change of status and bring him within the definition of employee. Seth Hira Lal & Anr vs Sheikh Jammaluddin and anr. [1946] 224 Indian Cases 1O6 & Regional Director of E.S. 1. Corporation vs M/s. Osmanja Tile Works, Alwaye, I.L.R. 1975 (2) Kerala 207 approved. Regional Director of E.S.I. Corporation, Jaipur vs P.C. Kasliwal and Anr. (1931) Labour & Industrial Cases 671 reversed 4. In the United States, Great Britain and Australia, a partner is not treated as an employee of his firm merely because he receives a wage or remuneration for work done for the firm, which is in complete accord with the jurisprudential approach. [127D E] Dube vs Robinson 92 N 312. United States Fidelity Smith & Berger vs Fldility Union Casualty Co, Tayes, 293 S.W. 235 & Weaver vs Wcinberger 392 F. Suppl. 721 Crooks vs Glena Falls Indemnity Co, 203 & Morfci Corporation vs US.D.C. California, 500 F. Suppl. 714 & Burker vs Friedman, ; & Wright vs Deareter Ellies vs Joseph & Co. & Rose vs Federal Commissioner of Taxation ; A referred to. Beneficial legislation should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme. [127F G]

ivil Appeal No. 1665 and 1666 of 1970. From the order dated the 25th July, 1968 of the Punjab and Haryana High Court in LPA Nos. 230 & 240 of 1968. M.S. Dhillon for the Appellant in both the appeals. Tirath Singh Munjral, G.K. Arora, S.S. Munjral and Gautam Bannerjee for the Respondents in both the appeals. The Judgment of the Court was delivered by KOSHAL J. By this judgment we shall dispose of Civil Appeals Nos. 1665 and 1666 of 1970 in which common questions of law have arisen for determination by this Court. The facts leading to the two appeals are undisputed and may be briefly stated thus. Licences to run liquor vends in various parts of Punjab during the financial year 1965 66 were sold by public auction shortly before the 1st April, 1965. Auctions were held at numerous places subject to identical conditions which were supplied to the bidders in writing. Condition No. 8 which is material for our purposes is reproduced below: "That the licensee shall lift each month the proportionate quota for the month fixed for his vend (s) or deposit still head duty realisable thereon. In the event of any deficiency in the amount of still head duty realisable from the lifting of the full proportionate quota due to the short lifting of the quota by the licensee or non deposit of the amount of the still head duty, the said deficiency may be realised from the amount of security deposited by 689 him at the time of grant of licence. The resulting deficiency in the amount of security shall be made good by the licensee within 7 days of such adjustment. In case the short lifting of proportionate quota or short deposit of still head duty continues for two consecutive months or the licensee fails to make up the deficiency in the amount of security within the prescribed period of 7 days, his licence may be cancelled in addition to the recovery of deficiency in still head duty. " Ajudhia Nath who figures as respondent No. 1 in each of the two appeals and who carries on business of selling country liquor either in his own name or in the name and style of M/s. Ajudhia Nath Bal Mukand (a business concern arrayed as respondent No. 2 in Civil Appeal No. 1665 of 1970) was the highest bidder for the auctions pertaining to 5 villages situated in the district of Amritsar and a couple of villages in Ferozepur district. Accordingly the auctions were sanctioned in his favour and he was granted the necessary licences under the relevant provisions of the Punjab Excise Act (hereinafter referred to as the Act) and the rules framed thereunder. The licensee started his liquour selling business in the said seven villages on the 1st April, 1965. By the close of the financial year 1965 66, however, he was unable to lift the minimum quota of country liquor and also failed to deposit the still head duty which became payable by him under condition No. 8 above extracted. He made applications claiming relief in the matter of payment of sums which had fallen due and such relief was granted to him in part by the Excise & Taxation Commissioner, Punjab, on the ground that sales of country liquor had been adversely affected by reason of the movement of population in the border areas of Punjab on account of the hostilities which broke out between India and Pakistan in the month of September 1965. Not satisfied with the relief so granted Ajudhianath filed two petitions under article 226 of the Constitution of India before the High Court of Punjab and Haryana claiming, inter alia, that still head duty was an excise duty which could be levied only on manufacture of goods and which he was not liable to pay by reason of the admitted fact that he was not a manufacturer of liquor. A grouse was also made by him of the fact that the applications claiming relief had been decided without affording to him an opportunity of being heard. One of those petitions (Civil Writ Petition No. 2034 of 1966) related to 690 vends functioning in the two villages of Ferozepur District, while the other (Civil Writ Petition Nos 2035 of 1966) covered the 5 vends located in the 5 villages of Amritsar District. The petitions were allowed by a single order dated the 9th May, 1967 passed by D.K. Mahajan, J., on the sole ground that a similar petition (Civil Writ Petition No. 2021 of 1966) had been allowed by Gurdev Singh, J., on the 27th March, 1966. The proceedings for the recovery of the short fall in the deposit of still head duty by Ajudhia Nath which had been initiated by the State of Punjab and its concerned officers (appellants Nos. 1 to 4 in each of the appeals before us) were quashed and the Excise and Taxation Commissioner, Punjab (appellant No. 2 in both the appeals) was directed to dispose of the "cases" of the respondents "in accordance with law after hearing the petitioners". D.K. Mahajan, J., adopted all the reasons on which Gurdev Singh, J., had based his order above mentioned. Letters Patent Appeals preferred by the 4 appellants to the Division Bench of the High Court were summarily dismissed by Mehar Singh and Tuli, JJ., for the reason that a Letters Patent Appeal against the judgment of Gurdev Singh, J., above mentioned had met the same fate. It is against the judgment of the Division Bench (which is dated the 29th August, 1969) that each of the appeals before us has been filed. Mr. Dhillon, learned counsel for the appellants had drawn our attention to The State of Punjab vs Balbir Singh and Others, which reversed the judgment of Gurdev Singh, J., mentioned above and has contended that the very basis of the impugned judgment has consequently fallen to the ground. The contention is correct. As pointed out in Balbir Singh 's case (supra) the judgment of Gurdev Singh, J., in Civil Writ Petition No. 2021 of 1966 had proceeded merely on the ground that the petitioner firm therein had not been given an opportunity of being heard in relation to the demand notice issued to it for payment of the still head duty on the entire minimum quantity of liquor which that firm was required to lift under the licence. In differing with the view 691 expressed by Gurdev Singh, J., this Court made a reference to the following observations of Chandrachud, J., (as he then was) in Har Shanker and Others vs The Dy. Excise & Taxation Commissioner and Others which was followed in Shyam Lal vs State of Punjab "The announcement of conditions governing the auctions was in the nature of an invitation to an offer to those who were interested in the sale of country liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Government 's acceptance of those bids was the acceptance of willing offers made to it. On such acceptance, the contract between the bidders and the Government became concluded and a binding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of contract between them and the Government, under which they became entitled to sell liquor. The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial considerations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a normal incident of the trading transactions. Those who contract with open eyes must accept the burdens of the contract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract could ever have a binding force." and concluded that the demand for the short fall in still head duty was based on the term of a binding contract and that it sought to enforce the liabilities arising out of mutually agreed conditions of auction. Such a demand, in the opinion of this 692 Court, could not be equated with a notice requiring the liquor vendor to show cause why his licence should not be cancelled. In making this distinction this Court further relied upon State of Punjab vs Mulkh Raj and Co. wherein it was observed: "It was also held there that a cancellation of the licence under section 36 of the Punjab Excise Act, 1914, had to take place quasi judicially after due service of the notice on the licensee to show cause why it should not be cancelled. Although, the merits of the last mentioned proposition need not be examined by us as it rests on a sound footing, yet, we find it difficult to uphold the order that the demand for a sum of Rs. 36,636. On account of short fall should also be quashed on account of non compliance with rules of natural justice in cancelling the licence in proceedings under section 36 of the Act. We think that the two liabilities were erroneously considered by the High Court to be inextricably linked up. . . . . . . We do not think that, even if the respondent ought to have been given a hearing before cancelling the licence, this would dispense with his liability to deposit the amount of balance of the licence fee or invalidate the notice of demand for it." Thus, the proposition is by now well settled that although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does not come into play when the demand is merely for payment of a sum becoming due under the conditions subject to which the licence was granted, and this proposition fully covers these appeals. The demands for payment of the amount of the still head duty which had become due under the contracts accepted by the respondents and had remained unpaid were demands arising under condition No. 8 above extracted and had, therefore, resulted from the terms of those contracts. No question of affording to the respondents any opportunity of being heard thus arises and the impugned judgment, is, therefore, liable to be reversed. 693 4. Faced with the above situation, Shri Munjral, learned counsel for the respondents, raised the following two contentions: (a) Still head duty is a duty of excise which could only be levied on a manufacturer and not on a mere vendor of goods manufactured by others. (b) If the still head duty mentioned in condition No. 8 above extracted cannot be regarded as a duty of excise, it nevertheless amounts to a tax of some other kind for levying which the State lacks authority. Reliance in connection with contention (a) is placed on Entry 51 of List II forming part of Schedule VII to the Constitution of India and on section 31 of the Punjab Excise Act. The relevant portions of these provisions state: Entry 51 "Duties of Excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India : (a) alcoholic liquors for human consumption;. . Section 31 "An excise duty or a countervailing duty, as the case may be, at such rate or rates as the State Government shall direct, may be imposed, either generally or for any specified local area, on any excisable article (a) imported, exported or transported in accordance with the provisions of section 16; or (b) manufactured or cultivated under any licence granted under section 20; or (c) manufactured in any distillery established, or any distillery or brewery licenced under section 21;. 694 These provisions leave no room for doubt that a duty of excise on alcoholic liquors meant for human consumption cannot be recovered from the respondents because none of the 3 clauses of section 31 covers their business activities. But then the first part of contention (a) that still head duty is a duty of excise cannot be accepted in view of the dicta in Har Shankar and others vs The Dy. Excise & Taxation Commissioner and others (supra) and The State of Punjab vs Balbir Singh and others (supra) to the effect that the short fall in still head duty represents nothing but sums recoverable by the appellants under the terms of a contract which was entered into by the respondents with their eyes open and that the latter cannot be allowed to have the best of both the worlds by exploiting the contract so long as it suits them and by repudiating it if and when it does not work to their advantage. Shri Munjral has vehemently contended that still head duty is only another name for excise duty inasmuch as it is nothing more or less than a duty leviable on the manufacture of alcoholic liquor. For this proposition he places reliance on a Division Bench judgment of the High Court of Punjab & Haryana in M/s. Bhajan Lal Saran Singh & Co. vs The State of Punjab and others the approval of that judgment by this Court in Civil Appeals Nos. 1042 and 1043 of 1968 decided on 21st August, 1972, State of Madhya Pradesh vs Firm Gappulal etc. and Excise Commissioner, U.P., Allahabad and others vs Ram Kumar and others. These authorities, however, are of no help to him because, in every one of them, the still head duty which was mentioned in the condition corresponding to condition No. 8 in the present case was either expressly stated to be an excise duty or was assumed to be a duty of that character. In fact, in the case of M/s. Bhajan Lal Saran Singh it was conceded on behalf of the State before the High Court that still head duty was an excise duty and that is why the nature of the charge as excise duty was taken for granted before the High Court as well as in this Court. No question was either raised or decided as to whether it could at all be regarded as an excise duty. However, in later cases, namely, Har Shankar and others vs The Dy. Excise & Taxation Commissioner and others, (supra) and The State of Punjab vs Balbir Singh and others (supra) the demand for still head duty recoverable under condition No. 8 above extracted was specifically 695 held to be a demand for money which had become due under an obligation created by terms of the contract. It is too late in the day, therefore, for Shri Munjral to contend that such a demand should be considered as one covering excise duty. He, however, relies on the following passage in Har Shankar and others vs The Dy. Excise & Taxation Commissioner and others (supra): "The second decision on which the appellants laid stress was rendered by the High Court of Punjab and Haryana in Jage Ram vs State of Haryana (C.W. No. 1376 of 1961 decided on March 12, 1968). The argument is that this decision is based on the earlier decision of the High Court in Bhajan Lal vs State of Punjab (C.W. No. 538 of 1966 decided on February 6, 1967), that the decision in Bhajan Lal 's case was confirmed in appeal by this Court (C.A. Nos. 1042 and 1043 of 1968 decided on August 21, 1972), that there is no material difference between the rules and the procedure adopted in the instant cases and those which were struck down in Bhajan Lal 's case and therefore, the rules and the procedure followed herein must also be struck down for the same reasons. This argument overlooks the significant difference between the rules struck down in Bhajan Lal 's case and in Jage Ram 's case and the amended Rules now in force. Under the old Rule 36 (23 A) still head duty which was admittedly in the nature of excise duty was payable by the licencee even on quota not lifted by him. The Rule and Condition No. 8 founded on it were therefore struck down in Bhajan Lal 's case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule being the sale and not the manufacturer of liquor. Rule 36 was amended on March 31, 1967 in order to meet the Judgment in Bhajan Lal 's case but the High Court found in Jage Ram 's case that even under the amended Rule, still head duty which was in the nature of excise duty was payable on unlifted quota of liquor. The position obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still head duty is now only 0. 64 paise as against Rs. 17.60 per litre which was in force under the old Rules and excise duty as such is no longer payable on unlifted quota. The principle governing the decisions in Bhajan Lal 's 696 case and Jage Ram 's case cannot, therefore, apply any longer". (Emphasis supplied) Special stress has been laid by Shri Munjral on the underlined portion of the passage above extracted and it is contended by him that the judgments in the cases of Jage Ram and Bhajan Lal were neither disapproved nor dissented from but were merely distinguished in Har Shankar 's case, that while pointing out the distinction this Court took it for granted that in those earlier cases the charge of still head duty amounted to an excise duty and that condition No. 8 as obtaining in the present case being identical with the corresponding condition in those cases, it must be held that Har Shankar 's case is an authority for the proposition that the said condition No. 8 seeks to levy nothing but excise duty in the form of still head duty. A careful perusal of the passage cited (which appears at first sight to lend colour to the contention) leaves no room for doubt, however, that in deciding Har Shankar 's case this Court was not called upon to adjudicate on the Constitutional propriety of condition No. 8 above extracted, nor with the question as to the nature of the levy covered by that condition. All that the Court said was that the corresponding condition in Har Shankar 's case was a very different condition which could in no manner be construed to levy an excise duty. Besides, it was pointed out in the passage above quoted that the still head duty mentioned in the relevant condition in the earlier cases (which was indentical with condition No. 8) was admittedly a duty of excise a fact to which we have already adverted while holding that condition No. 8 does not involve the imposition of a duty of exercise but makes provision only for recovery of sums becoming due under a contract. We may also point out that the respondents are not connected in any manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, no question at all of levying a duty of excise on their operations which were confined merely to the sale of liquor manufactured by others and which, therefore, commenced only after the process of manufacture was completely over. For all these reasons, we repel the contention under examination. Contention (b) is also without substance and need not detain us long. For one thing, it was never raised at any earlier stage and its consideration is bound to work prejudice to the cause of the appellants. Secondly, as already pointed out above, there 697 is no impediment in the way of the demand being regarded as the enforcement of an obligation arising under the contracts which the respondents had entered into and exploited so long as the same worked to their advantage and which were fully permissible under sub section (3) of section 34 of the Punjab Excise Act. That sub section states : "(3) Every licence, permit or pass granted under this Act shall be granted (a) on payment of such fees, if any, (b) subject to such restrictions and on such conditions, (c) in such form and containing such particulars, (d) for such period, as the Financial Commissioner may direct". According to Shri Munjral the payment of licence fees is provided for in the conditions of auction apart from condition No. 8 and, therefore, the latter cannot be regarded as providing for anything but the levy of a duty of excise or of some other kind. The argument is fallacious in view of the language of clause (b) of the sub section just above reproduced. That clause allows the imposition of conditions on the grant of a licence, in addition to the payment of the licence fees which is a matter covered by clause (a). Condition No. 8 is, therefore, fully enforceable and there is no reason why still head duty should be regarded as a tax of any kind whatsoever. For the reasons stated, both the appeals are accepted and the impugned judgment. which cannot be sustained, is reversed so that both the petitions under article 226 of the Constitution of India filed by the respondents before the High Court and accepted by it are dismissed. However, we leave the parties to bear their own costs. V.D.K. Appeals allowed.

Condition 8 of the licence to run liquor vends in various parts of Punjab during the financial year 1965 66 laid down: (i) the licensee shall lift each month the proportionate quota for the month fixed for his vends or deposit still head duty realisable thereof (ii) Any deficiency in the amount of still head duty realisable from the lifting of the full proportionate quota due to the short lifting of the quota by the licensee or non deposit of the still head duty may be realised from the amount of security deposited by the licensee at the time of grant of licence; (iii) the resultant deficiency in the amount of security shall be made good by the licensee within seven days of such adjustment and (iv) if there is short lifting of proportionate quota or short deposit of still head duty continues for two consecutive months or the licensee fails to make up the deficiency in the amount of security within the prescribed period of seven days, his licence may be cancelled in addition to the recovery of still head duty. Respondent Ajudhia Nath who was granted the necessary licences under the relevant provisions of the Punjab Excise Act and the Rules framed thereunder, was unable to lift the minimum quota of country liquor and also failed to deposit the still head duty which became payable by him under condition No. 8. On an application made by him claiming relief in the matter of payment of sums which had fallen due, such relief was granted to him in part by the Excise and Taxation Commissioner, Punjab, on the ground that the liquor trade was badly affected by reason of the movement of population in the border area of Punjab on account of the hostilities which broke out between India and Pakistan in the month of September 1965. Not satisfied with the relief so granted Ajudhia Nath filed two petitions under Article 226 of the Constitution before the High Court of Punjab and Haryana claiming, inter alia, that still head duty was an excise duty which could be levied only on manufacture of goods and which he was not liable to pay by reason of the admitted fact he was not a manufacturer of Liquor and that he was not given the opportunity of being heard in the matter covered by the applications claiming relief. The petitions were allowed and the Letters Patent Appeals preferred by the State were dismissed. Hence the appeals by special leave. 687 Allowing the appeals, the Court ^ HELD: 1. The demand for the short fall in still head duty was based on the terms of a binding contract and it sought to enforce the liabilities arising out of mutually agreed conditions of auction. Such a demand could not be equated with a notice requiring the liquor vendor to show cause why his licence should not be cancelled. Although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does not come into play when the demand is merely for payment of a sum becoming due under the conditions subject to which the licence was granted. [691 G H, 692A, E F] Har Shankar and others vs The Dy. Excise & Taxation Commissioner and others ; Shyam Lal vs State of Punjab, AIR 1976 SC 2045; State of Punjab vs Mulkh Raj and Co., AIR 1977 SC 1550 and The State of Punjab vs Balbir Singh and others, AIR 1977 SC 1717, followed. A combined reading of Entry 51 of List II of Schedule VII to the Constitution of India and section 31 of the Punjab Excise Act no doubt makes it clear that a duty of excise on alcoholic liquors meant for human consumption cannot be recovered from a person unless any one of the three clauses of section 31 covers his business activities. [693 C D, 694A] 2: 2. Still head duty is not a duty of excise in view of the dicta laid down by the Supreme Court to the effect that the short fall in still head duty represents nothing but sums recoverable from the licensees under a contract which was entered into by them with their eyes open and that they cannot be allowed to have the best of both the words by exploiting the contract so long as it suits them and by repudiating it if and when it does not work to their advantage. [694 B C] Har Shankar and others vs The Dy. Excise & Taxation Commissioner and others, ; State of Punjab vs Balbir Singh and others, AIR 1977 SC 1717, applied. Condition No. 8 of the licence does not involve the imposition of a duty of excise but makes provision only for recovery of sums becoming due under a contract. The licensees are not connected in any manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, no question at all of levying a duty of excise on their operations which were confined merely to the sale of liquor manufactured by others and which, therefore, commenced only after the process of manufacture was completely over. [696 E G] M/s. Bhajan Lal Saran Singh & Co. vs State of Punjab and others, 1967 Current Law Journal (Punjab and Haryana) 460; State of M.P. vs Firm Goppulal, ; ; Excise Commissioner, U.P., Allahabad and others vs Ram Kumar and others, , distinguished. 3: 1. On the facts of this case still head duty cannot be regarded as a tax of some other kind nor can the question whether it does amount to such a tax 688 (for levying which the State lacks authority) be allowed to be raised since it was never raised at any earlier stage and its consideration is bound to work prejudice to the cause of the appellants. Further there is no impediment in the way of the demand being regarded as the enforcement of an obligation arising under the contracts which the licensees had entered into and exploited so long as the same worked to their advantage and which were fully permissible under sub section (3) of section 34 of the Punjab Excise Act. [696 H, 697 A B] 3: 2. Clause (b) of sub section (3) of section 34 of the Punjab Excise Act allows impositions of conditions on grant of the licences in addition to the payment of the licence fees which is a matter covered by clause (a). Condition No. 8 is, therefore, fully enforceable and there is no reason why still head duty should be regarded as a tax of any kind whatsoever. [697 D E]

: 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) 778 In Writ Petition No. 153 of 1966. R. V. section Mani, section K, Mehta and K. L. Mehta, for the petitioners. Niren,De, Additional Solicitor General of India,and R. N. Sachthey, for the Respondents. Niren De, Additional Solicitor General of India,G.Rajagopal, and R. H. Dhebar,for Intervener Ng. 1. section D. Banerjee, Advocate General for the State of West Bengal, B. 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, M. K. Ramamurthi, R. K. Garg, section 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. V. D. Mahajan and R. H. Dhebar, for Intervener No., 5. K. L. Mishra, Advocate General for the State of Uttar Pradesh, and O. P. Rana, for Intervener No., 6. V. 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. K. B. Mehta, for Intervener No. 9. P. Ram Reddy and T. V. R. Tatachari, for Intervener No. 10. M. C. Stealvad, B. R. L. Iyengar and R. H. Dhebar, for Inter vener No. 11. R. Thiagarajan, for Intervener No. 12. D. N. Mukherjee, for Interveners Nos. 13 and 19 to 21. E. Udayairatnam, section section Dalal and D. D. Sharma, for Inter veners Nos. 14 and 15. R. K Garg, D. P. Singh, M. K. Ramamurthi, section C. Agarwala, G. D. Gupta and K. M. K. Nair ' for Intervener No. 16. 'K. 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 section N. Prasad, for Interveners Nos. 22 to 24. 779 in Writ Petition No. 202 of 1966. M.K. Nambyar, K. B. Jinaraja Hegde, N. A., Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin der Narain, for the Petitioner. H. R. Gokhale, B. P. G. K. Achar, K. H. Dhebar, R. N. Sachthey and section P. Nayyar, for Respondent No. 1. Niren De, Additional Solicitor General, N. section Bindra and R. N. Sachthey, for Respondent No. 2. A. K. Sen, F. section Nariman, M. L. Bhakte, section I. Thakere, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 1. N. A. Palkhiwala, F. section Nariman, M. L. Bhakte, D. M. Popat,0. P. Malhotra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 2. D. M., Parulekar B. Dutta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 3. In Writ Petition No. 205 of 1966. M. K. Nambyar, K. B. Jinaraja Hegde, N. A. Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin der Narain, for the Petitioner. H. R. Gokhale, B. R. G. K. Achar, R. H. Dhebar and section P. Nayyar, for Respondent No. 1. section G. Patwardhan, D. M. Parulekar, B. Dutta, section K. Dhelika, 1. 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 not to be found in article 368 but in articles 245, 246 and 248 read with Entry 97 of List 1; (ii) the amending power can. not 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 article 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 continue 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 no power 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 780 power of amending the Constitution resides in article 368 and not in articles 245, 246 and 248, read with EntrY 97 of List 1; (ii) there, are no restrictions on the power if the procedure in article 368 is followed and all the Parts of the Constitution including Part III, can be amended, (iii) an amendment of the Constitution is not " 'law" under article 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 article 13 (2). He agrees With WANCHOO, J. that the power to amend does not reside in articles 245 and 248 read wish Entry 97 of List 1. article 368, according to him, is sui generis and procedural and the procedure when correctly followed, results in an amendment. He does not 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 not 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 article 13 (2) and is an inroad into fundamental rights, is beyond the reach of the courts because it falls within the word "law" in articles 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 concurring 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 section 10 B thereof. The petitioners, alleging that the relevant provisions of the said Act where under the said area was 781 declared surplus were void on the ground that they infringed their rights under cls. (f) and (g) of article 19 and article 14 of the Constitution, filed a writ in this Court under article 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 section 10 B of the said Act X of 1953 was void as violative of articles 14 and 19 (1) (f) and (g) of the Constitution. Writ Petitions Nos. 202 and 203 of 1966 were filed by different petitioners under article 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 conferred ownership of surplus lands on tenants infringed articles 14, 19 and 31 of the Constitution and, therefore, was unconstitutional and void. The States of Punjab and Mysore, inter alia, contended 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 article 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, notice was given to the Advocates General of various States. A11 the learned counsel appearing for the parties, the Advocates General appearing for the States and the learned counsel 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 convenient to place briefly the respective contentions 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 construed 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 article 368, for the 782 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 article 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 article 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 article 368 was finally adopted, support the contention that amendment of Part II, is outside the scope of article 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 article 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) article 368 only lays down the procedure to amend, but the power to amend is only the legislative power conferred on the Parliament under articles 245, 246 and 248 of the Constitution. (8) The definition of "law" in article 13(2) of the Constitution includes every branch of law, statutory, constitutional, 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 article 226 of the Constitution and also the legislative powers of the States and therefore it falls within the scope of the proviso to article 368. The said summary, though not exhaustive, broadly gives the various nuances of the contentions raised by the learned counsel, who question the validity of the 17th Amendment. We have not noticed the other arguments of Mr. Nambiar, which are peculiar to the Writ Petition No. 153 of 1966 as those questions do not arise for decision, in the view we are taking on the common 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 not 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 article 783 368 axe clear and unequivocal and there is no scope for invoking implied limitations on that power: further the doctrine of impliedpower has been rejected by the American courts 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 course 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 no basic and non 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 country. (6) Debates. in the Constituent Assembly cannot be relied upon for construing article 368 of the Constitution and even if they can be, there is nothing 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, not being judicial questions, they are outside the court 's jurisdiction. (8) The language of article 368 is clear, categorical, imperative and universal, on the other hand, the language of article 13(2) is such as to admit qualifications or limitations and, therefore, the Court must construe them in such a manner as that Article could not control article 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 could be amended and, therefore, any reversal of, the previous I decisions would introduce economic chaos in our country and that, therefore, the burden is very heavy uponthe petitioners to establish that the fundamental rights cannot be amended under article 368 of the Constitution. (10) article 31 A and the 9th Schedule do not affect the power of the High Court under article 226 or the legislative power of the States though the area of their operation is limited and, therefore, they do not fall within the scope of the proviso to article 3 68. The aforesaid contentions only represent a brief summary of elaborate arguments, advanced by learned counsel. We shall deal in appropriate context with the other points mooted before US. It will be convenient to read the material provisions of theConstitution at. this stage. Article 13(1) (2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, toy the extent of the contravention, be void. 784 (3) In this article, unless the context otherwise requires, (a) "law" includes any Ordinance, order, bye law, rule regulation, notification, custom or usage having in the territory of India the force of law. Article 31 A(1), Notwithstanding anything contained in article 13, no law 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 conferred 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, (ii) any land held under ryotwari settlement, (iii) 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 contained in article 31 A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and not withstanding any judgment decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue 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. 785 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 conferred by Part III of the Constitution. It is common case that if the Constitution (Seventeenth Amendment) Act, 1964, was constitutionally valid, the said Acts could not be impugned on any of the said grounds. The question of the amendability of the fundamental rights was considered by this Court earlier in two decisions, namely, Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar(1) and in Sajjan Singh vs State of Rajasthan (2) In the former the validity of the Constitution (First Amend ment) Act, 1951, which inserted, inter alia, articles 31 A and 31 B in the Constitution, was questioned. That amendment was made under article 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 conclusion on two grounds, namely, (1) the word "law" in article 13(2) was one made in exercise of legislative power and not constitutional law made in exercise of constituent power; and (ii) there were two articles (articles 13(2) and 368) each of which was widely phrased and, therefore, harmonious construction required that one should be so read as to be controlled and qualified by the other, and having regard to the circumstances mentioned in the judgment article 13 must be read subject to article 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 not include constitutional law and on that assumption an attempt was made to harmonise Article 13 (2) and 368 of the Constitution. The decision in Sajjan Singh 's case(2) was given in the con 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 conferred by Part III of the Constitution fell within the prohibition of article 13(2) and (2) Whether Articles 31 A and 31 B sought to make changes in articles 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 contention was not raised before the Court. The learned counsel appearing for both the parties accepted the correctness of the decision in Sankari Prasad 's case(1) in that (1) ; ,105. (2) ; , 946, 950, 959, 961, 963. 786 regard. Yet Gajendragadkar, C.J. speaking for the majority ,agreed with the reasons given in Sankari Prasad 's 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 contention that article 368 did not confer 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 conceded 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 not find considerations of substantial and compelling character to do so in that case. But after: referring to the reasoning given in Sankari Prasad 's 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 article 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 no case 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 not be understood to have subscribed to the view that the word "law" in article 13(2) does not control constitutional amendments. , I reserve my opinion on that case for I apprehend that it depends on how wide is the "law"in that Article." After giving his reasons for doubting the correctness of the reasoning given in Sankari Prasad 's case(1), the learned Judge concluded thus : "I would require stronger reasons than those given in Sankari Prasad 's case(1) to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States." (1) ; 787 The. learned Judge continued "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 could not 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 not make, its results anytheless a 'law". He further pointed out that article 368 did not say that whenever Parliament made an amendment to the Constitution it assumed a different capacity from that of a constituent body. He also brought out other defects in the line of reasoning adopted in Sankari Prasad 's case(1). It will, therefore,be seen that the correctness of the decision in Sankari Prasad 's case(1) was not questioned in Sajjan Singh 's case(2) Though it was not 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 not raised, the minority agreed with the conclusion, arrived at by the majority on the question whether the Seventeenth Amendment Act was, covered by the proviso. to article 368 of the Constitution. The conflict between the majority and the minority in Sajjan 's Singh 's case(1) falls to be resolved in this case. The said conflict and, the great importance of the question raised is the justification for . the Constitution of the larger Bench. , The decision in Sankri Prasad 's case(1) was assumed to be correct in subsequent decisions of this Court. See section Krishnan vs State of Madras(1), The State ' of West Bengal vs Anwar All Sarkar(1) and Basheshar Nath vs The Commissioner of Income tax, Delhi and Rajasthan(5). But nothing turns upon that fact, as the correctness of the derision was not questioned . in those cases. A correct 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 conspectus 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 constitute India into a Sovereign, Democratic, Republic and to secure to all its citizens justice. liberty. equality. and fraternity . (1) ; (3) ; at page 652. (2) [1965] 1 S.C.R.933. (4) ; , 366. (5) [1959] Supp. 1 S.C.R. 528,563. 788 It contains in a nutshell, its ideals and its aspirations. The preamble is not a platitude but the, mode of its realisation is worked out in detail in the Constitution. The Constitution brings into existence different constitutional 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 conflicts and conditions 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 content. It embodies the. modem concept 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 no concentration 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 country, it could not 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 constitutes the higher judiciary of the State as the sentinel of the said rights and the balancing wheel between the rights, subject to social control. In short, the fundamental rights, subject to social control, 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 competency to make the law; (ii) whether the said law infringes any of the fundamental rights; (iii) even if it Infringement the freedoms under article 19, whether the infringement only amounts to "reasonable restriction" on such rights in "public interest. " By this process of scrutiny, the court maintains the validity of only such laws as keep a just balance between freedoms and social control. The duty of reconciling fundamental rights in article 19 and the laws of social control is cast upon the courts 789 and the touchstone or the standard is contained in the said two expressions. The standard is an elastic one; it varies with time, space and condition. What is reasonable under certain circumstances may not be so under different circumstances. The constitutional 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 no place under the Constitution. Now, what are the fundamental rights ? They are embodied in Part III of the Constitution and they may be classified thus : (i) 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 (vii) right to constitutional 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 contradistinction 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 communities, 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 commencement 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 not 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 article 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 constituted an integrated scheme forming a self contained code. The scheme is made so elastic that all the Directive ' Principles of State Policy can reasonably be enforced 'without taking up. Cl/67 5 790 away or abridging the fundamental rights. While recognizing the immutability of fundamental rights, subject to social control, the Constitutional itself provides for the suspension or the modification of fundamental rights under specific circumstances, for instance, article 33 empowers Parliament to modify the rights conferred by Part III in their application to the members of the armed forces, article 34 enables it to impose restrictions on the rights conferred by the said parts while martial law is in force in an area, article 35 confers the power on it to make laws with respect to any of the matters which under clause (3) of article 16, Clause (3) of article 32, article 33 and article 34 may be provided for by law. The non 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 conferred by the said Parts a guaranteed right. Even during grave emergencies article 358 only suspends the provisions of article 19; and article 359 enables the President by order to declare the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in that order to be suspended; that is to say, even during emergency, only article 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 core of the commitment 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 conscience 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 not surprising; India was a land of communities, 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 not 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. 791 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 not permit their withdrawal under any circumstances . Another reason why great importance attached to a Declaration of Rights is the unfortunate existence of communal differences in the country. Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We could dot, better secure the full enjoyment of religious and communal rights to all communities 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, not 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 article 304 of the Draft Constitution corresponding to the present article 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 consists 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 not mentioned in Part III or article 304, all that is necessary for them is to have two thirds majority. Then they can amend it. " 792 Therefore, in Dr. Ambedkar 's view the fundamental rights were so important that they could not be amended in the manner provided by article 304 of the Draft Constitution, which corresponds to the present article 368. We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar not with a view to interpret the provisions of article 368, which we propose to do on its own terms, but only to notice the transcendental character given to the fundamental rights by two of the important architects of the Constitution. This Court also noticed the paramountcy of the fundamental rights in many decisions. In A. K. Gopalan vs State of Mad ras(1) they are described as "paramount ', in State of Madras vs Smt. Champakam Dorairajan(2) as "sacrosanct", in Pandit M. section M. Sharma vs Shri Sri Krishna Sinha(s) as "rights reserved by the people ', in Smt. Vijam Bai vs 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 considered them as a guarantee for their way of life. This, however, does not 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 not 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 not what the Parliament regards at a given moment as conducive 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 control infringing the said power on Parliament and the them in specified circumstances; if the decisions in San Prasad 's case(1) and Sajjan Singh 's case(1) laid down the correct law, it enables the same Parliament to abrogate them with one stroke, provided the party in power singly or in combination with other parties commands the neces (1) ; 198. (3) [1959] Supp. 1 S.C.R. 806. (5) [1952] S.C.P. 89,105. (2) ; (4) [1963] 1 S.C.R. 778. (6) ; 793 sary majority. While articles of less significance would require consent of the majority of the States, fundamental rights can. be dropped without such consent. 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 conclusion 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 compel us to do so. With this background let us proceed to consider the provisions of article 368, vis a vis article 13(2) of the Constitution. The first question is whether amendment of the Constitution under article 368 is "law" within the meaning of article 13(2). The marginal note to article 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 completion of the procedural AM culminates in the exercise of the power to amend may be subtle but does not carry conviction. If that was the intention of the provisions, nothing prevented the makers of the Constitution from stating that the Constitution may be amended in the manner suggested. Indeed, whenever the Constitution sought to confer a special power to amend on any authority it expressly said so : (See articles 4 and 392). The alternative contention that the said power shall be implied either from article 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 no necessity 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 article 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 794 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 not enumerated in Lists II and III including any tax not mentioned in either of those lists. " Article 248 expressly states that Parliament has exclusive power to make any law with respect to any matter not 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 countries, which we shal consider at a later stage, it cannot be contended, and indeed, it was not contended, that the Constituent Assembly, if it were so minded, could not have conferred 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 conferred such power. There is, therefore, no inherent Inconsistency between legislative process and the amending one. Whether in the field of a constitutional law or statutory law amendment can be brought about only by law. The residuary power of Parliament, unles there is anything contrary in the ,Constitution, certainly takes in the power to amend the Constitution. It is said that two Articles 'indicate the contrary intention. As article 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 article 245 is in respect of the power to make a law and not of the content of the law made Within the scope of its power. The second criticism is based upon article 39 of the Constitution. That provision confers 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 President 's power, though confined to a temporqry period,is co extensive 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 article 368. Apart from the limited scope of article 392, which is intended only for the purpose of removing difficulties and for bringing about a smooth transition, an order made by the Presi 795 dent cannot attract article 368, as the amendment contemplated by that provision can be initiated only by the introduction of a bill in the Parliament. There is no force 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 article 245. Now, what is "law" under the Constitution ? It is not denied that in its comprehensive sense it includes constitutional law and the law amending the Constitution is constitutional law. But article 13(2) for the purpose of that Article gives an inclusive definition. It does not exclude Constitutional law. It prima facie,takes in constitutional 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 normal 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 component 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 article 368 is not a complete code in respect of the procedure. This Court said "There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President 's assent is to be obtained. Having provided for the Constitution of a Parliament and prescribed a certain procedure for the conduct 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 consistently with the express provision of article 368, when they have entrusted to it the power of =ending the Con (1) ( 1 952) S.C. R. 89. 796 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 constitutional 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 conditions, such as, a larger majority and in the case of articles mentioned in the proviso a ratification by Legislatures is provided, does not make the amendment anytheless a law. The imposition of further conditions is only a safeguard against hasty action or a protection to the States, but does not change the Legislative character of the amendment. This conclusion is reinforced by the other articles of the Constitution. Article 3 enables Parliament by law to form now States and alter areas, boundaries or the names of existing States. imposed two, further conditions, of the President, and (ii) in therein, the views expressed by the Legislatures. Notwithstanding the said conditions it cannot be suggested that the expression "law" under the said Article is not one made by the Legislative process. Under article 4, such a law can contain 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 not 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 article 368. 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 conditions will be clear if two decisions of the Privy Council are considered in juxta position. They are McCawley vs The King(1) and The Bribery Commissioner vs Pedrick Rana singhe(2). The facts in McCawley vs 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) (2) 797 c. 54. The Order in Council had set up a legislature for the territory, consisting 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 consent of the Council and Assembly. Any laws could 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 section 9 thereof a two thirds majority of the Council and of the Assembly %,as required as a condition precedent to the validity of legislation altering the constitution,of the Council. The Legislature, there fore, had, except in the case covered by section 9 of the Act, an unrestricted power to make laws. The Legislature passed a law which conflicted with one of the existing terms of the Constitution Act. Lord Birkenhead, L.C., upheld the law, as the Constitution Act conferred 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 vs 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 no Bill 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 not less than two thirds of the whole number of members of the House. Under section 55 of the said Order the appointment of Judicial Officers was vested in the Judicial Service Com mission. But the Parliament under section 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 conflict with the said section 55 of the Order and it was passed without complying with the terms of the proviso to section 29 of the Order. The Privy Council held that the Amendment Act was void. Lord Pearce, after considering McCawley 's case(2) made the following observations, at p. 1310 : ". . a legislature has no power to ignore, the conditions of law making that are imposed by the (1) ; (2) 1. 798 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 complied 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 article 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 nothing but "law". A comparative study of other Constitutions indicates that no particular pattern is followed. AR the Constitutions confer an ,express power to amend, most of them provide for legislative procedure with special majority, referendum, convention, etc., and a few with simple majority. Indeed, Parliament of England, which is a supreme body, can amend the constitution like any other :statute. As none of the Constitutions contains provisions similar to article 368 and article 13(2), neither the said Constitutions nor the decisions given by courts thereon would be of any assistance in construing the scope of article 368 of our Constitution. A brief survey of the nature of the amending process adopted by various constitutions will bring out the futility of any attempt to draw inspiration from the said opinions or decisions on the said constitutions. The nature of the amending power in different constitutions generally depends on the nature of the polity created by the constitution, namely, whether it is federal or unitary constitution or on the fact whether it is a written or an unwritten constitution or on the circumstances whether it is a rigid or a flexible constitution. Particularly the difference can be traced to the "spirit and genius of the nation in which a particular constitution has its birth". The following articles of the 'Constitution of the different countries are brought to our notice by one or other of the counsel that appeared before us. article 5 of the Constitution of the United States of America, articles 125 and 128 of the Commonwealth of Australia Constitution Act, article 92 (1) of the British North American Act, section 152 of the South African Act, article 217 of the Constitution of, the United States of Brazil, Section 46 of the Constitution of Ireland, 1937, articles 207, 208 and 209 of the Constitution of the Union of Burma, article 88 ,of the Constitution of the Kingdom of Denmark Act, article 90 of 799 the Constitution of the French Republic, 1954, article 135 of the United States of Mexico, article 96 of the Constitution of Japan, article 112 of the Constitution of Norway, article 85 of the Constitution of the Kingdom of Sweden, articles 118, 119, 120, 121, 122 and 123 of the Constitution of the Swiss Federation, articles 140, 141 and 142 of the Constitution of Venezuela, and article 146 of the Constitution of the Union of Soviet Socialist Republics, 1936 and section 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, (ii) by the people through, referendum, (iii) by majority of all the units of a federal State; and (iv) by a special convention. The first method can be in four different ways, namely, (i) by the ordinary course 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 could be amended by ordinary legislative process by absolute majority. Many constitutions provide for special majorities.); (ii) by a fixed quorum of members for the consideration 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 constitution revision as in Latin America. Lastly, some constitutions impose express limitation on the power to amend. (See article 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 constitution makers to prescribe the scope of the power and the method of amendment having regard to the requirements of the particular State. There is no article in any of the constitutions 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 comparatively flexible, but it is made subject to fundamental rights. 800 Now let us consider the argument that the power to amend is a sovereign power, that the said power is supreme to the legislative power, that it does not 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 note that when the Congress is engaged in the amending process it is not 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 no more 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 none". 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 article 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 not say that a particular constitution cannot expressly impore restrictions on the power to amend or that a court cannot reconcile the articles couched in unlimited phraseology. Indeed article 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 constitution, said Mulford, is the &&worst tyranny of time, or rather the very tyranny of time" But he also notices "The provision for amendment should be neither so rigid as to make needed changes practically impossible nor so flexible as to encourage frequent and 801 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 conceive of an unamendable constitution as anything but a contradiction in terms. " The learned author says that such a constitution would constitute "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 no such implied limitations as that an amendment shall not contain 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 "constitution" as its process of amendment, for, in his view, to amend is to deconstitute and reconstitute. The learned author concludes that the amending clause is so fundamental to a constitution that he is tempted to call it the constitution itself. But the learned author recognizes that difficulty in amendment certainly products circumstances and makes impossible the surreptitious abrogation of rights guaranteed in the constitution. William section Livingston in "Federalism and Constitutional Change" says : "The formal procedure of amendment is of greater importance than the informal processes, because it constitutes 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 constitution though of unequal dignity are both laws. Another calls the constitution 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 constitution 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 constitution by legislative action does not confer the power to break it any more than it confers the power to legislate on any other subject contrary to the prohibitions. C. F. Strong in his book "Modem Poliical Constitutions", 1963 edition, does not accept the theory of absolute sovereignty of the amending power which does not brook any limitations, for he says. 802 "In short, it attempts to arrange for the recreation of a constituent assembly whenever such matters are in future to be considered, even though that assembly be nothing more than the ordinary legislature acting under certain restrictions. At the same time, there may be some elements of the constitution which the constituent assembly wants to remain unalterable by the action of any authority whatsoever. These elements are to be distinguished from the rest, and generally come under the heading of fundamental law. Thus, for example, the American Constitution, the oldest of the existing Constitutions, asserts that by no process of amendment shall any State, without its own consent, 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 containing a clause stating that the republican form of government cannot be the subject of an amending proposals" it is not necessary to multiply citations from text books. A catena of American decisions have been cited before us in support of the contention that the unending power is a supreme power or that it involves political issues which are not justiciable. It would be futile to consider them. at length, for after going through them carefully we find that there are no considered 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 section 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 cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was con 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 confusion by the inconclusive decision in Coleman vs 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 compel 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 803 assailed on three grounds : (1) that the amendment had been previously rejected by the State Legislature; (2) that it was no longer 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 no right to cast the deciding vote in the Senate in favour of ratification. Four opinions were written in the Supreme Court, no one of which commanded 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 controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concur 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 not subject to judicial guidance, control or interference at any point. " whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favour of ratification presented a justiciable controversy was left undecided, the court 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 concurred, 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 copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State Court, the Supreme Court found that there 'was no longer a controversy susceptible of judicial determination. " This passage, in our view, correctly 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 804 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 not cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power conferred by a particular constitution. All the authors also agree, that a particular constitution can expressly limit the power of amendment, both substantive and procedural. The only conflict lies in the fact that some authors do not pen nit implied limitations when the power of amendment is expressed in general words. But others countenance such limitations by construction or otherwise. But none of the authors goes to the extent of saying, which is the problem before us, that when there are conflicting articles couched in widest terms, the court has no jurisdiction to construe and harmonize them. If some of the authors meant to say that in our view, they did not we cannot agree with them, for, in that event this Court would not be discharging its duty. Nor can we appreciate the arguments repeated before us by learned counsel for the respondents that the amending process involves political questions which are, outside the scope of judicial review. When a matter comes before the Court, its jurisdiction does not 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 not possible to define what is a political question and what is not. The character of a question depends upon the circumstances and the nature of a political society. To put if differently, the court does not 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 not be deciding on political questions, but will only be holding that Parliament has no power to amend particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. We, therefore, hold that there is nothing 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 novel 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 article 13(2). The next argument is based upon the expression "amendment" in article 368 of the Constitution and if is contended that the said 805 expression has .a Positive and a negative content 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 concept of federalism ' can be obliterated and in short the sovereign democratic republic can be converted into a totalitarian system of government. There is considerable 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 concerned, the question raised can be answered on a narrower basis. This question may arise for consideration 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 not, therefore, propose to express our opinion in that regard. In the view we have taken on the scope of article 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 covered by the proviso to article 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 article 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 context of the present petitions it would be enough if we notice the amendments affecting fundamental right to property. The Constitution came into force on January 26, 1950. The Constitution (First Amendment) Act, 1951, amended articles 15 and 19, and articles 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 courts. 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 corresponding legislations in Uttar Pradesh and Madhya Pradesh respectively. (1) A. I. R. 1951 Patna 91. C.T.167 6 806 The amendment was made when the appeals from those decisions were pending in the Supreme Court. In Sankari Prasad 's case(1) the constitutionality of the said amendment was questioned but the amendment was upheld. It may be noticed that the said amendment was not made on the basis of the power to amend fundamental rights recognized by this Court but only in view of the conflicting 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 article 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 articles 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 corporations; (c) extinguishment or modification of rights of person; interested in corporations; 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 courts 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 compulsory acquisition or requisitioning of private property and the deprivation of property and to extend the scope of article 31 A to cover different categories of social welfare legislations and to enable monopolies in particular trade or business to be created in favour of the State. Amended article 31(2)makes the adequacy of compensation not 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 Prasad 's case(1), it would have amended the Constitution even if the said decision was not 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 vs 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) ; , 105 (2) [1962] Supp. 1 S.C.R. 829 807 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 definition" 'estate" was not wide enough, that the courts 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 Singh 's 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 country zamindaries, inams and other intermediary estates were abolished, vested rights were created in tenants, consolidation 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 correctness of the decisions in Sankari Prasads case(2) and Sajjan Singh 's 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 country has been revolutionised on the basis of the said laws. Should we now give retrospectivity to our decision, it would introduce chaos and unsettle the conditions in our country. Should we hold that because of the said consequences Parliament had power to take away fundamental rights, a time might come when we would gradually and imperceptibly pass under a totalitarian rate. Learned counsel 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 counsel for the petitioners want us to reach the logical position by holding that all the said laws are void and the learned counsel 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 not think that (1) ; (2) ; , 808 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 constitutional concepts are couched 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 not 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 conservative and inhibitive. In the constitutional 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 common law rule that the duty of the Court was "not to pronounce a new rule but to maintain and expound .the old one". It means the Judge does not 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 not make law but only discovers the correct 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 court should recognize a duty to an nounce a new and better rule for future transactions whenever the court has reached the conviction that an old rule (as established by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned 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 809 living law. We apply it to this case because the repeal might work hardship to those who have trusted to its existence. We give notice 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 vs 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 construction of the statute in question but had announced that that interpretation would not be followed in the future. It was contended before the Supreme Court of the United States of America that a decision of a court over ruling earlier decision and not giving its ruling retroactive operation violated the due process clause of the 14th Amendment. Rejecting that plea, Cardozo said : "This is not a case where a Court in overruling an earlier decision has come 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 not infrequently have argued to the contrary . This is a case where a Court has refused to make its ruling retroactive, and the novel stand is taken that the Constitution of the United States is infringed by the refusal. We think that the Federal Constitution has no voice 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 courts, though later over ruled, was law nonetheless 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 considerations 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 vs Baxter State Bank(2) stated thus (1) ; , 366. ; (2) ; 810 "The law prior to the determination of unconstitutionality is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. " In Griffin vs Illionis(1) the Supreme Court of America reaffirmed the doctrine laid down in Sunburst 's case (2). There, a statute required defendants to Submit bills of exceptions as a pre requisite to an appeal from a conviction; the Act was held unconstitutional in that it provided no means whereby indigent defendants could secure a copy of the record for this purpose. Frankfurter, J., in that context observed ". in arriving at a new principle, the judicial process is not important to, define its scope and limits. Adjudication is not a mechanical exercise nor does it compel 'either/or ' determination." In Wolf vs 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 not forbid the admission of evidence obtained by an unreasonable search and seizure. But in Mapp. vs 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 court. In Linkletter vs Walker(5) the question arose whether the exclusion of the rule enunciated in Mapp vs Ohio(4) did not apply to State Court convictions 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 consequences 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) [1956]351U.S.12,2. (2) (1932) 287 U. section 358,366: ; (3) ; 193L.Ed. 872. (4) ; 6 L. Ed. (5) ; 1081. 811 not be corrected by releasing the prisoners involved. On the other hand, the States relied on Wolf and followed its command. Final judgments of conviction 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 not 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 consider. 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 not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing 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 now accepted in all branches of law, including constitutional law. But the carving of the limits of retrospectivity of the new rule is left to courts to be done, having regard to the requirements of justice. Even in England the Blackstonian theory was criticized by Bentham and Austin. In Austin 's 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 common law is not 'Made by them, but is a miraculous something made, by nobody, 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 812 "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 normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, 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 not 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 consider 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 not expressly but by necessary implication the doctrine of "prospective overruling. " Let us now consider some of the objections to this doctrine. The objections are: (1) the doctrine involved legislation by courts; (2) it would not encourage parties to prefer appeals as they would not get any benefit therefrom; (3) the declaration for the future would only be obiter, (4) it is not a desirable change; and (5) the doctrine of retroactivity serves as a brake on court which otherwise might be tempted to be so fascile in overruling. But in our view, these objections are not insurmountable. If a court can over rule its earlier decision there cannot be any dis pute now that the court can do so there cannot be any valid reason why it should not restrict its ruling to the future and not to the past. Even if the party filing an appeal may not 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 court in effect does is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not mean that injustice shall be perpetuated. An illuminating article on the subject is found in Pennsylvania Law Review, [Vol. I 10 p. 650]. 813 It is a modem doctrine suitable for a fast moving society. It does not do away with the doctrine of stare decisis, but confines it to past transactions. It is true that in one sense the court 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 court really does is to declare the law but refuses to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds law and that it does make law. It finds law but restricts its operation to the future. It enables the court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions. It is left to the discretion of the court 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 no statutory prohibition against the court 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 court by interpretation reject retroactivity. to statutory provisions though couched 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 not expressly or by necessary implica tion speak against the doctrine of prospective over ruling. Indeed, articles 32, 141 and 142 are couched 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 article 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 courts; and article 142 enables it in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. These articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete 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 not see any acceptable reason why it, in declaring the law in superses 814 sion of the law declared by it earlier, could not 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 not make it is to make ineffective the powerful instrument of. justice placed in the hands of the highest judiciary of this country. As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different ,circumstances, we would like to move warily in the beginning. We would lay down the following propositions : (I) 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 court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare an binding on all the courts 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 conclusions, namely, (1) Parliament has no power 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 conclusion on the instant case ?. Having regard to the history of the amendments their impact on the social and economic affairs of our country 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 considerable judicial restraint is called for. We, therefore, declare that our decision will not 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 no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights. In this case we do not 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 not arise for consideration 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 constitution otherwise than by taking away or abridging the fundamental rights. We will not 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 articles 31A, 31B and the 9th Schedule. 815 The aforesaid discussion leads to the following results (1) The power of the Parliament to amend the Constitution is derived from articles 245, 246 and 248 of the Constitution and not from article 368 thereof which only deals with procedure. Amendment is a legislative process. (2) Amendment is 'law ' within the meaning of article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. (3) 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. (4) 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 continue to be valid. (5) We declare that the Parliament will have no power 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. (6) 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 articles 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 could not be amended it would lead to revolution. We have not 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 could be done and we also think that the directive prin 816 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 control of fundamental rights is not final, but justiciable. If not so, the whole scheme of the Constitution will break. What we can I not understand is how the enforcement of the provisions of the Constitution can bring about a revolution. History shows that revolutions are brought about not by the majorities but by the minorities and some time by military coups. The existence of an all comprehensive amending power cannot prevent revolutions, if there is chaos in the country brought about by mis rule or abuse of power. On the other hand, such a restrictive power gives stability to the country 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 not eternal. There is nothing to choose between destruction by amendment or by revolution, the former is brought about by totalitarian rule, which cannot brook constitutional checks and the other by the discontentment brought about by mis rule. If either happens, the constitution will be a scrap of paper. Such considerations are out of place in construing the provisions of the Constitution by a court of law. Nor are we impressed by the argument that if the, power of amendment is 'not all comprehensive there will be no way to change the structure of our Constitution or abridge the fundamental rights even if the whole country demands for such a change. Firstly, this visualizes an extremely unforeseeable and extravagant demand; but even if such a contingency 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 not express our final opinion on this important question. A final appeal is made to us that we shall not take a different view as the decision in Sankari Prasad 's 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 constitutional field to correct itself as early as possible, for otherwise the future progress of the country and the happiness of the people will be at stake. As we are convinced that the decision in Sankari Prasad 's 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) ; , 105 817 be the scope for erosion of fundamental rights. As it contains the seeds of destruction of the cherished rights of the people the sooner it is over ruled the better for the country. 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 vs, The Corporation of Calcutta(1). "The third contention need not detain us ] 'or it has been rejected by this Court in The Bengal Immunity Company Limited vs The State of Bihar(2) . There a Bench of 7 Judges unanimously held that there was nothing 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 construction accepted by this Court is in consistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule. In constitutional 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 continuity and consistency are conducive 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 construction is inconsistent with our republican polity and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision." In the result the petitions are dismissed, but in the circumstances without costs. Wanchoo, J. This Special Bench of eleven Judges of this Court has been constituted to consider the correctness of the decision of this Court in Sri Sankari Prasad Singh Deo vs Union of India(,,) which was accepted as correct by the majority in Sajjan Singh vs State of Rajasthan (4) . The reference has been made in three petitions challenging the constitutionality 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 contained 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 not necessary to set out the facts in (1) ; ,176 (2) [1955] 2S.C.R.603. (3) ; (4) [1965] 1.C.S.R. 933. 818 the three petitions for present purposes. The main argument in all the three petitions has been as to the scope and effect of article 368 of the Constitution and the power conferred thereby to amend the Constitution. Before we come to the specific I points raised in the present petitions, we may indicate the circumstances in which Sankari Prasad 's case(1) as well as Sajjan Singh 's 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 compulsory acquisition of property. By clause (1) it provided that "no person 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 compensation therefor and either fix the amount of compensation or specify the principles on which, and the manner in which the compensation was to be determined and paid. Clause(4) made a special provision to the effect that if any Bill pending at the commencement of the Constitution in the Legislature of a State had, after it had been passed by such Legis lature, been reserved for the consideration of the President and had received his assent, then such law would not be called in question though it contravened the provisions of cl. (2) relating to compensation. Clause (6) provided that any law of the State enacted not more than eighteen months before the Constitution might be submitted to the President for his certification, and if so certified, it could not be called in question on the ground that it contravened the provision of cl. (2) of article 31 relating to compensation. These two clauses of article 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 article 31. It was however challenged before the Patna High Court and was struck down by that court 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 Prasad 's case(1). The First Amendment contained 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 articles 15 (1) ; (2) ; 819 and 19 and in addition, provided for insertion of two Articles, numbered 31 A and 31 Bin Part III Article 31 A provided that no law 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 conferred by any provision in part Ill. 'The word "estate" was also defined for the purpose of article 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 contained 13 Acts, all relating to estates , passed by various legislatures of the Provinces or States. It laid down that those Acts and Regulations would not 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 conferred by any provision of Part III. It further provided that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, all such Acts and Regulations subject to the power of any competent legislature to repeal or amend them, continue in force. This amendment, and in particular articles 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 Prasad 's 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 article 368 were liable to be tested under article 13(2); secondly that in any case as articles 31 A and 31 B insert the Constitution by the First. Amendment affected the power of the High Court under article 226 1 and of this Court under Articles 132 and 136; the amendment required ratification under the proviso to article 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 could not therefore be passed by Parliament. This Court rejected all the three contentions. It held that although ."law" would ordinarily include constitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and constitutional law made in the exercise of constituent power, and in the context of article 13, "law" must be taken to mean rules or regulations made. in exercise of ordinary legislative power and not amendments to, the Constitution made in the exercise of constituent power; in consequence article 13(2) did not affect amendments made under article 3 68. It further held that articles 3 1 A and 31 B did not curtail the power of the High Court under article 226 or of this court under articles 132 and 136 and did not require ratification under the (1) ; 820 proviso contained in article 368. Finally, it was held that articles 31. A and 31 B were essentially amendments to the Constitution and Parliament as such had the power to enact such amendments. In consequence, the First Amendment to the Constitution was upheld as valid. After this decision, there followed sixteen more amendment .to the Constitution till we come to the Seventeenth Amendment, which was passed on June 20, 1964. There does not 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,, contained 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 contained 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 not estates within the meaning of article 31 A and therefore acquisition of reyotwari land was not protected under article 31 A of the Constitution : [see Karimbil Kunhikoman vs State of Kerala(1)]. This decision was followed by the Seventeenth Amendment on June 20, 1964. By this amendment, changes were made in article 31 A of the Constitution and 44 Acts were included in the Ninth Schedule to give them complete protection from attack under any provision of Part III of the Constitution. Practically all these Acts related to land tenures and were concerned with agrarian reforms. This amendment was challenged before this 'Court in Sajjan Singh 's case(2). The points then urged were that as article 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to article 368 and that the decision in Sankari Prasads case(3) which had negatived this contention required re consideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and Parliament bad no right 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 correctness of the decision in Sankari Prasad 's case(,,). It further held unanimously that the Seventeenth Amendment did not require ratification under the proviso to article 368 because of its indirect effect on article 226, and that Parliament in enacting the Amendment was not legislating with respect to land and that it was open to Parliament to validate legislation which had been invalid by courts. Finally this Court held by majority (1) [1962] Supp. 1 S.C.R. 829. (2) ; (3) ; 821 that the power conferred by article 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 could not be controlled by the literal dictionary meaning of the word "amend" and that the word "law" in article 13 (2) did not include an amendment of the Constitution made in pursuance of article 368. The minority however doubted the correctness of the view taken in Sankari Prasads case(1) to the effect that the word 'law" in article 13 (2) did not include amendment to the Constitution made under article 368 and therefore doubted the competence 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 could be regarded merely as an amendment or would, in effect, be re writing a part of the Constitution, and if so, whether it could ' be done under article 368. It was because of this doubt thrown on the correctness of the view taken in Sankari Prasad 's case(1) that the present reference has been made to this Special Bench. As the question referred to this Bench is of great constitutional importance and affected legislation passed by various States, notice 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 now. be briefly summarised. It is urged that article 368 when it provides for the amendment of the Constitution merely ' contains the procedure for doing so and that the power to make amendment has to be found. in article 248 read with item 97 of List 1. It is further urged that the word "amendment" in article 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 not authorise Parliament to make any addition to, alteration of or deletion of any ,provision of the Constitution, including the provision contained in Part III. So article 368 authorises only those amendments which have the effect of improving the Constitution. Then it is urged that amendment permissible under article 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, control by the judiciary and so on, and it is. said that an amendment under article 3 69 is subject to the implied limi (1) (1952] S.C.R. 89. L3Sup. CI/67 7 822 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 article 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 article 13(2) includes a constitutional amendment, no amendment can be made in Part HI under article 368 which would actually take away or abridge the rights guaranteed under that Part. In effect, it is said that even if there are no implied limitations to amend the Constitution under article 368, article 13(2) is an express limitation insofar as the power to amend Part III is concerned and by virtue of article 13(2) the rights guaranteed under Part III cannot be taken away or abridged under article 368, though it is conceded that Part III may be amended by way of enlarging the rights contained therein. Another line of argument is that in any case it was necessary to take action under the proviso to article 368 and as that was not done the Seventeenth Amendment is not valid. It is urged that article 2,26 is seriously affected by the provisions contained in the Seventeenth Amendment and that amounts to an amendment of Aft. 226 and in consequence action under the proviso was necessary. It is also urged that article 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 not competent 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. competence of State Legislatures and that is another reason why the addition to the Ninth Schedule read with article 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 confer full to amend each and every part of the Constitution as has been held in Sankari Prasad 's 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 article 368 in such a way that Parliament may not be able to do all these things. In effect this argument of fear has been put forward to reinforce the contention that this Court should (1)[1952] S.C.R. 89. 823 hold that there are some implied limitations on the amending power and these implied limitations should be that there is no power 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 now be summarised. It is urged that article 368 not only provides procedure or amendment but also contains in it the power to amend the Constitution. It is further urged that the word "amendment" in law does not 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 article 368 does not 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 not 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 co repeal being not possible, the power of amendment contained in article 368 is unfettered. It is further urged that there can be no implied 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 conceded that there may be an express limitation not 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 no implied limitations ,on the power to amend the Constitution contained in article 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 contain the, power to abrogate and repeal the entire Constitution and substitute it with a new one. It is then urged that there is no express provision in Art.368 itself so far as any amendment relating to the substance of the amending power is concerned , die only limitations in Art, 368 are as to procedure and courts can only see that the procedure as indicated in article 368 is followed before an amendment can be said to be valid. It is further urged that the word "law", in article 13 does not include an amendment of the Constitution and only 824 moans law as made. under the legislative provisions contained 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 article 13(2) and not an amendment to the Constitution under article 368. As to Articles 226 and 245 and the necessity of taking action under the proviso to article 368, it is urged that there is no change in articles 226 and 245on account of any provision in the Seventeenth Amendment and therefore no action under the proviso was necessary. it is only direct change in articles 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 compelling change in Arts 226 and 245 and that in the present case no such direct compulsion 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 article 368 provides for a comparatively flexible provision for amendment and there is ' no reason to make it rigid by implying any limitations on that power. Further there Is no reason to suppose that all those things will be done by Parliament which are being urged to deny the power under article 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 Prasad 's 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 Prasad 's 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 not now 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 Prasad 's case(1) which had stood practically unchallenged for about '15 'years till the decision in Sajjan Singh 's case(2), should not be over ruled unless it is found to be incorrect by a large majority of the Judges constituting this Special Bench. It is urged that if the present Bench is more or less evenly divided it should not over rule the unanimous decision in ' Sankari Prasad 's case(1) by a Majority of one. (1) (1952] S.C.R. 89. (2) ; 825 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 not disputed that the procedure for amendment of the Constitution is to be found in article 368, but what is in dispute is whether article 368 confers 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 not 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, article 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 article 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 not 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 no express provision in terms in article 368 conferring power on Parliament to amend the Constitution, and in this connection our attention has been invited to an analogous provision in the Constitution of Ireland in article 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 constitutions, but it is unnecessary to refer to them. It is urged that as article 368 has nothing comparable to cl. I of article 46 of the Irish Constitution, the power to amend the Constitution is not in. article 3 68 and must .be. found elsewhere. We are not prepared to accept this argument. The fact that article 368 is not 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 not mean that the power to amend the Cons titution is not contained in article 368 itself. The very fact that a 826 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 article 368. Besides, the words "the Constitution shall stands amended in accordance 'with the terms of the Bill" in article 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 article 368 in the terms in which it appears and that is why it is not in two parts on the model of Art.46 of the Irish Constitution. But there can in our opinion. be not doubt, when a separate Part was provided headed "Amendment of the Constitution" that the power to amend the Constitution must also be contained in article 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 not to be found in article 368 but is contained in the residuary power of Parliament in article 48 read with item 97 of List 1. It is true that article 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 contained 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 not be found in that Part, if it can be reasonably found there and why article 368 should only be confined to providing for procedure for amendment. It is true that the marginal note to article 368 is "procedure for amendment of the Constitution", but. the marginal note cannot control the meaning of the words in the Article itself, and we have no doubt that the words "the Constitution shall stand amended in accord the power of amendment. If we were to compare the language of cls. 2 to 5of article 46 of the Irish Constitution which prescribes the procedure for amendment, we find no words therein comparable to these words in article 368. These words clearly are com parable to cl. I of article 46 of the Irish Constitution and must be rod as conferring power on Parliament to amend the Constitution. Besides it is remarkable in contrast that article 248 read with List I does not in terms mention the amendment of the Constitution. while therefore there is a whole Part devoted to the amendment of the Constitution, we do not find any specific mention of the 827 amendment of the Constitution in article 248 or in any entry of List 1. It would in the circumstances be more appropriate to read in power in article 3 68 in view of the, words which we have already referred to than in article 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 not 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 not therefore mean that it includes the power to amend the Cons titution. On a comparison of the scheme, of the words in Art 368 and the scheme of the words in article 248 read with item 97 of List 1, therefore, there is no doubt in our mind that both the procedure and power to amend the Constitution are to be found in article 368 and they are not to be found in article 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 article 248 read with item 97 of List 1. The Constitution is the fundamental law and no law passed under mere legislative power conferred 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 contained in the Constitution as all legislative acts passed under the power conferred by the Constitution must conform to the Constitution can make no change 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 concerned they can be amended by Parliament by. ordinary law making process. But so far as the other Articles are concerned they can only be amended by amendment of 'the Constitution under article 368. Now article 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 article 246 read with List I or under article 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 contained in article 248 828 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 article 368 which provides a special procedure for amendment of the Constitution should be read along with articles 245 248, and so read it would be open to amend any provision of the Constitution by law passed under article 248 on the ground that article 248 is subject to article 368 and therefore the two together give power to Parliament to pass a law under article 248 which will amend even those provisions of the Constitution which are not 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 contained therein, for legislation so passed must conform to the fundamental law, we fail to see how a law, passed under the residuary power which is nothing, more than legislative power conferred on parliament under the Constitution, can change the Constitution (namely, the fundamental law) Itself. We,may in this connection refer to the following passage in The Law.and the Constitution by W. Ivor Jennings (1933 Ed.) at p. 51 onwards : "A written constitution is thus the fundamental law of a country, 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 it. .Whatever the nature of the written constitution it is clear that there "is a fundamental distinction between constitutional law and the rest of the law. . There is a clear separation, therefore, between the constitutional 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 not 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 conform to the fundamental law (i.e. the Constitution). If the power to amend the Constitution is to be found in article 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 article 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 829 Constitution is comprised in article 248, that would mean that no amendment ,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 article 245 read with article 248 is itself subject to the Constitution. Therefore reading article 368 and considering the scheme of the legislative powers conferred 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 article 368 itself, and secondly, that the power to amend the Constitution can never reside in article 245 and article 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 contained in certain Articles thereof for amendment by law . We may in this connection add that all this argument that power to amend the Constitution is to be found in article 245 and article 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 contained in article 368 is more or less assimilated to the procedure for making ordinary laws under the Constitution. The argument is that constitutional 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 article 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 constitutional law and the rest of the law and that must never be forgotten. An amendment to the Constitution is a constitutional law and as observed in Sankari Prasad 's case(1) is in exercise of constituent 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 connection refer, for example, to article V of other U.S. Constitution, which provides for the, amendment thereof. It will be clearly seen that the power contained in article V of the U.S. Constitution is not ordinary legislative power and no one can possibly call it ordinary legislative power, because the procedure provided for the amendment of the Constitution in article V differs radically from the procedure provided for ordinary legislation, for example, the President 's assent is not required constitutional amendment under article V of the U.S. Constitution,; Now if article 368 also had made a similar departure from the procedure provided for ordinary legislation, it could never have (1) [1952 ] 1 section C. R. 89 830 said that article 368 merely contained 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 article 368 had not 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 not less than one half of the States where so required , it could never have been argued that the power to amend the Constitution was contained in article 245 and 248 read with item 97 of List I and article 368 merely con tained the procedure. We are however of opinion that we should look at the quality and nature of what is done under article 368 and not lay so much stress on the similarity of the procedure contained in article 368 with the procedure for ordinary lawmaking. If we thus look at the quality and nature of what is done under article 368, we find that it is the exercise of constituent 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 conformity 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 article 368, we immediately See that what emerges after the procedure in article 368 is gone through is not ordinary law which emerges after the legislative procedure contained in the Constitution is gone through. Thus article 368 provides for the coming 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 article 368 is gone through is not ordinary legislation but an amendment of the Constitution which becoming a part of the fundamental law itself, by virtue of the words contained in article 368 to the effect that the Constitution shall stand amended in accordance with the terms of the 'Bill. It is urged in this connection 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 article III of the Constitution, for the words "that he withholds assent therefrom" found in article III are not to be found in article 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 831 that upon such assent by the President, the Constitution shall, stand amended. That in our opinion postulates that if assent is not 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 article 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 no specific provision for anything further to be done,: about the Bill in article 368 as there is in article III. We may in this. connection refer to the different language used in cl. 5 of article 46 of the Irish Constitution which says that "a Bill containing 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 complied with, in respect thereof '. It will be seen therefore that if the intention kinder article 368 had been that the President cannot withhold his assent, we would have found language similar in terms to that in cl. 5 of article 46 of the Irish Constitution. We thus see that in one respect at any rate article 368 even on its present terms differs from the power of the President in connection 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 article 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 concerned we must look to article 368 only and nothing else. In any case the mere fact that the procedure in article 368 is very much assimilated. to the procedure for passing ordinary legislation is no reason for, holding that what emerges after the procedure under article 368 is followed is ordinary law and no more. We repeat that we must look at the quality and nature of what is done under article 368, and that is, the amendment of the Constitution. If we look at that we must bold that what emerges is not ordinary law passed under the Constitution but something which has the effect of amending the fundamental law itself which could not 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 article 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 note in this connection that the, word "law" which has been used in so many Articles of 'the Consti 832 tution has been avoided apparently with great care in article 368. We again refer to the concluding 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 article stand amended in ac it is well known that as the Bill is passed by of the President it becomes an Act. But article 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 article, 368 is followed and what happens when ordinary law making procedure is followed. Under article 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 article 111 does not 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 not declared by article I I I to be a law, for such law is open to challenge in courts on various ,grounds, namely, on the ground that it violates any fundamental rights, or on the ground that Parliament was not competent 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 courts can see is whether the procedure provided in article 368 has been followed, for if that is not 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 no question 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 no doubt 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 contained in article 368 is still not ordinary legislative power but constituent 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 article 368 has been followed and what thus emerges is not ordinary legislation but fundamental law which cannot be tested,. for example, under article 13(2) of the Constitution or under any other provision of the Constitution. 833 We may briefly refer to an argument on behalf of the Union of India that the amending power contained in article 368 is same sovereign power which was possessed by the Constituent Assembly when it made the Constitution and therefore it is not subject to any fetters of any kind. We do not 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 article 368 clearly confer 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 not. Further as we have already stated, the power conferred under article 368 is constituent power to change the fundamental law i.e. the Constitution, and is distinct and different from the ordinary legislative power conferred on Parliament by various other provisions in the Constitution. So long as this distinction is kept in mind Parliament would have the power under article 368 to amend the Constitution and what Parliament does under article 368 is not ordinary law making which is subject to article 13 (2) or any other Article of the Constitution. What is the extent of the power conferred on Parliament and whether there are any limitations on it express or implied will be considered by us presently. But we have no doubt, without entering into the question of sovereignty and of whether article 368 confers the same sovereign power on Parliament as the Constituent Assembly had when framing the Constitution, that article 368 does confer 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 conferred, for amendment under article 368. It is urged that article 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 connection 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 not 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 Singh 's case(1) the word "amend" or "amendment" ' is well under (1) ; 834 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 no reason to suppose that when the word. "amendment" of the Constitution was being used in article 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 consider an improvement may not be so considered by others. It is therefore in our opinion impossible to introduce in the concept of amendment as used in article 368 any idea of improvement as to details of the Constitution. The word "amendment" used in article 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 connection reference has been made to contrast 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 no such words appear in article make any difference, for the meaning of the word why this was done. But the 368 does not 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 not in our opinion make any difference. The question whether the power of amendment given by article 368 also 'includes the power to abrogate the Constitution completely and to replace it by an entire new Constitution, does not really arise in the present case, for the Seventeenth Amendment has not done any such thing and need not be considered. It is enough to say that it may be open to doubt whether the power of amendment contained in article 568 goes to the extent of completely 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 conferred on Parliament to amend the Constitution by article 368. The next question that arises is whether there is any limi tation on the power of amendment as explained by us above. 835 Limitations may be of two kinds, namely, express or implied. So far as express limitations are concerned, there are none such in ' article 368. When it speaks of the "amendment of this Constitution it obviously and clearly refers to amendment of any provision thereof, including the provisions contained in Part III relating to fundamental rights. Whether article 13(2) is an express limitation on the power of amendment will be considered by us law, but so far as, article 368 is concerned there are no limitation 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 article 368. The next question is whether there are any implied limita tions on the power of amendment contained in article 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 contained in article 5 68 so far as these basic features are concerned. We may in this connection 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 contained in article 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 contained in article 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 no implied limitations on the scope of the amending power in article V of the U.S. Constitution. Willis on the Constitutional Law of the United States of America (1936 Edition says that probably the correct position is that the amending power embraces everything; in other words there are no legal limitations whatever on the power of amendment, except what is expressly provided, in article 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 no decision of the Supreme Court of the United States holding that there are implied limitations on the power of amendment contained in article 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. 836 We have given careful consideration to the argument that certain basic features of our Constitution cannot be amended under article 368 and have come to, the conclusion that no limitations can be and should be implied upon the power of amendment under article 368. reason for coming to this conclusion is that if we were to accept that certain basic features of the Constitution cannot be amended under article 368, it will lead to the position that any amendment made to any Article of the Constitution would be liable to challenge before courts 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 complete catalogue of basic features of the Constitution is available, it would be impossible to make any amendment under article 368 with any certainty that it would be upheld by courts. If such an implied limitation were to be put on the power of amendment contained in article 368, it would only be the courts 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 not on the ground that it amends a particular basic feature or not. 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 constituent 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 article 368. If, for example, the Constitution makers intended certain provisions in the Constitution, and Part III in particular, to be not amendable, we can see no reason why it was not so stated in article 368. On the clear words of article 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 conclusion is that constituent power, like that contained,in article 368, can only be subject to express limitations and not to any implied limitations so,far as substance of the amendments are concerned and in the absence of anything in article 368 making any provision of the Constitution unamendable, it Must be held that the power to. amend in article .3 68 reaches every provision of the Constitution and can be used to amend any provision thereof provided the procedure indicated, in article 368 is followed. Copious references were made during the course of arguments to debates in Parliament and it is urged that it is open to this 837 Court to look into the debates in order to interpret article 368 to find out the intention of the Constitution makers. We are of opinion that we cannot and should not look into the debates that took place in the Constituent Assembly to determine the interpretation of article 368 and the scope and extent of the provision contained therein. It may be conceded 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 article 368. But we have no doubt that what was spoken in the debates in the Constituent Assembly cannot and should not be looked into in order to interpret article 368. Craies on Statute Law (Sixth Edition) at p. 128 says that "it is not 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 consideration", 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 not be had to debates to ascertain legislative Intent though historical background in which the legislation came to be passed, can be taken into consideration . In Administrator General of Bengal vs Prem Lai Mullick(1), the Privy Council held that "proceedings of the legislature cannot be referred to as legitimate aids to the construction of the Act in which they result. " In Baxter vs Commissioner of Taxation(2), it was said that reference to historical facts can be made in order to interpret a statute. There was however no reference to the debates in order to arrive at the meaning of a particular provision of the Constitution there in dispute. In A. K. Gopalan vs 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 article 21 observed at p. I 10 that they might not be read to control 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 not accepted for the purpose of article 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 article 21. Fazl Ali, J. (at p. 158) was of opinion that the pro (1) (2) ; (3) ; Sup. CI/67 8 838 ceedings and discuss ions In Constituent Assembly were not relevant for the purpose of construing the expressions used in article 2 1. Again in The Automobile Transport (Rajasthan) Limited vs 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 not 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 not. As to this historical facts. namely, what was accepted or what was avoided in the Constituent Assembly in connection with article 368, it is enough to say that we have not been able to find any help from the material relating to this. There were proposals for restricting the power of amendment under article 368 and making fundamental rights immune from and there were counter 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 no help in determining the interpretation of article 368 which must be interpreted on the words thereof as they finally found place in the Constitution, and on those words we have no doubt that there are no implied 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 correct to describe the preamble as a key to the mind of the Constitution makers, it form no part of the Constitution and cannot be regarded as the source of any substantive power which the body of the Constitution alone can confer on the Government , expressly or by implication. This is equally true to prohibitions and limitations". The Court there was considering whether the preamble could in any way limit the power of Parliament to cede any part of the national teritory and held that it was not correct 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 control in any way or impose any implied prohibitions or limitations oft Me power to amend the Constitution contained in article 368. (1) [1963] 1 S.C.R. 491. (2) 839 This brings us to the question whether the word "law" in article 13 (2) includes an amendment of the Constitution, and therefore there is an express provision in article 1 3 (2) which at least limits the power of amendment under article 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 Prasad 's case(1) as well as Sajjan Singh 's case(1) it has already been held, in one case unanimously and in the other by majority, that the word "law" in article 13(2) does not include an amendment of the Constitution, and it is the correctness 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 commencement 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 constitutional,provisions were repealed by article 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 not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed." ' Thus it is clear that the word "law" in article 13(1) does not include any law in the nature of a constitutional provision, for no such law remained after the repeal 'in article 395. Then comes the second part of article 13, which says that State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void". The third part defines the word "law" for the purpose of article 13; the definition is inclusive and not exhaustive. It is because of the definition in cl. (3 ) of article 13 being inclusive that it is urged that the word "law" in article 13 (2) includes an amendment of the Constitution also. Now we see no reason why if the word "law" in article 13(1) relating to past laws does not include any constitutional provision the word "law" in cl. (2) would take in an amendment of the Constitution, for it would be reasonable to the word "law" 'in article 13(2) includes an amendment of the 13. But apart from this consideration, we are of opinion that the word "law" in Art 13(2) could never have been intended to take in an amendment of the Constitution. What article 13(2) means is that a law made under the constitutional provisions would, be tested on the anvil of Part III and if it takes away or abridges rights conferred by Part III it would be void to the extent of the contraventions. 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) ; (2) ; 840 prohibits the State from making any law under these provisions. We see no difficulty in the circumstances in holding that article 13 (2) when it talks of the State making any law, refers to the law made under the provisions contained in Ch. I of Part XI of the Constitution beginning with article 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 not 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 conferred on Parliament or on State legislatures under the Constitution. Therefore when in article 13( ) it is said that the State shall not make any law (State there including Parliament and legislature of each State), its meaning could only take in laws made by Parliament and State legislatures under the powers conferred 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 article 368 along with the procedure and that such power is not to be found in article 248 read item 97 of List I. Therefore an amendment of the Constitution is not an ordinary law made under the powers conferred under Chapter I of Part XI of the Constitution and cannot be subject to article 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 concerned it is ordi nary legislative power and it will certainly be subject to article 13 (2). But there can in our opinion be no doubt that when article 13(2) prohibits the State from making any law which takes away or abridges rights conferred by Part III, it is only referring to ordinary legislative power conferred on Parliament and legislatures of States and cannot halve any reference to the constituent power for amendment of the Constitution contained in article 368. We have already pointed out that there are no implied limitative on the power to amend under article 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 841 amendment of the Constitution. If it was their intention that Part III of the Constitution will not be liable to amendment by way of abridgement or abrogation under the amending power contained in article 368 we see no reason why an express provision to that effect was not made in article 368. We cannot see what prevented the Constituent Assembly from making that clear by an express provision in article 368. It is however said that it was not necessary to say so in article 368, because the provision was already made in article 13(2). We are unable to accept this contention, for we have no doubt that article 13(2), when it refers to making of laws is only referring to the ordinary legislative power and not to the constituent power which results in amendment of the Con stitution. In any case it seems to us somewhat contradictory that in article 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 article 13(2). It is remarkable that in article 13(2) there is no express provision that amendment of the Constitution, under article 368, would be subject thereto. It seems strange indeed that no express provision was made in Part XX in this matter and even in article 13(2) no express 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 article 368 the word "law", which we find so often used in so many Articles of the Constitution is conspicuously 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 article 368 is very significant and clearly makes a distinction between a constitutional 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 not at the stage while it is still a Bill. The provision in article 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 article 368 and not 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 not 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, article 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. 842 If We keep in mind this difference, between constitutional amendment or constitutional law and an ordinary amending Act or law, it should not 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 conferred by article 245 etc read with various Lists and various provisions of the Constitution where express provision to that effect has been made and is not referring to the amendment of the Constitution which is made under the 'constituent power. Once it is held that the power to amend is found in article 368 and is not to be found in article 248 read with item 97 of List I, it must follow that the power to amend the Constitution under article 368 is a different power (namely, constituent power) and when article 13 (2) speaks of making 'law, it can only refer to making ordinary law, particularly when we compare the words of article 13 (2) (namely, the State shall not make any law) and the words of articles 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 article 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 article 13(2), which would include constitutional law also. There is nothing to suggest this even in the inclusive definition of the words "law" and "laws in force" in article 13(3). Besides, it is conceded on behalf of the petitioners that article 368 gives power to amend Part 111, but that power is only to amend one way, namely, towards enlargement of the rights contained therein, and not the other way, namely, for, abridging or taking away the rights contained 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 article 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 article 368 clearly give the power to amend the Constitution and are subject to no implied limitations and contain no express limitations, it is strange indeed that it should have omitted to provide in that very Article that Part III is not liable to amendment thereunder. In any case if the power of amendment conferred by the words of article 368 is unfettered, we must avoid any inconsistency between that power and the provision contained in article 13 (2). We avoid that in keeping with the unfettered power in article 368 by reading the word "law" in article 13 (2) as meaning law passed under: ordinary legislative power and thus not including an amendment of the Constitution therein. The words in article II (2) are in our opinion not specific and clear ' enough to take in 843 the power of amendment under article 368 and must be confined only to the power of ordinary law making contained in articles 245 etc., and other provisions of the Constitution read with various Lists. We have therefore no hesitation in agreeing with the view taken in Sankari Prasad 's case(1) which was upheld by the majority in Sajjan Singh 's case(2). The next argument is that action under the proviso to article 368 is necessary as the Seventeenth Amendment affects the power of the High Court contained in article 226. It is said that by including various Acts in the Ninth Schedule and making them immune from challenge under the provisions contained in Part III, the power of the High Court under article 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 conferred by Part III. So it is said that there has been a change in article 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 Prasad 's case(1) and was turned down unanimously. The same argument was again raised in Sajjan Singh 's 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 article 226. The question therefore is whether the Seventeenth Amendment makes any change in article 226 and whether this change has to be a direct change in the words of article 226 or whether merely because there may be some effect by the Seventeenth Amendment on the, content of the power in article 226 it will amount to change in article 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 article 226, it means that there must be actual change in the terms of the provision concerned. If there is no actual change directly in the entrenched provision, no ratification 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 Singh 's 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 not be directly touched. Perhaps the use of the doctrine of pith and substance (1) ; (2) [1965] 1 S.C.P. 933. 844 in such a case is not quite apt. But what was meant in Sajjan Singh 's 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 conferred by Part III and for any other purpose. Now assume that Part III is completely deleted by amendment of the Constitution. If that takes place, it will necessitate an amendment of article 226 also and deletion therefrom of the words "for the enforcement of any of the rights conferred by Part III". We have no doubt that if such a contingency ever happens and Part III is completely deleted, Parliament will amend article 226 also and that will necessitate ratification under the proviso. But suppose Parliament merely deletes Part III and does not make the necessary consequential amendment in article 226, it can then be said that deletion of Part III necessitates change in article 226 also, and therefore in such a case ratification is necessary, even though Parliament may not 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 article 55 which provides for the manner of election. Article 52 which lays down that there shall be a President is on the other hand not an entrenched Article. It is said that article 52 may be altered and something else may be substituted in its place and that would not require ratification in terms as article 52 is not among the entrenched Articles. But we are of opinion that if Parliament amends article 52, it is bound to make consequential amendments in articles 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 article 52 and makes no change in articles 54 and 55 (a supposition which is impossible to visualise). In that case it would in our opinion be right to hold that article 52 could not be altered by abolition of the office of the President without necessi tating a change in articles 54 and 55 and in such a case if article 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 course of amending only the unentrenched Article and not amending the entrenched Article, courts can say that ratifi (1) ; 845 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 not necessary that there should be ratification in such circumstances also. Besides, let us consider 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 article 226 itself. It gives power to the High Court not 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 conferred by ordinary laws as well as under other provisions of the Constitution, like articles 301 and 311. On this argument if any change is made in articles 301 and 311 there is bound to be an effect on article 216 and therefore ratification would be necessary, even though both articles 301 and 311 are not entrenched in the proviso. Further, take an ordinary law which confers 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 article 226 while after the amendment the rights having disappeared there can be no enforcement thereof. Therefore, on this argument even if there is amendment of ordinary law there would be an effect on article 226 and it must therefore be amended every time even when ordinary law is changed and the entire procedure under article 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 no question of enforcement thereof; if that is correct with respect to ordinary law, it is in our opinion equally correct with respect to the amendment of an unentrenched provision of the Constitution. The answer given in Sankari Prasad 's case(1) to this argument was that article 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 courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion 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 article 226 it was not 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) ; 846 might be had for want of ratification, and this is what was intended by the majority judgment in Sajjan Singh 's case(1), when it applied the doctrine of pith and substance in these circumstances. The argument that ratification is necessary as article 226 is indirectly affected has therefore no force and must be rejected. This is equally true with respect to the power of this Court under articles 132 and 136. Then it is urged that article 245 is enlarged by the Seventeenth Amendment inasmuch as State legislatures and Parliament were freed from the control of Part III in the matter of certain laws affecting, for example. ryotwari lands, and therefore as article 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 article 226 and our answer is the same, namely, that there is no direct effect on article 245 by the amendment and the indirect effect, if. any, does not require that there should have been ratification in the present case. It is then urged that ratification is necessary as article 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 could not 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 competence. The answer to this argument was given in Sahkari Prasad 's 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 combined operation of article 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 covered by List II does not in any way affect the position. It was said that Parliament could not validate a law which it had no power 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 contravenes the Constitution, constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament." (1) ; (2) ; 847 We respectfully agree with these observations. They succinctly put the legal and constitutional position with respect to the 'validity of Arts, 3 1 A and 3 1 B. It seems to us that article 3 1 B in particular is a legislative drafting device which compendiously 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 article 3 1 B been excepted from the various provisions in Part ]III, which affected them and this exception could only be made by Parliament. The infirmity in the Arts put in the Ninth Schedule was apprehended to be a constitutional infirmity on the ground that those laws might take away or abridge rights conferred by Part HI. Such a constitutional infirmity could not be cured by State legislatures in any way and could only be cured by Parliament by constitutional amendment. What Parliament in fact did by including various Acts in the Ninth Schedule read with article 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 could only be done by Parliament under the constituent power it had under article 368 and there was no question 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 constitutional infirmity, if any, which was being cured by the device adopted in article 3 1 B read with the Ninth Schedule, the amendment 'being only of the relevant provisions of Part III which was compendiously put in one place in article 3 1 B. Parliament could alone do it under article 368 and there was no necessity for any ratification under the proviso, for amendment of Part III is not entrenched in the proviso. Nor is there any force in the argument that Parliament could ' not validate those laws by curing the constitutional 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 constitutional ' infirmity, if any, in these laws in relation to Part III. That could only be done by Parliament and in so doing Parliament was not 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 constitutional infirmity in the laws by including them in the Ninth Schedule read with article 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 848 exclusive legislative power of State legislature, Parliament could not cure the constitutional infirmity, if any, in these laws by putting them in the Ninth Schedule. We now come to what may be called the argument of fear. It is urged that if article 368 confers complete power to amend each and every provision of the Constitution as we have held that it does frightful consequences 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 contained in article 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 article 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 conferred by article 368, all that need be said in reply is that mere possibility of abuse cannot result in courts withholding the power if the Constitution grants it. It is well settled so far as ordinary laws are concerned that mere possibility of abuse will not induce courts to hold that the power is not there, if the law is valid and its terms clearly confer 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 no reason 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, no power whatever can ever be conferred on any authority, be it "executive, legislative or even judicial. Therefore, the so called fear of frightful consequences, 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 no ground for withholding the power, for we have no reason to suppose that Parliament on whom such power is ,conferred will abuse it. Further even if it abuses the power of constitutional amendment under article 368 the check in such circumstances is not in courts but is in the people who elect members of Parliament. The argument for giving a limited 849 meaning to article 368 because of possibility of abuse must therefore be rejected. The other aspect of this argument of fear is that we should not 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 country 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 not 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. section Constitution even more rigid ' than it is; that howsoever rigid the Constitution may be its rigidity will not 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 not stop the frightfulness which is conjured 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 article 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 not want to make an amendment of the Constitution too easy. They preferred an intermediate course which would make,the Constitution flexible and would still not allow it to be amended too easily. That is why article 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 850 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 constitution 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 construction,and on the terms of article 368 in particular. If on those terms it is clear we think it is that power to amend is subject to no limitations except those to be expressly found in the Constitution, courts must give effect to that. The fact that 'm the last sixteen years a large number of amendments could 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 command the special majorities which are required under article 368, not 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 course of the last sixteen years. But that in our opinion is no ground for limiting the clear words of article 368. The power of amendment contained 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 not 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 article 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 not necessary to go to this extent, for that would be entering into the field of politics. As we see the terms of article 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 article 368 is in 851 consonance 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 Prasad 's case( ) in 1951. That case practically stood unchallenged till Sajjan Singh 's case(2) in 1964 after the Seventeenth Amendment was passed. Thus in the course 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 articles 31 A and 31 B were introduced in the Constitution. It is said that though Sankari Prasad 's 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 not 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 country after the First Amendment by State laws passed on the faith of the decision of this Court in Sankari Prasad 's case(1). This agrarian revolution has led to millions of acres of land having changed hands and millions of now titles having been created. So it is urged that the un animous decision in Sankari Prasad 's case(2), which was challenged when the Seventeenth Amendment was passed and was upheld by majority in Sajjan Singh 's case(2) should not now be disturbed as its disturbance would create chaos in the country, particularly in the agrarian sector which constitutes the vast majority of the population in this country. We are of opinion that there is force in this argument . Though the period for which Sankari Prasad 's case(1) has stood unchallenged is not long, the effects which have followed in, the passing of State laws on the faith of that decision ', are so overwhelming that we should not disturb the decision in that case. It is not 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 course of the last fifteen years after the decision in Samkari Prasad 's case(1) have brought about an agrarian revolution. Agricultural population constitutes a vast majority of the population in this country. In these circumstances it would in our opinion be wrong to hold now that (1) ; (2) ; 852 Sankari Prasad 's case (1) was not correctly decided and thus disturb all that has been done during the last fifteen years and create chaos into the lives of millions. of our countrymen 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 Prasad 's case (1) was in fact rightly decided, we would not interfere with that decision now. But it is urged that instead of following the principle of stare decisis which would make die decision in Sankari Prasad 's case(1) good for all times. , we should follow the doctrine of prospective over ruling, which has been evolved by some United States courts so that everything that has been done up to now, including the Seventeenth Amendment would be held good but in future it would not be open to Parliament to amend Part III by taking away or abridging any of the rights conferred 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 not prepared to accept the doctrine of prospective over ruling. We do not know whether this doctrine which it is urged should be applied to constitutional 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 country the well known doctrine that courts declare law and that a declaration made by a court 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 article 13(2) it would be impossible to apply the doctrine of prospective over ruling in our country, 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 contravention. It has been held by this Court in Deep Chand vs 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 contained in article 13(2) went to the root of the State power of legislation and any law made in contravention of that provision was void ab initio. This case has been followed in Mahendra Lal Jaini vs The State of Uttar Pradesh(3). In the face of these (1) ; (2) [1959] Supp. 2 S.C.R. 8. (3) [1963] Supp. 1. S.C.R. 912. 853 decisions it is impossible to apply the principle of prospective over ruling in this country so far as ordinary laws are concerned. Further, if the word "law" in article 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 contained in Part III. In these circumstances, it would be impossible to apply the principle of prospective over ruling to constitutional amendments also. On the other hand, if the word "law" in article 13(2) does not include an amendment of the Constitution, then there is no necessity 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 article 368 would not be liable to be tested under article 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 Prasad 's case (1) for this reason also. Lastly we would refer to the following observations in Sajjan Singh 's case(2) (at pp. 947 48) with respect to over ruling earlier judgments of this Court and specially those which are unanimious like Sankari Prasad 's case(1): "It is true that the Constitution does not place any restriction on our powers to review our earlier decisions or even to depart from them and there can be no doubt that in matters relating to the decision of constitutional 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 normal principle that "judgments pronounced by this Court would be final, cannot be ignored and unless considerations of a substantial and compelling character make it necessary to. do so, we should be slow to doubt the correctness of previous decisions.or to depart from them. "It is universally recognised that in regard to a large number of constitutional problems which are brought before this Court for its decision, complex 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 not 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. p. CI/67 9 854 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 compelling character of the considerations urged in support of the contrary 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 vs 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 Singh 's case(2) and it was observed that if Sankari Prasad 's case(3) were to be overruled, "it would lead to the inevitable consequence 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 Prasad 's case(3) was declared, would also be exposed. to serious jeopardy. " The majority in that case therefore was not in favour of reviewing Sankari Prasad 's case(".) even so in View of the argument raised and the importance of the question it considered the arguments against that decision and came to the conclusion 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 Prasad 's case.(3) or any other unanimous decision by the slender majority of one in a larger Bench constituted for the purpose. We say this with great respect and would hold that apart 'from the principle of stare decisis we should not say that the (1) ; (2) ; (3) ; 855 unanimous judgment in Sankari Prasad 's case(,) was wrongly decided by such a slender majority in this Special Bench. We therefore hold that Sankari Prasad 's cases(1) was correctly decided and that the majority,in Sajjan Singh 's case(2) WAS Correct in following that decision. We would follow the decision in Sankari Prasad 's case(1) even now as in our opinion it was correctly 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 no order as to costs. 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 constitutional amendment is also questioned. Therefore, a much larger field must be traversed because of the claim of the State that no part of the Constitution from the Preamble to the Ninth Schedule, is beyond the provision for amendment contained in article 368. The article, forms the Twentieth Part of the Constitution and is said to be a code 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 no limitations 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 no exception 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 not only 'must be valid but also beyond the Power of the courts to question. The petitioners, on the other hand, contend that this is to deny the real importance and inviolability of the Fundamental Rights which the Constitution itself, paramount even to article, 368 consideration. ' before we can Acts are valid or not. (1) ; (2) ; 856 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 vs 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 conferred by Part XX is constituent, paramount and sovereign and is, therefore, not subject to article 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 Prasad 's case(1) was the ministry ofof the argument in support of the validity of the new amendment. This time the Court was not unanimous although the Court as aas a whole did not 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 Prasad 's 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 not 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 Prasad 's case(1) to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States. No doubt article 19 by clauses numbered 2 to 6 allows a curtailment of rights in the public interest. Ibis shows that Part III is not 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 notwithstanding. Even the agrarian reforms could have been partly carried out without Article 31 A and 31 B but they would have cost 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) ; (2) ; 857 one thing and removing the rights from the Constitution or debilitating them by an amendment is quite another. This is the implication of Sankari Prasad 's case(1). It is true that such things would never be, but one is concerned 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 article 226 should be somewhat protected but not article 32 must give us pause. Article 32 does not erect a shield against private conduct but against state conduct including the legislatures (See article 12). Can the legislature take away this shield ? Perhaps by adopting a liberal construction of article 368 one can say that. But I am not inclined to play a grammarian 's role. As at present advised I can only say that the power to make amendments ought not ordinarily to be a means of escape from absolute constitutional 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 Prasad 's case(1). The arguments then were extremely brief. After hearing full arguments in this case, which have not added to the reasoning of the earlier cases, I am not satisfied that the reasons are cogent enough for me to accept them. I say it with respect that I felt then, as I do so even more strongly now, that in the two earlier cases, the result was reached by a mechanical juris prudence in which harmonious construction was taken to mean that unless article 368 itself made an exception the existence of any other provision indicative of an implied limitation on the amending power, could not be considered. This was really to refuse to consider any argument which did not square with the a priori view of the omnicompetence of article 368. Such reasoning appears to me to be a kind of doctrinaire conceptualism based on an and textual approach supplemented by one concept that an amendment of the Constitution is not an exercise of legislative (1) ; 858 power but of constituent Dower and, therefore, an amendment of the Constitution is not law at all as contemplated by article 13(2). I. am reminded of the. words of. Justice Holmes that "we ,must think things and not 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 combining them and not 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 no accession 'of strength to any provision by calling it a code. Portalis, the great. French Jurist .(who helped in the making of the Code Napole on) supplied the correct principle when he said that it is the context of the legal provisions which serves to illustrate the meaning. of the different parts, so that among them and between them there should be correspondence 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 article 13(2) which says, the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention of the clause shall, to the extent of the contravention, 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 not. 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. " 859 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 country. 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 competent 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. Besant 's Commonwealth of India Bill 1925 with its seven fundamental rights (the precursor of article 19), the Madras Congress Resolution of 1927 "a constitution 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 not permit their withdrawal in any circumstancees , the draft article in the Nehru Constitution "No person shall be deprived of his liberty, nor shall his dwelling or property be entered, requisitioned or confiscated 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 non ,justiciable rights, the Suggestion of the Cabinet Mission for the constitution 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 not of men and the Directive Principles are needed to lay down the objectives of a good Government. Our Constitution was not 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 860 nominal existence",(1) provision had to be made for guaranteeing them andto make them justiciable and enforceable. This result is reachedby means of articles 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 considered as comprehensively as is possible, offends the Fundamental Rights and article 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 not only any of the Fundamental Rights, but the whole Chapter giving them. And this is said to be possible because of article 368 and its general language which, it is claimed, makes no exception in its text and, therefore, no exception 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 article 13(2). Since the definition of the word 'law ', makes no exception a strenuous eeffort is made on the basis of argument and authority to establish that a constituent power does not 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 not valid in the eye of article 13(2). It is not essential,, of course, that a difference must always exist in the procedure for the exercise of constituent and ordinary, legislative power. One has not to go far to find the example of a country in which constitutional 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 not in reality exist; the Parliament is at once a legislative and a constituent assembly:"(2) of course, the dictum of de Tocqueville that the English Constitution "elle n 'existe point" (it does not exist) is far from accu (1)Dicey: "Law of the Constitution" 10th Edn. p. 207. (2)Introduction to the Study of the Law of the Constitution A.V. Dicey Tenth Edn p. 88 quoting from OEuvres completes (14th ed.,1864) (Democratie en Amerique), pp. 166, 167. 861 rate. There is a vast body of constitutional laws in England which is written and statutory but it is not 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 Majesty 's Declaration of Abdication Act (1936), the Regency Act (1937) and the various Acts setting up different ministries are examples of what will pass for constitutional law under our system(1). The Bill of Rights (1689) lays down the fundamental rule in England that taxation may not be levied without the consent of Parliament which in our Constitution has its counterpart in article 265. In our Constitution also the laws relating to delimitation of constituencies or allotment of seats to such constituencies made or purporting to be made under article 327 or article 328, by reason of the exclusion of the powers of the courts to question them, are rendered constitutional instruments. Other examples of constitutions which, in addition to constitution proper, contain certain ordinary legislation, having constitutional qualities, also exist. (2) What then is the real distinction between ordinary law and the law made in the exercise of constituent power? I would say under the scheme of our Constitution none at all. This distinction has been attempted to be worked out by several authors. It is not 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 no distinction because in Britain constitutional law is of both kinds and both parts coexist. 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 constitutional statutes. In our Constitution too, in spite of the claim that article 368 is a code (whatever is meant by the word ,code, here), articles 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 article 368 is a code arid also that any special method of amendment of the Constitution is fundamentally necessary. (1) The list is raken from K. C. Wheare 's: "The Statute of Westminster and Dominion Status" (4th Edn) p. 8. Dicey and others give different list. (2) 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 constitutional instruments. (3) Tagore Law Lectures (1924) p. 83. 862 The next test that the courts 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 not serve to distinguish it from the other laws of the land for purposes of article 13(2). Another difference is that in the written constitutions the form and power of Government alone are to be found and not rules of private law as is the case with ordinary laws. But this is also not 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, constitutional law in a sense is fundamental law, but if the legislative and constituent processes can become one, Ls there any reason why the result should be regarded as law in the one case and not in the other ? On the whole, therefore, as observed in the American Jurisprudence "It should be noticed however that a statute and a constitution, 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 not 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 not 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 concede that the reason for the amendment of the Constitution is a political matter although I do not go as far as some Justice of the Supreme court of the United States did in Coleman vs Miller(3) that the whole process is "political in its entirely from submission until an Amendment becomes part of the Constitution and is not subject to judicial guidance, control or interference at any point. " There are fundamental differences between our Con (1) American Jurispruence Vol. II Section 3. (2) Amendment is expressly called a legislative process in the Constitutions of Colombia:, Costa Rica, Hungary, Panama and Peru. In Portugal the ordinary legislatures enjoy constituent powers every 10 years. (3) 3)7 U.S. 443 ; 863 stitution and the Constitution of the United States of America. Indeed this: dictum of the four Justices based upon, the case of Luther vs Borden(1) has lost some of its force after Baker vs 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 not 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 constitutional law ordinarily limits Government but not the State because a constitutional law is the creation of the State for its own purpose. But there is nothing 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 now customary to have such rights guaranteed in the Constitution. Peaslee,(5) writing in 1956 says that about 88% of the national Constitutions contain 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 conscience and religion; 79% res pecting secrecy of correspondence 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 non 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 conferred on the individual. Our Constitution is the most outstanding example of this restriction which is to be found in article 13(2). 'The State is no doubt 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 not be. Amendment may be open to the State according to the procedure laid (1) (2) ; (7 L. Ed. 2d 633). (3) Commentaries on the Constittition of the United States (1833) Vol. III pp 686 687. (4) Tagore Law Lectures, p. 84. (5) Constitutions of Nations, Vol. I (2nd Edn.) p. 7. 863 stitution and the Constitution of the United States of America.this: dicttan of the four Justices based upon, the case of Luther vs Borden(1) has lost some of its force after Baker vs Carr(2). A Republic must, as says Story, (,,) ssess the means for ai and:improving 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 not 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 not the State because a constitutional la,* is the creation of the State for its own pu, se. But there is nothing 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 now customary to have such rights guaranteed in the Constitution. Peaslee,(5) writing in 1956 says that about 88,Yo of the, national Constitutions contain 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 conscience and religion; 79% respecting secrecy of correspondence 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 non 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 conferred ' on the 'individual. Our Constitution is the most outstanding i6xample of this restriction Which is to be found in article 1.3(2). ,Tbe State is no doubt legally supreme but in the supremacy of its powers it may creat e impediments on its OI%M sovereignty. Govent is always bound by the restrictions created in favour of Fundamental Rights but the State may or may not be. Amendment may be open to the State according to the procedure lai(r (1)7 How. 1 (2) ; (7 L. Ed. 2d 633). (3) Commentaries on the Constitution of the United, Sta:tes (1 833) 'Vol. III PP, 686 687. (4)Tagore Law Lectures, p. 84. (5)Constitutions of Nations, Vol. I (2nd Edn.) p. 7. 864 down by the Constitution. There is nothing, however, to prevent the State from placing certain matters outside the amending procedure( '). Examples of this exist in several Constitutions of the world : see article 5 of the American Constitution; article 95 of the Constitution of France,; article 95 of the Constitution of Finland; article 97 of the Constitution of Cambodia; article 183 of the Constitution of Greece; article 97 of the Japanese Constitution; article 139 of the Italian Constitution, to mention only a few. When this happens the ordinary procedure of amendment ,ceases to apply. The unlimited competence (the kompetenz kompetenz of the Germans) does not flow from the amendatory process. Amendment can then be by a fresh constituent body. To attempt to do this otherwise is to attempt a revolution. I do not 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 common. 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 no third 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 not legal. The difference is one of method, not 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 (1) In the Constitution of Honduras, partial amendment only is possible. For a complete amendment a Constituent Assembly has to be convoked. 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. (2) Vol. 12, Section 25 pp. 629 630. 865 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 consent and acquiescence and a failure if there is not. 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 coming from outside the Government and an illegality committed 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 convictions 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 not 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 no liberty based on law and law based on equality. The protection of the fundamental Rights is necessary so that we may not walk in fear of democracy itself. Having assumed the distinction between Government and ' State let me now explain what I mean by that distinction and what the force of article 13(2) in that context is. I shall begin first by reading the pertinent article. Article 13 (2), which I quoted earlier, may again be read here: "13. . . . . . (2)The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void. " The definition of the State in article 12 reads "12. In this Part, unless the context 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 control of the Government of India. " The State is the sum total of all the agencies which are also individually mentioned in article 12 and by the definition all the parts severally are also included in the prohibition. Now see how 'law ' is defined: "13. . . . . (1) The Mind and Faith of Justice Holmes p. 390. 866 (3)In this article, unless the context otherwise requires, (a) "law" includes any ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law;" In Sajjan Singh 's case(1) I said that if amendments of the constitution were meant to be excluded from the word "law" it was the easiest thing to add to the definition the further words "but shall not include an amendment of the Constitution". it 'LS argued now before us that this wag not necessary because article 368 does not 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 not pause to consider : 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 article 13 (2) that any ' ,of the agencies acting alone or all the agencies, acting together are not 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 article 325 of the Constitution of Nicargua, which reads as follows: "325. 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 controlled jointly and separately and the prohibition is against the whole force of (1) ; 867 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 noticed 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 no longer responsible to the Commons but the Commons has become instead responsible to the Government. Ivor Jennings added that if a Government had majority it could 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 country also regarding administration and Station. Fortunately, this is avoided at least in so far as the Fundamental Rights are concerned. Absolute, arbitrary power in defiance of Fundamental Rights exist nowhere under our Constitution, not even in the largest majority. The people 's representatives have, of course, 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 Parliament 's giving or taking. Our Constitution enables an individual to oppose successfully the whole community 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 constitutional amendments, as they have been in our country, considered the Directive principles to be more potent than the Fundamental (1) Constitutional Law, 6th Edn. p. 27. (2) Parliament (1957) pp. 11 12. (3) Government of Canada (1952) Chapter XIX. (4) An Introduction to British Constitutional Law (1931) P. 48, (5) How Britain is Governed P. 5,6. (6) Changing Law in Developing Countries, pp. 88, 89. 868 Rights. That they are not, is clear when one takes the Fundamental Rights. with the guaranteed remedies. The Directive Principles are not justiciable but the Fundamental Rights are ' made justiciable. This gives a judicial control and check over State action even within the four corners of the Directive Principles. It cannot be conceived 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 article 32, if it offends against the Fundamental Rights by abridging or taking them away. Of course, 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 to 'social insurance. The Nations of the world are now 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 competent to receive complaints from individuals although the enforceability of Human Rights on an international basis is still far from being achieved. If one compares the Uni 869 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 man 's 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 country, whom we may call "classe non 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 not know what they believe in the communistic 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 conditions. 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 course, 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 no further limitations would require to be imposed at any time. I do not 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 considered by the courts. But what I do say is that the possession of the necessary majority does not put 'any party above the constitutional limitations implicit in the Constitution. It is obvious that the Constituent Assembly in making the Fundamental Rights justiciable was not justisfied with reliance on the sense of self restraint or public opinion(2) on which the majority in Sajjan Singh 's(3) case does. This is not argument of fear: The question to ask is : can a party, which enjoys 2/3rds majority today, before it (1)Benedetto Croce. (2)Sir Robert Peel calls it "that great compound of foiiy, weakness, prejudice, wrong feeling, right feeling, obstinacy and newspaper paragraphs" (3)[1965] 1 S.C.R. 933. CI/67 10 870 loses it, amend article 368 in such wise that a simple majority would be sufficient for the future amendments of the constitution ? Suppose it did so, would there be any difference between the constitutional 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 not the constituent body as the Constituent Assembly was, but is a constituted body which must bear true, allegiance to the Constitution 'as by law established. To change the Fundamental part of the Individual 's liberty is a usurpation of constituent functions be cause they have been placed outside the scope of the power of constituted. Parliament. It is obvious that Parliament need not now legislate at all. It has spread the umbrella of article 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 not only in praesanti but, defuturo. This can hardly be open to a constituted Parliament. Having established, that there is no difference between the ordinary legislative and the amending processes in so far as cl.(2) of Aft. 13 is concerned, because both being laws in their true character, come within the prohibition created, by that, clause against the State and that the Directive Principles cannot be invoked to destroy Fundamental Rights. I proceed now to examine whether the English and Amercan precedents lay down any principle applicable to amendments of our Constitution. In, Britain the question whether a constitutional amendment is valid or not at arise because the courts are powerless ' Parliamentary Sovereignty under the English Constitution means that Parliament enjoys the right to make or unmake any law whatever and no person or body has any right to question the legislation. The utmost and absolute despotic power belongs to Parliament. It "make, confirm, enlarge, restrain, abrogate, repeal, revise and expand law concerning matters of all possible denominations". What Parliament does, no authority on earth can undo. The The Queen, each House of Parliament the constituencies and the law courts have in the past claimed independent legislative powers but these claims are unfounded. It is impossible to compare the Indian Parliament with the Brittsh Parliament as the former con codedly in the ordinary legislation is subject to judicial review, both on the ground of competence arising from a federal structure And the existence of Fundamental Rights. The question of competence in the matter of amendment of the Constitution depends upon, firstly, compliance with the procedure laid down in article 368 and, secondly, upon the question whether,the.process is in 871 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 article V. (1). It must be noticed that the power is clearly not made equal to ordinary legislative process. One salient point of difference is that the President is nowhere in ' this scheme because his negative does not run. ( ') The amendment is thus not of the same quality as ordinary legislation. The Supreme Court of the United States has no doubt 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 conclusions. 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 : "4. 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 article 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 noticed in the same judgment by Mr. Justice (1) 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 not 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. (2) 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 convention 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 conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress, provided that no amendment 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 no State, without its consent, shall be deprived of its equal suffrage in the Senate." (3) Hollingsworth vs Virginia ; (4) National Prohibition Cases; , 872 Mckenna. In feser vs Garnett(1) the Court was hardly more expressive. The only question considered by the Court was "The first contention is that the power of amendment conferred by the ' Federal Constitution, and sought to be exercised, does not dxtend to this Amendment, because of its character." (emphasis supplied). This was repelled by Brandeis, J on behalf of the unanimous court 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 not in accordance with law, but as a war measure validated by acquiescence was not accepted. It is significant, however, that at the time of the 18th Amendment, the arguments were (a) that 'amendment ' was ' limited to the correction of error in the framing of the Constitution, (b) Article V did not comprehend the adoption of additional or supplementary provisions, (c) ordinary legislation could not be embodied. in the constitutional amendment, and (d) Congress could not '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 not ratified the Amendment would be, deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e. persons,chosen by voters whom the State itself had not authorised to vote for Senators. This argument was rejected. However, in Dillion vs Gloss(2) the Supreme Court held that Congress had the, power to a time limit for ratification because article 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 vs 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 not more than 4 Justices (1) 258 U.S. 130. (2)256 U.S. 368. (3) 307 U.S. 443. 873 took any particular view,. declined to interfere. Majority affirmed the decision of Supreme Court of Kansas. Four Justices considered 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 article V it has nowhere said that it will not take jurisdiction in any case involving the amending process. (1) In Hollingsworth vs Virginia(2) the supreme Court assumed that the question was legal. The Attorney General did not even raise an objection. In Luther vs Borden($) the matter was finally held to be political which opinion prevailed unimpaired 'till some doubts have arisen after Baker vs Carr(4). In the case the Court remarked "We conclude. that the non justiciability of claims resting on the guarantee clause which arises from the embodiment of questions that were thought 'Political ' can have no bearing 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 no other feature, which could render them non justiciable. specifically, We have said that such claims are not held non 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 no clear pronouncement, a great contro versy exists whether questions of substance can ever come before the Court and whether there are any implied limitations upon the amendatory Power. In the cases above noted, the other articles (particularly the Bill of Rights) were not read as limitations and no limitation outside the amending clause was implied. In the two cases inwhich the express limitation of Equal suffrage Clause was involved the Court did not enter the question. Thus the 15th and, on its strength, the 19th Amendments were upheld. In Coleman vs Miller(5) the political question doctrine brought the support of only four Justices and in Baker vs 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 (1) See Rottschaeffer: Handbook of American Constitutional Law (1939) pp. 397, 398, though the author 's opinion is that it will deny jurisdiction. (2) ; (3) (4) ; (5) 307 U. section 443 874 courts have thus entered the political thicket '.The question of delimitation of constituencies cannot, of, course, arise before courts under our Constitution because of article 329. Baker vs 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. coming. Many of the attacks on the amendments were the result of a misunderstanding that the Constitution Was a compact between States and that the allocation of powers was not to be changed at all. This was finally decided by Texas vs 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 no, 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 contained is excepted out of the general powers of Government, and all laws contrary 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 now 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 course, be completely out of place in a judgment to discuss the. views of the several writers and so I shall confine myself to the observation of Orfield to whom again and again counsel for the State turned either for support or inspiration. Accord. ing to him, there are ' no implied limitations unless the Courts adopt (1) ; (2) Wall.700. (3) The American Commonwealth Vol. I. (4) Constitutional law and its Administration (1946). (5) American Constitutional System (2nd Edn.) p. 43 45. (6)The Law of the American Constitution (7th Imp.) p. 45. (7) Tagore Law Lectures (1924). (8)constitutionaI Law of United States (1936). (9) Handbook of American Constitutional Law. (10)The Amending of the Federal Constitution (11)Constitutional Limitations Vol. I, 8th Edn. 95, 96. 875 that view and therefore no limitations on the substance of the amendments except the Equality Clause. His view is that when Congress is in the amending process, it is not legislating but exercising a peculiar power bestowed by article V. 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 article 13(2). Orfield brushes aside the argument that this would destroy the very concept 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 not be in violation of the Equality Clause. This seems to be a great concession. He makes this exception but Munro( '), who finds it difficult to conceive of an unamendable constitution suggests that it should be possible to begin with that clause and then the door to amendments would be wide open. Of course, the Supreme, Court has not yet faced an amendment of this. character and it has not 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 conditions 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 country 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 not doing so is plainly this. The process of amendment in the United States is clearly not a legislative process and there is no provision like article 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. (1) The Govenment of the United States (5th Edn.) p. 77. 876 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 not juridical value, and from the juridical point of view, a declaration of absolute constitutional immutability cannot be imagined. The constituent power being supreme, the State cannot be fettered even by itself. He notices, 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 concludes that the constituent of today cannot bind the nation of tomorrow and no Constitution can prohibit its amend Of course, 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 nous faisons une Revolution, nous ne ditruisons pas notre maison, nous en conservons avec soin la facade, et, derriere cette facade, nous reconstruisons une nouvelle maison. Vous, Francais, agissez autrement; vous jetez bas le vieil edifice et vous reconstruisez la mime maison avec une autre facade et sous un nom different." (When we make a Revolution we do not destroy an house, we save with care the facade and behind construct 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 course to a Frenchman brought up in a legal system in which the Courts do not declare even an ordinary statute to be invalid, the idea of the unconstitutionality of a constitutional amendment does not even occur. France and Belgium have created no machinery 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 (1) Mannual Elementaire da Droil Constitutional (Sirey) p. 117. (2) Recounted by M. de Fleuriau in the Preface to J. Magnan de Bornier, L 'Empire Britannique, son evolution politique et constitutionnelle p. 6, quoted in Wheare: The Statute of Westminster and Dominion status, P. 9 10. 877 appears to them that the procedure for the amendment being gone through there is no one 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 not 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 not accepted and the people have not acquiesced in the change and the courts under the old Constitution function, the courts can declare the new Constitution to be void. Perhaps even when the people acquiesce and a new Government comes into being, the courts may still declare the new Constitution to be invalid but only if moved to do so. It is only when the courts begin to function under the new Constitution that they cannot consider 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 not include amendments of the Constitution in these remarks and expressly omits them. His opinion seems to indicate that in the case of amendments courts are completely free to see that the prescribed constitutional mode, of alteration is complied 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 courts ' decision and being small in dimension, leaves the courts free to consider its validity. The courts 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 not mean that Fundamental Rights are not 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 controlled by justice and necessity. Take for example article 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 one 's life, is the most valuable. This article of the Constitution, therefore, makes. the right fundamental. But the inalienable right is curtailed by a murderer 's conduct as viewed under law. The deprivation, when it takes place, is not of the right which was immutable but of the continued exercise of the right. Take a Directive Principle which is not enforceable at law but where the same result is reached. The right to employ ment is a directive principle. Some countries 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 878 and sundry. The possession of this right cannot be confused 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 not 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 controlled 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 not right. The whole Constitution is open to amendment only two dozen articles are outside the reach of article 368. That too because the Constitution has made them fundamental. What is being suggested by the counsel 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 convention or a constituent body, so also we ' India cannot abridge or take away the Fundamental Rights by the ordinary amending process. Parliament must amend article 369 to convoke 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 Singh 's case(1) suggested bringing article 32 under the Proviso to improve protection to the Fundamental Rights. Article 32 does not stand in need of this Protection. To abridge or take away that article (and the same is true of all other Fundamental Rights) a constituent body and not a constituted body is required. Parliament today is a constituted body with powers of legislation which include amendments of the Constitution by a special majority but only so far as article 13 (2) allows. To bring into existence a constituent body is not impossible as, I had ventured to suggest during the hearing and which I have now more fully explained here. It may be said that. this is not necessary because article 368 can be amended by Parliament to confer on itself constituent powers over the Fundamental Rights. This would he wrong and against article 13 (2). Parliament cannot. increase its (1) ; 879 powers in this way and do indirectly which it is intended not to de. directly. The State does not lose its sovereignty. but as it has chosen. to create, self imposed restrictions through one constituent body those restrictions cannot be ignored by a constituted body which makes laws. Laws so made can affect those parts of the Constitution which are outside the restriction in article 13 (2) but any 'law (legislative or mendatory) passed by such a body must conform 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, convoked. 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 now consider 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 (e) 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 not abridge or take away any Fundamental Right, I shall not refer to the 16th Amendment hereafter. That Amendment was valid. The changes so made may be summarized. In article 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: "(4) 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 counsel 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 contention. 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 article 38 which provides: 880 .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 no doubt true that in State of Madras vs Champakam(1) the reservation of seats for Backward Classes, Scheduled Castes and Tribes in public educational institutions was considered invalid. Articles 16(4) and 340 had already provided for special treatment for these backward ,classes and article 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 could have been upheld on the principle of classification. In any event, the inclusion of this clause to article 16 does not abridge or take away any one 's 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 article 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 comparing 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, contempt 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 conferred 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 contempt of court, 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 not come within the expression "undermines the secu (1)[1951]S.C.R.525. (2) ; 881 rity of the State". Later the Supreme Court itself observed in the State of Bihar vs Shailabala Devi(1) that this Court did not intend to lay down that an offence against public order could not in any case come 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 could 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 comprehended. The amendment was within the permissible limits as it did not abridge or take away any Fundamental Right. The Amending Act passed by Parliament also included a sub section which read "(2) No law in force in the territory of India, immediately before the commencement of the Constitution which is consistent 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 conferred by sub clause (a) of clause ( I ) of the said article, its operation was not 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 not included in the Constitution. That device was followed in respect of certain State statutes dealing with property rights by including them in a now Schedule. It did not then occur to Parliament that the laws could be placed. under a special umbrella of constitutional protection. Perhaps it was not considered ' necessary because article 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 not have availed at all. Tuming now 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) ; 882 (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 conferred by the said sub clause, and, in particular nothing in the said sub clause, shall affect the operation of any existing law in so far as it 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 conferred by the said sub clause, and, in particular, nothing in the said sub clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii)the carrying on by the State, or a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise, The first change is in the verbiage and is not 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 conferred by the sub clause. A law creating restrictions can, of course, be made outside the Constitution or inside it. If it was considered 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 could 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 article 16 (3). 'no clauses may be, compared: " 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. " 883 The change, is necessary to include a reference to Union territory. It has no breaking upon Fundamental Rights., and, neither abridges nor, takes away any of them. In the result none of the, amendments, of the article. in parts other than that dealing with Right to property is, outside the amending process because article 13(2) is in no manner 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 not. 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 Property"in Part III was originally the subject of one article, namely, article 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. (1) Nov person shall be deprived of his property save by authority of law. (2) 'No property, movable or immovable, including any interest in or in any company owning, any commercial 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 compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principle on which, and the manner. in which, the compensation 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 consideration of the President, has received his assent. (4) If any Bill pending at the commencement of this Constitution in the Legislature of a State has, 'after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this constitution, the law so assented to shall not be Called in question in any, court on the ground that it contravenes the provisions of clause (2). (5) 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 884 (b) the provisions of any law which the State may hereafter make (i) for the ,purpose of imposing or levying any tax or penalty, or (ii) for the promotion of public health or the prevention of danger to life or property, or (iii) 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 country, or otherwise, with respect to property declared by law to be evacuee property. (6) Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification; and thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of this article or has contravened 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 article 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 considered. Ownership and exchange of property are thus recognised by the article. The word "property" is is not defined and I shall presently consider what may be included in 'property '. Whatever the nature of property, it is clear that by the first clause of article 3 1 the right to property may be taken away under authority of law. This was subject to one condition under the original article 3 1, namely, that the law must either fix the compensation for the deprivation or specify the principles on which and the manner in which compensation 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 constitutional support against the second clause, to legislation already on foot in the States. This created a Fundamental Right in property. The question may now be 885, asked,:why was it necessary to make such a Fundamental Right at all ? There is no natural right in property and as Burke said in his Reflections, Government is not 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 not aware of these distinctions for as Gierke(1) points out they did not 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 no sharp division between the different kinds of laws. The Romans evolved this gradually not when the Roman Republic existed, but when the notion 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 no other end but the preservation of property". The concepts of liberty, equality and religious freedom were well known. To them was added the concept of property rights. Later the list included "equalitas, libertas ius securitatis, ius defensionis and ius puniendi. The concept 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 connoted by the legal concepts of occupying, possessing or, using". (1) Das Doutscheg Genossenschaftrecht (III, 10). (2) De Off. (The Offices) It Ch. XXI (Everyman) p. 105. (3) W. Friedman:Legal Theory (4th Edn.) see pp. 373 376. (4) The Institution of Property (1936) p. 436. L3Sup CI/67 11 886 The right is enforced by excluding entry or interference by a per. son not legally entitled. The position of the State vis a vis the individual is the subject of articles 19 and 31, 31 A and 31 B. Now in the enjoyment, the ultimate right may be an interest which is connected 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 now made by all civilized nations is that humanbeings are no longer appropriable. If any free property was available then it could 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 control of one 's 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 core 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 conversion of this possession into ownership by the protection of State or the ability to exclude interference. As the notion 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 considered 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 in"stitution ' 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 (1) The Institution of Property (1936)p. (2) Readings; p. 420. 3) Commentaries. (4) Moral Philosophy. 887 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 article 16 of the Draft Bill of the Constitution which assured freedom of trade, commerce 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 control. article 31, if it contemplated socialization in the same way in India should not have insisted so plainly upon payment of compensation. Several speakers warned Pandit Nehru and others of the danger of the second clause of article 31, but it seems that the Constituent Assembly was quite content that under it the Judiciary would have no say in the matter of compensation. Perhaps the dead hand of section 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 co operative 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 compensation 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 not 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 conceded that land would be required for public purposes but hopefully added : "not only land but so many other things may have to be acquired. And the State will acquire them after paying compensation and not expropriate thenm". (3) (1) 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 compensated. (2) Gandhi : Constituent Assembly Debates Vol. IX pp. 1204 06. (3) Patel : Constituent Assembly Debates Vol. I p. 517. 888 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 compensation. In the social contract theory also . the contract included protection of property with recognition of the power of the ruler to act in the public interest and emergency. Our constitutional theory treated property rights as inviolable except through law for public good and on payment of compensation. Our Constitution saw the matter in the way of Grotius but overlooked the possibility that just compensation may. not be possible. It follows almost literally the German jurist Ulrich Zasius (except in one respect) : Princeps non potest auferee mihi rem mean sive iure gentium, sive civile sit facta mea. All would, have been well if the Courts had construed Article 31 differently. However, the decisions of the High Courts and the Supreme Court, interpreting and expounding this philosophy took a different view of compensation. I shall refer only to some of them. , First the Patna High Court in. Kameshwar vs Bihar(2) applied article 14 to strike down the Reforms Act in Bihar holding it to be discriminatory. This need not have occasioned an amendment because the matter could have been righted, as indeed it wag, by,an appeal to the Supreme Court [see State of Bihar vs Kameshwar(3)].The Constitution (First Amendment) Act, 1951 followed. It left article 31 intact but added two fresh articles, articles 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 article 31 B wiped out retrospectively all decisions of the courts which had. declared any of the scheduled Acts to be invalid. The texts of these new articles may now be seen: "31A. Saving of laws providing for acquisition of estates, etc. (1) Notwithstanding anything in foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for (1) Grotius : De jure Belli ac Pacis. 11 c. 2 2 (5)6. 1 c. I 6 and II c. 14 7 and 8. (2) A.L.R. 1951 Patna 91. (3) 889 the extinguishment or modification of any such rights shall be deemed to be void on the: ground that it is consistent with, or takes away or abridges any of the rights conferred 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 not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. (2) 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 contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provision of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the, contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeat or amend it, continue 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 article 31 A, was also added. The device [approved by Sankari Prasad 's case(1)] was,found so (1) ; 890 attractive that many more Acts were sought to be included but were dropped on second thoughts. Even so, one wonders how the , The West Bengal Land Development and Planning Act and some others could have been thought of in this connection. By this device, which can be extended easily to other spheres, the Fundamental Rights can be completely 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 coach and pair through the Fundamental Rights and the Parliament by 2/3 majority will then put them outside the jurisdiction of the courts. Was it really intended that the restriction against the State in articles 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 could do these with the President 's assent, although,it took away or abridged any of the rights conferred by any provisions of Part Ill. The words 'estate ' and 'rights in relation to an estate ' were defined. The constitutional amendment was challenged in Sankari Prasad 's case(1) on various grounds but was upheld mainly on two grounds to which I objected in Sajjan Singh 's case(2). I have shown in this judgment, for reasons which I need not 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 not and cannot question Art.31 A because (a) it was not considered 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 not legal and certainly not justified by the reasons given in the earlier cases of this Court. Under the original article 31, compensation had to be paid for acquisition by the State. This was the minimum requirement of article 31 (1) and (2) and no amendment could be made by a constituted parliament to avoid compensation. A law made by a constituted Parliament had to conform to article 13(2) and article 31 could not be ignored. In 1954 the Supreme Court in a series of cases drew the dis tinction between article 19(1)(f) and article 31, particularly in West Bengal vs Subodh Gopal(3), Dwarkadas Srinivas vs Sholapur Spinning Co. (4). In State of I West Bengal vs Mrs. Bela Banerjee and Others(5), this Court held a compensation in article 31(2) meant (1) ; (2) ; (3)[1954] S.CR. (4) ; (5) 891 just equivalent, i.e. full and fair money equivalent ' thus making the adequacy of compensation justiciable. The Constitution (Fourth Amendment) Act, 1955 then amended both article 31 and article 31 A. Clause (2) of article 31 was substituted by "(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and other fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate". The opening words of the former second clause were modified to make them more effective but the muzzling of courts in the matter of adequacy of the compensation was the important move. As Basu says : "It is evident that the 1955 amendment of clause (2) eats into the vitals of the constitutional mandate to pay Compensation and demonstrate a drift from the meetings of the American concept 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 now 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 concept 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 not 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 no property sense,meaning that he did not value property at all. The Constitution seems to have changed its property significantly. In addition to avoiding (1) Basu : commentaries on the Constitution of India (5th Edn.) Vol. 2 p. 230. (2) An Economic Interpretation of the United States Constitution (3) See Laski : The American democracy; Weaver : Constitutional Law, Brown: Charles Beard and the constitution; will is constitutional Law. 892 the concept of just compensation, the amendment added a new clause (2A) as follows : "(2A) Where a law does not provide for the transfer of the ownership or right to possession of, any property to the State or to a corporation owned or control led by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that ' it deprives any person of his property." This narrowed the field in which compensation was payable. In addition to this, clause (1) of article 31 A was substituted and was deemed to be always substituted by a new clause which provided: "(1) Notwithstanding anything contained in article 13, no law 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 corporations either in the public interest or in order to secure the proper management of any of the corporation, or (d) the extinguishment or modification of any rights of 'managing agents secretaries and treasurers, managing directors, directors or managers of corporations, 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 conferred by article 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 not apply thereto unless such law, having been reserved 893 for the consideration 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 considerable doubt. A Constituent Assembly makes a new Constitution for itself. Parliament is not even a Constituent Assembly and to. abridge fundamental rights in the name of the Constituent Assembly appears anomalous. I am reminded of the conversation between apo leon and Abe . Sieyes, the, great jurist whose ability to draw up one Constitution after another has been recognised and none 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 articles 19 and 31 and the theory of just compensation. The Fourth Amendment has not been challenged before us. Nor was it challenged at any time before. For the reasons for which I have declined to consider the First Amendment I refrain from considering the validity of the Fourth Amendment. It may, however, be stated here that if I was free to consider it,, I would have found great difficulty in accepting that the constitutional guarantee could be abridged in this way. I may say here that the method I have followed in not recon , sidering an amendment which has stood for a long time, was also invoked by the Supreme Court of United: States in Leser vs Garnett(1). A constitution 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 consideration after a considerable lapse of time when it was not challenged before, or was sustained on an earlier occasion after challenge. (1) ; 894 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 concept of which, Grotius may ' be said to be the author, although his name is not particularly famous for theories of constitutional or municipal laws. The socialistic tendencies which the amendments now manifest take into consideration some later theories about the institution of property. When the original article 31 was moved by Pandit Jawaharlal Nehru, he had described it as a compromise between various approaches to the question and said that it did justice and equality not only to the individual but also to the community ' He accepted the principle of compensation but compensation as determined by the Legislature and not the Judiciary. His words were "The law should do it. Parliament should do it. There is no reference in this to any judiciary coming into the picture. Much thought has been given to it and there has been much debate as to where the judiciary comes in. Eminent lawyers have told us that on a proper construction of this clause, normally speaking the judiciary should not come in. Parliament fixes either the compensation itself or the principle governing that compensation and they should not 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 comes in to see if there has been a fraud on the Constitution or not. "(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 community. He expressed for the for protection of the indi vidual 's rights.(2) The attitude changed at the time of the First Amendment. Pandit Nehru propheised that the basic problem would come before the House from time to, time. That it has, there is no doubt, just as there is no doubt that each time the individual 's rights have suffered. Of course, the growth of collectivist theories have made elsewhere considerable inroads into the right of property. In Russia there is no private 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 (1) Constituent Assemembly Debates Vol. IX pp. 1193 1195. (2) Constituent Assembly Debates Vol. IX p. 1135. 895 the rise in the value of land. The paucity of land and of dwelling houses have led to the control of urban properties and creation of statutory tenancies. In our country a ceiling is put on agricultural land held by an individual. The Supreme Court, in spite of this, has not 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 contain provisions for such reforms, mainly without payment of compensation, our Parliament has taken the same road. Of course, 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 now 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 not 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 concept, at least in so far as "estates" as defined by article 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 compensation 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 compensation is to be given. " This removed the last reference to compensation 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 comprehensive definition of 'right in relation to an estate, the rights of raiyats and under raiyats. This time the expression 'estate ' in article 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 (1) See G.W. Paton : Text Book of Jurisprudence (1964) pp. 484 485. (2) Transformations du droit prive. 896 land tenures in force in that area, and shall also include (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right; (ii) any land held under ryotwari settlement; (iii) 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 compensation is now 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 comprised therein is held by a per , son under his personal cultivation, it shall not 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 compensation at a rate which shall not be less than the market value thereof. " There is also the provision for compensation 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 conflict 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 compensation and No. challenge to the law can be made under articles 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 companies, or the extinguishment or modification of any rights of managing agents,, secretaries, treasurers, managing directors, directors or managers, of corporations 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 897 termination. or cancellation of any such agreement, lease or licence. It will be noticed further that deprivation of property of any person is not 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 corporation owned or controlled 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 compensation or lays down the principles on which and. the manner in which compensation is to be deter mined. and given, and the adequacy of the compensation cannot be any ground of attack. Further still acquisition of estates and of rights therein and the taking over of property, amalgamation of corporations, extinguishment or modification of rights in companies and mines may be made regardless of articles 14, 19 and 31. In addition 64 State Acts are given special protection from the courts regardless of therein contents 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 article 368. The State had bound itself not 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 no answer to gay that this is an amendment and; therefore; not 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 ' no answer 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 not, always appropriate in interpreting a Constitution, particularly when article 13(2) itself declares a law to be void. The sanctity of a former judgment is for the matter then decided . In Plessy vs Fergusson(2), Harlan, J. alone, dissented against the "separate but equal doctrine uttering the memorable words that there was no caste and that the Constitution of the United States was 'colour 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 vs Board of Education(3)]. As Mark Twain (1) (1965] 1 section C. R. 933. (2)163 U. section 537. (3) ; 898 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 not 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 constituted 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 Singh 's(1) case and I overrule that decision. It remains to consider what is the extent of contravention. Here I must make it clear that since the First, Fourth and Seventh Amendments are not before me and I have not, therefore, questioned them, I must start with the provisions of articles 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: "(ii) any land held under ryotwari settlement; (iii) 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 compensation and without a challenge under articles 14, 19 and 31 has now been made possible. There is no kind of agricultural estate or land which cannot be acquired by the State even though it pays an illusory compensation. The only exception is the second proviso added to article 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 compensation at a rate which shall not 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 come before this Court in two cases Ajit Singh vs State of Punjab (2) (1) (1965] 1 & C. R. 933 (2) ; 899 and Bhagat Ram and Ors. vs 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 nothing 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 article 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 article 31 A(1) (a) as already amended. The constitutional amendment is a law and article 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 "no law 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 conferred by article 14, article 19 or article 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 courts not because it is not law but because it is "law" and falls within that word in article 31 (1) (2) (2 A) and article 31 A(1). 1, therefore, sustain the new definition, not on the erroneous reasoning in Sajjan Singh 's case (2 ) but on the true construction of the word 'law ' as used in articles 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 notion of compensation 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 compensation. 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 no more than add 44 State Acts to the Ninth Schedule. The object of article 31 B, when it was enacted, was to save certain State Acts notwithstanding judicial decision to the contrary. These Acts were already protected by article 31. One can with difficulty understand such a provision. Now the Schedule is being used to (1) 11967] 2 section C. R. 165. (2) ; 900 give advance protection to legislation which is known appre hended to derogate from the Fundamental Rights. The power under article 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 not even known whether the statues in question stand in need of such aid. The intent is to silence the courts and not to amend the Constitution. If these Acts were ', not included in the Schedule they would have to face the Fundamental Rights and rely on articles 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 not a matter of amendment at all. The power which is given is for the specific purpose of amending the Constitution and not to confer validity on State Acts against the rest of the Constitution. If the President 's assent did not do this, no more would this section. I consider section 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 section 3 to be ultra vires the amending process. As stated by me in Sajjan Singh 's case(1) article 368 outlines process, which if followed strictly results in the amendment of the Constitution. The article gives power to no particular 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 'not ' have to depend. upon any entry,in the lusts. Ordinarily there would be no limit 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, article 13(2) puts an embargo on the legislative power of the State and consequently 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) [1965]1 S.C.R 933. 901 I have attempted to show hem that under our Constitution revolution is not the only alternative to change of Constitution under article 368. A Constitution can. be changed by consent or, revolution Rodee, Anderson and Christol (1) have shown the sovereignty of the People is either electoral or constituent. When the People elect the Parliament and the Legislatures they exercise their electoral sovereignty. I includes some constituent sovereignty also but only in so far as conceded. The remaining constituent sovereignty which is contained in the Preamble and Part III is in abeyance because of the curb placed by the People on the state under article 13(2). It is this power which can be reproduced. I have indicated the method. Watson(2) quoting Ames On Amendments p. 1 note 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 condition 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 not by intrigue, by corruption, 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 section 48 of the Weimar Constitution( 4) that article 13 (2) was. adopted. of course, as. Story( ' ') says, an amendment process is a safety valve to, let off all temporary effervescence and excitement, as an effective instrument to control and adjust the Movements of the machinery when out of order or in danger of self d tion but is not 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 section 128 have been regarded as, mandatory, and held to be clear limitations of the power of amendment. Dr. Jethro Brown considered that the amendment of the paragraph was logically impossible even by a two step amendment. Similarly, section 105 A has been judicially (1) Introduction to Political Science, p. 32 et seq. (2) Constitution" Its History, Application and Construction Vol. II (1910) p. 1301. (3) Federalist No. 10. (4) See Louis L. Snyder: The Weimar Constitution, p. 42 et seq. (5) Commentaries on the Constitution of the United States (I 833) Vol. (6) K. C. Wheare: Modern Constitutions, p. 78. sup Cl/67 12 902 considered in the Garnishee case( ') to be an exception to the power of amendment in section 128 although Wynes(2) does not agree. I prefer the judicial view to that of Wynes. The same position obtains under our Constitution in article 35 where the opening words, are more than a non obstante clause. They exclude article 368 and even amendment of that article under the proviso. It is, therefore, a grave error to think of article 368 as a code ;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 conclusions are (i) that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights; (ii) that Sankari Prasad 's case (and Sajjan Singh 's case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of articles 13(2) and 368; (iii) that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot now be challenged and they contain authority for the Seventeenth Amendment; (iv) that this Court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in article 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and article 13(2) in particular, (v) that for abridging or taking away Fundamental Rights, a Constituent body will have to be, convoked; and (vi) 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 not because they are included in schedule 9 of the Constitution but because the, are protected by article 31 A, and the President 's assent. (1) ; (2) Legislative, Executive and Judicial Powers in Australia pp. 695 698. 903 In view of my decision the several petit ions will be dismissed, but without costs. The State Acts Nos. 21 64 in the Ninth Schedule will have to be tested under Part HI with such protection as articles 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 constitutionality of the Constitution First, Fourth and Seventeenth Amendment Acts is challenged on the . ground that the fundamental rights conferred by Part HI are inviolable and immune from amendment. It is said that article 368 does not give any power of amendment and, in any event, the amending power is limited expressly by article 13(2) and impliedly by the language of article 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 articles 226 and 245 and such changes could not be made without complying with the proviso to article 368. Article 31 B is subjected to attack on several other grounds. The constitutionality of the First Amendment was upheld in Sri Sankari Prasad Singh Deo vs 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 consists of a single article . Part XX is as follows "PART XX. Amendment of the Constitution Procedure for amendment of the Constitution 368. 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 not 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) ; (2) ; 1196712 S.C.IL 904 (b) 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 not 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 contention that article 368 prescribes only the procedure of amendment cannot be accepted. The article not 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 no other 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 consequential on the abolition or creation of the legislative councils in States, and by express provision no such law is deemed to be an amendment of the Constitution for the purposes of article 368. All other provisions of the Constitution can be amended by recourse to article 368 only. No other article confers the power of amending the Constitution. Some articles are expressed to continue 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), 373]. Some articles continue unless provision is made otherwise by law [see articles 120(2), 133(3), 210(2) and some continue 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 not 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 conferring 905 the power of 'amendment of the Constitution. Most of articles continue until provision is made by law made by the Parliament. But some of them continue 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 not confer 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 article 248 and List 1 item 97 of the 7th Schedule read with article 246 give the Parliament the power of amending the Constitution. This argument does not bear scrutiny. article 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 article 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 no power to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule but under article 368 even Lists II and III can be amended. The procedure for constitutional amendments under article 368 is different from the legislative procedure for passing laws under the residual power of legislation. If a constitutional amendment could be made by recourse to the residual power of legislation and the ordinary legislative procedure, article 368 would be meaningless. The power of amending the Con stitution is to be found in article 368 and not in article 248 and List I item 97. Like other Constitutions, our Constitution makes express provisions for amending the Constitution. The heading of article 368 shows that it is a provision for amendment of the Constitution, the marginal note 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 consists of a single section (section 128). The heading is "Alteration of the Constitution". The marginal note is "Mode of altering the Constitution". The body lays down the procedure for alteration. The opening words are : "This Constitution shall not 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, 906 p. 695, stated "The power, of amendment extends to alteration of this Constitution ' which includes section 128 itself. It is true that section 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 constitution 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 vs Palmer(1): Art .368 uses stronger words. On the passing of the bill for amendment under article 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 article 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 article 368 is limited by article 13(2). , article 13(2) is in these terms: "13(1). . . . . . . (2) The State shall not make any law which takes away or abridges the tights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." Now article 3 68 gives, the power of amending each and every provision of the Constitution article 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 controlled by it. article 368 is not controlled by article 13 (2) and the (1) ; : ; 907 prohibitory injunction in article 13(2) is not directed against the amending power Looked at from this broad angle, article 13 (2) does not forbid the making of a constitutional amendment abridaing or taking away any right confesed by Part III. Let us now view the matter from a narrower angle. The con tention is that a constitutional amendment under article 368 is a law within the meaning of article 13. 1 am inclined to think that this narrow contention must also be rejected. In article 13 unless the context otherwise provides 'law ' includes any ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law [article 13(3).(a)]. The inclusive definition of law in article 13 (3) (c) neither expressly excludes nor expressly includes the Constitution or a constitutional amendment. Now the term law ' in its widest and generic sense includes the Constitution and a constitutional amendment. But in the constitution this term is employed to designate an ordinary statute or legislative act in contradistinction to the Constitution or a constitutional 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 not regarded as a law or a legislative act. The Constitution means the Constitution as amended. An amendment made in conformity with article 368 is a part of the. Constitution and is likewise not 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 no such law is deemed to be a constitutional amendment. Save as express.1y provided in articles 4, 169, Fifth Schedule Part D and Sixth Schedule para 21, no law can amend the Constitution, and a law which purports to make such an amendment is void. In Marbury vs Madison(1), Marshall, C.J., said: "It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it; or, that the legislature may alter the Constitution by an ordinary Act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with (1) ; ,177:. ; , 73. 908 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 contrary to the Constitution is not law; if the, latter part be true, then written constitutions 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 constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, 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 constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. " It is because a Constitution Amendment Act can amend the Constitution and is not a law that article 368 avoids all reference to law making by the Parliament. As soon as a bill is passed in conformity with article 368 the Constitution stands amended in accordance with the terms of the bill. The power of amending the Constitution is not an ordinary law making power. It is to be found in article 368 and not in articles 245, 246 and 248 and the Seventh Schedule. Nor is the procedure for amending the Constitution under article 368 an ordinary law making procedure. The common 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 article 368 is very different from the ordinary legislative proms. A constitution 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 not 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 coming under the proviso, the amendment must be ratified by the legislature of not 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 909 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 constitutional amendments. The main method of constitutional 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 convocation, see C.F. strong Modem Political institutions, 5th Edition, pp. 133 4,146. Our Constitution hag by article 368 chosen the first and a combination of the first and the third methods. The special attributes of constitutional amendment under article 368 indicate that it is not a law or a legislative act. Moreover it will be seen presently that the Constitution makers could not have intended that the term "law" in article 13 (2) would include a consti tutional amendment under article 368. If a constitutional amendment creating a new fundamental right and incorporating it in Part III were a law, it would not be open to the. parliament by a subsequent constitution to abrogate the new fundamental right for such an amendment would be repugnant to Part ]III. Bit the conclusion 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 vs 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 not ordinary include the Constitution or a constitutional amendment in this connection, I will read the following passage in Corpus Juris Secundum, Vol, XVI Title Constitutional Law article .lm15 "The term 'constitution ' is ordinarily employed to designate the organic law in contradistinction to the term law, which is generally used to designate statutes Or legislative enactments. Accordingly the term 'law. ' under this distinction does not include a constitutional amendment. However, the term "law ' may, in accordance with the context in which it is used, comprehend or included the constitution or a constitutional provision or amendment. A statute and a constitution, although of unequal dignity,, are both 'laws ', and rest on the will of the people." (1) 88 A:A.L.R. 1008. 910 In our Constitution, the expression "law" does not include either the constitution or a constitutional amendment. For all these reasons we must hold that a constitutional amendment under article 368 is not a law within the meaning of article 13 (2). I find no conflict between articles 13(2) and 368. The two articles operate in different fields. article 13(2) operates on laws; it makes no express exception regarding a constitutional amendment, because a constitutional amendment is not a law and is outside its purview. article 368 occupies the field of constitutional amendments. It does not particularly refer to the, articles in Part III and many other articles, but on its true construction it gives the power of amending each and every provision of the Constitu tion and necessarily takes in Part III. Moreover, article 368 gives the power of amending itself, and if express power for amending the provisions of Part III were needed, such a power could be taken by an amendment of the article. It is said that the non obstante clause in article 35 shows that the article is not amendable. No one has amended article 35 and the point does not arise. Moreover, the non obstante clause is to be found in articles 258(1), 364, 369, 370 and 371A. No one has suggested that these articles are not amendable. The next contention is that there are implied limitations on the amending power. It is said that apart from article 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 conferred by this Part is guaranteed by article 32 and cannot be suspended except as otherwise provided for by the Constitution (article 32(4)). It is said that the terms "fundamental" and "guarantee" indicate that the rights conferred by Part HI are not amendable. The argument overlooks the dynamic character of the Constitution. While the Constitution is static, it is the fundamental law of the country, the rights conferred by Part III are, fundamental, the right under article 32 is guaranteed, and the principles of State policy enshrined in Part IV are fundamental 'm the governance of the country. But the Constitution is never at rest; it changes with the progress of time. article 368 provides the means for the dynamic changes in the Constitution. The scale cf values embodied in Parts III and IV is not immortal. Parts III and IV being parts of the Constitution are not immune from amendment under article 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. Beasan 's Commonwealth of India Bill of 1925, the Report of the Nehru Committee set up under the Congress Resolution in 1927, the Congress 911 Resolution of March. 1931 and the Sapru Report of 1945. The American bill of rights,the constitutions of other countries 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 contains the passive obligations of the State. It enshrines the right of life, personal liberty, expression, assembly, movement, residence, avocation, property, culture and education, constitutional remedies, and protection against exploitation and obnoxious penal laws. The State shall not deny these rights save as provided in the Constitution. Part IV contains 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 not be concentrated in the hands of the few but shall be distributed so as to subserve the common 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 conditions of work, a living wage for workers, a uniform civil code, free and compulsory 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 not justiciable. If a law made by the State in accordance with the fundamental directives of Part IV comes in conflict 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 constitutional 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 article 15 enabling the State to make special provisions for the benefit of the socially and 912 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 article 46 and to supersede the decision in State of Madras vs Champakam(1), substituted a new cl. (2) in article 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 vs State of Madras( '), Brij Bhushan vs State of Delhi( '),, amended cl. (6) of article 19 with a view to free state trading monopoly from the test of reasonable ness and to supersede the decision in Moti Lal vs Government of State of Uttar Pradesh(). Under the stress of the First amendment it is now suggested that Champakam 's case( '), Romesh Thappar 's case( ') and Motilal 's(4) case were wrongly decided, and the amendments of articles 15 and 19 were in harmony with the original Constitution and made no real change in it. It is to be, noticed however that before the First amendment no attempt was made to overrule these cases, and but for the amendments, these judicial interpretations of the Constitution would have continued 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 article 31 from attack under article 31 was struck down as violative of article 14 by the Patna High Court (see the State of Bihar vs Maharajadhiraj Sri Kameshwar Singh(5), while the Uttar Pradesh Act (see Raja Surya Pal Singh vs The State. of U.P.) (6) and the Madhya Pradesh Act (see Visweshwar Rao vs State.of Madhya Pradesh (7), though upheld by the High Courts were under challenge in this Court. The First amendment therefore introduced article 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 conformity with article 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 Deo 's case(8). The Fourth amendment changed article 31(2) with a view to supersede the decision in State of West Bengal vs Bela Banerjee(9) and to provide that the adequacy of compensation for property compulsorily acquired would not be justiciable, inserted Cl. (2A) in article 31 with a view to supersede the decisions in the State of West Bengal vs Subodh Gopal Bose("), Dwarka Das Shrinivas vs Sholapur Spinning and Weaving Co., Ltd.,("), (1) ; (2) ; (3) ; (4) I.L.R. [1951] 1 All. (5) 1951 Pat. 91). (6) (1952] S.C.R. 1056 (A.I.R. 1961). (7) All. 674.) (8) ; (9) ; (10) 11954] S.C.R. 587.(11) ; 913 Saghir Ahmad vs The State of Uttar Pradesh,(1) and to make it clear that clauses (1) and (2) of article 31 relate to different subject ' matters and a deprivation of property short of transference of ownership or right to possession to the State should not be treated as compulsory acquisition of property. The Fourth amendment also amended article 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. vs Rajgopalan(2) was the subject of criticism in Dwarka Das 's case (3 ) . The Sixteenth amendment amended clauses (2), (3) and (4) of article 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 article 31A with a view to supersede the decisions in Karimbil Kunhikoman vs State of Kerala (4 ) and A. P. Krishnaswami Naidu vs State of Madras( ') and added a proviso to article 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 Singh 's case( '). Since 1951, numerous decisions of this Court have recognised the validity of the First, Fourth and Seventeenth amendments. If the rights conferred by Part III cannot be abridged or taken away by constitutional amendments, all these amendments would be invalid. The Constitution makers could not have intended that the rights conferred by Part TIT could not be altered for giving effect to the policy of Part TV. Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments. There are, other indications in the Constitution that the fundamental rights are not 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, article 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 not 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) ; ,706. (5) ; (2) A.I.R. 1952 Pun. (4) [1962] Supp. I S.C.R. 829. (6) ; 914 control 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 article 368 amend article 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 con stitutional amendment under article 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 article 368 is not 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 no doubt 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 nothing in the passage contrary to the view unequivocally expressed by the same learned Judge in Sri Sankari Prasad Singh Deo 's(3) case that the fundamental rights are amendable. The power to frame the Constitution was vested in the Constituent Assembly by section 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) ,261 2,281 (2)[1950] S.C.R. 88, 98. (3) (1952] S.C.R. 89. 915 solemnly declared that all power and authority of sovereign independent India, its constituent 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 constituted 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 not 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 vs 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 contention that "an amendment must be confined in its scope to, an alteration or improvement of that which is already contained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government nor relinquish, in the State those which already have been granted to it", see Cooley on Constitutional Law, Chapter III article 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 constitutional article giving Congress a power of proposal includes additions to, as well as corrections of, matters. already treated, and there is nothing 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 article 368 (1) (2) Rhode Island vs Palmer 253 U.S. 350 : 64 L. ed. 947, 960, 978. 916 thus gives the power to amend or to make changes in the Constitution. A change is not 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 not support the contention 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 article 368. It is argued that under the amending power, the basic features .,of the Constitution cannot be amended. Counsel said that they could not 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 not derogated from the sovereignty, ,the republican form of government and the federal structure, and 'the question whether they can be touched by amendment does not 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 course 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 condition is not comparable with the American. The dynamics of the social revolution in our country 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 not the test of its existence. In Webb vs Outrim(1) lord (1) 917 Hobhouse said, "If they find that on the due construction of the Act a legislative power falls within section 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 construction, Knox C.J., in the Amalgamated Society of Engineers vs 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 conceded to the least degree, might be abused to the point of destruction. But possible abuse of powers is no reason 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 not intended to be immutable. The Constituent Assembly was corn 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 colleges constituted 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 article 326 of the Constitution. In a special article written on August 15, 1948, Sir B., N. Rau remarked: "It seems rather illogical that a constitution should be settled by a simple majority by an assembly elected indirectly on a very limited franchise and that it should not 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 ' India 's Constitution in the making, 2nd Edition p. 394). The conditions in India were rapidly changing and the country 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 not accept these recommendations. On September 17, 1949 an amendment (No. 304) moved by Dr. Deshmukh providing (1) ; ,151. Cf/67 13 918 for amendment of the Constitution at any time by a clear majority in each house of Parliament was negatived. The Assembly was conscious that future Parliaments, elected on the basis of adult suffrage would be more representative, but they took the view that article 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 contemporaneous judicial decisions and enactments. We find a rare unanimity of view among Judges and legislators from the very commencement 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, section Krishnan and Others vs The state of Madras(1), a case decided on May 7, 1951 Bose, J. said: "My concept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution". , In Sri Sankari Prasad Singh Deo 's case(2), decided on October 5, 1951, this Court expressly decided that fundamental rights could be abridged by a constitutional amendment. This view was acted upon in all the subsequent decisions and was reaffirmed in Sajjan Singh 's 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 constitution can impose upon a country. An unamendable constitution means that all. reform and progress are at a standstill. If Parliament cannot amend Part III of the Constitution even by recourse to article 368, no other power can do so. There is no, provision in the Constitution for calling a convention for its revision or for submission of any proposal for amendment to the referendum. Even if power to call a convention or to submit a proposal. to the refere be taken by amendment of article 368, Part III. would sip remain unamendable on the assumption that a constitutional amendment is a law. Not even the unanimous vote of the 500 (1) ; , 652. (2) ; (3) ; 919 million citizens or their representatives, at a special convocation could amend Part III. The deadlock could be resolved by revolution only. Such a consequence was not 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 correct, 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 not see why under the Constitution as it stands now, the Parliament cannot be regarded as a recreation of the Constituent Assembly. for the special purpose of making a constitutional amendments under article 368, and why the amending power cannot be regarded a a constituent power as was held in Sri Sankari Prasad Singh Deo 's (1) case. The contention that the constitutional amendments of Part III had the effect (I changing articles 226 and 245 and could not be passed without complying with the proviso to article 368 is not tenable; A constitutional amendment which does not profess to amend article 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 constitutional inhibition of the proviso. article 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 conferred by Part III and for any purpose The Seventeenth Amendment made no direct change in article 226. It made changes in Part In and abridged or took away some of the rights conferred by that Part. As a result of the changes, some of those rights no longer exist and as the High Court cannot issue writs for the enforcement of those rights its power under article 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 article 226 cannot be regarded as an ' amendment of that article. article 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 conferred by Part III by the Seventeenth Amendment necessarily enlarged the scope of the legislate power, and thus affected article 245 indirectly. But the Seventeenth amendment made no direct change in article 145 and did not amend it. (1) ; 920 Art 3 1B retrospectively validated the Acts mentioned in the Ninth Schedule notwithstanding any judgment decree or order of any court though they take away or abridge the rights conferred by Part Ill. It is said that the Acts are still bom and cannot be validated. But by force of article 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 article 3 1B amends article 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 no longer exists, and the law declared by this Court can have no application. It is said that article 3 1B is a law with respect to land and other matters within the competence of the State Legislature, and the Parliament has no power to enact such a law. The argument is based on a misconception. The Parliament has not passed any of the Acts mentioned in the Ninth Schedule. article 3 IB removed the constitutional bar on the making of the Acts. Only the Parliament could remove the bar by the Constitution amendment. It has done so by article 3 1 B. The Parliament could 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 article 3 1 B made a comprehensive amendment of all the articles by providing that the Acts shall not 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 article 31B the competent legislatures will continue to the power to repeal or amend the Acts. The subsequent repeals and amendments are not validated. If in future the competent legislature passes a repealing or amending Act which is inconsistent with Part III it will be void. I have, therefore, coma to the conclusion that the First, Fourth, Sixteenth and Seventeenth Amendments are constitutional and am not void. If so, it is common ground that these petitions must be For the last 16 years the validity of constitutional 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 not now reverse our previous decisions and pronounce them to be invalid. Having heard lengthy arguments on the question I have 921 come to the conclusion that the validity of the constitutional amendments was rightly upheld in Sri Sankari Prasad Singh Deo 's(1) and Sajjan Singh 's(2) cases and I find no reason 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 now 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 conferred by Part M. If they are laws they are necessarily rendered void by article 13(2). If they are void, they do not 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 not given to the Judges. The argument for the petitioners suffers from a double fallacy, the first that the Parliament has no power 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 not possible to say that the First and Fourth amendments though originally invalid have now been validated by acquiescence. If they infringed article 13(2),t they were void from their inception. Referring to the 19th amendment of the U.S. Constitution, Brandeis, J. said in Leser vs 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) ; (2) [1965] 1 S.C.R. 933. (3) ; : ; , 51 1. 922 not 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 Singh 's case. If the First and the Fourth Amendments are validated by acquiescence, the Seventeenth is equally validated. Before concluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the course of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution. See State of Travancore Cochin and others vs The Bombay Co. Ltd.( ' ). Accordingly, I do not rely on them as aids to construction. 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 not regard the fundamental rights as amendable. This contention is not 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 consists 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 not mentioned in Part III or article 304, all that is necessary for them is to have two thirds majority. They can amend it. Mr. President : Of Members present. Now, we have no doubt 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 article 368. But he never said that part III was s not amendale. He maintained consistently that all the articles of the Constitution are amendable under article 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. (2) Constituent Assembly Debat Vol. IX p. 1661. 923 Constitution could 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 cover a very large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of not 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 not 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 not 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 come in for a virulent attack at the hands of the critics of the Draft Constitution. it is said that the provisions contained 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 not 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 contained in the American and Australian Constitutions. 'Compared to them those contained 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 convention 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. 924 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 not 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 conceive a simpler method of amending the Constitution."(, ') On December 9, 1948 , Dr. Ambedkar said with reference to article 32: "The Constitution has invested the Supreme Court with these rights and these writs could not 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 condemnation of the Constitution largely comes 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 comes into power, they would have the unfettered freedom not 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 consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country. 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 (1) Constituent Assembly Debates Vol. 7, pp. 35 6, 43 4. (2) Constituent Assembly Debates Vol. 7, 953. 925 that we, in the like manner, can make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living. I admit that what Jefferson has said is not merely true, but is absolutely true. There can be no question about it. Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame, even to condemnation. But I ask, has it? Quite the contrary. One has only to examine the provision relating to the amendment of the Constitution. The Assembly has not 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 conditions 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 country 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 no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a Nation 's 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 country, possessed of the (1) Constituent Assembly Debates Vol. I 1, pp. 975 6. (2) Constituent Assembly Debates Vol. 7, p. 322. 926 right or the power of binding and controuling posterity to the end of time ', or of commanding 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 nor the power to do, nor 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 no property 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 no more right to dispose of the people of the present day, or to bind or to controul them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or controul those who are to live a hundred or a thousand years hence. Every Generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this World, he has no longer 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 costs. Ramaswami, J. I have perused the judgment of my learned Brother Wanchoo, J. and I agree with his conclusion that the Constitution (Seventeenth Amendment) Act, 1964 is legally valid, but in view of the importance.of the constitutional 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 article 32 of the Constitution, a common question arises for determination, viz.,. whether the Constitution (Seventeenth Amendment) Act, 1964 which amends article 31 A and 3 1 B of the Constitution is ultra vires and unconstitutional, . 927 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 contention 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 consists of three sections. The first section. gives its short title. Section 2 (i) adds a proviso to Cl. ( 1 ) of article 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 comprised therein is held by a person under his personal cultivation, it shall not 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 compensation at a rate which shall not be less than the market value thereof." Section 2(ii) substitutes the following sub clause for sub cl. (a) of cl. (2) of article 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 (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any ianmam right; (ii) any land held under ryotwari settlement; (iii) 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 consider the scope and effect of the provisions contained in article 368 of the Constitution, because the main controversy in the present applications turns upon:the 928 decision of the question as to what is the construction 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 not 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 (a) Article 5, article 55, article, 73, article 162 or article 241, or (b) 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 not 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 articles . 31 A and 31 B. These Articles were added to the Constitution with retrospective effect by section 4 of the Constitution (First Amendment) Act, 1951. Soon after the promulgation of the Constitution, the political party in power, commanding 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 courts of law on the ground that they contravened the 'fundamental rights conferred 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 corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively (See Kameshwar Uttar Pradesh and Madhya Pradesh by enacting legislation which 929 vs State of Bihar(1) and Surya Pal vs 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 article 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 considered 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 articles 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 B. The second step in the same direction was taken by Parliament in 1955 by amending article 31 A by the Constitution (Fourth Amendment) Act, 1955. The object of this amendment was to widen the scope of agrarian reform and to confer on the legislative measures adopted in that behalf immunity from a possible attack that they contravened ' 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, article 31 B expressly provided that none, of the, Acts and Regulations specified in the 9th Schedule, nor 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 conferred by Part III, and it added that notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall subject to the power of any competent legislature to repeal or amend, continue 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 contained 20 Acts which were validated. It appears that notwithstanding 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 vs State of Kerala(3), the validity of the Kerala Agrarian Relations Act (IV of 1961) was challenged by writ petitions filed under article 32, and as a result of the majority decision of this Court, the whole Act was struck down. The decision of this (1) A I R. 1951 Pat. 91 (2) A.I.R. 1951 All. 674. (3)[1962] Supp. 1 S.CR. 829. 930 Court was pronounced on December 5, 1961. In A. P. Krishna swami Naidu vs The State of Madras(1) the constitutionality 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 consequence, 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 section 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 comprehensive 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 conferred by Part III .or the Constitution,falls within the prohibition of article 13 (2) which provides that "the State, 'shall, not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention 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 constituent power to amend the Constitution, and so, its validity will have. to be tested by article 13(2) itself. It was contended that the State" includes Parliament within article 12 and "law" must include, a constitutional amendment. It was said that it was the deliberate intention of the framers of the Constitution, who realised the sanctity of the fundamental rights conferred by Part III, to make them immune from interference not only by ordinary laws passed by the legislatures in the country but also from constitutional amendments. In my opinion, there is no substance in this argument. Although "law" must ordinarily include constitutional law, there is 'a juristic distinction between ordinary law made in exercise of legislative power and constitutional law which is Made in exercise of constituent 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)[1964]7 S.C.R.82. 931 pursuant to the power of law making conferred 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. 16, p. 181). In such a written Constitution, the amendment of the Constitution is .a substantive, constituent 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 article 368 is hence sui generis and cannot be, compared to the law making power of Parliament pursuant to article 246 read with List I and 111. It follows that the expresSion "law" in article 13(2) of the Constitution cannot be construed as including an amendment of the Constitution which is by Parliament in exercise of, its sovereign constituent 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 article 246 read with Lists I and In of the 7th Schedule. It is also clear, on the same line of reasoning, that 'law ' in article 13(2) cannot be construed so as to include 'law ' made by Parliament under articles 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 constitutional amendment made under article U8 so far as article 13(2) is concerned and does not fall within the definition of law within the meaning of this last article. It is necessary to add that the definition of 'law ' in article 13(3) does not include in terms a constitutional amendments though it includes "any Ordinance,, order, bye law, rule, regulation, notification, custom or usage ". It should be noticed that The language. of article 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 completely outside the scope of article 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 course 'of the, argument that Part III is headed as 'Fundamental Rights" and that article 32 "guarantee 's ' the right to move the Supreme Court by appropriate proceedings for enforcement of rights conferred 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 article 12. It cannot be suggested, that the expression "fundamental" lifts the fundamental rights above the Constitution itself. Similarly, the expression "guaranteed ' in article 32(1) and 32(4) means that the right to move the Supreme Court for enforcement of fundamental rights without 932 exhausting the, normal channels through the High Courts or the lower courts is guaranteed. This expression also does not place the fundamental rights above the Constitution. I proceed to consider the next question arising in this case, the scope of the amending power under article 368 of the Constitution. It is contended on behalf of the petitioners that article 368 merely lays down the procedure for amendment and does not vest the amending power as such in any agency constituted under that article. I am unable to accept this argument as correct Part XX of the Constitution which contains only article 368 is described as a Part dealing with the Amendment of the Constitution and article 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 article 368 plainly and unambiguously means amendment of all the provisions of the Constitution. It is unreasonable to suggest that what article 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 construction of the substantive part of article 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 article 368. Again, the words "the Constitution shall stand amended in accordance with the terms of the Bill" in article 368 clearly contemplate 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 article 368 confers 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 article 368, or whether it attracts the procedure contained in the proviso. It was suggested for the petitioners that the power of amendment is to be found in articles 246 and 248 of the constitution read with item 97 of List I of the 7th Schedule. I do not think that it is possible to accept this argument. Article 246 stats that 933 Parliament has exclusive power to make laws with respect to matters enumerated in List I in the Seventh Schedule, and article 248, similarly, confers power on Parliament to make any law with respect to any matter not enumerated in the Concurrent List or State List. But the power of law making in articles 246 and 248 is "subject to the provisions of this Constitution". It is apparent that the power of constitutional amendment cannot fall within these Articles, because it is illogical and a contradiction 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 article 368 is subject to the doctrine of implied limitations. In other words, it was contended that even if article 368 confers the power of. amendment, it was not a general but restricted power confined 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 compact 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 compact 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 article 368. It was contended 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 correct. If the Constitution makers considered that there were certain basic features of the Constitution which were permanent it. is must unlikely that they should not have expressly said in Art 368 that these basic features were. not amendable. On the contrary, the Constitution makers have expressly provided. that article 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 article 368 or under the main part of that Article. In MY opinion, there is no room for an. implication in the construction of article 368. So far as the federal character of the Constitution is concerned, it was held by this Court in State of West Bengal vs Union of Cl/67 14 934 India(1) that the federal structure is not an essential pan of our Constitution and there is no compact between the States and them is no dual citizenship in India. It was pointed out in that case that there was no constitutional 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 could not be implemented even by legislation under article 368 because of the limitation imposed by the preamble to the Constitution and that such an agreement could not be implemented by a referendum. The argument was rejected by this Court and it was held that the preamble could not, '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 not possible to accept this argument as correct. The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights. The Directive Principles of Part IV are as fundamental as the constitutional rights embodied in Part III and article 37 imposes a constitutional duty upon the States to apply these principles in making laws. Reference should in particular be made to article 39(b) which enjoins upon the State to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. article 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 article 368 is clear and unambiguous in support of, the view that there is no implied 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) 935 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 conflicting principles is a dynamic task. The adjustment between freedom and compulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions. The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by the social responsibility, by the necessities of the Society, by the balancing of interests and not 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 control 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 compare 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 conditions. 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 contract to relation as we have passed from status to contract. Men are so involved in intricate networks of relations that the place for their 936 liberty is in a sphere where their behaviour does not impinge upon that self affirmation of others which is liberty." (Encyclopaedia of the Social Sciences, Vol. IX, 445.). It must :not be forgotten that the fundamental right guaran teed by article 31, for. instance. is not absolute. It should be not 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 Co 'stitution. If such a Bill has been passed and assented to by the President, the Courts shall have no jurisdiction to question the validity of such law on the of contravention of cl. (2), ie., on the ground that it does not provide for compensation 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 commencement of the Constitution i.e., Acts providing for public acquisition which were enacted not earlier than July 26, 1948. If the President certifies ' 'such an Act within 3 months from the commencement of the Constitution, the Courts shall have no jurisdiction to invalidate that Act on the ground of contravention 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 contained in cls. (2) to (6) of article 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 article 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), could not 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 come. The Constitution makers , must have anticipated that in dealing with, socioeconomic problems which the 1egislatures may have to face from time to time, the concepts of public interest and other important considerations which are the basis of cls. (2) to (6), may change and may even expand. As Holmes ' J. has said in Abrams vs 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) ; , 630. 937 intended that Parliament should be competent to make amend ments in these rights so as to meet the challenge of the problems which may arise in the course of socioeconomic progress and development of the country. I find it therefore difficult to accept the argument of the petitioners thal the Constitution makers contemplated 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 construing article 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 not 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 constitution has been placed, so to speak, outside the constitution, 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 conclusion 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 competence as well as that of others '. 938 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 could proceed to alter Article Five or any other part of the Constitution. While it is true that the sovereign cannot act otherwise than in compliance 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 no such implied limitations as that an amendment shall not contain a new grant of , power nor be in the form of legislation, nor change "our dual form of government nor change the protection of the Bill of Rights, nor make any other change in the Constitution." James G. Randall also enunciates the proposition that when a constitutional amendment is adopted "it is done not by the 'general government, but by the supreme sovereign power of the nation i.e., the people, acting through State Legis latures or State conventions" 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 ; seems to be that there is no limit to the power to amend the Constitution, except that a State may not without its consent 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 could be surrendered to the States, or all of the reserved powers of the States could 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 constitutional amendment without any possibility of the reversal of the court 's action except through revolution. " 939 The matter has been clearly put by George Vedel in Manuel Elementaire De Droit Constitutionnel (Recueil Sirey) at page 117 as follows : "Truly speaking no constitution 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 no juridical value. In truth from the juridical viewpoint a declaration of absolute , constitutional 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 constitution 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 corresponds to the idea that the constituent assembly of today cannot bind the nation of tomorrow. " the argument of implied limitation was advanced by Mr. N. C. Chatterji and it was contended 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 constitutional amendment and that the preamble to the, Constitution did not 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 article 368 can make a law to give effect to and implement the Agreement in question or to pass a law amending article 3 so as to cover cases of cession of the territory of India and thereafter make a law under the amended article 3 to implement the Agreement. (1) 940 There is also another aspect of the matter to be taken into account. If the fundamental rights are unamendable and if article 368 does not include any such power it follows that the amendment of, say, article 31 by insertion of articles 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 could be made by convening 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 section Hawke vs 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 conventions 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 contention that article 31 is not 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 not through, peaceful means, It cannot be reasonably supposed. that the Constitution makers contem plated that article 31 or any other article on fundamental rights should be altered by a violent revolution and not by peaceful change. It was observed in Feigenspan vs Bodine (2) "If the plaintiff is right in its contention of lack of power to insert the Eighteenth Amendment into the United States Constitution because of its subject matter. it follows that there is no way to incorporate it and others of like character into the national organic law, except, through revolution. This, the plaintiff concedes, is the inevitable conclusion of its contention. This is so starting a proposition that the judicial mind may be pardoned for not readily acceding to it, and for insisting that only the most convincing 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 contended for the petitioners,that there would be anomalies if article 368 is interpreted to have no implied limita (1) ; (2)264 Fed. 941 tions. It was said that the more important articles of the Constitution can be amended by the procedure mentioned in the substantive part of article 368 but the less important articles would require ratification by the legislatures of not less than half of the States under the proviso to that Article. It was argued that the fundamental rights and also article 32 could be amended by the majority of two thirds of the members of Parliament but article 226 cannot be amended unless there was ratification of the legislatures of not less than half of the States, It was pointed out that articles 54 and 55 were more difficult to amend but not article 52. Similarly, article ' 162 required ratification of the States but not article 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 article 368 is not to divide the Articles of the Constitution into two categories, viz., important and not so important Article. It was contemplated by the Constitution makers that the amending power in the main part of article 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 contended that if article 368 was construed without any implied limitation the amending power under that Article could 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 no limitations on the power to amend. It was suggested that Parliament may, by a constitutional 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 contingencies. It is, however, not permissible, in the first place, to assume that in a matter of constitutional 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 not to be used as a test of the existence or extent of a legal power [See for example, State of West Bengal vs 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) [1964]1 S.C.R. 371. 942 anomalous to speak of 'abuse ' of a power of this description. In the last analysis, political machinery and artificial limitations will not protect the people from themselves. The perpetuity of our democratic institutions will depend not upon special mechanisms or devices, nor even upon any particular legislation, but rather upon the character and intelligence and the good conscience of our people themselves. As observed by Frankfurter, 1. in American Federation of Labour vs American Sash & Door Co.(1) "But a democracy need rely on the courts to save it from its own unwisdom. If it is alert and without alertness by the people there can be no enduring 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 consider 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 no right 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 articles 245 and 246 of the Constitution 'clearly showS that Parliament has no right 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 not 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 country by granting them immunity from attack based on the plea that they contravene fundamental rights. The impugned Act was passed by Parliament in exercise of the amending power conferred by article 368 and it is impossible to accept the argument that the constitutional power of amendment can be fettered by articles 245 and 246 or by the legislative Lists. It was argued for, the petitioners that Parliament cannot validate a law Which it has no Power 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 contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament and within the amending power conferred by article 368. I am accordingly of the opinion that the petitioners are unable to (1) ; ,556. 943 substantiate their argument on this aspect of the case. I should like to add that in Lesser vs Garnett(1), in National Prohibition Cases(2 ) and in United States vs Sprague(3), a similar argument Was advanced to the effect that a constitutional amendment was not 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 article 368 of the Constitution because these articles deprive the High Courts of the power to issue appropriate writs under article 226 of the Constitution. I do not "think there is any substance in this argument. The impugned Act does not purport to change the provisions of article 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 not either in terms or in effect seek to make any change in article 226 of the Constitution. Article 31 A aims 'at saving laws providing for the compulsory 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 article 13 It is therefore ' not correct to say that the powers of High Courts to issue writs is, in 'any way, affected. The jurisdiaction 'of the High Courts remains just the same as it Was before. Only 'a certain category of cases has been excluded from the purview of Part III and the High Courts can no longer intervene, not because their Jurisdiction or powers have been curtailed in any manner or to. any but because there would be no occasion 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 article 226 of the, Con stitution is not direct but only incidental in character and therefore the contention " of the petitioners on this point against the validity of the impugned Act must be rejected. It is well settled that in examining a constitutional question of this character, it is legitimate to consider whether the impugned legislation is a legislation directly in respect of the subject matter covered by any particular article of the Constitution or whether touches the said articles only incidentally or indirectly. In A. K. Gopalan vs The State of Madras (4), kania , C.J., had occasion to consider the validity of the argument that, the Preventive detention order resulted in the detention of the applicant in a cell, and so, it contravened his fundamental rights guaranteed by (1) ; (2)253 U.S. 350. (3) ; (4) ; 101. 944 article 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 consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's life. On that ground alone, he was inclined to reject the contention that the order of detention.contravened the fundamental rights guaranteed to the petitioner under article 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 contended 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 correct, 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 considered, the argument must clearly be rejected. In spite of the saving clauses (2) to (6), permitting abridgement of the rights connected 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 conclusion necessarily follows from the article, it is obvious that such construction should be avoided. In my opinion, suc h result is. clearly not the outcome of the Constitution. The article has to be read without any pre conceived notions. 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 control a citizen 's 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 not 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 not arise. 'Me true approach is only to consider the direct ness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu 's 945 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 construction 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 vs The State of Madras( ) did not receive, the concurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh & Others vs 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. vs The Union of India( '), in the majority judgment in Atiabari Tea Co. Ltd. vs The State of Assam (4 ) and in Naresh Shridhar Mirajkar vs The State of Maharashtra("),. Applying the same principle to the present case, consider that the effect of the impugned Act on the powers of the High Court under article 226 is indirect and incidental and not direct. I hold that the impugned Act falls under the substantive part of article 368 because the object of the impugned Act is to amend the relevant Articles in Part III which confer fundamental rights on citizens and not to change the power of the High Courts under article 226. In this connection I should like to refer to another aspect of the matter. The question about the validity of the Constitution (First Amendment) Act has been considered by, this Court in Sri Sankari Prasad Singh Deo vs 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 articles 31 A and 31 B sought to make changes in articles 132 and 136 in Ch. IV of Part V and article 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 contained in Part ITT, the amendment made in that behalf would have to be tested in the light of provisions of article 13(2) of the Constitution. The argument was that the law to which article 13(2) applied would include a law passed by Parliament by virtue of its constituent power to amend the Constitution, and so, its validity will have to be tested by article 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 consideration in Sajjan Singh vs State of Rajasthan (7) with regard to the validity of the Constitution (Seventeenth Amendment) Act, 1964. In that case, the petitioners in their (1) ; (2) ; ,456. (3) ,129 30. (4) ; , 864. (5) ; (6) [1995] 1 S.C.R. 89. (7) 946 Writ Petitions in this Court contended that the Constitution (Seventeenth Amendment) ' Act was constitutionally invalid since the powers Prescribed by article 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 article 368 should have been followed. It was further contended in that case that the decision of this court in Sankari Prasads(1) case should be reconsidered. 'Both the contentions 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 article 226 was incident and insignificant and the impugned Act therefore fell under the substantive part of article 368 and did not attract the proviso to that article. It was further held. by this Court that there Was no justification for re considering Sankari Prasad 's(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 contention must be accepted as correct. If the arguments urged by the petitioners are to prevail it would leadto the inevitable consequence 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 Prasad 's(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 Prasad 's(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 covered more than 40 per cent of the area. There were large disparities in the ownership of land held under ryotwari tenurer which covered 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 conditions, the, principal. measures recommended for securing the objec (1)[1952] S.C.R. 89. 947 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 consolidation of agricultural holdings and increse in the size of the operational unit to an economic scale through cooperative 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 country. About 20 million tenants of former intermediaries came into direct relationship with the State and became owners of their holdings. State Governments are now engaged in the assessment and payment of compensation. There were some initial delays but a considerable progress hag been made in this direction in recent years and it is hoped that the issue of compensatory bonds will be completed 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 converting them into owners have 'been 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 not 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 not strictly apply to, a decision on a constitutional point. There is no restriction 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 construing constitutional provisions cannot be adequately solved by merely adopting 948 the literal construction 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 consequence 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 compelling character of the considerations urged in support of the contrary 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 consequence of the earlier decision. I have already dealt with the merits of the contention of the petitioners with regard to the validity of the impugned Act and I have given reasons for holding that the impugned Act is constitutionally valid and the contentions ,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 vs State of Rajasohan(2) is wholly unjustified and must be rejected. In Writ Petition No. 202 of 1966, it was contended by Mr. Nambyar that the continuance of the Proclamation of Emergency under article 352 of the Constitution was a gross violation of power because the emergency had ceased to exist. It was also contended that article 358 should be so construed as to confine its operation on to legislative or executive action relevant to the Proclamation of Emergency. It was submitted that the Mysore State was rot a border area and the land reform legislation of that State had no relevant connection with the Proclamation of Emergency and the fundamental rights conferred by article 19 cannot be suspended so far as the petitions are concerned. I do not think that it is necessary to express any opinion on these points because the Writ Petition must fail on the other grounds which I have already discussed above. It is also not necessary for me to express an opinion on the doctrine of prospective overruling of legislation. For the reasons already expressed I hold that all these petitions fail and should be dismissed, but there will be no order as to Petitions dismissed. Costs.

The validity of the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953) and of the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965 was challenged by the petitioners under article 32 of the Constitution. Since these Acts were included in the 9th Schedule to the Constitution by the Constitution (Seventeenth) Amendment Act, 1964, the validity of the said Amendment Act was also challenged. In this connection it was urged that Sankari Prasad 's case in which the validity of the constitution (First) Amendment Act, 1951 had been upheld and Sajjan Singh 's case in which the validity of the Constitution (Seventeenth) Amendment Act, 1964, had been upheld by this Court, had been wrongly decided. It was contended that Parliament had no power to amend fundamental rights in Part III of the Constitution. HELD: Per Subba Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ. (Hidayatullah, J. Concurring) : Fundamental Rights cannot be abridged or taken away by the amending procedure in Ail. 368 of the Constitution. An amendment to the Constitution is 'law ' within the meaning of article 13(2) and is therefore subject to Part III of the Constitution. Sri Sankari Prasad Singh Deo vs Union of India Rajasthan; , , reversed. Per Subba, Rao, C.J., Shah, Sikri, Shelat and Vaidialingam, JJ. (i) Fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a 763 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 communities 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 constituted an integrated scheme forming a self contained code. 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 control the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances, as in articles 33, 34 and 35. The non 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 conferred by the said Parts a fundamental right. Even during grave emergencies article 358 only suspends article 19 and all other rights are untouched except those specifically suspended by the President under article 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. article 13 merely in corporates that reservation. The Article is however not 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 not what Parliament regards at a given moment as conducive 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] A. K. Gopalan vs State of Madras, [1950] S.C.R.88, State of Madras vs Smt. Champakam Dorairajan, (1951) S.C.R. 525, Pandit M. section M. Sharma vs Shri Sri Krishna Sinha, [1959] Supp. 1 S.C.R. 806 and Ujjam Bai vs 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 control of fundamental rights is not final but justiciable. If it were not so, the whole scheme of the Constitution would break. [815 H; 816 A B] , (ii)Article 368 in terms only prescribes various steps in the matter of amendment. The article assumes the power to amend found else where. The completion of the procedural steps cannot be said to culminate in the power to amend for if that was so the Constitution makers could have stated that in the Constitution. Nor can the power be implied either from article 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 no necessity 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] (iii)The power of Parliament to amend the Constitution is derived from articles 245, 246 and 248 read with item 97 in List I. The residuary 764 power of Parliament can certainly take in the power to amend the Constitution. [794 A D] Though a law made under article 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 article 245 is in respect of the power to make a law and not of the content of the law made within the scope of its power. [794 E F] An order by the President under article 392 cannot attract Art 368 as the amendment contemplated 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 article 392 can amend the Constitution in terms of article 368. [794 G H] (iv) The Constituent Assembly, it so minded, could certainly have conferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process. There is, therefore, no inherent inconsistency between legislative process and the amending one. Whether in the field of a constitutional 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 not Prima facie exclude constitutional law. The process under article 368 itself closely resemble the legislative process. Article 368 is not a complete code 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 article 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 constitutional insistence on the said legislative process is unnecessary. The imposition of further conditions is only a safeguard against the hasty action or a protection to the states but does not 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 articles 4 and 169 amendments in the Solution are made by 'law ' but by a fiction are deemed not to be amendments for the purpose of article 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 article 368 or under other Articles are only made by Parliament following the legislative process and are 'law ' for the purpose of article 13(2). [798 C] Mccawley vs The king, [1920]A.C., 691 and The Bribery Commissioner vs Pedrick Ransinghe, ; , referred to. (v) One need not cavil at the description of amending power as a sovereign power for it is sovereign only viithin the scope of the power conferred 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 no limitations 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 court in denying that power will not be deciding 765 a political question; it will only be holding that Parliament has no power to armed Particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. [804 E G] (vi) If power to abridge the fundamental rights is denied to Parliament revolution is not a necessary result. The existence of an all comprehensive power cannot prevent revolution if there is chaos in the country brought about by misrule or abuse of power. Such considerations are out of place in construing the provisions of the Constitution by a Court of law. [816 B C] (vii) While ordinarily @ Court will be reluctant to reverse its previous decisions it is its duty in the constitutional field to correct itself as early as possible, for otherwise the future progress of the country and happiness of the people will be at stake. As it was clear that the decision in Sankari Prasad 's 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 contained the seeds of destruction of the cherished rights of the people, the sooner it was overruled the better for the country. [816 G H] The Superintendent and Legal Remembrancer Stale of West Bengal vs The Corporation at Calcutta; , relied on. (viii) 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 contravention of article 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 country 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 courts in the United States of America. [805 E; 807 E, G; 808 C D] Great Northern Railway vs Sunburst Oil & Ref. Co. ; , Chicot County Drainage vs Baxter State Bank; , , Griffin vs Illionis, ; , Wolf vs Colorado, ; : 193 L. Ed. 872, Mapp vs Ohio, ; : 6 L. Ed. (2nd Edn.) 1081 and Link letter vs Walker; , , referred to. (ix), The doctrine of "prospective overruling" is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of state decision but confines it to past transactions. While in Strict theory it may be said that the doctrine 'involves the making of law, *hat the court really does is to declare the law but refuse to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds the law and that it does make law It finds law but restricts its operation to the future. It enables the court to bring about a smooth transition by correcting, 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 F] Our Constitution does not expressly of by necessary implication speak against the doctrine of prospective overruling. Articles 32, 141 and 142 are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice. The expression 'declared ' in article 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 no acceptable reason why 7 66 the Court, in declaring the law in supersession of the law declared by it earlier, could not 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 country under different circumstances, it would like to move warily in the beginning and would lay down the following propositions : (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by highest court of the country, ie. the Supreme Court as it has the constitutional 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 not 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 no power to amend Part III of Abe Constitution so as to take away or abridge the fundamental rights. [814 F G] (x) 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, could, not be questioned on the ground that they offended Art 13, 14 or 31 of the Constitution. [815 E] (xi) On the findings the following, questions did not fall to be considered : (a) 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 ? (b) Whether the amendment of fundamental rights is covered by the proviso to article 368 ? (c) To what extent can the provisions of die Constitution other than fundamental rights be amended ? (d) To what extent can Part III be amended otherwise thin by taking away or abridging the fundamental rights ? (e) Whether the impugned Act could be sustained under the provisions of the Constitution without the aid of articles 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 constituent 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 not to be determined by taking an apriori view of the 767 omnicompetence of article 368. When there is conflict between that Article and article 13(2) juridical hermeneutics requires the Court to interpret them by combining 'them and not 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 no accession of strength to any provision. by calling it a code. It is, the context of the legal provisions that illustrates the meaning of the different parts so that among them and between them there should be correspondence and harmony. [857 H 858C] (ii) It is wrong to think of the Fundamental Rights as within Parliament 's giving or taking. They are secured to the people by articles 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, considered as comprehensively as is possible,offends the Fundamental Rights and article 13(2)declares that legislation which so offends is to be deemed to be void. The general words of article 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 not only any of the Fundamental Rights but the whole Chapter giving them. [860 A D; 867 FF] (iii) In Britain there is no distinction between constitutional law and ' ordinary law as to the procedure of their enactment. In our Constitution too in spite of the claim that article 368 is a Code articles 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 article 368 is a code and. also that any special method of amendment of the Constitution is fundamentally necessary. [861 E G] The only difference between constitutional law and ordinary law can, be said to arise from the fact that constitutional 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 not serve to distinguish it from the other laws of the land for the purpose of article 13(2). The Article itself does not exclude constitutional law which could have been easily done had the constitution makers. so intended. [862 B; 866 B] An amendment to the Constitution is not made under power derived ' from articles 245 or 248 of the Constitution read with entry 97 of List 1. The power of amendment is sui generis. [900 E] (iv) A narrow view need not 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 not 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 vs Milter, ; 307 U.S. 443 , Luther V. Borden,, and Baker vs Carr, 369 U.S. 186 ; , 633), referred to. The State is no doubt supreme but in the supremacy of its powers it may create impediments on its own sovereignty. There is nothing 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 constituted body. 768 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 no liberty based on law and law based on equality. The protection of the fundamental rights is necessary so that we may not walk in fear of democracy itself. [863 G; 864 A C; 865 A D] (v) In article 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 article 13(2) that any of the agencies acting alone or all the agencies acting together are not 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 article 13(2) is against the whole force of the State acting either in its executive or legislative capacity. [866 E H] (vi) 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 conceived that in following the Directive Principles the Fundamental Rights can be ignored. [867 G, 868 B] (vii) 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 vs Virginia, ; , Leser vs Garnett, ; , Dillon vs Gloss, ; and Texas vs White; , , referred to. It is not that Fundamental Rights are not 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 controlled but prohibits their erasure. [878 B] (viii) Parliament today is not the constituent body as the constituent 'assembly was but a constituted 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 constituent functions because they have been placed outside the scope of the power of the constituted Parliament. [870 B D] Our Constitution like some others has kept certain matters outside the amendatory process so that the their representatives. In article 35 obstante clause. They exclude Article under the proviso. It is therefore a great error to think of article 368 as a code or as omnicompetent. [901 C E; 902 A B] 769 Garnishee case; , , referred to. Article 368 cannot directly be amended by Parliament to confer power on itself over the fundamental rights, It would be against article 13(2). Parliament cannot do indirectly what it cannot do directly. [878 H] (ix) 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 article 368 to convoke another constituent assembly, pass a law under item 97 of the List 1 of Schedule 7 to call a constituent 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] (x) The various amendments that have been made by Parliament in articles 15, 16 and 19 did not abridge fundamental rights and were therefore valid. [879 C, 883 B] (xi) 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 compensation. 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 compensation and no challenge to the law can be made under articles 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 constituted 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 Singh 's case was wrong. [898 B C] (xii) The First, Fourth and Seventh amendments of the Constitution, cannot now be challenged because of long acquiescence. It is good sense and sound policy for the courts to decline to take up an amendment for consideration after a considerable lapse of time when it was not challenged before or was sustained on an earlier occasion after challenge. [893 O, H 1902 D E] Lesser vs Garnett, ; (1922), referred to. (xiii) 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 article 3 1A(1) (a) whose validity cannot now be challenged. The new definition of estate introduced by the amendment is beyond the reach of the Courts not because it is not law but because it is "law" and fills within that word in article 31(1) (2) (2A) and article 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 article 368 was not meant to give protection to State statute , which offend the Constitution. The intent here is to silence the courts and not to amend the Constitution. [900 A D] 770 (xiv) 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 not because they are included in Schedule 9 of the Constitution but because they are protected by article 3 1 A and the President 's 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 not 'law ' for the purpose of article 13(2) and cannot be tested under that Article. Sri Sankari Prasad Singh Deo vs Union of India, ; and Sajjan Singh vs State of Rajasthan, ; , reaffirmed. Per Wanchoo, Bhargava and Mitter, JJ. (i) The Constitution provides a separate part headed 'Amendment of the Constitution ' and article 368 is the only article in that Part. There can therefore, be no doubt that the power to amend the Constitution must be contained in article 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] (ii) While there is a whole part devoted to the amendment of the Constitution there is no specific mention of the amendment of the Constitution in article 248 or in any entry of List 1. It would in the circumstances 'be more appropriate to read the power in article 368 than in article 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 not 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 article 245 "subject to the provisions of this Constitution". [827 B, H] Mere accident of similarity of procedure provided in article 368 to that provided for ordinary legislation cannot obliterate the basic difference 'between constitutional law and ordinary law. It is the quality and nature of what is done under article 368 and not its similarity to other procedure that should be stressed. What emerges after the procedure in article 368 has been followed is not ordinary law but fundamental law. [829 D; 830 C D] (iii) The procedure under the proviso to article 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 article 368 differs from, the ordinary legislative process. [831 B E] (iv) The word 'law ' has been avoided apparently with great care in Art.368. What emerges after the procedure has been followed is not an Act but the Constitution stands amended. After that the courts can only see whether the procedure in article 368 was followed. If it has been followed there is no question 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] 771 (v) 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 contained in article 368 goes to the extent of completely 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 conferred by Parliament to amend the Constitution by article 368. [834 H] (vi) There is no express limitation on power of amendment in article 368 and no limitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be not amendable there is no reason why it was not so stated in article 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 courts 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 concerned. [835 A; 836 D, G] (vii) For interpreting article 369 it is not permissible to read the speeches made in the Constituent Assembly. Historical facts namely what was accepted or what was not accepted or what was avoided in the Constituent Assembly can be looked into; but in connection with article 368 no help can be got from the historical material available. [838 C] Administrator General, of Bengal vs Prem Lal Mullick, (1895) XXII I.A 107, Baxter vs Commissioner of Taxation, (1907) 4 C.I.R. 1087, A. K. Gopalan vs State of Madras [1950] S.C.R. 88 and The Automobile Transport (Rajasthan) Ltd. vs State of Rajasthan, [1963] 1 S.C.R. 491, referred to. (viii) The preamble to the Constitution cannot prohibit or control in any way or impose any implied restrictions or limitations on the power to amend the Constitution contained in Aft. 368. [838 H] In re the Berubari Union and Exchange of Enclaves, , referred to. (ix) The word 'law ' in article 13(1) does not include. any law in the nature of a constitutional.provision for no such law remained in view of article 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 not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed. There is no reason why if the word 'law ' in article 13(1) relating to past laws does not include any constitutional 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 contained in Ch. 1 of Part XI of the Constitution beginning with article 245. It can have no reference to the 772 Constituent power of amendment under article 368. For it is somewhat contradictory that in article 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 article 13(25.[841 C] The power conferred by the words of article 368 being unfettered, inconsistency between. that power and the provision in article 13(2) must be avoided. Therefore in keeping with the unfettered power in article 368 the word 'law ' in article 13(2) must be read as meaning law passed under the ordinary legislative power and not a constitutional amendment. The words in article 13(2) are not specific and clear enough to be regarded as an express limitation on article 368. [842 G H] (x) Merely because there was some indirect effect on article 226 it was not necessary that the Seventeenth Amendment should have been ratified under the proviso to article 368. article 245 had not also been directly affected by the said Act and no ratification % as required on this ground either. [843 G H; 846 C] (xi) The laws added to the Ninth Schedule by the Seventeenth Amendment Act had already been passed by the State Legislatures and it was their constitutional infirmity, if any, which was being cured by the device adopted in article 31B read with the Ninth Schedule, the amendment being only of the relevant provisions of Part III which were compendiously put in one place in article 31B. Parliament could alone do it under article 368 and there was no necessity for any ratification under the proviso, for amendment of Part HI is not entrenched in the proviso. [847 E] In curing the infirmity of the said laws Parliament was not encroaching on the exclusive legislative powers of the States because only Partiament could card the infirmity. For the same reason the fact that the laws in question were State laws did. not 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 not in the courts but in the people who plect members of Parliament. [848 F] The power of amendment contained in a written federal constitution 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 , could 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 command Special majorities which are required in article 368, not only at the Centre but in all the States. But that is no ground for limiting the clear words of article 368. [850 C D, E] (xii)Though the period for which Sankari Prasad 's case has stood unchallenged is not 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 not 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; , , referred to. (xii)The doctrine of prospective overruling cannot be accepted in this country. The doctrine accepted here is that courts declare law and that a declaration made by a court is the law of the land and takes effect 773 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 contravening article 13(2) is void ab initio as held by this Court in Deep Chand 's case and Mahendra Lal Jaini 's case. In the face of these decisions it is impowible to apply the doctrine of prospective overruling to ordinary laws. If constitutional law is to be treated as ordinary law the same principle applies. If however it is not treated as 'law ' under article 13(2) then there is no necessity of applying the principle of prospective overruling for in that case the amendment under article 368 does not have to be tested under article 13(2). [852 G H; 853 B] Deep Chand vs St ate of Uttar Pradesh, [1959] Supp. 2 S.C.R. 8 and Mahendra, Lal Jaini vs State of Uttar Pradesh, [1963] Supp. 1 S.C.R. 912, referred to. Per Bachawat J. (i) Article 368 not 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 no other 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 not to be amendment for the purpose of article 368. All other provisions of the Constitution can be amended by recourse to article 368 only. No other article confers the power of amending the Constitution. [904E F] (ii) The power to amend the Constitution cannot be said to reside in article 248 and List 1, item 97 because if amendment could be made by ordinary legislative process article 368 would be meaningless. Under the residual power the Parliament has no competence to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule, but under article 368 even Lists 11 and III can be amended. Moreover a law passed by residual power is passed by virtue of article 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 P] (iii) Article 368 gives the power of amending 'this Constitution '. This Constitution means every part of the Constitution including Part ITT and article 13(2). Thus article 13(2) is also within the reach of the amending power. Instead of controlling article 368 it is controlled by that Article. [906 C D; H] (iv) The contention that a constitutional amendment under article 368 is a law within the meaning of article 13 must be rejected. The distinction between the Constitution and law is so fundamental that the Constitution is not regarded as a law or a legislative act. The Constitution mean , the Constitution as amended. An amendment made in conformity with article 368 is a part of the Constitution and is likewise not law. Save as expressly provided in articles 4, 169 Fifth Schedule Part D and Sixth Schedule para 21 no law can amend the Constitution and a law which purports to make such an amendment is void. It is for this reason that article 368 avoids all reference to law making by the Parliament. There 3 Sup. CI./67 4 774 are. also material differences between the ordinary law making procedure and the procedure under the Article. [907 B F; 908 D H] If a constitutional amendment creating a new fundamental rights and incorporating it in Part III were a law, it would not 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 conclusion is absurd for the body which enacted the right can surely take it away by the same process. [909 E] Marbury vs Madison, ; :2 L.Ed. 60 and Riley vs Carter, , referred to. (v) There is no conflict between articles 13(2) and 368. The two articles operate in different fields, the former in the field of law, the latter in that of constitutional amendment. [910 B] (vi) The non obstante clause in article 35 does not show that the article is not amendable. The non obstante clause is to be found also in, articles 258(1). 364, 369, 370 and 371A. No one has suggested that these articles are not amendable. [910 D] (vii) The words 'fundamental ' used in regard to rights in Part III and the word guaranteed in article 32 do not mean that the said rights cannot be amended. The constitution is never at rest; it changes with the progress of time. The scale of values in Parts III and IV is not immortal and these Parts being parts of the Constitution are not immune from amendment under article 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, conferred by Part III cannot be abridged or taken away by constitutional amendments, all these amendments would be invalid. The Constitution makers could not have intended that the ' rights conferred by Part III could not be altered for ' giving effect to the policy of Part. Nor was it intended that defects in Part III could not be cured or that possible errors in judicial interpretations of Part III could not be rectified by constitutional amendments. [913 D E] (viii) 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 not 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 vs Outrim, and amalgamated Society of Engineers '. The Adelaide Steamship Company Limited & Ors. ; , referred to. (ix) The main part of article 368 gives the power to amend or make changes in the Constitution. A change is not 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 vs E. G. Waite, L.R.A. 312 and National Prohibition case. ; , referred to. 77 5 (x) The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments. No one in Parliament doubted the proposition that fundamental rights could be amended, when the First Amendment Act of 1951 was passed. The concept of amendability was upheld in section Krishnan & Ors. vs State of Madras ; decided in 1951, 'in Sankari Prasad decided in 1952 and Sajjan Singh decided in 1964. [918 C D] (xi) There is no provision in the Constitution for calling a convention for its revision or far submission of any proposal for amendment to the referendum. [918 G] (xii) The impugned amendments affected articles 226 and 245 only indirectly and did not require ratification under the proviso to article 168. [919 D H] In validating the impugned laws Parliament was not encroaching on .the State List. It was only validating the said laws and such constitutional validating was within its competence. [920 C E] (xiii) 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 not 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 not given to the Judges and therefore the doctrine of prospective overruling cannot be, adopted. [921 D E] It is not possible to say that the First and Fourth Amendments though originally valid have now been validated by acquiescence. If they infringe article 13(2) they were void from their inception. If these ammendments are validated by acquiescence the Seventeenth Amendment is equally validated. B] (xv) The contention that Dr. Ambedkar did not regard the fundamental rights as amendable is not 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 constituent act which, is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation. The amending power in article 368 is hence sui generis and cannot be compared to the law making power of Parliament pursuant to article 246 read with Lists II and Ill. It follows that the expression 'law ' in article 13(2) cannot be construed as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign constituent power but must mean law made by Parliament in its legislative capacity under article 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 article 13(2) cannot be construed so as to include "law ' made by Parliament under articles 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 constitutional amend ment made under article 368 so far as article 13(2) is concerned. [930 H 931 E] (ii) The language of article 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever. 776 The use of the word 'fundamental ' to describe the rights in Part III and the word 'guaranteed ' in article 32 cannot lift the fundamental rights above the Constitution itself [931 F, H] (iii) It is unreasonable to suggest that what article 368 provides is only the mechanics of the procedure for amendment and not the power to amend. 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 and the procedure to amend are enacted in article 368. Again the words "the Constitution shall stand amended in accordance with the terms of the Bill" in article 368 clearly contemplate and provide for the power to amend after the requisite procedure has been followed. [932 C E] (iv) The power of constitutional amendment cannot fall within articles 246 and 248 read with item 97 of List I because it is illogical and a contradiction 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] (v) There is no room for an implication in the construction ofArt. If the Constitution makers wanted certain basic features to be unamendable they would have said so. [933 G H] State of West Bengal vs Union of India, [1964] 1 S.C.R. 371 and In re The Berubari Union and Exchange of Enclaves , referred to. The concepts of liberty and equality are changing and dynamic and hence the notion of permanency or immutability cannot be attached to any of the fundamental rights. The adjustment between freedom and compulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and conditions. The proper approach is therefore to look upon the fundamental rights of the individual as conditioned by social responsibility, by the necessities of the society, by the balancing of interests and not as pre ordained and untouchable private rights. [934 E 935 C] (vi) It must not be forgotten that neither the rights in article 31 nor those in article 19 are absolute. The purposes for which fundamental rights can be regulated which are specified in cls. (2) to (6) could not 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 come. Today at a time when absolutes are discredited, it must not 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] (vii) In construing article 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 not admit of any limitations. [937 D] (viii) If the fundamental rights are unamendable and if article 368 does not include any such power it follows that the amendment of, say, article 31 by insertions of articles 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 777 Constitution provides its own method of amendment, any other method will be unconstitutional and void. [490 A B] George section Hawke vs Harvey C. Smith, ; and Feigenspan vs Bodine, , referred to. (ix) It is not permissible in the first place to assume that in a matter of constitutional 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 not protect the people from themselves. [941 F G] State of West Bengal vs Union of India, [1964] 1 S.C.R. 371 and American Federation of Labour vs American Sash & Door Co. ; , referred to. (x) What the impugned Act purports to do is not to make any and legislation but to protect and validate the legislative measure passed by different State legislatures. This was within the legislative competence of Parliament. [942 F] Leser vs Garnett, ; , National Prohibition Cases. ; and United States vs Sprague, ; , referred to. Articles 226 and 245. were not directly affected by the impugned Act and therefore no ratification by the State Legislatures was necessary. [942 D H; 945 D] A. K. Gopalan vs State of Madras, ; , Ram Singh & Ors. vs State of Delhi & Anr. , ; , Express Newspapers (Pvt.) Ltd. vs Union of India, , Atiabari Tea Co. Ltd. vs State of Assam, ; and Naresh Shridhar Mirajkar vs State of Maharashtra ; , referred to. (xi) 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 Prasad 's case and Sajjan Singh 's case must be rejected. [948 D E] On the landings it was not necessary to express an opinion on the doctrine of prospective overruling of legislation.

ivil Appeal No. 517 of 1967. Appeal from the judgment and order dated October 3, 1966 of the Kerala High Court in Original Petition No. 934 of 1964. M.R.K. Pillai, 'for the appellant. R. Gopalakrishnan, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the judgment of the Kerala High Court in O.P. No. 934 of 1964. The respondents are dealers in tobacco and tobacco preparations and are doing business in Mattancherry in the name and style of A.S. Bava, Tobacconist. In the year 1909, Cochin Tobacco Act 7 of 1084 (M.E.) was enacted by the Maharaja of Cochin. Section 4 of that Act prohibited the transport, import of export, sale and cultivation of tobacco except as permitted by the Act and Rules framed thereunder. Section 6 of the Act gave power to the Dewan to make rules from time to time consistent with the Act, to permit absolutely or subject to any condition the possession for sale, or cultivation of tobacco. In pursuance of the power given by this section the Dewan was making rules from time to time relating to the matters specified in the Act. Cochin State was integrated with Travancore on April 1, 1960 in order to form the new .State of Travancore Cochin. On that date, after the Constitution came into force the State of Travancore Cochin became a Part B State and by the Finance Act, 1960 the Central Excise and Salt Act 1 of 1944 was extended to the Travancore Cochin State. Section 13(2) of the Act provided that if immediately before the first day of .April, 1960 there was in force in any State other than Jammu & Kashmir a law corresponding to, but 702 other than, an Act referred to in sub section (1) or (2) of section 11, such law was repealed with effect from such date. In consequence of this provision in the Finance Act rules which were in force on April 1, 1950 were changed in Cochin and by a notification dated August 3, 1950 the system of auction sales of A and B Class shops was done away with and instead graded licence fees were introduced for various classes of licences including 'C ' class licences. The State of Travancore Cochin was collecting licence fee from the respondents for the period from August 17, 1950 to December 31, 1967 on the strength of the said rules framed by the Travancore Cochin State. In 1956 the respondents filed O.P. No. 70 of 1956 in the High Court of Kerala for the refund of the licence fee collected after April 1, 1950 on the ground that the Cochin Tobacco Act stood repealed by the Finance Act, 1960 because of the extension of the Central Excise and Salt Act 1 of 1944 to the Part B State of Travancore Cochin and in consequence the notifications issued in August 1950 and January 1961 framing new rules for the issue of licences and prescribing fees therefor under the powers conferred by the Cochin and Travancore Acts were ab initio void because the Acts under which the notifications .were purported to be issued stood repealed from April 1, 1950. The petition was opposed by the appellant on the ground that the Act and the rules were not repealed by the extension of the Central Excise and Salt Act 1 of 1944 to Travancore Cochin State. The High Court dismissed the writ petition holding that the tax levied by virtue of the rules framed under the Travancore Cochin Tobacco Acts was not a duty of excise coming within the Union List but it was a tax on luxuries coming within entry 62 of the State List. The respondents took the matter in appeal to this Court which held that the rules framed under the Cochin Tobacco Act of 1084 (M.E.) and the Travancore Tobacco Regulation of 1087 (M.E.) requiring licences to be taken out for storage and sale of tobacco and for payment of licence fee in respect thereof were law corresponding to the provisions of the Central Excise and Salt Act, 1944 and hence were superseded on April 1, 1960 by virtue of section 13(2) of the Finance Act, 1960. Consequently, the new rules framed in August 1950 and January. 1951 for the respective areas of Cochin and Travancore for the issue of licences and payment of fee for storage of tobacco were invalid ab initio. The Court did not consider it necessary to decide whether the Cochin and Travancore Acts were within the competence of the State Legislature under Entry 62 of List II for that question would only arise if those Acts were not repealed as corresponding law under section 13(2) of the Finance Act. Soon after the decision of this Court the respondent complained to the appellant that a sum of Rs. 1,11,750 had been illegally collected as licence fee from 1125 to 1133 M.N. On 703 April 29, 1962 the appellant refunded a sum of Rs. 73,500 but did not return the balance. On December 16, 1963 the Government of Kerala Promulgated Ordinance I of 1963 which was later replaced by Act 9 of 1964. The Ordinance was promulgated in order to avoid the effect of the decision of this Court in A.B. Abdulkhadir & Ors vs The State of Kerala(1) in respect of the period from August 17, 1950 to December 31, 1957. Section 3 of the Act provides: "For the period beginning with the 17th day of August, 1950 and ending on the 31st day of December, 1957 every person rending or stocking tobacco within any area to which this Act extends shall be liable and shall be deemed always to have been liable to pay a luxury tax on such tobacco in the form of a fee for licence for the vend and stocking of the tobacco, at such rates as may be prescribed not exceeding the rates specified in the schedule." Section 4 confers rule making power and states: "(1) The Government may, by notification in the Gazette, make rules to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for : (i) the prohibition of the vending of tobacco except under a licence; (ii) the issue of licences for the vend 'and stocking of tobacco and the procedure therefor; (iii) classification of licences and the rate at which tax in the form of a fee for licence may be levied for each class of licences; (iv) appeals from orders under the rules. (3) The rules and notifications specified 'below purported to have been issued under the Tobacco Act of 1087 (Travancore Act I of 1087) or the Cochin Tobacco Act VII of 1084 as the case may be, in so far as they relate or purport to relate to the levy and collection of fees for licences for the vend and stocking of tobacco, shall be deemed to be rules issued ,under this (1) [1962] Supp. S.C.R. 741. 704 section and shall be deemed to have been in force at all material times: . . Section 5 provides: "Notwithstanding any judgment, decree or order of any court, all fees for licences for the vend or stocking of tobacco levied or collected or purported to have been levied or collected under any of the rules or notifications specified in sub section (39 of section 4 for the period beginning with the 17th day of August, 1950 and ending on the 31st day of December, 1957 shall be deemed to have been validly levied or collected in accordance with law as if this Act were in force on and from the 17th day of August, 1960 and the fees for licences were a luxury tax on tobacco levied under the provisions of this Act and accordingly (a) no suit or other proceeding shall be maintained or continued in any court for the refund of any fees, paid or purported to have been paid under any of the said rules or notifications; (b) no court shall enforce a decree or order directing the refund of any fees paid or purported to have been paid under any of the said rules or notification. " Section 6 enacts: "Where any amount paid or purported to have been paid as a fee for licence under any of the rules or notifications specified in sub section (3) of section 4 has been refunded after the 24th day of January, 1962 and such amount would not have been liable to be refunded ' if this Act had been in force on the date of the refund,the person to whom the refund was made shall pay the amount so refunded to the credit of the Government in any Government treasury on or before the 16th day of April, 1964 where such amount is not so paid, the amount may be recovered from him as an arrear of land revenue under the Revenue Recovery Act for the time being in force." The notification dated January 25, 1951 issued under the Cochin Tobacco Act of 1084 reads as follows: "In exercise of the powers conferred by section 5 of the Cochin Tobacco Act VII of 1084 as subsequently 705 amended and as continued in force by the Travancore Cochin Administration and Application of Laws Act Vl of 1125 and in supersession of all previous notifications and Rules on the subject, the following Rules are prescribed under sanction of His Highness the Raj Pramukh for the import, export, sale, transport, possession, disposal of things confiscated and the grant of rewards under the said Act and for generally carrying out the provisions thereof. . Clause 16: (i) Holders (stockist or 'A ' Class licences shall be entitled to purchase tobacco from any dealer within or without the State without any quantative restriction. This class of licencees shall sell only to other 'A ' Class licencees or to 'B ' class licencees. (ii) the annual fees for these licencees shall be as follows: Variety of tobacco Maximum Minimum fee Fee payable stocked Quantity Cds Prescribed for stocking Rs. additional qu antities Rs. A.Jaffna tobaco 100 1500 100 for additional quantity of 100 Cds or fraction thereof. B.Tobacco produced 100 1000 Rs 750 Do. in India(Mfd) C.Beedi or Beedi 25 1000 Rs 750 for addit tobacco. ional quantity of 25 Cds or fraction thereof D.Tobacco preparation to the 1000 Rs 750 for addi of all kinds. Value of tional quantity to 20,000 the value of 20,000 or fraction thereof. N.B: For the purpose of calculating stockist license fee in respect of tobacco preparations,the cost price of the article will be taken into account. The licence fee will be realised only for the quantities brought in from outside the State." After the enactment of Act 9 of 1964 the appellant made a demand on the respondent to repay the amount of Rs. 73,500 which had been refunded to the respondent in accordance with the Supreme Court judgment. Thereupon the respondent filed writ petition 706 No. C.P. 984 of 1964 which was allowed by the High Court on the ground that Act 9 of 1964 and the rules were ultra vires the Constitution of India. It was held by the High Court that in the absence of any production of tobacco inside the Kerala State it was not competent for the Kerala Legislature to impose a tax on tobacco imported from outside the State and therefore the provisions of the Luxury Tax on Tobacco (Validation) Act, 1964 violated the guarantee contained in articles 301 and 304 of the Constitution. In reaching this conclusion the High Court purported to follow the decision of this Court in Kalyani Stores vs The State of Orissa(1). It is necessary at this stage to set out the relevant Articles in Part XIII of the Constitution as it stood at the material time: "Article 301: Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free. Article 302: "Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest. " Article 304: ' "Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law: (a) impose on goods imported from other States (or the Union territories) any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and 'goods so manufactured or produced and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest; Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the (1) [19661 1 S.C.R. 865. 707 Legislature of a State without the previous sanction of the President. " The true scope and effect of those Articles was the subject matter of consideration in Atiabari Tea Co. Ltd. vs The State of Assam(1). ' The majority view vas expressed by Gajendragadkar J. at p. 860 as follows: "In construing article 301 we must, therefore, have regard to the general scheme of our Constitution as well as the particular provisions in regard to taxing laws. The construction of article 301 should not be determined on a purely academic or doctrinnaire considerations; in construing the said Articles we must adopt a realistic approach and bear in mind the essential features of the separation of powers on which our Constitution rests. It is a federal Constitution which we are interpreting, and so the impact of article 301 must be judged accordingly. Besides, it is not irrelevant to remember in this connection that the Article we are construing imposes a constitutional limitation on the power of the Parliament and State Legislatures to levy taxes, and generally, but for such limitation, the power of taxation would be presumed to be for public good and would not be subject to judicial review or scrutiny. Thus considered we think it would be reasonable and proper to hold that restrictions freedom from which is guaranteed by article 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade. Taxes may and do amount to restrictions; but it is only such taxes as directly and immediately restrict trade that would fall within the purview of article 301. The argument that all taxes should be governed by article 301 whether or not their impact on trade is immediate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld. If the said argument is accepted it would mean, for instance, that even a legislative enactment prescribing the minimum wages to industrial employees may fall under Part XIII because in an economic sense an additional wage bill may in directly affect trade or commerce. We are, therefore, satisfied that in determining the limits of the width and amplitude of the freedom guaranteed by article 301 a rational and workable test to apply would be: Does the impugned restriction operate directly or immediately on trade or its movement ?" (1) ; 708 In the Automobile Transport (Rajasthan) Ltd vs The State of Rajasthan(1) the view of Gajendragadkar, J., was accepted as correct by the majority of the Judges. The principle was reiterated by this Court in Andhra Sugars Ltd. vs State of Andhra Pradesh(2). In that case the question which arose was whether section 21 of the Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act which authorised the State Government to levy a tax at such rate . not exceeding five rupees per metric tonne as may be prescribed on the purchase of cane required for use, consumption or sale in a factory Was constitutionally valid. It was held by this Court that normally a tax on the sale of goods did not ,directly impede or hamper the flow of trade and section 21 was no exception and was not violative of article 301 of the Constitution. A similar view was expressed in the State of Madras vs K. Nataraja Mudaliar(3) in which the question at issue was whether sections 8(2) and 8(5) of the were intra vires of articles 301 and 303 of the Constitution. It was pointed out that an Act which was merely enacted for the purpose of imposing.tax which was to be collected and to be retained by the State did not amount to a law giving or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another, merely because of varying rates of tax prevailing in different States. At p. 150 of the report Shah, J., speaking. for the Court observed: "The flow of trade does not necessarily depend upon the rates of sales tax: it depends upon a variety of factors, such as the source of supply, place of consumption, existence of trade channels, the rates of freight, trading facilities, availability of efficient transport and other facilities for carrying on trade. Instances can easily be imagined of cases in which notwithstanding the lower rate of tax in a particular part of the country goods. may be purchased from another part, where a higher rate of tax prevails. Supposing in a particular State in respect of a commodity the rate of tax is 2 per cent, but if the benefit of that low rate is offset by the freight which a merchant in another State may have to pay for carrying that commodity over a long distance, the merchant would be willing to purchase the goods from a nearer State even though the rate of tax in that State may be. higher. Existence of long standing business relations, availability of communications, credit facilities and a host of other factors natural and business enter into the maintenance of trade relations and the free flow of (1) [1963] 1 S.C.R. 491. (2) ; (3) ; 709 trade cannot necessarily be deemed to have been obstructed merely because in a particular State the rate of tax on sales is higher than the rates prevailing in other States. On behalf of the appellant it was contended that the High Court was not right in holding that the ratio of Kalyani Stores case(1) applied to the present case and, that, Kerala Act 9 of 1964 was violative of article 301 of the Constitution. The view taken by the High Court was that in the absence of any production of tobacco inside Kerala State it was not competent for the Kerala Legislature to enact the impugned Act under article 304(a) of the Constitution. In support of this view the High Court relied upon the following passage from the judgment of this Court: "Exercise of the power under article 304(a) can only be effective if the tax or duty imposed on goods imported from other States and the tax or duty imposed on similar goods manufactured or produced in that State are such that there is no discrimination against imported goods. As no foreign liquor is produced or manufactured in the State of Orissa the power to legislate given by article 304 is not available and the restriction which is declared on the ground of trade, commerce or intercourse by article 301 of the Con stitution remains unfettered. " In our opinion the High Court has not correctly appreciated the import of the decision of this Court in the Kalyani Stores case(1). The appellant in that case challenged the imposition of a duty of excise on 'foreign liquor ' imported ' into the Orissa State which had been levied at Rs. 40 per L.P. Gallon until March 31, 1961 by virtue of a notification issued in 1937 under section 27 of the Bihar and Orissa Excise Act, 1915 and which had been enhanced with effect from April 1, 1961 by a fresh notification. It was contended on behalf of the appellant that since no 'foreign liquor ' was .manufactured within the State and consequently no excise duty was being levied on any locally manufactured 'foreign liquor ' countervailing duty could not be charged on such liquor brought from outside the State and that the impost was in violation of articles 301,303 and 304 of the Constitution. It was held by the majority of Judges that the notification dated March 31,1961 enhancing the levy by Rs. 30 per L.P. Gallon infringed the guarantee of freedom under article 301 and may be saved only if it falls within the exception contained in article 304. As no liquor was produced or manufactured within the State, the protection of article 304 was not available. The decision was based on the (1) ; 710 assumption that the notification dated 31 3 1961 enhancing duty, on foreign liquor infringed the guarantee under article 301 and may be saved if it fell within the exceptions contained in article 304 of the Constitution. The Court did not intend to lay down the proposition that the imposition of a duty or tax in every case would be tantamount per se to an infringement of article 301. As we have already pointed out it is well established by numerous authorities of this Court that only such restrictions or impediments which directly and immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by article 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every impoSition of tax does not do so. Every case must be judged on its own facts and in its own setting of time and circumstance. In the present case the High Court has not gone into the question whether the provisions of Act 9 of 1964 and the notification dated January 25, 1951 issued under the Cochin Tobacco Act constitute such restrictions or impediments as directly and immediately hamper free flow of trade, commerce and intercourse and, therefore, fall within the prohibition imposed under article 301 of the Constitution. Unless the High Court first comes to the finding on the available material whether or not there is infringement of the guarantee under article 301 of the Constitution the further question as to whether the statute is saved under article 304Co) does not arise and the principle laid down by this Court in Kalyani Stores case(1) cannot be invoked. It was also said on behalf of the respondents that the State Legislature had no power to levy and collect licence fee under the impugned Act as it was in substance a duty of excise falling under the Union List. The contrary viewpoint was presented on behalf of the appellant and it was contended that the legislation falls under Entry 62 of List II and the State Legislature was competent to enact. It is open to the parties to argue this matter before the High Court at the time of re hearing. For the reasons already expressed we hold that the appeal should be allowed and the judgment of the Kerala High Court dated October 3, 1966 in O.P. 934 of 1964 should be set aside and the case should go back for hearing in the light of the law laid down in this judgment. It is desirable that the High Court should give an opportunity to the parties to file further affidavits before taking up the case for re hearing. (1) ; 711 On behalf of the appellants Mr. Chagla has given an undertaking that the provisions of the Act would not be enforced against the respondents for a month from this date. The respondents say that they will apply. to the Kerala High Court for stay in the meanwhile. Y.P. Appeal allowed.

To avoid the decision of this Court in A. B. Abdul Khadir vs The State of Kerala, , wherein rules framed for the issue of licences and payment of fee for storage of tobacco were 'held to be invalid, the appellant State promulgated Ordinance I of 1963 which was later replaced by Luxury Tax on Tobacco (Validation) Act 9 of 1964. Consequently the appellant State made a demand on the respondent to repay the amount which had been refunded to the respondent in accordance with the aforesaid judgment. Thereupon, the respondent filed a writ petition in the High Court. The High Court relying upon the decision of this Court in Kalvani Stores vs State of Orissa, [1966] 1 S.C.R. 865, held that in the absence of any production of tobacco inside the appellant State it was not competent for the State Legislature to impose a tax on tobacco imported from outside the State and therefore, the provisions of the Act (9 of 1964) violated the guarantee contained in articles 301 and 304 of the Constitution. HELD: The High Court had not correctly appreciated the import of the decision in Kalyani Stores ' case. The decision was based on the assumption that the notifications therein enhancing duty on foreign liquor infringed the guarantee under article 301 and may be saved if it fell within the exceptions contained in Art 304 of the Constitution. As no liquor was produced or manufactured within the State the protection of article 304 was not available. This Court did not intend to lay down the proposition that the imposition of a duty or tax in every case would be tantamount per se to an infringement of article 301. Only such restrictions or impediments which directly and immediately impede the free flow of trade, commerce and intercourse fall within the prohibition imposed by article 301. A tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and in its own setting of time and circumstance. In the present case the High Court had not gone into the question whether the provisions of the Act and the notifications constituted such restrictions or impediments as directly and immediately hamper the free 701 flow of trade, commerce and intercourse, and, therefore, fell within the prohibition. imposed under article 301 of the Constitution. Unless the High Court first comes to the finding whether or not there is the infringement of the guarantee under article 301 of the Constitution the further question as to whether the statute is saved under article 304(b) does not arise and the principle laid down in Kalyani Stores ' case cannot be invoked. This case, therefore must go back to the High Court. [709 E 710 E] Atiabari Tea Ca., Ltd. vs The State of Assam, ; , Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan, [1963] 1 S.C.R. 491, Andhra Sugars Ltd. vs State of Andhra Pradesh; , and State o/Madras vs K. Nataraja Mudaliar; , , referred to.

iminal Appeal No. 26 of 1978 From the Judgement and Order dated 17.11.1976 of the Kerala High Court in Criminal Revision Petition No. 263 of 1975. Chettur Sankaran Nair and E.M.S. Anam for the Appellant. Nemo for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. Counterfeiters all over the world must be singing in ecstasy: "if there is heaven on earth, it is here, here, here ', for, according to the KeraLa High Court1, Indian law does not make counterfeiting of currency notes of any country in the world, other than that of India, an offence. The High Court has persuaded itself by a process of judicial activism in reverse gear, that making of such counterfeit notes is not an offence under Section 489A of the Indian an Penal Code (I.P.C.) and that having in posses sion such counterfeit currency notes is not an offence under Section 489C of the I.P.C. Such a view has been taken even though there is nothing in the language of these sections to warrant Such an interpretation as will become evident presently. Judgment and Order rendered by the Kerala High Court in Cr. R.P. 263 of 1975 on November 17, 1976, giving rise to the present appeal by certificate of fitness under Article 134(1)(c) of the Constitution of India. 320 Facts: The six respondents herein were charged with offences punishable under Sections 120B, 489A, 489B and Section 420 read with Sections 511 and 34 IPC. The prosecu tion case against them was that in furtherance of a conspir acy entered into by accused nos. 1 to 4 to forge and coun terfeit American dollar notes of 20 dollar denomination, they indulged in counterfeiting by printing 2000 such notes. Respondents 1 and 2 were further alleged to have been in possession of 148 forged currency notes knowing the same to be forged, with intent to use these forged notes as genuine. The respondents were committed by the Magistrate to stand their trial before the Sessions Court, for offences, under Sections 120 B, 487A and 489C read with Sections 511 and 34 IPC. It was contended by the respondents accused before the Sessions Court that a charge under Sections 489A and 489C of the IPC could be lawfully levelled only in the case of counterfeiting of 'Indian ' currency notes and not in the case of counterfeiting of 'foreign ' currency notes. The conten tion was upheld by the Sessions Court at the threshold of the trial and the accused were discharged. Aggrieved by the order of the Sessions Court discharging the respondents, the petitioner (State of Kerala) filed a Revision Petition before the High Court of Kerala. The High Court by its order under appeal confirmed the order of discharge rendered by the Sessions Court holding that "in the absence of an expla nation similar to that in the case of bank notes; Section 489A and the Sections that follow which relate to counter feiting of currency notes do not apply to cases of counter feiting of dollar bills. " The petitioner thereupon filed an application under Article 134 (1)(c) of the Constitution of India for leave to appeal to the Supreme Court. By its order under appeal, the High Court certified it as a fit case for appeal to the Supreme Court as "the case involves considera bly important questions of law as to whether counterfeit American dollar notes will fall within the purview of Sec tions 489A and 489C of the Indian Penal Code. " That is how the matter has come up before this Court. Relevant provisions: The anatomy of the relevant provi sions requires to be X rayed at the outset. The concerned provisions may therefore be screened: "489A. Whoever counterfeits, or knowingly performs any part of the process of counter feiting, any currency note or ank note, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine. Explanation: For the purposes of this section and of sections 489B, 4(489C, 489D and 489E) the expression "bank note" means a promissory note or engagement for the payment 321 of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money. by Act 26 of 1955, section 117 and sch. for "transportation for life" (w. e.f. 1 1 1956). by Act 35 of 1950, section 3 and Sch. II for "489C and 489D". "489C. Whoever has in his possession any forged or counterfeit currency note or bank note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with im prisonment of either description for a term which may extend to seven years, or with fine, or with both. " Analysis: An analysis of Section 489A reveals that: (i) counterfeiting 'any ' currency note or bank note is an offence; (ii) knowingly performing any part of the process of counterfeiting any currency note or bank note is also an offence; and (iii) the prohibition against coun terfeiting or performing such process applies to currency notes as also to bank notes as defined by the explanation to Section 489A. And inasmuch as the aforesaid expression interalia means any engagement1 for the pay ment of money to the bearer issued by or under the authority of any State or Sovereign power provided it is intended to be used as equiva lent to or substitute for money the prohibi tion also extends to counterfeiting etc. of currency notes of any other sovereign power. Outcome: This analysis reveals that the legislative embargo against counterfeiting envelops and takes within its sweep 'currency notes ' of all countries. The embargo is not re stricted to 'Indian ' currency notes. The legislature could have, but has not, employed the expression 'Indian currency 1. A promise, obligation or other condition that binds. (See Collins Dictionary) 322 note '. If the legislative intent was to restrict the parame ters of prohibition to 'Indian currency ' only, the legisla ture could have said so unhesitatingly. The ' expression 'currency note ' is large enough in its amplitude to cover the currency notes of 'any ' country. When the legislature does not speak of currency notes of India the Court inter preting the relevant provision of law cannot substitute the expression 'Indian currency note ' in place of the expression 'currency note ' as has been done by the High Court. The High Court cannot do so for, the Court can merely interpret the section; it cannot re write, recast or redesign the section. In interpreting the provision the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation. In is not for the Court to reframe the legislation for the very good reason that the powers to 'legislate ' have not been conferred on the Court. When the expression 'currency note ' is interpreted to mean 'Indian currency note ', the width of the expression is being narrowed down or cut down. Apart from the fact that the Court does not possess any such power, what is the purpose to be achieved by doing so? A Court can make a purposeful interpretation so as to 'effectuate 'the intention of the legislature and not a purposeless one in order to 'defeat 'the intention of the legislators wholly or in part. When the Court (apparently in the course of an exercise in inter pretation) shrinks the content of the expression 'currency note; to make it referable to only 'Indian currency note ', it is defeating the intention of the legislature partly inasmuch as the Court makes it lawful to counterfeit notes other than Indian currency notes. The manifest purpose of the provision is that the citizens should be protected from being deceived or cheated. The citizens deal with and trans act business with each other through the medium of currency1, (which expression includes coins as also paper currency that is to say currency notes). It is inconceivable why the legislature should be anxious to protect citizens from being deceived or cheated only in respect of Indian currency notes and not in respect of currency notes issued by other sovereign powers. The purpose of the legislation appears to be to ensure that a person accepting a currency note is given a genuine currency which can be exchanged for goods or services and not a worthless piece of paper which will bring him nothing in return, it being a counterfeit or a forged currency note. Would the legislature in its wisdom and anxiety to protect the unwary citizens extend immunity from being cheated in relation to Indian currency notes but show total unconcern in regard to their being cheated in respect of currency notes issued by any foreign State or sovereign power?. In the modern age a tourist from a foreign country may bring from his own country into India currency to the extent permissible under the law in India. So also he may obtain foreign currency in exchange of Indian currency whilst in India provided he does so to the extent permissi ble by the Foreign Exchange Regulation Act, 1. Currency n. 1. a metal or paper medium of exchange that is in current use. (Collins English Dictionary). 323 1973(1) and operates through an authorised person(2) known as money changer(3). Would it be reasonable to assume that the legislature was totally oblivious of the need to protect them from being deceived and defrauded? It would be unwise to do so in the face ,of the internal evidence which pro vides a clue to the legislative anxiety on this score. In fact the framers of the Code were so anxious to protect the general public from fraudulant acts of counterfeiters that not only have they defined the word "counterfeit" in very wide terms in the Indian Penal Code, but they have also prescribed a rule of evidence in Explanation 2 so as to draw an adverse presumption against the maker of the counterfeit article, as is evident from the definition of the term "Counterfeit" read with the Explanations in Section 28 of the Indian Penal Code(1). What is more, the expression 'bank note ' employed in sections 489A to 489E of I.P.C. takes within its sweep an engagement for the payment of money issued by or under the authority of any State or Sovereign power as is evident from the analysis of the Section made hereinabove. And it would therefore cover a Dollar Bill or Dollar Note as well. A dollar bill issued by the Sovereign Government of United States of America would ipsofacto be covered by the expres sion 'bank note '. And as revealed by the analysis made earlier, the prohibition would apply to the counterfeiting of a Bank note or being in possession of a counterfeit Bank note as well. It would, therefore, in any case, be an offence to counterfeit a dollar bill or to be in possession of counterfeit dollar bill. Section 13(1): The. Central Government may, by notifica tion in the official Gazette, order that subject to such exemption, if any, as may be specified in the notification, no person shall except with the general or special permis sion of the Reserve Bank and on payment of the fee, if any, prescribed, bring or send into India any gold or silver or any foreign exchange or any Indian currency. Explanation: For the purposes of this sub section, the bringing or send ing into any port or place in India of any such article as aforesaid intended to be taken out of India without being removed from the ship or conveyance in which it is being carried shall nonetheless be deemed to be a bringing, or, as the case any gold or silver or any foreign exchange or any Indian currency. (2)No person shall, except with the general or special permission of the Reserve Bank or the written permission of a person authorised in this behalf by the Reserve Bank, take or send out of India any gold, jewellery or precious stones or Indian currency or foreign exchange other than foreign exchange obtained by him from an autho rised dealer or from a money changer. The Reserve Bank may, on an application made to it in this behalf, anthorise any person to deal in for eign exchange. (2) An authorisation under this Section shall be in writing and (i) may authorise dealings in all foreign currencies or may be restricted to authorising dealings in specified foreign currencies only; (ii) may authorise transactions of all descriptions in foreign currencies or may be restricted to authorising specified transactions only; (iii) may be granted to be effective for a specified period, or within specified amounts; (iv) may be granted subject to such conditions as may be specified therein. (3) Any authorisation granted under sub section (1) may be revoked by the Reserve Bank at any time if the Reserve Bank is satisfied that 324 (foot note contd.) (i) it is in the public interest to do so; or (ii) the authorised dealer has not complied with the conditions subject to which the authorisation was granted or has contravened any of the provisions of this Act or of any rule, notification, direction or order made thereunder:. Provided that no such authorisation shall be revoked on the ground specified in clause (ii) unless the authorised dealer has been given a reasonable opportunity for making a representation in the matter. (4) An authorised dealer shall, in all his dealings in foreign exchange and in the exercise and discharge of the powers and of the functions delegated to him under section 74, comply with such general or special directions or in structions as the Reserve Bank may, from time to time, think fit to give, and except with the previous permission of the Reserve Bank, an authorised dealer shall not engage in any transaction involving any foreign exchange which is not in conformity with the terms of his authorisation under this section. (5) An authorised dealer shall, before undertaking any transaction in foreign exchange on behalf of any person, require that person to make such declarations and to give such information as will reasonably satisfy him that the transaction will not involve, and is not designed for the purpose of, any contravention or evasion of the provisions of this Act or of any rule, notification, direction or order made thereunder, and where the said person refuses to comply with any such requirement or makes only unsatisfactory compliance therewith, the authorised dealer shall refuse to undertake the transaction and shall, if he has reason to believe that any such contravention or evasion as aforesaid is contemplated by the person, report the matter to the Reserve Bank. The Reserve Bank may, on an application made to it in this behalf, authorise any person to deal in for eign currency. (2) An authorisation under this section shall be in writing and (i) may authorise dealings in all foreign currencies or may be restricted to authorising dealings in specified currencies only; (ii) may authorise transactions of all descriptions in foreign currencies or may be restricted to authorising specified transactions only; (iii) may be granted with respect to a particular place where alone the money changer shall carry on his business; (iv) may be granted to be effective for a specified period, or within specified amounts; (v) may be granted subject to such conditions as may be specified therein. (3) Any authorisation granted under sub section (1) may be revoked by the Reserve Bank at any time if the Reserve Bank is satisfied that: (i) it is in the public interest to do so; or (ii) the money changer has not complied with the condi tions subject to which the authorisation was granted or has contravened any of the provisions of this Act or of any rule, notification, direction or order made thereunder. Provided that no such authorisation shall be revoked on the ground specified in clause (ii) unless the money changer has been given a reasonable opportunity for making a representa tion in the matter. (4) The provisions of sub sections (4) and (5) 'of Section 6 shall, in so far as they are applicable, apply in relation to a money changer as they apply in relation to an autho rised dealer, (5) Explanation In this section, "foreign money" means foreign currency in the form of notes, coins or travellers ' cheques and "dealing" means purchasing foreign currency in the. form of notes, coins or traveller 's cheques or selling foreign currency in the form of notes or coins. 325 Why then construe the expression 'currency note ' as being applicable only to an Indian currency note and not to a foreign currency note like a dollar bill? There is neither any compulsion of law nor of logic for indulging in the exercise undertaken by the High Court which in the opening part of the judgment has been adverted to as 'judicial activism in reverse gear '. Nor was any ideal to be attain by doing so. Why then stretch the unstretchable? It appears that the High Court lost its way whilst groping in the dark by a possibly misconceived and ill founded argument1 built on the circumstance that whilst the explanation to Section 489A in terms refers to a bank note issued 'under the au thority of any State or sovereign power ' similar explanation is not added in the context of the expression 'currency note '. The High Court overlooked the fact that there was neither any occasion, nor any reason, nor any need, for doing so. For, the expression 'currency note ' as it stood was wide and pervasive enough to embrace the currency notes issued by India as also currency notes issued by any other country in the world. There was therefore no need to add a similar explanation. It would have been futile to amplify that the expression 'currency note ' which on a plain reading covers 'all ' currency notes meant what it said. To read the expression 'any currency note ' to mean and refer to 'Indian currency note ' is to misread the expression by doing vio lence both to the letter and spirit thereof unmindful of the fact that the former expression in its plentitude covers the currency notes issued by any and every country of the world whereas the letter is applicable to only one of the coun tries in the world. The High Court also fell in error in being influenced by the definition of currency notes em bodied in the Indian Paper Currency Act (Act XX of 1822). The High Court has overlooked the obvious fact that the definition contained 1 in Section 2 of the said Act is only for the purposes of that particular Act and it cannot be imported into Section 489A to 489E of the Indian Penal Code, as has been done by the High Court. The High Court was thus wholly wrong in exerting itself unnecessarily and bending backwards in order to hold that Sections 489A to 489E are not 1. A person is said to "counterfeit" who causes one think to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised. Explanation 1 It is not essential to counterfeit ing that the imitation should be exact. Explanation 2 When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practise deception or knew it to be likely that deception would thereby be practised. " 1. Says the High Court: "The omission of an explanation in Sec. 489A for the expression "currency note" similar to the one for 'hank note ' thus assumes importance. The expression could refer only to the currency notes issued by the Govern ment of India. " 326 applicable to currency notes other than Indian currency notes. And in holding that counterfeiting of or possessing of counterfeit dollar bills or dollar notes is not an of fence under the Indian law, thereby issuing a carte blanche to the counterfeiters of the world to establish their head quarters within the State of Kerala with a view to carry on their activities with impunity under the umbrella unwitting ly opened for them by the judgment of the High Court. The view taken by the High Court is thus thoroughly unsustainable. The judgment and order of discharge rendered by the High Court are therefore reversed and set aside. The matter will not to go back to the trail court for proceeding further in accordance with law in the light of the observa tions made hereinabove. Appeal is accordingly allowed to this extent. M.L.A. Appeal allowed.

The respondents were charged with offences punishable under section 120B, 489A, 489C and s420 read with sections 511 and 34 IPC for forging and counterfeiting American dollar notes of 20 dollar denomination, by printing 2000 such notes. Re spondents 1 and 2 were further alleged to have been in possession of 148 forged currency notes knowing the same to be forged, with intent to use these forged notes as genuine. The accused respondents contended before the Sessions Court that a charge under section 489A and 489C of the IPC could be lawfully levelled only in the case of counterfeiting of 'Indian ' currency notes and not in the case of counterfeit ing of 'foreign ' currency notes. The Sessions Court upheld the aforesaid contention and discharged the accused respond ents. The High Court also confirmed the aforesaid order of discharge. Allowing the appeal by appellant State and remanding the case to the trial court, HELD: 1. The High Court was wrong in holding that sections 489A to 489E are not applicable to currency notes other than Indian currency notes and that counterfeiting of or possess ing of counterfeit dollar bills or dollar notes is not an offence under the Indian Law. Therefore, the judgment and order of discharge rendered by the High Court are reversed and set aside. The matter will now go back to the trial court for proceeding further in accordance with law. [325 F 326 C] 2.1 An analysis of section 489A reveals that: (i) counterfeiting 'any ' currency 318 note or bank note is an offence; (ii)knowingly performing any part of the process of counterfeiting any currency note or bank note is also an offence; and (iii) the prohibition against counterfeiting or performing such process applies to currency notes as also to bank notes as defined by the explanation to section 489A. And inasmuch as the aforesaid ex pression interalia means any engagement for the payment of money to the bearer issued by or under the authority of any State or Sovereign power provided it is intended to be used as equivalent to or substitute for money the prohibition also extends to counterfeiting etc. of currency notes of any other sovereign power. [321 D G] 2.2 The expression 'currency note ' under section 489A is large enough in its amplitude to cover the currency notes of 'any ' country. When the legislature does not speak of cur rency notes of India the court interpreting the relevant provision of law cannot substitute the expression 'Indian currency note ' in place of the expression 'currency note '. When the expression 'currency note ' is interpreted to mean only 'Indian currency note; the width of the expression is being narrowed down or cut down. [322 A C] 2.3 The court can merely interpret the section, it cannot re write, recast or redesign the section. In inter preting the provision the exercise undertaken by the court is to make explicit the intention of the legislature which enacted the legislature. It is not for the court to reframe the legislation for the very good reason that the powers to 'legislate ' have not been conferred on the court. When the court shrinks the content of the expression 'currency note ', to make it referable to only 'Indian currency note ', it is defeating the intention of the legislature partly inasmuch as the court makes it lawful to counterfeit notes other than Indian currency notes. The manifest purpose of the provision is that the citizens should be protected from being deceived or cheated. The citizens deal with and transact business with each other through the medium of currency. It is incon ceivable why the legislature should be anxious to protect citizens from being deceived or cheated only in respect of Indian currency notes and not in respect of currency notes issued by other sovereign powers. [322 B 322 F] 2.4 To read the expression 'any currency note ' to mean and refer only to 'Indian currency note 'is to misread the expression by doing violence both to the letter and spirit thereof unmindful of the fact that the former expression in its plentitude covers the currency notes issued by any and every country of the world whereas the latter is applicable to only one of the countries in the world. [325 D] 3. The expression 'bank note ' employed in sections 489A to 489E of IPC takes within its sweep an engagement for the payment of money issued by or under 319 the authority of any State or Sovereign power as is evident from the analysis of section 489A. It would therefore cover a dollar bill or dollar note as well. A dollar bill issued by the Soveriegn Government of United States of America would ipsofacto be covered by the expression 'banknote '. And as revealed by the analysis made earlier, the prohibition would apply to the counterfeiting of a Bank note or being in possession of a counterfeit Bank note as well. It would, therefore, in any case, be an offence tO counterfeit a dollar bill or to be in possession of a counterfeit dollar bill. [323 C D] 4. The definition contained in section 2 of the Indian Paper Currency Act is only for the purpose of that particular Act and it cannot be imported into section 489A to 489E of the Indian Penal Code. [325 E]

Civil Appeal No. 681 of 1985. From the Judgment and Order dated 24.8.84 of the High Court of Gujarat in S.C.A. No. 1286/1980. T.V. Mehta, M.N. Shroff and K.M.M. Khan for the Appellant. S.H. Sheth, Vimal Dave and S.C. Patel for the Respondents. The Judgment of the Court was delivered by THAKKAR, J. In the course of an exercise in interpretation of a provision, Section 6(3B) of Gujarat Agricultural Land Ceiling Act of 1960 complains the appellant state, the High Court has misinterpreted the said provision which had been correctly interpreted by the Tribunal Gujarat Revenue Tribunal. The debate in the present appeal has centred on this plea the meritlessness of which will become evident presently. The provision in question viz, Section 6(3B) is embodied in Chapter III of the Ceiling Act which bears the caption "Fixation of Ceiling on Holding Land, Determination of Surplus Land and Acquisition thereof". The concerned provision in so far as material to the problem posed by the present appeal deserves to be quoted: "6(3B) Where a family or a joint family consists of more than five members comprising a person and other members belonging to all or any of the following categories, namely: (i) minor son, (ii) widow of a pre deceased son, 1071 (iii) minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five, so however that the total holding of the family does not exceed twice the ceiling area; and in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area: Provided x x x x x x" The philosophy of this provision stares one in the eyes. When a family is both large and comprises (which expression is employed in the sense of includes, Collins ' dictionary defines comprise as . . to include . amongst it members who are subject to one or other of the socio economic handicaps, fairness demands that such family is permitted to retain some more land than other families which are not so handicapped. The very nature of the three categories which are specified (minors, widow of a pre deceased son, minor son or unmarried daughter of a predeceased son who has lost both parents) conveys this message of plight. Understandable it is, that for such a family which has to carry the burden of misery, the community acting through the legislature has a soft corner and pours milk of human kindness into this benevolent provision aimed at relieving their distress to an extent. Such is the design. Two tests must be satisfied commulatively for being eligible to claim the benefit: (1) The size of the family (No. of members should exceed 5) (2) It must consist of members one or more of whom belong to one or other of the specified handicapped categories. Now the factual backdrop in which the problem of interpretation has surfaced needs to be traced. The family of the respondent landholder consisted of 9 members including himself. (The land holder, his mother, his wife, his three minor sons and his three minor daughters). The question which arose was whether the land holder was entitled to the benefit of Section 6(3B) which provides that where a family or a joint family consists of more than 5 members comprising a person and other persons belonging to all or any of the specified categories, such family shall be entitled to hold land in excess of the ceiling area to the extent of 1/5 of the ceiling area for each member of the specified 1072 category in excess of five, subject to the rider that the total holding of the family does not exceed twice the ceiling area. The Tribunal took the view that Section 6(3B) was not attracted to the case of the said land holder notwithstanding the fact that his family consisted of 9 members and also comprised of other members belonging to specified category (i) (minor son). The view taken by the Tribunal is reflected in the following passage extracted from its order dated January 24, 1978 which gave rise to the Writ Petition in the High Court which in turn has given rise to the present appeal by special leave: "As regards the other contention of Shri R.K. Panchal, it may be observed that for the purpose of section 6(3B) family of the applicant consisted of not more than five members eventhough as a matter of fact there are nine members in his family because the applicant and his wife will count as one unit and his minor sons will count as four units for the purpose of section 6(3B) of the Act, and thus there are only five members in the family for the purpose of counting the unit. Therefore, the family is not entitled to hold more than 45 acres of land on the ground that there are nine members in the family as argued by Shri R.K. Panchal. In this view of the matter, the findings of the Mamlatdar and confirmed by the Deputy Collector do not deserve to be interfered with. " Upon the jurisdiction of the High Court, under Articles 226/227 of the Constitution of India being invoked, the High Court reversed the Tribunal. Because, the reasoning unfolded in the aforesaid passage was inconsistent with the exposition of law made by the High Court in its earlier pronouncement. Reliance was placed on Nathekhan 's Gujarat Law Reporter Vol. XXV (3) p. 1473 (Nathekhan vs Mamlatdar, Vadgam) case wherein Ahmadi, J. had earlier taken a contrary view. Says Ahmadi, J. "With respect the Tribunal 's thinking is confused, Sub section (3B) of Sec. 6 merely lays down that where a family consists of more than five members comprising a person and other members of the categories mentioned therein, namely, (i) minor son, (ii) widow of a pre deceased son, (iii) Minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one fifth of the ceiling area for each member in 1073 excess of five provided the total holding of the family does not exceed twice the ceiling area. A bare perusal of this sub section makes it clear that in order to avail two conditions must be satisfied, namely, (i) the family should consist of more than five members and (ii) it should have amongst it the categories of members mentioned in the three sub clauses. If the family does not consist of more than five members but has amongst it any of the members mentioned in the three sub clauses, it will not be entitled to the benefit of enlargement of the ceiling area. Therefore, the benefit of enlargement of the ceiling area will ensure to only that family where the total number of members is more than five and amongst them are members belonging to the categories mentioned therein. However, there is nothing in the sub section wherefrom it can be inferred that the wife, widowed mother and unmarried daughters are intended to be excluded from the family, that is group or unit constituting the family. I am, therefore of the opinion that all the authorities including the Tribunal were wrong in coming to the conclusion that the aforesaid female members of the family had to be excluded for the purpose of determining the size of the family. " We fully concur with this view. The reasons are not far to seek. It is not in dispute that the family of the land holder consisted of 9 members if the heads of the members of the family are counted. The first condition required to be satisfied in order to attract Section 6(3B) is that the family must consist of more than 5 members. The debate has centred round the question as to how the number of the members constituting the family should be counted. In counting the members of the family the Tribunal has excluded from consideration the mother and the three minor daughters of the land holder. Excluding these four persons the family consisted of 5 members. In that event Section 6(3B) will not be attracted because one of the conditions precedent for the applicability of the provision is that the family must consist of more than 5 members. The High Court on the other hand has upheld the contention of the land holder that his family in fact consisted of 9 members inasmuch as his mother and his wife as also his minor daughters were members of his family. The Tribunal in terms observed that: "for the purpose of Section 6(3B) family of the applicant consisted of not more than 5 members eventhough as a 1074 matter of fact there are 9 members in his family." This reasoning is obviously fallacious. The expression 'family ' has not been defined in the Act. One has therefore to go by the concept of family as it is commonly understood, taking into account the dictionary meaning of the expression. Collins English Dictionary defines family as: "a primary social group consisting of parents and their offspring, the principal function of which is provision for its members." "a group of persons related by blood; a group descended from a common ancestor." "all the persons living together in one household. " Having regard to this definition it can be safely concluded that the land holder, his wife and his offspring consisting of three minor sons and three minor daughters would certainly constitute a family even if the mother of the land holder is excluded from consideration. Thus in any view the family of the land holder consisted of 8 members including himself, his wife, three minor sons and three minor daughters. The Tribunal was therefore clearly in error in taking the view that the family consisted of not more than 5 members. Learned counsel for the appellant however contended that in applying the test whether or not the family consisted of 5 members regard must be had only to the members of the family belonging to the specified category namely minor sons in so far as the composition of the family of the land holder in the present case is concerned. In other words the contention is that the land holder, his wife and his three minor sons are the only five persons of the family for the purposes of Section 6(3B). In our opinion there is no warrant for reading Section 6(3B) in this artificial and truncated manner. On a plain reading, Section 6(3B) is attracted where a family consists of more than 5 members "comprising a person and other members belonging to all or any one of the following categories viz. (i) minor son . ." In the present case the family of the land holder consists of more than 5 members. The family also includes persons of one of the specified categories viz. the minor sons. Thus, all the ingredients of Section 6(3B) are satisfied. In order to claim benefit of Section 6(3B) the test which must be satisfied is a two fold test. First, whether the claimant 's family consists of more than five persons. In the present case the answer to this test is in the affirmative. 1075 The second test that is required to be answered in favour of the person who claims the benefit of Section 6(3B) is that such family must also comprise of one individual and other members besides himself who must belong to all or any of the three specified categories. This test is also answered in favour of the respondent inasmuch as the family does comprise of the respondent and other members and from out of the other members, three belong to one of the specified categories viz. 'minor son '. In otherwords access to Section 6(3B) is barred by two doors. In order to secure entry the family must consist of more than 5 persons. If there are more than 5 persons including the land holder himself, the first door will be opened and the land holder will be entitled to have an access provided the second door does not bar his entry inside the beneficial area. The second door will also be opened provided that some of the other members meaning thereby members other than individual land holder belong to one of the three categories specified in the section. The second door would be opened provided he has got minor sons. Admittedly, the respondent has three minor sons. Therefore both the doors which bar the access of the land holder to the benevolent provisions are opened. It is not possible to accede to the submission that in ascertaining whether or not the pre condition is satisfied only the members of the specified category should be taken into account. For, to do so would be to kill the letter as well as the spirit of the concerned provision. We are therefore not prepared to uphold the plea of the appellant state that the High Court has not correctly interpreted the relevant provision in the case giving rise to the present appeal. Under the circumstances the appeal deserves to fail. But before we conclude we must set aright an inadvertent error made by the High Court in making computation of the extent of the additional land which the respondent was entitled to hold in excess of the prescribed ceiling in the context of section 6(3B). Computation in this behalf must be made by applying the formula embodied in Section 6(3B) viz. that the family shall be entitled to hold land in excess of the ceiling area to the extent of "one fifth of the ceiling area for each member in excess of five" subject to the rider that the total area does not exceed twice the ceiling area. It needs to be clarified that on a true interpretation of the provision "each member in excess of five" must of logical necessity mean each 'such ' member of the specified handicapped category. In the present case there were 3 members in the family and it comprised of three members of the specified category viz. 3 minor sons. Under the circumstances for each minor son in excess of the five members the holder was entitled to 1/5th of the ceiling area in excess of the pre 1076 scribed ceiling. That is to say he was entitled to 3/5th of the prescribed ceiling over and above the ceiling area subject to the rider that the total retainable holding of the family did not exceed twice the ceiling area. This aspect was lost sight of by the High Court in making the computation. Of course in the ultimate result in the facts of the present case nothing turns on it as in any view of the matter the extent of the land held by the family computed on this basis would not exceed twice the ceiling area. The holding of the family consisted of 60 acres and 4 gunthas. And making a computation on the aforesaid basis having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres (45/5=9x3=27). Thus he would be entitled to hold 72 acres (45+27=72) whereas the holding of respondent consisted of only 60 acres. Therefore the holding of the family was not in excess of the prescribed ceiling as computed in the aforesaid manner. While the High Court in terms followed its earlier decision in Nathekhan 's case (supra) it overlooked the ratio of the decision in this behalf. What was overlooked was the ratio reflected in the passage from para 6 of the decision extracted hereinbelow which is in accord with formula indicated by us: ". There were two minor sons in the family of Nathekhan and one minor son in the family of Majamkhan. Since the family unit of each brother exceeded five in number so far as Nathekhan is concerned, he was entitled to hold land in excess of the ceiling area to the extent of two fifth of the ceiling area and Majamkhan with one minor son was entitled to hold land in excess of the ceiling area to the extent of one fifth thereof. Since the excess land in the case of each brother was of 4 acres and 38.5 gunthas being less than even one fifth of the ceiling area, it could not be held that their holding exceeded the permissible ceiling. " We are therefore of the opinion that this appeal deserves to fail subject to the clarification in regard to the true position as regards computation of the permissible extent of land which can be held in the context of section 6(3B) of the Act. The appeal is disposed of accordingly. There will be no order regarding costs. P.S.S. Appeal dismissed.

% Section 6(3B) of the Gujarat Agricultural Land Ceiling Act of 1960 entitles a family, consisting of more than five members comprising a person and other members of the categories mentioned therein, viz.(i) minor son, (ii) widow of pre deceased son, (iii) minor son or unmarried daughter of a pre deceased son, where his or her mother is dead, to hold land in excess of the ceiling area to the extent of one fifth of such area for each member in excess of five, provided the total area does not exceed twice the ceiling area. The ceiling area prescribed was 45 acres. The family of the respondent landholder consisted of nine members including himself, his mother, wife, three minor sons and three minor daughters. The holding of the family consisted of 60 acres and 4 gunthas. The Revenue Tribunal held that the landholder was not entitled to the benefit of s.6(3B) of the Act. In counting the members of the family, it excluded from consideration the mother and three minor daughters of the landholder on the view that the applicant and his wife would count as one unit and his minor sons would count as four units and ruled that there were only five members in the family for the purpose of counting the unit, notwithstanding the fact that the family consisted of nine members and also comprised of other members belonging to the specified category. In the writ petition, the High Court held that the landholder 's family consisted of nine members inasmuch as his mother and his wife as also his minor daughters were members of his family. In the appeal to this Court it was contended for the appellant State that in applying the test whether or not the family consisted of five 1069 members regard must be had only to the members of family belonging to the specified category, namely minor sons, in so far as the composition of the family of the landholder was concerned, so to say, that the landholder, his wife and his three minor sons were the only five members of the family for the purpose of section 6(3B) of the Act. Dismissing the appeal, ^ HELD: 1.1 Two tests must be satisfied cumulatively for being eligible to claim the benefit of section 6(3B) of the Gujarat Agricultural Land Ceiling Act, 1960: (1) the size of the family should exceed five, (2) it must consist of members one or more of whom belong to one or other of the specified categories. All the ingredients of section 6(3B) are satisfied in the instant case.[1074G] 1.2 The expression "family" has not been defined in the Act. The Court has, therefore, to go by the concept by family as it is commonly understood, meaning, a group of persons consisting of parents and their offsprings living together in one household. In that view, that family of the landholder consisted of eight members including himself, his wife, three minor sons and three minor daughters. The family of the landholder thus consists of more than five members. The family also includes persons of one of the specified categories viz., the minor sons. [1074A C, E F] 2. It cannot be said that in ascertaining whether or not the precondition is satisfied only the members of the specified category should be taken into account. For, to do so would be to kill the letter as well as the spirit of the benevolent provisions aimed at relieving the distress of family members subject to one or other of the socio economic handicaps. [1075D E; 1071C D] 3. Computation of the extent of the additional land must be made by applying the formula embodied in section 6(3B). On a true interpretation of the provision "each member in excess of five" must of logical necessity mean each "such" member of the specified handicapped category viz. three minor sons. Under the circumstances, for each minor son in excess of the five members, the holder was entitled to one fifth of the ceiling area in excess of the prescribed ceiling. That is to say he was entitled to three fifth of the prescribed ceiling area over and above the ceiling area provided the total retainable holding of the family did not exceed twice the ceiling area. The holding of the family consisted of 60 acres and 4 gunthas. And making a computation on the aforesaid basis 1070 having regard to the fact that the ceiling area was 45 acres, the family would be entitled to additional 27 acres (45/5=9x3=27). Thus he would be entitled to hold 72 acres (45+27=72) whereas the holding of the respondent consisted of only 60 acres. Therefore, the holding of the family was not in excess of the prescribed ceiling as computed in the aforesaid manner. [1075F G; 1076B C] Nathekhan vs Mamlatdar, Vadgam, G.L.R. 25(3) 1473 approved.

Appeal No. 1748 of 1967. From the Judgment and order dated the 6th January 1961 of the Mysore High Court at Bangalore in. Second Appeal No. 129 of 1956. section C. Malik A. section K. Rao arid M. R. K. Pillai for the appellant. K. Rajendra Chaudhuy, for the respondents Nos. 1 8. The Judgment of the Court was delivered by ALAGIRISWAMI, J. This is, an appeal by certificate against the judgment of the High Court of Mysore in a second appeal. it, arises out 971 of a suit filed by respondents 1 and 2 (who,will hereafter be referred to as plaintiffs) for a declaration that the sale held in execution of the decree obtained by the appellant (who was the 9th defendant in the, suit) in O. section No. 31 of 1937 38 against their father and other members of their family was void ab initio. O. section No. 31 of 1937 38 had been filed by the present appellant on, the basis of a promissory note executed as already mentioned by the father of the plaintiffs and other members of that family. In execution all the sixteen items of property belonging to the family were sold. The sale was in pursuance of an attachment before the judgment made on 25th September 1937. The suit was subsequently decreed. In the suit the only plea taken was that the defendants were agriculturists entitled to the benefit of the Mysore: Agriculturists Relief Act 1928. The plaintiffs filed the suit for a mere declaration because they continued in possession of the properties which had been sold in execution and purchased by defendants 10 and, 11 in the suit and subsequently purchased by the appellant. The Trial Court decreed the suit. It should be mentioned that the suit was filed on 14 5 1952. The plaintiffs were born respectively in. the years 1944 and 1950. On appeal the District Judge hold that the sale was void but allowed the appeal on the ground that the plaintiffs were not born on the date of the sale. A Division Bench I of the Mysore High Court allowed the Second Appeal and restored the judgment of the Trial. Court. The main question for decision as to whether the execution sale was void ab initio depends on the interpretation to be placed on section 14.of the Mysore Agriculturists ' Relief Act which roads as follows:. (1) Except as otherwise provided in subsections (2), (3), and (4) no agricultural land belonging to an agriculturist shall be attached or sold in execution of any decree or order passed after this Act comes into force, unless it has been specifically mortgaged for the payment of the debt to which such decree or order relates and the security still subsists, For the purposes of any such attachment or sale as aforesaid standing crops shall be deemed to be movable property. (2) The Court may at the time of passing a decree for money directing payment by instalments or at any time during the course of execution of such decree direct the judgment debtor for sufficient cause to furnish security for the amount of the decree and if he fails to furnish the security required order the attachment of any agricultural land belonging to the judgment debtor. (3) The procedure in respect of attachments ordered under subsection (2) shall be as far as may be in accordance with the procedure relating to attachment before judgment under Order XXXVIII of the Code of Civil Procedure 1908. 972 (4) No agricultural land ordered to be attached under sub section (2) shall be sold in pursuance of such attachment unless the judgement debtor is in arrears in respect of two or more instalments under the decree. We are, in agreement with the view taken by the Courts below and the High Court that the attachment before judgement made in this case was not a valid one and therefore the sale in pursuance of that attachment was void. We are unable to accept the argument on behalf of the appellant that s, 14 does no more than lay down the same procedure as Order 38 of the Code of Civil Procedure and therefore the attachment was valid. Sub section (1) of section 14 lays down that no agricultural land belonging to an agriculturist shall be attached or sold in execution of any decree or order unless it has been specifically mortgaged for the payment of the debt to which such decree or order relates. The suit :filed by the appellant O.S. No. 31 of 1937 38 was not on the foot of a mortgage and therefore the sale effected in execution of the decree obtained by the appellant is clearly against the provisions of sub section Sub section (2) permits an attachment only in execution of a decree and, therefore, there is no substance in the argument on behalf of the appellant that the attachment effected before judgment at the instance of the appellant is similar to an, attachment before judgment tinder Order 38 of the Code of Civil Procedure. We are in agreement with the learned Judges of the High Court that the view taken by the District Judge that as the plaintiffs were not born on the date of the sale they cannot challenge its validity is wrong. A void sale, as we have already held the sale in execution of the decree obtained by the appellant in this case to be, confers no title on the auction purchaser and, therefore, the joint family to which the properties belonged continued to be the owners of that property and did not lose their title there to. The plaintiffs got a right to the property as soon as they were born, not by way of succession but by right of birth. Therefore, plaintiffs were certainly entitled to file a suit questioning the sale. The only other argument on behalf of the appellant, which was advanced before the High Court and rejected by it and was also put forward before us, was that the plaintiffs ' suit was barred by constructive res judicata. It appears that the appellant filed a suit O.S. No. 535 of 1944 45 for partition of items 1 15 against defendants 1 and 2 and the widow and son of another of the original judgment debtors, as also defendants 3 and 4. To that suit the plaintiffs were not parties. Plaintiff No. 2 was not even born then. There Was another suit, O.S. 973 No. 47 of 1942 43 filed by the 11th defendant in respect of item 16.To that suit also the plaintiffs were not parties. As neither plaintiff was born at the time of O.S. No. 47 of 1942 43, they having been born on 22 9 1944 and 19 9 1950, and the second plaintiff was not born at the time O.S. No. 535 of 1944 45 was filed, and the first plaintiff though born Was not made a party there can be no question of res judicata as against them. They are not representatives of their father as contemplated in section 11 of the Code of Civil Procedure. It also appears that the earlier suits were filed before the Munsiff 's Court and were,. therefore, not decided by a court of competent jurisdiction as the present suit has been filed in the Subordinate Judge 's Court. We are, therefore, satisfied that the appellant cannot succeed in his plea of res judicata. The appeal is, therefore, dismissed. The appellant will pay the costs of respondents 1 and 2.

Under s.14(1) of the Mysore Agriculturists Relief Act 1928 no agricultural land belonging to an agriculturalist shall be attached or sold in execution of any decree or order unless it has been specifically mortgaged for the payment of the debt to which such decree or order relates, The appellant filed a suit on a promissory note executed by the father of the respondents. There was an attachment before judgment, and after decree was passed, the properties belonging to the family were sold in execution. The res pondents were born thereafter. They filed a suit contending that the sale of the properties in execution of the appellant 's decree was void ab initio under the Act. The trial Court decreed the suit but the first appellate court allowed the appeal on the ground that as the respondents were not born on the date of the sale they could not challenge its validity. The High Court restored the judg ment of the trial court. Dismissing the appeal to this Court. HELD ; (1) The attachment before judgment was not valid and therefore the sale in pursuance of that attachment was void. The suit filed by the appellant was not on the foot of a mortgage and therefore the sale in execution of the appellant 's decree is against the provisions of section 14(1). The contention that section 14(2) does no more than lay down the same procedure as 0. 38, C.P.C., and therefore the attachment is valid, is not correct. Section 14(2) permits an attachment only in execution of a decree. [972 B E] (2) The respondents were entitled to file the suit questioning the sale. A void sale held in execution of a decree confers no title on the auction purchaser. Therefore the joint family to which the properties belonged did not lose their title, but continued to be owners, and the respondents got a right to the property as soon as they were born by right of birth. [972 E G] (3) The suit was not barred by res judicata because : (a) to the earlier suits referred to the respondents were not made parties; and (b) those suits were filed in the Munsiff 's court and were therefore not decided by a court of competent jurisdiction as the present Suit was filed in the Subordinate judge 's court. The respondents were also not representatives of their father as contemplated in section 11, C.P.C. [972 H 973 C]

ivil Appeal Nos. 1594 1595 0f 1986. From the Judgment and Order dated 23.8.1985 of the Delhi High Court in S.A.O. No. 185 and I84 of 1983. Avadh Behari Rohtagi, M.S. Maan and B.S. Maan for the Appellant. Harish N. Salve, S.K. Mehta, Vijay Makhija, R. Jaganath Goulay, S.A. Sarin and Aman Vachhar, for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Both the appeals by special leave have been filed by the same appellant and are directed against a common judgment delivered by the High Court of Delhi in two connected second appeals dismissing the Execution Applications filed by the appellant against the respondents in the two appeals under Section 21 of the Delhi Rent Control Act (for sho rt 'the Act ' hereinafter). The Execution Applications were dismissed by the Rent Controller but on appeal by the appellant herein they were allowed and the tenant/respondent in each of the applications was directed to surrender possession in a month 's time. The High Court, however, reversed the order of the Rent Control Tribunal in the Second Appeals preferred by the respondents a dismissed the Execution Applications. The aggrieved appellant has preferred these appeals. It was the appellant 's case that she had obtained the sanction of the Additional Rent Controller, New Delhi on 26/27.2.76 and there after leased out specified portions in her property bearing No. N 57, Panchseel Park, New Delhi to the respondents under separate leases of a limited period of two years commencing from 1.3.76. According to here the rear portion in the ground floor consisting of a drawing cum dining hall a bed room, a bath room and other facilities were leased out to the tenant Maj. R.C. Chhiba (respondent in CA No. 1594 of 1986)and the first and second floors comprising of four bed rooms with attached bath rooms and other facilities were leased out to the tenant Tewari (respondent in CA 1595 of 1986) and each of the tenants was to pay a sum of Rs.50 per month for the respective portion PG NO 245 leased out to them. On the ground the two respondents failed to vacate the portions leased out to them at the end of the two years period, the appellant filed Execution Applications under Section 21 of the Act to seek an order from the Rent Controller for delivery of possession of the leased portions: The common defence put forth by the two respondents was that there was a single tenancy and not two tenancies and they were jointly inducted into possession of the entire leased portion even in the month of December 1975 under an oral lease and as such, their tenancy was not referable to the sanction given by the Rent Controller on 26/27.2.76. To substantiate their contentions, the respondents placed reliance on the payment of a sum of Rs.1,700 by them on 1;0.12.1975 as security deposit and the payment of a sum of Rs.5,100 by means of cheque on 29.12.1975 towards advance payment of rent for three months. They alleged that inspite of their having been inducted into possession in December 1975 itself, the respondent mislead them by saying that the oral tenancy required formal sanction by the Rent Controller and hence they should appear before the Rent Controller and have their statements recorded by him. It ws only after giving their statements before the Rent Controller they suspected the motives of the appellant and hence they refused to execute lease deeds in the month of March 1976 as desired by the appellant. The Rent Controller. After a detailed consideration of the evidence adduced by the parties accepted the case of the respondents and held that an oral tenancy had been created in favour of the respondents even in the month of December 1975 and as such their tenancy rights were not governed by the sanction given by the Rent Controller under Section 21 of the Act and further more the sanction of the Rent Controller was vitiated by fraud in that it was obtained by suppressing the true facts from the notice of the Rent Controller. It was further held that the order of sanction of the Rent Controller suffered from an infirmity due to the appellant failing to glove the reasons for her wanting to let out the property for a limited period. We need not however concern ourselves about that aspect of the matter. The Rent Control Tribunal, in the appeals preferred to it, however differed from the Rent Controller and held that even if he respondents had been inducted into possession in December 1975 under an oral tenancy, they must be deemed to have impliedly surrendered their earlier tenancy and consented to acquire fresh tenancy under the sanction granted by the Rent Controller on 26/27.2.76. On the PG NO 246 question whether the sanction of the Rent Controller was vitiated by fraud, the Appellate Tribunal held that the respondents ought to have brought to the notice of the Rent Controller without delay the fraud practised by the appellant and since they had failed to act promptly they were not entitled to seek nullification of the sanction of the Rent Controller on the ground of fraud. In accordance with its conclusions, the Tribunal allowed the appeals preferred by the appellant and held that the Execution Applications were maintainable and directed the respondents to deliver possession to the appellant of the leased portions in a month 's time. It was then the turn of the respondents file second appeals to the High Court against the order of the Rent Control Tribunal. The High Court allowed the appeals holding that since the respondents were already given tenancy rights they would not be governed by the sanction given by the Rent Controller on 26/27.2.76 and furthermore the sanction order itself was unenforceable as it was vitiated by fraud. The High Court also held that no question of implied surrender of the earlier tenancy would arise when the Rent Controller gave sanction for limited tenancy rights being given to the respondents in as much as the purported new lease was void in law and incapable of affording scope for any surrender of a pre existing lease. Consequently the High Court allowed the second appeals and restored the order of the Rent Controller dismissing the Execution Applications. Mr. Rohtagi, learned counsel for the appellant formulated his propositions as under to contend that the High Court had erred in allowing the appeals and dismissing the Execution Applications: 1. The sanction given by the Rent Controller on 26/27.2.76 to the appellant permitting her to grant limited tenancy rights to the respondents was fully in accordance with Section 21 of the Act and it did not suffer from any defect or infirmity. (2) The order of sanction was not vitiated by fraud as the respondents were fully in the know of things and were aware of the nature and purpose of the application made before the Rent Controller and had willingly appeared before the Rent Controller and solemnly declared before him that they were willing to take the premises on lease for a limited period of two years commencing from 1.3.1976. (3) In any event the respondents are dis entitled under law to set up a plea of fraud to seek nullification of the PG NO 247 sanction granted by the Rent Controller because the respondents had not only failed to bring forthwith to the notice of the Rent Controller the fraud committed by the appellant but on the other hand they had availed of the benefit of the permission given by the Rent Controller for the full period of two years and thereby they had lost their power of avoidance of the transaction. (4) Even if the order of sanction was vitiated by fraud, the tenancy created thereunder was only a voidable transaction and not a void one and, as such, by reason of the respondents having failed to avoid the contract and instead having availed the benefit of it for the full period of two years, they were not entitled to refute the validity or the binding nature of the sanction granted by the Rent Controller for creation of limited tenancy rights in their favour. (5) Even if it were to be held that the respondents had already been inducted into possession of the leased premises on an oral tenancy in the month of December 1975 itself, they must be deemed to have impliedly surrendered their tenancy rights under the oral lease when they agreed to accept the limited tenancy rights given to them in pursuance of the sanction of the Rent Controller. Before we examine the contentions of Mr. Rohtagi, we may appositely advert to certain facts emerging from the evidence and the inferences resulting therefrom. The relevant factors requiring mention are as follows. The two respondents are not stranger but are brothers and they have been inducted into possession on one and the same day, i.e. on 10th December 1975. Though the appellant would say that different portions of the house were leased out to them under separate tenancies, the fact remains that a sum of Rs.1,700 had been paid by them towards security deposit on 10.12.1975. The appellant has no doubt acknowledged the payment under two receipts but both the receipts have been typed on the same paper. The receipts would read as if a sum of Rs.850 had been received separately from each one of them but the recital is of no consequence because the respondents have paid the appellant a sum of Rs.5,100 by means of a single cheque towards advance rent for a period of three months at the rate of Rs.1,7)0 per month. The appellant has tried to explain away the payment by saying that the payment represented a sum of PG NO 248 Rs.2,550 given by each of the respondents for meeting the expenses of white washing, colour washing and for effecting repairs to the premises. It has, how ever, been found that no such works were carried out. There is the further fact that while the ground floor portion leased out consisted of only a drawing cum dining hall, one bed room and one bathroom, the first and second floors consisted of four bed rooms together with bathrooms etc. It is inconceivable that irrespective of the difference in the size and nature of the two portions the respondents would have consented to pay the same rate of rent to the appellant for the portions alleged to have been leased out to them. It is also worthy of note that the tenancies said to have been granted to the two respondents are for the same period, i.e. from 1.3.76 to 28.2.78. If all these factors are taken note of, the only conclusion that can be reached is that only a single tenancy in favour of both the respondents should have been created for the entire portion leased out and not two tenancies, viz. one for the ground floor and the other for the first and second floors and that the story of two tenancies put forward by the appellant is a make believe affair It is in this background the appellant 's contentions have to be examined. It is true that the appellant as well as the respondents appeared before the Rent Controller on 26/27.2.76 and gave statements to the effect that the appellant did not require the use of the leased premises for a period of two years commencing from 1.3.76 and that the respondents were willing to take the respective portions marked in the plan exhibit A I produced by the appellant for a limited period but even so the question would arise whether the order passed by the Rent Controller can be deemed a valid and legal sanction given under Section 21. The answer has to be clearly in the negative because the appellant had already let out the premises to the respondents and as such there was no question of the appellant not being in need of the leased portion for a period of two years from 1.3.76. It has been held in Inder Mohan Lal vs Ramesh Khanna, l l987] IV SCC 1 at page 9 that in order to attract Section 21 four conditions must be fulfilled. The relevant portion reads as follows: "Therefore the first condition must be that the landlord must not require the premises either in whole or part of any premises for a particular period. Secondly, the landlord must obtain the permission of the Controller in the prescribed manner. Thirdly, letting of the whole or part of the premises must be for residence. Fourthly, such letting out must be for such period as may be agreed in writing. " PG NO 249 Applying the above tests, it may be seen that in this case the very first condition has not been fulfilled. When the appellant had already parted with her possession of the leased portions by inducting the respondents into possession in December 1975 itself, the statement of the appellant before the Rent Controller on 26/27.2.76 made as if she was in possession of the house and she would not be needing the house for her occupation for a period of two years from 1.3. ]976) was a meaningless statement besides being a subversive statement as well. As pointed out in S.B. Noronah vs Prem Kumari, [1980] l SCR 281 Section 2 I has been provided in the Act to offer a pragmatic compromise formula to satisfy the ever increasing demand of rental accommodation by non owners of houses on the one hand and the reluctance of the owners of houses due to genuine apprehension entertained by them on the other in letting out their houses in whole or in part even when they were not in need of the house or portion of it lest the tenants should set up statutory tenancy rights and refuse to vacate the premises at the end of the lease period. What the Section envisages is the creation of tenancy rights after getting the sanction of the Rent Controller. Such being the case the landlord should make known to the Rent Controller, if there is already a tenant in occupation of the premises, the factum of his possession and the terms of the tenancy and satisfy the Rent Controller, that notwithstanding a tenant being in occupation of the premises under an earlier tenancy he should be granted sanction under section I to confer limited tenancy rights in favour of the existing tenant himself or in favour of .I new tenant. Section ' I was not intended to obtain post facto sanction of a tenancy that had already been created by suppressing relevant information from the Rent Controller so as to enable the landlord to straightaway recover possession of the leased property by filling an application under Section 2l of the Act after the expiry of the period for which permission to lease had been granted by the Rent Controller. Such being the case when the appellant had already put the respondents in possession of the property in December 1975 she could not have bona fide made a statement before the Rent Controller that she would not be requiring the premises for her own occupation from l.3.1976) onwards for a period of two years. he fact that the respondents also appeared before the Rent Controller and gave statements in tune with the statement made by the appellant cannot improve the situation in any manner because a statement made in contravention of facts. whether made by one or both the contracting parties, cannot alter the truth of the situation or cure the lacuna of withholding of relevant information from the Rent PG NO 250 Controller. We cannot therefore accept the contention of the appellant 's counsel that the order passed by the Rent Controller on 26/27.2.76 granting sanction to the appellant to confer limited tenancy rights on the respondents did not suffer from any defect or infirmity. As regards the next contention of Mr. Rohtagi that the appellant had not committed any fraud when she sought for and obtained sanction from the Rent Controller to grant limited tenancy rights to the respondents and that in any event the respondents were fully in the know of things and were therefore estopped from raising a plea of fraud to resist the Execution Applications, the argument is based on a misconception of the real perspective from which the matter Should be viewed. What is of relevance is not whether the appellant had committed any fraud upon the respondents but whether the appellant had fraudulently suppressed relevant materials from the notice of the Rent Controller and had thereby obtained an order of sanction from the Rent Controller to lease out the property for a period of two years from 1.3.1976. There is no denying the fact that the appellant had failed to disclose to the Rent Controller that she had already inducted the respondents into possession and inspite of it she was seeking permission under Section 21 in order to restrict the tenancy rights of the respondents to a period of two years with effect from 1.3.1976. Had she disclosed the real state of affairs it is doubtful whether the Rent Controller would have given his approval to the appellant to restrict the tenancy rights of the respondents, who were already in possession, to a period of two years in substitution of the rights available to them as statutory tenants under the Act. We do not however rule out the possibility of a Rent Controller granting sanction under Section 21 to a landlord to let out his premises in whole or in part for a limited period to a tenant even if the tenant had already been inducted into possession but such sanction has to be obtained after a full an i frank disclosure of all factors including the circumstances under which the tenant had been put in possession even before the Rent Controller 's sanction was obtained and before an agreement in writing was entered into between the parties in terms of the sanction. It could be that the tenant may have been in urgent need of the premises and could not afford to wait to take possession of the house till the legal and procedural formalities were gone through on account of some exigency such as immediate requirement of the house to celebrate a wedding or for a family member to undergo treatment or for the confinement of a daughter or daughter in law etc. but in all such cases the parties must place all the materials before the Rent Controller while PG NO 251 seeking his sanction under Section 21. The fact that the respondents had also appeared before the Rent Controller and agreed to take the property on lease for a limited period of two years without demur cannot obliterate or nullify the fraud committed on the statute. This position has been succinctly pointed out in S.B. Noronah vs Prema Kumari, (supra) at page 287 in the following words: The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord 's non requirement "for a particular period" and the letting itself being "as a residence" Therefore, besides what the parties say, the Rent Controller has to apply his mind before granting sanction under Section 21 because the order passed by him has legal consequences and will govern the rights of the parties to the tenancy that is to follow in terms of the sanction. This is the proper perspective from which the matter should be viewed. Forgetting this position, Mr. Rohtagi based his arguments on the footing that what has been held against the appellant was her perpetration of a fraud on the respondents and the respondents being the sufferers thereby. It was proceeding on those lines Mr. Rohtagi argued that the respondents were not illiterate but highly educated persons, that they were fully aware of the nature of the transaction and that they had willingly consented to the creation of limited tenancy rights in their favour and it was only after deriving full benefit under the tenancy rights given to them for two years, they were brazenly setting forth a plea of fraud and refusing to deliver possession of the leased premises. The argument does not merit consideration because we have already pointed out that the relevant factor for consideration is not whether the respondent were victims of a fraud but whether the appellant by herself or in collusion with the respondents had fraudulently suppressed the truth from the Rent Controller and induced him to give his sanction under Section 21 so as to restrict the tenancy rights already conferred upon the respondents to a period of two years and to enable the appellant to initiate execution proceedings straightaway against the respondents at the expiry of the lease period and have them evicted through process of court from the leased premises. What is now left is the further contention of the appellant 's counsel regarding the failure of the respondents to have speedily brought to the notice of the Rent Controller the fraud committed by the appellant and to have PG NO 252 sought for an annulment of the permission granted under Section 21. The appellant 's counsel placed reliance on the observations of this Court in three cases viz. J.R. Vohra vs Indian export House Pvt. Ltd., [1985] I SCC 712 at 723, Inder Mohan Lal 's,case (supra) para 28 page 17 and Joginder Kumar Butani vs R.P. Oberai, [ 1987] IV SCC 20 at 29 which are all to the effect that the delay on the part of the tenant to impugn the permission granted under Section 21 by the Rent Controller on the ground of fraud is a relevant factor to be taken into consideration by the Court while determining the question whether a tenant should not be summarily evicted under Section 21. The observations in those cases cannot be of any assistance to the appellant for in none of those cases was it found that the sanction granted by the Rent Controller under Section 21 was vitiated by fraud and was therefore a nullity. None of the decisions lay down that where a sanction granted by the Rent Controller under Section 21 is rendered void by reason of a fraud practised upon the statute, the delay on the part of the tenant in seeking annulment of the order of sanction will cure the order of its voidness. Turning now to the last of the contentions of the appellant 's counsel viz. that by reason of the respondents having agreed to take limited tenancy rights under the order of the Rent Controller for a period of two years commencing from 1.3.1976 they must be deemed to have impliedly surrendered their earlier tenancy rights as envisaged under Clause (f) of Section 111 of the Transfer of Property Act, it has no merit in it because, the High Court has rightly pointed out after referring to Does d. Earl of Egrement vs Courtenay, and some decisions of the High Courts, that when a new lease does not pass are interest according to the contract the acceptance of it will not operate as a surrender of the former lease; that, in the case of a surrender implied by law from the acceptance of a new lease,the condition ought also to be understood as implied by law, making void the surrender in case the new lease should be made void. " For all the aforesaid reasons,the appeals have to fail and will accordingly stand dismissed but there will to no order as to costs. N.V.K. Appeals dismissed.

Execution applications were filed by the Appellant under section 21 of the Delhi Rent Control Act, 1958 for obtaining possession of the portions in the occupation of the respondents Tenants. The appellant 's case was that she obtained s motion of the Additional Rent Controller on 26/27th February, 1976 and thereafter leased out specified portions in her property to the respondents under separate leases for a limited period of two years commencing from March 1, 1976. The rear portion in the ground floor was leased out to one tenant and the first and second floor were leased out to another tenant. Each tenant was to pay a sum of Rs.850 per month. The execution applications were filed by the appellant against the two respondents as they failed to vacate the portion leased out to them at the end of the two year period. The two respondents put up a common defence contending, that there was a single tenancy and not two tenancies, they were jointly inducted into possession of the entire leased portion in the month of December, 1975, under an oral lease and the tenancy was therefore not referable to the sanction given by the Additional Rent Controller on 26/27th February, 1976. They placed reliance on the payment of Rs.1,700 on 10th December, 1975 as security deposit, and three months advance payment of rent of Rs.5,100 by means of cheque on 29th December, 1975. The Rent Controller after inquiry and consideration of the accepted the case of the respondents, and held that an oral having been granted in favour of the respondents even in the month of December, 1975 their tenancy rights were not governed by the sanction given by the Additional Rent Controller under section 2l, and that sanction of the Rent Controller was vitiated by fraud in that it was by supressing the true facts from the notice of the Rent Controller. The execution applications were accordingly dismissed. PG NO 241 PG NO 242 In the appeals preferred to the Rent Control Tribunal, it was held that even if the respondents had been inducted into possession in December 1975 under an oral tenancy they must be deemed to have impliedly surrendered their earlier tenancy the sanction granted by the Rent Controller on 2h/27th February, 1976. It was further held that the respondents ought to have brought to the notice of the Rent Controller without delay the fraud practised by the appellant and since they have failed to act promptly they were not entitled to seek nullification of the sanction of the Rent Controller. The Tribunal allowed the appeals, held the execution applications were maintainable, and directed respondents to deliver possession to the appellant in a month 's time. Second appeals were filed by respondents to the High Court, which were allowed. It was held that as the respondents were already given tenancy rights they would not be governed by the sanction given by the Rent Controller on 26/27th February, 1976, that the sanction order itself was unenforceable as it was vitiated by fraud, and that no question of implied surrender of the earlier tenancy would arise, when the Rent Controller gave sanction for limited tenancy rights. The High Court restored the order of the Rent Controller dismissing the execution appeals. Dismissing the appeals by the landlord, the Court, HELD: 1. What section 21 envisages is the creation of tenancy rights after getting the sanction of the Rent Controller. Such being the case, the landlord should make known to the Rent Controller, if there is already a tenant in occupation of the premises, the factum of his possession and the terms of the tenancy and satisfy the Rent Controller that notwithstanding a tenant being in occupation of the premises under an earlier tenancy he should be granted sanction under section 21 to confer limited tenancy rights in favour of the existing tenant himself or in favour of new tenant. [249D E] 2. Section 21 was not intended to obtain 'post facto ' sanction of a tenancy that had already been created by supressing relevant information from the Rent Controller so as to enable the landlord to straight away recover possession of the leased property by filing an application under section 21 after the expiry of the period for which permission to lease had been granted by the Rent Controller. [249E F] PG NO 243 3. Besides what the parties say, the Rent Controller has to apply his mind before granting sanction under section 21 because the order passed by him has legal consequences and will govern the rights of the parties to the tenancy that is to follow in terms of the sanction. [251C] S.B. Noronah vs Prem Kumari, [1980] I SCR 281; J.R. Vohra vs Indian Export House Pvt. Ltd., ; at 723; Inder Mohan Lal vs Ramesh Khanna, [1987] IV SCC 1 at page 9; and Joginder Kumar Butan vs R.P. Oberai, [1987] (IV) SCC page 20 at 29 referred to. A statement made in contravention of facts, whether made by one or both the contracting parties, cannot alter the truth of the situation or cure the lacuna of withholding of relevant information. [249H] In the instant case, it is inconceivable that irrespective of the differences in the size and nature of the two portions, the respondents would have consented to pay the same rate of rent to the appellant for the portions alleged to have been leased out to them. The tenancies Granted to the two respondents are for the same period i.e. from March 1, 1976 to 28 February. If all these factors are taken note of the only conclusion that can be reached is that only a single tenancy in favour of both the respondents should have been created for the entire leased portion and not two tenancies, one for the ground floor, and the other for the first and second floor. The story of two tenancies put forward by the appellant is a make believe affair. [248B D] In the instant case, when the appellant had already put the re spondent in possession of the property in December, 1975, she could not have bona fide made a statement before the Rent Controller that she would not be requiring the premises for her own occupation from 1st March 1976 onward for a period of two years. The fact that respondent 910 appeared before the Rent Controller and gave statements in tune with the statement made by the appellant cannot improve the situation in any manner. [249G H] 5. The sanction obtained from the Rent Controller under Section 21 was vitiated by fraud and therefore a nullity. It could therefore not be said that by reason of the respondents having agreed to take limited ten tenancy rights under the order of Rent Controller for a period of two years commencing from March 1, 1976 they must be deemed to have impliedly surrendered their earlier tenancy rights as envisaged under clause (f) of section 111 of the Transfer of Property Act.[252C E] PG NO 244 Doe d. Earl of Egrement vs Courtenay, , referred.

tition (Civil) No. 11728 y) of 1984. Under Article 32 of the Constitution of India. WITH Writ Petitions Nos. 13556, 13788, 13792, 15438 and 15439 Of 1984 and Civil Appeals Nos. 6414 of 1983 and 3564 of 1984. AND Civil Appeals Nos. 586 to 592 of 1979. From the Judgment and Order dated 24.1.1979 of the Gujarat High Court in Special Civil Appln. Nos. 1552, 1553/77 with Nos. 249,1292,1293,1294 and 1295 of 1978. 299 section J. Sorabjee, A. J. Rana, section Parekh, Mrs. J. Wad, and Miss Aruna Mathur for the Petitioners in W.P. Nos. 11728, 15438 and A 15439 of 1984. S.J. Sorabjee, A.N. Haskar and S.A. Shroff for the Petitioner in W.P. No. 13788 of 1984. S.S. Shroff and S.A. Shroff for the Appellant in C.A. No. 3564/84 and Petitioner in W.P. Nos. 13556, 13792 and 13788 of 1984. S.J. Sorabjee and A. Grover for the Appellant in C.A. No. 6414 of 1983. K.G. Bhagat Additional Solicitor General and R.N. Poddar for the Appellants in C.A. Nos. 586 92 of 1979. K.G. Bhagat, Additional Solicitor General, Girish Chandra, Miss Halida Khatun, Uma Nath Singh and R.N. Poddar for the Respondents. (Union of India) S.K. Dholakia, R.C. Bhatia and P.C. Kapur for the Respondents, in C.A. Nos. 589 92 of 1979. Y.S. Chitale, Anand Haskar, P.H. Parekh and Miss Indu Malhotra for the Respondents in C.A. No. 586 of 1979. A.K Sen, P.H. Parekh and Miss Indu Malhotra for the Respondents in C.A. No. 587 of 1979 F F.S. Nariman, P.H. Parekh and Miss Indu Malhotra for the Respondent in C.A. No. 588 of 1979. The following Judgments were delivered VARADARAJAN J. I agree with my learned brother Sabyasachi Mukharji, J. that Writ Petitions Nos. 11728 of 1984 and 13556, 13788 13792, 15438 and 15439 of 1984 and Civil Appeals Nos. 6414 of 1983 and 3564 of 1984 have to be dismissed with costs, and that Civil Appeals Nos. 586 to 592 of 1979 have to be allowed with costs, and interim orders, if any, passed should stand vacated, and arrears of excise duties should be paid forthwith and future excise 300 duty should be paid as and when the goods are cleared or otherwise as per law and rules. But I regret my inability to subscribe to the views expressed by him in the last two paras of his judgment regarding interim orders. SABYASACHI MUKHARJI, J. This first petition herein under Article 32 of the Constitution arises under the following circumstances. The President of India promulgated an Ordinance being Central Ordinance No. 12 of 1979 called the Central Excises and Salt and Additional Duties of Excise (Amendment) Ordinance, 1979. The said Ordinance was replaced by the Act called the Central Excises and Salt and Additional Duties of Excise (Amendment) Act, 1980 (hereinafter referred to as the 'impugned Act '). The said impugned Act received the assent of the President on 12th February, 1980 and under section 1(2) of the impugned Act, retrospective effect to the Act was given from 24th February, 1979. It may be mentioned that the Gujarat High Court in the case of Vijay Textile Mills vs Union of India rendered its decision on 24th January, 1979 on this aspect of the matter. This decision will have to be examined in little detail later. As a result of the said decision and with a view to overcome the said decision, the Ordinance mentioned hereinbefore was promulgated on 24th November, 1979 which has since been replaced by the said Central Excises and Salt and Additional Duties of Excise (Amendment) Act. After this impugned Act was passed, the same was challenged before the Bombay High Court by several writ petitions, Writ Petition No. 623 of 1979 along with others were disposed of by the Bombay High Court by judgment delivered by the Division Bench on 167/17th June, 1983 in the case of New Shakti Dye Works Pvt. Ltd. & Mahalakshmi Dyeing and Printing Works vs Union of India Anr. By the said judgment, the Bombay High Court disposed of 24 writ petitions as the question involved in all those petitions was identical. In that case the constitutional validity of the impugned Act as well as the levy of duty on certain goods identical to the present goods involved in this application under Article 32 of the Constitution was involved. The Bombay High Court dismissed the said writ petitions. We will refer to the said decision later. We may, however, state that we are in respectful agreement with the conclusions as well as the reasoning of the decision of the Bombay 301 High Court in the said petitions. Special leave to appeal to this Court has been granted from the said decision in the case of New Shakti Dye Works Pvt. Ltd. In order to appreciate the contentions raised, it is necessary to state that the petitioner company is an independent processing unit carrying on its activities at Bombay and as an independent processing unit was engaged in job activities of dyeing, printing and finishing of man made/cotton fabrics. The petitioner company further states that in respect of the said processing activities, the petitioner company holds licences required under the laws for the time being in force including a licence under the Excise Act and the Central Excise Rules which hereinafter will be referred to as the 'said Rules '. The petitioners in writ petition No. 11728 of 1984 were two in number one being the petitioner company and the other being the Taxation Executive of the petitioner company. The petitioners state that the processing operations of the petitioner company in the said factory are job work operations of dyeing, bleaching and printing of the said fabrics which are cotton fabrics and man made fabrics. When the said fabrics are received in the factory of the petitioner, company the same are fully manufactured and are in a saleable condition and are commercially known as grey fabrics i.e. unprocessed fabrics which are cleared after payment of the excise duty under Tariff Item Nos. 19 and 22, as the case may be. The petitioners further state that the said grey fabrics i.e. unprocessed, undergo various processes in the factory of the petitioner company. The grey fabrics are boiled in water mixed with various chemicals and the grey fabric is washed and thereafter the material is taken for the dyeing process, that is imparting of required shades of colours. The next stage is printing process, i.e. putting the required designs on the said fabrics by way of screen printing on hot tables. The final stages the finishing process, that is to give a final touch for better appearance According to the petitioners, they do not carry out any spinning or weaving of the said fabrics. The machinery installed by the petitioner company in its factory is only for the purpose of carrying out one or more of the aforesaid four processes and cannot be used for the purpose of either spinning or weaving of yarn for manufacture of 'fabric ' i.e. 'woven material '. For spinning or weaving of yarn, one requires, according to the petitioners, looms and petitioner company is merely a processing 302 house. The petitioner company 's case is that the petitioner company A begins with man made or cotton fabrics before it starts the said processes and also ends with man made or cotton fabrics after subjecting the fabrics to the various processes. The petitioner company receives fully manufactured man made fabrics and cotton fabrics from its customers only for the purpose of carrying out one or more of the aforesaid processes thereon as per the requirement and instructions of the customers and after the necessary processes are carried out, the same are returned to the customers. According to the petitioners, what is received by the petitioner company is known as cotton/man made fabrics and what is returned is again known as cotton/man made fabrics. The petitioner company states that it has no discretion or choice of shades or colours or designs and the same are nominated or prescribed by the customers. The finally processed fabric is not and cannot be sold by the petitioners in the market as the petitioner company 's product. The petitioner company merely collects from its customers charges only for job work of processing done by it. The petitioner company further states that it has no proprietary interest in the fabrics either before or after the same is processed. The manufacture of the fabrics and sale in the market of the processed fabrics are effected by the petitioner company 's customers and not by the petitioners. Further the processed as well as the unprocessed fabric, whether cotton or man made, can be put to the same use. The petitioner company, is required to file classification list for approval of the concerned Excise Authorities as prescribed by Rule 173 B of the said Rules for approval of Tariff items in the First Schedule to the excise Act in respect of the processed fabrics. As per approval granted there on in respect of man made fabrics and cotton fabrics, the petitioner company classifies all the processed fabrics under Tariff Items 19 and 22, as the case may be. So far as man made fabrics are concerned under Tariff Item 22, the petitioner company was required to pay certain duties as mentioned in the petition. The petitioners state that the petitioner company has paid such duties. The petitioners further state that such classification list of cotton fabrics has been approved under Tariff Item No. 19 and the petitioner company was required to pay certain duties which the petitioner company has mentioned that it has paid the same. The petitioners further state that for the purpose of determination of 303 value under section 4 of the Excise Act, the petitioner company was required to file a price list in the form prescribed under the said Rules for approval. The respondents government authorities, according to the petitioners, although being aware of the fact that the petitioner company was carrying out and or performing merely the processing work and collecting the processing charges only, had directed the petitioner company to file a price list on the basis of the sale price of its customers and for this purpose had required the petitioner company to file along with the said price list letters of its customers certifying the price at which the said customers sell the goods in the markets. The petitioners state that price list includes the selling expenses and selling profits of the said customers in which the petitioner company has no interest or share. According to the petitioners, the respondents approve the price list and as a consequence thereof the petitioner company becomes liable to pay to the respondents additional Excise duty calculated on ad valorem basis on the said approved sale price that is the sale price of its customers. The petitioners have annexed a copy of the delivery note and a copy of the invoice issued by the petitioner company. It is further the case of the petitioners that both in respect of cotton fabrics and man made fabrics which are merely processed by the petitioner company, the respondents were levying and collecting excise duty and additional duty respectively under Tariff Items 19 and 22, as the case may be, at rates stipulated against the respective entries read with relevant exemption notification, as if the petitioner company was the manufacturer of cotton fabrics/man made fabrics, as the case may be. The petitioner company further states that it bad filed a writ petition in the Bombay High Court which was admitted. The said writ petition was filed through Indian Textile Processors Association. The petitioners stated thereafter the circumstances under which the said petition was withdrawn and why the present petition under Article 32 of the Constitution is being filed. For our present purpose, it is not necessary to set out these details. The petitioners challenge the impugned Act mentioned hereinbefore. Before the contentions are dealt with, it would be appropriate to deal with the relevant provisions of the impugned Act. Section 2 of the impugned Act amends section 2(f) of the Excise Act by adding three sub items in the definition of 'Manufacture ' which 304 were included by Act 6 of 1980 being the impugned Act which came into effect from 24th November, 1979 which are sub clauses (v), (vi) and (vii). These read as follows: "(v) in relation to goods comprised in Item No. 19 I of the First Schedule, includes bleaching, mercerising, dyeing, printing, water proofing, rubberising, shrink proofing, organdie processing or any other process or any one or more of these processes; (vi) in relation to goods comprised in Item No. 21(1) of the First Schedule, includes milling, raising, blowing, tentering, dyeing or any other process or any one or more of these processes; (vii) in relation to goods comprised in Item No. 22(1) of the First Schedule, includes bleaching, dyeing, printing, shrink proofing. tentering, heat setting, crease resistant processing or any other process or any one or more of these processes;" Similar amendments we made in Items 19(1), 21(1) and 22(1) of the Central Excise Tariff, and also similar amendments were effected in relation to Act of 1957. These amendments were effected retrospectively from different dates for different fabrics, as mentioned in the impugned Act. According to section 5(2) (b) of the impugned Act, no suit or other proceedings shall be maintained or continued in any other court for the refund of the same and no enforcement shall be made by any court of any decree or order directing the refund of such duties of excise which have been collected and which may have been collected as if the provisions of section S of the impugned Act had been in force on and from the appointed day as defined in the impugned Act. It may, however, be mentioned that the original unamended definition of the word "manufacture" in section 2(f) contained a general definition of the word "manufacture" which was and still continues to be an inclusive definition to say that the manufacture includes any process incidental or ancillary to the completion of a manufactured product. According to the petitioners, the impugned Act had been enacted and brought into force because of the judgment of the Gujarat High Court dated 24th January, 1979 given in the case of 305 Real Honest Textiles and others vs Union of India a decision which is also subject matter of appeal before this Court and has been heard A along with this petition. The Gujarat High Court had declared that the levy and collection of excise duty and additional duty on processed cotton fabrics under Tariff Item No. 19 I of the Schedule to the Excise Act and additional duty on processed man made fabrics under Tariff Item 22(1) of the Additional Duties of Excise (Goods of Special Importance) Act, 195, was ultra vires and the processing houses were liable to pay duty of excise on processed fabrics ad valorem under Tariff Item 68 of the Schedule to the Excise Act only on value added by way of process charges on cotton or manmade fabrics, as the case may be, and not on the full value of such fabrics. As mentioned hereinbefore, an application for special leave to appeal to this Court had been filed from the said decision of the Gujarat High Court, these appeals are pending and would be disposed of by this judgment. It may be mentioned that so long as the respondents had been collecting and the petitioners had been paying excise duty and/or additional duty as the petitioner company was manufacturing cotton fabrics under Tariff Item Nos. 19 and 22, as the case may be. Since the decision of the Gujarat High Court in New Shakti Dye Works Pvt. Ltd., and the petitioners and the processing houses like petitioners have been claiming refund The material portions of the amendments of the Act have been set out hereinbefore in the definition of section 2(f). The second part of the impugned Act by which amendments were effected is found in section 3 of the impugned Act by which original item No. 19 in the First Schedule to the Excise Act was substituted by new Item No. 19 I and for the original item No. 22, a new item No. 22(1) was substituted. These are: " 1. Cotton fabrics, other than (i) embroidery in the piece, in strips or in motifs, and (ii) fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials (a) cotton fabrics, not subjected to any process Twenty per cent ad valorem (b) cotton fabrics, subjected to the process of bleaching, mercerising, dyeing, printing, 306 water proofing, rubberising, shrink proofing, organdie processing or any other process or any two or more of these processes. Twenty per cent ad valorem XXX XXX XXX 22(1) Man made fabrics other than (i) embroidery in the piece, in strips or in motifs, (ii) fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials (a) man made fabrics, not subjected to any process. Twenty per cent ad valorem plus rupees five per square metre. (b) man made fabrics, subjected to the process of bleaching, dyeing, printing, shrink proofing, tentering, heat setting, crease resistant processing or any other process or any two or more of these processes. Twenty per cent ad valorem plus rupees five per square metre. It may be pointed out that the original Item No. 19 I referred to "cotton fabrics". It provided that "cotton fabrics means all varieties of fabrics manufactured either wholly or partly from cotton and includes dhoties, sarees, chadders, bed sheets, bed spreads, counter panes, table cloths, embroidery in the piece, in strips or in motifs and fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials. " 307 The proviso is not relevant for the issue now. The original Item 19 I read as follows: "I. Cotton fabrics other than (i) embroidery in the piece, in strips or in motifs, and (ii) fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials". Thus, Item No. 19 I is now substituted by the new item referred to above and the effect of this substitution is that for the purposes of excise duty cotton fabrics have been categorised into two classes, namely (a) cotton fabrics not subjected to any process and (b) cotton fabrics subjected to any process of bleaching, mercerising, dyeing, printing, water proofing, rubberising, shrink proofing, organdie processing or any other process or any two or more of these processes. The duty on each one of them is twenty per cent ad valorem. Substantially the same is the nature of the substitution of old Item No. 22(1) by new Item No. 22(1). This item referred to man made fabrics and by the amendment, man made fabrics have again been divided into two categories, namely, (a) man made fabrics, not subjected to any process, and (b) man made fabrics subjected to different processes referred to in clause (b). Cotton fabrics and man made fabrics were also subjected to the additional duties of excise as a result of the amendments of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (hereinafter referred to as "the Additional Duties Act"). By section 4 of the amending act, Item Nos. 19 I and 22(2) of the First Schedule to the Excise Act were also similarly amended by making an identical substitution of Item No. 191 and 22(1) in the First Schedule to the Additional Duties Act. The Amendment Act has been made retrospective in operation, and so far as cotton fabrics are concerned, it became operative from 1st March, 1955 and so far as man made fabrics are concerned, it became operative from 18th June, 1977. Now, it has been provided by clause (iv) of sub section (1) of section 5 of the Amendment Act that amendments of clause (f) of section 2 of the Excise Act should be treated as having been in force at all relevant times subject to the modifications that the reference in the Excise Act to the "goods comprised in Item No. 19 I of the First Schedule" shall be construed as a reference to such "cloth", "cotton 308 cloth",or, as the case may be, ' cotton fabrics", and reference to the A "goods comprised in Item No. 22(1) of the First Schedule" shall be construed as a reference to such "rayon or artificial silk fabrics" or, as the case may be, "man made fabrics". Section 5(2) of the Amendment Act also validates duties of excise already levied, assessed, or collected on cloth, cotton cloth, cotton fabrics, woollen fabrics, rayon or artificial silk fabrics and man made fabrics subjected to any process. It provides that all duties of excise levied, assessed or collected or purported to have been levied, assessed or collected, before the date of commencement of the Amendment Act, on (i) "cloth", "cotton cloth" and "cotton fabrics" subjected to any process, (ii) "woollen fabrics", subjected to any process, (iii) "rayon or artificial silk fabrics" and "man made fabrics" subjected to any process, under any Central Act shall be deemed to be, and shall be deemed always to have been as validly levied, assessed or collected as if the provisions of section 5 had been in force on and from the appointed day. It is also expressly enacted in section 5 of the Amendment Act that every Central Act as in force at any time during the period commencing with the appointed day and ending with day immediately preceding the date of commencement of the Amendment Act and providing for or relating to the levy of duties of excise on "(a) 'cloth ', 'cotton cloth ' or, as the case may be, 'cotton fabrics ', (b) 'woollen fabrics ', (c) 'rayon or artificial silk fabrics ', or as the case may be, 'man made fabrics ', shall have and shall be deemed to have always had effect during the said period as if (i) such 'cloth ' or as the case may be, 'cotton fabrics ' comprised for the purpose of the duty leviable under the Excise Act (A) a sub item covering such 'cloth ', 'cotton cloth ' or 'cotton fabrics ' not subjected to any process mentioned in sub clause (v) of clause (f) of section 2 of the Central Excise Act, as amended by this Act; and (B) a sub item covering such 'cloth ' 'cotton cloth ' or 'cotton fabrics ' subjected to any such process or any two or more such processes and the rate or duty specified in such Act with respect to such cloth, cotton cloth, or 'cotton fabrics ' had been specified separately with respect to each of the aforementioned sub items thereof". Similar provision was also made in clause (iii) of sub section (1) of section 5 in respect of "rayon or artificial silk fabrics" or "man made fabrics". It is common ground that the effect of various amendments inserted in the Excise Act by the Amendment Act was to include the processes of bleaching, dyeing and printing, in so far as the present petitions are concerned, within the definition of the word "manufacture". It is also common ground that by making amendment to Tariff Item 309 No. 19 I and by creating two separate categories of cotton fabrics, that is, (1) not subjected to any process, and (2) subjected to the A processes and by making these amendments retrospective recoveries which have so far been made from the processors in question were sought to be legalised. If these amendments can stand the test of challenge of Article 19(1)(g) and 14 and if the amendments in section 2(f) are within the legislative competence of the Parliament, and the process of bleaching, dyeing and printing and other processes mentioned in the newly introduced clause (v) o section 2(f) were manufacturing processes, then the processors would become liable to pay excise duty, and there cannot be any question of refund. This is not disputed. The amending Act has, however, been challenged and various submissions on behalf of the respective parties were made and numerous decisions were referred to us. The following main points fall for consideration in these applications and appeals: 1. Whether cotton fabrics subjected to the process of bleaching, mercerising, dyeing, printing, water proofing etc. specially the processes conducted and carried out by the petitioner company as enumerated before in respect of cotton fabrics and woollen fabrics/man made fabrics as mentioned under Items 19 or 22 of the Schedule to the amount to 'manufacture ' as the Act stood prior to the impugned Act of 1980. In other words whether these various processes carried out by the petitioner company amount to bringing into existence different and distinct goods, commercially known as such, to attract levy of duty under section 4 of the . 2. Whether and in any event after the impugned Act, the levy is valid. In connection with the said contention it has to be examined whether the impugned Act is intra vires entry 84 of List I of the Seventh Schedule to the Constitution and if not, whether the said impugned Act can be said to be valid in any event under entry 97 of List I of the Seventh Schedule to the Constitution, 310 3. Whether the impugned Act violates Article 14 or Article 19(1)(g) of the Constitution. If the impugned Act is valid, then no other question need be examined except the question as to what should be the actual levy of the duties. It is therefore necessary to examine the amendment of the definition of 'manufacture ' in section 2(f) of the Central Excise and Salt Act, 1944 and Tariff Items 19(1) and 22(1) of the First Schedule to the Central Excise Tariff. The main contention of the petitioner is that the impugned Act is ultra vires of entry 84 of List I of the Seventh Schedule. It is not necessary to set out in extenso entry 84 of List I of the Seventh Schedule to the Constitution. It deals with duties of excise on tobacco and other goods manufactured or produced in India. It may be mentioned that the charging section i e. section 3 of the empowers the levy and collection in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India and a duty on salt manufactured in, or imported by land into, any part of India as they apply in respect of goods at rates set forth in the First Schedule to the said Act. "Excisable goods" under section 2(d) means goods specified in the First Schedule as being subject to a duty of excise and includes salt. It was urged in support of this application that Parliament was incompetent under entry 84 to enact the impugned Act whereby an artificial meaning to the word 'manufacture ' was given. The word 'manufacture ' must be given its etymological meaning. It was urged that process of bleaching, dyeing and printing are not processes which could properly be described as manufacturing processes. Therefore it was submitted that by making the said amendment to the word 'manufacture ' and by including such processes in the definition of manufacture and in effectuating the consequential amendments in Tariff Item Nos. 19 I and 22(1), Parliament has gone beyond the scope of entry 84 of List I of the Seventh Schedule to the Constitution and as such is ultra vires. It was submitted that all that was being done was that fully manufactured cotton fabrics is subjected to further process of bleaching, dyeing and printing and therefore the article still continues to be cotton fabric and no different article having distinctive features, character and use comes into existence. It was submitted that grey 311 cloth before it is processed is cotton fabric and after it is processed, continues to be cotton fabrics. As such it cannot be said that there A was any manufacture involved. Numerous decisions on the question whether a particular process was a manufacturing process or not were referred to. On the other hand on behalf of the revenue it was urged that the processes of bleaching, dyeing and printing were essentially manufacturing processes inasmuch as a result of these processes, a new substance known to the market is brought into being. In support of this contention, several decisions were also referred to. Though it is not necessary to refer to all these decisions, some of these may be noted. In Union of India vs Delhi Cloth & General Mills,(l) this Court was concerned with the question as to whether manufacture of 'refined oil ' from raw materials undertaken by the manufacturers of Vegetable products known as Vanaspati was liable to excise duty. The manufacturers purchased ground nut and til oil from open markets and the oils thus purchased by them were subjected to different processes in order to turn these into Vanaspati. Their contention was that at no stage they produced any new products which could come within the items described in the Schedule as "vegetable non essential oils, all sorts, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power". The contention of the revenue was that the manufacturers in the course of manufacture of Vanaspati which was a vegetable product from the raw ground nut and til oil, brought into existence what is known in the market as 'refined oil, after carrying out some process with the aid of power and it fell within the description of "vegetable non essential oils" and as such was p liable to duty. And in that context it was pointed out by this Court that excise duty was a duty on the manufacture of goods and not on sale. After referring to the arguments of respective parties, this Court noted at page 596 of the report the contention on behalf of the revenue that manufacture was complete as soon as by the application of one or more process, the raw material underwent some change. It further stated "To say this is to equate "processing" to "manufacture" and for this we can find no warrant in law. The word "manufacture" used as a verb is generally (1) 11963]1 SUPP, S.C.R. 586. 312 under stood to mean as "bringing into existence a new A substance" and does not mean merely "to produce some change in a substance", however, minor in consequence the change may be. The distinction is well brought about in a passage thus quoted in Permanent Edition of Words and Phrases, Vol. 26, from an American Judgment. The passage runs thus: "Manufacture" implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use. " Hence according to this decision, if a new substance is brought into existence or if a new or different article having a distinctive name, character or use results from particular processes, such process or processes would amount to manufacture. This view point has been reiterated in numerous decisions. Reference in this connection may be made to the decision in the case of Union of India vs II.U.F. Business known as Ramlal Mansukhrai, Rewari & Anr. ( ') This Court at pages 941 942 of the report observed as follows: "The word "manufacture" is defined in Section 2(f) of the Act as including any process incidental or ancillary to the completion of a manufactured product. The rolling of a billet into a circle is certainly a process in the course of completion of the manufactured product, viz., circles. In the present case, as we have already indicated earlier, the product, that is sought to be subjected to duty, is a circle within the meaning of that word used in Item 26A(2). In the other two cases which came before this Court, the articles mentioned in the relevant items of the First Schedule were never held to have come into existence, so that the completed product, which was liable to excise duty under the First Schedule, was never produced by any process. In the case before us, circles in any form are envisaged as the completed product produced by manufacture which are subjected to excise duty. The process of conversion of billets into circles (1) [l971] I S.C.R. 937. 313 was described by the legislature itself as manufacture of circles. " The question of 'manufacture ' was also considered by this Court in the case of Allenburry Engineers vs Ramakrishna Dalmia Ors.(1) It may be noted in the case of Hiralal Jitmal vs Commissioner of Sales Tax(2), a Division Bench of Madhya Pradesh High Court in considering the meaning of the expression `manufacture ' for the purpose of the Madhya Bharat Sales Tax Act, 1950, was of the view that it was not necessary that there must be a transformation in the materials and that the transformation must have progressed so far that the manufactured article became commercially known as a different article from the raw materials and all that was required was that the material should have been changed or modified by man 's art or industry so as to make it capable of being sold in an acceptable form to satisfy some want, or desire, or fancy or taste of man. It is apparent that the concept of 'manufacture ' in that decision has been given a wide meaning. It is not necessary to go into this aspect any further. It may be mentioned that this Court in the case of Commissioner of Sales Tax, U.P. Lucknow vs Harbilas Rai and Sons(3) pointed out that the word 'manufacture ' has various shades of meaning, and in the context of sales tax legislation, if the goods to which some labour was applied remained essentially the same commercial article, it could not be said that the final product was the result of manufacture. Referring to the Madhya Pradesh High Court decision in the case of Hiralal Jitmal (supra), this Court observed at page 20 as follows: ". The decision of the Madhya Pradesh High Court might perhaps be justified on the ground that a printed or dyed cloth is commercially a different article from the cloth which is purchased and printed or dyed. This is precisely the position here. On behalf of the revenue, great emphasis was laid on the view that even according to this Court, printed or dyed cloth was a commercially different article from the cloth which is purchased and printed or dyed. (l) ; (2) [1957l S.T.C. Vol. VIII, 325 (M.P.). (3) [1968] S.T.C. Vol. 21 p. 17 (S.C.), 314 A similar view was taken by the Punjab and Haryana High Court in the case of East India Cotton Manufacturing Company Private Limited vs The Assessing Authority cum Excise and Taxation Officer, Gurgaon and Another.(l) The Division Bench in that case positively took the view that sizing, bleaching or dyeing of raw cloth turns it into a different marketable commodity, and, as such, amounted to "manufacture" of a commercially new product. Reference may also be made to a decision of the Bombay High Court in Kores (India) Limited vs Union of India and Others(2), where the Division Bench was considering the question whether the process of cutting large rolls of paper into specific sizes can dimensions and to roll these into teleprinter rolls with the aid of power driven machines amounted manufacture under section 2(f) of the Central Excise Act. The Division Bench held that teleprinter rolls are different commodities or articles from the one used as the base material which is large size or jumbo rolls writing or printing papers. Fabric itself means woven materials. It was contended that processing the manufactured fabric does not bring into existence any new woven material but the question is: does new and different goods emerge having distinctive name, use and character ? The Madras High Court in the case of K Venkataraman and Company and others vs Deputy Commercial Tax Officer, Coimbatore IV and others(8) had to consider that cinders do not fall within the expression "coal, including coke in all its form" in item I of the Second Schedule of the Tamil Nadu General Sales Tax Act, 1959. Where the words used in an entry are comprehensive or wide enough to include all kinds or types of particular goods falling within the description, the question was whether their scope should be restricted and in that context it was held that mere change in form or colour of the goods by reason of any processing cannot be held to be sufficient ground for removing it from its original classification. In the case of Commissioner of Sales Tax, U.P. Lucknow vs Harbilas Rai and Sons (supra), it was held that the word 'manufacture ' has various shades of meaning, and in the contest of sales tax legislation, if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the (l) [1972] S.T.C. Vol. 30 p. 489 (Pb. & Har.). (2) [1982] E.L.T. Vol. 10, p. 253. (3) [1972] S.T.C. Vol. 30 p. 57 (Mad.). 315 final product is the result of manufacture. There the assesses,dealers in pig bristles, bought bristles plucked by Kanjars from pigs, A boiled them, and washed them with soap and other chemicals, sorted them out according to their sizes and colours, tied them in separate bundles of different sizes and despatched them to foreign countries for sales. It was held that the sales made to foreign countries were not taxable as the bristles were not manufactured goods within Explanation II(ii) to section 2(h) of the U.P. Sales tax Act, 1948. In Deputy Commissioner, Sales Tax (Law) Board of . Revenue (Taxes) Ernakulam vs Pio Food Packers( ') arising out of Kerala General Sales Tax Act 1963 where the expression used under section 5 A(l)(a) was "consumes such goods in the manufacture of other goods for sale or otherwise", and meaning of the expression under section 5 A(1) (a) fell for consideration for exigibility to tax of pineapple fruit when processed into slices for the purpose of being sold in sealed cans. Though in the facts of that case in the context of Sales Tax Law, it was held that there was no manufacture, the principles enunciated by this Court are in the following terms: "There are several criteria for determining whether a commodity is consumed in the manufacture of another The generally prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct in identity from the commodity involved in its manufacture. Commonly, manufacture is the end result of one or more processes, through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place. Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been (1) ; 316 consumed in the manufacture of another. Although it A has undergone a degree of processing, it must be regarded as still retaining its original identity. " It may be noted that the taxable event in the context of Sales Tax Law is 'sale '. The taxable event under the Excise Law is 'manufacture '. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes 'manufacture ' takes place and liability to duty is attracted. Though in the facts of that case perhaps it was not necessary and as such the attention of the Court was not drawn to the definition of the term 'manufacture ' under section 2(f) of the Central Excise Act nor was the Tariff Item IB placed before the Court. This decision was referred to and followed in the case of Chowgule & Co. Pvt. Ltd. and Another vs Union of India & Others.(l) Whatever may be the operation, it is the effect of the operation on the commodity that is material for the purpose of determining whether the operation constitutes such a process which will be part of 'manufacture Any process or processes creating something else having a distinctive name, character and use would be manufacture. It is appropriate now to refer to Gujrat High Court 's decision in the case of Vijay Textile, y. Union of India.(2) Gujarat High Court held that cotton fabrics subjected to bleaching, dyeing and printing could not be subjected to excise duty under Item 19 (1). The Gujarat High Court proceeded on the footing that the processes of bleaching, dyeing and printing were manufacturing processes and held that excise duty would be leviable under residuary Item No. 68 of the First Schedule. This decision has two aspects one which was emphasised on behalf of the revenue i.e. that Gujarat High Court accepted the position that processes of bleaching, dyeing and printing were manufacturing processes and such on the strength of that decision, it could not be said that these processes do not amount to manufacture and on the other, which was stressed on behalf of the petitioners, was that such processes could not transform the cloth (1) [1981] I S.CC. 653. (2) [1979] 4 E.L.T. J. 181. 317 into item 19(1). The Gujarat High Court 's decision which is reported at page 193 of the report is as follows: "In the instant case, the excise duty claimed on the basis of the market value of the processed cotton fabrics or man made fabrics cannot be levied because, assuming that process amounts to manufacture, all that they have done is to manufacture processed cloth, processed fabric, either cotton or man made and that not being a taxable event in the light of Section 3 read with section 2 (d) of the Act and Items 19 and 22 levy of excise duty on this basis was ultra vires and contrary to law. Therefore, the petitioners are entitled to the refund of the excess of excise duty paid by them during the period of last three years immediately preceding the filing of the Special Civil Application over what they were bound to pay on the footing that processing of cotton fabrics is an excisable activity covered by Item 68. Item 68 refers to "All other goods not specified elsewhere manufactured in a factory. " Therefore, processed cotton fabrics and processed man made fabrics were manufactured in the factories of the petitioners and since they are not covered by Item 19 or 22 of the Schedule, they are liable to pay ad valorem duty only in respect of the value added by them at the time of processing because the only manufacturing activity which they have done is the manufacturing of processed fabrics from fabric which was already in existence. The Excise authorities are therefore directed to calculate the ad valorem excise duty during the period of three years immediately preceding the institution of each petition before us and calculate the excise duty payable by each of these petitioners under Item 68 only in respect of the value added by each of the petitioners by the processing of the fabric concerned. The excise duty paid in excess of such ad valorem duty under Item 68 during the period of three years immediately preceding the institution of the respective Special Application is ordered to be refunded to the petitioners concerned in each of their petitions. " The main question that fell for consideration before the Gujarat High Court was whether the articles fell within Tariff Entry 19 or 22 as contended by the revenue or under residuary Entry 68. 318 It appears in the light of the several decisions and on the construction of the expression that the process of bleaching, dyeing and printing etymologically also means manufacturing processes. In support of this contention reliance on behalf of the petitioners was also placed on the case of Extrusion Process Pvt. Ltd. vs N.R. Jadhav, Superintendent of Central Excise (1) where the Gujarat High Court had held that printed and lacquered aluminium tubes did not have, in relation to a plain extruded tubes any distinctive name, character or use as both could be used for the same purpose, both enjoy the same name, and therefore, these could not be said to be new substance distinguishable from plain extruded tubes. This decision, however, cannot be of assistance in the instant case. The petitioners in that case had been printing and lacquering only plain extruded tubes and the question was whether by printing and lacquering the plain extruded tubes of aluminium the petitioners firstly applied any further process of extrusion to these and there by manufactured tubes. It was held that printing and lacquering were not even remotedly connected with the manufacture of aluminium tubes. It was a process independent of the manufacture of aluminium tubes. The question whether a particular process is a process of manufacture or not has to be determined naturally having regard to the facts and circumstances of each case and having regard to the well known tests laid down by this Court. Similarly the facts of the decision in the case of Swastic Products, Baroda vs Superintendent of Central Excise(2) are also distinguishable. The decision of this Court in the case of Kailash Nath and Another vs The State of U.P. and Others(3) was on the question of interpretation of a notification issued by the U.P. Government exempting sale of manufactured cloth or yarn with a view to export such cloth or yarn. The notification provided that with effect from 1st December, 1949, the provisions of the U.P. Sales Tax Act, 1948 did not apply to the sales of cotton cloth or yarn manufactured in Uttar Pradesh, made on or after 1st December, 1949, with a view to export such cloth or yarn outside the territories of India on the condition that the cloth or yarn was actually exported and proof of such actual export was further furnished. This Court in that case held that although the colour of the cloth had changed by printing and (1) [1979] 4 E.L.T. J. 380 (Gujarat). (2) (3) [1957] S.T.C. Vol. VIII p. 358 (S.C.). 319 processing, the cloth exported was the same as the cloth sold by the petitioners in that case and they were therefore not entitled to exemption under the notification. As would be apparent from the facts mentioned herein before, the question for consideration before this Court was the identity of cloth purchased and exported having regard to the use of the words "cloth" in the notification. These words were construed by this Court to mean that the Legislature did not intend that the identical thing should be exported in bulk quantity or that any change in appearance would be crucial to alter it. It was also pointed out that the expression "such cloth or yarn" would mean cloth or yarn manufactured in Uttar Pradesh and sold and those words had nothing to do with the transformation by printing and designs on the cloth. It is implicit in the decision of this Court that by printing or designing, the cloth was in fact transformed. But since the decision turned on the construction of the notification in which any change in appearance or transformation of an article into another did not become relevant, the decision would not be of assistance in disposing of the present case. This question has been elaborately considered by the Bombay High Court in the case of x New Shakti Dye Works Private Ltd. and 24 other petitions heard along with the same and are under appeals to this Court by special leave. We are in respectful agreement with the conclusions reached by the learned Acting Chief Justice of the Bombay High Court in that decision. In England, in the case of Mc Nicol and Another vs Pinch,(l) the "manufacture of saccharin" in the Finance Act, 1901 and the Revenue Act, 1903 was held to mean the "bringing into being as saccharin". There the appellants had subjected certain "330 saccharin" (i.e., saccharin 330 times as sweet as sugar) to a chemical process, the result of which was that in some cases "550 saccharin" (i.e., saccharin 550 times as sweet as sugar) was produced, in others a mixture sweeter than 330, but not so sweet as 550 saccharin, and in few cases a mixture less sweet than 330 saccharin was there. It was held by the Court of Appeal by Bray and Darling JJ., Ridley, J. dissenting that the appellants were not manufacturing saccharin within the meaning of the Finance Act, 1901, so as to be compelled to take out the excise licence required by section 9 of that Act and section 2 of the Revenue Act, 1903, and to obtain from an officer of Inland Revenue a book such as was prescribed by the Regulation No. 633 of (1) 320 the Statutory Rules, 1904, inasmuch as the substance with which the appellants dealt was always saccharin both before and after their treatment of it. Bray J. Observed at pages 359 360 of the report as follows "We have to determine whether upon the facts stated in the case the appellants did manufacture saccharin. Let us see what those facts are. One of the admitted facts is that saccharin is a substance produced from toluene sulphonamide. That is the definition of saccharin. This saccharin was not produced by the appellants from toluene sulphonamide; it was produced (if it can be said to have been produced) from saccharin itself. The appellants have not manufactured saccharin from toluene sulphonamide. The case states that 330 saccharin is produced without eliminating certain para products, or only eliminating them to a very small extent. Then, in order to convert 330 saccharin into 550, certain of the para compounds have to be eliminated. Then it states that "this mixture" (that is, the 330) "is known commercially as 330 saccharin " The other mixture is known commercially as 550 saccharine. In both cases it is saccharin, and as a dutiable article 330 saccharin does not differ in the smallest degree from 550 saccharin. The same duty is payable on 550 saccharin as on 330 saccharin. What the appellants do is stated thus: "The appellants subjected certain 330 saccharin to a chemical process . This amount of 330 saccharin was not treated in one bulk, but in separate quantities. The result of this treatment was that in some cases 550 saccharin was produced, and in some cases a mixture sweeter than 330 saccharin but not so sweet as 550 saccharin was produced," and in some cases less sweet. But it was always saccharin; it was saccharin before it was treated, and it was saccharin after it was treated." Darling J. at pages 361 362 of the report made the following interesting observations: "I do not say that to use the word "manufacture" as exactly synonymous with the word "make," or to use 321 the words "to manufacture" as exactly synonymous with the words "to make" is strictly grammatical, but I think A that is what the statute has done. I think it possible that in a literary sense "to make" and "to manufacture" may not have precisely the same meaning. One can put cases where the word "manufacture" might be used in a somewhat strained way, but perhaps a little more scientifically. Take the case of a carpenter. A carpenter uses wood; he begins with wood; he makes the wood into boxes. What would you say if you wanted to talk of his manufacturing ? Ordinary people would not say that he manufactured wood; they would say he manufactured boxes. But I am not quite sure it might not be strictly said that he manufactures the wood. He applies a process to it. I suppose etymologically "to manufacture" is "to make by hand. " Everybody knows that you cannot absolutely make a thing by band in the sense that you can create matter by hand, because in that sense you can make nothing: "Ex nihilo nihil fit. " You can only make one thing out of another. I think the essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made. Even if it could be strictly said that the carpenter "manufactures" wood it could not be said that he "makes" wood. The same with a man who makes boots; he takes leather, and he makes it into boots. If he simply made leather into leather nobody could possibly say that he was a leather manufacturer, hut it would be possible to say that a man took leather and make it into boots manufactured leather but made boots. I think it would be possible to say that, and I am not sure it would not be strictly accurate but I cannot read this statute in that way. (emphasis supplied). Whether it would be possible to read "manufacture" etymologically as something very different from "make," I think the Act of 1901 uses "manufacture" and "make" as being convertible terms, and that a man who manufactures saccharin under section 9 is doing the same thing as is called the making of saccharin under section S or the manufacturing of glucose or saccharin under sub section 2 of section 5, and that the appellants did not make saccharin, because they began and ended with saccharin. They did not "make" saccharin, and in my opinion, from the way in which the 322 word is used by the statute, they did not manufacture A saccharin, and therefore did not require a licence. " It may, however, be pointed out that when Darling J. dealt with the example of a carpenter, the learned judge thought it was right that it could not be slid that when 'box ' is prepared that the carpenter was manufacturing 'wood ' but transforming 'wood ' into 'box ' would certainly be manufacturing 'boxes ' It is well settled that one cannot absolutely make a thing by hand in the sense that nobody can create matter by hand, it is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case. Plain wood is certainly different from 'box ' made of wood. Rindley J. it may be pointed out, disagreed with the view and observed at page 362 of the report that where any process of art is used upon some substance, it is "manufactured." He observed as follows: "To say that a person does not "manufacture." a thing because it has the same name after the process has been passed upon it as it had before seems to me but T suppose I am wrong to be simply a question of words. If there had happened to be another word for saccharin of the strength of 550, different from saccharin of the strength of 330, it would almost I will not say quite follow from the reasoning of my learned brothers that this would have been a manufacture. I cannot think that is so. Take the case of the manufacture of steel; and let it be steel before it goes into works: apply some process to it and it become a particular short of steel. But it is steel both before and after, although steel of different qualities. Is not that the manufacture of steel? I should have thought so. Take the manufacture of wool, it is wool when it is on the sheep 's back; it is wool when it has passed through the process of sorting and picking which it has to go through in the mill. Is not that the manufacture of wool ? I should have thought it most certainly was, although the name "wool" is applied to it both before the process begins and after it has ended" 323 The learned judge further observed that in that case saccharin was "manufactured" and manufacture of saccharin does cover a process that was done in that case. In that view of the matter etymologically the word "manufacture" properly construed would doubtless cover the transformation. In support of the question whether actually there is manufacture or not various documents were attempted to be utilised at the hearing of the application before us. Most of these pieces of evidence cannot be admitted at this stage but indisputably in the Indian Standard Glossary of terms which deals with various expressions, 'Bleached Fabric ' has been defined as a fabric which has undergone bleaching treatment and is treated by the India Standard Institution as something different from fabric which has not undergone the bleaching operations. Different standards are set out by the same and the views of the Indian Standard Institution can be looked into by the Court with certain amount of creditability. See in this connection Union of India vs Delhi Cloth & General Mills (supra). So far as other evidence is concerned, as mentioned, hereinbefore, it may not be safe to deal with the same as these were produced at a very late stage and all the materials are not on the record. After the impugned Act was passed these processes in the present case indubitably fill within the expression "manufacture" if the impugned Act is valid, and within the competence of the Parliament. Arguments, however, were advanced on behalf of the petitioners that in entry 84 of List I of Seventh Schedule, the expression "manufacture" cannot be extended to include processes which were not "manufacture". Large number of decisions were cited at the Bar on this aspect of the matter. It is true that entries though should be widely construed, these should not be so construed as to bring in something which has nothing to do with the "manufacture". It was submitted that legal concept and connotation of "manufacture. ' were well settled. Reliance was placed on several decisions for this purpose. As has been noted, processes of the type which have been incorporated by the impugned Act were not so alien or foreign to the concept of "manufacture" that these could not come within that Concept. 324 The question whether the impugned Act is covered by entry 84 can be looked from another point of view namely the actual contents of entry 84. In the case of Aluminium Corporation of India Ltd. vs Coal Board(1). a Division Bench of Calcutta High Court had to consider this question in the context of Coal Mines (Conservation and Safety) Act, 1952. The objection of the petitioner in that case was that although coal might be a material or a commodity, it was not something which was produced and therefore the entry which applied to the goods produced in India could not apply to coal. No question of manufacture obviously arose. It was submitted that the coal produced itself. This was rejected. The word 'produced ' appearing in entry No. 84 of List I of the Seventh Schedule is used in just a position with the word 'manufactured ' according to the Division Bench and used in connection with duty of excise and consequently it would appear to contemplate some expenditure of human skill and labour in bringing the goods concerned into the condition which would attract the duty. It was not required that the goods would be manufactured in the sense that raw material should be used to turn out something altogether different. It would still require that these should be produced in the sense that some human activity and energy should be spent on them and these should be subjected to some processes in order that these might be brought to the state in which they might become fit for consumption. To speak of coal, the Division Bench was of the opinion, as produced in the sense to its being made a material of Consumption by human skill and labour was entirely correct and had sanction of approved usage. Reference was made to the observations of the King vs Caledonian Collieries, Limited.(2) Where the Judicial Committee held that the respondents before them were 'producers of coal '. If that aspect of the matter is kept in mind then expenditure of human skill and material have been used in the processing and it may not be that the raw material was first transformed but over the transformed material, further transformation was done by the human labour and skill making this fit for human consumption. In any event under entry 97 of List I of the Seventh Schedule this would apply if it is not under entry 84. It was then argued that if the legislation was sought to be defended on the ground that it is a tax on activity like processing and would be covered by the (1) A.I.R. 1959 Cal. 222. (2) 325 powers enumerated under entry 97 of List I of the Seventh Schedule then it was submitted that there was no charging section for such an A activity and as such the charge must fail, and there cannot be any levy. This argument proceeds on an entire misconception. The charging section is the charging section 3 of the . It stipulates the levy and charge of duty of excise on all excisable goods produced or manufactured. "Manufactured" under the Act after the amendment would be the manufacture ' as amended in section 2 (f) and Tariff item 19 I and 22 and the charge would be on that basis. Therefore it is difficult to appreciate the argument that the levy would fail as there will be no appropriate charging section or machinery for effectuating the levy on the activity like the method of processing even if such an activity can be justified under entry 97 of List I of Seventh Schedule. We are, therefore, of the opinion that there is no substance in this contention As mentioned hereinbefore under each of these points several authorities were cited but in the view we have taken on principles which are well settled, it is not necessary to multiply these authorities. The validity of the impugned Act was challenged on the ground that by giving retrospective effect, unreasonable restrictions have been imposed on the petitioners ' fundamental rights under Articles 14 and 19 (1) (g) of the Constitution. In this connection, it may be appropriate to refer to the statement of objects and reasons wherein it was stated that the Central Excise duty was levied for the first time on cotton fabrics in 1949, on man made fabrics (rayon of artificial silk fabrics) in 1954 and on woollen fabrics in 1955. From the very early stages of the textile tariff, with a view to achieving progression in the rate structure and to aligning excise control with the demands of different producing sectors, duties had been levied not only on grey fabrics but also at the stage of processing such as bleaching, dyeing and printing. In the judgment of the Gujarat High Court in the case of Real Honest Textiles and others vs Union of India, it was held that 'fabric ' as used in the tariff description "cotton fabric" would refer to something that was woven; hence it could relate only to cloth in the grey stage; processing of the grey cloth either by bleaching, dyeing or printing did not amount to manufacturing as both before and after processing it remained a fabric falling within the same item of Central Excise Tariff (Item 19 cotton fabrics, of the First Schedule to the ). The Court had arrived at a similar conclusion with regard to man made fabrics 326 falling under item No. 22 of the same Schedule. After the pronouncement of the above judgment, several writ petitions were filed in various courts. This decision of the Gujarat High Court, according to the statement of objects and reasons of the Act, had upset the arrangements regarding levy of excise duties on textile fabrics. The judgment also had the effect of disturbing the balance evolved between different sectors of the textile industry. Furthermore, it was made clear that in so far as past assessments were concerned, refund of excise duties to manufactures as ordered by the High Court would have only meant a fortuitous windfall so as to benefit such persons without any relief to the ultimate consumers who had purchased the fabrics and had borne the burden of the duties. In order to avoid this, the Act was passed. It has therefore to be borne in mind that the petitioners have already paid excise duty demanded of them from time to time and the present petitioners have gathered the duties from the consumers. Imposition of tax by legislation makes the subjects pay taxes. It is well recognised that tax may be imposed retrospectively. It is also well settled that by itself would not be unreasonable restriction on the right to carry on business. It was urged, however, that unreasonable restrictions would be there because of the retrospectivity. The power of the Parliament to make retrospective legislation including fiscal legislation are well settled. (See M/S. Krishnamurthi & Co. etc. vs State of Madras & Anr. ( ') Such legislation per se is not unreasonable. There is no particular feature of this legislation which can be said to create any unreasonable restriction upon the petitioners. In the view we have taken of the expression 'manufacture ', the concept of process being embodied in certain situation in the idea of manufacture, the impugned legislation is only making 'small repairs ' and that is permissible mode of legislation. In 73rd volume of Harward Law Review p. 692 at p. 795, it has been stated as follows: "It is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called 'small repairs '. Moreover, the individual who claims that a vested right (1) 327 has arisen from the defect is seeking a windfall since had the legislature 's or administrator 's action had the effect it was intended to and could have had, no such right would have arisen. Thus, the interest in the retroactive curing of such a defect in the administration of government out weighs the individual 's interest in benefiting from the defect . The Court has been extremely reluctant to over ride the legislative judgment as to the necessity for retrospective taxation, not only because of the paramount governmental interest in obtaining adequate revenues, but also because taxes are not in the nature of a penalty or a contractual obligation but rather a means of apportioning the costs of government amount those who benefit from it". The impugned legislation does not act harshly nor there is any scope for arbitrariness or discrimination. It was contended on behalf of the petitioners that they are carrying on only the processing activity and the wholesale cash price is not theirs on the entire product. Section 4 of the Act is the section which deals with the valuation of excise goods for the purpose of charging duty of the same would be applicable. Where for the purpose of calculating assessable profits, a notional and conventional sum is laid down by the legislature to be arrived at on a certain basis, it is not permissible for the courts to engraft into it any other deduction or allowance or addition or read it down on the score that the said deduction or allowance or addition was authorised elsewhere in the Act or in the Rules. A conventional charge should be measured by its own computation and not by facts relating to other method of computation. The circumstances that thereby the benefit of any exemption granted by the legislature may be lost and that in some cases hardship might result are not matters which would influence courts on the construction of the statute. A tax payer subject is entitled only to such benefit as is granted by the legislature. Taxation under the Act is the rule and benefit and exemption, the exception. And in this case there is no hardship. When the textile fabrics are subjected to the processes like bleaching, dyeing and printing etc. by independent processes, whether on their own account or on job charges basis, the value of the purposes of assessment under section 4 of the Central Excise Act will not be the processing charges alone but the intrinsic value of the processed fabrics 328 which is the price at which such fabrics are sold for the first time A in the wholesale market. That is the effect of section 4 of the Act. The value would naturally include the value of grey fabrics supplied to the independent processors for the processing. However, excise duty, if any, paid on the grey fabrics will be given proforma credit to the independent processors to be utilised for the payment on the processed fabrics in accordance with the Rules 56A or 96D of the Central Excise Rules, as the case may be. Read in that context and in the context of the prevalent practice followed so long until the decision of the Gujrat High Court in Real Honest case, there is no hardship and no injustice to the petitioners or the manufacturers of grey fabrics. The fact that the petitioners are not the owners of the end product is irrelevant. Taxable event is manufacture not ownership. See In re 711e Bill to amend section 20 of the and Section 3 of the Central Excise & Salt Act 1944.(1) The conclusion that inevitably follows that in view of the amendment made in section 2(f) of the Central Excises & Salt Act as well as the substitution of new Item 19 I and Item 22(1) m Excise / Tariff in place of the original items, the contentions of the petitioners cannot be accepted. Section 3 of the clearly indicates that the object of the entries in the First schedule is firstly to specify excisable goods and secondly to specify rates at which excise duty will be levied. Reference has already been made to Rule 56A. Under sub rule (2) of Rule 56A, it is expressly provided that a manufacturer will be given credit of the duty which is already paid on the articles used in the manufacture subject to certain conditions. It is stated before us that excise duty will be charged on processed printed material. Processors will be given credit for the duty already paid on the grey cloth by the manufacturer of the grey cloth. In this view of the matter we are of the opinion that the views expressed by the Bombay High Court in the case of New Shakti Dye Works Pvt. Ltd. & Mahalakshmi Dyeing and Printing Works vs Union of India and Anr. (Writ Petition Nos. 622 and 623 of 1979) are correct. The views expressed by the Gujarat High Court in Vijay Textiles vs Union of India in so far as it held that the processed fabrics could only be taxed under residuary entry and not Item 19 I or Item 22 of the First Schedule of the (Central Excise Tariff cannot be sustained. (1) at 822. 329 We are also unable to accept the view of the Gujarat High Court in the case of Union of India & Ors. vs M/s Real Honest Textiles & Ors. (Civil Appeal Nos. 586 to 562 of 1979). Writ Petition (Civil) No. 11728 of 1984 therefore fails and is dismissed with costs. The connected applications viz. Civil Appeal No. 3564 of 1984 and 6414 of 1983 and Writ Petition Nos. 13556, 13792, 13788, 15438 39 of 1984 also fail and are dismissed with costs. Interim orders, if any, are vacated. Arrears of duties should forthwith be paid and future duties should also be paid as and when goods are cleared. Civil Appeal Nos. 586 to 592 of 1979 are allowed with costs. Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different courts sometimes pass different orders as the courts think fit. It is a matter of common knowledge that the interim orders passed by particular courts on certain consideration are not precedents for other cases may be on similar facts. An argument is being built up now a days that once an interim order has been passed by this court on certain factors specially in fiscal matters, in subsequent matters on more or less similar facts, there should not be a different order passed nor should there be any variation with that kind of interim order passed. It is submitted at the Bar that such variance creates discrimination. This is an unfortunate approach. Every Bench hearing a matter on the facts and circumstances of each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have right to vary or alter such interim orders. We venture to suggest, however, that a consensus should be developed in matter of interim orders. If we may venture to suggest, in fiscal matters specially in cases involving indirect taxes where normally taxes have been realised from the consumers but have not been paid over to the exchequer or where taxes are to be realised from consumers by the dealers or others who are parties before the court, interim orders staying the payment of such taxes until final disposal of the matters should not be passed. It is a matter of balance of public convenience. Large amounts of taxes are involved in these types of litigations. Final disposal of matters unfortunately in the present state of affairs in our 330 courts takes enormously long time and non realisation of taxes for long time creates an upsetting effect on industry and economic life causing great inconvenience to ordinary people. Governments are run on public funds and if large amounts all over the country are held up during the pendency of litigations, it becomes difficult for the governments to run and become oppressive to the people. Governments ' expenditures cannot be made on bank guarantees or securities. In that view of the matter as we said before, if we may venture to suggest for consideration by our learned brothren that this Court should refrain from passing any interim orders staying the realisations of indirect taxes or passing such orders which have the effect of non realisation of indirect taxes. This will be healthy for the country and for the courts. S.R. Civil Appeal Nos. 586 to 592 of 1979 allowed and Petitions dismissed.

In Vijay Textile Mills vs Union of India reported in (1979) 4 E.L.T.J. 181, the Gujarat High Court by its decision dated 21 1.1979 held that cotton fabrics subjected to bleaching, dyeing and printing could not be subjected to excise duty under Item 19 (1) (b) of the First Schedule to the is at twenty per cent ad valorem these activities not being taxable event in the light of section 3 read with 2(d) of the Act. The Gujarat High Court proceeded on the footing that the processes of bleaching, dyeing and printing were manufacturing processes and held that excise duty would at least be leviable under residuary Item No. 68 of the First Schedule and therefore, liable to levy at eight per cent ad valorem, the High Court directed the "Excise authorities to calculate the ad valorem excise duty during the period of three years immediately preceding the institution of each petition before the Court and calculate the excise duty payable by each of these petitioners under Item 68 only in respect of the value added by each of the petitioners by the processing of the fabric concerned. The excise duty paid in excess of such ad valorem duty under Item 68 during the period of three years immediately preceding the institution of the respective Special Application is ordered to be refunded to the petitioners concerned in each of their petitions." In Real Honest Textiles and Ors. vs Union of India (now in appeal) the Gujarat High Court passed similar directions after declaring that the levy and collection of excise duty and additional duty on processed man made fabrics 293 under Tariff ' Item 22(1) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 was ultra vires. Since the decisions of the Gujarat High A Court on 24.1.1979 in these two cases, the petitioners and the processing houses like the petitioners have been claiming refund. The President of India promulgated an Ordinance being Central ordinance No. 12 of 1979 called the Central Excises and Salt and Additional Duties of Excise (Amendment) Ordinance 1979. The said Ordinance was replaced by the Act VI of 1980 called the Central Excises and Salt and Additional Duties of Excise (Amendment) Act, 1980, giving retrospective effect to the Act from 24th February 1979. By section 2 of the Act, section 2(f) of the Excise Duty Act was amended by adding three sub items in the definition "manufacture" so as to include the activities like bleaching, dyeing, printing etc. covered by the two decisions of the Gujarat High Court. Similar amendments were made in items 19(1), 21 (1) and 22 (1) of the First Schedule with retrospective effect. Section 5(2) (b) of the Amending Act provided "no suit or other proceedings shall be maintained or continued in any other Court for the refund of the duty collected and no enforcement shall be made by any Court of any decree or order directing the refund of such duties of excise which have been collected and which may have been collected." as if the provisions of section 5 of the Act VI of 1980 had been in force on and from the appointed day as defined in the Act VI of 1980. After the Act VI of 1980 was passed, the same was challenged before the Bombay High Court by several writ petitions. Dismissing W.P. 623/1979 titled New Shakti Dye Works Pvt. and Mahalakshmi Dyeing and Printing Works vs Union of India along with 24 other writ petitions on 16117 June, 1983, the Bombay High Court upheld the Constitutional validity of the impugned Act as well as the levy of duty on certain goods. Special Leave was granted in this case as in the two earlier Gujarat High Court 's cases. Empire Industries Limited also filed a petition under Article 226 of the cases though Indian Textile Processor Association withdrew it from the file of the Bombay High Court and by the writ petition under Article 32 of the Constitution has challenged the Constitutional validity of the Act VI of 1980 and the validity of the levy of excise duty under section 4 of the Act. Some other petitioners similarly situated have also filed their petitions under Article 32 of the Constitution. In these petitions and appeals the following main points fell for consideration: 1. Whether cotton fabrics subjected to the process of bleaching, mercerising, dyeing, printing, water proofing etc. specially the processes conducted and carried out by the petitioner company in respect of cotton fabrics and woolen fabrics/man made fabrics as mentioned under Items 19 or 22 of the Schedule to the amount to 'manufacture ' as the Act stood prior to the impugned Act of 1980. In other words whether these various processes carried out by the petitioners 294 company amount to bringing into existence different and distinct goods, A commercially known as such, to attract levy of duty under section 4 of the . 2. Whether and in any event after the impugned Act, the levy is valid. In connection with the said contention it has to be examined whether the impugned Act is intra vires entry 84 of List I of the Seventh Schedule to the Constitution and if not, whether the said impugned Act can be said to be valid in any event under entry 97 of List I of the Seventh Schedule to the Constitution. Whether the impugned Act violates Article 14 or Article 19(1)(g) of the Constitution. Allowing the Revenue appeals in C.A. Nos. 586 to 592 of 1979 and dismissing all the petitions and other appeals, the Court, ^ HELD: 1. In view of the amendments made in section 2(f) of the by Amending Act VI of 1980 as well as the substitution of new Item 19(1) and 22(1) in Excise Tariff in place of the original items, the activities of the petitioner company, namely, as an independent processing unit engaged in job activities of dyeing, printing and finishing of man made/cotton fabrics attract the exigibility to excise duties under section 3 and 4 of the Act. Excise duty will be charged on processed printed material. [328 D E] Section 3 of the clearly indicates that the object of the entries in the First Schedule is firstly excisable goods and secondly to specify rates at which excise duty will be levied. Under sub rule 2 of Rule 56A, a manufacturer will be given credit of the duty which is already paid on the articles used in the manufacture, subject to certain conditions. Therefore, the processors will be entitled to credit for the duty already paid on the grey cloth by the manufacturers of the grey cloth. [328 E P] New Shakti Dye Works (Pvt.) Ltd vs Mahalakshmi Dyeing and Printing Works vs Union of India & Anr. (W.P. Nos. 622 and 623 of 1979 dated 16 and 17 June 1983 Bombay) approved. 2.1 Excise duty is a duty on the manufacture of goods and not on sale. Manufacture is complete as soon as by the application of one or more process, the raw material undergoes some change. If a new substance is brought into existence or if a new or different article having a distinctive name, character or use result from particular processes, such process or processes would amount to manufacture. Therefore, the taxable event under the Excise Law is `manufacture '. The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character, use and name, whether be it the result of one process or several processes `manufacture ' takes place and liability to duty under section 4 is attracted. [312 C D; 316 B C] 295 Union of India vs Delhi Cloth & General Mills, [1963] 1 Supp. S.C.R. 586; Union of India vs H.U.F. Business known as Ramlal Mansukhnai, Rewari &; Anr. A ; Allenburry Engineers vs Ramakrishna Dalmia & Ors., 11933] 2 S.C.R. 257; Deputy Commissioner, Sales Tax (Law) Board of Revenue (Taxes) Ernakulam vs Pio Food Packets, ; and Chowgule and Co. Pvt. Ltd. and Anr. vs Union of India and Ors. 11981] I S.C.C. 653 referred lo. Commissioner of Sales Tax, U.P. Lucknow vs Harbilas Rai and Sons [1968] S.T.C. Vol. 21 p. 17 (S.C.) followed. Hiralal Jitmal vs Commissioner of Sales Tax, [1957] S.T.C. Vol. VIII 325 (MP); East India Cotton Manufacturing Company Pvt. Ltd. vs The Assessing Authority cum Excise and Taxation Officer, Gurgaon and Anr., [1972] S.T.C. Vol. 30 p. 489 (Punjab and Haryana); Kores (India) Ltd vs Union of India and Ors., [19821 E.L.T. Vol. 10, p. 253 and K. Venkataraman and Company and Ors. vs Deputy Commercial Tax Officer, Coimbatore IV and Ors., [1972] S.T.C. Vol. 10 p. 57 (Mad) approved. Extrusion Process Pvt. Ltd. vs N.R. Jadhav, Superintendent of Central Excise, 119791 4 F. L.T. J. 380 (Gujarat); Swastik Products, Baroda vs Superintendent of Central Excise, and Kailash Nath and Anr. vs The State of U.P. and Ors., [1957] S.T.C. Vol. VIII p. 358 (SC) distinguished. Mc Nicol and Anr. vs Pinch, quoted with approval. 2.2 Etymologically the word "Manufacture" properly construed would doubtless cover the transformation. Here, in the light of several decision of the Supreme Court and the High Courts and on the construction of the expression, the process of bleaching, dyeing and printing etymologically means manufacturing process. The processes of the type which have been incorporated by the Act VI of 1980 were not so alien or foreign to the concept of `manufacture ' that these could not come within that concept covered by entry 84, of List I of the Seventh Schedule. After the Act VI of 1980 was passed these processes indubitably fall within the expression `manufacture '. [323A,E H] 2.3 The question whether the impugned Act is covered by entry 84 can be looked from another point of view namely the actual contents of entry 84. The word `produced ' appearing in entry No. 84 of List I of the Seventh Schedule is used in juxtaposition with the word `manufactured ' and used in connection with the duty of excise and consequently it contemplates same expenditure of human skill in bringing the goods concerned into the condition which would attract the duty. It was not required that the goods would be manufactured in the sense that raw material should be used to turn out something altogether different. It would still require that these should be produced in the sense that some human activity and energy should be spent on them and these should be subjected to some processes in order that these might be brought to the state in which they might become fit for consumption. Here, expenditure 296 of human skill and material have been used in the processing and it may not be that the raw material was first transformed but over the transformed material, further transformation was done by the human labour and skill making this fit for human consumption. In any event under entry 97 of List I of the Seventh Schedule this would apply if it is not under entry 84. [324 A, G] Aluminium Corporation of India Ltd. vs Coal Board AIR 1959 Cal. 222, approved. The King vs Caledonian Collieries, Ltd. referred to. 2.4 To contend that if the legislation was sought to be defended on the ground that it is a tax on activity like processing and would be covered by the a powers enumerated under entry 97 of List I of the Seventh Schedule there was no charging section for such an activity and as such the charge must fail and there cannot be any levy is wrong and misconceived. The charging section is the charging section 3 of the . It stipulates the levy and charge of duty of excise on all excisable goods produced or manufactured. `Manufactured ' under the Act after the amendment would be the 'manufacture ' as amended in section 2(f) and Tariff Item 19(1) and 22 and the charge would be on that basis. [324 ;325 A B] 3.1 Imposition of tax by legislation makes the subjects pay taxes. It is well recognised that (i) tax may be imposed retrospectively; and that by itself would not be unreasonable restriction on the right to carry on business and (ii) the Parliament has powers to make retrospective legislation including fiscal legislation and such legislation per se is not unreasonable. [326 D F] 3.2 Here there is no particular feature of this legislation which can be said to create any unreasonable restriction upon the petitioners. The concept of process being embodied in certain situation in the idea of manufacture, the impugned legislation is only making 'small repairs ' and that is permissible mode of legislation. [326 E F] 3.3 Nor does the impugned legislation act harshly nor there is any scope for arbitrariness or discrimination. It is clear from the objects and reasons wherein it was stated that the Central Excise Duty was levied for the first time on cotton fabrics in 1969, on man made fabrics (rayon of artificial silk fabrics) in 1954 and on woolen fabrics in 1955. From the very early stages of the textile tariff, with a view to achieving progression in the rate structure and to aligning excise control with the demands of different producing sectors duties has been levied not only on grey fabrics but also at the stage of processing such as bleaching, dyeing and printing. The Judgment of the Gujarat High Court in Real Honest Textiles and Ors. vs Union of India (under appeal) according to the statement of objects and reasons of the Act VI of 1980 had upset the arrangements regarding levy of excise duties of textile fabrics. The judgment also had the effect of disturbing the balance evolved between different sectors of the textile industry. Furthermore, it was made clear that in so far as past assessments were concerned, refund of excise duties to manufactu 297 rers as ordered by the High Court would have only meant a fortuitous windfall so as to benefit such persons without any relief to the ultimate consumers A who had purchased the fabrics and had borne the burden of the duties. In order to avoid this, the Act was passed. [325 E H; 326 B C; 327 C] Krishnamurthi & Co. etc. vs State of Madras & Anr., , referred to. 3.4 Where for the purpose of calculating assessable profits, a notional and conventional sum is laid down by the legislature to be arrived at on a certain basis, it is not permissible for the courts to engraft into it any other deduction or allowance or addition or read it down on the score that the said deduction or allowance or addition was authorised elsewhere in the Act or in the Rules. A conventional charge should be measured by its own computation and not by facts relating to other method of computation. The circumstances that thereby the benefit of any exemption granted by the legislation may be lost and that in some cases hardship might result are not matters which would influence courts on the construction of the statute. A tax payer subject is entitled only to such benefit as is granted by the legislature. Taxation under the Act is the rule and benefit and exemption, the exception. And in this case there is no hardship. [327 E G] D 3.5 When the textile fabrics are subjected to the processes like bleaching, dyeing and printing etc. by independent processes, whether on their own account or on job charges basis, the value of the purposes of assessment under section 4 of the Central Excise Act will not be the processing charges alone but the intrinsic value of the processed fabrics which is the price at which such fabrics are sold for the first time in the wholesale market. That is the effect of section 4 of the Act. The value would naturally include the value of grey fabrics supplied to the independent processors for the processing. However excise duty, if any, paid on the grey fabrics will be given proforma credit to the independent processors to be utilised for the payment on the processed fabrics in accordance with the Rules 56 A or 96 of the Central Excise Rules, as the case may be. [327 G H; 328 A B] F 3.6 Read in that context and in the context of the prevalent practice followed so long until the decision of the Gujarat High Court in Real Honest case, there is no hardship and no injustice to the petitioners or the manufacturers of grey fabrics. The fact that the petitioners are not the owners of the end product is irrelevant. Taxable events is manufacture not ownership. [328 B D] G 4. Documentary evidence not produced earlier cannot be admitted at the late stage of final hearing of the case by the Supreme Court [308 E] (Per majority Varadarajan J. dissenting). Different Courts sometimes pass different interim orders as the courts think fit. The interim orders passed by particular courts on certain considerations arc not precedents for other cases may be on similar facts. To contend 298 that once an interim order has been passed by the Supreme Court on certain A factors specially in fiscal matters, in subsequent matters on more or less similar facts, there should not be a different order passed nor should there by any variation with that kind of interim order passed. In as much as that such variance creates discrimination is an unfortunate approach. [329C E ] 2. Every bench hearing a matter on the facts and circumstances of each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have right to vary or alter such interim orders. The court made the following suggestions (i) A consensus, however, should be developed in matters of interim orders in fiscal matters specially in cases involving indirect taxes where normally taxes have been realised from the consumers but have not been paid over to the exchequer or where taxes are to be realised from consumers by the dealers or others who are parties before the court, interim orders staying the payment of such taxes until final disposal of the matters should not be passed. It is a matter of balance of public convenience Large amounts of taxes are involved in these types of litigations Final disposal of matters unfortunately in the present state of affairs in our courts takes enormously long time and non realisation of taxes for long time creates an upsetting effect on industry and economic life ceasing great inconvenience to ordinary people. Governments are run on public funds and if large amounts all over the country are held up during the pendency of litigations, it becomes difficult for the governments to run and become oppressive to the people. Government 's expenditures cannot be made on bank guarantees or securities. In that view of the matter the Supreme Court shall refrain from passing any interim orders staying the realisations of indirect taxes or passing such orders which have the effect of non realisation of indirect taxes. This will be healthy for the country and for the courts. [329 E H; 330 A C]

Civil Appeal No. 90 of 1950. Appeal against the Judgment and Decree dated the 22nd July 1948 of the High Court of Judicature at Calcutta (K. C. Mitter, and K.C. Chunder J J) in appeal from Original Decree No. 49 of 1942 arising 74 574 out of Decree dated the 8th September 1941 of the Subordi nate Judge at Asansole in Suit No. 1 of 1941. Purusottam Chatterji (section N. Mukherjee, with him) for the appellants. Panchanan Ghose, (P. C. Chatterjee, with him) for the respondent. May 4. 'the following judgments were delivered : DAS J. This appeal arises out of a suit filed by the appellants on January 2, 1941, in the Court of the Subordi nate Judge, Asansole. That suit came to be filed in circum stances which may now be stated shortly. A suit had been instituted by one Kumar Dakhineswar Malia against Rameswar Malia, Rani Bhaba Sundari and others for partition of the Searsole Raj Estate. One Bhagabati Charan Mitra was appointed receiver of that estate in that suit. On August 10, 1908, the said receiver with the permis sion of the Court which had appointed him as receiver grant ed two mining leases, each for 999 years one in respect of 5/16 share of the Malias in Mouza Monohar Bahal and the other in respect of 230 bighas in village Marich Kota to a firm then carrying on business under the name and style of Laik Banerjee & Company. On the same day the said receiver with like permission mortgaged these properties to the said firm as security for the due repayment of the loan of Rs. 100,000 advanced by that firm. The Malias joined the re ceiver in executing the aforesaid leases and the mortgage. As a result of these transactions the firm of Laik Banerjee & Company became the lessees for 999 years of the two properties as well as the mortgagee of the lessors ' interest in the same. By diverse processes not necessary to be detailed, the appellants have become the successors in interest of the mortgagors and the respondent Deva Prasanna Mukerjee has become the successor in interest of the mortga gee under the mortgage of August 10, 1908. 575 On March 31, 1922, Deva Prasanna filed suit No. 78 of 1922 for enforcing the mortgage of 1908. Preliminary decree was passed in the last mentioned suit on ' July 31, 1928, and a final decree for sale was made I on February 26, 1929. In execution of this final decree the mortgaged properties were sold at a Court i sale and were purchased by Deva Prasanna for ' Rs. 59,000. This sale was confirmed by the Court on June 30, 1931. A large sum remaining still due to Deva Prasanna, he applied for, and on October 30, 1935, obtained a personal decree for Rs. 1,27,179 0 6 against Raja Pramatha Nath Malia who had by inheritance acquired the lessors ' interest and become the borrower. In 1936, Deva Prasanna started execution case No. 118 of 1936 for execution of the personal decree and attached certain properties alleging that the same belonged to the Raja. The exact date of the attachment does not appear from the printed record. The Raja as Sibait of a certain deity and his two sons, the appellants before us, objected to the attachment of these properties and filed a claim case. Negotiations for settlement started and eventually, on January 30, 1937, a petition (exhibit 2) was filed in the exe cuting Court stating as follows : "The judgment debtor having made special requests to the decree holder for an amicable settlement of the aforesaid execution case, the decree holder has agreed to the same. But some time is required to settle the talks and all the terms etc. The judgment debtor has paid to the decree holder the costs of this execution amounting to Rs. 76 14 0, and he having made requests for this execution case being struck off for the present on keeping the attachment in force, the decreeholder has agreed to it. It is, therefore, prayed that under the circumstances aforesaid, the Court may be pleased to strike off this execution case keeping the attachment in force." Neither the original nor a certified copy of the order made on that date by the executing Court on the 576 above petition is forthcoming but the parties have definite ly agreed that the order is substantially and correctly entered in column 20 of exhibit F which is a certified copy of extract from the Register of applications for executions of decrees relating to execution Case No. 118 of 1936. The heading of column 20 is 'Date on which execution case was finally disposed of and purport of final order. " The entry in column 20 under that head is: "D. H. admits receipt of Rs. 76 14/ as costs of this case from the J.D. The execution case is dismissed for non prosecution the attachment already effected in this case continuing. 30th January 1937. " The entry under column 11 of that very exhibit reads as follows : "Claim case automatically drops as the execution case is dismissed. It is, therefore, rejected without any sort of adjudication. 30th January 1937. " In May 1937, the Searsole Raj Estate came under the charge of the Court of Wards. By a Kobala executed with the permission of the Board of Revenue Raja Pramatha Nath Malia and his two sons Kumars Pashupati Nath Malia and Kshitipati Nath Malia represented by Kumar Kshitipati Nath Malia as the Manager of the Searsole Raj Wards Estate conveyed a property known as Senapati Mahal to Deva Prasanna in full settlement of his claim under the personal decree against the Raja. By an agreement of even date, Deva Prasanna agreed to reconvey Senapati Mahal to the Kumars if he was paid Rs. 90,000/ within two years from that date. Senapati Mahal orginally belonged to the Raja but had been tranSferred by him to his two sons. A creditor, however, had filed a suit under sec tion 53 of the Transfer of Property Act challenging that transfer and had actually got a decree declaring that trans fer as fradulent and void as against the creditors of the Raja 577 An appeal was filed by the Kumars which was pending at the date of the Kobala of January 4, 1939, and, in the circum stances, it was considered safer to join the Raja in the last mentioned Kobala in favour of Deva Prasanna. On June 2, 1939, a petition was filed in the Court of the Subordinate Judge, Asansole, on behalf of Deva Prasanna as the decree holder. It was headed "Money Execution Case No. 118 of 1936. The relevant portions of this petition were as follows; "That the above execution case was disposed of on the 30th January 1937 with the attachment of the properties subsisting; since then the decree put into execution in the above case has been adjusted after remission of a large amount of interest by the out and out sale of certain properties by a registered Kobala dated 4th January 1939 . . . . . . . . .So there is no longer any need of the said attachment remaining subsisting. It is, therefore, prayed that the attachment may be withdrawn. " On the same day the following order was made on that petition: " Heard learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money exhibit 118 of 1936 though that case was dismissed. Order The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned plead er for the decree holder and pleader of the judgment debtor according to the adjustment mentioned but not detailed in this petition of to day. Make necessary notes and send this petition to the District Record Room. " In the remarks column No. 22 in exhibit F the following entry was made : "The said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned 578 pleader for the D.H. and the pleader of the Judgment Debtor according to the adjustment mentioned but not detailed in this petition of to day. Dated 2nd June 1989. " The Raja died in August, 1940, leaving the two appellants as his sons and legal representatives. The Bengal Money Lend ers Act, 1940 (Bengal Act X of 1940) hereinafter called the Act, came into force on September 1, 1940. On January 2, 1941, the appellants who, as the legal representatives of the Raja, became "borrowers" within the meaning of the Act filed the suit out of which the present appeal has arisen. The suit was filed by the appellants against the respondent under section 36 of the Act praying for reopening the trans actions and taking accounts and for release from all liabil ities in excess of the limits specified by law. In short, they asked the Court to give them relief by exercising the powers given to the Court by section 36 of the Act. There was also a prayer for reconveyance of the Senapati Mahal. The respondent filed his written statement setting up a variety of defences rounded on merits as well as on legal pleas in bar. On May 8, 1941, the Subordinate Judge settled the issues and fixed June 9, 1941, "for a preliminary hear ing of the suit and particularly of such of the issues as have been based on the pleas in bar." Eventually, the case was taken up for preliminary hearing on September 4, 1941, and by his judgment delivered on September 8, 1941, the learned Subordinate Judge dismissed the suit on issue No. 2 which was as follows: "Does the plaint disclose a valid cause of action for the suit ?" The appellants preferred an appeal to the High Court at Calcutta. Although the High Court (R.C. Mitter and K.C. Chunder JJ.) did not accept all the reasonings on which the learned Subordinate Judge had based his decision, they, however, agreed that the appellants could get no relief as the decrees in suit No. 78 of 1922 could not be reopened, as they were not passed in 579 "a suit to which this Act applies" and consequently dis missed the appeal. The appellants have now come up on appeal before us after having obtained a certificate from the High Court under section 110 of the Code of Civil Procedure. Learned Advocate appearing in support of this appeal before us has contended that the High Court was in error in holding that the decrees in Suit No. 78 of 1922 were not liable to be reopened under the second proviso to section 36 (1). Learned advocate for the respondent while joining issue on this point also raised a point which, however, did not find favour with the High Court, namely, that the respondent as a bona fide assignee for value of the mortgage debt was protected by sub section (5) of section 36. It is quite clear that if either of the two points is decided against the appellants, this appeal must fail. The main provisions of section 36 (1)are in the follow ing terms : "Notwithstanding anything contained in any law for the time being in force, if in any suit to which this Act ap plies, or in any suit brought by a borrower for relief under this section, whether heard ex parte or otherwise, the Court has reason to believe that the exercise of one or more of the powers under this section will give relief to the bor rower, it shall exercise all or any of the following powers as it may consider appropriate namely, shall (a) reopen any transaction and take an account between the parties; (b) notwithstanding any agreement, purporting to close previous dealings and to create new obligations, reopen any account already taken between the parties; (c) release the borrower of all liability in excess of the limits specified in clauses (t) and (2) of section 30; (d) if anything has been paid or allowed in account on or after the first day of January, 1939, in respect of the liability referred to in clause (c), order 580 the lender to repay any sum which the Court considers to be repayable in respect of such payment or allowance in account as aforesaid; (e) set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan, and if the lender has parted with the security, order him to indemnify the borrower in such manner and to such extent as it may deem just. " It will be noticed (a) that the provisions of this section apply notwithstanding anything contained in any law for the time being in force, (b) that the powers conferred on the Court or to be exercised either in any suit to which this Act applies or in any suit brought by a borrower for relief under the section and (c) that the Court is called upon to exercise all or any of the powers conferred on it by the section if the Court has reason to believe that the exercise of one or more of the powers will give relief to the borrower. In the present case the borrowers have insti tuted a substantive suit for relief under section 36 and, therefore, if there was nothing also in the section and the Court had the requisite belief, the Court could exercise all or any of the powers and give relief to the borrowers in terms of the prayers of the plaint. There are, however, two provisions to sub section (1) of section 36. The relevant portion of the second proviso is expressed in the words following: "Provided that in exercise of these powers the Court shall not (i) * * * * (ii) do anything which affects any decree of a Court, other than a decree in a suit to which the Act applies which was not fully satisfied by the first day of January, 1939, or * * * *" The proviso makes it quite clear that in exercise of the powers the Court cannot reopen or otherwise affect a decree of a Court unless such decree is one which was passed in a suit to which this Act applies and ' which was not fully satisfied by January 1, 1939. In the light of the decision of the Full Bench of the 581 Calcutta High Court in Mrityunjay Mitra vs Satis Chandra Banerji(1) which was approved by the Privy Council in Jadu Nath Roy vs Kshitish Chandra Acharyya(2), it has not been contended, in view of the fact that the personal decree for the balance remained unsatisfied on January 1, 1939, that the decrees in Suit No. 78 of 1922 were fully satisfied within the meaning of the above proviso. Therefore, the only thing that remains to be ascertained is whether the decrees were passed in "a suit to which this Act applies. " Section 2 (22) of the Act is as follows: "2. In this Act, unless there is anything repugnant in the subject or context" (22) "Suit to which this Act applies "means any suit or proceeding instituted or filed on or after the 1st day of January, 1939, or pending on that date and includes a pro ceeding in execution (a) for the recovery of a loan advanced before or after the commencement of this Act; (b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or (c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act. " The words "instituted or filed on or after the 1st day of January, 1939, or pending on that date" have been read and understood as qualifying the words "any suit or proceed ing" in the beginning of the definition as well as the words "proceeding in execution" occurring further down: see per Spens C.J. in Bank of ' Commerce Ltd. vs Amulya Krishna (3). Accordingly, it has (1) I.L.R. 11944) 2Cal. 376; (2) L.R. 76 I.A. 179 at p. 190. (3) ;A.I.R. 1944 F.C. 18. 582 been held in Ram Kumar De vs Abhoya Pada Bhattacharjee (1) that where a decree is such that the suit in which it was passed had terminated before January 1, 1939, and no pro ceeding in execution was started or was actually pending on or after that date it is not a decree in "a suit to which this Act applies"and cannot be reopened. The same view was upheld by a Special Bench of the Calcutta High Court in Aparna Kumari vs Girish Chandra (2)which overruled two earlier decisions to the contrary. The construction put upon section 2 (22)by the Special Bench and the reasons given by them appear to us to be well founded. In the case now before us, the Suit No. 78 of 1922 was instituted and all the three decrees were passed long before the specified date. The only question that has therefore, to be consid ered is whether any proceeding in execution was pending on or after that date. The answer to this question will depend on the true meaning and effect of the orders made by the executing Court (i) on January 30, 1937, and (ii) on June 2, 1939. As to (i) It is not disputed that the order of January 30, 1937, was made under Order XXI, rule57, as amended by the Calcutta High Court. Order XXI, rule 57, is expressed in the following terms : "Where any property has been attached in execution of a decree but by reason of the decree holder 's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease. " The marginal note of the rule is determination of at tachment. The reason why rule 57 was introduced in the Code of 1908 has been explained by Rank in C.J. in Shibnath Singh Ray vs Sheikh Saberuddin Ahmad(3) as follows: (1) ; (2) (3) I.L.R. at pp. 421 422 583 "Rule 57 of Order XXI was a new provision introduced in 1908. It is evident from the language of the rule itself, and it is still more evident from the circumstances under which it was passed, that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise, where, after an attachment in execution, the applica tion for execution cannot further be proceeded with by reason of the decree holder 's default. This was, and still is, a very common case. The decree holder makes some informal arrangement to give the judgment debtor time with out obtaining full satisfaction of the decree ;the applica tion for execution is not further prosecuted; it is not withdrawn; neither party attends. In these circumstances, the object of the rule is to say that the Court must make either an order for adjournment or an order of dismissal. The reason why it was necessary to require the Court, if it did not adjourn a proceeding to a definite date, to dismiss the application for execution formally and definitely can be amply illustrated from the decided cases. In the absence of a definite order of dismissal the files of the Courts became encumbered with a number of applications for execution which were water logged and derelict, and a practice arose whereby such applications were ordered to be 'struck off. ' This was a practice not justified by the Code and in cases where attachments in execution had already been entered, the question arose whether the effect of an order 'striking off ' was that the attachment made upon application for execution was itself struck off or whether it remained notwithstanding such an order. Many other awkward and important questions arose out of this practice and the object of rule 57 was to ensure that this illogical and inconvenient practice should be stopped. Applications for execution were to be definitely dismissed if they were not adjourned to a future date. The object of the last sentence in rule 57 is to settle the question whether, when the application in execution is dismissed any attachment made under that application should fall to the ground or should subsist, and 584 the legislature has provided that it is to fall to the ground. " The new rule thus ' introduced left two distinct courses open to the executing Court in the situation envisaged by the rule. Each course had its advantage as well as its disadvantage. Thus the adjournment of the execution pro ceedings kept the attachment alive without any special direction. While the adoption of this course helped bona fide arrangement between the decree holder and the judgment debtor as to the time and manner of satisfaction of the decree it was calculated also to encourage desultory proceedings resulting in undesirable congestion in the files of the Executing Court by keeping alive so many execution proceedings. On the other hand, while the dismissal of an application in the circumstances mentioned in the rule had the merit of preventing a congestion of the file by finally disposing of the application by a final order, it was calcu lated to discourage decreeholders from giving even reasona ble accommodation to the judgment debtor on account of the destruction of the attachment which left the judgment debtor free to deal with the property to the detriment of the decreeholder after the attachment ceased. It was evidently with a view to preserve the advantage of a dismissal and at the same time to avoid the disadvantage of the rigid rule of cesser of the attachment that the Calcutta High Court amend ed rule 57 by adding the words "unless the Court shall make an order to the contrary" at the end of the last sentence of that rule. The rule thus amended leaves three courses open to the Executing Court in case it finds it difficult to proceed with the execution case by reason of the default of the decree holder. It may (1) adjourn the proceedings for good reason which will automatically keep the attachment alive or (2) simply dismiss the application which will automatically destroy the attachment or (3) dismiss the application but specifically keep alive the attachment by an express order. The rule, as amended, therefore, contemplates three distinct forms of order, any one of which may be made by the Court in the 585 circumstances mentioned in the rule. The question before us is as to the category in which the order made on January 30, 1937, in Execution Case No. 118 of 1936 falls. It will be recalled that the order of January 30, 1937, was made on a petition (Exhibit 2) filed on that day in Execution Case No. 118 of 1936. Great stress was laid by the learned advocate for the appellants on the words "struck off for the present" occurring in the body of that petition. It will be noticed that those words formed part of the request of the judgmentdebtor which was being recited in the petition. In the actual prayer portion the decree holder did not use the words "for the present" but only asked the Court "to strike off the execution case keeping the attachment in force. " Further, apart from what the parties wanted, the Court made its intention clear in the very order that it passed and which is entered in column 20 of Exhibit F. The Court regarded the willingness of the the decree holder to enter into a long and protracted negotiation with the judg ment debtor as evidence of unwillingness on the part of the decree holder to diligently prosecute the execution proceedings and accordingly dismissed the execution case for non prosecution but thought fit to expressly keep alive the attachment. It is quite obvious that the Court made an order of the third kind mentioned above. The three forms of order permissible under rule 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending rule 57 at all. The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf. The fact that the Court gave an express direction that the attachment should continue clearly indicates that the 586 Court intended to make a final order of dismissal. Again, the heading of column 20 in Exhibit F clearly indicates that only a final order is to be entered in that column. The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal. That the claim case was automatically dropped is yet another indication that the execution case was at an end. The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not deci sively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition exhibit 2 (a), dated June 2, 1939: "Heard learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money exhibit 118 of 1936 though that case was dismissed." This endorsement also clearly shows that the Court itself understood that the order that it made on January 30; 1937, was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of January 30, 1937, was in form and in substance a final order of dismissal of the Execution Case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amend ment made by the Calcutta High Court in rule 57. Learned advocate for the appellants contended that if the execution case came to an end the attachment could not be left hanging in the air. There is no substance in this argument. Ordi narily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fail with it. But rule 57, as amended, expressly empow ers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order. That is what was done in this case. Here the attachment does not, to use the expression of the learned advocate for the appellants, 587 hang in the air. It rests upon the solid foundation of a special order which rule 57, as amended, in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under Order XXXVIII, rule 11, where after an order of attachment before judgment a decree is passed in favour of the plaintiff, it is not necessary upon an application for execution of such a decree to apply for re attachment of the property. It means that the attachment continues and the judgmentdebtor cannot deal with the property to the disadvantage of the decree holder. After the decree is passed, the attachment continues but nobody will say that although there has been no applica tion for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceed ing pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of Order, XXXVIII rule 11, and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was ever initiated after the decree was passed. In my judgment, the order of January 30, 1937, was a final order which brought the Execution Case No. 118 of 1936, to an and and the attachment continued, not because there was a pend ing execution proceeding but because a special order was made under Order XXI, rule 57, as amended by the High Court. As to (ii) Learned advocate for the appellants then contended that the petition (exhibit 2a) dated June 2, 1939, amounted to a proceeding in execution and as that was insti tuted and was pending after January 1, 1939 the proceedings came within the definition in section 2 (22)of "a suit to which this Act applies". I do not think this argument is sound. The petition (Ex.2a) was not really an application at all. See Raja Shri Prakash Singh vs The Allahabad Bank Ltd. (1). In substance, it was nothing but a certification by the decree holder of the satisfaction of the decree. The mere fact (1) 33 C.W.N. 267; A.I.R. 1929 P.C. 19, 588 that the document was in the form of a petition could not convert what was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. It was purely an intimation given to the Court by the decreeholder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded. The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. In my judgment, that petition (exhibit 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in clauses (a) or (b) or (c) of section 2 (22) of the Act. For reasons stated above, the decrees sought to be reopened were not decrees made in "a suit to which this Act applies". Suit No. 78 of 1922 was neither instituted on or after January 1, 1939, nor was it pending on that date, all the three decrees having been passed long before that date. Nor was any proceeding in execution such as is contemplated by section 2 (22) instituted or pending on or after that date. The Execution Case No. 118 of 1936 was at an end on January 30, 1937, and the petition of June 2, 1939, was not an application at all and was certainly not a proceeding in execution within the meaning of section 2 (22) of the Act. This conclusion is sufficient to dismiss this appeal and it is not necessary for us to consider the other question raised by the respondent on the strength of section 36 (5) of the Act and I express no opinion on that question. The result is that this appeal must stand dismissed with costs and I order accordingly. KANIA C.J. I agree. PATANJALI SASTRI J. The facts bearing on the dispute in this appeal are fully stated in the judgment of ray brother Das which I have had the advantage of reading and it is unnecessary to recapitulate them here. 589 The appellant mortgagor seeks in these proceedings the reliefs provided by the Bengal Money lenders Act, 1940 (hereinafter referred to as the Act) in respect of a decree debt payable by him. The respondent who represents the sub mortgagee decree holder invokes the protection of two exemptions contained in the Act: (1) Section 86 (1), proviso (ii), which exempts inter alia "any decree other than a decree in a suit to which this Act applies which was not fully satisfied by the first day of January, 1939". This raises a dispute as to whether the respondent 's decree was passed in a suit to which the Act applies. (2) Section 36 (5) which exempts "the rights of any assignee or holder for value if the Court is satisfied that the assignment to him was bona fide and that he had not received the notice re ferred to in clause (a) of sub section (1) of section 28". This raises the question whether a sub mortgagee is an assignee within the meaning of the Act. On the first question "a suit to which this Act applies" is defined in section 2 (22) as meaning "any suit or pro ceeding instituted or filed on or after the 1st day of Janu ary, 1939, or pending on that date and includes a proceeding in execution for (among other things) the recovery of a loan advanced before or after the commencement of this Act. " This definition has been construed as requiring that the "pro ceeding in execution "referred to therein should be pending on 1st January, 1939, and the question accordingly arises whether the order of the executing court dated 30th January, 1937, which purported to dismiss the respondent 's execution case for non prosecution while continuing the attachment already effected, terminated the proceeding in execution which had resulted in the attachment. It was said that the order was made in accordance with Order XXI, rule 57, of the Civil Procedure Code as amended by the Calcutta High Court and must, therefore, be taken to have been intended to put an end to the execution proceeding altogether. I am not satisfied that such was the result of the dismissal. The amendment which added the words "unless the court shall make an order to the contrary" 200 at the end of the rule envisages a dismissal of an "applica tion for execution" while at the same time continuing a subsisting attachment. The dismissal of 30th January, 1987, must, therefore, be taken to be a dismissal of the execution application then before the court and cannot be taken to have any wider operation. On the other hand, the continu ance, in express terms, of 'the attachment notwithstanding the dismissal, indicates that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property. Attachment itself is a "proceeding in execution" and, so long.as it subsists, the proceeding in execution can well be regarded as pending. In In re Clagett 's Estate; Fordham vs Clagett (1) Jessel M.R. declared that "a pending matter in any court of justice means one in which some proceeding may still be taken". The attachment was cancelled by the court only on 2nd June, 1939, when the decree in question was recorded as adjusted and then, and not before, could execu tion of the decree be properly considered to have terminat ed. In this view, a "proceeding in execution" was pending on the 1st day of January, 1939, and the respondent 's decree must be taken to have been passed "in a suit to which this Act applies ' ', with the result that the respondent 's claim to exemption under proviso (ii) to sub section (1) of sec tion 36 of the Act must fail. I am, however, of opinion that the respondent 's claim to recover his decree debt is protected under section 36 (5). There is no question here but that the submortgage to the respondent 's predecessor in title was bona fide. Nor could he have received the notice referred to in clause (a) of ' sub section (1) of section 28 as the transaction took place long before the Act was passed. It is not disputed that section 36 (5) applies to pre Act debts. [See Renula Bose vs Manmatha Nath Bose(2)]. The only question, therefore, is whether the respondent as sub mortgagee is an assignee within the meaning of sub section (5) of section 36. The learned (1) (2) L.R. 72 I.A. 156, 591 Judges in the court below held that he was not, following an earlier decision of their own court in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(1). That decision, however, was reversed by the Privy Council in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(2) where their Lordships dealt with the question now before us in the following terms : "It was suggested, in the judgment of Mitter J. (with which Waight J. agreed), and in the argument for the re spondents that if a sub mortgagee were an `assignee ' within section 36, sub section (5), of the Act. , certain difficul ties and anomalies would result. Their Lordships cannot agree with this suggestion. They express no view as to the position which arises if the sub mortgage contains only a charge on the original mortgage debt, but when it contains an assignment of that debt, and of all the rights of the mortgagee, the position appears to be free from difficulty. Relief can be given to the original mortgagor as against the original mortgagee under section 36, but such relief must not affect the rights of the assignee by way of sub mort gage. To take an imaginary case by way of illustration, let it be assumed that the amount due on the original mortgage, for principal and interest at the original rate, is Rs. 1,000, and the sum due on the sub mortgage by assignment, for principal and interest at the original rate, is Rs. 500. Let it further be assumed that if relief could be given, and were given, under section 36 as against both mortgagee and sub mortgagee, the sums due to them respectively would be Rs. 800 and Rs. 400. By reason of sub section (5), the sub mortgagee 's rights cannot be affected. He can therefore, as assignee of the mortgage debt: claim his full Rs. 500, as against both mortgagor and original mortgagee. But if the court gives the mortgagor relief as against the original mortgagee, the mortgagor will only be liable to pay to the original mortgagee Rs. 300, the balance of the reduced debt after paying the sub mortgagee in full. As to contention (b), it is impossible to read subsec tion (5) of section 36 as referring only to an assignee (1) (2) L.R. 76 I.A. 74. 592 of a mortgage decree. The words and that he had not received the notice referred to in clause (a)of subsection (1) of section 28 make it plain that an assignee of a mortgage debt is within the sub section, since section 28, sub section (1) is concerned only with assignment of debts" (pp. 83 84). The sub mortgage here in question also contains an assignment of the debt due under the original mortgage debt and of "the entire interest" of the original mortgagee. After reciting their original mortgage, the mortgagees proceed to state in the deed of sub mortgage: "We mortgage all that is at present due and that will in future become due to us, the first, second, third and fourth parties, on account of the said one lakh of rupees together with interest and the entire interest under the mortgage taken by us on the basis of the said Indenture in respect of five annas share of the said Niskar Mouza Mono harbahal and in respect of sixteen annas of the surface and underground rights in the said Mouza Marichkota and we make over the said Deed of Indenture to you". The decision referred to above is, therefore, directly in point and rules the present case. It was suggested that the said decision was inconsist ent with the earlier decisions of the same tribunal in Ram Kinkar Banerjee vs Satya Charan Srimani(1) and Jagadamba Loan Co. vs Raja Shiba Prasad Singh(2). Stress was laid upon the expression "all the rights of the mortgagee" used by their Lordships in the passage quoted above, and it was pointed out that in the earlier decisions they held that in India a legal interest remained in the mortgagor even when the mortgage was in the form of an English mortgage, and that the interest taken by the mortgagee was not an absolute interest. This proposition, it was said, implied that in a sub mortgage all the rights of the original mortgagee are not assigned to the sub mortgagee and that the mortgagee still retains a legal (1) 64 I.A. 50. (2) 68 I.A. 67. 593 interest in the original mortgage. This is a rather super ficial view of the matter. In the earlier cases their Lordships were considering the quantum of interest trans ferred by a mortgagor to a mortgagee in a mortgage of leasehold interest for the purpose of determining whether or not there was privity of estate between the landlord and the mortgagee. If the mortgage could operate as an assign ment of the entire interest of the mortgagor in the lease, the mortgagee would be liable by privity of estate for the burdens of the lease. If on the other hand, it operated only as a partial assignment of the mortgagor 's interest, no such result would follow. It was in determining that issue that their Lordships held that no privity of estate arose in India because a legal interest remained in the mortgagor and the interest taken by the mortgagee was not an absolute interest. These cases had no bearing on the question, which arose in Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya (1) and arises in the present case, as to whether a sub mortga gee becomes an assignee of the mortgage debt and of the mortgagee 's right to recover the debt from the original mortgagor. The Act affords relief to certain classes of debtors by curtailing pro tanto the rights of the creditors, subject to certain exceptions in regard to "assignments of loans". In such a context the only relevant consideration could be whether the assignment is such as to establish a debtor and creditor relation between the assignee and the debtor so as to bring the case within the purview of the Act. If the sub mortgagee obtained, by virtue of the sub mortgage, the right to sue the original mortgagor for recov ery of the mortgage debt, that would seem sufficient to make him an assignee within the meaning of the Act. It was from this point of view that the question as to the nature of the right transferred to a sub mortgagee under his sub mortgage was considered in Promode Kumar Roy vs Nikhil Bhusan Mukho padhya(1) as it has to be considered in the present case, and the reference to the sub mortgage containing an assign ment of all the rights (1) 76 I,A. 74. 594 of the mortgagee must, in that context, be understood with reference to the sufficiency of the right assigned to enable the sub mortgagee to sue the original mortgagor in his own right, so as to bring the relevant provisions of the Act into play as between them. The reservation made by their Lordships in the case of a sub mortgage containing only a charge on the original mortgage is significant and supports this view. I do not consider, therefore, that there is any inconsistency between Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya(1) and the earlier decisions, and even if there be any such inconsistency it has no relevance to the present case. In the result I agree that the appeal fails and should be dismissed with costs. Appeal dismissed.

A decree on a mortgage was passed in a suit brought by the representatives in interest of a sub mortgagee in 1929 and a personal decree for recovery of the amount remaining due after the sale of the mortgaged properties was passed in 1935. In 1936 the decree holder started execution of the personal decree and attached certain properties of the judgment debtor. The decree holder filed a petition on January 30, 1937, praying that the execution case "may be struck off for non prosecution, keeping the attachment in force" in view of certain negotiations for amicable settle ment, and the court passed an order that the execution case "is dismissed for non prosecUtion, the attachment 573 already effected continuing". On June 2, 1939, the decree holder filed a petition stating that the decree had been adjusted and attachment may be withdrawn. The Bengal Money lenders Act came into force on September 1, 1940, and on January 2, 1941, the legal representatives of the judg ment debtor filed a suit under section 36 of the Act praying for re opening the transactions. The question being whether any proceeding for execution was pending on or after January 1, 1939, within the meaning of the definition of "a suit to which this Act applies" contained in section 2 (22) of the Bengal Money lenders Act: Held, per KANIA C.J. and DAs J. That the order of January 30, 1937, was in form and in substance a final order of dismissal of the execution petition of 1936. The attach ment continued not because there was a pending execution proceeding but because a special order for continuing the attachment was made under O. 21, r. 57 of the Civil Proce dure Code as amended by the Calcutta High Court, and not withstanding the fact that the attachment was continued there was no execution proceeding pending on January 1, 1939, and accordingly the decree sought to be reopened was not one passed in "a suit to which the Act applies" within the meaning of section 2 (22) of the Act and the Court had no power to re open the transactions under section 36 (2). The petition of June 2, 1939, was also not a proceeding for execution but a mere certification by the decree holder of satisfaction of the decree. PATANJALI SASTRI J. The continuance of the attachment notwithstanding the dismissal of the execution petition, indicated that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property. Attachment itself is "a proceeding in execution" and so long as it subsists, the proceeding in execution can well be regarded as pending. In this view a proceeding in execution was pending on January 1, 1939, and the decree must be taken to have been passed in "a suit to which this Act applies ". But inasmuch as the sub mortgage to the respondent 's predecessor in title was bona fide and he obtained by virtue of the sub mortgage the right to sue the original mortgagor for recovery of the mortgage debt, the decree holder was a bona fide assignee and his claim for the entire decree debt was protected by section 36 (5) of the Act. Renula Bose v, Manmatha Nath Bose (L.R. 72 I.A. 156), Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya (50 C.W.N. 407) and Prom ode Kumar Roy vs Nikhil Bhusan Mukhopadhya (L.R. 76 I.A. 74) referred to.

Appeal No. 2909 of 1993. From the Judgment and Order dated 5.4.1990 of the Patna High Court in C.W.J.C. No. 1465 of 1989 (R). S.B. Upadhyay for the Appellant. Uday Sinha, S.K. Verma and Ranjit Kumar for the Respondents. The following Order of the Court was delivered: Special leave granted. The controversy in the present case is whether the appellant was qualified to appear for the M.D. (General Medicine) Examination as a teacher candidates The High Court by the impugned order has taken the view that he was not, on the around that he had not completed 3 years training period including one year of the house job, prior to qualifying himself for appearing for the examination. 912 The respondents, P.G. Medical Students Association had challenged the permission given to the appellant to appear for the said examination on two rounds. The first ground was that he was not a teacher and the second ground was that he had not undergone the necessary training for 2 years and had also not done housemanship in General Medicine for one year. The requirement of the relevant regulation is that the candidate must have done one year 's housemanship prior to the admission to the Post graduate degree in the same subject in which he wants to appear for the examination or at least six months housemanship in the same Department and the remaining six months in the allied Department. The period of training thus, shall be 3 years after full registration including one year of the housejob. The appellant claimed that he was teacher in the Department of Biochemistry in the Rajendra Medical College (R.M.C.) and filed an application for his registration as a student in M.D. The University forwarded the application to the then Principal of Rajendra Medical College cum Dean, Faculty of Medicine, Dr. C.J.K. Singh. He objected to his registration on the ground that the appellant was not posted in any of the teaching posts in medical college. The then Head of the Department of Medicine, Dr. section Sinha also wrote to Dr. C.J.K. Singh that the appellant though attached to the Department of Medicine, was a Bio chemist attached to the Renal Unit and dealt entirely with the subject of Biochemistry. The appellant filed a writ petition being C.W.J.C. No. 755 of 1988 praying for appropriate direction to the University to permit him to submit his thesis in M.D. (Medicine) examination. The University contested his claim that he was a teacher and took the stand that since he was not a teacher, he was not eligible for training in M.D. (General Medicine). For this purpose, the University relied upon the. letters of Dr. C.J.K. Singh and Dr. section Sinha. The Court dismissed the said petition on 23rd May, 1988 without deciding the issue as to whether the appellant held a teaching post but recorded a finding that the appellant was not entitled for admission to the examination in M.D. as he had not submitted his thesis and had also failed to produce a certificate of having undergone satisfactory training. The High Court also held that the acceptance of the thesis was a pre requisite for appearing at the examination. However, thereafter the present petition was filed by the respondent Association when the appellant was granted permission to appear for the said examination being satisfied that the post which he was holding was a teaching post as pointed out by the State Government. In this petition, the University supported the appellant by asserting that the, appellant was appointed against a teaching post 913 in the Department of Medicine. The High Court has again not decided the point whether the appellant was appointed against a teaching post in the Department of Medicine. For not deciding the point, the High Court has given an additional reason, viz., that many persons who were in fact appointed as teachers would be prejudicially affected since they would become junior to the appellant and they were not before the Court. For the purposes of the disposal of the writ petition, the High Court presumed that the appellant was teacher in the Department of Medicine in the Rajendra Medical College. The Court has, however, made it clear that this presumption would be confined to the present case only and the appellant would not be entitled to claim any benefit on the basis of the said presumption. The High Court has, however, allowed the respondents ' petition only on the grounds that the appellant had not undergone training for 3 years prior to his application to appear for the said examination. In order to come to the said conclusion, the High Court relied on the fact that although the petitioner was registered with Dr. S.S. Prasad as a trainee on 6th February, 1986, he had not undergone training with him and it was only from 4th February; 1988 onwards that he had undergone the training with another Supervisor, viz., Dr. P.R. Prasad. Hence, on the date he made the application for appearing in the examination, he had not completed the required 3 years ' training period. In support of its finding that the appellant had not completed 2 years ' training with Dr. S.s. Prasad, the former Supervisor, the High Court has relied upon two facts. The first is that Dr. S.S. Prasad had written to the University that appellant had undergone no training under him. The second circumstance relied upon is that the second Supervisor, viz., Dr. P.R. Prasad was not appointed as appellant 's Supervisor as per the suggestion of the Dean of the Faculty of Medicine since respondent No. 7 to the petition who had recommended Dr. P.R. Prasad was not the Dean of the Faculty of Medicine at the time of the recommendation. Hence, according to the High Court even the training of the appellant under Dr. P.R. Prasad was not a valid training The record shows that admittedly the appellant was registered as a trainee under the former Supervisor, Dr. S.S. Prasad on 6th February, 1986 and he continued to be the trainee under him till 4th February, 1988 on which date he was changed as a Supervisor at the request of the appellant. In his place Dr. P.R. Prasad was appointed as the appellant 's Supervisor on 17th December, 1988. The appellant, thereafter continued to be the trainee under Dr. P.R. Prasad from 19th December, 1988 to 3rd August, 1989. Thus the petitioner was registered for M.D. (General Medicine) examination of the University on 6th February, 1986 and by the 3rd August, 1989 when he was due to appear for the examination he had completed 3 years ' training under the two Supervisors. 914 Coming to the respondent Association 's contention that the earlier Supervisor, Dr. S.S. Prasad had denied that the appellant had received any training under him, the University has stated that for the purpose of training, the Supervisor has nothing more to do than guide the candidate for writing thesis. But more than that, the letter written by Dr. P.V.P. Sinha, the Principal of RMC and Dean, Faculty of Medicines of the Ranchi University to the Registrar of the Ranchi University on 4th July, 1989 speaks volumes on the attitude adopted by Dr. S.S. Prasad towards the appellant. This letter is Annexure 11 to the rejoinder of the appellant. The letter makes a complaint that Dr. S.S. Prasad by bypassing the office of the Principal, RMC had addressed directly to the Registrar of the University two letters on 4th May and 3 1st May, 1989. The Principal then states that he examined the original letter meaning thereby the letter dated 4th May, 1989 and the connected matter and found that Dr. S.S. Prasad had been telling lie to the University and trying to mislead and that is why he had sent the letter directly to the University. Dr. Prasad had written another letter to the University on 16th May, 1988 regarding the appellant and in that letter he had written that the appellant had been prevented from doing research work connected with his thesis. The Principal then proceeds to write that when he asked Dr. Prasad in writing vide his letter dated 21st June, 1989 to give him the letter of the Principal or the Dean or the University which had authorised him to prevent the appellant from doing his research work, Dr. Prasad failed to produce any letter. Thus according to the Principal it became very clear that Dr. Prasad had written the letter dated 16.5.1988 directly to the University to harm the appellant 's career. The Principal then proceeds to write to University that he would like to bring to the attention of the University that Dr. Prasad had signed the thesis and certificate of another doctor, viz., Dr. Ashok Kumar Singh on 16.10.1984 when that doctor was registered as an M.D. student in General Medicine only on 26.7.1984 and when Dr. Prasad was not his guide. It was Dr. R.C.N. Sahai who named the guide for the said Dr. Ashok Kumar Singh. The Principal then writes that from the perusal of the records as well as from the reply to the explanation sought by him from Dr. Prasad, it had become clear that Dr. Prasad was not made the guide of Dr. Ashok Kumar Singh either by the University or by the Dean or by the Principal and yet he had signed the thesis of Dr. Ashok Kumar Singh barely after 3 months and 11 days of his registration. The Principal then points out in that letter that a comparison of the two events made it apparent that Dr. Prasad had favoured Dr. Ashok Kumar Singh by violating all the norms statutes of the University and of the Medical Council of India and that even after the University had appointed Dr. P.R. Prasad as the guide of the appellant, Dr. S.S. Prasad was bent upon harming the career of the appellant. The Principal then adds that there was no record in his office to show that the appellant was ever suspended by the University for doing his M.D. General Medicine. He had asked Dr. S.S. Prasad to produce any notification of the University regarding the alleged 915 suspension and Dr. S.S. Prasad had failed to do so. He then concludes the letter by stating that he would, in the circumstances, recommend the University to consider the desirability of removing Dr. S.S. Prasad from all examination work of the Ranchi University. It is thus apparent that Dr. S.S. Prasad, the former Supervisor of the appellant had become hostile to him and was apparently not cooperating with him in his thesis. Yet the appellant had proceeded to write a thesis and when it became unbearable, he requested for the change of his Supervisor on 4th February, 1988 pursuant to which the new Supervisor, Dr. P.R. Prasad was appointed on 17th December, 1988. However, till the new Supervisor was appointed on 17th December, 1988, he continued to be registered with Dr. S.S. Prasad and there is no dispute that under the new Supervisor, viz., Dr. P.R. Prasad he completed his training from 17th December, 1988 to 4th August, 1989. There is further no dispute that the appellant submitted his thesis prior to the examination. As regard the qualification of the 7th respondent to make the appointment of Dr. P.R. Prasad as the guide, although the record before us does not show as to who the 7th respondent was, we take it that it is the then Principal, Dr. P.V.P. Sinha who was probably added later as the 7th respondent to the writ petition to whom the High Court has referred to in its judgment. It is asserted from the Bar on behalf of the appellant that Dr. P.V.P. Sin ha was both the Principal and the Dean of the Faculty of Medicine of the University from a date much prior to 17th December, 1988. That statement is not controverted nor does the counter filed by the 1st Respondent make any such point. If that is so, then on the date that Dr. P.R. Prasad was appointed as a Supervisor he was so appointed by a duly qualified person. Since the High Court has not one into the question as to whether the appellant was appointed against a teaching post and has proceeded on the footing that he was so appointed. it is not necessary for us to go into the said question. The appellant was thus fully qualified for appearing in the said examination and in fact on account of the interim orders passed by the High Court he has appeared for the examination. The High Court has, however, by the impugned decision restrained the University from declaring his results in the examination. The facts narrated above would reveal that this was a dispute relating to an individual and turned on the facts. There was no question of law involved in it. We have, therefore, not understood how the respondent Association could convert an individual dispute into a public interest litigation. We are of the view that cases where what is strictly an individual dispute is sought to be converted into a public interest litigation should not be encouraged. The present proceeding is one of the 916 kind. The learned counsel appearing, for the respondent State wanted to support the respondent Association. We did not think it necessary to hear the State since the dispute was essentially with regard to the interpretation of the facts relating to the training of an individual medical officer, viz., the appellant. The University had on the facts of the case accepted the contention of the appellant that he had completed 3 years ' training. We have not been able to understand as to what stake the State has in denying the said factual position. It must be remembered in this connection that the State Government itself by its letter of 17th September, 1984 written to the Principal, RMC and had asserted that the post which the appellant was holding, viz., that of Bio chemist in the Artificial Kidney Unit of RM College and Hospital, was a teaching post and that the appellant was posted to that post since 12th February, 1982. The letter further proceeded to state that the Principal and the Head of the Department of Medicine of RM College and Hospital has also given written certificate that the appellant was posted on a teaching post and therefore his teaching experience would be counted with the Kidney Unit. A request was, therefore, made in the letter that the appellant 's application for his registration as M.D. General Medicine candidate [Teacher] be forwarded to the University and further action in that regard be intimated to the Regional Additional Commissioner cum Principal Secretary. There is no dispute further that according to the rules, 4 years teaching experience in the College and the Hospital [which is always combined with practice in the Hospital] is considered equivalent to one year 's house job experience. It the face of these facts, it is difficult to understand the stand taken by the State Government in the present proceedings. There is no doubt in our mind that some forces are at work to obstruct the appellant 's career on one ground or the other. The State Government should not become a party to this came. In the circumstances, we allow the appeal, set aside the decision of the High Court and hold that the appellant was qualified to appear for the M.D. (General Medicine) examination as a teacher candidate. Hence, we direct the University to declare his results in M.D. (General Medicine) examination for which he has appeared, forthwith. There will be no order as to costs. VPR Appeal allowed.

The appellant was a teacher in the Department of Biochemistry of Rajendra Medical College. He filed an application for his registration as a student in M.D. The University forwarded the application to the Principal of Rajendra Medical College. The Principal objected to appellant 's registration as he was not posted in any of the teaching posts in Rajendra Medical College. Though the appellant was attached to the Department of Medicine, was a Biochemist attached to that Renal Unit dealing with the subject of Biochemistry. The appellant filed a writ petition in the High Court for a direction tot he University to permit him to submit his thesis in M.D. (Medicine) examination on the ground that he was a teacher. The University took the stand that the appellant was not a teacher and he was not eligible for training in M.D. (General Medicine). The High Court dismissed the appellants writ petition and held that he was not entitled for admission to the examination in M.D. as he did not such it 910 his thesis and did not produce a certificate of having undergone satisfactory training. The High Court did not decide on the question whether he held a teaching post or not. The appellant was granted permission to appear for M.D. (Medicine) examination after the University was satisfied that the appellant was holding a teaching post The respondent Association filed a writ petition before the High Court challenging the permission given to the appellant to appear for the said examination, contending that he was not a teacher and that he did not undergo the necessary training for 2 years and that he did not do housemanship in General Medicine for one year. The High Court allowed the writ petition on the ground that the appellant did not undergo training for 3 years prior to his application to appear for M.D. (Medicine) examination. In this writ petition also the High Court did not decide whether the appellant was holding a teaching post. The appellant filed this appeal by special leave against the High Court 's judgment. Allowing the appeal, this Court HELD : 1.1. On account of the interim order passed by the High Court, the appellant appeared for the examination. The High Court has, however, by the impugned decision restrained the University from declaring his results in the examination. (915 G) 1.2. Since the High Court has not gone into the question as whether the appellant was appointed against a teaching post and has proceeded on the footing that he was appointed, it is not necessary for this Court to go into the said question. (915 F) 2.1. The facts of the case would reveal that this was a dispute relating to an individual and turned on the facts. There was no question of law involved in it. It is not understood how the respondent Association could convert an individual dispute into a public interest litigation. (915 H) 2.2 Cases where what is strictly an individual dispute is sought to be 911 converted into a public interest litigation should not be encouraged. The present proceeding is one of the kind. (915 H) 3.1. The requirement of the relevant regulation is that the candidate must have done one year 's housemanship prior to the admission to the Postgraduate degree in the same subject in which he wants to appear for the examination or atleast six months housemanship in the same Department and the remaining six months in the allied Department. The period of training thus, shall be 3 years after full registration including one year of the. housejob.(912 B) 3.2. According to the rules, 4 years, (teaching experience in the College and the Hospital (which is always combined. with practice in the Hospital) is considered equivalent to one year 's house job experience. In the face of these facts, it is difficult to understand the stand taken by the State Government in the present proceedings. (916 D) 3. 3. The University bad on the facts of the case accepted the contention of the appellant that he had completed 3 years ' training. It is not understood as to what ' state the State has in denying the said factual position. (916 B)

ivil 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, R.N. Sachthey and B.D. Sharma, for the appellant (in 'all the appeals). P. Barman Ranjit Ghose and Sukumar Ghose, for the respondents (in all the appeals). 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 not form part of the "accumulated profits" of the Company. The Income tax Officer rejected the contention 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 not being dividend within the meaning of section 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 section 2(6A) in force in the year of assessment was not 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 concerned with deemed dividends, and exclusion of certain capital gains by the proviso had no beating on the issue raised by the revenue" The following question referred by the Tribunal to the High Court of Calcutta .under section 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 connotation means the sum paid to or received by a share holder proportionate to his share holding in a company out of the total sum distributed. The relevant part of the definition contained in section 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 company of accumulated profits whether capitalised or not, if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company; Explanation. The words 'accumulated profits ' wherever they occur in the clause, shall not include 'capital profit '; 667 Provided further that the expression "accumulated profits", wherever it occurs in this clause, shall not 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 not 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 not assist the case of the Revenue, for the Legislature has expressly excluded from the content 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 not 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 not fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the context 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 section 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 component. There is now 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 not part of the accumulated profits for the purpose of the definition under section 2(6A) and a distributive share thereof does not 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 connotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute. We do not see any reason why such a strained construction 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 section 12 as dividend income liable to tax. Counsel for the Revenue sought to argue that share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But no such contention was raised before the Tribunal or the High Court 668 and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court. The appeals fail and are dismissed with costs. One hearing fee. R.K.P.S. Appeals dismissed.

In assessment proceedings for the year 1949 50 the, respondents claimed that certain dividend distributed to them by a company was exempt from tax as the fund out of which it was distributed represented capital gains and not "accumulated profit" of the company. The Income tax Officer rejected the claim, but the Appellate Assistant CommissiOner held that a part of the total amount distributed represented capital gains and not being dividend within the meaning of section 2(6A) of the Income tax Act, 1922, the share distributed to the share holders out of that amount was exempt from income tax. This order was reversed in appeal by the Tribunal but the High Court, on a reference, held in favour of the assessee. On appeal to this Court, HELD: Dismissing the appeal: The proviso to the explanation to section 2(6A)(a) clearly enacted that capital gains arising after March 31, 1948 are not liable to be included within the expression "Dividend". Although the definition of dividend in section 2(6A) is an inclusive definition and a receipt by share holders which does not fall within the definition may, in some circumstances, regarded as dividend within the meaning of the Act, 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 section 2(6A) 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 component. [667 D]

Civil Appeal No. 144 of 1960. Appeal by special leave from the judgment and order dated July 26, 1957, of the Madhya Pradesh High Court in Civil Revision No. 966 of 1955. B. R. L. Iyengar and K. P. Bhatt, for the appellant. G. section Pathak, section N. Andley, Rameshwar Nath and P. L. Vohra, for the respondents. November 16. The Judgment of the Court was delivered by SARKAR, J. In this case an arbitration agreement had been filed in court under section 20 of the , and an order of reference made thereon. The arbitrator in due course entered 477 upon the reference and made and filed his award in court on July 14, 1955. The award concerned partition of certain properties between the wife and children of one Bhairon Bux. The award was however unstamped and unregistered. An objection was taken to a judgment being passed on such an award. On such objection, the trial court passed an order remitting the award to the arbitrator for re submitting it to the court on a duly stamped paper and after getting it registered. Against this order the High Court at Nagpur was moved in revision. The learned Single Judge hearing the revision application took the view that the award required to be stamped. But he felt that it could not be remitted to the arbitrator under section 16 of the , which is the only provision under which an award can be remitted to an arbitrator. It appears that there was an earlier judgment of the Nagpur High Court in the case of Ramkumar vs Kushalchand (1) in which it had been held that where the award was unstamped it could under paragraph 14 of Schedule I to the Code of Civil Procedure be remitted to the arbitrator with a direction to re write it on a stamped paper and re submit it to court. The provisions of that paragraph of the Code have now been substantially reproduced in section 16 of the . The trial Judge had based himself on this earlier judgment of the High Court. The learned Single Judge was apparently not satisfied with the correctness of the decision in Ramkumar 's case (1) and he referred three questions for decision by a larger bench of that High Court. The questions referred were: (a) Is the award made on a reference by the Court on an application under section 478 20 of the chargeable to stamp duty? (b) Is such an award compulsorily registerable when it relates to partition of immovable property of the value of one hundred rupees and upwards? (c) Has the Court powers under section 16(1) (c) of the of 1940 or otherwise to remit an award to the arbitrator or umpire to get it stamped and/or registered? The matter was thereupon heard by a Division Bench of the High Court constituted by two learned Judges. Before them it was agreed by both the parties that the award required to be stamped. This disposed of the first question. The learned Judges felt that it was not necessary at that stage of the proceeding to answer the second question, namely, whether the award required registration. In the result they only answered the third question as to whether an award could be remitted under section 16 (1) (c) of the to the arbitrator to get it stamped and they answered that question in the affirmative. They held that a want of stamp would be an illegality apparent on the face of the award and therefore the case would fall under section 16(1)(c) of the . They also held, following the case of Lakhmichand vs Kalloolal (1), that the copying of the award on a stamped paper was purely ministerial, and making of an award did not deprive the arbitrator of the authority to copy an award on the requisite stamp paper. They approved of the decision in Ramkumar vs Kushalchand (1). The present appeal is against this judgment of the Division Bench. The only question argued at the bar was whether the answer of the Division Bench to the third question was correct. 479 Now section 16(1)(c) of the Act is in these terms: section 16 (1): The Court may from time to time remit the award or any matter referred to arbitration to the arbitrators or umpire for reconsideration upon such terms as it thinks fit . . . . . . . (c) where an objection to the legality of the award is apparent upon the face of it. We think that the Division Bench of the High Court was clearly in error. Under section 16 of the an award can be remitted to the arbitrators only for reconsideration. When it is remitted for re writing it on a stamped paper, it is not remitted for reconsideration. Reconsideration by the arbitrators necessarily imports fresh consideration of matters already considered by them. Now they can only consider and give a decision upon matters which are referred to them under the arbitration agreement. It follows that the reconsideration can only be as to the merits of the award. They reconsider nothing when they re write the award on a stamped paper. We think the matter was correctly put by Mitter, J., in Nani Bala Saha vs Ram Gopal Saha (1) in the following observation: "That cl. (c) means this and nothing more: namely, that where the court finds an error of law in the award itself or in some document actually incorporated thereto on which the arbitrator had based his award, that is to say, finds the statement of some erroneous legal proposition which is the basis of the award, it can remit the award to the arbitrator for reconsideration" and "Want of registration is a defect dehors the award or the decision of 480 the arbitrator, and so in our judgment is not covered by cl. (c) of section 16 (1), of 1940". What was said there about a want of registration is clearly equally applicable to a want of stamp. Mr. Pathak appearing for the respondent contended that under section 14 (1) of the it was clearly the duty of the arbitrator to inform the parties of the amount of stamp duty payable on the award. Section 14 (1) is in these terms: Section 14 (1) When the arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to the parties of the making and signing thereof and of the amount of fees and charges payable in respect of the arbitration and award. We are unable to see how this section can provide the basis for the order made in this case. It only says that the arbitrators shall inform the parties of the fees and charges payable. Even assuming that the word 'charges ' includes duty payable for the stamp to be affixed to the award, at best, this section would support an order directing the arbitrators to supply this information. It would not justify an order requiring the arbitrators to inscribe the award afresh on a stamped paper and re submit it to court. As at present advised, we have grave doubts if the fees and charges mentioned in section 14 (1) include the stamp duty payable on the award. Section 17 of the Stamp Act requires that stamping should be at the time of execution. Under section 14 (1) of the it is only after the singing of the award that is its execution, that the arbitrators are required to supply the information about the fees and charges. It is, of course, no part of the duty of the arbitrators under the Act or otherwise to find the costs of stamp themselves. Therefore 481 it is difficult to appreciate how the word `charges ' mentioned in this section includes stamp. But on this question it is not necessary for us to express any final opinion in this case. Mr. Pathak contened that even if the case did not come within section 16 (1) (c) of the , the order in the present case can be supported under section 151 of the Code of Civil Procedure which preserves the inherent power of a court to make such orders as may be necessary for the ends of justice. It is true that section 41 of the makes the provisions of the code of Civil Procedure applicable to proceedings before a court under the . But it is well known that after making his award the arbitrator is functus officio. To cite one authority for this proposition we may quote the observations of Mellish, L. J., in Mordue vs Palmer(1). "I think the result of the cases at law is that when an arbitrator has signed a document as and for his award, he is functus officio, and he cannot of his own authority remedy any mistake." In the present case, ex hypothesi, the award has already been made and the arbitrator has therefore become functus officio. It is that award which requires stamp. Section 151 of the Code cannot give the court power to direct the arbitrator to make a fresh award; that would be against well established principles of the law of arbitration. It would again be useless to have another copy of the award prepared and stamped for the copy would not be the award and no action in a court can be taken on it. The order cannot therefore be supported by section 151 of the Code. It is of some interest to read here the following passage from Russel on Arbitration 14th Ed., p. 325. 482 "The usual practice in preparing an award is to have two copies made of it. One the arbitrator signs, which then becomes then the original award, and this is delivered to the party who takes up the award. The other copy is available for the other parties if they apply for it." "The original award, before it is available for any purpose whatsoever, must be duly stamped, but there is no obligation upon the arbitrator to stamp it, and he does not usually do so. " We should observe here that the last paragraph in the aforesaid quotation does not appear in the 16th edition of Russel 's work. Perhaps this is because in England an award is no more required to be stamped by virtue of section 35 Sched. 8, of the Finance Act, 1949, which was passed after the 14th edition was published. Lastly, Mr. Pathak tried to support the order under sections 13 (d) and 15 (b) and (c) of the . A bare perusal of the provisions mentioned would show that the order made in this case cannot be based on any of them. Section 13 (d) deals with correction of clerical mistakes or accidental slips in the award, neither of which we think an omission to stamp is. Further more, section 13 is only an enabling section giving certain powers to the arbitrator. The arbitrator cannot be compelled to exercise these powers. Section 15 deals with a court 's power to modify or correct an award. In the present case, the Court did not purport to exercise that power. We, therefore, think that the Division Bench was in error in thinking that an order could be made remitting the award to the arbitrator with a direction to re write it on a stamped paper and resubmit it to court. That is the only point that we decide in this case. 483 In the result this appeal is allowed. The orders of the Courts below remitting the award are set aside. The appellant will get the cost throughout. Nothing that we have said in this judgment will affect the right of the parties to take such steps, if any are available to them at law, for curing the defect arising from the award being on an unstamped paper. Appeal allowed.

An arbitration agreement was filed in court under section 20 of the , and an order of reference was made thereon. The arbitrator entered upon the reference and in due course filed his award in court. The award was however, unstamped and on objection raised that no judgment 476 could be passed on such an award, the trial court passed an order remitting the award to the arbitrator for re submitting it to the court on duly stamped paper. The High Court took the view that want of stamp would be an illegality apparent on the face of the award, which could therefore be remitted under section 16(1) (c) of the Act. ^ Held, that all unstamped award cannot be remitted under section 16(1) (c) of the , to the arbitrator to get it stamped, because want of stamp is a defect dehors the award or the decision of the arbitrator and does not amount to an illegality apparent upon the face of it within the meaning of that section. Ramkumar vs Kushalchand, A.I.R. 1928 Nag. 166 and Lakshmichand vs Kalloolal, 1956 N.L.J. 504, disapproved. Nani Bala Saha vs Ram Gopal Saha, A.I.R. 1945 Cal. 19, approved. Held, further, that after making an award the arbitrator is functus officio, and section 151 of the Code of Civil Procedure cannot therefore give the court power to direct the arbitrator to make a fresh award and re submit it after writing it on proper stamp paper. Mordue vs Palmer, , relied on. Dubitante, it is doubtful if the fees and charges mentioned in section 14(1) of the Arbitration act, 1940, include the stamp duty payable on the award.

ivil Appeal No. 3534 of 1986. From the Judgment and Order dated 17.2. 1986 of the Patna High Court in C.W.J.C. No. 6215 of 1985. Govind Mukhoty, S.K. Bhattacharya and U.S. Prasad for the Appellant. Jaya Narain, R.P. Singh, B.P. Singh and Ranjit Kumar for the Respondent. The Judgment of the Court was delivered by PATHAK, CJ. This appeal by Special Leave is directed against the Judgment and Order of the High Court of Patna dismissing a Writ Petition filed by the appellant. The appellant is an Additional Subordinate Judge in the Bihar Judicial Service. Disciplinary proceedings were taken against him and ended in an order imposing the punishment of censure, the withholding of annual increments for two years, postponement of his case for promotion for a like period and the denial of emoluments in excess of the subsistence allow ance for the period of suspension. The appellant filed a Writ Petition in the High Court challenging the order of punishment on several grounds but did not succeed. He urged also that the appeal filed by him to the Governor against the order of punishment should not have been withheld by the High Court but should have been despatched to the State Government for consideration. The High Court held that no appeal lay to the State Government and therefore rejected the plea. On 16 September, 1986 this Court granted special leave to the appellant confined to the question whether an appeal lay to the Governor against the order of the High Court. That is the sole question for consideration before us. To support his claim to a right of appeal the appellant relies on 525 the Civil Services (Classification, Control and Appeal) Rules 1930. It is pointed out that these Civil Services Rules of 1930 have been kept in force by the State Govern ment by notification No. III/RI/10 1/63 8051A dated 3 July, 1963 issued under the proviso to Article 309 of the Consti tution. The submission of the appellant is that the right of appeal is saved by Article 235 of the Constitution. Article 235 of the Constitution provides that the control over District Courts and Courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State and holding any post inferior to the post of District Judge shall be vested in the High Court but that nothing in that Article may be construed as taking away from any such person any right of appeal which he may have under the law regulat ing the conditions of service. The question is whether the appellant is governed by the Civil Services Rules of 1930, Rule 14 classifies the Public Services in India into a number of categories, and one such category is constituted of the Provincial Services. Rule 18 declares that the Provincial Services shall consist of such services under the administrative control of the Local Government of a Governor 's Province as the Local Government may from time to time declare, by notification in the local official Gazette, to be included in the Provincial Services of that Province. Rule 49 specifies the penalties which could be imposed upon members of the Services specified in Rule 14. Rule 56 confers a right of appeal on a person belonging to any of the classified Services specified in Rule 14 against an order imposing any of the penalties specified in Rule 49. Rule 57(5) provides: "A member of a Provincial Service . . may appeal to the Governor from an order passed by the Local Government". We enquired of learned counsel for the parties whether a Notification had been issued designating the Subordinate Judicial Service, of which the appellant is a member, as one of the Provincial Services specified in Rule 14. Neither counsel was able to refer to any Notification in that be half. In the absence of positive material providing that the Subordinate Judicial Service can be regarded as having been brought within the scope of the Civil Services Rules of 1930, it is not open to the appellant to rely on the right of appeal created by those Rules. Our attention has been drawn to the fact that the Civil Services Rules of 1 '930 were continued with effect from 22 December 1956, by 526 Notification No. III/RI/101/63 8051 A dated 3 July, 1963. That does not advance the case of the appellant any further because the Notification can take effect in respect of such Service only as has already been brought within the scope of those Rules. Before leaving this case, we must give expression to our great disappointment that neither party was able to indicate what were the Rules which governed the Judicial Service to which the appellant belonged. If no Notification was issued applying the Civil Service Rules of 1930 to such Judicial Service, there must surely be some other body of Rules which does apply. And if there is none, it is time that such body of Rules was framed. The present regrettable state of confu sion must be ended. It would certainly be a matter of grati fication for the Judicial officers of the State of Bihar to know where they stand. In the result, the appeal fails and is dismissed but in the circumstances we make no orders as to costs. A.P.J. Appeal dis missed.

Rule 14 of the Civil Services Rules, 1930 classifies Public Services in India into a number of categories and one such category is constituted of the 'Provincial Services '; and. r. 18 thereof declares that it shall consist of such services under the administrative control of the Local Government of a Governor 's Province as the Local Government may from time to time declare, by notification in the local Official Gazette, to be included in the Provincial Services of that Province. Rule 49 specifies the penalties which could be imposed upon the members of the Services specified in r. 14. Rule 56 read with sub r. (5) of r. 57 confers on a person belonging to any of the classified services specified in r. 14 a right of appeal to the Governor against an order imposing any of the penalties specified in r. 49, which right is saved by article 235 of the Constitution. The appellant, a member of the Bihar Judicial Service, challenged an order of punishment served on him inter alia on the ground that the appeal filed by him to the Governor against the order of punishment should not have been with held by the High Court but should have been despatched to the State Government for consideration. The High Court dismissed the writ petition holding that no appeal lay to the State Government. Dismissing the appeal, HELD: In the absence of positive material providing that the Subordinate Judicial Service can be regarded as having been brought within the scope of the Civil Services Rules of 1930. it is not open to the appellant to rely on the right of appeal created by those Rules. [525G] 524 In this case, neither counsel was able to refer to any notification designating the Subordinate Judicial Service, of which the appellant was a member. as one of the Provin cial Services specified in r. 14. [525F G]

Appeal No. 205 of 1958. Appeal by special leave from the judgment and order dated October 23, 1956, of the Industrial Tribunal, Assam in Reference No. 16 of 1956. M.C. Setalvad, Attorney General for India, section N. Mukherjee and B. N. Ghosh, for the appellant. C.B. Agarwala and K. P. Gupta, for the respondents. May 6. The Judgment of the Court was delivered by WANCHOO J. This is an appeal by special leave in an industrial matter. The appellant is the Phulbari Tea Estate (hereinafter called the company). The case relates to the dismissal of one workman namely, B. N. Das (hereinafter called Das), which had been taken up by the Assam Chah Karmchari Sangh. which is a registered trade union. A reference "Was made by the Government of Assam on March 8, 1956, to the Industrial Tribunal on the question whether the dismissal of Das was justified; and if not, whether he was entitled to reinstatement with or without compensation or any other relief in lieu thereof. Das was dismissed by the company on March 12, 1955. The charge against him was that on the night of February 6/7, 1955, he along with one Samson, also an employee of the company, committed theft of two wheels complete with tyres and tubes from the company 's lorry, 5 34 which amounted to gross misconduct under the Standing Orders. The case was reported to the police and 'Das as well as Samson were arrested. Das remained in jail up to February 25, 1955, when he was released on bail. He reported for duty on February 28 ; but the manager suspended him for ten days from March 1. Thereafter, he was served with a charge sheet on March 10, 1955, asking him to show cause why he should not be dismissed for gross misconduct as mentioned above. He gave a reply on March 11, that as the case was sub judice in the criminal court, the question of dismissal did not arise at that stage and the allegations against him would have to be proved in the court. On March 12, the manager held an enquiry, which was followed by dismissal, on that very day. We shall mention later in detail what happened at the enquiry, as that is the main point which requires consideration in this appeal. To continue the narrative, however, the police submitted a final report and the magistrate discharged Das on March 23, 1955. Thereafter, his case was taken up by the union and eventually reference was made to the Tribunal on March 8, 1956. The Tribunal came to the conclusion that the dismissal of Das was not justified on the ground of proper procedure not having been followed and also for want of legal evidence. It went on to say that normally Das would have been entitled to reinstatement but in the peculiar circumstances of this case it was of opinion that he should be granted the alternative relief for compensation. Consequently, it ordered that Das would be entitled to his pay and allowances from February 28, to March 11, 1955 and full pay and allowances from March 12, till the date of payment. It also ordered that he would be entitled to fifteen day 's pay for every completed year of service along with all benefits that accrued to him till the date of final payment. This award, was given on October 23, 1956, and was in due course published and came into force. Thereupon, there was an application to this Court for special leave to appeal, which was granted; and that is how the matter has come up before us. 35 Two points have been urged before us on behalf of the company, namely (1)the Tribunal was not a competent tribunal under section 7 of the , No. XIV of 1947 (hereinafter called the Act) as it then stood; and (2)the award of the Tribunal is not sustainable in law as it shows as if the Tribunal was sitting in appeal on the enquiry held by the company, and this it was not entitled to do. Reference in this case was made on March 8, 1956, before the amending Act No. XXXVI of 1956 came into force. At the relevant time, therefore, section 7 of the Act, which provided the qualifications of a tribunal, required that where it was one member tribunal, he (a) should be or should have been a Judge of a High Court, or (b) should be or should have been a district judge, or (c) should be qualified for appointment as a Judge of a High Court. The contention is that Shri Hazarika who was the tribunal in this case, was not qualified under this provision. This contention was not raised before the Tribunal and therefore the facts necessary to establish whether Shri Hazarika was qualified to be appointed as a tribunal or not were not gone into. Shri Hazarika was an Additional District & Sessions Judge, Lower Assam Division, at the time the reference was made. Assuming that he was not qualified under clause (a) above, he might well have been qualified under clause (b), if he had been a District Judge elsewhere before he became an Ad ditional District Judge in this particular division. Further even if he had never been a District Judge, he might be qualified for appointment as Judge of a High Court. These matters needed investigation and were not investigated because this question was not raised before the Tribunal. In the circumstance, we are not prepared to allow the company to raise this question before us for the first time and so we reject the contention under this head. The Tribunal gave two reasons for holding that the dismissal was unjustified; namely (1) that 36 proper procedure had not been followed, and (2) that legal evidence was wanting. So far as the second reason is concerned, there is force in the criticism on behalf of the company that the Tribunal had proceeded as if it was sitting in appeal on the enquiry held by the company. But considering that the Tribunal Was also of opinion that proper procedure had not been followed we have still to see whether that finding of the Tribunal justifies the conclusion at which it arrived. We may in this connection set out in detail what happened at the enquiry on March 12, as appears from the testimony of the manager and the documents produced by him before the Tribunal. They show that when the enquiry was held on March 12, certain persons, whose statements had been recorded by the manager in the absence of Das during the course of what may be called investigation by the company were present. The first ques tion that Das was asked on that day was whether he had anything to say in connection with the disappearance of two lorry wheels and tyres from the garage. He replied that he had nothing to say, adding that he knew nothing about the theft. He was then told that the people who had given evidence against him were present and he should ask them what they had to say. He replied that he would put no questions to them. Then the witnesses present were asked whether the evidence they had given before the manager was correct or not; and if that was not correct, they were at liberty to amend it. They all replied that the evidence they had given before the manager was correct. This was all that had happened at the enquiry on March 12, and thereafter the order of dismissal was passed by the manager. The manager 's testimony shows that the witnesses who were present at the enquiry were not examined in the presence of Das. It also does not show that copies of the statements made by the witnesses were supplied to Das before he was asked to question them. Further his evidence does not show that the statements which had been recorded were read over to Das at the enquiry before he was asked to question the witnesses. It is 37 true that the statements which were recorded were produced on behalf of the company before the Tribunal; but the witnesses were not produced so that they might be cross examined even at that stage on behalf of Das. The question is whether in these circumstances it can be said that an enquiry as required by principles of natural justice was made in this case. We may in this connection refer to Union of India vs T. R. Varma (1). That was a case relating to the dismissal of a public servant and the question was whether the enquiry held under article 311 of the Constitution of India was in accordance with the principles of natural justice. This Court, speaking through Venkatarama Ayyar J. observed as follows in that connection at p. 507: " Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. " It will be immediately clear that these principles were not followed in the enquiry which took place on March 12, inasmuch as the witnesses on which the company relied were not examined in the presence of Das. It is true that the principles laid down in that case are not meant to be exhaustive. In another case New Prakash Transport Co. Ltd. vs New Suwarna Transport Co. Ltd. (2), this Court held that "rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act ". In that case, it (1) [1958] S.C.R. 499. (2) 38 was held that " the reading out of the contents of the police report by the Chairman at the hearing of the appeal was enough compliance with the rules of natural justice as there was nothing in the rules requiring a copy of it to be furnished to any of the parties. That was, however, a case in which the police officer making the report was not required to be crossexamined; on the other hand, the party concerned was informed about the material sought to be used against him and was given an opportunity to explain it. The narration of facts as to what happened on March 12, which we have given above, shows that even this was not done in this case, for there is no evidence that copies of the statements, of witnesses who had given evidence against Das were supplied to him or even that the statements made by the witnesses to the manager were read out in extensor to Das before he was asked to question them. In these circumstances one of the basic principles of natural justice in an enquiry of this nature was not observed, and, there fore, the finding of the Tribunal that proper procedure had not been followed is justified and is not open to challenge. The defect in the conduct of the enquiry could have been cured if the company had produced the witnesses before the Tribunal and given an opportunity to Das to cross examine them there. In Messrs. Sasa Musa Sugar Works (Private) Ltd. vs Shobrati Khan (1), we had occasion to point out that even where the employer did not hold ail enquiry before applying under section 33 of the Act for permission to dismiss an employee, he could make good the defect by producing all relevant evidence which would have, been examined at the enquiry, before the tribunal, in which case the tribunal would consider the evidence and decide whether permission should be granted or not. The same principle would apply in case of adjudication under section 15 of the Act, and if there was defect in the enquiry by the employer he could make good that defect by producing necessary evidence before the tribunal. But even that was not done in this case, for all that the company did (1) C. As. 746 & 747 Of 1957 decided on 29 4 1059. 39 before the Tribunal was to produce the statements recorded by the manager during what we have called investigation. This left the matters where they were and Das had never an opportunity of questioning the witnesses after knowing in full what they had stated against, him. In these circumstances we are of opinion that the finding of the Tribunal that the enquiry in this case was not proper is correct and must stand. We therefore dismiss the appeal. We should, however, like to make it clear that the order of the Tribunal fixing grant of compensation till the date of payment must be taken to be limited to the sum of Rs. 11,125, which has been deposited in this Court in pursuance of this Court 's order of April 22, 1957 and Das will not be entitled to anything more, as further stay of payment was pursuant to the order of this Court. In the circumstances we are of opinion that the parties should bear their own costs of this Court. Appeal dismissed.

Two workmen Das and another were arrested by the police on the complaint of the appellant company for an alleged theft. The manager held an enquiry and dismissed Das from service for gross misconduct. At the enquiry, Das stated that he had nothing to say and knew nothing about the theft. Certain persons whose statements had been recorded by the manager at the investigation stage in the absence of Das, were present at the said enquiry. Das was told to ask those persons what they had to say, though he was neither supplied with the copies of the statements made by them nor the statements were read over to him at the time of the enquiry. Das replied that he would not put any. questions to them. Thereupon these witnesses were asked whether the evidence they had given before the manager was correct, and if not, they were at liberty to amend it, to which they replied that the evidence they had given was correct. Some time later, the Magistrate on the final report of the police discharged Das. Thereafter the Union had the matter referred to the Tribunal. Before the Tribunal the company produced only the statements of the witnesses but did not produce the witnesses themselves. The Tribunal found in favour of the workman. The company came up in appeal by special leave to the Supreme Court, where, for the first time it raised the question of the qualification and competency of the one member Tribunal under section 7 Of the Act. Held, that the question whether the Tribunal was a competent one under section 7 of the , prior to the amending Act 36 of 956, must be raised before the Tribunal itself as it was a matter of investigation and could not be raised for the first time before the Supreme Court. Held further, that the basic principle of natural justice in an enquiry was that the opponent must be given the opportunity of questioning the witnesses after knowing in full what they had to state against him. The witnesses on whom the party relied should generally be examined in the presence of the opponent and he must also be informed about the material sought to be used against him, and given an opportunity to explain it, 33 Union of India vs T. R. Varma [1958] S.C.R. 499, followed. New Prakash Transport Co. Ltd. vs New Suwvarna Transport Co. Ltd. , referred to. Held, further, that if there was defect in the conduct of the enquiry by the employer it could be cured if all the relevant evidence including the witnesses who were not examined in the presence of the workman were produced before the Tribunal, thereby giving the party an opportunity to cross examine them, and leaving it to the Tribunal to consider the evidence and decide the case on merits. Sasa Musa Sugar Works (P) Ltd. vs Shobrati Khan C.As. 746 & 747 Of 1957 decided on 29 4 1959, followed.

ivil Appeal Nos.1685 and 1686(NT) of 1974 From the Judgment and Order dated 21st February, 1974 of the Karnataka High Court in Tax Reference Nos. 67 and 68 of 1972. M.K. Banerjee, Additional Solicitor General, Ms A. Subhashini and B.B.Ahuja for the Appellant G. Sarangan and Mukul Mudgal for the Respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals are directed against the judgment of the Karnataka High Court disposing of two Income tax References. The question in each Reference, which was answered by the High Court in favour of the assessee and against the Revenue, is whether in computing the profits for the purpose of deduction under section 80E of the Income Tax Act, 1961, the loss incurred by the assessee in the manufacture of alloy steels could not be set off against the profits of the manufacture of automobile ancillaries. The assessee is a public limited company engaged in the 169 manufacture of automobile spares. The products manufactured by it are covered by the list in the Fifth Schedule to the Income Tax Act. During the previous year relevant to the assessment year 1966 67, the assessee commenced another activity, the manufacture of alloy steels, which was also an industry included in the Fifth Schedule. The assessee sustained a loss in the alloy steel industry during the previous years relevant to the assessment years 1966 67 and 1967 68. It claimed a loss in the sum of Rs. 15,30,688 for the assessment year 1966 67. For the assessment year 1966 67, the assessee disclosed profits from the industry of automobile ancillaries in the following detail: 1. Manufacture of Springs at Mangalore Rs. 7,54,107 2. Manufacture of Springs at Nagpur Rs. 9,61,808 3. Manufacture of Hubs and Brake Drums Rs. 41,214 Rs 17,57,129 The assessee claimed relief under section 80E at 8 per cent of this amount in the sum of Rs.1,40,574. In the same manner, the assessee claimed relief under section 80E in the sum of Rs.1,52,483 for the assessment year 1967 68. The Income Tax Officer declined to grant the relief claimed by the assessee in the two assessment years. He noticed that the assessee had not taken into account the losses incurred in the alloy steel industry, and he held that the assessee would be entitled to deduction under section 80E on the profits from the manufacture of automobile parts only after setting off the loss in alloy steel manufacture. After making certain adjustments in the computation of the total income, the Income Tax Officer gave relief under section 80E in the sum of Rs.24,896 for the assessment year 1966 67 and Rs.1,20,986 for the assessment year 1967 68, computing the deduction at 8 per cent on the amount of profits from the manufacture of automobile parts as reduced by the losses from the alloy steel manufacture. An appeal by the assessee was dismissed by the Appellate Assistant Commissioner of Income tax. But on second appeal, the Income Tax Appellate Tribunal accepted the contention of the assessee that a deduction was permissible at 8 per cent on the entire profits of the automobile parts industry included in the total income without deducting therefrom the losses in the alloy steel manufacture. It directed the Income Tax Officer to recompute the relief under section 80E. At the instance of the Revenue, the Appellate Tribunal referred 170 the case for each of the two assessment years 1966 67 and 1967 68 to the Karnataka High Court for its opinion on the following question of law: "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that in computing the profits for the purpose of deduction under section 80E of the Income Tax Act, 1961 the loss incurred in the manufacture of alloy steels should not be set off against the profits of the manufacture of automobile ancillaries?" The High Court answered the question in the affirmative. To appreciate the merits of the controversy in these appeals it would be as well to set forth at this point the relevant provisions of section 80E of the Income Tax Act as they stood at the time: 80E. "Deduction in respect of profits and gains from specified industries in the case of certain companies (1) In the case of a company to which this section applies, where the total income (as computed in accordance with the other provisions of this Act) includes any profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles and things specified in the list in the Fifth Schedule, there shall be allowed a deduction from such profits and gains of an amount equal to eight per cent thereof, in computing the total income of the company. " It is not disputed that the assessee is a company to which section 80E applies. The question is whether for the purpose of granting relief under s.80E the loss suffered by the assessee in the manufacture of alloy steels can be set off against the profits arising from the manufacture of automobile ancillaries. It is apparent that section 80E provides for the grant of a rebate when computing the total income of a company carrying on the business of generating or distributing elect 171 ricity or other form of power or of constructing, manufacturing or producing any one or more of the articles and things specified in the list in the Fifth Schedule. Popularly, the list is known as the list of Priority Industries. A perusal of the entries in the list makes it clear that they are concerned with articles and things which are regarded of primary importance in the industrial and economic development of the country. Some of them form part of the industrial and economic base of the country while others enter into the industrial and economic infrastructure considered necessary or desirable for its development. A certain priority has been assigned to the construction, manufacture or production of those articles and things. They find place in section 80E along with the business of generation or distribution of electricity or other form of power. Nobody can dispute that electrical energy or other form of energy is crucial to industrial and economic development. The nature of articles and things included in the list in the Fifth Schedule possesses the same character. Alloy steels are undoubtedly covered by Entry (1) "Iron and steel (metal), ferro alloys and special steels", while automobile ancillaries appear clearly by that description in Entry 20 of the list. Both represent separate priority industries. It is obvious from the object underlying the enactment of section 80E and the terms in which it provides relief that the intention of Parliament in enacting the provision was to encourage the setting up of industries concerned with the generation or distribution of electrical and other energy and the construction, manufacture or production of articles or things specified in the list in the Fifth Schedule. The intention goes further. By making a provision for a rebate year after year on the industry making profits and gains during the year, the intention also was to provide an incentive for promoting efficiency in the industry. It is clear that the benefit was directed to the setting up and also the efficient working of the priority industries. How is the benefit to be worked out? First, it must be a company to which section 80E applies, that is to say a company which satisfies the requirements of sub section (2) of section 80E. Second, the total income, as computed in accordance with the Income tax Act 1961 without taking into regard the provisions of section 80E, should include profits and gains attributable to the business or the industry mentioned in the section. Third, from the profits and gains attributable to such business or industry a deduction has to be allowed of an amount equal to eight per cent of such profits and gains and effect must be given to this deduction when computing the total income of the company. 172 The assessee in this case carries on two industries, both of which find place in the list in the Fifth Schedule and can, therefore, be described as priority industries. It is urged by the learned Additional Soliciter General, appearing for the Revenue, that on a true application of section 80E the profit in the industry of automobile ancillaries must be reduced by the loss suffered in the manufacture of alloy steel, and reference has been made to a number of cases to which we shall presently refer. After giving the matter careful consideration we do not find it possible to accept the contention. It seems to us that the object in enacting section 80E is properly served only by confining the application of the provisions of that section to the profits and gains of a single industry. The deduction of eight per cent is intended to be an index of recognition, that a priority industry has been set up and is functioning efficiently. It was never intended that the merit earned by such industry should be lost or ' diminished because of a loss suffered by some other industry. It makes no difference that the other industry is also a priority industry. The coexistence of two industries in common ownership was not intended by Parliament to result in the misfortune of one being visited on the other. The legislative intention was to give to the meritorious its full reward. To construe section 80E to mean that you must determine the net result of all the priority industries and then apply the benefit of the deduction to the figure so obtained will be, in our opinion, to undermine the object of the section. An example will illustrate this. An industry entitled to the benefit of section 80E could have its profits wholly wiped out on adjustment against a heavy loss suffered by another industry, and thus be totally denied the relief which should have been its due by virtue of its profits. In our opinion, each industry must be considered on its own working only when adjudging its title to the deduction under section 80E. It cannot be allowed to suffer because it keeps company with some other industry in the hands of the assessee. To determine the benefit under section 80E on the basis of the net result of all the industries owned by the assessee would be, moreover, to shift the focus from the industry to the assessee. We hold that in the application of section 80E the profits and gains earned by an industry mentioned in that section cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. We shall now turn to the cases cited before us. In the view which has found favour with us it is apparent that the Madras High Court erred in holding in Commissioner of Income tax, Tamil Nadu III vs English Electric Company Ltd., , that in granting relief under section 80E the adjustment of certain losses in other trading 173 transactions was permissible in determining the quantum of profits and gains attributable to the priority industry claiming relief under that provision. The High Court did not correctly appreciate the law laid down by this Court in Cambay Electric Supply Industrial Co. Ltd., vs Commissioner of Income tax, Gujarat II. , That was a case where this Court held that, for the purpose of granting relief under section 80E to an industry, account must be taken when computing the profits and gains attributable to that industry of the balancing charge worked out under sub section (2) of section 41 as well as items of unabsorbed depreciation and any depreciation development rebate carried forward from earlier years. It appears from the facts of that case that the balancing charge as well as the unabsorbed depreciation and unabsorbed development rebate related to the particular industry itself. The only business carried on by the assessee there was generation and distribution of electricity at Cambay. The balancing charge arose because during the relevant accounting period the assessee had sold some of its machinery and buildings. The unabsorbed depreciation and development rebate also appear to relate to the same business. There is no indication that any of them related to a business or industry distinct from that whose profits and gains formed the subject of computation under section 80E. Our attention has been invited by the Revenue to Distributors (Baroda) P. Ltd.v. Union of India and Others, ; That is a case in which the Constitution Bench of this Court was called upon to consider the scope of section 80M of the Income tax Act. We do not see how that case is in any way relevant to the case before us. The point before the Court appears to have been whether the income by way of dividends from a domestic company, which fell to be included in the gross total income of the assessee, should be the amount computed in accordance with the provisions of the Act or the full amount received from the paying company. We may refer at this point to Commissioner of Income tax, West Bengal II vs Belliss and Morcon (I.) Ltd., a decision of the Calcutta High Court to which one of us (Sabyasachi Mukharji J.) was a party. That decision supports the view taken by us in so far as it lays down that in applying section 80 I of the Income tax Act (which replaced section 80E) it is not permissible to compute the profits of the priority industry, respecting which the relief is claimed, by taking into account the depreciation loss from other industries. No doubt the depreciation loss arose in that case from non priority industries, but in view of what we have said earlier that should make no difference whatever. We think it unnecessary to refer to other cases on the point. We think it sufficient to indicate that a distinction must be drawn between a case where the loss or un 174 absorbed depreciation pertain to the same industry whose profits and gains are the subject of relief under section 80E and a case where the loss or unabsorbed depreciation relate to industries other than the one whose profits and gains constitute the subject of relief. While concluding we may point out that the Mysore High Court seems, in our opinion, to be perfectly right in holding in Commissioner of Income tax, Mysore vs Balanoor Tea and Rubber Co. Ltd., that the loss from the plastic business carried on by the assessee could not be deducted from the profits and gains attributable to the tea industry for the purpose of computing the quantum of the profits and gains attributable to the tea industry under section 80E. In the result, we affirm the answer returned by the High Court to the question raised in the Income tax References. The appeals are dismissed with costs. A.P.J. Appeals dismissed.

The assessee company is engaged in the manufacture of autombile spares. During the previous year relevant to the assessment year 1966 67, the assessee also commenced the manufacturing of alloy steels. Both the industries are included in the Fifth Schedule to the Income Tax Act, 1961. The assessee sustained a loss in the alloys steel industry during the previous years relevant to the assessment years 1966 67 and 1967 68. It claimed a loss in the sum of Rs.15,30,688 for the assessment year 1966 67. For the assessment year 1966 67, the assessee disclosed profits to the tune of Rs.17,57,129 from the industry of automobile ancillaries. The assessee claimed relief under section 80E at 8% of this amount in the sum of Rs.1,40,574. Similarly the assessee claimed relief in the sum of Rs.1,52,483 for the assessment year 1967 68. The Income Tax Officer declined to grant the relief claimed and held that the assessee would be entitled to deduction under section 80E on the profits from the manufacture of automobile parts only after setting off the loss in alloy steel manufacture. The Appellate Assistant Commissioner dismissed the appeal of the assessee. But on second appeal, the Tribunal accepted the contention of the assessee that a deduction was permissible at 8% on the entire profits of the automobile parts industry included in the total income without deducting therefrom the losses in the alloy steel manufacture and directed the Income tax Officer to recompute the relief under s.80E. In the Reference, on the question whether in computing the profits for the purpose of deduction under section 80E of the Income tax Act, 1961, the loss incurred in the manufacture of alloy steels should not be set off against the profits of the manufacture of automobile ancillaries, the High Court answered in favour of the assessee and against the revenue. 167 In the Appeal to this Court, on behalf of the Revenue it was contended that on a true application of section 80E the profit in the industry of automobile ancillaries must be reduced by the loss suffered in the manufacture of alloy steels. Dismissing the appeal, ^ HELD: 1. In the application of section 80E of the Income tax Act, 1961 the profits and gains earned by an industry mentioned in that section cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. [172G] 2. Each industry must be considered on its own working only when adjudging its title to the deduction under section 80E. It cannot be allowed to suffer because it keeps company with some other industry in the hands of the assessee. To determine the benefit under section 80E on the basis of the net result of all the industries owned by the assessee would be, to shift the focus from the industry to the assessee. [172E F] Commissioner of Income tax, Tamil Nadu III vs English Electric Company Ltd., [1981]131 ITR 277 overruled. Cambay Electric Supply Industrial Co.Ltd. vs Commisioner of Income tax, Gujrat II, followed. Distributors (Baroda) P. Ltd. vs Union of India & Ors., ; inapplicable. Commissioner of Income tax, West Bengal II vs Belliss and Morcon (1) Ltd., ; and Commissioner of Income tax, Mysore vs Balanoor Tea and Rubber Co. Ltd., approved. The object underlying the enactment of section 80E was to encourage the setting up of industries concerned with the generation or distribution of electrical and other energy and the construction, manufacture or production of articles or things specified in the list in the Fifth Schedule. By making a provision for a rebate year after year on the industry making profits and gains during the year, the intention also was to provide an incentive for promoting efficiency in the industry. The benefit was directed to the setting up and also the efficient working of the priority industries. [171E F] 168 4. The object in enacting section 80E is properly served only by confining the application of the provisions of that section to the profits and gains of a single industry. The deduction of 8% is intended to be an index of recognition that a priority industry has been set up and is functioning efficiently. It was never intended that the merit earned by such industry should be lost or diminished because of a loss suffered by some other industry. It makes no difference that the other industry is also a priority industry. The co existence of two industries in common ownership was not intended by Parliament to result in the misfortune of one being visited on the other. The legislative intention was to give to the meritorious its full reward. To construe section 80E to mean that one must determine the net result of all the priority industries and then apply the benefit of the deduction to the figure so obtained will be, to undermine the object of the section. [172B E] In the instant case, both the industries carried on by the assessee find place in the list in the Fifth Schedule and represent separate priority industries. [172A]

Appeal No. 1064 of 1963. Appeal by special leave from the judgment and order dated July 23, 1963, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 11 of 1963. N. C. Chatterjee and J. P. Goyal, for the appellant. section P. Sinha and section Shaukat Hussain, for respondent No. 1. January 17, 1964. The Judgment of the Court was delivered by SHAH J. At the general elections held in February 1962, five candidates contested the election to the House of the People from the Barabanki single member constituency. The appellant Ram Sewak Yadav who will be referred to as Yadav was at the counting of votes found to have secured the highest number of votes and he was declared elected. Hussain Kamil Kidwai hereinafter called Kidwai who was one of the candidates at the election submitted a petition on April 6, 1962, to the Election Commission for an order declaring the election of Yadav void and for an order that he (Kidwai) be declared duly elected. The Election Tribunal, Lucknow, to which the petition was referred for trial dismissed the petition. In appeal to the High Court of Allahabad the order passed by the Election 240 Tribunal was reversed and the proceedings were remanded for trial with a direction, among others, that the Tribunal do give reasonable opportunity to both the parties to inspect the ballot papers and other connected papers. With special leave, Yadav has appealed against the order of the High Court. The principal grounds set up by Kidwai in support of his petition were (1) that there had been improper reception, refusal and rejection of votes at the time of counting, and in consequence thereof the election was materially affected; (2) that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20; (3) that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected; (4) that at the polling station No. 29, Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit, the polling officers did not give ballot papers to the voters; (5) that the counting of votes of Bhitauli Assembly Unit continued till 8 30 p.m. in insufficient light notwithstanding the protest lodged by the petitioner; and (6) that on a true count he (Kidwai) would have received a majority of valid votes and that he was entitled to be declared duly elected. These allegations were denied by Yadav. At the trial before the Tribunal the parties led no oral evidence. In respect of the pleas (3), (4) and (5) the burden of proof lay upon Kidwai and as no evidence was led to . substantiate the same, those pleas failed. Again in the view of the Tribunal, Kidwai could discharge the burden of proof which lay upon him to establish that there were discrepancies ,between the original and the certified copies of Forms Nos 241 16 & 20, and as the original forms were not called for by Kidwai, his second ground must also fail. Kidwai claimed that he would be able to establish his case on pleas (1) & (6) from the ballot papers, and submitted that an order for inspection of the ballot papers be made and that he be per mitted to show from the ballot papers that the Returning Officer had improperly received, refused or rejected the votes, and that on a true count he would get the largest number of valid votes. The Tribunal rejected the applica tion for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interest of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in the reception, refusal or rejection of votes at the time of counting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court however held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, that there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing. The only question which falls to be determined in this appeal is whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to its order in that behalf, lodged before it in sealed boxes by the Returning Officer. In considering this question the material provisions of the Representation of the People Act, 1951, and the rules framed thereunder may first be noticed. Section 80 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 83(1) states what the election petition shall contain. It states: "Art election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; 159 S.C 16 242 (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as posssible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission 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: The rest of the section is not material. Section 90(1) prescribes the procedure to be followed by the Tribunal. It states: "Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: " Section 92 enumerates the powers which a Tribunal trying an election petition may exercise and the powers so enumerated are the powers which a Court under the Code of Civil Procedure, when trying a suit, may exercise in respect of discovery and inspection, enforcing attendance of witnesses, compelling production of documents, receiving evidence taken on affidavits and issuing commissions for the examination of witnesses. Rules have been framed under the Act relating to production and inspection of election papers. By rule 93 of the Conduct of Election Rules, 1961, it is provided that: "(1) While in the custody of the returning officer (a) the packets of unused ballot papers; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub section (1) or sub section (2) of section 152; and 243 (d) the packets of the declarations by electors and the attestation of their signatures; shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court or tribunal. (2) All other papers relating to the election shall be open to public inspection subject to such fee, if any, as the Election Commission may direct. (3) Copies of the returns by the returning officer forwarded under rule 64 or as the case may be. under sub rule (3) of rule 84 shall be furnished by the chief electoral officer of the State concerned on payment of a fee of two rupees for each such copy. " The rule makes a clear distinction between ballot papers and other election papers: ballot papers may be inspected only under the order of a competent court or tribunal, but other documents are, subject to certain conditions, open to public inspection. In this case, on an oral request made by Kidwai all the ballot papers in sealed boxes were lodged with the Election Tribunal. Kidwai claimed in the first instance that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record. The Tribunal rightly rejected this plea, to by the mere production of the sealed boxes pursuant to its order the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice. An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil court is invest 244 ed under the Code of Civil Procedure when trying a suit. But the power which the civil court may exercise in the trial of suits is confined to the narrow limits of 0. II, Code of Civil Procedure. Inspection of documents under 0. II, Code of Civil Procedure may be ordered under rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under rule 18(2) of other documents in the possession or power of the other party. The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under 0.11 Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it. the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers. That power is clearly implicit in sections 100(1)(d)(iii), 101, 102 and rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0.11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by sections 94 and 128(1). An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are ful filled: (i) that the petition for setting aside an election con tains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary, But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with pre 245 cision supported by averments of material facts. To estab lish a case so pleaded an order for inspection may undoubt edly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. It must be remembered that the rules framed under the Representation of the People Act, 1951, set up an elaborate machinery relating to the stage of counting of votes by the Returning Officer, and provide ample opportunity to the can didate who has contested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the Returning Officer. Rule 53 provides for the admission of only certain classes of persons to the place fixed for counting and amongst such persons are expressly included candidates, their election agents and counting agents, who may watch the counting subject to the directions which the returning officer may give. Rule 55 deals with the procedure for scrutiny and opening of ballot boxes. The Returning Officer has to satisfy himself that "none of the ballot boxes has in fact been tampered with" and before any ballot box is opened at the counting table, the counting agents present at that table are allowed to inspect the seal affixed thereon and to satisfy themselves that it is intact. If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he is prohibited from counting the ballot papers contained in that box and he has to follow the procedure prescribed in that behalf in section 58. Clause (1) of rule 56 provides for the scrutiny and rejection of ballot papers. Clause (2) sets out detailed provisions relating to, cases in which the Returning Officer shall reject a ballot paper By cl. (3) it is provided that before rejecting any ballot paper under sub rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect such ballot papers. The Returning Officer has then to record on every ballot paper which he rejects the grounds of rejection. All the rejected ballot papers are required to be put in one bundle. Rule 57 deals with the counting of votes. Each ballot paper which is not rejected is counted 246 as one valid vote. The Returning Officer has to make the entries in a result sheet in Form 20 after counting of the ballot papers contained in all the ballot boxes used at the polling stations. Clause (3) of rule 57 enacts an elaborate set of rules about the entries to be made in respect of the counting and scrutiny of the ballot papers. By rule 60 counting has to be continuous, and rule 63(1) provides that after the completion of the counting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the result. By cl. (2) of rule 63 it is provided that after such announcement is made, a candidate or his election agent may apply in writing to the Returning Officer for ' a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount. The Returning Officer must decide the application and record his reasons in support of his decision and he may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable. After the total number of votes polled by each candidate has been announced, the Returning Officer must complete and sign the result sheet in Form 20 and after such form is completed no application for recount may be entertained. Under rule 64 the declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes, and the Returning Officer is required to complete and certify the return of election. There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a are count. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re count. It is in the light of the provisions of section 83(1) which require a concise statement of material facts 247 on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered. In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception, refusal or rejection of votes were contained in paragraphs 6(H), 6(K) and 12. In paragraph 6(H) it was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the "bundles of the respondents. " In paragraph 6(K) it was averred that due to "a deficiency in the supply of sealing ink, marks on some ballot papers, though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer. " In paragraph 12 it was averred that "the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out, and if the ballot papers are correctly sorted, counted and bundled. the respondent No. 1 will be found to have polled less votes as compared to . petitioner. The petitioner further submits that the result of the Election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, counting and bundling of ballot papers. " These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did not comply with the statutory requirements of section 83(1)(a). Paragraph 12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner, and merely asserts that if the votes actually cast in favour of the petitioner are counted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav. Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim. The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice, but the discretion has manifestly to be exercised having regard to the nature of the allegations made. The Tribunal would be Justified ir 248 refusing an order where inspection is claimed with a view to fish out materials in support of a vague plea in the case set out in the petition. The Tribunal was conscious of the true principle: it stated in its order dated August 25, 1962, that nothing was brought to its notice which would justify granting an order for inspection prayed for by the petitioner at that stage. The Tribunal further observed: "If in future from facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection could always be passed". Relying upon these observations another application was submitted by Kidwai asking for inspection but no additional materials were placed before the Tribunal. As we have already observed Kidwai led no real evidence at the trial. In his second application for inspection he merely averred that "the petitioner was almost sure" that on inspection and scrutiny of ballot papers, the allegations contained in the various paragraphs would be proved. The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection. He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do. Reliance was placed before this Court and the High Court upon the decision of this Court in Bhim Sen vs Gopali and others(1) in support of the plea that mere absence of parti culars will not furnish a ground for declining to grant ins pection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers. In Bhim Sen 's case(1) a petition was filed for setting aside an election of a candidate in a reserved seat in a double member constituency. The principal ground in support of the petition (1) 249 was that it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in contravention of section 63(1) of the Representation of the People Act, and that the Returning Officer having failed to discharge his duty to reject ballot papers cast in contravention of section 63 the petitioner believed that the successful candidate "could receive many void votes. " The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and "did" be substituted respectively for the words "believes" and "could". Along with the petition for leave to amend he filed a list giving the particulars of the void votes. This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment. In appeal to this Court it was held that in a case like the one before the Court, definite particulars about the number and ' nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the pleadings. We do not think that Bhim Sen 's case(1) lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise, allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend ' upon the facts of each case. But if material facts are not 22 E.L.R.288. 250 stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sen 's case(1) the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged by the defeated candidate that there had been contravention of the provisions of section 63 (1 ) of the Act by the Returning Officer and the election was materially affected on that account. The applicant had stated that he believed that the respondents had received many votes which were void. When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void. Thereafter the applicant applied to substitute the words " alleges" for "believes" and "did" for "could". In that case the Court was not concerned to decide whether the order for inspection was properly made: the propriety of the order granting inspection does not appear to have ever been questioned. The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of the claim made. In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles. The appeal therefore is allowed and the order of the High Court is set aside. The order of the Tribunal is restored with costs in this Court and the High Court. Appeal allowed.

The respondent challenged the election of the appellant, inter alia, on the ground that there had been improper reception, refusal and rejection of votes at the time of counting and that on a true count he would have received a majority of valid votes and that he was entitled to be declared duly elected. He claimed that by inspection of the ballot papers he would be able to establish his case on the aforesaid allegations and that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record. The Tribunal in its order stated that nothing was brought to its notice which would justify granting an order for inspection. It further observed: "If in future from the facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection could always be passed". Thereupon, another application was submitted by the respondent asking for inspection but no additional materials were placed before the Tribunal and no oral evidence was led at the trial. The Tribunal rejected the application for inspection. On appeal, the High Court held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, and there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court. The Tribunal had therefore rejected the application for inspection without any adequate reasons. The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to an order in that behalf, lodged before the Tribunal in sealed boxes by the Returning Officer. Held: By the mere production of the sealed boxes, the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice. 239 The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under 0. XI of the Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. Where the interests of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in sections 100(1)(d)(iii), 101, 102 of the Representation of the People Act, 1951 and rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0. XI Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot papers prescribed by sections 94 and 128(1) of the Act. Bhim Sen vs Gopali, , distinguished.

ition Nos. 839 and 563 / 79. (Under Article 32 of the Constitution) V. M. Tarkunde and E. C. Agarwala for the Petitioner in W. P. No. 839/79. R. section Sharma and section M. Ashri for the Petitioner in W.P. No. 563/ 79. O. P. Sharma and R. C. Bhatia for the RR. No. 1 in WP Nos. 839 and 563. Naunit Lal for RR 2 in WP Nos. 839 and 563. The following Judgments were delivered: KRISHNA IYER, J. The challenge in these writ petitions compel s to remind ourselves that under our constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental right. No higher duty or more solemn responsibility rests upon this court than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution. We might have been called upon to examine from this angle of constitutionalised humanism, the vires of the Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41 of 1975) (the Act for short), designed to deliver the tragic tribe of rickshaw pullers, whose lot is sweat, toil, blood and tears, from the exploitative clutches of cycle rickshaw owners by a statutory ban on non owner rickshaw drivers. But negative bans, without supportive schemes, can be a remedy aggravating the malady. For, the hungry human animal, euphemistically called rickshaw puller, loses, in the name of mercy, even the opportunity to slave and live. So, the success of such well meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and 368 self ownership substituted. Judicial engineering towards this goal is better social justice than dehumanised adjudication on the vires of legislation. Court and counsel agreed on this constructive approach and strove through several adjournments, to mould a scheme of acquisition of cycle rickshaws by licensed rickshaw pullers without financial hurdles, suretyship problems and, more than all, that heartless enemy, at the implementation level of all progressive projects best left unmentioned. Several adjournments, several formulae and several modi fictions resulted in reaching a hopefully workable proposal. In fairness to the State, we must mention that when the impugned legislation was enacted Government had such a supportive financial arrangement and many rickshaw pullers had been baled out of their economic bondage. Some hitch somewhere prevented several desperate rickshaw drivers getting the benefit, which drove them to this Court. Anyway, all is well that ends well and judicial activism gets its highest bonus when its order wipes some tears from some eyes. Here, the bench and the bar have that reward. These prefatory observations explain why a pronouncement of the validity of the Act is not called for, although prima facie, we see no constitutional sin in the statute as now framed. We now proceed to set out in our judgment the terms and conditions which will carry with them the implications and obligations of undertakings to the court so far as the parties to the case are concerned. Counsel for the Slate assures us that the Credit Guarantee Corporation of India (Small Loans) will also abide by the court 's direction although not a party formally. So also, the Punjab National Bank which is the financing agency parties have agreed upon. There is no dispute. that the purpose of the statute is obviously benign as is manifest from the Statement of objects and Reason which runs thus: In order to eliminate the exploitation of rickshaw pullers by the middlemen and for giving a fillip to the scheme of the State Government for arranging interest free loans for the actual pullers to enable them to purchase their own rickshaws, it is considered necessary to regulate the issue of licences in favour of the actual drivers of cycle rickshaws, plying within the municipal areas of the State. Section 3 which clamps down the impugned ban read thus: 3(1) Notwithstanding anything contained to the contrary in the Punjab Municipal Act, 1911, or any rule or order or bye law made thereunder or any other law for the time being in force, no 369 Owner of a cycle rickshaw shall be granted any licence in respect of his cycle rickshaw nor his licence shall be renewed by any municipal authority after the commencement of this Act unless the cycle rickshaw is to be plied by such owner himself; (2) Every licence in respect of a cycle rickshaw granted or renewed prior to the commencement of this Act shall stand revoked, on the expiry of a period of thirty days after such commencement if it does not conform to the provisions of this Act. The State was alive to the need for positive rescue measures beyond blanket ban on licensing and so decided to provide interest free loans to actual rickshaw pliers so that they could acquire their own rickshaws and free themselves from the coils of middlemen who preyed upon the little earnings from the toils of the pullers. Luckily, the nationalised banks collaborated in this socially oriented Scheme called the Credit Guarantee Corporation of India (Small Loans) Guarantee Scheme, 1971. And the Credit Corporation agreed to stand surety for the amounts to be advanced by banks to rickshaw pliers. Certainly, the Union of Rickshaw Pliers the petitioner readily accepted the conditions designed for their deliverance since they had nothing to lose except their chains. Thus, we have all the factors ready to cooperate in effectuating the purpose of saving the rickshaw pullers and making them owners. All that we have to do is to set out a self working, specific scheme which makes the statutory ban not a negative, self defeating interdict, but a positive economic manumission. All the counsel have played a role in the dynamic process which has resulted in the judicial project we are giving effect to. Every rickshaw plier, including every petitioner, who has been a licensee in the Amritsar or other municipality within one year of the coming into force of the Act will be entitled to apply to the Municipal Commissioner within one month from today for a certificate or other document to the effect that he has been a licensee for rickshaw pulling within the aforesaid period. The Municipal Commissioner will verify the records on receipt of such application and will grant the necessary certificate or other document within one month from the date of application. He shall not delay the issuance of the certificate. He shall not be over strict, but shall be liberal in the exercise of the certificate issuing power. (Punctiliousness, especially with the weaker sections, is the path to harassment, corruption, dilatoriness and exasperation. Welfare measures often breed de moralisation through heartless legalism and this very case is, to some extent, an illustration). On receipt of the municipal certificate, the rickshaw puller concerned 370 will apply to the Credit Guarantee Corporation of India (Small Loans), under the Guarantee Scheme of 1971, praying to the said Corporation that it stand guarantee to the Punjab National Bank (or other schedule bank mutually agreed upon) for advance of a loan upto Rs. 900 (and in special cases for a larger sum if satisfied that the price of a cycle rickshaw is more than Rs. 900). The Punjab National Bank (or other scheduled bank mutually chosen) will receive a sum of Rs. SO by way of deposit towards the loan to be advanced to the applicant. The rickshaw pliers shall make this initial deposit to be eligible for the bank loan. The balance of the loan shall be guaranteed by the Credit Guarantee Corporation of India (Small Loans) whereupon the concerned bank will advance the sum needed for the purchase of a cycle rickshaw to the manufacturer or vendor indicated by the applicant. Thereupon, the applicant (rickshaw puller) will take delivery of the cycle rickshaw and produce the voucher evidencing purchase and delivery of the rickshaw and, if needed, produce the rickshaw for physical verification by the bank 's officials within one week of taking such delivery. and thereafter whenever directed. He will also sign the necessary forms and undertakings required by the bank so as to hypothecate the cycle rickshaw in favour of the bank. So far as the payment of interest to the bank is concerned, both sides agree that it will be governed by the Scheme for advance to the cycle rickshaw pullers framed by the State Government. The bank shall advance 95% by way of loan towards the purchase of the cycle rickshaw. The sum of Rs. 50 to be deposited initially by the rickshaw puller is expected to cover the remaining 5 % . The loan amount shall be repaid by the rickshaw puller concerned in 15 monthly instalments or in weekly or daily instalments so that by the end of each month 1/15th of the amount is cleared). If there are delayed payments of instalments of loans, higher rates of interest will be recoverable from the loanee (the rickshaw pliers) as per the 1971 scheme. The amount of interest, in case instalments are paid duly, will be met by the Government as an act of relief for the rickshaw pliers. The rickshaw pliers shall, or purchase, hypothecate the vehicles to the bank which advances the loan and this will be an undertaking to the court. The petitioner union will be permitted by the Municipality to set up and run a workshop for repair and allied types of work and a service station for the cycle rickshaws. Sufficient space will be allowed in suitable places for rickshaw stands and safe keeping of rickshaw within the limitations of availability and subject to moderate charges. A realistic understanding of the life style of rickshaw pliers in Amritsar indicates that during the agricultural season many of them 371 go to work nominating other rickshaw pliers without employment to A ply the rickshaws during that season. The Municipal Commissioner. if satisfied that the nomination made is bona fide, will issue licences to such surrogates or nominees of the licensed rickshaw pliers for the agricultural season. The bank which advances the loan and the Credit Guarantee Corporation which guarantees the repayment will. at all reasonable times, be entitled to have physical verification of the vehicles. without interference with the occupation of the rickshaw pliers. If group insurance of rickshaws and of the life of the rickshaw pliers is feasible, the Municipal Commissioner will work out a scheme in this behalf in consultation with the unions in the field. Likewise. any project whereby cycle rickshaws can be replaced by scooters by stages, will also be considered so that the rickshaw pullers of today may become scooter drivers of tomorrow owning the vehicles themselves. It is a notorious fact that rickshaw pullers have an occupational hazard and suffer from pulmonary tuberculosis and so, the State must be deeply concerned progressively to replace rickshaw pulling with mechanical propulsion. It would appear that short of scooters there are mechanised cycle rickshaws which are fairly inexpensive and which are being experimented with. Such vehicles may be a boot to the miserable who now torture themselves to keep body and soul together. After all, the quality of life of the weakest in society is the true measure of social justice. The conditions and directions we have incorporated in this judgment shall be implemented in its true spirit and import by the State, the Municipal Corporation, the Credit Guarantee Corporation, the nationalised banks and the Union and its members. We are happy to record our appreciation of the role of counsel and of the parties in bringing about this solution. The State by exercising its legislative power alone, could not produce justice until this formula was hammered out. The Court with its process of justice alone could not produce a viable project. But now, justice and power have come together and, hopefully. we have fulfilled the words of Blaise Pascal, "Justice without power is inefficient; power without justice is tyranny. Justice and power must, therefore, be brought together, so that whatever is just may be powerful, and whatever is powerful may be just. " 372 Until fresh licences are granted to the cycle rickshaw pliers under the scheme we have incorporated in the order the present petitioners will be allowed to ply their cycle rickshaws. The writ petitions are disposed of on the above lines. PATHAK, J. I agree with the entire scheme of directions framed by my learned brother for the purpose of enabling the rickshaw pliers to acquire and own cycle rickshaws including the financial arrangements envisaged in the scheme, and also the making of provision for the repairs and maintenance of the cycle rickshaws. I need add nothing more.

The Punjab Cycle Rickshaws (Regulation of Rickshaws) Act, 1976 (Punjab Act 41 of 1975), was designed to regulate the issue of licenses to actual drivers of cycle rickshaws, plying within the municipal areas of the State. The petitioners in their Writ Petitions challenged the Act. ^ HELD: (Per Krishna Iyer & Chinnappa Reddy, JJ. Pathak J. agreeing with the scheme of directions framed). The Court framed the following scheme: (a) Every rickshaw puller including every petitioner, who has been a licensee within one year of the coming into force of the Act shall be entitled to apply to the Municipal Commissioner for a certificate or other document to the effect that he has been a licensee for rickshaw pulling. [369 F] (b) The Municipal Commissioner will verify the records and will grant the necessary certificate or other document within one month from the date of the application. [369 G] (c) on receipt of the municipal certificate the rickshaw puller will apply to the Credit Guarantee Corporation of India (Small Loans) under the Guarantee Scheme of 1971 for advance of a loan upto Rs. 900. [369 H 370 A] (d) The loan amount shall be repaid by the rickshaw puller in 15 monthly instalments. If there are delayed payments of instalments of loan, higher rate of interest will be recoverable. [370 F] (e) When the rickshaw pullers during the agricultural season go to work in their fields, they shall nominate other rickshaw pullers without employment to ply the rickshaws during that season. The Municipal Commissioner, if satisfied that the nomination made is bona fide will issue licence to such pullers or nominees of the licensed rickshaw pullers, in the agricultural season. [370 H 371 A] B. (I) Under the Constitutional system courts are havens of refuge for the toiler, not the exploiter, for the weaker claimant of social justice, not the stronger pretender who seeks to sustain the status quo ante by judicial writ in the name of fundamental rights. [367 E] 367 (2) No higher duty or more solemn responsibility rests upon this Court A than to uphold every State measure that translates into living law the preambular promise of social justice reiterated in Article 38 of the Constitution. [F] (3) The success of well meant statutory schemes depends on the symbiosis of legislative embargo on exploitative working conditions and viable facilities or acceptable alternatives whereby shackles are shaken off and self ownership substituted. Judicial engineering to wards this goal is better social justice than dehumanised adjudication on the vires of legislation. [H 368 A]

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

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

ivil Appeal No. 115 of 1950. Appeal from the Judgment and Decree of the Bombay High Court (Macklin and Rajadhyaksha JJ.) dated 14th March. 1945, in First Appeal No. 274 of 1941 which arose out of a decree dated 15th March, 209 1941, of the First Class Subordinate Judge of Satara in Civil Suit No. 890 of 1938. G.R. Madbhavi (K. R. Bergeri, with him) for their appellant. H.J. Umrigar for respondent No. 1. M.C. Setalvad, Attorney General for India (K. G.Datar, with him) for respondent No. 2. 1951. December 17. The Judgment of the Court was deliv ered by MUKHERJEA J. This appeal is directed against a judgment and decree of a Division Bench of the Bombay High Court dated the 14th of March, 1945, which affirmed, on appeal, the decision of the First Class Subordinate Judge, Satara, passed in Civil Suit No 890 of 1938. The appellants before us filed the suit as plaintiffs in the original court, for establishment of their title to the property in dispute which is known as Chikurde Estate, on the allegation that they were, under the Hindu Law, the nearest heirs of one Bhimabai, who was admittedly the last holder of the estate. The suit was brought initially against one defendant, name ly, the Court of Wards, Satara, and admittedly the Court of Wards took possession of the property of Bhimabai, while she was alive, and is continuing in possession of the same even now after her death. Later on, defendants 2, 3 and 4, who put forward rival claims of succession to the estate, were allowed to intervene in the suit and were added as parties defendants. The Court of Wards, which now figures as defend ant No. 1, took up, all through, a neutral attitude and expressed its willingness to hand over the estate to any person who would be declared to be rightfully entitled to it by the Court. The Courts below have negatived the claims of defendants 2 and 3 and they have not come up to press. their claims in the appeal before us. The two rival claim ants, who are now on the scene, are the plaintiffs on one side and defendant No. 4 on the other, and the whole contro versy in this appeal centres round the 210 point as to who amongst them have the preferential right to succeed to the disputed estate after the death of Bhimabai. To appreciate the material facts of the case and the conten tions that have been raised by the parties, it will be convenient to refer to the following genealogy which is not disputed by either side. Vithalrao (died 1896) Ganpatrao (died 1914) Nilkanthrao Anandrao Tangawa alias (died 1899) (died 1913) Anandibai (Deft. 2) Krishnabai Adopted Deft. 3 Vithalrao (Deft. 4) Babasaheb on adopted by 3 2 1939. Krishnabai on 4 11 1924 Respdt. Firangojirao (died Tanakka (predeceas angabai (died 15 11 1919.) ed her sister Gangabai on 14 2 1924) without any issue). Nathgauda Annagauda Balgauda (Plff. 2) Bhimabai (daughter) (Plff. No. 1) Appellant No. 2. (died on 27 1 1932). Appellant No. 1 It is the case of both the parties that Vithalrao, whose name appears at the top of the pedigree table, and who was the common ancestor of the parties, held the disputed property as watan property appertaining to the hereditary office of Deshmukhi service. Vithalrao was the recipient of a Sanad dated 28th November, 1892, under what was called the Gordon Settlement, the object of which was to commute serv ices of certain watandars in that part of the country and relieve them from liability to perform the services attached to their office on certain terms and conditions which were agreed upon between the Government on the one hand and the watandars on the other. The terms of the settlement were generally embodied in Sanads and one such Sanad was granted to Vithalrao in 1892. It is not disputed that after this settlement Vithalrao continued to be watandar as defined by Bombay Act III of 1874, and that the watan in dispute was an impartible estate governed by the rule of 211 primogeniture. In 1896 Vithalrao died and he was succeeded by his eldest son Ganpatrao under the law of primogeniture. Ganpatrao died childless in 1914, leaving behind him his two widows Anandibai and indirabai, of whom the senior widow Anandibais defendant No. 2 in the present suit. Both the two brothers of Ganpatrao, namely, Nilkanthrao and Anan drao had predeceased him. Nilkanthrao left behind him one son named Firangojirao and two daughters, while Anandrao died childless, leaving him surviving his widow Krishnabai, who later on adopted Vithalrao, who is defendant No. 4 in the suit. Ganpatrao had left a will bequeathing all his watan and nonwatan properties to Firangojirao and the latter succeeded to the estate both under the will as well as under the law of lineal promogeniture, he being the only male member of the family at that time. Firangojirao died in 1919, leaving Bhimabai, his only daughter, who was a minor at that time. On 23rd September, 1921, the name of Bhimabai was entered in the village records as watandar in place of Firangojirao and in the year following the Court of Wards, Satara, assumed superintendence of Bhimabai 's estate. On 11th October, 1923, the Government of Bombay by their Reso lution No. A 471 declared the Chikurde Deshmukh watan as lapsed to Government, presumably on the ground that there was no male heir in the watan family after the death of Firangojirao. A new entry was then made in the village register which recorded Bhimabai not as watandar, but as heir of Firangojirao and the lands were described as being converted into ryotvari lands after forfeiture by Govern ment and subjected to full assessment. On 4th of November, 1924, Krishnabai, the widow of Anandrao, adopted defendant No. 4 as a son to her husband. On 27th January, 1932, Bhima bai died unmarried and her estate continued under the man agement of the Court of Wards. The appellants before us, who are the sister 's sons of Firangojirao, brought this suit on 5th of August, 1938, and their case, in substance, is that after the Resolution of the Government passed on 11th 212 of October, 1923, the Chikurde estate ceased to be a watan property and the succession to such estate was governed by the ordinary rules of Hindu Law and not by the provisions of Act V of 1886 which postpone relations claiming through a female to a male member of the watan family. It was urged that the property being the absolute property of Bhimabai and she having died while still a maiden, the plaintiffs, being the nearest heirs of her father, were entitled to succeed under the general rules of Hindu Law. As said al ready, the defendant No. 4, who is respondent No. 2 in this appeal, was added as a party defendant sometime after the suit was filed and the contention raised on his behalf was that by reason of his having been duly adopted. to Anandrao on 4th of November, 1924, he was the nearest heir to the property in suit which was a watan property and prayed that a declaration in his favour might be made by the court. The defendant No. 3 claimed to have been adopted as a son to her husband Ganpatrao by Anandibai, the defendant No. 2, some time in February 1939. The trial court on a consideration of the evidence came to the conclusion that the Chikurde estate was an impartible property governed by the rules of primogeniture. It was held that, it being an impartible joint estate, the rule of survivorship still applied and consequently on the death of Ganpatrao, without leaving any son, the estate passed by survivorship to the next senior branch which was that of Firangojirao. The view taken by the Subordinate Judge is that after Firangojirao 's death Bhimabai took only a provi sional interest in the property which was liable to be divested by the emergence of a male member by adoption in the family and in fact she was legally divested of her interest in the property when defendant No. 4 was adopted by Anandrao 's widow. In the opinion of the Subordinate Judge the resolution of the Government treating the Chikurde estate as lapsed was premature and could not be made legally so long as there were widows living, who were capable of adopting sonS. The trial judge held further that even 213 if Bhimabai was taken to have held the property as watan till her death, the next heir to succeed under the Bombay Act V of 1886 would be defendant No. 4 and not the plain tiffs. The result was that the plaintiffs ' suit was dismissed. The plaintiffs then took an appeal to the High Court of Bombay and this appeal was heard by a Division Bench consisting of Macklin in and Rajadhyaksha JJ. The learned Judges dismissed the appeal and confirmed the deci sion of the trial court, though the reasons given by them are not the same as those given by the trial judge. It was held by the High Court, on a construction of the Sanad granted to Vithalrao in 1892, that the order of lapse or forfeiture of the watan estate passed by the Government in the year 1923 on the ground of failure of male heirs was not a valid and legal order and although under the relevant clause of the Sanad the Government could, in the absence of male heirs, resume the watan in the sense that they could make the property liable to full assessment, the other incidents of the watan estate still continued. Consequently, Act V of 1886 would still govern succession to such property and defendant No. 4 had preferential rights over the plain tiffs under section 2 of that Act. It is against this decision that the plaintiffs have come up on appeal to this court. The learned Counsel appearing on behalf of the plain tiffs appellants has raised a two fold contention in support of the appeal. It has been contended in the first place that the High Court was in error in holding that the Chikurde estate retained its watan character even after it was re sumed by the Government by its Resolution of 11th October, 1923; and if it was non watan, the plaintiffs would be nearer heirs to Bhimabai than defendant No. 4. The other contention raised is that even if the property remained watan in the hands of Bhimabai, the latter would have to be regarded as a watandar in the true sense of the word and would be a fresh stock of descent. In that view the plain tiffs would come within the family of 28 214 watandar as defined in Bombay Act V of 1886, whereas the defendant No. 4 would be outside the family. The points undoubtedly are interesting, but having regard to the view which we have decided to take, it would not be necessary to investigate the merits of either of them. It may be pointed out that the learned Judges of the High Court proceeded throughout on the assumption that the plaintiffs would have preferential rights of succession if the property was regarded as non watan in the hands of Bhimabai. It is only if the property was watan that the Bombay Act of 1886 will apply and the plaintiffs, who were descended through females, would be postponed to defendant No. 4 who by adop tion became a male member of the family. Mr. Setalvad, appearing for defendant No. 4 who is respondent No. 2 in this appeal, contended before us that this assumption is wrong, and that even if the property was regarded as nonwa tan property and belonging absolutely to Bhimabai as her stridhan, still as heir of Bhimabai 's absolute property the defendant No. 4 would have higher rights than the plain tiffs. As this point was not touched upon in the judgments of either of the courts below, we heard the learned Counsel on both sides at great length upon it and the conclusion that we have reached is that the contention of the learned AttorneyGeneral is well founded and must prevail. For the purpose of this argument we would assume that the property in suit was non watan stridhan property of Bhimabai and the only question is, as to who amongst the rival claimants would be the nearer heir after her death according to the Hindu Law of inheritance ? It is admitted that Bhimabai died while she was a maiden and that a maid en 's property under the Hindu Law goes in the first place to her uterine brothers, in default of them to the mother and then to the father. This is according to the text of Baudhayana (1)which is accepted by all the commenta tors. Viramitrodaya adds to this that "on failure of mother and father it goes to their (1) See Mitakshara, Chap. II, sec. XI, para 30. 215 nearest relations"(1). It has been held in a large number of cases that the expression "nearest relations of the parents" means and refers to the sapindas of then, father and in their default the sapindas of the mother both in order of propinquity(2). In the case c before us, both the plain tiffs and defendant No. 4 are sapindas of Firangojirao, the plaintiffs being the sister 's sons of Firangojirao, while the latter is his paternal uncle 's son. It is not dis puted that apart from the changes introduced by the Hindu Law of Inheritance (Amendment) Act, (Act II of 1929), the place of the paternal uncle 's son in the line of heirs under the Mitakshara Law of Succession is much higher than that of the sister 's son and the Mayukha Law, which prevails in the State of Bombay, does not make any difference in this re spect. Under the Mitakshara Law, the paternal uncle comes just after the paternal grandfather and his son follows him immediately. By Act II of 1929, however, four other rela tions have been introduced between the grandfather and the paternal uncle and they are the son 's daughter, daughter 's daughter, sister and sister 's son, and the paternal uncle and his son are thus postponed to these four relations by the Hindu Law of Inheritance Act of 1929. The question is, whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; and section 1 (2) expressly lays down that "the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will". Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does (1) See Viramitrodaya, Chap. V, Part II, Sec. 9. (2) See Mayne 's Hindu Law, 11th edition, article 621, page 741. 216 not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law under all circumstances and for all purposes;it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property. Whether this distinction between male and female propositus is at all reasonable is another matter, but the language of the Act makes this distinction expressly and so long as the language is clear and unambiguous, no other consideration is at all relevant. This is the view which has been taken, and in our opinion quite rightly, in a number of cases of the Madras, Patna and Nagput High Courts(1). We are not unmindful of the fact that a contrary view has been expressed in certain decisions of the Bombay, Lahore and Allahabad High Courts (2). The line of reasoning that is adopted in most of the decisions where the contrary view is taken can be thus stated in the language of Mr. Justice Somjee (3):__ "The Act is not sought to be applied to determine the succession to the stridhan of a Hindu maiden but is sought to be used by the petitioner to ascertain the fourth class of heirs to the stridhan of a Hindu maiden mentioned at page 139 of Mulla 's Hindu Law. The heirs of the father at the time of her death have to be ascertained in accordance with the Hindu Law as it existed at the time of the death of Bai Champubai. Thus the Act comes into operation for ascer taining the order in which the heirs of her father would be entitled to succeed to his estate, because the heirs of the father (1) Vide Manda Mahalakshmamma vs Mantravadi (I.L.R. ; Shakuntalabai vs Court of Wards (I.L.R. 1942 Nag. 629); Talukraj Kuer vs Bacha Kuer (I.L.R. 26 Pat. 150); Kuppuswami v Manickasari (A.I.R. (2) Shamrao vs Raghunandan (I.L.R. ; Mst. Charjo vs Dinanath (A.I.R. ; Kehar Singh vs Attar Singh (A.I.R. 1944 Lah. 442); Indra Pal vs Humangi Debi (I.L.R. 1949 All. 816). (3) Vide Shamrao vs Raghunandan (I.L.R. at 230). 217 in the order of propinquity who would be entitled to succeed to him if he died on August 3, 1937, would be the heirs of Bai Champubai in the absence of the uterine brother, the mother and the father. " It is true that we have got to ascertain who the heirs of the father are at the date when the daughter dies, but the enquiry is for the purpose of finding out who the suc cessor to the estate of the daughter is. This being the subject of the enquiry, the operation of Act II of 1029 is excluded by its express terms and for that purpose the Act is to be treated as non existent. In other words, the stridhan heirs are to be ascertained with reference to the general provisions of the Hindu Law of Inheritance ignoring the statutory heirs who have been introduced by the Act. The fallacy in the line of approach adopted in these cases seems to be that they treat the Inheritance Act of 1929 as amending or altering the Mitakshara Law of succession in all cases and for all purposes, whereas the Act has absolutely no operation when succession to the separate property of a male is not the subject matter of investigation. The result is that in our opinion the plaintiffs are not the nearest heirs of Bhimabai even assuming that the property was non watan and belonged to her absolutely. The appeal will thus stand dismissed. We make no order as to costs in this appeal except that defendant No. 1, the Court of Wards, would have its costs as between attorney and client out of the estate. The order for costs made by the courts below will stand. Appeal dismissed. Agent for respondent No. 1: P.A. Mehta. Agent for respondent No. 2: K.J Kale.

The Hindu Law of Inheritance (Amendment) Act (Act II of 1929) which introduced the son 's daughter, daughter 's daugh ter, sister and sister 's son between the grandfather and the paternal uncle in the order of succession applies only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. The Act cannot therefore be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The property of a Hindu female who dies as a maiden goes in the first place to her uterine brothers, then to the mother and then to the father, and on failure of the mother and father, it goes to the nearest relations, that is to say, to the sapindas of the father and in their default the sapindas of the mother, both in the order of propinquity. Under the Mitakshara law of succession as well as the Mayukha law the paternal uncle 's son is entitled to succeed to the property of a Hindu in preference to sister 's sons. Manda Mahalakshmamma vs Mantravadi (I.L.R. 1947 Mad. 23), Shakuntala Bai vs Court of Wards (I.L.R. 1942 Nag. 629), Taluhraj Kuar vs Bacha Kuar (I.L.R. 28 Pat. 150), Kuppuswami vs Manickasari (A.I.R. approved. Shamrao vs Raghunandan (I.L.R. , Mst. Charjo vs Dinanath (A.I.R. , Kehar Singh vs Attar Singh (A.I.R. , Indra Pal vs Humangi Debi (I.L.R. 1949 All. 816) not approved.

Appeal No. 375 of 1956. Appeal from the judgment and decree dated July 27, 1953, of the Madras High Court, in A. section No. 623 of 1949. A. V. Viswanatha Sastri and section Venkata Krishnan, for the appellants. M. C. Setalvad, Attorney General for India, R. Ganapathy Iyer and G. Gopalakrishnan, for the respondent. February 27. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal on a certificate granted by the Madras High Court. The brief facts necessary for present purposes are these: The present suit was brought by Muthappa Chettiar (hereinafter referred to as the respondent) against K. Thiagarajan Chettiar (hereinafter called the appellant) and the Saroja Mills Ltd. In 1939 these two persons thought of doing business jointly by securing managing agencies of some mills. In that connection they carried on negotiations with two mills, namely, Rajendra Mills Limited, Salem and the Saroja Mills Limited, Coimbatore (hereinafter called the Mills). The managing agency of the Mills was with the Cotton Corporation Limited. On October 4, 1939, the said Corporation transferred and assigned its rights to the appellant and the respondent under the name of Muthappa and Co. On November 15, 1939, the Mills at an extraordinary general meeting of the shareholders accepted Muthappa and Co. as the managing agents and made the necessary changes in the Articles of Association. Later the appellant and the respondent obtained the managing agency of the Rajendra Mills Limited, Salem. The managing agents of this mill were Salem Balasubramaniam and Co. Ltd. Muthappa and Co. purchased all the shares of the Salem Balasubramaniam and Co. and thereafter carried on the business of the managing agency of this mill in the name of Salem Balasubramaniam and Co. Ltd. In November 1940 the appellant and the respondent entered into a written partnership agreement with respect to 1001 the managing agency business of the two mills. We shall consider the terms of this agreement later and all that we need say at this stage is that turns were fixed for the appellant and respondent to look after the actual management of the two mills and the appellant 's turn was the first and he therefore came into actual control of the two mills. Soon after however disputes arose between the appellant and the respondent with respect to the managing agency of the Rajendra Mills Limited, which resulted in various suits being filed between the partners, to which we shall refer later. Eventually on March 4, 1943, the appellant gave notice to the respondent terminating the partnership, considering it as a partnership at will. This was followed by the directors of the Mills terminating the managing agency of Muthappa, and Co. on the ground that company had ceased to exist and also on the ground that quarrels between the partners of the firm were not conducive to good management of the Mills. This was notified to the respondent on March 22, 1943. This action of the directors was approved in a meeting of the shareholders of the Mills on September 29, 1943, and necessary modifications were again made in the Articles of Association. In between on April 17, 1943, the respondent had filed a suit for a declaration that Muthappa and Co. continued to be the managing agents of the Mills and for obtaining possession of the office of managing agents for himself or along with the appellant and also for a permanent injunction restraining the Mills from appointing any other managing agents. This suit was dismissed by the trial court on the ground that it was not maintainable under section 69 of the Indian Partnership Act, No. IX of 1932 (hereinafter called the Act), though the trial court gave findings on other issues also. The respon dent went up in appeal to the Madras High Court against the decree in that suit. This appeal was dismissed on July 8, 1948, as the High Court held that the finding of the subordinate judge that the suit was not maintainable under section 69 of the Act was correct. The High Court however made it clear that it was 1002 expressing no opinion on the correctness 'or otherwise of the other findings recorded by the subordinate Judge. While this appeal was pending the respondent brought the present suit on February 28, 1946. In this suit he prayed for dissolving the firm Muthappa and Co., for accounts and for damages against the appellant and the Mills. The main contention of the respondent in the suit was that the alleged dissolution of partnership by the appellant and the removal of Muthappa; and Co. from the managing agency of the Mills 'were part of a scheme of fraud conceived by the Appellant which was actively connived at by the mills in order to defeat and defraud the respondent of 'his legitimate dues and his right to continue and act as the 'managing agent of the Mills. The damages claimed were estimated at the figure of five lacs of rupees to be recovered from both the appellant and the Mills or from either of them. In the alternative the respondent claimed that even if Muthappa and Co. had been removed validly from the managing agency on September 29, 1943, he was entitled to account from the appellant from November 15, 1939, to September 29, 1943. The suit was resisted by both the appellant and the Mills and their case was that the partnership was one at will and therefore ',Was validly terminated by the appellant by notice. It Was further contended that in any case the Mills were within their rights in terminating the managing :,agency of Muthappa and Co., as that firm had ceased to exist and there were interminable disputes between the partners. Fraud and collusion were denied and it 'was alleged that it was the respondent 's conduct which compelled the appellant to give notice of termination of partnership and the Mills to terminate the managing agency. The Mills took a further plea, namely, that so far as they were concerned, the suit was barred under section 69 of the Act. The trial court held that the firm of Muthappa and Co. *as a partnership at will and therefore was legally dissolved by the appellant by giving notice dated March 4, 1943. It further held that no case of fraud 1003 had proved and that the termination of the managing agency was legal. As to the Mills the trial court held that the suit against them was barred under section 69 of the Act. In consequence the suit against the Mills was dismissed in toto and the prayer for damages was also rejected. The trial court however directed the appellant to account for the profits earned from the inception of the partnership business till March 4, 1943, when the partnership was terminated by the appellant by notice. Thereupon the respondent went up in appeal to the High Court. The High Court held that the suit against the Mills was barred under section 69 of the Act, though it was made clear that if there were assets of the partnership firm in possession of the Mills the respondent would be entitled to recover them. The High Court however ordered the Mills to bear their own costs in both the courts on the ground that the Mills were guilty of fraud. As to the case against the appellant, the High Court held that the partnership was. not a partnership at will and therefore it could not be dissolved by notice by the appellant. It further held that the appellant fraudulently and in collusion with the Mills purported to dissolve the partnership by issuing an illegal notice and to have the managing agency terminated by the Mills, and in consequence the termination of the managing agency was illegal. On the view therefore that the partnership as well as the managing agency continued and on a review of the circumstances, the High Court held that this was a fit case for dissolving the partnership and fixed March 10, 1949, 'which was the date of the decree of the trial court as the date from which the partnership would be dissolved. Consequently it modified the decree of the trial court and passed a preliminary decree for accounts against the appellant in respect of the firm Muthappa and Co. from November 15, 1939, to March 10, 1949. and added that the respondent could also recover any amount found due to him on taking accounts against the partnership assets, if any, in the hands of the Mills. The appellant thou applied for a certificate to 1004 appeal to this Court which was granted; and that is how the matter has come up before us. The first question therefore that arises for our deter mination is whether the partnership in this case is a partnership at will and it is necessary to refer to the terms of the partnership agreement to determine this question. After reciting that the management of the. Mills was being carried on in the name and style of Muthappa and Company and of the Rajendra Mills Limited in the name and style of Salem Balasubramaniam and Co. Limited, the partnership agreement goes on to say that the partners shall get in equal shares the salary, commission, profit, etc. , that may be realised from the aforesaid managing agencies. It provides for carrying on the management in rotation once in four years, the appellant to manage for the first four years and thereafter the respondent to manage for the next four years and in the same way thereafter. It further provides that the partners and their heirs and those getting their 'rights shall carry on the management in rotation. The accounts were to be made once in every year after the closing of the yearly accounts of the two mills. There were then provisions as to borrowing with which we are not con cerned. The agreement further provides that in case either partner thinks of relinquishing his right of management under the agreement it shall be surrendered to the other partner only but shall not be transferred or sold to any other person whatever. Finally it is provided that the two partners shall carry on the affairs of the firm by rotation, once in four years and the income realised thereby shall be divided year after year and the partners and their heirs shall get the same in equal shares and thus carry on the partnership management. The contention on behalf of the appellant is that as this partnership does not fall under section 8 of the Act and is not within the two exceptions under section 7, it is a partnership at will. Section 7 provides that where no provision is made by contract between the partners for the duration of the partnership, or for the determination of the partnership, the partnership is partnership at will. Section 8 provides that a person may 1005 become a partner with another person in particular adventures or undertakings. Section 43 provides that where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm. On the other hand if the partnership is not at will, a. 42 applies and is in these terms: "Subject to contract between the partners a firm is dissolved (a) if constituted for a fixed term, by the expiry of that term; (b) if constituted to carry out one or more adventures or undertakings, by the completion thereof; (c) by the death of a partner; and (d) by the adjudication of a partner as an insolvent. " Section 44 provides for dissolution by the court. The High Court was of the view that looking to the terms of the partnership it could not be held to be a partnership at will and that under section 7 it will be a case of a partnership the duration of which as well as the determination of which were fixed. The High Court was further of the view that section 8 of the Act would also apply to the partnership in question as the evidence showed that the partners had entered into partnership in order to carry on the business of managing agency of the two mills and such business was an under taking, As we read the terms of the agreement it seems to us clear that the intention could not be to create a partnership at will. The partners contemplated that the management would be carried on in rotation between them in four yearly periods. It was also contemplated that the heirs of the partners would also carry on the management in rotation. Considering this provision as well as the nature of the business of partnership it could not be contemplated that the partnership could be brought to an end by notice by either partner. The intention obviously was to have a partnership of some duration, though the duration was not expressly fixed in the agreement. Now section 7 contemplates two exceptions to a partnership at will. 1006 The first exception is where there is a provision in the contract for the duration of partnership; the second exception is where there is provision for the determination of the partnership. In either of these cases the partnership is not at will. The duration of a partnership may be expressly provided for in the contract; but even where there is no express provision, courts have held that the partnership will not be at will if the duration can be implied. See Halsbury 's Laws of England, Third Edition, Vol. 28, p. 502, para. 964, where it is said that where there is no express agreement to continue a partnership for a definite period there may be an implied agreement to do so. In Crawshay vs Maule (1) the same principle was laid down in these words at p. 483: " The general rules of partnership are well settled. Where no term is expressly limited for its duration, and there is nothing in the contract to fix it, the partnership may be terminated at a moment 's notice by either party. Without doubt, in the absence of express, there may be an implied, contract as to the duration of a partnership." The same principle in our opinion applies to a case of determination. The contract may expressly contain that the partnership will determine in certain circumstances; but even if there is no such express term, an implied term as to when the partnership will determine may be found in the contract. What we have therefore to see is whether in the present case it is possible to infer from the contract of partnership whether there was an implied term as to its duration or at any rate an implied term as to when it will determine. It is clear from the terms of the contract of partnership that it was entered into for the purpose of carrying on managing agency business. Further the term relating to turns of the two partners in the actual management and the further term that these turns will go on even in the case of their heirs in our opinion clearly suggest that the duration of the partnership would be the same as the duration of the managing agency. We cannot agree that this means that the partnership (1) ; 483. 1007 would become permanent. In any case even if there is some doubt as to whether the terms of this contract implied any duration of the partnership, there can in our opinion be no doubt that the terms do imply a determination of the partnership when the managing agency agreement comes to an end. It is clear that ' the partnership was for the sole business of carrying on the managing agency and therefore by necessary implication it must follow that the partnership would determine when the managing agency determines. Therefore on the terms of the contract in this case, even if there is some doubt whether any duration is implied, there can be no doubt that this contract implies that the partnership will determine when the managing agency terminates. In this view the partnership will not be a partnership at will as section 7 of the Act makes it clear that a partnership in which there is a term as to its determination is not a partnership at will. Our attention was drawn in this connection to a term in the contract which lays down that either partner may withdraw from the partner. ship by relinquishing his right of management to the other partner. That however does not make the partnership a partnership at will, for the essence of a partnership at will is that it is open to either partner to dissolve the partnership by giving notice. Relinquishment of one partner 's interest in favour of the other, which is provided in this contract, is a very different matter. It is true that in this particular case there were only two partners and the partnership will come to an end as soon as one partner relinquishes his right in favour of the other. That however is a fortuitous circumstance; for, if (for example) there had been four partners in this case and one of them relinquished his right in favour of the other partners, the partnership would not come to an end. That clearly shows that a term as to relinquishment of a partner 's interest in favour of another would not make the partnership one at will. We may in this connection refer to Abbott vs Abbott (1). That was a case where there were more than two partners and it was (1) 1008 provided that the retirement of a partner would not terminate the partnership and there was an option for the purchase of the retiring partner 's share by other partners. It was held that in the circumstances the partnership was not at will and it was pointed out that only when all the partners except one retired that the partnership would come to an end because there could not be a partnership with only one partner. We are, therefore, in agreement with the High Court that the contract in this case disclosed a partnership the determination of which is implied, namely, the termination of the managing agency and, therefore, under section 7 of the Act it is not a partnership at will. In the circumstances it is unnecessary to consider whether the case will also come under section 8 of the Act. The next question that arises is whether the managing agency has been terminated legally ; for if that is so the partnership would also be determined. This takes us to the history of the relations between the partners after the partnership came into existence. It seems that disputes arose between the partners some time in 1941 in connection with the Rajendra Mills Limited which was one of the mills included in the managing agency business. The respondent filed a suit on March 4, 1942, against the appellant and Salem Balasubramaniam and Co. Limited with respect to the 'allotment of shares in the managing agency company On March 11, 1942, the respondent filed another suit, this time on the basis of debentures which he hold against the Mills, praying for a decree against the Mills with respect to the debenture amount. , On June 17, 1942, the respondent filed a third suit with respect to the Rajendra Mills Limited for a declaration that the respondent was a partner owning half share in the managing agency of the Rajendra mills Limited ' On the same day the respondent filed a fourth suit against the appellant, his son and Salem Balasubramaniam and Co. Limited with respect to certain actions taken by the managing agency company. On July 15, 1942, the appellant filed a counter suit against the respondent and the managing agency company relating to the Rajendra Mills Limited for a 1009 declaration that the respondent had no interest in the managing agency company and for further reliefs. There is no doubt, therefore, that the relations between the partners were very strained in 1942. The respondent admitted in his statement that from the end of 1941 there was enmity between him and the appellant and there were vital differences between them and litigation was going on, though he said that in spite of the enmity he was willing to co operate with the appellant if the amount of which he had been defrauded were paid to him, on accounting. So far as the litigation with respect to the Rajendra Mills Limited was concerned the respondent lost and it was held that he had withdrawn from the partnership of the managing agency company with respect to that mill. As to the suit on debentures, the money was deposited in court and the dispute was only about costs. That matter also went up to the High Court and finally the High Court refused to allow costs to the respondent. It was in this strained atmosphere between the partners that the appellant gave notice dated March 4, 1943, terminating the partnership with respect to the Mills considering it as a partnership at will. We have however held that the partnership was not a partnership at will and the notice given by the appellant could not, therefore, terminate it legally. But the question still remains whether the managing agency of the Mills was terminated legally ; for if that was so the partnership would also come to an end on the date the managing agency was terminated in view of what we have held above. The High Court has examined the circumstances in this connection and has come to the conclusion that the appellant fraudulently and collusively with the Mills got the managing agency terminated and, therefore, the termination of the managing agency was illegal. We are unable to agree with this view of the High Court. It is, therefore, necessary to examine the circumstances in which the termination came about. The appellant sent a copy of his notice dated March 4, 1943, terminating the partnership to the Mills also. The respondent sent a reply to this notice in which he claimed that the partnership was 1010 not at will and the appellant was not entitled to terminate it, and a copy of this reply was also sent to, the Mills on March 16, 1943. On March 22, 1943, the directors of the Mills held a meeting. In that meeting the directors decided that as the partners of Muthappa and Company were unable to get on in harmony with each other and were involved in litigation and several suits were going on between them and on account of their differences the work of the Mills was suffering and was, likely to suffer and also because Muthappa and Company had ceased to exist and had lost its right of management and was no longer in a position to manage the Mills, it became necessary to appoint other managing agents. Thus by this resolution the managing agency of Muthappa and Company was terminated for two reasons: (1) that there were differences between the partners of the managing agency company and the work of the Mills was suffering and was likely to suffer, and (2) that Muthappa and Company had come to an end and, therefore, had lost its right of management. It appears that before this resolution was passed the appellant had been purchasing shares of the Mills in the market and had acquired a controlling interest therein. The High Court, therefore, thought that the hidden hand of the appellant was visible behind this resolution of the directors of the Mills, the more so as the appellant 's son was nominated by the same resolution to administer the whole affairs of the Mills subject to the control and direction of the board of directors till such time as suitable managing agents were appointed. This action of the board of directors was confirmed at a general meeting of the shareholders on September 29, 1943. The High Court thought that as the appellant had acquired a controlling interest in the Mills he was behind the resolution of the directors of March 22 1943, and the resolution of the general meeting of the shareholders of September 29, 1943. It may be that the appellant having acquired a controlling interest in the Mills had a good deal to do with the resolutions; but that in our opinion would not necessarily make his 1011 conduct fraudulent and the termination of the managing agency agreement illegal. It is not in dispute that there was no agreement between the partners that either of them would not purchase shares of the Mills in open market. We do not therefore see anything improper in the conduct of the appellant when he purchased the shares of the Mills in open market and managed to acquire the controlling interest therein. The appellant obviously had two capacities: in one capacity he was a partner of the respondent in the managing agency business, in the other capacity he was a large shareholder of the Mills and as such shareholder it was certainly his interest to see that the interest of the Mills did not suffer. The crucial question therefore is whether the action taken by the Mills by the two resolutions is such as would be taken by any prudent company when faced with the situation with which the Mills was faced in the present case. There can in our opinion be no doubt that any company when faced with a situation in which the Mills was in this case, and finding that the two partners of its managing agency firm were fighting tooth and nail and there was no love lost between them and also finding that the interest of the Mills was suffering and was likely to suffer because of the bad blood between the two partners of the managing agency, was bound to take steps to protect its own interests. The fact that the major shareholder in the Mills also happened to be a partner in the managing agency would not disentitle him from acting in the interest of the Mills as a major shareholder. We may in this connection refer to Morarji Goculdas and Co. vs Sholapur Spinning and Weaving Co. Ltd. and Others(1). In that case a question arose whether the termination of the managing agency agreement was illegal on the ground of misconduct. It was found in that case that there were quarrels between the partners of the managing agency firm of such a nature and duration as to impair seriously their capacity to discharge their duty to the company as managing agents and to affect prejudicially the interests of the company. It was held that : (1) 129 1012 " In each case the question must be whether the misconduct proved, or reasonably apprehended, has such a direct bearing on the employer 's business or on the discharge by the employee of that part of the employer 's business in which he is employed, as to seriously affect or to threaten to seriously affect the employer 's business or the employee 's efficient discharge of his duty to his employer. " If on the facts and circumstances of the case it was so, the termination of the managing agency would be justified. In the present case there can be no doubt that the quarrels between the two partners of the managing agency firm were so serious and of such duration as to impair their capacity to discharge their duty to the Mills as managing agents and to affect the interests of the Mills prejudicially. Therefore, if the directors of the Mills came to that conclusion it is in our opinion not correct to say that conclusion was arrived at fraudulently, simply because a major shareholder happened to be the appellant. We may in this connection refer to the observations of Younger L.J. in Commissioners of Inland Revenue vs Sansom (1) : " No doubt there are amongst such companies, as amongst any other kind of association, blacksheep; but in my judgment such terms of reproach as I have alluded to should be strictly reserved for those of them and of their directors who are shown to deserve condemnation, and I am quite satisfied that the indiscriminate use of such terms has, not infrequently, led to results which were unfortunate and unjust, and in my judgment this is no case for their use. " These remarks are in our opinion apposite in the present context. It is true that the appellant had a hand as a major shareholder in the two resolutions and this was never hidden; but it is equally true that in the circumstances then existing any prudent board of directors and any body of shareholders interested in a company would act in the manner in which the board of directors and the shareholders of the Mills (1) , 514. 1013 acted in the present case. We cannot therefore agree with the High Court that this is a case where the board of directors and the shareholders acted fraudulently in collusion with the appellant, for we cannot forget that the appellant as a major shareholder of the Mills could legitimately act to protect them and the action taken was such as any board of directors and any body of shareholders would bona fide take. In the circumstances we are of opinion that the resolution of the board of directors terminating the managing agency agreement, confirmed by the general meeting of the shareholders, did legally terminate the managing agency between the Mills and Muthappa and Company. It is true that in these resolutions a second reason was given for the termination, viz., that Muthappa and Co. had come to an end because of the notice of March 4. That legal position is in our view incorrect; but that apart there were otherwise sufficient reasons for the Mills to terminate the managing agency in the circumstances with which it was faced. The next question that arises is as to when the managing agency can be said to have been terminated, i.e., whether on March 22, 1943, or on September 29, 1943. Now under s.87 B(f)of the Indian Companies Act, No. VII of 1913, which was then in force, the appointment of a managing agent, the removal of a managing agent and any variation of a managing agent 's contract of management shall Dot be valid unless approved by the company by a resolution at a general meeting of the company. This provision clearly shows that a managing agent may be appointed and removed by the board of directors, though such appointment and removal is subject to the approval by the company by a resolution at a general meeting of the company. We agree with the High Court that when the company at its general meeting approves of an appointment or of a removal, the approval takes effect from the date of the appointment or removal by the board of directors. On this view therefore, when the general meeting in this case approved the action of the board of directors, the removal became valid and came into effect from March 22, 1943. 1014 Therefore, the managing agency agreement in this case was validly terminated on March 22, 1943. As we have already held that there was an implied term in the contract of partnership that it will determine when the managing agency agreement with the Mills terminates, the partnership in the present case must under the contract be deemed to have determined on March 22, 1943. Therefore, the respondent will be entitled to an account only from November 15, 1939, to March 22, 1943. The learned Attorney General however referred us to sections 9, 10 and 13(f) of the Act and his contention was that. the appellant must account for all the profits made by him out of the managing agency business, even after March 22, 1943. Unders.10 every partner has to indemnify the firm for any loss caused to it by his fraud in the conduct of the business of the firm and under section 13(f) a partner has to indemnify the firm for any loss caused to it by his wilful neglect in the conduct of the business of the firm. In the first place, such a case was not made out in the plaint by the respondent; in the second place we are of opinion that sections 10 and 13(f) have no application to the facts of the present case. We therefore reject this contention. That leaves the question of costs. So far as Saroja Mills Limited are concerned, we are of opinion that they are entitled to their costs throughout from the respondent as their action in terminating the managing agency has been held by us to be legal and valid. As to Thiagarajan Chettiar we are of opinion that in the circumstances of this case, the order of the subordinate judge that Muthappa Chettiar (respondent) and Thiagarajan Chettiar (appellant) should bear their own costs is just and we order them to bear their own costs throughout. We therefore allow the appeal in part and order that accounts will be taken from November 15, 1939,. to March 22, 1943, as between Thiagarajan Chettiar and Muthappa Chettiar. The respondent will pay the costs of Saroja Mills Limited throughout; but Muthappa Chettiar and Thiagarajan Chettiar will bear their own costs throughout. Appeal allowed in part.

The appellant and the respondent entered into a written partnership with respect to the managing agency business of two mills, the terms of which were, inter alia, that the management shall be carried on in rotation once in four years, the appellant to manage for the first four years and thereafter the respondent to manage for the next four years and in the same way thereafter. 999 It further provided that the partners and their heirs and those getting their rights shall carry on the management in rotation. Soon after disputes arose between the partners and the appellant gave notice to the respondent terminating the partnership treating it as a partnership at will, and the directors of the mills in their turn terminated the managing agency on the ground that the quarrels between the partners were detrimental to the good management of the mills. Thereafter the respondent brought a suit against the appellant and the mills for dissolution of the partnership firm and damages alleging that dissolution of the partnership by the appellant by notice was fraudulent and connived at by the mills. The trial court held that the partnership was at will and the termination of the managing agency was, legal and disallowed damages. On appeal by the respondent the High Court held that the partnership was not a partnership at will and could not be dissolved by notice by the appellant. The termination of the managing agency was also held to be illegal. appeal by the appellant with a certificate of the High Court: Held, that considering the provision that the management would be carried on in rotation between the partners in four yearly periods and that the heirs of the partners would also carry on the business in rotation the intention was obviously to have a partnership of some duration, though the duration was not expressly fixed in the agreement. The duration of a, partnership may be expressly provided for in the contract but even when there is no express provision, courts have held that the partner. ship will not be at will if the duration can be implied. Grawshay vs Manle, Swans 495; ; , followed. The contract in this case disclosed a partnership the deter mination of which was implied, namely, the termination of the managing agency and, therefore, under section 7 of the Partnership Act it was not a partnership at will and was not legally terminable by the notice given by the appellant. In view of the strained atmosphere between the partners there was sufficient reason for the mill to terminate the managing agency and the resolution of the board of directors terminating the managing agency agreement confirmed by the general meeting of the shareholders, did terminate the managing agency. There was neither any fraud nor collusion by the mills with the appellant. Morarji Gokuldas and Co. vs Sholapur Spinning and Weaving Co. Ltd. and Others, and Commissioners of Inland Revenue vs Sansom, , referred to. The partnership in the present case must be deemed to have determined on the date of the passing of the resolution by the board of directors terminating the managing agency. Sections 10 and 13(f) of the Partnership Act have no application to the facts of the case.

urt held that there was no consequential relief involved since neither the decree nor the alienation binds the plaintiffs in any manner. The 1st defendant in the suit has, therefore, filed this appeal. Before us a preliminary objection was raised based on the observations of this Court in Raihnavaramaraja vs Smi. Vimla (1) that the present appeal is not competent. In that case this Court observed that whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State and that the defendants who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint. But the observations must be understood in the background of the facts of that case. This Court was there dealing with an application for revision filed before the High Court under section 115 of the Code of Civil Procedure and pointed out that the jurisdiction in revision exercised by the High Court is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction, and the provisions of sections 12 and 19 of the Madras Court Fees Act do not arm the defendant with a weapon of technicality to obstruct the progress of. the suit by approaching the High Court in revision against an order determining the court fee payable. The ratio of that decision was that no revision on a question of court fee lay where no question of jurisdiction was involved. This decision was correctly interpreted by the Kerala High Court in Vasu vs Chakki Mani(2)where it was pointed out that no revision will lie against the decision on the question of adequacy of court fee at the instance of the defendant. unless the question of court fee, involves also the question of jurisdiction of the court. In the present case the plaint was rejected under Order 7, Rule 1 1 of the C.P.C. Such an order amounts to a decree under section 2(2) and there is a right of appeal open to the plaintiff. Furthermore, in a case in which this Court has granted special leave the question whether an appeal lies or not does not arise. Even otherwise a second appeal would lie under section 100 of the C.P.C. on the ground that the decision of the 1st Appellate Court on the interpretation of section 7(iv) (c) is a question of law. There is thus no merit in the preliminary objection. As regards the main question that arises for decision it appears to us that while the court fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff 's suit will have to fail for failure to ask for consequential relief is of no concern to the court at that stage the court in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. In this case the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity (1) A. I. R. (2) A. I. R. 1962 Kerala 84. 325 to execute the mortgage. It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose, lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt (Faqir Chand vs Harnam Kaur(1). Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do. This aspect is brought out in a decision of the Full Bench of the Lahore High Court in Zeb ul Nisa vs Din Mohammad(2)where it was held that : "The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under article 17(iii). " In that case the plaintiff had sued for a twofold declaration : (i) that the property described in the plaint was a waqf, and (ii) that certain alienations thereof by the mutwalli and his brother were null and void and were ineffectual against the waqf property. It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a declaration with a "consequential relief. " It was substantive one in the shape of setting aside of alienations requiring ad valorem court fee on the value of the subject matter of the sale, and even if the relief sought for fell within the purview of section 7 (iv) (c) of the plaintiffs in view of sections 8 and 9, Suits Valuation Act, having already fixed the value of the relief in the plaint for purposes of jurisdiction were bound to fix the same value for purposes of court fee. It was also pointed out that in deciding whether a suit is a purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered. The court also observed : "It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree "or the deed sought to be declared as null and void, nor to the ques tion whether the declaration sought does or does not fall within the purview of section 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court fee payable (1) ; (2) A. I. R. [1941] Lahore 97. 326 in the suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, neces sarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed. tile declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the If therefore a copartner sues for a declaration that such an alienation or decree is null and void, the declaration must I think be held to include consequential relief in the same may as in those cases in which the plaintiff is himself a party to the alienator, or the decree, which is sought to be, declared null and void. The case dealt with in AIR 1936 Lah 166 seems to have been of this description. The case of an alienation by a mutwalli of waif property would also ap pear to stand on a similar footing. In the case of waif property, it is only the trustee or the mutwalli who can alienate the property. If he makes an alienation it is binding on all concerned, until and unless it is set aside. If therefore a person sues to get such an alienation declared null and void, lie can only do so by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include a consequential relief. " The decision of the Lahore High Court in Prithvi Raj vs D. C. Ralli (1) is exactly in point. It was held that in a suit by the son for a declaration that the mortgage decree obtained against his father was not binding upon him it is essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court fee under section 7(iv)(c). It was pointed out that a decree against the father is a good decree against the, son and unless the decree is set aside it would remain executable against the son, and it was essential for the, son to ask for setting aside the decree. In Finayakrao vs Mankunwarbai(2) it was held that in a suit by the son for a declaration that decree against the father does not affect his interests in the family property, consequential relief is involved and ad valorem court fee would be necessary. We should now refer to certain decisions relied upon by the respondents. We do not consider that the decision of the learned Single Judge of the Madras High Court in Venkata Ramani vs Mravanaswami(3) lays down the correct law. It proceeds on the basis that (1) A.I.R. 1945 Lahore 13. (2) A.I.R. 1943 Nagpur 70.713. (3) A.I.R. 1925 327 the plaintiffs not being parties to the document they were not bound to get rid of it by having it actually cancelled, but it ignores the effect of Hindu Law in respect of a mortgage decree obtained against the father. As pointed out by the Lahore High Court, in such cases in suing for declaration that the decree is not binding on him the son is really asking for a cancellation of the decree. This aspect does not seem to have been taken into consideration by the learned Single Judge. The decision of a learned Single Judge of the Nagpur High Court in Pandurang Mangal vs Bhojalu Usanna(1) suffers from the same error. Though it refers to the decision of the Full Bench of the Lahore High Court as well as the same High, Court 's decision in Prithvi Raj vs D. C. Ralli(2) it does not seek to distinguish them for holding otherwise. The learned Judge gives no reason whether and if so why he dissents from the view taken in the latter case. This decision also suffers from the learned Judge 's misapprehension that there is a difference between a simple money decree and a mortgage decree. obtained against a Hindu father when it is questioned by the son and its view that in execution of a simple money decree the entire joint family property, inclusive of the interest of the sons, is liable to be sold in execution of the decree, but that in the case of a mortgage decree it is not necessary for a son to allege or prove that the debt was incurred for an illegal or an immoral purpose and he can succeed if it is proved that the mortgage was not for legal necessity or for the payment of antecedent debt. We have already referred to the decision of the Court on this point. We must also hold in view of the reasons already set forth that the decision of the Allahabad High Court in Ishwar Dayal vs Amba Prasad (3) is not a good law. As regards the decision of the Full Bench of the Allahabad High Court in Bishan Sarup vs Musa Mal(4) there is nothing to show whether the alienation was made by the manager of a joint Hindu family and therefore the decision is not in point. We, therefore, hold that the decision of the High Court was not correct and allow this appeal with costs. The plaintiffs would be given a month 's time for paying the necessary court fee. Appeal allowed. (1) A.I.R. 1949 Nagpur 37. (2) A.T.R. 1945 Lahore 13. (3) A.T. R. 1935 Allahabad 667. (4) A.I.R. 1935 Allahabad.

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

establishment of the Judge of Small Causes Court, Delhi, the name of Respondent No. 1 appears at Serial No. 9 whereas that of the appellant appears at Serial No. 19. Both of hem satisfy the test of integrity. The only claim the appellant can have 135 is on the principle of rotation as he is a graduate. As that principle does apply to an appointment by promotion to the post in question, the claim of the appellant cannot be upheld. [140F G] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 592 of 1982. From the Judgment and Order dated 7.8.198 1 of the Delhi High Court in Civil Writ Petition No. 1003 of 1974. Prithvi Raj and T.C. Sharma for the Appellant. Dr. Arun Kumar and V.B. Saharya for the Respondents. The Judgment of the Court was delivered by KANIA, J. On the retirement of one Jagan Nath Kohli, who was holding the post of Clerk of Court (Upper Division Clerk) in the grade of Rs. 130 300 (old Scale Rs.75 5 125), one post of Upper Division Clerk (U.D.C.)/English Clerk fell vacant in the office of the Judge, Small Causes Court, Delhi. Five officials of that court, namely, the appellant and respondents nos. 1, 5, 6 & 7 asserted their claim to the said post. The appellant, Chander Bhan, made his claim on the footing that he was a graduate and on the basis of the rule of rotation as embodied in Rule VI in Chapter XVIII A of the High Court Rules and Orders, Volume I referred to more particularly hereinafter. Respondent No. 1, Hotilal Gupta, claimed the said post on the basis of his seniority. We are not concerned with the claims of the other claimants because the contest before us is between the claims of the appellant and respondent No. 1. The Judge, Small Causes Court in his order dated August 10, 1971, took the view that the appellant who is a graduate and has got 2 1/2 years office experience as Lower Division Clerk (L.D.C.), was an honest and efficient worker and was entitled to promotion in preference to respondent No. 1 because of the rule of rota tion. The aggrieved parties filed an Administrative Appeal before the District & Sessions Judge, Delhi who passed his order dated July 17, 1973 and held that the rule of rotation did not apply to the establishment of the Judge, Small Causes Court. He held that respondent No. 1 being the senior most official as Lower Division Clerk was entitled to the post of Upper Division Clerk and accordingly appointed respondent No. 1 as Upper Division Clerk against the said vacancy. Being aggrieved, the appellant filed a departmental appeal against the said order to the High Court of Delhi which was heard by a learned 136 Judge on the Administrative Side of that Court who, by his order dated August 7. 1974. accepted the appeal of the appellant and set aside the appointment of respondent No. 1. He took the view that promotion in the office of the Judge, Small Causes Court, Delhi could only be made by the District and Sessions Judge, Delhi and that the vacancy should be filled in accordance with rule VI of the Rules framed by the erstwhile Punjab High Court, under section 35(3) of the punjab Courts Act, 1918, for subordinate services attached to Civil Courts other than the High Court (hereinafter referred to as 'the said rules '). Respondent No. 1, Hotilal Gupta challenged the correct ness of the view taken by the learned Judge on the Adminis trative side by filing a writ petition being C.W. No. 1003 of 1974 in the Delhi High Court. By an order dated 7th August, 198 1, the Division Bench of the Delhi High Court allowed the said writ petition, quashed the order dated 7th August, 1974, passed by the learned Single Judge and upheld the order of the District and Sessions Judge, Delhi appoint ing respondent No. 1 to the said post. The Division Bench took the view that not only the initial appointments but also the appointments by promotion to the post of Upper Division Clerk in the office of the Judge, Small Causes Court were to be made by the Judge, Small Causes Court and not by the District and Sessions Judge, and held that the rule of rotation on the basis of which the appellant had been appointed to the said post by the order of the Single Judge on the Administrative Side was not applicable to the said appointment. It is submitted by learned counsel for the appellant that the Division Bench of the High Court was in error in coming to the said conclusion. It was submitted by him that although the first appointment to the post of Upper Division Clerk in the office of the Judge, Small Causes Court, Delhi is to be made by a Judge of Small Causes Court, promotion to that post could only be made by the District & Sessions Judge and the rule of rotation contained in the first proviso to Rule VI of the said Rules was applicable to the appointment by promotion. order to consider the merit of the submission of learned counsel for the appellant, it is necessary to bear in mind the relevant provisions of law. The relevant portion of section 35 of the Punjab Courts Act. 191S reads as follows: "(1) The ministerial officers of the District Courts and 137 Courts of Small Causes shall be appointed and may be sus pended or removed by the Judges of those Courts respective ly. (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Every appointment under this section shall be subject to such rules as the High Court may prescribed in this behalf, and in dealing with any matter under this section, a Judge of a Court of Small Causes shall act subject to the control of the District Court. " The rules for subordinate services attached to Civil Courts other than the High Court were framed by the erst while Punjab High Court under section 35(4) of the Punjab Courts Act. A perusal of Rule II of the said Rules dealing with classification, shows inter alia that Clerks of Court to Senior Subordinate Judges and Judges of Courts of Small Causes and English and Vernacular Clerks form a joint cadre. Subrule (b) of Rule II of the said Rules inter alia provides that there shall be a separate cadre for each Revenue Dis trict and a separate cadre for each Court of Small Causes. Rule III deals with qualifications and sub rule (2) of that Rule provides that no person shall be appointed to, or accepted as a candidate for, any clerical ministerial post, unless he has passed the Matriculation Examination of the Punjab University or an equivalent examination. The material part of Rule 'IV runs as follows: "IV. First appointments. First appointment shall be made as follows: (1) By the District Judge: (a) Ministerial officers in his own court and in all courts controlled by the District Court other than Courts of Small Causes; . (b) x x x (2) x x x (3) By the Judge of a Court of Small Causes: Ministerial Officers and menials in his own Court." . 138 Rule V deals with appointment and sub rule (1) of that Rule thereof runs as follows: "(1) Appointment to ministerial posts shall ordi narily be made either by open competition or by selection from a list of qualified candidates or apprentices accept ed by the District Judge. Judge of a Small Causes Court,. or Sub Judge to whom powers of appointment have been delegat ed, as the case may be. Any departure from either of these methods should be reported to the High Court for confirma tion." Rule VI. which is of central importance in this appeal runs as follows: "VI. Promotion (1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades, provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted, for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer, for which special qualifications are needed; but preference should be given to officers with such qualifications who are already working in the lower grades: Provided that permanent vacancies in the 75 5 125 grade shall be filled by the District and Sessions Judges in the following rotation: (i) By selection on merit out of graduates who have at least two years ' experience in the work of the office, if there is no suitable graduate who fulfils this condition an 'outsider ' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District and Sessions Judge. (ii) & (iii) By normal promotion in the office, i.e. the appointment of the next senior man whether graduate or non graduate subject to his fitness: Provided further that the rotation may be modified in 139 very exceptional cases when the direct appointment of a graduate would mean the ousting of a man who had been officiating quasi permanently in the post concerned for an appreciable period. What is an appreciable period will depend on the circumstances of each case. After such a modification. the rotation should be restored as soon as possible. (2) In making promotions preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity. Effi ciency without honesty is not to be regarded as constitut ing a claim to promotion. ' A Notification dated October 28, 1953 was issued in exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of the Notifica tion issued earlier on February 17, 1941. The said Notifica tion sets out that subject to such general rules as may be made by the Hon 'ble Judges of the Punjab High Court in that behalf appointments to the posts on the establishment of the Civil Courts at Delhi specified in Column (1) of the Sched ule thereto shall be made by the Authority specified in the corresponding entry in Column (2) of the said Schedule. A perusal of the Schedule shows that appointments to the posts on establishments other than process serving and menial establishments in the Small Causes Court at Delhi are ' to be made by the Judge, Small Causes Court, Delhi. It has been pointed out in the impugned judgment that the establishment of the District and Sessions Court and that of the Court of the Small Causes constitute separate cadres. This is not disputed before us. Hence, whenever a specific mention is made regarding a particular officer of an estab lishment in a rule, that particular rule would normally apply to that establishment alone and the powers conferred by that rule would be conferred on the officer mentioned in the rule. Rule VI(1) speaks of appointments to the higher grades of the ministerial establishments and states that these appointments should ordinarily be made by seniority from lower grades provided that the official to be promoted possess the qualifications prescribed. The first proviso to that rule goes on to say that the permanent vacancies in the original grade of Rs.75 5 125 shall be filled in by the District and Sessions Court by rotation as set out in the said sub rule (1) of Rule VI. The first part of Rule VI deals with appointments by promotion to the higher grade of ministerial establishment. Generally it must be 140 held applicable to the establishment of the District and Sessions Court as well as that of the Judge of the Small Causes Court. This rule, however, does not deal specifically with the question as to who is the officer competent to promote. In view of this, the proviso can only be construed as laying down that, where the power of appointment by promotion is vested in the District and Sessions Judge, in making appointments by promotion to fill in.the permanent vacancies in the said original grade of Rs.75 5 124, rule of rotation set out in the first proviso to clause (1) of Rule VI should ordinarily be followed. It is not disputed that there is a separate Cadre for the Court of Small Causes. Rule IV(3) shows that the first appointment of the ministe rial officers in the Court of Small Cause is to be made by the Judge of the Small Causes Court. The notification dated October 28, 1953 referred to earlier provides that the appointments to the posts on establishment other than proc ess serving and menial in the Court of Small Causes are to be made by the Judge, SmaLl Causes Court, Delhi. A reading of sub section (1) of the Punjab Courts Act and the rules and Notification discussed earlier makes it clear that appointments by promotion to the posts in the entire ministerial cadre other than in the process serving and menial establishments in the Court of Small Causes have to be made by the Judge, Court of Small Causes and the first proviso to Rule VI(1) prescribing the rule of rotation has no application to such appointments. Moreover, it would be unreasonable to apply the principle of rotation to the Court of Small Causes where there is only one U.D.C. The principle of rotation can be made applicable to the District & Ses sions Court because there are a number of posts of Upper Division Clerks. It would be irrational to apply that prin ciple of rotation to the Court of Small Causes in which there is only one Upper Division Clerk/English Clerk. In the seniority list of the establishment of the Judge of Small Causes Court, Delhi, the name of respondent No. 1 appears at Serial No. 9 whereas that of the appellant ap pears at Serial No. 19. Both of them satisfy the test of integrity. The only claim the appellant can have is on the principle of rotation as he is a graduate. As that principle does not apply to an appointment by promotion to the post in question, the claim of the appellant cannot be upheld. As we have already observed, none of the other respondents have pressed their claims in the High Court or here. In the result, the appeal fails and is dismissed. Looking to the facts and circumstances of the case there will be no order as to costs.

One post of Upper Division Clerk/English Clerk fell vacant in the Small Causes Court. Appellant made his claim to the post on the footing that he was a graduate and on the basis of Rule of Rotation embodied in Rule VI of the High Court Rules and Orders, Volume 1, Respondent No. 1 made his claim on the basis of seniority. The Judge, Small Causes Court took the view that the appellant was entitled to promotion in preference to Respondent No. 1 because of the rule of rotation. On an Administrative Appeal, the District applicable to the establishment of Judge, Small Causes Court, and appointed Respondent No. 1 as Upper Division Clerk. The Appellant preferred a departmental appeal which was heard by a Single Judge on the Administrative side of the High Court. He took the view that the promotion in question could be made by the District & Sessions Judge, and should be in accordance with the rule of rotation. Respondent No. 1 challenged the said decision by way of a Writ Petition. The High Court allowed the Writ Petition and held that not only initial appointments but also ap pointments by promotion were to be made by the Judge, Small Causes Court and not by the District & Sessions Judge, and that the rule of rotation was not applicable. Against the High Court 's decision, the appellant has preferred this appeal contending that the promotion in question could only be made by the District & Sessions Judge and that the rule of rotation was applicable even to the appointment by promotion. Dismissing the appeal, this Court, HELD: 1. Whenever a specific mention is made regarding a 134 particular officer of an establishment in a rule, that particular rule would normally apply to that establishment alone and the powers conferred by that rule would be con ferred on the officer mentioned in the rule. Rule VI(1) of the High Court Rules speaks of appointments to the higher grades of the ministerial establishments and states that these appointments should ordinarily be made by seniority from lower grades provided that the officer to be promoted possesses the qualifications prescribed. The first proviso to that rule goes on to say that the permanent vacancies in the original grade of Rs.75 5 125 shall be filled in by the District & Sessions Court by rotation as set out in the said sub rule (1) of Rule VI. The 1st part of Rule VI deals with appointments by promotion to the higher grade of ministerial establishment. Generally it must be held applicable to the establishment of the District & Sessions Court as well as that of the Judge, Small Causes Court. This part, however, does not deal specifically with the question as to who is the officer competent to promote. In view of this, the proviso can only be construed as laying down that, where the power of appointment by promotion is vested in the District & Sessions Judge, in making appointments by promotion to fill in the permanent vacancies in the said original grade of Rs.75 5 125, rule of rotation set out in the first provi so to clause (I) of Rule VI should ordinarily be followed. It is not disputed that there is a separate Cadre for the Court of Small Causes. Rule IV(3) shows that the first appointment of the ministerial officers in the Court of Small Causes is to be made by the Judge of the Small Causes Court. [139F H; 140A C] 2. A reading of sub section (1) of the Punjab Courts Act, 1918 the High Court Rules, and Notification issued makes it clear that appointments by promotion to the posts in the entire ministerial cadre other than those in the process serving and mental establishments in the Court of Small Causes have to be made by the Judge, Court of Small Causes and the first proviso to Rule VI(1) prescribing the rule of rotation has no application to such appointments. Moreover, it would be unreasonable to apply the principle of rotation to the Court of Small Causes where there is only one U.D.C. The principle of rotation can be made applicable to the District & Sessions Court because there are a number of posts of Upper Division Clerks. It would be irrational to apply that principle of rotation to the Court of Small Causes in which there is only one Upper Division Clerk/English Clerk. [140D E]

Civil Appeal No. 916 of 1992. From the Judgment and Order dated 18.6.1991 of the Bombay High Court in W.P.N. 1914 of 1991. Harish N. Salve, Rajiv K. Garg and N.D. Garg for the Appellant. K.T.S. Tulsi, Addl. Solicitor General, A. Subba Rao, P. Parmeswaran and A.D.N. Rao for the Respondents. The Judgment of the Court was delivered by 999 KASLIWAL, J. Special leave granted. This appeal has been filed against the judgment of the Bombay High Court dated 18.6.1991. The short controversy raised in the present case is whether the cloves imported by the appellant fall within Item 169 in List 8 of appendix 6 or fall within Paragraph 167 of Chapter XIII of the Import and Export Policy April 1990 March 1993. Brief facts of the case are that the appellant obtained by transfer an Import Lincence No. 3412179 dated 29th November, 1990 for Rs. 16,10,700 for the import of admissible Items as per Para 220 (2) (3) (4) & (6) of the Import Policy 1990 93 Vol. After acquisition of the aforesaid additional licence, the appellant placed an order for the supply of about 200 bags of Madagascar cloves No. 1 quality to a firm of Singapore. The appellant opened a letter of credit dated 6.5.1991 in favour of the foreign supplier. On receipt of the letter of credit the foreign supplier shipped the above mentioned goods in favour of the appellant. On arrival of the goods at Bombay Port, (e) appellant filed Bill of Entry for the clearance of the goods for home consumption on 30th May, 1991. The appellant claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy being "Drugs/Drug intermediate not elsewhere specified. " The Department relied on Para 167 which dealt with the import of spices and took the stand that the cloves could be imported only against specific licence relating to cloves. The appellant in the above circumstances filed a Writ Petition in the High Court of Bombay seeking a mandamus against the respondent to clear the goods against the Bill of Entry filed by the appellant. The High Court held that th cloves cannot fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible. It was thus held that the action of the Customs Authorities in not permitting clearance cannot be faulted and the licence relied upon by the appellant was not valid for the import of cloves. It was contended by Mr. Harish Salve, Learned Counsel for the appellant that though the use of clove as a spice is not in much dispute, but at the same time it cannot be disputed that clove is a Drug/Drug intermediate. It was submitted that in popular sense and trade parlance, clove is also used as drug intermediate and that being so the appellant was 1000 entitled to import the cloves against the additional licence under para 220 of the Policy. It was also submitted that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drugs. It was thus submitted that when clove was considered as crude drugs, there was no justification now to hold that it did not fall within Item 169 which provided for Drug/Drug intermediates. It was further argued that cloves are used for treatment of dyspepsia and flatulence. It is also used to relieve nausea and vomiting. Clove oil is famous for medicinal use and specially for tooth problems. It was also argued that in the Indian Materia Medica by A.K. Nadkarni the use of the cloves has been stated as follows : "Uses Cloves(unopened flower buds) are generally used as spice in curry foods and condiments. Medicinally they are used to correct griping caused by purgatives, relieve flatulence, various forms of gastric irritability, colic, dyspepsia, and to increase the flow of saliva. Combined with other spices and rock salt clove is given to relieve colic, indigestion and vomiting and to many other uses. " It was submitted that in the Indian Pharmaceutical Codex issued by the Counsel of Scientific & Industrial Research, New Delhi the Action and Uses of cloves have been stated as under : "Action and Uses Clove is one of the most stimulant of aromatics. It is carminative and is used in treatment of flatulence and dyspepsia. It is sometimes administered in the form of powder or an infusion to relieve nausea and vomiting, correct flatulence and excite languid digestion. " It was thus argued that the High Court committed an error in holding that clove was not a Drug/Drug intermediate. On the other hand, it was submitted by Mr. Tulsi, Learned Additional Solicitor General that Para 167 of the Policy clearly provided that import of cloves could be allowed only against licences and there was no question of applying Item 169 of List 8 Appendix 6 which provided for Drugs/Drug intermediate not elsewhere specified. It was also submitted that in the common parlance as well as in trade and commerce, the cloves are always considered as spice and not as a drug or drug intermediate. It was submitted that the cloves are sold as spice in a `Kirana ' shop and not as drug in a chemist shop. 1001 In order to appreciate the controversy raised before us it would be necessary to reproduce Para 167 contained in Chapter XIII and Item 169 appearing in Part I of List 8, Appendix 6 of the Import & Export Policy, 1991 93 Vol. I: "Import of Spices: 167. (1) Import of (1) Cloves (2) Cinnamon/Cassia (3) Nutmeg and (4) Mace will be allowed against licences. Such licences may be granted to those who imported these items during any of the financial years from 1983 84 to the preceding licensing year. Import licences will be issued on the basis of the best year 's imports of an item from 1983 84 to the proceding licensing year. The percentage entitlement as well as minimum value of licence will be as notified by the Chief Controller of Imports & Exports. From the licensing year 1991 92, applicants will be required to furnish evidence of exports of Indian spices, during the preceding licensing year, for a value equal to the value of the import licence granted during the preceding licensing year. Only exports of (1) Cardamom (small), (2) all Spices/spice products in approved consumer packs of 450 gms. or less except spice oils and oleoresins and saffron (3) Herbal spices such as rosemary, thyme, terragon, sage, etc. (4) Vanila (5) Black cumin, (6) Star anise, (7) Kokum, (8) Garlic, (9) Cardamom (large), (10) Bishopsweed, (11) Caraway and (12) Cumin seed, will be taken into account for the above purpose. Items may be added or deleted by the Chief Controller of Imports & Exports as and when considered necessary in public interest. (2) Exports referred to in sub paragraph (1) above should be direct exports by the applicant in his own name with the export proceeds i.e. the foreign exchange realisation in his own name, or exports through the Consortium of Spices Exporters, membership of which is to be confined only to dealers of spices who want to avail of the facility for exports through the Consortium. Documents required to be furnished alongwith the application for grant of licences for spices shall be as provided in sub paragraph 166(6) above. (3) Actual users who have no past imports will also be eligible 1002 for licence on the recommendation of the sponsoring authority and approval by the Headquarters Supplementary Licensing Committee. (4) Applications for import of spices are to be made to the licensing authority concerned. " Item 169 in Part I of List 8, Appendix 6 : "Drugs/Drug intermediates not elsewhere specified. " In the present case we are concerned with the Import Policy of 1990 93 and not any earlier Policy. The appellant had obtained the licence on 29th November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question shall be governed by the provisions contained in the Import Policy of April 1990 93, and not by any meaning given to cloves in any earlier Policy. It cannot be disputed that the Government has power to modify or change its Import and Export Policy. Para 167 under Chapter XIII of the present Policy clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences. Thus, it is clear beyond any doubt that cloves have been included under the heading spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167. In face of the above provision dealing with the import of spices which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied. When Para 167 provides for obtaining specific licence for cloves, there is no necessity of finding its meaning from Policies or its use as medicine. As regards import of spices, there is a clear provision under Para 167 and it would govern the import of cloves. That part we are in agreement with the view taken by the High Court that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug. It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist. Thus, we find no error in the view taken by the High Court and this appeal having no force is dismissed with no order as to costs. N.P.V. Appeal dismissed.

The appellant obtained, by transfer, an Import Licence for the import of admissible Items as per Para 220 (2), (3), (4) and (6) of the Import Policy 1990 93 Vol. I and placed an order on a foreign firm for the supply of cloves No. 1 quality. On arrival of the goods in the Indian Port, the appellant filed Bill of Entry for the clearance of the goods for home consumption, and claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy, being Drugs/Drug intermediate not elsewhere specified. " The Department relying on Para 167, which dealt with the import of spices, took the view that the cloves could be imported only against specific licence relating to cloves. Hence the appellant filed a writ petition in the High Court for a direction to the respondent to clear the goods against the Bill of Entry filed by the appellant. The High Court held that cloves could not fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible, and that the licence relied upon by the appellant was not valid for the import of cloves. In the appeal before this Court, it was contended on behalf of the appellant importer that in popular sense and trade parlance, clove was also used as drug intermediate, and that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drug and the cloves and clove oil were used for treatment of dyspepsia, flatulence, etc., and tooth problems and, therefore, the High Court committed an error in holding that clove 998 was not a Drug/Drug intermediate, and that it did not fall within Item 169. Dismissing the appeal of the Importer, this Court, HELD : 1.1 Para 167 under Chapter XIII of the Import Policy of April 1990 93 clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of Cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences. Thus, it is clear beyond any doubt that cloves have been included under the heading Spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167. In the face of this provision, dealing with the import of spices, which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied. [1002D E] 1.2 In the instant case the appellant had obtained the licence in November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question, shall be governed by the provisions contained in the Import Policy of April, 1990 93, and not by any meaning given to cloves in any earlier Policy. Therefore, when para 167 provides of obtaining specific licence for cloves, there is no necessity of finding its meaning from earlier Policies or its use as medicine. There is a clear provision under Para 167 as regards import of spices and it would govern the import of cloves. That apart, the High Court was right in holding that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug. It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist. [1002C, F G]

Appeal No. 419 of 1956. Appeal by special leave from the decision dated January 17, 1955, of the Labour Appellate Tribunal, of India, Bombay, in Appeal (Bom.) No. 61 of 1954. N.C. Chatterjee, D. H. Buch and I. N Shroff, for the appellants. R. J. Kolah, B. Narayanaswami, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents. March 10. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is an appeal with the special leave of this Court against a decision dated January 17,1955, of the Labour Appellate Tribunal (hereinafter called the Appellate Tribunal) by which it reversed a decision of the Industrial Court, Bombay, dated January 20, 1954, in a matter referred to the Industrial Court under section 73 of the Bombay Industrial Relations Act, 1946, by the Government of Bombay. The appellant is the Rashtriya Mill Mazdoor Sangh, representing the employees of the cotton textile mills in the city of Greater Bombay. The respondents are the Apollo Mills, Ltd., and other companies owning cotton textile mills specified in the annexure to the Special Leave Petition and the Mill Owners ' Association, Bombay, representing the cotton textile mill industry. The dispute relates to the compensation which the workers claimed for loss of wages and dearness allowances due to the short working or closure of the Textile Mills on certain days during the period between November 1, 195 1, and July 13, 1952. The facts of the case are as follows: In the year 1951 monsoon failed, and caused scarcity of water in the catchment area of the Tata Hydro Electric system, from which the Mills obtained their supply of power. It was, therefore, found necessary to reduce the consumption of electricity, and Government, after consulting the various Mills and also the appellant Sangh, decided that the Mills should work, instead of 233 48 hours, for 40 hours per week during a period of 30 weeks from November 1, 1951. It was also agreed that if the Mills could reduce their consumption of electricity to 5/6th of their normal consumption, then they could work for 48 hours per week as before. Some of the Mills installed their own generators, but many others were compelled to reduce the working time to 40 hours in a week, working at 8 hours per day. As a result, the working of some of the Mills was reduced by one day in the week, and the Mills lost a maximum number of 38 days, some more and some less. One of the Mills (the Ragbuvanshi Mills) remained closed only on one day. The order of the Bombay Government was made under section 6A(1) of the Bombay Electricity (Special Powers) Act, 1946. While this short working continued, the workers claimed their wages and dearness allowances or compensation in lieu thereof. Negotiations followed, but when they did not result in anything to the advantage of the workers, the matter was referred for arbitration to the Industrial Court by the Bombay Government on October 30, 1952, under section 73 of the Bombay Industrial Relations Act, 1946. The Mills raised the objection that the matter was covered by Standing Orders 16 and 17, and inasmuch as the partial closure of the Mills was due to force majeure, they were not liable. They contended that the Industrial Court had thus no jurisdiction, as these Standing Orders were determinative of the relations between the workmen and their employers under section 40(1) of the Bombay Industrial Relations Act, 1946. They also submitted that the orders of the Government issued under the Bombay Electricity (Special Powers) Act, 1946, had to be obeyed and therefore no compensation was payable. They pointed out that the employees were receiving fair wages, and that the Mills were not in a position to bear an additional burden, in view of the fact that they had lost their profits due to short working. They relied upon the decision of the Bombay High Court in Digambar Ramachandra vs Khandesh Mills (1), where it was held that though an arbitrator to whom a dispute (1) 30 234 falling under B. 49A of the Bombay Industrial Disputes Act, 1938, was referred had jurisdiction to decide the disputes within the terms of the Standing Orders framed under section 26 of that Act, he had no jurisdiction to determine the liability of the employers on grounds outside the Standing Orders. The Industrial Court, after hearing the parties, made an award on January 20, 1954, and directed all the respondent Mills to pay to the employees compensation, holding that Standing Orders 16 and 17 were not applicable, and were, therefore, no bar. The Industrial Court held that in view of the provisions of sections 3, 40(2), 42(4), 73 and 78 of the Bombay Industrial Relations Act read with Sch. 111, item 7, and having regard to the decision of the Federal Court in Western India Automobile Association v Industrial Tribunal, Bombay (1), it had jurisdiction to grant compensation. The Industrial Court, therefore, held that on principles of social justice the workers were entitled to compensation, which it assessed at the rate of 50 per cent. of the wages and dearness allowances which the workers would have drawn, if the Mills had worked on the days they remained closed. Against that award, the Mill Owners ' Association and two of the Mills appealed to the Appellate Tribunal, Bombay. All the contentions which were raised before the industrial Court were once again raised before the Appellate Tribunal. Two new contentions were raised, viz., that the claim for compensation was barred under section 1 1 of the Bombay Electricity (Special Powers) Act, 1946, and was also barred by the decision of the Supreme Court in the Muir Mills Co., Ltd. vs Suti Mills Mazdoor Union, Kanpur (2). The Appellate Tribunal by its decision now impugned before us, allowed the appeal, and set aside the award of the Industrial Court, and dismissed the claim of the employees. It held that even if Standing Orders 16 and 17 covered the case, the decision in Digambar Ramachandra 's case (1) could not now be applied because of the provisions of section 40(2) and the addition of Sch. 111, item 7 in the Bombay Industrial Relations Act, which provisions did not find place in the Bombay (1) (2) ; (3) 235 Industrial Disputes Act, 1938, under which the decision of the Bombay High Court was given. The Appellate Tribunal referred to the Federal Court decision cited earlier, and observed that there was no doubt that the award of compensation to workmen equal to half of their wages and dearness allowances was fair and just. The Tribunal, however, felt compelled by the decision of this Court in the Muir Mills case (1) to reject the claim of the workers, and allowed the appeal. In this view of the matter, the Appellate Tribunal did not decide whether section II of the Bombay Electricity (Special Powers) Act, 1946, barred the grant of compensation. The appellant in this case first contended that the Muir Mills case (1) did not apply, and further that if that case was out of the way, then in view of the other findings of the Appellate Tribunal and section 7 of the Industrial Disputes (Appellate Tribunal) Act, 1950, the appeal ought to have failed, since no question of law survived and the Appellate Tribunal was incompetent to reverse the decision. The Mill Owners ' Association, on the other hand" contended that the opinion of the Appellate Tribunal that the Muir Mills case (1) applied, was correct, that section II of the Bombay Electricity (Special Powers) Act barred these proceedings, and that, in view of the fact that the closure was due to force majeure for which the Milks were not responsible, Standing Orders 16 and 17 were determinative of the relations between the parties and the claim for compensation was not entertainable. Other objections raised before the Appellate Tribunal were not pressed before us. We begin first with the question whether section 11 of the Bombay Electricity (Special Powers) Act, 1946 barred the reference. That section reads as follows: " 11 (1). No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order, direction or requirement made or deemed to have been made under section 3, 4, 5, 6, 6A, 6B or 6C." (1) ; 236 The order which was made in this case by the Government of Bombay was under sub section (1) of section 6A, which reads: " 6A(1). Notwithstanding anything contained in any law for the time being in force, or any permission granted under sub section (3) of section 5 or any instrument having effect by virtue of any law, the Provincial Government may with a view to controlling distribution, supply, consumption or use of electrical energy make an order (a)for prohibiting or regulating subject to such conditions as it may specify in the, order, the distribution or supply of electrical energy by a licensee or use of such energy by a consumer for any purpose specified in such order; (b) for determining the order of priority in which,or the period or periods during which, work shall be done by an undertaking to which the supply of electrical energy is made by a licensee. " It was contended by the respondents that sub section (1) of section 11 quoted above barred the remedy of arbitration, because the closure of the Mills was in good faith, and was in pursuance of a direction or order made under section 6A(1). Mr. Kolah referred to the scheme of the Bombay Electricity (Special Powers) Act, and specially to the sections dealing with penalties and offenses and contended that the Mills were helpless and were compelled to close down their esta blishments for part of the time. He claimed that the protection of section 11(1) was available ' to them., and argued that it gave immunity from action of any kind. The present proceedings are for compensation for, the period during which the Mills remained closed. This claim is made by the workers against the Mills. The section which confers immunity bars proceedings &rising from the interference with the supply of electrical energy and its consumption. It is a protection to the supplier of electrical energy against the consumer and vice versa, and protects also those who act to enforce the order. There is no complaint here about the reduction of electricity or even about the closure of the Mills for part of the time. Neither the 237 Mills nor the workers have raised any such contention. Further, the sub section is a protection clause which is usually introduced in an Act, where it gives new or unusual powers, and is designed to give immunity to persons acting under or enforcing it. The ambit of the protection is in relation to the supply and consumption of electricity which alone are curtailed by the order issued under section 6A(1) of the Act. The protection conferred by the first subsection of section 11 does not, therefore, prevent the raising of an industrial dispute resulting in an award for the equitable sharing of loss which had been occasioned to. , both the employers and the employees by the observance of the order. The contention that the Industrial Court had no jurisdiction to hear the reference because the State Government could not make it, was not pressed by the respondents, and nothing need, therefore, be said about it. It was raised in another form, as will appear in the sequel. Both the parties, however, criticised the order of the Appellate Tribunal, the respondents challenging the findings adverse to them. It is now necessary to deal with these contentions. The case of the appellant was that the Appellate Tribunal had no jurisdiction to interfere with the order of the Industrial Court, because the appeal before it did not involve a ',.Substantial question of law and did not fall within any of the eight matters mentioned in section 7(1)(b) of the Industrial Disputes (Appellate Tribunal) Act, 1950, which gave appellate jurisdiction to the Appellate Tribunal. The appellant referred to cases in which it has been held that the Appellate Tribunal could not interfere on facts. It is not necessary to analyse those cases for reasons which we proceed to state. The Industrial Disputes (Appellate Tribunal) Act conferred appellate powers on the Appellate Tribunal, if there was a substantial question of law arising from the award, or the matter fell within eight enumerated subjects. The respondents attempted to bring the matter within cl. (1) of section 7(1)(b) that is to say ' " wages ", which is one of the eight subjects. But there is no question here of wages as such but of 238 compensation. Learned counsel for the respondents also argued that a conclusion drawn without adverting to the evidence involved a question of law and a legal inference from proved facts and an appeal thus lay. He relied upon Anglo Iranian Oil Co. (India) Ltd. vs Petroleum Workers ' Union (1) and Crompton Parkinson (Works) vs Its Workmen (2). It may not be necessary to discuss the matter at length, because even if the subject matter did not fall within any of the eight enumerated topics, there was a substantial question of law involved, inasmuch as it was necessary to decide whether a claim for compensation was not admissible in view of the provisions of the Bombay Industrial Relations Act and the Standing Orders. It has been pointed out already that the failure to continue to employ labour was due to the short supply of electrical energy, and the question is whether in these admitted circumstances, Standing Orders 16 and 17 read with section 40(1) and item 9 of Sch. 1 of the Bombay Industrial Relations Act rendered the employers immune from a claim for compensation for loss of wages and dearness allowances. The respondents claimed that they did, while the appellant maintained that they did not, and referred to sections 40(2), 42(4), 73 and 78(1)(A) and item 7 of Sch. III of the same Act. This is a substantial question of law, and the appeal was thus competent. The crux of the matter is the provisions of Standing Orders 16 and 17, which are to be read with section 40(1) of the Bombay Industrial Relations Act. Standing Orders 16 and 17 read as follows 16.The Company may, at any time or times, in the event of a fire, catastrophe, breakdown of machinery or stoppage of the power supply, epidemic, civil commotion or other cause, beyond the control of the Company, stop any machine or machines or department or departments, wholly or partially for any period or periods, without notice and without compensation in lieu of notice. In the event of a stoppage of any machine or department under this Order during working hours, the operatives affected shall be notified by notices (1) (2) [1959] SUPP. 2 S.C.R. 936. 239 put upon notice boards in the department concerned and at the time keeper 's office, as soon as practicable, when work will be resumed and whether they are to remain or leave the mill. The period of detention in the mill shall not ordinarily exceed one hour after the commencement of the stoppage. If the period of detention does not exceed one hour, operatives so detained shall not be paid for the period of detention. If the period of detention in the mill exceeds one hour, operatives so detained shall be entitled to receive wages for the whole of the time during which they are detained in the mill as a result of the stoppage. In the case of pieceworkers, the average daily earnings for the previous month shall be taken to be the daily wages. 17.Any operative played off Linder Order 16 shall not be considered as dismissed from service, but as temporarily unemployed, and shall not be entitled to wages during such unemployment except to the extent mentioned in Order 16. Whenever practicable a reasonable notice shall be given of resumption of normal work and all operatives playedoff under Order 16, who present themselves for work, when the normal working is resumed, shall have prior right of reinstatement. " The argument of the respondents was two fold: (1) that these two Standing Orders fully covered a closure due to stoppage of power, and (2) that under section 40(1) of the Bombay Industrial Relations Act, 1946, the Standing Orders were determinative of the relations between the employer and the employees in regard to all industrial matters specified in Sch. 1, which contains the following items : " 4. Closure or reopening of a department or a section of a department or the whole of the undertaking" and " 9. Temporary closures of work including playing off and rights and liabilities of employers and employees. . " They also invoked the decision in Digambar Ramachndra 's case (1), and added that the position had not been altered even by the addition of the second sub (1) 240 section to section 40 in the Bombay Industrial Relations Act. We may at this stage read section 40: " 40. (1) Standing orders in respect of an employer and his employees settled under this Chapter and in operation, or where there are no such standing orders, model standing orders, if any, applicable under the provisions of sub section (5) of section 35 shall be determinative of the relations between the employer and his employees in regard to all industrial matters specified in Schedule I. (2)Notwithstanding anything contained in subsection (1) the State Government may refer, or an employee or a representative union may apply in respect of any dispute of the nature referred to in clause (a) of paragraph A of section 78, to a Labour Court. " The respondents contended that only the first subsection applied, and that under Standing Orders 16 and 17 quoted above, no compensation was claimable. The appellant pointed out that the second sub section excluded the first sub section, because of the nonobstructive clause with which it is prefaced and in view of the position of the Industrial Court as the appellate authority from awards of the Labour Court, the former was not also bound by the first sub section or the Standing Orders. There is some force in the contention of the appellant, but, in our opinion, Standing Orders 16 and 17 do not, in terms, apply to a claim for compensation such as is made here. Standing Order 16 speaks of stoppage "without notice and without compensation in lieu of notice. " The compensation which is claimed by the workers in this case is not in lieu of notice, that is to say, for a period equal to that in respect of which notice would have had to be given. That period would be before the date of closure. The Standing Order contemplates those cases in which a notice has to be dispensed with and then no compensation in lieu of notice is payable. There is, however, here a question of quite a different sort, and it is not covered by Standing Order 16, even though the closure was by reason of stoppage of power. Standing Order 17 speaks of "wages", and 41 241 we are not concerned with wages here but with compensation which is not the same thing as wages. In this view of the matter, Standing Orders 16 and 17 cannot be said to cover the present facts, and they are not, therefore, determinative of the relations between the parties. The present dispute was referred to the Industrial Court under section 73(2) of the Bombay Industrial Relations Act, 1946. That section reads as follows:"Notwithstanding anything contained in this Act, the State Government may, at any time, refer an industrial dispute to the arbitration of the Industrial Court, if on a report made by the Labour Officer or otherwise it is satisfied that (2)the dispute is not likely to be settled by other means;". The non obstante clause clearly shows that in spite of the other provisions of the Bombay Industrial Relations Act, an industrial dispute may be referred to the Industrial Court. An industrial dispute as defined in that Act means inter alia any dispute or difference between an employer and employee or between employers and employees, which is connected with an industrial matter, which includes all matters pertaining to non employment of any person. That these workmen were not employed on certain days goes without saying, and thus, there was an industrial dispute concerning their claim for compensation for the period of non employment. Item 9 of Sch. 1 gave the power to frame Standing Orders in relation to temporary closures. The Standing Orders made covered only compensation in lieu of notice and wages for the period of closure, but not compensation for closure. In the view which we have taken of the Standing Orders, it is not necessary to decide whether item 7 of Sch. III relates only to compensation for permanent closure, or whether item 9 of Sch. 1 gave the power to make a Standing Order relating to compensation for temporary closure. It is enough to say that Standing Orders 16 and 17, as they stand, do not cover a case of compensation for closure. 242 The powers of the Industrial Court under section 73 of the Bombay Industrial Relations Act are very wide, inasmuch as the State Government can refer an industrial dispute to it, notwithstanding anything contained in the Act. It was in view of this that the objection to the jurisdiction of the Industrial Court was not pressed. But the argument was advanced in another form to show that Standing Orders 16 and 17 were determinative and did not enable the Industrial Court to decide in any manner except in accordance with those Standing Orders. Reliance was also placed upon Digambar Ramachandra 's case (1), where Chagla, C.J., and Bhagwati, J., decided that the arbitrator was bound by the Standing Orders and could not go outside them. We are of opinion that Standing Orders 16 and 17 do not apply to the present facts for reasons already stated, and we express our dissent from that decision in so far as it held that the Standing Orders covered a case of compensation for closure also. We note further that in the Bombay Industrial Disputes Act, 1938, there was no item similar to the one in Sch. III of the Bombay Industrial Relations Act. In Textile Labour Association, Ahmedabad vs Ahmedabad Millowners ' Association, Ahmedabad (2), Sir H. V. Divatia, Rajadhyaksha, J., and Mr. D. V. Vyas (later, Vyas, J.) correctly held that the Standing Orders did not cover a case of compensation for loss of earnings. The head note adequately summarises the decision, and may be quoted. It reads: " Although the workers are not entitled to demand their wages during the period of stoppage of work as that matter has been (sic) covered by the Standing Orders there is nothing to prevent them from giving any notice of change demanding compensation for the loss of their earnings. It cannot be said that the jurisdiction of the Court is barred by the provisions of Standing Orders Nos. 16 & 17.". No doubt, the reference there was under section 43 of the Bombay Industrial Disputes Act, 1938; but the provisions of section 73 of the Bombay Industrial Relations Act are wide enough to cover a reference on the same topic. We are, therefore, of opinion that the claim (1) (2) 1946 47 Industial Court Reporter 87. 243 for compensation was not barred by Standing Orders 16 and 17 read with a. 40(1) of the Bombay Industrial Relations Act. The respondents further contended that the principle of social justice applied by the Industrial Court and accepted by the Appellate Tribunal could not apply because of the decision of this Court in the Muir Mills case (1). They also contended that the case for bonus was decided along with the present case and both bonus and dearness allowances were increased by the Appellate Tribunal in respect of 38 Mills and even the remaining 15 Mills which had ,suffered loss had given minimum bonus to their workers. They argued that wages were fair and bonus was awarded and dearness allowance was increased, and that the Appellate Tribunal took all this into account in refusing compensation. They submitted that the Mills suffered heavy losses due to short working, and that it was sheer injustice to make them pay wages or compensation for days on which the Mills remined closed and lost their profits through stoppage of normal working. The Muir Mills case (1) was concerned with the award of bonus, which is linked with profits. It was there laid down that inasmuch as the labour employed in an industrial undertaking is ever changing, the award of bonus can only be from the profits to which labour in any particular year contributed and labour cannot claim that profits and reserves of some other years should be used for the purpose of giving them bonus. We are not concerned in this case with the award of bonus as such, and we need not, therefore, make use of the reasons which appealed to this Court in that case. The narrow sphere in which social justice demands that workmen going into forced unemployment should receive compensation is quite different. Social justice is not based on contractual relations and is not to be enforced on the principles of contract of service. It is something outside these principles, and is invoked to do justice without a contract to back it. Mahajan, J. (as he then was), observed in Western India Automobile Association vs Industrial Tribunal, Bombay (2) as follows: (1) ; (2) 244 " Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the Tribunal may contain provisions for settlement of a dispute which no Court could order if it was bound by ordinary law, but the Tribunal is not fettered in any way by these limitations. In Volume 1 of I Labour Disputes and Collective Bargaining ' by Ludwig Teller, it is said at page 536 that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of a, new obligation or modification of old ones, while commercial arbitration generally concerns itself with the interpretation of existing obligations and disputes relating to existing agreements. In our opinion, it is a true statement about the functions of an Industrial Tribunal in labour disputes. " Here, what better measure could have been adopted by the Industrial Court (which is approved by the Appellate Tribunal) than to divide the loss into two parts, one to be borne by the industrial concerns and the other by the workmen ? There is no other basis suggested by the one side or the other. It was contended that the loss to labour went into the consideration of the grant of bonus, and that the two cases were heard together. The Appellate Tribunal says so. But bonus is to come out of profits and is the share of labour in the profits it has helped to earn, to bridge the gap between wages as they are and the living wage. Compensation in the present context is for loss of wages and dearness allowance, and the two cannot be considered together on any principle. There is nothing to show that in spite of the formula which the Appellate Tribunal had evolved for itself, it took into account some other factors quite alien to the said formula. It appears to us that what the Appellate Tribunal really meant to say was that inasmuch as the workers were paid bonus they should not make a grievance if they lost wages on some of the days, because if compensation were paid bonus would have had to be reduced. If that is the meaning, as it obviously is, then the question of compensation was not decided at all. In our opinion, this reasoning was 245 beside the point. It was wholly immaterial whether profits were made or losses were incurred in the year, if the employers continued to retain the labour force so as to be available for the days on which the Mills worked. In our opinion, the Appellate Tribunal after giving a finding that a claim for compensation equal to half the wages and dearness allowances was just and proper, erred in holding that it was not admissible because of the decision of this Court in the Muir Mills case (1). That case had no application to the facts here. The Appellate Tribunal also erred in declining to grant compensation on the ground that since bonus was granted the claim for compensation could not be entertained. The case of badli workers does not appear to have been separately raised, and we see no reason not to award them compensation ; but payment of such compensation will be subject to the same condition, as was imposed by the Industrial Court. In the result, the appeal will be, allowed, the order of the Appellate Tribunal set aside and the order of the Industrial Court restored. The respondents shall bear the costs here and in the Tribunals below. Appeal allowed.

In 1951 on account of the failure of the monsoon, generation of electricity from the Hydro Electric System was affected and it was found necessary to reduce the consumption of electricity. The Government of Bombay passed an order under section 6A(1) of the Bombay Electricity (Special Powers) Act, 1946, regulating the use of electrical energy and the respondent Mills were compelled to reduce the working time. For the period during which the short working continued the workers claimed their wages and dearness allowances or compensation in lieu thereof. ' The Industrial Court to which the matter was referred for arbitration under section 73 Of the Bombay Industrial Relations Act, 1946, made an award directing all the respondent Mills to pay compensation to the employees. The Mills pleaded that no compensation was payable because (1) the closure of the Mills was in pursuance of the directions made by the Government under the Bombay Electricity (Special Powers) Act, 1946, and, therefore, section 11(1) of that Act barred the reference, (2) the Industrial Court had no jurisdiction to entertain the claim for compensation as the matter was covered by Standing Orders 16 and 17 which were determinative of the relations between the workmen and their employers under section 40(1) of the Bombay Industrial Relations Act, 1946, and (3) in any case, no compensation was payable in view of the decision in Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; Held, (1) that section 11 (1) of the Bombay Electricity (Special Powers) Act, 1946, barred only proceedings arising from the interference with the supply of electric energy and protected those who acted in pursuance of orders passed under that Act; the section did not prevent the raising of an industrial dispute. (2)that Standing Orders 16 and 17 contemplated only cases of compensation in lieu of notice and wages for the period of closure, and did not cover cases of compensation for closure ; that the provisions of section 73 of the Bombay Industrial Relations Act, 1946, were wide enough to cover the reference in the present case and that the claim for compensation was not barred by Standing Orders 16 and 17, read with section 40(1) of the Act. Digambar Ramachandra vs Khandesh Mills, (1949) 52 Bom. L.R. 46, disapproved. 232 (3)that the decision in Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, was concerned only with the award of bonus and was not applicable to the present case.

Appeals Nos. 663 and 664 of 1966. Appeals by special leave from the judgment ,and order dated January 2, 1964 of the Allahabad High Court in I.T. Reference No. 244 of 1959. S.C. Manchanda and J.P. Goyal, for the appellant (in both the appeals ). D. Narsaraju, T. A. Ramachandran and 8. P. Nayar, for the respondent (in both the appeals). The Judgment of the Court was delivered by Grover, J. In these appeals by special leave the facts may be stated: The assessee at the material time was a Hindu Undivided Family. The relevant assessment year is 1944 45 corresponding to the accounting year ending on Diwala Samvat 2,000 (October 28, 1943). On February 20, 1945 the Income 802 tax Officer made an assessment on a total income of Rs. 26,800 odd which comprised income from the share in the business of Kasi Iron Foundry and the income from the property. This order was revised under section 34 of the Indian Income tax Act, 1922 hereinafter called the Act. In the revised assessment order the total income of the assessee was computed at Rs. 71,731. In this amount a sum of Rs. 40,000 was included as income from undisclosed sources. This assessment was challenged before the Appellate Tribunal and was set aside on the ground that there had not been proper service of a notice under section 34. A fresh notice under section 34 was issued in October 1951. On October 16, 1952 a revised assessment order was passed and the total income of the assessee was computed at Rs. 85,817 which included a sum of Rs. 49,696 as income from undisclosed sources. On March 31, 1953 the Income tax Officer served on the assessee another notice under section 34 in respect of the same assessment year 1944 45. On March 18, 1954 a revised assessment was made in which was included a sum of Rs. 32,000 as the assessee 's income from undisclosed sources, being the alleged investment of the assessee in the Satpat and bamboo. business prior to February 18, 1944. The total income of the assessee was computed at Rs. '1,17,817. The income from undisclosed source which came to be included in this computation amounted to Rs. 81,696. The assessee filed appeals against the assessment order dated October 16, 1952 contending inter alia that there had been no escapement of any income and that in any case the first revised assessment dated October 16, 1952 was barred by time under section 34(1)(b) of the Act as the provisions of section 34(1)(a) did not apply. The second revised assessment was challenged on the ground, inter alia, that the Income tax Officer had no jurisdiction to issue the notice under section 34 as the material facts necessary for making the assessment were fully and truly disclosed to the Income tax Officer during the assessment proceedings for the year 1945 46. That appeal was also dismissed. Thereafter the assessee filed two appeals before the Income Tax Appellate Tribunal. Before the tribunal it was contended by the assessee that the first revised assessment dated October 16, 1952 was barred by limitation and that the period of limitation was four years under section 34(1)(b) and not eight years under section 34(1)(a). The second revised assessment was challenged on the ground that the Income tax Officer had no jurisdiction to issue a notice and make assessment under section 34. It was argued that the investment, expenditure and the profits earned from the business of Sarpat and bamboo had been duly shown. As regards the first revised assessment the tribunal held that the income of the assessee from the firm Rajnarain Durga Prasad had escaped assessment by failure on the part of the assessee to disclose fully and truly all the facts necessary for making the assessment and that the provisions of 803 section 34( 1 )(a) were attracted and therefore the period of limitation was eight years and not four years. With regard to the second revised assessment it was urged that all the materials necessary for making the assessment were before the Income tax Officer and by issuing a notice under section 34 the Income tax Officer had changed his opinion and a mere change of opinion did not authorise the Income tax Officer to take recourse to section 34. The tribunal disposed of the argument with regard to the second revised assessment in the following words: "The Income tax Officer who made the assessment for 1945 46 might have had all the accounts of the business in Satpat and bamboos before him and might have known the investments made by the assessee in that business;. The question for consideration is whether the Income tax Officer had reason to believe that by the failure on the part of the assessee to fully and truly disclose all the material facts necessary for the making of the assessment for the year 1944 45, income had escaped assessment. Surely, even if the Income tax Officer had known that the investment made by the assessee in that business were his revenue income, he could not have proceeded u/s 34 because the income could not have been assessed in the assessment year 1945 46. It could be assessed in the assessment year 1944 45. The income appearing by way of deposits in the Sarpat business could be assessed only as income from some undisclosed source and the previous year for income from undisposed source for which the assessee had not elected any previous year would be the financial year. The investments were made in the financial year relevant for the assessment year 1944 45 and were not made in the financial year relevant for the assessment year 1945 46. The Income tax Officer had, therefore, no choice but to resort to section 34 of the Act. " The tribunal, however, found as is apparent from its 'order dated March 21, 1957 that the unexplained investment which was really the income of the assessee from undisclosed source was Rs. 27,875 instead of Rs. 32,000. The tribunal called for a report on certain other matters with which we are not concerned and which were disposed of by subsequent order dated August 31, 1958. On a petition filed under section 66(1) of the Act the tribunal referred the following question to the High Court for decision: "Whether. on the facts and in the circumstances of the ease the revised assessments under section 34 dated 16 10 1952 and 18 3 1954 are legal and valid". 804 As regards the first revised assessment the High Court was of the view that even if the provisions of section 34(1)(b) were to apply the assessment could not be said to be barred by time nor could it be said to be barred under section 34(1)(a) as the assessee had failed to show that the income tax Officer was aware that the assessee had received income from its share in the firm. The question was consequently answered in the affirmative so far as the assessment order dated October 16, 1952 was concerned. The assessment order of March 18, 1954 was challenged before the High Court on the ground that there was no default on the part of the assessee attracting applicability of section 34(1)(a). It was noticed by the High Court that although the Income tax Officer had, during the proceedings for the assessment year 1945 46, made an enquiry about the investments in Sarpat and bamboo business no action had been taken in those assessment proceedings against the assessee but it could not be presumed that he had accepted the explanation of the assessee. Having held that the investment represented income from undisclosed source he was bound to treat it as income which accrued in December 1943 when it was invested, being the income during the financial year 1943 44 and therefore it had to be taxed in the assessment year 1944 45. The question referred was answered in the affirmative with regard to the assessment order of March 18, as well. The argument of Mr. S.C. Manchanda in respect of the assessment made in October 1952 is that there was no failure on the part of the assessee to disclose material facts. It is submitted that the share income of the assessee 's son from the firm Raj Narain Durga Prasad could not be shown in the assessee 's return as the accounting period of that firm closed on April 1, 1944 which was well after the close of the previous year of the assessee which ended on October 28, 1943. is said that neither the income of the firm nor the share of the assessee 's son had been determined till then and it was not possible for the assessee to show the said income in his return. Moreover the Income tax 'Officer had knowledge of the assessee 's interest in the firm Ramnarain Durga Prasad on May 12, 1947 when the assessment for the year 1945 46 was made. Thus the escapement, if any, has not resulted from any default or omission on the part of the assessee. The High Court had disposed of this contention by observing that there was no finding in the order of the appellate tribunal that the share of the income from the said firm was not known at the time when the return was filed. It was admitted that the return filed by the assessee did not disclose that the assessee enjoyed income from his share in that firm. It was no longer open to the assessee to press this contention particularly when the burden lay upon him to show that the Income tax Officer was aware that the assessee received income from his share in that firm. Mr. Manchanda has not been able to persuade us 805 to take a different view in the matter. The real challenge. on behalf of the assessee before us has been to the amount which was included as income from undisclosed source in the revised assessment order made in March 1954 being the capital which had been invested in the business of Sarpat and bamboos. This amount, as found by the tribunal, came to Rs. 27,000 odd and had been invested in partnership with Ram Narain Durga Prasad for the business of the supply of Sarpat and bamboo. to the Government, the investment having been made between December 8, 1943 and February 17, 1944. According to Mr. Manchanda no income from the aforesaid business could be shown in the return for the year 1944 45 because the business itself had been commenced after the close of the relevant previous year which ended on October 28, 1943. For the assessment year 1945 46, however, a sum of Rs. 1640 was assessed as the assessee 's income in this joint venture. During the course of the assessment proceedings for the year 1945 46 the assessee is stated to have filed an affidavit before the Income tax Officer giving details in respect of the Sarpat and bamboo business. Mr. Manchanda has invited our attention to the definition of "previous year" as contained in section 2( 11 ) of the Act at the relevant period and has pointed out that the Sarpat and bamboo business did not fall within the year up to which accounts had been made i.e. October 28, 1943. It was verily impossible, says Mr. Manchanda, to have shown in the return any amount relating to Sarpat and bamboo business. The method to be adopted in such a situation has now been settled by a long course of decisions In Commissioner of Income tax, Bihar & Orissa vs P. Darolia & Sons(1) the facts were that for the assessment year 1947 48 the accounting year of the assessee was the Diwali year corresponding to November 4, 1945 to October 24, 1946. The Income tax Officer rejected the books of the assessee and ascertained his income from the business at an estimate for that year. He also added to this estimate certain cash credits in its account books entered on the 22nd and 27th of November, 1945, as secret profits from undisclosed sources which dates were after the end of the accounting year. It was found that the amount included as secret profits from undisclosed source was not from the business of the assessee but from separate sources and no account was maintained by the assessee in respect of the amount nor had it exercised any option as regards the previous year with respect to that source. It was held that in the aforesaid circumstances the previous year of the assessee in respect of its undisclosed source of income was the financial year ending on March 31, 1946. In Bishan Dutt vs Commissioner of Income tax U.P. & V.P.(2) the previous year of the assessee for he assessment year 1945 46 in respect of his cloth business was July 4, 1943 to June 26, 1944. In the account books of that busi (1) (2) 39 I.T.R. 534. CI/69 5 806 ness for that period a sum of Rs. 9,800 appeared as credit in the suspense account on September 2, 1943. The Income tax Officer, in the absence of a satisfactory explanation, held this amount to be income from undisclosed source. The view expressed by the High Court was that there being nothing to show that any accounts in respect of the undisclosed source of income existed or were maintained or that the assessee exercised any option under section 2(11)(i)(a) in respect of such accounts, the only course. open to the department was to tax his income from undisclosed source on the basis of the financial year being the previous year. On that basis the amount could be taxed only for the assessment year 1944 45 and not for the assessment year 1945 46. On similar facts the Calcutta High Court expressed the same view in Jethmal vs Commissioner of Income Tax(1). By now it appears to be well settled and no decision even of a High Court has been cited to the contrary that in such circumstances the only possible way in which such undisclosed income can be assessed or reassessed is to make the assessment during the ordinary financial year. Mr. Manchanda has called our attention to section 68 of Income tax Act, 1961 according to which where any sum is found credited in the books an assessee maintained for any previous year and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Income tax Officer, satisfactory the sum so credited may be charged to income tax as the income of the assessee of that previous year. It is, however, obvious that even under the provisions embodied under the new Act it is only when any amount is found credited in the books of an assessee that the section will apply. On the other hand if the undisclosed income was found to be from some unknown source or the amount represents some concealed income which is not credited in his books the position would probably not be different from what was laid down in the various cases decided when the Act was in force. The last argument of Mr. Manchanda is that in order to attract the applicability of section 34(1)(a) of the Act the omission or the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment must be found to be wailful and deliberate. In support of his submission he has relied on P.R. Mukherjee vs Commissioner of Income tax, West Bengal(2) in which it was observed that a person cannot be said to have omitted or failed to disclose something when, of such thing, he has no, knowledge and that a similar implication is carried by the word "disclose" because one cannot be expected to disclose a thing unless it is a matter which he know or knows of. It is altogether unnecessary to decide whether this view is sustainable (1) (2) 30 I.T.R. 535. 807 or not. At any rate, in the present case, the assessee had failed to show that he did not know and was not aware of the true position in respect of the sum of Rs. 27,000 odd which was invested in the Sarpat and bamboo business. For all these reasons the appeals fail and are dismissed with costs. G.C. Appeals dismissed.

The assessee a Hindu undivided family ( ) was assessed in 1944 45 for the income of its previous year ending October 30, 1943. The income shown in the return was from iron foundry business and property, and income from these sources only was taken into account in the original assessment. The assessee through a son of the karta was also a partner in the firm Raj Narain Durga Prasad. The accounting year of the firm ended on April 1, 1944 and the assessee 's return,did not show any income as share of profit in the firm nor was mention made in the return of the existence of the partnership. In December, 1943 the assessee along with Raj Narain Durga Prasad started a joint venture of supplying Sarpat and bamboo to the Government. Between the commencement of the joint venture and February 18, 1944, the assessee made investments in the Sarpat and bamboo business to the tune of Rs. 27,000 (as found by the Tribunal). The Income tax Officer, when he discovered the assessee 's connection with the firm Rajnarain Durga Prasad gave a notice under section 34 of the Indian Income tax Act, 1922 and made in 1952 a revised assessment for 1944 45, assessment year, in which he added the income of the assessee as found in the books of the firm to the income already assessed. Later, he discovered the assessee 's investments in the Sarpat and bamboo business and in 1954 he made another revised assessment for the assessment year 1944 45 treating the said investments as representing income from undisclosed sources. The assessee challenged both the assessments on the ground that section 34(1)(a) was not attracted. The assessee 's plea was rejected by the Appellate Assistant Commissioner and the Tribunal. The High Court in 'reference also held against the assessee who by special leave appealed to this Court. The contentions on behalf of the appellant were; (i) As regards income from firm Rajnarain Durga Prasad it was submitted that the accounting year of that firm ended on April 1, 1944 which was well after the close of the assessee 's previous year which ended on October 28, 1943. Neither the. income of the firm, nor the share of assessee had been determined till then, and it was not possible for the assessee to show the said income in the return for 1944 45. Moreover the full facts came to the knowledge of the Income tax Officer when the assessment for the next assessment year was made. Therefore section 34(1)(a) was not attracted. (ii) As regards investments in the Sarpat and bamboo business the assessee submitted that the business itself commenced in December, 1943 and having regard to the definition of previous year ' in section 2(11) as it existed at the relevant time, the income from this source could not be shown as income of his previous year which ended on October 28. The income from this source was duly disclosed to the Income tax Officer and was actually assessed in 1945 46. Therefore in the case of the 1954 revised assessment also 'section 34(1)(a) was not attracted. 801 HELD: (i) The High Court had rightly observed in dealing with the 1952 assessment that there was no finding of the appellate tribunal that the share of income from the firm was not known at the time when the return was filed. In view of the admitted fact that the return filed by the assessee did not disclose the fact of partnership in the firm Raj Narain Durga Prasad it was no longer open to the assessee to urge that section 34(1)(a) was not attracted, particularly when the burden lay upon the assessee to show that the Income tax Officer was aware of the income received from the firm. [804 G H] (ii) It is now weD settled that the only way in which income from undisclosed sources can be taxed is to take it as the income of the relevant financial year. Therefore the investments made by the assessee in Sarpat and bamboo business between December, 1943 and February, 1944 were rightly taxed by the Income tax Officer in the year 1944 45. The disclosure of the investments by assessee in the proceedings for 1945 46 cannot be treated as a disclosure for the purpose of assessment year 194445. The plea that the revised assessment made in 1954 was not covered by section 34(1)(a) could not therefore be accepted. [806 B C] Section 68 of the Indian Income tax Act, 1961 which provides that amounts credited. in the account books of the assessee and not satisfactorily explained by him should be treated as income of the 'previous year ', does not alter the position under the old Act. Even under the new Act the position, except where the credits are found in the assessee 's account books, is probably not different from that laid down in the cases under the old Act. [806 D F] Commissioner of Income tax, Bihar and orissa vs P. Darolia & Sons, and Bishan Dutt vs Commissioner of Income tax, U.P. & V.P. , applied. Jethmal vs Commissioner of Income tax, , approved. P.R. Mukherjee vs Commissioner of Income tax, West Bengal. referred to.

Civil Appeal No. 1086 of 1973. Appeal by Special Leave from the Judgment and Order dated 8 12 1971 of the Kerala High Court in T.I.T. Reference No. 91/69. section C. Manchanda and Miss A. Subhashini for the Appellants. K. T. Harindranath and T. T. Kunhikannan for the Respondent. The Judgment of the Court was delivered by BHAGWATI J. This appeal arises out of proceedings initiated by the Revenue authorities for levying penalty on the assessee. The assessee is a lady and during the assessment year 1964 65 for which the relevant accounting year was the calender year ended 31st December, 1963, the assessee was a partner in two partnership firms, M/s. Malabar Tile Works and M/s. Malabar Plywood Works and alongwith her there were other partners including her husband and minor daughter. The assessee filed a return of income for the assessment year 1964 65 showing Rs. 4754 as income from property and Rs. 4748 as income from other sources. The assessee stated in the return under the column "Profits and Gains of Business and Profession" against item (b) which required share in the profits of a registered firm to be shown "Please ascertain from the firms ' files the Malabar Tile Works and Malabar Plywood Works. " The assessee, however, did not show in the return the amounts representing the shares of her husband and minor daughter in the firms of M/s. Malabar Tile Works and M/s. Malabar Plywood Works though they were clearly includible in computing the total income of the assessee under section 64 sub section (1) clauses (i) and (iii) of the Income Tax Act, 1961. The Income Tax Officer while making the assessment included the amounts representing the shares of the assessee 's husband and minor daughter in the profits of these two firms in the assessment of the assessee and taxed the assessee on a total income of Rs. 59,506 after including these amounts. Since the assessee had not shown these amounts as forming part of her total income in the return submitted by her, though they were clearly includible in her total income under section 64, sub section (1) clauses (i) and (iii), the Income Tax Officer was of the view that the assessee had con 784 cealed the particulars of her income and rendered herself liable to penalty under section 271 sub section (1) clause (c), and since the minimum penalty leviable on the assessee was Rs. 1000, he referred the case to the Assistant Appellate Commissioner who issued notice under section 274 and after hearing the assessee, imposed a penalty of Rs. 1000. The assessee appealed to the Tribunal against the order imposing penalty and one of the arguments urged on behalf of the assessee in support of the appeal was that there was no obligation of the assessee to show in her return the amounts representing the shares of her husband and minor daughter in the two firms and there was accordingly no concealment by her of the particulars of her income so as to attract the penalty under section 271 sub section (1) clause (c). The Tribunal accepted this argument of the assessee and held that section 271 sub section (1) clause (c) could be invoked only if there was concealment of the "particulars of his income by the assessee" and the words "his income" referred only to be the income of the assessee himself and not to the income of any other person which might be liable to be included in the income of the assessee by reason of section 64 sub section (1) clauses (i) and (iii). The Tribunal accordingly held that the omission or failure of the assessee to disclose in her return the amounts representing the shares of her husband and minor daughter in the two firms as forming part of her income could not be visited with penalty under section 271 sub section (1) clause (c) and in this view, the Tribunal allowed the appeal and set aside the order imposing penalty. This led to the filing of an application for a reference by the Revenue and on the application, the Tribunal referred the following question of law for the opinion of the High Court: "Whether on the facts and in the circumstances of the case, the Tribunal is correct in law in cancelling the penalty levied under section 271(1)(c)?" The High Court took the view that the words used in section 271 sub section (1) clause (c) were "his income" and the amounts representing the shares of the assessee 's husband and minor daughter in the two firms could not be said to be the income of the assessee, though in computing her total income these amounts were liable to be included by reason of section 64 sub section (1) clauses (i) and (iii) and therefore, the assessee could not be said to have concealed her income when she did not disclose these amounts as forming part of her income in the return submitted by her. The High Court accordingly answered the question referred to it in favour of the assessee and against the Revenue. The Revenue thereupon preferred the present appeal with special leave obtained from this Court. 785 There is a decision of this court which is directly in point and it concludes the determination of the question arising in this appeal against the Revenue but before we refer to that decision, we might first examine the question on principle as a matter of pure interpretative exercise. Section 271 sub section (1) clause (c) provides for imposition of penalty on an assessee if it is found inter alia that the assessee has concealed the particulars of "his income. " The question is what is the scope and content of the words "his income" occurring in this penal provision. Do they refer only to the income of the assessee himself or do they also take in the income of others which is liable to be included in the computation of the total income of the assessee by reason of the relevant provisions of the Act, such as section 64 sub section (1) clauses (i) and (iii)? The answer to this question obviously depends upon as to what is "his income" which the assessee is liable to disclose for the purpose of assessment for concealment can only be of that which one is bound to disclose and yet fails to do so. Section 139 provides for filing of a return of income by an assessee and sub section (1) of this section lays down that every person whose total income during the previous year exceeds the maximum amount which is not chargeable to income tax, shall furnish a return of his income in the prescribed form and verified in the prescribed manner, and setting forth such other particulars as may be prescribed. The return of income is required to be filed in order to enable the Revenue Authorities to make a proper assessment of tax on the assessee. It must therefore follow a fortiorari that the assessee must disclose in the return every item of income which is liable to be taxed in his hands as part of his total income. The charge of income tax is levied by section 4 on the total income of the assessee, and 'total income ' is defined in section 2 sub section (45) to mean "the total amount of income referred to in section 5 computed in the manner laid down" in the Act. It is no doubt true that the definition of 'total income ' in Section 2 sub section (45) refers to section 5 and this latter provision lays down that all the income profits and gains accrued or arisen to the assessee or received by or on behalf of the assessee shall be liable to be included in his total income but this provision is subject to the other provisions of the Act and therefore if the income of any other person is declared by any provision of the Act to be includible in computing the total income of the assessee, such income would form part of the total income exigible to tax under section 4 of the Act. Now, section 64 subsection (1) is one such provision which provides for inclusion of the income of certain other persons in computing the total income of an assessee. Clauses (i) and (iii) of this sub section provide that in computing the total income of an assessee there shall be included all 786 such income as arises directly or indirectly to the spouse of such assessee from the partnership of the spouse in a firm carrying on a business in which such individual is a partner as also to a minor child of such assessee from the admission of the minor to the benefits of the partnership firm. It is clear from this provision that though the share of the spouse or minor child in the profits of a partnership firm in which the assessee is a partner is not the income of the assessee but is the income of such spouse or minor child it is liable to be included in computing the total income of the assessee and it would be assessable to tax in the hands of the assessee. The total income of the assessee chargeable to tax would include the amounts representing the shares of the spouse and minor child in the profits of the partnership firm. If this be the correct legal position, there can be no doubt that the assessee must disclose in the return submitted by him, all amounts representing the shares of the spouse and minor child in the profits of the partnership firm in which he is a partner, since they form part of his total income chargeable to tax. The words "his income" in section 139 sub section (1) must include every item of income which goes to make up his total income assessable under the Act. The amounts representing the shares of the spouse and minor child in the profits of the partnership firm would be part of "his income" for the purpose of assessment to tax and would have to be shown in the return of income filed by him. The assessee then contended that the return of income which was required to be filed by her under section 139 sub section (1) was a return in the prescribed form and the form of the return prescribed by rule 12 of the Income Tax Rules, 1962 did not contain any column for showing the income of the spouse and minor child which was liable to be included in the total income of the assessee under section 64 sub section (1) clauses (i) and (iii) and there was therefore no obligation on the assessee to disclose this income in the return filed by her. This contention is also, in our opinion, fallacious and deserves to be rejected. It is true that the form of the return prescribed by rule 12 which was in force during the relevant assessment year did not contain any separate column for showing the income of the spouse and minor child liable to be included in the total income of the assessee, but it did contain a Note stating that if the income of any other person is includible in the total income of the assessee under the provisions inter alia of section 64, such income should also bestow in the return under the appropriate head. This Note clearly required the assessee to show in the return under the appropriate head of income, namely, "Profits and Gains of Business of Profession" the amounts representing the shares of the husband and minor 787 daughter of the assessee in the profits of the two partnership firms. But even so, the assessee failed to disclose these amounts in the return submitted by her and there was therefore plainly and manifestly a breach of the obligation imposed by section 139 sub section (1) requiring the assessee to furnish a return of her income in the prescribed form. It is difficult to see how the Note in the prescribed form of the return could be ignored by the assessee and she could contend that despite the Note, she was not liable to show in her return the amounts representing the shares of her husband and minor daughter in the two partnership firms. The contention of the assessee, if accepted, would render the Note meaningless and futile and turn it into dead letter and that would be contrary to all recognised canons of construction. There can be no doubt that the assessee was bound to show in her return the amounts representing the shares of her husband and minor daughter in the two partnership firms and in failing to do so, she was guilty of concealment of this item of income which plainly attracted the applicability of section 271 sub section (1) clause (c). It is obvious that on this view the order imposing penalty on the assessee would have to be sustained but there is a decision of this Court in V.D.M.RM.M.RM. Muthiah Chettiar vs Commissioner of Income Tax Madras which is binding upon us and where we find that a different view has been taken by a Bench of three Judges of this Court. It was held in this case that even if there were any printed instructions in the form of the return requiring the assessee to disclose the income received by his wife and minor child from a firm of which the assessee was a partner, there was, in the absence in the return of any head under which the income of the wife or minor child could be shown, no obligation on the assessee to disclose this item of income, the assessee could not be deemed to have failed or omitted to disclose fully and truly all material facts necessary for his assessment within the meaning of section 34(1) (a) of the Indian Income Tax Act, 1922. With the greatest respect to the learned Judges who decided this case, we do not think, for reasons already discussed, that this decision lays down the correct law on the subject, and had it not been for the fact that since 1st April 1972 the form of the return prescribed by rule 12 has been amended and since then, there is a separate column providing the "income arising to spouse/minor child or any other person as referred to in Chapter V of the Act" should be shown separately under that column and consequently there is no longer any scope for arguing that the assessee is not bound 788 to disclose such income in the return to be furnished by him, we would have referred the present case to a larger bench. But we do not propose to do so since the question has now become academic in view of the amendment in the form of the return carried out with effect from 1st April 1972. We would therefore follow this decision in Muthiah Chettiar 's case, which being a decision of a bench of three Judges of this Court is binding upon us, and following that decision, we hold that the assessee could not be said to have concealed her income by not disclosing in the return filed by her the amounts representing the shares of her husband and minor daughter in the two partnership firms. We accordingly dismiss the appeal, but in the peculiar circumstances of the present case, we think that the fair order of costs would be that each party should bear and pay its own costs throughout. S.R. Appeal dismissed.

The respondent assessee was a partner in the partnership firms of M/s. Malabar Tile Works and M/s. Malabar Plywood Works and alongwith her there were other partners including her husband and minor daughter. In her returns for the assessment year 1964 65 for which the relevant accounting year was the calendar year ending 31st December, 1963, the assessee filed a return of income omitting the amounts representing the shares of her husband and minor daughter in the partnership firms from her income. The Income Tax Officer, however, brought the amounts, namely, Rs. 59,506 to tax and referred the case for taking action under section 271(1)(c) of the Act to the Assistant Appellate Commissioner who imposed a penalty of namely, Rs. 7,000 on the assessee for having concealed her income. In appeal the Tribunal set aside the order and the High Court on reference affirmed the Tribunal 's order. Hence the appeal by Revenue to this Court after obtaining special leave. Dismissing the appeal, the Court ^ HELD: (1) The assessee, in view of the fact that the prescribed form for filing of returns under section 139 of the Act, prior to 31st March, 1972, did not contain separate column to show "income arising to spouse/minor child or any other person referred to in Chapter V of the Act", and in view of the decision of three Judges Bench reported in SC could not be said to have concealed her income by not disclosing in the return filed by her the amounts representing the shares of her husband and minor daughter in the two partnership firms. [788B] (2) The term "his income" for the purpose of section 271(1)(c) of the Act, is "his income" which the assessee is liable to disclose for the purposes of assessment and yet fails to do so. The return of income under section 139(1) of the Act is required to be filed in order to enable the Revenue Authorities to make a proper assessment of tax on the assessee. A fortiorari, it follows that the assessee must disclose in the return every item of income which is liable to be taxed in his hands under sections 4 & 5 of the Act. [785B; F H] 782 (3) The definition of "total income" in section 2(45), no doubt refers to section 5 which lays down that all the income profits and gains accrued or arisen to the assessee or received by or on behalf of the assessee shall be liable to be included in his total income but this provision is subject to the other provisions of the Act and therefore if the income of any other person is declared by any provision of the Act to be includible in computing the total income of the assessee, such income would form part of the total income exigible to tax under section 4 of the Act. section 64(1) is one such provision which provides for inclusion of the income of certain other persons in computing the total income of the assessee. [785F H] Section 64(1) makes it clear that though the share of the spouse or minor child in the profits of a partnership firm in which the assessee is a partner is not the income of the assessee but is the income of such spouse or minor child it is liable to be included in computing the total income of the assessee and it would be assessable to tax in the hands of the assessee. The total income of the assessee chargeable to tax would include the amounts representing the shares of the spouse and minor child in the profits of the partnership firm. Obviously the words "his income" in section 139 sub section (1) must include every item of income which goes to make up his total income assessable under the Act. The amounts representing the shares of the spouse and minor child in the profits of the partnership firm would be part of "his income" for the purpose of assessment to tax and would have to be shown in the return of income filed by him. [786B D] (4) It is true that the form of the return prescribed by Rule 12 of the Income Tax Rules, 1962 which was in force during the relevant assessment year did not contain any separate column for showing the income of the spouse and minor child liable to be included in the total income of the assessee, but it did contain a Note stating that if the income of any other person is includible in the total income of the assessee under the provisions, inter alia, of section 64, such income should also be shown in the return under the appropriate head. This Note clearly required the assessee to show in the return under the appropriate head of income, namely, "profits and gains of business or profession" the amounts representing the shares of the husband and minor daughter of the assessee in the profits of the two partnership firms. The assessee however failed to disclose these amounts in the return submitted by her and there was plainly and manifestly a breach of the obligation imposed by section 139 sub section (1) requiring the assessee to furnish a return of her income in the prescribed form. To accept the contention that despite the Note the assessee was still not liable to show in the return the amounts representing the shares of her husband and minor daughter in the two partnership firms would render the Note meaningless and futile and turn it into a dead letter 783 and that would be contrary to all recognised canons of construction. The assessee was guilty of concealment of this item of income which plainly attracted the applicability of section 271 sub section (1) clause (c). [786G 787D] V.D.M.RM.M.RM. Muthiah Chettiar vs Commissioner of Income Tax, , doubted

Appeal No. 909 of 1971. Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated May 21, 1971 of the Patna High Court in Election Petition No. 2 of 1970. 363 Frank Anthony, A. T. M. Sampath and E. C. A Agrawala, for. the appellant. L. M. Singhvi, Basudeva Prasad, Ravinder Narain and P. C. Bhartari, for the respondent. The judgment of the Court was delivered by Grover, J. This is an appeal from a judgment of the Patna High Court holding that the nomination papers of the respondent Smt. Jahan Ara Jaipal Singh had been illegally rejected by the Returning Officer. For that reason the election of the returned candidate Shri N. E. Horo from the 51 Khunti Parliamentary (Scheduled Tribe) Constituency in the State of Bihar was set aside. On May 1, 1970 the Election Commission of India issued a notification calling upon the above named Parliamentary Constituency to elect a Member to the Lok Sabha in the vacancy caused by the death of late Shri Jaipal Singh. The last date for filing the nomination papers was May 8, 1970. The date for scrutiny was May 9, 1970. Several persons filed nomination papers including Theodore Bodra and others. Two nomination, papers were filed on behalf of the respondent who was a Congress (Ruling) candidate for the aforesaid by election. According to the respondent she was the widow of late Shri Jaipal Singh and was a member of the Munda Scheduled Tribe in the State of, Bihar. She filed certain certificates to that effect. Bodra filed an objection petition to the nomination papers of the respondent. The Returning Officer, after hearing arguments, passed an order rejecting the nomination papers of the respondent. The nomination papers of all the other candidates were accepted. After the polling took place, the result of the election was announced on June 3, 1970 and the appellant Shri Horo was declared elected to the Lok Sabha. On July 8, 1970 the respondent filed an, election petition. In the election petition it was stated inter alia that the petitioner (who is now respondent before us) was the widow of Late Shri Jaipal Singh and belonged to the Munda Scheduled Tribe although she was a Christian by religion. It was averred in paragraph 3 of the petition that according to the Munda Customary Law when a Munda male married outside the Munda Tribe if his marriage is accepted by the Tribe he continues to be a member of that Tribe and his wife also acquires its membership. It was pleaded that the wife being a member of her husband 's family had the right of succession to her husband 's property as well. In para 4 of the petition it was stated that the petitioner was a Tamil by birth. She married late Shri Jaipal Singh in the year 1954 364 according to the rights and rituals of Mundas in the presence of Parha Raja, Parha Munda, Parha Pahan, relatives of the deceased and the members of the Tribe at Morabadi a Mohalla of Ranchi. In paragraph 5 the ceremonies which were performed according 'to Munda custom were mentioned. These ceremonies inter alia were the washing of the wife 's feet by the elder sister of the husband and the holding of the feast of the male goat meat and drinks of Handia etc. A new name was given by her mother in law to the petitioner, that name being Lankashri. All these functions were witnessed by Parha Raja, Parha Munda, Parha Pahan and other members of the Tribe. In paragraph 6 more details were given of the various other ceremonies also which were performed in connection with the marriage. After referring to the relevant provisions of the Representation of People Act 1951, hereinafter called the 'Act ', it was stated that the Returning Officer had illegally allowed irrelevant personal aspersions to be .cast against the petitioner by her opponents. It was alleged that the Returning Officer had been influenced by Bodra who was the Chairman of the Bihar Legislative Council. The decision of the Returning Officer that the status of a Munda could be acquired only by birth and not by marriage and that the petitioner did not belong to the Munda Scheduled Tribe was challenged principally on the ground that the Returning Officer had not considered the custom by which if a Munda male marries a women not belonging to Munda Tribe and that is accepted by the Tribe the wife acquires the membership thereof. In his written statement the returned candidate Shri Horo maintained that even though the election petitioner might be iving as wife of late Shri Jaipal Singh she was never married in accordance with the custom of the Munda Tribe prevalent in Chhota Nagpur. It was denied that she was ever accepted as a member of the Munda community as no such custom is prevalent in that community. It was denied that the ceremonies and rituals mentioned in the election petition had been performed in respect of the marriage of the election petitioner with the late Shri Jaipal Singh. In paragraph 25 of the written statement it was asserted that a non Munda merely by virtue of the marriage with a Munda could not ipso facto become a Munda. If a person was not born of a father belonging to a Scheduled Tribe he or she could not legally claim to be a member of the said Tribe. It was asserted that since the election petitioner was not the daughter of a member of the Munda Tribe she could not claim to be a member of that Scheduled Tribe. The allegations of mala fides made against the Returning Officer were described as baseless and extraneous. During the pendency of the election petition the Lok Sabha was dissolved on December 27, 1970. A petition was filed 365 before the High Court on behalf of Shri Horo that the election petition should be dismissed as having become infructuous. The court made an order on January 14, 1971 holding that the election petition could not be dismissed on that ground. On the pleadings of the parties seven issues were framed. Issues 1, 2 and 3 which are material need be mentioned. (1) Is the election petition maintainable ? (2) Whether the petitioner was the legally married wife of late Shri Jaipal Singh according to the custom of Munda Tribe prevalent in Chhota Nagpur ? (3) Whether the petitioner could legally acquire the status of a Munda by virtue of her marriage to late Shri Jaipal Singh and whether she had been accepted as a member of the Munda Tribe by the said Tribe ? It may be mentioned that so far as issue No. 1 was concerned the objection taken was that the election petition was defective on account of the non joinder of necessary parties. When the election petition was filed only Shri Horo the returned candidate was impleaded but subsequently a petition was filed on behalf of the election petitioner making a prayer that the other contesting candidates were also necessary parties and should be impleaded. The court directed that they be added as parties. Shri Bodra who was one of the contesting parties was consequently impleaded as a party. Later on it was prayed on behalf of the petitioner that on a further consideration it was found that the persons who had been subsequently added were not necessary parties and their names might be deleted. Bodra 's name was therefore deleted. The argument raised before the High Court was that Bodra being a necessary party to the petition under cl. (b) of section 82 of the Act the petition became defective as soon as his name was struck off at the instance of the election petitioner. The High Court was of the view that although in paragraph 21 of the election petition an allegation had been made that Bodra had influenced the Returning Officer, no evidence was led on that point and the case of the election petitioner was based solely on the ground that the nomination paper had been illegally and improperly rejected. No relief had been sought on the ground that undue influence had been exercised on the Returning Officer by Bodra. The High Court was also of the view that the allegation made in the election petition that Bodra had exercised his influence in getting the nomination paper of the election petitioner rejected did not fall within the ambit and scope of sub section (7) of section 123 of the Act. The contention that the petition was not maintainable was consequently rejected. On the main issues, namely (2) and (3) it was expressly stated in the judgment that the factum of the marriage of the elec 366 tion petitioner with the late Shri Jaipal Singh had not been disputed. The real controversy between the parties in the High Court centered round the point whether the marriage was in such form that the wife acquired the membership of the Tribe. According to the arguments on behalf of Shri Horo as the election petitioner was not a Munda she could not belong to the Munda Tribe and that by marriage such a status could never be acquired. The High Court examined the evidence relating to the question whether the marriage of the election petitioner with late Shri jaipal Singh had been performed in accordance with the Munda custom and was in such form that she was accepted and treated as a member of the Munda Tribe. The court also considered the various authoritative books and other works relating to the Mundas and came to the conclusion that on a survey of the entire, evidence and the circumstances there was no reason to discredit the evidence which had been led on behalf of the petitioner that she was married according to the Munda custom and that it was with the approval and sanction of the Tribe that she had been accepted as a member of the Munda tribe. The first contention raised by Mr. Frank Anthony on behalf of the appellant relates to issue No. 1. It has been maintained by him that Bodra was a necessary party. Apart from the fact that he was the only person who had filed a written objection to the nomination of the respondent the election petition filed by the respondent contained serious allegations of corrupt practice against Bodra. As he had been given up as a party although impleaded at one stage the petition became defective and was not maintainable. According to clause (b) of section 82 of the Act the petitioner must join as a respondent any candidate against whom allegations of any corrupt practices are made in the petition. Section 86(1) provides that the High Court shall dismiss any election petition which does not comply inter alia with the provisions of section 81. There can be little doubt that if the allegations made in the election petition against Bodra amounted to the commission of a corrupt practice by him it was obligatory on the part of the election petitioner to join him as a respondent to the petition. It is equally clear that in that event the petition would have become liable to dismissal. For finding out what a corrupt practice is we have to turn to section 123 of the Act. According to Mr. Anthony the allegations made against Bodra fell within sub section (7) of section 123 which is in the following terms : section 123 "The following shall be deemed to be corrupt, practices for the purposes of this Act: 367 .lm15 (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate 's election, from any person in the service of the Government and belonging to any of the following classes, namely : (a) gazetted officers; (b) stipendary judges and magistrates; (c) members of the armed forces of the Union: (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmykhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and (g) such other class of persons in the service of the Government as may be prescribed. Explanation(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. (2) For the purposes of clause (7) a person shall be deemed to assist in the furtherance of the prospects of a candidates 's election if he acts as an election agent of that candidate". The allegations against Bodra are contained in para 21 of the election petition which may be set out : "That the Returning Officer, while hearing the objections illegally allowed irrelevant personal aspersions to be cast against the petitioner by her opponents and the aforesaid Shree Theodore Bodra even after protests made by and on behalf of the petitioner, Shrimati Jahanara Jaipal Singh, against the same '. plain reading of the above paragraph shows that no such alletion was made that Bodra had influenced the Returning Officer I L887 Sup CI/72 368 for the purpose mentioned in section 123(7) of the Act. The essential ingredient of that provision is to obtain, procure etc. by a candidate of any assistance (other than the giving of a vote) for the furtherance of the prospects of that candidate 's election from any person in service of the Government and belonging to the classes mentioned in the sub section. There is absolutely no allegation or suggestion in para 21 that the Returning Officer was influenced by Bodra for the purpose of rendering assistance for the furtherance of the prospects of the election of any candidate. All that has been stated in that paragraph is that while hearing the objection the Returning Officer allowed irrelevant personal aspersions to be cast against the election petitioner by her opponents and Bodra. It was further stated that on inquiry the election petitioner came to learn that the Returning Officer had been influenced by Bodra. This influence apparently can have reference only to the conduct or act of the Returning Officer in allowing personal aspersions to be cast against the election petitioner. Even by stretching the language it is not possible to discover any of the ingredients which would constitute a corrupt practice under section 123(7) of the Act. Faced with this situation Mr. Anthony sought to rely on sub section (2) of section 123 the relevant part of which is as follows : "(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right: Provided that ". . " It is not possible to comprehend how the allegation contained in para 21 can be understood to amount to a suggestion of direct or indirect interference, or attempt to interfere on the part of the candidate etc. with the free exercise of any electoral right. We are accordingly satisfied that no allegation of any corrupt practice had been made in the election petition against Bodra and therefore he was not a necessary party within section 82 of the Act. In this view of the matter it is not necessary to examine the criticism of Mr. Anthony of that part of the judgment of the High Court according to which one of the reasons given for deciding issue No. 1 in favour of the present respondent was that no relief had been sought on the ground that undue influence had 'been exercised on the Returning Officer by Bodra and that no evidence was led on that point. On issues 2 and 3 Mr. Anthony has raised three main points The first was that the respondent who was a Christian by birth, was a divorcee and according to her own statement the decree 369 nisi in the divorcee proceedings had been made absolute on May 6, 1954. According to her she got married to late Shri Jaipal Singh on May 7, 1954. This marriage was a nullity as under section 57 of the she could not enter into a second marriage until after the expiry of six months from the date the decree had been made absolute. Secondly the High Court had palpably erred in holding that the respondent had become a member of the Munda tribe by marrying Shri Jaipal Singh and set aside the order of the Returning Officer who had held that she was a Christian by birth and Munda tribe being an ethnic group its membership could not be acquired by marriage but could be acquired only by birth. Thirdly it has been strongly urged that the respondent failed to prove the custom that a non Munda could be initiated into tribe as its full fledged member either by performance of certain rituals and ceremonies or by the acceptance as such by the tribe or its panchayat. As regards the first point it was never canvassed or argued before the High Court. No plea was taken by Shri Horo in the written statement that there could be no valid marriage between the respondent and late Shri Jaipal Singh owing to the provisions contained in section 57 of the until after the lapse of. a period of six months from the date the decree of divorce was made absolute. None of the issues which was framed by the High Court involve the question now sought to be agitated based on the provisions of section 57 of the . It appears that advantage is sought to be taken from the statement of the respondent about the various dates when the decree absolute was granted and the date when the marriage took place between the respondent and the late Shri Jaipal Singh. In the absence of any pleadings or issues no material has been placed on the record to show that in view of the provisions of section 57 of the aforesaid Act there could not be a valid marriage according to the Munda customary law. It must be remembered that the respondent contracted a marriage with late Shri Jaipal Singh according to Munda rites and ceremonies and not as one Christian marrying another Christian. Nor was the matter pursued in cross examination of the respondent and she was not asked as to how she could get over the bar of section 57 in theway of remarriage before the expiry of the prescribed period. In these circumstances we do not consider that such a pointcan be allowed to be agitated for the first time before this Court. On the second and the third points, a great deal of reliance has been placed on the following statement in the well known book of section C. Roy "Mundas and their country", 1912 Edn. "The Munda tribe is divided into a large number of exogamous groups called kilis. According to 370 Munda tradition, all the members of the same Kili are descended from one common ancestor. But such a tradition may not be quite correct with regard to the original kilis. Though exogamous as regards the kilis, the Mundas are endogamous so far as other tribes are concerned. Thus, there can now be no valid marriage, according to Munda custom, between a Munda and the member of any other 'kolarian ' tribe, such as the Santals, the Kharias the Asurs, or the Bir hors". According to Roy the family came to be evolved from tribes and sub tribes. Communal marriage was superseded by the individual marriage and Matriarchal Age was superseded by Patriarchal. Kinship came to be traced not as before, through a common female ancestor but through a male ancestor. D. N. Mazumdar in his work on the Ho tribe entitled "Affairs of a Tribe", 1950 Edn. points out that the rule of endogamy has its base in superstitious belief. According to him villages which are closely allied by ties of marriage are those which share the same God and Spirits and the same Deonwa. The influence of Deonwas, in other words, the knowledge of the Bongas of an area, determines the limit of exogamy, for there is a risk in marrying in villages the Bongas of which are unknown; (pp. 237 238). From the account given by section C. Roy himself it appears that according to the Munda custom the rule of endogamy is not absolute; for instance, in the case of Munda female married or unmarried found to have gone astray with a man of a different caste or tribe, it is said, that the latter is summoned before a Panchayat and a heavy fine is imposed on the lover and the fine, if realised, is paid as compensation to the parents of the seduced maiden or the husband of the married female and the seducer is compelled to take the girl or woman as a wife or a mistress and in case of refusal (which is rare) to submit to the orders of the Panchayat. The family of the seduced female remains outcaste until a purificatory ceremony is performed and thus restored to caste. The members of the family then cook rice. and pulse and themselves distribute the food to the assembled relatives; (see pp. 544 545.) The question that has to be enquired into is whether the strict rule of endogamy of the Munda tribe has been deviated from and whether custom has sanctioned such deviation. D. W. Mazumdar in his work "Races and Cultures of India" deals with tribal organisations in Chapter 17. According to him the definition that is found in the current literature on the subject is given in the Imperial Gazetteer which is, "A tribe is a collection of families bearing a common name, speaking a common dialect occupying or professing to occupy a common territory and is 371 not usually endogamous though originally it might have been so". Endogamy is an essential feature of the tribe though intertribal marriages are breaking the limits of endogamy. It is further stated by him that "the importance of the blood bond or the kinship group is forced to the background, the communal economy of the clan is superseded by individual desire for gain and property, money assumes an importance it seldom had before, and the ties of reciprocity and mutuality of obligation are reoriented to suit new conditions. Tribal custom and practices which established social life lose their value and the choice of 'leader and of mate is guided by different considerations". The Munda tribe cannot be said to be immune from the above process of change in their social Organisation. Changes in their belief, customs, traditions and practices have taken place under the in fluence of Hinduism, Christianity, and on account of the impact of western education, urbanisation, industrialisation and improved means of communication. The sense of individualism and lack of love for, the traditional code of conduct and social taboos ,ire stated to be apparent among the emerging urban industrial oriented adivasi communities. D. N. Mazumdar has made an intensive study of the rule of endogamy among the Ho tribe which is an off shoot of the Munda tribe. A reference to, the Ho practice may, therefore, help us in understanding the practice among the Mundas. According to D. N. Mazumdar "A Ho does not marry outside the tribe as a rule but there is today no legal or social prohibition against his doing so. Though tribal code has relaxed considerably those who work in the mining and industrial centers in and outside Kolhan contract such alliances and when they come back to their villages they are not outcasted by the society;" (pp. 124125, "Races and Cultures of India"). At another place he records : "The endogamy of the tribe is not sacred today, with the result that many marriages have taken place between the Hos and other tribes. Liaison between Diku men and Ho girls is increasing, and cases that have occurred in Chaibassa during the last ten years or so would fill a volume. Thus, there being no longer ,my deterrent to mating with strangers, social authority vested in the Killi punch has to exercise its prerogative to ensure a compliance with social traditions. Killi exogamy has not led to an indiscriminate alliance between the different killis and as far as our knowledge goes, taboo on marriage outside a particular local area can be traced to a dread of unfamiliar Bongas, who were conceived as hostile,. and therefore dangerous". (p. 236). 372 L. P. Vidyarthi in his work mentioned before based on his study of the social life of the Oraon and Munda tribes living in the city of Ranchi points out that a good number of cases of marriage between tribals and non tribals have occurred and that in his investigation he came across 53 cases of non tribal males marrying tribal girls. He points out that greater percentage of love marriages and marriages by 'Kept ' have been socially disapproved while 83.3% and 100 % of arranged and legal (civil) marriages have been approved. (See pages 102 103). We may how deal with the evidence produced by the parties on the above points. P.W. I who was working as District Wel fare Officer in May 1970 at Ranchi and who belongs to the Munda tribe stated that if a Munda male married a non Munda girl and such marriage was accepted by the society it would be a valid and proper marriage. The wife would, therefore, be accepted as a member of the tribe. He had himself married an Oraon girl and his wife though a non Munda has been accepted as a member of the Munda tribe. He further deposed that if the Munda married a non Munda a feast is given and if the elders of the society accept the marriage and participate in the feast that by itself would show that the tribal society has accepted the marriage and the wife has become a member of the tribe. P.W. 2 who is a nephew of the late Shri Jaipal Singh gave details of the ceremonies which were performed when the marriage between his uncle and the respondent took place. After the performance of those ceremonies the members of the tribe and the family declared that the respondent had been accepted as a member of the tribe. He himself is married to a non Munda girl though he was married according to Munda marriage rights as well as according to Hindu law. P.W. 3 who was at the material time working as Assistant Director in Sociology, Bihar Tribal Welfare Institute, stated that he had been doing research on the subject of Bihar Tribal Marriage and Family Transformation with special reference to Family law. One of his major duties was to ascertain from the members of different tribes facts relating to the subject of his research. According to his evidence a Munda male can marry a non Munda girl. After adopting a special procedure in some cases a non Munda wife is accepted as a member of the tribe. A certain procedure or formality has to be gone through. The council of elders of the tribal people has to be consulted and the special reason for the marriage is to be stated. Then various rituals are gone through and the marriage is allowed by the elders. He gave instances where, a Munda male had married a non Munda girl and their marriage had been accepted by the tribal people. One of these instances given by him related to persons belonging to the Santhals and Ho tribes. He maintained that the customs prevalent among these tribes were broad 373 ly the same as among the Mundas. In cross examination he stated that he had met the members of the Munda elder council and he had remained in touch with that council since 1952. He had made special research of Jojo Hatu which was a Munda village. He claimed to have submitted a report to the government in which he had collected hundreds of cases where a girl of a particular tribe had married outside her tribe. P.W. 4 was the Superintendent of the Anthropological Survey of India, Ministry of Education. As an Anthropologist he had to undertake full study in different parts of India mostly among the tribal community. He had studied Munda tribal custom which assignment had been given to him in 1965 66. In course of the research he found that a Munda could marry a non Munda girl even before 1954. He gave three kinds of unusual marriages one of which was where a Munda male married a non Munda female. The social consequences of that marriage was called Jati Bora. That meant that the Munda male had committed an offence against the whole community. Normally he would be ostracised along with his family but there was a process by which he and his wife could be admitted into the community. This process was known 'Niyar ' which means "to bring in or take in". The offending party invites the members of the Parha gives them a feast at which a white goat is sacrificed and the blood is smeared on the body of the boy and the girl along with Tarmolik and then they are allowed to sit along with the members of the community in the same Pankti. After that they are formally considered as members of the community. He was specifically asked a question with regard to the manner in which a Munda boy marrying a non Munda girl would be accepted by the community and his reply was that in his opinion the Parha was the ultimate authority in the matter of acceptance of a non Munda girl in the community. If a Parha accepted her that was final. in cross examination he stated that if a marriage of the nature under discussion is not approved by Parha he did not think it would be accepted by the members of the society. It may be mentioned that the evidence of this witness has been subjected to a good deal criticism by Mr. Anthony for the reason that he was only expressing an opinion on the last matter and was not making a def inite statement of fact. P.W. 5, who was attached to the office of the Deputy Commissioner, Palamau, gave an ac count of the ceremonies which were performed of the marriage between the respondent and late Shri Jaipal Singh. According to him the elders of the community unanimously decided that since permission had been given by the elders they would be taken as members of the tribe. He denied the suggestion that it was on account of the influence of late Shri Jaipal Singh that Pahans had given sanction to the marriage. According to him there had been other cases also where such sanction had been given. 374 P.W. 8 who claimed to be a Parha Raja of three Parhas, viz., Takara Parha, Sada Parha and Sagha Parha comprising 36 vil lages also gave evidence about the ceremonies which were performed at the marriage of late Shri Jaipal Singh with the respondent. After the performance of the ceremonies the Samaj of the Munda tribe accepted the marriage, according to him. He deposed to other instances where Munda had married non Mundals. He had attended a marriage of a Munda who had married a Ho girl. Sanction was given by the elders to that marriage. It is unnecessary to refer to the evidence of P.W. 10 who is also a Pahan and who claimed to have been present at the time of the marriage in question. He made a statement which has been subjected to justifiable criticism by Mr. Anthony about the document Exht 3. His evidence, therefore, does not deserve consideration. Out of the witnesses examined on behalf of the respondent mention may be made of the statement of Shri Horo himself who appeared as R.W. 6. After stating that the late Shri Jaipal Singh who was a leader of the Jharkhand Party and was an Adivasi and a Munda professing the Christian religion, he affirmed that the respondent did not have the right and status of a Munda on the basis of established custom. He admitted that there was a custom that a Munda who had been excommunicated from the tribe could be taken back but according to him that person must be a Munda and no non Munda could be accepted as a member of the tribe. The Munda could of course marry a non Munda but in the manner in which the Munda usually married a Munda. The custom among the Mundas is changing and it is dynamic and not static. The other witnesses produced by Shri Horo are not impressive and do not afford much assistance in deciding the points under discussion. According to the observations of the High Court Shri Horo did not examine any witness on his behalf who could say that he had made a special study and research of the marriage custom of the Munda tribe and that such a marriage was not acceptable in the present times in spite of all the changes which have taken place in the life and social structure of the community owing to the impact of the various factors which have been mentioned in the authoritative studies of eminent Anthropologists mentioned before. Our attention ha,, been drawn by Mr. Anthony to certain decisions for the proposition that in a tribe which is endoganotus birth alone can confer the status of membership of the tribal community. In V. V. Giri vs D. Suri Dora & Others(1) one of the, questions raised, was whether respondent No. 1 in that case had ceased to be a member of the Schedule Tribe at the material time because be had become a Kshtriya. This court observed that it (1) 375 was essential to bear in mind the broad and recognised features of the hierarchical social stricture prevalent amongst the Hindus. It was considered enough to state that whatever might have been the origin of the Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It was pointed out that a person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. We are unable to see how this case can be of any assistance in deciding the matter before us, namely, whether a non Munda can by marriage be recognised as a member of the Munda tribe in certain circumstances. The High Court, after discussing the evidence and referring to other authoritative books like "Tribes and Castes of Bengal" by H. H. Risley and "Encyclopedia Mundarica" by Rev. John Hoffman as also the statement in Encyclopedia Britannica, Vol. 15, and the Encylopaedia of Religion and Ethics by James Hastin ings, Vol. IX, apart from the work of J. Reid, I.C.S., on Chhota Nagpur Tenancy Act, observed that although originally very severe restrictions were imposed amongst the Mundas as far as marriage in their own Kili or seat was concerned, the process of Munda assimilation to the larger Indian society facilitated by im proved communications and the introduction of formal system of education was being accelerated under the independent Government of India. In Encyclopedia Britannica, Vol. 15 in the Chapter relating to Mundas it is also mentioned. "The Munda speaking people, with the other Indian tribal groups, are being encouraged to adopt new customs and to become fully participating members of Indian society". (page 991). Similarly in the Encyclopedia of Religion and Ethics by James Hastings, Vol. IX, it has been stated as to how Munda customs are being changed with the impact of the influence of Christianity. Referring to the Chapter in Reid 's book it has been noticed by the High Court that according to the Munda conception a wife becomes a member of the Kili of her husband by legal fiction. The High Court further relied on the decision in Wilson Reads vs C. section Booth(1) in which it was held that the question whether a person can be regarded as a member of the Khasi tribe was a question of fact depending upon the evidence produced in the case. It was said that the whole object of reserving a seat for a particular tribe was to afford the community, ;is a whole, a right of representation and therefore the question of the membership of a particular individual of that community could not be considered divorced from the very object of legislation. Thus the conduct of the community which had been given the right of special representation. the manner and how the (1) A. T. R 376 community regarded a particular individual and whether the community as a whole intended to take the individual within its fold were all matters which would be relevant for consideration of the question whether a particular person could be regarded as a member of the Scheduled Tribe. The High Court was alive to the fact and this point of distinction has been greatly emphasised by Mr. Anthony that in that case the appellant claimed to be a Khasi, his father being a European and his mother a member of the Khasi tribe. Even though the facts were different, the approach in such matters which commended itself to the Assam High Court can hardly be regarded as unsound. It appears to us, on a full consideration of the entire material. that the following matters stand established in the present case : (1) The Mundas are endogamous and inter marriage with non Mundas is normally prohibited. (2) That a Munda male along with his family on marrying a non Munda girl is often ex communicated or outcasted. (3) That the rule of endogamy is not so rigid that a Munda cannot marry a non Munda after performing special ceremonies. (4) That such marriages have been and are being sanctioned by the Parha Panchayat. (5) That where a Munda male and his family are ' outcasted for marrying a non Munda they are admitted to the tribe after certain special ceremonies are performed. Even in the account given by S.C. Roy as well as by P.W. 4 a Munda male is excommunicated for marrying a non Munda girl but such excommunication is not automatic. It is left to the discretion of the panchayat. If the panchayat approved of a particular marriage with a non Munda then no question of excommunication arises. Thus several inroads appears to have been made on the rigid system of endogamy which might have existed at one time but over the course of years several matters are left to be decided by the panchayat or elders of the tribe itself. There is no evidence whatsoever that the late Shri Jaipal Singh was excommunicated or outcasted because he had married a non Munda. On the contrary there is abundant evidence that his marriage was accepted as valid and was approved by the Parha Panchayat or the elders of the tribe. Reverting to the argument that a non Munda women cannot become a member of the Munda tribe by marriage even if the 377 marriage be valid because the Mundas are a patriarchical society and constitute an ethnic group, we have already referred to the evidence of the witnesses produced by the respondent who had made, special research in the matter and even if we exclude the opinion of P.W. 4 who was Superintendent of Anthropological Survey of India that the Parha was the final authority in the matter of acceptance of an non Munda girl in the community but the rest of his evidence cannot be brushed aside. From all this evidence it is proved that once the marriage of a Munda male with a non Munda female is approved or sanctioned by the Parha panchayat they become members of the community. They contention of Mr. Anthony that a person can be Munda by birth alone can be sustained only if the custom of endogamy is established without any exception. We have already held that the rule of endogamy has not been proved to exist in the rigid or strict form canvassed by Mr. Anthony. That rule has not been strictly followed and the marriage of a Munda male with a non Munda woman has been and is being approved and sanctioned by the Parha panchayat. If a non Munda woman 's marriage with a Munda male is valid it is difficult to say that she will not become a member of the Munda tribe. The, concept of a tribe is bound to undergo changes, when numerous social, economic, educational and other like factors in a progressive country start having their impact. It is noteworthy that a Hinduised Munda and a Munda converted to Christianity can inter marry and conversion to Christianity has not become an obstacle in the way of such marriage among the Mundas. Mr. Horo himself in all fairness affirmed that custom among the Mundas was not static but was dynamic and was changing. We do not find cogent or weighty reasons for disagreeing with the view of the High Court on the points under discussion. We may also refer to Article 330 of the Constitution accord ing to which the seats reserved for the Scheduled Tribes are to be reserved in the House of the People, inter alia, for members of these Tribes. Under section 33 (2) of the Act a candidate for a reserved seat has to file a declaration specifying a particular caste or tribe of which he is a member. Article 342(1) empowers the President to specify 'the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. In Parts 1 to 12 of the Schedule to the Constitution (Scheduled Tribes) Order 1952 are specified the tribes or tribal communities or parts of or groups within the tribes or tribal communities who are to be deemed to be Scheduled tribes. Munda is one of such specified tribes or tribal communities. It can well be said that the term "tribal community" has a wider connotation than the expression "tribe". A person who, according to the strict custom of a tribe '. 378 cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be_ excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use oil the term "tribal communities" in addition to the term "tribes" in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the tribal community to which her husband belongs on the anology of the wife taking the husband 's domicile. Even without invoking the doctrine of domicile the respondent 's marriage with late Shri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can be said that she became a me mber of the Munda tribal community. We have not been shown any infirmity in the reasoning of the High Court on this point. When a person, in the course of time, has been assimilated in the community it is somewhat difficult to comprehend how that person can be denied the rights and privileges which may be conferred on that community even though tribal by constitutional provisions. In the result this appeal fails and it is dismissed but in view of the nature of the points involved we leave the parties to bear their own costs in this Court. V.P.S. Appeal dismissed.

The respondent, who was a Tamil by birth and Christian by religion, had married a member of the Munda Schedule Tribe in the State of Bihar. On the death of her husband, who was a member of the Lok Sabha, she stood for election from a Parliamentary (Schedule Tribe) Constituency in the State. Another candidate B filed objections to her nomination that she was not a Munda and her nomination was rejected by the Returning, Officer, and the appellant was elected. She filed an Election Petition for setting aside the election of the appellant. She alleged that according to, the Munda Customary Law when a Munda male married outside the tribe, if his marriage was accepted by the tribe, he continued to be a member of the tribe and his wife also acquired its membership, and so, she became a Munda. In the petition it was also stated that while hearing B 's objections the Returning Officer allowed irrelevant personal aspersions to be cast against her and that the Returning Officer had been influenced by B. The High Court allowed the petition. Dismissing the appeal to this Court, on the questions : (1) Whether B. was a necessary party to the Election Petition; (2) Whether the marriage of the respondent, who was a divorcee, was a nullity under section 57 of the , in that she married her Munda husband within. six months from the date of the decree being made absolute; and (3) Whether the petitioner became member of the Munda Tribe, HELD : (1) According to section 82(b) of the Representation of the People Act, 1951, a petitioner must join as a respondent any candidate against whom allegations of any corrupt practices are made in the election petition. Section 123 deals with corrupt practices. The essential ingredient of section 123(7) on which reliance was placed, is to obtain, procure etc. by a candidates of any assistance (other than the giving of a vote)for the furtherance of the prospects of that candidate 's election from any person in the service of the Government and belonging to the classes. mentioned in the sub section. In the present case, there was absolutely no allegation or suggestion that the Returning officer was influenced by B for the purpose of rendering assistance for the furtherance of the prospects of a candidate 's election. The influence, mentioned in the election petition, had reference only to the conduct of the Returning Officer is allowing personal aspersions to be cast against the respondent. The allegations do not also amount to any suggestion of direct or indirect interference or attempt to interfere on the part of a candidate with the free exercise of any electoral right, and hence, do not amount to undue influence under section 123(2). Therefore, since there was no allegation of any corrupt practice against B be was not a necessary party. [366 D H;368 A G] 362 2 The respondent had contracted a marriage with a Member of the Munda Tribe according to Munda rites and ceremonies and not as one ,Christian marrying another Christian. In the absence of any pleadings .Or issues or material on record to show that in view of the provision, of Is. 57 of the there could not be a valid marriage ,a ccording to Munda customary law, such a contention could not be allowed to be agitated for the first time in this Court. [369 D G] 3(i) The information contained in authoritative books dealing with Munda Customary Law and the evidence of witnesses who had made special research in the matter, show that : (a) The Mundas are endogamous and intermarriage with non Mundas is normally prohibited; (b) A Munda male along with his family, on marrying a non Munda girl, is often excommunicated or outcasted; (c) the rule of endogamy is, however, not so rigid that a Munda cannot marry a non Munda even after performing special ceremonies; (d) Such marriages have been and are being sanctioned by Parha Panchayat, and (e) Where a Munda male and his family are outcasted for marrying a non Munda they are readmitted .to the tribe after certain special ceremonies are performed. [376 C F] In the present case, there is no evidence that the deceased husband of the respondent was ex communicated or outcasted because he had married a non Munda; on the contrary, the evidence is that the rule of endogamy has not been observed in a rigid or strict form, and that the marriage was accepted as valid and was approved by the Parha Panchayat and the elders of the Tribe. Once the marriage of a Munda male with a non Munda female is approved or sanctioned by Parha Panchayat they become members ,of the community. The contention that a person can be a Munda by birth alone can be sustained only if the custom of endogamy is established with,out any exception. [377 A D] (ii) Munda is one of the specified tribes or tribal communities in the 'Schedule to the Constitution (Schedule Tribes) Order 1952. The term 'tribal community ' is of wider connotation than the expression 'tribe '. A "person who, according to the strict custom of a tribe, cannot be regarded ,as a member of that tribe may be regarded as a member of that tribal community. Where a non Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Pahra Panchayat of that tribe, and the marriage is valid, she may not, on the assumption that 'the rule of endogamy prevails, become a member of the Munda tribe in the stick sense as not having been born in the tribe. But a marriage between a Hinduised Munda and a Munda converted to Christianity is permitted. That being so, the wife cannot be excluded from the large r group, namely, the tribal community. In the present case the respondent 's manage with a Munda male having been approved and sanctioned by the Pahra panchayat of the Munda tribe, it can be said that she became a member of the Munda tribal community. When a person, in course ,of time, has been assimilat ed into the community that person cannot be denied the rights and privileges which may be conferred on that community, even though tribal, by Constitutional provisions. [377 E, H; .378

Appeal No. 79 of 1965. Appeal from the judgment and order dated August 5, 1964. of the Rajasthan High Court, Jodhpur, in D.B. Civil Writ Petition No. 536 of 1964. L,/B(D)SCI 13 174 Sarjoo Prasad, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant. M.M. Tewari, K.K. Jain and R.N. Sachthey, for respondent No. 1. B.B. Tawakley and K.P. Gupta, for respondent No. 2. The Judgment of the Court was delivered by Raghubar Dayal, J. This appeal, on certificate granted by the Rajasthan High Court, is against the dismissal of the appellant 's writ petition under article 226 of the Constitution praying for the issue of a writ of certiorari to the State of Rajasthan, respondent No. 1. for the canceling and setting aside of its order dated April 1, 1964 granting the contract for collecting royalty on building stones excavated from certain area to respondent No. 2, Dharti Dan Shramik Theka Sahkari Samiti Ltd., a cooperative society. The appeal arises in these circumstances. The appellant offered the highest bid at the auction for the grant of royalty collection contract on January 21, 1964. Respondent No. 2 was also one of the bidders, but stopped after offering a bid of Rs. 33,000. The final bid of the appellant was for Rs. 42,200. The State Government made the order in favour of respondent No. 2 on an application made by it on March 5. stating therein that the appellant had not deposited 25 per cent of the bid amount as security immediately after the completion of the auction in accordance with r. 36(7) of the Rajasthan Minor Mineral Concession Rules, 1959, hereinafter called the rules, and as per the terms and conditions of the Auction Notification and that it was prepared to take the royalty collection contract on the highest bid of Rs. 42,200. It was further stated in the application that respondent No. 2 was a cooperative society of the laborers who themselves worked on the mines of the area and therefore in view of Government 's policy it should receive preference to an individual bidder. It was further stated that the benefit accruing out of the contract of royalty collection would be shared by the labourers and workers themselves which would go a long way to improve their socioeconomic conditions and thus ultimately would ameliorate the conditions of the workers who were working hard in quarries since long. The contention for the appellant is that the Government had merely to confirm the highest bid at the auction by way of formality and was not competent to sanction the contract in favour of someone who had not offered the highest bid at the auction. Rule 34 of the rules provides that royalty collection contracts may be granted by the Government by auction or tender for a maximum period of two years after which no extension was to be granted. The procedure for auction is provided by r. 36. Sub rule 175 (5) thereof provides that no bids shall be regarded as accepted unless confirmed by Government or the competent authority and sub rule (7) provides that on completion of the auction the result will be announced and the provisionally selected bidder shall immediately deposit 25 per cent of the amount of bid for one year and another 25 per cent as security for due observance of the terms and conditions of the lease or contract. It is admitted for the appellant that on completion of the auction he did not deposit 25 per cent of the bid as security in compliance with the provisions of sub r. He therefore lost whatever claim he could have had for the final acceptance of his bid by Government and therefore cannot question the grant of the contract to any other person by the Government. The appellant urges that he held such royalty collection contract for the year 1963 64 and had deposited Rs. 9,250 as security for the due performance of that contract. On February 12, 1964, over three weeks after the auction, he submitted an application to the Mining Engineer, Jaipur, stating that he had been continuously taking contract for the last three years and that he was depositing Rs. 1,300 and that the balance of the security amount required, i.e. Rs. 9,250 be adjusted against Rs. 9,250 with the Government in connection with the earlier contract. This letter was not replied to. The request made in this letter could not possibly be accepted. The earlier contract was to continue up to March 31, and the security money had to remain with the Government upto that date. It is only after March 31, that anything could be said with some definiteness as to how much of the security money in deposit would be available to the contractor. Paragraph 2 of the Form of Agreement of Collection of Royalty on Minor Minerals, prescribed under the rules, and set out in the Schedule to the rules, states that the agreement shall remain in force for a period commencing from first April of a year and ending on March 31 of the next year on which the period of the contract would expire and that the security would be refunded on the termination of the contract. Para 6 of the Form provides that for the due fulfillment of the terms and conditions of the contract the Contractor shall deposit 25 per cent of the contract money in advance as security which will be refunded on the termination of the contract. The appellant alleged that there was a practice of adjusting previous security amounts towards the security for the next contract. The practice is denied on behalf of respondent No. 1 and the practice against the provisions of the rules cannot be recognized as of any binding effect. It may be mentioned here that the representation which the appellant made to the State Government on April 6, 1964, made no reference to his depositing the security by depositing Rs. 1,300 and by making a request for the adjustment of the balance from the security amount already in deposit and indicates that he too did not consider the request for adjustment of the amount acceptable. 176 There is nothing in r. 36 of the rules which may lead to the conclusion that the Government has to accept the highest bid by formally confirming it or that it cannot grant the contract to any person other than one who had bid the highest. A bid is not regarded as accepted unless it is confirmed by Government. The Government has therefore discretion to confirm the bid or not to confirm it. Further, r. 59 provides for the relaxation of any provision of the rules in the interest of mineral development or better working of mines. There is the letter dated February 14, 1962 from the Director of Mines and Geology, to All Mining Engineers on the subject of encouragement of cooperative mines and states that cooperative societies ought to be encouraged for mining work also as per directive of the Government of India. Respondent No. 2 addressed a letter to the Director of Mines and Geology and referred to Government policy for the encouragement of cooperative societies in connection with royalty collection contracts. The order of Government dated April 1, 1964, after referring to the appellant 's offering the highest bid, stated that the Government was satisfied that the Society, respondent No. 2, was a suitable party for the grant of the said contract. The view taken by the Government in preferring respondent No. 2 to the appellant for the grant of the contract cannot be said to be arbitrary or without any justification. The cooperative society is of the labourers who work in the mines and it is obvious that any benefit arising out of the contract would go to the labourers and thus improve their economic position. In view of the spirit underlying r. 59, Government could therefore relax any such rule which could in any way come in the way of its granting the contract to respondent No. 2. We therefore hold that the Government was competent to give the contract to respondent No. 2 it being not bound to accept the highest bid at the auction, though usually it accepts such bids. Another consideration which is decisively against the appellant is that the contract for the collection of royalty for the year 1964 65 is shortly to come to an end and it would not be desirable, even if the appellant 's contentions were acceptable, to interfere with that contract. Reference, in this connection. may be made to the decision of this Court in K.N. Guruswamy vs State of Mysore(1) where the appellant was refused a writ solely on the ground that it would have been ineffective, the period of the impugned contract coming to an end after about a fortnight of the order of this Court. That was a case where on merits the Court was of opinion that the writ should have been issued. We therefore dismiss the appeal and order the parties to bear their own costs. Appeal dismissed.

The appellant offered the highest bid at the auction for the grant of royalty collection contract on January 21, 1964. Respondent No.2 a cooperative society of workers was also one of the bidders. Resportdent No. 2 made an application on March 5, 1964 to the Government stating therein that the appellant had not deposited 25 Dee cent of the bid amount as security within the time prescribed by Rule 36(7) of the Rajasthan Minor Mineral Concession Rules, 1959, and that it was prepared to take the royalty collection contract on the highest bid as made by appellant. On the above application the State Government made an order in favour of Respondent No. 2. The appellant thereupon filed a writ petition in the High Court which was dismissed. He was however granted a certificate of fitness. In appeal it was contended that the Government had merely to confirm the highest bid at the auction by way of formality and was not competent to sanction the contract in favour of someone who had not offered the highest bid at the auction. HELD: (i) The appellant had admittedly failed to deposit 25 per cent of the bid as security in compliance with the provisions of Rule 36(7). The rules did not contemplate adjustment of security deposited for an earlier period as the appellant claimed. He therefore lost whatever claim he could have had for the final acceptance of his bid by Government and therefore could not question the grant of the contract to any other person by the. Government. [175 B C] (ii) Nothing in Rule 36 requires the Government to accept the highest bid by formally confirming it. The Government has discretion to confirm the bid or not to confirm it. Further Rule 59 provides for the relaxation of any provision of the rules in the interest of mineral development or better working of the mines. [176 A B] (iii) The view taken by the Government in preferring Respondent No. 2 to the appellant cannot be said to be arbitrary or without any justification. The cooperative society is of the laborers who work in the mines and the benefit of the contract would go to the labourers. In view of the spirit underlying Rule 59, Government could therefore relax any such rule which could in any way come in the way of" its granting the contract to Respondent No. 2. [176 D F] (iv) The time for which the contract was granted was shortly to come to an end, and it would not be desirable even if the appellant was right to interfere with the contract. [176 G] K.N. Guruswamy vs State of Mysore, ; , relied on.

Appeals Nos. 134 to 137 of 1959. Appeals by special leave from the judgment and order dated September 20,1957, of the Bombay High Court in Income Tax Reference No. 14 of 1957. R. J. Kolah, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants. K. N. Rajagopal Sastri and D. Gupta, for the respondent. January 3. The Judgment of the Court was delivered by HIDAYATULLAH, J. This judgment governs the disposal of Civil Appeals Nos. 134 to 137 of 1959. They have been filed by four assessees with special leave, and arise out of similar facts, and it is not necessary to refer to more than one case to consider the point in question. The assessment year under consideration is 1952 53, and the previous year, the Calendar year, 1951. In that year, Mr. Tulsidas Kilachand, one of the four appellants, made a declaration of trust in favour of his wife, a portion of which may be quoted here: ". . . 1, Tulsidas Kilachand hereby de clare that I hold 244 shares of Kesar Corporation Ltd. and 120 shares of Kilachand Devchand & Co., Ltd upon trust to pay the income thereof to my wife Vimla for a period of seven years from the date hereof or her death (whichever event may be earlier) and I hereby declare that this trust shall not be revocable." In the year of account, a sum of Rs. 30,404 was received as dividend income on those shares, and the assessee contended that this income, after being grossed up, was not liable to be included in his total income, in view of the third proviso to section 16(1)(c) of the Indian Income tax Act. The Income tax Officer did not accept this contention, and though the assessment order is not before us, we gather from the statement of the case that the reason he gave was that the income had accrued to or had arisen in the hands of 353 Mr. Tulsidas Kilachand and had been paid by him to his wife. The Income tax Officer held that the words of the proviso "income arising to any person by virtue of a settlement or disposition" did not apply to this income. On appeal, the Appellate Assistant Commissioner held that the case was governed by section 16(3)(b), and need not be considered under the third proviso. to section 16(1)(c) of the Act. It appears to have been conceded before him that if the former provision applied, the proviso would not save the income from being assessed in the hands of Mr. Tulsidas Kilachand. The appeal was dismissed. In the appeal before the Tribunal, Mr. Tulsidas Kilachand again relied upon the third proviso to section 16(1)(c), and contended that the case was riot governed by section 16(3)(b) and that the dividend income could not be included in his assessment. The Tribunal came to the conclusion that the case was covered either by section 16(3)(a)(iii) or by section 16(3)(b), and that the income from the shares was, therefore, liable to be included in the income of Mr. Tulsidas Kilachand. The Tribunal, however, raised and referred the following question under section 66(1) of the Act to the High Court of Bombay: "Whether on a true construction of the deed of declaration of trust dated 5th March , 1951, the net dividend income of Rs. 30,404 on 120 shares of Kilachand Devchand & Co., Ltd. and 244 shares of Kesar Corporation Ltd. held under trust by the assessee for the benefit of his wife was income liable to be included in the total income of the assessee? The High Court came to the conclusion that, though section 16(1)(c) was not satisfied in view of the third proviso, section 16(3)(b) was applicable to the case, and answered the question in the affirmative. In the appeal before us, the case for the Department was based both on section 16(3)(a)(iii) and section 16(3)(b), while the appellants contended that this disposition fell within the third proviso to section 16(1)(c). The relevant provisions are: 45 354 " 16. Exemptions and exclusions in determining the total income. (1) In computing the total income of an assessee. . . . . . . . . (c) all income arising to any person by virtue of a settlement or disposition whether revocable or not, and whether effected before or after the commencement of the Indian Income tax (Amendment) Act, 1939 (7 of 1939), from assets remaining the property of the settlor or disponer, shall be deemed to be income of the settlor or disponer, and all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be income of the transferor: Provided. . . . . . . . . Provided further. . . . . . . . Provided further that this clause shall not apply to any income arising to any person by virtue of a settlement or disposition which is not revocable for a period exceeding six years or during the lifetime of the person and from which income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be assessed on the said income as and when the power to revoke arises to him. (2). . . . . . . . (omitted) (3). In computing the total income of any individual for the purpose of assessment, there shall be included (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly (i). . . . . . . . . (ii). . . . . . . . . . (iii) from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart; or (b). so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or 355 association by such individual for the benefit of his wife or a minor child or both. " The object of framing section 16 can almost be taken from the observations of Lord Macmillan in Chamberlain vs Inland Revenue Commissioners (1), where he stated as follows: "This legislation . (is) designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlements. Stated quite generally, the method consisted in the disposal by the taxpayer of part of his property in such a way that the income should no longer be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The legislature 's counter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, notwithstanding, be treated as still his income and taxed in his hands accordingly. " These observations apply also to the section under consideration, and the Indian provision is enacted with the same intent and for the same purpose. Section 16 thus lays down certain exemptions and exclusions in determining the total income of an assessee. Some of the provisions lay down the conditions for inclusion of certain income, while others lay down the conditions for exclusion of other income. We are concerned with the income accruing in case of settlements and the conditions under which income of a wife is treated as the income of the settlor or disponer or as the income of the husband. We have to see if the pro visions for exclusion or inclusion apply to this case. Section 16(1)(c) provides that income from assets remaining the property of the settlor or disponer or arising to any person by virtue of a revocable transfer of assets shall be deemed to be the income of the transferor. What cl. (c) means was decided by this Court in Provat Kumar Mitter vs Commissioner of Income tax (2). There, Provat Kumar Mitter had assigned the dividends only, and had not transferred the relevant shares. It was held by this Court that this (1) , 329. (2) 356 was a case of application of one 's own income and not assignment of the source from which the income was derived, which alone saved the income from tax, subject, however, to provisions like section 16(1)(c) and section 16(3). The deed in favour of the wife in that case gave only a right to the dividends, and not being a transfer of an existing property of the assessee, section 16(1)(c) and the third proviso were not attracted. That case thus has no application to the facts of the present case, where the disposition is differently made. The disposition here is for a period of seven years or the life of the settle ' whichever is shorter. During that period or the life of the settlee, Mr. Tulsidas Kilachand has bound himself upon trust to pay the dividends to his wife and not to revoke the settlement. The intention is obviously to put this case within the third proviso to section 16(1)(c), because cl. (c) does not apply to any income arising to any other person provided the disponer derives no direct or indirect benefit, even though the assets remain his property. If it were only a question of the application of the proviso, this disposition would be exempt. But by the deed of trust, the settlor holds the shares in trust; the shares do not remain the property of the settlor. Section 16(1)(c) has, therefore, no application, and the proviso is not attracted. The section goes on to deal with other situations and to provide for them specially. Sub section (3) provides specially for assets transferred to the wife or minor child. Income from assets transferred to the wife is still to be included in the total income of the husband, (a) if the assets have been transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration [vide sub section (3)(a)(iii)], or (b) so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife [vide sub section (3)(b)]. The first question is whether there can be said to be transfer of assets to the wife or to 'any person ' for the benefit of the wife. The second question is whether there was adequate consideration for the transfer, if 357 there was one The contention of the assessee is that there was no transfer of any assets at all. It is contended that the ownership of shares involves a bundle of rights, and that they are, generally speaking, (a) right to vote, (b) right to participate in the distribution of assets on dissolution, and (c) right to participate in the profits, e. g., dividends which might be Hi, .declared. It is pointed out that none of these rights was transferred to the wife, because transfer of assets connotes a creation of a right in the assets in praesenti. It is urged that there was no transfer of assets either to the wife or to any person for the benefit of the wife but merely a creation of a trust in respect of the shares, the dividends from which were payable to the wife, and that thus section 16(3)(a)(iii) or section 16(3)(b) was not applicable. It is lastly contended that even if it be held that there was such a transfer, it was for adequate consideration, being for love and affection, which is a good consideration. The contention that there was no transfer at all in this case is not sound. The shares were previously held by Mr. Tulsidas Kilachand for himself. After the declaration of trust by him, they were held by him not in his personal capacity but as a trustee. No doubt, under sections 5 and 6 of the Indian Trusts Act if the declarer of the trust is himself the trustee also, there is no need that he must transfer the property to himself as trustee; but the law implies that such a transfer has been made by him, and no overt act except a declaration of trust is necessary. The capacity of the declarer of trust and his capacity as trustee are different, and after the declaration of trust, he holds the assets as a trustee. Under the Transfer of Property Act, there can be a transfer by a person to himself or to himself and another person or persons. In our opinion, there was, in this case, a transfer by Mr. Tulsidas Kilachand to himself as a trustee, though there was no formal transfer. The assessee also stresses the words "any person or association of persons" in section 16(3)(b), and contends that such a person must be other than the husband, who transfers. The word "any person" is wide 358 enough to include the husband, when he transfers property to himself in another capacity. The change of capacity makes him answer the description "any person". This deed must be regarded as involving a transfer by the husband to a trustee, and even though the husband is the same individual, in his capacity as a trustee he must be regarded as a person distinct from the transferor. In our opinion, section 16(3)(b) covers the case. It remains to consider whether there was adequate consideration for the transfer. Reliance has been placed only upon love and affection. The words "adequate consideration" denote Consideration other than mere love and affection, which, in the case of a wife, may be presumed. When the law insists that there should be "adequate consideration" and not good consideration", it excludes mere love and affection. They may be good consideration to support a contract; but adequate consideration to avoid tax is quite a different thing. To insist on the other meaning is really to say that consideration must only be looked for, when love and affection cease to exist. In our opinion, this case falls within the special rules concerning wife and minor child, laid down in section 16(3)(b) and not within the third proviso to section 16(1)(c). It must thus be held that there was a transfer of the assets to the husband trustee for the benefit of the wife, The answer given by the High Court was thus correct. The appeals fail, and are dismissed with costs. One hearing fee. Appeals dismissed.

By a deed dated March 5, 1951, the appellant made a declaration of trust in favour of hiswife as follows: "I hereby declare that I hold 244 sharesupon trust to pay the income thereof to my wifefor a period of seven years from the date hereof or her death (whichever event may be earlier) and I hereby declare that this trust shall not be revocable". In the year of account, 1951, a sum of Rs. 30,404 was received as dividend income on those shares and the appellant claimed before the income tax authorities that this sum was not liable to be included in his total income in view of the third proviso to section 16(1)(c) of the Indian Income tax Act, 1922, but this claim was rejected on the ground that the case was covered either by section 16(3)(a)(iii) or by section 16(3)(b) of the Act. The appellant 's contention was that under the deed of trust there was no transfer of assets either to the wife or to any person for the benefit of the wife but merely a creation of a trust in respect of the shares, the dividends from which were payable to the wife, that even if it be held that there was such a transfer, it was for adequate consideration being for love and affection which was a good consideration, and that thus section 16(3)(a)(iii) or section 16(3)(b) was not applicable. Held, that on a true construction of the deed dated March 15, 1951, there was a transfer of the shares by the husband to himself as a trustee for the benefit of the wife and that even though the husband was the same individual, in his capacity as a trustee he must be regarded as a person distinct from the transferor. Held, further, that the words "adequate consideration" in section 16(3) of the Indian Income tax Act, 1922, denoted considera tion other than mere love and affection, which, in the case of a wife, may be presumed. Accordingly, the present case fell within section 16(3)(b) of the Act and not within the third proviso to section 16(i)(c). Provat Kumar Mitter vs Commissioner of 'Income tax; , , distinguished.

Civil Appeal Nos. 1993 1994 or 1977. Appeals by Special Leave from the Judgment and Order dated 22 3 77 of the Madras High Court in C.M.P. Nos. 3449 and 3563 of 1976. M.R.M. Abdul Karim and section Shaukat Hussain for the Appellant. A. K. Sen (In C.A. 1993), Mrs. Shyamala Pappu (C.A. 1994), and A. V. Rangam for the Respondent. It is the art of the great either who with a line reveals infinity. It is the art of the great dramatist who with a significant word shakes the soul. Schiller, said Coleridge, burns a city to create his effect of terror: Shakespeare drops a handkerchief and freezes our blood. For this exquisite reason, brevity is the soul of art and justicing including judgment writing, must practise the art of brevity, especially where no great issue of legal moment compels long exposition. Therefore, we mean to be brief to the bare bones, with a few facts here and a brief expression of law there, by adopting the technique which "is simply the perfect economy of means to an end". For another reason also the need for parsimony exists. The court is in crisis, docket logged and fatigued. A judgment can be brief but not a blank and there is no reason to repeat the details of a case where there is an exhaustive statement in the judgment under appeal, as in this case. We adopt these long pages of judicial manuscript and abbreviate our conclusion in a few pages. The appellant plaintiff, a woman was on terms of intimacy with the respondent defendant, a wealthy man who had enjoyed a long and intimate relationship with her. The respondent owned a lovely mansion on the Marina in Madras which he agreed to sell to the appellant for a consideration of around Rs. 4 lakhs way back in April 1967. This was subject to an equitable mortgage over the property in favour of the South Indian Bank, Coimbatore. When the two separated litigation erupted. A suit for specific performance of the agreement to sell was brought where both sides took up unrighteous positions, and 295 the trial court (the original side of the High Court of Madras) decreed the suit directing the plaintiff to deposit the mortgage amount plus Rs. 5,000 with interest at 11 per cent till the date of payment. The whole consideration, except the mortgage amount and a sum of Rs. 5,000 had already been paid at the time of the agreement and possession had been made over to the plaintiff by the defendant. The decree also provided that the amount should be deposited into court by the time specified therein, failure to do which would result in the suit itself being dismissed. The amount was not deposited within the time limited but some months later the plaintiff paid the mortgage money to the mortgagee bank and took an assignment of its rights and got herself impleaded as second plaintiff in the suit which, by then, had been instituted by the bank against the present defendant (O.S. No. 154 of 1968). Eventually, the mortgage suit resulted in a decree in favour of the present plaintiff (second plaintiff therein); and the amount now due has, by now, swollen to around Rs. 11 lakhs or so. An appeal had been carried by the plaintiff appellant to a Division Bench of the High Court which rejected most of her contentions except one. The court, while affirming that the direction to make a deposit into court within three months was valid, vacated the default clause, namely, the dismissal of the suit on non payment within the time. Read in the light of Section 28 of the Specific Relief Act and the rulings on the point which were cited before us, the proper course in this situation was to pass a decree for specific performance, which would, for all practical purposes, be a preliminary decree. The suit would continue and be under the control of the court until appropriate motion was made by either party for passing a final decree. The plaintiff appellant moved the court by interlocutory applications for giving credit to the amount paid by her to the mortgagee bank and to pass a final decree in her favour. That was not granted. Various skirmishes, essentially of an interlocutory nature, took place. Ultimately, on two applications, one by the plaintiff appellant and the other by the defendant respondent the court made a judgment which is the subject matter of this appeal. The plaintiff 's application was dismissed and extension of time by way of adjustment of the mortgage amount paid was refused and a decree for recession of the contract for sale was passed and for delivery of possession with mesne profits. It is perfectly open to the court in control of a suit for specific performance to extend the time for deposit, and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour. The disentitling circumstances relied upon by the defendant respondent are off set by the false pleas raised in the course of the 296 suit by him and rightly negatived. Nor are we convinced that the application for consideration and extension of time cannot be read, as in substance it is, as a petition for more time to deposit. Even so, specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief. The final end of law is justice, and so the means to it too should be informed by equity. That is why he who seeks equity shall do equity. Here, the assignment of the mortgage is not a guideless discharge of the vendor 's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation misfires. To sterilise this decree is necessary equity to which the appellant must submit herself before she can enjoy the fruits of specific performance. In the present case, with all that has been said by both sides and we have heard at great length arguments by Shri Abdul Karim for the appellant and Shri A. K. Sen and Smt. Shyamala Pappu for the respondents it is clear that an opportunity for the appellant to deposit into court the amount directed by the trial court, together with interest down to date at 11 per cent., should be accorded. We are not discussing the principles of law as they are well settled and do not require reiteration. The equitable terms we have adverted to earlier must be remembered in this context. The appellant who was bound to discharge the mortgage acted contrary to the agreement because, instead of paying the mortgage money and extinguishing the mortgage (which was, perhaps, a pardonable exercise, in lieu of deposit into court) she, under some ill advice took an assignment of the equitable mortgage with a view to using it against the respondent. Surely, this was not consistent with the understanding assumed under the contract. This justifies the view of the High Court that as a price for the indulgence of being allowed to deposit long after the due date was over the unrighteous advantage gained by taking an assignment of the mortgage should be nullified. In brief, while the appellant may be allowed to deposit the amount due under the agreement, viz., Rs. 3,45,000 together with interest at 11 per cent. from April 1967 upto date, the mortgage decree in her favour must be extinguished, save to the extent of the cash then paid. The High Court expressed a slightly drastic though similar view, somewhat loosely, thus: After we have expressed our opinion and dictated this order, the learned counsel for the Plaintiff orally requests us to permit the Plaintiff to deposit the entire amount as directed by the learned trial Judge in the Court. Having regard to the 297 fact that no such stand was taken at any earlier stage and this request has been orally made only after we have dictated this order, we do not see any justification whatever for complying with this request. We may also point out that there is no actual undertaking given by the plaintiff herself that even if we give such an opportunity to the Plaintiff to deposit the sum of Rs. 3,45,000 into this Court now, she will give up her right under the mortgage decree, which she has obtained against the defendant in the present suit in O.S. No. 154 of 1968. (emphasis added) We agree with the substance of this direction, but without going that far pass a conditional decree. We should have taken long pages and elaborate argument in substantiation of the course we adopt, but for reasons adduced at the very beginning, we decline to do so. We gather that in many jurisdictions the highest Court, which hears the arguments at enormous length and has the advantage of a complete statement of facts and discussion of law in the judgment under appeal, limits itself to a severe economy of words in the statement of its reasoning. We regard this as a wholesome step. Natural justice necessitates full hearing, not a flood of words of forbidding length. We direct that a decree be passed that the plaintiff appellant do deposit within six months from to day the entire sum of Rs. 3,45,000 together with interest due upto date at the rate of 11 per cent. , together with an undertaking that she would give up all her rights under the mortgage decree passed in her favour in O.S. No. 154 of 1968, except to the extent of the amount actually paid to the South Indian Bank for taking the assignment. If these two conditions are fulfilled, the appeal will stand allowed and a final decree for specific performance passed. In the event of non compliance with either of these conditions the appeal will stand dismissed with costs.

In 1967 the respondent agreed to sell his house to the appellant for a sum of Rs. 4 lakhs which then was subject to an equitable mortgage in favour of a bank. The trial court decreed the suit for specific performance directing the plaintiff to deposit the mortgage amount within a specified time with interest at 11 per cent till the date of payment and that failure to pay the amount would result in the suit being dismissed. At the time of the agreement the plaintiff paid the whole consideration except the mortgage amount and obtained possession of the house. The plaintiff did not deposit the mortgage amount within the prescribed time. She paid the mortgage money to the bank some months afterwards and took an assignment of its rights. In the suit filed by the bank against the defendant she got herself impleaded as second plaintiff. Eventually the mortgage suit resulted in a decree in favour of the appellant. By this time the amount had swollen to Rs. 11 lakhs. On appeal a division bench of the High Court vacated the default clause. The plaintiff 's application for giving credit to the amount paid by her to the mortgage bank and to pass a final decree in her favour was not granted by the High Court. The High Court ultimately passed a decree for recession of the contract for sale and for delivery of the possession with mesne profits. ^ HELD: The High Court should pass a decree that the plaintiff appellant should deposit within six months the entire consideration together with interest due upto date at the rate of 11 per cent together with an undertaking that she would give up all her rights under the mortgage decree passed by the High Court, except to the extent of the amount actually paid to the bank for taking the assignment. [297 E] It is open to the court in control of a suit for specific performance to extend the time for deposit and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour. The disentitling circumstances relied upon by the defendant are offset by the false pleas raised in the course of the suit by him and rightly negatived. Specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even while granting the relief. [295 H] In the instant case the assignment of the mortgage is not a guileless discharge of the vendor 's debt as implied in the agreement to sell but a disingenuous disguise to arm herself with a mortgage decree to swallow up the property in case the specific performance litigation fails. The appellant acted contrary to the agreement because instead of paying the mortgage money and extinguishing the mortgage she took an assignment of the equitable mortgage with a view 294 to use it against the respondent. This was not consistent with the understanding assumed under the contract. [296 C]

Civil Appeal No. 2821 of 1987 From the Judgment and order dated 4.9.1986 of the Jammu and Kashmir High Court in 15 Civil 2nd Appeal of 1975. D.D. Thakur, E.C. Agarwal, Atul Sharma, Vijay Pandit and 558 Ms. Poornima Bhatt, for the Appellants. Anil Dev Singh, Dr. Meera Agarwal, R.C. Mishra and Mushtaq Ahmed, for the Respondent. The Judgment of the Court was delivered by KANIA, J. This is an appeal against the judgment of a learned Single Judge of the High Court of Jammu & Kashmir in a Second Appeal. The Appellants are the heirs and legal representatives of one Indro Devi. The Respondent is the heir and legal representative of one Raghunath Dass Lakra. Very few facts are necessary for the disposal of the Appeal before us. The dispute relates to a piece of land measuring 4 marlas and 99 sq. situated at Residency Road in Jammu. This land was granted to one Attar Chand by the Government of Kashmir on a long lease. As per the practice prevailing in the State of Jammu & Kashmir he was known as the Wasidar in respect of the said land. On his death his son Guranditta Mal inherited the lease hold rights of Attar Chand and on the death of Guranditta Mal his widow Indro Devi, who was the original plaintiff, inherited the lease hold rights under the said lease on the basis of a Will executed by Guranditta Mal in her favour. Guranditta Mal, during his life time, in 1954, had granted a sub lease of the said land to Raghunath, the father of the Respondent herein. Indro Devi instituted a suit in the Court of the learned Sub Judge, Jammu for recovery of possession of the said land on the ground that Reghunath Dass had sub let the house constructed by Raghunath Dass on the said land and was liable to be evicted under the provisions of the Transfer of Property Act read with Section 11 of the Jammu & Kashmir Houses and Shops Rent Control Act (hereinafter referred to as the "J & K Rent Act"). She also contended that the land was required by her bona fide for occupation by her and her family. The period of the said sub lease had expired and it was alleged that in the aforesaid circumstances, the respondent was liable to be evicted. These allegations were denied by the Respondent. It was inter alia contended by the Respondent that the sub lease granted to Raghunath was void ab initio. It was held by the learned Sub Judge that the ground of bona fide requirement of the landlord as well as unlawful sub letting by the sub lessee had been established. It was further held that the sub lease granted by Guranditta Mal to 559 Raghunath was valid. On these findings the suit was decreed. This decision was upheld on first appeal by the learned Additional District Judge, Jammu before whom an appeal was preferred and the findings of the learned Sub Judge were upheld by him. On a Second Appeal preferred to the High Court, the learned Single Judge of the High Court took the view that the sub lease granted by Guranditta Mal to Raghunath Dass was void as it violated the provisions of Rule 35 of Wasidari Rules in as much as it amounted to a transfer of immovable property and hence it amounted to a transfer of the leased land by the Government to the Wasidar under the provisions of the Wasidari Rules As no permission of the Government was taken for granting the said sub lease the sub lease was void as against the provisions of the Wasdari Rules. The learned Single Judge rejected the contention urged on behalf of the Appellants herein that the transfer made by Guranditta Mal was of a mere interest in the lease hold and did not amount to a transfer of the land leased as contemplated under Rule 35 of the said Wasidari Rules. The learned Single Judge, without considering what would be the effect of the sub lease being void has somehow come to the conclusion that, in view of the sub lease being void, the suit filed by the Appellants herein must be dismissed and took the view that the appeal before the learned Judge must be allowed and the suit filed by the Appellants must be dismissed. It is this decision which is challenged by the Appellants in the present Appeal preferred by Special Leave. In our view, the Appeal can be shortly disposed of and the Appellants are entitled to succeed. Even assuming that the sub lease granted by Guranditta Mal in favour of Raghunath, the father of the Respondent was void, the result would be that the Respondent and his father would be persons without any legal interest in the said land. Indro Devi and the Appellants being the lessees of the said land were suing on their own title and not relying on the sub lease and hence they were entitled to evict the Respondent who had no title or interest in the said land. If a view is taken that the sub lease in favour of Raghunath was valid, in that event, as held by both the Courts below, as grounds for eviction set out in Section 11 of the J & K Rent Act have been made out, the Respondent ceased to be entitled to the protection of the said Act and was liable to be evicted as the term of his sub lease had expired. It was strenuously sought to be contended by Mr. Anil Dev Singh, learned Counsel for the Respondent that the provisions of Section 12A af the Jammu & Kashmir Land Grants Act, 1960, as 560 amended in 1969 by the Jammu & Kashmir Land Grants (Amend ment) Act, 1969 provided that if any person holding land on lease granted under that Act or under any of the rules referred to in the said section effects or has ever effected before the commencement of the said Act of 1969, transfer of any right in such land without the permission of the Government or any authority empowered in that behalf, the lease of such land would be determined and would be deemed always to have been determined with effect from the date such transfer is or has been effected. It was submitted by him that the land held by the Appellants and their predecessors in title from the Government was under a lease granted under some of the rules referred to in Section 12A. It was contended by him that the sub lease was admittedly granted without the permission of the Government and in view of the said sub lease granted by Guranditta Mal, the title of Guranditta Mal and his successors in the land in question under the lease granted by the Government itself came to an end. It was urged by him that in these circumstances the title of the Appellants to the said land had itself been extinguished and they were not entitled to sue for recovery of possession of the said land. In our view, this contention is not open to the Respondent at all. It was nowhere contended by the Respondent, either before the learned Sub Judge or before the Additional District Judge or even in the Second Appeal before the High Court, that the title of the Appellants and his predecessors in title to the said land under the lease granted by the Government had come to an end in the aforestated circumstances. Had the plea been taken earlier, it is possible that the Appellants might have pleaded facts to show that their lease had not come to an end or that it had been renewed after the sub lease was granted. Hence, allowing such a plea at this stage might cause prejudice to the Appellants. Some decisions of this Court were shown to us by Mr. Anil Dev Singh where a new plea purely based on law was allowed to be taken even at the stage of the Appeal before the Supreme Court. However, in our view, those decisions can have no application whatever in a case like one before us where allowing of such a plea might cause prejudice to the Appellants. In our opinion, it is unfortunate that the learned Single Judge of the High Court who decided the Second Appeal did not proceed to consider at all the effect of the sub lease granted to Raghunath being void and we find it difficult to understand how, merely on the basis of the sub lease being void, he came to the conclusion that the suit filed by Indro Devi in the Court of learned Sub Judge was liable to be dismissed. Had the learned Judge considered this point, he would have surely realised that the Respondent had no title in the said land in view 561 Of the sub lease being void and was liable to be evicted by a party suing on his own title. Coming to the finding regarding the sub letting by the respondent and his father and the bona fide requirement of Indro Devi, these are both essentially issues of fact and have been decided in favour of Indro Devi, the mother of the Appellants and their predecessors intitle. Those findings do not appear to have been seriously challenged before the High Court at all and hence there is no reason why we should go into the question as to whether those findings are correct, in this appeal. In the result, the appeal succceds and is allowed. The judgment of the learned Single Judge is set aside and judgment and other passed by the learned Sub Judge is restored. However, consider, all the facts and circumstances of the case, we are of the view that the parties must bear and pay their own costs in this Court are there will be an order accordingly. G.N. Appeal allowed.

The land in question was granted to one A by the Government of Kashmir and as per the practice prevailing there, he was shown as Wasidar in respect of the said land. On his death, his son inherited the leasehold rights. On the death of the son, his widow inherited the same. The appellants are the heirs and legal representatives of the widow. A 's son, during his lifetime, had granted a sub lease of the said land to the Respondent 's father. The widow of A 's son instituted a suit for recovery of possession of the said land on the grounds that there was unlawful sub letting by the sub lessee, the land was required for occupation by her and her family, and that the period of sub lease had expired. The Respondent contended that the sub lease was void ab initio. The Sub Judge held that the sub lease was valid and the grounds of bona fide requirement of the appellants ' mother as well as unlawful sub letting by the sub lessee had been established. On these findings the suit was decreed. on appeal, the Additional District Judge upheld the decision. In the second appeal before the High Court, it was contended that the transfer made was of a mere interest in the lease hold and did not amount to a transfer of the land leased, as contemplated under Rule 35 of the Wasidar Rules. Rejecting the contention, but without considering as to what would be the effect of the sub lease being void, the High Court came to the conclusion that in view of the sub lease being void, the suit filed by the appellant must be dismissed. This appeal, by special leave, is against the aforesaid decision. on behalf of the appellants, the contentions urged in the Courts below, were reiterated before this Court. The Respondent relied on Section 12 A of the Jammu Kashmir Land Grants Act, 1960 as amended in 1969 and contended that the sub lease was admittedly 557 granted without the permission of the Government and so the lease granted by the Government had come to an end: the title of the appellants to the said land had extinguished and they were not entitled to sue for recovery of possession of the said land. Allowing the appeal, ^ HELD: 1. Even assuming that the sub lease granted was void, the result would be that the Respondent his father would be persons without any legal interest in the said land. The appellants being the lessees of the said land were suing on their own title and not relying on the sub lease hence they were entitled to evict the Respondent who had no title or interest in the said l . If a view is taken that the sub lease was valid, in that event, as held by both the Courts below, as grounds for eviction set out in Section 11 of the Jammu & Kashmir Houses and Shops Rent Control Act have been made out, the Respondent ceased to be entitled to the protection of the said Act and was liable to be evicted as the term of his sub lease had expired. [559E G] 2. It was not contended by the Respondent in any of the Courts below that the title of the Appellants and his predecessors in title to the said land under the lease granted by the Govermnent had come to an end. Had the plea been taken earlier, it is possible that the Appellants might have pleaded facts to show that their lease had not come to an end or that it had been renewed after the sub lease was granted. Hence, allowing such a plea at this stage might cause prejudice to the Appellants. [560D E] 3. As regards the sub letting by the Respondent and his father and the bona fide requirement of appellants ' mother, these are both essentially issues of fact and have been decided in favour of the Appellants ' mother and their predecessors in title. Those findings do not appear to have been seriously challenged before the High Court at all and hence there is no reason to go into the question as to whether those findings are correct, in this appeal. [561B]

Civil Appeal No. 2608 of 1984. From the judgment and order dated 29.5.1984 of the Delhi High Court in S.A.O. No. 128 of 1984. U.R. Lalit, Vivek Gambhir, Sanjay Sareen and S.K. Gambhir for the Appellant. Mrs. Shyamla Pappu, Mrs. Indra Sawhney and N.S. Das Bahl for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal by special leave from the order of the High Court of Delhi dated 29th May, 1984. By the aforesaid order the appellant was refused the prayer of being joined as a party in the proceedings in execution and the order of eviction against the tenant was passed under section 14(1)(e) of Delhi Rent Control Act, 1958. In order to appreciate the question it should be noted on 16.1.67 there was a lease in favour of respondent No. 2 of a monthly rent of 365 Rs.350 p.m. in respect of the premises in question in Greater Kailash, New Delhi. The tenant was a company called M/s Bharat Carbons & Ribbons Manufacturing Company. The husband of the appellant Late T.R. Narula was an employee of the said Company. He retired in 1973. The rent in respect of the premises had been deposited. It is, however, not certain as to on whose account the rent was deposited. On the one hand, the appellant contends that the rent was deposited on account of the appellant 's husband, and after the death of Shri T.R. Narula on account of heirs of said T.R. Narula, deceased individually and not on account of or on behalf of the erstwhile tenant of the premises in question. It appears from the record that respondent No. 1 was in England at the relevant time. The respondent No. 1 described himself as a permanent settlee in England. The said respondent was at all relevant times represented by her attorney. The respondent No. 1 is the landlady of the premises in question is still in England. Their case is that both the husband and wife are fairly well advanced in age and wish to come back and settle down in India and want to live their last days of life in their own house. They bonafide, require the premises in question. This question of bonafide need has been held in their favour and appropriate proceedings instituted by the landlady against the tenant Company to which the appellant was not a party. lndeed, the tenant did not really oppose the eviction petition because as, according to their version, the tenant had left the premises and Shri T.R. Narula had become the tenant, in his own right. The respondents did not accept that position. There was an application made by the widow of Late T.R. Narula to be joined as a party in the suit. This was refused by learned Judge for which reasons have been given. The learned Judge of the High Court has noted that it was the admitted position that M/s Bharat Carbons & Ribbons Manufacturing Company was the tenant and the appellant 's husband was an employee of the said company. He retired in 1973. The rent has been paid since then. However, the landlady was residing out of India and she closed her account when she came back to India and in respect of that the rent was being deposited according to the appellant which appears at page 126 of the Paper Book. The landlady protested by a letter written to the Bank. The High Court has noted that admittedly there was no receipt in possession of the appellant regarding payment of rent. Counsel for the appellant drew our attention to a document which is described as a receipt for the rent for the month July 1973. Counsel states that this was filed in the High Court. Counsel further states that there are subsequent receipts. As against these versions of the appellants herein it is asserted that these receipts were not genuine documents put in. Subsequent receipts that had not been, according to the respondents, 366 produced before the High Court and at least relied before the High Court, were not there. The learned Judge of the High Court proceeded on the basis that there was no evidence that there was receipt in possession of the appellant regarding payment of rent. A strong point was made before us that if money was received from the appellant or on behalf of the appellant, it must be presumed that there was surrender of tenancy by M/s Bharat Carbons & Ribbons Manufacturing Company and there was tenancy agreement between Late T.R. Narula or his wife and the landlady. No such evidence of the acceptance of rent was advanced before the High Court or before us to sustain that ground. The tenancy was originally entered into between the landlady or on her behalf and the company of which T.R. Narula, since deceased, was an employee. There was no evidence adduced and no averment made that the tenancy was for the then tenant. Admittedly that tenancy, as it appears from the records and the evidence, came to an end after the tenant company abandoned the premises, and that it was so done was not seriously disputed and T.R. Narula, since deceased or after his death his heirs could not continue unless there was a fresh agreement of tenancy in their favour or novation of the original agreement of tenancy. There is no cogent, reliable or dependable evidence of the same. In view of the categorical finding of the High Court it is difficult to accept the submissions on behalf of the appellant. Apart from that there are no other cogent or available materials to show that there was actually a new contract entered into between Late T. R. Narula and the landlady. On the other hand the contention of the landlady and her representative since she was staying away has been to deny any connection with the appellant. Furthermore, the alleged notice of the termination of surrender of tenancy was sent to the landlady in rather suspicious circumstances. It is not necessary to dilate in detail on those. The evidence on record advanced in support of the appellant on this aspect cannot and does not inspire any credence or confidence. If that is the position than after the surrender of tenancy by the company, late T.R. Narula or his heirs had no locus standi and had no right to be joined as party. The High Court notes that there was genuine evidence to show that the landlady needed the premises bona fide. There were concurrent findings of facts of the two courts below and the appellant did not raise any contentions at this belated stage. In the aforesaid view of the matter and in the facts and circum 367 stances of the case we find no ground under Article 136 of the Constitution to interfere with the conclusion arrived at by the High Court. The appeal must, therefore, fail and is accordingly dismissed, specially in view of the fact that the landlady needs the premises for her family and for her own bona fide need. Parties will pay their own costs There is, however, another aspect of the matter. The appellant and her family have been residing there for quite sometime. The landlady herself has not yet arrived in India and is awaiting her arrival since arrangements have to be made in India. The husband is very much in India awaiting vacancy of the house. In the circumstances we direct that the appellant and her family would be entitled to stay in the premises upto 15.6.88 upon filing the usual undertaking in this court within three weeks from today. The appeal is dismissed with the aforesaid directions. Parties will pay their own costs. They will continue to deposit cheques to the counsel for respondents for the remaining period. N.P.V. Appeal dismissed.

The premises in question was taken on lease at a monthly rent of Rs.350 by the tenant Company. The rent in respect of the said premises was being deposited in the bank. Respondent No. 1 The landlady was living abroad and as she and her husband wanted to come back and settle down in India they required the said premises. The landlady instituted proceedings against the tenant Company to which the appellant was not a party. The husband of the appellant was an employee of the tenant Company and he retired in 1973. The appellant filed an application for being impleaded as a party, contending that the rent was deposited on account of the appellant 's husband, and after his death on account of his heirs individually and not on account of or on behalf of the erstwhile tenant of the premises and the tenant did not oppose the eviction petition because the tenant had left the premises, and the appellant 's husband had become the tenant in his own right. The application was rejected, and the order of eviction was passed against the tenant under section 14(1)(e) of the Delhi Rent Control Act, 1958. The appeal against the above decision was dismissed by the Rent Control Tribunal. The High Court dismissed the appeal. Dismissing the appeal, this Court, ^ HELD: After the surrender of the tenancy by the Company, the appellant 's husband, or his heirs, after his death, had no locus standi, and had no right to be joined as party. [366G ] The tenancy was originally entered into between the landlady or on her behalf and the Company of which the appellant 's husband was an employee. Admittedly, the tenancy came to an end after the tenant 364 Company abondoned the premises. The husband of the appellant or after his death his heirs could not continue unless there was a fresh agreement of tenancy in their favour or novation of the original agreement of tenancy. There are no cogent or available materials to show that there was actually a new contract entered into between the husband of the appellant and the landlady, or novation of the original agreement. [366C D] The High Court has found that there was no receipt in possession of the appellant regarding the payment of rent, and that there was genuine evidence to show that the landlady needed the premises bona fide. There were concurrent findings of facts of the two courts below. [366H] The appellant and her family have been residing in the premises for quite sometime. The landlady herself has not yet arrived in India. The husband is very much in India awaiting the vacancy of the house. In the circumstances, the appellant and her family would be entitled to stay in the premises upto 15.6.1988. [367C]

Appeal No. 152 of 1955. Appeal by special leave from the judgment and order dated March 25, 1953, of the Jammu and Kashmir High Court in Civil First Appeal No. 4 of 2009. N.C. Chatterjee, Gopi Nath Kunzru and Naunit Lal, for the appellants. H.N. Sanyal, Additional Solicitor General of India, Jaswant Singh, Advocate General for the State of Jammu and Kashmir, R. H. Dhebar and T. M. Sen, for the respondent. March 2. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave arises from a suit filed by the appellant in a representative capacity (Civil Suit No. 4 of 2008) against the State of Jammu & Kashmir praying for a declaration that the Jammu & Kashmir Big Landed Estate Abolition Act, XVII of 2007 (hereinafter called the Act) is void, inoperative and ultra vires of Yuvaraj Karan Singh who enacted it and for a further declaration that the appellant was entitled to retain the peaceful possession of his lands. 273 It appears that the validity of the Act was similarly challenged by Maghar Singh by his suit filed on the Original Side of the High Court of Jammu & Kashmir (Civil Suit No. 59 of 2007); and Mr. Justice Kilam who had heard the said suit had rejected the plaintiff 's contentions and held that the Act was valid. When the appellant ' suit came for trial before the District Court it was conceded on his behalf that the points raised by him against the validity of the Act had been decided by Mr. Justice Kilam and that, in view of the said decision, the appellant could not usefully urge anything more before the District Court. The learned District Judge who was bound by the decision of Mr. Justice Kilam applied it to the suit before him and held that the Act was valid and that the appellant was not entitled to the two declarations claimed by him. In the result the appellant 's suit was dismissed. Against this decree the appellant preferred an appeal in the High Court of Jammu & Kashmir (Civil Appeal No. 4 of 2009). Maghar Singh whose suit had been dismissed by Mr. Justice Kilam had also preferred an appeal (No. 29 of 2008) before the High Court. The two appeals were heard together by a Division Bench of the High Court which held that the Act was valid and that the appellants were not entitled to any declaration claimed by them. Both the appeals were accordingly dismissed. Against the decree passed by the High Court dismissing his appeal the appellant applied to the High Court for leave to appeal to this Court. The said application was, however, dismissed. Thereupon the appellant applied for, and obtained, special leave to appeal to this Court. In dealing with this appeal it is necessary to narrate in some detail the events which took place in Kashmir and the constitutional changes which followed them in order to appreciate fully the background of the impugned legislation. A clear understanding of this background will help us to deal with the appellant 's case in its proper perspective. In 1925 Maharaja 35 274 Hari Singh succeeded Maharaja Pratap Singh as the Ruler of Kashmir. It appears that for some time prior to 1934 there was public agitation in Kashmir for the establishment of responsible government. Presumably as a sequel to the said agitation Maharaja Hari Singh issued Regulation 1 of 1991 (1934). The Regulation began with the statement of policy that it was the declared intention of the Maharaja to provide for the association of his subjects in the matter of legislation and the administration of ' the State and that it was in pursuance of the said intention that the Regulation was being promulgated. This Regulation consisted of 46 sections which dealt with the legislative, executive and judicial powers of the Maharaja himself, referred to the subjects which should be reserved from the operation of the Regulation, made provision for the constitution of the Legislature of the State, conferred authority on the Council to make rules for specified purposes and referred to other relevant and material topics. It is relevant to refer to only two sections of this Regulation. Section 3 provides that all powers legislative, executive and judicial in relation to the State and its government are hereby declared to be, and to have been always, inherent in and possessed and retained by His Highness the Maharaja of Jammu & Kashmir and nothing contained in the Regulation shall affect or be deemed to have affected the right and prerogative of His Highness to make and pass regulations, proclamations and ordinances by virtue of his inherent power. Section 30 lays down that Do measure shall be deemed to have been passed by the Praja Sabha until and unless His Highness has signified his assent thereto. The Regulation leaves it to the absolute discretion of His Highness whether to assent to such a measure or not. Five years later the Maharaja promulgated the Jammu & Kashmir Constitution Act 14 of 1996 (1939). From the preamble to this Constitution it appears that, before its promulgation, the Maharaja had issued a proclamation on February 11, 1939, in which he had announced his decision as to the further steps to 275 be taken to enable his subjects to make orderly progress in the direction of attaining the ideal of active co operation between the executive and the Legislature of the State in ministering to the maximum happiness of the people. In accordance with this desire the text of the Constitution contained in Regulation 1 of 1991 was thoroughly overhauled and an attempt was made to bring the amended text into line with that of similar Constitutions of its type. This Con stitution is divided into six parts and includes 78 sections. Part 1 is introductory. Part 2 deals with the executive; Part 3 with the Legislature; Part 4 with the Judicature; Part 5 contains miscellaneous provisions; and Part 6 provides for repeal and saving and includes transitional provisions. It is significant that section 5 of this Act, like section 3 of the earlier Regulation, recognises and preserves all the inherent powers of His Highness, while section 4 provides that the State was to be governed by and in the name of His Highness, and all rights, authority and jurisdiction which appertain or are incidental to the government of the State are exercisable by His Highness except in so far as may be otherwise provided by or under the Act or as may be otherwise directed by His Highness. The other provisions of the Act are all subject to the over riding powers of His Highness specifically preserved by section 5. As we will point out later on, in substance the Constitutional powers of the Maharaja under the present Act were exactly the same as those under the earlier Act. While the State of Jammu & Kashmir was being governed by the Maharaja and the second Constitution as amended from time to time was in operation, political events were moving very fast in India and they culminated in the passing of the Indian Independence Act, 1947. Under section 7 (1) (b) of this Act the suzerainty of His Majesty over the Indian States lapsed and with it lapsed all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States, all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof, and all powers, 276 rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise. The proviso to the said section, however, prescribed that, notwithstanding anything in para. (b), effect shall, as nearly as may be, continue to be given to the provisions of any such agreement as therein referred to in relation to the subjects enumerated in the proviso or other like matters until the provisions in question are denounced by the Ruler of the Indian State on the one hand or by the Dominion or Province concerned on the other hand, or are superseded by subsequent agreements. Thus, with the lapse of British paramountcy the State of Jammu & Kashmir, like the other Indian States, was theoretically free from the limitations imposed by the said paramountcy subject to the provisions of the proviso just mentioned. On October 22, 1947, the tribal raiders invaded the territory of the State; and this invasion presented a problem of unprecedented gravity before the Maharaja. With the progress of the invading raiders the safety of the State was itself in grave jeopardy and it appeared that, if the march of the invaders was not successfully resisted, they would soon knock at the doors of Srinagar itself. This act of aggression set in motion a chain of political events which ultimately changed the history and political constitution of Kashmir with unexpected speed. On October 25, 1947, the Maharaja signed an Instrument of Accession with India which had then become an Independent Dominion. By the First Clause of the Instrument the Maharaja declared that he had acceded to the Dominion of India with the intent that the Governor General of India, the Dominion, Legislature, the Federal Court and any other Dominion Authority established for the purpose of the Dominion shall, by virtue of the Instrument of Accession, subject always to the terms thereof and for the purposes only of the Dominion, exercise in relation to the State of Jammu & Kashmir such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on August 15, 1947. 277 We may usefully refer to some other relevant clauses of this Instrument. By el. 3 the Maharaja agreed that the matters specified in the Schedule attached to the Instrument of Accession were the matters with respect to which the Dominion Legislature may make laws for this State. Clause 5 provides that the Instrument shall not be varied by any amendment of the Government of India Act, 1935, or of the Indian Independence Act, 1947, unless such amendment is accepted by the Maharaja by an Instrument supplementary to the original Instrument of Accession. By el. 7 it was agreed that the Maharaja would not be deemed to be committed to the acceptance of any future Constitution of India nor would his discretion be fettered to enter into agreements with the Government of India under any such future Constitution. Clause 8 is very important. It says that nothing in the Instrument affects the continuance of the Maharaja 's sovereignty in and over his State, or, save as provided by or under the Instrument, the exercise of any powers, authority and rights then enjoyed by him as Ruler of the State, or the validity of any law then in force in the State. The Schedule attached to the Instrument refers to four topics, defence, external affairs, communications and ancillary, and under these topics twenty matters have been serially enumerated as those in respect of which the Dominion Legislature had the power to make laws for the State. Thus, by the Instrument of Accession, the Maharaja took the very important step of recognising the fact that his State was a part of the Dominion of India. Meanwhile,, the invasion of the State had created tremendous popular fervour and patriotic feelings in resisting the act of aggression and this popular feeling inevitably tended to exercise pressure on the Maharaja for introducing responsible and popular government in the State. The Maharaja tried to pacify the popular demand by issuing a proclamation on March 5, 1948. By this proclamation he stated that in accordance with the traditions of his dynasty he had from time to time provided for increasing association of his people with the administration of the State with the object of 278 realising the goal of full responsible government at as early a date as possible, and he added that he had noted with gratification and pride the progress made so far and the legitimate desire of his people for the immediate establishment of a fully democratic constitution based on adult franchise with a hereditary Ruler from his dynasty as the constitutional head of an executive responsible to the Legislature. It appears that before this proclamation was issued the Maharaja had already appointed Sheikh Mohammed Abdullah who was then the popular leader of the people as the head of the emergency administration. By the pro clamation the Maharaja replaced the emergency administration by a popular interim government and provided for its powers, duties and functions pending the formation of a fully democratic constitution. Clause 1 of the proclamation provides for the composition of the Ministry, whereas by cl. 2 the Prime Minister and other ministers are required to function as a cabinet and act on the principle of joint responsibility. A Dewan appointed by the Maharaja is to be a member of the Cabinet. Clause 4 provides that the Council of Ministers shall take appropriate steps, as soon as resto ration of normal conditions has been completed, to convene a National Assembly based on adult franchise having due regard to the principle that the number of representatives from each voting area should, as far as practicable, be proportionate to the population of that area. Clause 5 then lays down that the Constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contain appropriate provisions guaranteeing freedom of conscience, freedom of speech and freedom of assembly. Clause 6 states that when the work of framing the Constitution is completed by the National Assembly the Constitution would be submitted through the Council of Ministers to the Maharaja for his acceptance. The proclamation ended with the expression of hope that the formation of a popular interim government and the inauguration in the near future of a fully democratic Constitution would ensure the contentment, happiness and the moral and material advancement 270 of the people of the State. Through under this proclamation a popular interim government was set up, the constitutional position still was that the popular government had theoretically to function under the Constitution of 1939. It appears that before the popular government was thus installed in office the Maharaja had deputed four representatives of the State to represent the State in the Constituent Assembly called in the Dominion of India to frame the Constitution of India. After the popular interim government began to function the political events in the State gathered momentum and the public began to clamour for the framing of a democratic Constitution at an early date. When the atmosphere in the State was thus surcharged, the Maharaja issued his final proclamation on June 20, 1949, by which he entrusted to Yuvaraj Karan Singh Bahadur all his powers and functions in regard to the government of the State because he had decided for reasons of health to leave the State for a temporary period. " Now therefore I hereby direct and declare ", says the proclamation, " all powers and functions whether legislative, executive or judicial which are exercisable by me in relation to the State and its government including in particular my right and prerogative of making laws, of issuing proclamations, orders and ordinances, or remitting, commuting or reducing sentences and of pardoning offenders, shall, during the period of my absence from the State, be exercisable by Yuvaraj Karan Singh Bahadur ". As subsequent events show this was the last official act of the Maharaja before he left the State. After Yuvaraj Karan Singh took the Maharaja 's place and began to function under the powers assigned to him by the said proclamation, the interim popular government installed earlier was functioning as before. On November 25, 1949, Yuvaraj Karan Singh issued a proclamation by which he declared and directed that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall, in so far as it is applicable to the State of Jammu & Kashmir, govern the constitutional relationship between 280 the State and the contemplated Union of India and shall be enforced in the State by him, his heirs and successors in accordance with the tenor of its provisions. He also declared that the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which were then in force in the State. The preamble to this proclamation shows that it was based on the conviction that the best interests of the State required that the constitutional relationship established between the State and the Dominion of India should be continued as be tween the State and the contemplated Union of India; and it refers to the fact that the Constituent Assembly of India which had framed the Constitution of India included the duly appointed representatives of the State and that the said Constitution provided a suitable basis to continue the constitutional relationship between the State and the contemplated Union of India. On January 26, 1950, the Constitution of India came into force. This proclamation was followed by the Constitution (Application to Jammu & Kashmir) Order, 1950 (C. O. 10) which was issued on January 26, 1950, by the President in consultation with the Government of Jammu & Kashmir and in exercise of the powers conferred by cl. (1) of article 370 of the Constitution. It came into force at once. Clause (2) of this order provides that for the purposes of sub cl. (i) of article 370 of the Constitution, the matters specified in the First Schedule to the Order correspond to matters specified in the Instrument of Accession governing the accession of the State of Jammu & Kashmir to the Dominion of India as the matters with regard to which the Dominion Legislature may make laws for that State; and accordingly the power of Parliament to make laws for that State shall be limited to the matters specified in the said First Schedule. Clause (3) provides that, in addition to the provisions of article 1 and article 370 of the Constitution the only other provisions of the Constitution which shall apply to the State of Jammu & Kashmir shall be those specified in the 281 Second Schedule to the Order and shall so apply subject to the exceptions and modifications specified in the said Schedule. The First Schedule to the Order specified 96 items occurring in the Union List; while the Second Schedule set out the Articles of the Constitution made applicable to the State together with the exceptions and modifications. Later on we will have occasion to refer to some of these Articles on which the appellant has relied. It appears that, after the interim popular Government took office, the Revenue Minister made a statement of policy at a meeting of the special staff of revenue officers held in the Governor 's office on August 13, 1950. The Minister stated that whatever the difficulties, the Cabinet was determined to go ahead and transfer the proprietorship of the land to the tiller. The main idea underlying the proposed agricultural reform was that a land lord shall not possess more than 20 acres of agricultural land. In addition, he would be allowed 8 kanals for his use and Sagzar and 4 kanals for his second house if in existence, and 10 kanals for Bedzar or Safedzar. It was contemplated that a committee would be appointed to settle the details and other matters incidental to the said agricultural plan. It was presumably in pursuance of this plan adopted by the interim Cabinet that the Act was promulgated by Yuvaraj Karan Singh on October 17, 1950. The preamble to the Act shows that it was promulgated because no lasting improvement in agricultural production and efficiency was possible without the removal of the intermediaries between the tiller of the soil and the State, and so for the purpose of improving agricultural production, it was expedient to provide for the abolition of such proprietors as own big landed estates and to transfer the land held by them to the actual tiller. The Yuvaraj enacted the law in exercise of the powers vested in him under section of the. Constitution Act of 1996 and the 'proclamation issued by Maharaja Hari Singh on June 20, 1949. The Act consists of 47 sections and purports to, carry out its 36 282 policy of improving the agricultural production of the State by providing for the extinction of the proprietors ' titles and the transfer of the lands to the tillers, and by setting up a self contained machinery for the carry ing out of the scheme of the Act and for settlement of all incidental disputes arising thereunder. For the purpose of this appeal, however, it is necessary to refer to a few relevant sections which deal with the broad features of the extinction of the proprietors ' rights and the transfer of lands to the tillers. section 2 of the Act inter alia defines land, proprietor and tiller, while section 3 excludes certain specified lands from the operation of the Act. Section 4, sub section (1) provides for the extinction of the right of ownership in certain lands and it lays down that not withstanding anything contained in any law for the time being in force, the right of ownership held by a proprietor in land other than the land mentioned in sub section (2) shall, subject to the other provisions of the Act, extinguish and cease to vest in him from the date the Act comes into force. Sub section (2) of section 4 enumerates lands which are excluded from the operation of sub section They are (a) units of land not exceeding 182 kanals including residential sites, Bedzars and Safedzars, (b) Kahikrishmi areas, Araks, Kaps and unculturable wastes including those used for raising fuel or fodder, and (c) orchards. The proviso to sub section (2) gives government the power to dispose of lands mentioned in cl. (b) in such a manner as may be recommended by the committee to be set up for that purpose. Section 26 of the Act deals with the question of payment to the proprietors. It provides that there shall, until the Constituent Assembly of the State settles the question of compensation, with respect to the land expropriated under this Act, be paid by the government to every proprietor who has been expropriated, an annuity in the manner indicated in the section. In other words, subject to the final decision of the Constituent Assembly, section 26 contemplates the payment of annuity to the expropriated proprietors according to the scale prescribed in the section. With the rest of the sections we are not concerned in the present appeal. 283 After the Act was enacted by the yuvaraj he issued a proclamation on April 20, 1951, directing that a Constituent Assembly consisting of representatives of the people elected on the basis of adult franchise shall be constituted forthwith for the purpose of framing a Constitution for the State of Jammu & Kashmir. The proclamation sets out the manner in which members of the said Constituent Assembly would be elected and makes provisions for the holding of the said elections. It also authorised the Constituent Assembly to frame its own agenda and make rules for regulating its procedure and the conduct of its business. The preamble to this proclamation shows that the Yuvaraj was satisfied that it was the general desire of the people that a Constituent Assembly should be brought into being for the purpose of framing a Constitution for the State and that it was commonly felt that the convening of the said Assembly could no longer be delayed without detriment to the future well being of the State. The Yuvaraj also felt no doubt that the proclamation issued by the Maharaja on March 5, 1948, in regard to the convening of the national assembly as per cls. 4 to 6 no longer met the requirements of the situation in the State. Thus this proclamation was intended to meet expeditiously the popular demand for the framing of a democratic constitution ; and it indicates that a decisive stage bad been reached in the political history of the State. In accordance with this proclamation a Constituent Assembly was elected and it framed the Constitution for the State. By the Constitution thus framed the hereditary rule of the State was abolished, and a provision was made for the election of a Sadar i Riyasat to be at the head of the State. On November 13, 1952, the Yuvaraj was elected to the office of the Sadar i Riyasat and with his election the dynastic rule of Maharaja Hari Singh came to an end. On November 15, 1952, the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1952 (C. O. 43) was issued; and it came into force on November 17, 1952. By this Order the earlier Order of 1950 was amended as a result of which all references 284 in the said Order to the Rajpramukh shall be construed as references to the Sadar i Riyasat of Jammu & Kashmir. Similarly in the Second Schedule to the said Order some amendments were made. On the ,same day a Declaration (C. O. 44) was made by the President under article 370, sub article (3) of the Constitution that from November 17, 1952, the said article 370 shall be operative with the modification that for the explanation in el. (1) thereof the new explanation shall be substituted. The effect of this new explanation was that the government of the State meant the person for the time being recognised by the President, on the recommendation of the Legislative Assembly of the State, as the Sadar i Riyasat of Jammu & Kashmir acting on the advice of the Council of Ministers of the State for the time being in force. On November 18, 1952, Yuvaraj Karan Singh was recognised as the Sadar i Riyasat of Jammu & Kashmir. On May 14, 1954, another Constitution (Application to Jammu & Kashmir) Order (C. O. 48) was made by the President which inter alia applied article 31A and 31B to the State with certain modifications and included the Act in the Ninth Schedule of the Constitution. The last two Orders were issued subsequent to the enactment of the Act and so they would have no bearing on the decision of the points raised before us. We have briefly referred to them for the sake of completing the narrative of the material events. The validity of the Act is impeached mainly on the ground that Yuvaraj Karan Singh had no authority to promulgate the said Act. It is this argument which has been urged before us by Mr. Chatterjee in different and alternative forms that needs careful examination. The first attack against the competence of Yuvaraj Karan Singh proceeds on the assumption that at the time when Maharaja Hari Singh conveyed his powers to Yuvaraj Karan Singh by his proclamation of June 20, 1949, he was himself no more than a constitutional monarch and as such he could convey to Yuvaraj Karan Singh no higher powers. Let us first deal with this argument. Prior to the passing of the Independence Act, 1947, the sovereignty of Maharaja 285 Hari Singh over the State of Jammu & Kashmir was subject to such limitations as were constitutionally imposed on it by the paramountcy of the British Crown and by the treaties and agreements entered into between the Rulers of the State and the British Government. It cannot be disputed that so far as the internal administration and governance of the State were concerned Maharaja Hari Singh, like his predecessors, was an absolute monarch ; and that all powers legislative, executive and judicial in relation to his State and its governance inherently vested in him. This position has been emphatically brought out by section 3 of Regulation 1 of 1991 (1934). Though by this Regulation Maharaja Hari Singh gave effect to his intention to provide for the association of his subjects in the matter of legislation and administration of the State, by section 3 he fully preserved in himself all of his pre existing legislative, executive and judicial powers. Section 3 not only preserves the said powers but expressly provides that nothing contained in the Regulation shall affect or be deemed to have affected the right and prerogative of His Highness to make and pass regulations, proclamations and ordinances by virtue of his inherent authority. It is thus clear that the rest of the provisions of the Regulation were subject to the overriding powers preserved by His Highness. It is, however, urged that this constitutional position was substantially altered by the subsequent Constitution Act of 1996 (14 of 1996). We are unable to accept this argument. Sections 4 and 5 of this Act in terms continue to preserve all the powers legislative, executive and judicial as well as the right and prerogative of His Highness just as much as section 3 of Regulation 1 of 1991. It is significant that the provisions of Pt. II which deals with the executive, like those of Pt. III which deals with the Legislature, begin with the express provision that they are subject to the provisions of sections 4 and 5. In other words, the powers conferred on the executive and the Legislature, limited and qualified as they are, are made expressly subject to the overriding powers of His Highness, 286 Besides, there are specific provisions in the Act which clearly emphasise the preservation of the said powers. Section 24 which enumerates the reserved matters over which the Praja Sabha had no authority to legis late provides by cl. (i) that the provisions of the Act and the rules made thereunder and their repeal or modifications constitute reserved matters. Besides cl.(j) confers on His Highness the authority to add other specified matters to the list of reserved matters from time to time. These provisions make it clear that his Highness could enlarge the list of reserved matters thereby limiting the jurisdiction of the Praja Sabha. Similarly the legislative procedure prescribed by section 31, sub sections (2) and (3) clearly shows that it is only such bills as received the assent of His Highness that be came law, His Highness 's power to assent or not to assent to the bills submitted to him being absolutely unfettered. The ordinances issued by His Highness under section 38 cannot be repealed or altered by the Praja Sabha by virtue of section 39 ; and lastly section 72 expressly preserves the inherent power and prerogative of His Highness. Thus there can be no doubt that though this Act marked the second step taken by His Highness in actively associating his subjects with the ad ministration of the State, it did not constitute even a partial surrender by His Highness of his sovereign rights in favour of the Praja Sabha. So far as the said powers are concerned, the constitutional position under this Act is substantially the same as under the earlier Act. It is contended by Mr. Chatterjee that the prerogative rights which are preserved by sections 5 and 72 of this Act represent only such rights as had not been entrusted to the Praja Sabha and in support of this contention he referred us to the observation made by Dicey that " the discretionary authority of the Crown originates generally not in Act of Parliament, but in the prerogatives term which has caused more perplexity to students than any other expression referring to the constitution. The prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary 287 authority, which it any given time is legally left in the hands of the Crown"(1). This observation has been cited with approval by the House of Lords in the case of Attorney General vs De Keyser 's Royal Hotel Ltd. (2). We do not see how this statement can assist us in determining the constitutional status, and the extent of the powers, of Maharaja Hari Singh in relation to the governance of the State. The said discussion in Dicey 's treatise has reference to the special features of the history of English constitutional development; and it would naturally be of no relevance in dealing with the effect of the Constitution of 1996 with which we are concerned. As we have just indicated this Constitution emphatically brings out the fact that the Maharaja was an absolute monarch and in him vested all the legislative, executive and judicial powers along with the prerogative rights mentioned in sections 5 and 72. Whilst this was the true constitutional position the Independence Act, 1947, was passed by the British Parliament; and with the lapse of the British paramountcy the Rulers of Indian States were released from the limitations imposed on their sovereignty by the said paramountcy of the British Crown and by the treaties in force between the British Government and the States; this was, however, subject to the proviso prescribed by section 7 of the Independence Act under which effect had to be given to the provisions of the agreements specified in the proviso, until they were denounced by the Rulers of the States or were superseded by subsequent agreements. In the result, subject to the agreements saved by the proviso, Maharaja Hari Singh continued to be an absolute monarch of the State, and in the eyes of international law he might conceivably have claimed the status of a sovereign and independent State. But it is urged that the sovereignty of the Maharaj was considerably affected by the provisions of the Instrument of Accession which he signed on October 25, 1947. This argument is clearly untenable. It is true that by cl. I of the (1) Dicey on " Law of the Constitution ", 9th Ed., P. 424. (2) ; , 526. 288 Instrument of Accession His Highness conceded to the authorities mentioned in the said clause the right to exercise in relation to his State such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the said Dominion on August 15, 1947, but this was subject to the other terms of the Instrument of Accession itself; and el. 6 of the Instrument clearly and expressly recognised the continuance of the sovereignty of His Highness in and over his State. We must, therefore, reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the government of the State which then vested in the Ruler of the State. There is one more argument which has been urged before us on the question of Maharaja Hari Singh 's powers. It is said that when Maharaja Hari Singh issued his proclamation on March 5, 1948, replacing the emergency administration by a popular interim government headed by Sheikh Mohammad Abdullah and constituting a Council of Ministers who were to function as a Cabinet and act on the principle of joint responsibility, he virtually introduced a popular democratic government in the State, surrendered his sovereign rights, and became a constitutional monarch. There is no substance in this argument. The proclamation merely shows that, under pressure of public opinion and as a result of the difficult and delicate problem raised by the tribal raid, the Maharaja very wisely chose to entrust the actual administration of the government to the charge of a popular Cabinet; but the description of the Cabinet as a popular interim government did not make the said Cabinet a popular Cabinet in the true constitutional sense of the expression. The Cabinet had still to function under ,the Constitution Act 14 of 1996 (1939) and whatever policies it pursued, it had to act under the overriding powers of His Highness. It is thus clear that until the Maharaja issued his proclamation on June 20, 1949, all his powers legislative, executive and judicial as well as his right and prerogative vested in him as before. That is why the argument that Maharaja, 289 Hari Singh had surrendered his sovereign powers in favour of the Praja Sabha and the popular interim government, thereby accepting the status of a constitutional monarch cannot be upheld. The next point which calls for our decision is . What was the effect of the proclamation issued by Maharaja Hari Singh in favour of Yuvaraj Karan Singh on June 20, 1949 ? The terms of this proclamation have already been set out by us. There is no doubt that, during the temporary period that the Maharaja wanted to leave the State for reasons of health, he conferred on Yuvaraj Karan Singh all his powers and functions in regard to the government of the State. Since the Maharaja was himself an absolute monarch, there was no fetter or limitation on his power to appoint somebody else to exercise all or any of his powers. There was no authority or tribunal in the State which could question his right or power to adopt such a course. As Chief Justice Kania has observed in Re: (1) " A legislative body which is sovereign like an autocratic Ruler has power to do anything. It may, like a Ruler, by an individual decision, direct that a certain person may be put to death or a certain property may be taken over by the State. A body of such character may have power to nominate someone who can exercise all its powers and make all its decisions. This is possible to be done because there is no authority or tribunal which can question the right or power of the authority to do so ". Similarly, Mahajan, J., has observed in the same case that " The Parliament being a legal omnipotent despot, apart from being a legislature simpliciter, it can in exercise of its sovereign power delegate its legislative functions or even create new bodies conferring on them power to make laws "; and the learned Judge added that " whether it exercises its power of delegation of legislative power in its capacity as a mere legislature or in its capacity as an omnipotent despot, it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as courts of justice in England cannot inquire into it ". In his judgment Mukherjea J., has also made similar (1)[1951] S.C.R. 747. 766, 889, 969. 37 290 observations after quoting the words of Sir Edward Coke in regard to the " transcendent and absolute power and jurisdiction of Parliament ". What is true of the British Parliament would be truer about an absolute and despotic monarch, the exercise of whose J. paramount power as a sovereign is not subject to any popular and legislative control. If that be the true position, the proclamation issued by Maharaja Hari Singh authorising Yuvaraj Karan Singh to exercise all his powers would clothe him with all such powers and he would be in the same position as his father so long as the proclamation stood. Besides, it would be permissible to observe that though the proclamation purports to have been issued on the ground that Maharaja Hari Singh was leaving the State for a temporary period for reasons of health, it was clear even then that the temporary departure of the Maharaja really meant his permanent retirement from the State. It was realised by him as much as by his subjects that to face the stress and strain caused by the unusual problems raised by the act of aggression against the State, it was necessary that he should quit and young Yuvaraj Karan Singh should take his place. Thus considered the proclamation really amounted to his abdication and installation by him of Yuvaraj Karan Singh as the Ruler of the State. It is, however, not necessary to consider any further this aspect of the matter in dealing with the authority of Yuvaraj Karan Singh, because, as we have just held, Maharaja Hari Singh was competent to delegate his powers to Yuvaraj Karan Singh for a temporary period as his proclamation purported to do; and by virtue of such delegation, Yuvaraj Karan Singh was clothed with all the authority which his father possessed as the Ruler of the State until the proclamation was revoked. Therefore the argument that Maharaja Hari Singh 's proclamation issued on June 20, 1949, did not confer on Yuvaraj Karan Singh the specified powers cannot be accepted. The next contention is that the powers of Yuvaraj Karan Singh were substantially limited by the proclamation issued by him on November 25, 1949. We are not impressed even by this argument. By this 291 proclamation Yuvaraj Karan Singh purported to make applicable to his State the Constitution of India which was shortly going to be adopted by the Constituent Assembly of India in so far as was applicable; in other words, this proclamation did not carry the constitutional position any further than where it stood after and as a result of the execution of the Instrument of Accession by Maharaja Hari Singh. It is thus clear that the proclamation did not affect Yuvaraj Karan Singh 's authority and powers as the Ruler of the State which had been conferred on him by the proclamation of his father issued in that behalf. Mr. Chatterjee, however, has very seriously pressed before us his contention that, as a result of the application of certain specified articles of the Constitution to the State of Jammu & Kashmir, all vestiges of sovereignty which Yuvaraj Karan Singh could have claimed had vanished; and in consequence he had become merely a constitutional monarch of the State without any legislative authority or powers. Indeed it is this part of the case on which Mr. Chatterjee placed considerable emphasis. In this connection, it would be relevant to recall that by the Constitution Order 10, in addition to the provisions of article 1 and article 370, certain other provisions of the Constitution were made applicable to the State with exceptions and modifications as specified in the Second Schedule. Articles 245, 254 and 255 as well as article 246 as modified from Pt. XI of the Constitution were applied to the State. Similarly from Pt. XIX article 366 was applied, and from Pt. XXI articles 370 and 385 were applied. In this connection it is also necessary to bear in mind that Pt. VI which deals with the States in Pt. A of the First Schedule has not been applied, nor has Pt. VII which consisted of article 238 been applied. article 238 provides for the application of provisions of Pt. VI to States in Pt. B of the First Schedule. Schedule Seven which consists of the three Legislative Lists has also not been applied. It is thus clear that though by the application of article I the State became a part of the territory of India and con stituted a State under Part B, the provisions of 292 Pt. VI and Pt. VII did not apply to it nor did the Schedule prescribing the three Legislative Lists. This fact is of considerable importance and significance in dealing with the appellant 's contention. Since Mr. Chatterjee has strongly relied on the application of article 370 of the Constitution to the State in support of his argument that the Yuvaraj bad ceased to hold the plenary legislative powers, it is necessary to examine the provisions of this Article and their effect. This Article was intended to make temporary provisions with respect to the State of Jammu & Kashmir. It reads thus: " article 370: (1) Notwithstanding anything in this Constitution, (a)the provisions of article 238 shall not apply in relation to the State of Jammu & Kashmir; (b)the power of Parliament to make laws for the said State shall be limited to (i)those matters in the Union List and the Con current List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii)such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify. Explanation. For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja 's Proclamation dated the fifth day of March, 1948; (c)the provisions of article I and of this article shall apply in relation to that State; (d)such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify; 293 Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government. (2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the Second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon. (3)Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. " Clause (1) (b) of this Article deals with the legislative power of the Parliament to make laws for the State; and it prescribes limitation in that behalf. Under paragraph (1) of sub cl. (b) of cl. (1) Parliament has power to make laws for the State in respect of matters in the Union List and the Concurrent List which the President in consultation with the Government of the State declares to correspond to matters specified in the Instrument of Accession; whereas in regard to other matters in the said Lists Parliament may, under paragraph (ii), have power to legislate for the State after such other matters have been specified by his order by the President with the concurrence of the Government of the State. It is significant that paragraph (i) refers to consultation with the Government of the State while paragraph (ii) requires its concurrence, 294 Having thus provided for consultation with, and the concurrence of, the Government of the State, the explanation shows what the Government of the State means in this context. It means according to the ,appellant, not the Maharaja acting by himself in his own discretion, but the person who is recognised as the Maharaja by the President acting on the advice of the Council of Ministers for the time being in office. It is on this explanation that the appellant has placed considerable reliance. Sub clauses (c) and (d) of cl. (1) of the Article provide respectively that the provisions of article I and of the present Article shall apply in relation to the State; and that the other provisions of the Constitution shall apply in relation to it subject to exceptions and modifications specified by the Presidential order. These provisions are likewise made subject to consultation with, or concurrence of, the Government of the State respectively. Having provided for the legislative power of the Parliament and for the application of the Articles of the Constitution to the State, Art . 370, el. (2) prescribes that if the concurrence of the Government of the State required by the relevant sub cls. of cl. (1) has been given before the Constituent Assembly of Kashmir has been convened, such concurrence shall be placed before such Assembly for such decision as it may take thereon. This clause shows that the Constitution makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of article 370(1) is made conditional on the final approval by the said Constituent Assembly in the said matters. (3) authorises the President to declare by public notification that this article shall cease to be operative or shall be operative only with specified exceptions or modifications; but this power can be exercised by the President only if the Constituent Assembly of the State makes recommendation in that behalf. Thus the proviso to el. (3) also emphasises the importance 295 which was attached to the final decision of the Constituent Assembly of Kashmir in regard to the relevant matters covered by article 370. The appellant contends that the scheme of this Article clearly shows that the person who would be recognised by the President as the Maharaja of Jammu & Kashmir was treated as no more than a constitutional Ruler of the State. In regard to matters covered by this Article he could not function or decide by himself and in his own discretion. The con sultation contemplated by this Article had to be with the Maharaja acting on the advice of the Council of Ministers and the concurrence prescribed by it had to be similarly obtained and given, and that brings out the limitations on the powers of the Maharaja. It is also urged that the final decision in these matters has been deliberately left to the Constituent Assembly which was going to be convened for the framing of the Constitution of the State, and that again emphasises the limitations imposed on the powers of the Maharaja. This argument assumes that under the explanation to article 370(1) it is the person recognised by the President as the Maharaja who has to act on the advice of ' the Council of Ministers in relation to matters covered by article 370. But, it is possible to take the view that the said clause really indicates that in recognising any person as the Maharaja of the State the President has to act on the advice of the Council of Ministers for the time being in office under the Maharaja 's proclamation dated March 5, 1948. If that be the true construction of the explanation, then the argument that, before the Maharaja is consulted or his concurrence is obtained, he must act on the advice of his Ministers would not be valid. We would, however, like to deal with the argument even on the assumption that the construction put by the appellant on the explanation is right. On the said construction the question which falls to be determined is: Do the provisions of article 370(1) affect the plenary powers of the Maharaja in the matter of the governance of the State ? The effect of the application of the present Article has to be judged in 296 the light of its object and its terms considered in the context of the special features of the constitutional re lationship between the State and India. The Constitution makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself; that is the main basis for, and purport of, the temporary provisions made by the present Article ; and so the effect of its provisions must be confined to its subject matter. It would not be permissible or legitimate to hold that, by implication, this Article sought to impose limitations on the plenary legislative powers of the Maharaja. These powers had been recognised and specifically provided by the Constitution Act of the State itself; and it was not, and could not have been, within the contemplation, or competence of the Constitution makers to impinge even indirectly on the said powers. It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvaraj Karan Singh adopting, as far as it was applicable, the proposed Constitution of India, nor the Constitution Order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler. What form of government the State should adopt was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State. Until the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession. It would therefore be unreasonable to assume that the application of article 370 could have affected, or was intended to affect, the plenary powers of the Maharaja in the matter of the governance of the State. In our opinion, the appellant 's contention based on this Article must therefore be rejected. The application of articles 245, 254 and 255, and of article 246 as modified,, does not seem to have any bearing on the question of the authority and powers of the Ruler of the State. Their application merely serves to provide for the legislative powers of the Parliament 297 to make laws in respect of matters covered by article 370. Incidentally we may point out that the application of articles 246 and 254 as provided by the Constitution Order 10 of 1950 has been subsequently modified by the Constitution Order 48 of 1954. Similarly article 255 which was originally applied by the first Order has been deleted by the latter Order. This shows that it was subsequently realised that the original application of the said Articles prescribed by the earlier Order was more anticipatory and notional and required either suitable modification or cancellation. The appellant has then relied upon the provisions of article 385. It provides: " article 385. Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by provisions of this Constitution on the House or Houses of the Legislature of the State so specified. " It is difficult to see how this Article supports the appellants contention. In fact it is not easy to appreciate what the application of this Article to the State really meant. As we have already pointed out the application of the specified Articles to the State was not intended to affect, and constitutionally could not have affected, the form of the government prevailing in the State and the plenary legislative powers of the Maharaja in regard to the government of the State. As in regard to the application of articles 245, 254 and 255, so in regard to this Article as well, it was subsequently realised that the application of the Article was purely notional and could serve no purpose. That is why by C. O. 48 of 1954 this Article has been deleted from the list of Articles applied to the State. It seems to us that the initial formal application of this Article cannot justify the appellant 's case that the plenary legislative powers vesting in the Ruler of the State 38 298 were not only affected but, as the appellant contends, completely extinguished. The constitutional position in regard to the government of the State continued to be the same despite the application of this Article. In dealing with the application of this Article and articles 245, 254 and 255, it would be permissible to rely on the rule of construction set out in Maxwell that " a thing which is within the letter of a statute is generally to be considered as not within the statute unless it is also the real intention of the Legislature It is evident that the Constitution makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India. We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner. The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeed. It is clear that the validity of the Act cannot be chal lenged on the ground that the Act did not provide for the payment of compensation. For one thing section 26 of the Act did contemplate the payment of compensation. Besides, as the law of the State then stood, there was no limitation on the legislative power of the Ruler such as is prescribed by article 31 of the Constitution; and article 31 had not been then applied to the State. Subsequently when article 31(2) was extended to the State the Act no doubt became the existing law and it has been saved by the new and modified cl. (5) of the said Article. There is another aspect of the matter to which reference must be made. Section 26 of the Act had left the final decision on the question of the payment of compensation to the Constituent Assembly of the State; and it is common ground that the Constituent Assembly has decided not to pay any compensation. Mr. Chatterjee contends that this decision is (1) Maxwell on " Interpretation of Statutes ", 10th Ed., P. 17. invalid because the Constituent Assembly itself was, not properly called and constituted. There is no substance in this argument. After Yuvaraj Karan Singh was put in charge of the duties of governing the State by Maharaja Hari Singh by his proclamation issued on June 20, 1949, he began to function as a Ruler and was entitled to exercise all his powers in that behalf He realised that the original plan of Maharaja Hari Singh to call a national assembly which he announced on March 5, 1948, would not meet the requirements of the situation which had radically changed; and the Yuvaraj thought that a Constituent Assembly on a broader basis should be called and should be entrusted with the task of framing a Constitution without any delay. It is idle to suggest that the Yuvaraj was bound to convene the national assembly on the same lines as were laid down by Maharaja Hari Singh in his proclamation and with the same object, for the same purpose, and subject to the same conditions. It was for the Yuvaraj to consider the situation which confronted him and it was within his competence to decide what solution would satisfactorily meet the requirements of the situation. We have no doubt that the Yuvaraj was perfectly competent to issue the proclamation on April 20, 1951, under which the Constituent Assembly ultimately came to be elected and convened. If the Constituent assembly was properly constituted and it decided not to pay any compensation to the landlords it is difficult to understand how the validity of this decision can be effectively challenged. That leaves only one question to be considered. It is contended that the Act is invalid under article 254 of the Constitution because it is inconsistent with the two earlier Acts, No. 10 of 1990 and No. 4 of 1977. It is unnecessary to enquire whether there is any repugnancy between the Act and the earlier Acts to which the appellant refers. In our opinion the argument based on the provisions of article 254 must be rejected on the preliminary ground that it is impossible to invoke the assistance of this Article effectively because in terms the essential conditions for its application are absent in the present case. This argument assumes that under article 254(1) if there is repugnancy between 300 any provision of a law made by the Legislature of a State and any provision of an existing law with respect to One of the matters enumerated in the Concur rent List, then subject to the provisions of cl. (2), the law made by the Legislature of the State was to the extent of the repugnancy void. The appellant concedes that there is no scope for applying the provisions of el. (2) of article 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President; but this aspect of the matter itself shows that the whole Article would in substance be inapplicable to the State. Clause (2) of article 254, which is its integral and important part, postulates that the Legislature of the State, in enacting a law on the relevant matter may reserve it for consideration of the President and his assent, and thereby save the consequences of cl. (1) ; and cl. (2) was clearly inapplic able to the State. Besides, it is clear that the essential condition for the application of article 254(1) is that the existing law must be with respect to one of the matters enumerated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable; and, as we have already pointed out, Schedule Seven which contains the three Legislative Lists was not then extended to the State; and it is, therefore, impossible to predicate that the matter covered by the prior law is one of the matters enumerated in the Concurrent List. That is why article 254 cannot be invoked by the appellant. On this view, it is not necessary to consider whether the construction sought to be placed by the appellant on this Article is otherwise correct or not. The result is that all the grounds urged by the appellant against the validity of the Act fail, and so it must be held that the High Court was right in taking the view that the plaintiff had not shown that the Act was ultra vires. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

This appeal challenged the validity of the Jammu and Kashmir Big Landed Estate Abolition Act, XVII Of 2007 which was enacted by Yuvaraj Karan Singh on October 17, 1950, in exercise of the powers vested in him by section 5 of the Jammu and Kashmir Constitution Act 14 of 1996 (1930) and the final proclamation issued by Maharaja Hari Singh on June 20, 1949, by which he entrusted all his powers and function to the Yuvaraj. The object of the Act was to improve agricultural production by abolishing big landed estates and transferring land to the actual tillers of the soil. The suit out of which the present appeal arises was brought by the appellant in a representative capacity for a declaration that the Act was void, inoperative and ultra vires and that he was entitled to retain peaceful possession of his lands. Both the trial Court as also the High Court in appeal found against him and dismissed the suit. Hence this appeal by special leave. The validity of the Act was challenged mainly on the ground that Yuvaraj Karan Singh had no authority to promulgate the Act. It was contended that (i) when Maharaja Hari Singh conveyed his powers to the Yuvaraj by his proclamation of June 20, 1949, he was himself a constitutional monarch and could convey no higher powers, (2) the said proclamation could not confer on the Yuvaraj the powers specified therein, (3) the powers of the Yuvaraj were substantially limited by his own proclamation issued on November 25, 1949, by which he sought to make applicable to his State the Constitution of India, that was soon to be adopted by its Constituent Assembly, in so far as it was applicable, (4) as a result of the application of certain specified Articles, including article 370 of the Constitution of India to the State of Jammu Kashmir, the Yuvaraj became a constitutional monarch without any legislative authority or powers and (5) the decision of the Constituent Assembly of the State not to pay compensation was invalid since the Assembly itself was not properly constituted. Held, that Yuvaraj Karan Singh, when lie promulgated the Act, had the power to do so and its validity was beyond question. 271 It was indisputable that prior to the passing of the Independence Act, 1947, Maharaja Hari Singh like his predecessors, was an absolute monarch so far as the internal administration of his State was concerned. Section 3 Of the Regulation 1 of 1991 (1934) issued by the Maharaja not only preserved all his preexisting powers but also provided that his inherent right to make any regulation, proclamation or ordinance would remain unaffected. The Constitution Act 14 of 1996 (1939) promulgated by him did not alter the position. Sections 4 and 5 of that Act preserved all the powers that he had under section 3 of the Regulation 1 of 1991 and section 72 preserved his inherent powers so that he remained the same absolute monarch as he was before. With the lapse of British paramountcy on the passing of the Independence Act, 1947, the Maharaja continued to be the same absolute monarch, subject to the agreements saved by the proviso to section 7 Of the Act, and in the eyes of international law could conceivably claim the status of an independent sovereign. It was unreasonable to suggest that the provisions of the Instrument of Accession signed by the Maharaja on October 25, 1947, affected his sovereignty, in view of cl. 6 thereof, which expressly recognised its continuance in and over his State. There was no substance in the argument that as a result of his proclamation issued on March 5, 1948, which replaced the emergency administration by a popular interim Government headed by Sheik Mohammad Abdullah and constituted a Council of Ministers who were to function as a cabinet, the Maharaja became a constitutional monarch. The cabinet had still to function under the Constitution Act 14 of 1996 (1939) under the overriding powers of the Maharaja. When the Maharaja on June 20, 1949, therefore, issued the proclamation authorising the Yuvaraj to exercise all his powers, although for a temporary period, it placed the Yuvaraj in the same position as his father till the proclamation was revoked. The Maharaja was himself an absolute monarch and there could be no question as to his power of delegation. In Re. ; , , referred to. The proclamation issued by the Yuvaraj on November 25, 1949, did not vary the constitutional position as it stood after the execution of the Instrument of Accession by the Maharaja nor could it in any way affect the authority conferred on the Yuvaraj by his father. The contention that the application of certain specified Articles of the Indian Constitution to the State by the Constitution (Application to Jammu and Kashmir) Order (C. O. 10) issued by the President on January 26, 1950, affected the sovereign powers of the Yuvaraj was not correct. Neither the scheme of article 370 nor the explanation to cl. (1) of that Article Contemplated that the Maharaja was to be a constitutional ruler. The temporary provisions of that Article were 272 based on the assumption that the ultimate relationship between India and the State should be finally determined by the Constituent Assembly of the State itself. So, that Article could not, either expressly or by implication, be intended to limit the plenary legislative powers of the Maharaja. Till the Constituent Assembly of the State, therefore, made its decision, the Instrument of Accession must hold the field. The initial formal application of article 385, which was sub sequently deleted from the list of Articles applied to the State, could not justify the conclusion that it had adversely affected the legislative powers of the Yuvaraj. There was no substance in the contention that the decision of the Constituent Assembly not to pay compensation was invalid as the Assembly itself was not properly called or constituted. There could be doubt that the Yuvaraj was perfectly competent to issue the proclamation dated April 20, 1951 in variation of the Maharaja 's, under which the Assembly was ultimately constituted, and so the Assembly was properly convened.

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

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

l. Appeal No. 2095 of 1968. 16 Appeal from the judgment and order dated September 17, 1968 of the Mysore High Court in Writ Petition No. 1889 of 1968. D. Narsaraju, M. C. Chagla, R. V. Pillai, Subodh Markendya and M. Narayana Reddy, for the appellant. M. C. Setalvad, B. R. L. Iyengar and section P. Nayar, for respondents Nos. 1 to 3. M. K. Nambyar, Shivaswamy and R. Gopalakrishnan, for respondent No. 4. The Judgment of the Court was delivered by Bachawat J. This appeal raises the question of the legality of the cancellation of the sale to the appellant of the exclusive privilege of retail vend of toddy and arrack for the year 1968 69 in a group of 1168 shops in Raichur and Gulbarga districts under the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967. On May 10, 1968 the excise commissioner of Mysore published a notice stating that the exclusive privilege would be sold by tender cum auction by the divisional commissioner, Gulbarga on May 28 and inviting tenders by May 27. On May 27, the appellant made a tender offering Rs. 9,99,999/ towards the monthly rental of the shops and deposited the requisite earnest money amounting to Rs. 1,85,168/ as required by r. 7(f). Respondent No. 4 K.V. Niranjan made a tender offering Rs. 9,69,999/ towards the monthly rental. The appellant was the only bidder present at the auction on May 28. His offer being the highest was accepted by the divisional commissioner, Gulbarga, under r. 17(1). The appellant deposited another sum of Rs. 8,14,831/ which together with the earnest money made up one month 's rent as required by r. 17(5). On June 4, the divisional commissioner, Gulbarga, confirmed the sale under r. 17(1). On June 6, the deputy commissioner, Gulbarga, issued a notice asking the appellant to make deposits according to r. 19 immediately and to obtain licences from the concerned tahsil officers after completing other formalities. Under r. 19(2) the appellant was required to deposit another one month 's rent within 15 days from the date of the sale. By June 15, the appellant deposited in all Rs. 39,99,996/ amounting to 4 months ' rent. By a letter (exhibit B 1) the appellant informed the excise commissioner that he had deposited 4 months ' rent as required by circular No. EXE. 1. 15 7 5 issued by the excise commissioner on December 12, 1967 and asked for permission to obtain licences from the deputy commissioners of Raichur and Gulbarga. On June 18/19 he applied to the divisional commissioner, Gulbarga, for the issue of licences. June 19, the divisional commissioner, issued a 17 notice to the appellant stating that as he had not submitted a solvency certificate of his property or the property of his sureties he was required to deposit the balance to make up six months ' rent as required by r. 19 (3 ) (i) and to furnish security for six months rental or sureties as require by r. 19(3) (ii) and (iii) by June 25, and that in default action would be taken under r. 20(2). A notice to the same effect was given orally on June 19, when he met the divisional commissioner at Bellary. On June 22, he presented a petition under section 62 to the, state government asking for the issue of licences, as he had complied with the conditions of the circular. In view of the subsequent writ petition the government did not pass any orders on this petition. The notice dated. June 19 was received by the appellant on June, 23. On June 25, he wrote to the divisional commissioner stating, that he had complied with the conditions of the rules read with the, circular and was entitled to the licences, that he had reason to believe that necessary orders would be passed by the state: government on his petition under section 62 and that if necessary, the terms for compliance with the requirements of r. 19 be extended. by two months. On the same date the divisional commissioner, rejected the application for extension of time, and issued a notice to the appellant asking him to show cause before June 26,why in view of the non compliance with the notices dated June 6 and 19, the sale should not be cancelled and the deposits already made should not be forfeited to the government. The notice was served on his advocate on June 25 at 7.40 p.m. On June 26, the. appellant submitted a petition to the divisional commissioner stating that he had complied with the terms of r. 19 and the circular, that abrupt cancellation of the sale would result in irreparable injury and that in any event the time to deposit the balance two, months ' rental be extended for a reasonable time. By an order dated June 26, (exhibit J), the divisional commissioner rejected the application for extension of time and cancelled the sale starting that (1) the appellant did not "at one& ' apply in writing, for licences in accordance with r. 19(1); (2) though he deposited two months ' rent as required by r. 19 (2), he did not file a statement of his immovable properties in accordance with r. 19(1); and should therefore be, considered as a person of doubtful solvency; (3) he was, therefore, required to deposit another 2 months ' rent under r. 19 (3) (i) and to furnish securities for six months ' rental or surety under r. 1 9 ( 3 ) (ii) and (iii) ; (4) he failed to comply with r. 19 in spite of notices dated June 6 and ' June 19; (5) the circular issued by the excise commissioner was opposed to r. 19 and could not be acted upon; (6) that even under the circular he was required to give two months ' collateral security in addition to 4 months ' cash deposit if he was a person, of doubtful solvency; and (7) that the sale conducting,officer has no power to extend the time for compliance with the formalities. 18 On June 28, the appellant filed writ petition No. 1889 of 1968 against the State of Mysore and others in the High ,Court of Mysore for quashing the order dated June 26, (exhibit Jr) and for the grant of licences to him to vend liquors in the combined groups of shops in Raichur and Gulbarga ,districts and for other reliefs. The appellant submitted that (1) he had complied with the rules read with the cir cular; (2) he did not file any statement of his immovable properties under r. 19(1) as he had immovable properties in Andhra Pradesh; (3) as there was no inquiry nor, finding by any tahsildar ,that he was of doubtful solvency r. 19(3) was not attracted; (4) ,the divisional commissioner, Gulbarga, was not competent to ask for deposits and security under r. 19(3), nor was he competent to pass an order cancelling the sale; and (5) r. 19(3) was violative of articles 14 and 19 of the Constitution. On June 28, the High Court admitted the writ petition and ,directed the state government to stay further proceedings and to issue licences to the appellant. Subsequently the High Court ,confirmed the stay order on condition that the appellant would deposit another two months ' rent. The appellant deposited about Rs. 20,00,000/ in accordance with the order. On June 30, the divisional commissioner granted licences to him. On July 1, he commenced his business in all the 1168 shops. Thereafter he ,duly deposited about Rs. 30,00,000/ on account of rent for the months of July, August and September. The state government, the excise commissioner and the divisional commissioner filed separate affidavits disputing the appellant 's contentions. The rival tenderer, K. V. Niranjan was added as respondent No. 4 in W.P. No. 1889 of 1968 on his own application under an order of the High Court dated July 7. K. V. Niranjan filed an affidavit stating that the appellant was a benamidar for other persons and the acceptance of his tender was forbidden by r. 12. K. V. Niranjan also filed W.P. No. 2088 of 1968 for quashing the orders of the divisional commissioner dated May 28, and June 4, whereby the appellant 's tender was accepted and for a mandamus directing the acceptance of his next highest tender under r. 17(4). The two writ petitions were heard together and were dismissed by the High Court by a common judgment delivered on September 17. The High Court held that (1) the appellant did not comply with the mandatory requirements of r. 19; (2) r. 19(3) was not ultra vires the rule making power under section 71 nor violative of articles 14 and 19, and the appellant was estopped from challenging it; (3) the circular of the excise commissioner could not modify r. 19; the appellant could not rely on the circular as he came to know of it long after the sale, nor had he complied with its terms by depositing the entire four months rent before 19 June 12;(4) the appellant was a benamidar for other person or persons and in view of r. 12 was incompetent to bid and (5) the, order dated June 26 (exhibit J) was valid. On these findings the High Court dismissed W.P. No. 1889 of 1968. With regard to W.P. No. 2085 of 1968 the High Court said that as the sale to the appellant had been cancelled by exhibit J, it was not necessary to set aside the order accepting and confirming his bid. The High Court held that under r. 17 (4) it was not obligatory on the officer conducting the sale to accept the next highest offer of respondent No. 4. The High Court, however, said "in the circumstances of the case, it is necessary to observe that the authorities concerned will consider the advisability of accepting the bid of the fourth respondent, subject to his complying with all the requirements of the Act and the Rules. " With these observations the High Court dismissed W.P. No. 2085 of 1968. By a telegram dated September 18, the excise commissioner instructed the divisional commissioner, Gulbarga, to direct the tahsildars of Raichur and Gulbarga to issue licences to respondent No. 4 on his complying with certain conditions. On the same date licences were issued to respondent No. 4. On September 19, the High Court dismissed an application for stay of operation of its order dated September 17, and on the same day granted to the appellant a certificate under article 1 3 3 ( 1 ) (b) of the Constitution. On September 25, the appellant filed a stay application in this Court. On September 27, the Court passed an order restraining the respondents from forfeiting the deposits made by the appellant. It is convenient at this stage to refer to the relevant provisions of the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967. Section 3(1) of the Act provides that the excise commissioner, "shall be the chief controlling authority in all matters connected with the administration of this Act." Section 15(1) provides that "no intoxicant shall be sold except under the authority and subject to the terms and conditions of a licence granted in that behalf." Under section 15 (2) a licence for sale can be granted (a) by the deputy commissioner if the sale is within a district or (b) by the excise commissioner if the sale is in more than one districts Section 17 ( 1 ) (b) empowers the state government to lease to any person, on such conditions and for such period as it thinks fit the exclusive or other right of selling by the wholesale or by retail any Indian liquors within any specified area. Contravention of the Act or any Rules made thereunder is punishable under section 32. Section 71 empowers the state government to make rules. Rule 3 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 provides that the right of retail vend of liquors shall 20 be disposed of by tender or by auction or by tender cum auction. The auction is conducted by the deputy commissioner or the divisional commissioner under r. 5 and the tender has to be made to them under r. 7 (1). The tenderer is required by r. 7 (f ) to deposit as, earnest money an amount equal to 1/4 of the shop rental of the previous year of the shop or groups of shops. The appellant complied with the requirement of r. 7 (f ). Rule 10 requires an intending bidder or tenderer to furnish a certificate of his solvency or two sureties having similar certificates or bank guarantee or cash deposit to cover four times the earnest money fixed under rule 7(f). It is not disputed that the appellant made sufficient cash deposits in compliance with r. 10. Rule 12 read & : "Benami bids not allowed. No person except a power of attorney holder shall be entitled to bid for another person. " The sale to the appellant was not cancelled on the ground that he bid for another person. Rule 17 regulates the procedure at sales. Rule 17(1) empowers, the officer conducting the auction to accept the highest offer. The acceptance is subject to the condition of confirmation by the deputy commissioner or by the divisional commissioner. The confirmation is effective unless revised by the excise commissioner or the government. Rule 17(2) empowers the excise commissioner or the government to revise the order of confirmation. Rule 17(4) provides that if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re sell the shop. Rule 17 (5) requires the person whose bid is accepted to make a further deposit which together with the earnest money would make up one month 's rent. The appellant made the deposit required by r. 17(5). His bid was accepted and was later confirmed by the divisional commissioner. Neither the excise commissioner nor the state government passed any order under r. 17(2) revising the decision confirming the acceptance of his bid. Rule 19 provides as follows : "19 Successful bidder to apply for licence: Every person to whom the right of retail vend of liquors is sold or whose tender in respect thereof has been accepted under these rules and who has made deposits as hereinbefore provided shall (1) at once apply in writing for licence for such shop confirmed in his name and within a week thereafter furnish to the Tahsildar the, details of boundaries of the site selected by him for the location of the shop and a statement in the prescribed form annexed to the notification showing details of the immovable property possessed by him or in which he has an interest together with accurate and full details of encumbrances, if any, thereon; 22 (5) The purchaser shall get the bond and the mortgage deed registered under the Indian at his expense. (6) The purchaser or his surety shall produce an encumbrance certificate in cases where immovable property is mortgaged to the Governor of Mysore. " It is not alleged that the appellant did not furnish the details of the shop sites as required by r. 19 sub. r. (1) within 15 days of the date of the confirmation of the sale. The appellant made a deposit of two months rent as required by r. 19 sub r. The appellant did not furnish a statement of immovable properties under r. 19 sub r. (1) nor did not he furnish security or sureties under r. 19 sub r. It is also alleged that he did not apply for licences at once as required by r. 19 sub r. Rule 20(2) provides : "On failure to comply with the provisions of rr. 17 and 19 the deposits already made shall be forfeited and the right of retail vend of liquors in such shop or groups disposed of in such manner under these rules, as the Excise Commissioner may direct". No order was passed by the excise commissioner under r. 20(2). In our opinion, the provision of r. 19sub. r.(1) requiring the successful bidder to furnish a statement of his properties to the Tahsildar and the provisions of r. 19 sub rr. (3) and (4) do not apply where the shops in respect of which the right of retail vend is sold is situated in more than one tahsil. The opening part of r. 19 sub r.(1) requires the purchaser to furnish to "the tahsildar" the location of the shops and the boundaries of the shop sites. The expression "the tahsildar" is not defined, but it is reasonable to think that the details regarding the shops should be furnished to the tahsildar within whose tahsil the shops are situated. If the shops are situated in more than one tahsil, the details can be furnished to several tahsildars. But it is not possible to give effect to the last part of sub rule (1) and the provisions of sub rr. (3) and (4) in cases where the shops are situated in more than one tahsil. The statement of immovable properties under the last part of sub r. (1 ) can be furnished to, only one tahsildar so that he can peruse the same and on such perusal or on independent inquiry ascertain under sub r. (3) whether or not the purchaser is of doubtful solvency and satisfy himself under sub r. (4)whether or not the value of the immovable properties tendered as security is adequate. Sub rr. (3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars. In our opinion, the last part of sub r. (1) and the provisions of sub rr. (3) and (4) do not apply where the shops are situated in two or more tahsils. 23 The right of retail vend sold to the appellant is in respect of shops situated in 19 Tahsils in the districts of Raichur and Gulbarga Consequently, those provisions were not attracted to this sale and the appellant was not required to comply with those provisions. The divisional commissioner, Gulbarga, could not record a finding under r. 19 sub r. (3) that the purchaser was of doubtful solvency. Even a tahsildar could not record such a finding without making an independent inquiry where no statement regarding. immovable properties was furnished under sub rule (1). No independent inquiry under sub r. (3) was made by any tahsildar For this reason also the appellant cannot be regarded as a person of doubtful solvency and he was therefore not required to comply with the provisions of sub r. The appellant has so far deposited about Rs. 90,00,000/ and it is impossible to believe that he is a person of doubtful, solvency. The remaining charge is that the appellant did not "at once" ' apply for licences. Rule 20(2) provides for the forfeiture of the deposits on failure to comply with the provisions of r. 19. Under the Mysore Excise Licences (General Conditions) Rules, 1967 a licensee is required to commence his business on July 1. The purpose of the Act and the Rules is achieved if the application for licence is made within sufficient time so as to enable the issue of licences before July 1. Having regard to the object of the Act and the Rules the expression "at once" in r. 19 sub. (1) means within a reasonable time before July 1. It could not have, been intended that the deposits would be forfeited where the purchaser applies for licence within a reasonable time. The appellant sufficiently complied with r. 19 sub r. (1) by applying under exhibit B, to the excise commissioner for permission to obtain licences and by applying to the divisional commissioner on June 18 for the issue of licences. The divisional commissioner, Gulbarga was not competent to pass the impugned order (Ex, J) cancelling the sale. Only the excise commissioner or the state government could under r. 17(2) revise his previous order confirming the sale and on such revision cancel the sale. The divisional commissioner, Gulbarga was not authorised by r. 17(2) to revise his own order or to cancel it. In hi ,, notice dated June 19, the divisional commissioner, Gulbarga, stated that he would take action under r. 20(2). In his notice dated June 25, he asked the appellant to show cause why the sale should not be cancelled and why the deposits already made should not be forfeited to the government. But he did not pass any order forfeiting the deposits. Nor was he competent to pass any order under r. 20(2). Only the excise commissioner could pass such an order. 24 It follows that the High Court was in error in holding that the appellant committed breaches of r. 19. The finding of the divisional commissioner, Gulbarga, that the appellant committed such breaches is erroneous, nor was he competent to record the finding or to pass an order cancelling the sale. In view of this conclusion it is not necessary to consider whether r. 19 sub r. (3) offends articles 14 and 19 of the Constitution and we express no opinion on the question. We cannot agree with the proposition that the appellant is estopped from challenging the constitutionality and vires of the sub rule. It is true that .r. 24 provides that the purchaser shall be bound by all the rules. But if r. 19 sub r. (3) offends articles 14 and 19 it is non est and there can be no question of the appellant being bound by a rule which does not exist. Though we express no opinion on the vires ,of the sub rule, we must observe that r. 19 is clumsily drafted, its import is not clear, its tight time schedule works hardship and its ,procedure is cumbersome. The government should immediately ,consider the question of re drafting r. 19. It may be noted that Mr. Narasaraju conceded that r. 19 is not beyond the rule making powers of the state government. The appellant relied on the circular No. EXE.1.1575/67 (exhibit E) dated December 12, 1967. Exhibit E is a letter from 'the excise commissioner to the deputy commissioner, Bangalore, ,,on the subject of securities to be furnished by the excise contractors. The letter stated that the procedure of r. 19 was number some and not clear, that several deputy commissioners sought clarifications on 'the subject and that the state government had been moved to clarify and simplify the matter. The excise commissioner directed that pending receipt of the government order the following procedure should be followed : In addition to obtaining two months ' cash deposits, (1) two months cash security might be accepted and in the absence of cash security four months ' collateral security might be insisted; (2) if the deputy commissioner/tahsildar was doubtful about the solvency of the contractor he could insist on six months ' collateral security and (3) while accepting the collateral securities care should be taken to see that "the contractor executed the necessary mortgage bond. Admittedly, similar instructions were issued to other deputy commissioners and were enforced in several districts. There is a dispute on the ,question whether the circular was sent to the districts of Gulbarga and Raichur. In so far as the circular attempted to modify r. 19 it was in effective. The excise commissioner, had no power to abrogate or modify a rule framed under section 71. On behalf of the appellant it was argued that as the chief controlling authority the ,excise commissioner could frame regulations under section 3 read with r. 24 and could issue general instructions on the subject of taking 25 security in cases not covered by r. 19. We express no opinion on this question, as the government has already withdrawn the circular. But we must observe that relying on this circular the appellant deposited two months ' rent as required by the circular in addition to the two months ' rent as required by r. 19 sub r. (2) and that such deposits were duly made within 15 days from the date of the sale. However, it is not necessary for the appellant to rely on the terms of the circular. He has complied with the provisions of r. 19 and the sale in his favour cannot be cancelled. On behalf of respondent No. 4 it is argued that the appellant bought the right of retail vend as benamidar for some other person, that his benami bid was opposed to r. 12 and could not be accepted and that as the sale of liquor by the real buyer without a licence in his favour was illegal in view of sections 15 and 26, the appellant was not entitled to any relief in view of the decision in Venkata Subbayya vs Attar Sheik Mastan(1). The onus is upon the respondent to prove that the appellant made a benami purchase. It appears that the appellant is a retired inspector drawing a pension of about Rs. 75/ per month. He is not an income tax or a wealth tax assessee, He does not own any property in Mysore State. The appellant says that he owns immovable properties in Andhra Pradesh but he did not file the title deeds in respect of them. However, the appellant was in possession of a large amount of ready cash. Before June 25, he deposited about Rs. 40 lakhs and thereafter deposited about Rs. 50 lakhs. There can be no doubt that the appellant has the backing of powerful financiers. There is no specific charge that some named person is the real purchaser. From the materials on the record it is not possible to record a finding that the appellant is a benamidar and that that some other person is the real purchaser. The purchase is not illegal merely because the appellant obtained the necessary funds from some financiers. The government never alleged that the appellant 's bid was a benami bid and opposed to r. 12. His bid was accepted and such acceptance was subsequently confirmed. Under r. 17(1) the confirmation is effective until revised by the appropriate authority. It is neither alleged nor proved that sonic person other than the appellant had been managing the shops and selling liquor in contravention of section 15. Respondent No.4 has failed to establish contravention of either r. 12 or section 15. The High Court was in error in holding that the appellants bid was opposed to r. 12. Having regard to the fact that the appellant had already deposited about Rs. 40 lakhs the divisional commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale. (1) A.I.R. 1949 Mad. 252. Sup CI/69 3 26 For the reasons already given ,the order of cancellation (Ex.J) is invalid. The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant. Some complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the, writ petitions by the High Court. Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops. In order to give effect to our order for the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No. 4 should be cancelled. We can give this direction as respondent No. 4 is a party to this appeal. While holding that r. 17 sub r. (4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisibility of accepting his bid. This observation is not in accordance with law and has given rise to unnecessary complications. Rule 17(4) provides that "if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re sell the shop. " The sub rule cannot be invoked if the officer conducting the sale has accepted the highest offer. In the present case, the officer accepted the appellant 's highest offer and later confirmed it. The confirmation is still effective under r. 17(1). If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under r. 17(4). In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules. It follows that the bid of respondent No. 4 could not be accepted under r. 17(4) after the disposal of the writ petitions on September 19. It is rather surprising that the Government acted so hastily and issued licences to respondent No. 4 on or about September 18. It is not quite clear how licences in respect of 1168 shops could be issued on a single day. The effect of this precipitate action on, the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Court 's order. There is ground for suspecting that the government was favouring respondent No. 4. In the result the appeal is allowed with costs in this Court and in the High Court. The order passed by the High Court is set aside. Writ Petition No. 1889 of 1968 is allowed. The order dated June 26, 1968 (exhibit J) is set aside. Respondents 1 and 2 ;ire directed to grant immediately licences to the appellant to vend liquors in the combined groups of shops in Raichur and 27 Gulbarga districts for the remaining period of the year 1968 1969. Respondents 1 and 2 are also directed to cancel forthwith the licences issued to respondent No. 4 in respect of the aforesaid groups of shops. Y.P. Appeal allowed.

The appellant was the highest bidder for the exclusive privilege of retail vend of toddy and arrack for the year 1968 69, in a group of 1168 shops situated in 19 tehsils in the districts of Raichur and Gulbarga. He made the deposits of money required under rr. 7(f) 'and 10 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 made under section 71 of the Mysore Excise Act, 1965. The highest bid of the appellant was accepted and confirmed by the Divisional Commissioner of Gulbarga under r. 17(1) on June 4, 1968. Thereafter, the appellant made further deposits required by rr. 17(5) and 19(2). In all he deposited about Rs. 40 lakhs by June 15. On June 18 he applied to the Divisional Commissioner for the issue licence. He however, did not comply with r. 19(1) and (3) which required that a statement of immovable Properties should be furnished and that he should furnish security or sureties, respectively. The Divisional Commissioner Gulbarga issued a notice to the appellant to show cause why the sale should not be cancelled and the deposits already made forfeited under r. 20(2). The appellant prayed for two months time for compliance with the requirements of r. 19, but the Divisional Commissioner rejected the application and cancelled the sale. He did not pass any order forfeiting the deposits. The appellant filed a writ petition in the High Court for quashing the order and under directions of the Court deposited another Rs. 50 lakhs. The 4th respondent, who was the next highest bidder applied to be made a party to the petition and contended that the appellant was a benamidar for other persons and so acceptance of his tender was forbidden by r. 12. The High Court dismissed the writ petition holding (1) that the appellant did not comply with the mandatory requirements of r. 19 in that he did not furnish the statements and apply 'at once ' for licences as required by r. 19(1); (2) the appellant was a benamidar; and (3) the authorities should consider the advisability of accepting the bid of the 4th respondent. On the very next day after the judgment of the High Court, the respondent State issued licences in respect of 1168 shops to the 4th respondent. In appeal to this Court. HELD : The licences issued to the 4th respondent should be cancelled and a writ of mandamus should issue for the grant of licences to the appellant. [26 A] 15 (1)(a) The opening part of r. 19(4) requires the purchaser to furnish to 'the tehsildar ' the location of shops and the boundaries of the shop sites that is to the tahsildar within whose tehsil the shops are situated. If the shops are situated in more than one tehsil, the details can be fur nished to the several tahsildars, but in such a case it is not possible to give effect to the last part of the sub rule and also to the provisions of sub rr. (3) and (4). The statement of immovable properties under the last part of sub r. (1) can be furnished to only one tahsildar so that he can peruse the same; and on such perusal or on independent inquiry ascertain under sub r. (3) whether or not purchaser is of doubtful solvency and satisfy himself under sub r. (4) whether or not the value of the immovable property tendered as security is adequate. Sub rr. (3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars. The last part of sub r. (1) and sub rr. (3) and (4) do not apply where the shops are situated in two or more tahsils. Consequently, those provisions were not attracted to the sale in the present case and the appellant was not required to comply with those provisions. [22 E] (b) In the absence of 'an independent enquiry under sub r. (3), the appellant could not be regarded as a person of doubtful solvency. (c) Under the Mysore Excise Licences (General Conditions) Rules, 1967, a licencee is required to commence his business on July 1. The expression 'at once ' in r. 19(1), means within a reasonable time before July 1. In the present case, the appellant sufficiently complied with subrule. [23 D E] (d) Under r. 17(2) it is only the excise commissioner or the State Government that could revise the order of the divisional commissioner confirming a sale and the divisional commissioner himself was not authorised to revise his, own order or cancel it. [23 G] Therefore, the High Court was in error in holding that the appellant committed breaches of r. 19. [Rule 19 is clumsily drafted, its import is not clear, its tight time schedule works hard ship and its procedure is cumbersome. The Government should immediately consider the question of redrafting the rule.] [24 C D] (2) The appellant was a retired inspector drawing a pension of about Rs. 75 per month and, is not an income tax or wealth tax assessee. He evidently has the backing of powerful financiers, but the purchase is not illegal merely because the appellant obtained necessary funds from some financiers. The onus of proving that appellant was a benamidar was on the 4th respondent and from the materials on record it is not possible to hold that he is a benamidar for some other person. [25 D] (3) Under r. 17(4), it is only when the highest bid is rejected that the next highest bid may be considered. Where there is an acceptance of the highest offer and 'if for some reason it is revised, r. 17(4) cannot be invoked. In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules. Therefore, the High Court erred in observing that the 'authorities should consider the advisability of accepting the 4th respondents bid. [26 E]

Appeal No. 76 of 1958. Appeal by special leave from the judgment and order dated September 26, 1957, of the Election Tribunal, Dharwar, in Election Petition No. 52 of 1957. G. section Pathak, H. J. Umrigar and G. C. Mathur, for the appellant. P. Ram Reddy, for respondent No. 1. G. section Pathak and section, section Shukla, for the interveners. April 22. The Judgment of the Court was delivered by BHAGWATI J. This is the 4th of the series of Civil Appeals before us arising out of election petitions and involving the interpretation of the relevant sections of the Representation of the People Act, 1951 (hereinafter referred to as " the Act "). The decision of this appeal turns on the construction of section 97 'of the Act and also on the jurisdiction of the Election Tribunals to allow withdrawal or abandonment of part of the claims before them. The appellant and respondents 1 to 3 were the contesting candidates for election to the Mysore Legislative Assembly from the Dharwar Constituency in the last General Elections. The appellant was the Congress candidate and the first respondent was the candidate of the Lok Sevak Sangh party. The result of the election was declared on March 3, 1957, and the appellant was declared elected by a majority of 1,727 votes. On April 14, 1957, the first respondent pre sented to the Election Commission a Petition, being Election Petition No. 52 of 1957 under section 80 of the Act wherein besides claiming a declaration that the election of the appellant was void he claimed a further declaration that he, the first respondent, had been duly elected as he had secured the next highest number of valid votes. The Election Petition was published in 613 the official gazette and was then referred to the Election Tribunal for trial. 'The appellant and the respondents Nos. 2 and 3 received a notice from the Election Commission requiring them to appear before the Tribunal on or before July 20, 1957. On the said date, the first respondent submitted before the Election Tribunal what purported to be an application under 0. 23, r. 1, of the Code of Civil Procedure to the following effect : " The petitioner hereby abandons part of his claim namely " that it be further declared that the petitioner has been duly elected as the petitioner has secured the next highest number of valid votes. " The petitioner confines his claim, therefore, to have the election of respondent No. 1 declared void and to have costs of the proceedings awarded to him. " On July 25, 1957, the appellant filed his objections to the said application contending inter alia, that by reason of the fact that the first respondent had claimed in his Election Petition a declaration that he was duly elected, the appellant and the other respondents to the Election Petition had acquired a right under section 97 of the Act, to file recrimination against the first respondent subject of course to compliance with the necessary statutory provisions in that behalf, and that such right to file recrimination could not be affected by the purported abandonment of the relief by the first respondent. On July 29, 1957,. the appellant gave notice of his recrimination under section 97. The said notice was accompanied by the statement and necessary particulars as required by section 97 read with section 83 of the Act and was given within 14 days from the date of the commencement of the trial, viz., July 20, 1957. The particulars of corrupt practices under section 123(1) (a) and (b) and section 123(6) of the Act thus given by the appellant comprised corrupt practices of bribery and using of motor vehicles for the conveyance of voters to the poll which if proved would have led to his disqualification for standing as a candidate and from. being a member of the Legislature for a period of six years counting from the date on which the finding of the Election Tribunal as to such practice took effect under the Act (Vide section 140). 614 On August 1, 1957, the first respondent filed an objection to the above mentioned notice under section 97 wherein he contended inter alia that the appellant was not entitled to give evidence in recrimination as the claim for further declaration had been abandoned by him. There had been a vacancy for a Legislative Assembly seat from a neighbouring constituency on account of the death of Shri B. R. Tambakad on June 26, 1957, and the first respondent decided to con test the election in the vacancy, filed his nomination paper for the said vacancy on September 17,1957, and was duly elected on October 16, 1957, as a member of the Mysore Legislative Assembly from the Kalaghatgi Constituency. The application of the first respondent under 0. 23, r. 1, of the Code of Civil Procedure. , the notice of recrimination given by the appellant under section 97 and the objection filed by the first respondent to the same came up for hearing before the Election Tribunal, Dharwar, and the Tribunal framed the following issues: " (1) Whether the 1st respondent is entitled to abandon a part of his claim in the manner he has done ? (2) If so, whether the appellant will be entitled to give notice to the Tribunal of his intention to give evidence to prove that the election of the first respondent would have been void if he had been the returned candidate ? (3) Whether the notice of recrimination given by the appellant is barred by limitation ? " The Tribunal held that by virtue of the provisions of section 90(1) of the Act the procedure prescribed by the Code of Civil Procedure had been made applicable to proceedings in election petitions and as such under the provisions of 0. 23, r. 1, of the Code of Civil Procedure the first respondent had a right to abandon a part of his claim. It further held that in view of the abandonment of part of the claim by the first respondent, viz., that he be declared as the duly elected candidate, neither the appellant nor respondents Nos. 2 and 3 would be entitled to give notice of recrimination under 615 section 97 and consequently the appellant would not be entitled to give evidence to prove that the election of the first respondent would have been void if he had been the returned candidate. It also held that the notice of recrimination given by the appellant was not barred by limitation, inasmuch as under explanation to section 90(4) the trial of the petition was deemed to commence on the date fixed for the appellant and the respondents Nos. 2 and 3 to appear before the Tribunal, viz., July 20, 1957, and the notice of recrimination had been given by the appellant within 14 days thereof. The Tribunal accordingly ordered that the abandonment of a part of his claims aforesaid should be noted on the petition and further ordered that the appellant could not give evidence to prove that the election of the first respondent would have been void if he had been the returned candidate inasmuch as on the abandonment of that part of the claim by the first respondent the recrimination put in by the appellant did not survive. The appellant applied for and obtained on January 13, 1958, from this Court special leave to appeal under article 136 of the Constitution to appeal against the decision of the Election Tribunal and that is how this Civil Appeal No. 76 of 1958 has come before us. Section 97 of the Act reads as under : " Recrimination when, seat claimed: (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he bad been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of the commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. (2) Every notice referred to in sub section (1) shall 616 be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner. Under the terms of this section a right of recrimination accrues to the returned candidate or any other party to the Election Petition where the petitioner besides claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that any candidate other than the returned candidate has been duly elected. Would it then be open to the petitioner to abandon that part of 'the relief which claimed such further declaration so as to deprive the returned candidate or any other party to the petition of the right of recrimination which has thus accrued to him; or in other words, has the Election Tribunal the power to allow the petitioner to withdraw or abandon a part of his claim as aforesaid thus rendering the exercise of the said right of recrimination nugatory ? It is necessary at the outset, therefore, to understand the nature and scope of an Election Petition. As has been observed by us in the judgment just delivered in Civil Appeals Nos. 763 & 764 of 1957 and Civil Appeal No. 48 of 1958: " An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. " An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process.". . . . . An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested. 617 (Vide Jagan Nath vs Jaswant Singh (1), A. Sreenivasan vs Election Tribunal, Madras (2), The Tipperary case (3)). An Election Petition presented to the Election Commission is scrutinised by it and if the Election Commission does not dismiss it for want of compliance with the provisions of section 81, section 82 or section 117 of the Act, it accepts the same and causes a copy thereof to be published in the official gazette and a copy thereof to be served by post on each respondent. The respondents to the petition not only get notice of the same but the constituency as a whole receives such notice by publication thereof in the official gazette so that each and every voter of the constituency and all parties interested become duly aware of the fact of such Election Petition having been presented. A copy of the Election Petition published in the official gazette would also show to all of them that the petitioner in a particular Election Petition, in addition to claiming a declaration that the election of all or any of the returned candidates is void, has also claimed a further declaration that he himself or any other candidate has been duly elected. The whole constituency is thus alive to the fact that the result of the election duly declared is questioned on various grounds permitted by law with the likely result that the election of all or any of the returned candidates may be declared void and the petitioner or any other candidate may be declared duly elected, in place and stead of the returned candidate. The constituency may have an interest in either maintaining the status quo or if perchance the election of the returned candidate is set aside, in seeing that some other deserving candidate is declared elected in his place and stead and not necessarily the petitioner or any other candidate sponsored by him whose election could be challenged on any of the grounds mentioned in section 100(1). It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunals with a characteristic of their own and differentiates them from (1) ; , 895. (2) (1955) II E.L.R. 278, 293. (3) ,23. 618 ordinary civil proceedings. Once this process has been set in motion by the petitioner he has released certain forces which even he himself would not be able to recall and he would be bound to pursue the petition to its logical end. It may be that he may not be able to substantiate his claim for a declaration that the election of all or any of the returned candidates is void. In that event he would of course fail and no question would arise of his obtaining a further declaration that lie himself or any other candidate has been duly elected. All the grounds urged in the Election Petition against the returned candidates under section 100(1) of the Act would fail and the election would stand. The voters would thus be vindicated. If the petitioner, however, succeeds in establishing his first claim and the election of the returned candidate is declared void, the question would necessarily arise when such a further declaration has been claimed by him whether he himself or any other candidate should be declared duly elected. In that event, the occasion would arise for considering whether the petitioner himself or any other candidate sponsored by him should be declared duly elected. If the election of the petitioner or such other candidate could have been challenged on any of the grounds mentioned in section 100(1) such election would certainly have been void if he had been a returned candidate and the petition had been presented calling in question his election. A recrimination could there. fore be filed by the returned candidate or any other party to the petition under section 97. The requisite notice under section 97 would be accompanied by the statement and particulars required by section 83 in the case of an election petition and signed and verified in like manner. , This notice would be, in effect, a counter ' petition presented by the returned candidate or any other party to the petition accompanied by the statement and particulars required by section 83 in the case of ,in election petition and would also be supported by the deposit of security and further security referred to in sections 117 and 118 of the Act. The election contest would then not only be between the petitioner on the one hand and the returned candidate on the other but 619 also between the returned candidate or any other party to the petition and the candidate who has been sponsored by the petitioner for such election. An election contest as aforesaid would result in the declaration of the properly qualified candidate as duly elected and the maintenance of the purity of the elections in which the constituency as a whole is vitally interested and no person would get elected by flagrant breaches of the election law or by corrupt practices. This is the purpose of a recrimination and the right to file a recrimination accrues to the returned candidate or any other party to the petition the moment an election petition is presented containing a claim for a further declaration that the petitioner himself or any other candidate has been duly elected. The proviso to section 97(1) merely enacts conditions for the exercise of such right of recrimination and states that the returned candidate or such other party is not to be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. If these conditions are fulfilled in the manner therein specified the returned candidate or such other party will be entitled to give such evidence which right of course would not be capable of being exercised if either of these two conditions has not been fulfilled. The accrual of this right, however, is not postponed till the fulfilment of these conditions. It accrues the moment an election petition containing a claim for such further declaration is presented to the Election Commission. If once such a right has accrued to the returned candidate or any other party to the petition, can that right be affected by the petitioner seeking to withdraw or abandon that part of his claim, viz., a claim for a further declaration that he himself or any other candidate has been duly elected ? If it were permissible for him to withdraw or abandon a part of his claim on the analogy of 0. 23, r. 1, of the Code of Civil Procedure, 79 620 he would make a virtue of necessity and withdraw or abandon that part of his claim so as to avoid any investigation in the Election Petition itself in regard to himself or any other candidate sponsored by him on any of the grounds mentioned in section 100(1) including corrupt practices within the meaning of section 123 which if proved would entail a disqualification for standing as a candidate or even for voting for a period of 6 years under sections 140 and 141(b). So far as withdrawal of petitions is concerned there are specific provisions enacted in the Act beginning with section 108. Section 108 deals with the withdrawal of petitions before the appointment of Tribunals and provides that an election petition may be withdrawn only by leave of the Election Commission if an application for its withdrawal is made before any Tribunal has been appointed for the trial of such petition. Section 109 deals with the withdrawal of petitions after the appointment of Tribunals and enacts that where an application for withdrawal of an election petition is made after a Tribunal has been appointed for the trial of such petition, the election petition may be withdrawn only by leave of the Tribunal and a notice of such an application fixing a date for the hearing of the application is to be given to all other parties to the petition and is to be published in the official gazette. Section 110 prescribes the procedure for withdrawal of petitions before the Election Commission or the Tribunal and section 110(2) provides that no application for withdrawal is to be, granted if in the opinion of the Election Commission or of the Tribunal, as the case may be, such application has been induced by any bargain or consideration which ought not to be allowed. If such an application is granted, notice of the withdrawal is to be published in the official gazette by the Election Commission or by the Tribunal as the case may be; and a person who might himself have been a petitioner may, within fourteen days of such publication apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions of section 117 as to security, is to be entitled to be so substituted and to continue the proceedings 621 upon such terms as the Tribunal may think fit. When an application for withdrawal is granted by the Tribunal and no person has been substituted as, petitioner in place of the party withdrawing as above, the Tribunal is to report the fact to the Election Commission and thereupon the Election Commission shall publish the report in the official gazette. This will ring the curtain on the election contest and the result of the election which has been duly declared will no more be liable to be disturbed. There are also provisions enacted in the Act which provide for the consequences of the death of a sole petitioner or of the survivor of several petitioners or the death or withdrawal of opposition by the sole respondent therein. Section 112 provides that an election petition shall abate on the death of a sole petitioner or of the survivor of several petitioners. If an election petition thus abates before a Tribunal has been appointed for the trial of the petition, notice of the abatement shall be published in the official gazette by the Election Commission (Vide section 113). If on the other hand an election petition abates after a Tribunal has been appointed for the trial of the petition, notice of the abatement has to be published in the official gazette by the Tribunal (Vide section 114). The death of a sole petitioner or of the survivor of several petitioners, however, does not spell the termination of the proceedings and section 115 provides that after a notice of the abatement of an election petition is published under section 113 or section 114 any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions of section 117 as to security shall be entitled to be so substituted and to continue the proceedings upon such terms as the Tribunal may think fit. The position as it obtains on the death or withdrawal of opposition by a respondent is worked out in section 116 which provides that if before the conclusion of the trial of an election petition the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and 622 there is no other respondent who is opposing the petition the Tribunal shall cause notice 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 continue the proceedings upon such terms as the Tribunal may think fit. The above provisions go to show that an election petition once filed does not mean a contest only between the parties thereto but creates a situation which the whole constituency is entitled to avail itself of. Any person who might himself have been a petitioner is entitled to be substituted, on the fulfilment of the requisite conditions and upon such terms as the Tribunal may think fit, in place of the party with drawing and even the death of the sole petitioner or of the survivor of several petitioners does not put an end to the proceedings, but they can be continued by any person who might himself have been a petitioner. Even if the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, a similar situation arises and the opposition to the petition can be continued by any person who might have been a petitioner, of course on the fulfilment of the conditions prescribed in section 116. These provisions therefore show that the election petition once presented continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner. If, therefore, an election petition duly presented cannot be thus withdrawn by the petitioner, is there any warrant for the contention that even though he may not be able to withdraw his petition in the manner aforesaid he can at least abandon a part of his claim on the analogy of 0. 23, r. 1, of the Code of Civil 623 Procedure? The whole petition cannot be withdrawn; but would it not be possible for the petitioner to withdraw or abandon a part of his claim as above? The provisions of section 90 of the Act are sought to be relied upon in support of this contention. Section 90(1) provides that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits, provided however that the Tribunal shall have the discretion to refuse for reasons to be recorded in writing to examine any witness or witnesses if it is of the opinion that their evidence is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. Under section 90(2) the provisions of the , shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. Section 90(4) provides that any candidate not already a respondent shall, upon application made by him to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of section 119, be entitled to be joined as a respondent. Section 90(5) provides that the Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt 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 not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. It is clear from the above that the section only provides for the procedure for the trial of election petitions by the Tribunals. It provides for the examination of witnesses, the rules of evidence to be followed, the joinder of candidates not already respondents as respondents and the amendment or amplification of particulars of a corrupt practice already alleged in the petition. The powers of a Tribunal are, however, separately dealt with in section 92 624 which enacts that the Tribunal shall have the powers which are vested in a court under the Code of Civil Procedure, when trying a suit in respect of the following matters: (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (e) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses, and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. It will be noticed that the procedure for trial before the Tribunal and the powers of the Tribunal are treated separately thus distinguishing between the procedure to be followed by the Tribunal and the powers to be exercised by it. There are also other provisions to be found in the Act which relate to place of trial (section 88); Power of Election Commission to withdraw and transfer Petitions (section 89); appearance before Tribunal (section 91); documentary evidence (section 93); answering of criminating questions and certificate of indemnity (section 95) and expenses of witnesses (section 96). The effect of all these provisions really is to constitute a self contained Code governing the trial of election petitions and it would appear that in spite of section 90(1) of the Act, the provisions of 0. 23, r. 1, of the Code of Civil Procedure, would not be applicable to the trial of election petitions by the Tribunals. If the withdrawal of a petition cannot be permitted and any person who might have been a petitioner is entitled to continue the proceedings, on a parity of reasoning, the withdrawal of a part of the claim also could not be permitted without allowing another person who might have been a petitioner an opportunity of proceeding with that part of the claim by substituting himself in place and stead of the petitioner who withdraws or abandons the same. If the constituency as a whole is interested in the petition presented before the Election Tribunal no such withdrawal or abandonment of a part of the claim could ever be permitted without giving an 625 opportunity to any person who might have been a petitioner to continue the proceedings and pursue the petition to its logical conclusion. The provisions of 0. 23, r. 1, of the Code of Civil Procedure also contain inherent evidence which militates against this contention. Order 23, r. 1, sub rule (2), provides for liberty being given by the Court to a party withdrawing or abandoning a part of his claim to file a fresh suit on the same cause of action, if so advised. In the very nature of things such liberty could not be reserved to a petitioner in an election petition. The provisions above referred to in regard to withdrawal of petitions do not provide for the same and if they do not do so, can it be urged that the provisions of 0. 23, r. 1, sub rule (2), though they may not apply to the cases of withdrawal of petitions may nevertheless apply where the petitioner withdraws or abandons a part of his claim ? If these provisions do not apply to the withdrawal or abandonment of a part of the claim in the case of an election petition, could it then be urged that nevertheless the other provisions of O. 23, r. 1, would apply and the petitioner would be at liberty to withdraw or abandon a part of his claim ? On a due consideration of all these provisions, we are of opinion that the provisions of O. 23, r. 1, do not apply to the election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission, more so when such a withdrawal or abandonment of a part of the claim would have the effect of depriving the returned candidate or any other party to the petition of the right of recrimination which had accrued to him under section 97 of the Act. This is also the position in England. Halsbury 's Laws of England, 3rd Ed., Vol. 14, para. 451, p. 258, contains the following passage under the caption Amendment of petition " : " The withdrawal of that portion of a petition which claims the seat cannot, however, be effected by way of amendment because the rights of the electors would be affected by their not having the opportunity of substituting another petitioner. 626 See also the passage at ibid p. 300, para. 541 : " It seems that where the petition prays the seat, recriminatory evidence may be offered, notwithstanding, that the prayer for the seat is abandoned at the trial. The case of Aldridge vs Hurst (1) elucidates this position. Grove J. in that case observed as follows: " Numerous provisions of the Act have reference not merely to the individual interests or rights of petitioners or respondents, but to rights of electors, of constituencies, and of the public, in purity of election and in having the member seated who is duly returned by a majority of proper votes. It appears to us also that the scope of the Act is, that petitions should not be mere pleadings, nor framed for the purpose of intimidating or in any way inducing, the respondent to abandon his seat; still less, of course, should they be collusive; but that they should be real, well considered, and not lightly withdrawn either in whole or part . . . . . . . . These section show that not mearely may the candidate who is not returned claim the seat, or in other words claim to have been duly elected, but that any other voter might claim the seat for a candidate who has not been returned. " This right petitioning shows that the Act contemplates, in regard to petitions, not merely the rights of candidates not returned, but the rights of the constituency to insure that the person really elected should be their member; and this without the cost and disturbance of a new election, as the judge 's decision in favour of such claim is final." " It appears to us that it would be an infringement of this right, if, a petition having been presented by one person (in this case a candidate) claiming the Beat, the claim to the seat could be withdrawn by the mere motion of the person presenting it, after the twenty one days, when no other petition could be presented, and thus the voters be prevented from claiming (1) , 413, 414. 415, 417 627 the seat for one who may be the duly elected representative; or, on the other hand, from shewing by means of the recriminative charges which put in issue the claim, that the claimant is not a person entitled to the seat by that election or that he is disqualified for future elections; such withdrawal not being accompanied by the power to substitute another person as petitioner, by means of which the inquiry might be gone into at the trial. " " It appears to us that the withdrawal of this portion of the prayer of the petition is in pari materia with, even if it is not within, the provisions of the Act relative to the withdrawal of a whole petition." " It is also to be observed that, although petitions may be presented at the last moment, it is commonly known in the county or borough that such petitions are likely to be presented ; and if any suspicion exists that they are sham petitions, means are taken by those who are in earnest to lodge petitions; and the entire withdrawal of collusive petitions is guarded against by the provisions of the Act to which we have alluded." " In one point of view it is an argument against our allowing this prayer to be withdrawn, that, if there be no power under the withdrawal clauses to substitute a person for the petitioner as to this prayer, the constituency will be without means of proving either that the petitioner is the duly elected member, or to answer his allegation that he is elected, or to shew that he is unfit to serve in a future parliament, he himself having raised this issue by claiming the seat. " It is, therefore, clear that there is no power in the Election Commission to allow a petitioner to withdraw or abandon a part of his claim either by having resort to the provisions of 0. 23, r. 1, of the Code of Civil Procedure or otherwise. If that is so, the right of recrimination which has once accrued to the returned candidate or any other party to the petition under section 97 of the Act cannot be taken away, and the returned candidate or any other party to the petition would in 80 628 such circumstances be entitled to give evidence to prove that the election of the petitioner or any other candidate sponsored by him would have been void if he had been the returned candidate and a petition had been presented calling in question his election. The counter petition which has in effect been thus filed by the returned candidate or any other party to the petition must be allowed to proceed and the right of recrimination should continue to be exercised notwithstanding the attempted abandonment of a part of his claim by the petitioner with the inevitable result that if any corrupt practice within the meaning of section 123 were proved against the petitioner or any other candidate sponsored by him it would entail upon him the disqualification for standing as a candidate or even for voting for a period of 6 years under sections 140 and 141(b). In the present case, such proof on the part of the appellant would have not only entailed upon the lst respondent a disqualification for voting but even for standing as a candidate for a period of six years, with the inevitable consequence that his election to the Mysore Legislative Assembly from the Kalaghatgi constituency on October 16, 1957, would have been void and lie would have been unseated. We have, therefore, come to the conclusion that the order passed by the Election Tribunal allowing abandonment of a part of the claim by the first respondent and precluding the appellant from giving evidence to prove that the election of the first respondent would have been void if he had been the returned candidate was clearly erroneous and liable to be set aside. We accordingly allow the appeal and reverse the order passed by the Election Tribunal dated September 26, 1957. The Election Tribunal shall proceed with the trial of the election petition on the claims as they were originally included in the petition and will also allow the appellant to exercise his right of recrimination under section 97 of the Act. The first respondent will pay the appellant 's costs of this appeal and the costs thrown away before the Election Tribunal. Appeal allowed.

A, the unsuccessful candidate at an election, filed an elec tion petition against B, the successful candidate, claiming a declaration ' that the election of B was void and that lie had been duly elected as he had secured the next highest number of valid votes. On the first date of the hearing before the Election Tribunal A submitted an application under 0. 23, r. 1, of the Code of Civil Procedure abandoning the relief claiming the seat. B objected to the abandonment and filed a notice of recrimination under section 97 of the Representation of the People Act, 1951, accompanied by the statement and necessary particulars. A contended that B was not entitled to give evidence in recrimination as the claim for the seat had been abandoned. The Tribunal held that section 90(1) of the Act had made the procedure prescribed by the Code of Civil Procedure applicable to proceedings in election petitions and as such A had a right under 0. 23, r. 1, of the Code to abandon a part of his claim and that A having abandoned his claim for the seat B was no longer entitled to recriminate Held, that the provisions of the Act constitute a self con tained code governing the trial of an election petition and in spite of section 90(1) of the Act, the provisions 0. 23, r. 1, of the Code of Civil Procedure were not applicable to the trial of an election petition by the Tribunal ; and it was not open to A to withdraw or abandon a part of his claim once an election petition had been presented to the Election Commission, particularly when such a withdrawal or abandonment of a part of the claim would have had the effect of depriving B of the right of recrimination which had accrued to him under section 97 Of the Act. The right of recrimination accrued to B the moment the election petition was presented to the Election Commission containing the claim for 'the seat, and it was not open to A to defeat this right by withdrawing or abandoning the claim for the seat. An election petition once filed does not mean a contest only between the parties thereto but continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or 78 612 by the death or withdrawal of opposition by the respondent but is liable to be continued by any person who might have been a petitioner.

iminal Appeal No. 95 of 1961. Appeal by special leave from the judgment and order dated February 15, 1961, of the Allahabad High Court in Criminal Appeal No. 1597 of 1960. D. section Tewatia and K. B. Mehta, for the appellants. O. P. Rana and C. P. Lal, for the respondents. August 29, 1963. The judgment of the Court was delivered by HIDAYATULLAH J. This is an appeal by special leave against the judgment of the High Court of Allahabad in Criminal Appeal No. 1597 of 1960 decided on February 15, 1961. The appellants are eight in number and they have been convicted under section 325 read with section 149 of the Indian Penal Code and sentenced to three years rigorous imprisonment. They have also been convicted variously under sections 147 & 148, Indian Penal Code and sentenced to smaller terms of imprisonment which need not be mentioned as those sentences are made to run concurrently with the above sentence. They were originally charged under section 302 read with section 149, Indian Penal Code for the murder of one Tikam on January 24, 1960 at about noon in village Nandgaon Police Station Barsana District Mathura. The Session Judge, Mathura, did not think that a case of murder was made out and convicted them of the lesser offence. Their appeal to the High Court was dismis sed and the conviction and sentences were maintained. There was yet another trial at which these eight persons and four others were tried under section 307/149, Indian Penal Code for causing hurt to one Puran with such intention and under such circumstances that if by that act they had caused his death they would have been guilty of murder and also under sections 147 & 148 of the Penal Code for being members of an unlawful assembly, the common object of which was an attempt on Puran 's life. The learned Sessions judge, Mathura held in the second case that the injuries sustained by Puran warranted an 675 offence under section 323, Indian Penal Code. The accused and Puran compounded that offence and all the accused were acquitted. The Sessions judge, however, convicted 11 out of 12 accused under sections 147 & 148, Indian Penal Code and awarded different sentences, according to the weapons possessed by them. One Koka was acquitted because his plea that he was blind from birth was accepted. The 11 accused in the second case appealed to the High Court and were acquitted of the charge of being members of an unlawful assembly. That Judgment of the High Court was delivered on January 31, 1961, in Criminal Appeal No. 1598 of 1960, fifteen days before the confirmation of the conviction and sentences of the eight appellants in this appeal. The facts of the case may now be given. There was enmity between Tikam (deceased) and the appellants and on January 24, 1960, just about noon time Tikam was sitting at the shop of a blacksmith in village Nandgaon. Dulli and Nathi who were examined as P. Ws. 2 & 3 were sitting near him. The appellants who were armed with Ballams, a Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault him. Tikam was severely injured and fell in a ditch adjacent to the road but even after he fell in it the assault was continued by the appellants. He died the same day about five hours later. After assaulting Tikam, these appellants decided to ransack his house and started towards it. On the way they were met by the other four accused and this brought their number to twelve. While they were going to the house of Tikam they saw Puran and decided to beat him. Puran was assaulted and the second case arose out of the assault on him. The learned magistrate who committed the accused to stand their trial before the Court of Sessions framed a common charge in respect of the two incidents but the Sessions judge amended the charge and divided it into two charges namely one connected with the attack on Tikam and the other connected with the attack on Puran. , He also separated the two trials on the two charges. As stated already lie convicted the eight appellants in respect of their assault on Tikam and the same appellants with three others in respect of their assault on Puran. 676 The appeal in the second case was heard first and was allowed by the High Court and the 11 appellants in that appeal including the eight before us were ordered to be acquitted. It was contended before us by Mr. Tewatia that Mr. Justice Sharma who delivered the judgment impugned before us did not allow the appellants a chance to reply to the arguments on behalf of the State and thus denied them a fair hearing. This fact was mentioned in the petition for certificate in the High Court and has been repeated in the petition for special leave. Mr. Justice Sharma had proceeded to deliver judgment as soon as the arguments were over and the judgment was delivered by him on two consecutive days in the presence of the appellants and their counsel. If any such right had been denied to the appellants they should have brought the matter immediately to the notice of the learned Judge and he would have rectified it. It appears that the appellants were hoping for an acquittal in view of the prior acquittal by the learned judge in the companion case and realised too late that their appeal was not accepted. It is for this reason that they do not appear to have raised this issue before the learned Judge when they asked him to certify the appeal and his Order does not show that they made a grievance that the hearing was not fair. In our opinion this point cannot be considered because though. it was mentioned in the petition for certificate it was apparently not pressed before Mr. Justice Sharma. The next contention of the appellants is that the prior acquittal in the second case operates as a bar to the conviction in the present case and the High Court ought to have given the appellants the benefit of the prior ac quittal. Reliance in this connection is placed upon a de cision of the Privy Council in a case from Malaya State reported in Sambasivam vs Public Prosecutor/Federation of Malaya(1) and particularly the following passage from the judgment of Lord Mac Dermott: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. at p. 479. 677 To that is must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maximum "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and wasprecluded from taking anystep to challenge it at the second trial. And the ap pellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other. " The above passage was cited with approval by this Court in Pritam Singh vs State of Punjab(1). The two cited cases were considered and distinguished by this Court in Mohinder Singh vs State of Punjab(2) and Pritam Singh 's case was again distinguished in Gurcharen Singh & anr. vs State of Punjab(1). As pointed out in Mohinder Singh vs State of Punjab(2), the case of the Privy Council involved a confession by an accused in which he admited possession of a firearm and some ammunition which were both offences under the relative law of Malaya State. He was convicted on the basis of that statement on two counts but on appeal was acquitted in respect of the count relating to the possession of ammunition and a fresh trial was ordered in respect of the count relating to the possession of the firearm. In the second trial the confession was again relied upon and he was convicted. The Privy Council set aside the conviction because the confession was incapable of being divided into two parts so as to make separate confessions about the (1) A.I.R. 1956 S.C. 415. (2) Cr. A. No. 140 of 1961, decided on 31 7 63 (Unreported). (3) 678 possession of firearm and about the possession of am munition. Their Lordships held that the confession which was indivisible could not be used at all, in view of the acquittal recorded earlier on the other count. In Pritam Singh 's case(1) the accused made a statement leading to the recovery of a firearm with which he was alleged to have shot one of the victims. He was prosecuted for possession of the firearm and was acquitted but the evidence of the possession of the firearm was used in the murder charge. This was held to be not permissible. As explained in Mohinder Singh 's case(2), the acquittal in respect of the possession of firearm affected the admissibility of the same evidence in connection with the murder case, because the firearm could not at the same time be possessed as well as not possessed by the accussed. The acquittal under the Arms Act,, being proper, affected the evidence of possession in the murder case. In Mohinder Singh 's case(2) as well as in Gurcharan 's(3) case Pritam 's(1) case was distinguished because in those cases, the acquittal under the Arms Act was later than the conviction on the substantive charge. There is nothing in common between the present appeal and the two cases relied upon by the appellants. In this case there is no doubt a prior acquittal but on a charge which was quite different from and independent of the charge in the present case. The assault on Tikam was over when the unlawful assembly formed its now common object namely the assault on Puran. The acquittal proceeded mainly because Puran compounded the offence under section 323 and the High Court did not feel impressed by the evidence about the remaining charges, The charges on which that acquittal took place had nothing whatever to do with the charges on which there is conviction in the present appeal. A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made un (1) A.I.R. 1956 section C. 415. (2) Cr. A. No. 140 of 1961, decided on 31 7 63 (unreported). (3) 679 der section 236 or for which he might have been convicted under section 237. Section 236 provides for a situation where it is doubtful what offence has been committed. When a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, that section permits that the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of such offences. Section 237 enables the Court to convict an accused charged with one offence for a different offence where the facts show that a different offence has been committed. Neither of these provisions is applicable to the present facts because the two offences were distinct and spaced slightly by time and place. The trials were separate as the two incidents were viewed as distinct transactions. Even if the two incidents could be viewed as connected so as to form parts of one transaction it is obvious that the offences were distinct and required different charges. The assault on Tikam in fulfilment of the common object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it. The new common object to beat Puran was formed at a time when the common object in respect of Tikam had been fully worked out and even if the two incidents could be taken to be connected by unity of time and place (which they were not), the offences were dis tinct and required separate charges. The learned Sessions judge was right in breaking up the single charge framed by the magistrate and ordering separate trials. In this view the prior acquittal cannot create a bar in respect of the conviction herein reached. It was contended by Mr. Tewatia that the earlier judgment involved almost the same evidence and the reasoning of the learned judge in Puran 's case destroys the prosecution case in the present appeal. He attempted to use the earlier judgment to establish this point. In our opinion he cannot be allowed to rely upon the reasoning in the earlier judgment proceeding as it did upon evidence which was separately recorded and separately 680 considered. The eye witnesses in this case are five in number, while in the other case there were only two, but that apart, the earlier judgment can only be relevant if it fulfils the conditions laid down by the Indian Evidence Act in sections 40 43. The earlier judgment is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence. Since the bar under section 403 Criminal Procedure Code did not operate, the earlier judgment is not relevant for the interpretation of evidence in the present case. Mr. Tewatia attempted to argue on the facts of this case but we did not permit him to do so because this Court, in the absence of special circumstances, does not review for the third time, evidence, which has been accepted in the High Court and the Court below. No such circumstance has been pointed out to us to make us depart from the settled practice. The appeal therefore fails and is dismissed. Appeal dismissed.

The eight appellants variously armed attacked one 'T ' and as a result of the assault 'T ' died. These appellants then proceeded to loot the house of 'T ' and on the way met four others who joined them. They then came across one 'P ' and assaulted him. There was a small gap of time and 'the places of assault were different. The magistrate framed a single charge but the Session Judge framed two charges namely one connected with the attack on 'T ' and the other connected with the attack on 'P '. He also separated the trials on the two charges. The Sessions judge convicted the appellants in both cases. The appeal in the second case i.e. the case relating to assault on 'P ' was heard first by the High Court and the appellants were acquitted of the charges of being members of an unlawful assembly. Later the appeal connected with the assault on 'T ' was heard by the High Court and in that appeal their convictions and sentences were confirmed. The present appeal arises out of the convictions and sentences passed by the High Court. The appellants contended that the prior acquittal in the second case operated as a bar to the conviction in the present case. The appellants relied on a decision of the Privy Council namely Sarnbasivam vs Public Prosecutor Federation of Malaya and of this Court in Pritam Singh vs State of Punjab. Held: (i) There was nothing in common between the present appeal and the aforesaid two cases relied upon by the appellants. In this case the assault on 'T ' was over when the unlawful assembly formed its new common object namely the assault on 'P '. (ii) A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arose when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237. The prior acquittal in the other case did not operate as a bar to the conviction in the present case as the charge in the other case was quite different from and independent of the charge in the present case, and sections 236 and 237 of Code of Criminal Procedure were not applicable to the present facts because the two offences were distinct. Sambasivam vs Public Prosecutor Federation of Malaya, [ , Pritam Singh vs State of Punjab, A.I.R. 1956 S.C. 415, Gurcharan Singh vs State of Punjab, and 674 Mohinder Singh vs State of Punjab, Cr. A. No. 140 of 1961 decided on 31 7 63, explained. (iii) This court, in the absence of special circumstances, does not review for the third time evidence which has been accepted in the High Court and the trial court.

Civil Appeal No. 573 of 1988 From the Judgment and order dated 13.2.1987 of the Bombay High Court in W.P. No. 613 of 1984. 33 A.M. Khanwilkar and A.S. Bhasme for the Appellant. B.N. Singhvi and A.K. Gupta for the Respondent. The Judgment of the Court was delivered by SINGH, J. Special leave granted. This appeal raises an important question of law whether a Government servant after his retirement on attaining the age of superannuation is liable to be dealt with departmentally for any misconduct, negligence or financial irregularities committed by him during the period of his service. Necessary facts giving rise to this appeal are that M.H. Mazumdar, the Respondent was in the service of the State of Maharashtra as Supply Inspector and he retired from service on attaining the age of superannuation on September 1, 1977. After his retirement the respondent was served with a charge sheet on October 16, 1978 containing allegations of misconduct and negligence against him for the period he was in service. Enquiry into those charges was held and the respondent was afforded full opportunity to defend himself. On the conclusion of the enquiry the State Government issued orders on December 4, 1982 reducing the amount of pension payable to the respondent by 50 per cent permanently under Rule 188 of the Bombay Civil Services Rules. The respondent challenged the validity of the Government 's order by means of a writ petition under Article 226 of the Constitution before the High Court of Bombay. A Division Bench of that Court allowed the writ petition and quashed the State Government 's order dated December 4, 1982 on the ground that the State Government had no authority in law to take any disciplinary proceedings against the respondent as he had already retired from service. Placing reliance on a decision of this Court in B.J. Shelet vs State of Gujarat & Ors. ; the High Court held that the initiation of disciplinary enquiry and the order of punishment was unauthorised and illegal. The State of Maharashtra has preferred this appeal against the judgment of the High Court. There is no dispute that the respondent had retired from service on attaining the age of superannuation on September 1, 1977 and charges were served on him on October 16, 1978 after about a year of his retirement. Undisputably the proceedings against the respondent were initiated after the respondent ceased to be in service of the State 34 Government. The proceedings culminated into an order of the State Government reducing the respondent 's pension by 50 per cent. The question is whether the State Government was competent to take action against the respondent by reducing his pension. Conditions for grant of pension to a Government servant of the State of Maharashtra are regulated by the Bombay Civil Services Rules (hereinafter referred to as the Rules). Rule 184 provides for grant of pension admissible under the rules to Government servant who is borne on its establishment. Rules 188 and 189 relevant for our purpose are as under: "188. Government may make such reduction as it may think fit in the amount of the pension of a Government servant whose service has not been thoroughly satisfactory." "189. Good conduct is an implied condition of every grant of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided that before any order to this effect is issued, the procedure referred to in Note I to Rule 33 of Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed. " The aforesaid two Rules empower Government to reduce or withdraw a pension. Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service. Grant of pension and its continuance to a Government servant depend upon the good conduct of the Government servant. Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension. Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to a Government servant for misconduct which he may have committed while in service. This Rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance to the procedure specified in Note I to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. The State Government 's power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement is expressly preserved by the aforesaid Rules. 35 The validity of the Rules was not challenged either before the High Court or before this Court. In this view, the Government has power to reduce the amount of pension payable to the respondent. In M. Narasimhachar vs The State of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma & Anr., [1987] 2 SCC 179 similar Rules authorising the Government to withhold or reduce the pension granted to the Government servant were interpreted and this Court held that merely because a Government servant retired from service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to a Government servant. The High Court in our view committed serious error in holding that the State Government had no authority to initiate any proceedings against the respondent. In B. J. Shelat vs State of Gujarat & Ors. disciplinary proceedings had been initiated against the Government Servant for purpose of awarding punishment to him after he had retired from service. The ratio of that decision is not applicable to the instant case as in the present case the purpose of the enquiry was not to inflict any punishment; instead the proceedings were initiated for determining the respondent 's pension. The proceedings were taken in accordance with Rules 188 and 189 of the Rules. It appears that the attention of the High Court was not drawn to these Rules. The State Government had power to reduce the pension payable to respondent but having regard to the facts and circumstances, of the case we are of the opinion that the reduction of pension by 50 per cent was disproportionate to the charges proved against the respondent. Two charges were framed against the respondent which are as under: "Charge No. 1. He has made a farce of an enquiry, collected 6 permits from the Kolhapur Central Co operative Consumers Stores including the permit No. 007314 issued to Shri K.P. Khatavane with malafide intention after passing a receipt thereof to the Godown Keeper, of the said stores on 12.6.1974 and thereby tried to shield Shri K.P. Khatavane and his sons Baban Khatavane from criminal prosecution. Charge No. 2. He has deliberately and intentionally denied to have made 36 any enquiry regarding unauthorisedly lifting of 10 bags of Sugar on bogus or forged permit by Shri Baban Khatavane even though he was deputed for such enquiry by Shri A.R. Mane District Supply officer, Kolhapur and he had actually recorded the statement of Shri S.L. More, Godown Keeper of the said stores and Shri Hari Santu Pande, Cart driver and also collected above mentioned 6 permits from Shri More after passing a receipt thereof. By denying the above fact he has helped Shri A.R. Mane, District Supply officer, Kolhapur for suppressing the case. His failure in this regard leads to belief that he has conspired with Shri K.P. Khatavane and his son Shri Baban Khatavane with some ulterior motive and abatted them in the disposal of sugar in black market. " On conclusion of the enquiry charge No. 1 was found to have been established while charge No. 2 was partially proved. In his report to the State Government the Collector of Kolhapur held that the respondent 's action was helpful to Shri Khatavane to sell the sugar in the black market, and it amounted to a serious default on his part as a Government servant. He recommended that since the respondent had already retired from service a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made The State Government accepted the findings and passed the impugned order reducing the pension by 50 per cent In our view the reduction of pension 50 per cent was too harsh and disproportionate to the misconduct proved against the respondent. The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50 per cent would seriously affect his living. Accordingly, we allow the appeal partly, and set aside the order of the High Court dated February 13, 1987, and the State Government 's order dated December 4, 1982 and direct the State Government to reconsider the question of reduction of respondent 's pension. There will be no order regarding costs. N.P.V. Appeal allowed.

% The respondent retired from State Government service on September 1, 1987, on attaining the age of superannuation. About a year after his retirement, the respondent was served with a chargesheet containing allegations of misconduct and negligence for the period he was in service. Enquiry into the charges was held and respondent was afforded full opportunity to defend himself. On the conclusion of the enquiry a report was submitted by the Collector, holding that one of the two charges was established while the other charge was partly proved, and that the respondent 's action was helpful to one of the parties which amounted to a serious default on his part as a Government servant, and it was recommended that since the respondent has already retired from service, a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made. The State Government accepted the findings and issued orders reducing the amount of pension payable to the respondent by 50% permanently under Rule 188 of the Bombay Civil Services Rules. The respondent challenged the validity of the Government order before the High Court. A Division Bench of the High Court allowed the writ petition and quashed State Government 's order on the ground that the State Government had no authority in law to take any disciplinary proceedings against respondent as he had already retired from service and the initiation of disciplinary enquiry and the order of punishment were unauthorised and illegal. Allowing the appeal by the State. partly, 32 ^ HELD: 1.1 Rule 188 of the Bombay Civil Services Rules empowers the Government to reduce the amount of pension of a Government servant whose service has not been thoroughly satisfactory. Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to Government servant for misconduct which he may have committed while in service, after giving opportunity of defence in accordance with the procedure specified in Note I of Rule 33 of the Bombay Civil Services Conduct Discipline and Appeal Rules. The State Government 's power to reduce or withhold pension by taking proceedings against Government servant even after retirement is thus expressly preserved by the aforesaid rules. [34C, F H] 1.2 The High Court committed a serious error in holding that the State Government had no authority to initiate any proceedings against the respondent. The purpose of the enquiry was not to inflict any punishment, and the proceedings were initiated for determining respondent 's pension. The proceedings were taken in accordance with the Rules 188 and 189 of the Rules. [35C E] 1.3 The Government had power to reduce the pension payable to the respondent but having regard to the facts and circumstances of the case, the reduction of pension by 50% was too harsh and disproportion ate to the misconduct proved against the respondent. The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50% would seriously affect his living. The order of the High Court and the State Government 's order reducing pension by 50% are set aside and the State Government is directed to reconsider the question of reduction of respondent 's pension. [35E F; 36E G] B. J. Shelet vs State of Gujarat & ors. ; , , distinguished. M. Narasimhachar vs The State of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma & Anr., [1987] 2 SCC 179, referred to.

Appeals Nos. 272 to 274 of 1966. Appeals by special leave from the judgment and order dated July 28, 1961 of the Madras High Court in O.S.A. Nos. 65, 70 and 71 of 1956. K.N. Balasubramaniam and R. Thiagarajan, for the appel lant (in all the appeals). R.Gapalakrishnan, for respondents Nos. 2 to 4 (in C.A. No. 272 of 1966), respondents Nos. 1 and 2 (in C.A. No. 273 of 1966) and respondent No. 1 (in C.A. No. 274 of 1966). The Judgment of the Court was delivered by Bachawat, J. On February 23, 1953 the appellant instituted C.S. No. 56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs. 40,556/1/2/ and Rs. 8,327/12/9/ said to be due under two I promissory notes executed by Haji Ahmed Batcha. On March 9 1953, Hajee Ahmed Batcha obtained leave to defend the suit on condition of his furnishing the security for a sum of 516 Rs. 50,000 to the satisfaction of the Registrar of the High Court. On March 26, 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immoveable properties for payment of Rs. 50,000. The condition of the bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force. The bond was attested by B. Somnath Rao. It was also signed by K. section Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him. All the properties charged by the bond are outside the local limits of 'the ordinary original jurisdiction of the Madras High Court. The document was presented for registration on March 29, 1.953 and was registered by D. W. Kittoo, the Sub Registrar of Madras Chingleput District. Before the Sub Registrar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz. The identifying witnesses as also the Sub Registrar signed the document. Hajee Ahmed Batcha died on February 14, 1954 and his legal representatives were substituted in his place in C.S. No. 56 of 1953. On March 19, 1954 Ramaswami, J. passed a decree for Rs. 49,891/13/ with interest and costs and directed payment of the decretal amount on or before April 20, 1954. While passing the decree, he observed : "It is stated that the defendant has executed a security bond in respect of their immoveable properties when they obtained leave to defend and this will stand enured to the benefit of the decree holder as a charge for the decree amount.". Clauses 3 and 4 of the formal decree provided "(3) that the security bond executed in respect of their immoveable properties by defendants 2 to 4 in pursuance of the order dated 9th March 1953 in application No. 797 of 1953 shall stand enured to the benefit of the plaintiff as a charge for the a amounts mentioned in clause 1 supra; (4).that in default of defendants 2 to 4 paying the amount mentioned in clause 1 supra on or before the date mentioned in, clause 2 supra the plaintiff shall be at liberty to apply for the appointment of Commissioners for, sale of the aforesaid properties. " The appellant filed an application for (a) making absolute the charge decree dated March 31, 1954 and directing sale of the properties; and (b) appointment of Commissioners for selling them. On April 23, 1954 the Court allowed the application, appointed Commissioners for selling of the properties and directed that the relevant title deeds and security bond be handed over 5 17 to the Commissioners. The Commissioners sold the properties on May 29 and 30, 1954. The sales were confirmed and the sale proceeds were deposited in Court on July 2, 1954. All the three respondents are simple money creditors of Hajee Ahmed Batcha. The respondents Venkata Sastri & Sons filed O.S. No ' 13 of 1953 in the Sub Court, Vellore, and obtained a decree for Rs. 5,500 on March 27, 1953. Respondent H.R. Cowramma instituted O.S. No. 14 of 1953 in the same Court and obtained a money decree on April 14, 1953. The two decree holders filed applications for execution of their respective decrees. One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No. 364 of 1951/52 in the Court of the District Munsiff, Shimoga, got the decree transferred for execution through the Court of the District Munsiff, Vellore, and filed an application for execution in that Court. On June 7, 1954 the aforesaid respondents filed applications in the Madras High Court for (i) transfer of their execution petitions pending in the Vellore courts to the file of the High Court and (ii) an order for rateable distribution of the assets realized in execution of the decree passed in favour of the appellant in C.S. No. 56 of 1953. The appellant opposed the applications and contended that as the properties were charged for the payment of his decretal amount, the sale proceeds were not available for rateable distributing amongst simple money creditors. The respondents contended that the security bond was invalid as it was not attested by two witnesses and that the decree passed in C.S. No. 56 of 1953 did not create any charge. Balakrishna Ayyar, J. dismissed all the applications as also exemption petitions filed by the respondents. He held that the decree in C.S. No. 56 of 1953 did not create a charge on the properties. But following the decision in Veerappa Chettiar vs Subramania(1) he held that the security bond was sufficiently attested by the Sub Registrar and the identi fying witnesses. The respondents filed appeals against the orders. On March 28, 1958 the Divisional Bench hearing the appeals referred to a Full Bench the following question "Whether the decision in Veerappa Chettiar vs Subramania lyer (I.L.R. requires reconsideration. " The Full Bench held "In our opinion, such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses if ' (1) the signatories are those who have seen the execution or received a personal acknowledgment (1) I.L.R. 518 from the executant of his having executed the document, (2) they sign their names in the presence of the executant and (3) while,so doing they had the animus to attest. The mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a Valid attestation; but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well. " The Full Bench held that the decision in Veerappa Chettiar 's Case(1) can be held to, be correct to this limited extent only and not otherwise. At the final hearing of the appeals, the Divisional Bench held that ( 1 ) a charge by act of parties could be created only by a document registered and attested by two witnesses; (2) the security bond was not attested by two witnesses and was therefore invalid; (3) the decree in C.S. No. 56 of 1953 should be construed as containing nothing more than a recital of the fact of there having been a security bond in favour of the plaintiff; and the sale in execution of the decree must be regarded as a sale in execution of a money decree; and (4) tie respondents were entitled to an order for rateable distribution. Accordingly, the Divisional Banch allowed the appeals, directed attachment of the sale proceeds and declared that the respondents were entitled to rateable distribution along with the appellant. The present appeals have been filed after obtaining special leave from this Court. The following questions arise in these appeals : (1) Is the security bond attested by two witnesses; (2) if not, is it invalid? (3) does the decree in C.S. No. 56 of 1953 direct sale,of the properties for the discharge of a charge thereon, and (4) are the respondents entitled to rateable distribution of the assets held by court.? As to the first question, it is not the case of the appellant that K.S. Narayana Iyer is an attesting witness. The contention is that the Sub Registrar D.W. Kittoo and the identifying witnesses Senkaranarayana and Kaki Abdul Aziz attested the document. In our opinion, the High Court rightly rejected this contention. Section 3 of the gives the definition of the word "attested" and is in these words : "Attested", in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the (1) I.L.R. 519 direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary. " It is to be noticed that the word "attested", the thing to be defined,. occurs as part of the definition itself. To attest is to bear witness. to a fact. Briefly put, the essential conditions of a valid attestation under section 3 are : (1 ) two or more witnesses. have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has. signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. "In every case the Court must be satisfied that the names were written animo attestandi", see Jarman on Wills, 8th ed. 137. Evidence is admissible to show whether the witness had the intention to attest. "The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not," see Theobald on Wills, 12th ed. p. 129. ,In Giria Datt vs Gangotri (1)the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub Registrar, were not attesting witnesses. as their signatures were not put "animo attestandi". In Abinash Chandra Bidvanidhi Bhattacharya vs Dasarath Malo(2) it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In Shiam Sundar Singh vs Jagannath Singh (3) the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not dis qualifled from taking as legatees. The Indian lays down a detailed pro cedure for registration of documents. The registering officer is; (1) A.I.R. 1955 S.C. 346,351. (3) (2) I.L.R. 5 under a duty to enquire whether the document is ' executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, section 34(3). He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution, [section 25(1)]. The signatures of the executant and of ,every person examined with reference to the document are endorsed on the document, (section 58). The registering officer is required to affix the date and his signature to the endorsements (section 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. The evidence does not show that the registering officer D.W. Kitto put his signature on the document with the intention of attesting it. Nor is it proved that he signed the document in the presence of the executant. In these circumstances he cannot be regarded as an attesting witness see SurendraBahadur Singh vs Thakur Behari Singh(1). Like identifying witnesses Senkaranarayana and Kaki Abdul Aziz signatures on the document to authenticate the fact that they have identified the executant. It is not shown that they put their signatures for 'the purpose of attesting the document. They cannot therefore be regarded as attesting witnesses. It is common case that B. Somnath Rao attested the document. It follows that the document was attested by one witness only. As to the second question, the argument on behalf of the respondents is that section 100 of the attracts section 59 and that a charge can be created only by a document signed, registered and attested, by two witnesses in accordance with section 59 where the principal money secured is Rs. 100 or upwards. The High Court accepted this contention following its earlier decisions in Viswanadhan vs Menon(2) and Shiva Rao vs Shanmugasundara swami (3) and held that the security bond was, invalid, as it was swami attested b one witness only. We are unable to agree with this opinion. Section 100 is in these terms "Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property ', and all the provisions hereinbefore contained which apply to a simple mortgage shall, so" far as may be, apply to such charge. (1) (2) I.L.R. [1939].Mad. (3) I.L.R. [1940] mad. 521 Nothing in this section applies to the charge of a trustee on the trust property for expenses property incurred. in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. The first paragraph consists of two parts. The first part concerns the creation, of a charge over immoveable property. A charge may be made by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. Where such a charge has been created the second part comes into play. It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall; so far as may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of section 59 relating to the creation of a mortgage. With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law. Now a charge by operation of law is not made by a signed, registered and attested instrument. Obviously, the second part has not the effect of attracting the provisions of section 59 to such a charge. Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties. Had this been the intention of the legislature the second part would have been differently worded. If a charge can be made by a registered instrument only in accordance with section 59, the subsequent transferee will always have notice of the charge in view of section 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing. If a non testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under section 17 (1) (b) of the Indian . But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses. Before section 100 was amended by Act 20 of 1929 it was well settled that the section did not prescribe any particular mode of creating a charge. The amendment substituted the words "all 522 the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge," for the words "all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 shall, so far as may be, apply to the person having such charge. " The object of the amendment was to make it clear that the rights and liabilities of the parties in ,case of a charge shall,, so far as may be, the same as the rights, and liabilities of the parties to a simple mortgage. The amendment was not intended to prescribe any particular mode for the creation of a charge. We find that the Nagpur High Court came to a similar conclusion in Baburao vs Narayan(1). It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative. As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable I properties would enure for the benefit of the appellant as a charge for the decretal amount. This relief was granted on the ,oral prayer of the plaintiffs. We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge, the decree should be construed as containing merely a recital of the fact that a security bond had been executed. In our opinion, the decree on its true construction declared that the security bond created a charg e over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the 'properties for the discharge of the encumbrance. Pursuant to the decree the properties were sold and the assets are now held by the Court. The omission to ask for, an amendment of the plaint was an irregularity, but that does not affect the construction of the decree. It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction. For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets. They ,,can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold. It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgment debtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Seth Hiralal Patni vs Sri Kali (1)I.L.R. ,1819 822., 523 Nath(1), Behrein Petroleum Co. Ltd., vs P. J. Pappu (2) , Zamindar of Etiyapuram vs Chidambaram Chetty(1). As to the 4th question we find that the immoveable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant. Section 73(1) proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be dis tributed amongst the respondents. It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant. In the result, the appeals are allowed, the orders passed by the Divisional Bench of the Madras High Court are set aside and the orders passed by the learned Single Judge are restored. There will be no order as to costs. G.C. Appeals allowed. (1) ; ,751 2. (2) ; ,462 3.

The appellant filed suit No. 56 of 1953 against H for recovery of certain monies on the basis of promissory notes. As the suit was under 0. 7 of the Madras High Court Original Side Rules H was given leave to defend it on furnishing certain security. Accordingly H executed in favour of the Registrar, Madras High Court, a security bond charging certain properties 'for the payment of Rs. 50,000,. The document was attested by only one witness. At the time of registration it was signed by two identifying witnesses and the Sub Registrar. The trial Judge decreed the appellant 's suit and the decree mentioned that the charge created by H 's security bond would enure for the benefit of the decree holder. In execution proceedings the properties in question were sold and the proceeds deposited in court. At this stage the three respondents who also held money decrees against H applied to the Court for ratable distribution of the assets realised in the execution of the appellant 's decree in suit No. 56 of 1953. The trial Judge dismissed their applications. In Letters Patent Appeals the High Court held that in the absence of attestation by the two witnesses the security bond executed by H was invalid inasmuch as a charge on property created under section 100 of the attracted the provisions of section 59. As to the decree passed in suit No,. 56 of 1953 the High Court held that in view of the decree holder 's omission to amend the plaint by adding a prayer for enforcement of the charge the decree should be construed as containing merely a recital of the fact that a security bond had been executed. On these findings the High Court held that the respondents were entitled to rateable distribution. Against the High Court 's orders the appellant filed appeals in this Court. On the question of attestation he contended that the sub Registrar and the two identifying witnesses must also be treated as having attested the security bond. HELD : (i) The essential conditions of a valid attestation under section 3 of the are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to hear witness to this fact each of them has signed 'the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestendi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the docu 514 meat for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. [519 C D] Prima facie the registering officer puts his signature on the document in discharge of his statutory duty under section 59 of the and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. [520 B C] In the present case the evidence did not show that the registering officer and the identifying witnesses signed the document with the intention of attesting it. Nor was it shown that the registering officer signed it in the presence of the executant. The document could not therefore be said to have been attested by these witnesses and must be held to have been signed by one attesting witness only. [520 D] Veerappa Chettiar vs Subramania, I.L.R. , Girja Datt vs Gangotri, A.I.R. 1955 S.C. 346, Abinash Chandra Bidyanidhi Bhattacharya vs Dasarath Malo, I.L.R. 56 Cal. 598, Shiam Sundar Singh vs Jagannath Singh, 54 M.L.J,. 43 and Surendra Bahadur Singh vs Thakur Behari Singh, , referred to. (ii)Section 100 of the does not attract the provisions of section 59. [521 C D] The first paragraph of section 100 consists of two parts. The first part concerns the creation of a charge over immovable property which may be by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. [521 C] When such a charge has been created the second part comes into play. It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of section 59 relating to the creation of a mortgage. The second part moreover makes no distinction between a charge created by act of parties and a charge by operation of law. Obviously the provision of section 59 are not attracted to a charge by operation of law. Likewise the legislature could not have intended that the second part would attract the provisions of section 59 to a charge created by act of parties. [521 D E] If a charge can be made by a registered instrument only in accordance with section 59, the subsequent transferee will always have notice of the charge in view of section 3 of the Act. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases when the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that A charge can be made without any writing. [521 F G] If a non testamentary instrument creates a charge of the value of Rs. 100/ or upwards the document must be registered under section 17(1) (b) of the Indian . But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses. [521 G H] The object of the second part of the first paragraph of section 100 is to make it clear that the rights and liabilities of the parties in case of a charge shall so far as may be the same as the rights and liabilities of the parties of a simple mortgage. It was not intended to prescribe any particular mode for the creation of a charge. [522 B] 515 It followed that the security bond in the present case was not required to be attested by witnesses. It was duly registered and was valid and operative. [522 C] Viswanadhan vs Menon, I.L.R. and Shiva Rao vs Shanmugasundaraswami I.L.R. , disapproved. Baburao vs Narayan, I.L.R. , 819 822, approved. (iii)The decree in suit No. 56 of 1963 on its true construction declared that the security bond created a charge over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the properties for the discharge of the encumbrance. Pursuant to the decree the properties were sold and the assets were held by the court. The omission to ask for an amendment of the plaint was an irregularity, but that did not affect the construction of the decree. [522 D E] (iv)The immovable properties had been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant. Section 73(1) proviso (c) therefore applied and the proceeds of the sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount could be distributed among the respondents. [523 B] (v)Since the respondents ' own case rested on the assumption that the properties were lawfully sold they could not be allowed to raise the objection that the High Court had no territorial jurisdiction for sale of properties outside the local limits of its ordinary original jurisdiction. [522 G] Seth Hiralal Patni vs Sri Kali Nath, ; , 751 52, Bahrein Petrolium Co. Ltd. vs P. J. Pappu, ; , 462 63 and Zamindar of Etiyapuram vs Chidambaram Chetty, I.L.R. 43 Mad . 675 (F.B.), referred to.

Civil Appeal No. 161 of 1955. Appeal from the judgment and decree dated 4th Jeth 2011, of the Jammu and Kashmir High Court in Appeal No. 1 of 2009, arising out of the judgment and decree dated the 2nd Magh 2008, of the said High Court in original suit No. 40 of 2007. S.K. Kapur and N. H. Hingorani, for the appellant. Bhawani Lal and K. P. Gupta, for the respondents. August 19. The Judgment of the Court was delivered by SARKAR J. This appeal arises out of a suit filed in the High Court of Jammu and Kashmir for recovery of price of goods sold and delivered. The only point involved in it is whether the suit was governed by article 115 of the Jammu and Kashmir Limitation Act. The courts below have held, and this has not been disputed in this appeal, that if that article did not apply, the suit would fail on the ground of limitation. Sometime in November 1946, the parties entered into an agreement in writing for the supply by the sellers, the respondents, to the buyer, the appellant, of 5,000 maunds of maize, 500 maunds of wheat and 100 maunds of Dal at the rates and times specified. The agreement stated that on the date it had been made the buyer had paid to the sellers Rs. 3,000 and had agreed to pay a further sum of Rs. 10,000 within ten or twelve days as advance and the balance due for the price of goods delivered, after the expiry of every month. It is admitted that the said sum of Rs. 10,000 was later paid by the buyer to the sellers. 565 Various quantities of goods were thereafter delivered by the sellers to the buyer and though such deliveries had not been made strictly at the times specified in the contract, they had been accepted by the buyer. The buyer in its turn made various payments towards the price of the goods delivered but not month by month and had not further paid it in full. The last delivery of goods was made on June 23, 1947, and the suit was brought on October 10, 1950, for the balance of the price due. The learned Judge of the High Court who heard the suit held that article 115 had no application and dismissed the suit as barred by limitation. The sellers went up in appeal which was heard by two other learned Judges of the High Court. The learned Judges of the appellate bench of the High Court held that article 115 of the Jammu & Kashmir Limitation Act applied and the suit was not barred. They thereupon allowed the appeal and passed a decree in favour of the sellers. The buyer has now come up in appeal to this Court. Article 115 of the Jammu and Kashmir Limitation Act which is in the same terms as article 85 of the Indian Limitation Act except as to the period of limitation, is set out below: Description of suit Period of Limitation Time from which period begins to run For the balance due Six years The close of the on a mutual open and which the last current account, wh item admitted or ere there have been proved is entered reciprocal demands in the account; between the parties such year to be computed as in the account. If the article applied the suit would be clearly within time as the last item found to have been entered in the account was on June 23, 1947. The only question argued at the bar is whether the account between the parties was mutual. The question what is a mutual account, has been considered by the courts frequently and the test to determine it is well settled. The case of the Tea Financing Syndicate Ltd. vs Chandrakamal Bezbaruah (1) may be referred to. There a company had been (1) Cal, 649. 72 566 advancing monies by way of loans to the proprietor of a tea estate and the proprietor had been sending tea to the company for sale and realisation of the price. In a suit brought by the company against the proprietor of the tea estate for recovery of the balance of the advances made after giving credit for the price realised from the sale of tea, the question arose as to whether the case was one of reciprocal demands resulting in the account between the parties being mutual so as to be governed by article 85 of the Indian Limitation Act. Rankin, C.J., laid down at p. 668 the test ,to be applied for deciding the question in these words: " There can, I think, be no doubt that the requirement of reciprocal demands involves, as all the Indian cases have decided following Halloway, A.C.J., transactions on each side creating independent obligations on the other and not merely transactions which create obligations on one side, those on the other being merely complete or partial discharges of such obligations. It is further clear that goods as well as money may be sent by way of payment. We have therefore to see whether under the deed the tea, sent by the defendant to the plaintiff for sale, was sent merely by way of discharge of the defendant 's debt or whether it was sent in the course of dealings designed to create a credit to the defendant as the owner of the tea sold, which credit when brought into the account would operate by way of set off to reduce the defendant 's liability. " The observation of Rankin, C.J., has never been dissented from in our courts and we think it lays down the law correctly. The learned Judges of the appellate bench of the High Court also appear to have applied the same test as that laid down by Rankin, C.J. They however came to the conclusion that the account between ' the parties was mutual for the following reasons: " The point then reduces itself to the fact that the defendant company had advanced a certain amount of money to the plaintiffs for the supply of grains. This excludes the, question of monthly 567 payments being made to the plaintiffs. The plaintiffs having received a certain amount of money, they became debtors to the defendant company to this extent, and when the supplies exceeded Rs. 13,000 the defendant company became debtors to the plaintiff and later on when again the plaintiff 's supplies exceeded the amount paid to them, the defendants again became the debtors. This would show that there were reciprocity of dealings and transactions on each side creating independent obligations on the other." The reasoning is clearly erroneous. On the facts stated by the learned Judges there was no reciprocity of dealings; there were no independent obligations. What in fact had happened was that the sellers had undertaken to make delivery of goods and the buyer had agreed to pay for them and had in part made the payment in advance. There can be no question that in so far as the payments had been made after the goods had been delivered, they had been made towards the price due. Such payments were in discharge of the obligation created in the buyer by the deliveries made to it to pay the price of the goods delivered and did not create any obligation on the sellers in favour of the buyer. The learned Judges do not appear to have taken a contrary view of the result of these payments. The learned Judges however held that the payment of Rs. 13,000 by the buyer in advance before delivery had started, made the sellers the debtor of the buyer and had created an obligation on the sellers in favour of the buyer. This apparently was the reason which led them to the view that there were reciprocal demands and that the transactions had created independent obligations on each of the parties. This view is unfounded. The sum of Rs. 13,000 had been paid as and by way of advance payment of price of goods to be delivered. It was paid in discharge of obligations to arise under the contract, It was paid under the terms of the contract which was to buy goods and pay for them. It did not itself create any obligation on the sellers in favour of the buyer; it was not intended to be and did not amount to an independent transac 568 tion detached from the rest of the contract. The sellers were under an obligation to deliver the goods but that obligation arose from the contract and not from the payment of the advance alone. If the sellers had failed to deliver goods, they would have been liable to refund the monies advanced on account of the price and might also have been liable in damages, but such liability would then have arisen from the contract and not from the fact of the advances having been made. Apart from such failure, the buyer could not recover the monies paid in advance. No question has, however, been raised as to any default on the part of the sellers to deliver goods. This case therefore involved no reciprocity of demands. Article 115 of the Jammu and Kashmir Limitation Act cannot be applied to the suit. The learned Judges appear also to have taken the view that since the goods were not delivered at the times fixed in the contract, and the prices due were not paid at the end of the months, the parties clearly indicated their intention not to abide by the contract. We are unable to agree with this view. Such conduct only indicated that the parties had extended the time fixed under the contract for delivery of the goods and payment of price, leaving the contract otherwise unaffected. The learned Judges also observed that the contract did not provide how the amount advanced was to be adjusted. But it seems clear that when the contract provided that the advance was towards the price to become due, as the learned Judges themselves held, it followed by necessary implication that the advance had to be adjusted against the price when it became due. So there was a provision in the contract for adjusting the advance. We think it fit also to observe that it is somewhat curious that any question as to the application of article 115 was allowed to be raised. The applicability of that article depends on special facts. No such facts appear in the plaint. There is no hint there that the account was mutual. We feel sure that if the attention of the learned Judges of the High Court had been 569 drawn to this aspect of the matter, they would not have permitted any question as to article 115 being raised, and the parties would have saved considerable costs thereby. We therefore come to the conclusion that the appeal must be allowed. The judgment and I order of the learned Judges of the appellate bench of the High Court are set aside and those of the learned Single Judge of the High Court are restored. The appellant will be entitled to the costs in this Court and of the hearing of the appeal before the High Court. Appeal allowed.

Under a contract for the sale of goods, the buyer paid an advance amount towards the price of the goods to be supplied and various quantities of goods were thereafter delivered by the sellers. The buyer from time to time made various other payments towards the price of the goods after they had been delivered. The last delivery of goods was made on June 23, 1947, and the suit was brought on October 10, 1950, by the sellers for the balance of the price due for goods delivered. The sellers pleaded that the suit was within time and relied on article 115 Of the Jammu and Kashmir Limitation Act under which the period of limitation was six years for a suit " for the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties. 564 Held, that article 115 was not applicable to the case as there was no mutual account based on reciprocal demands. The payment made by the buyer after deliveries had been given to it were in discharge of the obligations to pay the price due on account of these deliveries; the amount paid in advance was paid under the contract in discharge of obligations to arise ; none of such payments created an independent obligation in the sellers towards the buyer. Tea Financing Syndicate Ltd. vs Chandrakamal Bazbaruah, Cal. 649, approved.

ence No. 1 of 1991. (Under Article 143 of the Constitution of India). G. Ramaswamy, Attorney General, V.R. Reddy, Addl. Solic itor General, F.S. Nariman, T.R. Andhyarujina, Dr. Y.S. Chitale, S.S. Javali, K. Parasaran, A.K. Ganguli, K.K. Venugopal, A.S. Nambiar, Shanti Bhushan, P.P. Rao, P.P. Muthanna, K. Subramanian, Curiae Joseph, N.N.Gangadeb, Ms. A. Subhashini, Ms. Niranjana Singh, M.Veerappa, Subhash Sharma. Mohan Katarki, Atul Chitale, K.H. Nobin Singh, Subbanna, A. Subba Rao, G. Umapathy, E.C. Agarwala, P.N. Ramalingam, Smt. Shante Vasudevan, P. Krishnamurthy, P.K. Manohar, K.V. Viswanathan, Shalid Rizvi, Ashok Mukhoty, Mrs. Sangeeta Garg, Jayant Bhushan, T.T. Kunhikanan, M.D.B. Raju, G. Prabhakar, N. Ganpathi, S.R. Bhat, P. Mahale and P.R. Pamasesh for the appearing parties. A.K. Sen, Venkataraman and C.S. Vaidyanathan for the Inter vener. The Report of the Court was delivered by SAWANT, J. On July 27, 1991 the President, under Article 143 of the Constitution, referred to this Court three ques tions for its opinion. The Reference reads 'as follows. : "Whereas, in exercise of the powers conferred by Section 4 of the (hereinafter referred to as "the Act"). the Central Government constituted a Water Disputes Tribunal Called "the Cauvery Water Disputes Tribunal" (hereinafter called "the Tribunal") by a notification dated 2 June, 1990, a copy where of is annexed here to, for the adjudi 516 cation of the Water Dispute regarding the Inter State River Cauvery; WHEREAS on 25 June 1991, the Tribunal passed an interim Order (hereinafter referred to as "the Order"), a copy whereof is annexed here to; WHEREAS, differences have arisen with regard to certain aspects of the Order; WHEREAS, on 25 July 1991, the Governor of Karnataka promulgated the Kamataka Cauvery Basin Irrigation Protection Ordinance, 1991 (hereinafter referred to as "the Ordinance"), a copy whereof is annexed hereto; WHEREAS, doubts have been expressed with regard to the constitutional validity of the Ordinance and its provisions; WHEREAS, there is likelihood of the constitu tional validity of the provisions of the Ordinance, and any action taken thereunder, being challenged in Courts of law involving protracted and avoidable litigation; WHEREAS, the said differences and doubts have given rise to a public controversy which may lead to undesirable consequences; AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have arisen and are of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon; NOW, THEREFORE, in exercise of the powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, Ramaswamy Venkataraman, President of India, hereby refer the following question to the Supreme Court of India for consideration and report thereon, namely: (1) Whether the Ordinance and the provi sions thereof are in accordance with the provisions of the Constitution; (2) (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of section 5 (2) of the Act; and (ii) Whether the Order of the Tribunal is required to be published by the Central Gov ernment in order to make it effective; 517 (3) Whether the Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute. " To appreciate the significance of the questions referred and our answers to them, it is necessary to understand the factual background which has led to the Reference. The river Cauvery is an inter State river and is one of the major rivers of the Southern Peninsula. The basin area of the river and its tributaries has substantial spread over within the territories of the two States, namely. Karnataka and Tamil Nadu, Karnataka being the upper riparian State and Tamil Nadu being the lower riparian State. The other areas which are the beneficiaries of the river water are the territories comprised in the State of Kerala and in the Union Territory of Pondicherry. The total length of the river from its head to its outflow into the Bay of Bengal is about 802 kms. It travels about 381 kms. in Southern East ernly direction before it reaches the border of Karnataka and Tamil Nadu. It also constitutes boundary between the said two States to an extent about 64 kms. and then tra verses a distance of about 357 kms. in Tamil Nadu before joining the sea. There were two agreements of 1892 and 1924 for sharing the water of the river between the areas which are predomi nantly today comprised in the State of Karnataka and Tamil Nadu, and which were at the time of the agreements comprised in the then Presidency of Madras on the one hand and the State of Mysore on the other. The last agreement expired in 1974. The river presently covers three States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Pondicher ry. The present State of Tamil Nadu has an area of about 43,868 sq. of the Cauvery River basin, reducing the basin area which at the time of the agreement was about 49,136 sq. As against this the basin area of the said river which was about 28,887 sq. in the State of Mysore has increased to about 34,273 sq. in the present State of Karnataka. The contributions made to the flows of the Cauvery River by Karnataka. Tamil Nadu and Kerala, according to the State of Karnataka is 425 TMC, 252 TMC and 113 TMC respectively together amounting to 790 TMC According to the State of Tamil Nadu, the contributions of the three States respec tively are 392 TMC, 222 TMC and 126 TMC respectively togeth er amounting to 740 TMC. The Study Team appointed by the Central Government in 1974 worked out the appropriations of the respective States as follows: Karnataka 177 TMC, Tamil Nadu including Pondicherry 489 TMC and Kerala 5 TMC. 518 In 1956 the Parliament enacted the for the purpose of regulation and development of inter State rivers and river valleys find also the Inter State Water Disputes Act, 1956 for adjudication of disputes with regard to the use, distribution or control etc. of the said waters. In 1970 Tamil Nadu invoked the provisions of Section 3 of the and requested the Central Government for reference of the dis pute between the two States, viz. Tamil Nadu and Karnataka to a Tribunal under the Act. The Central Government initiat ed negotiations between the two States. Simultaneously, Tamil Nadu moved this Court by means of a suit under Article 131 of the Constitution being Suit No.1 of 1971 seeking a direction to the Union Government to constitute a Tribunal and to refer the dispute to it. In the said suit, Tamil Nadu applied for an interim order to restrain the S;ate of Karna taka from proceeding with and executing the projects men tioned therein. This Court by its Order of 25th January, 1971 dismissed the application for interim relief. It appears that the negotiations between the two states which were going on in the meanwhile, resulted in the con stitution of a Fact Finding Committee in June 1972 which was set up to ascertain facts, amongst others as to the avail ability of water resources, the extent of utilisation and the nature of the areas in the respective States within the river basin, and their requirements. In view of the consti tution of the Committee, Tamil Nadu withdrew its suit. The Fact Finding Committee submitted its Reports in December, 1972, and August 1973. A Central Study Team headed by Shri CC. Patel, then Addl. Secretary to Government of India, in the Ministry of Irrigation was also set up to examine the question of assessing the savings of water in the existing and planned projects of the three States in the Cauvery basin. The recommendation of the Study Team on improvement and modernisation of the irrigation system including the strengthening of the works and the lining of channels, integrated operations of the reservoirs within the Cauvery basin, scientific assessment of water requirement in the command area and for monitoring the releases from the reservoirs for an efficient tie up between the rain fall and command, water requirement and release were announced at the Inter State Conference of June 1974. Further negotiations resulted in what is known as "the 1976 Understanding". This Understanding envisaged the appor tionment of the surplus water in the ratio of 30:53:17 amongest the States of Tamil Nadu, Karnataka and Kerala respectively. In the case of savings, the Study Team pro posed the apportionment in the ratio of 87 TMC to Karnataka, 4 TMC to Tamil Nadu and 34 TMC to Kerala. 519 It appears that in spite of the information gathered through the Fact Finding Committee and the Study Team set up by the Union Government, the negotiations were not fruitful. In 1983, Tamil Nadu Ryots Association presented a petition to this Court under Article 32 of the Constitution being Writ Petition No. 13347 of 1983. The petition sought issue of a writ of mandamus to the Central Government requiring it to refer the dispute to a Tribunal under the Act. The peti tion was also accompanied by an application seeking interim relief. The State of Tamil Nadu supported the Writ Petition. Notices were issued to the respondents including the Union Government and the State of Karanataka. The petition re mained pending in this Court for nearly seven years. No application for interim relief was moved during this period. Although the inter State meetings continued to be held during this period, nothing worthwhile emerged out of them. Hence, in June 1986, the State of Tamii Nadu lodged a Letter of Request under Section 3 of the Act with the Central Government for the Constitution of a Tribunal and for refer ence of the water dispute for adjudication to it. In the said letter, Tamil Nadu primarily made a grievance against the construction of works in the Karnataka area and the appropriaion of water upstream so as to prejudice the inter ests down stream in the State of Tamil Nadu. It also sought the implementation of the agreements of 1892 and 1924 which had expired in 1974. At the hearing of the Writ Petition filed by the Tamil Nadu Ryots Association, the Central Government left the matter to the Court. This Court taking into consideration the course of negotiations and the length of time which had passed, by its judgment dated May 4, 1990 held that the negotiations between the two States had failed and directed the Union Government to constitute a Tribunal under Section 4 of the Act. In pursuance of the directions given by this Court, the Union Government by its notification dated June 2, 1990, constituted the Cauvery Water Disputes Tribunal and by another Notification of the even date referred to it the water dispute emerging from Tamil Nadu 's Letter of Request dated July 6, 1986. The Cauvery Water Disputes Tribunal (hereinafter re ferred to as the "Tribunal") commenced its first sitting on 20th July, 1990. On that day, Tamil Nadu submitted a letter before the Tribunal seeking interim reliefs. The Tribunal directed Tamil Nadu to submit a proper application. There upon Tamil Nadu and the Union Territory of Pondicherry submitted two separate applications for interim reliefs being CMP Nos. 4 and 5 of 1990. 520 The interim relief claimed by Tamii Nadu was that Karna taka be directed not to impound or utilise water of Cauvery river beyond the extent impounded or utilised by them as on 31 5 1972. as agreed to by the Chief Ministers of the basin States and the Union Minister for Irrigation and Powers. It further sought passing of an order restraining Karnataka from undertaking any new projects, dams, reservoirs, canals and/or from proceeding further with the construction of projects, dams, reservoirs. canals etc. in the Cauvery basin. In its application for interim relief Pondicharry sought a direction from the Tribunal both to Karnataka and Tamil Nadu to release the water already agreed to i.e., 9.355 TMC during the months of September to March. The Tribunal considered simultaneously both the applica tions for interim reliefs as well as the procedure governing the trial of the main dispute. It directed the disputant States to file their pleading by way of statements of cases and also required the States of Karnataka and Kerala to submit their replies to the applications for interim reliefs made by Tamil Nadu and Pondicherry. By September 1990, all the disputant States submitted their first round of plead ings or statements of cases. By November 1990, Karnataka and Kerala also submitted their replies to the applications for interim reliefs. The Tribunal gave time to the States to submit their respective counter statements in reply to the Statements of cases filed earlier in the main dispute. It appears that before the disputant states submitted their counter statements in the main dispute, the Tribunal heard the applications for interim reliefs since Tamil Nadu had, in the meanwhile, filed an application being CMP No.9 of 1990 as an urgent petition to direct Karnataka as an emergent measure to release at least 20 TMC of water as the first instalment, pending final orders on their interim application CMP No.4/ 90.it appears that this application was filed on the ground that the samba crop could not he sustained without additional supplies at Mettur reservoir in the Tamil Nadu State" Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary ' objection to the jurisdiction of the Tribunal to entertain the said application and to grant any interim relief. The preliminary objection was that the Tribunal constituted under Act, had a limited jurisdiction. It had no inherent powers as 'an ordinary Civil Court has, and there was no provision of law which authorised or conferred jurisdiction on the Tribunal to grant any interim relief. The Tribunal heard the parties both on the preliminary objection as well 521 as on merits, and by its Order of January 5, 1991. among other things, as follows : ". This Act is a complete code in so far as the reference of a dispute is concerned. In the circumstances. in our opinion, the Tribu nal is authorised to decide only the 'water dispute ' or disputes which have been referred to it. If the Central Government is of the opinion that there is any other matter con nected with or relevant to the 'water dispute ' which h,ks already been referred to the Tribu nal. it is always open to the Central Govern ment to refer also the said matter as a dis pute to the Tribunal constituted under Section 4 of the Act. Further, no water dispute can be referred by the Central Government unless the Central Government is of the opinion that the said dispute cannot be settled by negotia tions. In fact, no water dispute can be adju dicated without its reference to the Tribunal. The interim reliefs which have been sought for even if the same are connected with or rele vant to the water dispute already referred, cannot be considered because the disputes in respect of the said matters have not been referred by the Central Government to the Tribunal. Further, neither there is any aver ment in these petitions that the dispute related to interim relief cannot be settled by negotiations and that the Central Government has already formed the opinion that it shall be referred to the tribunal. In case the petitioners of CMP Nos. 4,5 and 9 of 1990 are aggrieved by the conduct of the State of Karnataka and an emergent situation had ari sen, as claimed. they could have raised a dispute before the Central Government and in case the Central Government was of the opinion that the said dispute could not be settled by negotiations, the said dispute could also have been referred by the Central Government to the Tribunal. In case such a dispute had been referred then it would have been open to the Tribunal to decide the said dispute which decision would then be final and binding on the parties. X X X X X From the letter dated 6.7. 1986, which was the request made on behalf of the State of Tamil Nadu to the Central Government referring the dispute to the Tribunal. it is clear that the dispute which has been referred to this Tribunal in regard to the executive action taken by the Karnataka State in construct 522 ing Kabini, Hemavathi, Harangi, Swarnavathi and other projects and expanding the ayacuts and the failure of the Karnataka Government to implement the agreements of 1892 and 1924 relating to the use, distribution and the control of Cauvery waters. No interim dispute in regard to the release of waters by the Karnataka Government from year to year subse quent to the date of the request made by the State of Tamil Nadu was at all referred to the Tribunal. The Tribunal has been called upon to decide the main water dispute, which, when adjudicated upon, would undoubtedly be binding on the parties. In view of the above, we are of the opinion that the Tribunal cannot enter tain the prayer for interim relief unless the dispute relating to the same is specifically referred to the Tribunal. X X X X X X X X X The observations made by Hon 'ble Supreme Court in Union of India vs Paras Lamines (P) Ltd., ; were in relation to the Appellate Tribunal constituted under the . It was held that the Tribu nal functions is a court within the limits of its jurisdiction. Its area of jurisdiction is defined but within the bounds of its jurisdic tion it has all the powers expressly and impliedly granted. The Supreme Court while discussing the extent of the power of the Tribunal in respect of the grant made by a particular Statute held that the Tribunal will have all incidental and ancillary powers for doing of such acts or employing all such means as are reasonably necessary to make the grant effective. The import of the decision of the Hon 'ble Supreme Court is that the Tribunal will have incidental and ancillary powers while exercising the powers expressly con ferred. These incidental and ancillary powers must relate to the actual dispute referred and not to any other matter including granting of interim reliefs which are not at all subject matter of reference. In our opinion what the Supreme Court intended to hold was that the Tribunal has incidental and ancillary powers to pass orders in respect of a reference for adjudication of which it has been constituted. It has not, however, further laid (sic.) that it has also inciden tal and ancillary powers to grant relief in respect of a dispute which has not at all been referred. In the instant case, the water dispute which has been referred to us is that which emerges from the letter of the State of 522 Tamil Nadu dated 6th July, 1986. The Tribunal will have the power to pass such consequential orders as are required to be made while decid ing the said dispute and will also have inci dental and ancillary powers which will make the decision of the reference effective but these powers are to be exercised only to enable it to decide the reference effectively but not to decide disputes not referred in cluding a dispute in regard to grant of inter im relief/interim reliefs. X X X X X X X X X. The Second submission raised by the learned counsel for Tamil Nadu namely to the effect that the Tribunal alone could exercise juris diction in respect of a water dispute by virtue of Article 262 of the Constitution of India and in case Tribunal holds otherwise the State of Tamil Nadu will be left with no remedy available to it, it may be stated that since we have taken the view that in case a water dispute really arises and such water dispute could not be resolved by negotiations then it will be open to the Central Government to refer the said dispute to the Tribunal for adjudication, the question of not having a remedy for a wrong does not arise before the Tribunal. The Central Government if it finds that the dispute is connected with or related to the water dispute already referred to the Tribunal, it is open to it to refer the said dispute also to the Tribunal in regard to the granting of an interim relief. " In the view that it took, as above, the Tribunal held that it could not entertain the said applications for grant of interim reliefs as they were not maintainable in law, and dismissed the same. Being aggrieved, the State of Tamil Nadu approached this Hon 'ble Court by means of special leave petitions under Article 136 of the Constitution against the orders passed both in the original application for interim relief being CMP No.4 of 1990 as well as in the application for urgent interim relief being CMP No.9 of 1990. So did the Union Territory of Pondicherry against the order passed by the Tribunal in its application for interim relief being CMP No.5 of 1990. These special leave petitions which were later on converted into Civil Appeals Nos.303 04 of 1991 and Civil Appeal No. 2036 of 1991 respectively, were heard together and disposed of by this Court by its judgment dated April 26.1991. While allowing the appeals this Court held as follows: 524 "Thus, we hold that this Court is the ultimate interpreter of the provisions of the Inter State Water Disputes Act, 1956 and has an authority to decide the limits, powers and the jurisdiction of the Tribunal constituted under the Act. This Court has not only the power but obligation to decide as to whether the Tribu nal has any jurisdiction or not under the Act, to entertain any interim application till it finally decides the dispute referred to it. X X X X X X X X X A perusal of the order of reference dated 2.6.90 as already extracted above clearly goes to show that the Central Government had re ferred the water disputes regarding the inter State river Cauvery and the river valley thereof, emerging from letter dated 6th July, 1986 from the Government of Tamilnadu. Thus all the disputes emerging from letter dated 6th July, 1986 had been referred to the Tribu nal. The Tribunal committed a serious error in omitting to read the following important paragraph contained in the aforesaid letter dated 6,7.86." This Court then quoted the said paragraph from the said letter of 6.7. 1986 which reads as follows: "REQUEST FOR EXPEDITIOUS ACTION IN REFERRING TIlE DISPUTE TO TRIBUNAL. ' From 1974 75 onwards, the Government of Karna taka has been impounding all the flows in their reservoirs. Only after their reservoirs are filled up, the surplus flows are let down. The injury inflicted on this State in the past decade due to the unilateral action of Karna taka and the suffering we had in running around for a few TMC of water every time and crops reached the withering stage has been briefly stated in note (Enclosure XXVIII). It is patent that the Government of Karnataka have badly violated the inter State agreements and caused irreparable harm to the age old irrigation in this State. Year after year, the realisation at Mettur is failing fast and thousands of acres in our ayacut in the basin are forced to remain fallow. The bulk of the existing ayacut in Tamil Nadu concentrated mainly in Thanjavur and Thiruchirappalli districts is already gravely affected in that the cultivation operations are getting long delayed, traditional double crop lands are getting reduced to single crop lands and crops even in the single crop lands are withering and falling for want of adequate wettings 525 at crucial times. We are convinced that the in ordinate delay in solving the dispute is taken advantage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay in adding to the injury caused to our existing irrigation. " The Court then proceeded to observe as fol lows: "The above passage clearly goes to show that the State of Tamilnadu was claiming for an immediate relief as year after year. the realisation of Mettur was failing fast and thousands of acres in their ayacut in the basin were forced to remain fallow. It was specifically mentioned that the inordinate delay in solving the dispute is taken advan tage of by the Government of Karnataka in extending their canal systems and their ayacut in the new projects and every day of delay is adding to the injury caused to their existing irrigation. The Tribunal was thus clearly wrong in holding that the Central Government had not made any reference for granting any interim relief. We are not concerned, whether the appellants are entitled or not, for any interim relief on merits, but we are clearly of the view that the reliefs prayed by the appellants in their C.M.P. Nos. 4, 5 and 9 of 1990 clearly come within the purview of the dispute referred by the Central Government under Section 5 of the Act. The Tribunal has not held that it had not incidental and ancil lary powers for granting an interim relief, but it has refused to entertain the C.M.P. Nos.4,5 and 9 on the ground that the reliefs prayed in these applications had not been referred by the Central Government. In view of the above circumstances we think it is not necessary for us to decide in this case, the larger question whether the Tribunal consti tuted under the Water Disputes Act has any power or not to grant any interim relief. In the present case the appellants become enti tled to succeed on the basis of the finding recorded by us in their favour that the re liefs prayed by them in their C.M.P. Nos. 4,5 and 9 of 1990 are covered in the reference made by the Central Government. It may also be noted that at the fag end of the arguments it was submitted before us on behalf of the State of Karnataka that they were agreeable to proceed with the C.M.P.s on merits before the Tribunal on the terms that all party States agreed that all questions arising out of or connected with or relevant to the water dis pute (set out in the respective pleadings of the respective parties), including all 526 applications for interim directions/reliefs by party States be determined by the Tribunal on merits. However, the above terms were not agreeable to the State of Tamilnadu as such we have decided the appeals on merits. " In view of its findings as above, this court by the said order directed the Tribunal to decide CMPs Nos. 4, 5 and 9 of 1990 on merits. In pursuance of these directions, the Tribunal heard the said applications of Tamil Nadu and Pondicherry. It appears that before the Tribunal, objections were again raised on behalf of the State of Karnataka with regard to the maintainability of the applications filed by Tamil Nadu and Pondicherry for interim reliefs. The Tribunal did not countenance the said objections holding that the direction given by this Court was binding on it. The Tribu nal then proceeded to decide the applications on merits and by its order dated June 25, 1991 held as follows: "When we are deliberating whether any emergent order ought to be passed, our prime considera tion ought to be to preserve, as far as possi ble, pending final adjudication the rights of the panics and also to ensure that by unilat eral action of one party, other party is not prejudiced from getting appropriate relief at the time of the passing of the final orders. We ought to also endeavour to prevent the commission of any act by the panics which might impede the Tribunal from making final orders in conformity with the principles of fair and equitable distribution of the waters of this inter State river. x x x x x x x x x . At this stage it would be neither feasible nor reasonable to determine how to satisfy the needs of the each State to the greatest extent possible with a minimum of detriment to others. We do not also propose at this stage to enter into the question whether the present use of water of the river Cauvery either by the State of Tamil Nadu or the State of Karnataka is the most beneficial use to which the water could be put to. x x x x x x x x x . We do not propose to examine at this stage the legality or justifiability of erec tion of these reservoirs, dams, canals, etc. The said matters may be gone into if found necessary at the appropriate stage. In this case it would be in accordance with justice to fix the annual releases into Mettur Dam by making average of the same for a number of normal years in the immediate past. X X X X X X X X X 527 . We have already mentioned that at the present stage we would be guided by considera tion of balance of convenience and maintenance of the existing utilisation so that rights of the parties may be preserved tilt the final adjudication. ". The Tribunal then directed the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC water is available in Tamil Nadu 's Mettur reservoir in a year from June to May. The Tribunal further directed Karnataka to regulate the release of water every year in the manner stated in the order. The monthly quota of the water was to be released in four equal instal ments every week, and if there was not sufficient water available in any week the deficit was directed to be made good in the subsequent week. The Tribunal also directed Tamil Nadu to deliver to Pondicherry 6 TMC water for its Karaikal region in a regulated manner. In addition, the Tribunal directed Karnataka not to increase its area under irrigation by the waters of Cauvery, beyond the existing 11.2 lakh acres. The Tribunal then observed that its said order would remain operative till the final adjudication of the dispute referred to it. Thereafter on July 25, 1991 the Governor of Karnataka issued an Ordinance named "the Karnataka ,Cauvery Basin Irrigation Protection Ordinance, 1991" which reads as fol lows: "An Ordinance to provide in the interest of the general public for the protection and preservation of irrigation in irrigable areas of the Cauvery basin in Karnataka dependent on the waters of the Cauvery river and its tribu taries. Whereas the karnataka Legislative Council is not in Session and the Governor of Karnataka is satisfied that circumstances exists which render it necessary for him to take immediate action for the protection and preservation of irrigation in irrigable areas office Cauvery basin in Karnataka dependent on the water of Cauvery river and its tributaries. Now, therefore, in exercise of the power conferred under clause (1) of Article 213 of Constitution of India, I, Khurshed Alam Khan. Governor of Karnataka am pleased to promulgate the following Ordinance, namely: 1.Short title, extent and commencement: (1) This Ordinance may be called the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991. 528 (2) It extends to the whole of the State of Karnataka. (3) It shall come into force at once. Definition: Unless the context other wise requires: (a) "Cauvery basin" me,ms the basin area of the Cauvery river and its tributaries lying within the territory of the State of Karnata ka. (b) "Irrigable area" means the areas specified in the Schedule. (c) "Schedule" means the Schedule annexed to this Ordinance. (d) "Water year" means the year commenc ing with the 1st of June of a Calendar year and ending with the 31st of May of the next Calendar year. Protection of Irrigation in irrigable area: (1) It shall be the duty of the State Government to protect, preserve and maintain irrigation from the waters of the Cauvery river and its tributaries in the irrigable area under the various projects specified in the Schedule. (2) For the purpose of giving effect to sub section (1) the State Government may abstract or cause to be abstracted, during every water year, such quantity of water as it may deem requisite. from the flows of the Cauvery river and its tributaries. in such manner and during such intervals as the State Government or ,my Officer, not below the rank of an Engineer in Chief designated by it, may deem fit ,red proper. Overriding effect of the Ordinance: The provisions of this Ordinance. (,red of ,my Rules and Orders made thereunder), shall have effect not with standing anything contained in any order, report or decision of any Court or Tribunal (whether made before or after the commencement of this Ordinance), save and except a final decision under the provisions of sub section (2) of section 5 read with section 6 of the . 5. Power to remove difficulties: If any difficulty arises in giving effect to the provisions of this Ordinance, the State Government may, by order, as occasion 529 requires, do anything (not inconsistent with the provisions of this Ordinance) which ap pears to be necessary for purpose of removing the difficulty. Power to make rules: (1) The State Government may, by Notifi cation in the Official Gazette make rules to carry out the purpose of this Ordinance. (2) Every rule made under this Ordinance shall be laid as may be after it is made, before each House of the State Legislature while it is in Session for a total period of thirty days which may be comprised in one Session or in two or more Sessions and if before the expiry of the said period, either House of the State Legislature makes any modification in any rule or order directs that any rule or order shall not have effect, and if the modification or direction is agreed to by the other House, such rule or order shall thereafter have effect only in such modified form or be no effect, as the case may be." The Schedule mentioned in the Notification refers to the irrigable areas in Cauvery basin of karnataka under various projects including minor irrigation works. Hot on the heels of this Ordinance, the State of Karna taka instituted a suit under Article 131 against the State of Tamil Nadu and others for a declaration that the Tribu nal 's order granting interim relief was without jurisdiction and, therefore, null and void etc. Another development which may be noticed is that the Ordinance has since been replaced by Act No.27 of 1991. The provisions of the Act are a verbatim reproduction of the provisions of the Ordinance except that in Section 4 of the Act the words "any court or" are omitted and Section 7 is added repealing the Ordinance. The omission of the above words excludes this court 's order dated April 26, 1991 from the overriding effect of the said provision. Reference to the Ordinance hereafter will include reference to the Act also unless the context otherwise requires. It is in the context of these developments that the President has made the Reference which is set out in the beginning. Before us are arraigned the State of Tamil Nadu and the Union Territory of Pondicherry on the one hand the States of Karnataka and Kerala on 530 the other with the Union of Indian taking no side on the issues arising out of the Reference. There are also inter veners on both sides. The contentions of the parties are summarised hereafter. The contentions also include a plea on both sides not to answer either all or one or the other question raised in the Reference for reasons differently advanced. These pleas will also be dealt with at their proper places. Before we deal with the contentions, it is necessary to note certain features of the Reference which are also alluded to in the contentions of the parties. The Reference is made under Article 143 (1) of the Constitution of India seeking opinion of this Court under its advisory jurisdiction. As has been stated in the preamble of the Reference and is also not disputed before us, the first two questions are obviously the outcome of the dispute relating to the sharing of waters between Tamil Nadu and Pondicherry on the one hand and Karnataka and Kerala on the other and the developments that took place in the said dispute till the date of Reference. As has been contended on behalf of Tamil Nadu and Pondicherry, even the third question has a relation to the dispute and the said events, and is not general in nature though it is couched in general terms. According to them, the question has been posed with an oblique motive of getting over the judgement of this Court dated April 26, 1991 and the consequent order of the Tribu nal dated June 25, 1991. Hence the said question should not be answered. Their other contention is that if the question is general in nature, it requires no answer at all. The contentions of the parties on the questions referred may now be summarised. With reference to Question 1 the State of Karnataka contends, in the light of the presumption of constitutional validity which ordinarily attaches to a legislation, that the onus lies heavily on the party challenging the same to show that the impugned Ordinance (now Act) is ultra vires the Constitution. The impugned legislation clearly falls within the competence of the State legislature under Entry 17 as well as Entries 14 and 18 of List II in the Seventh Shedule of the Constitution. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power fall within Entry 17 of List II (hereinafter referred to as 'Entry 17 ') and the State Legislature has every right to legislate on the subject and this legislative power is subject only to Entry 56 of List I (hereinafter referred to as 'Entry 56 '). That Entry deals with regulation and development of inter State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. This Entry, it is contended, does not denude the States of the power to 531 legislate under Entry 17, since it merely empowers the Union, if Parliament has by law declared it to be in public interest, that the 'regulation and development of inter State rivers and river valleys should, to the extent the declaration permits, be taken under the control of the Union. On a plain reading of the said Entry it is evident that barring regulation and development ' of an inter State river, subject to the declaration, the Central Government is not conferred with the power to legislate on water, etc., which is within the exclusive domain of the State legisla tures. The being the only legislation made by Parliament under Entry 56, and the scope of the declaration in section 2 thereof being limited 'to the extent hereinafter provided ', that is to say provided by that statute, and no River Board having been constituted thus far in respect of and inter State river under the said law, the power to legislate under Entry 17 is not whittled down or restricted. Thus, contends the State of Karnataka, the merely authorises the Union to set up a River Board with a view to take under its control the regu lation and development of inter State rivers without in any manner restricting or controlling the legislative power under Entry 17. But in the absence of the constitution of a River Board for Cauvery, it is contended that the State of Karnataka retains full legislative power to make laws as if Entry 17 has remained untouched. Further, the executive power of the Union under Article 73 cannot extend to any State with respect to matters on which the State alone can legislate in view of the field having been covered by Arti cle 162 of the Constitution. Since the Act enacted under Article 262 of the Constitution does not attract any Entry in list 1, it is a law essentially meant to provide for the adjudication of a dispute with respect to the use, distribu tion or control of waters of, or in, any inter .State river or river valley and does not, therefore, step on the toe of Entry 17. What the Ordinance (now Act) seeks to do is to impose by section 3 a duty on the State Government to pro tect, preserve and maintain irrigation from Cauvery waters in the irrigable areas failing within the various projects specified in the Schedule to the said legislation. The State of Karnataka, therefore, contends that the impugned legisla tion is clearly within the scope of the State 's power to legislate and is, therefore, intra vires the Constitution. A forteriori, the power to legislate conferred on the State legislature by Entries 14, 17 and 18 of List II, cannot be inhibited by an interim order of the Tribunal since the scheme of the Act envisages only one final report or deci sion of the Tribunal under section 5 (2) which would have to be gazetted under section 6 thereof. Until a final adjudica tion is made by the Tribunal determining the shares of the respective StaLes in the waters of an inter State river, the States would be free to make optimum use of water within the State and the Tribunal cannot interfere with such use under the guise of an interim order. Consequently it was open to the 532 Karnataka Legislature to make a law ignoring or overriding the interim order of the Tribunal. With regard to Question 2 (i) of the Reference, the State of Karnataka contends that the scheme of the Act does not envisage the making of an interim order by the Tribunal. Section 5 of the Act provides that after a Tribunal has been constituted under section 4, the Central Government shall refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication. On such Reference the Tribunal must investigate the matters referred to it and forward a report setting out the facts found by it and giving its decision on the matters referred to it. If upon considera tion of the decision, the Central Government or any State Government is of opinion that anything contained therein requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, such Govern ment may within three months from to decision again refer the matter for further consideration, and on such reference, the Tribunal may forward a further report giving such expla nation and guidance as it deems fit and thereupon the deci sion of the Tribunal shall be deemed to be modified accord ingly. Section 6 then enjoins upon the Central Government to publish the decision of the Tribunal in the Official Gazette and on such publication 'the decision shall be final and binding on the parties to the dispute and shall be given effect to by them '. It is contended by the State of Karnata ka that the scheme of the aforestated provisions clearly envisages that once a water dispute is referred to the Tribunal ' the Tribunal must 'investigate ' the matters re ferred to it and forward a report to the Central Government 'setting out the facts found by it ' and 'giving its deci sion ' on the matters referred to it. It is this decision which the Central Government must publish in the Official Gazette to make it final and binding on the parties to the dispute. The State of Karnataka, therefore, contends that the scheme of the Act contemplates only one final report made after full investigation in which findings of fact would be set out along with the Tribunal 's decision on the matters referred to it for adjudication, and does not con template an interim report based on half baked information. Finality is attached to that report which records findings of facts based on investigation and not an ad hoc:, tenta tive and prima facie view based on no investigation or cursory investigation. The State of Karnataka, therefore, contends that since the interim order was not preceded by an investigation of the type contemplated by the Act, the said order of 25th June, 1991 could not be described as 'a re port ' or 'a decision ' under section 5(2) of the Act and hence there could be no question of publishing it in the gazette. It is, therefore, contended that no finality can attach to such an order which is neither a report nor a decision and even if published in the 533 gazette it cannot bind the parties to the dispute and can have no efficacy in law/. On Question 2(ii), it is, there fore, contended that since there was no investigation, no findings on facts, no report and no decision, the Central Government is under no obligation to publish the interim order of the Tribunal. With reference to Question 3, the State of Karnataka reiterates that the scheme of the Act clearly envisages a final report to be given by the Tribunal on conclusion of the investigation and after the Tribunal has reached firm conclusions on disputed questions of fact raised before it by the contesting parties. It is only thereafter that it can in its report record its decision which on being gazetted becomes final and binding on the parties. The words 'any matter appearing to be connected with or relevant to water dispute ' employed in section 5(1) of the Act, do not contem plate reference of an interim relief matter nor can the same empower the Tribunal to make an interim order pendente lite. The Act has deliberately not conferred any power on the Tribunal to make an interim order for the simple reason that a water dispute has many ramifications, social, economic and political, and involves questions of equitable distribution of water which cannot be done without a full fledged inves tigation of the relevant data material including, statisti cal information. In the very nature of things, therefore, it is impossible to think that the Act envisaged the making of an interim order. While conceding that certain kinds of interlocutory orders which are processual in nature can be made by the Tribunal to effectuate the purpose of the Act, namely, adjudication of a water dispute, no interim relief or order can be granted which will affect the existing rights of the parties because that would in effect deprive the concerned State of the power to legislate in respect of water under Entry 7 and/or make executive orders in that behalf under Article 162 of the Constitution. The jurisdic tion conferred on the Tribunal under the Act to adjudicate upon a water dispute does not extend to grant of interim relief. The State of Karnataka, therefore, contends that having regard to the purpose, scope and intendment of the Act, the Tribunal constituted thereunder has no power or authority to grant any interim relief which would have the effect of adversely interfering with its existing rights, although while finally adjudicating the dispute it can override any executive or legislative action taken by the State. Since the allocation of flow waters between the con cerned States is generally based on the principle of 'equi table apportionment ', it is incumbent on the Tribunal to investigate the facts and all relevant materials before deciding on the shares of the concerned States which is not possible at the interim stage and hence the legislature has advisedly not conferred any power on the Tribunal to make an interim order affecting the existing rights of the concerned parties. The 534 State of Karnataka, therefore, urges that this question deserves to be answered in the negative. The State of Kerala has in its written submissions of 10th August, 1991 by and large supported the stand taken by the State of Karnataka. It contends that the provisions of the Act enacted under Article 262 of the Constitution con stitute a complete Code and the Tribunal has been conferred the powers of a civil court under the Civil Procedure Code only in respect of matters enumerated in section 9(1) of the Act. The power to grant interim relief is conspicuously absent and in the absence of an express provision in this behalf, the Tribunal, which is a creation of the Act, can have no jurisdiction to grant interim relief. It would be advantageous to state the contention of the State of Kerala in its own words: ". .Tribunal has no jurisdiction or power to make an interim award or grant any interim relief to a party unless the dispute relating to the interim relief has itself been referred to the Tribunal." (Paragraph 1.5) This is further amplified in paragraph 3.3 of its submissions as under. : "Such a relief can be granted to a party if that forms the subject matter of a separate reference to the Tribunal by the Central Government. In such a situation, the order of the Tribunal, would constitute a separate report and decision within section 5(2) of the Act which would then be published by the Central Government and would, therefore, be binding on the parties. " It is, however, the stand of Kerala that no specific refer ence for grant of interim relief w,ks made to the Tribunal and hence the interim order of 25th June, 1991 does not constitute a report and a decision within the meaning of section 5(2) and hence the Central Government is not expect ed to gazette the same. Unless the same is gazetted finality cannot attach to it nor can it bind the parties. Therefore, contends the State of Kerala, the Tribunal had no jurisdic tion to grant interim relief which it h,ks granted by its aforesaid interim order. Hence the said order has no effica cy in law and can be ignored. On the question of issuance of the Ordinance, the State of Kerala contends, that such a legislation falls within the scope and ambit of Entry 17 and is, therefore, perfectly legal and constitutional and is not in any manner inconsist ent with Entry 56 nor does it trench upon any part of the 535 declaration in section 2 of the or any of the provisions thereof. Thus according to Kerala, the legis lative competence to pass such a statute vests in the State legislature under Entry 17 and, therefore, the Governor of Karnataka was competent to issue the Ordinance under Article 213 of the Constitution. However, in the course of his submissions before this Court, Mr. Shanti Bhushan, counsel for the State of Kerala departed from the stand taken in the written submission and contended that the scheme of the Act does not confer any power whatsoever on the Tribunal to make an interim order and, therefore, the only remedy available to a State which apprehends any action by the upper riparian State likely to adversely affect its right, i.e. the rights of its people, is to move the Supreme Court under Article 131 of the Con stitution notwithstanding the provisions of Article 262 and section 11 of the Act. According to the learned counsel since the scope of Article 262 read with the scheme of the Act does not contemplate a Reference regarding the grant of interim relief to the Tribunal constituted under the Act, the field is left open for a suit to be instituted under Article 131 of the Constitution. Mr. Shanti Bhushan went so far as to contend that even if the Act had invested power in the Central Government such a provision would have been hit by Article 262 itself as the scope of that Article is limit ed while Article 131 is wider in scope. Thus according to counsel, this Court 's majority view expressed by Kasliwal, J.in Civil Appeals Nos. 303,304 & 2036 of 1991 which held that there was a reference to the Tribunal for grant of interim relief is not consistent with the true meaning and sope of Article 262 and the provisions of the Act and this Court should not feel bound by it if it agrees with coun sel 's interpretation for to do so would be to render wrong advice to the President. It is thus manifest that counsel 's submissions are a clear departure from the written submis sion filed by the State on 10th August, 1991. The State of Tamil Nadu contends that ordinarily a dispute between (i) the Government of India and one or more States or (ii) between the Government of India and any State or States on one side and one or more other States on the other or (iii) between two or more States would be governed by Article 131 of the Constitution and, subject to the provisions of the Constitution, the Supreme Court alone would have jurisdiction if and insofar as the dispute in volves any question (whether of law or fact) on which the existence or extent of a legal right depends. Article 131 begins with the words 'subject to the provisions of the Constitution ' and hence it must be read subject to Article 262 of the Constitution. Article 262 enables Parliament to provide by law for the adjudication of any dispute or com plaint with respect to the use, distribution or control of the 536 waters of, or in, any inter State river or river valley. That law may, notwithstanding anything contained in the Constitution, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to above. In exer cise of power conferred by this provision., the Parliament enacted the Act and by section 11 provided as under: "Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdic tion in respect of any water dispute which may be referred to a Tribunal under this Act." While Article 262(2) begins with the words 'notwith standing anything in this constitution ', section II begins with the words 'Notwithstanding anything contained in any other law ' which conveys that all courts including the Supreme Court are debarred from exercising jurisdiction in respect of any water dispute which may be referred to the tribunal for adjudication. It is, therefore, contended that the Tribunal required to perform a purely judicial function which but for Article 262 and section 11 of the Act would have been performed by a Court of law. An independent high level machinery consisting of a Chairman and two other members nominated by the Chief Justice of India from amongst sitting Judges of the Supreme Court or of a High Court is to constitute the Tribunal for adjudicating the water dispute. As the Tribunal is invested with the State 's judicial function it has all the trappings of a civil court and it is inconceivable that such a high powered judicial body would not be empowered to make interim orders or grant interim relief, particularly when it is empowered even to override an existing legislation or inter fere with a future legislation. Since the Tribunal is a substitute for the Supreme Court (but for Article 262 and section 11 of the Act, Article 131 would have applied) it is reasonable to infer that all the powers which the Supreme Court under Article 131 can be exercised by the Tribunal while adjudicating a water dispute and, therefore, the power to grant interim relief inheres in such a Tribunal without the need for an express provision in that behalf. A Tribunal on which is conferred a jurisdiction to adjudicate as to the prejudicial effect of a future legislation or executive action must of necessity possess the power to make interim orders interdicting a prejudicial act. The State of Tamil Nadu, therefore, contends that a high powered Tribunal like the present one which is a substitute for this Court must be presumed to have jurisdiction to grant an appropriate inter im relief. Such an ancillary and incidental power always inheres in a Tribunal which discharges judicial 537 functions. It is, therefore, contended that Question 3 must be answered in the affirmative. Without prejudice to the generality of the above submis sion, the State of Tamil Nadu contends that insofar as the question of jurisdiction to grant interim relief concerning the Cauvery water dispute is concerned, the decision of this Court dated 26th April, 1991 in Civil Appeals Nos. 303, 304 and 2036 of 1991 operates as resjudicata and is binding on the contesting parties regardless of the view that this Court may take on the generality of the question referred for decision. It must be recalled that this Court in its judgment of 26th April, 1991 came to the conclusion that the reference made to the Tribunal included the question of grant of interim relief and this conclusion based on the interpretation of the terms of the reference dated 2nd June, 1990 read with letter dated 6th July, 1991 was clearly binding on the concerned parties and the Tribunal 's interim order on the merits of the matter made in pursuance of this Court 's directive to decide on merits is equally binding and cannot be disturbed in proceedings arising out of a Refer ence under Article 143 (1) of the Constitution. If the question of grant of interim relief forms part of the Refer ence, the Tribunal is duty bound to decide the same and such decision would constitute a report under Section 5(2) of the Act which the Central Government would be duty bound to publish as required by section 6 of the Act. It is further contended that in the view of the State of Tamil Nadu a Tribunal constituted under the Act has inherent jurisdiction to grant interim relief as pointed out earlier, whether or not the question regarding grant of interim relief is spe cifically referred, and its decision thereon would consti tute a report under section 5(2) of the Act liable to be published in the official Gazette as required by section 6 thereof. If there is any ambiguity in the interim order the same can be taken care of under section 5(3) of the Act. The State of Tamil Nadu, therefore, contends that both parts of Question 2 deserve to be answered in the affirmative. So far as Question 1 of the Reference is concerned, the State of Tamil Nadu contends that the Karnataka Ordinance (now Act) is ultra vires the Constitution for diverse rea sons. It is contended that the real object and purpose of the legislation is to unilaterally nullify the Tribunal 's interim order after having failed in the first round of litigation. It is contended that the State of Karnataka had and has no right to unilaterally decide the quantum of water it will appropriate or the extent to which it will diminish the flow of Cauvery waters to the State of Tamil Nadu and thereby deny to the people of Tamil Nadu their rightful share in the Cauvery waters. The right to just and reasona ble use of water being a matter for adjudication by the Tribunal, no single State can by the use of 538 its legislative power arrogate upto itself the judicial function of equitable apportionment and decide for itself the quantum of water it will use from the inter State river regardless of the prejudice it would cause to the other State by its unilateral action. Such a power cannot be read in entry 17 as it will be destructive of the principle that such water disputes are justiciable and must be left for adjudication by an independent and impartial special forum to which it is referred, namely, the Tribunal constituted for resolving the dispute, and not by unilateral executive or legislative interference. It is, therefore, contended that the object of the legislation not being bona fide, the same cannot be allowed to stand as it has the effect of overruling a judicial order passed by a Tribunal specially appointed to adjudicate on the water dispute between the parties thereto. On the question of legislative competence, the State of Tamil Nadu contends that the statute is ultra vires the Constitution for the following reasons: (a) the Ordinance (now Act) is ultra vires the Constitution as it seeks to override or neutralise the law enacted by Parliament in exercise of power conferred by Article 262 (and not Article 246 read with the relevant entry in the Seventh Sechedule) of the Consti tution. A State Legislature can have no power to legislate with regard to a water dispute as it would be incongruous to confer or infer such power in a State legislature to destroy what a judicial body has done under a Central law; (b) the impugned legislation purporting to be under Entry 17 of List II has extra territorial operation, in that, it directly impinges on the rights of the people of Tamil Nadu to the use of Cauvery waters. (c) the impugned legislation is con trary to the Rule of Law and a power not comprehended even by Article 262 cannot be read into the legislative power of the State for it would pervert the basic concept of justice, and (d) the impugned legislation is violative of the fundamental fights of the inhabitants of Tamil Nadu guranteed by Articles 14 and 21 of the Constitution, in that, the action of Karnataka is wholly arbitrary and in total disregard of the right to life of those inhab itants in Tamil Nadu who survive on Cauvery waters. 539 The State of Tamil Nadu strongly contends that in a civi lised society governed by the Rule of Law, a party to a 'lis ' water dispute cannot be owed to arrogate to itself the fight to decide on the dispute or to nullify an interim order made by a Tribunal in obedience to the decision of the apex court by abusing the legislative power under Entry 17 under which the impugned legislation purports to be. Without raising any preliminary objection and without prejudice to its afore mentioned contentions, the State of Tamil Nadu contends that the jurisdiction of this Court under Article 143 of the Constitution is discretionary and this Court should refrain from answering a Reference which i in general terms without background facts and is likely to entail a roving inquiry which may ultimately prove academic only. Secondly, the State of Karnataka has immediately after the interim order instituted a suit, being Original Suit No.1 of 1991, in this Court in which it has prayed for a declaration that the interim order of the Tribunal dated 25th June, 1991 is without jurisdiction, null and void, and for setting aside the said order. It is contended that while on the one hand the decision of this Court, per Kasliwal, J., has become final and is res judicate between the parties thereto, on the other hand the State of Karnataka is raking up the same question of jurisdiction before this court in a substantive suit with a view to overreaching this Court 's earlier order. The Presidential Reference in terms refers to disputes and differences having arisen out of the Tribunal 's interim order which, it is said, has given rise to a public controversy likely to result in undesirable consequences. Such matters, contends the State of Tamil Nadu, can be effectively countered by the concerned Government and do not call for a Presidential Reference. If there is any doubt or difficulty in the implementation of the impugned order recourse can always be had to section 5(3) of the Act. In the circumstances it is urged that this Court should refuse to answer the Reference. The Union Territory of Pondicherry contends that the promulgation of the Ordinance (now Act) is intended to further protract the long standing water dispute which came to be referred to the Tribunal only after this Court issued a mandamus in that behalf and is likely to prejudicially affect the interest of the State as well as the farmers and other inhabitants who utilise the water from river Cauvery. It is contended that the said legislation is unconstitution al and is a piece of colourable legislation for the follow ing reasons: (a) the power of the State Legislature to enact a law on the subject falling in Entry 17 List II, is subject to the provisions of Entry 56 in List 1, and once Parliament had made a declaration in that behalf in section 2 of the River Boards 540 Act, the State Legislature was not competent to enact the impugned law, (b) once the Central Government had entrusted the Cauvery water dispute to an independent Tribunal under the provisions of the Act, it was not constitutionally permissi ble for Karnataka to enact the impugned law, (c) in the case of flowing water the riparian States have no ownership or proprie tary right therein except in the usufruct thereof and, therefore, the power to legislate therein under Entry 17 of List II can extend to only the usufructurary right subject to the right of a riparian State to get the customary quantity of water, (d) the objective of the impugned legis lation is to set at naught the interim order of the Tribunal and to the extent it seeks to interfere with the exercise of judicial powers it is unconstitutional, (e) the impugned legislation is violative of Article 21 of the Constitution as it is intended to diminish the supply of water to Tamil Nadu and Pondicherry which is also against the spirit of Articles 38 and 39 of the Constitution, and (f) the impugned legislation seeks to eclipse the interim order of the Tribunal constituted under an Act made in virtue of Article 262 of the Constitution and being in conflict with the Central legislation is void for repugnancy. For the above reasons, Pondicherry contends that the Ordinance (now the Act) is constitutionally invalid. As regards Question 2 it is contended that the water dispute referred to the Tribunal comprised the issue regard ing the grant of interim relief as held by Kasliwal, J. and hence the interim order made by the Tribunal constitutes a report within the meaning of section 5(2) of the Act and consequently the Central Government is obliged to publish it is required by section 6 of the Act. Once it is so published it will operate as a decision in rem but even without publi cation it is binding on Karnataka as a decision in personam. If any explanation or guidance is required it can be had from the Tribunal by virtue of section 5(3) of the Act. Once the time for seeking explanation or guidance is over the law enjoins on the Central Government the obligation to publish the report under section 6 of 541 the Act. Both the elements of Question 2 must, contends Pondicherry, be answered in the affirmative. So far as Question 3 is concerned, it is contended that the Tribunal constituted under the Act, though not a Court, has all the attributes of a Court since it is expected to discharge a judicial function and must, therefore, be pre sumed to have 'incidental and ancilliary powers ' to grant interim relief, if equity so demands. That is so because the jurisdiction of all courts including this Court is taken away by virtue of section 11 of the Act read with Article 262(2) of the Constitution. The Tribunal is, therefore, required to discharge the judicial function of adjudicating a water dispute between two or more States and must, there fore, be deemed to possess the inherent power to grant interim relief which inheres in all such judicial bodies. Absence of an express provision conferring power to grant interim relief does not detract from the view that such power inheres in a Tribunal which is called upon to dis charge an essentially judicial function. For discharging such a function it is essential that the Tribunal must possess inherent power to pass interim orders from time to time in aid of adjudication. The Union Territory of Pondi cherry is, therefore, of the view that Question 3 must be answered in the affirmative. Six intervention applications have been filed by differ ent persons and bodies from Karnataka including the Advocate General of the State in support of the case of Karnataka raising contentions more or less similar to those raised by the State itself. One intervention application is filed by the Tamil Nadu Society which had preferred the original Writ Petition in which a mandate to constitute a Tribunal under the Act was given. The contentions raised by the interveners are covered in the written submissions filed by the State of Tamil Nadu and need not be reiterated. The said intervener has also filed written submissions through counsel Shri Ashok Sen which we shall deal with in the course of this judgment. Of the three questions which have been referred to this Court under Article 143(1) of the Constitution, there can be no dispute, and indeed there was none, that question 2 arises solely and entirely out of the Tribunal 's order granting interim relief. The question is whether that order constitutes a report within the meaning of section 5(2) of the Act and is required to be published in the gazette of the Central Government to make it effective. The first question refers ' to the constitutional validity of the Karnataka Ordinance (now the Act). Although this question does not specifically refer to the Cauvery water dispute or the interim order passed by the Tribunal, the preamble of the said statute leaves no doubt that it is concerned with the protection and preservation of irrigation in irrigable 542 areas of the Cauvery basin in Karnataka dependent on the waters of the Cauvery river and its tributaries '. The provi sions of the said law extracted earlier leave no manner of doubt that the State Government has been charged with the duty to abstract or cause to be abstracted, during every water year, such quantity of water as it may deem requisite, from the flows of river Cauvery and its tributaries, 'not withstanding anything contained in any order, report or decision of any. . Tribunal ', whether made before or after the commencement of the said law, save and except a final decision under section 5(2) read with section 6 of the Act. There can, therefore, be no doubt that if the provi sions of this special Karnataka enactment become legally effective, the Tribunal 's order dated 25th June, 1991 grant ing interim relief would stand eclipsed. In that view of the matter Question 1 is clearly intertwined with the Cauvery water dispute referred to the Tribunal and the interim order made by that body. The third question, it was contended by Tamil Nadu and Pondicherry, though innocent in appearance and apparently general in nature, is in fact likely to nullify the interim order of the Tribunal. There can be no doubt that this Court 's opinion on Question 3 will certainly have a bearing on the interim order of the Tribunal. Bearing this in mind we may now proceed to deal with the questions referred to this Court in the light of the submissions made at the Bar. 7. We will deal with the respective contentions with refer ence to each of the questions. Question No. I To examine the validity of the contentions advanced on this question it is first necessary to analyse the relevant provisions of the Constitution. The distribution of legislative powers is provided for in Chapter I of Part XI of the Constitution. Article 245, inter alia states that subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of the State may make laws for the whole or any part of the State. Article 246 provides, among other things, that subject to clauses (I)and (2) of the said Article, the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumer ated in the State List in the Seventh Schedule. Clauses (1) and (2) of the said Article refer to the Parliament 's exclu sive powers to make laws with respect to any of the matters enumerated in the Union List and the power of the Parliament and the legislature of the State to make laws with respect to any of the matters enumerated in the Concurrent List. Article 248 gives 543 the Parliament exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List. Entry 56 of the Union List reads as follows: "Regulation and development of inter State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Par liament by law to be expedient in the public interest. " A reading of this Entry shows that so far as inter State rivers and river valleys are concerned, their regulation and development can be taken over by the Union by a Parliamen tary enactment. However, that enactment must declare that such regulation and development under the control of the Union is expedient in the public interest. Entry 17 in the State List reads as follows: "Water, that is to say, water supplies, irri gation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I." An examination of both the Entries shows that the State has competence to legislate with respect to all aspect of water including water flowing through inter State rivers, subject to certain limitations, viz. the control over the regulation and development of the inter State river waters should not have been taken over by the Union and secondly, the State cannot pass legislation with respect to or affect ing any aspect of the waters beyond its territory. The competence of the State legislature in respect of inter State river waters is, however, denuded by the Parliamentary legislation only to the extent to which the latter legisla tion occupies the field and no more, and only if the Parlia mentary legislation in question declares that the control of the regulation and development of the inter State rivers and river valleys is expedient in the public interest, and not otherwise. In other words, if a legislation is made which fails to make the said declaration it would not affect the powers of the State to make legislation in respect of inter State river water under Entry 17. Entry 14 of List II relates, among other things, to agriculture. In so far as agriculture depends upon water including river water, the State legislature while enacting legislation with regard to agriculture may be competent to provide for the regulation and development of its water resources including water supplies, irrigation and canals, drainage and embankments, water storage and water power which are the subjects men 544 tioned in Entry 17. However, such a legislation enacted under Entry 14 in so far as it relates to inter State river water and its different uses and the manners of using it, would also be, it is needless to say, subject to the provi sions of Entry 56. So also Entry 18 of List II which speaks, among other things, of land improvement which may give the State Legislature the powers to enact similar legislation as under Entries 14 and 17 and subject to the same restric tions. Entry 97 of the Union List is residuary and under it the Union has the power to make legislation in respect of any matter touching inter State river water which is not enumer ated in the State List or the Concurrent List. Correspond ingly, the State legislature cannot legislate in relation to the said aspects or matters. Article 131 of the Constitution deals with original jurisdiction of the Supreme Court and states as follows: "131. Original Jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commence ment of this Constitution, continues in opera tion after such commencement, or which pro vides that the said jurisdiction shall not extend to such a dispute. " It is clear from the Article that this Court has origi nal jurisdiction, among other things, in any dispute between two or more States where the 545 dispute involves any question whether of law or fact on which the existence and extent of a legal right depends except those matters which are specifically excluded from the said jurisdiction by the proviso. However, the Parlia ment has also been given power by Article 262 of the Consti tution to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint with respect to the use, distribu tion or control of the water of, or in, any interState river or river valley. Section 11 of the Act, namely, the Inter State Water Disputes Act, 1956 has in terms provided for such exclusion of the jurisdiction of the courts. It reads as follows: "Sec. 11 Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act. " This provision of the Act read with Article 262 thus excludes original cognizance or jurisdiction of the inter State water dispute which may be 'referred to the Tribunal established under the Act, from the purview of any Court including the Supreme Court under Article 13 1. 9. We may now analyse the provisions of the Karnataka Ordinance in question the text of which is already repro duced. Its preamble states, that it is issued (i) to provide for the protection and preservation of irrigation in irriga ble areas of the Cauvery basin in Karnataka dependent on the waters of the Cauvery river and its tributaries, and (ii) that the Governor of Karnataka was satisfied that circum stances existed which rendered it necessary for him to take immediate action for the said protection and preservation. The irrigable areas of which protection and preservation is sought by the Ordinance are mentioned in the Schedule to the Ordinance. Admittedly the Schedule includes the irrigable area as existing in 1972 during the tenure of the agreement of 1924 between Karnataka and Tamil Nadu as well as the increase in the same since 1972 till the date of the Ordi nance as well as the areas which are committed to be brought under irrigation on account of some of the projects men tioned in Column II of the Schedule. Clause 3(1) of the Ordinance then makes a declaration of the duty of the State Government to protect, preserve and maintain irrigation from the waters of the Cauvery river and its tributaries in the said irrigable area. Sub clause (2) of the said clause then gives powers to the State Government to abstract or cause to be abstracted during every water year (which is defined as the year commencing with 1st of June of a calendar year and ending with 31st May of next calendar year), such quantity of water as it may deem requisite, from the flows of the Cauvery river and its tributaries and in such manner and during such intervals as 546 the State Government or any officer not below the rank of an Engineer inChief designated by it may deem fit and proper. (Emphasis supplied). This clause, therefore, vests in the State Government or the Officer designated by it, an abso lute power to appropriate any quantity of water from the Cauvery river and its tributaries and in any manner and at any interval as may be deemed fit and proper. The power given by the clause is unrestricted and uninhibited by any consideration save and except the protection and preserva tion of the irrigable area of the Karnataka State. Clause 4 is still more absolute in its terms and opera tion inasmuch as it declares that the Ordinance and any rules and orders made thereunder shall have effect notwith standing anything contained in any Order, report or decision of any court or tribunal (whether made before or after the commencement of the Ordinance) save and except a final decision under the provisions of sub Section (2) of Section 5 read with Section 6 of the . Clause (5) states that when any difficulty arises in giving effect to the provisions of this Ordinance, the State Government may, by order, as occasion requires, do anything which appears to be necessary for the purpose of removing the difficulty, and clause (6) gives power to the State Government to make rules to carry out the purpose of the Ordinance. Clauses (4), (5) and (6) read together show that the Ordinance, Rules and Order made thereunder will prevail over any order, report or decision of any court including the Supreme Court and, of course, of the Tribunal under the Inter State Water Dispute Act. The only decision which is excluded from the overriding effect of the Ordinance is the final decision of the Water Disputes Tribunal given under Section 5 (2) read with Section 6 of the . 10. The object of these provisions of the Ordinance is obvious. Coming close on the Order dated 25th June, 1991 of the Tribunal and in the context of the stand taken by the State of Karnataka that the Tribunal has no power or juris diction to pass any interim order or grant any interim relief, it is to override the said decision of the Tribunal and its implementation. The Ordinance has thus the effect of defying and nullifying any interim order of the Tribunal appointed under a law of the Parliament. This position is not disputed before us on behalf of the State of Karnataka. The other effect of the Ordinance is to reserve to the State of Karnataka exclusively the right to appropriate as much of the water of river Cauvery and its tributaries as it deems requisite and in a manner and at periods it deems fit and proper, although pending the final adjudication by the Tribunal. It cannot be disputed that the Act, viz., the Inter State Water Disputes Act, 1956 is not a legislation under Entry 56. In the first instance Entry 56 547 speaks of regulation and development of inter State rivers and river valleys and does not relate to the disputes be tween the riparian States with regard to the same and adju dication thereof. Secondly, and even assuming that the expression "regulation and development" would in its width, include resolution of disputes arising therefrom and a provision for adjudicating them, the Act does not make the ' declaration required by Entry 56. This is obviously not an accidental omission but a deliberate disregard of the Entry since it is not applicable to the subject matter of the legislation. Thirdly, no Entry in either of the three Lists refers specifically to the adjudication of disputes with regard to inter State river waters. The reason why none of the Entries in the Seventh Sched ule mention the topic of adjudication of disputes relating to the inter State river waters is not far to seek. Article 262 of the Constitution specifically provides for such adjudication. The Article appears under the heading "Dis putes relating to Waters", and reads as follows: "262. Adjudication of disputes relating to waters of interState rivers or river valleys. ******************************************* (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is re ferred to in clause (1). " An analysis of the Article shows that an exclusive power is given to the Parliament to enact a law providing for the adjudication of such disputes. The disputes or complaints for which adjudication may be provided relate to the "use, distribution or control" of the waters of, or in any inter State river or river valley. The words "use", "distribution" and "control" are of wide import and may include regulation and development of the said waters. The provisions clearly indicate the amplitude of the scope of adjudication inasmuch as it would take within its sweep the determination of the extent, and the manner, of the use of the said waters, and the power to give directions in respect of the same. The language of the Article has, further to be distinguished from that of Entry 56 and Entry 17. Whereas Article 262 (1) speaks of adjudication of any dispute or complaint and that too with respect to the use, distribution or control of the waters of or 548 in any inter State river or river valleys, Entry 56 speaks of regulation and development of inter State rivers and river valley. Thus the distinction between Article 262 and Entry 56 is that whereas former speaks of adjudication of disputes with respect to use, distribution or control of the waters ' of any inter State river or river valley, Entry 56 speaks of regulation and development of inter State rivers and river valleys. (Emphasis supplied). Entry 17 likewise speaks of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56. It does not speak either of adjudication of disputes or of an inter State river as a whole as indeed it cannot, for a State can only deal with water within its territory. It is necessary to bear in mind these distinctions between Article 262, Entry 56 and Entry 17 as the arguments and counter arguments on the validity of the Ordinance have a bearing on them. We have already pointed out another important aspect of Article 262, viz., Clause (2) of the Article provides that notwithstanding any other provision in the Constitution, Parliament may by law exclude the jurisdiction of any court including the Supreme Court in respect of any dispute or complaint for the adjudication of which the provision is made in such law. We have also noted that Section 11 of the makes such a provision. 13. The said Act, as its preamble shows, is an Act to pro vide for the "adjudication of disputes relating to waters of inter State rivers and river valleys". Clause (c) of Section 2 of the Act defines "water dispute" as follows: "2. In this Act, unless the context otherwise requires, (a). . . . (b). . . (c) "water dispute" means any dispute or difference between two or more State Govern ments with respect to (i) the use, distribution or control of the waters of, or in, any inter State river or river valley; or (ii) the interpretation of the terms of any agreement relating to the use, distribu tion or control of such waters or the imple mentation of such agreement; or (iii) the levy of any water rate in contravention of the prohibition contained in section 7" 549 Section 3 of the Act states that if it appears to the Government of any State that the water dispute with the Government of another State of the nature stated therein, has arisen or is likely to arise, the State Government may request the Central Government to refer the water dispute to a Tribunal for adjudication. Section 4 of the Act provides for the constitution of a Tribunal when a request is re ceived for referring the dispute to a Tribunal and the Central Government is of the opinion that the water dispute cannot be settled by negotiations. Section 5 of the Act requires the Tribunal to investigate the matter referred to it and forward to the Central Government the report of its findings and its decision. The Central Government has then to publish the decision under Section 6 of the Act which decision is final and binding on the parties to the dispute and has to be given effect to by them. These dominant provi sions, among others, of the Act clearly show that apart from its title, the Act is made by the Parliament pursuant to the provisions of Article 262 of the Constitution specifically for the adjudication of the disputes between the riparian States with. regard to the use, distribution or control of the waters of the inter State rivers or river valleys. The Act is not relatable to Entry 56 and, therefore, does not cover either the field occupied by Entry 56 or by Entry 17. Since the subject of adjudication of the said disputes is taken care of specifically and exclusively by Article 262, by necessary implication the subject stands excluded from the field covered by Entries 56 and 17. It is not, there fore, premissible either for the Parliament under Entry 56 or for a State legislature under Entry 17 to enact a legis lation providing for adjudication of the said disputes or in any manner affecting or interferring with the adjudication or adjudicatory process of the machinery for adjudication established by law under Article 262. This is apart from the fact that the State legislature would even otherwise be incompetent to provide for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the inter State river waters beyond its territory or with regard to disputes between itself and another State relating to the use, distribution or control of such waters. Any such act on its part will be extraterritorial in nature and, therefore, beyond its competence. Shri Venugopal has in this connection urged that it is Entry 97 of the Union List which deals with the topic of the use, distribution and control of waters of an inter State river. The use, distribution and control of the waters of such rivers, by itself is not a topic which is covered by Article 262. It is also, according to him, not a topic covered by Entry 56 which only speaks of regulation and development of inter State rivers and river valleys meaning thereby the entirety of the rivers and river valleys and not the waters at or in a particular place (emphasis supplied). Further, the regulation and development, according to him, has nothing to do with the 550 use, distribution or allocation of the waters of the inter State river between different riparian States. That topic should, therefore, be deemed to have been covered by the said residuary Entry 97. With respect to the learned counsel, it is not possible to accept this interpretation of the Entry 97. This is so firstly because, according to us, the expression "regulation and development of Inter State rivers and river valleys" in Entry 56 would include the use, distribution and allocation of the waters of the inter State rivers and river valleys between different riparian States. Otherwise the intention of the Constituent Assembly to provide for the Union to take over the regulation and development under its control makes no sense and serves no purpose. What is further, the which is admittedly eracted under Entry 56 for the regulation and development of inter State rivers and river valleys does cover the field of the use, distribution and allocation of the waters of the inter State rivers and river valleys. This shows that the expression "regulation and development" of the inter State rivers and river valleys in Entry 56 has legislatively also been construed to include the use, distribution or allocation of the waters of the inter State rivers and river valleys between riparian States. We are also of the view that to contain the opera tion of Entry 17 to the waters of an inter State river and river valleys within the boundaries of a State and to deny the competence to the State legislature to interfere with or to affect or to extend to the use, distribution and alloca tion of the waters of such river or river valley beyond its territory, directly or indirectly, it is not necessary to fail back on the residuary Entry 97 as an appropriate decla ration under Entry 56 would suffice. The very basis of a federal Constitution like ours mandates such interpretation and would not bear an interpretation to the contrary which will destroy the constitutional scheme and the Constitution itself. Although, therefore, it is possible technically to separate the "regulation and development" of the inter State river and river valley from the "use, distribution and allocation" of its water, it is neither warranted nor neces sary to do so. The above analysis of the relevant legal provisions dealing with the inter State rivers and river valleys and their waters shows that the Act, viz., the can be enacted and has been enacted only under Article 262 of the Constitution. It has not been enacted under Entry 56 as it relates to the adjudication of the disputes and with no other aspect either of the inter State river as a whole or of the waters in it. It will be pertinent at this stage also to note the true legal position about the inter State river water and the rights of the riparian States to the 551 same. In State of Kansas vs State of Colorado, [206] US 46 the Supreme Court of the United States has in this connec tion observed as follows: "One cardinal rule, underlying all the rela tions of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others and is bound to yield its own view to none". " . the action of one State reaches, through the agency of natural laws into the territory of another State, the question of the extent and the limitation of the rights of the two States becomes a matter of justiciable dispute between them . this court is called upon to settle that dispute in such a way as will recognise the equal rights of both and at the same time establish justice between them". "The dispute is of a justiciable nature to be adjudicated by the Tribunal and is not a matter for legislative jurisdiction of one State. ". "The right to flowing water is now well set tled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Providence, each proprie tor has a right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or divert ed, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrong ful or injurious to a proprietor lower down". "The right to the use of the flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and exclu sive right to all the water flowing past their land so that any obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water subject to a simi lar right in all the proprietors to the rea sonable enjoyment of the same gift of provi dence. It is therefore only for an abstraction and deprivation of this common benefit or for an unreasonable and unautho rised use of it that an action will lie." 16. Though the waters of an inter State river pass through the territories of the riparian States such waters cannot be said to be located in any one 522 State. They are in a state of flow and no State can claim exclusive ownership of such waters so as to deprive the other States of their equitable share. Hence in respect of such waters, no State can effectively legislate for the use of such waters since its legislative power does not extend beyond its territories. It is further an acknowledged prin ciple of distribution and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State. What the equitable share will be will depend upon the facts of each case. It is against the background of these principles and the provi sions of law we have already discussed that we have to examine the respective contentions of the parties. The Ordinance is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz., the which legisla tion has been made under Article 262 of the Constitution. As has been pointed out above, while analysing the provisions of the Ordinance, its obvious purpose is to nullify the effect of the interim order passed by the Tribunal on 25th June, 1991. The Ordinance makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of Karnataka show that since according to the State of Karnataka the Tribunal has no power to pass any interim order or grant any interim relief as it has done by the order of 25th June, 1991, the order is without juris diction and. therefore, void ab initio. This being so. it is not a decision, according to Karnaaka, within the meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the interim order or not and whether the order is binding on it or not. Secondly, the State has also presumed that till a final order is passed by the Tribunal, the State has the power to appropri ate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequences of such action on the lower riparian States. Karnataka has thus presumed that it has superior rights over the said waters and it can deal with them in any manner in the process, the State of Karna taka has also presumed that the lower ripar in States have no equitable rights and it is the sole judge as to the share of the other riparian States in the said waters. What is further, the State of Karnataka has assumed the role of a judge in its own cause. Thus, apart from the fact that the Ordinance directly nullifies the decision of the Tribunal dated 25th June, 1991. it also challenges the decision dated 26th April, 1991 of this Court which has ruled that the Tribunal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordinance further has an extra territorial 553 operation insasmuch as it interferes with the equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Ordinance interferes with the decision of this Court and of the Tribunal appoint ed under the Central legislation, it is clearly unconstitu tional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judi cial power of the State. In this connection, we may refer to a decision of this Court in Municipal Corporation of the City of Ahmedabad etc. vs New Shorock Spg. & Wvg. Co., Ltd. etc. ; , The facts in this case were that the High Court as well as this Court had held that property tax collected for certain years by the Ahmedabad Municipal Corporation was illegal. In order to nullify the effect of the decision, the State Government introduced Section 152A by amendment to the Bombay Provincial Municipal Corporation Act the effect of which was to command the Municipal Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court. This Court held that the said provision makes a direct in road into the judicial powers of the State. The legislatures under the Constitution have, within the prescribed limits, power to make laws prospec tively as well as retrospectively. By exercise of those powers a legislature can remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But no legislature in the country has power to ask the instrumentalities of the State to disobey or disre gard the decisions given by the courts. Consequently, the provisions of sub section (3) of section 152A were held repugnant to the Constitution and were struck down. To the same effect is another decision of this court in Madan Mohan Pathak vs Union of India & Ors. ; , In this case a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a decision of the High Court of Calcutta. This settlement was sought to be scuttled by the Corporation on the ground that they had received instructions from the Central Government that no payment of bonus should be made by the Corporation to its employees without getting the same cleared by the Government. The employees, therefore, moved the High Court, and the High Court allowed the petition. Against that, a Letters Patent Appeal was filed and while it was pending, the Parliament passed the Life Insurance Corporation (Modi fication of Settlement) Act, 1976 the effect of which was to deprive the employees of bonus payable to them in accordance with the terms of the settlement and the decision of the Single Judge of the High Court. On this amendment of the Act, the Corporation withdrew its appeal and refused to pay the bonus. The employees having approached this Court chal lenging the constitutional validity of the said 554 legislation, the Court held that it would be unfair to adopt legislative procedure to undo a settlement which had become the basis of a decision of the High Court. Even if legisla tion can remove the basis of a decision, it has to do it by alteration of general rights of class but not by simply excluding the specific settlement which had been held to be valid and enforceable by a High Court. The object of the Act was in effect to take away the force of the judgment of the High Court. The rights under the judgment would be said to arise independently of Article 19 of the Constitution. Yet another decision of this Court on the point is P. Sambamurthy & Ors. vs State of Andhra Pradesh & Anr. , ; In this case what was called in question was the insertion of Article 371 D of the Consti tution. Clause (5) of the Article provided that the order of the Administrative Tribunal finally disposing of the case would become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order was made, whichever was earlier. The proviso to the clause provided that the State Government may by special order made in writing for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it became effective and in such a case the order of the Tribunal shall have effect only in such modi fied form or be of no effect. This court held that it is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law, and the power of judicial review is conferred by the constitution with a view to ensuring that the law is observed and there is compliance with the re quirement of the law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. If the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it. it would sound the death knell of the rule of law. The rule of law would be meaningless as it would be open to the State Government to defy the law and yet get away with it. The proviso to el. (5) of article 37 I D was therefore, violative of the basic structure doctrine. The principle which emerges from these authorities is that the legislature can change the basis on which a deci sion is given by the Court and thus change the law in gener al which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part 555 of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal. The effect of the provisions of section 11 of the present Act, viz., the read with Article 262 of the Constitution is that the entire judicial power of the State and, therefore, of the courts including that of the Supreme Court to adjudicate upon original dispute or complaint with respect to the use, distribution or control of the water of, or in any inter State river or river valleys has been vested in the Tribunal appointed under Section 4 of the said Act. It is, therefore, not possible to accept the submission that the question of grant of interim relief falls outside the purview of the said provisions and can be agitated under Article 131 of the Constitution. Hence any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to nullify the order of the Tribunal passed on 25th June, 1991, it impinges upon the judicial power of the State and is, therefore, ultra vires the Constitution. Further, admittedly, the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra territorial operation. Hence the Ordinance is on that ac count beyond the legislative competence of the State and is ultra vires the provisions of Article 245 (1) of the Consti tution. The Ordiance is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issuing the Ordinance has sought to take law in its own hand and to be above the law. Such an act is an invitation to lawless ness and anarchy, inasmuch as the Ordinance is a manifesta tion of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power of a State to issue such an Ordinance is upheld it will lead to the break down of the Constitutional mechanism and affect the unity and integrity of the nation. In view of our findings as above on the unconstitution ality of the Ordinance, it is not necessary for us to deal with the contention advanced 556 on behalf of Tamil Nadu and Pondicherry that the Ordinance is unconstitutional also because it is repugnant to the provisions of the which is admittedly enacted under Entry 56. 19. We also do not propose to deal with the contentions advanced on behalf of both sides with reference to Articles 19 (1) (g) and 21 of the Constitution. On behalf of Karnata ka the said Articles are invoked to support the Ordinance contending that the Ordinance has been issued to protect the fundamental rights of its inhabitants guaranteed to them by the said Articles which rights were otherwise been denied by the Tribunals ' order of 25th June, 1991. As against it, it was contended on behalf of Tamil Nadu that it was the Ordi nance which was designed to deny to its inhabitants the said rights. Underlying the contentions of both is the presump tion that the Tribunal 's order denies to Karnataka and ensures to Tamil Nadu the equitable share in the river water. To deal with the said contentions is, therefore, to deal with the factual merits of the said order which it is not for us to examine. Of the same genre are the contentions advanced on behalf of Karnataka, viz., that they"order creats new rights in favour of Tamil Nadu and leads to inequitable consequences so far as Karnataka is concerned. For the same reasons, we cannot deal with these contentions either. Question No. 3: 20. Question 3 is intimately connected with Question 2. However, Question 3 itself has to be answered in two parts, viz., whether a Water Disputes Tribunal constituted under the Act is competent to grant any interim relief (i) when no reference for grant of interim relief is made to the Tribu nal, and (ii) when such reference is made to it. It was contended on behalf of Karnataka and Kerala that the answer to the second part of the question will also depend upon the answer to the first part. For if the Tribunal has no power to grant interim relief, the Central Government would be incompetent to make a reference for the purpose and the Tribunal in turn will have no jurisdiction to entertain such reference, even if made. And if the Tribunal has no power to grant interim relief, then the order made by the tribunal will not constitute a report and a decision within the meaning of Section 5 (2) and hence it would not be required to be published by the Central Government under Section 6 of the Act in order to make it effective. Further if the Tribu nal has no such power to grant interim relief then the order passed by the Tribunal on 25th June, 1991 will be void being without jurisdiction and, therefore, to that extent the Ordinance issued by the State of Karnataka will not be in conflict with the provisions of the Act, viz., the Inter State Water Disputes Act, 1956. 557 21. This Court by its decision of April 26, 1991 has held, as pointed out above, ,that the Central Government had made a reference to the Tribunal for the :consideration of the claim for interim relief prayed for by the State of Tamil Nadu and hence the Tribunal had jurisdiction to consider the said request being a part of the Reference itself. Implicit in the said decision is the finding that the subject of interim relief is a matter connected with or relevant to the water dispute within the meaning of Section 5 (1) of the Act. Hence the Central Government could refer the matter of granting interim relief to the Tribunal for adjudication. Although this Court by the said decision has kept open the question, viz., whether the Tribunal has incidental, ancil lary, inherent or implied power to grant the interim relief when no reference for grant of such relief is made to it, it has in terms concluded the second part of the question. We cannot, therefore, countenance a situation whereby Question 3 and for that matter Questions 1 and 2 may be so construed as to invite our opinion on the said decision of this Court. That would obviously be tantamount to our sitting in appeal on the said decision which it is impermissible for us to do even in adjudicatory jurisdiction. Nor is it competent for the President to invest us with an appellate jurisdiction over the said. decision through a Reference under Article 143 of the Constitution. Shri Nariman, however, contended that the President can refer any question of law under Article 143 and, therefore, also ask this Court to reconsider any of its decisions. For this purpose, he relied upon the language of clause (1) of Article 143 which is as follows: "143. Power of president to consult Supreme Court(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. " In support of his contention he also referred us to the opinion expressed by this Court in re: The , The Ajmer Merwara (Extension of Laws) act, 1947 and the States (Laws) Act, 1950 ; For the reasons which follow, we are unable to accept this conten tion. In the first instance, the language of clause (1) of Article 143 far from supporting Shri Nariman 's contention is opposed to it. The said clause empowers the President to refer for this Court 's opinion a question of law or fact which has arisen or is likely to arise. When this 558 Court in its adjudicatory jurisdiction pronounces its au thoritative opinion on a question of law it cannot be said that there is any doubt about the question of law of the same is res integra so as to require the President to know what the true position of law on the question is. The deci sion of this Court on a question of law is binding on all courts and authorities. Hence under the said clause the, President can refer a question of law only when this Court has not decided it. Secondly, a decision given by this Court can be reviewed only under Article 137 read with Rule 1 of Order XL of the Supreme Court Rules 1966 and on the condi tions mentioned therein. When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exer cise of its inherent power and only in exceptional circum stances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. See: The Bengal Immunity Company Ltd. vs The Stale of Bihar & Ors., Under the Constitution such appel late jurisdiction does not vest in this Court; nor can it be vested in it by the President under Article 143. To accept Shri Nariman 's contention would mean that the advisory jurisdiction under Article 143 is also an appellate juris diction of this Court over its own decision between the same parties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143 it would be a serious inroad into the independence of judici ary. So far as the opinion expressed by this Court in re The (supra) is concerned, as the Reference itself makes clear, what was referred was a doubt expressed by the President on the decision of the Federal Court in Jatindra Nath Gupta vs The Province of Bihar & Ors., which was delivered on 20th May, 1949. The Federal Court at that time was not the apex court. Upto 10th Octo ber, 1949, the appeals from its decisions lay to the Privy Council including the appeal from the decision in question. The decisions of the Federal Court were not binding on the Supreme Court as held in Hari Vishnu Kamath vs Syed Ahmad Ishaque & Ors., ; Hence it was not a case where the President had referred to this Court for its opinion a decision which had become a law of the land. Hence the case in re The (supra) does not support the contention. The provisions of clause (2) of Article 374 of the Constitution also do not help Shri Nariman 's contention since the said provisions relate to the transitional period and the "judgments and orders of the Federal Court" referred to therein are obviously the interim judgments and orders in the 559 suits, appeals and proceedings pending in the Federal Court at the commencement of the Constitution and which stood transferred to the Supreme Court thereafter. This is also the view taken by a Division Bench of Bombay High Court in State of Bombay vs Gajanan Mahadev Badley, AIR [1954] Bombay 351. This view has been confirmed by this Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi etc. vs State of Gujrat & Ors. etc. JT Para graphs 32 to 37 of the judgment deal with this subject specifically. Both Shri Parasaran and Shri Venugopal requested us not to answer the first part of Question 3 on the ground that the said part of the question is purely theoretical and general in nature, and any answer given would be academic because there will be no occasion to make any further inter im order or grant another interim relief in this Reference. According to him, the recitals of the order of Reference have bearing only on Questions 1 and 2, and the second part of Question 3. They have no bearing on the first part of Question 3 and since the Reference has been made in the context of particular facts which have no connection with the theoretical part of Question 3, the same should be returned unanswered as being factually unwarranted. On behalf of karnataka and Kerala, however as pointed out above, it was urged that we should answer the said part of the question for the reasons stated there. Shri Shanti Bhushan in this connection relied upon the decision of this Court in A.R. Antulay vs R.S Nayak & Anr,. [1988] Suppl. 1 SCR 1. He pointed out that by the said decision the direc tions given by this Court in its earlier decision were held to be void being without jurisdiction and the same were quashed. In view of this precedent he submitted that a similar course is open to this Court and the decision dated April 26,1991 given by this Court may also be declared as being without jurisdiction and void. In A.R. Antulay 's case (supra) two questions were specifically raised, viz., (i) whether the directions given by this Court in R.S. Nayak vs A.R. Antulay, ; , (hereinafter referred to as 'R.S Nayak 's case ') withdrawing the Special Case No.24 of 1982 and Special Case No.3 of 1983 arising out of a com plaint filed by a private individual pending in the court of Special Judge, Greater Bombay and transferring the same to the High Court of Bombay in breach of Section 7 (1) of the Criminal Law Amendment Act, 1952 (which mandates that the offences as in the said case shall be tried by a Special Judge only) thereby denying at least one right of appeal to the appellant, was violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal and, (ii) if such directions were not valid or legal, whether in view of the subsequent orders passed by this 560 Court on 17th of April, 1984 in a writ petition challenging the validity of the order and judgment of this Court in R.S. Nayak 's case whereby this Court had dismissed the writ petition without prejudice to the right of the petitioner 10 approach this Court with an appropriate review petition or to file any other application which he may be entitled in law to file, the appeal filed was sustainable and the grounds of the appeal were justiciable. The latter question was further explained by stating that the question was whether the directions given in R.S. Navak 's case in a proceedings interparties were binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such were immune from correction by this Court even though they caused prejudice and did injury. It may be stated here that the said proceedings had come before this Court by way of a special leave petition against an order passed by the learned Judge of the High Court to whom the said case came to be assigned subsequently in pursuance of the directions given in R.S. Nayak 's case. By the order passed by the learned judge, as many as 79 charges were framed against the appellant and it was decided not to proceed against other named coconspirators. In the special leave petition filed to challenge the said order, two questions which we have stated above were raised and leave was granted. This Court in that case held that (i) the directions given by this Court in R.S. Nayak 's case were violative of the limits of jurisdic tion of this Court since this Court could not confer juris diction on a High Court which was exclusively vested in the Special Judge under the provisions of the criminal Law Amendment Act of 1952; (ii) the said directions deprived the appellant of his fundamental rights guaranteed under Arti cles 14 and 21 of the Constitution since the appellant had been treated differently from other offenders and he was deprived of a right of appeal to the High Court; (iii) the directions were issued without observing the principle of audi alteram partem and (iv) the decision given was per incuriam. Shri Shanti Bhushan urged that since in that case this Court had quashed its own earlier directions on the ground that the High Court had no jurisdiction to try the offence and this Court could not confer such jurisdiction on it, in the present case also the decision of the Court dated April 26, 1991 may be ignored for having proceeded on the basis that the Tribunal had jurisdiction to pass interim relief when it had no such jurisdiction. We are afraid that the facts in A.R. Antulay 's case (supra) are peculiar and the decision has to be confined to those special facts. As this court has pointed out in the said decision, in the first instance, the directions which were given for withdrawing the case from the Special Judge to the High Court were without hearing the appellant. Those directions deprived the appellant of a right of appeal to the High Court and thus were prejudicial to him. There was, therefore, a manifest breach of the 561 rule of audi alteram paneto. Secondly, while giving the impugned directions, the Court had not noticed that under the said Act of 1952, the Special Judge had an exclusive jurisdiction to try the offence in question and this being a legislative provision, this court could not confer the said jurisdiction on the High Court. The Court also pointed out that to the extent that the case was withdrawn from the Special Judge find sent to the High Court, both Articles 14 and 21 were violated. The appellant was discriminated against and the appellant 's right of appeal which was an aspect of Article 21 was affected. It would, thus, appear that not only the directions given by this Court were with out jurisdiction but they were also per incuriam and in breach of the principles of natural justice. They were further violative of the appellant 's fundamental rights under Articles 14 and 21 of the Constitution. None of the said defects exists in the decision of this Court dated April 26, 1991. It cannot be said that this Court had not noticed the relevant provisions of the The Court after perusing the relevant provi sions of the Act which were undoubtedly brought to its notice, has come to the conclusion that the Tribunal had jurisdiction to grant interim relief when the question of granting interim relief formed part of the Reference. There is further no violation of any of the principles of natural justice or of any provision of the Constitution. The deci sion also does not transgress the limits of the jurisdiction of this Court. We are, therefore, of the view that the decision being inter parties operates as res judicata on the said point and it cannot be reopened. We, however, agree with the contention that it is not necessary to answer the first part of Question 3. The con text in which all the questions are referred to as and the preamble of the Reference amply bear out that the questions have been raised against the background a particular set of facts. These facts have no bearing on the first part of Question 3 which is theoretical in nature. It is also legit imate to conclude that this part of the question was not prompted by the need to have a theoretical answer to compre hend situations in general. Our answer to the second part of the question should meet the exigencies of the situation. Question No. 2: 25. Coming now to Question 2, although the question is split into two parts, they deal with the same aspect of the sub ject inasmuch as the answer to the first part would automat ically answer the second part of the question. This situa tion, like the first question, relates to the specific order of the Tribunal dated June 25, 1991. Hence, our opinion will have to be he legal merits of the said order. 562 Sub section (1) of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute but any matter appearing to be connected with or relevant to it. It cannot be disputed that a request for an interim relief whether in the nature of mandatory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to pre vent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute. In fact, this Court, by its said decision of April 26, 1991, has in terms held that the request of the State of Tamil Nadu for granting interim relief had been referred by the Central Government to the Tribunal and directed the Tribunal to consider the request on merits, the same being a part of the Reference. Hence the order of the Tribunal will be a report and decision within the meaning of Section 5 (2) and would have, therefore, to be published under Section 6 of the Act in order to make it effective. One of the contentions advanced in this behalf was that the Order of the Tribunal dated June 25, 1991 does not purport to be and does not state to be a report and deci sion. It only states that it is an order. Secondly, the said order cannot be report and decision within the meaning of Section 5 (2) of the Act because: (i) the Tribunal can make report only after final adjudication of the dispute and there cannot be adjudication without investigation. There is no provision for interim investigation and interim finding and report; (ii) the Tribunal could not have made the report because its own showing: (a) pleadings were not complete, parties had not yet placed on record all their documents and papers etc.; (b) there was no investigation of the matters, the investigation could have been done only after disclosure of documents followed by a detailed hearing, the evidence and arguments of the parties and judicial finding in conso nance with natural justice; (c) the assessors appointed to assess on the technical matters conducted their proceedings without consultation with the engineers of the State. Some times the engineers of Tamil Nadu were called for consulta tion in the absence of engineers of Karnataka. The summoning of documents and information by the assessors was also casual and did not conform to the principles of natural justice and fair play. A copy of the advice given by the assessors to the members of the Tribunal was not made avail able to the parties; (d) the Tribunal has stated "at this stage it would not be feasible nor reasonable to determine how to satisfy the needs of each State to the greatest possible extent with the minimum detriment to others". Such an approach is contrary to the concept of an investigation contemplated by the Act and hence no interim order for interim relief could be made on such investigation not contemplated under the Act before making any order; (ii) it is only the decision which find 563 support from the report of the Tribunal which in turn must be the result of a full and final investigation in full which is required to be published under Section 6 of the Act and not an order such as the one passed by the Tribunal. The present order is neither a decision nor an adjudication and hence cannot be published. The contention that since the Order does not say that it is a report and decision and, therefore, it is not so under Section 5(2) of the Act is to say the least facetious. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. As is pointed out a little later the con tents of the Order clearly show that it is a report and a decision within the meaning of Section 5(2). Some of the aforesaid submissions relate to the merits of the Order passed and its consequences rather than to the jurisdiction and the power of the Tribunal to pass the said Order. While giving our opinion on the present question, we are not concerned with the merits of the order and with the question whether there was sufficient material before the Tribunal, whether the Tribunal had supplied the copies of the advice given by the assessor to the respective parties and whether it had heard them on the same before passing the Order in question. The limited question we are required to answer is whether the order granting interim relief is a report and a decision within the meaning of Section 5(2) and is required to be published in the official Gazette under Section 6 of the Act. It is needless to observe in this connection that the scope of the investigation that a Tribu nal or a court makes at the stage of passing an interim order is limited compared to that made before making the final adjudication. The extent and the nature of the inves tigation and the degree of satisfaction required for grant ing or rejecting the application for interim relief would depend upon the nature of the dispute and the circumstances in each case. No hard and fast rule can be laid down in this respect. However, no Tribunal or court is prevented or prohibited from passing interim order on the ground that it does not have at that stage all the material required to take the final decision. To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is made. Hence, it will have to be held that the Tribunal constituted under the Act is not prevented from passing an interim order or direction, or granting an interim relief pursuant to the reference merely because at the interim stage it has not carried out a complete investigation which is required to be done before it makes its final report and gives its final decision. It can pass interim orders on such material as according to it is appropriate to the nature of the interim order. 564 28. The interim orders passed or reliefs granted by the Tribunal when they are not of purely procedural nature and have to be implemented by the parties to make them effec tive, are deemed to be a report and a decision within the meaning of Sections 5 (2) and 6 of the Act. The present Order of the Tribunal discusses the material on the basis of which it is made and gives a direction to the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC of water is available in Tamil Nadu 's Mettur reservoir in a year from June to May. It makes the order effective from 1st July, 1991 and also lays down time table to regulate the release of water from month to month. It also provides for adjustment of the supply of water during the said period. It further directs the State of Tamil Nadu to deliver 6 TMC of water for the Karaikal region of the Union Territory of Pondicherry. In addition, it directs the State of Karnataka not to increase its area under irrigation by the waters of the river Cauvery beyond the existing 11.2 lakh acres. It further declares that it will remain operative till the final adjudication of the dispute. Thus the Order is not meant to be merely declarato ry in nature but is meant to be implemented and given effect to by the parties. Hence, the order in question constitutes a report and a decision within the meaning of Section 5 (2) and is required to be published by the Central Government under Section 6 of the Act in order to be binding on the parties and to make it effective. The contention that Section 5 (3) of the Act cannot apply to the interim orders as it is only the final decision which is meant to undergo the second reference to the Tribu nal provided for in it has no merit. If the Tribunal has, as held above, power to make an interim decision when a refer ence for the same is made, that decision will also attract the said provisions. The Central Government or any State Government after considering even such decision may require an explanation or guidance from the Tribunal as stated in the said provisions and such explanation and guidance may be sought within three months from the date of such decision. The Tribunal may then reconsider the decision and forward to the Central Government a further report giving such explana tion or guidance as it deems fit. In such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective. We see, therefore, no reason why the provisions of Section 5(3) should prevent or inca pacitate the Tribunal from passing the interim order. Once a decision, whether interim or final, is made under Section 5(2) it attracts the provisions both of subSection (3) of that Section as well as the provisions of Section 6 of the Act. As pointed out earlier, the present Order having been made pursuant to the decision of this Court dated April 26, 1991 in C.As. Nos.303 04 of 565 1991 on a matter which was part of the Reference as held by this Court in the said decision, cannot but be a report and a decision under Section 5(2) and has to be published under Section 6 of the Act to make it effective and binding on the parties. This legal position of the said order is not open for doubt. To question its efficacy under the Act would be tantamount to flouting it. Before concluding we may add that the question whether the opinion given by this Court on a Presidential Reference under Article 143 of the Constitution such as the present one is binding on all courts was debated before us for a considerable length of time. We are, however, of the view that we need not record our opinion on the said question firstly, because the question does not form part of the Reference and secondly, any opinion we may express on it would again be advisory in nature. We will, therefore, leave the matter where it stands. It has been held adjudicatively that the advisory opinion is entitled to due weight and respect and normally it will be followed. We feel that the said view which holds the field today may usefully continue to do so till a more opportune time. Our opinion on the questions referred to us is, there fore, as follows:. Question No.1. The Karnataka Cauvery Basin Irrigation Pro tection Ordinance, 1991 passed by the Governor of Karnataka on 25th July, 1991 (now the Act) is beyond the legislative competence of the State and is, therefore, ultra vires the Constitution. Question No.2. (i) The Order of the Tribu nal dated June 25, 1991 constitutes report and decision within the meaning of Section 5 (2) of the ; (ii) the said Order is, therefore, required to be published by the Central Gov ernment in the official Gazette under Section 6 of the Act in order to make it effective. Question No.3. (i) A Water Disputes Tribu nal constituted under the Act is competent to grant any interim relief to the parties to the dispute when a reference for such relief is made by the Central Government; (ii) whether the tribunal has power to grant interim relief when no reference is made by the Central 566 Government for such relief is a question which does not arise in the facts and circumstances under which the Reference is made. Hence we do not deem it necessary to answer the same.

In pursuance of the directions given by this Court in a Writ Petition filed by the Tamil Nadu Ryots ' Association, the Union Government, by its notification dated June 2, 1990, constituted the Cauvery Water Disputes Tribunal under Section 4 of the for adjudication of the dispute regarding sharing of water of the inter State river Cauvery between the States of Karnata ka, the upper riparian State, Tamil Nadu, the lower riparian State, and Kerala and the Union Territory of Pondicherry. By another notification of the same date, it also referred the water dispute emerging from the Letter of Request lodged by the State of Tamil Nadu under Section 3 of the Inter State Water Disputes Act with the Central Government on the fail ure of the negotiations between the parties in this regard, for reference of the dispute to a Tribunal for adjudication. In the Letter of Request the State had made a grievance against construction of works in Karnataka area and the appropriation of water upstream so as to prejudice the interests downstream in the State of Tamil Nadu, and also sought the implementation of the agreements of 1892 and 1924, which had been entered into when most of the areas in these States comprised in the then Presidency of Madras and the then State of Mysore. The last of the agreements had expired in 1974 and though the understanding of 1976 had been reached, further negotiations in the matter had failed and hence the State of Tamil Nadu had lodged the aforesaid Letter of Request. Before the Tribunal, the State of Tamil Nadu submitted an application for interim relief praying that State of Karnataka be directed not to impound or utilise water of Cauvery river beyond the extent impounded or utilised by them as on 31.5.1972, as agreed to by the Chief Ministers of the basin States and the concerned Union Minister and an order restraining Karnataka from undertak 499 ing any new projects, dams, reservoirs, canals and/or from proceeding further with the construction of those already commenced in the Cauvery basin. The Union Territory of Pondicherry also sought a direction both to Karnataka and Tamil Nadu to release the water already agreed to during the months of September to March. Meanwhile, Tamil Nadu filed an urgent petition to direct Karnataka, as an emergent measure, to release at least 20 TMC of water as the first instalment, pending final orders on their interim application. Besides contesting the application on merits, both Karnataka and Kerala raised a preliminary objection that the Tribunal constituted under the Act had a limited jurisdic tion, and had no inherent powers as an ordinary Civil Court has, and there was no provision of law which authorised or conferred jurisdiction on the Tribunal to grant any interim relief. The Tribunal held that since the question of grant ing interim relief was not referred to it, the applications interim relief were not maintainable. On appeal by the State of Tamil Nadu and the Union Territory of Pondicherry, this Court held that reliefs prayed for in the applications for interim relief and direc tions, were covered in the reference and fell within the purview of the dispute referred to it by the Central Govern ment under Section 5 of the later State Water Disputes Act. Accordingly, the Court directed the Tribunal to decide the applications for interim relief and directions on merits. Rejecting the objections once again raised by the State of Karnataka, as regards the maintainability of the applica tions for interim relief, the Tribunal passed an order directing the State of Karnataka, to ensure that 205 TMC water was available in Tamil Nadu 's Mettur reservoir every year. Tamil Nadu was also directed to deliver to Pondicherry 6 TMC water. The Tribunal also directed Karnataka not to increase its area under irrigation by the waters of Cauvery, beyond the existing area. The order was to remain operative till the final adjudication of the dispute referred to it. The Tribunal 's order thus gave rise to the issuance of the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 by the State of Karnataka nullifying the Tribunal 's order. The ordinance was subsequently replaced by Act No. 27 of 1991. 500 The State of Karnataka also instituted a suit under Article 131 against the State of Tamil Nadu and others for a declaration that the Tribunal 's order granting interim relief was without jurisdiction and, therefore, null and void, etc. Under these circumstances, the President of India made a Reference to this Court under Article 143(1) of the Consti tution seeking advisory opinion on: (a) whether the Ordi nance and the provisions thereof were in accordance with the provisions of the Constitution, (b) whether the Tribunal 's order constituted a report and a decision within the meaning of Section 5(2) of the , and whether the same was required to be published by the Govern ment of India in order to make it effective, and (c) whether a Water Disputes Tribunal constituted under the Inter State Water Disputes. Act was competent to grant any relief to the parties to the dispute. It was contended on behalf of the State of Karnataka that the legislation clearly fell within the competence of the State Legislature under Entry 17 as well as Entries 14 and 18 of List II in the Seventh Schedule of the Constitu tion and the State Legislature had every right to legislate on the subject and this legislative power was subject only to Entry 56 of List I which, however, did not denude the States of the power to legislate under Entry 17, and, in the absence of the constitution of a River Board for Cauvery, as envis aged under Entry 56, the State retained full legisla tive power to make laws as if Entry 17 had remained un touched; that the executive power of the Union under Article 73 could not extend to any State with respect to matters on which the State alone could legislate, in view of the field having been covered by Article 162 of the Constitution; that since the Inter State River Disputes Act enacted under Article 262 of the Constitution did not attract any Entry in List I, it was law essentially meant to provide for the adjudication of a dispute with respect to the use, distribu tion or control of waters of, or in, any inter State river or river valley and did not, therefore, step on the toe of Entry 17, that the Ordinance, which became Act subsequently, only sought to impose by section 3, a duty on the State Government to protect, preserve and maintain irrigation from Cauvery waters in the irrigable areas failing within the various projects specified in the Schedule to the said legislation, and, therefore, the legislation was clearly within the scope of the State 's power to legislate and was intra vires the Constitution. A fortiori, the power to legislate conferred on the State Legislature by Entries 14, 17 and 18 of List 501 II, could not be inhibited by an interim order of the Tribu nal, since the scheme of the Act envisaged only one final report or decision of the Tribunal under section 5(2) which would have to be gazetted under section 6 thereof, and therefore, it was open to the Karnataka Legislature to make a law ignoring or overriding the interim order of the Tribu nal; that the scheme of the Act did not envisage the making of an interim order by the Tribunal; once a water dispute was referred to the Tribunal, it must 'investigate ' the matters referred to it and forward a report to the Central Government setting out the facts found by it and giving its decision on the matters referred to it, and the Central Government must publish this decision in the official ga zette to make it final and binding on the parties to the dispute, and since the interim order was not preceded by such an investigation, the said order could not be described as 'a decision ' under section 5(2) of the Act, and conse quently, the Central Government was under no obligation to publish the interim order, that the words 'any matter ap pearing to be connected with or relevant to water dispute ' employed in section 5(1) of the Act did not contemplate reference of an interim relief matter, nor could the same empower the Tribunal to make an interim order pendente lite, and, therefore, having regard to the purpose, scope and intendment of the Act, the Tribunal constituted thereunder had no power or authority to grant any interim relief which would have the effect of adversely interfering with its existing rights, although while finally adjudicating the dispute it could override any executive or legislative action taken by the State, and since the allocation of flow of waters between the concerned States was generally based on the principle of 'equitable apportionment ', it was incum bent on the Tribunal to investigate the facts and all rele vant materials before deciding on the shares of the con cerned States which was not possible at the interim stage and hence the legislature had advisedly not conferred any power on the Tribunal to make an interim order affecting the existing rights of the concerned parties, and that the President could refer any question of law under Article 143 and therefore, also ask the Supreme Court to reconsider any of its decisions. In its written statement, the State of Kerala, by and large, supported the stand of the State of Kerala. However, subsequently it was submitted that since neither the scheme of the Act conferred any power on the Tribunal to make an interim order nor the scope of Article 262 read with the scheme of Act contemplated making of a Reference in that regard, the only remedy available to a State 502 which apprehended any action by the upper riparian State likely to adversely affect the rights of its people, was to move the Supreme Court under Article 131 of the Constitu tion, notwithstanding the provisions of Article 262 and section 11 of the Act; and accordingly, this Court 's view that there was a Reference to the Tribunal for grant of interim relief was not consistent with the true meaning and scope of Article 262 and the provisions of the Act and this Court should not feel bound by it. The State of Tamil Nadu contended that ordinarily a dispute between two or more States would be governed by Article 131 of the Constitution and, subject to the provi sions of the Constitution, the Supreme Court alone would have jurisdiction if and in so far as the dispute involved any question whether of law or fact on which the existence or extent of a legal right depended, that the Tribunal was required to perform a purely judicial function which, but for Article 262 and section 11 of the , would have been performed by a court of law, that since the Tribunal was a substitute for the Supreme Court, it was reasonable to infer that all the powers exer cised by the Supreme Court under Article 131 could be exer cised by the Tribunal while adjudicating a water dispute and, therefore, the ancillary and incidental power to grant interim relief inhered in such a Tribunal without the need for an express provision or any specific reference to it in that behalf; that apart, the decision of this Court dated 26th April, 1991 that the reference to the Tribunal included the question of grant of interim relief operated as res judicata and was binding on the contesting parties regard less of the view that this Court might take on the generali ty of the question referred for decision; if the question of granting of interim relief formed part of the Reference, the Tribunal was duty bound to decide the same and even other wise, it had inherent jurisdiction to grant interim relief, whether or not the question regarding grant of interim relief was specifically referred, and therefore, its deci sion would constitute a report under section 5(2) of the Act and was liable to be published in the official Gazette as required by section 6; that if there was any ambiguity in the interim order the same could be taken care of under section 5(3) of the Act; that the Ordinance in question was ultra rites the Constitution for diverse reasons; the real object and purpose was to unilaterally nullify the Tribu nal 's interim order after having failed in the first round of litigation; the State of Karnataka had no right to uni laterally decide the quantum of water it would appropriate or the extent to which it would diminish the flow of Cauvery waters to 503 the State of Tamil Nadu and thereby deny to the people of Tamil Nadu their rightful share in the Cauvery waters; the right to just and reasonable use of water being a matter for adjudication by the Tribunal, no single State could, by the use of its legislative power arrogate unto itself the judi cial function of equitable apportionment and decide for itself the quantum of water it would use from the inter State river regardless of the prejudice it would cause to the other State by its unilateral action; such a power could not be read in Entry 17 as it would be destructive of the principle that such water disputes were justiciable and must be left for adjudication by an independent and impartial special forum to which it was referred, namely, the Tribunal constituted for resolving the dispute, and not by unilateral executive or legislative interference, and, therefore, the object of the legislation not being bona fide, the same could not be allowed to stand as it had the effect of over ruling a judicial order passed by a Tribunal specially appointed to adjudicate on the water dispute between the parties thereto; it sought to override or neutralize the law enacted by Parliament in exercise of power conferred by Article 262 and not Article 246 read with the relevant entry in the Seventh Schedule) of the Constitution; a State Legislature could have no power to legislate with regard to a water dispute as it would be incongruous to confer or infer such power in a State Legislature to destroy what a judicial body has done under a Central law; it had extra territorial operation, in that, it directly impinged on the rights of the people of Tamil Nadu to the use of Cauvery waters; it was also contrary to the Rule of Law, and a power not comprehended even by Article 262 could not be read into the legislative power of the State for it would pervert the basic concept of justice; and was also violative of the fundamental rights of the inhabitants of Tamil Nadu guaran teed by Articles 14 and 21 of the Constitution, in that, the action of Karnataka was wholly arbitrary and in total disre gard of the right to life of those inhabitants in Tamil Nadu who survived on Cauvery waters; it was further contended that in a civilised society governed by the Rule of Law, a party to a 'lis ' water dispute could not be allowed to arrogate to itself the right to decide on the dispute or to nullify an interim order made by a Tribunal in obedience to the decision of the apex court, by abusing the legislative power under Entry 17 under which the legislation purported to be; moreover, the jurisdiction of this Court under Arti cle 143 of the Constitution was discretionary and this Court should refrain from answering a Reference which was in general terms without background facts and was likely to entail a roving inquiry which may ultimately prove academic only; secondly, 504 the State of Karnataka had immediately after the interim order instituted a suit in this Court in which it had prayed for a declaration that the interim order of the Tribunal dated 25th June, 1991 was without jurisdiction, null and void, and for setting aside the said order; while on the one hand, the decision of this Court had become final and was res judicata between the parties thereto, on the other hand, the State of Karnataka was raking up the same question of jurisdiction before this Court in a substantive suit with a view to over reaching this Court 's earlier order; the Presidential Reference in terms referred to disputes and differences having arisen out of the Tribunal 's interim order which was said to have given rise to a public contro versy likely to result in undesirable consequences; such matters could be effectively countered by the concerned Government and did not call for a Presidential Reference; if there was any doubt or difficulty in the implementation of the order in question, recourse could always be had to section 5(3) of the Act and hence, this Court should refuse to answer the Reference. The Union Territory of Pondicherry, contended that the promulgation of the Ordinance (now Act) was intended to further protract the long standing water dispute which came to be referred to the Tribunal only after this Court issued a mandamus in that behalf and was likely to prejudicially affect the interest of the State as well as the farmers and other inhabitants who utilised the water from river Cauvery, that the said legislation was unconstitutional and was a piece of colourable legislation, that in the case of flowing water the riparian States had no ownership or proprietary right therein except in the usufruct thereof and, therefore, the power to legislate therein under Entry 17 of List II could extend to only the usufructuary right subject to the right of a riparian State to get the customary quantity of water; that the Ordinance was also void for repugnancy, being in conflict with the Central legislation, and also violative of Article 21 of the Constitution as it was in tended to diminish the supply of water to Tamil Nadu and Pondicherry, which was also against the spirit of Articles 38 and 39 of the Constitution,that since the water dispute referred to the Tribunal comprised the issue regarding the grant of interim relief, as held by this Court, the interim order made by the Tribunal constituted a report within the meaning of section 5(2) of the Act and, consequently, the Central Government was obliged to publish it, as required by section 6 of the Act: and when so published it would operate as a decision in rem: but even without publication it was binding, on Karnataka as a decision in personam since the jurisdiction of all courts including 505 the Supreme Court was taken away by virtue Of section 11 of the Act read with Article 262(2) of the Constitution, and the Tribunal had all attributes of a Court; it was required to discharge the judicial function of adjudicating a water dispute between two or more States and must be deemed to possess the inherent incidental and ancillary power to grant interim relief which inhered in all such judicial bodies, and absence of an express provision in that behalf did not detract from the view that such power inhered in a Tribunal. Six intervention applications were also filed by differ ent persons and bodies from Karnataka, including the Advo cate General of the State in support of the case of Karnata ka. An intervention application raising the contentions similar to those of State of Tamil Nadu was also filed by the Tamil Nadu Ryots ' Association which had preferred the original Writ Petition on which a mandate to constitute the Tribunal was given. Answering the Reference, this Court, HELD: 1.1 The Karnataka Cauvery Basin Irrigation Protection Ordinance 1991 promulgated by Governor of Karna taka on 25th July, 1991 (subsequently enacted by the State Legislature as Act No. 27 of 1991) is beyond the legislative competence of the State and, is therefore, ultra vires the Constitution. [565 E] 1.2 The object of the provisions of the Ordinance is obvious coming close on the Order of the Tribunal and in the context of the stand taken by the State of Karnataka that the Tribunal has no power or jurisdiction to pass any inter im relief, it is to override the said decision of the Tribu nal and its implementation. The Ordinance has thus the effect of defying and nullifying any interim order of the Tribunal appointed under a law of the Parliament. The other effect of the Ordinance is to reserve to the State of Karna taka exclusively the right to appropriate as much of the water of river Cauvery and its tributaries as it deems requisite and in a manner and at periods it deems fit and proper, although pending final adjudication by the Tribunal. [546 F G] 1.3 The Ordinance affects the jurisdiction of the Tribu nal appointed under the Central Act, viz., the inter State Water Disputes Act, which has been made under Article 262 of the Constitution. 506 The State of Karnataka has arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the interim order or not and whether the order is binding on it or not. The State has presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequences of such action on the lower riparian States, that it has supe rior rights over the said waters and it can deal with them in any manner, and the lower riparian States have no equita ble rights and that it is the sole judge as to the share of the other riparian States in the said waters. Moreover, it has assumed the role of a judge in its own cause. [552 C, F G] 1.4 Apart from the fact that the Ordinance directly nullifies the decision of the Tribunal, it also challenges the decision of this Court, which has ruled that the Tribu nal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordi nance further has an extra territorial operation inasmuch as it interferes with the equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river. To the extent that the Ordinance interferes with the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made, but being also in conflict with the judicial power of the State. 1552 H, 553 A] 1.5 The legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large but it cannot set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal. [554 H, 555 A] Municipal Corporation of the City of Ahmedabad etc. vs New Shorock Spg. & Wvg. Co. Ltd. etc. ; ; Madan Mohan Pathak vs Union of India & Ors. ; , and P. Sambamurthy & Ors. vs State of Andhra Pradesh & Anr., ; , referred to. 1.6 Any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to 507 nullify the order of the Tribunal, it impinges upon the judicial power of the State. [555 C D] 1.7 Further, admittedly, the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and Pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra territorial operation, and is thus beyond the legisla tive competence of the State and is ultra vires the provi sions of Article 245(1) of the Constitution. [555 E] 1.8 The Ordinance is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issu ing the Ordinance has sought to take law in its own hand and to be above the law. Such an act is an invitation to law lessness and anarchy, inasmuch as the Ordinance is a mani festation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power of a State to issue such an Ordinance is upheld it will lead to the break down of the Constitutional mechanism and affect the unity and integrity of the nation. [555 F G] 2.1 Under Article 131, this Court has original jurisdic tion, among other things, in any dispute between two or more States where the dispute involves any question whether of law or fact on the existence and extent of which a legal right depends except those matters which are specifically excluded from the said jurisdiction by the proviso. However, the Parliament has also been given power by Article 262 of the Constitution to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any dispute or complaint with respect to the use, distribution or control of the water of, or in, any inter State river or river valley. Section 11 of the , has in terms provided for such exclusion of the jurisdiction of the Courts. Thus, Section 11 of the Act read with Article 262 excludes original juris diction of the inter State water dispute which may be re ferred to the Tribunal established under the Act from the purview of any Court including the Supreme Court under Article 131. 1544 H, 545 A B] 2.2 The has been enacted only under Article 262 of the Constitution, and not under Entry 56, 508 as it relates to the adjudication of the disputes and with no other aspect either of the inter State river as a whole or of the waters in it. [550 G] 2.3 Entry 56 speaks of regulation and development of interState rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Even assuming that the ex pression "regulation and development" would in its width, include resolution of disputes arising out therefrom and a provision for adjudicating them, the Act does not make the declaration required under Entry 56. This is obviously not an accidental omission, but a deliberate disregard of the Entry since it is not applicable to the subject matter of the legislation. Further no Entry in either of the three Lists refers specifically to the adjudication of disputes with regard to inter State river waters, the reason being that Article 262 of the Constitution specifically provides for such adjudication. [547 A C] 2.4 An analysis of Article 262 shows that an exclusive power is given to the Parliament to enact a law providing for the adjudication of disputes or complaints relating to "use, distribution or control" of the waters of, or in any inter State river or river valley. The words "use", "distri bution" and "control" are of wide import and may include regulation and development of the said waters. The provi sions clearly indicate the amplitude of the scope of adjudi cation, inasmuch as it would take within its sweep the determination of the extent, and the manner, of the use of the said waters, and the power to give directions in respect of the same. [508 F G] 2.5 The language of the Article has, further to be distinguished from that of Entry 56 and Entry 17. Whereas Article 262(1) speaks of adjudication of any dispute or complaint and that too with respect to the use, distribution or control of the waters of or in any inter State river or river valley, Entry 56 speaks of regulation and development of inter State rivers and river valleys. Thus, the distinc tion between Article 262 and Entry 56 is that whereas former speaks of adjudication of disputes with respect to use, distribution or control of the waters of any inter State river or river valley, Entry 56 speaks of regulation and development of inter State rivers and river valleys. Entry 17 likewise speaks of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56. It does not speak either of adjudication of disputes or of an 509 inter State river as a whole and State can only deal with water within its territory. [547 H, 548 A C] 2.6 The Inter State Disputes Act, 19S6 is made pursuant to the provisions of Article 262 specifically for adjudica tion of the disputes between the riparian States with regard to the use, distribution or control of the waters of the inter State rivers or river valleys, and is not relatable to Entry 56 and, therefore, does not cover either the field occupied by Entry $6 or by Entry 17. Since the subject of adjudication of the said disputes is taken care of specifi cally and exclusively by Article 262, by necessary implica tion the subject stands excluded from the field covered by Entries 56 and 17. It is not, therefore, permissible either for the Parliament under Entry $6 or for a State legislature under Entry 17 to enact a legislation providing for adjudi cation of the said disputes or in any manner affecting or interfering with the adjudication established by law under Article 262. This is apart from the fact that the State legislature would even otherwise be incompetent to provide for adjudication or to affect in any manner the adjudicatory process or the adjudication made in respect of the inter State river waters beyond its territory or with regard to disputes between itself and another State relating to the use, distribution or control of such waters. Any such act on its part will be extra territorial in nature and, therefore, beyond its competence. [549 C F] 2.7 It is not correct to say that it is Entry 97 of the Union List,which deals with the topic of use, distribution and control of the waters of an inter State river. This is so because the expression "regulation and development of inter State rivers and river valleys" in Entry 56 would include the use, distribution and allocation of the waters of the inter State rivers and river valleys between differ ent riparian States. Otherwise, the intention of the Con stituent Assembly to provide for the Union to take over the regulation and development under its control makes no sense and serves no purpose. Further, the , which is admittedly enacted under Entry 56 for the regula tion and development of inter State rivers and river val leys, does cover the field of the use, distribution and allocation of the waters of the inter State rivers and river valleys, indicating that the expression "regulation and development" in Entry 56 has legislatively also been con strued to include the use, distribution or allocation of the waters of the inter State rivers and river valleys between riparian States. To contain the operation of Entry 17 to the waters of an inter State river and river valleys 510 within the boundaries of a State and to deny the competence to the State legislature to interfere with or to affect or to extend to the use, distribution and allocation of the waters of such river or river valley beyond its territory, directly or indirectly, it is not necessary to fail back on the residuary Entry 97, as an appropriate declaration under Entry 56 would suffice. The very basis of a federal Consti tution mandates such interpretation and would not bear an interpretation to the contrary which will destroy the con stitutional scheme and the Constitution itself. Although, therefore, it is possible technically to separate the "regulation and development" of the interState river and river valley from the "use, distribution and allocation" of its waters, it is neither warranted nor necessary to do so. [549 G, 550, B F] 2.8 Though the waters of an inter State river pass through the territories of the riparian States such waters cannot be said to be located in any one State. They are in a state of flow and no State can claim exclusive ownership of such waters so as to deprive the other States of their equitable share. Hence in respect of such waters, no State can effectively legislate for the use of such waters since its legislative power does not extend beyond its territo ries. It is further an acknowledged principle of distribu tion and allocation of waters between the riparian States that the same has to be done on the basis of the equitable share of each State. What the equitable share will be will depend upon the facts of each case. [551 H, 552 A B] 3.1 The order of the Tribunal dated 25th June, 1991 granting interim relief constitutes a report and a decision within the meaning of Section 5(2) of the . The said order is, therefore, required to be published by the Central Government in the Official Gazette under Section 6 of the Act in order to make it effective. [565 F G] 3.2 Sub section (1) of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute, but any matter appearing to be connected with or relevant to it. A request for an interim relief, whether in the nature of mandatory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute. In fact, this Court, by its decision of April 26, 1991, has in terms held that the request of the State of Tamil Nadu for granting interim relief had been referred by the Central Government to the Tribunal and directed the Tribunal to 511 consider the request on merits, the same being a part of the Reference. Hence the order of the Tribunal will be a report and decision within the meaning of Section 5(2) and would have, therefore, to be published under Section 6 of the Act in order to make it effective. [562 A C] 3.3 It is not correct to say that since the Order does not say that it is a report and decision it is not so under Section 5(2) of the Act. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. The contents of the order clearly show that it is a report and a decision within the meaning of Section 5(2). [563 B] 3.4 The scope of the investigation that a Tribunal or a Court makes at the stage of passing an interim order is limited compared to that made before making the final adju dication. The extent and the nature of the investigation and the degree of satisfaction required for granting or reject ing the application for interim relief would depend upon the nature of the dispute, and the circumstances in each case. No hard and fast rule can be laid down in this respect. However, no Tribunal or court is prevented or prohibited from passing interim orders on the ground that it does not have at that stage all the material required to take the final decision. To read such an inhibition in the power of the Tribunal or a court is to deny to it the power to grant interim relief when Reference for such relief is made. Hence, the Tribunal constituted under the Act is not pre vented from passing an interim order or direction, or grant ing an interim relief pursuant to the reference merely because at the interim stage it has not carried out a com plete investigation which is required to be done before it makes its final report and gives its final decision. It can pass interim orders on such material as according to it is appropriate to the nature of the interim order. [563 E H] 3.5 The interim orders passed or reliefs granted by the Tribunal when they are not of purely procedural nature and have to be implemented by the parties to make them effec tive, are deemed to be a report and a decision within the meaning of Sections 5(2) and 6 of the Act. [564 A] 3.6 In the instant case, Order of the Tribunal discusses the material on the basis of which it is made and gives a direction to the State of Karnataka to release water from its reservoirs in Karnataka so as to ensure that 205 TMC of water is available in Tamil Nadu 's 512 Mettur reservoir in a year from June to May. It makes the order effective from 1st July, 1991 and also lays down a time table to regulate the release of water from month to month. It also provides for adjustment of the supply of water during the said period. It further directs the State of Tamil Nadu to deliver 6 TMC of water for the Karaikal region of the Union Territory of Pondicherry. In addition, it directs the State of Karnataka not to increase its area under irrigation by the waters of the river Cauvery beyond the existing 11.2 lakh acres. It further declares that it will remain operative till the final adjudication of the dispute. Thus, the order is not meant to be merely declara tory in nature but is meant to be implemented and given effect to by the parties. Hence, the order in question constitutes a report and a decision within the meaning of Section 5(2) and is required to be published by the Central Government under Section 6 of the Act in order to be binding on the parties and to make it effective. 1564 B D] 3.7 It is not correct to say that Section 5(3) of the Act cannot apply to the interim orders as it is only the final decision which is meant to undergo the second refer ence to the Tribunal provided in it. If the Tribunal has power to make an interim decision when a reference for the same is made, that decision will also attract the said provisions. The Central Government or any State Government alter considering even such decision may require an explana tion or guidance from the Tribunal as stated in the said provisions and such explanation and guidance may be sought within three months from the date of such decision. The Tribunal may then reconsider the decision and forward to the Central Government a further report giving such explanation or guidance as it deems fit. In such cases it is the interim decision thus reconsidered which has to be published by the Central Government under Section 6 of the Act and becomes binding and effective. Therefore, there is no reason why the provisions of Section 5(3) should prevent or incapacitate the Tribunal from passing the interim order. Once a deci sion, whether interim or final, is made under Section 5(2) it attracts the provisions both of sub section (3) of that Section as well as the provisions of Section 6 of the Act. [564 E G] 4.1 A Water Disputes Tribunal constituted under the InterState Water Disputes Act is competent to grant any interim relief to the parties to the dispute when a refer ence is made by the Central Government. Whether the Tribunal has power to grant relief when no reference is made for such relief is a question which does not 513 arise in the facts and circumstances under which the Refer ence is made. 1565 H, 566 A] 4.2 This Court has held by its order dated 26th April, 1991 that the Central Government had made a reference to the Tribunal for the consideration of the claim for interim relief prayed for by the State of Tamil Nadu and hence the Tribunal had jurisdiction to consider the said request being a part of the Reference itself. Implicit in the said deci sion is the finding that the subject of interim relief is a matter connected with or relevant to the water dispute within the meaning of Section 5(1) of the Act. Hence the Central Government could refer the matter of granting inter im relief to the Tribunal for adjudication. Although this Court has kept open the question, viz., whether the Tribunal has incidental, ancillary. inherent or implied power to grant the interim relief when no reference for grant of such relief is made to it, it has in terms concluded second part of the question. [557 A C] 4.3 It is impermissible for this Court to sit in appeal even in adjudicatory jurisdiction, nor is it competent for the President to invest this Court with an appellate juris diction, over the said decision through a Reference under Article 143 of the Constitution. [557 D] 4.4 It is not correct to say that the question of grant of interim relief falls outside the purview of the provi sions of Section II of the Inter State Water Dispute Act and can be agitated under Article 131 of the Constitution. The effect of the provisions of Section I 1 of the Act read with Article 262 of the Constitution is that the entire judicial power of the State, and, therefore, of the courts including that of the Supreme Court to adjudicate upon original dis pute or complaint with respect to the use, distribution or control of the water of, or in any inter State river or river valleys has been vested in the Tribunal appointed under Section 4 of the said Act. 1555 B D] 5. It is not correct to say that the President can refer any question of law under Article 143 and, therefore, also ask this Court to reconsider any of its decisions. In the first instance, the language Of clause (1) of Article 143 is opposed to such a proposition. The clause empowers the President to refer or this Court 's opinion a question of law or fact which has arisen or is likely to arise. When this Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to 514 require the President to know what the true position of law on the question is. The decision of this Court on a question of law is binding on all courts and authorities. Hence, under the said clause the President can refer a question of law only when this court has not decided it. Secondly, a decision given by this Court can be reviewed only under article 137 read with Rule I of Order XL of the the Supreme Court Rules 1966 and on the conditions mentioned therein. When, further, this Court overrules the view of law ex pressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. [557 E H, 558 A C] The , The Ajmer Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, , distinguished. The Bengal Immunity Company Ltd. vs The State of Bihar & Ors., , relied on. Jatindra Nath Gupta vs The Province of Bihar & Ors., ; Hari Vishnu Kamath Syed Ahmad Ishaque & Ors., ; ; Delhi Judicial Service Association. Tis Hazari Court, Delhi etc. vs State of Gujarat & Ors. , JT State of Bombay vs Gajanan Mahadev Badley, AIR 1954 Bombay 351, referred to. 5.2 Under the Constitution appellate jurisdiction over the earlier decision does not vest in this Court; nor can it be vested in it the President under Article 143. If it is accepted that the President can ask this Court to reconsider any of its decisions it would mean that the advisory juris diction under Article 143 is also an appellate jurisdiction of this Court over its own decision between the same par ties and the executive has a power to ask this Court to revise its decision. If such power is read in Article 143 it would be a serious inroad into the independence of judi ciary. [558 D] 5.3 The facts in A.R.Antulay 's case arc peculiar and the decision therein has to be confined to those special facts. Further the decision being inter parties operates as res judicata and cannot be reopened. [560G, 561 E] 515 A.R.Antulay vs K.S. Nayak & Anr., [1988] Suppt. 1 SCR 1 and R. S.Nayak vs A R. Antulay; , , referred to. No opinion is expressed on the question whether the opinion given by this Court on a Presidential Reference under Article 143 of the Constitution, such as the present one, is binding on all courts, firstly, because the question does not form part of the Reference, and, secondly, any opinion expressed on it would again be advisory. However, adjudicatively it has been held by this Court that the advisory opinion is entitled to due weight and respect and normally, it will be followed. The said view holds the field today and may usefully continue to do so till a more oppor tune time. [565 C D]

Civil Appeal No. 2501 of 1972. From the Judgment and order dated 5 2 1970 of the Bombay High Court in Income Tax Reference No. 58/73. AND CIVIL APPEAL NOS. 2502 2504 OF 1972 From the Judgment and Order dated 25th/26th Feb. 1971 of the Bombay High Court in Income Tax Ref. No. 87/63. V. section Desai, Dinesh Vyas, K. J. John and Sree Narain for the Appellants in all the appeals. Hardyal Hardy, Champat Rai, B. B. Tawekley and Miss A Subhashini for the Respondent in all the appeals. The Judgment of the Court was delivered by VENKATARAMIAH, J. Since these appeals by certificate involve a common question of law, we find it convenient to dispose them of by this common judgment. 881 Civil Appeal No. 2501 of 1972 is filed against the Judgment of the High Court of Bombay in Income Tax Reference No. 58 of 1963 and Civil Appeals Nos. 2502 2504 of 1972 are filed against the judgment of that High Court in Income Tax Reference No. 87 of 1965. The assessee, M/s Sasoon J. David & Co. Pvt. Ltd. (hereinafter referred to as 'the Company ') is the appellant in all these cases and the assessment years are 1957 58, 1958 59, 1959 60 and 1960 61, the relevant calendar years being 1956, 1957, 1958 and 1959 respectively. The Company is an investment company and its shares were originally held either directly or through their nominees by Sir Percival David, Lady David and Mr. V. P. David (hereinafter collectively referred to as 'Davids '). The issued capital of the Company consisted of 1000 ordinary shares of the face value of Rs. 10,000/ each. According to the valuation made by the auditors, the assets of the Company were worth Rs. 155 lacs as on December 31, 1955. At a meeting of the directors of the Company held on December 2, 1955, a resolution was passed recommending that the employees of the Company whose names were set out in the statement attached thereto be paid certain sums or annuity as set out against the names of each of them as and by way of retrenchment compensation and compensation for termination of employment and also for long and faithful services rendered by them to the Company in the past and that their services might be terminated. It was also resolved to call an extra ordinary general meeting of the shareholders of the Company to consider and if thought fit to approve the recommendation made by the directors as stated above. Accordingly an extra ordinary general meeting of the shareholders of the Company was held on January 17, 1956 but it was adjourned to January 25,1956. On the adjourned date, the meeting passed a resolution approving the recommendation made by the directors to pay the employees retrenchment compensation and compensation for termination of employment and also additional retrenchment compensation and compensation for termination of employment in the case of some of them and to terminate their services on or after April 1, 1956. Thereafter an agreement was entered into between Davids and Tata Sons Ltd. (hereinafter referred to as 'the Tatas ') on March 23, 1956 agreeing to sell the 1000 shares held by Davids or their nominees in the Company in favour of Tatas or their nominees for a sum of Rs. 155 lacs. The said agreement inter alia provided that the sum voted by the Company for payment of gratuities and/or as compensation for loss of employment to existing directors and employees of the Company with respect to their services upto and inclusive of March 31, 1956 and a further amount of 882 Rs. 16,188/ payable to the Managing Director, Mr. Mathalone should be paid in accordance with the resolution by the Company and the amount so paid should be deducted from the purchase price of Rs. 155 lacs agreed upon. It also provided that Davids should arrange to terminate the services of all employees with effect from March 31, 1956 and also to arrange that all directors (including the Managing Director) resign their offices and Tatas or their nominees should thereafter be entitled to appoint or elect all or any of the members of the staff and directors (including existing directors and members of the staff) of the Company as they deemed fit. Of the 22 employees covered by the resolution of the directors dated December 2, 1955 followed by the confirmation at the extra ordinary general meeting of January 25, 1956, 9 were re employed and 13 persons were not re employed. In the books of the assessee, there was a debit for a total sum of Rs. 1,64,899/ during the accounting year 1956, the details for which were as follows: Amount payble to the 22 employees as per resolution dated 2 12 1955 and 25 1 1956 Rs 1,04,626/ Amount described as "additional retrechment compensation and compensation for termination of employment and also for long and faitful services", as per resolutin No. 2 dated Rs 6,000/ Compensation for termiantion of pension Rs 21,200/ Annuity of Shri A.E. Joseph, former Director as per resolsution dated 2 12 1956 Rs 16,885/ Amount described as "compensation for loss of office. Managing Director Mr. R. Mathalone" Rs 16,188/ Total : Rs 1,64,899/ It should be mentioned here that A.E. Joseph, the former Director of the Company had to be paid as per the resolution of the Company Rs. 16,885/ by way of annuity during a period of five years commencing with 1956. During the assessment year 1957 58, the relevant previous year being 1956, the Company claimed deduction of Rs. 1,64,899/ referred to above before the Income tax Officer under section 10(2) (xv) of the 883 Indian Income tax Act, 1922 (hereinafter referred to as 'the Act '). During each of the three succeeding assessment years with which we are concerned, the Company claimed deduction of Rs. 16,885/ being the annuity paid to Mr. A. E. Joseph pursuant to the resolution. During the assessment year 1957 58, the claim in respect of the entire sum of Rs. 1,64,899/ was disallowed by the Income tax Officer on the ground that the services of the directors and employees had been terminated not because of business expediency but because Tatas, the purchasers of the shares made it a condition under the agreement. The relevant part of the order read as follows: "Thus, it emerges that the expenditure of the type of gratuity would be allowable u/s 10(2) (xv) only if the persons retiring had such expectancy or they accepted lower salaries in such expectation and hence it was an incentive to existing employees of future employees. As against that we find that here even before the Tatas took up the management of the company, services of the employees and directors were terminated and the amount of compensation fixed. The fact that there was no expectancy or custom of such gratuity with the company is clearly borne out by the fact that many of the employees whose services are terminated had put in a number of years of service in some cases even going upto 40 years. As against this the assessee has been pleading that most of the employees were very old and that as a result of change of staff the Company was able to effect considerable economy. However, I understand that some of the old employees were reinstated and as stated the whole transaction was a part of the overall transaction of purchase of shares and passing over of control. The manner in which the services of all the employees under the old management were terminated is also significant. Thus I am unable to see how this expenditure can fall section 10(2) (xv). I am unable to find any distinction between compensation paid to employees and those paid to directors and also any distinction between outright compensation paid to a director and annuity paid to a director. None of the expenses are allowable and I add the whole amount claimed by way of gratuity, compensation for loss of employment and annuity or compensation for loss of office to a director or former director. " Aggrieved by the decision of the Income tax Officer, the Company filed an appeal before the Appellate Assistant Commissioner of 884 Income tax. The Appellate Assistant Commissioner after taking into account the records before the Income tax Officer and the statement filed by the Company before him found that the Income tax Officer was right in disallowing the claim even though he was of opinion that the Company had by the termination of services of the directors and the employees by payment of gratuity and/or compensation been benefited. The relevant part of his order was as follows: "The only contention remaining to be considered is that the Income tax Officer was wrong in disallowing a sum of Rs. 1,64,899/ paid to certain employees and directors as compensation for termination of services. The circumstances leading to the payment of this compensation have been narrated in detail in the order of the Income tax Officer. It is strongly urged that the termination of the services of the persons concerned was of great benefit to the Company even considering the payment of the compensation since the establishment expenses were very substantially reduced as a result. From the information furnished to me, this statement is no doubt quite justified. However, it is seen that the termination of the services and the payment of compensation were not done wholly with a view to the business requirements of the company, but were bound up with the changing of hands of the shares of the company. According to the agreement for the sale of all the shares of the company the sellers had to arrange to terminate the services of all the employees and also arrange that all directors resigned their offices. It is expressly stated that this requirement was to enable the purchasers to appoint or elect all members of the staff and directors. As a matter of fact some of the persons to whom compensation had been paid for termination of services were immediately re employed by the Company. The decision to pay compensation cannot in the circumstances be said to have been taken solely with a view to the business requirement of the company though incidentally the company might have been benefited by it. In view of what has been stated above. I feel that the Income tax Officer was justified in his action. The appellant has referred to the Bombay High Court decision in the case of F.E. Dinishaw Ltd., but the facts in the present case are not identical with those of the case mentioned. " On further appeal to the Tribunal by the Company, the Tribunal affirmed the order of the Appellate Assistant Commissioner holding 885 that the inference drawn by the Income tax Officer that the payments in question were motivated by the reorganisation of share holding had not been challenged by the Company; that the reference made to the said payments in the agreement of sale of shares led to such an inference and that the expenditure had not been incurred for the purpose of the Company but purely as a result of the bargain between Davids and Tatas. It was further held by the Tribunal that even assuming that the payments were beneficial to the Company, no deduction could be allowed since they had been made to benefit third parties. Accordingly the Tribunal dismissed the appeal. An application made under section 66(1) of the Act before the Tribunal was rejected. Thereafter the Company filed an application before the High Court of Bombay under section 66(2) of the Act and the High Court directed the Tribunal to state a case and to refer the following questions of law for its opinion: "(1) Whether the Tribunal erred in law disallowing the amount of Rs. 1,64,899/ as a deduction under section 10 of the Indian Income tax Act, 1922 ? (2) Whether there was any evidence to justify the Tribunal 's finding that the payment of Rs. 1,64,899/ or any part thereof was made in view of and in order to effectuate the agreement entered into between the old shareholders and the new shareholders and that the payment had no commercial purpose behind it ? (3) Whether in any event the sum of Rs. 16,188/ paid to the Managing Director by way of pay in lieu of six months ' notice was allowable as a deduction under section 10 of the Indian Income tax Act, 1922 ?" Accordingly, the Tribunal drew up a statement of the case and referred the above questions. Later on the Tribunal referred under section 66(1) the following question of law arising out of the orders of assessment for the assessment years 1958 59, 1959 60 and 1960 61 in respect of the annuity paid to Mr. A. E. Joseph: "Whether in computing the assessee 's business income of the accounting years 1957, 1958 and 1959, relevant for the assessment years 1958 59, 1959 60 and 1960 61, the sum of Rs. 16,885/ is an admissible deduction under section 10(2)(xv) of the Act? 886 It is not necessary to refer to the other matters involved in the orders of assessment of the years 1958 59, 1959 60 and 1960 61 and to the various stages of the cases until they reached the High Court. Income tax Reference No. 58 of 1963 arising out of the assessment proceedings of the year 1957 58 was heard by a Division Bench of the High Court of Bombay and decided on February 5, 1970. The High Court found that out of Rs. 1,64,899/ referred to in question No.1 only a sum of Rs. 21,200/ which was commutation of liability for payment of pension to some retired employees and/or widows of such employees and a sum of Rs. 16,188/ paid to Mr. Mathalone, Managing Director in lieu of six months notice that had to be given prior to termination of his service were allowable as deductions and that the Company was not entitled to claim deduction of the remaining sum of Rs. 1,27,511/ . It accordingly answered question No.1 in the negative in so far as the sum of Rs. 1,27,511/ (excluding two items of Rs. 21,000/ and Rs. 16,188/ ) was concerned, question No. 2 in the affirmative in so far as the amount aggregating to Rs. 1,27,511/ (excluding the two items of Rs. 21,200/ and Rs. 16,188/ ) was concerned and question No. 3 in the affirmative. The High Court was of the view that the expenditure of the sums amounting to Rs. 1,27,511/ paid to the employees and a director of the Company by way of retrenchment compensation or compensation for termination of service had not been incurred by the Company for commercial expediency and/or considerations. It accordingly disallowed the claim made by the Company to the extent indicated above. The Income tax Reference case arising from the assessment orders relating to assessment years 1958 59, 1959 60 and 1960 61 came before another Division Bench of the High Court and that Division Bench following the decision rendered by the High Court earlier disallowed the claim of the Company for deduction in respect of the payment of Rs. 16,885/ to Mr. A. E. Joseph in each of the accunting years relative to the assessment years in question. Aggrieved by the judgments of the High Court of Bombay, the Company has filed these appeals. We are concerned in these appeals with the claim of the Company in respect of a sum of Rs. 1,27,511/ out of Rs. 1,64,899/ referred to in questions Nos. 1 and 2 in the reference relating to the assessment year 1957 58 and the claim in respect of payment of Rs. 16,885/ made to Mr. A. E. Joseph during each of the three succeeding years. The undisputed facts of the case are: The shares of the Company 887 were held by Davids or their nominees till they were transferred to Tatas; that according to the valuation made by the auditors of the Company, its assets were worth Rs. 155 lacs as on December 31, 1955; that at a meeting of the directors held on December 2, 1955, it had been resolved that the services of 22 employees should be terminated by paying retrenchment compensation; that on January 25, 1956 at the extra ordinary general meeting of the shareholders of the Company, it was resolved that the employees of the Company be paid certain sums or annuity set out against the names of each of them and their services should be terminated with effect from April 1, 1956; that an agreement was entered into between Davids and Tatas on March 23, 1956 regarding the sale of the shares in favour of the Tatas; that the said agreement referred to the resolution passed at the meeting of the shareholders of the Company; that the Company paid retrenchment compensation according to the said resolution and that the Tatas deducted from the purchase price the sum payable by the Company in accordance with the resolution of the Company from out of the consideration of Rs. 155 lacs which they had agreed to pay under the agreement dated March 23, 1956 to Davids. Apart from the resolution of the Board of Directors of the Company dated December 2, 1955, the resolutions passed at the extra ordinary general meeting of the shareholders of the Company held on January 25, 1956, the agreement dated March 23, 1956 entered into between Davids and Tatas, the books of account of the Company showing payments made by the Company by way of retrenchment compensation and the fact that 9 of the 22 employees whose services had been terminated had been reemployed, there was no other evidence before the Income tax Officer. The Income tax Officer presumably because of the proximity of the dates of the resolutions, the date of the agreement and the dates on which retrenchment compensation was paid to the employees came to the conclusion that the retrenchment of the employees had been effected as a part of the bargain entered into between Davids and Tatas and therefore compensation paid to the employees on retrenchment of their services and to the director on the termination of his service had not been paid in the course of the business of the Company by way of commercial expediency. He accordingly disallowed the claim of the Company under section 10(2) (xv) of the Act. Although the Appellate Assistant Commissioner in the course of his order observed that the Company had been benefited by reason of the retrenchment of the service of the employees as it had resulted in the reduction of the expenditure on the establishment, he disallowed the claim on the very same ground on which the Income tax Officer had rejected it. The Triunal proceeded to dispose of the case before it on the basis that 888 the inference drawn by the Income tax Officer that the payments were motivated by the re organisation in the shareholding had not been questioned by the Company either before the Appellate Assistant Commissioner or before it. We do not find in the order of the Appellate Assistant Commissioner that any concession had been made by the Company to the effect that the finding of the Income tax Officer referred to above was correct. In the grounds of appeal before the Tribunal, the Company had stated that the Appellate Assistant Commissioner erred in holding that "the decision to pay compensation cannot in the circumstances be said to have been taken solely with a view to the business requirement of the Company though incidentally the Company might have benefited by it." The appellants submitted before the Tribunal that the above amount was expended wholly and exclusively for the purpose of their business and as such it should have been deducted as an admissiable expense in computing their income liable to income tax. The Tribunal while deciding the question whether the sums paid by way of compensation were deductible or not observed that the fact that a reference to payment to the staff of compensation had been made in the agreement led to the inference that such payment was a part of the bargain between Davids and Tatas; that on account of such payment, the purchasers had actually been benefited while the Company had to make payment in order to give effect to the agreement and therefore there was no commercial purpose involved in making the said payment. The Tribunal also held that even assuming that the Company was benefited by payment of compensation by reason of reduction in its establishment expenses, since the payment had been made as a result of the bargain between Davids and Tatas, it could not be allowed as a deductible expenditure. It should be stated here that the Tribunal did not reverse the finding of the Appellate Assistant Commissioner that the Company had been benefited by such payment. In fact it did not go into the question whether the payment had really resulted in any benefit to the Company. The High Court, however, in the course of its judgment found that on account of the retrenchment of the employees and re employment of only 9 of them, the yearly wage bill of the Company for salaries was reduced from Rs. 1,14,197/ in 1955 to Rs. 67,268/ in 1956 and thereafter in 1957 and 1958 respectively to Rs. 54,124/ and Rs. 54,960/ . In the instant case, it is necessary to bear in mind that the Company was neither dissolved nor was its business undertaking sold. It continued to exist as a juristic entity even after the transfer of its 889 shares by Davids to Tatas. On account of such transfer of shares, the transferees no doubt gained control on the Company. But one important fact of the case which was lost sight of by the High Court and the Tribunal was that neither Davids nor Tatas derived any direct benefit out of the payment of retrenchment compensation to the employees even though such retrenchment might have facilitated the transfer of shares. It is also not the case of the Department that the payment was excessive. That there was a substantial reduction in the wage bill in the future years as a consequence of retrenchment was also not disputed. It is too late in the day now, whatever may have been the position about two decades ago, to treat the expenditure incurred by a management in paying reasonable sums by way of gratuity, bonus, retrenchment compensation or compensation for termination of service as not business expenditure. Such expenditure would ordinarily fall within the scope of section 10 (2) (xv) of the Act which authorised the deduction of any expenditure not being in the nature of capital expenditure or personal expenses of the assessee laid out of expended wholly and exclusively for the purpose of business or profession or vocation. The High Court, however, declined to allow the deduction of the sums referred to above in these cases principally relying upon the decision of this Court in Gordon Woodroffee Leather Manufacturing Co. vs The Commissioner of Income tax, Madras(1). The facts of that case were briefly thus: One J. H. Phillips was the Director of the assessee Company in that case from the year 1940. On March 22, 1949, he wrote a letter to the assessee expressing his intention to resign from its Board as from April 4, 1949 and requested that his resignation be accepted. On March 24, 1949, the Board of Directors of the assessee passed a resolution that his resignation be accepted and in appreciation of his long and valuable services to the assessee he be paid a gratuity of Rs. 50,000/ out of which the assessee was to pay Rs. 40,000/ and its Managing Agent was to pay Rs. 10,000/ . Subsequently the resolution was approved at the extra ordinary general meeting of the assessee. Accordingly a sum of Rs. 40,000/ was paid by the assessee to Mr. J. H. Phillips. The assessee claimed deduction of the said sum of Rs. 40,000/ under section 10(2) (xv) of the Act. The Income tax Officer as well as the Appellate Assistant Commissioner disallowed the said claim on the ground that the Company had no pension scheme; that the payment was voluntary and that the entry in the assessee 's books clearly indicated that the payment was 890 a capital payment. The Tribunal upheld the order of the Appellate Assistant Commissioner. It held that according to the resolution the gratuity was paid "for long and valuable services to the assessee", that there was nothing to indicate that Mr. J. H. Phillips had accepted a lower salary in expectation of getting a gratuity at the end of his service; that there was no such practice in the assessee company; that during the course of his service, he was being remunerated at a graduated scale of salary and a commission of 2 1/2% on the profits; that there was no "expectancy" that at the end of the service there would be recompense for faithful and efficient service and that he had been suitably rewarded by being given a commission on the profits "in order to whip up his enthusiasm". It was also found by the Tribunal that in the books of the assessee, the amount had not been debited in the profit and loss account but was debited to the appropriation account thereby indicating that it was an extra payment or a payment made in the nature of a capital expense. On a reference under section 66(1) of the Act, the High Court of Madras answered the question relating to the above item of expenditure against the assessee. On appeal, this Court affirmed the decision of the High Court. While holding that the claim made by the assessee did not satisfy the proper tests for claiming exemption under section 10(2) (xv) of the Act, this Court observed as follows: "In our opinion the proper test to apply in this case is, was the payment made as a matter of practice which affected the quantum of salary or was there an expectation by the employee of getting a gratuity or was the sum of money expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. But this has not been shown and therefore the amount claimed is not a deductible item under section 10(2) (xv). " After quoting in the course of its judgment the above passage, the High Court proceeded to observe as follows: "Having regard to the test applicable in connection with the contentions made by Mr. Palkhiwala, what required to be investigated is whether the payments in question were made as a matter of practice which had affected the quantum of salary or whether there was an expectation by the employees (whose employment was terminated) of getting a gratuity or, in the alternative, the above sums were expended on the 891 ground of commercial expediency and in order indirectly to facilitate the carrying on of the business." After making the above observation, the High Court held that the Company had not placed any evidence to show that there was a practice in the Company to pay compensation even though its attention was drawn that in the past i.e. between 1946 and 1952, the Company had paid such compensation in two cases on the basis of one month 's basic salary for each year of service. It also rejected the case of the Company that the amount involved had been expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the Company even though it observed that the yearly wage bill of the Company was reduced after such payment. The High Court held that the consideration of reduction of the wage bill was foreign to the decision taken by the Company to terminate the services of the employees and to pay them retrenchment compensation and observed that the purpose of the payment so far as could be ascertained from the contents of the resolutions of the Board of Directors and the Company when read with the relevant contents of the agreement for sale was the carrying out of the obligation arising under the agreement. It also held that the fact the expenses became reduced was insufficient to record a finding that the amount of retrenchment compensation was paid for commercial considerations or expediency. From the perusal of the judgment of the High Court it becomes clear that the High Court placed more emphasis on the motive with which the amount was expended than the fact that the expenditure had been incurred in connection with the business of the Company and that such expenditure resulted in the reduction of the annual wage bill of the Company in the future years. In order to claim deduction under section 10(2) (xv) of the Act, an assessee has to show that the expenditure in question (i) was not an allowance of the nature described in any of the clauses (i) to (xiv) of section 10(2); (ii) was not in the nature of a capital expenditure or personal expenses of the assessee and (iii) had been laid out or expended wholly and exclusively for the purposes of his business, profession or vocation. Even assuming that the motive behind the payment of retrenchment compensation was that the terms of the agreement of the sale of shares should be satisfied, as long as the amount had been laid out or expended wholly and exclusively for the purpose of the business of the assessee, there appears to be no good reason for denying 892 the benefit of section 10(2) (xv) of the Act to the Company if there is no other impediment to do so. The facts of these cases are very close to the facts found in (i) Commissioners of Inland Revenue vs Patrick Thomson Ltd. (in liquidation), (ii) Commissioners of Inland Revenue vs J. & R. Allan, Ltd. (in liquidation), (iii) Commissioners of Inland Revenue vs Pettigrew & Stephens Ltd.(1). The respondent companies in the said cases were subsidiaries of a Company called Scottish Drapery Corporation Ltd., the control of which was acquired by the House of Fraser Ltd. Changes of organisation which were made in accordance with the policy of the House of Fraser Ltd. involved the termination of the contracts of service of the Managing Directors of the respondent companies and also the eventual liquidation of those companies. Certain sums were paid by the companies to the managing directors in connection with the cancellation of their contracts, the payments being expressed in the first two cases to be in satisfaction of rights to future remuneration, and in the third to be in lieu of notice. Before the Special Commissioners, the companies contended that the payments made by them to the Managing Directors in connection with the cancellation of their contracts had been made to relieve them from onerous contracts and were allowable deductions. The Crown contended that the payments were not expenses of the companies ' businesses but were incidental to the schemes by which those businesses were acquired by the House of Fraser Ltd. and were made primarily for the benefit of that company. The Commissioners, however, decided that the deductions claimed were allowable. Upholding the findings of the Commissioners, the Lord President observed at page 156: "In my opinion the contention put forward by the Crown is unsound and the Special Commissioners were correct in rejecting it. Admittedly in this case no question arises in regard to the words "wholly and exclusively", and if the Crown 's contention is unsound it is not disputed that the disbursement in question falls within section 137(a). To succeed in their contention the Crown must establish two matters. In the first place it must show that the liquidation involved a discontinuance of the trade carried on prior to it by the Respondent Company and the subsequent operation of a new trade carried on by House of Fraser. In the second place it must show that the expenditure in question was laid 893 out for the purposes of the new trade. Without both these steps, its argument fails. In my opinion neither step in the argument is made out. " In the present case also, it is seen that the Company continued to function even after its control passed on to the hands of Tatas and the expenditure in question was laid out for the purpose of the Company 's own trade and not for the trade of Tatas who were only the shareholders of the Company. We cannot overlook the distinction between the Company and its shareholders. As a result of the expenditure in question, the Company was in fact benefited and it was possible for it to earn more profits as a consequence of the reduction in the wage bill. It was suggested in the course of the arguments before us that Tatas were actually benefited by the payment in question because the price payable by them for the shares was reduced by the amount spent by the Company. We do not find any substance in this contention. Admittedly the assets of the Company had been valued as on December 31, 1955 at Rs. 155 lacs. Naturally the total value of the shares of the Company would be Rs. 155 lacs which Tatas had agreed to pay. Subsequent to December 31, 1955, the Company had by passing the resolution incurred the liability to pay retrenchment compensation and compensation for termination of service as stated above. On account of the said resolution, the total value of the assets of the Company was reduced by the amount payable to the employees by way of compensation. It is natural that the purchaser of the shares would ordinarily claim reduction in the consideration payable for the shares by the amount which the Company had undertaken to pay as assets of the Company became reduced to that extent. It cannot, therefore, be said that the Tatas were in any way benefited financially by reason of the reduction in the consideration payable by them for the shares. We feel that the expenditure in respect of which deduction is claimed by the Company in this case falls within the third test laid down by this Court in the case of Gordon Woodroffee Leather Manufacturing Co. vs The Commissioner of Income tax, Madras (supra) viz. that the sum of money had been expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. We are of the view that the three tests laid down by this Court in the above case viz. (i) that the payment should have been made as a matter of practice which affected the quantum of salary; (ii) that there was an expectation by the employee of getting a gratuity and (iii) that the sum of money was expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the 894 assessee have to be read disjunctively and if they are so read, the present case which satisfies the third test should be held as falling under section 10(2)(xv) of the Act. The High Court of Gujarat in Commissioner of Income tax, Gujarat vs Laxmi Cement Distributors Pvt. Ltd. (1) and the High Court of Bombay in Commissioner of Income tax, Bombay City I vs Fairdeal Corporation Pvt. Ltd.(2) and in Commissioner of Income tax, Bombay City I vs Patel Cotton Co. Pvt. Ltd.(3) have also understood the principle underlying the decision of this Court in Gordon Woodroffee Leather Manufacturing Co. vs The Commissioner of Income tax, Madras (supra) in the same way. The High Court was, therefore, in error in holding that the amount involved in the case did not satisfy the test applicable to the expenditure allowable under section 10(2) (xv) of the Act. The next contention urged on behalf of the Department was that since Davids and Tatas were indirectly benefited by the retrenchment of the services of the employees of the Company and payment of compensation to them and since there was no necessity to retrench the services of all the employees, the expenditure in question could not be treated as an expenditure laid out wholly and exclusively for business purposes of the Company. It has to be observed here that the expression "wholly and exclusively" used in section 10(2)(xv) of the Act does not mean 'necessarily '. Ordinarily it is for the assessee to decide whether any expenditure should be incurred in the course of his or its business. Such expenditure may be incurred voluntarily and without any necessity and if it is incurred for promoting the business and to earn profits, the assessee can claim deduction under section 10(2) (xv) of the Act even though there was no compelling necessity to incur such expenditure. It is relevant to refer at this stage to the legislative history of section 37 of the Income tax Act, 1961 which corresponds to section 10(2) (xv) of the Act. An attempt was made in the Income tax Bill of 1961 to lay down the 'necessity ' of the expenditure as a condition for claiming deduction under section 37. Section 37(1) in the Bill read "any expenditure. laid out or expended wholly, necessarily and exclusively for the purposes of the business or profession shall be allowed . " The introduction of the word 'necessarily ' in the above section resulted in public protest. Consequently when section 37 was finally enacted into law, the word 'necessarily ' came to be dropped. The fact that somebody other than the assessee is also benefited by the 895 expenditure should not come in the way of an expenditure being allowed by way of deduction under section 10(2) (xv) of the Act if it satisfies otherwise the tests laid down by law. This view is in accord with the following observations made by this Court in The Commissioner of Income tax, Madras vs Chandulal Keshavlal & Co. Petlad(1) "Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party (Usher 's Wiltshire Brewery Ltd. vs Bruce) Another test is whether the transaction is properly entered into as a part of the assessee 's legitimate commercial undertaking in order to facilitate the carrying on of its business; and it is immaterial that a third party also benefits thereby (Eastern Investments Ltd. vs The Commissioner of Income tax, West Bengal) ; But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. " In the instant case, it was the case of the Company that many of the employees were old and superfluous and the business could be carried on with a smaller number and the only way in which they could reduce the number was to terminate the services of all the employees by paying them compensation and thereafter re employing some of them only. If the Company felt that that was a method which would inure to its benefit, it cannot be said that the payment of compensation was made with an oblique motive and without regard to commercial considerations or expediency. The High Court, therefore, erred on the facts and in the circumstances of the case in holding that the sum of Rs. 1,27,511/ was not deductible under section 10(2) (xv) of the Act and in answering questions Nos. (1) and (2) referred to it in Income tax Reference No. 58 of 1963 arising out of the assessment 896 order for the year 1957 58 against the assessee and in favour of the Department to the extent of Rs. 1,27,511/ . Similarly it erred in disallowing the claim made in respect of Rs. 16,885/ for each of the three succeeding assessment years. We, therefore, allow these appeals and hold that Rs. 1,27,511/ was also deductible under section 10(2)(xv) of the Act during the assessment year 1957 58 and sum of Rs. 16,885/ referred to above was allowable as a deduction during each of the three succeeding assessment years. The Department shall pay costs to the appellant. (Hearing fee one set only). P.B.R. Appeals allowed.

In January, 1956 the assessee company whose assets had been valued at Rs. 155 lacs as on December 31, 1955 decided to terminate the services of 22 of its employees with effect from 31st March, 1956 and to pay them retrenchment compensation and compensation for termination of employment. Thereafter Davids, who held the shares of the company entered into an agreement with Tatas to sell to them all the shares for Rs. 155 lacs. The agreement provided that compensation and gratuity payable to the Directors and employees whose services had been terminated and the annuity payable to the managing director should be deducted from the purchase consideration. The assessee claimed deduction under section 10(2)(xv) of the Indian Income Tax Act, 1922 of a sum of Rs. 1.64 lakhs paid by way of retrenchment compensation and compensation for termination of service during the assessment year 1957 58 and a sum of Rs. 16,885 which was the amount of annuity paid to the managing director in each of the three succeeding assessment years. The Income Tax officer disallowed the amounts on the ground that the services of the directors and employees had been terminated not as business expediency but because the purchasers of the shares made it a condition under the agreement. On appeal the Appellate Assistant Commissioner, affirming the view of the Income Tax Officer, held that the decision to pay compensation could not be said to have been taken solely with a view to the business requirement of the company. Dismissing the assessee 's appeal the Appellate Tribunal held that the expenses had not been incurred for the purpose of the company but purely as a result of the bargain between Davids and Tatas and assuming that the payments were beneficial to the assessees by reason of the reduction in its establishment expenses, no deduction could be allowed under section 10(2) (xv) since the payment was made to the benefit of a third party. Relying principally upon the decision of this Court in Gordon Woodroffee Leather Manufacturing Co. vs The Commr. of Income tax, [1962] Supp. 2 SCR 211, the High Court held that the amount involved in the case did not satisfy the test applicable to the expenditure allowable under section 10(2)(xv) of the Act and, therefore, disallowed the expenditure of Rs. 1.27 lakhs out of a sum of Rs. 1.64 lakhs on the ground that it had not been incurred for commercial expediency. The High Court also disallowed the annuity paid to the managing director in the succeeding three assessment years. 879 Allowing the assessee 's appeals ^ HELD: 1(a) The three tests laid down by this Court in Gordon Woodroffee 's case viz., (1) that the payment should have been made as a matter of practice which affected the quantum of salary, (ii) that there was an expectation by the employee of getting a gratuity and (iii) that the sum of money was expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the assessee have to be read disjunctively. So read the present case which satisfied the third test fell under section 10(2) (xv) of the Act. The High Court was in error in holding that the amount in question did not satisfy any of the tests applicable to the expenditure allowable under the section. [893H] (b) In order to claim deduction under the section an assessee has to show that the expenditure in question (1) was not an allowance of the nature described in any of the clauses (i) to (xiv) of the section, (ii) was not in the nature of a capital expenditure or personal expenses of the assessee and (iii) had been laid out or expended wholly and exclusively for the purposes of his business, profession or vocation. [891G] (c) Even assuming that the motive behind the payment of retrenchment compensation was that the terms of the agreement of the sale of shares should be satisfied, as long as the amount had been laid out or expended wholly and exclusively for the purpose of the business of the assessee there could be no good reason for denying the benefit of this section if there was no other impediment to do so. [891H] In the instant case the assessee company was neither dissolved nor was its business undertaking sold. It continued to exist as a juristic entity and continued to function even after the transfer of its shares to Tatas. The expenditure was laid out for the purpose of the assessee company 's own trade and not for the trade of Tatas who were only shareholders of the company. As a result of the expenditure the company was benefited and it was possible for it to earn more profits as a consequence of the reduction in the wage bill. It cannot be said that Tatas were in any way benefited financially by reason of reduction in the consideration payable by them for the shares. [893B C] Gordon Woodroffae Leather Manufacturing Co. vs The Commissioner of Income tax, Madras, [1962] Supp. 2 SCR 211, applied. (i) Commissioner of Inland Revenue vs Patrick Thomson, Ltd. (in Liquidation), (ii) Commissioners of Inland Revenue vs J. & R. Allan, Ltd. (In liquidation), (iii) Commissioners of Inland Revenue vs Pattigrew & Stephens, Ltd., , referred to. Commissioner of Income tax, Gujarat vs Laxmi Cement Distributors (P) Ltd., , Commissioner of Income tax, Bombay City I vs Fairdeal Corporation (P) Ltd., ; Commissioner of Income tax, Bombay City I vs Patel Cotton Co. Pvt. Ltd., ; approved. 880 (d) Moreover it is too late in the day whatever might have been the position about two decades ago, to treat the expenditure incurred by the management in paying reasonable sums by way of gratuity and retrenchment compensation or compensation for termination of services as not business expenditure. Such expenditure would ordinarily fall within the scope of section 10(2)(xv) of the Act. [889C] 2. The argument that since there was no necessity to retrench the services of all the employees, the expenditure could not be treated as one laid out wholly and exclusively for the purpose of business has no force. The expression "wholly and exclusively" does not mean "necessarily". Ordinarily it is for the assessee to decide whether any expenditure should be incurred in the course of his or its business. Such expenditure may be incurred voluntarily and without any necessity and if it is incurred for promoting the business and to earn profits the assessee can claim deduction under the section even though there was no compelling necessity to incur such expenditure. The fact that somebody other than the assessee was also benefited by the expenditure should not come in the way of an expenditure being allowed by way of deduction under the section, if it satisfies otherwise the test laid down by law. [894D G] In the instant case the company thought that its business could be carried on with a smaller number of employees and the only way to reduce the number was to terminate the services of all employees by paying compensation and to re employ only some of them. Thereby the company reduced its expenditure on wages payable to its employees. It could not therefore be said that compensation was paid with an oblique motive and without regard to commercial considerations or expediency. [895F]

Criminal Appeal No. 195 of 1984. From the Judgment and Order dated 30.11. 1982 of the Punjab & Haryana High Court in Crl. Appeal No. 425 D.B./1982. O.P. Soni, Ms. Kamlesh Datta and S.K. Sabharwal for the Appellant. 664 U.R. Lalit and Uma Datta for the Respondents. Mahabir Singh for the State of Haryana. The Judgment of the Court was delivered by FATHIMA BEEVI, J. The respondents Puran and Tara Chand along with Ved, Balwan, Dhapan, Jagdish and Lal Chand were tried before the Additional Sessions Judge, Sonepat, for the murder of one Partap Singh and causing injuries to others. The learned Judge by judgment dated 18.5. 1972 convicted these respondents for offences under section 302, I.P.C., and sections 323,325 read with 149, I.P.C. They were sen tenced to undergo imprisonment for life and ordered to pay a sum of Rs.500 each under section 302, I.P.C., R.I. for one year under section 148, I.P.C., R.I. for one year under section 325 and R.I. for six months under section 323, I.P.C. The other accused were convicted for the minor of fences and released on probation under sections 360/36.1, Cr. P.C. The respondents appealed against the conviction and sentence. The High Court by the impugned judgment dated 30.11. 1982 disposed of the appeal thus: "Admittedly there was no prior enmity between the parties. The quarrel arose out of a very insignificant matter like the burning of dry sugarcane leaves on the common boundary of the fields of the two parties. The ensuing altercation would probably have been forgotten had Partap Singh deceased not died. Even when there is an altercation arising out of a minor incident there is some tendency on the part of the prosecution witness to exaggerate matters. The three eye witnesses have of course fully supported the prosecution case but the investigating officer recorded statement of one Paras Ram at the time of making the inquest report which gives a somewhat different version. The learned trial judge has himself found that the object of the unlawful assembly was not to commit the murder of the deceased. It is precise ly for this reason that five accused persons have been released on probation and only two accused, i.e., Puran and Tara Chand appellants, have been convicted under section 302, I.P.C. We do not propose to go into the details of the controversy and in the peculiar circumstances of this case convert the conviction of Puran and Tara Chand appellants into one under section 304. Part1, 1. P.C., on the basis that in view of the statement made by 665 Paras Ram at the time when the investigating officer made the inquest report a somewhat different version was given. This Paras Ram was not produced as a witness by the prosecu tion. Since there was no prior enmity between the parties, we order that sentence already undergone by Puran and Tara Chand appellants will meet the ends of justice. They are, however, ordered to pay a fine of Rs. 12,000 each. In de fault of payment of this fine, the defaulter is ordered to undergo rigorous imprisonment for five years. The sentences of imprisonment imposed upon Puran and Tara Chand appellants on other counts are also reduced to that already undergone by them. The total fine, if realised, shall be paid to the next heirs of Partap Singh deceased as compensation." (emphasis supplied) The High Court has, by this Cryptic order, acquitted re spondents of the major charge under section 302, I.P.C., and recorded their conviction under section 304 Part I reducing the sentence of life imprisonment to a term of imprisonment already undergone while enhancing the sentence of fine. The State has not preferred any appeal against the order of acquittal or reduction of sentence. The respondents. it appears, have accepted the judgment. Sham Sunder, the de facto complainant, however, being aggrieved approached this Court under Article 136 of the Constitution. This Court has granted special leave to appeal. The High Court, exercising power under section 386, Cr. P.C., in an appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding after the nature or the extent or the nature and extent of the sentence but not so as to enhance the same. The powers of the High Court in dealing with the evidence are as wide as that of the trial Court. As the final court of facts, the High Court has also duty to examine the evi dence and arrive at its own conclusion on the entire materi al on record as to the guilt or otherwise of the appellants before it. It is true that the High Court is entitled to reappraise the evidence in the case. It is also true that under Article 136. the Supreme Court does not ordinarily reappraise the evidence for itself for determining whether or not the High Court has come to a correct conclusion on facts but where the High Court has completely missed 666 the real point requiring determination and has also on erroneous grounds discredited the evidence and has further failed to consider the fact that on account of long standing enmity between the parties, there is a tendency to involve innocent persons and to exaggerate and lead pre judged evidence in regard to the occurrence, the Supreme Court would be justified in going into the evidence for the pur pose of satisfying itself that the grave injustice has not resulted in the case. We have extracted the material portion of the judgment of the High Court to indicate that the line of approach adopted by the High Court is wholly wrong. There is no discussion of the evidence much less any reasoning. The respondents herein along with five others had been found guilty by the trial court accepting the testimony of the two eye witnesses and other material evidence on record. A brief resume of the facts is necessary. Lal Chand and Tara Chand are brothers. Ved Singh, Puran, Balwan and Ishwar are the sons of Tara Chand and Dhapan is his wife. Jagdish is the son of Lal Chand. Partap and Bhim Singh are brothers. Sham Sunder is the son of Bhim Singh. Roshan is the son of Partap. Tara Chand owns sugarcane field adjoining the wheat field of Partap. On 10.3. 1981 in the morning, Ved Singh burned sugarcane patties causing damage to the wheat crop. The protest raised by Roshan was not heeded. Bhim Singh arrived at the scene and altercation 'ensued. Partap later raised protest before Tara Chand. His grievance was not redressed. At about 6.00 P.M. Partap raised the protest before Puran who also turned down the same. Shortly thereaf ter Puran and the other members of his family including his wife, brother and their children all numbering about eight reached in front of the house of Partap. They were armed and attacked Partap. The allegation is that the respondents Tara Chand and Puran had attacked Partap with jailies, first they gave jailies blows from the prong side in the chest and when Partap fell down, they gave jailies blows like lathi on his head, back and shoulder. Partap died on his way to the hospital. It is further alleged that in the course of the incident Lal Chand and Jagdish caused injuries to Roshan; Ishwar caused injuries to Dhapan wife of Partap; Puran, Ved, Balwan caused injuries to Sham Sunder. It has come out in evidence that Ved, Dhapan, Lal Chand, Puran and Ishwar also received injuries in the course of the incident. Sham Sunder and Roshan are the two eye witnesses, be sides Smt. Dhapan the wife of deceased Partap. There had been no independent witness. Sham Sunder and Roshan said that they had caused 667 injuries to the members of the opposite party in self de fence. They do not however state in what circumstances they had to use force. The evidence does not disclose the genesis of the occurrence; how it developed and culminated in fatal injuries to Partap. There had been no enmity between the two groups. The immediate provocation for the quarrel is the damage to the wheat crops. It is admitted that Partap raised his protest right from the morning till the arrival of Puran who was employee of the Medical College, Rohtak. The prose cution has, it appears, given a twist when they say that at 6.00 P.M. Partap met Puran who turned down his request and went home and after 15 minutes all the members of his family including the womenfolk reached the house of Partap and started the assault. It is significant to note that the women and even the minor children of both families were present and received injuries recording their presence at the place. It would therefore appear that it was a continu ous transaction and when Partap persistently raises the protest and started abusing Puran, other members of his household had come out. The quarrel had taken a serious turn and in the course of further development fatal injuries had been caused to Partap. The plea of the respondents was that they did not cause any injury, that there was a Panchayat where a large crowd assembled and there had been brick batting and altercation. The plea of private defence was not specifically set up. However, if there are material in evidence to indicate that the incident could not have hap pened in the manner spoken to by the eye witnesses and in all probability the respondents had used the force exercis ing the right of private defence, then accused are entitled to the benefit thereof. Whether the respondents have in such circumstances exceeded their right and are justified in causing death, has necessarily to be considered. In the absence of a full discussion of the evidence by the High Court, we have been constrained to consider the materials on record. We have seen that there is the evidence of only the interested witnesses who have the tendency to exaggerate and involve even innocent persons. We have seen that most of the accused have sustained injuries and in explaining the same, the prosecution witnesses have not come forward with a truthful account. We are led to draw the inference that in the melee and ensued on account of the aggressive attitude of Partap, the respondents and other members of the family participated and used the force against Partap and his associates in all probabilities in the exercise of right of private defence. However, the circumstances did not warrant the causing of death and the respondents must be deemed to have exceeded their right. The nature of the injuries indi 668 cate that injuries sufficient in the ordinary course of nature to cause death had been inflicted intentionally. In such circumstances. , the act of the respondents squarely falls under section 304 Part I, EP.C. While we agree with the conclusion arrived at by the High Court, we record that the High Court has not given any cogent or clear reasons for its conclusion and whatever reason has been stated is erro neous. It is on the basis of the statement given in the course of investigation by a person who was not examined in the case that the High Court has drawn its conclusion. We, however, maintain the conviction under section 304 Part I, I.P.C. The High Court has reduced the sentence to the term of imprisonment already undergone while enhancing the fine. It is pointed out that the respondents have undergone only imprisonment for a short period of less than six months and, in a grave crime like this, the sentence awarded is rather inadequate. No particular reason has been given by the High Court for awarding such sentence. The court in fixing the punishment for any particular crime should take into consid eration the nature of the offence, the circumstances in which it was committed and the degree of deliberation shown by the offender. The measure of punishment should be propor tionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of opinion that to meet the ends of justice, the sentence has to be enhanced. In the result, we maintain the conviction of the re spondents but enhance the sentence to one of rigorous im prisonment for a period of five years. The respondents should surrender to the bail to undergo the unexpired por tion of the sentence. The fine, if paid, shall be refunded to the respondents 1 and 2. The appeal is disposed of as above. G.N. Appeal disposed Of.

Respondent 1 is the son of Respondent No. 2. Including Respondent No. 1 Respondent No. 2 had 4 sons. Respondent No. 2 owned a sugarcane field adjoining the wheat field of one P. One of the sons of Respondent 2 had burnt sugarcane patties causing damage to the wheat crop of P, against which P protested before the respondents. The protest was turned down. Shortly thereafter the respondent and the family members reached the house of P. They were all armed. Re spondents attacked P and he fell down. On the way to hospi tal P died. Most of the accused as well as the family mem bers of P sustained injuries. On a complaint, F.I.R. was registered. After investigation, Prosecution filed a case before the Additional Sessions Judge. Two eye witnesses were produced by the prosecution. They were relatives of the deceased and there was no independent witness. The Additional District Judge convicted the respondent for offences under sections 302 IPC and 323, 325 read with 149 IPC. Both were sentenced to imprisonment for life and a fine Rs.500 each under section 302 IPC. They were also sentenced to rigorous imprisonment ranging from six months to one year for the other offences. The other accused were convicted for minor offences and released on probation. The respondent appealed against the conviction and sentence. The High Court acquitted the respondents of the major charge under section 302 IPC and recorded the conviction under section 304 Part I reducing the sentence of life imprison ment to the term already undergone, and enhanced the sen tence of fine. No appeal was preferred by the State. Howev er, the complaint filed an appeal by special leave. 663 Disposing the appeal, this Court, HELD 1. There is the evidence of only the interested witnesses who have the tendency to exaggerate and involve even innocent persons. Most of the accused have sustained injuries and in explaining the same, the prosecution wit nesses have not come forward with a truthful account. In the melee that ensued on account of the aggressive attitude of the respondents and other members of the family who partici pated and used force against P and his associates. in all probabilities in the exercise of right of private defence. However, the circumstances did not warrant the causing of death and the respondents must be deemed to have exceeded their right. The nature of the injuries indicate that they were sufficient in the ordinary course of nature to cause death and had been inflicted intentionally. In such circum stances, the act of the respondents squarely fails under section 304 Part I, IPC. The High Court has not given any cogent or clear reasons for its conclusion and whatever reason has been stated is erroneous. It is on the basis of the statement given in the course of investigation by a person who was not examined in the case that the High Court has drawn its conclusion. However. the conviction under section 304 Part I, IPC is maintained. The High CoUrt has reduced the sentence to the term of imprisonment already undergone, and enhanced the fine. The respondents have undergone imprisonment only for a short period of less than six months and, in a grave crime like this, the sentence awarded is rather inadequate. No particu lar reason has been given by the High Court for awarding such sentence. The Court in fixing the punishment for any particular crime should take into consideration the nature of the offence, the circumstances in which it was committed, and the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. The sentence is enhanced to one of rigorous imprisonment for a period of five years.

Appeal No. 1943 of 1967. Appeal from the judgment and order dated October 24, 1967 of the Patna High Court in Civil Writ Jurisdiction Case No. 283 of 1966. Basudev Prasad and section N. Prasad, for the appellant. M. C. Chagla, Saptmi Jha and B. P. Jha, for respondent No. 1. U. P. Singh, for respondent No. 2. The Judgment of the Court was delivered by Shah, J. On January 15, 1965, the South Bihar Regional Transport Authority, Patna, ordered that a permit to ply a stage carriage on Dehri Bhabua route be granted to Arbind Kumar Singh hereinafter called 'the appellant on production of all valid documents of 1964 model bus along with clearance certificate of transport tax within one month from the date of order, failing which the sanction of permit in his favour would stand automatically revoked, and permit will then be given to the next deserving candidate Nand Kishore Prasad. . . On application submitted by Nand Kishore Prasad who will . hereinafter be referred to as 'the respondent that the appellant had failed to 324 carry out the condition relating to the grant of permit, the Chairman of the Regional Transport Authority by order dated February 20, 1965, cancelled the permit and directed that a permit be given to the respondent. The order of the Chairman was reversed in appeal by the Appellate Board. In the view of the Board "the clearance certificate" filed by the appellant showed that all the taxes due by him were paid. The respondent then moved the State Government of Bihar under section 64 A of the as amended by the Bihar Motor Vehicles (Amendment) Act 17 of 1950. The Minister of Transport who heard the petition reversed the order of the Appellate Board, holding that the appellant had failed to carry out the conditions subject to which the Regional Transport Authority had ordered that the permit be given to him. A petition under article 226 of the Constitution moved by the appellant in the High Court of Patna against the order of the Minister of Transport was dismissed. The appellant has appealed to this Court with certificate granted by the High Court. The plea raised by counsel for the respondent that the appeal was liable to be dismissed because the High Court was incompetent to grant a certificate of fitness under article 133(1)(a) or article 1 3 3 ( 1 ) (b) of the Constitution against the judgment of the High Court exercising extraordinary original jurisdiction under article 226 of the Constitution is without substance. This Court has held in section A. L. Narayan Row & Anr. vs Ishwarlal Bhagwandas & Anr. (1) that the words "civil proceeding" used in article 133 of the Constitution cover all proceedings which directly affect civil rights. A proceeding under article 226 of the Constitution for a writ to bring up a proceeding for consideration concerning civil rights is therefore a civil proceeding. This Court has further held in Ramesh and A nr. vs Seth Gendalal Motilal Patni and Ors. (2) that the High Court is competent to certify on appeal against an order passed by a Division Bench of a High Court in exercise of extraordinary original jurisdiction under article 226 of the Constitution if the dispute decided thereby concerns civil rights of the parties. Hidayatullah, J., speaking for the Court observed at p. 203 "Mr. Gupta 's contention that under that article (article 133) an appeal can only lie in respect of a judgment or decree or final order passed in the exercise of appellate or ordinary original civil jurisdiction but not of extraordinary original civil jurisdiction, is not right. Article 133 not only discards the distinction between appellate and original jurisdiction but deliberately used words which are as wide as language can (1) ; (2) [1966]3 S.C.R. 198 325 make them. The intention is not only to include all judgments, decrees and orders passed in the exercise of appellate and ordinary original civil jurisdiction but also to make the language wide enough to cover other jurisdictions under which civil rights would come before the High Court for decision. " The plea raised by counsel for the respondent that the High Court was not competent to grant the certificate must therefore be rejected. The Bihar Legislature enacted Bihar Act 17 of 1950, imposing tax on passengers and goods carried by public service motor vehicles in Bihar. Validity of this levy was upheld by the High Court of Patna. But after the decision of this Court in Atiabari Tea Co. Ltd. vs State of Assam(1), the appeals filed by the operators who challenged the levy were allowed by this Court. The State of Bihar thereafter issued Bihar Ordinance 11 of 1961 which was replaced by Bihar Act 17 of 1961 By that Act the tax was reimposed with effect from the 1st day of April, 1950. That imposition of tax was again challenged in writ petitions filed before the High Court of Patna, but without success, and the order of the High Court was confirmed by this Court in Rai Ramkrishna and Ors. vs State of Bihar(1). Section 1(3) of Act 17 of 1961 declares that the Act shall be deemed to have come into forced on the first day of April, 1950. By section 2(i) 'tax ' means tax payable under the Act and includes the fixed amount determined under section 8. By section 3 charge of tax is imposed. It provides by sub section (1) : "On and from the date on which this Act is deemed to have come into force under sub section (3) of section 1, there shall be levied and paid to the State Government a tax on all passengers and goods carried by a public service motor vehicle; such tax shall be levied and paid at the rate of twelve and a half per centum of the fares and freights payable to the owner of such vehicles Provided. . ." Section 6 requires the owner of the vehicle to make prescribed return to the prescribed authority within such period as may be prescribed. Section 7 prescribes the machinery for assessment of tax. Section 9(1) provides that the amount of tax or penalty. if any, payable by an owner under the Act shall be paid in the manner hereinafter provided. Sub section (2) of section 9 provides that before any owner furnishes any return under the Act he shall. in the prescribed manner pay into the Government Treasury the full amount of tax due from him under the Act according to such return and shall furnish along with the return a receipt from the (1) ; (2) A.I.R. 19463 S.C. 1667. 326 treasury showing payment of the said amount. By section 22 power is conferred upon the State Government to make rules not inconsistent with the Act for all matters expressly required or allowed by the Act to be prescribed and generally for carrying out the purposes of The Act and regulating the procedure to be followed, forms to be adopted and fees to be paid in connection with proceedings under the Act and all other matters ancillary or incidental thereto. In exercise of the power conferred by section 22, the State of Bihar has framed the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Rules, 1966. Rule 11 provided that every owner shall furnish to the authority prescribed in r. 16, a monthly return, in Form V within a period of fifteen days of the close of the month to which such return relates. Rule 18 provides that where any sum is payable by an owner under the Act or the rules or any amount due for which a notice is to be given under sub section (4) of section 9, the authority prescribed in r. 16 shall serve notice in Form XI, and shall also fix a date by which the owner shall produce a receipted challan in proof of such payment. It is clear from the scheme of the Act and the rules that by section 3 a charge is imposed upon an owner of the vehicle to pay tax to the State Government on all passengers and goods carried by a public service motor vehicle at the rates fixed by the statute and the owner must make monthly returns within fifteen days from the expiry of the month to which the return relates The decision of the Madhya Pradesh High Court in Raipur Transport Co., Private Ltd., Raipur vs M. P. Singh and Ors. (1) on which reliance was placed by counsel for the appellant has, in our judgment, no bearing on the question which falls to be determined in this appeal. Section 10 of the Motor Vehicles (Taxation of Passengers) Act, 1959, passed by the State of Madhya Pradesh provided that in cases referred to in sections 7, 8 and 9, the Tax Officer shall serve on the operator a notice of demand for the sums payable to the State Government. That in the view of the High Court pre supposes that an order of assessment has been made under the earlier provisions of the Act, and therefore an order of assessment was necessary not only for the validity of the notice of demand, but also for enabling the appellate authority to see whether the tax had been correctly assessed or not and the demand made against the operator was or was not justified. We are in the present case not concerned to determine the validity of a notice of demand. The liability to pay tax under Bihar Act 17 of 1961 clearly arises by statutory injunction and not from the order of assessment. In terms section 3 says that there shall be levied and paid to the State Government a tax on all passengers and goods carried by a public service motor vehicle. (1) A.I.R. 1968 M.P. 36. 327 The appellant plied his motor buses in 1950 51 and on the plea that the tax was invalid did not pay the tax levied under Act 17 of 1950. After the reimposition of the tax by Act 17 of 1961, there survived no ground on which the liability to pay tax could be resisted. On January 15, 1965, a condition had been imposed upon the appellant that a permit would be granted to him provided he produced a clearance certificate. Liability to pay transport tax amounting to Rs. 1,675/ was outstanding against the appellant for nearly fifteen years and that liability was discharged by payment on March 5, 1965. it cannot, in the circumstances, be contended that there was no liability to pay transport tax outstanding against the appellant on the date of the order granting him the permit. Failure to produce the clearance certificate in respect of the transport tax clearly disentitled the appellant to the grant of a permit. Counsel for the appellant, however, contended that the impo sition of a condition that the appellant shall produce a clearance certificate in respect of the transport tax was invalid and the condition was liable to be ignored by the appellant. Section 47(1) of the , insofar as it is material provides : "A Regional Transport Authority shall, in considering 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 convenience arising, from journeys not 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 condition of the roads included in the proposed route or area; and shall also take into consideration any representation made by persons already providing passenger transport facilities by any means along or near the proposed route sup. Cl/68 8 328 or area, or by any association representing persons inte rested in the provision of road transport facilities recog nised in this behalf by the State Government, or by any local authority or police authority within whose juris diction any part of the proposed route or area lies Provided. . . . . " Sub section (2) of section 47 sets out the conditions under which the Regional Transport Authority may refuse to grant a stage carriage permit; and sub section (3) provides for the conditions in which, having regard to the matters specified in sub section (1), the Regional Transport Authority may limit the number of stage carriages generally or of any specified type for which stage carriage permit may be granted in the region or in any specified area or on any specified route within the region. It was urged that under section 47 the Regional Transport Authority is bound to consider only the matters which are specified in cls. (a) to (f) of sub section (1) of section 47, Ind if the applicant is found qualified for a permit no conditions may be imposed by the Regional Transport Authority. We need express no opinion on that argument. If the argument raised by counsel for the appellant has any substance, and if it be held that the grant of a permit is to be subject only to such of the conditions as may be prescribed under section 48, the order made by the Regional Transport Authority must be deemed to be an order refusing the permit. The appellant could, if so advised, have challenged the validity of the imposition of the condition relating to the payment of tax, but he could not ignore the conditions subject to which the permit was granted. Finally, it was urged that the Minister of Transport acted illegally in taking into account evidence which was not on the record of the Regional Transport Authority, and alternatively, that the Minister violated the fundamental rules of natural justice in basin,, his judgment upon a document received from the Deputy Commmissioner of Commercial Taxes, intimating that the transport tax was due by the appellant without bringing it to the notice of the appellant and calling for an explanation. Section 64 A of the , as amended by Bihar Act 17 of 195( authorises the State Government to call for, in the course of any proceedings taken under the Chapter, from any authority or office) subordinate to it, the records of such proceedings, and after exa, mining such records pass such order as it thinks fit. The expressior "pass such order as it thinks fit" is not restricted to the passini of orders which are final in character. If for the purposes of. doing complete justice between the parties, the authority who heare the revision petition is satisfied that it is necessary to call for addi tional evidence, he may call for such evidence. There, is no bar in the Act or the rules against an appellate or the revising authority 329 taking into consideration additional evidence brouaht on the record, if the authority requires additional evidence to be brought on the record or allows it to be brought on the record to do complete. justice between the parties. The evidence must undoubtedly be disclosed to the parties and they must be given an opportunity to meet an inference that may arise from such additional evidence. We are unable to hold that the Minister of Transport in taking into consideration the report received from the Deputy Commi sioner of Commercial Taxes, Intelligence Branch, that an amount of Rs. 1,675/ was outstanding on February 16, 1965, against the appellant in respect of the two buses plied in the year 1950 51 acted in violation of the rules of natural justice. The circumstance, , in which this document was brought on the file of the Minister are not clear on the record. But, as stated by the Minister, the document was disclosed to counsel for the appellant and counsel was asked to give a reply thereto. The Minister also recorded in his judgment that counsel for the appellant explained that since there was no demand for payment of the dues, it was not correct to say that the amount of Rs. 1,675/ was due against the appellant on February 16, 1965. The Minister of Transport rejected that argument. Before us it was contended that the document was never shown to the appellant 's counsel and he was never asked to render his explanation in that behalf. If this were true, the appellant would, we have no doubt, have approached the Minister who was exercising quasi judicial functions, and would have asked him to review his order. This admittedly has not been done. Again, if the grievance now raised were true, the averments made in paragraph 19 of the petition before the High Court would not have taken the form which they have taken. In paragraph 19 it is stated that "the so called report of the Deputy Commissioner, Commercial Taxes, Intelligence Branch, Patna, under Memo No. 8527 dated 24 7 1965 was never shown to the petitioner and the petitioner had no opportunity to meet the said report." Whereas the Minister of Transport had recorded that the report of the Deputy Commissioner, Commercial Taxes, was shown to counsel for the appellant and the counsel had given certain information the petition before the High Court merely stated that the appellant was not shown the report of the Deputy Commissioner. The High Court on a consideration of the evidence has come to the conclusion that the claim made by the appellant that the document was not disclosed at the hearing before the Minister of Transport, and the Minister acted upon that document without informing the appellant, cannot be accepted, and we do not see any reason to disagree with the view expressed by the High Court. The appeal fails and is dismissed with costs. V.P.S. Appeal dismissed.

In 1950 51, the appellant was plying his motor buses in Bihar. Bihar Act 17 of 1950 imposed a tax on passengers and goods carried by public service motor vehicles. As the imposition of the tax was found to be invalid the appellant did not pay the tax. In 1961, the tax was reimposed by Act 17 of 1961 with effect from 1st April 1950 and the imposition was found to be valid. Therefore, the appellant was liable to pay the transport tax for 1950 51. This liability was outsanding on 15th January 1965, on which date, the Regional Transport Authority ordered that a permit to ply a stage carriage be granted to him on condition that he produced a clearance certificate of transport tax within one month from the date of the order failing which the grant will stand automatically cancelled and the permit will be granted to the first respondent. As the appellant failed to carry out the condition the permit was cancelled and given to the first respondent. The order was confirmed by the Government, in revision, under section 64A of the , as amended by the Bihar Motor Vehicles (Amendment) Act, 1950, after calling for and considering a report from the Dy. Commissioner of Commercial Taxes, that the transport tax was due from the appellant for 1950 51. The writ petition in the High Court to quash the Government order was dismissed. The appellant appealed to this Court with certificate granted by the High COurt under article 133 of the Constitution. The respondent contended that the High Court was not competent to grant the certificate in proceedings under article 226; and the appellant contended that : (1) on the date of the order granting the permit there was no liability to pay the tax as there was no assessment; (2) the condition regarding payment of tax was invalid; (3) the Minister of Transport who disposed of the revision to the Government had no right to call for any additional evidence; and (4) the report of the Dy. Commissioner of Commercial Taxes should have been disclosed by the Minister to the appellant. HELD : (1) The words 'civil proceedings ' in article 133 cover all proceedings which directly affect civil rights, and therefore the High Court was competent to grant the certificate in a proceeding under article 226 involving civil rights. [324 E F] section A. L. Narayan Row vs Ishwar Lal Bhagwandas, ; and Ramesh vs Seth Gendalal Motilal Patni, ; , followed. (2) Under the scheme of the Act the liability to pay tax arises by statutory injunction and not from any order of assessment. Therefore, there was a liability to pay the transport tax outstanding, against the appellant, on the date of the order granting him the permit and failure to 323 produce the clearance certificate in respect of the tax disentitled him to the sant of a permit. [326 H; 327 C] Raipur Transport Co. (P.) vs M. P. Singh, A.I.R. 1968 M.P. 36 distinguished (3) If it be held that the grant of a permit was to be subject only to such of the matters specified under section 47(1) (a) to (f) and to such of the conditions as may be prescribed under section 48, the order of the Regional Transport Authority in the present case must be deemed to be an order refusing the permit, and, the appellant should have challenged, by way of appeal, the validity of the imposition of the condition relating to payment of tax; he could not ignore the condition subject to which the permit was granted. [328 D E] (4) The expression 'pass such order as it thinks fit ' in s 64A, as amended by the Bihar Act, is not restricted to the passing of final orders. If for the purpose of doing complete justice between the parties, the authority who hears the revision petition is satisfied that it is necessary to call for additional evidence, he may do so. There is no bar in the Act or the Rules against an appellate or revising authority taking into consideration the additional evidence brought on record. [328 G H] (5) Such additional evidence must undoubtedly be disclosed to the parties and they must be given an opportunity to meet an inference that may arise from it. In the present case, the High Court, on a consideration of the evidence came to the conclusion that the additional evidence called for by the Minister of Transport was disclosed by him, at the hearing, to the appellant 's counsel and there was no reason for this Court to disagree with that view. [329 A B, H]

ivil Appeal No. 1750 of 1974. 642 From the Judgment and Order dated 7.3.74 of the Gauhati High Court in C.R. No. 96 of 1973. A.R. Barthakur, J.D. Jainand Mrs. Kawaljit Kocher for the Appellant. P.H. Parekh, Ms. Geetanjali Mathrari, Shishir Sharma for the Respondents. The Judgment of the Court was delivered by OZA, J. This appeal on leave has been filed against the judgment of the Gauhati High Court delivered in Civil Revi sion No. 96 of 1973 decided on March 7, 1974. The short question that arises in this appeal is in respect of the jurisdiction of the civil court to entertain a suit that was filed against the respondent defendant. The appellant plain tiff was an employee of M/s Empire of India and Ceylone Tea CO. Pvt. Ltd Calcutta. The Manager of the COmpany who wag defendant No. 2, on 16.10.1971 served a notice on the appel lant plaintiff asking him to explain certain charges of misconduct. In the course of domestic enquiry held by the management, the appellant plaintiff was ultimately dismissed from service on 28th November, 1971. According to the appel lant plaintiff the order of dismissal is contrary to provi sions of the Standing Orders framed under Industrial Employ ment (Standing Orders), Act, 1946 and on this ground he sought the relief of declaration that the dismissal is null and void and inoperative as he was not guilty of any miscon duct as no enquiry was conducted, the dismissal was bad in accordance with the Standing Orders. He also sought the relief of back wages and injunction not to give effect to the order of dismissal. This suit was filed by the appellant plaintiff before the Court of Munsiff. The defendant re spondent in their written statement raised the plea that the suit is not maintainable as the relief which is sought is available to the appellant plaintiff under Section 2A of the . It was also pleaded that the suit is not maintainable under Section 14(1)(b) of the Specific Relief Act and that the Civil Court has no juris diction to entertain the suit. The trial Court on the basis of these pleadings framed two preliminary issues which were: (i) Whether the suit is maintainable in the present form? (ii) Whether this Court has jurisdiction to try the suit? The trial court came to the conclusion that the Civil Court has the 643 jurisdiction to try the suit and the suit is not barred because of Section 14(1)(b) of the Specific Relief Act. Against this order of the trial court a revision petition was taken to the High Court and by the impugned judgment the High Court held that the nature of relief which was sought by the appellant plaintiff was such which could only be granted under the and therefore the civil court had no jurisdiction to try the suit. Learned counsel for the appellant on the basis of lan guage of Section 9 of the Code of Civil Procedure contended that the civil court will have jurisdiction to try all kind of suits except those which are either expressly or implied ly barred and on this basis it was contended that there is no express bar on the jurisdiction of the Civil Court and the High Court was not right in reaching the conclusion that it was impliedly barred whereas learned counsel for the respondent contended that the relief which was sought by the appellant plaintiff in substance was the relief of rein statement with back wages which relief is not the right of the appellant plaintiff under the contract or under the civil law. This right is only conferred on him because of the and the relief which is avail able only in the . The Act itself provides the procedure and remedy and it is not open to the appellant to approach the Civil Court for getting the relief which he could only get under the scheme of the procedure of conciliation, reference to the labour court and ultimately decision of the labour court. It was in the scheme of the itself that the enforcement of the Standing Orders could be made and an order which is not in accordance with the Standing Orders could be set aside and the relief as was claimed by the appellant plaintiff could be granted. It is in this view that the jurisdiction of the civil court is impliedly barred. Learned counsel placed reliance on the decision of this Court in Bombay Union of Journalists & Ors. vs The State of Bombay & Anr., ; Section 9 of the Code of Civil Procedure reads: "Courts to try all civil suits unless barred The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation (1) A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the 644 decision of questions as to religious rites or ceremonies. Explanation II For the purposes of this Section it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place. " It is clear that wherever the jurisdiction of the civil court is expressly or impliedly barred, the civil court will have no jurisdiction. It could not be disputed that a con tract of employment for personal service could not be spe cifically enforced and it is also clear that except the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages At best he could seek the relief of damages for breach of contract. The manner in which the relief has been framed by the appellant plaintiff in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstate ment and backwages. The relief which could only be available to a workman under the . It is not disputed before us that the Industrial Dis putes Act was applicable to the present case and it is also not disputed that the Industrial Employment (Standing Or ders) Act was also applicable. It is also not in dispute that the enquiry for misconduct was conducted against the appellant in accordance with the Standing Orders and the main plea which was raised by the appellant plaintiff was that the enquiry was not strictly in accordance with the Standing Orders. It is in this context that the learned Judge of the High Court came to the conclusion that the civil court will have no jurisdiction to try the present suit. Learned counsel appearing for the appellant plaintiff mainly contended that in the scheme of the Industrial Dis putes Act, the starting point for an industrial dispute is the conciliation proceedings and if the conciliation pro ceedings fail then the conciliation officer is expected to submit his report to the Govt. as contemplated under Section 12 and thereafter it is the discretion of the Govt to make a reference to the labour court. He frankly conceded that if a reference is made then the labour court will have juris diction to determine the dispute as was raised by the appel lant before the civil court but according to the learned counsel as firstly it is the discretion of the conciliation officer to proceed with the conciliation proceedings and even after the report of the conciliation officer, it is the discretion of 645 the State Govt. to make a reference or not. Thus it could not be said that there is a remedy available to the appel lant under the scheme of the and thus the jurisdiction of the civil court could not be barred by implication. Learned counsel placed reliance on the decision in Calcutta Electric Supply Corporation Ltd. and another vs Ramratan Mahato, AIR 1973 Calcutta 258. Learned counsel for the appellant also contended that the decision in Dhulabhai etc. vs State of Madhya Pradesh and another; , also helps him to some extent. On the other hand the learned counsel for the respondent contended that in view of decision in Bombay Union of Journalists case the discretion of the Govt. to make a reference or not is not arbitrary and in appropriate cases if the Govt. chooses not to make a reference, a direction could be issued under Article 226 by the High Courts. It was contended that after this decision of this Court, the contention that remedy under the is merely discretionary is not at all available to the appellant. Learned counsel also placed reliance on the Dhulabhai 's case and Nanoo Asan Madhavan vs State of Kerala and others, [1970] Vol. I LLJ Kerala 272. It is not in dispute that the dispute which was raised by the appellant plaintiff fell within the ambit of the definition of 'industrial dispute ' as defined in Section 2(k) of the . It is also no in dis pute that the dispute can be taken up by conciliation offi cer under Section 12. Section 12 of the provides that when the conciliation officer fails he has to make a report as provided in sub clause (4) of Section 12. Section 12 reads: "Duties 01 ' Conciliation Officers (1) Where any industrial dispute exists or is apprehend ed, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall, hold conciliation proceedings in the prescribed manner. (2) The conciliation officer shall, for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. (3) If a settlement of the dispute or any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send 646 a report thereof to the appropriate Government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute. (4) If no such settlement is arrived at, the conciliation officer shall, as soon as practicable after the close of the investiga tion, send to the appropriate Government a full report setting forth the steps taken by him for ascertaining the facts and circum stances relating to the dispute and for bring ing about a settlement thereof, together with a full statement of such facts and circum stances, and the reasons on account of which, in his opinion, a settlement could not be arrived at. (5) If, on a consideration 1 of the report referred to in sub section (4), the appropriate Government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference. Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore. (6) A report under this Section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government. Provided that subject to the approv al of the conciliation officer, the time for the submission of the report may be extended by such period as may be agreed upon m writing by all the parties to the dispute. " Sub clause (5) provides for making a reference by the State Govt. to a labour court or an appropriate Tribunal. In Bombay Union of Journalists case it has been held that the discretion of the Government is a discretion which has been exercised not arbitrarily and therefore it could not be said that the reference to the labour court or tribunal is not available to a worker who raises in industrial dispute. It was observed. "This argument must be rejected, because when the appropriate Government considers the question as to 647 whether a reference should be made under section 12(5), it has to act under section 10(1) of the Act and section 10(1) confers discretion on the appro priate Government either to refer the dispute, or not to refer it, for industrial adjudica tion according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under section 12(4) the appropriate Government ultimately exercises its power under 'section 10(1), subject to this that section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under section 12(4). This question has been considered by this Court in the case of the State of Bombay vs K.P. Krish nan & Others, The decision in that case clearly shows that when the appropriate Government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raise questions of law, the appropri ate Government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate Government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate Government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under section 10(1) read with section 12(5) or not. If the claim made is patently frivo lous, or is clearly belated, the appropriate Government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be ad verse, the appropriate Government may take that into account in deciding whether a refer ence should be made or not. It must therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate Government is entitled to make in dealing with a dispute under section 10(1), and so, the argument that the 648 appropriate Government exceeded its jurisdic tion in expressing its prima facie view on the nature of the termination of service of appel lants 2 and 3, cannot be accepted. " It is therefore clear that that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit. Section 10 of the reads: "Reference of disputes to Boards, Courts or Tribunals (1) Where the appropriate Govern ment is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudica tion: Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Gov ernment may, if it so thinks fit, make the reference to a Labour Court under clause (c); Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it con 649 siders that the notice has been frivolously or vexatiously given or that it would be inexpe dient so to do, make a reference under this sub section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be compe tent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government. " It is therefore clear that this Act i.e. not only confers the right on a worker for reinstatement and backwages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court. In Dhulabhai 's case a five Judges Bench of this Court consid ered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed: "Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the in quiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be deter mined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. " It is therefore clear that the scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are avail able under this Act and for which a complete procedure and machinery has been provided in this Act. Under these circumstances therefore so far as the present suit filed by the appellant plaintiff is concerned, there appears to be no doubt that civil court had no juris diction and the High Court was fight in coming to the con clusion. The appeal is therefore dismissed but as it is an appeal filed by an employee who lost his employment long ago, parties are directed to bear their own costs. R.S.S. Appeal dis missed.

The appellant plaintiff, who was an employee of the respondent company, was dismissed from service on the bais of a domestic enquiry held against him in respect of certain charges of misconduct. Thereupon, he filed a civil suit before the Court of Munsiff and sought the relief of back wages and injunction not to give effect to the order of dismissal The respondents in their written statement raised inter alia the plea that the suit was not maintainable as the relief sought was available to the plaintiff under section 2A of the . The Trial Court came to the conclusion that the Civil Court had the jurisdiction to try the suit. The High Court, in revision, held that the nature of the relief which was sought by the appellant plaintiff was such which could only be granted under the , and therefore the civil court had no jurisdiction to try the suit. Before this Court it was contended on behalf of the appellant (i) on the basis of the language of section 9 of the Code of Civil Procedure the civil court had jurisdiction to try all kinds of suits except those which were either expressly or impliedly barred, and the High Court was not right in reaching the conclusion that it was impliedly barred; (ii) as the remedy under the was discretionary, it could not he said that there was a remedy available to the appellant under the scheme of the Act and thus the jurisdiction of the civil court could not be barred by implication. On the other hand, it was contend ed on behalf of the respondents that (i) the relief sought by the appellant in substance was the relief of reinstate ment with backwages which relief was available only in the ; (ii) the Act itself provided the procedure and remedy and it was not open to the appellant to approach the civil court for getting the relief which he could get only under the scheme of the Act; and (iii) the discretion of the Government to make a reference or not was not arbitrary. Dismissing the appeal, this Court. 641 HELD: (1) It is clear that wherever the jurisdiction of the civil court was expressly or impliedly barred, the civil court will have no jurisdiction. [644B] (2) It is clear that except under the industrial law, under the law of contract and the civil law, an employee whose services are terminated could not seek the relief of reinstatement or backwages. At best, he could seek the relief of damages for breach of contract. (3) The manner in which the relief has been framed by the appellant in this case, although he seeks a declaration and injunction but in substance it is nothing but the relief of reinstatement and backwages. This relief could only be available to a workman under the . [644C D] (4) The discretion of the State Government for making a reference under section 12(5) of the is not arbitrary and it would not be said that the reference to the labour court or tribunal is not available to a worker who raises an industrial dispute. [646G] Bombay Union of Journalists & Ors. vs The State of Bombay & Anr., ; ; Calcutta Electric Supply Corporation Ltd. vs Ramratan Mahato, AIR 1973 Cal 258; Dhulabhai etc. vs State of Madhya Pradesh; , ; Nanoo Asan Madhavan vs State of Kerala, [1970] Vol. I LLJ Kerala 272, referred to. (5) In view of the language of section 10, read with section 12(5) of the , an adequate remedy was available to the appellant under the scheme of the itself which is the Act which provides for the relief of reinstatement and backwages which in fact the appellant sought before the civil court by filing a suit. [648B] (6) The scheme of the clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under the Indus trial Disputes Act and for which a complete procedure and machinery has been provided in this Act. [649F G]

Appeal No. 84 of 1957. Appeal from the judgment and decree dated November 7, 1955, of the Bombay High Court in Appeal No. 629 of 1955, arising out of the judgment and decree dated August 9, 1955, of the. City Civil Court, Bombay, in Suit No. 2178 of 1954. A.V. Viswanatha Sastri and I. N. Shroff, for the appellants. Purshotam Tricumdas and C. P. Lal, for the respondents. March 31. The following Judgment of the Court was delivered by IMAM J. The sole question considered and decided by the High Court was whether the suit filed by the appellants in the City Civil Court could be entertained by that Court, having regard to the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act). The High Court was of the opinion that the City Civil Court had no jurisdiction to entertain the suit. It did not pronounce any opinion on the merits of the appellants ' case. The only question which requires con sideration in this appeal is whether the High Court correctly decided that the City Civil Court had no jurisdiction to entertain the suit filed by the appellants. The first plaintiff in the suit before the City Civil Court, was a tenant of the premises in question under the first defendant. The second and third plaintiffs were persons to whom the said premises were sublet by 369 the first plaintiff. The first defendant as landlord of the premises in suit gave notice to quit to the first plaintiff on December 6, 1947. Thereafter, he filed suit ' No. 483/4400 of 1948 in the Court of Small Causes Bombay on April 29,1948, whereby he sought to evict the first plaintiffs To that suit the first defendant also made the second and the third plaintiffs parties alleging that they were trespassers and had no right to be on the premises. The Small Cause Court held that the second and third plaintiffs were not lawful subtenants and the subletting by the first plaintiff to them being contrary to law the latter had deprived himself of the protection of the Act. It accordingly passed a decree for eviction of all the plaintiffs of the present suit. An appeal against the decree was unsuccessful and a revisional application to the High Court of Bombay was summarily dismissed by that Court. Thereafter, the present suit No. 2178 of 1954 was filed by the appellants in the Bombay City Civil Court on September 20, 1954. In this suit the appellants prayed for a declara tion that the first plaintiff was a tenant of the defendants and was entitled to protection under the Act and that the second and the third plaintiffs were lawful subtenants of the first plaintiff and were entitled to possession, use and occupation of the premises as subtenants thereof. The City Civil Court held that it had jurisdiction to entertain the suit but dismissed the suit on the ground that there bad been no lawful subletting, by the first plaintiff of the premises to the second and the third plaintiffs as the provisions of section 10 of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 (Bombay Act No. VII of 1944) (hereinafter referred to as the Bombay Rents Act, 1944) had not been properly complied with. Against that decision the appellants appealed to the Bombay High Court which was dismissed. The High Court disagreed with the view of the Judge of the City Civil Court that he had jurisdiction to entertain the suit but did not record any decision on the merits of the appellants ' case. The preamble of the Act states that it was expedient 47 370 to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. The entire provisions of the Act read as a whole show that the Act was passed to achieve that purpose. The Act defines " landlord " to mean " any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant ; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his subtenant a tenant who has sublet any premises " and " tenant " to mean " any person by whom or on whose account rent is payable for any premises and includes (a) such subtenants and other persons as have derived title under a tenant before the coming into operation of this Act, (a) any person to whom interest in premises has been transferred under the proviso to section 15, (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act, (c) any member of the tenant 's family residing with him at the time of his death as may be decided in default of agreement by the Court. " Section 12 gives protection to a tenant from eviction if he pays or is ready and willing to pay standard rent and permitted increases. Section 13 states the grounds upon which the landlord is entitled to recover possession of any premises. Amongst the numerous grounds one is if the tenant had since the coming into operation of the Act sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein. Section 14 states: ,,Where the interest of a tenant of any premises is determined for any reason, any subtenant to whom the premises or any part thereof have been lawfully 371 sublet before the coming into operation of this Act shall subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. " Section 28 of the Act deals with jurisdiction of courts and it states: " (1) Notwithstanding anything con tained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction, (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 no such 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 subsection (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question." Section 29 deals with appeals. It provides that there will be no further appeal from the appellate order. Section 29A, however, states that nothing contained in sections 28 or 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises. The plaint in the suit filed by the appellants in the City Civil Court clearly asserts that the first plaintiff was entitled in law to sublet the premises in question to the second, and third plaintiffs and that there had been a lawful subletting of the premises to them. It 372 was not necessary for the first plaintiff to comply with the provisions of section 10 of the Bombay Rents Act, 1944. It further alleged that the Appeal Court of Small Causes of Bombay erred in holding that the first plaintiff could sublet the premises only if he had complied with the provisions of section 10 of the aforesaid Act. According to para. 11 of the plaint the plaintiffs asserted that they were always ready and willing to pay the rent in respect of the said premises and to observe and perform the terms and conditions of the tenancy. Paragraph 12 states the declaration which the plaintiffs prayed for in the suit, which is in the following terms: " The plaintiffs submit that they are entitled to a declaration that 1st plaintiff is a tenant of the said premises within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947, and that the 2nd and 3rd plaintiffs are entitled to the possession, use and occupation of the said premises as the lawful subtenants of the 1st plaintiff in respect of the said premises". Clauses (a) and (b) of para. 18 of the plaint contain the relief sought by the plaintiffs. They are in substance what is stated in para. 12 though separately stated for the first plaintiff and second and third prayer in cl. (c) of the defendants, their plaintiffs respectively. The para an injunction against servants or agents restraining them from proceeding further with the execution of the decree of the Court of Small Causes in suit No. 483/4400 of 1948. It is manifest from the assertion in the plaint and the nature of the relief asked for that the plaintiffs based their case on the provisions of the Act. According to them, the Act gave the first plaintiff protection and the second and third plaintiffs were entitled to remain in possession as subtenants of the first plaintiff. They accordingly sought to avoid eviction by seeking an injunction against the execution of the decree for eviction. One of the grounds upon which a landlord is permitted to evict a tenant under section 13 of the Act is that he has since the coming into operation of the Act, sublet the premises or assigned or transferred in any other manner his interest therein. The 373 Act, however, saved a subletting before its commencement, provided the premises had been lawfully sublet. "Tenant " in the Bombay Rents Act, 1944, means " any person by whom or on whose account rent is payable for any premises, and includes every person I from time to time deriving title under a tenant. " It was never pretended here or in the High Court, as indeed it could not be, that outside the Act a subtenancy would continue to subsist and the sub tenant would become the tenant when the principal tenancy itself had been lawfully terminated. As the definition of "tenant " in the Bombay Rents Act, 1944, included a subtenant, that Act required, under section 10, certain conditions to be complied with for the creation of a lawful subtenancy, as a statutory status of a tenant was being conferred on a subtenant unknown to the ordinary law. Even a lawful termination of the principal tenancy would not affect the subtenant. In suit No. 483/4400 it was finally held by the Appeal Court that the first plaintiff had not lawfully sublet the premises and as his tenancy had been terminated he and his subtenants were liable to be evicted. The plaintiffs seek for a redetermination of these very questions in the suit filed by them in the City Civil Court. The plaintiffs rely upon section 29A of the Act in justification of the suit filed by them in the City Civil Court. According to them, questions of title are expressly allowed to be reagitated in a competent Civil Court other than those specified in section 28 even if such a question arose and was determined by a court exercising jurisdiction under that section. This contention of the plaintiffs makes it necessary to construe the provisions of sections 28 and 29A of the Act. In a suit for recovery of rent where admittedly one party is the landlord and the other the tenant, section 28 of the Act explicitly confers on courts specified therein jurisdiction to entertain and try the suit and expressly prohibits any other court exercising jurisdiction with respect thereto. Similarly, in a suit relating to possession of premises where the relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit is in the 374 courts specified in section 28 and no other. All applications made under the Act are also to be entertained and disposed of by the courts specified in section 28 and no other. In all such suits or proceedings the courts specified in section 28 also have the jurisdiction to decide all claims or questions arising out of the Act or any of its provisions. The words employed in section 28 make this quite clear. Do the provisions of section 28 cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of its provisions ? The answer must be in the affirmative on a reasonable interpretation of section 28. Suit No. 483/4400 of the Court of Small Causes, Bombay was admittedly by a landlord. Eviction of the tenant and those to whom he had sublet the premises was sought on the ground that the latter were trespassers and the former was not entitled to remain in possession, that is to say, that none of the defendants to that suit were protected from eviction by any of the provisions of the Act. The suit, in substance, was a denial of the right of the defendants as tenants. The claim of the defendants was that they were protected by the provisions of the Act. In such a suit the claim of the defendants was one which arose out of the Act or any of its provisions and only the courts ,specified in section 28 and no other could deal with it and decide the issue. The present suit filed in the City Civil Court raised in substance a claim to the effect that the plaintiffs were the tenants of the premises within the meaning of the Act. Such a claim was one which arose out of the Act or any of its provisions. The suit related to possession of the premises and the right of the landlord to evict any of the plaintiffs was denied on the ground that the first plaintiff was a tenant within the meaning of the Act and the premises had been lawfully sublet by him to the second and third plaintiffs. The City Civil Court was thus called upon to decide whether the first plaintiff was a tenant of the premises within the meaning of the Act and whether he had 375 lawfully sublet the same to the second and third plaintiffs. The City Civil Court, therefore, had to determine whether the plaintiffs had established their claim to be in possession of the premises in accordance with the provisions of the Act. As the tenancy of the first plaintiff had been terminated by the landlord, this plaintiff could resist eviction only if he established his right to continue in possession under the provisions of the Act. On the termination of the tenancy of the first plaintiff, outside the provisions of the Act, the subtenancy would come to an end and the landlord would be entitled to possession. This could be denied to him only if the second and third plaintiffs could establish that the premises had been lawfully sublet to them and under section 14 of the Act they must be deemed to be tenants of the premises. in other words, the City Civil Court could not decree the suit of the plaintiffs unless their claim to remain in possession was established under the Act or any of its provisions. Independent of the Act the plaint in this suit disclosed no cause of action. Section 28 obviously contemplates the filing of any suit relating to possession. of any premises to which any of the provisions of Part 11 of the Act apply between a landlord and a tenant and it authorizes the court to deal with any claim or question arising out of the Act or any of its provisions in such a suit. The suit of the plaintiffs filed in the City Civil Court certainly is one relating to possession of premises to which the provisions of Part 11 of the Act apply and in that suit claims and questions arising out of the Act or any of its provisions had to be dealt with. It was, however, suggested that the suit in the City Civil Court was not one between a landlord and a tenant because the defendants of this suit did not admit that the plaintiffs were the tenants of the premises in question. Section 28 applies to a suit where admittedly the relationship of landlord and tenant within the meaning of the Act subsists between the parties. The plaint in the suit in the City Civil Court admits that the defendants were landlords of the premises at various stages and the plaintiffs were their tenants. The suit, therefore, was 376 essentially a suit between a landlord and a tenant. The suit did not cease to be a suit between a landlord and a tenant merely because the defendants denied the claim of the plaintiffs. Whether the plaintiffs were the tenants would be a claim or question arising out of the Act or any of its provisions which had to be dealt with by the court trying the suit. On a proper interpretation of the provisions of section 28 the suit contemplated in that section is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Act subsists between the parties. The courts which have jurisdiction to entertain and try such a suit are the courts specified in section 28 and no other. No doubt section 29A expressly provides that nothing contained in section 28 or section 29 shall be deemed to bar a party to a suit, proceeding or appeal, mentioned therein, in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises. Even if it be assumed that a claim to a right to tenancy of premises is a question of title to the premises, is that a title which section 29A permits a party to establish in a com petent court other than that specified in section 28 ? If it is possible to avoid a conflict between the provisions of section 28 and section 29A on a proper construction thereof, then it is the duty of a court to so construe them that they are in harmony with each other. It is possible to conceive of cases where in a suit under section 28 a question of title to premises which does not arise out of the Act or any of its provisions may be determined incidentally. Any party to the suit aggrieved by such a determination would be free to sue in a competent court to establish his title to such premises by virtue of the provisions of section 29A. On the other band, in a suit where a question of title entirely arises out of the Act or any of its provisions, the jurisdiction to try such a suit was exclusively vested in the courts specified in section 28 and no other. That is to say, a title which could not be established outside the Act but 377 which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a court specified in section 28 and a title de hors the Act may be determined in any other court of competent jurisdiction. The Act purported to amend and consolidate the law relating to the control of rents of certain premises and of evictions. It defined " landlord " and " tenant " to have a meaning wider in scope and concept than those words have under the ordinary law. Any one, who was a landlord or a tenant, as defined in the Act, would have to conform to the provisions of the Act and all claims to such a status would have to be determined under the provisions of the Act as they would be claims arising out of it. The Act specially provided that the courts specified in section 28 shall have the jurisdiction to deal with any claim or question arising out of the Act or any of its provisions and expressly excluded any other court from having such jurisdiction. It is difficult to accept the suggestion that the legislature intended, after setting up special courts under section 28 to deal with such matters, that the same should be reagitated and redetermined in another suit by a court not specified in section 28. By enacting section 29A the legislature clearly intended that no finality should be attached to the decision of a court trying a suit under section 28 on a question of title de hors the Act. The provisions of the Act, on the other hand, clearly indicate that all claims or questions arising out of the Act or any of its provisions, even though they may be in the nature of a title to the premises, were to be determined by the courts specified in section 28 and no other. Some reference was made to section 49 of the which provides that recovery of possession of any immovable property under Ch. VII of the Act shall be no bar to the institution of a suit in the High Court for trying the title thereto. The provisions of this section render no assistance in the matter of interpretation of sections 28 or 29A.; Chapter VII of the deals with the recovery of possession of 48 378 immovable property from a person including a tenant. The provisions of section 41 onwards prescribe a summary mode for recovery of possession which could even be stayed by the Small Cause Court if the provisions Of section 47 were complied with. Indeed, under section 41 no claims or rights are determined. In such a situation it is clearly understandable that nothing contained in Ch. VII could be a bar to the institution of a suit in the High Court for trying the title to the immovable property. In a suit under section 28 the court has to determine all questions relating to recovery of rent or relating to possession and all claims or questions arising out of the Act or any of its provisions. Section 29 provides for an appeal against the decision of the court. Under Ch. VII of the there is no provision for an appeal against an order directing recovery of possession. In our opinion, the High Court correctly decided that the suit filed by the plaintiffs, who are the appellants in this appeal, could not be determined by the City Civil Court. On behalf of the appellants a request was made that if the appeal should fail, they may be given some time to vacate the premises. The High Court in dismissing the appeal had directed " Decree not to be executed for a fortnight ". In granting special leave this Court had granted an ex parte stay, staying the execution of the decree in suit No. 483/4400 of 1948 of the Court of Small Causes, Bombay until the 16th day of January, 1956 and had directed that the stay application be posted for hearing on that date. On that (lay the application for stay was allowed on two conditions being fulfilled and on the non compliance of which the stay order would stand vacated. On February 19, 1957, another order was passed by this Court when its attention was drawn to the non compliance of the conditions stated in the order of January 16, 1956, on the part of the appellants. The stay order was not vacated as the appellants were ordered to do certain things and because of the undertaking given by them that they would deliver forthwith possession of the premises to the respondents in 379 the event of the appeal being dismissed or decided against them. Having regard to the undertaking given, as also the fact that execution of the decree in suit No. 483/4400 of the Court of Small Causes, Bombay has been delayed long enough. , we are unable to accede to the request made by the appellants. The appeal is accordingly dismissed with costs. Appeal dismissed.

A who was a tenant of N sub let the premises to B and C. N filed a suit for ejectment against A, B and C in the Court of Small Causes, Bombay, on the ground of illegal sub letting. The suit was decreed. Thereafter, A, B and C filed the present suit in the Bombay City Civil Court for a declaration that A was a tenant of N and was protected from eviction by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and that B and C were lawful sub tenants of A and were as such entitled to possession, use and occupation of the premises. The City Civil Court held that it had jurisdiction to entertain the suit but dismissed it on the ground that there was no lawful subletting. On appeal, the Bombay High Court held that the City Civil Court had no jurisdiction to entertain the suit and dismissed the appeal without going into the merits : Held, that the High Court was right in holding that section 28 of the Act barred the City Civil Court from entertaining the suit. Section 28 explicitly confers on courts specified therein jurisdiction to entertain a suit between a landlord and a tenant in respect of a claim which arose out of the Act or any of its provisions, 368 and expressly prohibits any other court exercising jurisdiction with respect thereto. In the present suit the claim being one which arose out of the Act, and the City Civil Court not being a court specified in section 28, it could not entertain the suit. Though section 29A of the Act allows questions of title to be regarded in a civil court, it applies only to titles which do not arise out of the Act or any of its provisions; and titles which could riot be established outside the Act but which arose under the provisions of the Act by virtue of a claim made thereunder must be determined by a court specified in section 28.

Appeal No. 1000 of 1965. Appeal from the judgment and decree, dated December 13, 1962 of the Bombay High Court in Appeal No. 688 of 1959 from original Decree. C.K. Daphtary, Attorney General, M.S.K. Sastri and S.P. Nayar, for the appellant. H.R. Gokhale, Y.S. Chitale and K. Rajendra Chaudhuri, for the respondent. 661 The Judgment of the Court was delivered by Sikri, J. This appeal, by certificate granted by the"High Court of Judicature at ' Bombay is directed ' against its judgment and decree, dated December 30, 1962, whereby it seaside the order made by the, Assistant Charity Commissioner, dated. August 19, 1955, 'as confirmed by the Deputy Charity Commissioner and by the District Judge, Nasik. The High Court held that the Nasik Math is not 'liable to be registered under the BOmbay Public Trusts Act, 1950. ' The High Court found the following facts relating to the Nasik Math: "The principal Math is situated in the State of Mysore and as His Holiness is a Sanyasi he generally names the house properties. with temples as 'Maths '. The properties at Nasik, Panchavati, are known as properties of Shringeri Math. The Samadhis have been constructed to look like ' temple, there is Sabha Mandap in which an ,image of; Adya Shankaracharya is installed. All the expenses have been incurred by His Holiness from the income of the Shringeri Math and some money was borrowed from. Nasik creditors. Here religious instructions are not imparted and no spiritual service is rendered to any body of disciples. Some times people come there and if they are given admission they stay there for a short time. There being "Samadhis" in these premises, there are some idols and occasional festivals but it is not a temple for purpose of public worship. No member of the public is allowed to enter the place of worship but 'it is ' carried out by the Pujaris according to Vedic usage. This property is being maintained by the Principal Math from the very beginning. The income consists. (1 ) rent earned by letting the property; (2) offerings made before 'the Samadhis; (3) grant from Nasik Treasury of Rs. ' 289 'per year and. ( 4 ) yearly grant of Rs. 460 1,0 from village Pimpalgaon Funji in Ahmednagar District. " The High Court further observed: "One of the Sanads regarding the income of Pimpalgaon village is on record ' and it shows that the grant of the income 'of the village is made to Shri Shankaracharya clearly mentioning it to be for the expenses of the 'Sansthan ' but the tenor of the documents shows that the offering iS made to the Shankaracharya himself. " 662 The relevant provisions of the Bombay Public Trust Act, 1950 ,(Bombay Act XXXIX of 1950) hereinafter referred to as the Act are as follows: The preamble of ' the Act reads: "An Act to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. " It would be noticed that the intention is only to deal with the trusts which are in the State of Bombay;it is not the idea to regulate or make better provision for the administration of trusts outside the State of Bombay; and one of the questions which we have to answer is whether Nasik Math can be said to be in the State of Bombay. The word "math" is defined in section 2( 9 ) of the Act to mean "an institution for the promotion of Hindu religion presided over by a person whose duty it is to engage himself in imparting religions instructions or rendering spiritual services to a body of disciples or who exercises or claims to exercise head ship over such a body and includes places of religious worship or instruction which are appurtenant to the. institution." "Public trust" is defined in section 2( 13 )to mean "an express or constructive. trust for either a public religions or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the . " The definition of "temple" may also be noted. "Temple" means "a place by whatever ,designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof, as a place of public religious worship. Is. 2(17)]. " Section 18 of the Act provides for registration of public trusts and makes it the duty of the Trustees of a public trust to which the Act applies to make an application for the registration of the public trust. It is under this section that an 'application was made, under protest, by one Y.M. Krishnamurthy, Revenue Officer and Incharge Officer, Shri Shringeri Mutt and its properties. The Assistant Charity Commissioner held an enquiry under section 19 of the Act and came to the conclusion that a trust existed and it is a public trust and is liable to be registered under the Act. An appeal was taken to the Charity Commissioner. The Deputy Charity Commissioner, exercising appellate powers, confirmed the findings and order of the Assistant Charity Commissioner. An application was then made under section 72 of the Act to the District Judge to set aside the decision and order of the Deputy Charity Commissioner, but the District Judge confirmed 663 the order and dismissed the petition. He held that "this institution must be considered as a Branch Mutt even though its origin may be the Samadhis or tombs of the Shankaracharya of the name Abhinava Sachhidanand Bharati." He further came to the conclusion that "the evidence on the record shows that this Institution at Nasik is a place of religious worship within the meaning of the definition in section 2(9) of the Act." He observed; "There is no dispute that there are idols of Shri Adya Shankaracharya and Shri Dattaraya in this institution and worship of those idols is carried on there. The festivals which are held and which are attended by the public who are invited on such occasions are the Jayantis of Shri Shankaracharya and the deity of Shri Dattatraya. In this behalf, the printed invitations (Exhibits 12/29, 12/30 and 12/31) may be perused. There is also day to day worship of these deities which is carried on by the pujaris." He further observed: "Considering from this point of view, this place would be a place of religious worship and there is no dispute that at any rate it is appurtenant to the main institution or the Muth at Shringeri." He further held that "this institution or Foundation at Nasik is admittedly a Branch of the Muth at Shringeri which is founded by Adya Shankaracharya, and this Branch would partake of the nature of the main or principal Institution at Shringeri." He accordingly held that it would be idle to contend that this institution at Nasik would not come within even what is called the 'inclusive portion ' of the definition of 'Muth ' enacted in Section 2(9) of the Act. The learned counsel for the appellant contends that the Nasik Math is an independent Math within section 2(9) of the Act and, therefore, covered by the provisions of the Act; at any rate, even if the Nasik Math is an adjunct of or dependent upon the principal math at Shringeri, it is covered by the Act. In Maharajkumari Umeshwari Kuer vs The State of Bihar(1), while considering the provisions of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act 1 of 1951), Gajendragadkar, J., as he then was, speaking for the Court, observed: "On behalf of the petitioner the learned Attorney General has contended that as a result of our decisions in the group of cases to which we have already referred it is now established that before the Act can apply two (1) petition No. 405 of 1955 decided on December 15, 1960. 664 conditions must be satisfied; first, that the religious trust or the institution itself must be in Bihar, and second, part of its property must be situated in the State of Bihar. Since the first of these two conditions is not satisfied in the present case the Act cannot apply. In our opinion this contention is well rounded and must be upheld. " The facts in that case were that "a temple (was) situated at Vrmdavan Dham in the District of Mathra in Uttar Pradesh. In this temple were installed the family idol of Shri Radha Gopalji as well as the idol of Radhendra Kishorji in 1872 and 1877 respectively by Maharani Inderjit Kuer of Tikari. The said Maharani created a waqf of certain properties known as Balkbar Mahal in the District of Gaya by a registered deed of endowment on July 25, 1872, for the purpose of meeting the expenses relating to food, offering, prayers and worship in the said temple. The Trust owns properties also in Bihar." ' This Court repelled the contention that since the Trustees reside in Bihar and the Trust is substantially administered in Bihar the provisions of the Bihar Act would be applicable, and observed: "It is the situs of the trust of the principal institution or temple with which the trust is integrally connected that determines the applicability of the Act. The properties in question which are situated partly in Uttar Pradesh and partly in Bihar belong to the temple and the deity is their owner. This deity is enshrined in the temple situated at Vrindavan Dham, and so it is common ground that the situs of the temple is outside Bihar. It is also admitted that part of the properties belonging to the trust are in Uttar Pradesh. Therefore the two tests laid down by this Court inevitably lead to the conclusion that the present trust is outside the purview of the Act. The fact that the trustees reside in Bihar or that the trust is partially administered in Bihar for charitable purposes can make no difference to this position. " In Mahant Ramswarup vs Motiram Khandu(1), a case governed by the Bombay Public Trusts Act, Shelat, J., observed: "There. is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three ' pieces of lands situate in the District of Dhulia, are all situate in the, Madhya Pradesh State. The fact that a part of its properties is situate in Maharashtra (1) [1968] Mh. L.J. 363. 665 State, though the trust is within Madhya Pradesh State, would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts. " It seems to us that, in view of the above authorities, in order o determine the situs of the trust, which consists of a Math and subordinate so called math or maths, it is the situs of the principal math which will determine the applicability of the Act. We need not here decide the position of an independent real math bough connected with another math. The ' High Court has ound in this case that in the Nasik Math no religious instructions are imparted and no spiritual service is rendered to any body of disciples. Further no member of the public is allowed 0 enter the place of worship without permission although worship s carried out by the Pujaris according to vedic usage. In view these findings the Nasik Math cannot be held to be a real math or temple within the definitions set out above. In our opinion, the High Court was right in holding that the Nasik Math is not liable to be registered under the Act. The appeal accordingly fails and is dismissed with costs. R.K.P.S. Appeal dismissed.

The Assistant Charity Commissioner, Bombay, held an enquiry under section 19 of the Bombay Public Trusts Act, 1950 and came to the conclusion that the Nasik branch of the principal Shringeri Math situated in the State of Mysore was a public trust and liable to be registered under section 18 the Act. The Charity Commissioner in appeal confirmed this finding and an application under section 72 to the District Judge by the respondent was rejected on the view that the institution at Nasik was a place of religious worship within the meaning of the definition in section 2(9) of the Act. However, the High Court allowed an appeal and set aside the order of the Assistant Charity Commissioner. On appeal to this Court by a certificate, HELD: The High Court was right in holding that the Nasik Math was not liable to be registered under the Act. The High Court had found in the present case that in the Nasik Math no religious instructions were imparted and no spiritual service, was rendered to any body of disciples. Furthermore, no member of the public was allowed to enter the place of worship without permission although worship was carried on by the Pujaris according to Vedic usage. In view of these findings the Nasik Math could not be held to be a real Math or temple within the definition in section 2(9) of the Act. [665 B D] HELD also: In order to determine the situs of ' the trust which consists of a Math and a subordinate so called Math or Maths, it ' is the situs of the principal Math which will determine the, applicability of the Act. [665 B] Maharaikumari Umeshwari Kuer vs The State of Bihar, Petition No. 405 of 1955 decided on December 15, 1960; and Mahant Ramswarup vs Motiram Khandu, (1968) Mh. L.J. 363; referred to.

vil Appeal No. 1006 ot 1980. From the Judgment and Order dated 13.2.1980 of the Karnataka High Court in C.R.P. No. 1287 of 1977. R.B. Datar for the Appellant. S.S. Javali and Ravi P. Wadhwani for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Does a mortgagee with possession stand on a par with an owner of a building to seek the eviction of a tenant under Section 21(l)(h) of the Karnataka Rent Control Act, 1961 (for short the Act ' hereinafter) for his bona fide requirement of the tenanted premises for residential or business needs is the question for determination in this appeal by special leave by a tenant. The Trial Court, the Appellate Court and the High Court in revision have answered the question in the affirmative and the aggrieved tenant now represented by his Iegal representatives is before us in appeal. The tenanted shop to one Nanjappa and the appellant had taken the same on rent for running a cycle shop. On the foot of an usufructuary mortgage executed in their favour, the respondents, who are partners, sought the eviction of the appellant under Section 2l(1)(h) of the Act. Their case was that they were also running a cycle shop in a rented premises but since their landlord had obtained an order of eviction against th In they were bona fide in need of another building to run their business. In such circumstance they had advanced a sum of Rs.25,000 to the appellant 's landlord Nanjappa and obtained a usufructuary mortgage of the tenanted premises and thus having stepped into the shoes of the landlord, they were seeking the eviction of the appellant. The appellant 's defence was that the usufructuary mortgage was a sham and nominal translation created by the landlord with an oblique motive because he had refused to pay higher rent for the premises and secondly the mortgagees were not bona fide in need of the petition premises for their business, The Trial Court rejected both the defences and ordered eviction and the said order has been affirmed PG NO 508 by the Appellate Court and the High Court. In this appeal there is no challenge to the findings that the respondents were bona fide in need of another shop to run their business and that they had obtained an usufructuary mortagage of the tenanted premises from the owner Nanjappa. However, the contention of the appellants is that a usufructuary mortgagee cannot be equated with the mortgagor/landlord for seeking the tenant 's eviction under Section 21(1)(h) on the ground of bona fide requirement of the leased premises for his own use. The argument of Mr. Datar, learned counsel for the appellant was that the Act is a beneficial piece of legislation intended to protect the tenants from unreasonable evictions and as such the provisions of Section 21 have to be construed in such a manner that the right of the tenants are not taken away beyond the limits of the Section. It was urged by the learned counsel that if Section 21(1)(h) is to be liberally construed so as to equate a usufructuary mortgagee with the owner of a building and enable him to seek eviction of a tenant under Section 21(1)(h), then it would give a handle for scheming landlords, who cannot themselves obtain an order of eviction against their tenants under Section 21(1)(h), to crate a nominal deed of usufructuary mortgage and have their tenants evicted with the help of the mortgagee and then secure possession of the leased premises for themselves. In this eontext it was pointed out by Mr. Datar that the usufructuary mortgage in favour of the respondents was only for a period of 30 months and therefore the mortgage should be treated as a colourable transaction. Before we examine the merit of these contentions, we may refer to the relevant provisions of the Act. The term `landlord ' is defined in Clause (h) of Section 3 of the Act as under: "Landlord `Landlord means any person who is for the time being, receiving or entitled to receive, rent in respect of any premises whether on his own account, or on account, or on behalf of, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub tenant who has sub let any premises;" Section 21(1)(h) under which the eviction petition was filed reads as under: PG NO 509 "21( I)(h) that the premises are reasonably and bona fide required by the landlord for occupation by himself or any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust, that the premises are required for occupation for the purpose of the trust. On a reading of Section 3(h) it may be seen that it is an inclusive definition and takes within the fold of 'landlord not only the owner of the premises but any person who for the time being is receiving or is entitled to receive the rent, whether on his own account or on account of, or on behalf of or for the benefit of any other person or as a trustees, guardian or receiver for any other person etc. A usufructuary mortgagee, as per Section 58(d) of the Transfer of Property Act is entitled to be in possession of the mortgage property or to receive the rents and profits, either in full or in part, accruing from the property and appropriate the rents and profits in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage money. By reason of his entitlement to receive the rent of the mortgage property. a mortgagee with possession will undoubtedly constitute a landlord within the meaning of Section 3(h) of the Act. The appellant 's counsel did not dispute this position. He would however say that even so, Section 21( I)(h) should be read down so as to restrict the meaning of the word "landlord" in that clause to the owner of the premises alone and not to a usufructuary mortgagee. Before considering the matter, we may refer to some of the decisions where the same question has been considered. A learned single judge of the Madras High Court has held in V. Baluswamy Servai vs N. Raju Servai, that a usufructuary mortgagee of a building in the occupation of a tenant would undoubtedly constitute a landlord within the meaning of Section 2(6) of the Madras Buildings (lease & Rent Control) Act, 1960, as he is entitled to receive the rent o the building on is Own account and therefore he would be entitled to evict a tenant under Section 10(3)(a)(i) of the Act on he ground of bona fide requirement of the premises for his personal occupation. This ratio was followed in T. Ezhumalai vs Padmavathi Ammal, The same view was taken by a learned single judge of the Karnataka High Court also in a case arising under the Karnataka Rent Control Act in Aswatharamiah vs Special Deputy Commissioner, However, a Division Bench of the Karnataka High Court took a different view in S.Subramanayaswamy vs Deputy Commissioner, PG NO 510 Bangalore, AIR 1981 Karnataka 190 and held that though a mortgagee with possession may satisfy he definition of `landlord ' under Section 3(h) of the Karnataka Act, he would not be entitled to claim priority in the matter of allotment of the mortgage premises to himself under Section 5 as the benefit of the Section could be availed of only by the owner/landlord. As the decision in section Subramanayaswamy (supra) conflicted with some of the earlier decisions of the High Court, a reference was made to a Full Bench in R. Vijendra vs H.R. & A.C., ILR for settlement of law on the question formulated as under: "Whether an usufructuary mortgagee is a landlord for purposes of Part II of the Karnataka Rent Control Act, 1961. " The Full Bench answered the reference in the affirmative and held that since delivery of possession is a necessary concomitant of a usufructuary mortagage and since the concomitant entitles the usufructuary mortgagee to claim possession of the property to the exclusion of all other, including the mortgagor, the mortgagee is for all intents and purposes the owner himself, as he steps into the shoes of owner, and by reason of it he acquires the status of a landlord under Section 3(h) as well as the provisions in Part II for claiming possession of the mortgage premises for is personal occupation. On a consideration of the matter we find ourselves in agreement with the view taken by the Full Bench. We may now give the reasons for our view. The definition of `landlord ' in Section 3(h), as we have already seen in an inclusive definition and would take within its fold any person who for the time being is receiving or is entitled to receive the rent in respect of the leased premises. The person receiving or entitled to receive the rent may do so either on his own account or on account of or on behalf of or or the benefit of any other person or as a trustee, guardian or receiver for any other person. A mortgagee with possession undoubtedly falls under the first category as he is entitled to receive the rent on his own account and this factor makes the usufructuary mortgagee stand on a higher and different footing than other persons accorded the status of a landlord under Section 3(h) because their entitlement to receive rent is on behalf of or for the benefit of others and not on their own account. Secondly it is of significance that the legislature being alive to the expansive nature of the definition of the term `landlord ' in Section 3(h) had realised the need to limit PG NO 511 the operation of the definition in so far as eviction petitions under Section 21(1)(h) are concerned. Section 21(1) sets out various grounds on which the eviction of a tenant can be sought for. The grounds may pertain to the omissions or commissions of the tenant or to the bona fide requirement of the premises by the landlord in various situations. The legislature has taken care to see that in so far as clause (h) is concerned viz the premises being reasonably and bona fide required by the landlord for his own occupation or for the benefit of any person for whom the premises are held, the status of a landlord should be denied to a Rent Collector or an Estate Manager. The exclusion is to be found in the Explanation to Clause 4 of Section 21 in the following terms: "For the purpose of clause (h) of the proviso to sub section 1, expression `landlord ' shall not include a Collector or Estate Manager. " It therefore follows that if the legislature had wanted that a mortgagee with possession should not be equated with the owner of the premises and should be denied the benefit of seeking a tenant 's eviction under Section 21(1)(h), the Legislature would have undoubtedly categorised a mortgagee with possession also as one of the excluded class of landlord lords for the Purposes of Section 21(1)(h) of the Act. Obviously therefore the legislature has not wanted a mortgagee with possession to be excluded of his right to seek eviction of a tenant from the mortgaged premises under Section 21(1) of the Act. Thirdly, a mortgagee with possession is enjoined by Section 76(a) of the Transfer of Property Act manage the property as a man of ordinary prudence would manage it if it were his own. As such the mortgagee 's acts, it prudently done, could bind the mortgagor even after the redemption of the mortgage. A mortgagee with possession, steps into the shoes of the mortgagor and becomes entitled to all the rights of the mortgagor and the only right left with the mortgagor is the right of redemption. A mortgage with possession is entitled to be in possession of the mortgage property as long as it is not redeemed. If the mortgagee with possession leases back the property to the mortgagor, he acquires the rights of a lessor and is entitled to enforce the terms of the lease against the mortgagor (vide Mathur Lal vs Keshar Bai & Anr., ; On account of all these factors there can be no doubt that a mortgagee with possession stands very differently from other kinds of landlords envisaged under Section 3(h) of the Act. He is therefore entitled, as much as the owner himself, to seek recovery of possession of the leased premises from a tenant for his own bona fide requirements of use. For all these reasons we hold PG NO 512 that the view taken by the single judges in the cases referred to above and the Full Bench in R. Vijendra 's case (supra) is the correct view to be taken. As regards the contention of Mr. Datar that a scheming landlord can adopt the devious method of creating a sham deed of usufructuary mortgage in order to have a tenant evicted, when he himself cannot sustain such an action, the argument fails to note that an order of eviction under Section 21(1)(h) would not be passed by the Court for the mere asking because, the mortgagee with possession has first get to prove that the premises are reasonably and bona fide required by him for occupation by himself. Without the reasonable and bona fide requirement being proved to the satisfaction of the Court, no order for eviction will be passed. Nextly, even if the mortgagee with possession satisfies the above test, he has to pass the further test laid down by sub section 4 of Section 21 which provides that a tenant shall not be evicted under Section 21(1)(h) if the Court is satisfied that the tenant would be put to greater hardship by an order of eviction being passed than the hardship that would be caused to the landlord by refusal to pass an order of eviction in his favour. These things apart, it is inconceivable every landlord who would not be able to evict his tenant by resort to Section 21(1)(h) would be able to readily find a willing accessory who will be prepared to play the role of a usufructuary mortgagee and institute eviction proceedings against the tenant in order to secure the possession of the leased premises and then hand over possession to the owner of the building. For all these reasons, the appeal deserves to fail and will accordingly stand dismissed. The appellant is, however, given six months time from today to vacate the leased premises subject to the appellant filing an undertaking in the usual terms within four weeks from today. There will be no order as to costs. H.S.K. Appeal dismissed.

The appellant, now represented by his legal representatives, had taken on rent certain premises and was in occupation thereof. On the basis of a usufructuary mortgage executed by the landlord in their favour, the respondents who are the partners, sought the eviction of the appellant under section 21(1)(h) of the Karnataka Rent Control Act, 1961 on the ground that they were bona fide in need of the premises to run their business. The appellant 's defence was that the usufructuary mortgage was a sham and nominal transaction created by the landlord with an oblique motive because he had refused to pay higher rent for the premises and secondly the mortgagees were not bona fide in need of the premises for their business. The Trial Court rejected both the defences and ordered eviction and the said order was affirmed by the appellate court and the High Court. Hence this appeal. Dismissing the appeal, this Court, HELD: The definition of landlord ' in Section 3(h),is an inclusive definition and would take within its fold any per. who for the time being is receiving or is entitled to receive the rent in respect of the leased premises. The person receiving or entitled to receive the rent may do so either on his own account or On account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person. A mortgagee with possession undoubtedly falls under the first category as under Sec. 58(d) of the Transfer of property Act, he is PG NO 505 PG NO 506 entitled to receive the rent on his own account and this factor makes the usufructuary mortgagee stand on a higher and different footing than other persons accorded the status of a landlord under Scction 3(h) because their entitlement to receive rent is on behalf of or for the benefit of others and not on their own account. [5l0F H] V. Baluswamy Servai vs N. Raju Servai, ; T. Ezhumalai vs Padmavathi Ammal, [1971] J Aswatharamiah vs Special Deputy Commissioner, ; section Subramanayaswamy vs Deputy Commissioner, Bangalore, AIR 1981 Karnataka 190; R. Vijendra vs H.R. & A.C., ILR , referred to. If the legislature so wanted, it would have undoubtedly categorised a mortgagee with possession also as one of the excluded class of landlords for the purpose of sec. 21(1)(h) of the Act. Obviously the legislature has not done so as would appear from the explanation to clause 4 of sec. [511D E] A mortgagee with possession, steps into the shoes of the mortgagor and becomes entitled to all the rights of the mortgagor and the only right left with the mortgagor is the redemption. A mortgagee with possession is entitled to be in posession of the mortgage property as long as it is not redeemed. If the mortgagee with possession leases back the property to the mortgagor, he acquires the rights of a lessor and is entitled to enforce the terms of he lease against the mortgagor. [511F G] Mathur Lal vs Keshar Bai & Anr., ; , referred to. There can be no doubt that a mortgagee with possession stands very differently from other kinds of landlords euvisagad under section 3(b) of the Act. He is therefore entitled, as much as the owner himself, to seek recovery of posession of the leased premises from a tenant for him own bona fide requirement of use. [511g H] V.Baluswamy Servai vs N. Raju Servai ; R Vijendra vs H. R. & A . C., ILR , approved. The appellant 's argument that a scheming landlord can adopt the devious method of creating a sham deed of usufructuary mortgage in order to have u tenant evicted has no force because il fails to note that an order of eviction under sec. 21(1)(h) would not be Passed by the court for the PG NO 507 mere asking because, the mortgagee with possession has first get to prove that the premises are reasonably and bona fide required by him for occupation by himself. [512B C]

minal Appeal No. 103 of 1952. Appeal under article 134(l) (c) of the Constitution of India from the Judgment and Order dated the 27th October, 1952, of the High Court of Judicature for the State of Rajasthan at Jodhpur (Wanchoo C.J. and Bapna J.) in D.B. Criminal Murder Reference No. 2 of 1952, arising out of the Judgment and Order dated the 1st July, 1952, of the Court of the Sessions Judge, Pali, in Criminal Original Case No. 2 of 1951. H. J. Umrigar for the appellants. Porus A. Mehta for the respondent. February 16. The Judgment of the Court was delivered by MAHAJAN J. This is an appeal under article 134(l) (c) of the Constitution of India, by Magga and Bhagga,who have been convicted under section 302, Indian Penal Code, for the triple murders of Ganesh, Gheesa and Hardas. The case relates to an incident which took place on the night between the 3rd and 4th April, 1951 Gheesa and Ganesh, deceased, Ratna, Govind, another Ganesh who is a witness in the case, and Hardas had gone to " Imaratia " a well in village Gadwara on that night to keep watch over the crops there. Gheesa slept in one shed near the well, while Hardas slept in another shed some distance away, and Ratna slept in a third shed near the entrance gate. Ganesh, deceased, Ganesh (P. W.), and Govind slept on the threshing floor further away from the well. Some time after midnight Ratna woke up on hearing the cries of Gheesa. It is alleged that he then saw the two accused beating Gheesa, accused Magga having in his hand a farsi and accused Bhagga having a katari and an axe. Hardas, who woke up on hearing the cries, rushed to the aid of Gheesa and thereupon the two accused, Magga and Bhagga, fell upon him and attacked him with farsi and axe. Ratna 975 ran away and hid himself near the well. On an alarm being raised, one Krishna who was working on a nearby well came and witnessed the attack on Hardas. The accused, after finishing Gheesa and Hardas went to the threshing floor where Ganesh, deceased, was sleeping. There Magga asked Bhagga to hit Ganesh with the axe and Bhagga immediately hit Ganesh with the axe and he fell down. Thereafter Magga hit Ganesh two or three times with the farsi on the legs and Bhagga cut the neck of Ganesh with the katari. Govind (P.W.) entreated on behalf of Ganesh but he was threatened and was told, that if he did not keep quiet he would also be killed. Without injuring Govind and Ganesh (P.Ws.) the accused then left the place. Information of the incident was carried to the village by Ratna and a report of it was made to the police at 11 30 a.m. on 4th April, 1951. In the report it was stated that " Bhagga and Magga are standing at their house with swords and are saying that they would kill more persons. Village people are surrounding them outside the house ". The sub inspector of police, when he arrived at the village, found the house of the accused surrounded by the village people. The door of the house was closed from inside and the accused were standing on the chabutra inside. Magga had a farsi in his hand and Bhagga had an unsheathed sword. The sub inspector got the door opened, arrested the accused, and took possession of the farsi and the sword. He also recovered the axe and a katari which were bloodstained. The clothes of the accused were also taken possession of after the arrest and they appeared to have bloodstains on them. The accused pleaded not guilty. They admitted their partnership in cultivation at " Imaratia " well with the deceased but denied that any quarrel took place between them and the other partners about the cutting of the crop. They also denied that they had gone to the well armed with various weapons and had committed the murder of Gheesa, Hardas and Ganesh. The sessions judge on the evidence led by the prosecution felt satisfied that the prosecution case was 976 proved beyond all reasonable doubt. It was held that the murder was brutal and advantage had been taken of the persons who were sleeping to kill them. In the result the appellants were convicted under section 302, Indian Penal Code, and sentenced to death. The sentence of death passed on them by the sessions judge was confirmed by the High Court after examining the evidence afresh. In the High Court a contention was raised that the whole trial was vitiated inasmuch as it had not been conducted in accordance with procedure prescribed by law. This contention was negatived on the ground that the irregularities committed in the course of the trial were such as were cured by the pro visions of section 537, Criminal Procedure Code. As the objection raised concerned the validity of the trial the case was certified as a fit one for appeal to this Court. The facts which concern the validity of the trial, shortly stated, are these: The trial began on 22nd March, 1952. Three assessors had been summoned for that date. Of these two were present while the third did not come. Thereupon one person who was present in the court premises and whose name was in the list of assessors but who had not been summoned in the manner prescribed by the Code of Criminal Procedure was chosen as an assessor. The trial then began with the three assessors so chosen, viz., Jethmal, Balkrishna and Asharam. On the 6th June, 1952, Jethmal, one of the assessors absented himself and for some reason, which is not clear from the record, one Chimniram was asked to sit in place of Jethmal as an assessor with the result that on the 6th June, 1952, there were three assessors, viz., Balkrishna and Asharam, who had been sitting from the beginning of the trial, and Chimniram who was introduced for the first time that day. On the 23rd June also Chimniram, Balkrishna and Asharam sat as assessors. On 27th June, however, Jethmal reappeared and was allowed to sit and since that date four assessors sat throughout, viz., Jethmal, Chimniram, Balkrishna and Asharam. Eventually all these four assessors gave their opinion on the first 977 July, 1952, when the trial came to an end. It was con tended that the trial was bad as it took place in defiance of the provisions of sections 284 and 285 of the Code of Criminal Procedure and that such an illegality could not be cured by the provisions of section 537 of the Code. In order to judge of the validity of this objection it is necessary to set out the provisions of the Code relevant to this matter. Section 284 provides that, "When the trial is to be held with the aid of assessors, not less than three and, if possible, four shall be chosen from the persons summoned to act as such" . The section as it originally stood required that " two or more shall be chosen as the Judge thinks fit ", so that there had to be a minimum of two assessors. In the year 1923, that provision was amended so as to make a minimum of three assessors an essential requisite for a trial to be held with the aid of assessors. A trial commenced with less than three assessors is not authorised by the provisions of this section as it now stands. Therefore, unless a case comes within the provisions of the next following section 285, a trial held in defiance of the provisions of section 284 would not be legal. Section 285, however, has no application to cases where a trial is commenced with less than three assessors. [Vide Balak Singh vs Emperor (1); Sipattar Singh vs King Emperor (2)]. Section 285 provides : "(1) If in the course of a trial with the aid of assessors, at any time before the finding, any assessor is from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors. (2)If all the assessors are prevented from attending or absent themselves, the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors. " In cases contemplated by this section a trial commenced with the aid of three assessors can be (1) A.I.R. 1918 Pat. (2) A.I.R. 1942 All, 140. 978 continued and finished with the aid of less than three assessors. This section, however, does neither authorize the substitution of an assessor for an absent assessor, nor does it authorise an addition of an assessor to the number of assessors during the course of the trial. The effect of the provisions of sections 284 and 285 is that a trial cannot be validly commenced with less than three assessors chosen in the manner prescribed by the Code, but once validly commenced it can be continued in certain cases to a finish if some, though not all, of the persons originally appointed, attend throughout the trial. If all of them do not attend, then a fresh trial has to be held. An addition in the number of the assessors or a change or substitution in their personnel during the course of the trial is not warranted by the Code; on the other hand, it is implicitly prohibited. The procedure prescribed by section 285(l) is not of a permissive nature. It has to be followed if the conditions prescribed are fulfilled, and like section 285(2) it is of a mandatory character. No scope is left in these provisions for the exercise of the discretion of the judge for supplementing these provisions and for holding a trial in a manner different from the one prescribed and for conducting it with the aid of some assessors originally appointed, and also with the aid of some others recruited during the trial. Section 309 provides that when a trial is concluded, the court may sum up the evidence for the prosecution and defence and shall then require each of the assessors to state his opinion orally and shall record such opinions. Sub clause (2) of this section enacts that the judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors. Sections 326 and 327 enact the method and manner of summoning assessors and jurors. Section 537 provides as follows: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account 979 (a)of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or. (c)of the omission to revise any list of jurors or assessors in accordance with section 324, or (d)of any misdirection in any charge to a jury, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. " The first objection that was taken in the High Court to the validity of the trial was that Asharam who had not been summoned as an assessor could not be appointed as such and hence it should be held that the trial commenced with a minimum of two assessors in defiance of the provisions of section 284. What happened was this: On the date fixed for the trial there was a deficiency in the number of persons who had been summoned and who appeared to act as assessors, the court then sent for Asharam whose name was in the list of assessors and ordered him to sit as an assessor. The High Court took the view, and we think rightly, that the circumstance that the formality of issuing a summons was not gone through was a mere irregularity which was curable under section 537 of the Code, as there was no failure of justice caused on account of that irregularity and that the trial on that account could not be held to be bad. This view is in accord with the decision of the Calcutta High Court in King Emperor vs Ramsidh Rai(1) with which we agree. We are constrained, however, to observe that the High Court did not fully appreciate the decision of the Patna High Court in Balak Singh vs Emperor(2), when it said that that decision held a trial bad where a person was chosen as an assessor who had not been summoned. In that case during the examination of the first witness only one qualified assessor was present in court and capable of acting as such, the judge ordered another person who happened to be present in court but was not in the official list of assessors to act as an (1) 30 Crl. L. J . (2) A.I.R. 1918 Pat. 420. 980 assessor, and it was held that as the trial commenced with only one assessor and not with two duly qualified assessors the trial was abortive and contrary to law. No exception could therefore be taken to the rule stated in this decision. The second objection against the validity of the trial taken before the High Court was founded on section 285. It was contended that when one of the assessors appointed absented himself the court was bound, under section 285, to ascertain before proceeding further with the trial whether the absence of the assessor was due to sufficient cause and whether it was practicable to enforce his attendance and that the judge in this case failed to observe this condition which alone entitled him to continue the trial with the remaining assessors and that the defect was fatal to the validity of the trial. The High Court held that though there was non compliance with the provisions of section 285 in the case, this irregularity was cured by section 537 as it had not in fact caused failure of justice. We agree with the High Court in this conclusion. It is no doubt true that the section enjoins on the judge a duty to find whether there is a sufficient cause for the non attendance of an assessor and whether it is not practicable to enforce his attendance, and ordinarily the proceedings must represent on their face whether this duty has been performed, but we think that such an omission on his part does not necessarily vitiate the trial. We are further of the opinion that when a judge proceeds with a trial in the absence of one or two of the assessors with the aid of the remaining assessor or assessors, it may be presumed that he has done so because he was satisfied that it was not practicable to enforce the attendance of the absent assessor or assessors and that there was sufficient cause for his or their non attendance. If, however, there is evidence to a contrary effect, the matter maybe different. Failure to record an order indicating the reasons for proceeding with the trial with the aid of the remaining assessors can at best be an irregularity or an omission which must be held to 981 be such as to come within the reach of section 537 unless it has in fact occasioned a failure of justice. It could not be seriously argued that such an omission can lead to such a result. Finally the learned counsel contended, also relying on section 285, that the sessions judge had no jurisdiction or power to substitute an assessor or to reinstate the absent assessor, or to add to the number of assessors. When the point was raised before the High Court, it fully realized that there was no provision in law which permitted such substitution of an absent assessor by another assessor or the subsequent reinstatement of an absent assessor as bad been done in this case. It, however, felt that the irregularity was of the same nature as noncompliance with the provisions of section 285, and as such was cured by section 537 of the Code. In regard to the addition of an assessor during the trial it said: " We have not been able to find any reported case where an assessor had been added in the middle of the trial as has been done by the learned judge. That is perhaps due to the fact that no judge ever did such an obviously silly thing, but considering that the trial, in any case, continued with the aid of two assessors who were there throughout, there was, in our opinion, substantial compliance with the mode of trial provided in the Code and the irregularity committed by the addition of Chimniram in June, 1952, is curable under section 537 as it did not occasion any failure of justice. The sessions judge was still the court of competent jurisdiction to try the case and all that he did was to add unnecessarily one more assessor to advise him when he had no business to do so. We can ignore his presence altogether and as the irregularity has not caused failure of justice, the trial will not be vitiated". In our judgment, the High Court was in error in this view. The sessions judge during the progress of the trial not only made a change in the personnel of the assessors originally appointed and also added to their number, but he. actually took the opinions 127 982 of all the four assessors as required by the provisions of section 309 of the Code, and acted in accordance with those opinions in convicting the two appellants. It is plain that a unanimous verdict of four assessors is bound to weigh much more with a judge than the opinion of two persons. We have not been able to understand how the High Court could ignore the presence of assessors altogether who had given their opinions and which opinions had been accepted by the judge. The opinion of an assessor is exercised in the judicial function imposed upon him by law, and the judge is bound to take it into consideration and he cannot dispense with it. The judge considered this trial as if lie had commenced it with the aid of four assessors, and taking into consideration their opinion, he convicted the appellants. It is difficult to assess the value which the judge gave to the opinions of the assessors at the time of arriving at his finding and the High Court was in error in thinking that it did no harm and caused no prejudice. We cannot subscribe to the view of the High Court that the trial should be taken as having been conducted with the aid of the two assessors as sanctioned by section 285, Criminal Procedure Code. That is not what actually happened. It is difficult to convert a trial held partly with the aid of three assessors and partly with the aid of four assessors into one held with the aid of two assessors only. At no stage was the trial held with the aid of two assessors only. The third substituted assessor attended a part of the trial and the added fourth assessor also attended a part of it. None of these two were present throughout. Thus the trial when it concluded was a different trial from the one which was commenced under the provisions of section 284, Criminal Procedure Code. To a situation like this we think section 537 cannot be called in aid. Such a trial is not known to the Code and it seems implicitly prohibited by the provisions of sections 284 and 285. What happened in this case cannot be described as a mere error, omission or irregularity in the course of the trial. It is much more serious, It 983 amounts to holding a trial in violation of the provisions of the Code and goes to the root of the matter and the illegality is of a character that it vitiates the whole proceedings. As observed by their Lordships of the Privy Council in Subramania lyer vs King Emperor( '), disobedience to an express provision as to a mode of trial cannot be regarded as a mere irregularity. In Abdul Rahman vs King Emperor (2), the distinction between cases which fall within the rule of section 537 and those which are outside it was pointed out by Lord Phillimore. There it was said that the distinction between Suubramania Iyer 's case (1) and that case in which there was an irregularity in complying with the provisions of section 360 of the Code was fairly obvious. In Subramania Iyer 's case(1) the procedure adopted was one which the Code positively prohibits and it was possible that it might have worked actual injustice, to the accused but that the error in not reading the statements of witnesses to them was of a different character, and such an omission was not fatal. In Pulukurti Kotayya vs King Emperor(3) their Lordships again examined this question. That was a case where there had been a breach of the provisions of section 162, Criminal Procedure Code, and it was held that in the peculiar circumstances of that case it had not prejudiced the accused and the case therefore fell under section 537 and that the trial was valid notwith standing the breach of section 162. Sir John Beaumont in delivering the decision of the Board made the following observations which bring out the distinction between the two sets of cases: There are, no doubt, authorities in India which lend some support to Mr. Pritt 's contention, and reference may be made to Tirkha vs Nanak (4), in which the court expressed the view that section 537, Criminal Procedure Code, applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to, mandatory provisions of the Code, and to In re Madura Muthu (1) (1901) 28 l.A. 257. (3) (1947) 74 I.A. 65. (2) (1927) 54 I.A. 96. (4) All 475. 984 Vannian(1), in which the view was expressed that any failure to examine the accused under section 342, Criminal Procedure Code, was fatal to the validity of the trial, and could not be cured under section 537. In their Lordships ' opinion, this argument is based on too narrow a view of the operation of section 537. When a trial is conducted in a manner different from that prescribed by the Code [as in Subramania lyer 's case(2)], the trial is bad, and no question of curing an irregularity arises: but if the trial is conducted sub stantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships ' Board in Abdul Rahman vs King Emperor( '), where failure to comply with section 360, Criminal Procedure Code, was held to be cured by sections 535 and 537. The present case falls under section 537, and their Lordships hold the trial valid notwithstanding the breach of section 162. " In our judgment, the trial conducted in the present case was conducted in a manner different from that prescribed by the Code and is bad and no question here arises of curing any irregularity. The Code does not authorize a trial commenced with the aid of three named assessors to be conducted and completed with the aid of four assessors. The substitution of one assessor by another and an addition to the number of assessors appointed at the commencement of the trial is not sanctioned by section 285, Criminal Procedure Code, nor is it authorized by section 284. On the other hand, the language of section 285(l) read with the provisions of section 285(2) implicitly bans the holding of such a trial. It is not possible to say with any degree (1) Mad. 82o. (2) (1901) 28 I.A. 257. (3) (1927) 54 I.A. 96. 985 of certainty to what extent the opinion of the outgoing and the incoming assessors who did not attend the whole of the trial influenced the decision in the case ; but as such a trial is unknown to law, it has to be presumed that it was illegal. Mr. Mehta for the State Government contended that under section 309(2) the opinion of assessors is not binding on the sessions judge and their presence or absence does not affect the constitution of the court and that as at this trial at least two of the assessors originally appointed sat throughout the trial it should be held that the trial was substantially a trial conducted in accordance with the provisions of the Code. The learned counsel did not go to the length of urging that a trial without the aid of any assessors whatever was a good trial under the Code. Such a contention, if raised, would have to be negatived in view of the clear provisions of section 284 and of sub section (2) of section 285. The appointment of at least three assessors is essential for the validity of a trial of this character at its commencement, and once validly commenced,in certain events, it can be validly concluded if at least one of them remains present throughout, while others drop out; but a trial conducted in the manner in which it was done in this case is wholly outside the contemplation of the Code and it is not possible to hold that it was concluded according to the provisions of the Code. The provision in the Code that the opinion of the assessor is not binding on the sessions judge cannot lend support to the contention that the sessions judge is entitled to ignore their very existence. As already pointed out, though he may not be bound to accept their opinions, be is certainly bound to take them into consideration. The weight to be attached to such opinions may well vary with the number of assessors. Mr. Mehta to support his contention placed reliance on the majority decision of the Madras High Court in King Emperor vs Tirumal Reddi (1). In that case the trial continued for about seven weeks. During that (1) Mad. 986 period one of the assessors was permitted to absent himself during two whole days, and five half days respectively, at first, so that he might visit his mother on her death bed, and subsequently, to perform the daily obsequies rendered necessary by her decease. He then resumed his seat as an assessor and continued so to act until the termination of the trial, all the depositions recorded in his absence having been read by him on his return. At the conclusion of the trial the sessions judge invited the opinion of each assessor, and recorded it. The opinion of each was that all the accused were guilty and the judge concurring in that opinion, convicted. the accused. On appeal it was contended that the judge had acted contrary to law in allowing the assessor who had been absent to resume his seat as an assessor and in inviting and taking into consideration his opinion in deciding the case. It was held by the majority of the court that the finding and the sentence appealed against had been passed by a court of competent jurisdiction within the meaning of section 537 of the Code and that the defect in the trial did not affect its validity and was cured by that section as the irregularity had not in fact occasioned a failure of justice. Mr. Justice Davies took a different view. This decision was clearly given on the peculiar facts and circumstances of that case and is no authority in support of the view contended for by Mr. Mehta. For the reasons given above we are constrained to hold that the trial of the appellants conducted in the manner above stated was bad and the appellants have to be retried in accordance with the procedure prescribed by the Code. In the result we allow this appeal, quash tile conviction and sentence passed on the appellants, and direct their retrial by the sessions judge in accordance with the procedure prescribed by the Code. Appeal allowed Retrial ordered.

Section 285 of the Criminal Procedure Code permits a trial commenced with the aid of three assessors to be continued and completed with the aid of less than three if during the course of the trial any assessor is prevented by sufficient cause from attending. It does not, however, authorise the substitution of an assessor for an absent one nor an addition to the number of assessors during the course of the trial. A, B and C were summoned to sit as assessors for a murder trial and as C did not appear, D who was in the list of assessors and who was present in court though not summoned, was asked to sit as an assessor, and the trial commenced with three assessors A:, B and D. A absented himself during the course of, the trial and the judge asked E to sit in place of A and proceeded with the trial for some days with B, D and E. Later on A appeared and the trial continued till the end with the four assessors A, B, D and E: Held, (i) that the mere fact that D who had not been sum moned was allowed to sit as an assessor when the trial commenced did not vitiate the trial as it, was a mere irregularity and did not cause any failure of justice; King Emperor vs Ramsidh Rai approved. Balak Singh vs Emperor (A.I.R. 1918 Pat. 420) explained. (ii)though sub section (1) of section 285 imposes a duty on the judge to find out whether there was sufficient cause for the absence of an assessor and to consider whether it is not possible to enforce his attendance, it should be presumed that he has done so when he proceeds with the trial in his absence and a mere omission to record reasons for proceeding with the trial without the absent assessor would not by itself vitiate the trial ; (iii) a sessions judge, however, has no jurisdiction to substitute another person for any assessor who absents himself during the trial or to reinstate the absent assessor when be reappears and continue the trial with four assessors when the trial commenced with three assessors, and the trial in question was there fore illegal. 126 974 King Emperor vs Tirumal Reddi (I.L.R. distin guished.

Special Leave Petition (Civil) No. 15327 of 1989. From the Judgment and Order dated 18.7. 1989 of the Rajasthan High Court in D.B. Civil Writ Petition No. 2161 of 1988. C.S. Agarwal, H.R. Parekh, S.K. Jain for the Petitioner. O.P. Vaish, section Rajappa and Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. This is a special leave peti tion directed against the judgment and order of the High Court of Rajasthan, dated 18th July, 1989. The petitioner herein i.e. Smt. Kusum Lata Singhal carried on, at all relevant times, business under the name and style of M/s. Lata & Company and she claims to be an authorised stockist of Baba Brand Tobacco manufactured by M/s. 495 Dharampal Premchand Ltd., New Delhi. Mr. R.K. Singhal is the husband of the petitioner. In the judgment under appeal, it has been stated that Mr. R.K. Singhal owns a house No. E117, Shastri Nagar in Jaipur and the petitioner lived with her husband at all material times. Mr. Singhal was a partner in Lata Sales Centre and is said to be a sub dealer of M/s. Lata & Company. A search under section 134 of the Income Tax Act, (hereinafter called 'the Act ') was conducted at the said premises on 25/26th November, 1987. During the search, valuables and books of accounts were seized on 26th Novem ber, 1987, and a notice under rule 112A of the Income Tax Rules, 1962 (hereinafter referred to as 'the Rules ') read with sub section (5) of Section 132 of the Act was issued to the petitioner by the Income Tax Officer. The notice was served on the husband of the petitioner. In the application under Article 226 of the Constitution of India filed before the High Court, the petitioner claimed return of account books and other valuables which were seized on 26th November, 1987. The return was claimed be cause, according to the petitioner, the retention of the books and valuables was in violation of the provisions of section 132 of the Act. The High Court in the judgment under appeal came to the conclusion that the authorisation for search in the instant case under section 132(1) of the Act was not valid or legal. Therefore, the High Court held that search was bad. At the time of search the silver and gold ornaments worth about Rs.4,58,1089 were found and some other silver and gold ornaments were also found but these were not seized. The High Court had directed return of account books to the petitioner on furnishing photostat copies thereof. The High Court came to the conclusion that the authorisation under section 132(1) of the Act was not in accordance with law and, therefore, the search and seizure of the assets could not be said to have been in accordance with law. The High Court noted that in view of the fact that by virtue of the power under section 132(7) and the order made under section 132(5) of the Act against the husband of the peti tioner, the valuables etc. could not be ordered to be re turned to the petitioner. Aggrieved thereby, the petitioner seeks to challenge the said order under Article 136 of the Constitution of India. Mr. C.S. Agarwal appearing for the petitioner, contended before us that if search and seizure were illegal then the evidence obtained by such search and seizure could be uti lised in subsequent proceedings, but the items of 386 jewellery and goods worth, according to him, over Rs.2,97,000 were liable to be returned. We are, however, unable to entertain this appeal. In the instant case the husband of the wife stayed in the same premises. The author isation of search and seizure in respect of account books and goods which were seized was against the wife but in the proceedings under section 132(5) of the Act the husband Mr. Singhal has contended and claimed that the ornaments in question or the jewellery belonged to him. Mr. Vaish, learned counsel appearing for the revenue, has drawn our attention to an authorisation issued against the husband Mr. Singhal under sub section (5) of section 132 of the Act. Indeed, Mr. R.K. Singhal has stated on oath before the authorised officer at the time of search that the same belonged to him and he has claimed the same to be treated as representing his undisclosed income. Mr. R.K. Singhal, the husband, as his evidence has recorded in the proceedings against him, has disclosed the same and surren dered a total sum of over Rs.4,00,000 consisting of undis closed cash of Rs. 1,16,550 and excessive jewellery worth Rs.2,97,750 received from his possession as his income for the purpose of income tax assessment for the current year, which he claims to have earned from his business. Therefore, it appears that there is dispute as to who is the owner of the jewellery and ornaments or in other words, to whom do these belong. If in such a situation the High Court has declined to direct return of items of jewellery and orna ments, such decision cannot be faulted. Even though the search and seizure has been declared illegal, it cannot be illegal and the question of, dispute about the items not being urged before the High Court, we cannot say that the High Court has committed any error in this case thereby requiring interference by this Court, or, in other words, that injustice has been caused to any party. It is well settled that the dispute as to the ownership of jewellery in question cannot be reserved in proceedings under Article 226 of the Constitution in the manner sought for by the petitioner. Mr. Agarwal drew our attention to the decision in Assaina & Anr. vs Income Tax Officer, Calicut & Ors., wherein the Kerala High Court has observed that the goods which were seized from the custody of a particular person, should normally be returned to the person from whose custody the same had been seized. The aforesaid may be the position where there is no dispute as to the ownership of the goods in question. In such a situa tion, return of the goods to the person from whose custody the same are seized, may be possible but the said decision or the observations therein would be no authority in support of the petitioner 's contention in the instant case where there is a dispute. 397 Our attention was also drawn to certain observations of this Court in J.R. Malhotra & Anr. vs Addl. Sessions Judge, Jullundur & Ors., ; in support of the propo sition that revenue could not indirectly keep the money seized on the plea that there would be a demand and that the money may be kept by revenue where surrender and seizure was wrong. We are afraid that the aforesaid observations of this Court are also of no avail in the light of the perspective that we have mentioned hereinbefore. The said observations were made entirely in a different context. Our attention was also drawn to the observations of this Court in Commissioner of Commercial Taxes, Board of Revenue, Madras & Anr. vs Ramkishan Shrikishan Jhaver etc. ; , in support of the proposition that when a search was found illegal, the goods should be returned. Normally speak ing, that would be so. This proposition is unexceptional but in the light of the controversy as we have perceived in this case, we are clearly of the opinion that this submission will not be of any assistance in doing justice in this case. Mr. Agarwal further contended that if the proceedings under Section 132(5) for the original search were held to be invalid then all proceedings thereafter would be invalid and, therefore, the proceedings initiated as a result of that search even against the husband, would be invalid and such a statement of the husband recorded, cannot be utilised any further. In the instant controversy we are not concerned whether the proceedings against the husband under section 132(5) of the Act are valid or not but irrespective of the validity of the proceedings, the evidence or testimony as mentioned hereinbefore, wherein he has asserted the orna ments and jewellery to be his, cannot be wiped out and does not become non existent. After all, we are concerned with the contention of the husband that the jewellery in question belongs to him, in this case. The aforesaid being the factu al matrix, the High Court, in our opinion, was pre eminently justified in declining to direct return of these identical jewellery and other items to the wife. If that is the posi tion then it cannot be said that the High Court has commit ted any error in law which requires rectification by this Court. This application for leave under Article 136 of the Constitution is certainly not entertainable. In the prem ises, this application must be dismissed without any order as to costs. Interim orders, if any, are vacated. R.S.S. Petition dis missed.

The petitioner was carrying on business as a stockist of Baba Brand Tobacco. The petitioner 's husband, who was a sub dealer of the product, was living with her at all mate rial times. A search under section 132 of the Income Tax Act was conducted at their house and valuables and books of account seized. A notice under rule 112A of the Income Tax Rules read with sub section (5) of section 132 of the Act was served on the petitioner. The petitioner filed an application in the High Court under Article 226 of the Constitution claiming return of account books and other valuables to her. On the other hand, in the proceedings under Section 132(5) of the Act against the petitioner 's husband, he had claimed that the ornaments belonged to him and that the same could be treated as representing his undisclosed income. The High Court came to the conclusion that the authori sation for search under section 132(1) of the Act against the petitioner was not in accordance with law and, there fore, the seizure of the assets could not be said to have been in accordance with law. The High Court however noted that in view of the order made under section 132(5) of the Act against the husband, the valuables could not be ordered to be returned to the petitioner. Before this Court, it was contended on behalf of the petitioner that if search and seizure were illegal, the items of jewellery were liable to be returned On behalf of the Revenue, it was contended that in a situation where there was a dispute as to who was the owner of the jewellery and ornaments, the decision of the High Court declining to direct their return to the petitioner could not be faulted. 394 Dismissing the special leave petition, the Court, HELD: (1) A dispute as to the ownership of jewellery in question cannot be resolved in proceedings under Article 226 of the Constitution in the manner sought for by the peti tioner. [397F] (2) In the instant controversy the Court is not con cerned whether the proceedings against the husband under section 132(5) of the Act are valid or not, but irrespective of the validity of the proceedings, the evidence or testimo ny wherein the husband has asserted the ornaments and jewel lery to be his, cannot be wiped out and does not become non existent. The aforesaid being the factual matrix, the High Court was pre eminently justified in declining to direct return of these items of jewellery and other items to the wife. If that is the position, then it cannot be said that the High Court has committed any error in law which required rectification by this Court under Article 136 of the Constitution. [397E G] Assainer & Anr. vs Income Tax Officer, Calicut, ; J.R. Malhotra & Anr. vs Additional Sessions Judge, Jullunder, ; and Commissioner of Commercial Taxes, Board of Revenue, Madras vs Ramkishnan Shrikishan Jhaver, ; , distinguished.

: Criminal Appeal No. 7 of 1979. From the Judgment and Order dated 13.2.1978 of the Andhra Pradesh High Court in Criminal Appeal No. 812 of 1976 and 807 of 1977. K. MadhaVa Reddy, TVSN.Chari, Narashima P.V.P.L. and Ms. M. Gupta for the Appellant. R.K. Garg, T. Rama Mohan Raj, N.M. popli and V.J. Fran cis for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Ram Subba Reddy, an advocate, politician ' (an ex MLA) cum trade unionist was done to death when he was sleeping on the terrace of his house in Proddatur, District Cuddapah, on the night 'between 14th and 15th April, 1975. The incident in question occurred at about 3.30 a.m. in which, apart from the deceased Ram Subba Reddy having re ceived fatal blows by lethal weapons, his daughter PW 1 Krishnaveni, aged about 24 years, received injuries when she attempted to 'go to help her father. As many as 19 persons were put up for trial before the learned Additional Sessions Judge, Cuddapah on different charges. Original accused Nos. 1 and 7 to 19 were charged for criminal conspiracy under section 120B; original accused Nos. 1 to 6, 12 and 13 were charged for rioting with deadly weapons under section 148; original accused No. 16 was charged under section 147 along with original accused Nos. 1 to 6, 12 and 13; original accused Nos. 1 to 6, 12 and 13 were also charged for murder under section 302; the said accused alongwith original accused No. 16 were also charged under section 302/149; original accused No. 5 was charged under section 324 and he as well as original accused Nos. 1 to 604 4, 6, 12, 13 and 16 were charged under Section 324/149, I.P.C. To bring home the charges against them the prosecu tion mainly relied on the testimony of PW 1 Krishnaveni, PW 2 Venkata Subbamma, widow of the deceased, PW 3, Venkat Rami Reddy and PW 4 Kasireddy sambasiva Reddy, both of whom it is claimed were sleeping on the ground floor of the house of the deceased and PW 5 Annapu Reddy Venkata Subba Reddy, a neighbour who arrived at the scene of incident on hearing the commotion and who at the instance of PW 1 lodged the FIR Exh. P 56 at about 4.30 a.m. The learned Additional Sessions Judge accepted the evidence of PWs 1, 2, 3 and 5, PW 4 having turned hostile, and convicted original accused Nos. 1 and 3 under section 148 and section 302 and 324 with the aid of section 149, I.P.C. and original accused ' No. 5 under sections 148, 302 and 324, I.P.C., substantively. All the three of them were sentenced to life imprisonment for mur dering Ram Subba Reddy and to rigorous imprisionment for 3 years under section 148, I.P.C. No separate sentence was imposed for causing injuries to PW 1. The rest were acquit ted of all the charges levelled against them. No appeal was preferred to the High Court against their acquittal but the three convicted accused preferred an appeal to the High Court challenging their conviction while the State appealed for enhancement of the sentence of accused No. 1 from life imprisonment to capital punishment. The High Court doubted the testimony of PWs 1, 2, 3 and 5 and their capacity to identify the assailants and, therefore, acquitted them of all the charges levelled against them. Consequently the State 's appeal for enhancement of accused No. 1 's sentence also failed. While the State has preferred this appeal against the order of acquittal or ' original accused Nos. 1, 3 and 5, no appeal has been preferred against the dismissal of he State 's appeal for enhancement of the accused No. 1 's sentence. A few facts leading to this appeal may be noticed. The deceased was a practising lawyer and a congressman. He was member of the Legislative Assembly during the 1967 ,1972 term. He had his own house in which he resided. AcCused No. 1, a medical practitioner, was a trade union activist be longing to the Communist party of India (Marxist Leninist group) and weilded considerable influence among the working classes. Accused No. 2 was a lower division clerk in the judicial department, District Cuddapah, but was on cave at the material time. He was a close associate of accused No. 1. Accused Nos. 3 and 5 were employees of Andhra Cotton Mills, Proddatur, while accused Nos. 4 and 6 were employees of International Packaging Company, Proddatur, and took part in trade union activities. In the first quarter of 1974 the workers of the International Packaging Com . 605 pany had served the management with a charter of demands and accused No. 1, who was the President of the Union had served the management with a strike notice on the ' failure of the negotiations which the management countered by declaring a lock out. Thereafter PW 21 Jutura Ramaniah partner of the company was assaulted on the night of March 30, 1974 for which a case was registered against accused No. 1 and his companions. The deceased who was a lawyer for the company is stated to have advised accused No. 1 not to resort to vio lence for settlement of such industrial disputes. As the deceased was representing the company the relations between the deceased and accused No. 1 which were cordial were soured and the latter stopped visiting the former. In the month of November 1974, on the advise of the deceased, the management brought workers from Bangalore and started the factory. However the workers ' union could prevail upon those workers not to report for. work and the unit again same to a standstill within about ten days of commencement. The dis pute was referred to the arbitration Of three persons but they could not resolve it on account of the uncompromising attitude of the workers led by accused No. 1. While this unrest continued trouble started brewing with the transport workers union of which accused No. 1 was the President striking work. Here too the management was repre sented by the deceased. The atmosphere in the township was surcharged and tense. With the intervention of the State Minister the dispute between the transport workers and the owners was settled but so far as the International PaCkaging Company is concerned its employees did not participate in the meeting called by the Minister. A warrant for the deten tion of accused NO. 1 under MISA was issued on February 14, 1975 but the same could not be executed as he went under ground. On the advice of the Minister the management unilat erally opened the factory w.e.f. March 19, 1975. The de ceased had throughout taken a very active interest in ensur ing the starting of the factory notwithstanding the stand taken by the union. The union had also complained about the unilateral imposition of certain conditions on the ' workmen but to no avail. The workers began to report for work though the union was not reconciled. On the other hand since the warrant for accused No. 1 's arrest could not be executed a warrant for the attachment of his properties was issued on April 9, 1975. PW 11 M. Sajjana, Assistant Station Master, Cuddapah, had started an INTUC branch at Cuddapah sometime ' in Decem ber, 1973. Under its banner a youth conference was organised on January 26, 606 1975. PW H presided. over that conference and a decision was taken explore the possibility of starting an INTUC branch at Proddatur with the help of the deceased. Pursuant thereto PW 11 and others visited Proddatur on March 27, 1975 to discuss the matter with the deceased. The deceased promised all possible help and agreed to provide space for the office of INTUC in his own office. Ultimately to counter the militant activities of accused No. 1 who was in control of most of the labour unions in the town a decision was taken to start an INTUC branch in Proddatur w.e.f. April 19,1975. Pamphlets were issued in this behalf soliciting the co operation ,of workers and others. This was the last straw on the camel 's back. The physical condition of the. place. of occurrence may be noticed to. appreciate the ocular evidence. The house faced southward and lay along a public road with open space in the front covered by a.compound,wall in the front with no such wall on the remaining three sides. In the front was a verandah and thereafter came the drawing room in which was installed a telephone. Further to the north was. a room and beyond that was a hall. Then came another covered verandah with a tin sheet sloping roof at a height of about 7 feet from the ground level. This was the ground floor accommoda tion. The staircase.leading ' to the terrace was situate in the hall. This staircase opened in a room leading to the open terrace. This terrace room had an asbestos 'sheet projection whereunder there was an electric bulb. The ter race had a parapet wall all round of the height of about 3 feet. On the south west side of the terrace room along. the parapet wall there existed a 24 feet long pial of the. height of 20 inches and width of 18 inches. A window in the western wall had a cement shade 4 feet x 2 feet in size, Adjacent to. that window was a telephone pole hardly five feet away from the wall with the upper end hardly 6 1/2 inches from the cement shade. The prosecution case is that this telephone pole was used by the assailants to launch the attack on the deceased. The family of the deceased comprised of his wife PW 2, two daughters, one of whom was married and lived with her husband and, the other PW 1 was a medical student, and three sons none of whom was in town on that day. Pw. 1 was study ing in the third year at Kakinada and had come home as the college was closed from April 12 to April 20, 1975. PW 1 deposed that on the date of the incident after dinner she and her parents chit chatted for sometime and thereafter her father went to the terrace as it Was summer and retired for the night. She continued to talk with her mother and in the meantime PWs 3 and 4 arrived. They carried their beddings to the verandah and slept 607 there. PW 3 used to sleep at their house since the last couples of years whereas PW 4 came there occasionally. After they left for the verandah the witness closed the 'ground floor door to the house, carried an anatomy book and went to the terrace to sleep. She read in the terrace light which was under the asbestos projection and then went to bed on the cot laid for her keeping the light on as was the usual practice. Her mother did not sleep on the terrace as she was not allowed to climb the stairs since she had recently undergone an operation. Her father was sleeping on the bed laid on the floor wearing a banian. A hurricane lantern was also kept lighted on account of frequent power failures. At about 3.30 a.m. she woke up hearing the cries of her father and saw accused No. 1 and 6 or 7 others stabbing her father with daggers. She raised an alarm and tried to go to the rescue of her father but she was prevented by three of them from getting up. According to her accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot. Thereafter accused No. 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sustained injuries on her left index finger, thumb and palm region extending to another finger. Till the assailants had finished with her father she was pinned down to her bed and thereafter the assailants went to the west, climbed the parapet wall and went down the terrace. She then ran down crying that accused No. 1, whom she knew since quite sometime, and his companions had killed her father. She woke up her mother and informed her of what had hap pened. On hearing a knock on the main entrance to the house, she opened the door and found PWs 3 and 4 holding a torch. On inquiry she told them that accused No. 1 and his compan ions had killed her father and she too was injured. She learnt from them that they had seen accused No. 1 and 4 or 5 others slide down the telephone pole situated to the west of the house. She then tried to contact the police on phone but found that the same was disconnected. Since PW 5 a neighbour was there she requested him to go tO the police station and fetch the police. On receipt of information a Sub Inspector of police and a few constables arrived by about 5.00 or 5.30 a.m. to whom she narrated the incident whereupon her state ment was recorded which has been introduced on record as Exh. The Sub Inspector held the inquest on the dead body between 7.00 and 10.30 a.m., drew up a panchnama of the scene of occurrence, attached the anatomy text book and other blood stained articles from the terrace, including the electric bulb from the socket of the electric holder on the terrace, At the identification parade held later she identi fied accused Nos. 3 and 5 as the companions of accused No. 1. In cross examination she ' denied the suggestion that accused Nos. 3 and 5 were shown to her while they were in the sub jail before 608 she was asked to identify them. It transpires from her cross examination that the defence case was that she had not slept on the terrace, that the cut injuries on her left hand were self inflicted and that she was falsely implicating accused Nos. 3 and 5 as they had supported her rival Padma in a college election when she was in the B.Sc. class. It was also suggested that photographs of accused. Nos. 3 and 5 were shown to her from a group photo obtained from A.C. Mills Union Office. It may be mentioned that the suggestions made to this witness in regard to the identity of accused Nos. 3 and 5 are self contradictory in the sense that if the suggestion that she was falsely involving these two accused because they had helped Padma who contested the election against her is correct it would follow that they were known to her since long in which case there would be no need to point them out to her while they were in the sub jail or to show their photographs to her. Suffice it to say that. nothing very striking, except minor contradictions, has been elicited in her cross examination which would shake her credibility. PW 2, her mother, corroborates her say in regard to the incident and the involvement of accused No. 1. PW 3 has deposed that since he and PW 4 anticipated danger to the life of the deceased on account of the dis turbed management labour relationship they slept at the house of the deceased. PW 3 states that he saw eight persons sliding down the telephone pole. Amongst them were accused Nos. 1 to 5 and S.V. Subbarayadu whom he identified as accused No. 6. PW 4 has stated that on the date of the incident he had heard about the murder when he was at his residence at about 4.30 a.m. He was treated as hostile and was allowed to be cross examined by. the prosecution. PW 5, whose house was only about 100 yards away, deposed that when he was sleeping on his terrace he heard cries at about 3.30 a.m. and went to the house of the deceased. PWs 1 to 4 were present there alongwith other. neighbours. PWs 1 and 2 were.weeping while PWs 3 and 4 were trying to console them. PW 1 asked him to inform the police that her father was murdered. He then went and informed the police about the incident and returned with the police to the scene of of fence. Thus the evidence of this witness also corroborates PW 1. The inquest was!held between 7.00 and 10.30 ' a.m. The statements of PWs 1 to 5 were also recorded and certain articles were attached from the terrace. These included blood stained bed sheets, pillows, towel, shawl, shrit, etc., and Cunningham 's text book on. human anatomy which PW 1 was reading before going to bed. The telephone connection was found snapped and there were drops of blood from. the place where the dead body was found till the drawing room down stairs where the telephone was: installed which. corrobo 609 rated the story of PW 1. The banian worn by the deceased, was blood stained and had cuts corresponding to injuries found on. the chest of the deceased. Several other articles found on the person. of the deceased were blood stained. There were as many as 33 injuries on the person of the deceased which is clearly indicative of the involvement of a group of persons in the killing. This stands corroborated by the post mortem report. On the cot which was occupied by PW 1 there were blood drops on the bed, bed cover and bed sheet. The reports of the Chemical Analyser and Serologist, Exhs. P 18 and P 19. show that all the articles were stained with human blood. A lantern was burning nearby and the electric light on the terrace was also on. This inquest panchnama Exh. P 6 leaves no room for doubt that the inci dent occurred on the terrace portion of the residence of the deceased. PW 1 was medically examined by the medical officer PW 13 on the same day at about 11.45 a.m. She had incised wounds on the left index finger 1/2" x 1/4", on the left hand below tile wrist 1" x 118" x 1/8", on the middle of the left palm 1" x 1/8" x 1/8" and on the little finger of left hand 1/2" x 1/8" x 1/8". This would indicate that she received these injuries while trying to ward off the blows. Identification parades were held on May 23, 1975. In the first one accused Nos. 7, 10 and 11 were made to stand with non suspects, in the second parade accused Nos. 12, 13 and 16 were made to take their positions along with several others and in the last parade accused Nos.17, 18 and 19 were concerned. PW 1 could not identify any one from amongst the said accused persons in all the three parades. Out of the three parades PW 3 identified all the three accused of the second parade. In the evening an identification ' parade was held concerning accused Nos. 2 to 6 and 9. PW 1 could iden tify. 'accUsed Nos. 3 and 5 while PW 3 could not identify any of them. The defence of all the accused was of total 'denial and false involvement. In fact accused No. 1 contended that.he was out of station from May 13, 1975 and learnt of the murder on his return to Proddatur. When he learnt of his false involvement he surrendered before the Court. Accused Nos. 12, 13 and 16contended that they were shown to PW 3 before the identification parade while accused Nos. 3 and 5 pleaded that the police had taken a group photograph in which they figured from the union office and had shown it to PW Accused Nos. 7, 11, 14, 15, 17 and 19 were not examined under section 313 of the Criminal Procedure Code as no evidence incriminating them was tendered on record. No defence witness came to be examined. 610 The learned Additional Sessions Judge, Cuddapah, came to the conclusion that the prosecution had failed to establish the charge of criminal conspiracy under section 120B, I.P.C. He came to the conclusion that the evidence on record, however, indicated that accused Nos. 1 to 6 had a direct and strong motive to kill the deceased and the likelihood of the others having shared their feelings could not be ruled out altogether. The direct testimony of PWs 1 to 5 and the other circumstantial evidence adverted to earlier established beyond any manner of doubt that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased. The learned Judge held that intimation of the incident was given to the police without loss of time and PW 1 had lodged her complaint by about 6.00 a.m. when the police came to the scene of occurrence alongwith PW 5 who had gone to call them. The suggestion that injuries found on the person of PW 1 were selfinflicted or that PW 2 was giving false evidence as she was promised financial help to the tune of Rs. 1,50,000 were brushed aside by the learned Judge as totally imaginary ,and unfounded. The learned Judge, however, did not treat PW 1 's complaint EXh. P 1 as admissible in evi dence as he came to the conclusion that it was hit by sec tion 162 of the Code since information regarding the inci dent had reached the police station through PW 5. The learned trial Judge, therefore, accepted the evidence of PWs 1, 2, 3 and 5 as reliable and convicted them as stated earlier while acquitting their companions. The said three convicted accused preferred an appeal, being Criminal Appeal No. 812 of 1976, in the High Court. ,State also preferred an appeal for awarding capital punish ment to accused No. 1, being Criminal Appeal No. 807 of 1976. The State 's appeal came to be dismissed and that is where the matter rests. However, the appeal by the convicted accused came to be allowed and the appellants were acquit ted. It is against the said order of acquittal that the State has approached this Court by way of special leave. It would, therefore, be proper to ascertain the grounds on which the impugned order of the High Court is founded. The High Court came to the conclusion that the complaint of PW 1 was not recorded at the time it purports to have been for if it were so it would not have reached the con cerned Magistrate as late as 1.40 p.m. In that case even the inquest report Exh. P 6 would not have been delayed till 10.55 p.m. The explanation for the delay found in Exh. P 25 cannot be accepted at its face value. The evidence of PW 1 is tainted, in that, although she knew accused No. 1 as he visited her father quite often the rest of the assailants were total strangers and yet 611 the names of accused Nos. 2 and 4 appear in her statement Exh. P 1 which goes to show that she was tutored into giving their names. That according to the High Court raises a serious doubt regarding her trustworthiness. On the question of identity of accused Nos. 3 and 5, the High Court points out that even before the identification parade she had told the Magistrate that she would be able to identify only two persons and later pointed an accusing finger at accused Nos. 3 and 5 at the identification parade. This, says the High Court, reinforces the defence version that she was shown the group photo before she was called to identify the accused persons. The identification parade was delayed upto May 23, 1975 as till then the photograph was not secured by the police. In the circumstances the High Court did not find the evidence of PW 1 regarding the identity of accused Nos. 3 and 5 acceptable. The High Court also held that the injuries on the left hand of PW 1 were in all probability self in flicted, more so because she is not a left hander. So also the absence of blood stains on the bed lying on the floor of the terrace casts a serious doubt regarding her version of the incident. The High Court found the prosecution story that the electric light as well as the kerosene lamp were kept on throughout the night rather unusual. In this view of the evidence, the High Court did not consider PW 1 a truth ful witness. As regards PW 3 the High Court found his ver sion that he slept at the residence of the deceased since sometime unacceptable. It also noticed that PW 3 claimed to know accused Nos. 1 to 6 by their names and he gave out those names to the police and yet he could not identify any of them at the test identification parade. For this reason the High Court did not place reliance on his evidence. The High Court, therefore, found the evidence led by the prose cution untrustworthy and acquitted the accused/appellants. Hence the present appeal. Mr. Madhav Reddy, the learned counsel for the appellant State contended that the presence of PW 1 at the time of the incident was not only deposed to by PWs 2 and 3 but also by PW 5. The presence of PW 3 at the house at about 4.30 a.m. is deposed to even by the hostile witness PW 4. He, therefore, submitted that the presence of PWs 1 to 5 is clearly established and is reinforced by the evidence of PW 13, the medicalman, who examined PW 1 at the Government Hospital at about 11.45 a.m. on the same day. The Sub In spector PW 24 also deposes that PW 5 had told him that PW 1 had sent him to report the murderous assault on her father. He submitted that once the presence of PWs 1 and 3 was established there was no reason to doubt their testimony merely because PW 3 was honest enough not to falsely involve any one by pointing an accusing finger at the identification 612 parade. He submitted that even PW 1 was honest enough to identify only two persons, namely, accused Nos. 3 and 5, Whom she had an occasion, to see near her cot on the ter race. To reject her evidence as regards the identity of these two accused on the specious plea that their photo graphs were shown to her '. before the identification parade would be, to say the least, unjust. If she could be shown the photograph why not PW 3 also! He also submitted that it was preposterous to hold that the injuries found on the left hand of PW 1 were self inflicted. The absence of blood on the bed sheet of the bed on the floor of the terrace clearly explained that the deceased must have rolled onto the ter race floor where the presence of blood was noticed. He, therefore, submitted that the High Court had reversed the well reasoned judgment of the. trial court on totally imagi nary grounds which had resulted in grave miscarriage of justice. Mr. R.K.Garg, learned counsel for the respondents/ac cused, submitted that this Court should not interfere with the decision of the High Court ' unless it ' finds the view taken by the High Court as perverse and wholly improper, resulting in miscarriage of justice. In support he cited State of Jammu & Kashmir vs Hazara Singh & Anr., [1980] Supp, SCC 641. He also submitted that the investigating agency had shown extra zealousness as the deceased was a prominent lawyer and an ex MLA. Supporting the view of the ' High Court he urged that the presence of PW 1 was highly doubtful and in any case it would be risky to rely on her interested testimony regarding the identity of accused Nos. 3 and 5. The 'absence of blood on the bed shows that the same was planted after the event to concoct the story that PW 1 ' was sleeping on the cot and not downstairs with her mother PW 2 who ' had recently undergone an operation. ' Once the evidence of PW 1 is excluded there is no direct testimony since PW 3 had not identified any of the accused at the identification parades. In short he supported the judgment of the High Court and prayed that we should not interfere in exercise of our extra ordinary powers under Article 136 of the Constitution. The motive for the commission of the crime was the indus trial unrest occasioned on account of the strike by the workers of the International Packaging 'Company and later by the transport workers. Indisputably accused No.1 commanded considerable clout over the employees of various industrial units such as the International Packaging Company, Andhra Cotton Mills and the transport industry in Proddatur. Accused No. 1 was championing the cause of the workmen during the. prolonged agitation and strike by the workers of the Inter 613 national Packaging Company and also spearheaded the agita tion by the transport workers. The deceased was the lawyer for the managements and was considered the main obstacle, in the realisation of the workers* demands. There was, there fore, animosity between the deceased and accused No. 1. This is more than clear from the oral evidence of PWs 2.3.4, 10. 11.21 to 23 and from the documentary evidence tendered as Exhs. P 2 to P 5. P 30 to P 37 and P 40 to P 55. In view of this overwhelming documentary evidence which corroborates the ocular evidence of the aforesaid prosecution witnesses, it is established beyond any manner of doubt that the rival ry between the trade unions headed by accused No. 1 and the managements. advised by the deceased had assumed ugly. proportions. The starting of the INTUC branch at Proddatur with the active participation of the deceased was perhaps the last straw on the camel 's back which worsened the rela tions between accused No. 1 and the deceased. This is the motive according tO the prosecution for the crime in ques tion. But as has often been commented bitter animosity can be a double edged Weapon which may be instrumental for deliberate false involvement or for the witnesses wrongly inferring and strongly believing (without having actually witnessed it) that the crime must have been committed by the rival group. This possibility has to be kept in mind while evaluating the prosection evidence regarding the involvement of accused No. 1 and his companions in the commission of the crime. There is no dispute regarding the description of the residential house of the deceased and the location of the telephone pole to the west thereof. It is not disputed that the said pole could be conveniently used for slidding down from the terrace. So also the fact that the telephone con nection was snapped is not put in issue. The fact that the incident occurred on the terrace is not disputed but the fact that the deceased was sleeping on the floor and PW 1 was sleeping on the cot is disputed. It was suggested in the course of cross examination of the prosecution witnesses that the deceased alone was sleeping on the cot on the terrace and PW 1 was in fact not in town and even if she was in town she must have been sleeping with PW 2. Lastly the fact that the deceased died a homicidal death on receipt of as many as 33 injuries is not disputed The find of human blood on the various articles attached by the police, i.e. those worn by the deceased as well as PW 1 and those found lying on the terrace, is clearly established by the reports Exhs. P 18 and P 19 which have not been questioned. It is in this background that we must consider if the High Court has commit. ted any grave error requiring interference under Article 136 of the Constitution. 614 On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry Exh. 56 recorded by PW 24 in the general diary on April 15, 1975 at about 4.30 a.m. That entry was made on the information supplied by PW 5. It is clearly stated therein by PW 5 that he had been told by PW 1 that her father was murdered at his residence. It was on receipt of this infor mation that the police went to the house of the deceased, drew up the inquest report and recorded the statements of those present there including PW I. The presence of PW 1 is, therefore, clearly established by this document prepared within an hour from the time of the incident. This contempo raneous document corroborates the oral evidence of the aforesaid witnesses. She was examined by the medical officer PW 13 on the same day at about 11.45 a.m. In addition there to, the find of the Anatomy book and slippers on the ter race, also lends assurance to the prosecution evidence in this behalf. Therefore, even if it is assumed that the time of recording her statement ' Exh. P 1 is not correctly re corded, her presence at the scene of offence at the material time is established beyond a shadow of doubt. Accused No. 1 was a friend Of the deceased till they fell out. He was a regular visitor to the house of the deceased and, therefore, PW 1 knew him quite intimately. She has frankly admitted that others were strangers but she was able to identify accused Nos. 3 and 5 because she had an opportunity to see them from close quarters when they were near her cot. The existence of a cot and a bed on the ter race is indicative of the fact that two persons were sleep ing on the terrace. There were only three family members present on the date of the occurrence, one of whom was PW 2 who had undergone surgery only recently and was advised not to climb the stairs. It is, therefore, obvious that the deceased and PW 1 slept on the terrace. The submission that the bed on the floor was planted is based on the fact that there was no blood on the bed sheet of that bed. But this submission overlooks the existence of blood drops nearabout the bed. The dead body of the victim was also found lying on the terrace floor nearby. The High Court relied on the photograph Exh. D 4 for holding that the bed was fresh and unused. But as is apparent from the, crossexamination of PW 24 that the said photograph shows "the bed sheet spread over the bed on the cot is tucked beneath the bed". Thus the said photograph is not of the bed on the floor. The High Court seems to have misread the evidence. Secondly, it is clear that the dead body was lying at some distance from the bed suggesting that the deceased had rolled over during the night or in the course of the attack. The 615 other articles lying nearby e.g towel, shawl, etc. were blood stained and there Were fresh drops of blood between the dead body and the western waif leading to the telephone pole. Since there were Only three family members one of whom, PW 2, had undergone an operation in the recent past, it is difficult to understand how PW 1 alone could shift the dead body of her father from the cot to the place where it was found to concoct evidence against the accused. It is too much to attribute such intelligence to PW 1 or for that matter PW 3 also. If the dead body which was bleeding had in fact been shifted there would have been blood drops from the cot to the place where it was found. Besides, where was the time for the entire exercise? PW 5 was sent to call the police and he had returned with the police after his report was entered in the general diary at 4. 30 a.m. It. there fore, seems difficult to believe that the bed on the floor was planted to support the prosecution version that PW 1 slept on the terrace that night. The medical officer PW 13 found four incised wounds on the left hand of PW 1, possible by a sharp cutting weapon like a dagger or knife. These injuries were indeed minor in nature. The High Court has concluded that the possibility of these injuries being self inflicted cannot be ruled out, PW 1 says she received these injuries in the process of warding off the blows aimed at her. PW 13 also deposes that these injuries could have been received while trying to ward off the blows on her. Thus the medical evidence supports her say. However, in crossexamination he stated that all the four injuries were cut injuries and not stab wounds. In response to a suggestion made in cross examination he stated that the possibility of the injuries being self inflicted was not an impossibility. Merely from this suggestion and PW 1 not being a left hander the High Court concluded that the possibility of the injuries being self inflicted could not be ruled out. With respect, the High Court failed to realise that when an injury is on an accessible part of, the body which the individual can himself reach, such any injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction 'of the injury or such other factors show otherwise. But merely because the medical officer says that they could be selfin flicted, there is no reason. to jump to such a conclusion unless ' circumstances establish such a possibility. In the present case there was hardly any opportunity to self in flict them. Her not being a left hander should make no difference because she is bound to. use that hand to ward off the blows if her assailant is on that side of her bed. We, therefore, feel that the High Court was not justified in concluding that PW 1 had self inflicted the wounds found on her left hand. With 616 respect, this conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight Of evidence on record. The delay in Sending the FIR Exh. P 1 to the Magistrate has been seriously commented upon by the High Court while rejecting the explanation given in Exh. This comment has lost its significance as the said document has not.been admitted in evidence by both 'the courts below on the ground that it is hit by section 162 of the Code. We would have examined the explanation if that document. had formed part of the record. ' Any way that cannot impinge On the credibil ity of PW 1 if her evidence is otherwise acceptable, which we find it is '. On the question of identity it is clear from the evi dence of PW 1 that accused No. 1 was known to her quite well Since before the incident. She could, therefore, have no difficulty in identifying him even in poor light. Immediate ly after the accused fled she ran down and informed her mother that accused. No. 1 and his companions had killed her father. Since PW 1 had not disclosed the name of accused No. 1 as one of the assailants to PW 5, the latter did not speak about him to the police and hence his name does not appear in the FIR recorded at 4.30 a.m. Accused No. 1 pleaded an alibi: which he miserably failed to probabilise. The absence of names of assailants in the general diary entry made on the basis Of information supplied by PW 5 at the behest of PW 1 has weighed considerably in the High Court doubting the version regarding the involvement of accused No. 1 in the commission of the crime. It must, however, be realised that PW 1 had disclosed the name of accused No. 1 at the earliest point of time when the complaint Exh. P I and the inquest report Exh. P 6 were recorded. It must also be realised that,PW 1 was under terrible strain at that time. Not only had this young girl lost her father in a ghastly assault, she had also to look after her ailing mother: and console her. She frantically tried to inform the police on telephone but found the instrument dead with the wires snapped. therefore, asked this young boy aged 'about 16 years, PW 5, to go to the police station and fetch the police. There was hardly any time to give details of the incident. Under the circUmstances the absence of the name of accused 'No. 1 as One of the assailants in the entry made in the general diary at the instance of PW 5 is quite understandable. Once it is accepted that PW 1 had slept on the terrace and had sus tained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted. 'We are, therefore, of the view that the High Court was not justified in disturbing the view taken by the trial court in this behalf. 617 That takes us to the question of the involvement of accused Nos. 3 and 5. The evidence of PW 1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him. This means that she did not know and could not identify the companions of accused No. 1. However, when she tried to raise an alarm three of the assailants approched her and pinned her down to the bed, and one of them threatended to stab her. He did carry out his threat as is evident from the injuries sus tained by her. She Was able to identify two of them 'at the identification parade held on May 23, 1975. This is proved through the 'evidence of PW 14 who conducted the test iden tification parades Now accused Nos. 3 and 5 had surrendered before the court on May 13, 1975. PW 14 received the requi sition for arranging a test identification parade on May 17, 1975. The identification parade was actually held on May 23, 1975. There ' is no valid explanation tendered by the prose cution for the delay in holding the. identification parades. The defence has suggested in the cross examination of PW 1 and PW 25 that in the meantime the accused who were in custody were shown to the witnesses and the police had secured a group photograph in which accused Nos. 3 and 5 figured to facilitate their identification. The High Court was, however, reluctant to place absolute reliance On the evidence of PW 1 regarding the identity of accused Nos. 3 and 5. In the absence of a ,valid explanation for the delay we do not think that this approach of the High Court can be said to be manifestly wrong to call for our intervention. ' In the result this appeal is partly allowed insofar as it relates to original accused No. 1 i.e., respondent No. 1 before us. The High Court 's order acquitting him is set aside. The appeal is, ' however, dismissed so far as original accused Nos. 3 and 5 i.e., respondent Nos. 2 and 3 before us are concerned We restore the order of conviction and sen tence of original accused NO. 1 respondent No. 1 recorded by the learned Additional Sessions Judge, Cuddapah for his involvement in the crime with several other unknown persons. We, however, give the benefit of doubt to original accused Nos. 3 and 5, i.e, respondent Nos. 2 and 3 and confirm the order of their acquittal recorded by tire High Court. The original accused No. 1 respondent No. 1 will submit to his bail forthwith The bail bonds in respect of other two respondents will stand cancelled.

One Ram Subba Reddy, an advocate, politician and a tradeunionist, was murdered on the night between 14th and 15th April, 1975, at his house in Proddatur, when the de ceased is stated to have received fatal blows by lethal weapons whilst his daughter (PW 1), sleeping nearby received injuries when she attempted to go to help her father. Ac cording to the prosecution, Accused No. 1 (Respondent No. 1), was a friend and a regular visitor to the house of the deceased, till they fell out on account of trade union activities. Accused No. 1 was the President of the workmen 's unions of Andhra Cotton Mills, Proddatur, International Packaging Company, Proddotur and Transport Workers, espous ing the cause of workmen and directing their union activi ties while the deceased, a practising Advocate represented the managements of these companies and tendered legal advice to them in connection with the various labour problems arising in those companies. The deceased who was a lawyer for the companies had advised the accused No. 1 not to resort to violence for settlement of industrial disputes. The fact that infuriated accused No. ' 1 further was the help which the deceased agreed to provide to PW 11 for setting up an office of INTUC in his own office. This was intended to counter the militant activities of Accused 1 who was in control of most of the labour unions in the town. According to the prosecution at about 3.30 a.m. on the day of occurrence, PW 1 who was sleeping on the terrace of the house nearby her father, woke up bearing the cries of her father ans saw accused 1 with 6 or 7 others stabbing her father with daggers. She raised an alarm and tried to go to rescue her father but she was prevented by three of them from getting up; accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot. Thereafter accused 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sus tained injuries on her left index finger, 601 thumb and palm extending to another finger. After the as sailants left, she got down and informed her mother PW 2 about the incident; she opened the door to PWs 3 and 4, who were sleeping outside. She sent a message to the police through PW S, her neighbour, as telephone lines were cut. The police took up investigation and 19 persons including the respondents were put up for trial before the Additional Sessions Judge, Cuddapah on different charges e.g. criminal conspiracy, rioting and murder, etc. The learned trial judge came to ie conclusion that the prosecution had failed to establish the Charge of criminal conspiracy under Section 120B, I.P.C. It accepted the testimony of PWs 1to 5 and held (i) that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased; (ii) the injuries borne on the fingers of PW 1 were not self inflicted as suggested by defence and (iii) that the intimation of the incident was the police without loss of time. Accordingly the trial Judge convicted Accused Nos. 1 and 3 under Sections 148 and 302 and Sec. 324 with the aid of Section 149, I.P.C. and accused No. S under Section: 148, 302 and 324, I.P.C. and sentenced all the three to life imprisonment for murdering Ram Subba Reddy and to rigorous imprisonment for 3 years under section 148, IPC. The other 16 accused were acquitted. The convicted persons appealed to the High Court and the State filed an application for enhancement of the sentence imposed on Accused No. 1 to capital punishment. The High Court allowed the appeal by the convicted persons and acquitted them. Hence this appeal by the State against the order of acquit tal, by special leave. The High Court bold that the evidence of PW 1 is tainted in that the names of accused 2 and 4 who were strangers to her figure in her statement Exh. P 1 and further her statement regarding identity of Accused 3 and S was unacceptable. The High Court therefore found the evi dence led by the prosecution untrustworthy. and thus acquit ted the accused appellants before it. Partly allowing the appeal, this Court, HELD: On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry exhibit S6 recorded by PW 24 in the general diary on April 15, 1975 at about 4 30 a.m. That entry was made on the information supplied by PW 5. It is clearly stated therein by PW S that he had been told by PW 1 that her father was murdered at his residence. It was on receipt of this information that the police went to the house of the deceased, drew up the inquest report and recorded the state ments of those present there including PW 1. The presence of PW 1 is, therefore clearly established 602 by this document prepared within an hour from the time of the incident. This contemperaneous document corroborates the oral evidence of the aforesaid witnesses. [614A.C] The High Court failed to realise that when an injury is on an accessible part of the body, which the individual can himself reach, such an injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction of the injury or such other factors show otherwise. But merely because the medical officer says that they could be self inflicted, there is no reason to jump to such a conclusion unless. circumstances establish such a possibility. In the present case there was hardly any opportunity to self inflict them. Her not being a left hander should make no difference because she is bound to use that hand to ward off the blows if her assailant is on that side of her bed. The High Court was not justified in con cluding that PW 1 had self inflicted the wounds found on her left hand. This conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight of evidence on record. [615F 616A] Once it is accepted that PW 1 had slept on the terrace and had sustained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted. [616G] The evidence of PW1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him. This means that she did not know and could not identify the companions of accused No. 1. However, when she tried to raise an alarm three of the assailants approached her and pinned her down to the bed, and one of them threatened to stab her. He did carry out his threat as is evidenced from the injuries sustained by her. She was able to identify two of them at the identification parade held on May 23, 1975. This is proved through the evidence of PW 14 who conducted the test identification parades. Now accused Nos. 3 and S had surrendered before the Court on May 13, 1975. PW 14 received the requisition for arranging a test identification parade on May 17, 1975.the identification parade was actually held on May 23, 1975 There is no valid explanation tendered by the prosecution for the delay in holding the identification parades. The High Court was reluctant to place absolute reliance on the evidence of PW 1 regarding the identity of accused Nos. 3 and 5. In the absence of a valid explanation for the delay, the Court did not think that this approach of the High Court can be said to be manifestly wrong to call for intervention. [617A E] 603 The Court, in the result, partly allowed the appeal in so far as it related to original Accused No. 1 respondent No. 1 set aside the High Court 's order acquitting him and restored the order of trial Judge convicting and sentencing him. The Court affirmed the High Court 's order of acquittal passed in respect of other accused, giving them the benefit of doubt. [617E G] State of Jammu and Kashmir vs Hazara Singh & Anr., , referred to.

Appeal No. 1150 of 1978. From the Judgment and Order dated 22.9.1976 of the Bombay High Court in Special Civil Appln. No. 1544 of 1971. B. Datta, J.P. Pathak and P.H.Parekh for the Appellant. A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by KANIA, J. The facts found in this appeal show that the appellant, Laxmi Bai, was at the relevant time a member of a joint family with her son, the partition pleaded by the appellant not having been accepted as genuine by the author ities concerned. She terminated the tenancy of the predeces sor in title of the respondents by a notice dated June 24, 1960. Under the provisions of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter re ferred to as "the said Act"), April 1, 1957, was declared as the tillers ' day and Section 32 of the said Act provided biter alia that the tenants of the land who fell within any of categories described in sub section (1) of the said section were deemed to have purchased the land held by them as tenants from their landlords, free of all encumbrances subsisting thereon on the said day. The case of the appel lant is that, in the present case, the tillers ' day was postponed in view of the provisions of clause (a) of sub section (1) of Section 32 F of the said Act, as she was a widow and hence, it must be held that she had terminated the tenancy of tenant, Dayanu, the predecessor in title of the respondents before he became a deemed purchaser of the land. It is not possible to accept this contention in view of the proviso to sub section (1) of Section 32 F of the said Act which provides, inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32 F of the said Act. In the present case, there is no dispute that the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32 F of the said Act. In these circumstances, Dayanu became the owner of the said land on the tillers ' day as a deemed predecessor and the appellant lost her rights in the said land. Notice given thereafter is of no avail. The appeal fails and is dismissed with no order as to costs. N.P.V Appeal dismissed.

The appellant, was a member of a joint family with her son. She terminated the tenancy of the predecessor in title of the respondents, by a notice dated June 24, 1960, giving rise to litigation culminating in the appeal before this Court by the appellant, on the question whether the tenant became deemed purchaser of the land in question, in terms of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, which had declared April 1, 1957 as the tillers ' day and that the tenants of the lands who fell within any of the categories described in sub section (1) were deemed to have purchased the land held by them as tenants from their land lords, free from all encumbrances subsisting thereon on that day. It was contended that in view of the provisions of clause (a) of subsection (1) of Section 32F of the Act, the tillers ' day was postponed in respect of the land in ques tion as the appellant was a widow, and hence it must be declared that she had terminated the tenancy of the tenant before he became a deemed purchaser of the land. Dismissing the appeal, this Court, HELD: 1.1. The proviso to sub section (1) of Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, provides inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32F of the Act. [457 F] 1.2 In the instant case, admittedly, the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32F of the Act. Hence the predecessor intitle of the respondents became the owner of the said land on the tillers ' day as a deemed purchaser and the appellant lost her rights in the said 457 land. Notice given thereafter is of no avail. [457 G]

ivil Appeals Nos. 1148, 1656 and 2341 of 1966. Appeals by special leave from the judgment and decree dated July 27, 1965 of the Punjab High Court in Letters Patent Appeals Nos. 13 to 15 of 1965. Prem Chand Jain and Janardan Sharma, for the appellants (in all the appeals). D.D. Sharma, for respondents Nos. 1 (iv to xiii) in all the appeals). The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought by special leave on behalf of the defendants against the judgment of the Punjab High Court dated 27th July, 1965 in Letters Patent Appeals Nos. 13 and 14 of 1965. Dhara Singh, respondent No. 2, executed three sale deeds with regard to lands at village Bhadani, 'Tehsil Jhajjar, Rohtak in favour of the appellants in all the three appeals. The first sale was of land measuring 27 kanals and 4 marlas dated September 20, 1960, the second was of land measuring 36 kanals and 19 marlas dated November 23, 1960 and the third was of land measuring 33 kanals and 18 marlas dated March 6, 1961. Neki deceased, who was the father 's brother of Dhara Singh, vendor, instituted three suits in the court of Subordinate Judge at Jhajjar for possession of the aforesaid lands covered by the three sales on the ground that he had a superior right of pre emption on the basis of his relationship with the vendor as against the appellants under section 15(1)(a) of the Punjab Pre emption Act, 1913 (Punjab Act 1 of 1913). These suits were contested by the appellants. After hearing the contentions of the rival parties, the Subordinate Judge granted decrees in ail the three suits in favour of the plaintiffs. In suit No. 311 of 1961 the decree stipulated that the plaintiff should deposit the amount of Rs. 3,500/ in court on or before 15 1 1963. In suit Nos. 368 and 369 of 1961 the condition was that the plaintiffs should make the deposit of Rs. 5,000/ and Rs. 7,000/ respectively in court on or before 15 1 1963. The appellants took the matter in appeal before the Senior Subordinate Judge who by his judgment dated 30th January, 1963 dismissed the appeals against the decrees in 835 suits Nos. 313 and 369 of 1961 and modified the decree in suit No. 368 of 1961 to the extent that the plaintiff was called upon to deposit a further sum of Rs. 2,000/ on or before 1 3 1963. The appellants preferred regular Second Appeals Nos. 280, 281 and 282 of 1963 in the High Court against the decrees and judgment of the Senior Subordinate Judge, Rohtak. The plaintiffs also preferred in the High Court appeal No. 830 of 1963 against the increase made in the price of the land by the Senior Subordinate Judge Rohtak in the appeal arising out, of decree in suit No. 368 of 1961. While the appeals were pending in the High Court, Neki plaintiff died on April 7, 1963. After his death, the appellants vendors in the three regular appeals moved applications under 0.22, r. I of the Civil Procedure Code to bring on record of the appeals the legal representatives of Neki, deceased plaintiff, namely, Dhara Singh, Ramkishan and Balbir Singh. All the four appeals were heard and dismissed by Mr. Justice Khanna by his judgment dated 17th September, 1964. The appellants preferred appeals under the Letters Patent which were dismissed by a Division Bench of the Punjab High Court by a common judgment dated 27th July, 1965. The claim of Neki for pre emption was based on sections 14 and 15 (1) (a) of the Punjab Pre emption Act 1913 (Punjab Act 1 of 1913). Section 14 states : "No person other than a person who was at the date of sale a member of an agricultural tribe in the the same group of agricultural tribes as the vendor shall have a right of pre emption in respect of agricultural land sold by a member of an agricultural tribe". "Section 15 (I) (a) reads as follows "The right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner: FIRST, in the son or daughter or son 's son or daughter 's son of the vendor; SECONDLY, in the brother or brother 's son of the vendor; THIRDLY, in the father 's brother or father 's brother 's son of the vendor; FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof . " The Punjab Pre emption Act, 1913 was amended by Punjab Act 10 of 1960 and section 6 of the amending Act inserted a new section 31 in the Principal which states as follows: 836 "No court shall pass a decree in a suit for pre emption whether instituted before or after the commencement of the Punjab Pre emption (Amendment) Act, 1960, which is inconsistent with the provisions of the said Act". It is necessary also to refer at this stage to the provisions of 0.22, r.1 and 0.22, r. 1 1 which are to the following effect : "0.22, r. 1 : The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives". "0.22, r. I I : In the application of this Order to appeals, so far as may be, the word 'plaintiff ' shall be held to include an appellant the word 'defendant ' a respondent, and the word 'suit an appeal". In support of these appeals, learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre emption. The argument was that the statutory right of pre emption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of ',he legal representatives as representing the estate of Neki. We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stran (Ter into the land. The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent 'that it restricts the owner 's right of sale and compels him to sell the property to the person entitled to pre emption under the statute. In other words, the statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre empt. In the present case, Neki obtained decrees for pre emption in all the three suits against the appellants and these decrees were confirmed by the first appellate Court. While the second appeals were pending in the High Court, Neki died and the question is whether under the provisions of 0.22, r. I and 0.22, r. I I of the Code of Civil Procedure, the right to sue survived after the death of Neki. In this context, it is necessary to consider the provisions of section 306 of the Indian 837 Succession Act XXIX of 1925. This section expresses a qualification of the maxim actio personalis mortiur cum persona to the extent that the section indicates that, amongst causes of action which survive, are included some actions of a personal nature, that is to say personal actions other than those expressly excluded by the section itself. It is true that the right of pre emption under section 15(1)(a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor. But under section 14 of the Act, the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes as the vendor and the land of which pre emption is sought must be in respect of agricultural land sold to a member of the agricultural tribe. We are of opinion that if an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption. The view which we have taken is supported by the language of section 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre emption did not abate upon his death and that the legal representatives of Neki were properly brought on record of the second appeals under the provisions of 0.22, r. 1 read with 0.22, r. 10 of the Code of Civil Procedure. The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah vs Ram Kishan & Ors.(1). The question that arose for determination in that case was whether the right to sue for pre emption under s.12 of the Punjab Laws Act upon a cause of action which accrued to a person in his life time passed at his death to his successor who inherited the property through which the right had accrued. The view of the Full Bench as regards the transfer by inheritance was that the general principle applied and that the right of pre emption passed with the land and the learned Judges distinguished the transfer by inheritance from the transfer of property by some voluntary act of the par ties. At p. 641 of the Report, Clark, C.J. observed : "While, therefore, there is good reason why volun tary transfers should not pass a right of pre emption as regards properties previously sold, those reasons do not apply to transfers by inheritance. As regards transfers by inheritance, the general principle should apply that the right of pre emption passes with the land. Mr. Grey laid great stress on sections 13 and 16 of the, Punjab Laws Act urging that the father was the person on whom the notice had to be served, and that it was he who had the right to sue and that the right was thus a personal one that could not (1) 133 P. R. 1907. 838 be inherited by the son. The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son. If the father had waived or otherwise disposed of his right this would no doubt be binding on the son, as the father was representing the whole estate. Where, however, the father has done nothing of the kind, but has simply taken no steps in the matters, there seems to me no reason why the son should not step into the shoes of his father and take the same action as the father could have done. The son inherits the other causes of 'action belonging to his father and why not this one ? Nor do I see why the son cannot come in under Section 16, simply alleging that no notice as required by section 13 was served on his father". A similar view was expressed by the Full Bench of the Allahabad High Court in Wajid Ali & Ors. vs Shaban & Ors. It was held that where a right of pre emption exists by custom as recorded in the village wajib ul arz, the right having once accrued did not of necessity lapse by the death of the pre emptor before making a claim, but descended along with the property in virtue of which it subsisted to the heir of the pre emptor. It is necessary to emphasize that we are dealing in this; case with the statutory right of pre emption under Punjab Act 1 of 1913 and its subsequent amendment and not with the right of preemption under the Mohammedan Law. In regard to the latter right it has been held that according to the Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre emption has not obtained his decree for pre emption in his life time the right to sue does not survive to his heirs. (See Muhammad Husain vs Niamet un nissa and Ors.) (2). It is not necessary for us to express any opinion on this point in the present case. On behalf of the respondent it was also pointed out that after the passing of the decree by the, trial court, Neki complied with the terms of the decree and made payments within the time given. It was said that under the terms of section 14 and section 1 5 (1 ) (a) the title to the land in the pre emption suits must be deemed to have accrued to Neki from the date of such payment. It was argued that before his death, Neki became the owner of the lands which were the subject matter of pre emption and the legal representatives of Neki were substituted in his place as representing the estate of Neki. In support of this proposition counsel relied upon the language of 0.20 r. 14(1) which states : "Where the court decrees a claim to pre emption in respect of a particular sale of property and the pur (2) 1. L. R. 20 All. 88. 839 chase money has not been paid into Court, the decree shall (a) specify a day on or before which the purchasemoney shall be so paid, and (b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs. " In this connection counsel referred to the decision of the Punjab High Court in Ganga Ram & Ors. vs Shiv Lal(1) where it was held that the title to the preempted property passes to the pre emptor under a pre emption decree on deposit of the purchase money in terms of the decree and was deemed to. pass to him from the date of the deposit. So far suit No. 368 is concerned, there is a dispute as to whether or not Neki deposited the amount under the decree within the time prescribed but as regards suits Nos. 311 and 369 of 1961, it is admitted that the deceased Neki made the payment of the amount under the two decrees within the time prescribed. So far as these two decrees are concerned, the deposit of the purchase money is an additional reason for holding that the legal representatives of Neki were properly substituted in his place in the proceedings of the second appeals. It was finally urged on behalf of the appellants that, in any vent, section 31 of the Punjab Act 1 of 1913 as amended by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of the substituted respondents. The argument was stressed that section 31 of the Punjab Act 1 of 1913 was in plain words retrospective in character and Dhara Singh and his two sons as legal representatives of Neki could not be granted a decree for pre emption. In our opinion, this argument is wholly irrelevant. The reason is that the Amending Act came into force on February 4, 1960 and Neki instituted the present suits for pre emption long after this date. Even the three sales of land were effected after the promulgation of the Amending Act. Reliance was placed on behalf of the appellants on the decision of this Court in Ram Sarup vs Munshi & Ors.(1) but the material facts of that case are quite different. It appears that the claim of pre emption in that case was based upon section 15(c) 'thirdly ' of the Punjab Pre emption Act 1913 which states: (1) 66 P. L. R. (1964), 251. (2) 840 "Subject to the provisions of section 14 the right of preemption in respect of agricultural land and village immoveable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold; (b) where the sale is of a share out of joint land or property, and is not made by all the co sharers jointly, firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co sharers, if any, who are agnates, in order of succession; (c) If no person having, a right of pre emption under clause (a) of clause (b) seeks to exercise it: thirdly, in the owners of he estate;. . " By section 4 of the amending Act (Act 10 of 1960) section 1 5 of the parent Act was repeated and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons 'owning land in the estate ' as the original section 15(c) 'thirdly ' had done. Retrospective effect was given to the provision by the insertion of a new section 31 in the. parent Act. The question for consideration was that whether by reason of this amendment in the law the respondent was entitled to the benefit of the decree which he obtained under the previously existing enactment. It was the case of the plaintiff that he owned land in the 'estate ' whereas the vendee did not own land there. The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an 'estate ', sought to prove that he too owned land in the same village and 'estate ' but in this he failed. As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial court on Novber 8, 1951, and an appeal and second appeal therefrom were also dismissed. The question was whether the respondent was entitled to a decree in view of section 31 of the Punjab Pre emption Act 1913 as amended by Punjab Act 10 of 1960 which came into force on February 4, 1960. It was held by this Court that in view of the plain language of section 3 1, the substantive law enacted by the legislature in the amended section 15 of the Pre emption 841 Act should be applied and the decree for pre emption in favour of the first respondent should be set aside. It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in Ram Sarup vs Munshi & Ors. (1) has no application to the present case. In Ram Sarup 's case(1) the right of the plaintiff to pre empt was extinguished retrospectively; in the present case Neki 's right to sue has not been extinguished Neki had the right of pre emption under the Amended Act at the time he, instituted the suit and Neki 's right was not extinguished on his death but passed to his legal representatives. For the reasons expressed above, we hold that these appeals have no merit and must be dismissed with costs. There will be one set of hearing fee. Y.P. (1) ; Appeals dismissed.

By section 4 of the Amending Act (Punj. Act 10 of 1960) section 15 of the Punjab Pre emption Act, 1913 was repealed and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons 'owning land in the estate ' as the original section 15(c) 'thirdly ' had done. Retrospective effect was given to the provisions by the insertion of new section 31 in the parent Act. In respect of sales effected after the promulgation of the Amending Act, one N filed suits and obtained decrees for pre emption in all suits against the appellants under section 15(1)(a) of the Punjab Pre emption Act. These decrees were confirmed by the first appellate court. While the second appeals were pending in the High Court, N died, and his legal representatives were brought on record. The High Court dismissed the appeals. In appeals to this Court, it was contended that (i) the statutory right of pre emption under the Punjab Preemption Act, was not a 'heritable right ' and no decree for pre emption should have been passed by the lower court in favour of the legal representatives; and (ii) section 31 of the Act as amended retrospectively by Punjab Act 10 of 1960, stood as a bar to the granting of a decree in favour of substituted legal representatives. HELD : The appeals must be dismissed. (i) The statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the persons entitled to pre empt. The right of pre emption under section 15(1) (a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor. But under section 14 of the Act, the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes, as the vendor and the land of which preemption is sought must be in respect of agricultural land sold to a member of the agricultural tribe. If an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption. This view is sup ported by the language of section 306 of the Indian Succession Act and therefore, the claim of N for pre emption did not abate upon his death and his legal representatives were properly brought on 'record of the second appeals under the provisions of 0. 22, r. 1 read with 0. 22, r. 10 of the Code of Civil Procedure. (836 G; 837 B D] Faqir Ali Shah vs Rani Kishan & Ors. 133 P.R. 1907 and Wajid Ali & Ors. vs Shaban & Ors. 1.L.R. 31 All 623, approved. Muhammad Husain vs Niamat un nissa & Ors. I.L.R. 20 All, 88, referred to. 834 (ii) The Amending Act came into. force long before N instituted the present suits. Even the sales of land were effected after the promulgation of the Amending Act. In Ram Sarup 's case, the right of the plaintiff to pre empt was extinguished retrospectively; in the present case N 's right to sue has not been extinguished. N had the right of pre emption under the Amended Act at the time he instituted the suit and N 's right was not extinguished on his death but passed to his legal representatives. [839 G] Ram Sarup vs Munshi & Ors. [196.3] 3 S.C.R. 858, distinguished.

tition (Civil) No. 13227 of 1984 etc. (Under Article 32 of the Constitution of India.) Pankaj Kalra for the Petitioner in W.P. No. 13227 of 1984. M/s. Harbans Lal, V.C. Mahajan, Mahabir Singh, Avadh Behari Rohtagi, S.S. Banerjee, M.S. Gujaral, K.G. Bhagat, Hardev Singh, Yogeshwar Prasad, Anil Dev Singh, Govind Das, and K.P. Bhandari, M/s. S.M. Ashri, G.K. Bansal, J.S. Malhotra, Ali Ahmed, Jayashree Ahmed, C.K. Bansal, Narendra Singh Malik, D.K. Garg, B.P. Maheshwari, Vidya Sagar Vashist, S.N. Agarwal, S.K. Jain, S.K. Dhingra, M.L. Verma, S.K. Bagga, Ranbir Singh Yadav, H.M. Singh, Kirpal Singh, Amlan Ghosh, M. Qamaruddin, Mrs. M. Qamaruddin, R.K. Kapur, M.M. Kashyap, B.R. Kapur, Anil Katyal, O.P. Sharma, Amis Ahmad Khan, R.C. Kapoor, Mrs. Laxmi Arvind, Suresh C. Gupta, S.S. Ray, Anil Bhatnagar, 404 Praveen Kumar, Ashok Mathur, M.K. Dua, P.N. Puri, Gyan Singh, I.S. Goel, S.N. Singh, C.V. Subba Rao, V.M. Issar, Khaitan & Co., Brij Bhushan Sharma, P. Narasimhan, Ms. Madhu Mool Chandani, K.K. Jain, Pramod Dayal, A.D. Sangar, A.K. Ganguli, A. Mariaputam, Nafiz Ahmad Siddiqui, M.C. Dhingra, Avtar Singh Sonal, Shreepal Singh, S.R. Srivastava, Ashok K. Srivastava, Balmukand Goel, S.K. Bhulakia, R.C. Bhatia, R.K. Agnihotri, Dr. Meera Aggarwal, R.C. Misra, M.S. Dhillon, S.K. Dholakia, P. Narasimhan, R.K. Agarwal, T. Sridharan, S.C. Patel, N.M.Popli, Brij Bhushan and Kailash Mehta for the appearing parties. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The archaic right of pre emption based on consanguinity is in question in the several thousand writ petitions under article 32 of the Constitution. The constitutional validity of sec. 15 of the Punjab Pre emption Act, 1913 was applicable in the State of Haryana which incorporates this right is challanged. The State of origin of the Punjab Pre emption Act, the State of Punjab, has repealed the Act in 1973. The Act, however, continues to be in force in the State of Haryana which originally formed part of the State of Punjab. The vires of sec.15(1)(a) of the Act was questioned in this Court in Ram Sarup vs Munshi and Ors. ; on the ground that it offended the fundamental right guaranteed by sec.19(1)(f) of the Constitution. It was ruled by a Constitution Bench that there was no infringement of Art.19(1)(f) and that the provision was valid. The validity of sec.15 is now impugned primarily on the ground that it offends articles 14 and 15 of the Constitution. The right of pre emption based on consanguinity has been variously described by learned judges as 'feudal ', 'piratical ', 'tribal ', 'weak ', 'easily defeated ', etc. [Ralwa vs Vaaakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at 490 and Bishan Singh vs Khazan Singh [1959] S.C.R. 878. Fusing as it does the Lies of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character. The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture. It 405 is a well known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group. The right of pre emption based on consanguinity is a consequence flowing out of this characteristic. It is entirely inconsistent with our Constitutional scheme. Since the Forty Second Amendment, India is a socialist republic in which feudalism can obviously have no place and must go. Our Constitution now proclaims India as a sovereign, socialist, secular democratic republic in which the right to equality before the law and the equal protection of the laws are guaranteed and all citizens are assured that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them. The citizens are also assured of the right to move freely through out the territory of India, to reside or settle in any part of the territory of India and to practise any profession or to carry on any occupation, trade or business. The State is further enjoined to direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. The right to property has also now ceased to be a fundamental right since the Forty Fourth Amendment. The question now is whether this adjunct of the right to property, perhaps perfectly reasonable in a feudal society, can be constitutionally sustained in a society dedicated to socialistic principles. The question has to be examined with reference to articles 14, 15 and 19(1)(d) and (g), in the background of the Preamble to the Constitution and Art.39(c) of the Directive Principles of State Policy. We think that the question has to be primarily answered with reference to Art 14. The Punjab Pre emption Act, 1913 repealed the Punjab Pre emption Act of 1905 and sec.12 of the 1905 Act which corresponded to sec.15 of the 1913 Act was as follows: "12. Subject to the provisions of section 11, the right of pre emption in respect of agricultural land and village immovable property shall vest (a) in the case of the sale of such land or property by a sole owner or occupancy tenant, or when such land or property is held jointly, by the co sharers, 406 in the persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession; (b) in the case of a sale of share of such land or property held jointly first in the lineal descendants of the vendor in the male line in order of succession; secondly, in the co shares, if any, who are agnates, in order of succession; thirdly, in the persons described in sub clause (a) of this sub section and not hereinbefore provided for; fourthly, in the co sharers, (i) jointly, (ii) severally; (c) As section 15(c), Act of 1913, with the addition of words (i) jointly, (ii) severally, in secondly, thirdly and fourthly. Explanation 1. In the case of sale of a right of occupancy, clauses (a), (b) and (c) of this sub section, with the exception of sub clause fourthly of clause (c), shall be applicable. Explanation 2. In the case of a sale by a female of property to which she has succeeded through her husband, son, brother or father, the word 'agnates ' in this section shall mean the agnates of the person through whom she has so succeeded. " Section 15 of the Punjab Pre emption Act, 1913 as it originally stood, was as follows: "15. Subject to the provisions of section 14 the right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly 407 owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold: (b) where the sale is of a share out of joint land or property, and is, not made by all the co sharers jointly, firstly, in the lineal decendants of the vendor in order of succession; secondly, in the co sharers, if any, who are agnates, in order of succession; thirdly in the persons, not included under firstly or secondly, above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold; fourthly, in the co sharers: (c) If no person having a right of pre emption under clause (a) or clause (b) seeks to exercise it, firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior proprietors, and when the inferior right is sale, in the superior proprietors; secondly, in the owners of the patti or other sub division of the estate within the limits of which such land or property is situate; thirdly, in the owners of the estate; fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property; 408 fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated. Explanation In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word (agnates ' in this section shall mean the agnates of the person through whom she has so succeeded. In 1960, there were substantial amendments to the Punjab Pre emption Act and, after amendment, sec.15 was as follows: "15. Persons in whom right of pre emption vests in respect of sales of agricultural land and village immovable property (1) The right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner First, in the son or daughter or son 's son or daughter 's son of the vendor; Secondly, in the brother or brother 's son of the vendor: Thirdly, in the father 's brother or father 's brother 's son of the vendor; Forthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof; (b) where the sale is of a share out of joint land or property and is not made by all the co shares jointly First, in the sons or daughters or sons ' son or daughters ' sons of the vendor or vendors; Secondly, in the brothers or brother 's sons of the vendor or vendors; 409 Thirdly, in the father 's brother or father 's sons of the vendor or vendors; Fourthly, in the other co sharers; Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof; (c) where the sale is of land or property owned jointly and is made by all the co sharers jointly First, in the sons or daughters or sons ' sons or daughter 's sons of the vendors; Secondly, in the brothers or brother 's sons of the vendors; Thirdly, in the Father 's or brother 's or father 's brother 's sons of the vendors: Fourthly, in the tenants, who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof. (2) Notwithstanding anything contained in subsection(1) : (a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre emption shall vest: (i) if the sale is by such female, in her brother or brother 's son; (ii) if the sale is by the son or daughter of such female, in the mother 's brothers or the mother 's brother 's sons of the vendor or vendors; (b) where the sale is by a female of land or 410 property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre emption shall vest, FIRST, in the son or daughter of such (husband of the) female; SECONDLY, in the husband 's brother or husband 's brother 's son of such female. " Agricultural land has been defined in the Act to mean land as defined in the Punjab Alienation of Land Act, not including the rights of a mortgagee, whether usufructuary or not, in such land. 'Member of an agricultural tribe ' and 'Group of agricultural tribes ' are to have the same meanings assigned to them respectively under the Punjab Alienation of Land Act. The Punjab Alienation of Land Act has been repealed, but the definitions continue to have force for the purposes of the Punjab Pre emption Act. Section 4 of the Punjab Preemption Act states what the right of Pre emption is. It says : "4. Right of pre emption application of The right of pre emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale. " t Section 5(b) prescribes that there shall be no right of pre emption in respect of the sale of agricultural land being waste land reclaimed by the vendee. Section 6 provides that a right of pre emption shall exist in respect of village immovable property and subject to the provisions of section 5(b), in respect of agricultural land, but only subject to all the provisions and limitations contained in the Act. Section 7 refers to the right of pre emption in respect of urban immovable property. Section 8 enables the Government to 411 declare by a notification that there shall be no right of pre emption in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales. Section 10 prevents a party to a sale along with other joint owners from claiming a right to pre emption. In respect of land sold by a member of an agricultural tribe, section 14 provides that no person who is not a member of the same agricultural tribe as the vendor shall have a right of pre emption. We have already extracted section 15. Section 16 refers to the vesting of the right of pre emption in the case of an urban immovable property Section 17 prescribes how the right of pre emption may be exercised where several persons are entitled to such right. Other provisions deal with the procedure to be followed for the exercise of the right of pre emption. Now, to the question at issue and first, a word about interpretation. Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule is to look to the Preamble to the Constitution as the guiding light and to the Directive Principles of State Policy as the Book of Interpretation. me Preamble embodies and expresses the hopes and aspirations of the people. The Directive Principles set out proximate goals. When we go about the task of examining statutes against the Constitution, it is through these glasses that we must look, 'distant vision ' or 'near vision '. The Constitution being sui generis, where Constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted may be misplaced. Originally the Preamble to the Constitution proclaimed the resolution of the people of India to constitute India into 'a Sovereign Democratic Republic ' and set forth 'Justice, Liberty, Equality and Fraternity ', the very rights mentioned in the French Declarations of the Rights of Man as our hopes and aspirations. That was in 1950 when we had just emerged from the colonial feudal rule. Time passed. The people 's hopes and aspirations grew. In 1977 the 42nd amendment proclaimed India as a Socialist Republic. The word 'socialist ' was introduced into the Preamble to the Constitution. The implication of the introduction of the word 'socialist ', which has now become the centre of the hopes and aspirations of the people a beacon to guide and inspire all that is enshrined in the 412 articles of the Constitution , is clearly to set up a "vibrant throbbing socialist welfare society" in the place of a "Feudal exploited society". Whatever article of the Constitution it is that we seek to interpret, whatever statute it is whose constitutional validity is sought to be questioned, we must strive to give such an interpretation as will promote the march and progress towards a Socialistic Democratic State. For example, when we consider the question whether a statute offends Article 14 of the Constitution we must also consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the Preamble and the Directive Principles enumerated in Part IV of the Constitution. A classification which is not in tune with the Constitution is per se unreasonable and cannot be permitted. With these general ennunciations we may now examine the questions raised in these writ petitions. We may first refer to two decisions of this court where the court had occasion to consider the question of the constitutional validity of the right of pre emption incorporated in the Rewa State Pre emption Act and the Punjab Pre emption Act in relation to article 19(1)(f) of the Constitution. In Bhau Ram vs B. Baijnath Singh [1962] Suppl, 3 S.C.R. 724, a Constitution Bench of this court had occasion to consider the question whether a provision of the Rewa State Pre emption Act which gave a right of pre emption based on vicinage and the provisions of the Punjab Pre emption Act, 1913 which gave a right of pre emption to co sharers offended Art.19(1)(f) of the Constitution. It was held that a right of pre emption by vicinage offended Art.19(1)(f) and that a right of pre emption in favour of co sharers did not. While dealing with the provision of the Rewa Act relating to pre emption by vicinage, the Constitution Bench not only held that the right to pre emption by vicinage offended article 19(1)(f), but also appeared to indicate that the right might also offend the fundamental right guaranteed by Art.15. Wanchoo, J., speaking for the court said : "Before the Constitution came into force, the statutes if they were passed by competent authority, could not be challenged; but we have now to judge the reason ableness of these statutes in 413 the light of the fundamental rights guaranteed to the citizens of this country by the Constitution. In a society where certain classes were privileged and preferred to live In groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity of class of people and in those times a right of pre emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable. But the constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore the ostensible reason for pre emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre emption based on vicinage was really meant to prevent strangers i.e. people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of pre emption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guranteed under Art.19(1)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day. " Considering the question relating to the right of pre emption given to co sharers in the Punjab Pre emption Act, 1913, the court observed : 414 "The question as to the constitutionality of a law of pre emption in favour of a co sharer has been considered by a number of High Courts and the constitutionality has been uniformly upheld. We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest of the general public. If an outsider is introduced is a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. The result of the law of pre emption in favour of a co sharer is that if sales take place the property may eventually come into the hands of one co sharer as full owner and that would naturally be a great advantage the advantage is all the greater in the case of a residential house and s.16 is concerned with urban property; for the introduction of an outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law of pre emption are clear and in our opinion outweight the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property. On the whole it seems to us that a right of pre emption based on co sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interests of the general public. In Bhau Ram 's case, there was also a question relating to the right of pre emption granted by s.174 of the Berar Land Revenue Code in favour of occupants in a survey number in respect of transfers of interests in that survey number. Referring to the provisions of the Berar Land Revenue Code, it was held that the law of pre emption in s.174 applied to those who were co sharers or akin to co sharers and was not an unreasonable restriction on the right guaranteed by Art.19(1)(f). The question whether section 15(1)(a) of the Punjab 415 Pre emption Act, 1913 (as amended in 1960) which granted a right of pre emption in respect of agricultural land and village immovable property (where the sale was by a sole owner) to the son or daughter or son 's son or daughter 's son of the vendor, offended the fundamental right guaranteed by Art.19(1)(f) of the Constitution was considered by a Constitution Bench of the court in Ram Sarup vs Munshi and Ora. (supra). Before the Constitution Bench, the following five grounds were relied upon to vindicate the reasonableness of sections 15 and 16 of the Act : (i) to preserve the integrity of the village and the village community; (ii) to avoid fragmentation of holdings; (iii) to implement the agnatic theory of the law of succession; (iv) to reduce the chances of litigation and friction and to promote public order and domestic confort: and (v) to promote private and public decency and convenience. It was held that the ground of "promotion of public order and domestic comfort" and "private and public decency and convenience" had relevance to urban immovable property which was dealt with in s.16 and not to agricultural property which was dealt with in s.15. It also held that the ground of avoidance of chances of litigation had no relevance and further that the ground of avoidance of fragmentation of holdings was of no assistance to sustain the claim of a son to pre empt in the event of a sale by a sole owner father as that criterion was of real relevance in the case of the right of pre emption given to co sharers and the like. In regard to the ground relating to preservation of the integrity of the village and the village community, the court held that it was not a final and conclusive answer to the argument against the reasonableness of the provision. me court however upheld s.l5(1)(a) as a reasonable restriction in the interest of the general public on the basis of the third ground which was that 416 the next in succession should have the chance of retaining the property in the family. It was observed that the son and other members of the family though not entitled to a present interest in the property or a right to prevent the alienation, would nevertheless have a legitimate expectation founded on and promoted by the consciousness of the community. It was observed that if the social consciousness did engender such feelings, and taking into account the very strong sentimental value that was attached to the continued possession of family property in the Punjab, it could not be said that the restriction on the right of free alienation imposed by s.l5(1)(a) limited as it was to a small class of near relations of the vendor was either unreasonable or not in the interest of the general public. In Sant Ram vs Labh Singh, A.I.R. 1965 S.C. 314, it was held that the reasons given by the court in Bhau Ram 's case tc invalidate the right of pre emption based on vicinage held good to invalidate such a custom also. In the first case, (Bhau Ram 's case), the right of preemption given to co sharers was held to be a reasonable restriction on the right to held, acquire or dispose of property conferred by article 19(1)(f) of the Constitution. What has been said there to uphold the right of pre emption granted to a co sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co sharers as a class by themselves for the purpose of vesting in them the right of pre emption. We do not think that it is necessary to re state what has been said in that case. We endorse the views expressed therein. The right of pre emption vested in a tenant can also be easily sustained. There can be no denying that the movement of all land reform legislations has been towards enabling the tiller of the soil to obtain proprietory right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor. The right of pre emption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There can be no doubt that tenants form a distinct class by themselves and the right of pre emption granted in their favour is reasonable and in the public interest. We are, therefore, of the view that clause 'fourthly ' of s.15(1)(a), clauses 'fourthly 417 and fifthly ' of s.15(1)(b) and clause 'fourthly ' of section 15(1) (c) are valid and do not infringe either article 14 or 15 of the Constitution. We now come to the primary question whether the right of pre emption based on consanguinity and contained in the remaining clauses of sec.15(1)(a), (b) and (c) and sec. 15(2)(a) and (b) can be sustained. Earlier we have briefly indicated the character of the right of pre emption based on consaguinity. In the counter affidavit, the classification in favour of the persons mentioned in 9.15 is sought to be justified in the following manner "The classifications has been made on reasonable basis in the interests of the public : (i) to preserve integrity of village community; (ii) to avoid fragmentation of holdings; (iii) to implement the agnatic theory of succession; (iv) to promote public and private decency; (v) to facilitate tenants to acquire ownership rights; (vi) to reduce litigation consequent to introduction of an outsider on family property or jointly owned property. These were the very factors which were put forward to support the plea in Ram Sarup 's case that s.15(1)(a) was a reasonable restriction on the right to hold acquire or dispose of property conferred by article 19(1)(f) of the Constitution. As pointed out in Ram Sarup 's case, avoidance of fragmentation of holdings, promotion of private and public decency and reduction of litigation do not seem to have any relevance to the right of pre emption, vested in the kinsfolk of the vendor. The real question is whether a classification in favour of the kinsfolk of the vendor can be considered reasonable so as to justify a right of pre emption in their 418 favour for the purpose of preserving the integrity of the village community or implementing the agnatic theory of succession or preserving the unity and integrity of the family, We do not think that the classification can be considered reasonable in the circumstances prevailing today whatever Justification there might have been for the classification in 1960 when the legislature amended s.15 of the Punjab Pre emption Act. Apart from the courts characterising the right as 'archaic ', 'feudal ', 'piratical ' 'outmoded ' and so on, the Punjab legislature recognised the incongruity of the right in modern times and repealed it in 1972. We find it difficult to uphold the classification on the basis of unity and integrity of either the village community or the family or on the basis of the agnatic theory of succession which is again in a way connected with the integrity of the family. It is well known and, we may take judicial notice of it, that not only has there been a green and a white revolution in Haryana, this State is also in the process of an industrial revolution. Industries have sprung up through out the State and the population has been in a State of constant flux and movement. The traditional integrity of the village and the family have now become old wives ' tales. Tribal loyalities have disappeared and family ties have weakened. Such is the effect of the march of history and the consequence of industrialisation, mechianisation of agriculture, development of marketing and trade, allurement of professions and office, employment opportunity elsewhere and so on. The processes of history cannot be reversed and we cannot hark back to the traditional rural family oriented society. Quite apart from the break up of the integrity of village life and family life, it is to be noticed that the property in respect of which the right of pre emption is to be exercised is property of which the vendor or the vendors, as the case may be, have rights of full ownership and their kinsfolk have no present right whatsoever. The right of pre emption is not to be confused with the right to question the alienation of ancestral immovable property which the male lineal descendants of the vendor have under the Punjab Custom (Power to Contest) Act, 1920. The right of pre emption is now entirely a statutory right and dissociated from custom or personal law. A scrutiny of the list of persons in whose favour the right of pre emption is vested under s.15 reveals certain 419 glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession. First we notice that neither the father nor the mother figures in the list though the father 's brother does. me son 's daughter and the daughter 's brother does. The son 's daughter and the daughter 's daughter do not appear though the son 's son and daughter 's son do. The sister and the sister 's son are excluded, though the brother and the brother 's son are included. Thus relatives of the same degree are excluded either because they are women or because they are related through women. It is not as if women and those related through women are altogether excluded because the daughter and daughter 's son are included. If the daughter is to be treated on a par with the son and the daughter 's son is treated on a par with the son 's son it does not appear logical why the father 's son (brother) should be included and not the father 's daughter (sister). These are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in s.15 as entitled to the right of pre emption. It is ununderstandable why a son 's daughter, a daughter 's daughter, a sister or a sister 's son should have no right of pre emption whereas a father 's brother 's son has that right. As s.15 star, s, if the sole owner of a property sells it to his own father, mother, sister, sister 's son, daughter 's daughter or son 's daughter, the sale can be defeated by the vendor 's father 's brother 's son claiming a right of pre emption. We are thus unable to find any justification for the classification contained in section 15 of the Punjab Preemption Act of the kinsfolk entitled to pre emption. The right of pre emption based on consanguinity is a relie of the feudal . It is totally inconsistent with the Constitutional me. It is inconsistent with modern Ideas. The reasons such justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, . unity of family life and the agnatic theory of succession are today irrelevant. me list of kinsfolk mentioned as entitled to pre emption is intrinsically defective and self contradictory. There is, therefore, no reasonable classification and clauses 'First ', 'Secondly ', and ' Thirdly ' of s.l5(1)(a), 'First ', 'Secondly ' and 'Thirdly ', of s.15(1)(b), Clauses 'First ', 'Secondly ' and 'thirdly ' of s.15(1)(c) and the whole of section 15(2) are, therefore, declared ultravires the Constitution. 420 We are told that in some cases suits are pending in various courts and, where decrees have been passed, appeals are pending in appellate courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding inter partes and the declaration granted by us will be of no avail to the parties thereto. There will be no order regarding costs.

Interpretation of statutes Provision of Constitution sought to be interpreted or a statute whose constitutional validity is sought to be questioned Interpretation that will promote march & Progress towards a Socialistic Democratic State To be given. Section 15 of the Punjab Pre emption Act, 1913 as applicable in the State of Haryana, incorporates the right of pre emption based on consanguinity. The petitioners challenged this right of pre emption based on consanguinity under article 32 of the Constitution on the ground that it offends articles 14 and 15 of the Constitution. It was contended on behalf of the respondent State that the classification in favour of the persons mentioned in section 15 has been made on reasonable basis in the interests of the public: (1) to preserve integrity of village community; (11) to avoid fragmentation of holdings; (111) to implement the agnatic theory of succession; (iv) to promote public and private decency; (v) to facilitate tenants to acquire ownership rights; (vi) to reduce litigation consequent to introduction of an outsider on family property or jointly owned property. Allowing the writ petitions, ^ HELD: 1(1) There is no justification for the classification contained in section 15 of the Punjab Perception Act of the kinsfolk entitled to pre emption. The right of pre emption based on consanguinity is a relic of the feudal past. It is totally inconsistent with modern ideas. The reasons which justified its recognition quarter of a century 400 ago, namely, the preservation of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. It is difficult to uphold the classification on the basis of unity and integrity of either the village community or the family or on the basis of the agnatic theory of succession which 18 again in a way connected with the integrity of the family. The list of kinsfolk mentioned as entitled to preemption is intrinsically defective and self contradictory. There is, therefore, no reasonable classification and clauses 'First ', 'Secondly ' and 'Thirdly ' of 8. 15(1)(a), 'First ', 'Secondly ', and 'Thirdly ' of 8. 15(1)(b), clauses 'First ', 'Secondly ' and 'Thirdly ' of 8. 15(1)(c) and the whole of section 15(2) are, therefore, declared ultravires the Constitution. [419 E H] 1.2 Clause 'fourthly ' of 8. 15(1)(a), clauses 'fourthly and fifthly ' of 8. 15(1)(b) and clause 'fourthly ' of 8. 15(1) (c) are valid and do not infringe either article 14 or 15 of the Constitution. [416 H; 417 A] 2.1 Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule 18 to look to the Preamble to the Constitution as the guiding light and to the Directive Principles of State Policy as the Book of interpretation. The Preamble embodies and expresses the hopes and aspirations of the people. The Directive Principles set out proximate goals. At the time of examining statutes against the Constitution, it is through these glasses that the court must look, 'distant vision ' or 'near vision '. The Constitution being sui generis, where constitutional issues are under consideration, narrow interpretative rules which may have relevance when legislative enactments are interpreted may be misplaced. [411 D F] 2.2 In 1977 the 42nd amendment proclaimed India as a Socialist Republic. The word 'socialist ' was introduced into the Preamble to the Constitution. The implication of the introduction of the word 'socialist ' which has now become the centre of the hopes and aspirations of the people a beacon to guide and inspire all that is enshrined in the articles of the Constitution is clearly to set up a "vibrant throbbing socialist welfare society" in the place of a "Feudal exploited society. When the Court considers the question whether a 401 statute offends Article 14 of the Constitution it must consider whether a classification that the legislature may have made is consistent with the socialist goals set out in the Preamble and the Directive Principles enumerated in Part IV of the Constitution. A classification which is not in tune with the Constitution is per se unreasonable and cannot be Permitted. [411 G H: 412 A C] 3.1 The right of pre emption based on consanguinity is antiquated and feudal in origin and in character. The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture. It is a well known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group. The right of preemption based on consanguinity is a consequence flowing out of this characteristic. It is entirely inconsistent with our Constitutional scheme. Since the Forty Second Amendment, India is a socialist republic in which feudalism can obviously have no place and must go. [404 G H; 405 A 8] 3.2 Avoidance of fragmentation of holdings, promotion of private and public decency and reduction of litigation do not seem to have any relevance to the right of pre emption, vested in the kinsfolk of the vendor. me real question is whether a classification in favour of kinsfolk of the vendor can be considered reasonable so as to justify a right of pre emption in their favour for the purpose of preserving the integrity of the village community or implementing the agnatic theory of succession or preserving the unity and integrity of the family. The classification cannot be considered reasonable in the circumstances prevailing today whatever justification there might have been for the classification in 1960 when the legislature amended 8. 15 of the Punjab Pre emption Act. A scrutiny of the list of persons in whose favour the right of preemption is vested under section 15 reveals certain glaring facts which appear to detract from the theory of preservation of the integrity of the family and the theory of agnatic right of succession. Neither the father nor the mother figures in the list though the father 's brother does. The son 's daughter and the daughter 's son do. The sister and sister`s son are 402 excluded though the brother and the brother 's son are included. Thus relatives of the same degree are excluded either because they are women or because they are related through women. It is not as if women and those related through women are altogether excluded because the daughter and daughter 's son are included. If the daughter is to be treated on a par with the son 's son it does not appear logical why the father 's son (brother) should be included and not the father 's daughter (sister). There are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in s.15 as entitled to the right of pre emption. [417 G H; 418 A B; H; 419 A C] 3.3 There has been a green and a white revolution in Haryana. This State is also in the process of an industrial revolution. Industries have sprung up through out the State and the population has been in a state of constant flux ant movement. The traditional integrity of the village and the family have now become old wives ' tales. Tribal loyalties have disappeared and family tries have weakened. Such is the effect of the march of history and the consequence of industrialisation, mechanisation of agriculture, development of marketing and trade, allurement of professions and office, employment opportunity else where and so on. The processes of history cannot be reversed and the court cannot hark back to the traditional rural family oriented society. Quite apart from the break up of the integrity of village life and family life, lt is to be noticed that the property in respect of which the right of pre emption is to be exercised is property of which the vendor or the vendors, as the case may be, have rights of full ownership and their kinsfolk have no present right whatsoever. [418 C F] 3.4 The right of pre emption is not to be confused with the right to question the alienation of ancestral immovable property which the male lineal descendants of the vendor have under the Punjab Custom (Power to Contest) Act 1920. The right of preemption is now entirely a statutory right and dissociated from custom or personal law.[418 G] 4.1 In Bhau Ram vs Baijnath Singh 1962 (Suppl.) 3 S.C.R. 724, the right of pre emption given to co share was held to be a reasonable restriction on the right to hold, acquire or dispose of property conferred by article 19(1)(f) of 403 the Constitution. What has been said there to uphold the right of pre emption granted to a co sharer as a reasonable restriction on the right to property applies with the same force to justify the classification of co sharers as a class by themselves for the purpose of vesting in them the right of pre emption. [416 D E] 4.2 The right of pre emption vested in a tenant can also be easily sustained. There can be no denying that the movement of all land reform legislation has been towards enabling the l tiller of the soil to obtain proprietary right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor. The right of preemption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There can be no doubt that tenants form a distinct class by themselves and the right of pre emption granted in their favour is reasonable and in the public interest.[416 G H] Bhau Ram vs B. Baijnath Singh, [1962] Supp. 3 S.C.R. 724 and Sant Ram vs Labh Singh A.I.R. 1965 S.C. 314 referred to. Ram Sarup vs Munshi Ors. ; explained.

Appeal Nos.3465 69 of 1988. From the Judgment and Order dated 26.10.1987 of the Punjab and Haryana High Court in C.W.P. Nos. 755, 5141 & 3659/87 & 3138/88. 357 Shanti Bhushan and Prem Malhotra for the Appellants. Ms. Nisha Bagchi for Ms. Indu Malhotra, U.S. Chowdhary and Ravindra Bana for the Respondents. Bhal Singh Malik and S.M. Hooda for the Intervenor. The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. This batch of appeals is preferred against a common judgment of Punjab an Haryana High Court dismissing a batch of six writ petitions. There are three wings/branches in the Public Works Department of the Government of Haryana, viz., Irrigation, Roads and Buildings and Public Health. We are concerned herein with the Irrigation branch. The Engineering service in the Irrigation branch comprises both class I, and class II services. Recruitment to and conditions of service of class I are governed by the Haryana Service of Engineers Class I P.W.D., Irrigation Branch Rules, 1964 whereas recruitment to and conditions of service of class 11 is governed by Haryana Service of Engineers Class 11 P.W.D. (Irrigation Branch) Rules, 1970. The lowest category in class I is that of Assistant Executive Engineers. Above it is the category of Executive Engineers and above it Superintending Engineers. Recruitment to the category of Assistant Executive Engineers is only by direct recruitment. Recruitment to the category of Executive Engineers is (a) by direct recruitment, (b) by transfer of an officer already in class I service of the Government of India or of a State Government and (c) by promotion from class 11 service. Sub rule (2) of Rule 5 of the class I Rules says, "recruitment to the service shall be so regulated that the number of posts filled by promotion from class 11 service shall not exceed 75% of the number of posts in the service excluding the posts of Assistant Executive Engineers for the first 10 years from the date of commencement of these Rules and thereafter shall not exceed 50% of the number of posts in the service excluding the post of Assistant Executive Engineers. " The proviso to this sub rule, however, says that "in case an adequate number of Assistant Executive Engineers who are eligible and considered fit for promotion are not available the actual percentage of officers promoted from class 11 service may be larger than 75% or 50%, as the case may be." In other words, after the year 1974, the share of class 11 officers in the promotion quota to the category 358 of Executive Engineers categroy, shall not exceed 50%, the balance being allocated to the Assistant Executive Engineers who are also entitled to be promoted to the categroy of Executive Engineers. But in case adequate number of Executive Engineers are not available, the said ceiling can be exceeded. Though the Assistant Executive Engineers are in class I and Assistant Engineers are in Class II, both these categories discharge similar functions, duties and responsibilities. Members of both these categories are posted as Sub Divisional Officers/Sub Divisional Engieers. Both are eligible for promotion to the category of Executive Engineers as stated above, but while the cadre strength of Assistant Engineers is very large, the cadre strength of Assistant Executive Engineers is quite small, with the consequence that in the matter of promotion to the category of Executive Engineers, the Assistant Executive Engineers enjoy a marked advantage in view of the inter se quota prescribed by sub rule (2) of Rule 5. The Assistant Executive Engineers get promoted far sooner than the Assistant Engineers. The cadre strength of Assistant Executive Engineers is stated to be 49. While the cadre strength of Assistant Engineers is not stated before us, it is admittedly far larger. In the year 1985, the Haryana Public Service Commission issued a notification stating that "a combined competitive examination for recruitment to the post of Assistant Executive Engineers (C) in the P.W.D. will be held by the Haryana Public Service Commission in August/September, 1985 in accordance with the rules of Haryana P.W.D. Irrigation, B&R and Public Health Branches, as amended from time to time." Then followed the table of particulars, which must be noticed: Reserved Reserved Reserved Name Of Post No. Of For S.c.of For B.c. Post For exhibit Haryana Haryana Service 1 2 3 4 5 (i) Haryana Service of Engineers 15 4 2 1 Class I (Junior Sca les) in P.W.D. Public Health Branch. 359 (ii) Haryana Service of 8 2 1 enginners Class I Enginee rs Class I (Junior Scales) in P.W.D. B & R. Br. (iii)Haryana Service of Engineers Class I (Junior Scale) posts in the P.W.D. Irrigation Branch are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Government. The number of posts given against each category is liable to variation. Three posts (two for S.C.of Haryana and One B.C. of Haryana) in P.W.D. B & R Branch are reserved failing with other shall be considered. Seven posts (four for S.C. of Haryana, two for B.C. of Haryana and one for Ex Servicemen) in P.W.D. Public Health Branch are reserved failing whom others will be considered". It is significant to notice the wording of item (iii) in the table. It is clear therefrom that the Public Service Commission had notified the vacancies in the category of Assistant Executive Engineers (referred in the Rules and in the notification as Engineers class I (Junior Scale)) even without a requisition from the Government. The Commission by stating that posts in the said category "are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Govern ment", had made it known to the candidates of the absence of authority. Admittedly, no such demand or requisition was ever received by the Government at any time after the issuance of the said notification. It is equally relevant to point out that under the notification, applications for selection to the category of Assistant Executive Engineers in all the three wings of the P.W.D. were called for. The eligibility criteria and the qualifications required for appointment to the said category is stated to be indentical in all the three wings though they are governed by different sets of rules. It is also stated before us that no separate applications were necessary and that one could apply for appointment in all or any of the three wings indicating his choice and subject to his fulfilling the prescribed qualifications. In response to the notification aforesaid, several Engineers including 360 the appellants herein applied. A written test was. conducted followed by an oral interview. On the basis of the marks obtained in the written test and the oral interview, certain persons were selected for Public Health and Buildings & Roads wings. No selections were made for the Irrigation wing evidently for the reason that even by the date of finalisation of selections, no requisition or demand had come from the Government. It is only then that the appellants approached the Punjab and Haryana High Court with a batch of writ petitions praying for the issuance of an appropriate writ, order or direction to the respondents (Government of Haryana and the Haryana Public Service Com mission) "to fill up 44 vacancies of Assistant Executive Engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance of the advertisement. . They asked for a further direction to the State of Haryana "to send requisition to the Respondent Commission to fill up all the vacancies in the Class I service which are meant for direct recruits forthwith and to make appointment to the class I service by the method of direct recruits as required by the Rules. " The appellants challenged the method of selection followed by the Commission as also the refusal/failure of the Government to fill up the vacancies in the category of Assistant Executive Engineers. The writ petitions were opposed by the Public Service Commission as also by the State Government. The High Court dismissed the writ petitions rejecting the several contentions urged by the appellants. In this appeal, Sri Shanti Bhushan, the learned counsel for the appellants urged the following contentions: (1) The cadre strength of Assistant Executive Engineers in the Irrigation wing is 49. As against the said strength, there were only 5 persons holding the posts, which means the vacancies are 44 in number. There has been no recruitment to this category since 1979. In that year, the Government had sent a requisition for 22 posts but only 8 were selected by the Commission. From out of these eight, only five were appointed to the category. In the year 1983, the Government sent a requisition to the Commission for 23 posts but none were selected or appointed. It is in this situation that the notification issued by the Commission in the year 1985 envisaged a selection to the category of Assistant Executive Engineers in the Irrigation Branch as well. The Commission expected that in view of the vacancies earlier notified, the Government would be sending a requisition and with 361 a view to save time and effort, it included the vacancies in Irrigation wing as well in the Notification, which pertained to the vacancies in the very same category in the other two wings of the P.W.D., for which requisition was received. The Government acted arbitrarily and unreasonably in no sending the requisition, inspite of the fact that 44 vacancies have been existing in this category in Irrigation Branch since a long number of years. This refusal to fill up the said vacancies is mala fide and is designed to help and promote the interest of class II officers. Though, according to the Rules, the number of promotees from class 11 in the category of Executive Engineers should not exceed 50%, the fact is that practically all the promotion posts in the category of Executive Engineers are held by erstwhile class II officers for the reason that the category of Assistant Executive Engineers in this branch is being kept practically empty. When the statutory rules have created a particular category and a cadre strength is also fixed therefor and more particularly when a quota is reserved for them in the channel of promotion to the category of Executivie Engineers, it is not open to the Government to nullify the spirit and object behind the Rules by refusing to make appointment to the said category. If these 44 posts are filled up, many of the appellants, if not all, are likely to be selected and appointed. (2) The procedure adopted by the Haryana Public Service Commission is contrary to statutory Rules. Whereas the Rules say that a candidate obtaining 50% marks in the written test is entitled to be called for viva voce, the Commission has arbitrarily prescribed a threshold of 65% which it had no jurisdiction to do. As a result of the said arbitrary stipultion several of the appellants have been denied the opportunity of selection. The Commission must now be directed to make selection afresh for all the three wings/branches in the Public Works Department. With a view to clear the ground, it would be appropriate to deal with the second contention first. It is based upon the proviso to sub rule (2) of Rule 7 of the 1964 Rules. Rule 7 deals with direct appointment. For the sake of convenience, we may set out sub rules (1) and (2) of Rule 7: "DIRECT APPOINTMENT: (1) A Candidate for direct appointment shall not be less than 20 years and more than 25 years on age of or before the first day of August next precedin g the last date of submission of applications to the commission; 362 Provided that: (a) in the case of candidates who are displaced persons and in whose case the age limit for admission to Engineering College had been relaxed, and in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes and other backward classes the upper age limit shall be such as may be fixed by the Government from time to time. (b) in the case of candidates possessing the requisite qualifications who are already in the service of the State Government, the upper age limit shall be 30 years; (2) The selection of candidates, including those belonging to Scheduled Castes, Scheduled Tribes or Backward Classes, shall be made by the Commission, after holding a competitive examination, the syllabus for which shall be such as may be prescribed by the Government from time to time. The Commission shall recommend the required number of candidates after arranging their names in the order of merit and indicating which out of them belong to Scheduled Castes, Scheduled Tribes or Backward Classes: Provided that a candidate shall not be considered qualified for appointment, unless he obtains not less than forty per cent marks in each subject and also not less than fifty per cent marks in the aggregate, and no candidate who does not obtain the qualifying marks shall be called for interview by the commission. Provided further that where a vacancy has been reserved for a person belonging to Scheduled Castes, Scheduled Tribes or Backward Classes, who secures the highest marks in the aggregate and has qualified for an appointment shall be selected irrespective of his position with respect to the other candidates. " 363 A reading of the first proviso to Sub Rule (2) of Rule 7 shows that it prescribes a minimum percentage of marks in the written test hoth for appointment as well as for being called for interview (viva voce). It does not create a right in the candidate, who has obtained the prescribed percentage of marks, to be called for interview. This is how a similar Rule has been understood by a Constitution Bench of this Court in Ashok Kumer Yadav vs State of Haryana, A.I.R. 1987 S.C. 454. Regulation 3 in the Appendix to the Haryana Civil Service (Executive) and other allied services read as follows: "3. No candidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks. in the aggregate of all subjects including at least 33 per cent marks in each of the language papers in Hindi (in Devanagri Script) and Hindi Essay provided that if at any examination a sufficient number of candidates do no obtain 45 per cent marks in the aggregate the Commission may at their discretion lower this percentage to not below 40 per cent for the language papers remaining unchanged. " Construing the said Regulation, the Court held: "it is clear on a plain natural construction of Regulation 3 that what is prescribes is merely a minimum qualification for eligibility to appear at the viva voce test. Every can didate to be eligible for appearing at the viva voce test must obtain at least 45 per cent marks in the aggregate in the written examination. But obtaining of minimum 45 per cent marks does not by itself entitle a candidate to insist that he should be called for the viva voce test all candidates who satisfy the minimum eligibility requirement. It is open to the Harvana Public Service Commission to say that out of the candidates who satisfy the eligibility criterion of minimum 45 per cent marks in the written examination, only a limited number of candidates at the top of the list shall be called for interview. And this has necessarily to be done because otherwise the viva voce test would be reduced to a farce. It is indeed difficult to see how a viva voce test for properly and satisfactorily measuring the personality of a candidate can be carried out, if 364 over 1300 candidates are to be interviewed for recruitment to a service. If a viva voce test is to be carried out in a thorough and scientific manner as it must be in order arrive at a fair and satisfactory evaluation of the personality of a candidate, the interview must take anything between 10 to 30 minutes. " In view of this decision, we do not think it necessary to deal wit the decisions cited by Sri Shanti Bhushan, namely, Umesh Chandra vs Union of India, ; ; Nilima Shangla vs State of Haryana, ; and P.K Ramachandra Iyer & Ors. vs Union of India & Ors. , ; Suffice it to say that neither of them lays down any principle contrary to the one quoted above from Ashok Kumar Yadav. Coming to the first submission of Sri Shanti Bhushan, the defence of the Government is to the following effect: "It is also admitted. that cadre strength of Assistant Executive Engineer was fixed on 22.1.82 and is 49 out of which 5 persons are in position. However, at present, there is no vacant post of Assistant Executive Engineer in the Department. The true facts are that during the year 197980 some major projects viz. Drainage Projects, Jawahar Lal Nehru Project and Linning etc. under the World Bank Schemes were taken into hand and there was immediate requirements of technical staff. For this purpose and to take up the time bound works, 212 Assistant Engineers were recruited on adhoc basis and 178 Sub Divisional Officers were promoted from Junior Engineers/Draftsmen etc. on adhoc basis to meet the immediate requirement during the aforesaid period till their replacement by the joining of regular Assistant Engineers through Haryana Public Service Commission. The Haryana Public Service Commission recommended 176 number of Assistant Engineers in December, 1981 for regular appointment against the posts of those, who were appointed/ promoted as Assistant Engineer/Sub Divisional Officers on adhoc basis. They were given offer of appointment on 29.1.1982.On joining of regular Assistant Engineers, the 365 services of about 45 adhoc Assistant Engineers were terminated by the Government. The adhoc Assistant Engineers whose services were terminated by the Government filed Civil Writ Petition No. 1529/89 Amarjeet Singh and others vs State of Haryana and other, writs involving the same cause of action challenging their termination orders. Upon regular hearing the above Civil Writ Petition, the Punjab and Haryana High Court (Hon 'ble Justice Mr. I.S. Tiwana) in its orders dated 3.9.84 decided the matter in favour of the adhoc Assistant Engineers recruited during the year 1980. Thus the services of adhoc Assistant Engineers could not be terminated and they continued to hold the posts of Assistant Engineers, till date. However, Government have filed Letter Patent Appeal No.186 90 of 1985 and 374 381 of 1985.Amarjeet Singh etc. vs State and the same is pending for decision in the Hon 'ble Punjab and Haryana High Court. Similarly, the Sub Divisional Officers, who are promoted on adhoc basis in the year 1979 80 in excess of their quota could not be reverted by the Government for want of finalisation of Ranking List for the purpose of promotion to the post of Sub Divional Officers in pursuance of the directio n given by the Hon 'ble Punjab and Haryana High Court in Civil Writ Petition No. 5630 5631 of 1981. J.P. Gupta and Shri Krishan vs State, 1524/76 M.L. Verma vs State and 4489/82 Shri R.K Jain vs State. " The learned counsel appearing for the Government of Haryana explains that 176 Assistant Engineers selected by the Commission in December, 1981 for regular appointment are 'in addition to 390 Officers (212 Assistant Engineers recruited on adhoc basis and 178 Sub Divisional Officers promoted from the category of Junior Engineers/Draftsment etc. on adhoc basis). This statement is, however, disputed by learned counsel for the appellants. Be that as it may, the submission of the learned counsel for the Government of Haryana is this: both the Assistant Engineers and Assistant Executive Engineers are posted as Sub Divisional Officers/Sub Divisional Engineers. There is no other posting available for them. In the circumstances explained in the counter affidavit, a large number of Assistant Engineers are in surplus over and above the cadre strength. They have to be posted some 366 where and they can be posted only as Sub Divisional Officers/ Sub. Divisional Engineers. If Assistant Executive Engineers are also appointed as demanded by the appellants, they will be in further surplus inasmuch as they too can be posted only as Sub Divisional Officers/Sub Divisional Engineers and there are no posts available to post them. The Government is finding it difficult to give postings to the already existing Assistant Engineers, who have been recruited/promoted on adhoc basis as stated above and who could not be ousted because of the orders from courts. It is for this reason that the Government did not send requisition for filling up the 44 posts of Assistant Executive Engineers in Irrigation" Branch. The said decision is a bona fide decision actuated by relevant considerations. There are absolutely no mala fides on the part of the Government in not filling up the said posts of Assistant Executive Engineers. It is also brought to our notice that though a requisition was sent to the Commission in the year 1983 for 23 posts of Assistant Executive Engineers in the Irrigation Branch, the Government had withdrawn the said requisition on May 20, 1983 itself i.e., even before any selection could be made. It was for this reason that no one was selected or appointed to the said category in that year. Counsel submitted, supported by the counsel for the Commission, that in these circumstances, the Commission was justified in not selecting anyone against the post of Assistant Executive Engineers in the Irrigation wing, more particularly when the expectation of the Commission that the Government may send a requisition therefor did not materialise even by the date of finalisation of selections. The question that arises in the above circumstances is whether the Government can be compelled to send a requisition to the Commission for the selecting Assistant Executive Engineers in respect of 44 vacant posts? and if it, can be so compelled, would it be appropriate to direct that those posts shall be filled by the candidates who applied for and appeared at the selection held in the year 1985? The first thing to notice is that the Public Service Commission had no authority to include the vacancies in the Irrigation branch in the notification issued by it when the Government had not asked for it. The requisition from the Government was to select Assistant Executive Engineers only for the other two wings viz., Buildings and Roads and Public Health. May be the Commission did so bona fide. Even so, the fact remains that none were selected against the vacancies in the Irrigation branch, evidently because no demand/requisition ever arrived from the Government. Merely because the 367 appellants appeared at such selection they did not get any right to compe either the commission or the Government to select and appoint them. In deed, it is not as if the appellants appeared only for the vacancies in Irrigation Branch. It was a composite notification for all the three wings. The appellant do not say that they confined their applications to Irrigation wing alone Those selected for the other two wings had admittedly scored more marks at the selection. Because, the appellants could not get selected against the vacancies in the other wings, they have turned their attention to Irrigation wing. The relevance of their attack upon the selection procedure adopted by the Commission becomes clearer in this context. Be that as it may, the mere appearance at the selection does not clothe them with the right to selection and/or appointment. This is the principle affirmed by this court in State of Haryana vs Subhash Chandra Marwaha, ; and I.J. Divakar vs Government of Andhra Pradesh A.I.R. 1982 S.C. 1555. At the same time, we are constrained to observe that where the Rules have created a particular category, fixed its cadre strength and have also prescribed a quota for such category in the matter of promotion to the higher category, the Government would not be justified in not making appointments to such category for over a decade unless there are very strong and good reasons therefor. The Government would not be justified in nullifying though not in word, but in spirit the Rules in this manner. We are also not persuaded that the defence put forward by the Government in this case is acceptable. There is no reason why the Government did not think it fit to make some adhoc appointments to the category of Assistant Executive Engineers when it was recruiting such a large number, on adhoc basis, to the category of Assistant Engineers. The situation in which the Government finds itself today is really of its own making. The problem is no doubt real. The courts have to think twice before adding the numbers to the already over loaded service. It is not so much a question of 'punishing ' the errant but one of what to do with the surplus personnel and the consequent unwarranted burden upon the public exchequer. On balancing the contending rights and equities, we are of the opinion that at least part of the cadre strength of Assistant Executive Engineers in the Irrigation branch should be filled up in the near future. The question then arises whether the selection held in 1985 86 at which the appellants had appeard, should be directed to be finalised. We do not think so. The situation is not similar to the one considered by this court in Divakar. That was a case where the commission called for. applica tions pursuant to the requisition from the Government, held the interviews 368 and was about to finalise the select list that the Government withdrew the requisition. In those circumstances, this Court, while holding that the candidates who appeared for the selection had no right to compel the commission or the Government to select and appoint them, yet gave a direction, in the interest of justice, to finalise the selection process and forward the select Kg to the Government. The situation in this case, as already explained hereinbefore is totally different. The only direction that can properly be made herein is to direct the Government to take steps for filling up the vacancies existing in the category of Assistant Executive Engineers in the Irrigation branch as early as possible, Atleast half the vacancies therein should be filled within a period of one year from today. Before concluding, we must refer to certian letters relied upon by Sri Shanti Bhushan to justify the notification issued by the Commission. He relied upon the letters of the Engineer in Chief dated 16.8.1985, 16/ 20.5.1986 and another letter written in between (the date of this letter is not given) addressed to the Government of Haryana outing that while at the moment there was no vacancy of Assistant Executive Engineer, there was a possibility of some vacancies arising on amount of retirement etc. He, there fore, requested the Government to take. steps to select persons therefor, Firstly, it may be noticed that the appointing authority for this category being the Government, only the Government could send the requirsition/demand to the commission and not the Engineer in Chief. The aforesaid letters are merely in the nature of recommendation to the Government. Secondly, all the three letters are subsequent to the notification issued by the commission calling for applications. These letters, therefore, do not justify the commission calling for applications in respect of vacancies in the Irrigation branch. For the above reasons the appeals are allowed partly, A direction shall issue to the, Government of Haryana to take steps for filling up the vacancies, in the category of Assistant Executive Engineers in Irrigation branch of P.W.D. as early &A possible. in accordance with law, Atleast half the vacancies shall be filled up within am year from today. It is further directed that if any of the candidates who had applied in pursuance of the 1985 Notification apply again, and if they are found to have become age barred, relaxation in the matter of age shall be granted to them so as to make them eligible for consideration. No other relief co be granted In these appeals. There shall be no order as to costs. T.N.A. Appeals allowed.

The Public Works Department of Government of Haryana consists of three wings viz., Irrigation, Roads and Buildings and The Engineering Service in the Irrigation Branch comprises both Class I service consisting of Assistant Executive Engineers, Executive Engineers and Superintending Engineers and Class II service including Assistant Engineers. While the Assistant Executive Engineers are recruited by direct recruitment only, the Executive Engineers are recruited by (i) direct recruitment; (ii) by transfer; (iii) by promotion from Class II service. , The cadre strength of Assistant Engineers, fixed under tie Rules is very large 354 as compared to the cadre strength of Assistant Executive Engineers. For the purposes of promotion to Executive Engineers both Assistant Executive Engineers and Assistant Engineers are eligible for which inter se quota is fixed under the Rules. The Haryana Public Service Commission issued a notification in 1985 inviting applications for selection to the posts of Assistant Executive Engineers for all the three wings of the P.W.D. Although the requisition from the Government was to select Assistant Executive Engineers only for two wings viz. Public Health and Buildings and Roads yet the Commission notified the vacancies with respect to Irrigation Branch also stating that posts in the said category are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Government. On the basis of written test and interview selections were made for Public Health and Buildings and Roads wings but no selections were made for the Irrigation wing because even by the date of finalisation of selections, no requisition or demand had come from the Government. The appellants, who were not selected, filed writ petitions in the Punjab and Haryana High Court for a direction to respondents to fill up vacancies of Assistant Executive Engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance to the advertisement and for a further direction to the State of Haryana to send requisition to the Commission to fill up all vacancies which are meant for direct recruits. The High Court dimissed all the petitions. In appeals to this Court it was contended on behalf of the appellants that (1) the Government acted arbitrarily in not sending the requisition, inspite of the fact that vacancies in Irrigation Branch existed for a number of years; (2) when the rules created a particular category and the cadre strength was also fixed therefor and more particularly when a quota was reserved for them in the channel of promotion to the category of Executive Engineers, it was not open to the Government to nullify the spirit and object behind the Rules by refusing to make appointment to the said category , (3) the procedure adopted by the Haryana Public Service Com mission was contrary to Rules because under the Rules a candidate obtaining 50 per cent marks in the written test is entitled to be called for viva voce, but the Commission arbitrarily prescribed a threshold of 65 per 355 cent which resulted in denial of opportunity of selection to the appellants. The stand taken by the Government of Haryana was that the decision not to send requisition for filling up the vacant posts of Assistant Executive Engineers in Irrigation Branch was bona fide and actuated by relevant considerations because a large number of Assistant Engineers, who can be posted only as Sub Divisional Officers/Sub Divisional En gineers, are in surplus over and above the cadre strength and if the Assistant Executive Engineers are also appointed as demanded by the appellants, they will be in further surplus inasmuch as they too can be posted only as Sub Divisional Officers/Sub Divisional Engineers. Allowing the appeals in part, this Court, HELD:1. The Public service commission had no authority to include the vacancies in the Irrigation Branch in the notification issued by it when the Government had not asked for it. May be the Commission did so bona fide. Even so,, the fact remains that none were selected against the vacancies in the Irrigation Branch, evidently because no demand/requisition ever arrived from the Government. Indeed, it is not as if the appellants appeared only for the vacancies in Irrigation Branch. It was a composite notification for all the three wings. The appellants do not say that they confined their applications to Irrigation wing alone. nose selected for the other two wings had admittedly scored more marks at the selection. Therefore, the mere appearance at the selection does not clothe them with the right to selection or appointment. [366G H, 367A C] State of Haryana vs Subhash Chandra Marwaha, [1974] 3 S.C.C. 220 and LJ. Divakar vs Government of Andhra Pradesh, A.I.R. , relied on. Where the Rules have created a particular category, fixed its cadre strength and have also prescribed a quota for such categroy in the matter of promotion to the higher category, the Government would not be justified in not making appointments to such category for over a decade unless there are very strong and good reasons therefor. The Government would not be justified in nullifying though not in word, but in spirit the Rules in this manner. [367C D] 2.1. There is no reason why the Government did not think it fit to 356 make some ad hoc. appointments to the category of Assistant Executive Engineers when it was recruiting such a large number, on ad hoc basis, to the category of Assistant Engineers. At the same time, the Courts have to think twice before adding the numbers to the already over loaded service. It is not so much a question of 'punishing ' the errant but one of what to do with the surplus personnel and the consequent unwarranted burden upon the public exchequer. On balancing the contending rights and equities, the Court is of the opinion that at least part of the cadre strength of Assistant Executive Engineers in the Irrigation Branch should be riled up in the near future. [367E G] 3. The selection held in which the appellants had appeared, cannot be directed to be finalised. The only direction that can properly be made herein is to direct the Government to take steps for filling up the vacancies existing in the category of Assistant Executive Engineers in the Irrigation Branch as early as possible. Atleast half the vacancies therein should be filed within a period of one year from today. [367H, 368A B] I.J. Divakar vs Government of Andhra Pradesh, A.I.R. 1982 S.C. 1555, distinguished. A reading of the first proviso to Sub. Rule (2) of Rule 7 shows that it prescribes a minimum percentage of marks in the written test both for appointment as well as for being called for interview (viva voce). It does not create a right in the candidate, who has obtained the prescribed percentage of marks, to be called for interview. [363A] Ashok Kumar Yadav vs State of Haryana, A.I.R. 1987 S.C. 454, relied On. Umesh Chandra vs Union of India, ; ; Nilima Shangla vs State of Haryana, ; and P.K Ramachandra Iyer & Ors. vs Union of India & Ors. , ; , referred to.

Special leave Petition (Civil) No. 10330 of 1991. From the Judgement and Order dated 3.5.1991 of the Bomaby High ourt in writ Petition No. 186 of 1991. Kapil Sibal, Makrand D. Adkar and Ejaz Maqbool for the Petitioner. R.D. Tulpule, D.M. Nargolkar, Ms. Kiran Bhagalia, Ms. V.D.Khanna and A.M. Khanwilkar for the respondents. Caveator in person. The following Order of the Court was delivered. The petitioner, Bhushan Uttam Khare, appeared for the Third Year M.B.B.S. Examination held by University of Poona in the months of October November, 1990. The results of the said examination were declared on 12.12.1990. As per University of Poona Ordinance 134A, the petitioner applied for revaluation of his answer papers. 167 students including the petitioner had applied for revaluation. When the revaluation results were declared, certain students made representation to the University authorities for their answer papers being revaluate from the same set of examiners. 388 On receipt of the representation, the Executive Council of University appointed a Committee to make an enquiry. On the report of the Committee, the University of Poona decided to cancel the revaluation results and to conduct further revaluation. This decision of the Executive Council cancelling the earlier revaluation and directing a second revaluation was challenged by the petitioner and others in writ petitions filed before the High Court at Bomaby. By the impugned judgement dated May 3, 1991 the High Court dismissed the writ petitions. Aggrieved by the decisions, the petitioners have moved this petition for special leave. The Poona University Act, 1974 defines the powers and duties of the Executive Council. The Executive Council may make Ordinances to provide for the conduct of the examinations. Under Ordinance 134A, the Vice Chancellor shall use his discretionery powers to decide as to whether all the applications received from the candidates, be considered for revaluation or not. If as a result of revaluation of answer books, the marks obtained by the candidate increase over the original marks by 10% or more of the marks carried by the paper then only the result of revaluation will be accepted by the University. Application for vertification of answer books will be entertained within a period of two weeks from the date of declaration of the results. Ordinance 146 reads: "146. In any case where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other course of whatsoever nature, the Executive Council shall have power to amend such result in such manner as shall be in accord with the true position and to make such declaration as the Executive Council shall consider necessary in that behalf. Provided that, but subject to 0.147, no result shall be amended after the expiration of six months from the date of publication of the said result". In the Third Year M.B.B.S. Examination, 402 students appeared for the examination and 167 students for revaluation of the answer books. When the representation of students opting for revaluation was placed before the Executive Council as glaring difference was indicated, a Committee was appointed for scrutiny and to reassess theory papers of the students acquiring more than 20% marks after revaluation, from senior teachers of the Faculty. After scrutiny, it was found out that the marks are closer to the original marks in Medicine, Surgery and Preventive and Social Medicine. Therefore, the Committee recommended that the entire revaluation of the papers should be cancelled. This report of the 389 Committee was placed before the Executive Council in its meeting held on March 27, 1991 and the Council by the resolution cancelled the result of the revaluation and directed fresh revaluation. The second revaluation was done through the examiners outside the State. The results on revaluation intimated to the Medical College thus stood cancelled and the final results were delcared in pursuance to the second revaluation. The action of the Executive Council was attacked on the grounds that it was an arbitrary action; that the choice of the examiners was that of the Vice Chancellor as enjoined under the Ordinance and there was no glaring instance of any malpractice, fraud or other course of whatsoever nature to cancel the revaluation and in the absence of any provision in the statute or the Ordinance for a second revaluation, the decision taken by the Executive Council is unwarranted and, therefore, illegal. In repelling these contentions, the High Court has taken the view that educational institutions set up Enquiry Committee to deal with problem posed by the adoption of unfair means and it is normally within their domestic jurisdiction to decide all questions in the light of the material adduced. Unless there is an absolute and compelling justification, the Writ Court is slow to interfere with the autonomous activity of the Executive Councils. The High Court said that the material on record indicated that this is not a case for exercise of jurisdiction under Article 226 of the Constitution and since the Court has found that there is material to reach the decision as regards cancellation of the impugned result of revaluation, the contentions taken up by the petitioner are untenable. The petitioners have reiterated the submissions that there had been no improper conduct come to light and the absence of any provision for a second revaluation vitiates the whole action. We have been taken through a comparative chart containing the marks awarded in the original examination, the first revaluation and the second revaluation. The attempt of the learned counsel for the petitioners had been to make out that the disparity was not such as to indicate any improper practice and that the Committee constituted consisted of four members of whom two were original examiners and the report submitted by that Committee should not have been made the basis for the decision which affected the prospects and career of a large number of medical students. The learned counsel for the University as also the standing counsel for the State drew our attention to the fact that Executive Council had only cautiously proceeded in the matter and before ordering cancellation a probe was made and the mem 390 bers of the Enquiry Committee were competent persons and that there is no illegality which warrants interference of the Court. We have considered all the materials placed before us in the light of arguments advanced keeping in mind the well accepted principle that in deciding the matters relating to orders passed by authorities of educational institutions, the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice. We are satisfied that there had been sufficient material before the Executive Council to proceed in the manner in which it has done. It is not correct to say that the University had acted on non existing rule for ordering revaluation. Ordinance 146 is comprehensive enough to include revaluation also for further action. The fact that two examiners were also the members of the Committee which recommended for revaluation cannot result in any bias even if they had been directly concerned with the original evaluation. It is true that in the second revaluation also there had been some changes between the original valuation and the revaluation results. However, it is not so glaring or demonstrably unconscionable as seen in the first revaluation. We cannot, therefore, accept the contention of the petitioner that the High Court had erred in not granting the relief sought for. We can only observe that the case of the petitioner, who alone has come before this Court and who had secured higher marks in the first revaluation and is, therefore, aggrieved by the cancellation of the same, would by duly considered in the selection for Post Graduate Course. The special leave petition is dismissed. Y.L. SLP dismissed.

Consequent upon the announcement of his M.B.B.S. Examination result on 12.12.1990, the petitioner alongwith other 166 students, applied for revaluation of answer books under University of Poona Ordinance 134A. When the revaluation results were declared, certain students made representation to the University Authorities for their answer papers being revalued from the same set of examiners. The University on consideration of that representation appointed a Committee for scrutiny and to reasses theory papers of the students acquiring more than 20% marks after revaluation, from senior teachers of the Faculty. After scrutiny, it was found out that the marks are closer to the original marks in Medicine, Surgery and Preventive and Social Medicine. The Committee therefore recommended that the entire revaluation of the papers should be cancelled. The Executive Council by a resolution cancelled the result of the revaluation and directed fresh revaluation and the second revaluation was done through the examiners outside the State and the result declared on the basis thereof. The peritioner and others challenged the aforesaid decision of the Executive Council cancelling the earlier revaluation and directing a second revaluation by means of writ petitions. It was contended before the High Court on behalf of the petitioners that the action of the Executive Council was arbitrary in as much as there was no malpractice, fraud or anything objectionable to the revaluation as the examiners were chosen by the Vice Chancellor as enjoined under the Ordinance. Hence the cancellation of revaluation was not proper. The High Court repelled the two contentions advanced before it and dismissed the writ petitions. Hence this Petition for Special Leave to appeal. Dismissing the Petition for special leave to appeal, this Court, HELD: In deciding the matters relating to orders passed by authorities of educational institutions, the Court should normally be 387 very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice. [390 B] Under Ordinance 134A, the Vice Chancellor shall use his discretionary power to decide as to whether all the applications received from the candidates, considered for revaluation or not. If as a result of revaluation of answer books, the marks obtained by the candidate increase over the original marks by 10% or more then only the result of revaluation will be accepted by the University. [388 C D] Ordinance 146 is comprehensive enough to include revaluation also for further action. The fact that two examiners were also the members of the Committee which recommended for revaluation cannot result in any bias even if they had been directly concerned with the original evaluation. It is true that in the second revaluation also there had been some changes between the original valuation and the revaluation results. However, it is not so glaring or demonstrably unconscionable as seen in the first revaluation. [390 D]

Civil Appeals Nos. 56 & 57 of 1954. Appeal from the judgment and order dated the 25th day v of March 1951 of the Madras High Court in Case Referred Nos. 32 of 1948 and 31 of 1950. K.S. Krishnaswami Iyengar, (K. R. Choudhry, with him) for the appellants. G.N. Joshi and P. G. Gokhale, for, the respondent. May 9. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. The appellant is a firm which was constituted under a deed of partnership dated 10 2 1941, and consists of two partners, Subba Rao and Hariprasada Rao. On 21 3 1942 it was registered under section 26 A of the Indian IncomeTax Act No. XI of 1922, hereinafter referred to as the Act, for the assessment year 1942. Sometime thereafter, one of the partners, Subba Rao, is stated to have left on a long pilgrimage, and the affairs of the partnership were then managed by Hariprasada Rao as his agent under a general power of attorney dated 1 7 1940. Hariprasada Rao then applied under rules 2 and 6 of the rules framed under section 59 of the Act, for renewal of the registration certificate for the year 1942 43, and the application was signed by him for himself and again as the attorney of Subba Rao. Those rules provide that an application for registration of a firm under section '26 A and for renewal of registration certificate "shall be signed personally by all the partners" '. The Income tax Officer rejected the application for renewal on the ground that it was not personally signed by one of the partners, Subba Rao, and that the signature of Hariprasada Rao as his agent was not valid The order was taken in appeal, and was ultimately the subject of a reference under section 66(1) of the Act to the High Court of Madras, which held that the word "personally" in rule 6 required that the partner 579 should himself sign the application, and that the principles of agency under the general law were exclude. (Vide Commissioner of Income tax vs Subba Rao(1)). While these proceedings were pending, Hariprasada Rao filed the two applications, out of which the present appeals arise, for renewal of the registration certificate for the assessment years 1943 44 and 1944 45. Both of them were signed by him for himself and as attorney for Subba Rao. At the hearing of these petitions the appellant, apart from maintaining that rules 2 and 6 did not, on their true construction, exclude signature by an agent on behalf of a partner, raised a further contention that the rules themselves were ultra vires the powers of the rulemaking authority. The Income tax Officer overruled both these contentions, and rejected the applications, and his orders were confirmed on appeal by the Appellate Assistant commissioner and then by the Appellate Tribunal. Thereafter, on the application of the appellant, the Tribunal referred the following questions for the decision of the High Court: "(1) Whether the word 'personally ' in the Income tax Rules, as framed under section 59 of the Income tax Act would exclude a duly authorised agent of a partner from signing an application on behalf of the partner under section 26 A of the Income tax Act? (2)If the answer to the above question is in the affirmative, whether rules 2 and 6 are ultra vires the rule making authority?" The reference was heard by Satyanarayana Rao and Viswanatha Sastry, JJ. Following the decision in Commissioner of Income tax vs Subba Rao(1), they answered the first question in the affirmative. On the second question, however, they differed. Satyanarayana Rao, J. held that the rules were ultra vires, and that the applications were in order, and ought to have been granted. Viswanatha Sastry, J. was of the contrary opinion, and held that the rules were intra vires, and that the applications were properly (1) I.L R. ; 580 rejected as not being in accordance with them. The learned Judges, however, granted a certificate under section 66 A of the Act, and that is how the appeals come before us. The first question whether the word "personally" would exclude signature by an authorised agent on behalf of the partner was answered in the affirmative by the Madras High Court in Commissioner of Incometax vs Subba Rao(1). This was one of the decisions quoted with approval by this Court in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2), where the question was whether a rule framed under the Bengal Agricultural Income tax Act that the declaration in the return should be signed by the individual himself required that he should sign it personally, and it was held that it did so require. Sri K. section Krishnaswami Ayyangar, learned counsel for the appellant, did not urge any grounds for differing from the above conclusion, and we must therefore hold, in agreement with the views expressed in the above decisions, that the signature which is pres cribed by the rules is that of the partner himself, and that they are not complied with by the agent signing on his behalf. Then we come to the second question and that is the substantial question that arises for our determination in this appeal whether rules 2 and 6 are ultra Vires the rule making authority. The argument of the appellant in support of its contention that the rules are ultra Vires may thus be stated: Under the common law of England, a person has the right to do through an agent whatever he can do himself, and that right has also been conferred on him in this country by section 2 of the Powers of Attorney Act VII of 1882, which runs as follows: "The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, (1) I.L.R. I.T.R. 232. (2) ; 581 instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof "This section applies to powers of attorney created by instruments executed either before or after this Act comes into force". Section 26 A of the Act confers on a partner the right to apply for registration of the firm, and that right could be 'exercised both under the common law and under section 2 of the Powers of Attorney Act through an authorised agent. The sovereign legislature might, if it so chooses, abrogate the rule of common law, and repeal section 2 of the Powers of Attorney Act,. and enact that the application to be presented under section 26 A should be signed by the partner himself and not by any other person; but it has not done so either expressly or by necessary implication, and, therefore, the application which was signed by Hariprasada Rao is as good as if it had been signed by Subba Rao. The Rules no doubt require that the signature should be that of the partner and not that of ' his agent. But in prohibiting what would be lawful under the section, the Rules go beyond the ambit of the authority conferred by section 26 A on the rule making authority, which is limited to framing Rules for giving effect to the principles laid down in the statute. They are therefore ultra vires. In the alternative, assuming that the mandate given to the rule Making authority under section 26 A is of sufficient amplitude to authorise the making of the Rules in question, even then, they must be held to be ultra vires, as they have the effect of abrogating the common law and of repealing section 2 of the Powers of Attorney Act, which confer on a person the right to act through an agent, and that being a legislative function cannot be delegated to a rule making authority. and section 26 A, if it is to be construed as conferring such power on an outside authority, must be struck down as constituting an unconstitutional delegation by the legislature of its legislative function. 582 It is the correctness of these contentions, that now falls to be considered. According to the law of England and that is also the law under the Indian Contract Act, 1872 "every person who is sui juris has a right to appoint an agent for any purpose whatever and that be can do so when he is exercising a statutory right no less than when he is exercising any other right". Per Stirling, J. in Jackson and Co. vs Napper: In re Schmidts ' Trade Mark(1). This rule is subject to certain well known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations. But apart from such exceptions, the law is well settled that whatever a person can do himself, he can do through an agent. It has accordingly been held that "at common law. , when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it". Per Blackburn, J. in The Queen V. Justices Of Kent("). The appellant is therefore right in his contention that unless the statute itself enacts otherwise, an application which a partner has to sign would be in order and. valid, if it is signed by his authorised agent. The question then is whether there is anything in the Act, which requires that an application under section 26 A should be signed by the party personally. Section 26 A is as follows: "(I) Application may be made to the Incometax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income tax or super tax. (2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed; and it shall (1) , 172. (2) , 307. 583 be dealt with by the Income tax Officer in such manner as may be prescribed". The section does not, it should be noted, provide that the application for registration should be signed by the partner personally, and it is this that forms the foundation of the contention of the appellant that the right which a person has under the general law and under section 2 of the Powers of Attorney Act to act through an agent has not been taken away or abridged by the section. He relies in support of his contention on the following rules of construction: (1) Statutes which encroach on the rights of a subject should be interpreted if possible so as to respect such rights. [Vide Maxwell on Interpretation of Statutes, 10th Edition, page 285; Craies on Statute Law,, 5th Edition, pages Ill to 114). The law is thus stated by Lord Justice Bowen in In re Cuno: Mansfield vs Mansfield(1): "In the construction of statutes, you must not construe the words so as to take away rights which already existed before the statute was passed, unless you have plain words which indicate that such was the intention of the legislature". (2)In the absence of clear and unambiguous language, an intention to alter the existing law should not be imputed to the legislature. (Vide Craies on Statute Law, 5th Edition, pages 114 and 115). (3)The law does not favour repeal of a statute by implication, and therefore a later statute should not be construed as repealing an earlier one without express words or by necessary implication. (Vide Maxwell on Interpretation of Statutes, 10th Edition, page 170;. Craies on Statute Law, 5th Edition, page. "If it is possible", observed Farwell, J., "it is my duty so to read the section as not to effect an implied repeal of the earlier Act": Be Chance(2). "Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied". Per A. L. Smith, J. in Kutner vs Phillips(3). (1) , 17. (2) , 270. (8) , 272. 584 In the light of these principles, it is contended that the true scope of section 26 A is that it confers a right on a partner to register the firm, and leaves the modus of the exercise thereof to be regulated by the existing law, and that, therefore, far from showing an intention either to alter the general law as to the right of a person to act through his agent or to repeal section 2 of the Powers of Attorney Act, the section depends on their continued operation for its implementation. Now, the rules of construction on which the appellant relies are well established. But then, it should not be overlooked that they are only aids to ascertain the true intention of the legislature as expressed in the statute., and the question ultimately is, what in the context do the words of the enactment mean? The following passage from Crawford on "The Construction of Statutes", 1940 Edition, page 454 cited by the appellant may be usefully referred to in this connection: "Why should a statute be subjected to a strict or a liberal construction, as the case may be? The only answer that can possibly be correct is because the type of construction utilized gives effect to the legislative intent. Sometimes a liberal construction must be used in order to make the legislative intent effective. , and sometimes such a construction will defeat the intent of the legislature. If this is the proper conception concerning the rule of construction to be adhered to, then a strict or a liberal construction is simply a means by which the scope of a sta tute is extended or restricted in order to convey the legislative meaning. If this is the proper position to be accorded strict and liberal constructions, it would make no difference whether the statute involved was penal, criminal, remedial or in derogation of common right, as a distinction based upon this classification would then mean nothing". That being the correct position, the question is whether on its true interpretation, the statute intended that an application under section 26 A should be ' signed by the partner personally, or whether it could 585 be signed by his agent on his behalf To decide that, we must have regard not only to the language of section 26 A but also to the character of the legislation, the scheme of the Act and the nature of the right conferred by the section. The Act is, as stated in the preamble, one to consolidate and amend the law relating to income tax. The rule of construction to be applied to such a statute is thus stated by Lord Herschell in Bank of England v: Vagliano(1): "I think the proper course is in the first instance to examine the language of the statute, and to ask what is its , natural meaning, uninfluenced by any considerations derived from the previous state of the law and not to start with inquiring how the law previously stood, ' and then, assuming that it was probably "intended to leave it unaltered. . . . . " We must therefore construe the provisions of the Indian Income tax Act as forming a code complete in itself and exhaustive of the matters dealt with therein, and ascerta in what their true scope is. Turning then to the provisions of the Act, considerable light is thrown on their true import by the decision of this Court in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2). There, the question was as to the meaning of Rule I 1 framed under the Bengal Agricultural Income tax Act, 1944 read with Form No. 5, which required that the declaration in the return should be signed "in the case of an individual, by the individual himself". It was held by this Court on a review of the provisions of the statute that the intention of the legislature as expressed therein was to exclude the common law rule, qui facit per alium facit per se, and the declaration to be valid must be signed by the assessee personally. It is argued for the appellant that Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2) was a decision only on the interpretation of Rule No. 11 and not on its validity, and that the question whether the rule was ultra vires or not was not in issue. That is so, but the materiality of the (1) , 141. (2) ; , 76 586 decision to the present controversy lies in this that the interpretation which was put on Rule 11 as requiring personal signature was based on the conclusion which this Court reached on a consideration of the relevant provisions of the Bengal Agricultural Income tax Act that the intention of the legislature was to exclude the rule of the common law on the subject. Now, the provisions of the Bengal Act which were construed in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(1) as indicative of the above intention, are identical in terms with the corresponding provisions in the Indian Income tax Act, and are, in fact, based on them and it would therefore be logical to construe the latter as expressing an intention to discard the rule of common law on the subject. The relevant provisions of the Bengal Agricultural Income tax Act may now be noticed. Section 25(1) of the Bengal Act provides that if. the Income tax Officer is not satisfied that the return made is correct and complete, he may require the assessee by notice either to attend at the Income tax office or to produce or cause to be produced any evidence on which he might rely. This corresponds to section 23(2) of the 'Indian Income tax Act. The point to be noted with reference to this section is that it contains an express provision for production of evidence by the assessee through his agent, a provision which would have been wholly unnecessary if the common law was intended to apply. Sections 35 and 36 of the Bengal Act contain provisions as to who can represent the assessee and in what proceedings, and they follow section 61 of the Indian Income tax Act and form a code complete in themselves. Then again, both the Bengal Act and the Indian Income tax Act provide that certain provisions of the Civil Procedure Code are applicable to the proceedings under the Act. The provisions of Order 3 of the Civil Procedure Code enacting that parties may appear and act through recognised agents are not among them. To cut the discussion short, the effect of the provisions of the (1) ; 587 Bengal Act is thus summarized in Commissioner of Agricultural Income tax vs Keshab Chandra Manda`(1): "The omission of a definition of the word 'sign ' as including a signature by an agent, the permission under section 25 for production of evidence by an agent and under sections 35 and 58 for attendance by an agent and the omission of any provision in the Act applying the provisions of the Code of Civil Procedure relating to the signing and verification of pleadings to the signing and verification of the return while expressly adopting the provisions of that Code relating to the attendance and examination of witnesses, production of documents and issuing of commission for examination and for service of notices under sections 41 and 60 respectively, cannot be regarded as wholly without significance". This reasoning applies with equal force to the provisions of the Indian Income tax Act, and goes far to support the contention of the respondent that the common law is not intended to apply to proceedings under the Act. Another factor material for the determination of this question is the nature of the right conferred by section 26 A. Under the common law of England, a firm is not a juristic person, the firm name being only a compendious expression to designate the various partners constituting it. But, as pointed out by this Court in Dulichand Laxminarayan vs Commissioner of Income tax, Nagpur(2), inroads have been made by statute s into this conception, and firms have been regarded as distinct entities for the purpose of those statutes. One of those statutes is the Indian IncomeTax Act, which treats the firm as a unit for purposes of taxation. Thus, under section 3 of the Act the charge is imposed on the total income of a firm, the partners as such being out of the picture, and accordingly under section 23 of the Act, the assessment will be on the firm on its total profits. Section 23(5) enacts an exception to this in the case of firms registered under the Act, and provides that, "(a). . the sum payable by the firm itseIf shall (1) ; (2) A.I.R. 1956 S.C. 354. 588 not be determined but the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined". Thus, if a firm is registered, it ceases to be a unit for purposes of taxation and the profits earned by it are taken, in accordance with the general law of partnership, to have been earned by the individual partners according to their shares, and they are taxed on their individual income including their share of profits. The advantages of this provision are obvious. The rate of tax chargeable will not be on the higher scale provided for incomes on the higher levels but on the lower one at which the income of the individual partner is chargeable. Thus, registration confers on the partners a benefit to which they would not have been entitled but for section 26 A, and such a right being a creature of the statute, can 'be claimed only in accordance with the statute which confers it, and a person who seeks relief under section 26 A must bring himself strictly within its terms before he can claim the benefit of it. In other words, the right is regulated solely by the terms of the statute, and it would be repugnant to the character of such a right to add to those terms by reference to other laws. The statute must be construed as exhaustive in regard to the conditions under which it can be claimed. Thus, considering the question with reference to the character of the legislation, the scheme of the statute and the nature of the right conferred by section 26 A, the conclusion is irresistible that rules of common law were not intended to be saved, and that the right to apply for registration. under that section is to be determined exclusively by reference to the prescriptions laid down therein. If that is the true construction, in authorising the rule making authority to frame rules as to who can apply for registration under section 26 A, and when and how, the statute has. merely directed that authority to fill in details in the field of legislation occupied by it, and it is not denied that Rules a and 6 are within the mandate conferred 580 by the section. In this view, section 59 (5) of the Act which enacts that "Rules made under this section shall be published in the official Gazette, and shall thereupon have effect as if enacted in this Act" directly applies, and the vires of the Rules is beyond question. Vide the observations of Lord Herschell in Institute of Patent Agents vs Lockwood(1). Then, there is the contention of the appellant that the Rules in question are repugnant to section 2 of the Powers of Attorney Act VII of 1882, and are therefore ultra wires. In addition to the reasons given above in support of the conclusion that the rule of the common law was not intended to operate in the field occupied by section 26 A, there is a further and a more compelling reason why this contention should not be accepted. It is that there is, in fact, no conflict between the two statutory provisions. To un derstand the scope of section 2 of the Powers of Attorney. Act, it is necessary to refer to the history of this legislation. Under the common law of England, an agent having authority to execute an instrument must sign in the name of the principal if he is to be bound. If the agent signs the deed in his name albeit as agent, he is the person who is regarded as party to the document and not the principal. , It is the agent alone that can enforce the deed, and it is be that will be liable on it. Vide In re International Contract Company(2); Schack vs Antony(3), Halsbury 's Laws of England, 3rd Edition, Volume 1, page 217, and Bowstead on Agency, 10th Edition, page 93. To remove the hardships resulting from this state of the law, the Conveyancing and Law of Property Act, 1881 (44 and 45, Vict, Chapter 41) enacted section 46, which is as follows: "(1) The donee of a power,of attorney may, if he thinks fit execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be (1) , 351. (2) (3) I M. & section 573; ; 590 as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof (2) This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act". The Indian Legislature immediately followed suit, and enacted the Powers of Attorney Act VII of 1882 incorporating in section 2 therein word for word, section 46 of the English Act. The object of this section is to effectuate instruments executed by an agent but not in accordance with the rule of the common law and the enactment is more procedural than substantive. It does not confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name. But where the question is as to the existence or the validity of authority, the section has no operation. Thus., the fields occupied by the two enactments are wholly distinct. Section 26 A says that a partner cannot delegate the exercise of his rights under that section to an agent. Section 2 of the Powers of Attorney Act says that if there can be and, in fact there is, delegation, it can be exercised in the manner provided therein. There is accordingly no conflict between the two sections, and no question of repeal arises. To sum up, the Indian Income tax Act is a self contained code exhaustive of the matters dealt with therein, and its provisions show an intention to depart from the common rule, qui facit per alium facit per se. Its intention again is that a firm should be given benefit of section 23(5) (a), only if it is registered under section 26 A in accordance with the conditions laid down in that section and the rules framed thereunder. And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is invalid. In the view which we have taken, the further queson raised by the appellant that the power to repeal 591 a law being a legislative function, can be exercised only by the legislature duly constituted and not by any outside authority, and that the delegation of such a power to an outside authority is unconstitutional. , does not arise for decision. In the result., we agree with Viswanatha Sastry, J. that rules 2 and 6 are intravires the powers of the rule making authority, and dismiss the appeals with costs.

Rules 2 and 6 of the Rules framed under section 59 of the Indian Income Tax Act provide that an application for registration of a firm under section 26 A of the Act and for renewal of registration certificate "shall be signed personally by all the parties". Held that the word 'personally ' in the Income Tax Rules, as framed under section 59 of the Income Tax Act would exclude a duly authorised agent of a partner of a firm signing an application on behalf of the partner under section 26 A of the Income Tax Act. (2) That Rules 2 and 6 are not ultra vires the rule making authority. To decide the question whether on its true interpretation the Indian Income Tax Act intended that an application under section 26 A should be signed by the partner personally, or whether it could be signed by his agent on his behalf the Court must have regard not only to the language of section 26 A but also Lo the character of the legislation, the scheme of the Act and the nature of the right conferred by the section. The Indian Income Tax Act is a self contained code exhaustive of the matters dealt with therein, and its provisions show an intention to depart from the common rule, qui facit per alium tacit per se. Its intention again is that a firm should be given benefit of section 23(5)(a), only if it is registered. under section 26 A in accordance with the conditions laid down in that section and the rules framed thereunder. And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is invalid. Commissioner of Agricultural Income tax vs Keshab Chandra Mandal, ([1950] S.C.R. 435), relied upon. commissioner of Income tax vs Subba Rao, ([1947] I.L.R. Mad. 167) approved. Other case law referred to. 75 578

minal Appeal No. 141 of 1962. Appeal from the judgment and order dated January 30, 1962, of the Bombay High Court in Criminal Revision Application No. 1142 of 1960. S.V. Gupte, Additional Solicitor General, J. B. Dada chanji, O. C. Mathur and Ravinder Narain, for the appellant. 702 section K. Kapur and R. H. Dhebar., for respondent No. 1. section T. Desai, J. L. Jain and V. J. Merchant, for respondent No. 2. February 7, 1964. The Judgment of Gajendragadkar C.J., Wanchoo and Rajagopala Ayyangar JJ. was delivered by Gajendragadkar C.J. The dissenting opinion of Sarkar and Das Gupta JJ. was delivered by Das Gupta J. GAJENDRAGADKAR C.J. The short question of law which arises for our decision in the present appeal is whether the proceeding before an Income tax Officer under section 37 of the Indian Income tax Act, 1922 (No. XI of 1922) (hereinafter called the Act) can be said to be a proceeding in any court within the meaning of section 195(1)(b) of the Code of Criminal Procedure. This question arises in this way. The appellant Lalji Haridas and respondent No. 2 Mulii Maniial Kamdar are businessmen and they carry oil their business in Jamnagar and Bombay respectively. They have known each other for several years past in the course of their ordinary business activities. In the income tax assessment proceedings of the appellant for the assessment years 1949 50 and 1950 51, respondent No. 2 gave evidence on oath before the Income tax Officer, Ward A, Jamnagar on the 4th December, 1958. In his evidence he denied that he had a son named Nihal Chand and that he had done any business in the name of M/s. Nihal Chand & Co. at Jamnagar. According to the appellant, the said statements were false to the knowledge of respondent No. 2 and were made by him to mislead the Income tax Officer and to avoid the incidence of income tax on himself. As a result of the said false statements, the appellant was heavily taxed. On the 24th November, 1959, the appellant filed a criminal complaint against respondent No. 2 under section 193 of the Indian Penal Code (No. 452/S of 1959) in the Court of the Presidency Magistrate, 19th Court, Esplanades, Bombay. At the hearing of the said complaint, respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint, because the 703 proceedings in which he was alleged to have made a false statement on oath were proceedings before a Court within the meaning of section 195 (1) (b) Cr. P.C., and since no complaint in writing had been made by the Court of the Income tax Officer before which the said proceedings were conducted, the provisions of section 1 95 (1) (b) created a bar against the competence of the appellant 's complaint. The learned Presidency Magistrate held that the Income tax Officer was not a Court within the meaning of section 195(1) (b), Cr.P.C., and so, he rejected the preliminary objection raised by respondent No. 2. Against the said decision of the Presidency Magistrate, respondent No. 2 preferred a Criminal Revision Application (No. 1142 of 1960) before the Bombay High Court. The State of Maharashtra was impleaded as respondent No. 1 to the said Revision Application. A Division Bench of the said High Court reversed the conclusion of the Presidency Magistrate and held that the Income tax Officer was a Court within the meaning of section 195(1) (b), Cr.P.C., and so, it upheld the preliminary objection raised by respondent No. 2. In the result, the complaint filed by the appellant was ordered to be dismissed. The appellant then applied for and obtained a certificate from the Bombay High Court under article 134(1) (c) of the Constitution and it is with the said certificate that he has brought the present appeal before us. That is how the narrow question which arises for our decision in the present appeal is whether the proceedings before an Income tax Officer are proceedings in any Court under section 195(1)(b), Cr.P.C. The question thus raised is undoubtedly a short one, but its decision is not easy, because the arguments urged in support of the two respective constructions are fairly balanced and the task of preferring one construction to the other presents some difficulty. The proceedings before the Income tax Officer during which, according to the appellant, respondent No. 2 made a false statement on oath, were held by the Income tax Officer under section 37 of the Act. Section 37(1) deals with the powers of Income tax authorities and provides, inter alia, that the Income tax Officer shall, for the purposes of the Act have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (No. V of 1908), when trying a suit in 704 respect of the matters specified by clauses (a) to (d). Section 37(2) confers upon the Income tax Officer certain additional powers which can be exercised subject to any rules made in that behalf, provided the said Officer is specially authorised by the Commissioner in that behalf, and in exercising these powers, the provisions of the Code of Criminal Procedure 1898 relating to searches apply. Section 37(3) deals with the question of impounding and retaining any books of account or other documents. That takes us to section 37(4) which is relevant for our purpose; this section provides that any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code. It is thus clear that while the Income tax Officer exercises his powers under section 37(1), (2) and (3) the proceedings held by him arc judicial proceedings for the purposes of the three sections of the Indian Penal Code mentioned in sub section (4). Therefore, the question as to whether the false statement alleged to have been made by respondent No. 2 was made by him at any stage of a judicial proceeding within the meaning of section 193 I.P.C., must be answered in the affirmative. That is the plain effect of section 37(4) of the Act. Section 193 of the Indian Penal Code with which we are directly concerned in the present appeal provides for punishment for intentionally giving false evidence. It consists of two parts; the first part deals, inter alia, with false evidence intentionally given in any stage of a judicial proceeding, and prescribes that the person found guilty of having given such false evidence in a judicial proceeding shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable lo fine; the second part deals with cases where false evidence has been intentionally given in any other case, and it prescribes the maximum sentence of three years as well as fine. In other words, if the false evidence has been intentionally given in any judicial proceeding, the sentence awardable is higher than that where false evidence is intentionally given in proceedings which are not judicial. There are three explanations to section 193. Expln.I provides that a trial before a Court martial is a judicial proceeding; expln.2 lays down that an investi 705 gation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice; this explanation takes in, for instance, committal proceedings. Under expln. 3, an investigation directed by a Court ,of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. This explanation covers enquiries before officers deputed by Courts of Justice to ascertain, for instance, on the spot the boundaries of land. It would thus be seen that having provided for a higher sentence in regard to the offence of giving false evidence in any stage of a judicial proceeding, the three explanations of section 193 include within the expression "judicial proceeding" certain proceedings which on a strict construction of the said expression may not have been included under it. For the purpose of the present appeal, however, the only point to notice at this stage is that section 37(4) of the Act makes a proceeding before an Income tax Officer, held under the said section, a judicial proceeding for the purposes of section 193, I.P.C. and that means that if an offence of giving false evidence is proved to have been committed by a person in a proceeding before the Income tax Officer, he would be liable for the higher sentence awardable under the first part of section 193. That takes us to section 195 of the Code of Criminal Procedure. It is well known that section 195 provides for an ex ception to the ordinary rule that any person can make a complaint in respect of the commission of an offence triable under the Cr. P. C. Section 4(h) of this Code defines a "complaint" as meaning the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include the report of a police officer. This definition shows that any person can make a complaint in respect of the commission of an offence. Section 190 requires that the Magistrate to whom a complaint has been made should take cognizance of the said complaint, subject to the provisions of the said section. Thus, the general rule is that any person can make a complaint, and section 195 provides for an exception. Section 195(1) 134 159 S.C. 45 706 (b)with which we are concerned, provides that no Court shall take cognizance of any offence punishable under the sections therein mentioned, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except the complaint in writing of such Court, or of some other Court to which such Court is subordinate, amongst the sections mentioned are sections 193 and 228 I.P.C. The effect of these provisions is that if an offence is alleged to have been committed either under section 193 or section 228 I.P.C., and it appears that the said offence was committed in relation to any proceeding in any Court, it is only if the said Court, or the Court to which it is subordinate, makes a complaint in that behalf that cognizance will be taken of the said complaint. A person cannot make a complaint in respect of the alleged commission of any of the offences specified in section 195(1)(b); that is its plain effect. Section 195(2) which was added in 1923 when the earlier section 195 was substantially amended, provides that in clauses (b) and (c) of sub section (1) the term "Court" in cludes a Civil, Revenue or Criminal Court, but it does not include a Registrar or Sub Registrar under the Indian Regis tration Act, 1877. It is unnecessary to deal with the effect of this provision, because, as will presently appear we do not propose to base our decision on the ground that the Income tax Officer is a Revenue Court under this sub section. The only point of interest to which we may incidentally refer is that this sub section gives an inclusive, though not an exhaustive, definition and takes within its purview not only Civil and Criminal Courts, but also Revenue Courts, while excluding a Registrar or Sub Registrar under the Indian Registration Act. In dealing with the question which has been raised in the present appeal what we are required to determine is whether a proceeding before an Income tax Officer which by virtue of the operation of s.37(4) of the Act, must be held to be a judicial proceeding under section 193, I.P.C. is a proceeding in any Court under section 195. P. C. Section 193 makes a dis tinction between offences committed in any judicial proceed ing and those committed in proceedings other than judicial proceedings, whereas section 195(1)(b), Cr. P. C. does not refer to judicial proceedings as such, but mentions proceedings in 707 any Court. That is why the controversy between the parties in the present appeal lies within a very narrow compass. Can it be said that the proceeding which is a judicial proceeding under section 193, I.P.C., must be held to be a proceeding in any Court under section 195(1)(b), Cr. P. C.? It is on this aspect of the dispute that the arguments on both sides are fairly balanced. In dealing with this question, it is unnecessary to consider what would have been the position of the Income tax Officer acting under section 37(1), (2) and (3), and what would have been the character of the proceedings taken before him if sub section (4) had not been enacted. In Jagannath Prasad vs The State of Uttar Pradesh(1), it has been held by this Court that the Sales tax Officer functioning under the U.P. Sales Tax Act, 1948 (No. 15 of 1948) was not a Court within the meaning of section 195, Cr.P.C., and so, it was not necessary for him to make a complaint for the prosecution of any person against whom it was alleged that he had committed an offence,under section 471 I.P.C. This decision would tend to indicate that in the absence of section 37(4) it would have become necessary to hold that the Income tax Officer acting under section 37(1), (2) and (3), would not be a Court under section 195, Cr. P.C., and in that sense the provisions of section 195 could not have been attracted. This position is not disputed by Mr. Desai who appears for respondent No. 2. He, however, contends that the provisions of section 37(4) which have been inserted in the Act in 1956 make all the difference, and according to him, this sub section was added in order to make section 195 (1) (b), Cr. P. C., applicable to the proceedings before the Income tax Officer. On the other hand, the Additional Solicitor General has strenuously argued that the purpose which the legislature had in mind in inserting sub section (4) in section 37 was merely to make the proceedings before the Income tax Officer judicial proceedings within the meaning of section 193, I.P.C., and not to make section 195 (1) (b), Cr. P. C. applicable to them. If the intention of the legislature had been to take the proceedings before the Income tax Officer within the mischief of the said section of the Cr. P.C., the legislature would have expressly said so in terms. The (1) [1953]2 S.C.R. 850 708 omission to refer to the relevant provision of the Cr.P.C. in section 37(4) is not accidental, but deliberate, and so, though the proceeding before the Income tax Officer may be and has to be regarded as a judicial proceeding under section 193, I.P.C., it cannot be said to be a proceeding before a Court, because the Income tax Officer is not a Court. In support of his argument, the Additional Solicitor General has referred us to several statutes where the legislative intention to extend the provisions of section 195, Cr. P.C., to specific proceedings has been carried out by making an express provision in that behalf. Section 23 of the Work men 's Compensation Act, 1923 (No. 8 of 1923) provides that the Commissioner shall have all the powers of a Civil Court for the purposes therein indicated, and by an amendment made in 1929, it further lays down that the Commissioner shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter 35 of the Code of Criminal Procedure. The argument is that where the legislature wanted to extend the provisions of section 195, Cr.P.C. to the proceedings before the Commissioner held under the Workmen 's Compensation Act, it thought it necessary to make a specific and express provision in that behalf. A similar provision is contained in section 18 of the (No. 4 of 1936). In the (No. 14 of 1947), the position is similar to that in the case of the Workmen 's Compensation Act; section 11(4) confers on the authorities therein specified powers as are vested in a Civil Court in respect of the matter mentioned therein. In 1950, sub section (8) was added to section II by which it was provided that every Labour Court, Tribunal or National Tribunal shall be deemed to be Civil Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure. This scheme also shows, says the Additional Solicitor General, that where the legislature wants to make any Tribunal or authority a Court, it uses express and appropriate language in that behalf. Section 45 of the (No. 31 of 1950) likewise confers powers of a Civil Court on the Custodian and expressly adds that the proceedings before him shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, and the Custodian shall be deemed 709 to be a Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure. The same provision is made by section 17 of the (Act 64 of 1951), as well as by section 26 of the (No. 44 of 1954). On the other hand, section 51 of the ministrator General 's Act, 1913 (No. 3 of 1913) provides that whoever, during any examination authorised by this Act, makes a false statement on oath knowingly, he shall be deemed to have intentionally given false evidence in a stage of a judicial proceeding The argument is that in this case, the legislature wanted to equate the proceedings under this Act with judicial proceed ings under section 193, I.P.C., and did not intend to make sec tion 195, Cr. P.C., applicable to them, because it does not make the authority under this Act a Court, or does not, in terms, extend the provisions of the said section to the pro ceedings held before such an authority. The same comment has been made on the provisions of section 171A(4) of the (No. 8 of 1878). Thus presented, the argument is no doubt attractive and cannot be rejected as without any substance. The expression "judicial proceeding" is not defined in the Indian Penal Code, but we have the definition of the said expression under section, 4(m) of the Cr.Procedure Code. Section 4(m) provides that "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. The expression "Court" is not defined either by the Cr.P.C. or the I.P.C. though 'Court of Justice ' is defined by section 20 of the latter Code as denoting a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. Section 3 of the Evidence Act defines a "Court" as including all Judges and Magistrates and all persons except the Arbitrators legally authorised to take evidence. Prima facie, there is some force in the conten tion that it would not be reasonable to predicate about every ,judicial proceeding that it is a proceeding before a Court, and so, it is open to the appellant to urge that though the proceeding before an Income tax Officer may be a judicial 710 proceeding under section 193, I.P.C., it would not follow that the said judicial proceeding is a proceeding in a Court as required by section 195(i)(b), Cr. It is somewhat remarkable that though section 193, I.P.C., refers to a judicial proceeding, section 195, Cr.P.C. refers to a proceeding in any Court; it does not say a judicial proceeding in any Court. Mr. Desai contends that reading section 193 I.P.C. and section 195(1)(b) Cr. P.C., together. it would not be unreasonable to hold that proceedings which are judicial under the former, should be taken to be proceedings in any Court under the latter. The whole basis of providing for a higher sentence in regard to offences committed at any stage of a judicial proceeding appears to be that the legislature took the view that the said offences were more serious in character, and so, it distinguished the said offences from similar offences committed at any stage of other proceedings. The argument is that while providing for a higher sentence in respect of this more serious class of offences committed at any stage of judicial proceedings, the legislature intended that there should be a safeguard in respect of complaint as regards the said offences and that safeguard is provided by section 195(1)(b), Cr. In other words, an offence which is treated as more serious by the first paragraph of section 193, I.P.C. because it is an offence committed during the course of a judicial proceeding should be held to be an offence committed in any proceeding in any Court for the purpose of section 195(1)(b) Cr. On this argument, it is necessary to consider whether the Income tax Officer is a Court or not, for, in substance, the contention is that as soon as section 37(4) of the Act was enacted, the proceedings before an Income tax Officer became judicial proceedings for the purpose of section 193, I.P.C. and since they are classed under the first paragraph of the said section, they attract the protection of section 195(1)(b), Cr. In our opinion, there is considerable force in this argument, and, on the whole. we are inclined to prefer the construction suggested by Mr. Desai to that pressed before us by the learned Additional Solicitor General. It is true, the Additional Solicitor General has mainly relied upon the relevant provisions of several statutes in support of his construction and in so far as it appears that 711 certain provisions in some of the said statutes in terms extend the application of section 195, Cr.P.C. to the proceedings to which they relate, the argument does receive support, but we hesitate to hold that the omission to refer to section 195(1) (b), Cr. P.C. in section 37(4) of the Act necessarily means that the intention of the legislature in enacting section 37(4) was merely and solely to provide for a higher sentence in regard to the offence under section 193, I.P.C. if it was committed in proceedings before the Income tax Officer. It is plain that if the argument of the Additional Solicitor General is accepted, the result would be that a complaint like the present can be made by any person and if the offence alleged is proved, the accused would be liable to receive hi her penalty awardable under the first paragraph of section 193, I.P.C. without the safeguard correspondingly provided by section 195(1)(b), Cr. Could it have been the intention of the legislature in making the offence committed during the course of a proceeding before an Income tax Officer more serious without affording a corresponding safeguard in respect of the complaints which can be made in that behalf? We are inclined to hold that the answer to this question must be in the negative. That is why after careful consideration. we have come to the conclusion that the view taken by the Bombay High Court should be upheld though for different reasons. Section 37(4) ,of the Act makes the proceedings before the Income tax Officer judicial proceedings under section 193 I.P.C. and these judicial proceedings must be treated as proceedings in any Court for the purpose of section 195(1)(b), Cr.P.C. That. we think, would really carry out the intention of the legislature in enacting section 37(4) of the Act. In this connection there is another consideration which has weighed in our minds. We have already noticed that section 37(4) makes the proceedings before the Income tax Officer judicial proceedings within the meaning of section 228 I.P.C. When we turn to the latter section, we notice that the said section deals with the offence of intentionally causing insult or interruption to public servant sitting in judicial proceed ing. It is obvious that the offence with which section 228 deals is an offence committed against a public servant sitting in a judicial proceeding. This section is one of the sections mentioned in section 195(1)(b), Cr.P.C., and so any complaint in 712 respect of the offence alleged to have been committed under section 228, I.P.C. has to be made by the Court in question. There can be little doubt that if a person offers an insult to a public servant sitting in a judicial proceeding, or causes. interruption to him while he is so sitting at any stage of the judicial proceeding, the complaint has to proceed from the public servant himself; that is the effect of section 195(1)(b) Cr. Before section 37(4) of the Act was enacted, an insult given to an Income tax Officer or interruption caused to his proceedings whilst he was conducting his proceedings, would not have amounted to an offence under section 228, I.P.C. Section 37(4) makes a proceeding before the Income tax Officer a proceeding under section 228 I.P.C. and thus, an interruption in his proceedings, or an insult given to him, has now become punishable under the said section. Could it have been intended by the legislature in enacting section 37(4) that whereas an insult offered to a public servant acting judicially, or interruption caused in his proceedings would normally be cognizable only on the complaint of the public servant him self, the same offence, if committed in respect of the proceedings before an Income tax Officer, should be cognizable at the complaint of a private party? The anomaly which would result if the construction suggested by the Additional Solicitor General is accepted, is, in our opinion, so glaring that the alternative contention urged by Mr. Desai and upheld by the Bombay High Court which avoids the said anomaly appears to be more reasonable and more consistent with the true intention of the legislature. That is why we are not prepared to accept the appellant 's argument that the Bombay High Court was in error in dismissing his complaint on the ground that the condition precedent prescribed by section 195(1) (b) Cr.P.C. had not been complied with as no complaint had been filed by the Income tax Officer. It appears that In re: Punam Chand Maneklal(1) the Full Bench of the Bombay High Court had taken the view that an Income tax Collector is a Revenue Court within the meaning of that term as used in clauses (b) and (c) of section 195, Cr. P C., 1898. Scott, C. J. who spoke for the Full Bench, observed that it could not be contended that the Income tax Collector was a Civil or Criminal Court, and so, he addressed himself (1) I.L.R. 713 to the narrow question as to whether he was a Revenue Court. Dealing with the question on that footing, he examined the functions of the Income tax Collector under Act 11 of 1886, and held that he was a Revenue Court. He rejected the contention that he could be treated as a Registrar or Sub Registrar under the Registration Act, and so, he found no difficulty in coming to the conclusion that he was a Revenue Court. The Bombay High Court in the present case has substantially based itself on this decision in reversing the conclusion of the Presidency Magistrate and directing that the complaint filed by the appellant should be dismissed. It is unnecessary to consider whether the view taken by the Full Bench in re: Punam Chand Maneklal(1) is right, because the relevant provisions of the Income tax Act have been subsequently modified in 1922 and different considerations have now assumed importance. It is no longer possible to hold that the Income tax Officer is a Revenue Court, and, indeed, that has not been the contention raised before us by Mr. Desai. In the result, the appeal fails and is dismissed. DAS GUPTA, J. Is an Income tax Officer under the Indian Income tax Act, 1922, a court within the meaning of cl.(b) in sub section (1) of section 195 of the Code of Criminal Procedure? That is the short but difficult question that arises in this appeal against a decision of the High Court of Judicature at Bombay. On November 24, 1949, the appellant filed a complaint in the Court of the Presidency Magistrate, Bombay, alleging that when the respondent Mulji Manilal Kamdar was examined on commission by the Income tax Officer, Jamnagar Circle, Jamnagar, he gave answers which were false to his knowledge. He prayed for the issue of process against the said Mulji Manilal Kamdar, so that he might be dealt with according to law. An objection was raised by the accused that in the absence of a complaint by the Income tax Officer before whom the false statement was alleged to have been made the Magistrate was debarred from taking cognizance of the case. This contention was based on a submission that the Income tax Officer was a court within the meaning of section 195(1)(b). This objection was rejected by the Presidency Magistrate. (1) I.L.R. 38 Boni.714 The High Court of Bombay was moved against the Presidency Magistrate 's order. But considering itself bound by a Full Bench decision of the Court in in re: Punainchand Manieklal(1) and the later decision in State vs Nemchand Peshvir (2) the High Court held that an income tax Officer when holding proceedings under section 23 of the Income tax Act, 1922 is a Revenue Court within the meaning of cl. (b) in sub section (1) of section 195 of the Code of Criminal Procedure. The correctness of the High Court 's view is challenged before us by the complainant on the strength of a certificate granted by the High Court finder article 134(1) (c) of the Constitution. Section 195(1)(b) is one of the group of sections in the Code of Criminal Procedure which have laid down exceptions to the general rule of criminal law that criminal proceedings can be instituted in a court by any person. To this rule section 195 along with sections 196, 196A, 197, 197A, 198, 198A, and 199 provide exceptions. Section 195 mentions in its first sub section a number of offences of which no court shall take cognizance except on the complaint in writing of the persons as indicated. Three classes of offences are dealt with in three cls.(a), (b) and (c) of this sub section. Section 195(1)(a) deals with offences punishable under sections 172 to 188 of the Indian Penal Code and provides that no Court shall take cognizance of any of these except on the complaint in writing "of the public servant concerned or of some other public servant to whom he is subordinate." Section 195(1)(b) deals with offences punishable under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 and provides that when any such offence is alleged to have been committed in or in relation to any proceeding in any court, no court shall take cognizance of it except on the complaint in writing of such Court or some other court to which such court is subordinate. Section 195(1)(c) deals with offences punishable under sections 463, 471, 475 and 476 and provides that when any such offence is alleged to have been committed by a party to any proceeding in any court in respect of any document produced (1) I.L.R. (2) 715 or given in evidence in such proceeding, no court shall take cognizance of the same except on the complaint in writing of such court, or some other court to which such court is subordinate. The second sub section of section 195 runs thus "In clauses (b) and (c) of sub section (1), the term "court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar, or SubRegistrar, under the Indian Registration Act, 1877. " In this appeal we are concerned directly with cl.(b) of section 195(1). The appellant 's complaint before the Magistrate alleged the commission of an offence under section 193 of the Indian Penal Code in the course of the examination on oath by the Income taxx Officer, Ward A, Jamnagar Circle, Jamnagar. The examination itself took place in relation to assessment proceedings against the complainant for the years 1949 50, and 1950 51. If the Income tax Officer is a Court it necessarily follows that the Magistrate was not entitled to take cognizance of this offence except on the complaint of the Income tax Officer. That is how the question whether the Income tax Officer is a Court or not falls to be considered. Section 5 of the Income tax Act, 1922, mentions six classes of Income tax Authorities for ;the purposes of the Act, The primary function of an Income tax Officer is the assessment of income that is chargeable to tax under section 3 of the Act and the determination of the tax payable on it. He has to perform other functions under the Act that are subsidiary and ancillary to this main function. Under section 5 (7) the Income tax Officers are subordinate to the Director of Inspection, the Commissioner of Income tax and the Inspecting Assistant Commissioner of Income tax within whose jurisdiction they perform their functions. Under section 5(8) they have to observe and follow the orders, instructions and directions of the Central Board of Revenue. Chapter III of the Act in its several sections state what heads of income profits and gains shall be chargeable to income tax and indicates the duties which the Income tax Officer 716 has to perform for the purpose of his main function of assessing the chargeable income. For instance, deductions under section 7 (2) (iia) in respect of conveyance owned by the assessee or used by him for the purpose of his employment"shall be such sum as the Income tax Officer may estimate,. . "The allowances permissible under section 10(2)(i) "shall be such sum as the Income tax Officer may determine"; the allowances under section 10 (2) (ix) also shall be such sum in respect of loans made in the ordinary course of business as the Income tax Officer may estimate to be irrecoverable. Again, the allowances mentioned in cl.(a) and cl.(b) of section 10(4) (a) cannot be made "if in the opinion of the Income tax Officer any such allowance is excessive or unreasonable. " The proviso to section 10(5) requires the Income tax Officer to satisfy himself in the cases dealt with there whether the main purpose of the transfer of assets was the reduction of liability to income tax and provides that where he is so satisfied the actual cost of the assets shall be such amount as the Income tax Officer may determine. Other sections showing the different matters in which the Income tax Officer has to be satisfied or to form an opinion for the purpose of assessment are sections 12(a), 13 and 17. Chapter IV of the Act,which lays down the proce dure to be followed in making the assessment, imposes inter alia the duty of calling for returns of income (section 22); of making assessment of the Income and to determine the sum payable by the assessee (section 23); the power to assess Companies to super tax (section 23A); the power to make provi sional assessment in advance of regular assessment (section 23B). It is obvious however that for carrying out these several functions properly it is necessary for the Income tax Officer to examine documents and persons. Power for this purpose are conferred on the Income tax Officer (and certain other Income tax Authorities) in section 37 of the Act. The first subsection of section 3 7 runs thus : "The Income tax Officer, Appellate Assistant Commissioner and Appellate Tribunal shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) 717 when trying a suit in respect of the following matters, namely : (a) discovery and inspection. (b) enforcing the attendance of any person, including any officer of a banking company, and examining him on oath, (c) compelling the production of books of account and other documents; and (d) issuing summons. The second subsection empowers any Income tax Officer specially authorised by the Commissioner to enter and search any building and seize books of account and other documents. Under the third sub section the Income tax Officer may impound or retain the books of account and other documents after following certain procedure. The fourth sub section of this section which does not confer any powers but has been relied on strongly by the respondent will be dealt with in full detail later in this judgment. From the brief summary of the Income tax Officer 's functions given above it is clear that he is a part and parcel of the executive organ of the State. The fact that for carrying out some of these executive functions he will have the powers as are vested in a court under the Code of Civil Procedure has not the effect of converting him into a limb ,of the judicial organ. It has been held that he is a quasi judicial authority. That is not sufficient however to make him a court. Before we can call him a court, he must be shown to be a part of the judicial organ of the State. Leaving out for later consideration the effect of section 37(4) it is clear that an Income tax Officer is not a court. We have not thought it necessary to refer to the numerous decisions of the High Courts in India, of this Court or of the Privy Council in which the question of what is a court has been considered. We have considered this unnecessary in view especially of the fact that most of these were noticed in a recent decision of this Court in Jagannath 718 Prosad vs State of Uttar Pradesh(1) where the question whether a Sales Tax Officer was a court or not within the meaning of section 195(2) of the Criminal Procedure Code was considered. This Court held that the Sales Tax Officer is not a Court within the meaning of that section. All the reasons set out in this judgment which Kapur J. delivered for the Court are applicable to the case of the Income tax Officer and if the reasoning in that case is taken to be correct, as it must be, ;the Income tax Officer also must be, held to be not a court unless any different conclusion is. justified from the provisions of section 37(4) of the Act. It will not be out of place to mention here what them Constitution Bench of this Court said in Jaswant Sugar Mills vs Lakshmi Chand(2) as regards the nature of the functions of Income tax Officers. The question for the court 's decision in that case was whether a Conciliation Officer under cl. 29 of the Government Order under sections 3 and 8 of the U.P. was a "Tribunal" within the meaning of article 136 of the Constitution and the Court held that it was not such a tribunal. As illustrations of other authorities whose primary function is administrative even though they have the duty to act judicially, Shah J. speaking for the Court said : "The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income tax and Sales Tax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are (1) [1963] Supp. 1 S.C.R. 242.(2) ; 719 still not delegates of the judicial power of the State. Their primary function is administrative and not judicial." It is true that the question whether an Income tax Officer was a court or a tribunal was not directly for decision in jaswant Sugar Mills ' case(1). It is clear however that as a part of the reasoning which the court applied for coming to the conclusion that the Conciliation Officer is not a Tribunal this Court was of opinion that an Income tax Officer is also not a "Tribunal". Obviously, if it is not even a Tribunal it cannot be a court. It is not seriously disputed by Mr. Desai who appeared before us for the respondent that looking at the functions of an Income tax Officer it is not possible to say that the Income tax Officer is a court specially after this Court 's decision in Jagannath Prasad 's case( ',) mentioned above. His main contention is that even though the Income tax Officer was not originally a court within the meaning of section 195 of the Code of Criminal Procedure, the deeming provision in section 37(4) has made him a court. Section 37(4) runs thus : "Any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860)." The authorities mentioned in the section are the Income tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal. The direct effect of subsection 4 of section 37 therefore is that proceedings before an Income tax Officer "shall be deemed to be a judicial proceedings within the meaning of section 193 and section 228 and for the purposes of section 196 of the Indian Penal Code. As we read the section it at once leaps to the eye that there is no mention in this of section 195 of the Code of Criminal Procedure. In introducing this deeming provision in 1956 (1) [1963] Supp. 1 S.C.R. 242.(2) ; 720 Parliament did not think it necessary to extend the deeming provision for the purpose of section 195. If Parliament intended this provision to produce the consequence that the authori ties in the section should be deemed to be a court within the meaning of section 195 (2) of the Code of Criminal Procedure, it is reasonable to expect that Parliament would have added the words "and shall be deemed to be a court within the meaning of section 195 (2) of the Code of Criminal Procedure", or "shall be deemed to be a court for the purpose of s.195 of the Code of Criminal Procedure" or some similar Phraseology. The omission to use any such words is all the more remarkable when we notice that on several occasions before 1956 Parliament had in expressing an intention that a particular authority should be a court for the purpose of section 195 added express words to give effect to that intention. Thus, in the , which was enacted in 1936, section 18 after stating that every authority appointed under sub section (1) of section 15 shall have all the powers of a civil court under the Code of Civil Procedure for certain purposes, proceeded to say that "every such authority shall be deemed to be a civil court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898. " Again, in section 23 of the Workmen 's Compensation Act which confers on the Commissioner for workmen 's Compensation all the powers of a civil court under the Code of Civil Procedure, 1908 the legislature added in 1929 the following words: "and the Commissioner shall be deemed to be a civil court for all the purposes of section 195 and of Chapter XXXV of,the Code of Criminal Procedure, 1898". It is worth noticing also that in several other statutes parliament after stating that certain proceeding shall be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code proceeded to say that for certain purposes it shall also be deemed to be a court. The Evacuee property Act of 1950 after stating that the enquiry by the custodian shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, goes on to say "and the Custodian shall be deemed to be a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898". Another instance of similar 721 legislation is to be found in section 17 of the Evacuee Interest (Separation) Act, 195 1, which after stating that any proceeding before the competent officer or the appellate officer shall be judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code adds "and the competent Officer or the appellate officer shall be deemed to be a civil court within the meaning of section 480 and section 482 of the Code of Criminal Procedure, 1898". The uses exactly similar words in section 26. That section first confers on every officer appointed under the Act the same powers in respect of certain specified matter, , for the purpose of making any enquiry or hearing any appeal under the Act as are vested in a Civil court under the Code of Civil Procedure and then proceeds thus "any proceeding before any such officer shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code and every such Officer shall be deemed to be a civil court within the meaning of section 480 and 482 of the Code of Criminal Procedure, 1898. " Similarly, the after providing in sub section (3) of section 11 that every enquiry or investigation by a Board, Court, Labour Court. Tribunal or National Tribunal, shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code adds in sub section (8) of the same section the provision that "every Labour Court, Tribunal or National Tribunal shall be deemed to be a civil court for the purposes of section 480 and section 482 of the Code of Criminal Procedure, 1892. " This sub section was added in 1950. In clear contrast with these are the statutes which after saying that certain proceedings shall be judicial proceeding refrain from adding that the authority will be deemed to be a court. One such statute is the , which in section 171A(4) lays down that every enquiry under that section shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code and stops there. A somewhat similar provision, though in different phraseology, appears in section 51 of the Administra tor General 's Act, (111 of 1913) which runs thus:134 159 S.C. 46 722 "Whoever, during any examination authorised by this Act, makes upon oath a statement which is false and which he either knows or believes to be false or does not believe to be true, shall be deemed to have intentionally given false evidence in a stage of a judicial proceeding." The learned Solicitor General, who appealed before us on behalf of the appellant, strongly urged that if the inten tion of the legislature had ever been that the Income tax Officer or other authorities mentioned in section 37 should be deemed to be a court for the purpose of section 195 of the Code of Criminal Procedure it would have taken care to express that intention in clear phraseology. In any case, argues learned counsel, when in 1956 the old section 37 was wholly recast the Parliament which at least then had before it a well established pattern of legislative forms in the numerous statutes mentioned above for expressing an intention that an authority shall be deemed to be a court for the purpose of section 195 or any other provision of the Code of Criminal Procedure, there could be no conceivable reason for the failure to follow that pattern. In our opinion, there is considerable force in this argument. On behalf of the accused respondent Mr. Desai suggets that the words actually used, viz., "that proceeding before the authority shall be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code" were by themselves sufficient to give effect to an intention that authority shall also be deemed to be a court within the meaning of section 195 of the Code of Criminal Procedure According to the learned Counsel, a judicial proceeding with in the meaning of section 193 of the Indian Penal Code can only be before a court. For this proposition we can find no support either in principle or authority. It seems clear to us on the contrary ;that proceedings before tribunals which are quasi judicial and not a court may well be considered to be judicial proceedings within the meaning of section 193 of the Indian Penal Code. Though the words "judicial proceeding" have been used in numerous sections of the Indian 723 Penal Code, it has not defined the words, though the words court of justice" as also the words "a judge" have been de fined. The Code of Criminal Procedure in which also the phrase "judicial proceeding" occurs in several sections has ,defined it in section 4(m) thus: "Judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath". This definition of judicial pro ceeding was included in the Code of Criminal Procedure, 1898, from the very beginning. The fact that for all these years since 1898 Parliament has not thought fit to give any definition of the words "judicial proceeding" in the Indian Penal Code is some justification for thinking that the words "judicial proceeding" in the Indian Penal Code may reason ably be held to have the same meaning as in the Code of Criminal Procedure. In other words, it would be reasonable to think that in the Indian Penal Code also the word "judicial proceeding" has been used to include "any pro ceeding in the course of which evidence is or may be legally taken on oath. " That would bring within the meaning of the words "judicial proceeding before many quasi judicial authorities which are not courts, e.g., a ,Customs Officer or a Sales Tax Officer. It is unnecessary for our present purpose to attempt an exact definition of the words "judicial proceeding" as used in section 193 or in any other section of the Indian Penal Code. Even without any such definition however it appears clear that the phrase "judicial proceeding ' is wide enough to include not only proceedings before courts but proceedings before certain other tribunals. It is pertinent to point out that if a proceeding before any other authority except a court could not be a judicial proceeding within the meaning of section 193 of the Indian Penal Code, it would not have been necessary for Parliament in the Evacuee Property Act, 1950, in the Evacuee Interest (Separation) Act, 1950, and in the , to add, after laying down that the proceedings before certain authorities shall be judicial proceedings within the meaning of section 193 and section 228 of the Indian Penal Code the further words, that "the authority shall be, deemed to be a civil court" for certain purposes of the Code of Criminal 724 Procedure. It is especially interesting to note in this connection the provisions of section 11(3) and section 11(8) of the to which we have already referred. Under section 11(3) as originally enacted every enquiry or investigation by a Board, Court or Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. When Parliament added to this section sub section (8) what was enacted was that every tribunal shall be deemed to be a civil court for the purpose of section 480 and section 482, Criminal Procedure Code, 1898. After the amendment by the Act 36 of 1956 the concluding portion of section 11 (3) ran thus : "Every enquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. " The same Act substituted in section 8 the words "Labour Court, Tribunal or National Tribunal" for the words "Tribunal". In spite of the fact however that every enquiry or investigation by a Board has to be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code Parliament refrained from saying that a Board shall also be deemed to be a civil court for the purpose of section 480 and section 482 of the Code of Criminal Procedure. This emphasises the fact that the legislature did not think that the necessary effect of legislating that a proceeding before an authority shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code would be that authority shall also be deemed to be a court. To say now that the legislature in providing in section 37(4) of the Indian Income tax Act that a proceeding before the specified authorities shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, intended also to say that such authority shall be deemed to be a court within the meaning of section 195 of the Code of Criminal Procedure would be to impute to the legislature an intention of which it itself had no knowledge. Learned counsel for the accused respondent then drew our attention to the use of the words "judicial proceeding" in section 476 and section 479A of the Code of Criminal Procedure 725 and argued that in these sections the words "judicial pro ceeding" have been used as equivalent to proceeding in a court. That may well be so. Section 476 lays down proce ure in cases mentioned in section 195(1)(b) and (c) of offences that appear to have been committed in or in relation to a proceeding in a court. It was quite correct therefore to refer to such proceeding in a later part of the section as judicial proceeding. Section 479A lays down the procedure in certain cases of offences of giving false evidence in civil, revenue or criminal courts and necessarily speaks of the proceeding before those courts as judicial proceeding. It is difficult to see how the use of the words "judicial proceeding" in these sections support the contention that "judicial proceeding" can only be a proceeding before a court. There can be no doubt that every proceeding before a court is a "judicial proceeding". It does not follow however that every judicial proceeding is a proceeding before a court. Mr. Desai drew a grim picture of what would happen if the authority a proceeding before which was deemed to be a judicial proceeding within the meaning of section 228 of the Indian Penal Code was not at the same time considered a court within the meaning of section 195. He rightly points out that one consequence will be that if any person offers any insult or causes any obstruction to a public servant when he is sitting in any such judicial proceeding and thus commits an offence under section 228 of the Indian Penal Code it will be possible for persons other than the public servants to institute a criminal case for such offence. This, says the learned counsel, would be a very undesirable thing. We fail to see why this should be considered to be undesirable. But assuming this is so, that is not to our mind a consideration which should compel us to give the words "judicial proceeding" a meaning which they do not bear. It may be mentioned here, as already stated, that under section 171A(4) of the Sea Customs Act, 1874, every enquiry before a Custom Officer "shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the 726 Indian Penal Code". In spite of this, the Constitution Bench of this Court held in its recent decision in Indo China Steam Navigation, Co. Ltd. vs The Additional Collector of customs(1) that a Customs Officer is not even a Tribunal. After discussig several previous decisions of this Court Gajendragadkar C.J., speaking for the Court observed thus: "The result therefore is that it is no longer open to doubt that the Customs Officer is not a court ' or tribunal. " It is difficult to see how if the presence of the words "shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code" in section 171A(4) have not the effect of making a Customs Officer a court or a tribunal, the presence of similar words in section 37(4) in the Indian Income tax Act, can have that effect. In our opinion, the words used in section 37(4) of the Income tax Act furnish no reason to alter the legal position that is inescapable on a consideration of the functions of the Income tax Officer that he is not a court within the meaning of section 195 of the Code of Criminal Procedure. We would therefore allow the appeal, set aside the order passed by the High Court and direct that the Presidency Magistrate, Bombay, should now dispose of the case in accordance with law. ORDER In accordance with the opinion of the majority, this appeal fails and is dismissed.

The appellant filed a criminal complaint against respondent No. 2 alleging that he had committed an offence under section 193 of the Indian Penal Code, 1860 by giving false evidence in certain proceedings before the Income tax Officer under section 37 of the Indian Income tax Act, 1922. Respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint, because the proceedings in which he was alleged to have made a false statement on oath were proceedings before a court within the meaning of section 195(1)(b) of the Code of Criminal Procedure, 1898, and since no complaint in writing had been made by the court of the Income tax Officer the provision of section 195(1)(b) created a bar against the competence of the appellant 's complaint. On the rejection of this preliminary objection respondent No. 2 preferred a criminal revision application before the Bombay High Court impleading the State of Maharashtra as respondent No. 1. The High Court allowed the revision application. Thereupon the appellant appealed to this Court on a certificate issued under article 134(1)(c) of the Constitution. The short question before this court was whether the proceedings before an Income tax Officer under section 37 of the Income tax Act can be said to be a proceeding in any court within the meaning of section 195(1)(b) Code of Criminal Procedure. Held (per P. B. Gajendragadkar, C.J., K. N. Wanchoo and N. Rajagopala Ayyangar JJ.) (i) While the Income tax Officer exercises his powers under section 37(1), (2) and (3), the proceedings held by him are judicial proceedings for the purposes of sections 193, 196 and 228 Indian Penal Code and the false statement alleged to have been made by respondent No. 2 was Made in a judicial proceeding within the meaning of section 193, Indian Penal Code. (ii)It is not necessary to decide the general question whether the Income tax Officer is a Court or not for section 37(4) of the Income tax 701 Act makes the proceedings before the Income tax Officer, judicial proceedings for the purposes of section 193 Indian Penal Code and these judicial proceedings must be treated as proceedings in any court for the purpose of section 195(1)(b) Code of Criminal Procedure. The High Court was right in allowing the revision application on the ground that the condition precedent prescribed by section 195(1)(b) Code of Criminal Procedure had not been complied with as no complaint has been filed by the Income tax Officer. Jagannath Prasad vs State of Uttar Pradesh, [1963] 2 S.C.R. 850 and Puran Chand Maneklal, in re: I.L.R. , distinguished. Per Sarkar and Das Gupta JJ. (dissenting) (i) From the nature of functions under the various provisions of the Income tax Act it is clear that the Income tax Officer is a part and parcel of the executive organ of the State. The fact that for carrying out some of these executive functions he will have the powers as are vested in a court under the Code of Civil Procedure will not make him a limb of the judicial organ. Neither does the fact that he is a quasi judicial authority make him a court. (ii)In Jaswant Sugar Mills vs Lakshmi Chand. [1963] Supp. 1 S.C.R. 242 this court has held that the Income tax Officer is not a Tribunal and therefore it is obvious that he cannot be a court. (iii)To say that the legislature in providing in section 37(4) of the Indian Income tax Act that a proceeding before the specifiedauthority shall be deemed to be a judicial proceeding within the meaningof section 193 and section 228 Indian Penal Code intended also to say that suchauthority shall be deemed to be a court within the meaning of section 195Code of Criminal Procedure would be to impute to the legislature anintention of which it itself had no knowledge. (iv)The words used in section 37(4) of the Income tax Act furnishes no reason to alter the legal position that is inescapable on a consideration of the functions of the Income tax Officer that he is not a court within the meaning of section 195 Code of Criminal Procedure. Jagannath Prasad vs State of Uttar Pradesh, [1963] 2 S.C.R. 850, Punamchand Manaklal, re: I.L.R. , State vs Nemchatid Pesvir, , Indochina Steam Navigation Co. Ltd. vs The Additional Collector of Customs, , referred to.

Civil Appeal No. 1314 of 1978. Appeal by special leave from the judgment and order dated the 23rd March, 1978 of the Allahabad High Court in Civil Revision No. 1906 for 1976. WITH CIVIL APPEAL No. 2436 OF 1981 Appeal by special leave from the judgment and order dated the 20th August, 1981 of the Allahabad High Court in Civil Writ Petition No. 6909 of 1979. AND CIVIL APPEAL No. 1710 OF 1981 From the judgment and Decree dated the 13th March, 1981 of the Allahabad High Court in Writ Petition No. 6167 of 1979. AND SPECIAL LEAVE PETITION (CIVIL) NO. 3573 OF 1979 494 From the judgment and order dated the 3rd January, 1979 of the Allahabad High Court in Civil Revision No. 3714 of 1978. G.L.Sanghi, Mrs. A. Verma and D.N. Mishra for the Appellant in CA. No. 1314 of 1978. J.P. Goyal, S.Markandeya and C.K.Ratnaparkhi for the Respondent in CA. 1314 of 1978. A.K. Srivastava for the Appellant in CA. 1710/80. R.B. Mehrotra for Respondent in CA. 1710/80. Pramod Swarup and Mrs. section Markandeya for the appellant in CA. 2436 of 1980. S.N. Kacker and K.K Gupta for the Respondent in CA. 2436 of 1980. P.R.Mridul, Praveen Jain and K.B. Rohatgi for the Petitioner in SLP (Civil) No. 3573 of 1979 R.H. Dhebar for the Respondent. The Judgment of the Court was delivered by MISRA J. The first two appeals by special leave and the third by certificate and the special leave petition raise a common question of law and, therefore, we propose to dispose of them by a common judgment. The pattern of facts in all these cases is similar. We, therefore set out the facts of Civil Appeal No. 1314 of 1978 to bring out the point for consideration in these matters. The appellant Om Prakash Gupta is a tenant of a shop on a monthly rent of Rs. 150/ .The respondent landlord filed a suit for the eviction of the tenant on the ground that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act 13 of 1972 and hereinafter referred to as 'the Act ') did not apply to the shop and the tenant was liable to eviction. The Judge, Small Causes Court, Mainpuri decreed the suit on the finding inter alia that the construction of the shop in suit was completed in the year 1967 and 495 that ten years having not elapsed since then, the provisions of the Act did not apply to the case. The defendant went up in revision under section 25 of the Provincial Small Causes Courts Act against the judgment and decree of the trial Court but the same was substantially dismissed. The defendant thereupon filed a revision under section 115 of the Civil Procedure Code in the High Court which came up for hearing before a learned Single Judge who remitted the following issue to the trial court: "On what date was the construction of the building in dispute completed within the meaning of section 2 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, and deemed to have been completed as contemplated by Explanation I (a) thereto. " The Judge Small Causes Court by his order dated 26th of November 1977 returned the following finding: "The construction of the disputed shop will be deemed to have been completed on the date of the first assessment i.e. 1.4.68 within the meaning of section 2 (2) of the U.P. Urban Buildings Act, 1972. " The finding returned by the trial court was sought to be challenged on behalf of the tenant on the ground that the date of occupation should be taken to be the date of completion of the construction of the shop and not the date of the first assessment. In Tilak Raj vs Sardar Devendra Singh,(1) a learned Single Judge of the same High Court had the occasion to consider section 2 (2) of the Act. He held: "It is apparent from this provision that for purposes of this Act, a building is to be deemed to be constructed, if it is subject to assessment, on the date with effect from which the first assessment is made. It is immaterial whether the building was constructed actually prior to that date or it had come into occupation prior to that date. The law recognised for the purposes of this Act, the date of assessment as the date of the completion of the building. There is thus no error in the judgment of the court below. " 496 The learned Single Judge before whom the revision in the instant case came up for hearing doubted the correctness of the above decision. He, therefore, referred the case to a Division Bench. There is no dispute that the first assessment of the shop took place on 1st of April, 1968. It is also not in dispute that the shop in question was occupied by the defendant on 16th of June, 1967, and prior to his occupation the shop was in occupation of another tenant for about a month and a half. The appellant sought the benefit of section 39 of the Act on the ground that if the date of occupation was taken to be the date of the completion of the construction of the shop, then ten years having elapsed during the pendency of the revision before the High Court, the Act would be applicable. The Division Bench, however, over ruled the contention of the appellant and held that the construction of the shop in question would be deemed to have been completed on 1st of April 1968 and, therefore, the Act would not be applicable to the building till the date of the decision of the revision on March 23, 1968. The defendant undaunted by the failure came to this Court to challenge the judgment of the High Court. Mr. G.L. Sanghi, senior counsel. appearing for the appellant strongly contended that on a correct interpretation of sub section (2) of section 2, the Act would be applicable to the shop in question. It would be appropriate at this stage to extract sub section (2) of section 2 of the Act insofar as it is material for the purposes of the case: "Except as provided in sub section (5) of section 12, sub section (1 A) of section 21, sub section (2) of section 24, sections 24A, 24B, 24C or sub section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: Explanation I. For the purposes of this sub section: (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment the date on which the first assessment thereof 497 comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :. " The precise contention on behalf of the appellant is that the exemption created by this sub section does not embrace buildings constructed prior to the enforcement of the Act. In support of his contention, Mr. Sanghi, relied upon Rattan Lal Shinghal vs Smt. Murti Devi.(1) The same contention was raised by him in that case also and a Division Bench of this Court accepted the contention and held that Act 13 of 1972 was prospective and applied only to buildings brought into being de novo after the Act came into force. In that case there is no discussion except this bald observation. This Court in a subsequent case Ram Saroop Rai vs Lilavati(2) held to the contrary. It is on this account that the present appeals were referred to a larger Bench. There is no ambiguity in the language of sub section (2) of section 2 and in the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub section. In plain words the sub section contemplates that the Act shall not apply to a building during a period of ten years from the date on which its construction is completed. It nowhere says that the building should have been constructed after the enforcement of the Act and to interpret it in the way the learned counsel for the appellant seeks to interpret it, we would be adding words to the sub section, which is not permissible. Primarily the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations. In the present case the language of sub section (2) of section 2 of the Act is explicit and unambiguous and it is not capable of two interpretations. 498 As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to sub section (2) of section 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. A perusal of Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years ' old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of section 39 of the Act to the appellant. Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 will have no application to the present case. In view of sub section (2) of section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act has no application to the present case and the appellant could not be given the benefit of section 39. The suit has, therefore, been rightly decreed by the courts below. We find no force in either of the contentions raised by Mr. Sanghi. The counsel for the appellants in the other appeals and 499 the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi. For the foregoing discussion the appeals and the special leave petition are dismissed. There shall, however, be no order as to costs. We, however, direct that the order of eviction in each case shall not be executed before 30th of June, 1982 on condition that each of the appellants in the appeals and the petitioner in the special leave petition files an undertaking in this Court within four weeks from today to the following effect: 1. that he will hand over vacant and peaceful possession of the suit premises to the landlord respondent on or before 30th of June, 1982; 2. that he will pay to the respondent arrears of rent, if any, within a month from today; 3. that he will pay to the respondent future compensation for use and occupation of the suit premises for each calendar month by the 10th of the succeeding month; and 4. that he will not induct any other person in the suit premises as a sub tenant or licensee or in any other capacity whatsoever. We further direct that in default of compliance with any one or more of the conditions of the undertaking or if the undertaking is not filed within the stipulated time, the decree of eviction shall become executable forthwith. N.V.K. Appeal dismissed.

The U.P. Urban Buildings (Regulation of Letting, Rent and (Eviction) Act, 1972 provided by sub section (2) of section 2 that except as provided in the Act, the Act was not to apply to a building during a period of 10 years from the date on which its construction was completed. Explanation I to the sub section provided that the building shall be deemed to have been completed on the date on which completion thereof is reported or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said date, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. The appellant tenant was in occupation of a shop from the 16th June, 1967 and prior to his occupation the shop was in occupation of another tenant for about a month and a half. The first assessment of the shop took place on Ist of April, 1968. The respondent landlord filed a suit for the eviction of the tenant on the ground that the Act did not apply to the shop and the tenant was liable to eviction. The Trial Judge finding that the construction of the shop was completed in the year 1967 and that 10 years having not elapsed since then, held that the provisions of the Act did not apply and decreed the suit. The appellant 's 492 petition under section 25 of the Provincial Small Causes Courts Act was dismissed. In his revision petition to the High Court under section 115 of the Civil Procedure Code the appellant contended that the date of occupation should be taken to be the date of completion of the construction of the shop and not the date of first assessment. The High Court overruled the contention and held that the construction of the shop would be deemed to have been completed on 1st of April, 1968 the date of the first assessment and ten years not having elapsed, the Act would not be applicable to the building and dismissed the revision petition. In the appeal to this Court it was contended on behalf of the appellant: (1) that by virtue of sub section (2) of section 2, the Act would be applicable to the shop in question and that the exemption created by the sub section did not embrace buildings constructed prior to the commencement of the Act and (2) that the building should be deemed to have been constructed on the date of occupation on 16th June, 1967 and not on the date of the first assessment. and that the appellant was entitled to the benefit of section 39 of the Act. Dismissing the appeal, ^ HELD: 1(i) The suit was rightly decreed by the Courts below. The Act had no application and the appellant could not be given the benefit of section 39. [498 G H] (ii) Primarily, the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore capable of two interpretations. [497 F] (iii) The language of sub section (2) of section 2 of the Act is explict and unambiguous and is not capable of two interpretations. [497 G] In the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub section. The sub section contemplates that the Act shall not apply to a building during a period of 10 years from the date on which its construction is completed. It no where says that the building should have been constructed after the enforcement of the Act and to interpret it in such a way would be to add words to the sub section, which is not permissible. [497 D F] 2 (i) Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the instant case it will be the date of the first assessment which will be deemed to be the date of completion of the construction. The building had not therefore become more than ten years 's old on the date when the revision came to be decided by the High Court and consequently there was no question of giving the benefit of section 39 of the Act to the appellant. [498 D F] 493 (ii) In order to attract section 39 the suit must be pending on the date of the commencement of the Act which was 15th of July, 1972. [498 F] In the instant case the suit was filed on 23rd of March 1974 long after the commencement of the Act. [498 F] (iii) In view of sub section (2) of section 2, the Act is not applicable to a building which has not a standing of ten years. If the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. [498 G] Rattan Lal Shinghal vs Smt. Murti Devi (1980)4 S.C.C. 258 and Ram Saroop Rai vs Lilavati ; , over ruled.

286 of 1955. Under Article 32 of the Constitution for the enforcement of Fundamental Rights. H.Mahapatra and G. C. Mathur, for the petitioners. C. K. Daphtary, Solicitor Generalfor India, (Porus A. Mehta and P. G. Gokhale, with him), for respondent No. 1. 921 1955. October 27. The Judgment of the Court was delivered by BOSE J. This judgment will also govern Petitions Nos. 287, 288, 289 and 304 of 1955. We will set out the facts in Petition No. 286 of 1955. The others follow the same pattern. The dispute is about fishery rights in the Chilka lake which is situate in what was once the estate of the Raja of Parikud. This estate vested in the State of Orissa under the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952) on 24 9 1953 and has now ceased to exist in its original form. The Act came into force on 9 2 1952. The further facts are set out in paragraphs 2 and 3 of the petition in the following terms: "That the petitioners carry on the business of catching and selling fish particularly. from fisheries within the said lake. That long before the vesting of the estate the petitioners had entered into contracts with the exproprietor and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule given in the accompanying affidavit and had ,obtained receipts on payment in accordance with the prevailing practice". The lake is divided into sections and this petition is concerned with four of them. The licenses relating to them were purchased as follows: I On 30 7 50 for rights in Gerasar Prawn for 1955 56 2. On 2 8 50 for rights in Jayamal Prawn for 1955 56 3. On 18 9 51 for rights in Solakudi Prawn for 1955 56 4. On 6 5 52 for rights in Jayamal Chungudi for (1956 57 (1957 58 (1958 59 It will be seen that though the licenses were acquired before the estate vested in the State of Orissa they 922 were for future years, all after the date of vesting. The State of Orissa refused to recognise these licenses and were about to re auction the rights when the petitioners filed the present petition seeking writs under article 32 on the ground that their fundamental rights under articles 19(1)(f) and 31 (I) were, or were about to be, infringed. The first question that we have to determine is whether the petitioners acquired any rights or interests in "property" by their several "purchases", as articles 19(1)(f) and 31(1) are dependent on that. In their petition the petitioners claim that the transactions were sales of future goods, namely of the ,fish in these sections of the lake, and that as fish is moveable property Orissa Act I of 1952 is not attracted as that, Act is confined to immoveable I property. ,We agree with the learned Solicitor General that if this is the basis of their right, then their petition under article 32 is misconceived because until any fish is actually caught the petitioners would not acquire any property in it. There can be no doubt that the lake is immoveable property and that it formed part of the Raja 's estate. As such it vested in the State of Orissa when the notification was issued under the Act and with it vested the right that all owners of land have, to bar access to their land and the right to regulate, control and sell the fisheries on it. If the petitioners ' rights are no more than the right to obtain future goods under the Sale of Goods Act, then that is a purely personal right arising out of a contract to which the State of Orissa is not a party and in, any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right. But though that is how the matter is put in the petition we do not think that is a proper approach to this case. The facts disclosed in paragraph 3 of the petition make it clear that what was sold was the right to catch and carry away fish in specific sections of the lake over a specified future period. That amounts to 923 a license to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre: see 11 Halsbury 's Laws of England, (Hailsham Edition), pages 382 and 383. In England this is regarded as an interest in land (11 Halsbury 's Laws of England, page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page 382). In India it is regarded as a benefit that arises out of the land and as such is immoveable property. Section 3 (26) of the General Clauses Act defines "immoveable property" as including benefits that arise out of the land. The Transfer of Property Act does not define the term except to say that immoveable property does not include standing timber, growing crops or grass. As fish do not come under that category the definition in the General Clauses Act applies and as a profit a prendre is regarded as a benefit arising out of land it follows that it is immoveable property within the meaning of the Transfer of Property Act. Now a "sale" is defined as a transfer of ownership in exchange for a price paid or promised. As a profit a prendre is immoveable property and as in this case it was purchased for a price that was paid it requires writing and registration because of section 54 of the Transfer of Property Act. If a profit a prendre is regarded as tangible immoveable property, then the "property" in this case was over Rs. 100 in value. If it is intangible, then a registered instrument would be necessary whatever the value. The "sales" in this case were oral: there was neither writing nor registration. That being the case, the transactions passed no title or interest and accordingly the petitioners have no fundamental right that they can enforce. It is necessary to advert to Firm Chhotabhai Jethabai Patel & Co. vs The State of Madhya Pradesh(1) and explain it because it was held there that a right to "pluck, collect and carry away" tendu leaves does not give the owner of the right any proprietary interest in the land and so that sort of right was not an "en (1) 117 924 cumbrance" within the meaning of the Madhya Pradesh Abolition of Proprietary Rights Act. But the contract there was to "pluck, collect and carry away" the leaves. The only kind of leaves that can be "plucked" are those that are growing on trees and it is evident that there must be a fresh crop of leaves at periodic intervals. That would make it a growing crop and a growing crop is expressly exempted from the definition of "immoveable property" in the Transfer of Property Act. That case is distinguishable and does not apply here. It was then argued that a contract is "property ' within the meaning of articles 19(1)(f) and 31(1). Again, we need not decide this because even if it be assumed that it is that kind of property the State of Orissa has not taken the petitioners ' contract away I from them or prevented them from "acquiring, holding or disposing" of it. They are free to sue on it or to assign it if they want. The State merely says, as any other person might say: "I was not a party to that contract. Neither its rights nor its liabilities have devolved on me and I refuse to recognise it or to assume the obligations of either contracting party". If the State is wrong in its attitude that may give rise to a suit against it for damages for breach of contract or possibly, (though we do not say it would), to a right to sue for specific performance; but no question under articles 19(1)(f) and 31(1) can arise because the State has not confiscated or acquired or taken possession of the contract as such. If it had it would have claimed the benefits under it. It would have taken the money that the petitioners paid to the Raja from the Raja or demanded it over again from the petitioners. But it is not doing that. It simply refuses to recognise the existence of the contract. The petition fails and is dismissed with costs.

The petitioners obtained oral licenses for catching and appropriating fish from specified sections of the Chilka Lake from its proprietor, the Raja of Parikud, on payment of heavy sums and obtained receipts in accordance with the prevailing practice. This was before the passing of the Orissa Estates Abolition Act of 1951 by which ownership of the estate vested in the State of Orissa. The licenses, however, were in respect of years subsequent to such vesting. The State of Orissa refused to recognise them and was seeking to reaction the rights of fishery. The petitioners contended that it had thereby infringed or was about to infringe their fundamental rights under articles 19(1)(f) and 31(1) of the Constitution and claimed that the transactions being sales of future goods, namely, the fish, the Act which was confined to immovable property had no application. Held, that the right sought to be acquired by the petitioners by their several purchases was not in respect of any future goods as claimed by them but was a license to enter on the land coupled with a grant to catch and carry away the fish, in other words, a profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with section 3(25) of the General Clauses Act. Accordingly section 54 of the former Act applies. That as the sale of the profit a prendre in the present cage was valued at more than one hundred rupees and was effected without writing and registration it contravened section 54 of the Transfer of Property Act, and so no title or interest therein passed to the petitioners and consequently, they bad no fundamental rights to enforce. Firm Chhotabhai Jethabai Patel & Co. vs The State of Madhya Pradesh, ([1953] S.C.R. 476), distinguished and held inapplicable. That it was not necessary in the present case to decide whether the contract was property within the meaning of articles 19(1)(f) and 31(1), but assuming it to be so, the State has not taken such property away from the petitioners or prevented them from acquiring, holding or disposing of it. The State merely refuses to recognise the contract and refuses to consider itself bound by it. That may give a cause of action for a suit on the contract but no fundamental right arises as the State has not confiscated or acquired or taken possession of the contract as such by claiming any benefits under it.

Appeal No. 14 of 1959. Appeal by special leave from the Award dated February 21, 1958, of the Central Government Industrial Tribunal, Nagpur at Bombay, in Reference CGIT No. 12 of 1957. Sachin Chaudhury, section N. Andley, J. B. Dadachanji and, Rameshwar Nath, for the appellant. A. section R. Chari and Y. Kumar, for the respondents. April 4. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave in an industrial matter. The appellant is The Chartered Bank, Bombay (hereinafter called the Bank). There was a dispute between the Bank and its workmen regarding the termination of the service, of one Colsavala (hereinafter called the respondent) who was working as an assistant cashier in the Bank. The system of working in the cash department of the Bank is that there is a chief cashier and under him are about thirty assistant cashiers. The Chief Cashier has to give security for the work of the cash department. Consequently all assistant cashiers are employed upon the introduction of the Chief Cashier who guarantees each such employee. By virtue of this guarantee the Chief Cashier alone is unconditionally responsible to the Bank for any shortage which might occur in the cash department and no security is taken from the assistant cashiers working therein. In view of this guarantee by the Chief Cashier there has been a longstanding practice in the Bank that at the end of the day when the cash is locked up under the supervision of the Chief Cashier, all the assistant cashiers have to be present so that the cash may be checked before 443 being locked up. Assistant Cashiers therefore can only leave the Bank before the locking up of the cash after obtaining permission of the Chief Cashier. On January 4, 1957, the Chief Cashier reported to the management that the respondent had been leaving the Bank without his permission for some time past before the cash was checked and locked up in spite of the issue of a departmental circular in that behalf on December 24, 1956, by which all assistant cashiers (including the respondent) were reminded of the longstanding practice that no assistant cashier should leave the Bank without the permission of the Chief Cashier before the cash was checked and locked tip. The Chief Cashier therefore stated that he was unable to continue to guarantee the respondent and that unless the respondent 's service was dispensed with his conduct will affect the security of the cash department. As the Bank was not prepared to change the system in force in the cash department, the management decided to dispense with the service of the respondent in accordance with the mode of termination prescribed by paragraph 522(1) of the All India Industrial Tribunal (Bank Disputes) Award of March, 1953 (hereinafter referred to as the Bank Award). The Bank was also unable to employ the respondent in any other department. It therefore informed the respondent on March 29, 1957, that as the guarantee covering his employment had been withdrawn by the Chief Cashier the Bank was unable to continue to employ him. The notice required under paragraph 522(1) was given and the amount due to the respondent including retrenchment compensation was paid to him and his service was terminated. Thereupon a dispute was raised by the workmen of the Bank and a reference was made by the Central Government to the Industrial Tribunal with respect to the "alleged wrongful termination of the services of Shri N. D. Colsavala by the Chartered Bank, Bombay, and the relief, if any, to which he is entitled. " The case on behalf of the respondent was that he had been working in the Bank since September 1, 1937, honestly and efficiently as an assistant cashier in the cash department The previous Chief Cashier who 444 was the father of the present Chief Cashier however became hostile to him since 1943, because he claimed his legitimate dues for overtime work and leave which the then Chief Cashier was not prepared to allow. Further the respondent 's letter of appointment did not oblige him to give any security or to procure any guarantee and if the Chief Cashier had given any guarantee to the Bank, the respondent was not concerned with it and had even no knowledge of it. He was given no opportunity to contest the reasons for the withdrawal of the guarantee by the Chief Cashier; nor was he asked to furnish security or give a fidelity bond, even if the Chief Cashier had withdrawn the guarantee. In consequence the discharge of the respondent from service on the ground given by the Bank was entirely illegal, wrongful and unjustified and he was entitled to reinstatement or in the alternative to full compensation for loss of employment. The case of the Bank was that it was entitled to terminate the service of the respondent under paragraph 522(1) of the Bank Award and it was not incumbent on it to state the reasons for such termination and the reasons could not be inquired into or examined by the tribunal. In the alternative it was submitted that if the tribunal was of the opinion that it was open to it to inquire into the reasons, the Bank 's case was that the respondent was not dismissed or discharged by way of punishment for any misconduct and that the Bank merely terminated his service under paragraph 522(1) of the Bank Award, as his guarantee had been withdrawn by the Chief Cashier and it was impossible to continue to employ him in the circumstances, the Bank being. unprepared to change its system of working which has already been mentioned above. It was also said that the Bank was not bound to transfer the respondent to another department and in any case the respondent 's training, experience, ability or record did not fit him for work in any other department of the Bank. The tribunal held that even though the Bank had chosen to follow the procedure laid down in paragraph 522(1) of the Bank Award which provides for termination of employment "in cases not involving 445 disciplinary action for misconduct, by three months ' notice or on payment of three months ' pay and allow. ances in lieu of notice", this did not preclude it from inquiring into the reasons for the termination of service and into the legality and/or propriety of the action taken by the bank and that paragraph 522(1) did not give a free hand to the Bank to dispense with the service of a permanent employee at will. It also held that it was always open to the tribunal to inquire into the bona fides as well as justifiability of the action taken. It then went into the circumstances in which the termination of service took place and was of opinion that this was in fact and in reality a case of termination of service for misconduct, and that it was the duty of the Bank to follow the procedure for taking disciplinary action for the alleged insubordination and persistent disobedience of the orders of the Chief Cashier by the respondent with respect to leaving the Bank without his prior permission before the cash was checked and looked up and inasmuch as the Bank failed to follow the requisite procedure as was laid down in paragraph 521 of the Bank Award, the termination of the service of the respondent was illegal and improper and he was entitled to reinstatement with full back wages and other benefits. It is this order which is being challenged before us by the Bank. The main contention on behalf the Bank is that the view taken by the tribunal that in every case where there may be some misconduct the Bank is bound to take disciplinary action under paragraph 521 of the Bank Award makes paragraph 522(1) completely otiose and is erroneous. Further it is contended that in the peculiar position obtaining in the cash department of the Bank whereby the Chief Cashier guarantees all the assistant cashiers working under him, the Bank did not want to go into the squabble between the Chief Cashier and the respondent and as the Chief Cashier had withdrawn the guarantee of the respondent, the Bank decided without apportioning any blame between the Chief Cashier and the respondent to act under paragraph 522(1) of the Bank Award. It is urged that paragraph 522(1) of the Bank Award is 57 446 particularly meant to meet situation,,; like this which may arise in a banking concern. The first question that arises therefore is the scope of the power of the Bank to act under paragraph 522(1) of the Bank Award, particularly in the peculiar situation prevailing in the cash department of the Bank. The position in the cash department of the banks was considered by the Bank Award in Chapter XXI with respect to giving of security. In para graphs 417 and 418, the existing practice in various banks is summarised and it takes one of three forms, namely (i) every member of the staff is to give security, (ii) the head cashier gives a guarantee on behalf of all the cashiers working under him, and (iii) where the treasurer system prevails, the treasurer enters into a contract with the bank and recommends the employees for employment in the cash department and guarantees their fidelity and they are thereupon appointed by the bank. The tribunal was not right in saying that the system which was prevailing in the Bank was peculiar to it and was not mentioned in the Bank Award. It will be seen that the system in the Bank is of the second kind noticed in the Bank Award where the Chief Cashier guarantees all those working under him. It is also mentioned in the Bank Award that the Chief Cashier generally takes security deposits from persons working under him but that did not appear to be the invariable rule, and in the Bank the Chief Cashier does not take any security from his subordinates. In such a system the Bank has to depend upon the security given by the Chief Cashier and his guarantee of the employees working under him. It is impossible to accept that this way of working was not known to the respondent. The Bank has produced the respondent 's application for employment and it is significant that it is addressed to the Chief Cashier and not to the management of the Bank and this bears out the contention of the Bank that the subordinates in the cash department are employed on the recommendation of the Chief Cashier who gives guarantee for them. Nor does the Bank 's contention that no one employed in the cash department leaves without permission till the cash is checked and locked up appears 447 improbable, for the practice seems necessary for the security of the cash department. Therefore when the Bank was faced with the report of the Chief Cashier dated 4 1 1957, it had to decide in the special circumstances of this case what action should be taken on that report. Two courses were open to it: it could have taken disciplinary action under paragraph 521 of the Bank Award or it could have acted under paragraph 522(1). The submission on behalf of the Bank is that it did not want to go into the squabble between the Chief Cashier and the respondent and as the Chief Cashier had withdrawn his guarantee with respect to the respondent it acted bona fide in proceeding under paragraph 522(1) and thus no question arose of its taking disciplinary action against the respondent. There is no doubt that an employer cannot dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal has no jurisdiction to inquire into the circumstances in which such termination of service simpliciter took place. Many standing orders have provisions similar to paragraph 522(1) of the Bank Award, and the scope of the power of the employer to act under such provisions has come up for consideration before labour tribunals many a time. In Buckingham and Carnatic Company Ltd., Etc., vs Workers of the Company, etc. (1), the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning any reason. It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the termination of service is a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. Further it held that where the termination of services is capricious, arbitrary or unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimisation or unfair labour practice. We are of opinion that this correctly lays down the scope of the power of the tribunal to (1) 448 interfere where service is terminated simpliciter under the provisions of a contract or of standing orders or of some award like the Bank Award. In order to judge this, the tribunal will have to go into all the circumstances which led to the termination simpliciter and an employer cannot say that it is not bound to disclose the circumstances before the tribunal. The form of the order of termination is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of dismissal for misconduct. It is therefore always open to the tribunal to go behind the form and look at the substance; and if it comes to the conclusion, for example, that though in form the order amounts to termination simpliciter it in reality cloaks a dismissal for misconduct it will be open to it to set it aside as a colourable exercise of the power. It is on these principles therefore that we have to judge the action taken by the Bank in this case. In the statement of claim put in by the workmen there was no allegation of victimisation or unfair labour practice. An affidavit was filed by the respondent later before the tribunal in which it was said that the Bank had acted mala fide in removing him from service. But in this affidavit nothing was said as to how the management of the Bank as distinct from the Chief Cashier had any reason to act mala fide against the respondent. The tribunal also has not recorded any finding that the action of the Bank in terminating the service of the respondent was mala fide or amounted to unfair labour practice or was a case of victimisation. It ordered reinstatement on the ground that this was a case where disciplinary action must and should have been taken and that was not done. In one part of the award the tribunal has remarked that if it is found that the Bank has merely in colourable exercise of the power made the order under paragraph 522(1) of the Bank Award, the order would not be sustainable. But there is no finding that the action taken in this case was a colourable exercise of the power under paragraph 522(1). It is, however, urged on behalf of the respondent that even though there is no such finding by the tribunal a perusal of the entire award seems 449 to show that this was what the tribunal thought inasmuch as it has said that this was a case in which disciplinary action must and should have been taken. However, as we read the award of the tribunal, the impression that we get is that its view was that where there is an allegation which may amount to misconduct against an employee of a bank, the procedure under paragraph 521 must always be followed and that the procedure under paragraph 522(1) can never be followed; and that is why the tribunal did not give any finding that the action of the Bank was a colourable exercise of the power under paragraph 522(1). But as learned counsel for the respondents has urged before us that the action in this case is in any case a colourable exercise of the power under paragraph 522(1) we propose to look into this aspect of the matter ourselves. It is true that there was some kind of allegation by the Chief Cashier which may amount to misconduct in this case and if we were satisfied that the termination of service of the respondent was due to that misconduct and that the form of the order was merely a cloak to avoid holding a proper enquiry under paragraph 521, no doubt there would have been no case for interference with the order of the tribunal. But this is a peculiar case depending upon a peculiar system prevalent in the cash department of the Bank. That system is that the Chief Cashier gives security for the entire working of the cash department and is unconditionally responsible for any loss that might be occasioned to the Bank in that department. The appointments in that department are made on the recommendation of the Chief Cashier and he gives a guarantee about each employee and is unconditionally responsible to the Bank for any shortage which might occur. It is in these circumstances that the Bank was faced with the report of the Chief Cashier by which for the reason given by him he withdrew the guarantee so far as the respondent was concerned. The security of the cash department was thus involved and if the Bank decided as it seems to have done in this case that it would not go into the squabble between the Chief Cashier and the respondent and would use paragraph 522(1) of the 450 Bank Award to terminate the service of the respondent it cannot be said that the Bank was exercising its power under paragraph 522(1) in a colourable manner. It may have honestly come to the conclusion that in this situation, as it was not possible for it to change its system in the cash department, there was no option for it but to dispense with the service of the respondent under paragraph 522(1) of the Bank Award without going into the rights and wrongs of the dispute between the Chief Cashier and the respondent. In the peculiar circumstances therefore obtaining in the cash department of the Bank it cannot in our opinion be said that the use of the power under paragraph 522(1) by the Bank in the present case was a colourable exercise of that power. Nor do we think that the failure of the Bank to provide alternative employment for the respondent would lead to any such inference,, for the Bank may very well be right when it says that it is a specialised institution and considering that the respondent has been working in one department for the last twenty years he was not fit to be absorbed in another department. In the circumstances of this case therefore we are not prepared to hold that the termination of the service of the respondent was a colourable exercise of the power under paragraph 522(1) of the Bank Award. The mention of the fact that the service was being terminated because the Chief Cashier had withdrawn the guarantee of the respondent in the notice of. discharge will not change the nature of the termination, for the reason was given obviously to avoid the charge that the termination was entirely capricious or arbitrary, and therefore not bona fide. We therefore allow the appeal and set aside the order of the tribunal by which the respondent was ordered to be reinstated with full back wages and other benefits. In the circumstances we pass no order as to costs. Appeal allowed.

The system of working in the cash department of the appellant Bank was that there was a Chief Cashier and there were about thirty Assistant Cashiers under him. The Chief Cashier had to give security for the work of the cash department; the Assistant Cashiers were employed upon being introduced by the Chief Cashier who guaranteed each such employee. There was long standing practice in the Bank that at the end of the day when the cash was locked up under the supervision of the Chief Cashier, all the assistant cashiers had to be present so that the cash could be checked before being locked up. In spite of reminders C, an Assistant Cashier, had been leaving the Bank without the permission of the Chief Cashier for some time before the cash was checked and locked up. The Chief Cashier reported the matter to the management, withdrew his guarantee in respect of C and stated that unless the services of C were dispensed with his conduct would affect the security of the cash department. The Bank terminated the services of C in accordance with the provisions of para. 522(1) of the All India Industrial Tribunal (Bank Disputes) Award, 1953, without holding any enquiry against C. The Industrial Tribunal to which the dispute was referred held that this was in fact and in reality a case of termination of services for misconduct and the Bank ought to have followed the procedure laid down in para. 521 of the Bank Award for taking disciplinary action, that the termination of service was illegal and improper and that C was entitled to reinstatement with full back wages and other benefits : Held, that the services of the Assistant Cashier were properly terminated by the Bank. There was no doubt that an employer could not dispense with the services of a permanent employee by mere notice and claim that the industrial tribunal had no jurisdiction to inquire into the circumstances of such termination. Even in a case of this kind the requirement of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair labour practice the tribunal had jurisdiction to interfere. Where the termination of service was capricious, arbitrary or unnecessarily harsh that may be cogent evidence of victimisation or unfair labour practice. In the present case the security of the 442 Bank was involved and if the Bank decided that it would not go into the squabble between the Chief Cashier and C and would use para. 522(1) of the Bank Award to terminate the services of C it could not be said the Bank was exercising its power under para. 522(1) in a. colourable manner. It was not necessary that in every case where there was an allegation of misconduct the procedure under para. 521 for taking disciplinary action should be followed. Buckingham and Carnatic Company Ltd. vs Workers ' of the COmpany, , approved.

ivil Appeal Nos. 3741 42 of 1982. From the Judgment and Order dated the 22nd October, 1982 of the Delhi High Court in C.W. Nos. 3577 and 3575 of 1982. V.M. Tarkunde, K.K. Venugopal, F.S. Nariman, Rajiv Datta and A.N. Bhanot for the Appellants. M.K. Banerjee, Additional Solicitor General and Miss A, Subhashini for the Respondent. 3 M.C. Bhandare and section Bhandare for the Respondent. The Order of the Court was delivered by CHINNAPPA REDDY, J. It transpires from the facts which we shall presently set out that the National Agricultural Cooperative Marketing Federation of India, NAFED for short, is a law unto itself and its officers are not unduly concerned either about carrying out the Export Trade Instructions issued by the Government of India or about filing truthful affidavits in the Supreme Court of India. On June 23, 1982, the Chief Controller of Imports and Exports, Ministry of Commerce, Government of India, issued Export Instruction No. 59 of 1982 on the subject of Export Policy of Niger Seeds during 1982 83. Paragraphs 2 and 3 of the Instruction are important and may be fully set out. They are as follows: "On a review of the position it has been decided to allow export of Niger Seeds within an overall ceiling of 10,000 (Ten thousand) tonnes through the canalising agency, viz. The National Agricultural Cooperative Marketing Federation of India Ltd. (NAFED) subject to minimum export price of Rs.8,500/ (Rupees eight thousand five hundred) per metric tonne. While the NAFED can continue to undertake exports themselves, private parties will also be allowed to export Niger Seeds as Associates of NAFED against firm commitments backed by irrevocable Letter of Credit subject to availability of ceiling. Export by private parties will be allowed on first come, first served basis. For this purpose, the exporters should register their contracts with the NAFED. The NAFED will stop registration of contracts as soon as the ceiling is exhausted. The NAFED will be responsible to monitor the ceiling and ensure that export of Niger Seeds not exceeding the overall quantity of 10,000 M.T. during 1982 83. In other words, the export will be allowed only against the balance quantity left unutilised out of the ceiling of 10,000 tonnes released vide Export Instruction No. 15/82 dated 7.4.1982. " 3 Pursuant to the Trade Instruction, a Trade Notice was published by the Joint Chief Controller of Imports and Exports on the same lines. We may mention here that out of the 10,000 tonnes, export of which was to be allowed, the NAFED reserved to itself the right to export 5,000 tonnes and decided to allow its associates to export the remaining 5,000 tonnes. On the faith of the Trade Notice, the petitioner in Special Leave Petition No. 10230 of 1982 entered into a contract with M/s Curtis (Confirmers) Limited of London on 7.7.82 for the sale and export of 1,000 metric tonnes of Indian Niger Seeds at the price of Rs. 8,560 per metric tonne, f.o.b. at any Indian Port. Shipment of 200 metric tonne was to be by October, 1982, 300 metric tonnes by February, 1983 and 500 metric tonnes by March, 1983 at buyer 's option with one month 's clear notice. The payment was to be by 'firm, irrevocable credit, to be opened through first class bank for 10% value now and for balance 90% to be opened 15 days prior to shipment '. The petitioner forwarded the contract to NAFED on 22.7.82 with a request that the contract may be registered and promising to send the letter of credit in two or three days. An Irrevocable Documentary Letter of Credit was duly opened by the Banque Nationale de Paris on behalf of the foreign buyer in favour of the petitioner for the amount of Rs.8,56,000 being 10% of the total value of the goods. The letter of credit also stipulated that within 15 days before each shipment, 'the credit value was to be increased to cover the amount of each shipment and that would be advised as an amendment to the credit '. Letter of Credit was forwarded to the NAFED by the petitioner on 26.7.82 with a request that the quantity of one thousand metric tonnes might be reserved for him for export. The NAFED sent a reply on 6.8.82. "We will revert in the matter shortly". On 3.9.82 the petitioner reminded the NAFED both by letter and telegram about his request for allotment of quota. The petitioner also sent a telegram to the Government of India that matters were unduly delayed though he had completed all the formalities. It appears that meanwhile, the NAFED wrote to the Ministry of Commerce, Government of India, on 17.9.82 informing the Government of India that it was for the NAFED and its Board of Directors to formulate guidelines regarding release and modalities of export. A copy of the guidelines formulated by the NAFED on 16.9.82 was enclosed. Two statements containing the names of the applicants for quotas 5 and other particulars were also enclosed. The first statement showed the names of 22 applicants whose requests for allotment of quotas were said to be backed by Letters of Credit. The appellants in the appeals before us are included in this list though this was denied in the counter affidavit filed on behalf of the NAFED. More about it later. The second statement contained a list of 34 names of applicants whose contracts were not backed by any Letters of Credit. On receipt of this letter the Government of India by their letter dated 30.9.82 objected to the guidelines said to have been approved by the NAFED as they were contrary to the guidelines issued by the Government of India. It was pointed out that according to the instructions of the Government of India the allotment had to be made on first come first served basis whereas according to the guidelines prepared by the NAFED the quotas were to be allotted by a committee consisting of the Chairman and officials of the NAFED, the Government and the trade, after considering all the applications received within a certain specified period. In fact the guidelines issued by the Government of India required that registration of applications should be stopped as soon as the ceiling limit was reached on a first come first served basis. Further, the guidelines prepared by the NAFED provided that Letters of Credit would have to be submitted within three weeks after allotment and this was again contrary to the guidelines issued by the Government of India which required that the Letters of Credit should be made available for registration of the requests for allotment of quotas. The letter of the Government again and again emphasised that quotas should be allotted on first come first served basis to exporters against firm commitments, backed by irrevocable Letters of Credit, subject to availability of ceiling. The Government asked the NAFED to refer to the fact that the letter of the NAFED itself showed that there were 22 parties who had registered their contracts for export, whose requests for allotment were backed by Letters of Credit and that the total of their requests came to 4,859 tonnes. On the other hand, it was pointed out, the requests of the other 34 parties for quotas were not backed by Letters of Credit. The Government of India finally instructed the NAFED to ensure that exports of Niger Seeds were undertaken in conformity with the instructions issued by the Government of India in E.I.No. 59/82 dated 23.6.82. The NAFED was reminded that while the NAFED 6 was only a canalising agency for export of Niger Seeds, the export would have to be undertaken by them only within the policy as laid. down by the Government. The NAFED was further told that a Trade Notice had already been issued by the Joint Controller of Imports and Exports and that it was not for the NAFED to issue another Trade Notice as proposed by it. The instructions of the Government of India reiterated by their letter dated 30.9.82 fell on deaf ears. The NAFED ignored the instructions of the Government of India and persisted in the error of its ways. At a meeting held on 16.10.82 the NAFED purported to select applicants for export quotas neither on a first come first served basis as originally announced in the Trade Notice nor only from among applicants whose contracts were backed by Letters of Credit. They proposed to give time to the selected applicants to produce Letters of Credit. The petitioners moved the Delhi High Court under Article 226 of the Constitution for redress but their Writ Petitions were dismissed in limine. They have come to this Court under Article 136 of the Constitution. As we were told that the applicants who had been selected for allotment of quotas had been able to secure a higher price from their buyers and, therefore, allotment of quotas to the petitioners would result in considerable loss of foreign exchange, we were anxious to know the present attitude of the Government of India in the matter. The Government of India has now appeared before us through the learned Additional Solicitor General and a counter affidavit has been filed on their behalf by a Deputy Secretary in the Ministry of Commerce. The NAFED has no clear or definite answer to the petitioners ' claim. First, it was said that the letter of Credit furnished by the petitioner did not conform to the requirement of the Trade Notice, but the argument was not pursued as it was seen from the file produced by the Government of India that the Letters of Credit furnished by such of the selected applicants for quotas as did furnish Letters of Credit were all similar to those produced by the petitioners. In fact, some of the chosen ones furnished no Letters of Credit and it was proposed to give them time for the production of Letters of Credit. This, of course, was not in accordance with the terms stipulated by the Trade Notice. It is also clear from the letters which the NAFED addressed to the Govern 7 ment of India that it was never for a moment doubted by anyone that the Letters of Credit produced by the petitioners conformed to the requirements of the Trade Notice. The present stand is a clear after thought and a pretence. In the counter affidavit filed on behalf of the NAFED it was stated that 22 applicants for allotment claimed that they had firm contracts backed by Letters of Credit for full value. The total quantity covered by these applications was 4,859 tonnes. It was asserted that the petitioners did not fall in this category. It was stated that the petitioners came in the category of those who had secured a price of Rs. 8,600 per tonne but whose contracts were not backed by Letters of contract. The Learned Counsel who appeared for the NAFED also submitted before us, on instructions, that the petitioners were not among the 22 applicants whose contracts were considered by the NAFED as backed by Letters of Credit. But a perusal of the file produced by the Government of India exposed the statement made in the affidavit filed on behalf of the NAFED as false. The NAFED had itself prepared a statement showing "Enquiries received from private parties backed by Letters of Credit for export of Niger Seeds". This statement was sent to the Government of India along with its letter dated 17.9.82 and it contains a list of twenty two names. Both the appellants in the appeals figure in it. It is clear to us that the statement in the counter affidavit is false. It is also clear to us that the Learned Counsel was misled and wrongly instructed to argue before us that the appellants were not included in the list of twenty two. It appeared to us that a copy of the letter dated 17.9.82 of the NAFED to the Government of India was not made available even to the Learned Counsel. We repeatedly asked for it and we could ultimately get it from the file produced by the Government of India, One of the submissions made to us was that the selected applicants had secured a higher price per tonne and that would help to earn more foreign exchange. In the first place their contracts are not backed by Letters of Credit as stipulated by the Trade Notice and they were not eligible for registration. In the second place the ceiling had already been reached and for that reason also they could not be registered. The counter affidavit filed by the Government of India fully substantiates the claim of the appellants that the NAFED had 8 disregarded the trade instructions issued by the Government of India as well as the Trade Notice issued pursuant to the trade instructions. In paragraph 27 of the counter affidavit, it is expressly stated "I submit that the answering respondents have no objection if relief is granted to the petitioners provided they fulfil the requirements of the export instructions issued by respondents 1,2 and 4". In the circumstances we have no option but to allow these appeals. Necessary directions have already been issued by us on 29.11.82. The appellants are entitled to get their costs in each of these appeals from the 6th respondent, the National Agricultural Co operative Marketing Federation Ltd. We fix the costs at Rs. 5.000/ in each appeal.

In June 1982 the Chief Controller of Imports and Exports issued export instructions on the subject of Export Policy of Niger Seeds during 1982 83. Paragraphs 2 and 3 of the instructions stated that the Government had decided to allow export of Niger Seeds within an overall ceiling of 10,000 metric tonnes through the National Agricultural Cooperative Marketing Federation of India (NAFED) subject to a minimum export price of Rs. 8,500 per metric tonne. In addition to NAFED, private exporters who registered their contracts with NAFED were also allowed to export the seeds on the basis of first come first served, against firm commitments backed by irrevocable letters of credit, subject to availability of ceiling. It was also stated that the NAFED would be responsible to monitor the ceiling and ensure that export of the seeds did not exceed the overall quantity of 10,000 metric tonnes during the year. A Trade Notice on these lines was issued by the Joint Chief Controller of Imports and Exports. On the faith of the trade notice the petitioner entered into contract with a foreign buyer who opened a firm irrevocable letter of credit in favour of the petitioner. The petitioner thereupon requested the NAFED to register the contract and that one thousand tonnes of seed might be reserved for him for export. About six weeks later the petitioner reminded the NAFED by letter and telegram about his request for allotment of the quota. In the meanwhile the NAFED wrote to the Government of India, Ministry of Commerce that it was for NAFED and its Board of Directors to formulate guidelines regarding the release and modalities of export of the seeds and it forwarded two statements one showing names of 22 applicants whose requests for allotment of quotas were said to be backed by letters of credit and the other containing list of 34 names of applicants whose contracts were not backed by letters of credit. The petitioner 's name was included in the first list. Reiterating the earlier instructions the Government wrote to the NAFED that the allotment of quotas should be in conformity with the instructions and the Trade Notice and that it was not for the NAFED to issue another Trade Notice. 2 In disregard of the instructions the NAFED selected certain applicants and gave time to them to produce letters of credit. The petitioners were not in this list. The Delhi High Court dismissed in limine the petitioners ' petition under article 226 of the Constitution. The petitioners thereupon filed their petition under article 136 of the Constitution. Allowing the petition, ^ HELD: While the petitioners satisfy all the requirements of the Trade Notice some of the applicants chosen by the NAFED for allotment of quota did not furnish the letters of credit and the NAFED 's action in giving them time for their production was not in accordance with the terms stipulated by the Trade Notice. [6H] The file produced by the Government of India exposed the statement made in the NAFED 's affidavit that the petitioners were not in the list of 22 as false. Its counsel was misled and wrongly instructed to argue that the petitioners were not included in that list. But the petitioners in fact figured in the statement entitled "enquiries received from private parties backed by letters of credit for export of Niger seeds" prepared by the NAFED and sent to the Government of India. [7 E] Even if the claim of NAFED that the selected applicants had secured a higher price and that would help to earn more foreign exchange is correct, they were not eligible for registration firstly because their contracts were not backed by letter of credit in terms of the Trade Notice and secondly because the ceiling had already been reached. [7 G] The counter affidavit filed by the Government of India fully substantiates the claim of the petitioners that the NAFED had disregarded the trade instructions issued by the Government of India as well as the Trade Notice which was issued pursuant to the trade instructions.

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

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

iminal Appeal No. 65 of 1958. Appeal by special leave from the judgment and order dated April 11, 1956, of the Calcutta High Court in Criminal Revision No. 1584 of 1955. N. C. Chatterjee, Arun Kumar Dutta and D. N. Mukherjee, for the appellant. K.B. Bagchi and S.N. Mukherjee, for the respondents. January 16. The Judgment of the Court was delivered by SINHA, C.J. This appeal by special leave is directed against the judgment and order of the High Court of Judicature at Calcutta, dated April 11, 1956, whereby the appellant 's claim of absolute privilege as a member of the Bengal Legislative Assembly was rejected and the prosecution launched against him under section 500, Indian Penal Code, was allowed to proceed. The facts of this case are not in doubt or dispute and may shortly be stated as follows. The appellant is a citizen of India and an elected member of the West Bengal Legislative Assembly. He is also a medical practitioner at Ghatal in the Midnapore District of West Bengal. In January, 1954, the appellant gave notice of his intention to ask certain questions in the Assembly. Those questions were disallowed in accordance with the rules of procedure for the conduct of business of the Assembly. In February, 1954, the appellant was informed that the questions proposed by him had been disallowed. The appellant published 488 the questions that had been disallowed in a local journal called Janamat, in its issue of February 28, 1955. In July, 1955, the first respondent, whose conduct formed the subject matter of the questions and who was then functioning as a Sub divisional Magistrate, filed a complaint against the appellant and two others, the editor, and the printer and publisher respectively of the journal aforesaid. The petition of complaint alleged that the appellant had made and published scandalous imputations against him intending them to be read by members of the public, that those imputations were false and unfounded and had been made with the definite intention of harming or with the knowledge or having reason to believe that they would harm the reputation of the complainant and that the complainant felt greatly aggrieved and harmed in mind and reputation. He also alleged that being a Government servant, the, complainant had to obtain the necessary permission from the Government for instituting legal proceedings for the vindication of his character as a public servant and that accounted for the delay in filing the petition of complaint. The petition of complaint charged the appellant with an offence under section 500 of the Indian Penal Code and the second and third accused, who have been cited as respondents 2 and 3 in this Court, under section 501 of the Indian Penal Code. After several adjournments, the petitioner raised, by way of preliminary objection to the .criminal prosecution, the question of his absolute privilege and immunity from prosecution under the provision of the Constitution. The learned Magistrate by his order dated October II,, 1955, overruled the objection and held that the privilege claimed by the accused was not an unqualified one. He relied on a judgment of the Calcutta High Court in the case of Dr. Suresh Chandra Banerjee vs Punit Goala (1) in support of his conclusion that the first accused before him, now appellant, was not entitled to the privilege and immunity claimed by him. Thereafter, the appellant moved the High Court under article 228 of the Constitution for having the case withdrawn to the (1) High Court for determination of the constitutional question raised by him by way of defence, but that, application was dismissed by a Bench of the High ' Court on November 9, 1955, presumably on the ground that the. case did not involve any substantial question of law as; to the interpretation of the Constitution. Not daunted by the adverse order aforesaid of the Bench of the High Court, the petitioner again moved the High Court and obtained a rule on several grounds including the question of the proceedings being barred by the provisions of article 194 of the Constitution. The learned Single Judge, who dealt with the case on this occasion, noticed the position that strictly speaking the constitutional question could not be allowed to be reagitated in view of the Bench decision aforesaid. But the learned Judge all the same dealt with the points raised by the appellant including the question arising under article 194 of the Cotistitution. The learned Judge dismissed the application holding that a member of the Legislative Assembly had no absolute privilege in respect of the questions sought to be asked by him, which had been disallowed but he had published them all the same. It was also pointed out that the questions had never been asked in the House and that, therefore, could not be said to form part of the proceedings of the House. He further held that the publication in the journal at the instance of the appellant could by no means be said to have been under the authority of the House. The appellant moved the learned Judge for a certificate under article 132(1) of the Constitution, but that application was also refused on the ground that the case did not involve any substantial question of law as respects the interpretation of the Constitution. The appellant then moved this Court and obtained special leave to appeal from the judgment of the High Court refusing the claim of privilege. He also obtained stay of fur. ther proceedings in the Court of the Magistrate. The hearing of the appeal was ordered to be expedited That order was passed on October 1, 1956, but notwithstanding the order of expedition, the case came to be heard only four years later, 490 In this Court, it has been contended on behalf of the appellant that the learned Judge below had erred in his interpretation of the provisions of article 194 of the Constitution and that on a proper construction ' of; those provisions it should have been held (1) that questions sought to be asked by a member of a Legislative Assembly, even though disallowed by the Speaker, formed part of the proceedings of the House, and, as such, their publication would not attract the provisions of the Indian Penal Code; (2) the provisions of article 194 should be liberally construed in favour of persons like elected members of the Assembly who are rendering public service not only by making speeches and asking questions in the Assembly, but also by publishing them in the public press with a view to apprising the country and, particularly the constituency of what had been happening in the House. In other words, it Was claimed that there was an absolute privilege in favour of a member and that, therefore, he could not be prosecuted for having published the questions he sought to put, but had been disallowed by the Speaker. Do the provisions of article 194 of the Constitution lend any support to the contentions aforesaid raised on behalf of the appellant? The first clause of article 194 does not call for any comment in, this case because no question as regards freedom of speech in the Legislature of a State has been raised. Clause (2) of the Article has, firstly, laid down a bar against any proceedings, civil or criminal against any" member of a Legislature of a State in respect of anything said or any vote given by him in the Legislature or any Com mittee thereof; and secondly, that no person shall be liable in a civil or criminal proceeding in respect of the publication of any report, paper, votes or proceedings under the authority of a House of such a Legislature. It is not contended that the publication complained against in this case was under the authority of the Legislative Assembly of West Bengal. So the second part of the second clause of; article 194 cannot be pressed in aid of the appellants contention. As regards the first part of the second clause, can it be said that the publication, which forms the subject matter of the 491 prosecution in,, this case, can come within the purview of ', anything said or any vote given " by a member of. the Legislative Assembly? The answer must be in the ' negative. It is, therefore, manifest that el. (2) of article 194 is equally of no assistance to the appellant. Naturally, therefore, reliance was placed in the course of arguments in this Court on the provisions of cl. (3) of article 194. Does the publication of a disallowed question by a member of an Assembly come within the powers, privileges and immunities of the members of the House ? The answer to this question depends upon finding out what are the powers, privileges. and immunities of the members of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution. This Court in the case of M. section M. Sharma vs Shri Sri Krishna Sinha (1) has considered in great detail those immunities with respect to the publication of a portion of a speech which was directed by the Speaker to be expunged from the proceedings of the House. This Court has held that the publication of such a portion of the proceedings is not within the privilege attaching to the publication of a faithful report of the proceedings of a House of the State Legislature. That case was not concerned with the penal law of the country. In that case the Court was concerned with ascertaining the powers of the Assembly to punish for contempt of the House with reference to the privileges and immunities of a House of the Legislature of a State. Hence, that decision does not assist us in determining the present controversy. If we turn to the legal position in England with reference to the House of Commons, it is clear that the immunity of a member of the House of Commons is in respect of the speeches made by him in Parliament, but it does not extend to the publication of the debate outside Parliament. If a member of a House of Commons ' _publishes his speech made in the House separately from the rest of the proceedings in the House, he will be liable for defamation if his speech contains matters defamatory of any person. In the celebrated case of R. vs Lord Abingdon (2),,Lord Kenyon had decided that a speech which had been made in (1) [1959] Suppl. 1 S.C.R. 806, (2) ; 170 E.R.337, 492 the House of Lords was not privileged if published separately from the rest of the debate. In May Parliamentary Practice, 16th Edition, by Lord Campion, occur the following statements in respect of the two well known cases of Abingdon (1) and Creevey, Journal of the House of Commons (1912 13) 704: "Abingdon 's case, (1). An information was filed against Lord Abingdon for a libel. He had accused his attorney of improper professional conduct,, in a: speech delivered in the House of Lords, which he afterwards published in several newspapers at his own expense. Lord Abingdon pleaded his own case in the Court of King 's Bench, and contended that he had a right to print what he had, by the Law of Parliament, a right to speak; but Lord Kenyon said that a member of Parliament had certainly a, right to publish his speech, but that speech should not be made a vehicle of slander against any individual; if it was, it was a libel. The Court gave judgment that his lordship should be imprisoned for three months, pay a fine of pound 100, and find, security for his good behaviour. Creevey 's case (2), 1813. Creevey, a member of the House of Commons, had made a charge against an individual in the House, and incorrect reports of his speech having appeared in several newspapers, Mr. Creevey sent a correct report to the editor of a newspaper, with a request that he would publish it. Upon an information filed against him, the jury found the defendant guilty of libel, and the King 's Bench refused an application for a new, trial (See Lord Ellenborough 's judgment in Rex vs Creevey (2)). Mr. Creevey, who had been fined pound 100, complained to the House of the proceedings of the King 's Bench; but the House refused to admit that they were a breach of privilege. " It is clear on a reference to the law in England in respect of the privileges and immunities of the House of Commons that there is no absolute privilege attaching to the publication of extracts from proceedings in the House of Commons. So far as a member of the House of Commons is concerned, he has an absolute privilege (1) (1794) Esp. 226; M, &section 2 73; 493 in respect of what he has spoken within the four walls of the House, but there is only a qualified privilege in his favour even in respect of what he has himself said, in the House, if he causes the same to be published in the public press. The case of publication of proceedings of Parliament, not under the authority of the House, stands on the same footing as the publication of proceedings in courts of justice. That was made clear by Cockburn, C.J. in the case of Wason vs Walter (1). Explaining why the publication of a single speech in the proceedings in the House would not be absolutely privileged, the learned Chief Justice observed: " It is to be observed that the analogy between the case of reports of proceedings of courts of justice and those of proceedings in Parliament being complete, all the limitations placed on the one to prevent injustice to individuals will necessarily attach on the other; a garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection. So long as Parliament does not crystallise the legal position by its own legislation, the privileges, powers and immunities of a House of a State Legislature or Parliament or of its members are the same as those of the House of Commons, as stated above. In the present case the appellant sought to put certain questions bearing upon the conduct of the complainant, the first respondent, in this case. According to r. 27 of the Assembly Procedural Rules, certain conditions have to be fulfilled in order that a question may be admissible. Amongst other requirements of the rule, one of the conditions is that it must not contain any imputation or imply a charge of a personal character. Rule 29 of those rules authorises the Speaker to decide on the admissibility of a question with reference to the provisions of the rules and lays down that the Speaker " shall disallow any question when, in his opinion, it is an abuse of the right of questioning, or is in contravention of those provisions. " In view of the conclusion we have already reached, namely, that there is no absolute privilege, even in favour of a member of the Legislature, in respect of a publication not of the entire 63 (1) , 94. proceedings, but of extracts from them, it is not necessary for us to decide the question whether disallowed questions can be said to form part of the proceedings of a House of Legislature. In this connection, it is also relevant to note that we are concerned in this case with a criminal prosecution for defamation. The law of defamation has been dealt with in sections 499 and 500 of the Indian Penal Code. Section 499 contains a number of exceptions. Those specified exceptions lay down what is not defamation. The fourth exception says that it is not defamation to publish a substantially true report of the proceedings of a court of justice, but does not make any such concession in respect of proceedings of a House of Legislature or Parliament. The question naturally arises how far the rule in Wason 's case (1) can be applied to criminal prosecutions in India, but as this aspect of the controversy was not canvassed at the Bar, we need not say anything about it, as it is not necessary for the decision of this case. The legal position is undisputed that unless the appellant can make out an absolute privilege, in his own favour, in respect of the publication which is the subject matter of the charge in this case, the prosecution against him cannot be quashed. As we have held, that he has no such absolute privilege, in agreement with the High Court, he must take his trial and enter upon his defence, such as he may have. As the evidence pro and con has not been recorded in full, the arguments at the Bar had naturally to be confined to the purely legal question of the absolute privilege claimed. It need hardly be added that we do not express any opinion on the merits of the controversy which will now be gone into by the learned Magistrate before whom the case has been pending all these years. For the reasons given above, it must be held that there is no merit in this appeal. It is accordingly dismissed. The pending prosecution, which has been held up for so long, it is expected,, will now be proceeded with without any avoidable delay. Appeal dismissed.

The appellant, who was an elected member of the West Bengal Legislative Assembly, gave notice of his intention to put certain questions in the Assembly and on those questions being disallowed by the Speaker published them in a journal called Janamat of Ghatal, his own constituency. The first respondent who was then the Sub Divisional Magistrate of Ghatal and whose conduct was the subject matter of some of those questions, filed a complaint against the appellant and two others, the editor and the printer and publisher of the janamat, under sections 500 and 501 of the Indian Penal Code. The appellant pleaded privilege and immunity under article 194 of the Constitution as a bar to criminal prosecution. The trial Magistrate as also the High Court found against him. On appeal by special leave it was claimed on his behalf that he had an absolute privilege under article 194 of the Constitution to publish the disallowed questions and could not be prosecuted therefor. Held, that the claim of immunity under article 194 of the Constitution must be negatived. Clause (1) of article 194 had no application since the matter was clearly outside the scope of that clause. Clause (2) of that Article was also inapplicable since it was not the case of the appellant that the publication was under the authority of the Legislative Assembly and it could not also be said that it came within the expression " anything said or any vote given " in that clause. The publication of a disallowed question by a member of the Assembly does not come within the powers, privileges and immunities enjoyed by a member of the House of Commons and, consequently, cl. (3) of article 194 also cannot be of any help to the appellant. The immunity enjoyed by a member of the House of Commons is clearly confined to speeches made in Parliament and does not extend to the publication of the debate outside. If he publishes his speech, made in the House, separately from the rest of the proceedings of the House, he is liable for defamation, in case.it is defamatory. Abingdon 's case, Espinasse 's Reports, Nisi Prius 1793 1810, 228 and Creevey 's case, I Maule and Selwyn 's Reports, King 's Bench, 1813 1817, 273, referred to. 487 There is no absolute privilege attaching to the publication of extracts from the proceedings in the House of Commons and a member, who has absolute privilege in respect of his speech in) the House itself, can claim only a qualified privilege in respect of it if he causes the same to be published in the public press. Quaere: Whether publication of parliamentary proceedings, not authorised by the House, stands on the same footing as the publication of proceedings in a court of law. Wason vs Walter, (1868 69) L.R. 4 Q.B. 73, referred to. M. section M. Sharma vs Sri Krishna Sinha, [1959] SUPP. 1 S.C.R. 806, distinguished. Dr. Suresh Chandra Banerjee vs Punit Goala, , referred to.

No. 2381 of 1968. (From the Judgment and Order dated the 30th March 1965 of the Andhra Pradesh High Court in Appeal against Order No. 443 of 1963) P. Ram Reddy, K. Jayaram and K. Ram Kumar, for the appellant. B.R. Agarwala, for respondents. The Judgment of the Court was delivered by FAZAL ALI, J. This appeal by certificate arises out of execution proceedings in respect of a decree obtained by the respondents/decreeholders. It appears that the 5th re spondent/decree holder Siddam Pedda Rami Reddi hereinafter referred to as "SP" Reddi obtained a decree in O.S. No. 15 of 1949 from the Court of Sub Judge Kurnool against the judgment debtor Pujari Subbarayudu hereinafter referred to as "Pujari" or "judgment debtor". The 5th respondent had also obtained another money decree against Pujari in another suit being O.S. No. 19 of 1953. The 5th respondent/decree holder filed Execution Proceedings No. 24 of 1953 in the Trial Court for selling the properties be longing to the judgment debtor in order to satisfy the decree in O.S. No. 15 of 1949 and he also applied for per mission to bid at the auction sale. The first sale was held on October 12, 1954 at which the lands situated in villages Devanoor and Gudipadu were put to sale. But this sale was set aside as there was some delay in payment of the sale price. Consequently a second sale was held on March 2, 1955 at which the 5th respondent SPR Reddi purchased the lands situated in village Davanoor and the appellant/auc tion purchaser T.P.S. Reddy purchased the lands in village Gudipadu. It is also not disputed that in the warrant of sale as also the sale proclamation, the decretal amount for which the properties were to be sold was mentioned as Rs. 16,715 8 0. The sale of lands in village 694 Devanoor alone fetched a sum of Rs. 16,880/ at which the sale was knocked down. Thus it would appear that the sale proceeds of the lands in village Devanoor were sufficient to satisfy the decretal amount mentioned in the proclamation of sale. Despite this fact, the Court proceeded to sell the properties of the judgment debtor in village Gudipadu which fetched Rs. 12,500/ and which were purchased by the appellant/auction purchaser. On April 20, 1955 the decree holder obtained an order from the Court for rateable distribution of the sale pro ceeds. In other words, this order was passed by the Court not before the sale so that the entire decretal amount could have been mentioned in the sale proclamation but a few days after the sale had already taken place. This is rather an important aspect of the matter which appears to have been completely overlooked by the Trial Court. On March 31, 1955 the judgment debtor Pujari filed an application to set aside the sale on various grounds, namely, that the sale was vitiated by material irregularities which caused serious prejudice to the judgment debtor and that the properties sold by the Court were valuable properties and the same were grossly undervalued in the sale proclamation. Finally it was contended by the judgment debtor that once the sale of the properties in village Devanoor was sufficient to satisfy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of 0.21 r. 64 of the Code of Civil Procedure hereinafter referred to as the Code instead of continuing the sale of the properties in village Gudipadu. The Trial Court, however, after heating the objections of the decree holder rejected the application of the judgment debtor. Thereafter the judgment debtor preferred an appeal before the High Court which, while negativing the grounds taken by the judgment debtor regarding the material irregularities in the conduct of sale or the under valuation of the properties, accepted the plea of the judgment debtor regarding the non compliance with the provisions of 0.21 r. 64 of the Code. The High Court held, and in our opinion rightly, that as the sale of the properties in village Devanoor fetched an amount which was sufficient to satisfy the amount mentioned in the sale warrant, the Executing Court was not justified in proceeding with the sale of the properties in village Gudipadu and should have stopped the sale. The High Court accordingly accepted the plea of the judgment debtor and set aside the sale with respect to the properties situated in village Gudipadu, but granted a certificate to the appellant to file an appeal in this Court and hence this appeal before us. In this appeal the facts are more or less undisputed and the only serious point argued by the appellant is that the High Court was in error in setting aside the sale because even if the entire decretal amount was not mentioned in the sale proclamation, that was at best an irregularity which did not cause any prejudice to the judgment debtor. It was also argued by learned counsel for the appellant that the judgment debtor did not raise any objection before the Executing Court against continuing the sale of other proper ties situated in village Gudipadu. It was next submitted that the 5th respondent/decreeholder had obtained another decree in O.S 19 of 1953 and the total 695 amount under the two decrees fully justified the selling of the properties in village Gudipadu also, particularly when the decree holder had taken an order from the Executing Court for rateable distribution of the sale proceeds. It is true that the High Court has not considered this aspect of the matter, but in our opinion the contentions raised by the appellant are wholly untenable. It is not disputed that the warrant of sale was prepared long after the 5th respondent/decreeholder had obtained the second decree in O.S. 19 of 1953 and yet no attempt was made by the decree holder to approach the Court for amending the decretal amount mentioned in the sale proclamation, so as to include the decretal amount not only of the decree in the first suit No. O.S. 15 of 1949 but also of the decree in the second suit in O.S. 19 of 1953. In these circumstances, therefore, under the provisions of 0.21 r. 64 of the Code when the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recov ery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from O.21 r. 64.of the Code which may be extracted thus: "Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shah be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same. " Under this provision the Executing Court derives jurisdic tion to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words, where the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. In the instant case, we have already indicated that the sale of lands in village Devanoor alone fetched a sum of Rs. 16880 which was more than sufficient to satis fy the amount of Rs, 16,715 8 0 mentioned in the sate proclamation. It is true that the decree holder had ob tained another decree in O.S. No. 19 of 1953, but there is nothing to show that the decree holder had approached the Court for including the second decretal amount in the proc lamation of sale. In these circumstances, therefore, we are clearly of the opinion that the Executing Court was not justified, in the facts and circumstances of the present case, in selling the properties situated in village Gudipa du. The fact that the judgment debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non compliance with the provisions of O. 21 r. 64 of the Code was sufficient to vitiate the same so far as the 696 properties situated in village Gudipadu were concerned. For these reasons the contentions raised by counsel for the appellant must be overruled. This, however, does not put an end to the issue, be cause the High Court, while setting aside the sale, has passed no order for adjusting the equities between the parties. According to the appellant he had taken possession of the properties purchased by him at the auction sale and had made substantial improvements. If the sale of these properties is to be set aside, the appellant will have to return these properties to the judgment debtor, but he will be entitled to receive the value of improvement 's made by him during the time he was in possession of those properties in addition to the return of the sum of Rs. 12,500/ . The Executing Court will have to hold an inquiry into the matter and determine the value of the improvements made by the appellant which will have to be paid to him. The appellant will not be entitled to any interest on the value of the improvements if he is found to be in possession of the properties. If, however, the Executing Court finds that the auction purchaser was not in possession of the properties and the properties continued to be in possession of the judgment debtor, then the question of the value of improve ments will naturally not arise. In that event the judg ment debtor will have to refund the amount of Rs. 12,500/ to the appellant with interest at the rate of 12% per annum from the date of sale upto the date of refund. For these reasons, therefore, the appeal is dismissed with the modification indicated above and the case is sent back to the Executing Court to hold an inquiry into the matter. In the special and peculiar circumstances of the present case, we make no order as to costs. S.R. Appeal dismissed.

Order XXI Rule 64 of the C.P.C. lays down that "any court executing a decree may order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale, or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same. " The 5th respondent/decree holder, S.P.R. Reddy obtained two decrees against the Judgment debtor Pujari Subbarayudu in two suits viz.; U.S. 15 of 1949 and O.S. 19 of 1953. He filed execution proceedings No. 24 of 1953 in the trial Court for selling the properties belonging to the judgment debtor in Devanoor and Gudipadu villages in order to satis fy the decree in U.S. 15 of 1949. He also applied for permission to bid at the auction sale. In the auction sale held on March 2, 1955, the 5th respondent purchased the lands situated in village Devanoor for a sum of Rs. 16,880/ . Despite the fact that the sale proceeds of the lands in village Devanoor alone was sufficient to satisfy the decretal amount mentioned in the warrant of sale and the proclamation of sale viz.; Rs. 16,715.50, The Court proceed ed to sell the properties of the judgment debtor in village Gudipadu which fetched Rs. 12,500/ and which were purchased by the appellant auction purchaser. The judg ment debtor filed an application on March 31, 1955 to set aside the sale contending, inter alia, that once the sale of the properties in village Devanoor was sufficient to satis fy the amount mentioned in the sale proclamation, the Court should have stopped the sale as required by the mandatory provisions of Order XXI Rule 64 of the C.P.C. The Trial Court rejected the said application; whereupon the decree holder on April 20, 1955 obtained an order from the court for rateable distribution of the sale proceeds. In appeal the High Court accepted the plea of the judgment debtor regarding non compliance with the provisions of O.XXI Rule 64 C.P.C. and set aside the sale with respect to the proper ties situated in village Gudipadu. Dismissing the appeal by certificate the Court, HELD: (1) The High Court rightly held that as the sale of the properties in village Devanoor fetched an amount mentioned in the sale warrant. the Executing Court was not justified in proceeding with the sale of the properties in village Gudipadu and should have stopped the sale. [694 F] (2) The logical corollary which flows from O.XXI Rule 64 of the Code is that where the amount specified in the proc lamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. [695 C D] (3) Under Order XXI Rule 64, the Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words "necessary to satisfy the decree" clearly indicate that no s,de can be mentioned in the sale proclamation and is sufficient to satisfy the decree, no allowed beyond the decretal amount mentioned in the sale proclamation. In other words. where the sale fetches a price equal to or higher than the amount further sale should be held and the court should stop at that stage. [695 E F] (4) In the facts and circumstances of the present case, there being nothing to show that the decree holder had approached the court for including the second decretal amount obtained in O.S. 19 of 1953 in the proclamation of sale, the 693 Executing Court was not justified in selling the properties situated in village Gudipadu. The fact that the Judgment debtor did not raise an objection on this ground before the Executing Court rs not sufficient to put him out of court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non compliance with the provisions of O.XXI, Rule 64 of the Code was sufficient to vitiate the same so far as properties situated in village Gudapadu were concerned. [695 G H, 696 A] (5) The Court remitted the matter to the Executing Court for an inquiry with the following directions: (i) The appellant will have to return the properties in village Gudipadu to the judgment debtor and he will be entitled to receive the value of improvements made by him during the time he was in possession of these properties, as determined by the Executing Court in addition to Rs. 12,500/ . (ii) He will not he entitled to any interest on the value of the improvements, if he is found to be in posses sion of the property. (iii) If the Executing Court finds that the auction purchaser was not in possession of the properties, the judgment debtor will have to refund the amount of Rs. 12,500/ to the appellant with interest at the rate of 12 per cent per annum from the date of sale upto the date of refund. [696 B E]

230 239, 241, 249 251, 256, 257, 290, 303, 306 349, 351, 352, 355 357 of 1955 and Nos. 33 & 36 of 1956. Petitions under Article 32 of the Constitution of India. 480 Achhru Ram and Naunit Lal, for the petitioners in Petitions Nos. 239, 241 & 251 of 1955. Naunit Lal, for the petitioners in Petitions Nos. 249 & 250 of 1955. B.D. Sharma and K. L. Mehta, for the petitioners in Petitions Nos. 290, 303, 306 349, 351, 355 357 of 1955 and 36 of 1956. B. D. Sharma, for the petitioner in Petition No. 33 of 1956. K. L. Mehta, for the petitioner in Petition No. 352 of 1955. I. N. Shroff, for the petitioners in Petitions Nos. 230 238, 256 257 of 1955. H. N. Sanyal, Additional Solicitor General of India, M. N. Kaul and T. M. Sen, for the respondents. November 14. The Judgment of the Court was delivered by WANCHOO, J. These sixty nine petitions under article 32 of the Constitution by various land owners in the former State of Ajmer attack the validity of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (Ajmer III of 1955) (hereinafter called the Act). The petitions disclose a large number of grounds on which the validity of the Act is impugned; but learned counsel, Mr. Achhru Ram and Mr. B. D. Sharma, appearing for various petitioners, have confined their arguments only to certain grounds raised in the peti tions. We propose, therefore, to consider only the grounds urged before us. The Act was passed by the Ajmer Legislative Assembly and received the assent of the President on May 29, 1955. Section 4 of the Act provided for vesting of all estates held by intermediaries, as defined in the Act, in the State Government from a date to be notified. The Act came into force on June 23, 1955, and August 1, 1955, was notified as the date on which the estates held by intermediaries would vest in the State Government. The present petitions followed on the fixing of this date. It is not disputed that the Act is protected under article 31 A(l)(a) of the Constitution inasmuch as it is a 481 piece of legislation for acquisition by the State of any estate or of any rights therein. The argument is that in spite of this protection, either the whole Act or certain provisions of it are invalid, for reasons urged by learned counsel on behalf of the petitioners. Mr. Achhru Ram attacks only sections 8 and 38 of the Act. Mr. Sharma attacks the competency of the Ajmer legislature to pass the Act and also urges that in any case it does not apply to the case of jagirdars, one of whom is a petitioner before us in Petition No. 33 of 1956. These four are the only grounds that have been urged before us, and we shall deal with them seriatim. Re. section 8. Section 8 is in these terms " Where an intermediary has on or after the 1st day of June, 1950, (a) granted a lease of any land in the estate or any part thereof for any non agricultural purposes other than mining for a period of three years or more; or (b) granted a lease or 'entered into a contract relating to any forest, fishery or quarry in his estate for a period of three years or more ; Or (c)granted a lease for the cultivation of any area of bir or pasture or waste land ; and the Collector is satisfied that such lease or contract was not made or entered into in the normal course of management but in anticipation of legislation for the Abolition of Intermediaries, the Collector may, subject to any rules made under this Act, by order in writing, cancel the lease or the contract as the case may be." It provides for cancellation of certain leases granted on or after June 1, 1950, where the lease is for a period of three years or more with respect to matters dealt with in cls. (a) and (b) and where the lease is for any period in respect of matters dealt with in cl. The Collector has been given the power to cancel such leases if they are not, made in the normal course of management but in " anticipation of legislation for abolition of intermediaries. The argument is that 61 482 there can be no retrospective cancellation of leases granted at a time when the land owner had a right to dispose of his property as he liked under article 19(1)(f) and there was no restriction on such right. It is said that in certain contingencies the cancellation of a lease might expose the land owner to the risk of paying compensation to the lessee, particularly in cases where the land owner might have realised the entire lease money in one lump sum for a lease of more than three years ' duration. We are of opinion that there is no force in this contention. The legislature was certainly competent, under entry 18 of List 11 of the Seventh Schedule to the Constitution relating to Land, to make this provision. It cannot be disputed that the legislature has power in appropriate cases to pass even retrospective legislation. Provisions for cancellation of instruments already executed are not unknown to law; for example, the Insolvency Acts provide for setting aside transfers made by insolvents under certain circumstances. Therefore, the Ajmer Legislature certainly had the power to enact such a provision, and in the circumstances in which this provision has been made in the Act, it cannot be said that it is not protected under article 31 A. The provision is not an independent provision; it is merely ancillary in character enacted for carrying out the objects of the Act more effectively. The intention of the legislature was to give power to the Collector after the estates vested in the State Government to scrutinise leases of this kind made after June 1, 1950, which was apparently the date from which such legislation was under contemplation and to see whether the leases were such as a prudent land owner would enter into in the normal course of management. Such leases would be immune from cancellation ; but if the Collector found that the leases were entered into, not in the normal course of management but designedly to make whatever the land owners could before the estate came to be transferred to the State Government, he 'Was given the power to cancel the same, as they would obviously be a fraud upon the Act. Such, cancellation would subserve the purposes of the Act, and 483 the provision for it would therefore be an integral part of the Act, though ancillary to its main object, and would thus be protected under article 31 A (1)(a) of the Constitution. Re. section 38. Section 38 reads as follows Notwithstanding any agreement, usage, decree or order of a court or any law for the time being in force, the maximum rent payable by a tenant in respect of the land leased to him shall not exceed one and half times the revenue payable in respect of such land. " This section provides for fixing the maximum rent at fifty per cent. above the land revenue, and it is urged that this is an unreasonable restriction on the right of the land owner to let his holding. The object of this legislation is to do away with intermediaries, and for that reason the estates held by intermediaries have been ' made to vest in the State Government tinder section 4. Chapter VI of the Act, however, provides for allotment of lands for personal cultivation to intermediaries whose estates have been taken over upto a certain limit and the intermediaries who have been allotted lands under section 29 of the Act are called Bhuswamis or Kashtkars according to the nature of the lands allotted to them; (see section 30). Bhuswamis and Kashtkars hold land directly from the Government and pay revenue to the Government; (see section 32). The intention of the Act, therefore, is that intermediaries who have been allotted lands should cultivate them personally. But section 37 permits Bhuswamis to let the whole or any part of the land allotted to them, while Kashtkars are forbidden from letting any part of their land except in certain circumstances when they are suffering from some disability. In order, however, that the main object of the Act (namely, that the land should be cultivated by the person to whom it is allotted and that there should be no rackrenting) is attained, section 38 has been provided fixing the maximum rent at 50 per cent. above the land revenue. Thus the profit which a Bhuswami 484 can make by letting his land is so reduced compared to what he would earn if he cultivated it himself as to discourage him from letting the land and becoming a. new kind of intermediary. Section 38, therefore, is another ancillary section, like section 8, and is meant to subserve the purposes of the Act, namely, the abolition of all intermediaries and encouragement of self cultivation of the land. We are, therefore, of opinion that section 38 is also protected under article 31 A(l)(a) of the Constitution as an ancillary provision necessary for the purposes of carrying out the objects of the Act. The competency of the Ajmer Legislation. The argument in this behalf is put in this way. The Act is a piece of legislation for the acquisition of estates. Before the Constitution (Seventh Amendment) Act, 1956, came into force on November 1, 1956, there were two entries relating to acquisition of property in the Seventh Schedule, namely, entry 33 of List 1 (acquisition or requisitioning of property for the purpose of the Union) and entry 36 of List II(acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List 111). The argument continues that the Act was passed by the Ajmer legislature under the power it was supposed to have under entry 36 of List 11 read with section 21 of the Government of part C States Act, 1951 (XLIX of 1951). But entry 36 of List 11 only gives power to the State legislature to acquire property for purposes other than the purposes of the Union. As, however, the property aquired under the Act vested in the President and therefore the Union after its acquisition, the Act was really for the acquisition of property for the purposes of the Union and could not have been passed by the Ajmer legislature. In support of this argument Mr. Sharma referred us to various Articles of the Constitution in Part XII thereof relating to Finance, Property, Contracts and Suits, and also articles 73 and 239. He contends that these provisions show that before the Government of Part C States Act was passed, the legislative power with respect to the areas comprised in Part C States 485 was in the Union which also through the President had executive power over the subjects over which the Parliament could legislate with respect to what were Part C States. After the passing of the Government of Part C States Act, by virtue of the power conferred on Parliament by article 240, there was no change so far as the executive power in Part C States was concerned and it is still vested in the President. Any property acquired for the purposes of Part C States vests in the President or the Union. Therefore, according to him, the Ajmer legislature would have no power to enact a law for acquiring estates under entry 36 of, List 11; for the property so acquired would really be for the purposes of the Union and no law under that, entry could be made for acquiring property for the purposes of the Union. We are of opinion that the argument, though plausible, must be rejected. Assuming, without deciding. that even after the passing of the Government of. Part C States Act, any property acquired for a Part C State vested in the Union Government by virtue of the provisions of Part XII of the Constitution, the question still remains whether the Ajmer legislature could make a law under entry 36 of List II acquiring estates even though the estates when acquired may legally vest in the Union Government. Now, entry 33 of List I refers to acquiring of property for the purposes of the Union. It does not lay down in whom the property should vest after it has been acquired. Similarly, entry 36 of List 11 speaks of acquisition of property, except for the purposes of the Union, and makes no mention in whom the property should vest after it has been acquired. Entry 42 of List II which deals with compensation for such acquisition as well as for acquisition for any other public purpose, also does not speak where the property should vest after acquisition. It is not necessary, therefore, to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under those two entries. The key to the interpretation of these two entries is not in whom the property would vest after it has been acquired 'but whether the 486 property is being acquired for the purposes of the Union in one case or for purposes other than the purposes of the Union in the other. It is in this context that the competency of the Ajmer legislature to enact this law under entry 36 of List 11 is to be judged. Section 21 of the Government of Part C States Act created a Legislative Assembly for Ajmer and gave that legislative assembly power to make laws for the whole or any part of the State with respect to any of the matters enumerated in List II or List III of the seventh Schedule to the Constitution. Ajmer legislature was thus given power to pass laws with respect to acquisition of property for purposes other than those of the Union. In other words, it bad the power to make law to acquire property for the purposes of the State of Ajmer or for any other public purpose. The question then is whether the Act was passed acquiring estates in the State of Ajmer for the purposes of the State of Active of where the title may vest. The answer to this question to our mind can only be one; the Act was passed by the State legislature for acquiring estates within the State and it could only have been for the purposes of the State. There is no reason to limit the meaning of these general words, namely, 'the purposes of the State ', by importing in them the idea of where the property would vest after its acquisition. That the purposes for which the estates were acquired were purposes of the State of Ajmer would be quite clear from the fact that now that the State of Ajmer is part of the State of Rajasthan, the estates acquired under the Act have gone to Rajasthan and have not been kept by the Union on the ground that the title vested in the Union. Therefore, as the estates were acquired in this case for the purposes of the State of Ajmer the Act would be within the competency of the Ajmer legislature as it falls within the plain words of entry 36 of List 11. Jagirdars. The contention on behalf of the petitioner in petition No. 33 of 1956 is that under the Act the word intermediary includes a jagirdar. The Act also provides that the definitions in the Ajmer Tenancy and Land 487 Records Act, 1950 (Ajmer XLII of 1950), will be imported where the words used in it are not defined. The word I jagirdar is defined in the Ajmer Tenancy and Land Records Act as a person to whom the revenue of any land has been assigned under a sanad issued by the Chief Commissioner before the commencement of the Ajmer Land and Revenue Regulation, l877 ; (see section 2 (15) ). It is not in dispute that a sanad was issued to a predecessor of the petitioner before 1877 ; but it is urged that a jagirdar is merely the assignee of land revenue and so far as that assignment is concerned it may be said to have been acquired under the Act. But the petitioner besides being an assignee of land revenue is also owner of land and that interest of his has not been acquired under the Act. We are of opinion that there is no force in this argument. The word I estate ' is defined in section 2(v) of the Act as having the same meaning as assigned to it in the Ajmer Land and Revenue Regulation, 1877. The Ajmer Regulation does not define the word 'estate ' as such, but it has defined the word ' Malguzar ' as a person liable under section 64 for payment of the revenue assessed upon an estate, under section 2(d). Further, section 64 provides that all persons who are bound by the agreement prescribed by section 61 and their successors ininterest shall, while they continue to be owners of land in the Estate to which such agreement relates, be jointly and severally liable for the payment of the whole amount of revenue assessed upon such estate. The Ajmer Regulation also defines particular types of estates like ' Istimrari Estate ' and 'Bhum ' but the general meaning of the word 'estate ' under the Ajmer Regulation is an area of land separately assessed to revenue, which is payable by the holder of the estate. I Intermediary ' as defined in section 2 (viii) of the Act is a holder of an estate and includes a jagirdar. Under section 4 all the estates held by intermediaries Vest in the State Government on the issue of a notification. Therefore, if the jagirdars are intermediaries, that is holders of estates, their estates will vest in the State Government under section 4 of the Act. The distinction which the learned counsel for this petitioner draws between the 488 interest of the jagirdar as jagirdar and as land owner is in our opinion wholly unfounded. A perusal of annexures B, C and D, filed by the. petitioner himself, would make this clear. Anexures B and C are sanads with respect to the jagirs held by the petitioner. Entry in the remarks column of annexure IS begins with the words " Grant of this estate lasts. ". Similarly, in annexure C the opening words in the remarks column are " The Grant is to the Dudhadhari for the time being. No part of the estate is transferable by sale or mortgage. ". Therefore, the grants themselves designated these jagirs as estates. They were assessed to revenue, which was, however, remitted and the estates thus came to be known as revenue free jagirs and the estate holder was designated as jagirdar. It was because of this remission of the land revenue that the word I jagirdar ' was defined in the Ajmer Tenancy and Land Records Act, 1950, as assignee of land revenue. Annexures B and C also show that when the grants were made before 1877 a large part of the area covered by the grant was uncultivated. Annexure D shows that disputes arose between the jagirdars and the Biswedars in these jagirs about these uncultivated lands, and one such dispute was decided as late as 1954. In that judgment (annexure D) history of jagir tenure was traced and it was held that the jagirdar was the owner of uncultivated land in his jagir and not the Biswedar. Therefore, the distinction which has been drawn by the learned counsel between the jagirdar as an assignee of land revenue based on the definition in the Ajmer Tenancy and Land Records Act, 1950, and the same person as the land owner is unfounded. It appears that though the jagirdar may have been defined as assignee of land revenue because of the peculiar fact that in the case of a jagirdar there had been remission of land revenue by sanads granted before 1877, he was the proprietor of his jagir and the grantee of the estate given to him as jagir There is no question, therefore, of separating the interest of jagirdar as the assignee of land revenue from, his interest as the holder of jagir estate by virtue of a grant before 1877. The petitioner therefore in petition 489 No. 33 of 1956 is the holder of the jagir estate and therefore his entire interest in the estate is liable to resumption under the Act. In the Ajmer Regulations, (Vol. H to L) at pp. 564 6, these two estates have been considered and their history is given, and they are called jagirs. The history of jagirs in Rajasthan was considered by this Court in Thakur Amarsinghji vs State of Rajasthan (1), at p. 330 onwards, and the word I jagir ' was hold to connote all grants which conferred on the grantees rights in respect of land revenue. In the case of these two jagirs also, as annexures B and C show, land revenue was remitted and they were granted as estates for particular purposes. They are, therefore, clearly estates in view of the origin of the title of the holder of these estates who is called a jagirdar and therefore the State could take them over under section 4 of the Act. There is no force in any of the points raised on behalf of the petitioners, and the petitions fail and are hereby dismissed with one set of costs to the contesting respondent. Petitions dismissed.

Section 4 Of the Ajmer Abolition of Intermediaries and Land Reforms Act, 955, provided for vesting of all estates held by intermediaries, as defined in the Act, in the State from a date to be notified, and the petitioners who were affected thereby filed petitions under article 32 Of the Constitution of India challenging the validity of the Act and, in particular sections 8 and 38 of the Act on the grounds that (1) entry 36 of List 11 of the 479 Seventh Schedule to the Constitution gave power to the State legislature to acquire property for purposes other than the purposes of the Union, while the property acquired under the Act vested in the President and therefore the Union after its acquisition, and the Act was really for the acquisition of property for the purposes of the Union and could not have been passed by the, Ajmer legislature, (2) section 8 provided for retrospective cancellation of leases granted at a time when the land owner had a right to dispose of his property as he liked under article 19(1)(f) of the Constitution and there was no restriction on such right, and (3) section 38 which fixed a maximum rent was an unreasonable.restriction on the right of the land owner to let his holding. It was also contended for some of the petitioners who were assignees of land revenue as also owners of land that, under the Act, an intermediary included a jagir and that as a jagirdar was merely an assignee of land revenue, only that assignment could be said to have been acquired under the Act. Held, (1) that the purposes for which the estates were acquired were purposes of the State of Ajmer and, consequently, the Act was within the competency of the Ajmer legislature as it fell within entry 36 of List II of the Seventh Schedule to the Constitution, and it was not necessary to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under the entry ; (2) that the provisions in section 8 of the Act which gave power to the Collector to cancel leases which were found to have been made in anticipation of legislation for abolition of intermediaries and which were, consequently, a fraud upon the Act, subserve the purposes of the Act and would, therefore, be an integral part of the Act, though ancillary to its main object, and were protected under article 31 A(1)(a) of the Constitution ; (3)that the intention of the Act was that the intermediaries who were allotted lands should cultivate them personally and the object of section 38 was to discourage them from letting the land and becoming a new kind of intermediaries, and, consequently, the section being an ancillary provision necessary for the purposes of carrying out the objects of the Act, was protected under article 31 A(1)(a) of the Constitution; and (4)that in view of the origin of the title of the holders of these estates who were called jagirdars, a distinction could not be made between jagirdars as assignees of land revenue and the same persons as land owners, and therefore, the State could take over the entire interest in the estate under section 4 Of the Act.

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

Consequent upon the State Government declaring a part of the jungle lands in two tehsils of the District of Mirzapur as reserved forest under s.20 of the and notifying other areas under s.4 of the Act for final declaration as reserved forests, the forest officers started interfering with the operations of the Adivasis living for generations in those areas. Criminal cases for encroachments as also other forest offences were registered against them and systematic attempts were made to obstruct their free movement, and even steps were taken under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 for throwing them out of the villages raised by them, and in existence for quite some time. Their attempts to cultivate the lands around these villages, converted by them into cultivable fields and on which they had been raising crops for food, were also resisted. On the basis of a letter received from the petitioner Ashram, a writ petition under article 32 of the Constitution was registered by this Court with regard to the claims of these Adivasis to land and related rights. By its order dated August 22, 1983 the Court directed the claims of Adivasis or tribals, to be in possession of land and to regularisation of such possession, to be inves tigated by a high powered committee with a view to 337 reaching a final decision. The committee has since identi fied 433 villages relevant for the present dispute, and roughly one lakh eighty two thousand acres in unauthorised occupation. On December 15, 1983 the Court directed appointment of a high powered committee consisting of a retired High Court Judge and two officers for the purpose of adjudicating upon the claims of the persons belonging to Scheduled Castes and backward classes. The Government by notification dated August 5, 1986 has established a special agency for survey and record operations. While the matter had been pending before the court the Government decided to locate a super thermal power plant of the National Thermal Power Corporation (NTPC) in a part of these lands and acquisition proceedings were initiated. NTPC, now a party before the Court, is seeking dispossession of person in occupation and takeover of lands sought to be acquired for its propose. The Court gave the following directions: 1. The lands which have already been declared as re served forest under section 20 of the Act not to form part of the writ petition. [342 C] 2. Forest Officers to demarcate and identify the lands notified under s.4 of the Act within six weeks from 1st December, 1986. The matter to be widely publicised. Claims as contemplated under s.6(c) of the Act to be received within three months from 15th January, 1987. [342 F 343 A] 3. Adequate number of record officers to be appointed by December 31, 1986. Five Additional District Judges to be located at five notified places in the area and to exercise the powers of the Appellate Authority as provided under section 17 of the Act. [343 C F] 4. After the Forest Settlement Officer has dealt with the matter, the findings with the requisite papers to be placed before the Additional District Judge of the area, even though no appeal is filed. These to be scrutinized by him as if an appeal has been taken. The order of the Addi tional District Judge passed therein to be taken to be the order contemplated under the Act. [343 G] 5. When the Appellate Authority finds that the claim is admissible, the State Government to honour the said decision and proceed to implement the same. [344 A] 338 6. Assistance by way of legal aid to be provided to the persons seeking to raise claims and for facilitating infor mation for lodging of claims and processing them both at the original as also the appellate stage. State Government to provide the necessary funds. [344 C] 7. The land sought to be acquired by the NTPC to be free from the ban of dispossession. However, provisions of the Land Acquisition Act to be complied with. Necessary record to be maintained, as indicated, for use in proceedings that may be taken subsequently. Facilities to be given to land oustees as undertaken before the Court. [344 F] 8. A Board of Commissioners to supervise the operations and oversee the implementation of the directions. [345 C D] Forests are a much wanted national asset. On account of the depletion thereof ecology has been disturbed; climate has undergone a major change and rains have become scanty. , These have long term adverse effects on national economy as also on the living process. At the same time, the court cannot lose sight of the fact that for industrial growth as also for provision of improved living facilities there is great demand in this country for energy such as electricity. A scheme to generate electricity, therefore, is equally of national importance and cannot be deferred. [342 AB]