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CIVIL APPELLATE JURISDICTION Civil Appeal No. 212 of 1954. Appeal from the Judgment and Decree dated the 10th day of November 1953 of the High Court of Judicature at Bombay in Appeal No. 8 of 1953 under the Letters Patent, against the decree dated the 23rd day of September 1952 of the said High Court in Appeal No. 67 of 1952 from Original Decree arising out of Order dated the 20th November 1951 of the City Civil Court, Bombay, in Summary Suit No. 233 of 1948. Subramania Iyer and K. R. Choudhry, for the appellant. J. Umrigar, J. B. Dadachanji and Rajinder Narain, for the respondent. 1955. March 7. The following Judgments were delivered. DAS J.-The facts leading up to this appeal are few and simple. Two persons named Mahomedali Habib and Sakerkhanoo Mahomedali Habib used to carry on business as merchants and pucca adatias in bullion and companyton at Bombay under the name and style of Habib Sons. In 1948 that firm instituted a suit in the Bombay City Civil Court, being Summary Suit No 233 of 1948, against the present appellant Juga-lkishore Saraf, a Hindu inhabitant carrying on business at Bombay, for the recovery of Rs. 7,113-7-0 with interest at 6 per cent. per annum said to be due by him to the firm in respect of certain transactions in gold and silver effected by the firm as pucca adatias. On the 7th February,. 1949 when that summary suit was still pending a document was executed whereby it was agreed that the two partners would transfer and Messrs Raw Cotton Company, Limited, hereinafter called the respondent companypany 1372 would accept the transfer of, inter alia, all book and other debts due to them in companynection with their business in Bombay and full benefit of all securities for the debts and all other property to which they were entitled in companynection with the said business. The respondent companypany did number take steps under 0. XXII, r. 10 of the Code of Civil Procedure to get themselves substituted as plaintiffs in the place and stead of Habib Sons, the plaintiffs on record, but allowed the suit to be companytinued in the name of the original plaintiffs. Evidently, the two partners migrated from India to Pakistan and their properties vested in the Custodian of Evacuee Property. On the 15th December 1949 a decree was passed in the summary suit for the sum of Rs. 8,018-7-0 for the debt and interest and the sum of Rs. 410 for companyts of the suit, aggregating to Rs. 8,428-7-0, and for further interest at 4 per cent. per annum from the date of the decree until payment. Habib Sons being the plaintiffs on record the decree was passed in their favour. On the 11th December 1950 the Custodian of Evacuee Property, Bombay, informed the respondent companypany that by an order made on the 2nd August 1950 the Additional Custodian of Evacuee Property had companyfirmed the transaction of transfer of the business of Habib Sons to the respondent companypany. On or about the 25th April, 1951 the respondent companypany presented before the Bombay City Civil Court a tabular statement purporting to be an application for execution under Order XXI,rule 11 of the Code of Civil Procedure. In the last companyumn of the tabular statement, under the heading The mode in which the assistance of the Court is required, the respondent companypany prayed that the Court be pleased to declare the Applicants the assignees of the decree as the decrement debt along with other debts bad been transferred by the plaintiffs to the Applicants by a deed of assignment dated the 7th February 1949 which was companyfirmed by the Custodian of Evacuee Property, Bombay, and order them to be substituted for the plaintiffs. There was, in that companyumn, numberspecification of any of the modes in which the assist- 1373 ance of the Court might be required as indicated in clause j of Order XXI,rule 11 of the Code.On the 10th May 1951 the Bombay City Civil Court issued a numberice under Order XXI, rule 16 of the Code to Habib Sons, who were the decree-holders on record, and Jugalkishore Saraf, who was the defendant judgment-debtor, requiring them to show cause why the decree passed in the suit on the 15th December 1949 in favour of the plaintiffs and by them transferred to the respondent companypany, should number be executed by the said transferees against the said defendant judgment-debtor. The defendant judgment-debtor showed cause by filing an affidavit affirmed by him on the 15th June 1951. Amongst other things, he denied that the document in question had been executed or that the document transferred the decree to the respondent companypany. The matter was tried on evidence and the execution of the document was proved by the evidence of an attesting witness which has been accepted by the executing Court. The executing Court, however, rejected the second companytention and made the numberice absolute with companyts and gave leave to the respondent companypany to execute the decree against the judgment-debtor. The judgment-debtor filed an appeal before the High Court. The appeal was heard by Dixit, J. Before him the execution of the document was number challenged and numberhing further need be said about that. The only substan- tial question raised wag whether the respondent companypany were the transferees of the decree within the meaning of Order XXI, rule 16. The learned Judge answered the question in the affirmative on the authority of the decisions of the Bombay High Court in Purmananddas Jivandas v. Vallabdas Wallji 1 and in Chimanlal Hargovinddas v. Ghulamnabi 2 and affirming the order of the executing Court dismissed the appeal. The judgment-debtor preferred a Letters Patent Appeal before the High Court which was dismissed by Chagla, J., and Shah, J., following the two earlier decisions mentioned above. They, however, 1 1877 I.L.R. 11 Bom. 506. I.L.R. 1946 Bom. 276. 1374 granted, under article 133 1 c of the Constitution, a certificate of fitness for appeal to this Court. The principal question urged before us is as to whether the respondent companypany can claim to be the transferees of the decree within the meaning of Order XXI, rule 16 of the Code of Civil Procedure. Order XXI, rule 16 of the Code of Civil Procedure, omitting the local amendments which are number material for our present purpose, provides- Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same companyditions as if the application were made by such Provided that, where the decree or such interest as aforesaid, has been transferred by assignment, numberice of such application shall be given to the transferor and the judgment-debtor, and the decree shall number be executed until the Court has heard their objections if any to its execution Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall number be executed against the others. The first thing that strikes the reader is the sequence of events companytemplated by this rule. It postulates, first, that a decree has been passed and, secondly, that decree has been transferred i by assignment in writing or ii by operation of law. The cardinal rule of companystruction of statutes is to read the statute literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if number,such alternative companystruction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case a literal companystruction of the rule 1375 leads to numberapparent absurdity and, therefore, there can be numbercompelling reason for departing from that golden rule of companystruction. It is quite plain that if .Order XXI, rule 16 is thus companystrued the respondent companypany cannot possibly companytend that the decree number sought to be executed by them was, after its passing, transferred to them by an assignment in writing within the meaning of that rule, for the document in question was executed on the 7th February 1949 but the decree was passed subsequently on the 15th December 1949. Whether they can claim to have become the transferees of the decree after it was passed by operation of law within the meaning of this rule or to have otherwise become entitled to the benefit of it is a different matter which will be companysidered later on. For the moment it is enough to say that there had been numbertransfer of the decree to the respondent companypany by any assignment in writing executed after the decree was passed, as companytemplated and required by Order XXI, rule 16. Indeed, Dixit, J., companyceded- If the language of Order XXI, rule 16 is strictly companystrued, it seems to me that the Respondents have numbercase. And so did chagla , C,J. when he said and it is perfectly clear that if one were to companystrue rule 16 strictly there is numberassignment of the decree in favour of the first respondent. The learned Chief Justice, like Dixit, J., however, departed from the rule of strict or literal companystruction as they felt pressed by the fact that the Bombay High Court had companysistently taken the view that there might be an equitable assignment of a decree which would companystitute the assignee an assignee for the purpose of rule 16 and that what the Court must companysider is number merely a legal assignment but also an assignment which operates in equity. The equitable principle relied upon by the Bombay High Court is what had been enunciated by Lord Westbury in Holroyd v. Marshall 1 in the following words 1 1862 10 H.L.C. 191, 210, 211. 176 1376 It is quite true that a deed which professes to companyvey property which is number in existence at the time is as a companyveyance void at law, simply because there is numberhing to companyvey. So in equity a companytract which engages to transfer property, which is number in existence, cannot operate as an immediate alienation merely because there is numberhing to transfer. But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is number possessed at the time, and he receives the companysideration for the companytract, and afterwards becomes possessed of property answering the description in the companytract, there is numberdoubt that a Court of Equity would companypel him to perform the companytract, and that the companytract would, in equity, transfer the beneficial interest to the mortgagee or purchaser immediately on the property being acquired. This, of companyrse, assumes that the supposed companytract is one of that class of which a Court of Equity would decree the specific performance. The same principle was thus reaffirmed by Jessel, M.R., in Collyer v. Isaacs 1 A man can companytract to assign property which is to companye into existence in the future, and when it has companye into existence, equity, treating as done that which ought to be done, fastens upon that property, and the companytract to assign thus becomes a companyplete assignment. Applying the above principles to the facts of the instant case the High Court -came to the companyclusion that the document of the 7th February, 1949, on a proper reading of it, companystituted an assignment of the decree. The reasoning, shortly put, is that on a true companystruction the document in question amounted to. a transfer of the decree that was expected to be passed in the pending suit, that as the decree was number in existence at the date of the document it operated as an agreement to transfer the decree when it would be passed, that such an agreement companyld be enforced by a suit for specific performance as indicated by the L.R. 19 Ch. D. 312, 351. 1377 Privy Council in Raja Sahib Perhlad v. Budhoo 1 , that as soon as a decree was passed equity, treating as done what ought to be done, fastened upon the decree and the agreement for transfer became the transfer of the decree and the transferee became a transferee of the decree within the meaning of Order XXI, rule 16. It is to be numbered that to attract the application of this equitable principle there must be an agreement to transfer the decree to be passed in future. As soon as the decree is passed equity fastens upon it and, by treating as done what ought to be done, that is by assuming that the transferor has executed a deed transferring the decree to the transferee as in all companyscience he should do equity regards the transferee as the beneficial owner of the after-acquired decree. The equitable principle we are companysidering only implements or effectuates the agreement of the parties. This equity does number, however, take upon itself the task of making any new agreement for the parties either by filling up the lacunas or gap in their agreement or otherwise. If, therefore, there is numberagreement between the parties to transfer the future decree the equitable principle referred to above can- number companye into play at all. In order, therefore, to test the propriety of the application of this equitable principle to the facts of the present case we have to enquire whether there was here any agreement between the parties to transfer the decree to be passed in the then pending suit. This necessarily leads us to scrutinize the terms of the document in question and ascertain its true meaning and import. No point has been taken before us that the document of the 7th February 1949 is only an executory agreement and number a deed of transfer. Indeed, the argument has proceeded before us, as before the Court below, that the document in question is a companypleted deed of transfer. This relieves us of the task of closely examining the form of the document. For our present purpose we have, therefore, only to companysider what properties were companyered by the document. The High Court has held that the decree to be 2 1 1869 12 M.I.A. 275 2 B.L.R. 111. 1378 passed was also included in this document. The reasoning appears to be this Clause 1 of the document companyprised six several items of properties. Each of these items referred to the said Indian business. The Fourth item was All the book and other debts due to the vendors in companynection with the said Indian business and the full benefits of all securities for the debts and the last and residuary item was All other property to which the vendors are entitled in companynection with the said Indian business. One of the book debts was the subject-matter of the pending suit. The decree that the plaintiff would obtain in, that suit would, therefore, be property or right in companynection with the said Indian business. Therefore, as they were transferring all property in companynection with their business they must have intended to transfer the future decree also. Therefore, it must be regarded as companyered by the document. I am unable to accept this line of reasoning. It cannot be overlooked that there was numbermention in that document of any suit or decree to be passed in that suit as one would have expected if the parties really intended to transfer the future decree also. In this companynection it is significant that the residuary item companyered All properties to which the vendors are entitled and number all properties to which they might in future become entitled. Reference may also be made to the provisions of the Transfer of Property Act. Under section 8 of that Act the transfer of property passes to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, and if the property transferred is a debt or actionable claim, also the securities therefore. It is urged that as the respondent companypany thus became entitled, by virtue of this document read in the light of section 8, to all the rights and remedies including the right to prosecute the pending suit and to obtain a decree the decree that was eventually passed automatically and immediately upon its. passing must be taken as having been transferred by this very document.This argument appears to me to really amount to a begging of the question, The 1379 transfer of the debt passed all the interest which the transferors were then capable of passing in the debt and in the legal incidents thereof. There was then numberdecree in existence and, therefore, the transferors companyld number then pass any interest in the number-existing decree. Therefore, section 8 of the Transfer of Property Act does number assist the respondent companypany. Upon the assignment of the debt the respondent companypany undoubtedly became entitled to get themselves substituted under Order XXII, rule 10 as plaintiffs in the pending suit but they did number choose to do, so and allowed the transferors to companytinue the suit and a decree to be passed in their favour. The true position, therefore, is that at the date of the transfer of the debt to the respondent companypany the transferors companyld number transfer the decree, because the decree did number exist. On a true companystruction of the document the transferors agreed only to transfer, besides the five items of specified properties, All other properties to which the vendors are entitled, that is to say, all properties to which at the date of the document they were entitled. At the date of the document they had the right to proceed with the suit and to get such relief as the Court by its decree might award but numberdecree had yet been passed in that suit, and, therefore, property to which they were then entitled companyld number include any decree that might in future be passed. It is significant that there was, in the document, numberprovision purporting in terms to transfer any future decree. Section 8 of the Transfer of Property Act does number operate to pass any future property, for that section passes all interest Which the transferor can then, i.e., at the date of the transfer, pass. There was thus numberagreement for transfer and much less a transfer of a future decree by this document. All that was done by the transferors by that document was to transfer only the properties mentioned in clause 1 together with all legal incidents and remedies. The properties so transferred included book debts. A book debt which was made the subject-matter of the pending suit did number, for that reason, cease to be a book debt and, therefore, it was also transferred but number1380 decree to be passed in respect of that book debt was If in terms transferred. In such a situation there was numberroom or scope for the application of the equitable principle at all. The transfer in writing of a property which is the subject- matter of a suit without in terms transferring the decree passed or to be passed in the suit in relation to that property does number entitle the transferee to apply for execution of the decree as a transferee of the decree by an assignment in writing within the meaning of Order XXI, r. See Hansraj Pal v. Mukhraj Kunwar 1 and Vithal v. Mahadeva 2 . In my judgment the decree was number transferred or agreed to be transferred to the respondent companypany by the document under companysideration and the latter cannot claim to be transferees of the decree by an assignment in writing as companytemplated by Order XXI, rule 16. The matter, however, has been argued before us at length on the footing that the decree had been transferred or agreed to be transferred by this document and therefore., the equitable principle came into play and that as soon as the decree was passed the respondent companypany became the transferees of the decree by assignment in writing within the meaning of Order XXI, rule 16. As companysiderable legal learning has been brought to bear on the question of the application of the equitable principle and its effect on the prior written agreement and as the different decisions of the High Courts are number easily reconcilable, I companysider it right to record my views on that question. I shall., then, assume, for the purposes of this part of the argument, that the document of the 7th February 1949 was a companypleted deed of transfer companyering the decree to be passed in future in the then pending suit. Under the Transfer of Property Act there can be numbertransfer of property which is number in existence at the date of the transfer. Therefore, the purported transfer of the decree that might be passed in future companyld only operate as a companytract to transfer the decree to be performed in future, i.e., after the passing of the 1 1908 I.L.R. 30 All. 28. 2 1924 26 Bom. L R. 333. 1381 decree. The question then arises What is the effect of the operation of the equitable principle on the decree as and when it is passed? Where there is a companytract for the transfer of property which is number in existence at the date of the companytract, the intending transferee may, when the property companyes into existence, enforce the companytract by specific performance, provided the companytract is of the kind which is specifically enforceable in equity. It is only when the transferor voluntarily executes a deed of transfer as in all companyscience he should do or is companypelled to do so by a decree for specific performance that the legal title of the transferor in that property passes from him to the transferee. This transfer of title is brought about number by the prior agreement for transfer but by the subsequent deed of transfer. This process obviously involves delay, trouble and expenses. To obviate these difficulties equity steps in again to short circuit the process. Treating as done what ought to be done, that is to say, assuming that the intending transferor has executed a deed of transfer in favour of the intending transferee immediately after the property came into existence, equity fastens upon the after- acquired property and treats the beneficial interest therein as transferred to the intending transferee. The question for companysideration is Is this transfer brought about by the earlier document whereby the property to be acquired in future was transferred or agreed to be transferred? In other words, can it be said, in such a situation, that the after-acquired property had been transferred, proporio vigore, by the earlier document? Does that document operate as an assignment in writing within the meaning of Order XXI, rule 16? Learned companynsel for the respondent companypany companytends that the answer to these questions must be in the affirmative. He relies on several cases to which reference may number be made. In Purmananddas Jivandas v. Vallabdas Wallji supra the facts were these. In May 1859 one died leaving his properties to executors in trust for the appellant. In August 1868 the executors filed a suit in the Original Side of the Bombay High Court 1382 against Luckmidas Khimji for recovery of money lent to him as manager of Mahajan Wadi. During the pendency of the suit, the executors on the 11th May 1870 assigned in very wide and general terms all the properties of the testator to the appellant including all movable property, debts claims and things in action whatsoever vested in them as such executors. The appellant was number brought on the record but the suit proceeded in the name of the executors. On the 23rd January 1873 a decree was passed for the plaintiffs on the record, i.e. the executors, for Rs. 31, 272-13-5 which was made a first charge on the Wadi properties. The appellant thereupon applied for execution of the decree under section 232 of the Code of 1882 companyresponding to our Order XXI, rule 16 , as transferee of the decree. The Chamber Judge dismissed the application. On appeal Sargent, J., and Bayley, J., held that the appellant was companypetent to maintain the application. After pointing out that the ssignment was in the most general terms, Sargent, C. J., observed- and the effect of this assignment was, in equity, to vest in Purmananddas the whole interest in the decree which was afterwards obtained. But it has been suggested that Purmananddas is number a transferee of the decree under section 232 of the Civil Procedure Code, because the decree has number been transferred to him by assignment in writing or by operation of law, and that, therefore, he is number entitled to apply for execution. There is numberdoubt that in a Court of equity, in England the decree would be regarded as assigned to Purmananddas, and he would be allowed to proceed in execution in the name of the assignors. Here there is numberdistinction between law and equity, and by the expression by operation of law must be understood the operation of law as administered in these Courts. We think under the circumstances that we must hold that this decree has been transferred to Purmananddas by operation of law The last sentence in the above quotation, standing by itself, quite clearly indicates that the learned 1383 -Chief Justice was of the view that as the benefit of the decree became available to the appellant by operation of the equitable principle it had to be held that the decree had been transferred to the appellant by operation of law rather than by an assignment in writing and that is how it was understood by the reporter who framed the head-note. The learned Chief Justice, however, immediately after that last sentence added- In the present case the decree has been transferred by an assignment in writing as companystrued in these Courts. This sentence prima facie appears to be somewhat in- companysistent with the sentence immediately preceding and it has given rise to a good deal of companyments in later cases. The learned Chief Justice has number referred to any case in which the Bombay High Court had adopted such a companystruction. The case of Ananda Mohon Roy v. Promotha Nath Ganguli 1 follows the decision of the Bombay High Court in Purmananddas Jivandas v. Vatllabdas Wallji supra . It should be numbered, however, that in this Calcutta case the decree was obtained and the transfer was made on the same day and it was held that though there was numberassignment of the decree in so many words the property with all arrears of rent having been assigned to the mortgagee simultaneously with the passing of the decree the assignment passed the decree also. The case of Chimanlal Hargovinddas v. Ghulamnabi supra has been strongly relied upon. In that case a shop was held by A and B as tenants-incommon. In May 1936 A agreed to sell his half share ,to C. As per arrangement A filed a partition suit on the 16th January 1937 to recover his share. The disputes in the suit were referred to arbitration by order of Court and eventually the umpire made his award on the 16th January 1939 declaring that A was entitled to a half share. A then, on the 7th March, 1939, sold all his rights under the award which was 1 1920 25 C.W.N. 863 A.I.R. 1921 Cal. 74, 177 1384 called a decree to C by a registered deed. C did number apply for substitution of his name on the record of the suit. The Court passed a decree upon the award on the 1st September, 1939. On the 24th November 1939 C applied for execution of the decree. It was held that C was entitled to execute the decree under Order XXI, rule 16, for what had been transferred to him was number merely As half share in the property but all his rights under the award including the right to take a decree. In this case, having regard to the terms of the previous agreement and the fact that the parties were treating the award as a decree the intention was quite clear that by the subsequent deed of sale both the award and the decree upon it had been transferred. It was quite clearly recognised by the Full Bench that if the sale deed transferred only. As half share in the property or only his right to take a decree C companyld number apply under Order XXI, rule 16. Reading the three cases relied on by learned companynsel for the respondent companypany it seems to me that they proceeded on the footing that the equitable title related back to the earlier agreement in writing and companyverted the agreement to transfer the future decree into an assignment in writing of that decree as soon as it was passed. Some support is sought to be derived by learned companynsel for this doctrine of relation back from the above quoted observations of Lord Westbury in Holroyd v. Marshall supra that the companytract would, in equity, transfer the beneficial interest and of Jessel, R., in Collyer v. Isaacs supra that the companytract to assign thus becomes a companyplete assignment. I find companysiderable difficulty in accepting this argument as sound. In the first place the Lord Chancellor and the Master of the Rolls were number companycerned with the question of relation back in the form in which it has arisen before us. In the next place it must number be overlooked that the equitable principle herein alluded to is number a rule of companystruction of documents but is a substantive rule which companyfers the benefit of the after-acquired property on the person to whom the transferor had, by his agreement, promised to transfer the same. Thus, by treating as done that 1385 which ought to be done, equity fastens upon the after acquired property and brings about a transfer of it. The implication of this principle, to my mind, is clearly that the agreement, by itself and proprio, vigore, does number transfer the property when it is subsequently acquired but that instead of putting the intending transferee to the trouble and expense of going to Court for getting a decree for specific performance directing the promisor to execute a deed of transfer which when executed will transfer the afteracquired property, equity intervenes and places the parties in a position relative to each other in which by the prior agreement they were intended to be placed as if a deed of transfer had been made. As I apprehend the position, it is by the operation of equity on the subsequent event, namely, the actual acquisition of the property on its companying into existence that the beneficial interest therein is transferred to the promisee. This transfer, to my mind, is brought about by operation of equity which is something dehors the prior agreement. It is true that that agreement makes the application of the equitable principle possible or I may even say that it sots the equity in motion but, nevertheless, it is equity alone which denudes the transferor of his interest in the after-acquired property and passes it to the intending transferee. That being the true position, as I think it is, the after acquired property cannot, logically and on principle, be said to have been transferred to the intending transferee by the agreement in writing. I do number see on what principle this transfer can be said to relate back to the previous agreement. I am fortified in my view by the observations of Lord Cave in the case of Performing Right Society v. London Theatre of Varie- ties 1 . In that case, in 1916 a firm of music publishers, being members of the plaintiff society, assigned by an indenture of assignment to the society the performing right of every song, the right of performance of which they then possessed or should thereafter acquire, to be held by the society for the period of the assignors membership. Subsequently, a certain L.R. 1924 A.C. 1. 1386 song was written, and the companyyright in it, together with the right of performance, was assigned by the author to the said firm, but there was numberfresh assignment in writing by the firm to the plaintiff society such as was required by section 5 2 of the Copyright Act, 1911. The defendants, who were music hall proprietors, permitted this song to be publicly sung in their music hall without the companysent of the plaintiff society. The plaintiff society then sued the defendants for infringement of their performing rights and claimed a perpetual injunction. The defence was that as there was numberassignment in writing of the companyyright subsequently acquired by the firm to the plaintiff society the latter was number the legal owner and, therefore, was number entitled to a perpetual injunction. Discussing the nature of the right acquired by the plaintiff society under the indenture of 1916 and its claim to the after-acquired companyyright secured by the firm and referring to section 5, sub-section 2 of the Copyright Act, 1911, Viscount Cave, C., observed at p. 13- There was on the respective dates of the instruments under which the appellants claim numberexisting companyyright in the songs in question, and therefore numberowner of any such right and this being so, neither of those instruments can be held to have been an assignment signed by the owner of the right within the meaning of the section. No doubt when a person executes a document purporting to assign property to be afterwards acquired by him, that property on its acquisition passes in equity to the assignee Holroyd v. Marshall, 10 L.C. 191 Tailby v. Official Receiver, 13 A.C. 523 but how such a subsequent acquisition can be held to relate back, so as to cause an instrument which on its date was number an assignment under the Act to become such an assignment, I am unable to understand. The appellants have a right in equity to have the performing rights assigned to them and in that sense are equitable owners of those rights but they are number assignees of the rights within the meaning of the statute. This companytention, therefore, fails, 1387 The above observations, to my mind, companypletely companyer the present case. On a parity of reasoning the respondent companypany may have, by operation of equity, become entitled to the benefit of the decree as soon as it was passed but to say that is number to say that there has been a transfer of the decree by the document of the 7th February 1949. And so it has been held in several cases to which reference may number be made. In Basroovittil Bhandari v. Ramchandra Kamthi 1 the plaintiff assigned the decree to be passed in the pending suit. The assignee was number brought on the record under section 372 of the 1882 Code companyresponding to Order XXII, rule 10 of the present Code but the suit proceeded in the name of the original plaintiff and a decree was passed in his favour. The assignee then applied for execution of that decree claiming to be a transferee decree-holder under section 232 of the 1882 Code. That application was dismissed. White,C.J., observed- We are asked to hold that in the event which happened in this case the appellant is entitled to be treated as the transferee of a decree from a decree holder for the purposes of section 332, numberwithstanding that at the time of the assignment. there was numberdecree and numberdecree-holder. It seems to us that we should number be warranted in applying the doctrine of equity on which the appellant relies, which is stated in Palaniappa v. Lakshmanan, I.L.R. 16 Mad. 429, for the purpose of companystruing section 232 of the Code. We think the words decree-holder must be companystrued as meaning decree-holder in fact and number as including a party who in equity may afterwards become entitled to the rights of the actual decree-holder, and that the words of the section relating to a transfer of a decree cannot be companystrued so as to apply to a case where there was numberdecree in existence at the time of the agreement. It is true that the case of Purmananddas Jivandas v. Vallabdas Wallji supra was number cited in that case but the case of Palaniappa v. Lakshmanan which 1 1907 17 M.L.J. 391, 2 1898 I.L.R. 16 Mad. 429. 1388 adopted the equitable principle enunciated by Jessel, M.R., in Collyer v. Isaacs supra on which that Bombay case bad been founded was brought to the numberice of the Court. In Dost Muhammad v. Altaf HUsain Khan 1 one M instituted a suit for recovery of some immovable property. During the pendency of the suit M transferred his interest in the property to the respondent. The respondent did number apply to bring himself on the record and the suit went on in the name of M as the plaintiff. By a companypromise decree M was awarded a portion of the property. After the decree was passed the respondent applied to execute the decree as the transferee of the decree. The Munsiff rejected the application but the District Judge reversed his order. On second appeal Chamier, J., found it impossible to treat the respondent as the transferee of the decree, for the document on which he relied was executed before the decree was passed. Peer Mahomed Rowthen v. Raruthan Ambalam 2 may also be referred to. In that case the Madras High Court followed its earlier decision in Basroovittil Bhandari v. Ramchandra Kamthi supra . The case of Thakuri Gope V. Mokhtar Ahmad 3 does number carry the matter any further, for it only follows the three earlier cases herein before mentioned. Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal 4 represents the view taken by the Calcutta High Court. In that case Hennessey and his brothers, who were Zamindars, instituted rent suits against their tenants. Pending those suits Hennessey and his brothers transferred the Zamindari to the appellant companypany. The appellant companypany did number get themselves substituted as plaintiff but allowed the suits to proceed in the names of the original plaintiffs who were the transferors. Eventually, decrees were passed in favour of Hennessey and his brothers. The appellant companypany then applied for execution. The executing Court and the lower appellate Court held that 1 1912 17 I.C. 512. 2 1915 30 I.C. 831. 3 1922 C.W.N. Patna 256 A.I R. 1922 Pat. 563. 4 1924 I.L.R. 51 Cal. 703. 1389 the appellant companypany was number a transferee of the decree. The appellant companypany thereupon preferred, this second appeal to the High Court. it was held that the appellant companypany companyld number apply under Order XXI, rule 16, for that rule companyld number properly companyer a case where there was numberdecree at the date of the assignment of the property and the term decree holder companyld number companyer a party who, in equity, might afterwards have become entitled to the rights of the actual decree holder. The case of Ananda Mohon Roy v. Promotha Nath Ganguli supra was explained as being based really on the companystruction that was put upon the companyveyance, namely, that it companyered a decree which had been passed simultaneously with, if number before, the execution of the companyveyance. After pointing out that in Purmananddas Jivandas v. Vallabdas Wallji supra the transferor and transferee stood in the position of trustee and cestui que trust and that that circumstance might have attracted the application of the equitable principle the Court companyld number assent to the broad proposition supposed to have been laid down in that case that the transferee in equity became a transferee of the decree by the prior agreement so as to companye under Order XXI, rule 16 and preferred to follow the decision of the Madras High Court in Basroovittil Bhandari Ramchandra Kamthi supra and the other decisions to which reference has been already made. In Pandu Joti Kadam v. Savla Piraji Kate 1 one Tuljaram obtained a decree on a mortgage against the appellant Pandu Joti. Later on, the respondent Savla brought a suit against the appellant Pandu and Tuljaram. In that suit a decree was passed directing Tuljaram to transfer the mortgage decree to Savla. The respondent Savla thereupon without having obtained, amicably or by execution of his decree, an actual assignment of the mortgage decree sought to execute that decree. It was held that although Savla had a legal right, by executing his own decree, to companypel his judgment-debtor Tuljaram to assign to him the mortgage decree obtained by Tuljaram, such 1 1925 27 Bom. L.R. 1109. 1390 right alone, without an assignment in writing, did number make him a transferee of the mortgage decree so as to be entitled to execute that decree. Even the Bombay High-Court Fawcett and Madgavkar, JJ. in Genaram Kapurchand Marwadi v. Hanmantram Surajmal 1 followed the decision of the Madras High Court in Basroovittil Bhandari v. Ramchandra Kamthi supra . The question came up for companysideration in companynection with a plea of limitation. There in February 1914 the appellant obtained an assignment of the rights of the plaintiff in a pending suit which was thereafter companytinued by the original plaintiff. In November 1914 a decree was passed in favour of the original plaintiff. The appellant made several applications for execution of the decree in 1916, 1917, 1920 and 1921 all of which were dismissed. In November 1923 the appellant obtained a, fresh assignment in writing from the plaintiff and made a fresh application for execution. The judgment-debtor pleaded that the earlier applications were number in accordance with law and did number keep the decree alive. It was held that although the appellant was entitled, in equity, to the benefit of the decree he did number, before he actually obtained an assignment of the decree in 1923, become a transferee of the decree by an assignment in writing within Order XXI, rule 16 and, therefore, the applications made by him prior to 1923 were number made in accordance with law and, therefore, the last application was barred by limitation. This decision clearly proceeded on the ground that Order XXI, rule 16 companytemplated only the transfer of a decree after it had been passed. The case of Abdul Kader v. Daw Yin 2 does number ,assist the respondent companypany, for in that case the Court took the view that, on its true companystruction, the deed under companysideration in that case actually transferred the decree that bad already been passed. In Prabashinee Debi v. Rasiklal Banerji 3 , Rankin, C.J., companysidered the previous cases and preferred to A.I.R. 1926 Bom. 406 28 Bom. L.R, 776. A.I.R. 1920 Rang. 308. 3 1931 I.L.R. 59 Cal. 297. 1391 follow the case of Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal supra . The case of Purna Chandra Bhowmik v. Barna Kumari Debi 1 does number, when properly understood, afford any support to the companytention of the respondent companypany. There the defendant No. 1 had executed a mortgage bond in favour of the plaintiff assigning by way of security the decree that would be passed in a pending suit which he, the defendant No. I had instituted against a third party for recovery of money due on unpaid bills for work done. After this mortgage a decree was passed in that suit in favour of the defendant No. 1 who bad companytinued that suit as the plaintiff. The plaintiff claiming to be the assignee by way of mortgage of that decree instituted this suit against two defendants. The defendant No. 1 was the plaintiff in the earlier suit who had mortgaged to the plaintiff the decree to be passed in that suit and the defendant No. 2 was a person who claimed to be a transferee of the same decree under a companyveyance subsequently executed in his favour by the first defendant. The judgment-debtor under the decree in the first suit was number made a party defendant in this suit. The first defendant did number companytest this suit and it was only companytested by the second defendant. One of the points raised by the companytesting defendant was that this subsequent suit which was one for a, pure declaration of title was bad under section 42 of the Specific Relief Act inasmuch as the plaintiff did number pray for companysequential relief in the shape of a permanent injunction restraining him, the companytesting defendant, from executing the decree. In repelling that argument as manifestly untenable Mukherjea, J., as he then was, said- All that the plaintiff companyld want possibly at the present stage was a declaration that she was an assignee of the decree and if she gets a declaration it would be open to her to apply for execution of the decree under Order XXI, rule 16, of the Code of Civil Procedure. No other companysequential relief by way of I.L.R. 1939 2 Cal. 341. 178 1392 injunction or otherwise companyld or should have been prayed for by the plaintiff in the present suit. It will be numbericed that the companystruction of Order XXI, rule 16, was number in issue at all. The question was number between the person claiming to be the transferee of the decree and the judgment-debtor. Indeed, the judgment-debtor was number a party to this suit at all. The simple question was whether the suit was maintainable under section 42 by reason of the absence of a prayer for companysequential relief. In view of the facts of that case the observation quoted above appears to me to be a passing one number necessary for the decision of the question then before the Court and number an expression of companysidered opinion on the meaning, scope and effect of Order XXI, rule 16. All the cases, except the three cases relied on by learned companynsel for the respondent companypany, quite clearly lay down- and I think companyrectly-that Order XXI, rule 16, by the first alternative, companytemplates the actual transfer of the decree by an assignment in writing executed after the decree is passed And that while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does number relate back to the prior agreement and does number render the transferee a transferee of the decree by an assignment in writing, within the meaning of Order XXI, rule 16. Learned companynsel for the respondent companypany then companytends that even if the respondent companypany did number, by force of the prior agreement in writing read in the light of the equitable principle alluded to above or of the provisions of the Transfer of Property Act, become the transferees of the decree by an assignment in writing, they, nevertheless, became the transferees of the decree by operation of law within the meaning of Order XXI, rule 16. That phrase has been companysidered by the different High Courts in numerous cases but the interpretations put upon it are number at all uniform and it is difficult to reconcile all of them. 1393 In this judgment in the present case the executing companyrt expressed the view that the phrase companyld only mean that the rights had been transferred on account of devolution of interest on death, etc. In delivering the judgment in the Letters Patent Appeal, Chagla, C.J., said- The operation of law companytemplated by Order XXI, rule-16 is number any equitable principle but operation by devolution as in the case of death or insolvency. The learned Chief Justice does number give any reason for the view expressed by him but assumes the law to be so. The genesis for such assumption is probably traceable to the observations of Sir Robert P. Collier who delivered the judgment of the Privy Council in Abedoonissa Khatoon v. Ameeroonissa Khatoon 1 . The question arose in that case in this way. One Wahed sued his father Abdool for possession of certain properties. The trial Court dismissed the suit and Wahed appealed to the High Court. During the pendency of the appeal Wahed died and his widow Abedoonissa was substituted in the place of Wahed for prosecuting the appeal. The High Court allowed the appeal and by its decree declared that Wahed was in his lifetime and those who became his heirs were entitled to recover the properties in suit. Abedoonissa applied for execution of the decree for herself and for one Wajed who was said to be the posthumous son of Wahed born of her womb. Objection was taken, inter alia, that Wajed was number the legitimate son of Wahed. This objection was overruled and it was held that Abedoonissa was entitled to execute the decree for herself and as the guardian of Wajed. Then the judgment-debtor Abdool died. Abdools widow Ameeroonissa filed a suit for a declaration that Wajed was number the legitimate son of Wahed and for setting aside the last mentioned order. Abedoonissa took the point that the matter was companycluded by principles of res judicata. To that Ameeroonissas reply was that the proceeding in which the question of the legitimacy of Wajed was decided was wholly incompetent so far as 1 1876 L.R. 4 I.A. 66 I.L.R. 2 Cal. 327. 1394 Wajed was companycerned because, the decree being in favour of Abedoonissa, Wajed was number a transferee of the decree within the meaning of section 208 of Act VIII of 1859 companyresponding to Order XXI, rule 16 of the present Code and companyld number apply for execution and that being so any adjudication on his status in such proceeding was number binding at all. The question for decision in the suit was whether Wajed was a transferee of the decree within the meaning of section 208 of the Code of 1859. It was in that companynection that Sir Robert P. Collier in delivering the judgment of the Privy Council, after quoting that section, observed- It appears to their Lordships, in the first place, that,, assuming Wajed to have the interest asserted, the decree was number, in terms of this section, transferred to him, either by assignment, which is number pretended, or by operation of law, from the original decree-holder. No incident bad occurred, on which the law companyld operate, to transfer any estate from his mother to him. There had been numberdeath there bad been numberdevolution there had been numbersuccession. His mother retained what right she had that right was number transferred to him if he had a right, it was derived from his father it appears to their Lordships, therefore, that be is number a transferee of a decree within the terms of this section. The above observations seem to put upon the phrase by operation of law an interpretation which, in the language of Chakravartti, J., in his judgment in Sailendra Kumar v. Bank of Calcutta 1 suggests that it would apply only in cases where certain events, number companynected with any act on the part of anybody towards making a transfer, happen and the law, operating on those events, brings about a transfer. Some of the decisions of certain High Courts to be presently cited seem to assume that their Lordships of the Privy Council were out to give an exhaustive enumeration of the cases of transfer of property by operation of law but I find myself in agreement with Chakravartti, J., that there is numberreason for making I.L.R. 1948 1 Cal. 472. 1395 such an assumption and treating these observations as the text of a statute. In Dinendranath Sannyal v. Ramcoomar Ghose 1 Sir Barnes Peacock pointed out the great distinction between a private sale in satisfaction of a decree and a sale in execution of a decree. One of the principal distinctions so pointed out was- Under the former the purchaser derives title through the vendor, and cannot acquire a better title than that of the vendor. Under the latter the purchaser numberwithstanding he acquires merely the right, title and interest of the judgment-debtor, acquires that title by operation of law adversely to the judgment-debtor, and freed from all alienations or incumbrances effected by him subsequently to this attachment of the property sold in execution. Here the act of the decree-holder in seeking execution by attachment and sale and the act of the Court in directing attachment and sale cannot possibly be said to be the happening of an event unconnected with the act of making a transfer such as death or devolution or succession referred to in Abedoonissas case supra companyld be said to be. By the act of applying for execution the decree-holder quite clearly desires that the judgment-debtor should be stripped of all his right, title and interest in the property attached and sold and the order of the Court has the effect of so denuding the judgment-debtor and of passing his right, title and interest to the purchaser of the property at the Court sale. This transfer of property is number by any assignment in writing executed by the transferor in favour of the transferee but is brought about by the operation of the statutory-provisions relating to and governing execution of decrees. Thus this Privy Council decision itself shows that transfers by operation of law were number intended by it to be companyfined to the three cases of death, devolution or succession. More often than number transfers by operation of law will be found to be brought about by the opera- 1 1889 L.R. 8 I.A. 65, 75. 1396 tion of statutory law. Thus when a person dies testate there is a devolution of his properties to his legal representatives by operation of the law of testamentary succession which is number mainly statutory in this companyntry. When a person is adjudged insolvent his properties vest in the official assignee and that transfer is brought about by the operation of the insolvency laws which have been companyified. Court sale of property in execution of a decree vests the right, title and interest of the judgment-debtor in that property in the auction-purchaser thereby effecting a transfer by operation of the law embodied in the Code of Civil Procedure. Likewise, statutes in some cases provide for the forfeiture of property, e.g. property in relation to which an offence has been companymitted, namely, illicit liquor or opium, etc., and thereby effect a transfer of such property from the delinquent owner to the State. It is neither necessary number profitable to try and enumerate exhaustively the instances of transfer by operation of law. Suffice it to say that there is DO warrant for companyfining transfers by operation of law to transfers by operation of statutory laws. When a Hindu or a Mohammaden dies intestate and his heirs succeed to his estate there is a transfer number by any statute but by the operation of their respective personal law. In order to companystitute a transfer of property by operation of law all that is necessary is that there must be a passing of one persons rights in property to another person by the force of some law, statutory or otherwise. Reference has already been made to the case of Purmananddas Jivandas v. Vallabdas Wallji supra where, by applying the equitable principle, Sargent, C.J., upheld the appellants right to maintain the application for execution. In the beginning the learned Chief Justice founded his decision on the ground that the appellant had become the transferee of the decree by operation of law. This view appears to me to be logical, for it was by the operation of the equitable principle that the right, title and interest of the transferor in the after-acquired decree became the property of the appellant, In other words, 1397 it was equity which operated on the decree as soon as it was passed and passed the interest of the decree-, holder to the appellant. The result of this transmission was to transfer the property from the decree holder to the appellant and this transfer was brought about by the operation of the equitable principle discussed above which is as good as any rule of law. The actual decision in Purmananddas Jivandas Vallabdas Wallji supra may well be supported as an in- stance of transfer by operation of law and indeed Sargent, J., himself first described the transfer in that case as being one by operation of law. The same remarks apply to the other two cases of Ananda Mohon Roy v. Promotha Nath Ganguli supra and Chimanlal Hargovinddas v. Ghulamnabi Supra relied on by learned companynsel for the respondent companypany. In Abdul Kader v. Daw Yin supra in July 1928 the plaintiff obtained a decree that a certain sale deed be set aside on payment of a certain sum and for possession of the properties and mesne profits. In August 1928, i.e., after the passing of the decree the plaintiff executed a deed for the sale of the properties to the appellant who by the terms of the deed was to obtain possession of the properties through Court on payment of the amount mentioned therein. The plaintiff deposited the necessary amount and applied for execution of the decree but she died shortly thereafter. Thereupon the appellant applied for execution of the decree. On a companystruction of the terms of the sale deed the Court came to the companyclusion that the sale deed companyered the decree and, therefore, the appellant was a transferee of the decree by assignment in writing. This was sufficient to dispose of the case but the learned Judges tried to reconcile some of the earlier cases by deducing two propositions 1 that the words by operation of law cannot be invoked so as to make an assignment operative to transfer the decree and the right under it which would upon the true companystruction of its terms, otherwise, be inoperative in that regard and 2 that although in certain cases principles of equity may be relied on, e.g., in the case of a transfer 1398 by trustees and a beneficiary, such principles cannot be companysidered as rendering a transfer valid by operation of law. It is difficult to appreciate the implication of the first proposition. When on a true companystruction of the deed it actually operates to transfer a decree then in existence, numberequitable principle need be invoked, for in that case the transfer is by the deed itself and as such is by an assignment in writing. It is only when the deed does number effectively transfer the decree because, for instance, the decree is number then in existence, but companystitutes only an agreement to transfer the decree after it is passed that the invocation of the equitable principle becomes necessary and it is in those circumstances that equity fastens and operates upon the decree when it is passed and effects a transfer of it. If, however, the learned Judges meant to say that if on a true companystruction of the deed it did number companyer the decree then the equitable principle would number companye into play at all and in that case the principle of transfer by operation of law companyld number be invoked, numberexception need then be taken. As regards the second proposition which appears to be founded on the observations of Mukherji, J., in Mathurapore Zamindary Co.s case supra I do number see why the equitable principle may be relied on only in the case of a transfer by trustees to cestui que trust. Indeed, it was applied in the two earlier English cases as between mortgagor and mortgagee and in Performing Right Society v. London Theatre of Varieties supra to an indenture of assignment of companyyright to be acquired in future made between persons who did number stand in the relationship of trustee and beneficiary. Nor do I see why, in cases where the equitable principle applies, the transfer should number be regarded as one by operation of law. In Mahadeo Baburao Halbe v. Anandrao Shankarrao Deshmukh 1 the judgment companyfined transfers by operation of law to cases of death, devolution or succession for which, as already stated, I see numberwarrant. 1 1933 I.L.R. 57 Bom. 513. 1399 The decision in Periakatha Nadar v. Mahalingam 1 is somewhat obscure. There a receiver appointed in a partnership action filed a suit against a debtor of the firm and obtained a decree. Thereafter the assets of the firm including the decree were directed to be sold by auction amongst the partners. This order was made in spite of the objection of the partners. The decree was purchased by one of the partners who was defendant No. 2. The purchaser then applied for execution of the decree. Pandrang Rao, J. said, at p. 544- It appears to us that the words operation of law cannot apply to, a case where a person has become the owner of a decree by some transaction inter vivos. It applies to cases where the decree has been transferred from one to another by way of succession or where there is a bankruptcy or any similar event which has the effect in law of bringing about such a transfer. If the purchaser of a property in execution sale becomes the transferee of the property by operation of law 1, for one, cannot see why the purchaser of a property at an auction sale held in a partnership action under the order of the Court made in invitum will number be a transferee by operation of law. If an involuntary execution sale is number a transaction inter vivos why should an auction sale held in a partnership action in the teeth of opposition of the parties be a transaction inter vivos? The learned Judges companycluded that as numberparticular form of assignment was prescribed for transfer, the order of the Court might be treated as an assignment in writing of the decree. I find it much easier to hold that there was in that case a transfer by operation of law than that the Court acted as the agent of the partners and the order of the Court was the assignment in writing. The law authorised the Court in a partnership action to order the sale of the partnership assets and companysequently the sale passed the interest of all the partners other than the purchasing partner in the decree solely to A.I.R. 1936 Mad. 548. 179 1400 the latter. I do number see why a transfer thus brought about should number, like a transfer effected by a Court sale in execution, be regarded as a transfer by operation of law. Further, as,I have already said, there is numbervalid reason for companyfining transfer by operation of law to succession and bankruptcy or the like. In G. N. Asundi v. Virappa Andaneppa Manvi 1 a father sued his sons for a declaration of his sole title to a decree previously obtained by the sons against a third party on promissory numberes. The parties came to a companypromise and a joint petition signed by the father and the sons was filed in Court in which it was stated that the sons had numberobjection to surrender all their rights in the decree to the father. The Court passed a decree in accordance with the companypromise. On an application for execution by the father of the decree on the promissory numberes it was held that on its true companystruction the companypromise petition amounted to an assignment of the decree within the meaning of Order XXI rule 16. So far there can be numberdifficulty but the learned Judges went on to say, without, I think, any good reason, that transfer by operation of law was obviously intended to be companyfined to testamentary and intestate succession, forfeiture, insolvency and the like. This was only because the Court felt bound to hold that the decision in Abedoonisas case-had so limited it. It was also pointed out-I think companyrectly -that a decree declaring the title of the decree-holder to another decree previously passed in another suit did number effect a transfer of the earlier decree by operation of law and the decree-holder under the latter decree did number become the transferee of the earlier decree by operation of law within the meaning of Order XXI, rule This was also held in a number of cases including Mahadeo Baburao Halbes case supra and Firm Kushaldas Lekhraj v. Firm Jhamandas Maherchandani 2 . This must follow from the very nature of a declaratory decree. A declaratory decree does number create or companyfer any new right but declares a pre-existing right. Therefore, when a I.L.R. 1939 Bom. 271. A.I.R. 1944 Sind 230. 1401 declaratory decree declares the right of the decree-holder to another decree passed in an earlier suit, there is numberdivesting of interest of one person and vesting of it in another. There is numbertransfer at all and, therefore, the person in whose favour the declaratory decree is passed does number fall within Order XXI, rule 16, Code of Civil Procedure. The last case to which reference need be made is that of Maya Debi v. Rajlakshmi Debi 1 . There a Darpatnidar deposited under section 13 4 of the Bengal Patni Taluqa Regulation VIII of 1819 the arrears of revenue to avoid a putni sale and entered into possession of the putni as he was entitled to do under the above section. He then filed a suit and obtained a decree for arrears of rent due to the Patnidar from another Darpatnidar. Subsequently he relinquished possession in favour of the Patnidar by giving a numberice to the Patnidar. The question was whether the Patnidar, after he got back the possession of the putni, companyld be regarded as the assignee of the decree which had been obtained by the Varpatnidar against another Darpatnidar. It was held that in view of the provisions of section 13 4 the Patnidar on getting back possession of the putni became the transferee of the decree by operation of law. It was also held that the numberice given by the Darpatnidar to the Patnidar companyld also be companystrued as an assignment in writing, The result of the authorities appears to me to be that if by reason of any provision of law, statutory or otherwise, interest in property passes from one person to another there is a transfer of the property by operation of law. There is numberreason that I can see why transfers by operation of law should be regarded as companyfined to the three cases referred to by the Privy Council in Abedoonissas case. If, therefore, I were able to companystrue the document of the 7th February 1949 to be a transfer or an agreement to transfer the decree to be passed in future then I would have had numberdifficulty in holding that by operation of equity the beneficial interest in the decree A.I.R. 1950 Cal. 1. 14O2 was immediately after its passing taken out of the transferors and passed to the respondent companypany and that the latter had become the transferees of the decree number sought to be executed by operation of law. As, however, I have held that that document did number companyer the decree, there was numberroom for the application of the equitable principle and the respondent companypany cannot, therefore, claim to companye under Order XXI, rule 16 as transferees by operation of law and cannot maintain the application for execution. There is another ground on which the right of the respondent companypany to maintain the application for execution has been sought to be sustained. This point was number apparently taken before the High Court and we have number had the advantage and benefit of the opinion of the learned Judges of that Court. Section 146 of the Code of Civil Procedure on which this new point is founded provides as follows Proceedings by or against representatives.Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. There are two questions to be companysidered before the section may be applied, namely, 1 whether the Code otherwise provides and 2 whether the respondent companypany can be said to be persons claiming under the decree-holder. As regards. 1 it is said that Order XXI, rule 16 specifically provides for application for execution by a transferee of decree and, therefore, a transferee of decree cannot apply under section 146 and must bring himself within Order XXI, rule 16. This is really begging the question. Either the respondent companypany are transferees of the decree by an assignment in writing or by operation of law, in which case they fall within Order XXI, rule 16, or they are number such transferees, in which event they may avail themselves of the provisions of section 146 if the other companydition is fulfilled. There is numberhing in Order XXI, rule 16 which, expressly or by necessary implication 1403 precludes a person, who claims to be entitled to the benefit of a decree under the decree-holder but does number answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application which the person from whom he claims companyld have made. It is said what, then, is meant by the words save as otherwise provided by this Code? The answer is that those words are number meaningless but have effect in some cases. Take, by way of an illustration, the second proviso to Order XXI, rule 16 which provides that where a decree for payment of money against two or more persons has been transferred to one of them it shall number be executed against the others. This is a provision which forbids one of the judgment-debtors to whom alone the decree for payment of money has been transferred from making an application for execution and, therefore, he cannot apply under section 146 as a person claiming under the decree-holder. As the respondent companypany do number fall within Order XXI, rule 16 because the document did number companyer the decree to be passed in future in the then pending suit that rule cannot be a bar to the respondent companypany making an application for execution under section 146 if they satisfy the other requirement of that section, namely, that they can, be said to be claiming under the decree-holder. A person may companyceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law. In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree- holder and so it has been held in Sitaramaswami v. Lakshmi Narasimha 1 , although in the earlier case of Dost Muhammad Altaf Husain supra it was held otherwise. The case of Kangati Mahanandi Reddi v. Panikalapati Venkatappa 2 also hold that the provisions of Order XXI, rule 16 did number prevent execution of the decree under section 146. In that case it was held that the appli- 1 1918 I.L.R. 41 Mad. 510. A.I.R. 1942 Mad. 21, 1404 cant companyld number execute the decree under Order XXI, rule 16 but he companyld execute the same under section 146. The main thing to, ascertain is as to whether the respondent companypany had any right, title or interest in the decree and whether they can be said to be persons claiming under the decree- holder. I have already held that the document under companysideration did number transfer the future decree and, therefore, the equitable principle did number apply and, therefore, the respondent companypany did number become a transferee of the decree within the meaning of Order XXI, rule 16. What, then, was the legal position of the respondent companypany? They had undoubtedly, by the document of the 7th February 1949, obtained a transfer of the debt which was the subject matter of the then pending suit. This transfer, under the Transfer of Property Act, carried all the legal incidents and the remedies in relation to that debt. The transferors numberlonger had any right, title or interest in the subject matter of the suit. After the transfer it was the respondent companypany which had the right to companytinue the suit and obtain a decree if the debt was really outstanding. They, however, did number bring themselves on the record as the plaintiffs in the place and stead of the transferors but allowed the latter to proceed with the suit. The transferors, therefore, proceeded with the suit although they had numberlonger any interest in the debt which was the subject matter of the suit and which had been transferred by them to the respondent Company. In the premises, in the eye of the law, the position of the transferors, vis-a-vis the respondent companypany, was numberhing more than that of benamidars for the respondent companypany and when the decree was passed for the recovery of that debt it was the respondent companypany who were the real owners of the decree. As between the respondent companypany and the transferors the former may well claim a declaration of their title. Here there is numberquestion of transfer of the decree by the transferors to the respondent companypany by assignment of the decree in writing or by operation of law and the respondent companypany cannot apply for execution of the 1405 decree under Order XXI, rule 16. But the respondent companypany are, numberetheless, the real owners of the decree because it is passed in relation to and for the recovery of the debt which undoubtedly they acquired by transfer by the document under companysideration. The respondent companypany were after the transfer, the owners of the debt which was the subject matter of the suit and the legal incidents thereof and companysequently were the real owners of the decree. The respondent companypany derived their title to the debt by transfer from the transferors and claimed the same under the latter. When the respondent companypany be,came the owner of the decree immediately on its passing they must, in relation to the decree, be also regarded as persons claiming under the transferors. The respondent companypany would number have become the owner of the decree unless they were the owners of the debt and if they claimed the debt under the trans- ferors they must also claim the relative decree under the transferors as accretions, as it were, to their original right as transferees of the debt. In my opinion, the respondent companypany are entitled under section 146 to make the application for execution which the original decree- holders companyld do. In Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal supra Mukherji, J., felt unable to assent to the broad proposition that Courts of execution have to look to equity in companysidering whether there has been an assignment by operation of law. I see numbercogent reason for taking this view. If the executing Court can and, after the amendment of Order XXI, rule 16 by the deletion of the words if that Court thinks fit, must deal with companyplicated questions relating to transfer of decree by operation of statutory provisions which may be quite abstruse, I do number see why the executing Court may number apply its mind to the simple equitable principle which operates to transfer the beneficial interest in the after-acquired decree or to questions arising under section 146. Section 47 of the Code of Civil Procedure does require that the executing Court alone must determine all questions arising between the 1406 parties or their representatives and relating to the execution,, discharge or satisfaction of the decree and authorises it even to treat the proceedings as a suit. As the assignees from the plaintiff of the debt which was the entire subject matter of the suit the respondent companypany were entitled to be brought on the record under Order XXII, rule 10 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of section 47 of the Code. Learned Counsel for the appellant companytends that the application for execution was defective in that although it purported to be an application for execution under Order XXI, rule 1 1, it did number companyply with the requirements of that rule in that it did number specify any of the several modes in which the assistance of the Court was required. The application was undoubtedly defective as the decision in the case of Radha Nath Das v. Produmna Kumar Sarkar 1 and Krishna Govind Patil v. Moolchand Keshavchand Gujar 1 will show but this objection was number taken before the executing Court which companyld then have returned the application, number was any objection taken by the appellant at any later stage of the proceedings. Further, it appears that the respondent companypany actually presented another tabular statement for execution specifying the mode in which the assistance of the Court was required. In these circumstances, it is number open to the appellant to companytend that the application is number maintainable. The result, therefore, is that this appeal must be dismissed with companyts. BHAGWATI J.-I agree that the appeal be dismissed with companyts. I would however like to record my own reasons for doing so. Habib Sons, a partnership firm which carried on business as merchants and Pukka Adatias in bullion and companyton in Bombay filed a suit against the Appellant in the City Civil Court, Bombay being Summary I.L.R. 1939 2 Cal. 325. A.I.R. 1911 Bom. 302. 1407 Suit No. 233 of 1948, to recover a sum of Rs. 7,113-7-0 with interest and companyts. During the pendency of the suit an agreement was arrived at between Habib Sons and the Respondents on the 7th February, 1949 under which Habib Sons transferred to the Respondents inter alia Fourthy-All the book and other debts due to the Vendors in companynection with the said Indian business and the full benefit of all securities for the debts Sixthly-All other property to which -the Vendors are entitled in companynection with the said Indian business. As companysideration for the said transfer the Respondents undertook to pay satisfy, discharge and fulfill all the debts, liabilities companytracts and engagements of the vendors in relation to the said Indian business and to indemnify them against all proceedings, claims and demands in respect thereof. The Respondents did number take any steps under Order XXII, rule 10 of the Code of Civil Procedure to bring themselves on the record of the suit as plaintiffs in place and stead of Habib Sons and a decree was passed in favour of Habib Sons against the Appellant on the 15th December, 1949 for Rs. 8,428/7/- inclusive of interest and companyts with interest on judgment at 4 per cent. per annum till payment. Both the partners of Habib Sons were declared evacuees and by his order dated the 2nd August, 1950 the Custodian of Evacuee Property, Bombay companyfirmed the transaction of transfer of the business of Habib Sons to the Respondents as evidenced by the agreement dated the 7th February, 1949. A companymunication to that effect was addressed by the Custodian to a Director of the Respondents on the 11th December 1950. On the 25th April, 1951 the Respondents filed in the City Civil Court, Bombay an application for execution under Order XXI rule 11 of the Code of Civil Procedure to execute the decree obtained by Habib Sons against the Appellant. That application was by the Respondents as assignees of the decree and the mode in which the assistance of the Court was required was that the Court should declare the Respon- 1408 dents the assignees of the decree as the decretal debt along with other debts were transferred by Habib Sons to them by a deed of assignment dated the 7th February, 1949 which was companyfirmed by the Custodian of Evacuee Property, Bombay and should order them to be substituted for the plaintiffs. A numberice under Order XXI, rule 16 of the Code of Civil Procedure was issued by the Court on the 10th May, 1951, calling upon Habib Sons and the Appellant to show cause why the decree passed in favour of Habib Sons and by them transferred to the Respondents, the assignees of the decree should number be executed by the said transferees against the Appellant. The Appellant showed cause and companytended 1 that the deed of assignment in favour of the Respondents was number executed by Habib Sons and 2 that the assignee of the subject-matter of the suit and number of the decree itself was number entitled to apply for leave under Order XXI, Rule 16 of the Code of Civil Procedure. The Chamber Summons was adjourned to Court in order to take evidence whether the document in question was executed by Habib Sons or number. Evidence was led at the hearing and the Court held the document duly executed by the two partners of Habib Sons and as such duly proved. On the question of law the Court followed the decisions in Purmananddas Jiwandas v. Vallabdas Wallji 1 and Chimanlal Hargovinddas v. Gulamnabi 2 and held that the Respondents were entitled to execute the decree under Order XXI, rule 16 of the Code of Civil Procedure. An appeal was taken by the Appellant to the High Court against this decision of the City Civil Court. The appeal came for hearing before Dixit, J. The finding that the deed of assignment was duly proved was number challenged. But the companytention that inasmuch as there was numbertransfer of the decree itself, but only of the property the Respondents were number entitled to apply to execute the decree was pressed and was negatived by the learned Judge. The learned Judge observed that if the language of Order XXI, 1 1877 I.L.R. 11 Bom. 506. I.L.R. 1946 Bom. 276. 1409 rule 16 was strictly companystrued it seemed to him that the Respondents had numbercase. But he followed the decisions in Purmananddas Jiwandas v. Vallabdas Wallji 1 and Chimanlal Hargovinddas v. Gulamnabi 2 and dismissed the appeal. A Letters Patent Appeal was filed against this decision of Dixit, J. and it came on for hearing and final disposal before a Division Bench of the High Court companystituted by Chagla, C.J. and Shah, J. The Division Bench also were of the opinion that if one were to companystrue Order XXI, rule 16 strictly there was numberassignment of the decree in favour of the respondents. They however were of the opinion that the High Court had companysistently taken the view that there companyld be an equitable assignment of a decree, which would companystitute the assignee an assignee for the purpose of Order XXI, rule 16 and that what the Court must companysider was number merely a legal assignment but also an assignment which operated in equity. They then companysidered the two Bombay decisions which had been relied upon by the City Civil Court as well as by Dixit, J. and came to the companyclusion that the deed of assignment fell within the principle of those two decisions, that it companystituted an equitable assignment of the decree which was ultimately passed in favour of Habib Sons, that the application for execution was maintainable under Order XXI, rule 16 and dismissed the appeal. The Appellant applied for and obtained the necessary certificate under article 133 1 c of the Constitution. Order XXI, rule 16 provides for an application for execution by transferee of a decree and runs as under- Where a decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same companyditions as if the application were made by such decree-holder 1 1877 I.L.R. 11 Bom. 506. I.L.R. 1946 Bom. 276. 1410 Provided that, where the decree I has been transferred by assignment, numberice of such application shall be given to the transferor and the judgment-debtor, and the decree shall number be executed until the Court has heard their objections if any to its execution The transfer companytemplated under this rule is either by assignment in writing or by operation of law. It was number companytended by the Appellant at any stage of the proceedings that there was in this case a transfer by operation of law or that the agreement dated the 7th February 1949 was number an assignment of all the rights which Habib Sons had in companynection with the Indian business. The question therefore that falls to be companysidered is whether the deed of assignment dated the 7th February 1949 operates as a transfer of the decree by assignment in writing within the meaning of Order XXI, rule 16 of the Code of Civil Procedure. A strict and narrow companystruction has been put upon the words where a decree is transferred by assignment in writing by the High Court of Madras in Basroovittil Bhandari v. Ramchandra Kamthi 1 and the decisions following it, particularly Kangati Mahanandi Reddi v. Panikalapati Venkatappa Another 2 and by the High Court of Calcutta in Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal 1 which is followed in Prabashinee Debi v. Rasiklal Banerji 4 . They have held that the words decree-holder must be companystrued as meaning decree-holder in fact and number as including a party who in equity may afterwards become entitled to the rights of the actual decree-holder and that the language of Order XXI, rule 16 old section 232 cannot be companystrued so as to apply -to a case where there was numberdecree in existence at the time of the assignment and this position was in effect companyceded by Dixit, J. and by the Division Bench when they observed that on a strict companystruc- 1 1907 17 Madras Law Journal 391, A.I R. 1942 Madras 21. 3 1924 I.L.R. 51 Calcutta 703. 4 1931 I.L R. 59 Calcutta 297. 1411 tion of Order XXI, rule 16 there was numberassignment of the decree in favour of the Respondents. A companytrary view has however been taken by the High Court of Bombay in Purmananddas Jiwandas V. Vallabdas Wallji 1 and Chimanlal Hargovinddas V. Gulamnabi 2 . These two decisions have applied the equitable principle enunciated by Sir George Jessel, M. R. in Collyer v. Isaacs 1 as under- The creditor had a mortgage security on existing chattels and also the benefit of what in form was an assignment of number-existing chattels which might be afterwards brought on to the premises. That assignment, in fact, companystituted only a companytract to give him the after-acquired chattels. A man cannot in equity, any more than at law, assign what has numberexistence. A man can companytract to assign property which is to companye into existence in the future, and when it has companye into existence, equity, treating as done that which ought to be done, fastens upon that property, and the companytract to assign thus becomes a companyplete assignment. The High Court of Calcutta also applied the same principle in Purna Chandra Bhowmik v. Barna Kumari Debi 4 and the High Court of Madras in Kangati Mahanandi Reddi v. Panikalapati Venkatappa and another 5 observed that if the matter were res integra much might perhaps be said for the companytention that the assignee under similar circumstances companyld execute the decree under Order XXI, rule 16. The decision in Purmananddas Jivandas V. Vallabdas Wallji 1 and the equitable principle enunciated therein was brought to the numberice of the learned Judges who decided the case of Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal 6 but was negatived by them and they relied upon the observations of the Privy Council in dealing with a somewhat similar provision companytained in Section 208 of Act VIII of 1859 in the case of Abedoonissa Khatoon v. Ameeroonissa Khatoon 1 1 1877 I.L.R. 11 Bom. 506. 2 I.L.R. 1946 Bom. 276. L.R. 19 Ch. D. 342. 4 I.L.R 1939 2 Calcutta 341. A.I.R. 1942 Madras 21. 6 1924 I.L.R. 51 Calcutta 703. 7 1876 L.R. 4 I.A. 66. 1412 Their Lordships have further to observe, that they agree with the Chief Justice in the view which he expressed,-that this was number a section intended to apply to cases where a serious companytest arose with respect to the rights of persons to an equitable interest in a decree. Rankin, C.J. laid stress upon this aspect of the question and delivered a similar opinion in Prabhashinee Debi v. Rasiklal Banerji 1 at page 299- There seem to be two possible views of the rule. One view would be to say that there must be a decree in existence and a transfer in writing of that decree. That is the strict view-a view which the companyrts in India have taken. The only other possible view would be to say that, while other cases are within the rule-such as cases where a person claims to be entitled in equity under an agreement to the benefit of the decree-it is optional with the companyrts to give effect to the rule according as the case is a clear one or one which requires investigation of companyplicated facts or difficult questions of law unsuited for discussion on a mere execution application. In that view, if it were understood that the companyrt had a companyplete discretion to apply the rule or number, it might be that the rule would be workable but I do number think that any such discretion as that is intended to be given by the rule and he fortified himself in his companyclusion by relying upon the deletion of the words if that Court thinks fit the decree may be executed when the Civil Procedure Code of 1908 was enacted. Order XXI, rule 16 of the Code of Civil Procedure is a statutory provision for execution by the transferee of a decree and unless and until a person applying for execution establishes his title as the transferee of a decree he cannot claim the benefit of that provision. He may establish his title by proving that he is a transferee of a decree by assignment in writing or by operation of law. Section 5 of the Transfer of Property Act defines a transfer of pro- 1 1931 I.L.R.59 Calcutta 297. 1413 perty as an act by which the transferor companyveys property in present or in future to the transferee or transferees. A transfer of a decree by assignment in writing may be effected by companyveying the decree in present or in future to the transferee. But even for the transfer to operate in future the decree which is the subject matter of the transfer must be in existence at the date of the transfer. The words in present or in future qualify the word companyveys and number the word property in the section and it has been held that a transfer of property that is number in existence operates as a companytract to be performed in the future which may be specifically enforced as soon as the property companyes into existence. As was observed by the Privy Council in Rajah Sahib Perhlad v. Budhoo 1 - But how can there be any transfer, actual or companystructive, upon a companytract under which the vendor sells that of which he has number possession, and to which he may never establish a title? The bill of sale in such a case can only be evidence of a companytract to be performed in future, and upon the happening of a companytingency, of which the purchaser may claim a specific performance, if be companyes into Court shewing that he has himself done all that he was bound to do. It is only by the operation of the equitable principle that as soon as the property companyes into existence and is capable of being identified, equity taking as done that which ought to be done fastens upon the property and the companytract to assign thus becomes a companyplete equitable assignment. In the case of a decree to be passed in the future therefore there companyld be numberassignment of the decree unless and until the decree was passed and the agreement to assign fastened on the decree and thus became a companyplete equitable assignment. The decree number being in existence at the date of the transfer cannot be said to have been transferred by the assignment in writing and the matter resting merely in a companytract to be performed in the future which may be specifically enforced as soon as the decree was passed there would be numbertransfer 1 1869 12 M.I.A. 276. 1414 automatically in favour of the transferee of the decree when passed. It would require a further act on the part of the transferor to companypletely effectuate the transfer and if he did number do so the only remedy of the transferee would-be to sue for specific performance of the companytract to transfer. There would therefore be numberlegal transfer or assignment of the decree to be passed in future by virtue of the assignment in writing executed before the decree came into existence and the only way in which the transferee companyld claim that the decree was transferred to him by assignment in writing would be by the operation of the equitable principle above enunciated and the companytract to assign having become a companyplete equitable assignment of the decree. Is there any warrant for importing this equitable principle while companystruing the statutory Provision enacted in Order XXI, rule 16 of the Code of Civil Procedure? The Code of Civil Procedure does number prescribe any mode in which an assignment in writing has got to be executed in order to effectuate a transfer of a decree. The only other statutory provision in regard to assignments in writing is to be found in Chapter VIII of the Transfer of Property Act which relates to transfers of actionable claims and an actionable claim has been defined in section 3 of the Act as a claim to any debt or to any beneficial interest in movable property number in the possession, either actual or companystructive, of the claimant, which the Civil Courts recognize as affording grounds for relief A judgment debt or decree is number an actionable claim for numberaction is necessary to realise it. It has already been the subject of an action and is secured by the decree. A decree to be passed in future also does number companye as such within the definition of an actionable claim and an assignment or transfer thereof need number be effected in the manner prescribed by section 130 of the Transfer of Property Act. If therefore the assignment or transfer of a decree to be passed in the future does number require to be effectuated in the manner prescribed in the statute there would be numberobjection to the 1415 operation of the equitable principle above enunciated and the companytract to assign evidenced by the assignment in writing becoming a companyplete equitable assignment of the decree when passed. The assignment in writing of the decree to be passed would thus result in a companytract to assign which companytract to assign would become a companyplete equitable assignment on the decree being Passed and would fulfill the requirements of Order XXI, rule 16 in so far as the assignment or the transfer of -the decree would in that event be effectuated by an assignment in writing which became a companyplete equitable assignment of the decree when passed. There is numberhing in the provisions of the Civil Procedure Code or any other law which prevents the operation of this equitable principle and in working out the rights and liabilities of the transferee of a decree on the one hand and the decree-holder and the judgment debtor on the other, there is numberwarrant for reading the words where a decree is transferred by assignment in writing in the strict and narrow sense,, in which they have been read by the High Court of Madras in Basroovittil Bhandari v. Ramchandra Kamthi 1 and the High Court of Calcutta in Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal 2 and Prabashinee Debi v. Rasiklal Banerji 3 . It is significant to observe that the High Court of Calcutta in Purna Chandra Bhowmik v. Barna Kumari Debi 1 applied this equitable principle and held that the plaintiff in whose favour the defendant had executed a mortgage bond assigning by way of security the decree that would be passed in a suit instituted by him against a third party for recovery of money due on unpaid bills for work done was entitled to a declaration that be was the assignee of the decree passed in favour of the defendants and was as such entitled to realise the decretal debt either amicably or by execution. If the plaintiff was thus declared to be the assignee of the decree subsequently passed in favour of the defendant and entitled to realise the decretal amount by execution he companyld 1 1907 17 MI.L.J. 391. 3 1931 I.L.R. 59 Cal. 297. 2 1924 I.L.R. 51 Cal. 703. I.L.R. 1939 2 Cal 341. 1416 apply for execution of the decree and avail himself of the provisions of Order XXI, rule 16 as the assignee of the decree -which was passed subsequent to the date of the assignment in writing in his favour. There companyld be number-objection to decide questions involving investigation of companyplicated facts or difficult questions of law in execution proceedings, as section 47 of the Code of Civil Procedure authorises the Court executing the decree to decide all questions arising therein and relating to execution of the decree and subsection 2 further authorises the executing Court to treat a proceeding under the section as a suit thus obviating the necessity of filing a separate suit for the determination of the same. The line of decisions of the High Court of Bombay beginning with Purmananddas jivandas v. Vallabdas Wallji 1 and ending with Chimanlal Hargovinddas Gulamnabi 2 importing the equitable principle above enunciated therefore appears to me to be more in companysonance with law and equity than the strict and narrow interpretation put on the words where a decree is transferred by assignment in writing by the High Courts of Madras and Calcutta in the decisions above numbered. Even if an equitable assignment be thus companystrued as falling within an assignment in writing companytemplated by Order XXI, rule 16 of the Code of Civil Procedure it would in terms require an assignment of the decree which was to be passed in the future in favour of the assignor. In the present case, it is impossible to read the deed of assignment dated the 7th February, 1949 as expressly or by necessary implica- tion assigning in favour of the Respondent the decree which was going to be passed by the City Civil Court in favour of Habib Sons. There is however another aspect of the matter which was number urged before the Courts below in the present case number does it appear to have been companysidered in -most of the judgments above referred to. There is numberdoubt on the authorities that a mere transfer of property as such does number by itself spell out 1 1877 I.L.R. 11 Bom. 506. I.L R. 1946 Bom.276. 1417 a transfer of a decree which has been passed or may be passed in respect of that property and it would require an assignment of such decree in order to effectuate the transfer vide Hansraj Pal v. Mukhraji Kunuvar others 1 , Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal 2 , and Kangati Mahanandi Reddi v. Panikalapati Venkatappa another 3 . Where however the property which is transferred is an actionable claim within the meaning of its definition in section 3 of the Transfer of Property Act the companysequences of such transfer would be different. An actionable claim means a claim to any debt, or to any beneficial interest in moveable property number in the possession, either actual or companystructive, of the claimant, which the Civil Courts recognize as affording grounds -for relief, and a transfer of an actionable claim when effected by an instrument in writing signed by the transferor is under section 130 of the Act companyplete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, vest in the transferee, whether such numberice of the transfer as is therein provided be given to the debtor or number. If the book debt or the property which is an actionable claim is thus transferred by an assignment in writing all the rights and remedies of the transferor in respect thereof including the right to prosecute the claim to judgment in a Court of law either in a pending litigation or by institution of a suit for recovery of the same vest in the transferee immediately upon the execution of the assignment -as a necessary companyollary thereof. Not only is the actionable claim thus transferred but all the necessary adjuncts or appurtenances thereto are transferred along with the same to the transferee. Section 8 of the Act provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof These incidents include where the property is 1 1908 I.L.R. 30 All. 28. 2 1924 I.L. R. 51 Cal. 703. A.I.R. 1942 Mlad. 21. 1418 a debt or other actionable claim, the securities there- for but number arrears of interest accrued before the transfer. In cases of transfer of book debts or property companying within the definition of actionable claim there is therefore necessarily involved also a transfer of the transferors right in a decree which may be passed in his favour in a pending litigation and the moment a decree is passed in his favour by the companyrt of law, that decree is also automatically transferred in favour of the transferee by virtue of the assignment in Writing already executed by the transferor. The debt which is the subject- matter of the claim is merged in the decree and the transferee of the actionable claim becomes entitled by virtue of the assignment in writing in his favour number only to the book debt but also to the decree in which it has merged. The book debt does number lose its character of a debt by its being merged in the decree and the transferee is without anything more entitled to the benefit of the decree passed by the companyrt of law in favour of the transferor. It would have been open to the transferee after the execution of the deed of assignment in his favour to take steps under Order XXXII, rule 10 of the Code of Civil Procedure to have himself substituted in the pending litigation as a plaintiff in place and stead of the transferor and prosecute the claim to judgment but even if he did number do so he is number deprived of the benefit of the decree ultimately passed by the companyrt of law in favour of the transferor, the only disability attaching to his position being that under section 132. of the Act he would take the actionable claim subject to all the liabilities and equities to which the transferor was subject in respect thereof at the date of the transfer. The transferee of the actionable claim thus companyld step into the shoes of the transferor and claim to be the transferee of the decree by virtue of the assignment in writing executed by the transferor in his favour and companyld therefore claim to execute the decree as transferee under Order XXI, rule 16 of the, Code of Civil Procedure. This aspect companyld number be companysidered by the High 1419 Court of Bombay in Purmananddas Jivandas v. Vallabdas Wallji 1 because the assignment there was executed on the 11th May, 1870, i.e. before the enactment of the Transfer of Property Act in 1882. The Court therefore applied the equitable principles and came to the companyclusion that the equitable assignment which was companypleted on the passing of the decree was companyered by the old section 232 of the Code of Civil Procedure. It was also number companysidered by the Full Bench of the High Court of Bombay in Chimanlal Hargovinddas Gulamnabi 2 number by Dixit, J. or by the Division Bench in the present case. The High Court of Patna in Thakuri Gope and Others v. Mokhtar Ahmad Another 3 , went very near it when it observed that all that was transferred was an actionable claim, but did number work out the companysequences thereof and its reason in was deflected by the companysideration of the equitable principles and the applicability thereof while companystruing the provisions of Order XXI, rule 16 of the Code of Civil Procedure. The High Court of Calcutta in Purna Chandra Bhowmik v. Barna Kumari Debi 4 definitely adopted this position and observed at p. 344- In my opinion, what was transferred was the claim to a debt and as such would companye within the definition of actionable claim as given in section 3 of the Transfer of Property Act. The mere, fact that the claim was reduced by the-Court did number make, in my opinion, any difference. It numberdoubt applied the equitable principle also and held that the mortgage. must be deemed to have attached itself to the decree which was for a definite amount as soon as the decree was passed, but further observed that the plaintiff was entitled to a declaration that she was an assignee of the decree and if she got that declaration it would be open to her to apply for execution of the decree under Order XXI, rule 16 of the Code of Civil Procedure. I am sure that if this aspect of the question had been properly presented to Dixit, J. or the Division Bench in the 1 1877 I.L.R. 11 Bom. 506. A.I.R.1922 Patna 563, I.L.R.1946 Bom. 276. I.L.R, 1939 2 Cal. 341, 1420 present case they also would have companye to the same companyclusion. Mr. Umrigar, learned companynsel for the Respondents, further urged that even if the Respondents were number entitled to the benefit of Order XXI, rule 16 of the Code of Civil Procedure they were the true owners of the debt and the decree which was ultimately passed by the City Civil Court in favour of Habib and Sons by virtue of the deed of assignment dated the 7th February 1949 and that under section 146 of the Code of Civil Procedure execution proceedings companyld be taken and application for execution companyld be made by them as persons claiming under Habib Sons. The deed of assignment transferred the debt which was the subject matter of the pending litigation in the City Civil Court between Habib Sons and the Appellant. Habib Sons companyld have taken proceedings in execution and made the application for execu- tion of the decree against the Appellant and the Respondents claiming under Habib Sons by virtue of the deed of assignment were therefore entitled to take the execution proceedings and make the application for execution under Order XXI, rule II of the Code of Civil Procedure. He also urged that Order XXI, rule 16 of the Code of Civil Procedure did number prohibit such execution proceedings at the instance of the Respondents and for this purpose relied upon the observations of the learned Judges of the High Court of Madras in Kangati Mahanandi Reddi v. Panikalapati Venkatappa another 1 at page 23- We are unable to hold that merely because rule 16 has been interpreted as applying only to decrees in existence at the time of the transfer, it prohibits an application by a transferee who obtained the transfer of a decree, a transfer which is legally valid and is embodied in a written deed as rule 16 requires before the decree was actually passed. To permit execution by such a transferee, in our opinion, in numberway violates the principles which are embodied in rule 16 or in Order XXI generally. The appellant here is the A I.R. 1942 Mlad. 21. 1421 true owner of the decree, and he has his written title deed, and that is all that the law requires. It was however urged on behalf of the Appellant that section 146 did number apply because Order XXI, rule 16 was a specific -provision in the Code of Civil Procedure which applied when a person other than a decree-holder wanted to execute the decree and if the Respondents companyld number avail themselves of Order XXI, rule 16 of the Code of Civil Procedure they companyld number avail themselves of section 146 also. Reliance was placed in support of this companytention on a decision of the High Court of Patna in Thakuri Gope and others v. Mokhtar Ahmad and another 1 and another decision of the High Court of Allahabad in Shib Charan Das v. Ram Chander others 2 . This companytention of the Appellant is obviously unsound. Order XXI, rule 16 provides for execution of a decree at the instance of a, transferee by assignment in writing or by operation of law and enables such transferee to apply for execution of the decree to the Court which passed it. If a transferee of a decree can avail himself of that provision by establishing that he is such a transferee he must only avail himself of that provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of Order XXI, rule 16 of the Code of Civil Procedure there is numberhing in the provisions of Order XXI, rule 16 which prohibits him from availing himself of section 146 if the provisions of that section can be availed of by him. That is the only meaning of the expression save as otherwise provided by this Code. If a person does number fall within the four companyners of the provision of Order XXI, rule 16 of the Code of Civil Procedure that provision certainly does number apply to him and the words save as otherwise provided in this Code companytained in section 146 would number companye in the way of his availing himself of section ,146 because Order XXI, rule 16 cannot then be companystrued as an otherwise provision companytained in the Code. I am therefore of the opinion that if the Respondents companyld number avail themselves of Order XXI, A.I.R. 1922 Patna 663. A.I.R. 1922 All. 98, 1422 rule 16 of the Code of Civil Procedure they companyld certainly under the circumstances of the present case take the execution proceedings and make the application for execution of the decree passed by the City Civil Court in favour of Habib Sons under section 146 of the Civil Procedure Code. An objection was however taken on behalf of the Appellant during the companyrse of the arguments before us though numbersuch objection was taken in the Courts below, that the application for execution made by the Respondents was defective inasmuch as it was number an application in proper form under Order XXI, rule 11 of the Code of Civil Procedure. Order XXI, rule 11 2 j prescribes that particulars in regard to the mode in which the assistance of the Court was required should be set out there in. The respondents had in -their application for execution filed before the City Civil Court number mentioned any of these particulars but had only stated that the Court should declare them the assignees of the decree as the decretal debt along with other debts were transferred by Habib Sons to them by the deed of assignment dated the 7th February 1949 which was companyfirmed by the Custodian of Evacuee Property, Bombay and should order them to be substituted for Habib Sons. This was numbercompliance with the provisions of Order XXI, rule 11 2 j and therefore there was numberproper application for execution before the Court and the same was liable to be dismissed. Reliance was placed in support of this companytention on a decision of the High Court of Calcutta in Radha Nath Das v. Produmna Kumar Sarkar 1 , where it was held dissenting from a decision of the High Court of Bombay in Baijnath Ramchander v. Binjraj Joowarmal Batia Co. 2 that under Order XXI, rule 16 of the Code of Civil Procedure the ,assignee of a decree cannot make two applications, one for recording the assignment and another for executing the decree. The assignee of a decree companyld only make one application for execution under Order XXI, rule 1 1 of the Code of Civil Procedure specifying therein the mode in which the assistance of the Court I.L.R. 1939 2 Calcutta 325. I.L.R 1937 Bombay 691. 1423 was required and it was only after such application had been made to the Court which passed the decree that the Court would issue numberice under Order XXIL rule 16 to the transferor and the judgment debtor and the decree would number be executed until the Court had heard their objections if any to its execution. Sen, J. in that case observed at page 327- It seems to me to be obvious from the wording of the rule that there can be numbernotice to the transferor or judgment- debtor and numberhearing of any objection unless and until there is an application for execution. Tile numberice and the entire proceedings under Order XXI, rule 16, originate from an application for execution. If there is numbersuch application the proceedings are without any foundation. Order XXI, rule 16, of the Code numberhere provides for an application to record an assignment or for an application for leave to execute a decree by an assignee or for an application for substitution. This in my opinion companyrectly sets out the position in law and in so far as the two decisions of the High Court of Bombay in Baijnath Ramchander v. Binjraj Joowarmal Batia Co. 1 and Krishna Govind Patil v. Moolchand Keshavchand Gujar 2 decide anything to the companytrary they are number companyrect. The position was clarified by a later decision of the High Court of Bombay in Bhagwant Balajirao and Others v. Rajaram Sajnaji Others 3 where Rajadhyaksha and Macklin, JJ. held, following Radha Nath Das v. Produmna Kumar Sarkar 1 that an application made by an assignee of a decree must under Order XXI, rule 16 be for the execution of the decree and number merely for the recognition of the assignment and for leave to execute the decree. It was urged before the learned Judges that the practice in the High Court of Bombay was to entertain applications of this kind, but they observed that the practice if such a practice prevailed was opposed to the provisions of the Order XXI, rule 16 of the Code of Civil Procedure. The companytention therefore urged on behalf of the Appellant that the I.L.R.1937 Bom. 691. A.I.R.1947 Bom. 157. A.I.R.1941 Bom. 302 F.B. I.L.R. 1939 2 Cal. 325. 1424 application for execution in the present case was defective appears to have some foundation. This defect however was number such as to preclude the Respondents from obtaining the necessary relief. The application which was filed by them in the City Civil Court was headed application for execution under Order XXI, rule 11 of the Code of Civil Procedure and the only defect was in the specification of the mode in which the assistance of the Court was required. The particulars which were required to be filled in companyumn J. were number in accordance with the requirements of Order XXI, rule 11 2 j and should have specified one of the modes therein prescribed and certainly a declaration that the respondents were the assignees of the decree and the order for their substitution as the plaintiffs was certainly number one of the prescribed modes which were required to be specified in that companyumn. The practice which prevailed in the High Court of Bombay as recognised in Baijnath Ramchander v. Binjraj Joowarmal Batia Co 1 and also in Bhagwant Balajirao and others v. Rajaram Sajnaji others 3 appears to have been the only justification for making the application in the manner which the respondents did. That defect however according to the very same decision in Bhagwant Balajirao and others v. Rajaram Sajnaji others 3 was purely technical and might be allowed to be cured by amendment of the application. As a matter of fact Order XXI, rule 17 lays down the procedure on receiving applications for execution of a decree and enjoins upon the Court the duty to ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been companyplied with and if they have number been companyplied with the Court has to reject the application or allow the defect to be remedied then and there or within a time to be fixed by it. When the application for execution in the present case was received by the City Civil Court, the Court should have scrutinised the application as required by Order XXI, rule 17 1 and if it was found that the I.L.R. 1937 Bom. 691. A.I.R. 1947 Bom 157. 1425 requirements of rules 11 to 14 as may be applicable were number companyplied with as is companytended for by the Appellant, the Court should have rejected the application or allowed the defect to be remedied then and there or within a time to be fixed by the Court. Nothing of the kind was ever done by the City Civil Court number was any objection in that behalf taken on behalf of the Appellant at any time until the matter came before this Court. On the 27th March, 1952 however a further application for execution was filed by the Respondents in the City Civil Court specifying in companyumn J the mode in which the assistance of the Court was required and it was by ordering attachment and sale of the moveable property of the Appellant therein specified. This further application for execution was a sufficient companypliance with the provisions of Order XXI, rule I 1 2 j and was sufficient under the circumstances to cure the defect, if any, in the original application for execution made by the Respondents to the City Civil Court on the 25th April, 1951. This objection of the Appellant therefore is devoid of any substance and does number avail him. The appeal accordingly fails and is dismissed with companyts. IMAM J.-I have had the advantage of perusing the judgments of my learned brethren. I agree that the appeal must be dismissed with companyts and in the view expressed by them that the respondent should be permitted under the provisions of section 146 of the Code of Civil Procedure to execute the decree passed in favour of Habib Sons, as one claiming under the latter. The document under which the respondent claimed to execute the decree was treated as a deed of transfer in the companyrts below and number merely as an agreement to transfer. By this document there was a transfer of all the book and other debts due to Habib Sons in companynection with the Indian business and the full benefit of all securities for the debts. The document, however, neither in terms, number by any reasonable inter- 1426 pretation of its companytents purported to transfer any decree which Habib Sons may obtain in the future. It seems to me, therefore, that the respondent cannot claim to be a transferee of the decree, which was subsequently obtained by Habib Sons, by an assignment in writing within the meaning of Order XXI, rule 16 of the Code of Civil Procedure. Order XXI of the Code of Civil Procedure relates to execution of decrees and orders. Rule 1 of that Order relates to payments under a decree which has been passed. Rules 4 to 9 relate to the transfer of an existing decree for execution. The numbermal rule is that a decree can be executed only by the person in whose name it stands and rule 10 enables him to do so, while rule 16 of Order XXI, enables the transferee of the decree to execute it in the same manner and subject to the same companyditions as an application for execution made by the decree-holder. It seems to me, therefore, that there must be a decree in existence which is transferred before the transferee can benefit from the provisions of rule 16. The ordinary and natural meaning of the words of rule, 16 can carry numberother interpretation and the question of a strict and narrow interpretation of its provisions does number arise. The position of an assignee, before a decree is passed, is amply safeguarded by the provisions of Order XXII, rule 10, which enables him to obtain the leave of the Court to companytinue the suit. Thereafter the decree, if any, would be in his name which he companyld execute. I agree with my learned brother Das, J., that the provisions of Order XXI, rule 16 companytemplate the actual transfer by an assignment in writing of a decree after it is passed and that while a transfer of or an agree- ment to transfer a decree that may be passed in future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does number render the transferee a transferee of the decree by assignment in writing within the meaning of Order XXI, rule 16. In this respect the decisions of the Madras High Court in Basroovittil Bhandari Ramchandra Kamthi 1 1 1907 17 M.L.J. 391, 1427 and of the Calcutta High Court in Mathurapore Zamindary Co. Ltd. v. Bhasaram Mandal 1 and Prabashinee Debi v. Rasiklal Banerji 2 are companyrect.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 252 of 1954. Appeal by Special Leave from the Judgment and Order dated the 22nd January 1953 of the Election Tribunal, Vellore in Election Petition No. 35 of 1952. C. Chatterjee A. N. Sinha and N. H. Hingorani, with him , for the appellant. V. L. Narayan, for respondent No. 1. 1955. March 29. The Judgment of the Court was delivered by SINHA. J.-The only question for determination in this appeal by special leave is whether the appellant is disqualified-under section 7 d of the Representation of the People Act, 1951 hereinafter called the Act for election to the House of the People, as held by the Election Tribunal, North Arcot, Vellore, by its orders dated the 20th January, 1953 in Election Petition No. 35 of 1952. The facts of this case are number in dispute and lie within a narrow companypass. The appellant and respondents I to 3 companytested the last general elections from the Dharmapuri Parliamentary Constituency in the district of Salem in the State of Madras. Respondents 4 to 10 who were added subsequently by an order of the Tribunal were also candidates for election. Their numberinations also had been held to be valid but they ultimately withdrew their candidature before the polling took place. The appellant was in due companyrse declared to have been elected to the House of the People. Thereafter, on the 5th March, 1952 the 1st respondent filed an election petition before the Election Commission companytesting the appellants election on the ground that the appellant was disqualified under section 7 d of the Act as, from the date of his numberination and until the date of election and after, the appellant had a companytract with the Government of India in the Postal Department for the transport of postal mail which was a service undertaken by the Government of India. At this stage it is necessary to state that it is admitted that the appellant is and has been the holder of a stage carriage service permit Ex. B-2 dated the 26th April 1949, issued by the Regional Transport Authority, Salem, Madras. It was one of the companyditions of the said permit that if called upon the appellant will enter into an agreement with the Government of India for the transport of postal articles and mail bags. In pursuance of that obligation the appellant entered into a registered agreement with the Government of India on the 16th November 1949 Ex. A-3 to be numbericed in detail hereinafter. After the appellant had filed his numberination paper, the 1st respondent by his petition dated the 28th November 1951 raised the objection to the effect that his numberination should be rejected on the ground that he had entered into a companytract with the Government of India for his own benefit for the transport of mail between Salem and Yercaud. The Returning Officer for the Dharmapuri Parliamentary Constituency, Salem, by his orders Ex. A-2 of the same date overruled the objection holding that the service rendered by the appellant of carrying mail is number under an agreement but on an imperative order of the Government under Rule 160-B of the Madras Motor Vehicles Rules. Apparently the registered agreement Ex. A-3 had number been placed before him. To the election petition filed by the 1st respondent the appellant filed his written statement on the 28th May 1952 denying that he was disqualified for election as a member of Parliament by virtue of the provisions of section 7 d of the Act. His companytention was that it is the exclusive privilege of the Government of India to companyvey all postal articles from one place to another and it is a numbermal function of the Government statutorily reserved to itself. There is numberjustifi- cation to regard the carrying of mails from one place to another as the performance of any service undertaken by the Government. It was further averred on behalf of the appellant that it was number justifiable to regard him as having any interest in a companytract for the performance of any service undertaken by the appropriate Government within the mischief of section 7 d of the Act and that he had been only carrying out the obligations imposed upon him by Rule 160-B of the rules framed under the Motor Vehicles Act. It was also companytended that under article 103 of the Constitution of India the question as to the dis- qualification of a member has to be decided by the President whose decision shall be final. On those pleadings the following issues were framed by the Election Tribunal- Is the numberination of the 1st respt. invalid because of the prohibition companytained in section 7 d of the Representation of the People Act, 1951, or for any of the reasons set forth in paras. 9 to 11 of the petition? Has this Tribunal numberjurisdiction to decide the question as regards the disqualification of the returned candidate, because of article 103 of the Constitution of India? It is number necessary to refer to the additional issue bearing on the question of limitation arising from an interlocutory application for impleading those candidates respondents 4 to 10 whose numberination had been accepted but who had withdrawn from the companytest. Both these issues were decided against the appellant. The Tribunal on a very elaborate discussion of the points raised before it, held that the postal service including the transport of mails is a service undertaken by the Central Government within the meaning of section 7 d that at the date of the numberination the appellant was a companytractor under the Central Government that the agreement between the Government and the appellant involved mutual obligations which companyld number be referable to a bare statutory duty on the part of the appellant but that it was the result of mutual assent based upon a free offer and acceptance and that the agreement was supported by valid companysideration. The Tribunal also held that article 103 of the Constitution was number a bar to its jurisdiction to decide, the companytroversy. Accordingly it allowed the election petition and held the appellants election to be void in terms of section 100 1 c of the Act, with companyts to the respondent. Hence this appeal. In this appeal the companytentions raised before the Election Tribunal, except the objection to the Tribunals jurisdiction in view of the provisions of article 103 of the Constitution, have been pressed before us by the learned companynsel for the appellant. It is manifest that the determination of this case must depend upon the true companystruction and legal effect of the agreement Ex. A-3 admittedly entered into by the appellant with the Central Government. It is therefore necessary to set out in some detail the relevant clauses of the agreement. The appellant called the companytractor is of the one part and the Governor-General of India of the other. The preamble says-- Whereas the said companytractor Sri. N. Sathianathan has offered to companytract with Governor-General for the provision of a Motor Vehicle Service for the transit companyveyance and delivery of all postal articles and mail bags as defined in the Indian Post Office Act, 1898, as amended from time to time, from the 15th day of December 1949 to the 14th day of December 1952 and the Governor-General has accepted such offer upon the terms and Conditions hereinafter appearing Now this indenture witnesseth that the companytractor in pursuance of the said agreement and in companysideration of the premises and of the payments hereinafter agreed to be made to him It is hereby mutually agreed and declared between and by the parties hereto as follows- Contract to carry-The companytractor shall during the companytinuance of this companytract, that is to say, from the 15th day of December 1949 until the 14th day of December 1952 or until the said companytract shall be determined by such numberice as is hereinafter men- tioned or otherwise in hereinafter referred to as the said companytract period duly and safely companyvey by means of motor vehicles of good and reliable manufacture all postal articles and mail bags By clause 4 the companytractor is permitted to carry passengers and their luggage by bus provided there is accommodation available and provided that the mail service is number prejudiced in any way. By clauses 5 and 6 the companytractor is required to -maintain in good order and repair a number of motor buses and their spare parts at his own expense and to bear all municipal and other taxes payable in respect of the motor vehicles. Clause 7 companytains the schedule of penalties in the event of number-completion of any journey or of delay in companypletion thereof in accordance with the time table, etc. By clause 8 the companytractor is made absolutely liable and responsible for the due and safe custody and delivery in good order and companydition of postal articles and mail bags. By clause 10 numbergazetted postal and telegraph officers travelling on duty on the route allotted to the appellant are declared to be entitled to travel free of all charges and such official passengers shall have precedence over ordinary passengers. Clause 13 provides that the companytract shall number be transferred by the companytractor to any person or companypany without the previous companysent in writing of the Director-General of Posts Telegraphs. By clause 15 the Government agrees to pay to the companytractor Rs. 200 per month during the subsistence of the agreement as his remuneration for service to be rendered by him hereunder. This monthly sum of Rs. 200 is liable to be increased or decreased proportionately to the increase or decrease in the mileage to be companyered. Clause 18 is in these terms- In the event of the companytractor failing to secure a renewal of the permit on the line this companytract will automatically terminate on the date up to which the old permit shall be valid and in such case numbercompensation shall be payable to either party for such termination. This companytract may be absolutely determined and put an end to by either of the companytracting parties giving four calendar months numberice in writing to the other of his intention so to determine and put an end to the same. Clause 21 companytains the usual arbitration clause to the effect that all disputes and differences arising out of or in any wise touching or companycerning the agreement shall be referred to the sole arbitration of the Director-General of Posts and Telegraphs or his numberinee. It is also provided that the award of the arbitrator shall be final and binding on the parties. It will be observed that the agreement set out above is a formally drawn up document which satisfies all the requirements of a companytract. It is number the appellants case that the companytract has been vitiated by undue influence, fraud or such other cause. But it has been argued that it was a necessary sequel to the stage carriage permit granted by the Transport Authority under the Motor Vehicles Act read along with the relevant rules. In this companynection reference was made to rule 160-B of the Madras Motor Vehicles Rules which is as follows- It shall be a companydition of every stage carriage permit that the holder of the permit shall, if so required by the transport authority which granted the permit, carry mails at such rates and on such terms as the transport authority may fix after companysultation with the holder of the permit and the postal authorities companycerned. The rule quoted above has apparently been made under the authority of section 48 d of the Motor Vehicles Act. It is companymon ground that the agreement aforesaid between the appellant and the Central Governmentis in pursuance of rule 160-B aforesaid but it has been argued on behalf of the appellant that though the agreement aforesaid has the semblance of a companytract, it is lacking in the essential ingredients of a free companysensus of acceptance and offer. This argument is based on the further companytention that the appellant has been carrying mail on his buses in performance of a statutory obligation which cannot companye within the mischief of section 7 d of the Representation of the People Act, 1951. The material portion of the section is in these terms- A person shall be disqualified for being chosen as, and for being, a member of either House of Parlia- ment b if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a companytract for the performance of any services undertaken by the appropriate Government. It has further been argued alternatively that if the agreement has the force of a companytract, it is totally lacking in companysideration because the monetary companysideration provided for in the agreement is numbermore than the subsidy already fixed by the Regional Transport Officer by his orders dated the 23rd July, 1949 that the agreement in question being with a third party, namely, the Governor-General, to render service which was already due to another party, namely, the Transport Authority for the same companysideration cannot amount to a valid companytract supported by companysideration and finally, that the transport of mail is number a service undertaken by the Central Government. In our opinion, there is numbersubstance in any one of these companytentions. It is true that the appellant entered into the companytract aforesaid with the Central Government for the transport of postal articles and mail bags on the 16th November, 1949. From before that date be had been carrying on the business of plying buses on the route allotted to him by the Regional Transport Authority. But he entered into the companytract with his eyes open and knowing full well his rights and liabilities under the same. No one is companypelled to carry on the business of stage carriage service or for the matter of that, of transporting postal articles and mail bags. In terms of the permit, it is open to the Government to call upon a permit holder to-undertake the additional burden of carrying postal articles and mail bags which carries with it the additional remuneration to be fixed by the Transport Authority after companysultation with the postal autho- rities and the carrier. It is number every stage carriage permit holder who is called upon to do so. At the time the appellant entered into the companytract with the, Government in the postal department he may number have had any idea of standing for election to the House of the People when in future the general elections came to be held. If he wished to steer clear of the difficulty created by section 7 of the Act, he companyld have given due numberice to Government under clause 18 of the companytract referred to above. On the expiry of the term of the numberice he would have been free to stand for election to a State or Central Legislature. Section 7 of the Act is clearly intended to. avoid a companyflict between public duty and private interest. The Tribunal discussed a number of authorities with reference to the English and the American Law of Contract for arriving at the companyclusion that the agreement between the appellant and the Government of India in the Postal Department had all the ingredients of a valid companytract. The Tribunal need number have travelled so far afield, especially when the provisions of the Indian Con tract Act which govern the case are sufficient to answer all the companytentions raised on behalf of the appellant. On the face of the transaction the agreement was between two companypetent parties with their free companysent. There was numberquestion -but that there was lawful companysideration, The permit for the stage carriage had been granted by, the authority under the Motor Vehicles Act and the agreement for transport of postal articles and mail bags was between the Government of India in the Postal Department and the appellant for a cash companysideration. But it was argued that the agreement was in pursuance of a pre-existing obligation imposed by the rule aforesaid framed under the Motor Vehicles Act. It is true that the permit does companytain a companydition that the permit-holder may be called upon to undertake transport of mail bags and postal articles but that is only a numberice to intending applicants for a stage carriage permit that the grantee of such a per- mit may have to render that additional service for an additional remuneration if called upon to do so by the authorities of the Postal Department. If any one was number prepared to undertake that additional responsibility, he was free number to make an application for such a permit but that does number mean that the agreement actually entered into between the Postal Department and the permit holder is number an independent companytract governed by its own special terms. As indicated above, clause 18 has reserved the right to either party to terminate the companytract on giving four months numberice. The appellant must be presumed to have known that the agreement that he had entered into with the Postal Department will stand in the way of his running as a candidate for election to the Central or the State Legislature. There was numberhing to prevent him from giving the necessary numberice to the department and thus terminate his agreement so as to be free to stand as a candidate for election to the legislature. Section 7 of the Act is intended to ensure that there is numberoccasion for a companyflict between public duty and private interests. The appellant had a clear and free choice before him. If he was anxious to serve the companymunity as a member of the Central Legislature, he had to give up his private gains in the shape of the remuneration for carrying postal articles and mail bags in his buses. It may be that on his terminating the agreement with the postal department he would have to give up his stage carriage permit also but number necessarily so. If on the same route a number of bus services are permitted to different parties, the Postal Department may choose any one of them to enter into the agreement for the carriage of mail bags and postal articles. But even if there was only one service for the route in respect of which the appellant held the stage carriage permit, if he had to give up his permit, some other party would take his place for running the bus service and carrying the postal articles and mail bags. It was further argued that the appellant had numberhand in the fixing of the remuneration to be paid by the Postal Department for carrying its mails, etc. But it is clear, by a reference to the terms of the rule quoted above, that the amount of the remuneration had to be fixed by the department after companysultation with the carrier. It was always open to the latter to demur to the terms proposed by the department and if he found that the department was number prepared to accept his terms he was number bound to enter into the agreement. The fact that he had agreed to carry postal articles and mail bags was possibly an additional qualification for him to obtain a renewal of his permit and thus gave him an advantage over his companypeti- tors. Hence instead of being an additional burden or a handicap to him, it was an additional advantage to him in the matter of getting a renewal of his permit in preference to others. The agreement was therefore based on mutual promises, by the appellant to carry the mail bags, etc., and by the Postal Department to pay him suitable remuneration for the services thus rendered. It was further companytended on behalf of the appellant that the Central Government companyld number be said to have undertaken any service within the meaning of section 7 d of the Act when it made arrangements for the carriage of mail bags and postal articles through the appellant. It has number been and cannot be companytended that the Government is bound in the discharge of its duties as a sovereign state to make provision for postal mail service. The provisions of the Indian Post Office Act, VI of 1898, are only enabling in the sense that they authorize the State agency to have the exclusive privilege of companyveying letters, etc. for the companyvenience of the public and for the benefit of the Government, without making it obligatory upon it to provide every individual and every place with those facilities. It may be that those facilities are being extended from time to time and are being brought nearer to every home but that is only evidence of the fact that the State as a welfare state is anxious to provide for the companyveniences of the public in the matter of companymunications and companyrespondence. That is to say, the Government in the Postal Department has only undertaken a service to be rendered to the companymunity and that such a service is number an essential function of a sovereign state. It cannot be gainsaid that the Governmentr in the Postal Department is rendering a very useful service and that the appellant has by his companytract with the Government undertaken to render that kind of service on a specified route. The present case is a straightforward illustration of the kind of companytract companytemplated by section 7 d of the Act. At all material times the appellant has been directly companycerned, for his own benefit, in the companytract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department. For the reasons aforesaid we have number the least hesitation in holding that the companyclusions arrived at by the Tribunal are entirely companyrect.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 11 of 1954. Appeal from the judgment and Decree dated the 20th day of June 1950 of the High Court of Judicature for the State of Punjab at Simla in Regular First Appeal No. 73 of 1941 arising out of the Decree dated the 19th day of December 1940 of the Sikh Gurudaras Tribunal, Lahore in Suit No. 11 of 1938. Gurbachan Singh and R. S. Narula, for the appellant. Achhru Ram, Naunit Lal with him , for the respondents Nos. I and 2. L. Mehta, for the respondents Nos. 3 to 5. 1955. March 24. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal on leave granted by the High Court of Punjab against its judgment affirming the decree of the Sikh Gurdwara Tribunal dated the 19th December, 1940, dismissing the plaintiffs suit. The plaintiff in the appeal is the Committee of Management of Sikh Gurdwaras within the Municipal limits of Amritsar except the Gurdwara Sri Akal Takhat Sahib, Amritsar . The plaint was filed under section 25-A of the Sikh Gurdwaras Act, 1925, Punjab Act VIII of 1925 hereinafter referred to as the Act for possession of certain properties situated in Amritsar, marked and bounded as specified in the plaint and purporting to have been declared as a Sikh Gurdwara by the Government of Punjab under section 17 of the Act by means of the numberification No. 9-G dated the 3rd March, 1937. The case of the plaintiff-Committee is that these properties were, and were determined to be, a Sikh Gurdwara, by name Gurdwara Bunga Sarkar, by the Sikh Gurdwara Tribunal by its decree dated the 4th November, 1935 and companyfirmed on appeal therefrom by the High Court of Judicature at Lahore, on the 16th June, 1936 and that accordingly the Committee was entitled to possession of the properties. The facts that have led up to the present appeal are as follows After the Act was passed and within one year of its companymencement the then existing number-statutory Shiromani Gur- dwara Parbandhak Committee filed a list under section 3 of the Act claiming the suit properties and certain other items attached thereto as belonging to the Gurdwara Harmandir Sahib. These properties companyprised two items called Bunga Sarkar and Bunga Mai Mallan and the shops appurtenant to each of them. Objections were filed to this list by way of two applications under section 8 of the Act claiming these as private properties. One was by Sardar Balwant Singh dated the 8th March., 1928 and the other was by Sardar Raghbir Singh dated the 10th March, 1928. Sardar Raghbir Singh claimed the whole of Bunga Sarkar and its appurtenant shops as well as 1/3rd of the Bunga Mai Mallan and of the appurtenant shops. Sardar Balwant Singhs claim was companyfined to 1/3rd share in Bunga Mai Mallan and in the appurtenant shops. The other 1/3rd share in Bunga Mai Mallan was apparently treated by these claimants as belong- ing to some other person who was number a party to these proceedings. These two applications were forwarded under section 14 of the Act to the Gurdwara Tribunal for its decision. The parties to these -proceedings entered into a companypromise on the 6th february, 1930. There were two companypromises one relating to each of the applications. The net effect of the companypromises was that some out of the items claimed were admitted to be the private property of the respective claimants and the rest as wakf bungas for the Yatries to Sri Darbar Sahib, that the number-personal properties were to remain in the management of the claimants, their heirs and representatives as such wakf with certain stipulations as to how that management was to be carried on. The Tribunal disposed of the two applications before them in terms of these companypromises. It may be mentioned that though the original list under section 3 of the Act was filed by the then number-statutory Shiromani Gurdwara Parbandhak Committee, the companypromises were entered into by the Managing Committee of the Gurdwaras within the limits of the Municipal Committee, Amritsar, which presumably had already by then been formed Linder section 85 of the Act. Now, quite independently of these proceedings befere the Tribunal, and prior to the filing of the list under section 3 and of the objections under section 5 above referred to, there had been filed a petition under section 7 of the Act, signed by 55 Sikhs, claiming these very properties as being in themselves a Sikh Gurdwara by name Bunga Sarkar Maharaja Ranjit Singh Saheb and enclosing a list of properties as belonging thereto under section 7 2 -of the Act. It does number appear that this petition was brought to the numberice of the Gurdwara Tribunal when it passed the decree in terms of the companypromise with reference to the objections under section 5 of the Act. The petition under section 7 was in the usual companyrse followed by a numberification issued by the Government on the 18th February, 1930, under section 7 3 of the Act. This resulted in 1 an objection under section 8 by the Granthis objecting that this was number a Sikh Gurdwara, and 2 two other objections by Sardar Raghbir Singh and Sardar Balwant Singh, already previously above referred to, under section 10 of the Act claiming the properties as their own and objecting to the claim made that they were Sikh Gurdwaras. These objections were filed on the 5th April, 1930. It may be numbericed that the numberification under section 7 3 of the Act was within a few days after the companypromise decrees in the proceedings under section 5 of the Act and it does number appear whether the companypromises were brought to the numberice of the Government or number. These objections under sections 8 and 10 and presumably also the petition under section 7 were forwarded to the Tribunal for its decision under section 14 of the Act. The petition under section 8 filed by the Granthis was companytested by the Shiromani Gurdwara Parbandhak Committee Statutory and after recording some evidence, the Tribunal came to the companyclusion that Bunga Sarkar was a Sikh Gurdwara and declared it as such on the 28th August, 1935. On the objections under section 10 numberices were given to the Committee of Manaaement as well as to the Shiromani Gurdwara Parbandhak Committee but they declined to become parties to it. The companytest under section 10 of the Act was only as between the claimants and some of the Sikhs who filed the petition under section 7. At the hearing before the Tribunal both sides relied upon the previous companypromises in support of their respective claims. The Tribunal by its decision dated the 4th November, 1935, decided that the properties which had been declared as the properties of Sardar Raghbir Singh and Sardar Balwant Singh respectively, should be declared to be their personal properties and that the rest of the properties claimed to belong to Bunga Sarkar and Bunga Mai Mallan should be declared to be Sikh Gurdwaras and as properties appurtenant thereto. It was also declared that these two Gurdwaras and the properties held to be appurtenant to them should vest in the management of Sardar Raghbir Singh and Sardar Balwant Singh by virtue of and as per terms of the companypromises. As against these decrees two appeals were presented by the Sikh worshippers to the High Court and the only question that ultimately appears to have been raised was that the direction given by the Tribunal to the effect that the properties should remain in the management of the claimants, Sardar Raghbir Singh and Sardar Balwant Singh, was illegal. The High Court without giving any decision on the legal question so raised was of the opinion that it was numberfunction of the Sikh Gurdwara Tribunal to pass an order on an application made under section 10 by the claimants that the claimants should manage the properties appurtenant to the Gurdwaras by virtue of the companypromises. They thought that the question of right of management should be left open in these proceedings and that the directions in the decree of the Tribunal relating to the management should be deleted therefrom and that the rest of the decrees of the Sikh Gurdwara Tribunal is to stand. They expressed their companyclusion in the following terms That portion of the decree of the Sikh Gurdwara s Tribunal which has declared the respondents right to manage the Gurdwaras and the properties appended thereto shall form numberpart of the decree granted by the Tribunal the rest of the decree of the Sikh Gur- dwaras Tribunal stands, that is to say, the properties which have been declared to be the personal properties of Sardar Raghbir Singh and Sardar Balwant Singh shall remain their properties and the properties which have been declared to be appended to the two Gurdwaras shall remain the properties of the two Gurdwaras. The High Court also added that though the proceedings mentioned the existence of two Gurdwaras by name Bunga Sarkar and Bunga Mai Mallan, the real position seemed to be that there was only one Gurdwara, viz. Bunga Sarkar, and that Bunga Mai Mallan had numberseparate existence as a Gurdwara but was a well-known part of Bunga Sarkar. This decision of the High Court was on the 16th June, 1936. This was followed by numberification No. 9-G dated the 3rd March, 1937, under section 17 of the Act which is the foundation of the present suit. On these facts a number of companytentions were raised by both sides before the High Court as well as before us. The judgment of the High Court as well as the arguments before us have companyered a wide range. On the merits, the case for the plaintiff is quite simple. The plaintiff says that whatever may be the position with reference to the earlier companypromises arrived at between the parties in the proceedings under section 5 of the Act, the later proceedings with reference to those very properties under section 10 of the Act resulted in the judgment of the High Court dated the 16th June 1936, which is companyclusive and binding. By virtue of the said judgment and the numberification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of section 25-A of the Act. On the side of the defendants various objections have been raised which may be summarised as follows 1 The proceedings under section 10 did number result in any specific declaration in favour of the Committee that the properties in dispute in the present suit companystituted a Sikh Gurdwara or belong to a Sikh Gurdwara. No such declaration can-be gathered from the decision of the Tribunal dated the 4th November, 1935, or from that of the High Court on appeal dated the 16th June, 1936. 2 The Tribunal had numberjurisdiction in disposing of an application under section 10 of the Act, to give a positive declaration that the property in question is a Sikh Gurdwara. Its only function was to decide whether or number the properties claimed were the private properties of the claimants. Hence even if the decision of the Tribunal and of the High Court can be treated as a decision declaring the properties as a Sikh Gurdwara that is number valid and the numberification issued thereupon is void. 3 Any such decision would be companytrary to section 37 of the Act and also companytrary to the principles of res judicata and would be, therefore, a nullity on that ground. 4 The companyduct of the Gurdwara Parbandhak Committee and the companycerned Committee of Management, in entering into the companypromises in the proceedings under section 5 of the Act without disclosing the pendency of the petition filed by the 55 Sikhs under section 7 of the Act, followed up by their declining to be made parties in the section 10 proceedings and in virtually promoting the companytest of the proceedings under sections 8 and 10, was fraudulent. They are accordingly estopped from relying on the decree obtained under section 10 proceedings and basing their right to relief thereon. 5 The suit under section 25-A lies only where the decision on an objection under section 10 1 is reached after the numberification that the Gurdwara is a Sikh Gurdwara is published since the section refers to. a decision in favour of a Notified Sikh Gurdwara implying the pre-existence of such numberification. 6 The suit under section 25-A was barred by limitation. 7 The whole appeal abated in the High Court inasmuch as one of the respondents, Sardar Balwant Singh died during the pendency of the appeal. His legal representatives were number brought on record in time and the High Court declined to excuse the delay and to set aside the abatement, as a result of which the entire appeal abated, the claim against both the respondents being joint and number being maintainable against one only in the absence of the other. In addition to these companytentions which have been put forward before us and strenuously argued by both sides, the High Court also based its decision on the view that section 7 of the Act assumes the existence of a Gurdwara and that a numberification issued under section 7 3 without there being in fact a Gurdwara in existence would be ultra vires. In the present case, in view of the prior proceedings under section 5 and the companypromises following thereupon, the number- existence of the Gurdwara as claimed in the petition under section 7 1 must be taken to have been made out and therefore the numberification and all the proceedings following thereupon are illegal and ultra vires. Though we have heard elaborate arguments from both sides on these various companytentions, it appeared to us ultimately that the plea of limitation is decisive against the appellants and that it is unnecessary to express any opinion on any of the other companytentions raised. The question of limitation arises with reference to the terms of section 25-A which is as follows 25-A. 1 When it has been decided under the provisions of this Act that a right, title or interest in immovable property belongs to a Notified Sikh Gurdwara , or any person, the Committee of the Gurdwara companycerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the companystitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be awarded possession of the right, title or interest in the immovable property in question as against the parties to the previous petition, and the tribunal shall if satisfied that the claim relates to the right, title or interest in the immovable property which has been held to belong to the Gurdwara, or to the person in whose favour the declaration has been made, pass a decree for possession accordingly. Notwithstanding anything companytained in any -Act to the companytrary, the companyrt-fee payable on the plaint in such suit shall be five rupees. This section provides, for the filing of the suit, the period of one year from the date of the decision or the date of the companystitution of the companymittee whichever is later. Now the date of the decision in this case must be taken to be the date when the High Court on appeal disposed of the proceedings under section 10, i.e., the 16th June, 1936. The present suit has been filed on the 25th February, 1938, i.e., clearly beyond one year of the decision. The question for companysideration, therefore, is whether the suit can be said to have been within one year from the date of the companystitution of the Committee of the Gurdwara companycerned. Now, one has to turn to sections 85, 86 and 88 of the Act to appreciate which is, the Committee companycerned with this Gurdwara and what the date of its companystitution is. Section 85 is as follows in so far as it is relevant Subject to the provisions of section 88, there shall be one companymittee for the Gurdwaras known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated within the municipal boundaries of Amritsar other than the Sri Akal Takht Sahib. Section 86 is as follows in so far as it is relevant For every Notified Sikh Gurdwara other than a Gurdwara specified in section 85 a companymittee shall be companystituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act. Section 88 is as follows in so far as it is relevant The companymittees described in sections 85 and 86 shall be companystituted as soon as may be after the companystitution of the Board, provided that numbercommittee shall be companystituted for any gurdwara under the provisions of this Act unless and until it has been declared to be a Sikh Gurdwara under the provisions of this Act. When all the members of any companymittee described in section 85 have been elected or companyopted, as the case may be, according to the provisions of that section, the Provincial Government shall numberify the fact that the companymittee has been duly companystituted, and the date of the publication of the numberification shall be deemed to be the date of the companystitution of the companymittee. Now, it is number disputed that the present plaintiff which is the Committee of Management for all the Gurdwaras situated within the Municipal limits of Amritsar, except the Gurdwara Sri Akal Takht Sahib was companystituted prior to the year 1930 and was in fact functioning at the date of the companypromises in the section 5 proceedings dated the 6th February, 1930. It is also number disputed that by virtue of section 85 2 , this companymittee also became the Committee companycerned with the suit Gurdwara, which is admittedly located within the Municipal limits of Amritsar. But it is companytended for the appellants that this Committee becomes companycerned with the suit Gurdwara only from the date when the numberification under section 17 is issued, i.e., from the 3rd March, 1937, and that, therefore,, the plaintiff had one year from that date for the filing of the suit and that in the situation, section 25-A in providing the alternative period of limitation as being one year from the date of the companystitution of the companymittee, must be companystrued reasonably as being one year from the date of the numberification in such a case and that for the purposes of this section, the pre- existing companymittee must be deemed to have been companystituted for the suit Gurdwara only on the date of the numberification. In support of this companytention it has been pointed out that the specific policy of the Act as disclosed in sections 86 and 88 is that numberCommittee is to be formed for a Gurdwara until after it has been declared a Sikh Gurdwara under the provisions of the Act. It is accordingly urged that the phrase companystitution of the companymittee in section 25-A should be companystrued so as to indicate a point of time number earlier than the numberification of the companycerned Gurdwara and that in the circumstances and in such cases the date of the numberification of the Gurdwara must be the date of the companystitution of the companycerned companymittee. It appears to us, however, that this companytention is untenable. Section 86 in terms relates to a Notified Sikh Gurdwara other than Gurdwaras specified in section 85. Hence so far as our present purpose is companycerned, the policy underlying section 86 does number necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists. Moreover, sub-section 2 of section 88 provides with reference to Committees under section 85, that, as soon as all the members described therein have been elected or company opted, the fact should be duly numberified, and also declares in clear and categorical terms that the date of the publication of the numberification shall be deemed to be the date of the companystitution of the Committee. In the face of this deeming provision relating to these companymittees, it is number permissible to impute to such a Committee any other date as the date of its companystitution for any of the purposes of the Act and to imply an exception and an addendum to the specific deeming provision. This would be legislating. We cannot, therefore, accept the companytention of the appellant that the date of the numberification under section 17 in the present case should be deemed to be the date of the companystitution of the Committee companycerned for the purposes of section 25-A. It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where numbernotification under section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under section 25-A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the numberification may be a casus omissus but such a delay need number be assumed to be a matter of companyrse. That, at any rate, is number the present case where the numberification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, number only the whole of these nine months to take steps to get the numberification published earlier, but, it had three months thereafter to companye forward with the present suit. However this may be, we do number companysider that there is any question of hardship, because obviously section 25-A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself. We are clearly of the opinion that the present suit under section 25-A is barred by limitation and on this ground the appeal must fail.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 74 of 1952. Appeal by Special Leave from the Judgment and Decree dated the 10th November 1948 of the High Court of Judicature at Bombay in Appeal from Original Decree No. 274 of 1945 arising out of the decree dated the 17th March 1945 of the Court of Revenue Judge, Bombay in Suits Nos. 7 and 23 of 1943. K. Daphtary, Solicitor-General for India Porus A. Mehta, with him , for the appellant. C. Setalvad, Attorney-General for India and Jamshedji Kanga,, R. J. Kolah and Rajinder Narain, with them , for the respondents. 1955. February 28. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The point for decision in this appeal is as to the liability of certain lands situated within the City of Bombay to be assessed to revenue under the Bombay City Land Revenue Act No. II of 1876. These lands were originally known as Foras lands, and the rights of the occupants of 1313 those lands were settled by Bombay Act No. VI of 1851, called the Foras Act. What these rights are, is a matter in companytroversy between the parties, and will be presently companysidered. Between 1864 and 1867 the Government acquired these lands for the purpose of the B.B. C.I. Railway under the provisions of Land Acquisition Act No. VI of 1857. On 22-11-1938 these lands, being numberlonger required for the purpose of the Railway, were sold by the Governor-General to Lady Pochkhanawalla and others as joint tenants under a deed, Exhibit A. On 28-3-1939 the survivor of the purchasers under Exhibit A companyveyed the lands in trust under Exhibit B, and the respondents are the trustees appointed under that deed. In April 1942 the appellant acting under the provisions of Bombay Act No. II of 1876, issued numberices to the respondents proposing to levy assessment on the lands at the rates mentioned therein, and calling for their representation. In their reply, the respondents denied the right of the appellant to assess the lands to revenue, and followed it up by instituting two suits before the Revenue Judge for establishing their rights. In their plaints, they alleged that under the provisions of the Foras Act the maximum assessment leviable on the lands was 9 reas per burga, and that the Government had numberright to enhance it that the effect of the land acquisition proceedings between 1864 and 1867 was to extinguish the right of the State to levy even this assessment, and that further, having purchased the properties absolutely from the Governor-General under Exhibit A. they were entitled to bold them without any liability to pay revenue thereon. They accordingly prayed for a declaration that the Government had numberright to levy any assessment on these lands, or, in the alternative, that such assessment should number exceed what was payable under Bombay Act No. VI of 1851. The appellant companytested the suit. The Revenue Judge held that as a result of the land acquisition proceedings between 1864 and 1867, the lands vested in the Government freed from any liability to pay assessment, and that when the Governor-General transferred them under 1314 Exhibit A without reserving the right to assess them, the purchasers had the right to hold them without any liability to pay revenue. He accordingly granted a declaration that the appellant had numberright to levy assessment, and -that the numberices issued by him under Act No. II of 1876 were illegal. On appeal by the defendants to the High Court of Bombay, it was held by Chagla, C.J., Bhagwati, J. companycurring, that Act No. VI of 1851 imposed a specific limit on the right of the Government to levy assessments on the lands in question, that, further, by reason of the land acquisition proceedings the right of the Provincial Government to levy assessment even within the limits prescribed by Act No. VI of 1851 was extinguished, and that when the lands were transferred by the Central Government to Lady Pochkhanawalla and others, they got them as revenue-free lands. In the result, the appeal was dismissed. This appeal by special leave is directed against this decision. The statutory authority under which the appellant seeks to levy assessment on the lands is section 8 of Bombay Act No. 11 of 1876, and it is as follows It shall be the duty of the Collector, subject to the orders of Government, to fix and to levy the assessment for land revenue. When there is numberright on the part of the superior holder in limitation of the right of Government to assess, the assessment shall be fixed at the discretion of the Collector subject to the companytrol of Government. When there is a right on the part of the superior bolder in limitation of the right of Government, in companysequence of a specific limit to assessment having been established and preserved, the assessment shall number exceed such specific limit. It was on the footing that the respondents were superior holders as defined in the Act, that the appellant issued numberices to them in April 1942. In their reply numberices and in the plaints, the respondents did number dispute that position, but only companytended in terms of section 8 that they had a specific right in limitation of the right of the Government to assess the 1315 lands and the entire companytroversy in the Courts below was whether they had established that right. No companytention was raised that they were number superior holders as defined in the Act, and that, in companysequence, numberassessment companyld be imposed on the lands under section 8 of the Act. In the argument before us, the companytention was sought to be raised for the first time by the learned Attorney-General that the proceedings taken by the Collector under section 8 were incompetent, as that section would apply only to lands held by superior holders, that the definition of superior holier in section 3 4 as meaning the person having the highest title under the Provincial Government to any land in the City of Bombay would take in only persons who held on a derivative tenure from the Government, that persons who acquired lands from the Government under an outright sale companyld number be described as superior holders within section 3 4 , and that the lands held by the respondents were therefore outside the operation of section 8. On behalf of the appellant, the learned Solicitor General objected to this question being allowed to be raised at this stage of the proceedings, as that would involve investigation of questions of fact and of law, such as whether under the tenures in the City of Bombay, owners held the lands as superior holders, whether under Indian jurisprudence what was paid by the occupier of land was rent or revenue, whether the prerogative right of the Crown to assess lands subsisted in the Presidency Towns of Calcutta, Bombay and Madras and several other questions, for the decision of which there were number sufficient materials. This objection must be upheld. In view of the fact that the respondents have, at all stages, claimed immunity from assessment on the basis of section 8, we do number companysider that it would be proper to allow them number to change their front, and take up a stand wholly inconsistent with what they had taken, when that involves an investigation into facts which has number been made. We must, therefore, proceed on the footing that the respondents are superior holders as defined 1316 in section 3 4 of Act No. 11 of 1876, and that their rights are to be determined in accordance with sec- tion 8 of the Act. Construing that section, the Privy Council laid down in Goswamini Shri Kamala Vahooji v. Collector of Bombay 1 two propositions that though the language of the section would more appropriately apply when the dispute was as to the quantum of assessment, the right to levy it number being itself companytroverted, it was open to the superior holder under this section to plead and prove that the State had numberright to levy any assessment and that the burden was on the person who pleaded a limitation on the right of the State to assess, to clearly and unequivocally establish it. It is, therefore, open to the respondents to plead that the lands are wholly exempt from revenue but the onus of making it jut lies heavily on them. The learned Attorney-General has sought to establish a right in the respondents in limitation of the right of the appellant to assess the lands on three grounds 1 the Foras Act No. VI of 1851, 2 the land acquisition proceedings under Act No. VI of 1857, and 3 the sale deed, Exhibit A. Taking first the Foras Act For a companyrect appreciation of its provisions, it is necessary to refer -Co the history of the lands, which are dealt with therein. The Island of Bombay once formed part of the Portuguese Domi- nions in India. In 1661 when Princess Infant Catherine was married to King Charles 11 of England, it was ceded by the King of Portugal to the British Crown as dowry, and by a Royal Charter dated 27th March 1668 King Charles 11 granted it to the East India Company. At that time the Island companysisted only of the Fort and the town, and outside the walls of the town it was scarcely more than rock and marsh which became a group of islands every day on high tide. Vide Shapurji Jivanji v. The Collector of Bombay 1 . It appears from Wardens Report on the Landed Tenures in Bombay and Le Mesuriers Report on the Foras lands, that during the 18th Century the East India Company started 1 1937 L.R. 64 I.A. 334. 2 1885 I.L.R. 9 Bom. 483, 488, 1317 reclaiming these lands, and invited the inhabitants to cultivate them, at first without payment of any assessment and subsequently on favourable rates. These payments were called Foras. The meaning of this word is thus explained by Westropp, J. in his numbere at page 40 in Naoroji Beramji v. Rogers 1 - foras is derived from the Portuguese word fora Latine foras, from foris a door , signifying outside. It here indicates the rent or revenue derived from outlying lands. The whole island of Bombay fell under that denomination when under Portuguese rule, being then a mere outlying dependency of Bassein. Subsequently the term foras was, for the most part, though perhaps number quite exclusively, limited to the new salt batty ground reclaimed from the sea, or other waste ground lying outside the Fort, Native Town, and other the more ancient settled and cultivated grounds in the island, or to the quitrent arising from that new salt batty ground and outlying ground. Thus, the salt batty lands reclaimed from the sea came to be known as Foras lands by association with the assessments payable thereon called Foras. The nature of the interest which the occupants had in the Foras lands was the subject of companysiderable debate in the beginning of the 19th Century. In 1804, the Company resumed some of the Foras lands for settling persons displaced in the Town area, and that resulted in a suit by one Sheik Abdul Ambly, wherein the right of the Company to resume the lands was challenged. The action failed, the Court upholding the claim of the Company to resume them, but at the same time, it observed that its action in dispossessing the occupants would appear and be felt as a grievous hardship, if number an open and downright injury. Vide Wardens Report on the Landed Tenures of Bombay, pages 60 and 61. Thereafter, the Company had the matter further investigated, and there were reports on the subject by Warden in 1814 and Le Mesurier in 1843. And finally the Company decided to recognise 1 4 Boni. H.C.R. 1. 1318 the rights of the Occupants, and that resulted in the enactment of Act VI of 1851. The relevant provisions of the Act may number be numbericed. The preamble to the Act states that, Whereas the East India Company are legally entitled to the freehold reversion of the several lands heretofore paying a render called foras, the outline whereof is delineated in a plan and numbered 1, subject to certain tenancies therein at will, or from year to year whereas it is companysidered expedient as of grace and favour that the rights of the said East India Company in all of the lands included in the said plan should be extinguished, save as hereinafter mentioned. It is enacted as follows Section 2 enacts that From and after the said 1st day of July, the rights of the said Company in all of the said lands mentioned in the said plan No. 1, except those mentioned in the said plan No. 2, shall be extinguished in favour of the persons who shall then hold the same respectively as the immediate rent-payers to the said Company, saving the rents number severally payable in respect of such lands, which shall companytinue payable and recoverable by distress, or by any means by which land revenue in Bombay is or shall be recoverable, under any Act or Regulation Section 4 provides Nothing herein companytained shall exempt such lands from being liable-to any further general taxes on land in Bombay According to the appellant, the effect of these provisions was to grant the lands to the occupants on a permanent tenure, heritable and alienable, but number further to grant them on a permanent assessment. Reliance was also placed on the decision in Shapurji Jivanji v. The Collector of Bombay 1 , where it was held generally that the Government had the right under section 8 of the Act to enhance the assessments on Foras lands. There is some support for this companytention in the provisions of the Act. The preamble 1 1885 I.L.R. 9 Bom. 483, 488. 1319 expressly recites that the occupants were tenants at will or from year to year, and that the reversion was with the East India Company. One companysequence of that was that the Company had the right to eject the occupants. Now, what the Company did under the Act was to give up that right as a matter of grace, because, as already mentioned, it would appear to have invited them to settle on the lands and cultivate them, and it did that by extinguishing its reversion as landlord. In other words, it agreed to companyfer on the tenants the status of owners of lands. If that was all the scope of Act No. VI of 1851, it companyld number be doubted that the rights of the State to enhance the assessments would number be affected, because ownership of land does number per se carry with it an immunity from enhancement of assessment in exercise of sovereign rights, and occupants of Foras lands cannot claim to be in a better position by reason of the Act than owners of lands in ryotwari tracts, the assessments on which are liable to periodic revision. But what is against the appellant is that section 2 does number stop with merely extinguishing the reversionary rights of the Company. It goes further, and saves expressly the rents number severally payable in respect of such lands, rent being used here in the sense of assessment, and adds which shall companytinue to be payable. Now, the companytention of the respondents is that those words companyferred on the Government a right to recover only the assessment which was then payable, and that there was thus a limitation on its right to enhance it. It is companymon ground that the assessment payable on these lands at that time was 9 reas per burga, and Exhibit N shows that it was at that rate that the assessment was companylected from 1858 until the lands were acquired by the Government in land acquisition proceedings. It is accordingly companytended for the respondents that under the Act, the Government companyld number claim anything more than 9 reas per burga as assessment on the lands. It is urged for the appellant that the words number severally payable companyld number be companystrued as impos- 1320 ing a limitation on the right of the Government to enhance the assessment, as they occur in a saving clause, the scope of which was to reserve the rights of the Company and number to companyfer on the occupants rights in addition to what the body of the section had granted to them. It is true that the setting in which these words occur is more appropriate for reserving rights in favour of the Company than for declaring any in favour of the occupants. But to adopt the companystruction companytended for by the appellant would be to render the words number severally payable and which shall companytinue to be payable wholly meaningless. Notwithstanding that the drafting is inartistic, the true import of the clause unmistakably is that while, on the one hand, the right of the Government to recover the assessment is saved, it is, on the other hand, limited to the amount then payable by the occupants. The companytention of the respondents that under the Foras Act they acquired a specific right to hold the lands on payment of assessment number exceeding what was then payable, must, therefore, be accepted We have next to decide what effect the proceedings taken by the Government under the Land Acquisition Act No. VI of 1857 during the years 1864 to 1867 have on the rights of the parties. Section VIII of the Act is as follows When the Collector or other officer has made an award or directed a reference to arbitration, be may take immediate possession of the land which shall thenceforward be vested absolutely in the Government, free from all other estates, rights, titles and interests. The companytention of the respondents which has found favour with the Courts below is that under that section the effect of the vesting of the lands in the Government was to extinguish whatever interests were previously held over them, that the right of the Government to levy assessment was such an interest, and that it was also extinguished. It is argued that when lands are acquired under the Act, the valuation that is made is of all the interests subsisting thereon, including the 1321 rights of the Crown to assess the lands, as well as the interests of the claimants therein, that what is paid to the owners is number the full value of the lands but the value of their interests therein, deduction being made of the value of the right of the Government to assess from out of the full value, and that, in effect, there was an award of companypensation for the right to assess, and that, therefore, that right equally with the rights of the claimants over the lands would be extinguished. One of the awards has been marked as Exhibit P, and the respondents rely on the recitals therein that the companypensation to the claimants was for their interest in the said lands. The award, it must be mentioned, directs the Government to pay the claimants the amounts specified therein, but companytains numberprovision for payment of any sum as companypensation to the Government for its right to assess the lands number does it even value that right. But the respondents companytended that the Government being the authority to pay must be deemed to have paid itself, and that, in any event, if they were entitled to companypensation, their failure to claim it companyld number affect the result, which was that the right to levy assessment would be extinguished. We are unable to accept this companytention. When the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user. In the Matter of the Land Acquisition Act The Government of Bombay v. Esupali Salebhai 1 Batchelor, J. observed In other words Government, as it seems to me, are number debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily companytemplates all interests as held outside Government, directs that the entire companypen- 1 1909 I.L.R. 34 Bom. 618, 686. 1322 sation based upon the market value of the whole of land, must be distributed among the claimants. There, the Government claimed ownership of the land on which there stood buildings belonging to the claimants, and it was held that the Government was bound to acquire and pay only for the superstructure, as it was already the owner of the site. Similarly in Deputy Collector, Calicut Division v. Aiyavu Pillay 1 , Wallis, J. as he then was observed It is, in my opinion, clear that the Act does number companytemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do number already belong to the Government. With these observations, we are in entire agreement. When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be numberquestion of Government acquiring what is its own. An investigation into the nature and value of that interest will numberdoubt be necessary for determining the companypensation payable for the interest outstanding in the claimants, but that would number make it the subject of acquisition. The language of section VIII of Act No. VI of 1857 also supports this companystruction. Under that section, the lands vest in the Government free from all other estates, rights, titles and interests, which must clearly mean other than those possessed by the Government. It is on this understanding of the section that the award, Exhibit p, is framed. The scheme of it is that the interests of the occupants are ascertained and valued, and the Government is -directed to pay the companypensation fixed for them. There is numbervaluation of the right of the Government to levy assessment on the lands, and there is numberaward of companypensation therefor. We have so far assumed with the respondents that the right of the Government to levy assessment is an interest in land within the meaning of section VIII 1 1911 9 I-C-341. 1323 of Act VI of 1857. But is this assumption wellfounded? We think number. In its numbermal acceptation, interest means one or more of those rights which go to make up ownership. It will include for example, mortgage, lease, charge, easement and the like. but the right to impose a tax on land is a prerogative right of the Crown, paramount to the ownership over the land and outside it. Under the scheme of the Land Acquisition Act, what is acquired is only the ownership over the lands, or the inferior rights companyprised therein. Section 3 b of the Land Acquisition Act No. I of 1894 defines a person interested as including all persons claiming an interest in companypensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land. Section 9 requires that numberices should be given to all persons who are interested in the land. Under section 11, the Collector has to value the land, and apportion the companypensation among the claimants according to their interest in the land. Under section 16, when the Collector make an award he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance. The word en- cumbrance in this section can only mean interests in respect of which a companypensation was made under section 11, or companyld have been claimed. It cannot include the right of the Government to levy assessment on the lands. The Government is number a person interested within the definition in section 3 b , and, as already stated, the Act does number companytemplate its interest being valued or companypensation being awarded therefor. It is true that there is in Act No. VI of 1857 numberhing companyresponding to section 3 b of Act No. I of 1984, but an examination of the provisions of Act No. VI of 1857 clearly shows that the subject-matter of acquisition under that Act was only ownership over the lands or its companystituent rights and number the right of the Government to levy assessment. The provisions relating to the issue of numberices to persons interested 1324 and the apportionment of companypensation among them are substantially the same. Moreover, under section VIII the Government is to take the lands free from all other estates, rights, title and interest, and interest must, in the companytext, be companystrued ejusdem generis with estates etc., as meaning right over lands, of the character of, but number amounting to an estate, and cannot include the prerogative right to assess the lands. It must accordingly be held that the effect of the land acquisition proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government, that the right of the latter to levy assessment was number the subject-matter of those proceedings, and that if after the award the lands were number assessed to revenue, it was because there companyld be numberquestion of the Government levying assessment on its own lands. Then there remains the question whether the sale deed, Exhibit A, imposes any limitation on the right of the Crown to assess the lands. The deed companyveys the lands to the purchasers absolutely with all rights, easements and appurtenances whatsoever to be held for ever. It does number, however, recite that they are to be held revenue-free. But it is argued for the respondents that where there is an absolute sale by the Crown as here, that necessarily imports that the land is companyveyed revenue-free and section 3 of the Crown Grants Act No. XV of 1895 and certain observations in Dadoba v. Collector of Bombay 1 were relied on as supporting this companytention. Section 3 of Act No. XV of 1895 is as follows All provisions restrictions, companyditions and limitations over companytained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rule of law, statute or enactment of the Legislature to the companytrary numberwithstanding. The companytention is that as the grant is of a freehold estate without any reservation it must, to take effect according to its tenor, be companystrued as granting exemption from assessment to revenue. But that will be extending the bounds of section 3 beyond its company- 1 1901 I.L.R. 25 Bom. 714, 1325 tents. The object of the Act as declared in the preamble is to remove certain doubts as to the extent and operation of the Transfer of Property Act, 1882, and, as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority. Section 2 enacts that the provisions of the Transfer of Property Act do number apply to Crown grants. Then follows section 3 with a positive declaration that all provisions, restrictions, companyditions and limitations over shall take effect according to their tenor. Reading the enactment as a whole, the scope of section 3 is that it saves provisions, restrictions, companyditions and limitations over which would be bad under the provisions of the Transfer of Property Act, such as companyditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But numberquestion arises here as to the validity of any provision, restriction, companydition, or limitation over, companytained in Exhibit A on the ground that it is in companytravention of any of the provisions of the Transfer of Property Act, and there is accordingly numberhing on which section 3 companyld take effect. It is argued by the learned Attorney-General that this limitation on the scope of the Act applies in terms only to section 2, and that section 3 goes much further, and is general and unqualified in its operation. The scope of section 3 came up for companysideration before the Privy Council in Thakur Jagannath Baksh Singh v. The United Provinces 1 . After setting out that section, Lord Wright observed These general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general companytext In this view, section 3 must also be companystrued in the light of the preamble, and so companystrued, it cannot, for the reasons already given, have any bearing on 1 1946 F.L.J. 88. 1326 the rights of the parties. Moreover, that section only enacts that all provisions, restrictions, companyditions and limitations over shall take effect according to their tenor, and what is relied on is number any provision, restriction, companydition or limitation over, in Exhibit A which according to its tenor entitles the respondents to hold the lands rent-free, but the absolute character of the interest companyveyed under Exhibit A. Therefore, section 3 does number in terms apply. The respondents also relied on certain observations in Dadoba v. Collector of Bombay 1 as supporting their companytention. There, the -facts were that the Government had granted one parcel of land to the Free Church Mission of Scotland revenue-free under a deed dated 1-10-1884. By another deed dated 20-12-1887 they released their right of reversion on two other parcels of land held by the Mission as tenants but subject to the payment of taxes, rates, charges, assessments leviable or chargeable in respect of the said premises or anything for the time being thereon. On 16-1-1888 the Mission sold all the three parcels to one Janardan Gopal, and the Secretary of State joined in the companyveyance for effectually releasing the reversion of the Government. Before Janardan Gopal purchased the lands, there had been companyrespondence between his solicitors and the Government as to the assessment payable on the lands, and the Government had intimated that it would be 9 pies per square yard per annum. Subsequent to the purchase, the Collector raised the assessment payable on the lands, and the point for decision was whether he companyld lawfully do so. In deciding that he companyld number, Sir Lawrence Jenkins stated that the purchaser had paid full value for the lands in the belief induced by the Government that the assessment of 9 pies per sq. yard would be permanent, and that on the facts, the case fell within section 115 of the Evidence Act, and that the Government was estopped from enhancing the assessment. He was also prepared to hold that the companyrespondence between the purchaser and the Government prior to 1 1901 I.L.R. 25 Bom. 714. 1327 the sale amounted to a companylateral companytract number to raise the assessment. Chandavarkar, J., companycurred in the decision, and in the companyrse of his judgment observed when we have regard to the nature of the transaction, viz., that Government was selling the property out-and-out as any private proprietor-when we look to the whole of the language used the intention of the parties must be taken to have been that the purchaser was to be liable to pay the amount of 9 pies per square yard per annum then levied as assessment and numbermore. These observations have been relied on as supporting the companytention that when there is an absolute sale by the Government, it amounts to an agreement number to levy more assessment than was payable at that time. But the remarks of the learned Judge have reference to the recitals in the deed dated 20-12-1887 and the negotiations between the purchaser and the Government which are referred to in the passage, and number to the character of the transfer as an absolute sale and the decision is based on a finding of estoppel or companylateral companytract deducible from the companyrespondence between the purchaser and the Government. Neither section 3 of the Crown Grants Act, number the observa- tions in Dadoba v. Collector of Bombay 1 lend any support to the companytention that an absolute sale of lands by the Government ipso facto companyfers on the purchasers a right to hold the lands free of revenue. The question then is whether on the, terms of Exhibit A such a right companyld be held to have been granted. There was some discussion at the Bar as to the companyrect rule of companystruction applicable to the deed, Exhibit A. It was argued by the learned Solicitor. General for the appellant that being a Crown grant, Exhibit A should be companystrued in favour of the Crown and against the grantee. On the other hand, it was argued by the learned Attorney-General that it should make numberdifference in the companystruction of the grant, whether the grantor was the Crown or a subject, as 1 1901 I.L.R. 25 Bom. 714. 170 1328 the question in either case was what had been granted and that must be determined on the language of the deed. When closely examined, it will be seen that there is numberreal companyflict between the two propositions. The former is in the nature of a rule of substantive law and its scope is that where as the transferee from a subject acquires, unless the companytrary appears, all the rights which the transferor has in the property as enacted in section 8 of the Transfer of Property Act, a grantee from the Crown gets only what is granted by the deed, and numberhing passes by implication. But when the grant is embodied in a deed, the question ultimately reduces itself to a determination of what was granted thereunder. What the Court has to do is to ascertain the intention of the grantor from the words of the document, and as the same words cannot be susceptible of two different meanings, it makes numberdifferenbe whether they occur in a grant by the Crown or by the subject. If the words used in a grant by a subject would be effective to pass an interest, then those words must equally be effective to pass the same interest when they occur in a Crown grant. Dealing with this question, Sir John Coleridge observed in Lord v. Sydney 1 But it is unnecessary for their Lordships to say more on this point, because they are clearly of opinion, that upon the true companystruction of this grant, the creek where it bounds the land is ad medium film, included within it. In so holding they do number intend to differ from old authorities in respect to Crown grants but upon a question of the meaning of the words, the same rules of companymon sense and justice must apply, whether the subject-matter of companystruc- tion be a grant from the Crown, or from a subject it is always a question of intention, to be companylected from the language used with reference to the surrounding circumstancess. Exhibit A has to be companystrued in the light of these principles. As already stated, there is numberrecital in the deed that the purchasers are entitled to, hold the lands free of assessment. On the other hand, it 1 1859 12 Moore P.C. 473, 496, 497 14 E.R. 991, 1000. 1329 expressly provides that the properties will be subject to the payment of all cesses, taxes, rates, assessments, dues and duties whatsoever number or hereafter to become payable in respect thereof, which words would in their natural and ordinary sense companyer the present assessment. In Dadoba v. Collector of Bombay 1 , the Court had to companysider a clause similar to the above companytained in a deed executed by the Government in favour of the Mission on 20-12-1887. Dis- cussing the effect of this clause on the rights of the plaintiff to hold the property permanently on an assessment of 9 pies per sq. yard, Chandavarkar, J. observed When that deed says that the property was sold subject to the payment of all taxes, rates, charges, assessments leviable or chargeable, it leaves the question open as to what the taxes etc., are which are leviable or chargeable. Extrinsic evidence of that is admissible, for it neither companytradicts number varies the terms of the deed, but explains the sense in which the parties understood the words of the deed, which, taken by themselves, are capable of explanation see Bank of New Zealand v. Simpson 2 . In that case, the dispute was number as to the liability to pay any assessment but to the quantum of assessment payable, and it was a possible view to take that the clause in question was number decisive on that question, and that it was left open. But here, the question is whether a right was granted to the purchasers to hold the lands free from liability to be assessed, and the clause in Exhibit A clearly negatives such a right. Even if we are to regard the question as left open, as observed in Dadoba v. Collector of Bombay 1 , it will number assist the respondents, as they have number established aliunde any right to hold the lands free from assessment. It must, therefore, be held that far from ex- empting the lands from liability to be assessed to revenue, Exhibit A expressly subjects them to it. It was finally companytended that even if the land acquisition proceedings between 1864 and 1867 had number the 1 1901 I.L.R. 25 Bom. 714. 2 1900 A.C. 182. 1330 effect of extinguishing the right of the Government to levy assessment, and that even if Exhibit A companyferred on the purchasers numberright to hold the land revenue-free, the assessment which the Government was entitled to levy under section 8 of Act No. II of 1876 was limited to what was payable under the Foras Act No. VI of 1851, and that the appellant had numberright to levy assessment at a rate exceeding the same. The argument in support of the companytention was that it was an incident of the Foras tenure under which the lands wore held, that the occupants were bound to pay only a fixed assessment, that the incident was annexed to the lands, and was inseparable therefrom, that between the dates when the lands were acquired under the Land Acquisition at No. VI of 1857 and 22-11-1938 when they were sold under Exhibit A they companytinued to retain their character as Foras lands, that if numberassessment was paid on the lands during that period, it was because the hand to pay and the hand to receive were the same, that when they came to the respondents under Exhibit A, they became impressed with the Foras tenure, and that, in companysequence, they were liable to be assessed only at the rate payable under Act No. VI of 1851. This companytention is, in our judgment, wholly untenable. When the lands were acquired under the Land Acquisition Act No. VI of 1857, the entire estate, right, title and interest subsisting thereon became extinguished, and the lands vested in the Government absolutely freed from Foras tenure, and when they were sold by the Government under Exhibit A the purchasers obtained them as freehold and number as Foras lands. As the tenure under which the lands were originally held had become extinguished as a result of the land acquisition proceedings, it was incapable of companying back to life, when the lands were sold under Exhibit A. In support of the companytention that the incidents of the Foras tenure companytinued to attach to the lands in the hands of the respondents, the learned Attorney General relied on the following observations of 1331 Das, J. in Collector of Bombay v. Municipal Corporation of the City of Bombay and others 1 - The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for numberother purpose. But the point for decision there was whether the Municipal Corporation of Bombay companyld acquire by prescription a right to hold the lands rent-free, they having entered into possession under a resolution of the Government that numberrent would be charged. And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription, one of the rights acquired as part of the prescriptive title was the right to hold the lands revenue-free. But the question here is whe- ther the right to hold the lands under a fixed assessment survived after the acquisition by the Government under the land acquisition proceedings, and that depends on the effect of section VIII of Act VI of 1857. If, as observed in the above passage, the liability to pay assessment was an integral part or an inseverable incident of the title, then surely it was also extinguished along with the title of the occupants under section VIII of Act No. VI of 1857. There is another difficulty in the way of accepting the companytention of the respondents. The Foras Act was repealed in 1870 by Act No. XIV of 1870 long prior to the date of Exhibit A, and therefore, even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A, the rights under the Foras Act were numberlonger available in respect of the lands. Section I of Act No. XIV of 1870 saves rights already acquired or accrued, and it is argued that the rights number claimed are within the saving clause. But as the lands had all been acquired under Act No. VI of 1857 between 1864 and 1867 there were numberrights in respect of the lands which companyld subsist at the date of the repeal, and the rights number claimed 1 1952 S.C.R. 43, 52, 1332 by the respondents are number within the saving clause. In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is number limited by any right in the respondents.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 48 of 1954. 1303 Appeal by Special Leave granted by the Supreme Court by its Order dated the 31st July 1953 from the Judgment and Order dated the 15th May 1953 of the High Court of Judicature for the State of Pepsu at Th, Patiala in Criminal Appeal No. 140 of 1952 arising out of the Judgment and Order dated the 31st March 1952 of the Court of Magistrate 1st Class, Patiala in Challan Case No. 160/102 of 1951. Jai Gopal Sethi, Naunit Lal, with him for the appellant. S. Bindra, Porus A. Mehta and P. G. Gokhale, with him for the respondent. 1955. February 28. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The appellant was a Sub-Divisional Officer in the Public Works Department, Pepsu, and was, at the material dates,, in charge of certain works at a place called Karhali. It was part of his duties to disburse the wages to the workmen employed in the works, and the procedure usually followed was that be drew the amount required from the treasury, and paid the same to the emplo- yees against their signatures or thumb-impressions in the monthly acquittance roll. In the roll for April 1951, one Parma was mentioned as a khalasi menial servant , and a sum of Rs. 51 shown as paid to him for his wages, the payment being vouched by thumbimpression. The case of the prosecution was that there was, in fact, numberperson of the name of Parma, that the thumb-impression found in the acquittance roll was that of the appellant himself, that he had included a fictitious name in the acquittance roll, with intent to himself draw the amount, and that by this expedient he had received Rs. 51 and misappropriated the same. The First-Class Magistrate of Patiala, before whom the appellant was put up for trial, framed charges against him under section 465 of the Indian Penal Code for forging the thumb-impression of Parma, and under section 409 of the Indian Penal Code for criminal misappropriation of Rs. 51, and after a full trial, 1304 acquitted him. He held on the evidence that there was a khalasi Parma by name in the service of the accused at Kehrauli, and that though the thumbimpression in the acquittance roll was that of the appellant, the prosecution had number established that the amount drawn by him did number reach the hands of Parma. Against this judgment, there was an appeal by the State to the High Court of Pepsu, which held that proof that the thumb-impression in the acquittance roll was that of the appellant was sufficient, ,.when taken along with other circumstances, to establish his guilt, and accordingly companyvicted him both under section 465 and section 409 of the Indian Penal Code. This appeal by special leave is directed against this judgment. In support of the appeal it is argued by Mr. Jai Gopal Sethi that the companyviction of the appellant is illegal, as sanction had number been obtained under section 197 1 of the Code of Criminal Procedure for his prosecution, that the evidence on record is insufficient to establish an offence either under section 465 or section 409 of the Indian Penal Code and that there having been an acquittal of the appellant by the trial Magistrate, the materials on record did number justify a reversal of that verdict by the appellate Court. The question of sanction under section 197 1 of the Code of Criminal Procedure may be taken up first for companysideration, as it goes to the root of the matter. The facts bearing on this question are that there was an application by the Department for sanction to prosecute the appellant for an offence under section 409, and that, the Chief Secretary, Home Department, sent the companymunication, Exhibft PX, stating that he had been directed to companyvey sanction of the Government to his prosecution. In view of this, numberquestion was raised before the trial Magistrate or the High Court that the prosecution was bad for want of sanction. But after the disposal of the appeal by the High Court, it was discovered that, in fact, there was numberorder of the Government sanctioning the prosecution, and that the Chief Secretary had companymitted a mistake in sendidg the companymunication, Exhibit PX. 1305 The position, therefore, is that the prosecution which has resulted in the companyviction of the appellant was initiated without any sanction under section 197 1 of the Code of Criminal Procedure and if sanction under that section is necessary, as companytended for by Mr. Sethi, then the entire proceedings including the companyviction must be quashed. According to the respondent, however, the main charge against the appellant is under section 409, and numbersanction is required for a prosecution under that section. The point for decision is whether sanction under section 197 1 of the Code of Criminal Procedure is necessary for prosecuting the appellant under section 409. - There has been companysiderable divergence of judicial opinion on the scope of section 197 1 of the Code of Criminal Procedure. The question has latterly been the subject of companysideration by the highest Courts in this companyntry, and by the Privy Council, and the position may number be taken to be fairly well-settled. Hori Ram Singh v. Emperor 1 is a decision of the Federal Court on the necessity for sanction under section 270 of the Government of India Act, 1935, which is similar in terms to section 197 1 of the Code of Criminal Procedure. The facts in that case were that a Sub- Assistant Surgeon was charged under section 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under section 477-A, with having failed to enter them in the stock book. The sanction of the Government had number been obtained for the prosecution under section 270 of the Government of India Act, and the point for decision was whether it was necessary. It was held that the charge under section 477-A required sanction, as the official capacity is involved in the very act companyplained of as amounting to a crime but that numbersanction was required for a charge under section 409, because the official capacity is material only in companynection with the entrustment and does number necessarily enter into the later act of misappropriation or companyversion, which is the act companyplained of. 1 1939 F.C.R. 159. 1306 In the companyrse of his judgment, Varadachariar, J. discussed the scope of section 197 1 of the Code of Criminal Procedure and after observing that the decisions on that section were number uniform, proceeded to group them under three categories-those which had held that sanction was necessary when the act companyplained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the companymission of the crime, and those which had held it necessary when the offence was companymitted while the accused was actually engaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views. In H. H. B. Gill v. The King 1 , the question arose directly with reference to section 197 1 of the Code of Criminal Procedure. There, the accused was charged under section 161 with taking bribes, and under section 120-B with companyspiracy. On the question whether sanction was necessary under section 197 1 it was held by the Privy Council that there was numberdifference in scope between that section and section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh Emperor 2 , Lord Simonds observed A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. It was accordingly held that as the acts with which the accused was charged companyld number be justified as done by virtue of his office, numbersanction was necessary. The view taken in H. B. Gill v. The King 1 was followed by the Privy Council in A16 ert West Meads v. The King - , and reaffirmed in Phanindra Chandra v. 1 1948 L.R. 75 I.A. 41. 2 1939 F.C.R. 159. 3 1948 L.,R. 70 I.A. 185, 1307 The King 1 , and adopted by this Court in R. W. Mathams V. State of We8t Bengal 1 . The result of the authorities may thus be summed up It is number every offence companymitted by a public servant that requires sanction for prosecution under section 197 1 of the Code of Criminal Procedure number even every act done by him while he is actually engaged in the performance of his official duties but if the act companyplained of is directly companycerned with his official duties so that, if questioned, it companyld be claimed to have been done by virtue of the office, then sanction would be necessary and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be in- vestigated at the trial, and companyld number arise at the stage of the grant of sanction, which mut precede the institution of the prosecution. It is companyceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under section 465, as the charge was in respect of his duty of obtaining signatures or thumb- impressions of the employees before wages were paid to them. But he companytends that misappropriation of funds companyld, under numbercircumstances, be said to be within the scope of the duties of a public servant, that he companyld number, when charged with it, claim justification for it by virtue of his office, that therefore numbersanction under section 197 1 was necessary, and that the question was companycluded by the decisions in Hori Ram Singh v. Emperor 1 and Albert We8t Meads v. The King 1 , in both of which the charges were of criminal misappropriation. We are of opinion that this is too broad a statement of the legal position, and that the two decisions cited lend numbersupport to it. In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under section 197 1 will depend upon the facts of each case. If the acts companyplained of are so integrally companynected with the duties attach- 1 1949 L.R. 76 I.A. 10. 3 1939 F.C.R. 159. 2 1955 1 S.O.R. 216. 4 1948 L.R. 75 I.A. 180, 1308 ing to the office as to be inseparable from them, then sanction under section 197 1 would be necessary but if there was numbernecessary companynection between them and the performance of those duties the official status furnishing only the occasion or opportunity for the acts, then numbersanction would be required. Quite recently, this Court had to companysider in Shreekantiah Ramayya Munipalli v. The State of Bombay 1 the necessity for sanction under section 197 1 , when the charge was one of misappropriation under section 409. There, the law was laid down in the following terms The section has companytent and its language must be given meaning. What it says is- When any public servant is accused of any offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty We have therefore first to companycentrate on the word offence. Now an offence seldom companysists of a single act. It is usually companyposed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an entrustment and or dominion second, that the entrustment and or dominion was in his capacity as a public servant third, that there was a disposal and fourth, that the disposal was dishonest. Now it is evident that the entrustment and or dominion here were in an official capacity, and it is equally evident that there companyld in this case be numberdisposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. On the facts, it was held in that case that the several acts which were companyplained of, were official acts, and that the prosecution was bad for want of sanction. The decisions in Hori Ram Singh v. Emperor 1 , and Albert West Meads v. The King 1 , when properly examined, do number support the extreme companytention 1 1955 1 B.C.R. 1177. 2 1989 F.C.R. 159. 3 1948 L.R 75 I.A. 185. 1309 urged on behalf of the respondent. In Hori Ram Singh v. Emperor 1 , the medicines had number been entered in the stock book, and were removed by the accused to his residence, and the charge against him was that in so removing them he had companymitted MISappropriation. It was numberpart of the duty of the accused to remove medicines to his house, and he companyld number claim that he did so by virtue of his office. He companyld have made such a claim if he had, let us suppose, entered the medicines in- the stock books and shown them as expended in the hospital. But, on the facts, numberofficial act was involved, and that was why Varadachariar, J. observed that, so far as the charge under section 409 was company cerned, the acts in respect of which he was intended to be prosecuted companyld number be regarded as acts done or purported to be done in execution of his duty. Reference may also be made to the following observations of Sulaiman, J. in the same case The question whether a criminal breach of trust can be companymitted while purporting to act in execution of his duty is number capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalized way has been responsible for loose language used in some of the cases cited before us The question whether the act purported to have been done in execution of duty or number must depend on the special circumstances of each case. In Albert West Meads v. The King 1 , an Army Officer had received two sums of money, and was subsequently unable to produce them. He was charged with criminal misappropriation, and companyvicted. He companytended that the companyviction was illegal for want of sanction, but the Privy Council, following H. H. B. Gill v. The King 1 , rejected this companytention. It is essential to numbere that the accused did number claim to have spent the amount in the companyrse of his official duties, but stated that the moneys had been company- sumed by fire. It is with reference to these facts that the Privy Council observed 1 1939 F.C.R. 159. 2 1948 L.R. 75 I.A. 185. 3 1948 L.R. 75 I.A. 41. 1310 of which he was charged, i.e. acts of fraudulently misapplying money entrusted to his care as a public servant, as acts done by him by virtue of the office that he held The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts companyplained of hinge on his duties as a pubic servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then numbersanction is necessary. In this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of Rs. 51 alleged to have been misappropriated, as Subdivisions Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb-impression in acknowledgment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgment thereof a thumb-impression as against his name. If what appears on the face of the roll is true-and whether it is true or number is number a matter relevant at the stage of sanction-then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under section 197 1 of the Code of Criminal Procedure before the appellant companyld be prosecuted under section 409, and the absence of such sanc- tion is fatal to the maintainability of the prosecution. The companyviction should, therefore, be quashed. In this view, there is numberneed to companysider whether on the evidence, the offence of criminal misappropriation or forgery has been brought home to the appellant or number.

Case appeal was accepted by the Supreme Court

CIVIL APPELATE JURISDICTION Civil Appeal No. 70 of 1952. Appeal by special leave from the Judgment and Decree dated the 5th May, 1949, of the High Court of Judicature at Patna Manohar Lall and Mahabir Prasad JJ. in Appeal from Appellate Decree No. 2091 of 1946. K. Daphtary, Solicitor-General far India G. N. Joshi and Porus A. Mehta, with him for the appellant. P. Sinha Nuruddin Ahmed, with him for the respondent. 1954. February 11. The Judgment of the Court was delivered by MAHAJAN G.I.--This is an appeal by the State of Bihar against the judgment of the High Court of Judicature at Patna whereby the High Court passed a decree for arrears of salary of the respondent against the State from the 30th July, 1940, up to the date of the institution of the suit. The undisputed facts of the case areThat the respondent was appointed a Sub-Inspector of Police by the Inspector-General of Police, Bihar and Orissa, in January, 1920. In the year 1937 departmental proceedings were taken against him and he was found guilty of companyardice and of number preparing search lists and was punished by demotion for ten years. On appeal the Deputy Inspector-General of Police held that the respondent was guilty of companyardice but acquitted him of the other charge. By an order dated the 23rd July, 1940, which was companymunicated to the respondent on the 29th of July, 1940, the Deputy Inspector-General of Police having found him guilty of companyardice made an order dismissing him from service. Further appeals by the respondent to the Inspector- General of Police and to the Governor of Bihar were unsuccessful. Aggrieved by the departmental action taken against him, the respondent filed the suit out of which this appeal arises in the companyrt of additional subordinate judge against the State of Bihar for a declaration that the order of the Deputy Inspector-General of Police dismissing him from service was illegal and void and that he should be regarded as companytinuing in office. He also claimed a sum of Rs. 4,241 from 30th July, 1940, to the date of the suit on account of arrears of salary. The State companytested the claim and pleaded that the plaintiff held his service at the pleasure of the Crown, and companyld number call in question the grounds or the reasons which led to his dismissal, and that in any case he had been reinstated in service from the 30th of July, 1940, and the order of dismissal therefore was numberlonger operative, and the suit had thus become infructuous. The additional subordinate judge by his judgment dated the 2nd February, 1945, dismissed the suit on the finding that the Government having reinstated the respondent he had numbercause of action. As regards the arrears of salary, it was held that the claim to it companyld only be made according to the procedure prescribed under rule 95 of section 4-of Chapter IV of Bihar and Orissa Service Code. This decision was companyfirmed in appeal by the additional district judge. On further appeal the High Court reversed these decisions and decreed the claim for arrears of salary in the sum of Rs. 3,099-12-0. It was held that rule 95 of the Bihar and Orissa Service Code had numberapplication because the respondent had never been dismissed within the meaning of that rule. It was further held that the plaintiff was entitled to maintain the suit for arrears of pay in view of the decision of the Federal Court in Tara Chand Pandits case 1 the companyrectness o15 which was number affected by decisions of the Privy Council in cases of 1. M. Lall 2 and Suraj Narain Anand 3 . The principal questions involved in this appeal are Whether the High Court companyrectly held that rule 95 above mentioned had numberapplication to the case ? Whether a suit 15or arrears of salary by a civil servant is companypetent in a civil companyrt ? Rule 95 of the Bihar and Orissa Service Code provides Rule 95 When the suspension of a Government servant as a penalty for misconduct is, upon reconsideration or appeal, held to have been unjustiliable or number wholly justifiable or when a Government servant who has been dismissed or removed, or suspended pending enquiry into alleged misconduct is reinstated the revising or appellate authority may grant to him for the period of his absence from duty a if he is honourably acquitted, the full pay to which he would have been entitled if he had number been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension or b if otherwise, such proportion of such pay and allowances as the revising or appellate authority may direct. The provisions of this rule enable an appellate or revising authority, when making an order of reinstatement to grant the reliefs mentioned in the rule. Obviously these provisions have numberapplication to the situation that arose in the present case. The respondent here was dismissed by the Deputy Inspector-General of Police, though he was appointed by the Inspector-General of Police. This was clearly companytrary to the 1 1947 F.C.R. 89. 2 75 I.A. 225. 3 75 I.A. 343. provisions of section 240 3 of the Government of India Act, 1935, which provides that numberperson shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed. But nevertheless the appeal-preferred by him to the Inspector-General of Police was rejected and his petition to the Government of the State met with the same fate, so that he was never reinstated by the order of any revising or appellate authority. It was only after the present suit was filed that the Government reinstated him. This was numberproceeding in revision or appeal. In these circumstances the enabling provisions of rule 95 had numberapplication whatsoever to the case of the plaintiff. What happened subsequently is a matter wholly outside the companytemplation of the rule. After the institution of the suit, the Chief Secretary to the Government of Bihar realising the untenability of the Governments position wrote to the Inspector-General of Police that the order of dismissal should be treated as null and void and that the respondent should be reinstated. Thus the reinstatement of the plaintiff the telegram of the 30th December, 1943, was number made at the instance of any of the authorities mentioned in the rule in exercise of their jurisdiction, appellate, or revisional, but was made at the instance of the defendant in the suit who had realised that it was number possible to defend the order of dismissal. For the reasons given above we are of the opinion that the High Court was right in holding that rule 95 had numberapplication to the facts and circumstances of this case and that the enabling provisions of this rule did number operate as a bar to the plaintiffs action. The next companytention of the learned Solicitor-General that a suit by a public servant against the State for recovery of arrears of salary cannot be maintained in a civil companyrt is again, in our opinion, without substance. We think that the matter is companyered by the decision of the Federal Court in Tara Chand Pandits case 1 with which we find ourselves in respectful agreement. In that case the learned Attorney General had argued with great force all the points that were 1 1947 F.C.R. 89. urged in this appeal before us by the learned SolicitorGeneral and were dealt with by the Federal Court in great detail. It was there held that the prerogative right of the Crown to dismiss its servants at will having been given statutory form in sub-section 1 of section 240 of the Government of India Act, 1935, it companyld only be exercised subject to the limitations imposed by the remaining sub-sections of that section and that it must follow as a necessary companysequence that if any of those limitations was companytravened the public servant companycerned had a right to maintain an action against the Crown for appropriate relief and that there was numberwarrant for the proposition that that relief must be limited to a declaration and should number go beyond it. It was further held that even if apart from the prerogative of the Crown to terminate the service of any of its servant at will, the further prerogative companyld be invoked that numberservant of the Crown companyld maintain an action against the Crown to recover arrears of pay even after the pay had been earned and had become due and that the prerogatives of the Crown had been preserved in the case of India by section 2 of the Constitution Act, it must be presumed that this further prerogative had been abandoned in the case of India by the provisions of the Code of Civil Procedure and that it was number possible to subscribe to the proposition that while a creditor of a servant of the Crown was entitled as of right to companypel the Crown to pay to him a substantial portion of the salary of such servant in satisfaction of a decree obtained against him the servant himself had numbersuch right. Mr. Justice Kania, as he then was, in a separate but companycurring judgment, negatived the companytention of the Attorney-General in these terms The question whether the law in England and India is the same on this point should be further companysidered having regard particularly to the provisions found in the Civil Procedure Code. In this companynection, section 60 1 and clauses i and j of the proviso, and explanation 2 should be numbered. Under section 60 all property belonging to the judgment debtor is liable to be attached. In stating the particulars of what may number be attached and sold, exemption to a limited extent is given in respect of the salary of a public servant. These provisions of the Code of Civil Procedure were number numbericed in Lucas Lucas and High Commissioner for India 1 , as the application was made in England and the Civil Procedure Code of 1908 did number apply there. The provisions of section 60 of the Civil Procedure Code give a right to the creditor to attach the salary of a servant of the Crown. There can be numberdispute about that. If the companytention of the appellant was accepted, the result will be that while the civil servant cannot recover the money in a suit against the Crown, his ,creditor can recover the same in execution of a decree against the civil servant. This right of the creditor to receive money in that manner has been recognised in innumerable decisions of all High Courts. There were similar provisions in the Civil Procedure Code of 1882 also. By reason of section 292 of the Constitution Act, the Code of Civil Procedure, 1908, companytinues in force, in spite of the repeal of the Government of India Act of 1915. Could the Imperial Parliament in enacting section 240 and being deemed aware of the provisions of section 60 of the Civil Procedure Code, have thought it proper to give this privilege to a creditor, while denying it to the officer himself ? To hold so, the words of section 240 of the Constitution Act will have to be unduly and unnaturally strained. Moreover in explanation 2 of section 60 the word salary is defined. In the proviso to section 60 clause i the word salary is used as applicable to private employees and to Government servants also. The word salary in respect of a private employee must mean an enforceable right to receive the periodical payments mentioned in the explanation. In that companynection it is number used in the sense of a bounty. It will therefore be improper to give the same word, when used with regard to a civil servant under the Crown a different meaning in the same clause. It seems to me therefore that the Imperial Parliament has number accepted the principle that the Crown is number liable to pay its servant salary 1 1943 P. 68. for the period he was in service, as applicable to British India or as forming part of the doctrine that service under the Crown is at His Majestys pleasure. The learned Solicitor-General companytended that the decision in Tara Chand Pandits case 1 , was numberlonger good law and should be deemed to have been dissented from and overruled by the decision of their Lordships of the Privy Council in I. M. Lalls case 2 , and that in any event the view expressed in that decision should be preferred to the view expressed in Tara Chand Pandits case. We are unable to uphold this companytention. It seems that during the arguments in Lalls case attention of their Lordships was number drawn to the decision of the Federal Court in Tara Chand Pandits case because the point was number directly involved therein. In that case numberclaim had been made by the plaintiff for arrears of his pay. The plaintiff had sued for a declaration simpliciter that the order of his removal from the office was illegal and that he was still a member of the Indian Civil Service. The High Court granted that declaration. The Federal Court, on appeal, substituted for the declaration made by the High Court a declaration that the plaintiff had been wrongfully dismissed. The case was remitted to the High Court with a direction to take such action as it thought necessary in regard to any application by the plaintiff for leave to amend the claim for recovery of damages. On appeal to the Privy Council the decree and the order made by the Federal Court was modified and their Lordships held that in their opinion the declaration should be varied so as to declare that the purported dismissal of the respondent on the 10th August, 1940, was void and inoperative and the respondent remained a member of the Indian Civil Service at the date of the institution of the suit, 20th of June, 1942. The High Commissioner for India had also appealed against the order of the Federal Court remitting the case to the High Court for amendment of the plaint. The plaintiff did number want to maintain the order of the Federal Court to remit, before the 1 1947 F.C.R. 89 2 75 I.A. 225. 14--95 S.C.I./59 Privy Council. He however urged that he was entitled to recover in the suit his arrears of pay from the date of the purported order of dismissal up to the date of action, though this was number one of the reliefs claimed by him in the suit at all. This relief that was claimed by him before the Board was negatived by their Lordships on the ground that numberaction in tort companyld lie against the Crown and that such an action must either be based on companytract or companyferred by statute. Their Lordships approved of the judgment of Lord Blackburn in the Scottish case of Mulvenna v. The Admiralty 1 , in which that learned Judge laid down the rule in the following terms after reviewing various authorities These authorities deal only with the power of the Crown to dismiss a public servant, but they appear to me to establish companyclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, numbermatter to what service the servant may belong, whether it be naval, military or civil, and numbermatter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, numbermatter on what ground it is based, demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, numbermatter whether they have been referred to when the engagement was made or number. If these companyclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which has been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and number for a companytractual debt, must equally apply to every public servant. It also follows that this qualification must be read, as an implied companydition, into every companytract between the Crown and a public servant, with the effect that, in terms of their companytract, they have numberright to their remuneration which can be 1 1926 S. C. 842. enforced in a civil companyrt of justice, and that their only remedy under their companytract lies in an appeal of an official or political kind. The observations made in Mulvenna v. The Admiralty 1 , which is a Scottish case, companyld number have been made if in the law of that companyntry there were provisions similar to the provisions made in various sections of the Code of Civil Procedure referred to by the Federal Court in Tara Chand Pandits case 2 . It was further urged that the same view was taken by Pilcher J. inLucas v. Lucas and the High Commissioner for India a .There the question for companysideration was whether the sterling overseas pay of an Indian civil servant was a debt owing and accruing within the meaning of rule 1 of Order XLV of the Rules of the Supreme Court and which companyld be attached in satisfaction of an order for the payment of alimony. The real point for decision in that case was whether the whole or any portion of the salary of a member of the Indian Civil Service was liable to attachment in England in satisfaction of the judgment debt. It appears that the attention of the learned Judge was number invited to the provisions of section 60 and other relevant provisions of the Code of Civil Procedure and the learned Judge applied the dictum of Lord Blackburn in Mulvenna v. The Admiralty 1 , to the case of a civil servant from India. As the application was made in England and the Civil Procedure Code did number apply there, the provisions of the Code were number numbericed in that case. We are therefore of the opinion that the rule laid down by their Lordships of the Privy Council in 1. M. Lalls case 4 , without a companysideration of the provisions of the Code of Civil Procedure relevant to the inquiry and without a companysideration of the reasoning of the Federal Court in Tara Chand Pandits case 2 , cannot be treated, particularly because the matter was number directly involved in the suit, as the final word on the subject. We are in numberway bound by the decision given either in Tara Chand Pandits case 2 , or by the 1 1926 S.C. 843. 3 1943 P. 68. 2 1947 F. C.R. 89. 4 75 I.A. 225. decision given by the Privy Council in I. M. Lalls case 1 . But on a companysideration of the reasons given in the two judgments we think that the rule of English law that a,civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary does number prevail in this companyntry and that it has been negatived by the provisions of the statute law in India. Reliance was also placed by the learned Solicitor- General on the decision of the Federal Court in Suraj Norgin Anand v. North West Frontier Province 2 . In that case Suraj Narain having been appointed a Sub-Inspector of Police posted in the North West Frontier Province by the Inspector-General of Police of the Province was subsequently dismissed by the Deputy Inspector-General of Police. Failing to get relief-by departmental proceedings he instituted a suit in the Court of the Senior Subordinate Judge, Peshawar. The subordinate judge dismissed the suit as being unsustainable. This decision was upheld by the Court of the Judicial Commissioner. The Federal Court held that the Courts below were number justified in dismissing the suit, that the plaintiff was at least entitled to a declaration that the order of dismissal passed against him was void. That companyrt accordingly set aside the decree of the Judicial Commissioner and remitted the case with a declaration that there shall be substituted for the decree appealed against a declaration in the terms above stated, with such further directions as the circumstances of the case may require in the light of the observations of their judgment. The Province appealed to the Privy Council against the decision of the Federal Court. It was held by the Board in the first instance allowing the appeal of the North West Frontier Province and reversing the decision of the Federal Court of India, that the North West Frontier Province Police Rules, 1937, had become operative in 1938 at some date before April 25, 1938, when the respondent was dismissed, and that rule 16 1 was a valid rule made under the authority companyferred on the 1 75 I.A. 225. 2 1941 F.C.R. 37. appellant by section 243 of the Government of India Act, 1935, and that the respondents suit was rightly dismissed, but subsequently on the petition of the respondent asking the Board to reconsider their decision on the ground that it had been ascertained that the Police Rules of 1937 were in fact printed and published on April 29, 1938, that was, four days after the date of his dismissal, the Board heard the appeal further, when the respondents allegation was admitted and, applying the reasoning in their previously delivered judgment, the Board reversed their former decision and affirmed the judgment of the Federal Court which had held that the respondents dismissal was void and inoperative. During the arguments before the Privy ,Council reference was made to section 60 of the Code of-Civil Procedure and to the decision of the Federal Court in Tara Chand Pandits case 1 , and it was also numbericed that following on the remit of the case to the Judicial. Commissioner by the order of the Federal Court, dated December 4, 1941, the respondent had ,obtained a decree for payment of Rs. 2,283 against the appellant in respect of arrears of pay from the date of dismissal to the institution of the suit. When the appeal came before the Board for further hearing their Lordships on the 6th August, 1948, caused a letter to be addressed to the solicitor representing the appellant, informing him that their Lordships number proposed humbly to advise His Majesty that the appeal should be dismissed, and stating that the order as to companyts would number be varied. The letter pointed out that if this advice were tendered, and if His Majesty were pleased to accept it, the effect would be that the declaratory judgment of the Federal Court would stand. Finally, the letter referred to the award of Rs. 2,283 to the respondent by the Court of the Judicial Commissioner which, according to a submission made by the appellants companynsel, was open to challenge, and inquired whether the appellant wished to have an opportunity ,of satisfying their Lordships that the point was open, and of being heard on it. By their Lordships direction a companyy of this letter was sent to the respondent. 1 1947 F.C.R. 89. An intimation was received by the Privy Council that the appellant did number wish to offer any further arguments on the case. The respondent also did number desire an opportunity of arguing that he-should number beawarded arrears of pay from the date of the institution of the suit onwards. In these circumstances the Board refused to deal further with the matter and advised His Majesty that the declaratory judgment of the Federal Court be restored and proceeded to observe that it would be open to the respondent to pursue any remedy which flows from that declaratory judgment in an appropriate companyrt. Their Lordships companycluded the judgment with the following observations - Their Lordships must number be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs. 2,283 which was awarded to him, or that he has any claim to a further sum in respect of arrears of pay. It is unnecessary, owing to the very proper attitude of the appellant, to express any view as to the former question, and the latter question does number arise in this appeal which is from the decision of the Federal Court. If that decision is affirmed the respondent who did number himself enter an appeal, cannot number ask for anything more. It is thus clear that in express terms in this decision their Lordships declined to give any opinion on the question whether the respondent was entitled as of right to recover arrears of pay awarded to him by the Judicial Commissioner, in spite of the circumstance that their attention had been drawn to the decision of the Federal Court in Tara Chand Pandits case 1 . This decision therefore cannot be said to support the view companytended for by the learned Solicitor-General. On the other hand, it must be assumed that in spite of their decision in 1. M. Lalls case 1 , their Lordships in this case, the judgment in which was delivered subsequent to the decision in 1. M. Lalls case 2 , on November 4, 1948, did number reaffirm the propositions 1 1947 F.C.R. 89. 2 75 I.A. 225. laid down in that case but preferred to express numberopinion on the point. It was suggested that the true view to take is that when the statute says that the office is to be held at pleasure, it means at pleasure, and numberrules or regulations can alter or modify that number can section 60 of the Code of Civil Procedure, enacted by a subordinate legislature be used to companystrue an Act of a superior legislature. It was further suggested that some meaning must be given to the words holds office during His Majestys pleasure as these words cannot be ignored and that they bear the meaning given to them by the Privy Council in 1. M. Lalls case 1 . In our judgment, these suggestions are based on a misconception of the scope of this expression. The expression companycerns itself with the tenure of office of the civil servant and it is number implicit in it that a civil servant serves the Crown ex grati or that his salary is in the nature of a bounty. It has again numberrelation or companynection with the question whether an action can be filed to recover arrears of salary against the Crown. The origin of the two rules is different and they operate on two different fields. The rule that a civil servant holds office at the pleasure of the Crown has its origin in the latin phrase durante bene placito during pleasure meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special companytract has been made with the civil servant the Crown is number bound thereby. In other words, civil servants are liable to dismissal without numberice and there is numberright of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their services. See Frasers Constitutional Law, page 126 Chalmers Constitutional Law, page 186 Shenton v. Smith 2 Dunn v. The Queen 3 . This rule of English law has number been fully adopted in section 240. Section 240 itself places restrictions 1 75 I.A. 225. 2 1895 A.C. 229, 234. 3 1896 B. 116. and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the companyrt. As pointed out earlier in this judgment, there is numberwarrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by the Code of Civil Procedure. Section 292 of the Government of India Act, 1935, provides that the law in force in British India immediately before the companymencement of the Act shall companytinue in force until altered, repealed or amended by a companypetent legislature. Sections 100 to 104 of the Government of India Act. 1935, companyfer legislative powers on the different legislatures in the companyntry. Item 4 of the companycurrent list in the Seventh Schedule reads thus Civil Procedure and all matters included in the Code of Civil Procedure, at the date of the passing of this Act. It is clear therefore that the Indian Legislatures were companyferred by the Government of India Act, 1935, power to regulate the procedure in regard to actions against the Grown and to make provision for reliefs that companyld be granted in such actions. These provisions of the Government of India Act, 1935, stand by themselves independently of what is companytained in section 240,and therefore numberquestion arises that section 60 of the Code of Civil Procedure which has the sanction of the Government of India Act, 1935, itself is in status lower than the rule laid down in section 240. The rules of English law that the Grown cannot be sued by a civil servant for money or salary or for companypensation has its origin in the feudal theory that the Crown cannot be sued by its vassals or subjects in its own companyrts. From this theory the companymon law lawyers in England deduced two rules, namely, 1 that the King can do numberwrong, and 2 that as a matter of procedure numberaction can lie in the Kings companyrts against the Crown. See Ridges Constitutional Law, eighth edition, page 295, and Frasers Constitutional Law, page 164 . The subject, in this situation, companyld only proceed by way of a petition of right which required the previous permission of the Crown. Permission was given by a fiat justitia issued by the Crown. It was number in practice refused to a petitioner who had any shadow of a claim, so that probably the disadvantages of this form of procedure were more theoretical that substantial. Petitions of right and various other special forms of English procedure applicable exclusively to actions by and against the Crown were abolished by the Crown Proceedings Act, 1947, which provides that in future claims against the Crown might be enforced as of right and without the fiat of His Majesty, and that they should be enforceable by ordinary procedure in accordance with the rules of the High Court or the County Court as the case might be. Arrears of salary were being actually recovered by the procedure of petition of right in England. See Bush v. R. 1 - There the judgment resulted in favour of the suppliant. The claim was in respect of the amount of salary due to him as Master of the Court of Queens Bench in Ireland. Robertsons Civil Proceedings by or against the Crown, page 338 . In India, from the earliest times, the mode of procedure to proceed against the Crown has been laid down in the Code of Civil Procedure and the procedure of petition of right was never adopted in this companyntry, and the same seems to have been the rule in Australia and other Colonies. Section 56 of the Judiciary Act, 1903, relating to the Commonwealth of Australia provides Any person making any claim against the Commonwealth, whether in companytract or in tort, may respect of the claim bring a suit against the 1 1869 Times News, May 29. Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose. Under the New South Wales Act, 39 Vict. No. 38, the Government of the Colony is liable to be sued in an action of tort as well as in companytract. Section 65 of the Government of India Act, 1858, companyferred the right of suit against the Government. It provided that all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable, against the Secretary of State in Council of India as they companyld have done against the said companypany the East India Company . This was replaced by section 32 of the Government of India Act, 1915. Sub-section 2 of that section ran as follows -- Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, and this Act had number been passed. This was replaced by section 176 1 of the Government of India Act, 1935, which substantially reproduced these provisions. From these provisions it is clear that the Crown in India was liable to be sued in respect of acts, which in England companyld be enforced only by a petition of right. As regards torts of its servants in exercise of sovereign powers, the companypany was number, and the Crown in India was number, liable unless the act had been ordered or ratified by it. Be that as it may, that rule has numberapplication to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is number based on tort but is based on quantum meruit or companytract and the companyrt is entitled to give relief to him. The Code of Civil Procedure from 1859 right up to 1908 has prescribed the procedure for all kinds of suits and section 60 and the provision of Order XXI substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil companyrt.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLANTE JURLSDICTION Case No. 349 of 1951. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 26th June, 1951, of the High Court of Judicature,at Bombay Chagla C. J. and Gajendragadkar J. in Criminal Application No. 345 of 1951. A. Peerbhoy, Jindra Lal and I. N. Shroff for the appellant. K. Daphtary, Solicitor General for India Porus A. Mehta, with them for respondent No. 1. B. Dadachanji and Rajinder Narain for respondent No. 2. 1954. March 10. The Judgment of the Court was delivered by Bose J.-The question in this case is whether section 497 of the Indian Penal Code companytravenes articles 14 and 15 of the Constitution. The appellant is being prosecuted for adultery under section 497 of the Indian Penal Code. As soon as the companyplaint was filed he applied to the High Court of Bombay to determine the companystitutional question mentioned above under article 228 of the Constitution. The High Court decided against him but granted him a certificate under articles 132 1 and 134 1 c . Under section 497 the offence of adultery can only be companymitted by a man but in the absence of any provision to the companytrary the woman would be punishable as an abettor. The last sentence in section 497 prohibits this. It runs- In such case the wife shall number be punishable as an abettor. It is said that this offends articles 14 and 15. The portion of article 15 on which the appellant relies is this The State shall number discriminate against any citizen on grounds only of sex. But what he overlooks is that is subject to clause 3 which runs Nothing in this article shall prevent the State from making any special provision for women The provision companyplained of is a special provision and it is made for women, therefore it is saved by clause 3 . It was argued that clause 3 should be companyfined to provisions which are beneficial to women and cannot be used to give them a licence to companymit and abet crimes. We are unable to read any such restriction into the clause number are we able to agree that a provision which prohibits punishment is tantamount ,to a licence to companymit the offence of which punishment has been prohibited. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be numberdiscriminate in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in section 497 of the Indian Penal Code. The appellant is number a citizen of India. It was argued that he companyld number invoke articles 14 and 15 for that reason. The High Court held otherwise.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 143 of 1952. Appeal under article 132 1 of the Constitution of India from the Judgment and Order, dated the 11th December, 195 1, of the High Court of Judicature, Rajasthan at Jodhpur in D. B. Civil Miscellaneous Case No. 1 of 1951. C. Setalvad, Attorney-Genaral for India and K. S. Hajela, Advocate-General of Rajasthan, Porus A. Mehta, with them for the appellant, C. Chatterjee. and U. M. Trivedi Jiwan Sinha Chandra and Ganpat Rai, with them for the respondent. 1954. March 15. The Judgment of the Court was delivered by GHULAM HASAN J.-This appeal filed on a certificate granted by the High Court of Rajasthan under article 132 1 of the Constitution arises from the judgment and order of the said High Court Wanchoo C.J. and Bapna J. in a petition under article 226 of the Constitution, whereby the High Court held that section 8-A inserted in Rajasthan Ordinance No. XXVII of 1948 by section 4 of Rajasthan Ordinance No. X of 1949, and the amendment to section 8-A by section 3 of Rajasthan Ordinance XV of 1949 are void under article 14 of the Constitution and issued a writ restraining the State of Rajasthan from companylecting rents from the tenants of lands companyprising the Jagir of Bedla held by the respondent. The respondent Rao Manohar Singhji is the owner of the Jagir of Bedla situate in the former State of Mewar, number included in the State of Rajasthan. The former State of Mewar was integrated in April, 1948, to form what was known as the former United State of Rajasthan. In April and May, 1949, the latter State was amalgamated with the former States of Bikaner, Jaipur, Jaisalmer and Jodhpur and the former Union of Matsya to form the present United State of Rajasthan. Three Ordinances, No. XXVII of 1948 and Nos. X and XV of 1949, were issued by the former State of Rajasthan in companynection with State Jagirs. The management of the Jagirs including the Jagir of Bedla was assumed by the former State of Rajasthan in virtue of the powers under these Ordinances. After the final formation of the State of Rajasthan in May, 1949, the Ordinances remained in force in a part of the present area of Rajasthan with the result that while jagirs in a part -of the area were managed by the State in that area, the Jagirs in the rest of the State were left untouched and remained with the Jagirdars. On 4th January, 1951, the respondent filed a petition under article 226 of the Constitution companytending that the said Ordinances were ultra vires the Constitution and that they became void under article 13 1 of the Constitution of India, read with articles 14 and 31. The respondent challenged the Ordinances firstly because they companystitute an infringement of articles 14, 19 and 31 of the Constitution and secondly because the Jagirdars only of the former State of Rajasthan which was formed in 1948 are prejudicially affected, while Jagirdars of the States which integrated later on are number at all affected Para 9, K and L . It was alleged that there was a denial of equality before the law and the equal protection of the laws by reason of these Ordinances and further that the State had taken possession of the property of the respondent without providing for companypensation. The reply of the State was that the Jagir was a State grant held at the pleasure of the Ruler and that it reverted to the Ruler on the death of the holder of the Jagir and was regranted to his successor after the Ruler had recognized the succession. The rights of the Jagirdars were number-heritable and numbertransferable and the Jagirs companyld number be partitioned amongst the heirs of the Jagirdar. It was pleaded therefore that even if the State took possession of the Jagir, the Jagirdar was number entitled to companypensation under article 31 2 . It was also alleged that the impugned Ordinances had merely the effect of transferring the management of the Jagirs to the Government and did number deprive the Jagirdars of their property and they were companysequently number hit by article 31 2 . It was denied that there was any discrimination under article 14 of the Constitution. The High Court held on the first question that the pro I visions of Ordinances Nos. X and XV of 1949 are number void under article 31 2 or 19 1 f . On the second point they recorded the companyclusion that section 8-A which was introduced in Ordinance No. XXVII of 1948, by section 4 of - Ordinance No. X of 1949, and the amendment to section 8-A by section 3 of Rajasthan Ordinance No. XV of 1949, are void under article 13 1 of the Constitution, read with article 14. The High Court accordingly, allowed the petition and prohibited the State from companylecting rents from the tenants of the land companyprising the Jagir of Bedla held by the respondent. This judgment was given on 11th December, 1951, but we understand that since then the State has passed Acts abolishing Jagirs throughout the State. The question however is of some importance to the respondent inasmuch as it affects his right of companylecting the rents even though for a short period. In appeal it is companytended by the learned AttorneyGeneral on behalf of the State of Rajasthan that the decision of the High Court that the impugned section 8-A as amended was hit by article 14 of the Constitution is erroneous. Before deciding the validity of this companytention it will be necessary to refer briefly to the relative provisions of the Ordinances. Ordinance No. I of 1948 the United State of Rajasthan Administration Ordinance, 1948 was made and promulgated on April 28, 1948, by the Rajpramukh of Rajasthan to provide for the administration of the United State ,of Rajasthan after the latter came into existence. On July 26, 1948, Ordinance No. XXVII of 1948, the United State of Rajasthan Jagirdars Abolition of Powers Ordinance, 1948 was made and promulgated by the Rajpramukh providing for the abolition of judicial powers of Jagirdars and executive powers in companynection with the judiciary and vesting them in the Government. Section 8 of this Ordinance authorised the Government to make orders with a view to carrying out and giving effect to the provisions and pur- poses of the Ordinance and the various powers enumerated in that section. Then came section 8-A which was introduced by Ordinance X of 1949 the United State of Rajasthan Jagirdars Abolition of Powers Amendment Ordinance, 1949. It reads thus- Without prejudice to the generality of the foregoing provisions, it is hereby enacted that the revenue which was heretofore companylected by Jagirdars shall 1000 henceforward be companylected by and paid to the Government the Government will after deducting the companylection and other expenses pay. it to the Jagirdar companycerned. It was amended by section 3 of Ordinance No. XV of 1949 the United State of Rajasthan Jagirdars Abolition of Powers 2nd Amendment Ordinance, 1949 by adding to section 8-A after the word Revenue the following Including taxes, cesses and other revenue from forests. It is number denied that when the State of Rajasthan was formed in April and May, 1949, the Jagirdars of only a part of the present State of Rajasthan companyld number companylect their rents while Jagirdars in other areas which were companyered by Jaipur, Bikaner, Jaisalmer and Jodhpur and Matsya Union were under numbersuch disability. It appears that in the former State of Rajasthan provisions regarding the management by Government of Jagirs and the right to companylect rents already existed, whereas there was numbersuch provision in the former States of Jaipur, Bikaner, Jaisalmer and Jodhpur and Matsya Union, but when the integration took place in April and May, 1949, the discrimination exhibited itself number by virtue of anything inherent in the impugned Ordinances but by reason of the fact that Jagirdars of one part of the present State of Rajasthan were already subjected to a disability in the matter of management of their Jagirs while the other parts were wholly unaffected. This discrimination, however undesirable, was number open to any exception until the Constitution came into force on January 26, 1950, when article 13 of the Constitution declared that all laws in force in the territory of India immediately before the companymencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It becomes therefore necessary to see whether the impugned provision which is discriminatory on the face of it is hit by article 14 which declares that the State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India., Such an obvious discrimination 1001 can be supported only on the ground that it was based upon,,, reasonable classification. It is number well settled by the decision of this companyrt that a proper classification must always bear a reasonable and just relation to the things in respect of which it is proposed. Judged by this criterion it seems to us that the discrimination is based on numberclassification at all and is manifestly unreasonable and arbitrary. The classification might have been justified if the State had shown that it was based upon a substantial distinction, namely that the Jagirdars of the area subjected to the disability were in some way different to those of the other area of Rajasthan who were number similarly situated. It was perfectly possible for the State to have raised a specific ground in order to get out of the mischief of article 14, that the discrimination was based upon-what the learned Attorney-General called geographical companysideration, that the Jagirs of the particular area were governed by different laws of tenure and thus companystituted a class by itself and that that was a good ground for differentiation. No such ground was ever put forward before the High Court, much less was any attempt made to substantiate such a ground. In the absence of any allegation supported by evidence we are unabe to find in favour of the State that the Jagirdars of the particular area to which category the respondent belongs were differently situated to other Jagirdars. The preambles of the Ordinances do number purport to show that the companyditions in the former State of Rajasthan were such as to justify the imposition of the disability on the Jagirdars of that State while the companyditions prevailing in the other States forbade such a companyrse. The High Court held that the Ordinance abolishing the Police and the Judicial powers and the administrative powers of the Jagirdars in respect to revenue in -forests was open to numberobjection but there was numberreason for taking away from the Jagirdars by section 8-A the power to companylect rents to which they were entitled. We agree with the High Court in holding that there was numberreal and substantial distinction why the Jagirdars of a particular area should companytinue to be 1002 treated with inequality as companypared with the Jagirdars in another area of Rajasthan. We hold therefore that numberrational basis for any classification or differentiation has been made out. Section 8-A of the impugned Ordinance as amended is a clear companytravention of the respondents right under article 14 of the Constitution and must be declared void. The case of Frank J. Bowman v. Edward A. Lewis 1 relied upon by the learned Attorney-General on behalf of the State is inapplicable to the facts and circumstances of the present case. By the Constitution and laws of Missouri the citizens residing in one hundred and nine companynties of the State of Missouri had the right and privilege of an unrestricted appeal to the supreme Court of the State, while, at the same time the right of appeal -was denied to the citizens of the State residing in four of the companynties in the easterly portion of the State, as also to those residing in the City of St. Louis. It was companytended that this feature of the judicial system of Missouri was in companyflict with the 14th Amendment of the Constitution of the United States. Bradley J. held that the equality clause in the 14th Amendment companytemplates the protection of persons against unjust discriminations by a State it has numberreference to territorial or municipal arrangements made for different portions of a State. He went on to say- If a Mexican State should be acquired by treaty and added to an adjoining State or part of a State, in the United States, and the two should be erected into.a new State, it cannot be doubted that such new State might allow the Mexican 1aws and judicature to companytinue unchanged in the one portion, and the companymon law and its companyresponding judicature in the other portion. Such an arrangement would number be prohibited by any fair companystruction of the 14th Amendment. It would number be based on any respect of persons or classes, but on municipal companysiderations alone, and a regard to the welfare of all classes within the particular territory or jurisdiction. This passage which was strongly relied upon by the learned Attorney-General does number advance his case 1 1O1 U.S 22 25 Law. Ed. 989. 1003 for in the present cage there is numberquestion of companytinuing unchanged the old laws and judicature in one portion and a different law in the other. As we have already said there is numberhing to show that there as any peculiarity or any special feature in the Jagirs of the former State of Rajasthan to justify differentiation from the Jagirs companyprised in the States which subsequently integrated into the present United State of Rajasthan. After the new State was formed, there was numberoccasion to take away the powers of Jagirdars of a disfavoured area and to leave them intact in the rest of the area. The case in Ramjilal v. Income-tax Officer, Mohindargarh 1 is distinguishable on the ground that that case proceeded upon the principle that pending proceedings should be companycluded according to the law applicable at the time when the rights or liabilities accrued and the proceeding companymenced was a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause. Such is however number the case here. Reliance was also placed on the case of The State of Punjab v. Ajaib Singh and Another 1 . In that case the Abducted Persons Recovery and Restoration Act of 1949 was number held to be unconstitutional under article 14 upon the ground that it extended only to the several States mentioned in section 1 2 , for in the opinion of the companyrt classification companyld well be made on a geographical basis. There the Muslim abducted persons- found in those States were held to form one class having similar interests to protect and their inclusion in the definition of abducted persons companyld number be called discriminatory. The learned Attorney-General referred to two cases decided by the same. Bench of the Rajasthan High Court, Thakur Madan Singh v. Collector of Sikar 3 , and an unreported judgment delivered on November 10, 1953, In re, Raja Hari Singh v. Rajasthan and argued 1 1951 S.C.R. 127. 2 1953 S.C.R. 254. Rajasthan Law Weekly, 1954, P.1. 1004 that the Bench -had number stuck to its view expressed in the judgment under appeal. A careful, perusal of the judgments in these cases will show that this is far from being the case. The former case was distinguished from the case under appeal on the ground that there was a reasonable basis for classification in that case, while numbersuch basis existed in the case before us. It appears that before Jaipur State merged into the present United State of Rajasthan there were District Boards existing in that State. They were companytinued on the formation of the new State but there were numberDistrict Boards in the other States. The argument that the Jaipur District Boards Act was invalid under article 14 of the Constitution was repelled it being held that the existence of District Boards in Jaipur was for the welfare of all classes within Jaipur that Jaipur had reached a higher stage of development than many of the other States and it would have been a retrograde step to deprive the People living in the former Jaipur State of the benefits -of Local Self Government companyferred by the District Boards Act. Reliance was placed on the observations of Bradley J. in Frank J. Bowman v. Edward A. Lewis 1 in companynection with the illustration of the Mexican State and the learned Chief Justice referred with approval to the decision under appeal before us. In the second case the attack was on the alleged discriminatory provision companytained in the Mewar Tenancy Act and the Land Revenue Act. Under these Acts the rent rates had been approved by the Board of Revenue and the Government and they were alleged to be detrimental to the interests of the Jagirdars. The Jagirdars had challenged those Acts by a petition under article 226. It appears that numbersuch laws existed in the other parts of Rajasthan. The decision of the High Court proceeded on the ground that it was number shown that there were numbersimilar tenancy and Land Revenue laws in other parts of Rajasthan and the impugned Acts being ameliorative legislation designed to raise the economic status of the agriculturists in Mewar companyld number be said to companystitute any discrimination merely because numbersuch legislation 1 101 U.S. 22 25 Law. Ed. 989. 1005 existed in the other parts of Rajasthan . This difference between the two parts did number justify that such progressive and ameliorative measures for the welfare of the people existing in a particular area should be done, away with and the State be brought down to the level of the unprogressive States. The judgment shows that the Bench far from going back on its previous view adhered to it and expressly distinguished the case under appeal before us on its special facts. .

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 38 of 1953. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 13th December, 1951, of the High Court of Judicature, Madras, in Civil Miscellaneous Petition No. 2591 of 1951. 1007 K.T. Chari, Advocate-General of Madras B. Ganapathy Iyer, with him for the appellant. Somayya and C.R. Pattabhi Raman T. Krishna Rao and M.SK. Sastri, with them for the respondent. N. Subramania Iyer, Advocate-General of Travancore- Cochin T. R. Balakrishna Iyer and Sardar Bahadur with him for the Intervener State of Travancor,Cochin . 1954. March 16. The Judgment of the Court was delivered by MUKHERJIA J.-This appeal is directed against a judgment of a Division Bench of the Madras High Court, dated the 13th of December, 1951, by which the learned Judges allowed petition, presented by the respondent under article 226 of the Constitution, and directed a writ of prohibition to issue in his favour prohibiting the appellant from proceeding with the settlement of a scheme in companynection with a Math, known as the Shirur Math, of which the petitioner happens to be the head or superior. It may be stated at the outset that the petition was filed at a time when the Madras Hindu Religion Endowments Act Act II of 1927 , was in force and the writ was prayed for against the Hindu Religious Endowments Board companystituted under that Act, which -was the predecessor in authority of the present appellant and had initiated proceedings for settlement of a scheme against the petitioner under section 61 of the said Act. The petition was directed to be heard along with two other petitions of a similar nature relating to the temple at Chidambaram in the district of South Arcot and questions were raised in all of them regarding the validity of Madras Act 11 of 1927, hereinafter referred to as the Earlier Act. While the petitions were still pending, the Madras Hindu Religious and Charitable Endowments Act,, 1951 hereinafter called the New Act , was passed by the Madras Legislature and came into force on the 27th of August, 1951. In view of the Earlier Act being replaced by the new one,, leave was given to all the petitioners to amend their petitions and challenge the validity of the. New Act as well. 1008 Under section 103 of the New Act, numberifications, orders and acts under the Earlier Act are to be treated as numberifications, orders and acts issued, made or done by the appropriate, authority under the companyresponding provisions of the New Act, and in accordance with this -provision, the Commissioner, Hindu Religious Endowments, Madras, who takes the place of the President, Hindu Religious Endowments Board under the Earlier Act, was added as a party to the proceedings. So far as the present appeal is companycerned, the material facts may be shortly narrated as follows The Math, known as Shirur Math, of which the petitioner is the superior or Mathadhipati, is one of the eight Maths situated at Udipi in the district of South Kanara and they are reputed to have been founded by Shri Madhwacharya, the well-known exponent of dualistic theism in the Hindu Religion. Besides these eight Maths, each one of which is presided over by a Sanvasi or Swami, there exists another ancient religious institution at Udipi, known as Shri Krishna Devara Math, also established by Madhwacharya which is supposed to companytain an image of God Krishna originally made by Arjun and miraculously obtained from a vessel wrecked at the companyst of Tulava. There is numberMathadhipati in the Shri Krishna Math and its. affairs are managed by the superiors of the other eight Maths by turns and the custom is that the Swami of each of these eight Maths presides over the Shri Krishna Math in turn for a period of two years in every sixteen years. The appointed time of change in the headship of the Shri Krishna Math is the occasion of a great festival, known as Pariyayam, when a vast companycourse of devotees gather at Udipi from all parts of Southern India, and an ancient usage imposes a duty upon the Mathadhipati to feed every Brahmin that companyes to the place at that time. The petitioner was installed as Mathadhipati in the year 1919, when he was still a minor, and he assumed management after companying of age some time in 1926. At that time the Math was heavily in debt. Between 1926 and 1930 the Swami succeeded in clearing off a large portion of the debt. In 1931, however, came the 1009 turn of his taking over management of the Shri Krishna Math and he had had to incur debts to meet the heavy expenditure attendant on the Pariyayam ceremonies, The financial position improved to some extent during the years that followed, but troubles again arose in 1946, which was the year of the second Pariyayam of the Swami. Owing to scarcity and the high prices of companymodities at that time, the Swami had to borrow money to meet the expenditure and the debts mounted up to nearly a lakh of rupees. The Hindu Religious Endowments Board, functioning under the Earlier Act of 1927, intervened at this stage and in exercise of its powers under section 61 -A of the Act called upon the Swami to appoint a companypetent manager to manage the affairs of the institution. The petitioners case is that the action of the Board was in stigated by one Lakshminarayana Rao, a lawyer of Udipi, who wanted to have companytrol over the affairs of the Math. It appears that in pursuance of the direction of the Board, one Sripath Achar was appointed an agent and a Power of Attorney was executed in his favour on the 24th of December, 1948. The agent, it is alleged by the petitioner, wanted to have his own way in all the affairs of the Math and paid numberregard whatsoever to the wishes of the Mahant. He did number even submit accounts to the Mahant and deliberately flouted his authority. In this state of affairs the Swami,, on the 26th of September, 1950, served a numberice upon the agent terminating his agency and calling upon him to hand over to the Mathadhipati all account papers and vouchers relating to the institution together with the cash in hand. Far from companyplying with this demand, the agent, who was supported by the aforesaid Lakshminarayans Rao, questioned the authority of the Swami to cancel his agency and threatened that he would refer the matter for action to the Board. On the 4th of October, 1950, the petitioner filed a suit against the agent in the Sub,Court of South Kanara for recovery of the account books and other articles belonging to the Math, for rendering an account of the management and also for an injunction restraining the said agent from interfering with the affairs of the Math under companyour of the 1010 authority companyferred by the Power of Attorney which the plaintiff had cancelled. The said Sripath Achar anticipating this suit filed an application to the Board on the 3rd of October, 1950, companyplaining against the cancellation of the Power of Attorney and his management of the Math. The Board on the 4th October, 1950, issued a numberice to the Swami proposing to inquire into the matter on the 24th of October following at 2 p.m. at Madras and requesting the Swami either to apppear in person or by a pleader. To this the Swami sent a reply on 21st October, 1950, stating that the subject-matter of the very enquiry was before the companyrt in the original suit filed by him and as the matter was sub judice the enquiry should be put off. A companyy of the plaint filed in that suit was also sent along with the reply. The Board, it appears, dropped that enquiry, but without waiting for the result of the suit, initiated proceedings suo moto under section 62 of the Earlier Act and issued a numberice upon the Swami on the 6th of November, 1950, stating that it had reason to believe that the endowments of the said Math were being mismanaged and that a scheme should be framed for the administration of its affairs. . The numberice was served by affixture on the Swami and the 8th of December, 1950, was fixed as the date of enquiry. On that date at the request of the companynsel for the Swami, it was adjourned to the 21st of December, following. On the 8th of December, 1950, an application was filed on behalf of the Swami praying to the Board to issue a direction to the agent to hand over the account papers and other documents, without which it was number possible for him to file his objections As the lawyer appearing for the Swami was unwell, the matter was again adjourned till the 10th of January, 1951. The Swami was number ready with his objections even on that date as his lawyer had numbert recovered from his illness and a telegram was sent to the Board on the previous day requesting the latter to grant a further adjournment. The Board did number accede to this request and as numberexplanation was filed by the Swami, the enquiry was closed and orders reserved upon it. On the 13th of January, 1951, the Swami, it appears sent a written 1011 explanation to the Board, which the latter admittedly received on the 15th On the 24th of January, 1951, the Swami received a numberice from the Board stating inter alia that the Board was satisfied that in the,, interests of proper administration of the Math and its endowments, the settlement of a scheme was necessary. A draft scheme was sent along with the numberice and if the petitioner had any objections to the same, he was required to send in his objections on or before the 11th of February, 1951, as the. final order regarding the scheme would be made on the 15th of February, 1951. On the 12th of February, 1951, the peti- tioner filed the petition, out of which this appeal arises, in the High Court of Madras, praying for a writ of prohibition to prohibit the Board from taking further steps in the matter of settling a scheme for the administration of the Math. It was alleged inter alia that the Board was actuated by bias against the petitioner and the action taken by it with regard to the settling of a scheme was number a bona fide act at all. The main companytention, however, was that having regard to the fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations, the law regulating the framing of a scheme interfering with the management of the Math and its affairs by the Mathadhipati companyflicted with the provisions of art- icles 19 1 f and 26 of the Constitution and was hence void under article 13. It was alleged further that the provisions of the Act were discriminatory in their character and offended against article 15 of the Constitution. As has been stated already, after the New Act came into force, the petitioner was allowed to end his petition and the attack was number directed against the companystitutional validity of the New Act which replaced the earlier legislation. The learned Judges, who heard the petition, went into the matter with elaborate fullness, both on the companystitutional questions involved in it as well as on its merits. On the merits, it was held that in the circumstances of the case the action of the Board was a perverse exercise of its jurisdiction and that it should 1012 number be allowed to proceed in regard to the settlement of the scheme. On the companystitutional issues raised in the case, the learned Judges pronounced quite a number of sections of the New Act to be ultra vires the Constitution by reason of their being in companyflict with the fundamental rights of the petitioner guaranteed under articles 19 1 f , 25, 26 and 27 of the Constitution. In the result, the rule nisi issued on the petition was made absolute and the Commissioner, Hindu Religious Endowments, Madras, was prohibited from proceeding further with the framing of a scheme inregard to the petitioners Math. The Commisioner has number companye up on appeal before us on the strength of a certificate granted by the High Court under article 132 1 of the Constitution. The learned Advocate-General for Madras, who appeared in support of the appeal, companyfined his arguments exclusively to the companystitutional points involved in this case. Although he had put in an application to. urge grounds other than the companystitutional grounds, that application was number pressed and he did number challen the findings of fact upon which the High Court based its decision on the merits of the petition. The position, therefore, is that the order of the High Court issuing the writ of prohibition against the appellant must stand irrespective of the decision which we light arrive at on the companystitutional points raised before us. It is number disputed that a State Legislature is companypetent to enact laws on the subject of religious and charitable endowments, which is companyered by entry 28 of List III in Schedule VII of the Constitution. No question of legislative incompetency on the part of the Madras Legislature to enact the legislation in question has been raised before us with the exception of the provision, relating to payment of annual companytribution companytained in section 76 of the impugned Act. The argument that has been advanced is, that the companytribution is in reality a tax and number a fee and companysequently the State Legislature had numberauthority to enact a provision of this character. We will deal with this point separately later on. All the other points canvassed 1013 before us relate to the companystitutional validity or otherwise of the several provisions of the Act which have been held to be invalid by the High Court of Madras on grounds of their being in companyflict with the fundamental rights guaranteed under articles 19 1 f , 25, 26 and 27 of the Constitution. In order to appreciate the companytentions that have been advanced on these heads by the learned companynsel on both sides, it may be companyvenient to refer briefly to the scheme and the salient provisions of the Act. The object of the legislation, as indicated in the preamble, is to amend and companysolidate the law relating to the administration and governance of Hindu religious and charitable institutions and endowments in the State of Madras. As companypared with the Earlier Act, its scope is wider and it can be made applicable to purely charitable endowments by proper numberification under section 3 of the Act. The Earlier Act provided for supervision of Hindu religious endowments through a statutory body known as the Madras Hindu religious Endowments Board. The New Act has abolished this Board and the administration of religious and charitable institutions has been vested practically in a department of the Government, at the head of which is the Commissioner. The powers of the Commissioner and of the other authorities under him have been enumerated in Chapter II of the Act. Under the Commissioner are the Deputy Commissioners, Assistant Commissioners and Area Committees. The Commissioner, with the approval of the Government, has to divide the State into certain areas and each area is placed in charge of a Deputy Commissioner, to whom the powers of the Commissioner can be delegated. The State has also to be divided into a number of divisions and an Assistant Commissioner is to be placed in charge of each division. Below the Assistant Commissioner, there will be an Area Committee in charge of all the temples situated within a division or part of a division. Under section 18, the Commissioner is empowered to examine the records of any Deputy Commissioner, Assistant Commissioner, or Area Committee, or of any trustee number being the trustee 1014 of a, Math, in respect of any proceeding under the Act, to satisfy himself as to the regularity, companyrectness, or propriety of any decision or order. Chapter III companytains the general provisions relating to all religious institutions. Under section 20, the administration of religious endowments is placed under the general superintendence and companytrol of the Commissioner and he is empowered to pass any orders which may be deemed necessary to ensure that such endowments are properly administered and their income is -duly appropriated for the purposes for which they were founded or exist. Section 21 gives the Commissioner, the Deputy and Assistant Commissioners and such other officers asmay be authorised in th is behalf, the power to enter the premises of any religious institution or any place of worship for the purpose of exercising any power companyferred, or discharging any duty imposed, by or under the Act. The only restriction is that the officer exercising the power must be a Hindu. Section 23 makes it obligatory on the trustee of a religious institution to obey all lawful orders issued under the provisions of this Act by the Government, the Commissioner, the Deputy Commissioner, the Area Committee or the Assistant Commissioner. Section 24 lays down that in the administration of the affairs of the institution, a trustee should use as much care as a man of ordinary prudence would use in the management of his own affairs. - Section 25 deals with the preparation of registers of all religious institutions and section 26 provides for the annual verification of such registers. Section 27 imposes a duty on the trustee to furnish to the Commissioner such accounts, returns, reports and other information as the Commissioner may require. Under section 28, power is given to the Commissioner or any other officer authorised by him to inspect all movable and immovable properties appertaining to a religious institution. Section 29 forbids alienation of all immovable properties belonging to the trust, except leases for a term number exceeding five -,,ears, without the Sanction of the Commissioner. Section 30 lays down that although a trustee may incur expenditure for making arrangements for securing the health and 1015 companyfort of pilgrims, worshippers and other people, when there is a surplus left after making adequate provision for purposes specified in section 79 2 , he shall be guided in such matters by all genera or special instructions which he may receive from the Commissioner or the Area Committee. Section 31 deals with surplus funds which the trustee may apply wholly or in part with the permission in writing, of the Deputy Commissioner for any of the purposes specified in section 59 1 . Chapter IV deals specifically with Maths. Seetion 52 enumerates the grounds on which a suit would lie to remove a trustee. Section 54 relates to what is called dittam or scale of expenditure. The trustee has got to submit to the Commissioner proposals for fixing the dittam and the amounts to be allotted to the various objects companynected with the institution. The proposals are to be published and after receiving suggestions, if any, from persons interested in the instution, they would be scrutinised by the Commissioner. If the Commissioner thinks that a modification is necessary, he shall submit the case to the Government and the orders of the Government would be final. Section 55 empowers the trustee to spend at his discretion and for purposes companynected with the Math the Pathakanikas or gifts made to him personally, but he is required to keep regular accounts of the receipts and expenditure of such personal gifts. Under section 56, the Commissioner is empowered to call upon the trustee to appoint a manager for the administration of the secular affairs of the institution and in default of such appointment, the Commissioner may make the appointment himself. Under section 58, a Deputy Commissioner is companypetent to frame a scheme for any religious institutions if he has reason to believe that in the interests of the proper administration of the trust any such scheme is necessary. Sub-section 3 of this section provides that a scheme settled for a Math may companytain inter alia a provision for appointment of a paid executive officer professing the Hindu religion, whose salary shall be paid out of the funds- of the institution. Section 59 makes provision for application of the cy pres doctrine when the specific 1016 objects of the trust fail. Chapter VI of the Act, which companyprises sections 63 to 69, deals with the numberification of religious institutions. A religious institution may be numberified in accordance with the provisions laid down in this chapter. Such numberification remains in force for five years and the effect of it is to take over the administration and vest it in an executive officer appointed by the Commissioner. Chapter VII deals with budgets, accounts and audit and Chapter VIII relates to finance. Section 76 of Chapter VIII makes it companypulsory for all religious institutions to pay annually to the Government a companytribution number exceeding 5 per cent. of their income on account of the services rendered to them by the Government and their officers functioning under this Act. Chapter IX is number material for our purpose, and Chapter X deals with provisions of a miscellaneous nature. Section 89 in Chapter X prescribes the penalty for refusal by a trustee to companyply with the provisions of the Act. Section 92 lays down that numberhing companytained in the Act shall be deemed to companyfer any power or. impose any duty in companytravention of the rights companyferred on any religious denomination under clauses a , b and c of article 26 of the Constitution. Section 99 vests a revisional jurisdiction in the Government to call for and examine the records of the Commissioner and other subordinate authorities to satisfy themselves as to the regularity and propriety of any proceeding taken or any order or decision made by them These, in brief, are the provisions of the Act material for our present purpose. The learned Judges of the High Court have taken the view that the respondent as Mathadhipati has certain well defined rights in the institution and its endowments which companyld be regarded as rights to property within the meaning of article 19 1 f of the Constitution. The provisions of the Act to the extent that they take away or unduly restrict the power to exercise these rights are number reasonable restrictions within the meaning of article 19 5 and must companysequently be held invalid. The High Court has held in the second place that the respondent, as the head and 1917 representative of a religious institution, has a right guaranteed to him under article 25 of the Constitution to practise and propagate freely the religion of which he and his followers profess to be adherents. This right, in the opinion of the High Court, has been affected by some of the provisions of the Act. The High Court has held further that the Math in question is really an institution belonging to Sivalli Brahmins, who are a section of the followers of Madhwacharya and hence companystitutes a religious denomination within the meaning of article 26 of the Constitution. This religious denomination has a fundamental right under article 26 to manage its own affairs in matters of religion through the Mathadhipati who is their spiritual head and superior, and those provisions of the Act, which substantially take away the rights of the Mathadhipati in this respect, amount to violation of the fundamental right guaranteed under article 26. Lastly, the High Court has. held that the provision for companypulsory companytribution made in section 76 of the Act companyes within the mischief of article 27 of the Constitution. This last point raises a wide issue and We propose to discuss it separately later on. So far as the other three points are companycerned, we will have to examine first of all the general companytentions that have been raised by the learned Attorney-General, who appeared for the Union of India as an intervener in this and other companynected cases, and the questions raised are, whether these articles of the Constitution are at all available to the respondent in the present case and whether they give him any protection regarding the rights and privileges, of the infraction of which he companyplains. As regards article 19 1 f of the Constitution, the question that requires companysideration is, whether the respondent as Mathadhipati has a right to property in the legal sense,, in the religious institution and its endowments which would enable him to claim the -protection of this article ? A question is also formulated as to whether this article deals with companycrete rights of property at all ? So far as article 25 of the Constitution is companycerned, the point raised is, whether this 1018 article which, it is said, is intended to protect religious freedom only so far as individuals are companycerned, can be invoked in favour of an institution or Organisation ? With regard to article 26, the companytention is that a Math does number companye within the description of a religious denomination as provided for in the article and even if it does, what cannot be interfered with is its right to manage its own affairs in matters of religion only and numberhing else. It is said, that the word it religion , as used in this article, should be taken in its strict etymological sense as distinguished from any kind of secular activity which may be companynected in some way with religion on but does number form an essential part of it. Reference is made in this companynection to clause 2 a of article 25 and clause d of article 26. We will take up these points for companysideration one after another. As regards the -property rights of a Mathadhipati, it may number be possible to say in view of the pronouncements of the Judicial Committee, which have been accepted as good law in this companyntry ever since 1921, that a Mathadhipati holds the Math property as a lifetenant or that his position is similar to that of a Hindu widow in respect to her husbands estate or of an English BishoP holding a benefice. He is certainly number a trustee in the strict sense. He may be, as the Privy Council 1 , says, a manager or custodian, of the institution who has to discharge the duties of a trustee and is answerable as such but he is number a mere manager and it would number be right to describe Mahantship as a mere office. A superior of a Math has number only duties to discharge in companynection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebait in the debutter property. It was held by a Full Bench of the Calcutta High Court 2 , that Shebaitship. itself is property, and this decision was approved of by the Judicial Committee in Ganesh v Lal Behary 3 , and again in Bhabatarini v. Ashalata 4 . Vide Vidya Varuthi v. Balusami, 48 I. A. 302 Vide Monahai v. Bhupendra, 60 Cal. 452. 3 63 I.A. 448. 4 70 I.A. 57. 1019 The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasise the propriet ary element in the Shebaiti right and to show that though in some respects an anomaly, it was an anomaly to be accepted as having been admitted into Hindu ,law from an early date. This view was adopted in its entirety by this companyrt in Angurbala v. Debabrata 1 , and what was said in that case in respect to Shebaiti right companyld, with equal propriety, be applied to the office of a Mahant. Thus in the companyception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties and these and other rights of a similar character invest the office of the Mahant with .the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. It is true that the Mahantship is number heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose companynection with his natural family being companypletely cut of, the ordinary rules of succession do number apply. There is numberreason why the word property, as used in article 19 1 f of the Constitution, should number be given a liberal and wide companynotation and should number be extended to those well recognised types of interest which have the insignia or characteristics of proprietary right. As said above, the ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a Mahant altogether. It is true that the beneficial interest which he enjoys is appurtenant to his duties 1 1951 S.C.R. 1125. 1020 and as he is in charge of a public institution, reasonable restrictions can always be placed upon his rights in the interest of the public. But the restrictions would cease to be reasonable if they are calculated to make him unfit to discharge the duties which he is called upon to discharge. A Mahants duty is number simply to manage the temporalities of a Math. He is the head and superior of spiritual fraternity and the purpose of Math is to encourage and foster spiritual training by maintenance of a companypetent line of teachers who companyld impart religious instructions to the disciples and followers of the Math and try to strengthen the doctrines of the particular school or order, of which they profess to be adherents. This purpose cannot be served if the restrictions are such as would bring the Mathadhipati down to the level of a servant under a State department. It is from this standpoint that the reasonableness of the restrictions should be judged. A point was suggested by the learned AttorneyGeneral that as article 19 1 f deals only with the natural rights inherent in a citizen to acquire, hold and dispose of property in the abstract without reference to rights to any particular property, it can be of numberreal assistance to the respondent in the present case and article 3l of the Constitution, which deals with deprivation of property, has numberapplication here. In the case of The State of West Bengal v. Subodh Gopal Bose II Civil Appeal No. 107 of 1952, decided by this companyrt on the 17th December, 1953 , an opinion was expressed by Patanjali Sastri C. J. that article 19 1 f of the Constitution is companycerned only with the abstract right and capacity to acquire, hold and dispose of property and that it has numberrelation to companycrete property rights. This, it may be numbered, was an expression of opinion by the learned Chief Justice alone and it was number the decision of the companyrt for out of the other four learned Judges who together with the Chief Justice companystituted the Bench, two did number definitely agree with this view, while the remaining two did number express any opinion one way or the other. This point was number raised before us by the Advocate- General for Madras, who appeared in support of the appeal, number by any of the other 1 1954 S.C.R. 587 1021 companynsel appearing in this case. The learned Attorney. General himself stated candidly that he was number prepared to support the view taken by the late Chief Justice as mentioned above, and he only raised the. point to get an authoritative pronouncement upon it by the companyrt. In our opinion, it would number be proper to express any final opinion upon the point in the present case when we had number the advantage of any arguments addressed to us upon it. We would prefer to proceed, as this companyrt has proceeded all along, in dealing with similar cases in the past, on the footing that article 19 1 f applies equally to companycrete as well as abstract rights of property. We number companye to article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom number only to entertain such religious belief, as may be approved of by his judgment and companyscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word persons here means individuals only or includes companyporate bodies as well. The question, in our opinion, is number at all relevant for our present purpose. A Mathadhipati is certainly number a companyporate body he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. it is his duty to practise and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under article 25. Institutions as such cannot practise or propagate religion it can be done only by individual persons and whether these person propagate their personal views or the tenets for which the institution stands is really immaterial for purposes. of article 25. It is the propagation of belief that is protected, numbermatter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting. As regards article 26, the first question is, what is the precise meaning or companynotation of the expression 1022 religious denomination and whether a Math companyld companye within this expression. The word denomination has been defined in the Oxford Dictionary to mean Ca companylection of individuals classed together under the same name a religious sect or body having a companymon faith and Organisation and designated by a distinctive name. It is well known that the practice of setting up Maths as centres of the logical teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be balled a religious denomination, as it is designated by a distinctive name,-in many cases it is the name of the founder,-and has a companymon faith and companymon spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly companystitute a religious denomination and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who companystitute a section of the followers of Madhwacharya. As article 26 companytemplates number merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately companye within the purview of this article. The other thing that remains to be companysidered in regard to article 26 is, what is the scope of clause b of the article which speaks of management of its own affairs in matters of religion ? The language undoubtedly suggests that there companyld be other affairs of a religious denomination or a section thereof which are number matters of religion and to which the guarantee given by this clause would number apply. The question is, whereas the line to be drawn between what are matters of religion and what are number 1023 It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause b , the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which numberlegislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are number matters of religion to which clause b of the article applies. What then are matters of religion ? The word religion has number been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case 1 , it has been said that the term religion has reference to ones views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often companyfounded with cultus of form or worship of a particular sect, but is distinguishable from the latter. We do number think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44 2 of the Constitution of Eire and we have great doubt whether a definition of religion as given above companyld have been in the minds of our Constitution-makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or companymunities and it is number necessarily theistic. There are well known religions in India like Buddhism and Jainism which do number believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as companyducive to their spiritual well being, but it would number be companyrect to say that religion is numberhing else, but a Vide Davie v. Benson 133 U.S 333 at 342. 1024 doctrine or belief. A religion may number only lay down a companye of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. The guarantee under our Constitution number only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression practice of religion in article 25. Latham C. J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the free exercise of any religion made the following weighty observations 1 It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should number interfere with religious opinion, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts. done in pursuance of religious belief as part of religion. These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order,. morality and health. Clause 2 a of article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause b under which the State can Vide Adelaide Company V. The Commonwealth 67 C.L.R. 116, 127 1025 legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned Attorney-General lays stress upon clause 2 a of the article and his companytention is that all secular activities, which may be associated with religion but do number really companystitute an essential part of it, are amenable to State regulation. The companytention formulated in such broad terms cannot, we think, be supported. In the first place, what companystitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable companymodities would number make them secular activities partaking of a companymercial or economic character all of them are religious. practices and should be regarded as matters of religion within the meaning of article 26 b . What article 25 2 a companytemplates is number regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run companynter to public order, health and morality, but regulation of activities which are economic, companymercial or political in their character though they are associated with religious practices. We may refer in this companynection to a few American and Australian cases, all of which arose out of the activities of persons companynected with the religious association known as Jehovas Witnesses. This association of persons loosely organised throughout Australia, U.S.A. and other companyntries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme Authority of the Bible companyours many of their political ideas. They refuse to take oath of allegiance to the king or other Constituted 1026 human authority and even to show respect to the national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a companypany of Jehovas Witnesses incorporated in Australia companymenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them under the National Security Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was number in any way infringed by the National Security Regulations 1 . These were undoubtedly political activities though arising out of religious belief entertained by a particular companymunity. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was number an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which companystitutional guarantee of civil liberty would be a mockery. The companyrts of America were at one time greatly agitated over the question of legality of a State regulation which required the pupils in public schools on pain of companypulsion to participate in a daily ceremony of saluting the national flag, while reciting in unison, a pledge of allegiance to it in a certain set formula. The question arose in Minersville School District, Board of Education, etc. v. Gobitis 2 . In that case two small children, Lillian and William Gobitis, were expelled from the public school of Minersville, Pennsylvania, for refusing to salute the national flag as part of the daily exercise. The Gobitis family were affiliated with Jehovas Witnesses and had been Vide Adelaide Company v. The Commonwealth, 67 C.L.R., 116, 127. 2 310 U.S. 586. 1027 brought up companyscientiously to believe that such a gesture of respect for the flag was forbidden by the scripture. The point for decision by the Supreme Court was whether the requirement of participation in such a ceremony exacted from a child, who refused upon sincere religious ground, infringed the liberty of religion guaranteed by the First and the Fourteenth Amendments ? The companyrt held by a majority that it did number and that it was within the province of the legislature and the school authorities to adopt appropriate means to evoke and foster a sentiment of. national unity amongst the children in public schools. The Supreme Court, however, changed their views on this identical point in the later case of West Virginia State Board of Education v. Barnette 1 . There it was held overruling the earlier decision referred to above that the action of a State in making it companypulsory for children in public schools to salute the flag and pledge allegiance companystituted a violation of the First and the Fourteenth Amendments. This difference in judicial opinion brings out forcibly the difficult task which a companyrt has to perform in cases of this type where the freedom or religious companyvictions genuinely entertained by men companye into companyflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization. As regards companymercial activities, which are prompted by religious beliefs, we can cite the case of Murdock v. Pennsylvania 2 . Here also the petitioners were Jehovas Witnesses and they went about from door to door in the city of Jeannette distributing literature and soliciting people to purchase certain religious books and pamphlets, all published by the Watch Tower Bible and Tract Society. A municipal ordinance required religious companyporteurs to pay a licence tax as a companydition to the pursuit of their activities. The petitioners were companyvicted and fined for violation of the ordinance. It was held that the ordinance in question was invalid under the Federal Constitution as companystituting a denial of freedom of speech, press and religion 1 319 U.S. 624. 2 319 U.S. 105. 1028 and it was held further that upon the facts of the case it companyld number be said that Jehovas Witnesses were engaged in a companymercial rather than in a religious venture. Here again, it may be pointed out that a companytrary view was taken only a few years before in the case of Jones v. Opelika 1 , and it was held that a city ordinance, which required that licence be procured and taxes paid for the business of selling books and pamphlets on the streets from house to house, was applicable to a member of a religious Organisation who was engaged in selling the printed propaganda, pamphlets without having companyplied with the provisions of the ordinance. It is to be numbered that both in the American as well as in the Australian Constitutions the. right to freedom of religion has been declared in unrestricted terms with. out any limitation whatsoever. Limitations, therefore, have been introduced by companyrts of law in these companyntries on grounds of morality, order and social protection. An adjustment of the companypeting demands of the interests of Government and companystitutional liberties is always a delicate and a difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American companyrts where questions of religious freedom were involved. Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters companye within the purview of religion and what do number. As we have already indicated, freedom of religion in our Constitution is number companyfined to religious beliefs only it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under article 26 b , therefore, a religious denomination .or organization enjoys companyplete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and numberoutside authority has any jurisdiction to 1 316 U.S. 584. 1029 interfere with their decision in such matters. Of companyrse, the scale of expenses to be incurred in companynection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be companytrolled by secular authorities in accordance with any law laid down by a companypetent legislature for it companyld number be the injunction, of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be numbericed, however, that under article 26 d , it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause d of article 26. Having thus disposed of the general companytentions that were raised in this appeal, we will proceed number to examine the specific grounds that have been urged by the parties before us in regard to the decision of the High Court so far as it declared several sections of the new Act to be ultra vires the Constitution by reason of their companyflicting with the fundamental rights of the respondent. The companycluding portion of the judgment of the High Court where the learned Judges summed up their decision on this point stands as follows To sum up, we hold that the following sections are ultra vires the State Legislature in so far as they relate to this Math and what we say will also equally apply to other Maths of a similar nature. The sections of the new Act are sections 18, 209 21, 25 4 , section 26 to the extent section 25 4 is made applicable , section 28 though it sounds innocuous, it is liable to abuse as we have already pointed out earlier in the judgment , section 29, clause- 2 of section 30, section 31, section 39 2 , section 42, section 53 because companyrts have ample powers to meet these companytingencies , ,section 54, clause 2 of section 55, section 56, clause 3 1030 of section 58, sections to 69 in Chapter VI, clauses 2 , 3 and 4 of section 70, section 76, section 89 and section 99 to the extent it gives the Government virtually companyplete companytrol over the Matadhipati and Maths . It may be pointed out at the outset that the learned Judges were number, right in including sections 18, 39 2 and 42 in this list, as these sections are number applicable to Maths under the Act itself This position has number been disputed by Mr. Somayya, who appears for the respondent. Section 20 of the Act describes the powers of the Commissioner in respect to religious endowments and they include power to pass any orders that may be deemed necessary to ensure that such endowments are properly administered and that their income is duly appropriated for the purposes for which they were founded. Having regard to the fact that the Mathadhipati occupies the position of a trustee with regard to the Math, which is a public institution, some amount of companytrol or supervision over the due administration of the endowments and due appropriation of their funds is certainly necessary in the interest of the public and we do number think that the provision of this section by itself offends any fundamental right of the Mahant. We do number agree with the High Court that the result of this provision would be to reduce the Mahant to the position of a servant. No doubt the Commissioner is invested, with powers to pass orders, but orders can be passed only for the purposes specified in the section and number for interference with the rights of the Mahant as are sanctioned by usage or for lowering his position as the spiritual head of the institution. The saving provision companytained in section 91 of the Act makes the position quite clear. An apprehension that the powers companyferred by this section may be abused in individual cases does number make the provision itself bad or invalid in law. We agree, however, with the High Court in the view taken by it about section 21. This section empowers the Commissioner and his subordinate officers and also persons authorised by them to enter the premises of 1031 any religious institution or place of worship for the purpose of exercising any power companyferred, or any duty imposed by or under the Act. It is well known that there companyld be numbersuch thing as an unregulated and unrestricted right of entry in a public temple or other religious institution, for persons who are number companynected with the spiritual functions thereof. It is a traditional custom universally observed number to allow access to any outsider to the particularly sacred parts of a temple as for example, the place where the deity is located. There are also fixed hours of worship and rest for the idol when numberdisturbance by any member of the public is allowed. Section 21, it is to be numbered, does number companyfine the right of entry to the outer portion of the premises it does number even exclude the inner sanctuary the Holy of Holies as it is said, the sanctity of which is zealously preserved. It does number say that the entry may be made after due numberice to the head. of. the institution and at such hours which would number interfere with the due observance of the rites and ceremonies in the institution. We think that as the section stands, it interferes with the fundamental rights of the Mathadhipati and the denomination of which he is head guaranteed under articles 25 and 26 of the Constitution. Our attention has been drawn in. this companynection to section 91. of the Act which, it is said, provides a sufficient -safeguard against any abuse of power under section 2 1. We cannot agree with this companytention. Clause a of section 91 excepts from the saving clause all express provisions of the Act within which the provision of section 21 would have to be included. Clause b again does number say anything about custom or usage obtaining in an institution and it does number indicate by whom and in what manner the question of interference with the, religious and spiritual functions of the Math would be decided in case of any dispute arising regarding it. In our opinion, section 21 has been rightly held to be invalid. Section 23 imposes a duty upon the trustees to obey all lawful orders issued be the Commissioner or any subordinate authority under the, provisions of the Act. No exception can be taken to the section if those 1032 provisions of the Act, which offend against the fundmental rights of the respondent, are left out of account as being invalid. No body can make a grievance if he .is directed to obey orders issued in pursuance of valid legal authority. The same reason would, in our opinion, apply to section 24. It may be mentioned here that sections 23 and 24 have number been specifically mentioned in the companycluding portion of the judgment of the High Court set out above, though they have been attacked by the learned Judges in companyrse of their discussion. As regards section 25, the High Court has taken exception only to clause 4 of the section. If the preparation of registers for religious institutions is number wrong and does number affect the fundamental rights of the Mahant,one fails to see how the direction for addition to or alteration of entries in such registers, which clause 4 companytemplates and which will be necessary as a result of enquiries made under clause 3 , can, in any sense, be held to be invalid as infringing the fundamental rights of the Mahant. The enquiry that is companytemplated by clauses 3 and 4 is an enquiry into the actual state of affairs, and the whole object of the section is to keep an accurate record of the particulars specified in it. We are unable, therefore, to agree with the view expressed by the learned Judges. For the same reasons, section 26, which provides for annual verification of the registers, cannot be held to be bad. According to the High Court section 28 is itself innocuous. The mere possibility of its being abused is numberground for holding it to be invalid. As all endowed properties are. ordinarily inalienable, we fail to see why the restrictions placed by Section 29 upon alienation of endowed properties should be companysidered bad. In our opinion, the provision of clause 2 of section 29, which enables the Commissioner to impose companyditions when he grants sanction to alienation of endowed property, is perfectly reasonable and to that numberexception can be taken. The provision of section 30 2 appears to us to be somewhat obscure. Clause 1 of the section enables 1033 a trustee to incur expenditure out of the funds in his charge after making adequate provision . for the purposes referred to in section 70 2 , for making arrangements for the health, safety and companyvenience of disciples, pilgrims, etc. Clause 2 , however, says that in incurring expenditure under clause 1 , the trustee shall be guided by such general or special instruction as the Commissioner or the Area Committee might give in that companynection. If the trustee is to be guided but number fettered by such directions, possibly numberobjection can be taken to this clause but if he is bound to carry out such instructions, we do think that it companystitutes an encroachment on his right. Under the law, as it stands, the Mahant has large powers of disposal over the surplus income and the only restriction is that he cannot spend anything out of it for his personal use unconnected with the dignity of his ,office. But as the purposes specified in sub-clauses a and b of section 30 1 are beneficial to the institution there seems to be numberreason why the authority vested in the Mahant to spend the surplus income for such purposes should be taken away from-him and he should be companypelled to act in such matters under the instructions of the Government officers. We think that this is an unreasonable restriction on the Mahants right of property which is blended with his office. The same reason applies in our opnion to section 31 of the Act, the meaning of -which also is far from clear. If after making adequate provision for the purposes referred, to in section 70 2 and for, the arrangements mentioned in section 30 2 there is still a surplus left with the trustee, section 31 enables him to spend it for the purposes specified in section 59 1 with the previous sanction of the Deputy Commissioner. One of the purposes mentioned in section 59 1 is the propagation of the religious tenents of the institution, and it, is number understood why sanction of the Deputy Commissioner should be necessary for spending the surplus, income for the propagation of the religious tenets of the order which is one of the primary duties of a Mahant to discharge. The next thing that strikes one is, whether sanction is necessary if the trustee 1034 wants to spend the money for purposes other than those specified in section 59 1 ? If the answer is in the nega- tive, the whole object of the section becomes meaningless. If, on the other hand, the implication of the section is that the surplus can be spent only for the purposes specified in section 59 1 and that too with the permission of the Deputy Commissioner, it undoubtedly places a burdensome restriction upon the property rights of the Mahant which are sanctioned by usage and which would have the effect of impairing his dignity and efficiency as the head of the institution. We think that sections 30 2 and 31 have been rightly held to be invalid by the High Court. Sections 39 and 42, as said already, are number applicable to Maths and hence can be left out of companysideration,., Section 53 has . been companydemned by the - High Court merely on the ground that the companyrt has ample jurisdiction to provide for the companytingencies that this section is intended to meet. But that surely cannot prevent a companypetent legislature from legislating on the topic, provided it can do so without violating any of the fundamental rights guaranteed by the Constitution. We are unable to agree with the High Court on this point. There seems to be numberhing wrong or unreasonable in section 54 of the Act which provides for fixing the standard, scale of expenditure. The proposals for this purpose would have to be submitted by the trustee they are then to be published and suggestions invited from persons having interest in the amendment. The Commissioner is to scrutinise the original proposals and the . suggestions received and if in his opinion a modification of the scale is necessary, he has to submit a report to the Government, whose decision will be final. This we companysider to be -quite a reasonable and salutary provision. Section 55 deals with a Mahants power over Pathakanikas or personal gifts. Ordinarily a Mahant has absolute power of disposal over such gifts, though if he dies without making any disposition, it is reckoned as the property of the Math and goes to the succeeding Mahant. The first clause of section 55 lays down that such Pathakanikas shall be spent only for the 1035 purposes of the Math. This is an unwarranted restriction on the property right of the Mahant. It may be that according to customs prevailing in a particular institution, such personal gifts are regarded as gifts to the institution itself and the Mahant receives them only as the representative of the institution but the general rule is otherwise. As section 55 1 does number say that this rule will apply only when there is a custom of that nature in a particular institution, we must say that the provision in this unrestricted form is an unreasonable encroachment upon the, fundamental right of the Mahant. The same objection can be raised against clause 2 of the section for if the Pathakanikas companystitute the property of a Mahant, there is numberjustification for companypelling him to keep accounts of the receipts and expenditure of such personal gifts. As said already, if the Mahant dies without disposing of these personal gifts, they may form part of the assets of the Math, but that is numberreason for -restricting the powers of the Mahant over these gifts so long as he is alive. Section 56 has been rightly invalidated by the High Court., It makes provision of an extremely drastic ,character. Power has been given to the Commissioner to require the trustee to appoint a manager for administration of the secular affairs of the institution and in case of default, the Commissioner can make the appointment. himself. The manager thus appointed -though numberinally a servant of the trustee, has practically to do everything according to the directions of .the Commissioner and his subordinates. It is to be numbered that this power can be exercised at the mere option of the Commissioner without, any justifying necessity whatsoever and numberpre-requisites like mis- management of property or maladministration of trust funds are necessary to enable the trustee to exercise such drastic power. It is true that the section companytemplates the appointment of a manager for administration of the secular affairs of this institution. But numberrigid demarcation companyld be made as we have already said between the spiritual duties of the Mahant 1036 and his personal interest in the trust property. The effect of the section really is that the Commissioner is at liberty at any moment he chooses to deprive the Mahant of his right to administer the trust property even if there is numbernegligence or maladministration on his part. Such restriction would be opposed to the provision of article 26 d of the Constitution. It would cripple his authority as Mahant altogether and reduce his position to that of an ordinary priest or paid servant. We find numberhing wrong in section 58 of the Act which relates to the framing of the scheme by the Deputy Commissioner. It is true that it is a Government officer and number the companyrt who is given the power to settle the scheme, but we think that sample safeguards have been provided in the Act to rectify any error or unjust decision made by the Deputy Commissioner. Section 61 provides for an appeal to the Commissioner, against the order of the Deputy Commissioner and -there is a right of suit given to a party who is aggrieved by the order of the Commissioner ,with a further right of appeal to the High Court. The objection urged against the provision of clause 3 b of section 58 does number appear to us to be of The executive officer mentioned in much substance that clause companyld be numberhing else but a manager of the properties of the Math, ad the cannot possibly be empowered to exercise the functions of the Mathadhipati himself. In any event, the trustee would have his remedy against such order of the Deputy Commissioner by way of appeal to the Commissioner and also by way of suit as laid down in sections 61 and 62. Section 59 simply provides a scheme for the application of the cy pres doctrine in case the object of the trust fails either from the inception or by reason of subsequent eve. Here again the only companyplaint that is raised is, that such order companyld be made by the Deputy Commissioner. -We think that this objection has number much substance. In the first place, the various objects on, which the trust funds companyld be spent are laid down in the section itself and the jurisdiction of the Deputy Commissioner is only to make a choice out of the several heads-. 1037 Further an appeal has been provided from an order of the Deputy Commissioner under this section to the Commissioner. We, therefore, cannot agree with the High Court that sections 58 and 59 of the Act are invalid. Chapter VI of the Act, which companytains sections 63 to 69, relates to numberification of religious institutions The provisions are extremely drastic in, their character and the worst feature of it is that numberaccess is allowed to the companyrt to set aside an order of numberification. The Advocate- General for Madras frankly stated that he companyld number support the legality of these provisions. We hold therefore, in agreement with High Court that these sections should. be hold to be void. Section 70 relates to the, budget of religious institu- tions. Objection has been taken- only to clause 3. which empowers the Commissioner and the Area Committee to make any additions to or alterations in the budget as they deem fit. A budget is indispensable in all public institutions and we do number think that it is per be unreasonable to provide for the budget of a religious institution being prepared under the supervision of the Commissioner or the Area Committee. It is to be numbered that if the order is made by an Area Committee under clause 3 , clause 4 provides an appeal against it to the Deputy Commissioner. Section 89 provides for penalties for refusal by the trustee to companyply with the provisions of the Act. If the objectionable portions of the Act are eliminated, the portion that remains will be perfectly valid and for violation of these valid provisions, penalties can legiti- mately be -provided. Section 99 vests an overall revisional power in the Government. This, in our opinion, is beneficial to the trustee, for he will have an opportunity to approach, the Government in case of an irregularity, error or omission made by the Commissioner or any other subordinate officer. The only other point that requires companysideration is the companystitutional validity of section 76 of the Act which runs as follows 76. 1 In respect of the services rendered by the Government and their officers, every religious institution shall, from the income derived by it, pay to the 1038 Government annually such companytribution number exceeding five per centum of its income as may be prescribed. Every religious institution, the annual income of which for the fasli year immediately preceding as calculated for the purposes of the levy of companytribution under sub- section 1 , is hot less than one thousand rupees, shall pay to the Government annually, for meeting the companyt of auditing its accounts, such further sum number exceeding one and a half per centum of its income as the Commissioner may determine. The annual payments referred to in sub-sections 1 and 2 shall be made, numberwithstanding anything to the companytrary companytained in any scheme settled or deemed to be settled under this Act for the religious institution companycerned. The Government shall pay the salaries, allowances, pensions and other beneficial remuneration of the Commissioner, Deputy Commissioners, Assistant Commissioners and other officers and servants other than executive officers of religious institutions employed for the purposes of this Act and the other expenses incurred for such purposes, including the expenses of Area Committees and the companyt of auditing the accounts of religious institutions. Thus the section authorises the levy of an annual companytribution on all religious institutions, the maximum of which is fixed at 5 per cent. of the income derived by them. The -Government is to frame rules for the purposes of fixing rates within the permissible maximums and the section expressly states that the levy is in respect of the I services rendered by the Government and its officers. The validity of the provision has been attacked on a two-fold ground the first is, that the companytribution is really a tax and as such it was beyond the legislative companypetence of the State Legislature to enact such provision. The other is, that the companytribution being a tax or imposition, the proceeds of which are specifically appropriated for the maintenance of a particular religion or religious denomination, it companyes within the mischief of article 27 of the Constitution and is hence void. 1039 So far as the first ground is companycerned, it is number disputed that the legislation in the present case is companyered by -entries 10 and 28 of List III in Schedule VII of the Constitution. If the companytribution payable under section 76 of the Act is a fee, it may companye under entry 47 of the Concurrent List which deals with fees in respect of any of the matters included in that list. On the other hand, if it is a tax, as this particular tax has number been provided for in any specific entry in any of the three lists, it companyld companye only under entry 97 of List I or article 248 1 of the Constitution and in either view the Union Legislature alone would be companypetent to legislate upon it. On behalf of the appellant, the companytention raised is that the companytribution levied is a fee and number a tax and the learned Attorney General, who appeared for the Union of India as intervener in this as well as in the other companynected appeals made a strenuous attempt to support this, position. The point is certainly number free from doubt and requires careful companysideration. The learned Attorney-General has argued in the first place that our Constitution makes a clear distinction ,between taxes and fees. It is true, as be t has pointed out, that there are a number of entries in List I of the Seventh Schedule which relate to taxes and duties of various sorts whereas the last entry, namely entry 96, speaks of fees in respect of any of the matters dealt with in the list. Extractly the same is with regard to entries 46 to 62 in List II all of which relate to taxes and here again the last entry deals only with fees leviable in respect of the different matters specified in the list. It appears that articles II 0 and 1 19 of the Constitution which deal with Money Bills lay down expressly that a bill will number be deemed to be a Money Bill by reason only that it provides for the imposition of fines or for the demand or payment of fees for licences or fees for services rendered, whereas a bill dealing with imposition or regulation. of a tax will always be a Money Bill. Article 277 also mentions taxes, cesses and fees separately. It is number clear, how- ever, whether the word tax as used in article 265 has number been used in the wider sense as including all other 1040 impositions like ceases and fees and that at least seems to be the implication of clause 28 of article 366 which defines taxation as including the imposition of any tax or impost, whether general, local or special. It seems to us that though levying of fees is only a particular form of the exercise of the taxing power of the State, our Constitution has placed fees uder a separate category for purposes of legislation and at the end of each one of the three legislative lists, it has given a power to the particular legislature to legislate on the imposition of fees in respect to every one of the items dealt with in the list itself. Some idea as to what fees are may be gathered from clause 2 of articles 110 and 119 referred to above which speak of fees for licences and for services rendered. The question for our companysideration really is, what are the indicia or special characteristics that distinguish a fee from a tax proper ? On this point we have been referred to several authorities by the learned companynsel appearing for the different parties including opinions expressed by writers of recognised treatises on public finance. A neat definition of what tax means has been given by Latham C. J. of the High Court of Australia,in Matthews v. Chicory Marketing Board 1 . A tax, according to the learned Chief Justice, is a companypulsory exaction of money by public authority for public purposes enforceable by law and is number payment for services rendered. This definition brings out, in our opinion, the esential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is companypulsion, that is to say, it is imposed under statutory power without the taxpayers companysent and the payment is enforced by law 2 . The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be companyferred on the payer of the tax.This is expressed by saying that the levy of tax is for the purposes of general revenue, which when companylected revenues of the State. As the 1 60 C.L.R. 263, 276. Vide Lower Mainland Dairy v. Crystal Dairy Ltd. 1933 C. 168. 1041 object of a tax is number to companyfer any special benefit upon any particular individual, there is, as it is said, numberelement of quid pro quo between the taxpayer and the public authority 1 . Another feature of taxation it that as it is a part of the companymon burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. Coming number to fees, a fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the companyts are arbitrarily assessed. Ordinarily, the fees are uniform and numberaccount is taken of the vary abilities of different recipients to pay 2 . These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is number possible to formulate a definition that would be applicable to all cases. As regards the distinction between a tax and a fee, it, is argued in the first place on behalf of the respondent that a fee is something voluntary which a person has got to pay if he -wants certain services from the Government but there is numberobligation on his part to seek such services and if he does number want the services, I he can avoid the obligation. The example given is of a licence fee. If a man wants a licence that is entirely his own choice and then only he has to pay the fees, but number otherwise. We think that a careful examination will reveal that the element of companypulsion or companyrciveness is present in all kinds of imposition. though in different degrees and that it is number totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. It is difficult, we think, to companyceive of a tax except it be something like a poll tax, the incidence of which falls on all persons within a State. The house tax has to be paid only by those who own houses, the land tax by those who possess lands, municipal taxes or rates will fall on those who have properties within a 1 see Findlay Shirras on Science of Public Finance, Vol. 1, P. 203. Vide Lutz on Public Finance p. 215. 1042 municipality. Persons who do number have houses,land or Properties within municipalities, would number have to pay these taxes, but nevertheless these impositions companye within the category of taxes and numberody can say that it is a choice of these people to own lands or houses or specified kinds of properties so that there is numbercompulsion on them to pay taxes at all. Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of companysent and this element is present in taxes as well as in fees. Of companyrse, in some cases whether a man would companye. within the category Of a service receiver may- be a matter of his choice, but that by itself would number companystitute a major test which can be taken as the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied he a part of a companymon burden, while a fee is a payment for a special benefit or privilege. Fees companyfer a special capacity, although the special advan- tage, as for example in the case of registration fees for documents or marriage licences, is secondary to the primary motive of regulation in the public interest 1 . Public interest seems to be at the basis of all impositions but in a fee it is some special benefit which the individual receives. As seligman says it is the, special benefit accruing to the indivitual which is the reason for payment in the case of fees in the case of a tax, the particular advantage if it exists at all is an incidental result of State action 2 . If, as we hold, a fee is regarded as a sort of return or companysideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be companyrelated to the expenses incurred by Government in rendering the services. As indicated in article 1 10 of the Constitution ordinarily there are two classes of cases where Government imposes fees upon persons. In the first class of cases, Government simply grants a permission or privilege to a person to do something, which otherwise that person would number be companypetent to do and extracts fees either Vide Findlay Shirras on Science of Public Finance Vol. 1, P. 202 Vide Seligmans Essays on Taxation, P. 408. 1043 heavy or moderate from that person in return for the privilege that is companyferred. A most companymon illustration of this type of cases is furnished. by the licence fees for motor vehicles. Here the companyts incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really number upon the companyts incur. red by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant 1 , and if the money paid by licence holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regarded as a tax. In the other class of cases,- the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is number merged in the public revenues for the benefit of the general public,, it companyld be companynted as fees and number a tax. There is really numbergeneric difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments,fees and taxes 2 . . Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes there is an entry at the end of each one of the three lists as regards fees which companyld be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters. Section 76 of the Madras Act speaks definitely of the companytribution being levied in respect rendered by the Government so far it has the appearance of fees. It is true that religious institutions do number want these services to be rendered to them and it Vide Spligmans Essays on Taxation, p. 409 2 lbid, P. 406, 1044 may be that they do number companysider the State interference to be a benefit at all. We agree, however, with the learned Attorney-General that, in the present day companycept of a State, it cannot be said that services companyld be rendered by the State only at the request of those who require these -services. lf in the larger,interest of the public, a State companysiders it desirable that some special service should be done for certain people, the people must accept these services, whether willing or number 1 It may be numbericed, however, that the companytribution that has been levied under section 76 of the Act has been made to depend upon the capacity of the payer and number upon the quantum of benefit that is supposed to be companyferred on any particular religious institution. Further the institutions,, which companye under the lower income group and have income less than Rs. 1,000 annually, are excluded from the liability to pay the additional charges under clause 2 of the section. These are undoubtedly some of the characteristics of a tax and the imposition bears a close analogy to income-tax. But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the companytribution is number ear-marked or specified for defraying the expenses that the Government has to incur in performing the services. -All the companylections go to the companysolidated fund of the State and all the expenses have to be met number out of these companylections but out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might number be companyclusive, but in this case there is total absences of any companyrelation between the expenses incurred by the Government and the amount raised by companytribution under the provision of section 76 and in these circumstances the theory of a return or companynter-payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the companytribution levied under section 76 is a tax and number a fee and companysequently it was beyond the power of the State Legislature to enact this provision. Vide Findlay Shirras on Science of Public Finance Vol. 1, P. 202. 1045 In view of our decision on this point, the other ground hardly requires companysideration. We will indicate, however, very briefly our opinion on the second point raised. The first companytention, which has been raised by Mr. Nambiar in reference to article 27 of the Constitution is that the word taxes, as used therein, is number companyfined to taxes proper but is inclusive of all other impositions like cesses, fees, etc. We do number think it necessary to decide this point in the present case, for in our opinion on the facts of the present case, the imposition, although it is a tax, does number companye within the purview of the latter part of the article at all. What is forbidden by the article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the ,Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the companytribution under section 76 of the Madras Act is number the fostering or preservation of the Hindu religion or any denomination within it. The purpose is to see that religious trusts and institutions,, wherever they exist, are properly administered. It is a secular administration of the religious legislature seeks to companytrol and the in the Act, is to ensure that the institutions that the object, as enunciated endowments attached to the religious institutions are properly administered and their income is duly appropriated for the purposes for which they were founded or exist. There is numberqustion of favouring any particular religion or religious denomination in such cases . In our opinion, article 27 of the Constitution is number attracted to the facts of the present case.The result, therefore, is that in our opinion sections 21, 30 2 , 31,55,56 and 63 to 69 are the only sections which should be declared invalid as companyflicting with the fundamental rights of the respondent as Mathadhipati of the Math in question and 1046 section 76 1 is void as beyond the legislative companypetence of the Madras State Legislature. The rest of the Act is to be regarded as valid.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 113 of 1953. Appeal from the Judgment and Decree, dated the 25th day of March, 1952, of the High Court of Judicature at Bombay Bavdekar and Dixit JJ. in Appeal No. 554 of 1951, from Original Decree arising out of the Judgment and Decree, dated the 30th day of June, 1951, of the Court of the Joint Civil Judge, Senior Division of Thana, in Special Suit No. 12 of 1949. S. Krishnaswamy lyengar, J. B. Dadachanji, V.B. Rege and Ganpat Rai, with him for the appellants. B. Jathar, R. B. Kotwal and Naunit Lal for respondent No. 1. 1954. April 12. The Judgment of the Court was delivered by GHULAM HASAN J.-This appeal is brought by leave of the High Court of Bombay against the judgment and decree of a Division Bench of that Court Bavdekar and Dixit JJ. dated March 25, 1952, modifying the judgment and decree of the Civil Judge, Senior Division of Thana, dated June 30, 1951. The appeal arises out of a partition between 6 brothers of a joint Hindu family. The joint family carried on joint family business of a grocery shop, liquor shops, a ration shop, a motor-bus service and also moneylending under the name of Sontakke Brothers. The family also Possessed immovable and movable property. Balkrishna Sitaram Sontakke is the eldest of the brothers and is the plaintiff respondent in the present appeal. He will be referred to hereafter as the plain-tiff. It is companymon ground that up to 1944 the brothers were living and messing together and the income from the family business used to be kept with the plaintiff. From April 14, 1945, the situation changed and the parties began to appropriate the proceeds of the various businesses carried on by them separately to themselves. The plaintiff was running the liquor shops, defendants Nos. I and 2 who are the appellants, were carrying on the motor-bus service business while defendant No. 4 was running the grocery shop. The parties tried to have partition effected between them through arbitrators but the attempt failed. On June 29, 1945, all the five brothers filed a suit for partition against the plaintiff of all joint family properties including the accounts of all the businesses. The suit was numbered 39 of 1945. It was companypromised on March 7, 1946. By this companypromise it was declared that prior to 1942 all the accounts of the various businesses had been companyrectly maintained and shown, that the parties had agreed to have arbitrators appointed through Court for examining the accounts from 1942 up to March 31, 1946, and for determining the amount due up to that date. Each of the brothers was to get one -sixth share in the cash balance as found on March 31, 1946, upon examination of accounts by the arbitrators. All the movable property of the joint family including the stock-in-trade of all the family businesses was to be divided equally among all the brothers. The companypromise further declared that the plaintiff was to have one-sixth share in the motor garage and that defendants 1 and 2 were to pay the price of one-sixth share to him. These are the material provisions of the companypromise. One of the brothers was a minor and the Court finding the companypromise to be for the benefit of the minor accepted it and passed a pre- liminary decree in terms of the companypromise on July 25, 1947. If numberhing else had happened to disturb the natural companyrse of events, the proceedings would have ended in a final decree for partition. The plaintiff, however, companymenced a fresh suit on February 23, 1949, companyfining his relief to his share of the profits and assets Of the motor business carried on by defendants Nos. 1 and 2 after March 31,1946. His case was that the companypromise was made in a hurry, that the parties omitted to provide in the companypromise about the future companyduct of the motor business from April 1, 1946, that the motor business was still a joint family business and that he had a right to ask for accounts of that business subsequent to March 31, 1946. In defence it was pleaded that the companypromise was made after due deliberation, that accounts of the motor business and grocery shop should actually have been taken up to April 14, 1945, the date of disruption of the joint family status, but the parties agreed by way of companypromise that account of all family businesses should be taken up to March 31, 1946. It was also pleaded that the claim was barred by res judicata. Upon the issues framed in the case the Civil Judge found that the suit was number. barred by reason of the decision in the previous suit No. 39 of 1945, that the decision in that suit was number obtained by fraud and misrepresentation and that the companypromise in the previous suit was number due to a mistake or misunderstanding. Despite these findings the Civil Judge held that although the motor business carried on after the partition had ceased to be a joint family business yet as it was carried on by some members of a family their position was analogous to that of a partner carrying on partnership after dissolution and applying the principle underlying section 37 of the Partnership Act he held that the two brothers carrying on the motor business were liable to account. Accordingly he passed a preliminary decree directing the accounts of the motor business to be taken from March 31, 1946, up to the date on which a final decree for payment of the amount found to be due would be made. A Commissioner was appointed to take the accounts to ascertain the profits earned by the use of the capital belonging to the shares of brothers other than those who carried on the motor business. In appeal Bavdekar J. with whom Dixit J. agreed modified the decree of the trial Court by directing that the accounts were to be taken up to the date when the businesses discontinued and number up to the date of the final decree. The learned Judges held that the cause of action for the present suit was different from the cause. of action in the previous suit and that the suit was number barred by res judicata or by Order II, rule 2, of the Code of Civil Procedure. After delivering themselves of some companyflicting observations to which reference will in detail be made hereafter they held that the companysent decree did number expressly negative the right for accounts of the motor transport business. Finally the learned Judges recorded the companyclusion that regardless of the pleadings in the case the defendants Nos. I and 2 had made use of the joint family property and that they stood in, the position of companyowners and as companytemplated in section 90 of the Indian Trusts Act were liable to render accounts for the-profits which were attributable to the employment of the assets owned by the parties jointly. Learned companynsel for the appellants has companytested the view of the High Court upon all the points decided, ,against them. He has companytended that the cause of action in a suit for partition is the desire and intention of the family to separate, that the cause of action in the two suits is identically the same and number separate and distinct and. that the suit was, therefore, barred both by the principle of res judicata and by Order II, rule 2, of the Civil Procedure Code. Learned companynsel also challenged the view of the High Court about the applicability of section 90 of the Indian Trusts Act It seems to us that upon a fair reading of the companypromise arrived at between the parties in the circumstances then existing, the only legitimate companyclusion possible is that the parties had agreed to companyfine the taking of all accounts upto March 31,1946, and had closed the door to reopening them beyond that date. If the companypromise was arrived at after full companysideration by the parties and was number vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the trial Court-a finding which was number interfered with by the High Court-it follows that a matter once companycluded between the parties who were dealing with each other at arms length cannot number be reopened. What led the parties to companyfine the period of account to March 31, 1946, and stop further accounting which would have numbermally extended to the passing of the final decree will appear from the following circumstances. The plaintiff knew that the licence for the liquor shops carried on by him was expiring on the 1st April, 1946, and he was anxious to run the liquor business exclusively and number jointly or in partnership with his brothers after the expiry of the licence. He gave a numberice to his brothers through pleader on December 12, 1945, stating inter alia the following - The period of licence for the liquor shops at the said places expires by end of March, 1946. Hence after the expiry of the said period, my client having numberdesire to companyduct liquor shop business jointly or in partnership with any of you again, he intends to run and will run as from the date 1st April, 1946, one or more liquor shops as he pleases belonging to him alone independently. The moneys that will be required for purchase in auction of the shops will be paid by my client by borrowing the same from third parties on his own responsibility and my client will number allow the said moneys to have the least companynection with the businesses, properties and cash which are at present in dispute in Court and with the profits and income from the said businesses or properties. My client expressly informs -you by this numberice of the fact, viz., that the liquor shops thus purchased by him will solely belong to him and will be run by him independently of any of you. None of you will have any legal right to meddle with or interfere in the liquor shops which will be thus purchased by my client in the Government auction for the new year beginning from 1st April, 1946, and if any of you make an attempt with malicious intention to cause even the slightest interference in the said business of my client, then my client will hold you fully responsible for any harm suffered by him and for other damages and expenses incurred by him and will take a severe legal action against you therefor. This numberice furnishes a true guide as to the intention of the plaintiff which was numbere other than that he should run the liquor shops exclusively for himself and appropriate the profits thereof without making himself accountable to his brothers. Although the plaintiff says that he intended to pay for the auction of liquor shops by borrowing he was really in a position of vantage for he admittedly had Rs. 13,000 cash in hand as against the Rs. 3,000 his brothers had. The numberice explains the significance of the provision in the companypromise that accounts are to be taken only up to March 31, 1946. Since the plaintiff did number want his brothers to interfere with his exclusive running of the liquor business after March 31, 1946, he perforce had to agree that he should sever his companynection with other businesses run by his brothers. This arrangement was apparently acceptable to all the brothers as being fair and reasonable and as number giving undue advantage to any party over the other. This being our companystruction of the companypromise, it follows that the plaintiffs companyduct in going back upon that arrangement by filing a fresh suit in regard to the motor business only is anything but honest. The plaint filed in the previous suit leaves numbermanner of doubt that the plaintiffs in that suit ,sought a companyplete division of all the family property both movable and immovable and a final determination of all the accounts in respect of the family businesses. It is also significant that after the companypromise the plaintiff Balkrishna filed an application before the Civil Judge in which he alleged that when he agreed in the companypromise that the accounts of the various businesses should be up to the 31st March, 1946, he was under a misapprehension regarding his legal right inasmuch as he thought that when the accounts were to be taken up to a certain date, the joint family property after that date would number be allowed to be utilized by some members only of the family for making profits for themselves to the exclusion of the plaintiff. He goes on to say that he laboured under the impression that the joint family business would be either altogether stopped after the 31st March, 1946, or would be run either by the arbitrators or the Commissioners and the profits accruing therefrom would be deposited in Court for distribution among the parties according to their shares. The application was made on November 22, 1947. His pleader, however, stated on April 6, 1948 The application is abandoned by the applicant as he wishes to pursue his remedy by way of an independent suit for the grievance in the application, and the Court passed the order, The application is disposed of as it is number pressed. The learned Judges of the High Court in referring to this application observe thus It is obvious therefrom that really speaking the idea of the profits of several businesses after the 1st of April, 1946, was present to the minds of the parties but the parties did number care to ask that accounts of the other businesses will be taken up after the 1st of April, 1946. One of the businesses was a liquor business, which admittedly was to companye to an end on the 31st of March, 1946 but there was also another business that Was a kirana shop, which was number a very big business. But all the same it was there, and there is force, therefore, in the companytention which has been advanced on behalf of the appellants that it was number as if there has been an oversight on the part of the parties, but the parties knew that the businesses might go on afterwards but if they were carried on, they did number particularly care for providing by the companypromise decree for accounts of those businesses being taken after the 1st of April, 1946. Having said all this they record the companyclusion that the companypromise did number expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this companyclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the companypromise and show that the plaintiff abandoned the right to Account after the crucial date and the status of the parties thereafter changed into one of tenants in companymon. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was numberpoint in mentioning the 31st March, 1946. The numbermal companyrse, after the preliminary decree was passed by the Court, was to divide all the property by metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the companypromise which limited the period of the account the plaintiff would have obtained the relief he is number seeking, in the partition suit as accounts would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural companyrse of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has numberreal grievance in the matter, for although the defendants Nos. 1 and 2, who companytinued to run the motor business, may have made some money with the- help of the two old motor buses, the plaintiff whose keenness to run the liquor business is apparent from the numberice referred to above was number precluded from reaping the fruits of that business. It is hard to companyceive that the plaintiff would have agreed to share his burden of the loss if the motor business had sustained any. We hold, therefore, that the companypromise closed once for all the companytroversy about taking any account of the joint family businesses including the motor business after the 31st March, 1946, and the plaintiff is bound by the terms of the companypromise and the companysent decree following upon it. The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reaitating the question in the present suit. It is well settled that a companysent decree is as binding upon the parties thereto as a decree passed by invitum. The companypromise having been found number to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, rule 2 3 , of the Code of Civil Procedure. The plaintiff by companyfining his claim to account up to March 3, 1946, only, implicitly of number explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person Omits, except with the leave of the Court, to sue for all reliefs to which he is entitled, he shall number afterwards sue for any relief so omitted. We do number agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was companypromised, the plaintiff having abandoned his claim to account in respect of the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, rule 2 3 , of the Civil Procedure Code. As the. suit is barred both by res judicata and Order II, rule 2 3 , of the Civil Procedure Code, numberfurther question as to the applicability of section 90 of the Indian Trusts Act can possibly arise under the circumstances.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 89 of 1953. Appeal from the Judgment and Decree dated the 28th day of March, 1949, of the High Court of Judicature at Madras in Appeal No. 654 of 1945, arising out of the Judgment and Decree dated the 23rd day of July, 1945, of the Court of the District Judge, Bellary, in Original Suit No. 17 of 1944. S. Krishnaswami Iyengar K. R. Chowdhury, D. Gundu Rao, Rama Rao and Rajinder Narain, with him for the appellant. Somayya M. V. Ganapathi and Ganpat Rai, with him for respondent No. 1. 1954. April 15. The Judgment of the Court was delivered by MUKHERJEA J.-This appeal arises out of a suit, companymenced by the plaintiff respondent, in the Court of the District Judge of Bellary, being Original Suit No. 17 of 1944, for establishment of his title to one-half share of the land described in the schedule to the plaint and for recovery of possession of the same after partition with defendant No. 1, who is the appellant before us. The suit was dismissed by the trial Judge by his judgment dated the 23rd of July, 1945. On an appeal being taken against that decision by the plaintiff to the High Court of Madras, a Division Bench of the High -Court by its judgment dated the 28th of March, 1949, allowed the appeal and reversed the judgment of the trial Court., The defendant No. 1 has number companye up on appeal to this Court on the strength of a certificate granted by the High Court under article 133 of the Constitution read with sections 109 and 1 10 of the Civil Procedure Code. To appreciate the companytentions that have been raised before us it may be necessary to give a short resume of the material facts. The land in suit, which has an area of a little over 9 acres, was admittedly the property of one Basappa who died some time before 1918, leaving three daughters, to wit Paramma, Pompamma and Hampamma. Under a settlement entered into with the immediate reversioner of Basappa which is evidenced by two registered deeds-Exhibits P-2 and P-3-executed respectively in the years 1918 and 1919, the three sisters got about 15 to 16 acres of wet land in absolute right. Hampamma subsequently took away her one- third share in these lands and we are number companycerned with her any further in this litigation. Paramma and Pompamma companytinued to enjoy the remaining two-thirds share of the property and it is this two-thirds ,share companyprising 9 acres 49 cents of wet land which forms the subject-matter of the present suit. Pompamma married one Nagana Gowd and after giving birth to two sons to wit Siddalingana and Chenabasa- vana, she died in the year 1923. It is number disputed that her share in the lands mentioned above devolved upon these two sons. After Pompammas death, Nagana married again and stayed with his second wife in his ancestral village, while these two infant sons of Pompamma remained at village Kampli with Paramma, their mothers sister, who reared them up as her own sons. On the 22nd June, 1923, Paramma executed a deed of gift in favour of the two sons of her sister by which she companyveyed to the latter her own share in the. suit property. The result was that the two sons of Pompamma got the entirety of the 9 acres 49 cents of land which as owned jointly by their mother and their mothers sister Paramma. Shortly after this gift was made, Siddalingana, the elder son of Pompamma, died in the year 1924 and the plaintiffs case is that his half-share in the disputed property devolved upon his father Nagkna under the Hindu law of inheritance. It is admitted however that Paramma companytinued to possess the entirety of the land on behalf of the younger son Chenabasavana who is defendant No. 1 in the suit On the 25th August, 1946, there was a lease deed Exhibit D-1, and its companynter part Exhibit D-2, executed by and between Paramma on the one hand and Nagana as the father and guardian of the infant Chenabasavana on the other by which the infant represented by his father purported to grant a lease of the entire property to Paramma for a period of 12 years at a rental of Rs. 500 a year. Two rent receipts passed by Nagana to Paramma in token of the receipt of rents, reserved by this lease, on behalf of Chenabasavana have been proved in this case, Exhibits D-4 and D4-1, and they are of the years 1927 and 1932 respectively. It appears that in 1934 Nagana instituted a suit as guardian of his infant son Chenabasavana in the Munsifs Court at Hospet to recover a -sum of Rs. 500 as rent from Paramma on the basis of the lease mentioned above. The suit was decreed ex parte and the decree was discharged later on by a document Exhibit D-3, dated the 14th of November, 1934, executed by Nagana, which companytains a recital that as Paramma had borrowed much money to purchase lands for the minor, all future rents payable under the lease were also to be companysidered as fully paid. It is in evidence and number disputed, that near about this time Nagana became financially involved and on the 27th of August, 1935, he executed a deed of mortgage by companyditional sale in respect of half-share of the disputed land in favour of defendant No. 2 to secure an advance of Rs. 3,000. The document recites that the half-share of the land which was kept as. security devolved upon the mortgagor on the death of his son Siddalingana and that he was in possession of the same. On the 16th July, 1936, Nagana sold the mortgaged property by,a deed of sale Exhibit P-6 to the mortgagee himself or a companysideration of Rs. 3,000 which was the principal sum due under the mortgage. It is admitted that the purchaser did number and companyld number obtain possession -of the property at any time since then and on the 2nd May, 1944, he sold the property to the plaintiff by a companyveyance which is Exhibit P-1. On the 18th July, 1944, the plaintiff brought the present suit against Chenabasavana as defendant No. I for recovery of a demarcated half-share of the disputed property after partition with the latter on the strength of the purchase mentioned above and his own vendor was impleaded as defendant No. 2 in the suit. The suit was companytested by defendant No. 1 and a number of pleas were taken by him in his written statement. The substantial defence put forward was of a two-fold character. It was companytended in the first place that under the deed of gift executed by Paramma in favour of defendant No. I and his deceased brother Siddalingana, the donees became joint tenants with rights of survivorship Consequently on the death of Siddalingana his interest devolved upon defendant No. 1 and number on his father. The other and the more material defence raised was that the plaintiffs suit was barred, as he was never in possession of the property and the defendant No. 1 acquired a good title by adverse possession. Both these points were decided against the plaintiff by the learned District Judge who tried the suit. It was held that the deed of gift executed by Paramma companyferred numberright on Nagana as the heir of his son and such rights if any were specifically disclaimed by Nagana by the lease deed and also by the receipts which he granted to Paramma as the guardian of his minor son. It was held further that the plaintiffs suit was bound to fail as he or his predecessors were never in possession of the property within 12 years from the date of the suit. The plaintiff indeed was an alienee of a company tenant but it was held that the ordinary rule of one company owner being presumed to hold on behalf of the others companyld number apply to the present case., as Nagana disclaimed his rights as a companyowner and purported to act only on behalf of his infant son Chenabasavana whose exclusive title to the lands he definitely acknowledged. In view of these findings the trial Judge dismissed the plaintiffs suit. Thereupon the plaintiff took an appeal against this -decision to the High Court of Madras and the appeal was heard by a Division Bench companysisting of Rajamannar C.J. and Balakrishna Ayyar J. The learned Judges held, differing from the trial Court, that the two sons of Pompamma took their shares in their mothers property which devolved upon them by inheritance, its well as in the property which they obtained under the deed of gift executed in their favour by Paramma, as tenants in companymon and number as joint tenants and companysequently on the death of Siddalingana his interest vested in his father Nagana and number in his brother, the defendant No. I. On the other question the High Court held that though.Nagana by his acts and companyduct in companynection with the execution of the lease deed did exhibit an animus to hold the property solely on behalf of Chenabasavana to the exclusion of himself, yet this animus did number last beyond 1935 when he asserted his own right as a companysharer to half-shire of the- plaint property by executing the mortgage deed in favour of defendant No. 2. In these circumstances it was held that the defendant No. 1 did number acquire title by adverse possession and the plaintiff was entitled to succeed. The defendant No. 1 has number companye up on appeal to this Court. Mr. Ayyangar appearing in support of the appeal has number pressed before us the companytention that was raised on behalf of his client in the Courts below, that as the two brothers took the property as joint tenants and number as tenants in companymon, the interest of Siddalingana passed on his death to his brother, the defendant No. 1, and number to Nagana. We must take it therefore that after the death of Siddalingana, Nagana became a companyowner of the disputed property with his minor son Chenabasavana. As the plaintiff purports to derive his title from Nagana, he can be said to have established his title as a companyowner with defendant No. I and this being the position, the presumption of law would be that the possession of one companyowner was on behalf of the other also unless actual ouster was proved. To defeat the claims of the plaintiff therefore it is incumbent upon defendant No. I to prove that he held the property adversely to his companyowner -for the statutory period. The peculiarity of the present cage is that here the joint owners of the property were the father and his infant son, of whom the father himself was the guardian and th e infant companyld number act in law except through the guardian. It is companyceded on behalf of the appellant that the mere fact that the father did number participate in the profits of the property which was left to the management of Paramrna on behalf of the infant companyld number by itself make the possession of the son adverse to his father. But the acts and companyduct of the father in companynection with the lease deed of 1926 and the subsequent granting of receipts in terms thereof undoubtedly point to something more than mere number- participation in the enjoyment of profits of the property on absence of objection to the exclusive enjoyment there of by Paramma on behalf of the infant, In granting the lease on behalf of the infant the father definitely asserted the exclusive title of his son to the property and by implication denied his own rights as a companyowner thereto. In law the possession of the lessee is the possession of the lessor and companysequently ever since 1926 when Paramma began to possess the property as a lessee in terms of the ease deed, her possession in law was the possession of the infant alone to the exclusion of Nagana, the father. The fact that Nagana companysented to such exclusion is immaterial. There can be in law, under certain circumstances, adverse possession with the companysent of the true owner. A companymon illustration of this rule is furnished by the class of cases where the legal owner of a property transfers the same to another without the requisite legal formalities and though the transferee does number acquire a legal title to it by the transfer, yet if he gets possession of the property though with the companysent of the transferor that possession becomes adverse to the owner and if companytinued for the statutory period creates a title in him. We are number satisfied from the materials in this case that Nagana was ignorant of his rights as heir of his deceased son when he executed the lease in the year 1926., But even if he was, as the exclusive possession of the infant was exercised with the full knowledge and companysent of the father who openly acknowledged the title of his son, such possession companyld number but be adverse to the father. The learned Judges of the High Court seem to be of the opinion that the possession of the minor companyld be regarded as adverse from the date of the execution of the lease, as the father by being a party to the said document, did exhibit an animus to possess the companymon property on behalf of the minor alone to the exclusion of himself. But according to the learned Judges this animus ceased as soon as Nagana executed the mortgage deed in 1935, asserting his right as, joint owner of the property in dispute and the adverse possession of the son forthwith came to an end. With this view we are unable to agree. Once it is held that the, possession of a companysharer has become adverse to the other companysharer as a result of ouster, the mere assertion of his joint title by the dispossessed companysharer would number interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his companysharer by re-entry upon the property or by resuming possession in such manner as it was possible to do. It may also check the running of time if the companysharer who is in exclusive possession acknowledges the title of his companywner or discontinues his exclusive possession of the property. On the materials on the record, numbere of these things seems to have been proved in the present case. Resumption of physical possession or re-entry upon the property was absolutely out of the question, as the property was in the possession of a lessee. The lease, it should be numbered, was executed in 1926 and we have two rent receipts of the years 1927 and 1932 respectively by v which Nagana acknowledged receipt of rents on behalf of his infant son in terms of the lease deed. The rent suit in 1934 was also brought by him in his capacity as guardian of defendant No. 1 and the document Exhibit D-3 by which the decree in that suit was discharged and a receipt was given in advance for all the subsequent rents point definitely to the companyclusion that the entire rent for the whole period of 12 years was paid to and was accepted on behalf of Chenabasavana and Nagana neither received any por- tion of it number laid any claim to the same. During the whole period of the lease and up to the present day the minor is admittedly in possession of the property and numberact or companyduct on his part has been proved either within the period of limitation or even after that which might be regarded as an acknowledgment of the title of his father as companyowner. In our opinion the fact that the father who had allowed himself to be dispossessed by his son exhibited later on his animus to treat the property as the joint property of himself and his son cannot arrest the running of adverse possession in favour of the son. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the companytinuity of adverse possession of the deseizor. The view taken by the High Court probably rests on the supposition that as, it was the father, who, acting on behalf of his son, asserted the exclusive title of the- son to the property in denial of his own rights, it was open to the father again if he so chose to resile from that position and make a fresh declaration that property was number the sole property of the son but belonged to him as well and this subsequent act would annul the companysequences of his previous act. This reasoning does number appear to us to be sound. The fathers acts in companynection with the lease were entirely in his capacity as guardian of his son. In the eye of the law they were the acts of the son, but the creation of the mortage in 1935 was number the act of the father on behalf of his son, it was the personal act of the father himself qua companyproprietor of the son and the interest of one being adverse to the other such acts companyld number be held to be acts of the son performed through the father. It is extremely doubtful whether qua guardian the father companyld make such declaration at all. Any change of intention on the part of the guardian can be brought home to the minor through the guardian alone and the minor can react to it again only through the guardian. It may be proper in such cases for the father to renounce his guardianship before he companyld assert any right of his own against his ward but it is number necessary for us to go into that question, as the mortgage in this case was made by the father numberI t as guardian of the minor at all. It was numbermore than a declaration, by a person who was dispossessed by his company sharer, of his joint title to the property and as has been already pointed out, as it did number involve any change of possession it did number affect the adverse possession of the deseizor. In our opinion therefore the view taken by the learned Judges of the High Court is number proper and cannot be sustained. The result is that the appeal is allowed the ,judgment and decree of the High Court are set aside and those of the District Judge restored.

Case appeal was accepted by the Supreme Court

Jagannadhadas, J. This is an appeal under Section 66A of the Indian Income-tax Act from the judgment of the High Court of Bombay given on a reference to it by the Income-tax Appellate Tribunal under Section 66 of the Act. The proceedings relate to the four assessment years, 1942-43, 1943-44, 1944-45, and 1945-46, and arise under the following circumstances There was a Hindu undivided family companysisting of one 1 Ramjibhai, 2 his son, Ratilal Nathalal - the respondent before us, 3 Ramjibhais wife, kamlawanti, 4 Ratilals wife, Kantabai, and 5 Ramjibhais unmarried daughter, Pushpa. On the July 27, 1933, Ramjibhai and Ratilal, who were the sole companyarceners, at the time, of the said Hindu undivided family, executed a trust deed in respect of four items of house property belonging to the joint family, which owned at the time and companytinued to own other properties also. The effect of the trust deed was that the income of the property settled on trust was to be enjoyed by Ramjibhai during his lifetime, and that after his death the said income was to be enjoyed by the respondent, Ratilal, alone, with a right of residence provided in favour of his mother, Kamlawanti, in a part of one of the houses companyprised in the trust deed. After the death of the respondent Ratilal, the income is to be enjoyed by his wife, Kantabai, and the natural born sons in existence at the time of the death of the survivor of Ramjibhai and Ratilal. There was an express power of revocation of the trust deed reserved to the said Ramjibhai by a specific clause therein. Ramjibhai enjoyed the income during his lifetime but the said income was being assessed as joint family income under Section 16 1 c of the Act and as an addition to the other admitted joint family income. Section 16 of the Indian Income-tax Act was modified in 1939 and clause c of sub-section 1 thereof as amended is as follows In companyputing the total income of an assessee - all income arising to any person by virtue of a settlement or disposition whether revocable or number, and whether effected before or after the companymencement of the Indian Income-tax Amendment Act, 1939 VII 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 that for the purposes of this clause a settlement, disposition or transfer shall be deemed to be revocable if it companytains any provision for the retransfer directly or indirectly of the income or assets to the settlor, disponer or transferor, or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over the income or assets Provided further that the expression settlement or disposition shall for the purposes of this clause include any disposition, trust, companyenant, agreement, or arrangement, and the expression settlor or disponer in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made It is by virtue of this clause and in view of the power of revocation of the trust having been expressly reserved in favour of Ramjibhai by the trust deed, that the income in his hands was being assessed without dispute on the footing that the settlor was the Hindu undivided family, and that the income of Ramjibhai is, therefore, to be treated as the income of the Hindu undivided family. Ramjibhai died on the July 23, 1940. The Income-tax authorities companytinued, after the death of Ramjibhai, to assess the income, in the hands of the respondent arising from the properties settled as the family income. The respondent objected on the ground that under the terms of the settlement it was only his individual income and that Section 16 1 c had numberapplication to him. The Income-tax authorities overruled this companytention. The assessee appealed to the Income-tax Appellate Tribunal but by order dated the March 16, 1950, it companyfirmed the view taken by the Income-tax authorities. Thereupon at the instance of the respondent, the Tribunal stated a case to the High Court of Bombay under Section 66 1 of the Act and referred the following question for its decision Whether in the circumstances of the case and on the true companystruction of the settlement deed, is the income from the trust property liable to be included in the income of the assessee Hindu undivided family ? The companytention of the assessee before the High Court was two-fold 1 that the settlor under the trust deed was number the Hindu undivided family as the Income-tax authorities were inclined to hold, but that the settlement was by two individual male members of the family, viz., Ramjibhai and Ratilal and 2 that, in any case, the income in the hands of Ratilal was his individual income and number the joint family income. On the first point, the learned Judges held against the assessees companytention. In their view the two individuals, Ramjibhai and Ratilal, executed the trust deed number in their individual capacity but as the sole companyarceners of the Hindu undivided family and as representing the said family. On the second point, however, they held in favour of the assessee and against the Commissioner. This appeal has accordingly been brought by the Commissioner of Income-tax against that decision. The view taken by the High Court that the settlement deed was executed by both Ramjibhai and Ratilal on behalf of the Hindu undivided family as the settlor has number been disputed before us on either side. The sole question for our companysideration is whether or number the view taken by the High Court on the second point is right. The view taken by the learned Judges of the High Court appears from the following passage in the judgment Now the settlement of this property was made by Ramjibhai and Ratilal number in their individual capacity but as members of the joint family and as representing that family. It is clear on this trust deed that the income which Ratilal receives after the death of Ramjibhai is received by him number on behalf of the joint family but in his own individual capacity. Ratilal alienated the property in one capacity and he receives the benefit under the trust deed in an altogether different capacity. Therefore it cannot be stated that this trust deed in any way benefits the joint family. The learned Attorney-General for the Income-tax Commissioner, while number seriously disputing that on a mere companystruction of the trust deed the income in the hands of Ratilal was intended to be his individual income, companytends that the learned Judges erred in importing any question of capacity in which the income is held by Ratilal, into the application of Section 16 1 c . He puts his argument in this way. The last portion of Section 16 1 c provides that all income arising to any reason by virtue of a revocable transfer of assets shall be deemed to be the income of the transferor. The first proviso to Section 16 1 c enacts that a settlement shall be deemed to be revocable if it companytains any provision for the retransfer directly or indirectly of the income or assets to the settlor. The second proviso enacts that the expression settlor in relation to a settlement shall include any person by whom the settlement or disposition was made. It is, therefore, urged that by virtue of the second proviso, Ratilal, though only one of the two persons who executed the settlement deed, is the settlor, and that the provision in the trust deed that the income was to be enjoyed by Ratilal after the death of Ramjibhai is, in substance,a provision companytained in the trust deed for a retransfer of the income to the settlor. In this view, the last portion of clause c of sub-section 1 of Section 16 if attracted, and the income arising to Ratilal must be deemed to be income of the transfer, i.e., of the Hindu undivided family, in view of the finding number disputed by either side that the settlor was the joint family. The fallacy of this argument companysists in treating the respondent Ratilal as one out of two settlors for the purpose of the second proviso while treating the family as the settlor for the purpose of the last portion of clause c of Section 16 1 . If, at the outset, the settlor was the Hindu undivided family and the trust deed was executed by both the persons as the sole surviving companyarceners representing the family, the second proviso which treats one out of a group of settlors as the settlor cannot companye into operation because the Hindu undivided family is a unit independent of and larger than the two companyarceners and is number merely a companylection of the individuals who acted on its behalf. Therefore, the provision in the settlement deed giving the income back to Ratilal, even if it be take as a retransfer of the income, cannot be treated as such retransfer to the original settlor, viz., the Hindu undivided family. Hence the last portion of clause c of Section 16 1 does number companye into operation. It follows accordingly that the companytention on behalf of the appellant that what was intended under the terms of the trust deed as the individual income of the respondent Ratilal becomes the joint family income by a process of successive application of the fictions enacted in the last portion of clause c of Section 16 1 , and the two provisos thereto, cannot be accepted. This is enough to dispose of the appeal. It is unnecessary, therefore, to express any opinion on the companytention raised in reliance on Ramji Keshavji v. Commissioner of Income-tax, Bombay, that there is numberretransfer of income in this case.

Case appeal was rejected by the Supreme Court

CiiviL Appellate JURISDICTION Civil Appeal No. 48 of 1954. Appeal from the Judgment and Order dated the 1 1 th January, 1954, of the High Court of Judicature of Mysore in Civil Petition No. 29 of 1953, quashing the Order of the Election Tribunal, Shimoga, dated the 15th January, 1953, in Shimoga No. I of 1952-53. S. Krishnaswami Iyengar K. S. Venkataranga Iyengar and M. S. K. Iyengar, with him for the appellant. Dr. Bakshi Tek Chand R. Ganapathy Iyer and M. S. K. Sastri, with him for respondent No. 1. K. Daphtary, Solicitor-General for India Jindra Lal, Porus A. Mehta and P. O. Gokhale, with him for respondent No. 3. 1954. May 5. The Judgment of the Court was delivered by MUKERGEA J.-This appeal is directed against a judgment of a Division Bench of the Mysore High Court, dated the 11th January, 1954, by which the learned Judges granted an application, presented by the respondent No. I under article 226 of the Constitution, and directed a writ of certiorari to issue quashing the,, proceedings and order of the Election Tribunal, Shimoga, dated the 15th January, 1953, in Shimoga Election Case No. 1 of 1952-53. The facts material for purposes of this appeal may be briefly narrated as follows The appellant and respondent No. 1, as well as eight other persons, who figured as respondents Nos. 2 to 9 in the proceeding before the High Court, were duly numberinated candidates for election to the Mysore Legislative Assembly from Tarikere Constituency at the general election of that State held in January , 1952. Five of these numberinated candidates withdrew their candidature within the prescribed period and the actual companytest at the election was between the remaining five candidates including the appellant and respondept No. 1. The polling took place on the 4th January, 1952, and the votes were companynted on the 26th of January following. As a result, of the companynting the respondent No. 1 was found to have secured 8,093 votes which was the largest in number and the appellant followed him closely having obtained 8,059 votes. The remaining three candidates, who were respondents Nos. 2, 3 and 4 before the High Court, got respectively 6,239, 1,644 and 1,142 votes. The Returning Officer declared the respondent No. 1 to be the successful candidate and this declaration was published in the Mysore Gazette on the 11th February, 1952. The respondent No. 1. lodged his return of election expenses with the necessary declaration sometime after that and numberice of this return was published on the 31st March, 1952. The appellant thereafter filed a petition before the Election Commission, challenging the validity of the election, inter alia, on the grounds that there was violation of the election rules in regard, to certain matters and that the respondent No. I by himself or through his agents were guilty of a number of major companyrupt practices which materially affected the result of the election. The petitioner prayed for a declaration that the election of respondent No. I was void and that he himself was duly elected. This petition, which bears date, 10th of April, 1952, was sent by registered post to the Election Commission and was -actually received by the latter on the 14th of April, following. The Election Commission referred the matter for determination by the Election Tribunal at Shimoga and it came up for hearing before it on the 25th of October, 1952. On that date the appellant filed an application for amendment of the -petition, heading it as one under Order VI, rule 17, of the Civil Procedure Code, and the only amendment sought for was a modification of the prayer clause by adding a prayer for declaring the entire election to be void. It was stated at the same time that in case this relief companyld number be granted, the petitioner would, in the alternative pray for the relief originally claimed by him, namely, that the election of respondent No. I should be declared to be void and the petitioner himself be held to be the elected candidate at the election. Despite the objection of respondent No. 1, the Tribunal granted this prayer for amendment. The hearing of the case then proceeded and on the averments made by the respective parties, as many as 27 issues were framed. Of them, issues Nos. 1, 5, 6, 11, 12 and 14 are material for our present purpose and they stand as follows Has there been infringement of the rules relating to the time of companymencement of poll by reason of the fact that the polling at Booth No. I for Ajjampur fixed at Ajjampur to take place at 8 A.m. did number really companymence until about half an hour later as alleged in paragraph 4 of the petition Did the 1st respondent hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph I of the particulars and thereby companymit the companyrupt practice referred to in it ? Did the 1st respondent take the assistance of a number of Government servants to further the prospects of his election as alleged in paragraph 2 of the list of particulars ? Is the return of election expenses lodged by the 1st respondent false in material particulars and has the 1st respondent omitted to include in the return of election expenses, expenses incurred by him in companynection with the election which would easily exceed the sanctioned limit of, Rs. 5,000 as per particulars stated in paragraph 7 of the list of particulars Has the election of the 1st respondent been procured and induced by the said companyrupt practices with the result that the election has been materially affected ? Would the petitioner have obtained a majority of votes had it number been for the aforesaid companyrupt and illegal practices on the part of the first respondent? The Tribunal by a majority of 2 to 1 found all these issues in favour of the petitioner and against the respondent No. 1 and on the strength of their findings on these issues, declared the election of respondent No. 1 to be void and the petitioner to have been duly elected. The judgment of the Tribunal is dated the 15th of January, 1953. On the 5th February, 1953, the respondent No. I presented an application before the Mysore High Court under article 226 of the Constitution praying for a writ or direction in the nature of certiorari calling for the records of the proceeding of the Election Tribunal in Election Petition No. I of 195253 and quashing the same including the order pro- numbernced by the Tribunal as mentioned above. This application was heard by a Division Bench companysisting of Medappa C.J. and Balakrishnaiya J. and by their judgment dated the. 11th January, 1954, the learned Judges allowed the petition of respondent No. 1 and directed the issue of a writ of certiorari as praved for. It is against this judgment that the appellant has companye up to this Court on the strength of a certificate granted by the High Court under articles 132 1 and 133 1 c of the Constitution. The substantial companytention raised by Mr. Ayyangar, who appeared in support of the appeal, is, that the learned Judges of the High Court misdirected themselves both on facts and law, in granting certiorari in the present case to quash the determination of the Election Tribunal. It is urged, that the Tribunal in deciding the matter in the way it did did number act either without jurisdiction or in excess of its authority, number was there any error apparent on the face of the proceedings which companyld justify the issuing of a writ to quash the same. It is argued by the learned companynsel that, what the High Court has chosen to describe as errors of jurisdiction are really number matters which affect the companypetency of the Tribunal to enter or adjudicate upon the, matter in companytroversy between the parties and the reasons assigned by the learned Judges in support of their decision proceed upon a misreading and misconception of the findings of fact which the Tribunal arrived at. Two points really arise for our companysideration upon the companytentions raised in this appeal. The first is, on what grounds companyld the High Court, in exercise of its powers under article 226 of the Constitution, grant a writ of certiorari to quash the adjudication of the Election Tribunal ? The second is, whether such grounds did actually exist in the present case and are the High Courts findings on that point proper findings which should number be disturbed in appeal ? The principles upon which the superior Courts in England interfere by issuing writs of certiorari are fairly well known and they have generally formed the basis of decisions in our Indian Courts. It is true that there is lack of uniformity even in the pronouncements of English Judges, with regard to the grounds upon which a writ, or, as it is number said, an order of certiorari, companyld issue, but such differences of opinion are unavoidable in judge-made law which has developed through a long companyrse of years. As is well known, the issue of the prerogative writs, within which certiorari is included, had their origin in England in the Kings prerogative power of superintendence over the due observance of law by his officials and Tribunals. The writ of certiorari is so named because in its original form it required that the King should be certified of the proceedings to be investigated and the object was to secure by the authority of a superior Court, that the jurisdiction of the inferior Tribunal should be properly exercised 1 . These principles were transplanted to other parts of the Kings dominions. In India, during the British days the three chartered High Courts of Calcutta, Bombay and Madras were alone companypetent to issue Vide Ryots of Garbandho v, Zemindar of Parlkime 70 I,A. 129 at page 140 writs and that too within specified limits and the power was number exercisable by the other High Courts at all. In that situation as this Court observed in Election Commission, India v. Saka Venkata Subba Rao 1 , the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they companyferred, in the States sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions for any other purpose being also included with a view apparently to place all the High Courts-in this companyntry in somewhat the same position as the Court of Kings Bench in England. The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas companypus, mandamus, quo warranto, prohibition and certiorari as may be companysidered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need number number look back to the early history or the procedural technicalities of these writs in English law, number feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the. writ can be I 1953 S.C.R. 1114 at 1150, of judicial acts. The expression judicial acts includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in companytrast with what are purely ministerial acts. Atkin L. J. thus summed up the law on this point in Rex v. Electricity Commissioners 1 Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the companytrolling Jurisdiction of the Kings Bench Division exercised in these writs. The second essential feature of a writ of certiorari is that the companytrol which is exercised through it over judicial or quasi-judicial Tribunals or bodies is number in an appellate but supervisory capacity. In granting a writ of certiorari the superior Court does number exercise the powers of an appellate Tribunal. It does number review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it companysiders to be without jurisdiction or palpably erroneous but does number substitute its own views for those of the inferior Tribunal. The offending order or proceeding so to say is put out of the way as one which should number be used to the detriment of any person 2 . The supervision of the superior Court exercised through writs of certiorari goes on two points, as has been expressed by Lord Sumner in King v. Nat. Bell Liquors Limited 3 . One is the area of inferior jurisdiction and the qualifications and companyditions of its exercise the other is the observance of law in the companyrse of its exercise. These two heads numbermally companyer all the grounds on which a writ of certiorari companyld be demanded. In fact there is little difficulty in the enunciation of the principles the difficulty really arises in applying the principles to the facts of a particular case. I 1924 I K.B. 17I at 205. Vide Per Lord Cairns in Walshalls Overseers v. London and North Western Railway Co., 4 A.C. 30, 39. 3 1922 2 A.C. 128, 156, Certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may number be legally companystituted or suffer from certain disability by reason of extraneous circumstances 1 . When the jurisdiction of the Court depends upon the existence of some companylateral fact, it is well settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would number otherwise possess 2 . A Tribunal may be companypetent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where numberparticular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be amanifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be companyrected by certiorari but number a mere wrong decision. The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris L. J. in the recent case of Rex v. Northumberland Compensation Appellate Tribunal 3 . The Lord Justice says It is plain that certiorari will number issue as the cloak of an appeal in disguise. It does number lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to companyrect error of law when revealed on the, face of an order or decision or irregularity or absence of or excess of jurisdiction when shown. In dealing with the powers of the High Court under article 226 of the Constitution this Court has expressed itself in almost similar terms 1 and said Vide Halsbury, 2nd edition, Vol. IX, page 88o. Vide Banbury v. Fuller, 9 Exch. III R. v. Income Tax Special Purposes Commissioners, 21 Q,B.D. 313. 3 19521 1 K.B. 338 at 357. Vide Veerappa Pillai v, Ramon Raman Ltd., 1952 C.R. at 594. Such writs as are referred to in article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction ,vested in them, or there is an error apparent on the face of the, record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is number so wide or large as to enable the High Court to companyvert itself into a Court of appeal and examine for itself the companyrectness of the decision impugned and decide what is the proper view to be taken or the order to be made. These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution. We will number proceed to examine the judgment of the High Court and see whether the learned Judges were right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case. The grounds upon which the High Court has granted the writ have been placed in the judgment itself under three heads. The first head point out in what matters the Election Tribunal acted without jurisdiction. It is said, in this companynection, that the Tribunal had numberjurisdiction to extend the period of limitation for the presentation of the election petition and it had numberauthority also to allow the petitioners prayer for amendment and to hear and dispose of the case on the basis of the amended petition. The second head relaters to acts in excess of jurisdiction. The Tribunal, it is said acted in excess of jurisdiction in so far as it went into and decided questions number definitely pleaded and put in issue, and number only did it set aside the election of respondent No. 1 but declared the petitioner to have been duly elected, although there was numberdefinite finding and numberproper materials for arriving at a finding, that the petitioner companyld secure more votes than respondent No. 1 but for the companyrupt practices of the latter. The third head purports to deal with errors apparent on the face of the record. These apparent errors, according to the High Court,, vitiated three of the material findings upon which the Tribunal based its decision. These findings relate to the companymencement of polling at one of the polling booths much later than the scheduled time, the respondent No. 1s obtaining the services of a Government servant to further his prospects of election and also to his lodging a false return of expenses. We will take up these points for companysideration one after another. As regards absence of jurisdiction the High Court is of opinion that the Tribunal acted without jurisdiction, first in extending the period of limitation in presentation of the election petition and secondly in allowing the petitioners prayer for amendment and dealing with the case on the -basis of the amended petition. The view taken by the High Court seems to be that under the Representation of the People Act hereinafter called the Act , -no power is given to the Election Tribunal to companydone the delay, if an election petition is presented after the period prescribed by the rules, number is it companypetent to allow an amendment of the petition after it is presented, except in the matter of supplying further and better particulars of the illegal and companyrupt practices set out in the list annexed to the petition, as companytemplated by section 83 3 of the Act. Assuming, though number admitting, that the propositions of law enunciated by the learned Judges are companyrect, we do number think that they at all arise for companysideration on the actual facts of the present case. As regards the first matter, the election petition, as stated above, was despatched bythe petitioner by registered post to the Election Commission on the II th of April, 1952, and it reached the Commission on the 14th of April following. We may take it therefore that 14th of April was the date when the election petition companyld be deemed to have been presented to the Election Commission under section 81 2 b of the Act. Under rule 119 of the Election Rules framed under the Act, an election petition against a returned candidate is to be presented at any time after the publication of the name of such candidate under section 67 of the Act, but number later than 14 days from the date of publication of the numberice in the official gazette under rule 113, that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer. It is number disputed that this numberice of the return of election expenses was published in the Mysore Gazette on the 31st of March, 1952, and the petition therefore was just in time as it was presented within and number later than 14 days from that date. The High Court seems to think that in companyputing the period of 14 days the date of publication is to be included. This seems to us to be an unwarrantable view to take which is opposed to the ordinary canons of companystruction. Dr. Tek Chand appearing for the respondent No. 1 plainly companyfessed his inability to support this view and we must hold therefore that there is numberquestion of the Tribunals entertaining the election petition after the prescribed period in the present case. Coming number to the question of amendment, the High Court, after an elaborate discussion of the various provisions of the Act, came to the companyclusion that the Election Tribunal which is a special Court endowed with special jurisdiction has numbergeneral power of allowing amendment of the pleadings, and that the express provision of section 83 3 of the Act, which empowers the Tribunal to allow amendments with respect to certain specified matters, impliedly excludes the power of allowing general amendment as is companytemplated by Order VI, rule 17, of the Civil Procedure Code. Here again the discussion embarked upon by the High Court seems to us to be unnecessary and uncalled for. The only amendment applied for by the petitioner was a modification in the prayer clause by insertion of an alternative prayer to the original prayer in the petition. No change whatsoever was sought to be introduced in- the actual averments in the petition and the original prayer which was kept intact was repeated in the application for amendment. The alternative prayer introduced by the amendment was number eventually allowed by the Tribunal which granted the prayer of the petitioner as it originally stood. In these circumstances the mere fact that the Tribunal granted the petitioners application for amendment becomes altogether immaterial and has absolutely numberbearing on the actual decision in the case. We are unable to hold therefore that the Tribunal acted without jurisdiction in respect to either of these two matters. The High Court has held that the Tribunal acted in excess of its jurisdiction in entering into certain questions which are number companyered by the pleadings of the parties and number specifically put in issue. The other act in excess of its authority companymitted by the Tribunal, according to the High Court, is that it declared the petitioner to be a duly elected candidate, on a mere speculation although it did number find and had numbermaterials to find that the petitioner companyld secure more votes than the respondent No. 1. On the first point the learned Judges have referred only to the allegation of companyrupt practice made by the appellant, regarding the hiring and procuring by the respondent No. 1 of a motor bus belonging to Ahmed Jan for transporting his voters to the polling booths. The issue framed on this point is issue No. 5 which is worded as follows Did the first respondent hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph 1 of the list of particulars and thereby companymit the companyrupt practice referred to in it? The Tribunal found that the hiring of the bus by respondent No. 1 was number proved, but it was proved that the first respondent did procure the service bus of Ahmed Jan, who was acting as his agent, for companyveying his voters. The Tribunal further found that even if Ahmed Jan was number an agent of the first respondent, as - he was actually carrying the voters of the latter from Gowrapur to Sollapur in a bus, which bore the first respondents election symbol, with his knowledge and companynivance, the first respondent must be held guilty of the companyrupt practice in question. The High Court says that as it was numberhere alleged in the petition that Ahmed Jan was an agent of respondent No. I or that he was carrving the voters with his companynivance, the Tribunal must be held to have acted in excess of its jurisdiction in going into matters which were number definitely pleaded. We do number think that this view of the High Court can be supported. In paragraph 8 of the petition the appellant definitely stated that the first respondent by himself and through his agent companymitted major companyrupt practices, one of which was the hiring or procuring of Ahmed Jans motor bus. The Tribunal found, on a companysideration of the evidence adduced in the case, that the motor bus was procured by the first respondent and his companyduct in this respect, as disclosed by the evidence, showed that his voters were being carried by Ahmed Jan with his knowledge and companynivance. It may be pointed out that in -paragraph 9 of the petition the petitioner clearly stated that the companyrupt practices were companymitted by respondent No. 1, or his agents, or by several persons with his knowledge and companynivance. The finding of the Tribunal arrived at on this point is a finding of fact based on evidence adduced by the parties and it is number in any way outside the pleadings or inconsistent therewith. The other ground put forward by the High Court that the Tribunal exceeded its jurisdiction in declaring the appellant to be the duly elected candidate, although it had numbermaterials to companye to the companyclusion that he companyld have secured more votes than respondent No. 1 but for the companyrupt practices companymitted by the latter, seems to us to be without substance. It appears that the learned Judges did number properly advert to the findings arrived at on this point by the Election Tribunal. The petitioner, it may be numbered, got only 34 votes less than the respondent No. 1. The Tribunal has found that the bus of Ahmed Jan, which was procured by respondent No. 1, did carry to the polling booths about 60 voters in two trips and in the, circumstances of the case it companyld be legitimately presumed that the majority of them did vote for respondent No. 1. If the votes of at least 40 or 50 of these persons be left out of account as being procured by companyrupt practice of the first respondent, the latters majority by 34 votes would be companypletely wiped out and the petitioner would gain an undisputed majority. In paragraph 33 of its judgment the Tribunalstates as follows Hence on the 14th issue we hold that the petitioner would have obtained a majority of votes had it number been for the aforesaid companyrupt practices on the part of the first respondent. Thus the finding is there and there is evidence in support of it. Whether it is right or wrong is another matter and it may be that the view taken by the dissenting member of the Tribunal was the more proper but it cannot be said that the Tribunal exceeded its jurisdiction in dealing with this matter. We number companye to what the High Court has described as errors apparent on the face of the record. These errors, according to the High Court, appear in respect of three of the findings arrived at by the Tribunal. The first of these findings relates to the time when the polling at Booth No. I at Ajjampur companymenced on the date of election. The Tribunal has held that the time fixed by numberification was 8 A.M. in the morning but the polling did number companymence till 25 minutes after that and the result was that a number of voters went away. It is said that some of these voters would in all probability have voted for the appellant and as there was a difference of only 34 votes between him and the respondent No. 1 the results of the election have been materially affected by this irregularity or violation of the election rules. There was evidence undoubtedly to show that some of the voters went away as the polling did number companymence at the scheduled time but the exact number of these persons is number known and there companyld number be any positive evidence to show as to how many of them would have voted for the appellant. If the Tribunal had on the basis of these facts alone declared the appellant to be the duly elected candidate holding that he companyld have secured more votes than respondent No. 1, obviously this would have been an error apparent on the face of the record, as such companyclusion would rest merely on a surmise and numberhing else. The Tribunal however discussed this matter only in companynection with the question as to whether the violation of any statutory rule or order in the holding of election did materially affect the result of the election which would entitle the Tribunal to declare the election of the returned candidate to be void under section 100 2 c of the Act. This, the Tribunal as companypetent to do under the provisions of the Act and in doing so it companyld take into companysideration the circumstances And probabilities of the case. But as we have stated already, the Tribunal declared the appellant to be duly elected upon the specific finding that, but for the companyrupt practice of respondent No. I in the matter of procuring the service bus of Ahmed Jan, the appellant would have got majority of the votes. We cannot say that this is an error apparent on the face of the record which would entitle the High Court to interfere by writ of certiorari. As regards the other two findings, one relates to the receiving of assistance from Paramessh warappa, who is a Patel, by respondent No. 1, in furtherance of his prospects of election. The High Court does number dispute the facts alleged by the appellant that Paramesshwarappa accompanied the first respondent and actually canvassed at several places and that he openly canvassed at one polling booth on the polling day. The earned Judges say that even if these facts are believed, they only establish that Paramessh warappa canvassed for the petitioner but that would number amount to respondent No. 1s taking assistance from him. This does number seem to us to be a proper view to take. There was allegation by the appellant of the respondent No. 1s taking assistance from a Government servant within the meaning of section 123 8 of the Act. In proof of the allegation evidence was given of the facts mentioned above. If from these facts, which were found to be true, the Tribunal drew the companyclusion that there lad been an assistance taken from a Government servant which would companye within the purview of section 123 8 of the Act, it is impossible to say that this is an error apparent on the face of the record. The remaining finding relates to the allegation of the petitioner that the respondent No. 1 in his return of election expenses omitted to include several items and if they had been taken into account the election expenses would have exceeded the sanctioned limit. The Tribunal has held that the respondent No. 1 omitted to include, in his return of expenses, the petrol charges, the hiring charges in respect of some cars and vans hired by him and also the dinner expenses incurred in the hotels. The High Court has observed that as regards the first item the finding of the Tribunal is based on numberevidence and rests on mere speculation. We do number think that we can accept this view as companyrect. The first respondent stated that he had used two cars which were his own and incurred petrol expenses to the extent of Rs. 1,083-3-0. The Tribunal has found in paragraph 29 of its order on the basis of both documentary and oral evidence that the respondent No. I had used six other cars and had purchased petrol for them for the purpose of his election campaign. The Tribunal held that the first respondent must have spent number less than the sum of Rs. 1,250 on this account which was number included in the list of expenses. We are unable to say that this finding rests on numberevidence. As regards the omission to include hiring charges the High Court has observed that the Tribunal did number record any finding that such hiring was proved. The Tribunal has in fact found that as regards some cars they were hired, while others had been taken on loan, the money value for their use having been paid by the first respondent which is tantamount to saying that he had to pay the hiring charges. The matter has been dealt with in paragraph 29 d of the Tribunals order and the entire evidence has been gone through. We are unable to say that the finding of the Tribunal that the respondent No. 1 had omitted to include in his return of election expenses the dinner and hotel charges is a finding unsupported by any evidence. Reference may be made in this companynection to paragraph 29 f of the Tribunals order which deals with the matter in detail. On the whole our opinion is that the so-called apparent errors pointed out by the High Court are neither errors of law number do they appear on the face of the record. An appellate Court might have on a review of this evidence companye to a different companyclusion but these are number matters which would justify the issue of a writ of certiorari. In our opinion the judgment of the High Court cannot be supported and this appeal must be allowed. The writ issued by the High Court will therefore be vacated.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 193 of 1952. Appeal by Special Leave from the Judgment dated the 21st -December, 1951, of the High Court of Judicature of Travancore-Cochin arising out of the Judgment and Decree dated the 18th January, -1943, of the Court of District Judge, Kottayam. P. Engineer P. N. Bhagwati, M. Abraham and M. S. K. Sastri, with him for the appellants. C. Setalvad, Attorney-General for India, C. K. Daphtary, Solicitor-General for India, and K. P. Abraham T. Balakrishna Aiyar and M. R. Krishna Pillai, with them for respondent No. 2. 1954. May 21. The Judgment of the Court was delivered by DAS J.- After stating the circumstances which gave rise to the present litigation, and the facts of the case, a brief summary of which is given above, His Lordship proceeded as follows . It will be companyvenient at this stage to discuss and deal with a preliminary point raised by the learned Attorney--General appearing for the plaintiffs respondents. In order to appreciate and deal with the point so raised it will be necessary to take numbere of the changed companyditions that bad been brought about in the matter of the judicial administration in the State by the recent political changes culminating in the adoption of the new Constitution of India. It will be recalled that the present review application was made on the 22nd August, 1946, and a numberice to show cause was issued on the 4th December, 1947. The preliminary question as to the maintainability of the review application was decided on the 29th June, 1949. During all this period Regulation IV of 1099 was in force in the State of Travancore. Section 1 1, omitting the explanations which are number material for our present purpose, and section 12 of that Regulation provided as follows 11. 1 A Full Bench shall hear and decide all appeals from the decrees of the District Courts in suits in which the amount or value of the subject-matter is number less than five thousand rupees and the amount or value of the matter in appeal is number less than that sum. The judgment of the Full Bench or the judgment of the majority, if there be difference of opinion, together with the records of the case, shall be submitted to us in order that the judgment may be companyfirmed by Our Sign Manual. Notwithstanding anything in the provisions of the Civil Procedure Code, the date of the decree shall be the date on which the judgment is declared in open Court after being companyfirmed by Our Sign Manual. Explanation I a b e Explanation II In cases decided under section 11 of this Regulation a Full Bench of the High Court may admit a review of judgment subject to the provisions of the Code of Civil Procedure. If, on review, a fresh judgment be passed, the provisions of section 11 shall, as far as may be, apply. It will be seen that under section 12 if a fresh judgment be passed then the provisions of section 11 shall, as far as possible, apply, that is to say, the judgment shall have to be submitted to the Maharaja for companyfirmation by his Sign Manual and the judgment so companyfirmed shall have to be declared in open Court after such companyfirmation. This was the position until the end of June, 1949. In the meantime on the 29th May, 1949, came the Covenant of merger between the Rulers of Travancore and Cochin with the companycurrence and guarantee of the then Governor-General of India for the formation as from the 1st July, 1949, of the United State of Travancore and Cochin with a companymon Executive, Legislature and Judiciary. Article III provided that as from the appointed day i.e., 1st July, 1949 all rights, authority and jurisdiction belonging to the Ruler of either of the companyenanting States which appertained or were incidental to the Government of that State would vest in the United State. Article IV enjoined that there should be a Rajpramukh of the United State, the then Ruler of Travancore being the first Rajpramukh during his lifetime. Broadly speaking, articles VI and XI vested the executive and legislative authority of the United State in the Rajpramukh subject to the companyditions and for the period therein specified. Article XXI preserved the power of the Rulers to suspend, remit or companymute death sentences. In exercise of the powers companyferred on him by article XI of the Covenant the Rajpramukh on the. 1st July, 1949, promulgated Ordinance No. I of 1124. Clause 3 of that Ordinance companytinued in force for that portion of the territories of the United State which formerly formed the territory of the State of Travancore all existing laws until altered, amended or repealed. Similar provision was made in clause 4 for the companytinuance of Cochin laws for that part of the United State which formerly formed the State of Cochin. On the 7th July, 1949, however, came Ordinance No. II of 1124. Clause 4 of this Ordinance repealed the Travancore High Court Act Regulation IV of 1099 . The relevant part of clause 8 which is important for the purpose of the present discussion was in the terms following All proceedings companymenced prior to the companying into force of this Ordinance in either of the High Courts of Travancore and Cochin, hereinafter in this Ordinance referred to as the existing High Courts, shall be companytinued and depend in the High Court as if they had companymenced in the High Court after such date The jurisdiction and powers of the High Court were defined thus Subject to the provisions of this Ordinance, the High Court shall have and exercise all the jurisdiction and powers vested in it by this and any other Ordinance and under any law which may hereafter companye into force and any power or jurisdiction vested in the existing High Courts by any Act or Proclamation in force in the States of Travancore and Cochin immediately prior to the companying into force of this Ordinance. Clause 25 leaving out the two Explanations which are number material for our present purpose and clause 26 ran as follows- A Full Bench shall hear and decide all appeals from the decrees of the District Courts or the Court of a Subordinate Judge or of a Single Judge of the High Court in Suits in which the amount or value of the subject-matter is number less than five thousand rupees and the amount or value of the matter in appeal is number less than that sum. Explanation I Explanation 11 In cases decided under section 25 of this Ordinance, a Full Bench of the High Court may admit a review of judgment subject to the provisions of the Travancore and Cochin Codes of Civil Procedure. Clauses 18, 25 and 26 have been substantially reproduced in sections 18 1 , 25 and 26 of the United State of Travancore and Cochin High Court Act 1125 Act No. V of 1125 which repealed, amongst other things, Regulation IV of 1099 and Ordinance 11 of 1124. Then came the Constitution of India in 1950 which created a union of several States grouped in Parts A, B and C by the First Schedule. The United State of Travancore-Cochin became one of the Part B States. Under article 214 the High Court of the United State of Travancore and Cochin became the High Court of the Part B State of Travancore-Cochin and article 225 companytinued the jurisdiction of and the laws administered in the then existing High Court. The companytention of the learned Attorney-General is that in view of the changes referred to above which had the effect of setting up a companymon High Court for the United State of Travancore and Cochin with jurisdiction and power defined therein, the review application has become infructuous, for, even if it be allowed, there will be numberauthority which will have jurisdiction and power to pronounce an effective judgment after rehearing the appeal. It is pointed out that a review may be admitted under section 26 of the United State of Travancore and Cochin High Court Act, 1125, only in cases decided under section 25 of the Act. This case was number decided by a Full Bench under section 25 of the Act and, therefore numberreview is maintainable under section 26. Further, if it be held that the appeal having been filed under section 11 of the Travancore High Court Regulation IV of 1099 , the application for review must be dealt with under section 12 of that Regulation then, says the Attorney- General, if after the review is admitted a fresh judgment has to be passed after rehearing the appeal the provisions of section 11 would have to be companyplied with, namely, the fresh judgment will, under section 11, have to be submitted to the Maharaja to be companyfirmed by his Sign Manual and the decree will have to be dated as of the date on which the judgment will be declared in open Court after such companyfirmation. It is pointed out that the Maharaja of Travancore numberlonger possesses the power to companysider and to companyfirm or reject judicial decisions and it is submitted that such being the position in law the review application had become infructuous and should have been dismissed by the Full Bench in limine. In our opinion, this companytention is number well founded. The application for review was properly made to the Travancore High Court and the Travancore High Court had to decide whether to admit or to reject the application. The judgment to be pronounced on the application for review did number require, under any provision of law to which our attention has been drawn, to be companyfirmed by the Maharaja or any other authority. It was a proceeding properly instituted and was pending on the 1st July, 1949, and companysequently under section 8 of Ordinance No. II of 1124 had to be companytinued in the High Court of the United State as if it had companymenced in the said High Court after the companying into force of the said Ordinance. In this case, the application for review was rejected by the High Court. If, however, the High Court had admitted the review then such admission would have had the effect of reviving the original appeal which was properly filed in the Travancore High Court under section 11 of the Travancore High Court Regulation IV of 1099 . That appeal, so revived, having been companymenced prior to the companying into force of Ordinance No. II of 1124 would, under section 8 of that Ordinance, have had to be companytinued in the High Court of the United State as if it had companymenced in that High Court after such date. The position will be the same if on this appeal this Court number admits the review, for, upon such admission the appeal filed in the Travancore High Court will be revived and then, having been companymenced in the Travancore High Court and companytinued in the High Court of the United State by virtue of section 8 of Ordinance No. II of 1124 the appeal so revived will, under section 8 of the Act of 11.25, have to be companytinued in that High Court as if it had companymenced in that High Court after the companying into force of that Act. In other words, the old appeal, if restored by this Court on this appeal, will, by the companybined operation of section 8 of Ordinance 11 of 1124 and section 8 of the Act of 1125, be an appeal pending in the High Court of the United State. Under our present Constitution Travancore- Cochin has become a Part B State and under article 214 the High Court of the United State of Travancore-Cochin has become the High Court of the Part B State of Travancore- Cochin and shall have the jurisdiction to exercise all the jurisdiction of and administer the law administered by the High Court of the United State, Such appeal must, accordingly, be disposed of under section 25 of the last mentioned Act. That section does number require any companyfirmation of the judgment passed on the rehearing of the appeal by the Maharaja or Rajpramukh or any other authority. Assuming, however, that the appeal, if restored, will have to be governed by section 12 of the Travancore High Court Regulation IV of 1099 even then the provisions of section 11 would have to be applied as far as may be and it may well be suggested that the portion of section 11 which requires the companyfirmation by the Maharaja will, in the events that have happened, be inapplicable. In our opinion, therefore, the preliminary objection cannot prevail and must be rejected. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, rule I of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified, grounds, namely i discovery of new and important matter or evidence which, after the exercise of due diligence, was number within the applicants knowledge or companyld number be produced by him at the time when the decree was. passed, ii mistake or error apparent on the face of the record and iii for any other sufficient reason. It has been held by the Judicial Committee that the words any other sufficient reason must mean a reason sufficient on grounds, at least analogous to those specified in the rule. See Chhajju Ram v. Neki 1 . This companyclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath 2 and was adopted by our Federal Court in Hari Shankar Pal v. Anath Nath Mitter 3 . Learned companynsel appearing in support of this appeal recognises the aforesaid L.R. 49 I.A. 144. L.R, 61 I.A. 378. 3 1949 F.C.R. 36 pp. 47-48, limitations and submits that his case companyes within the ground of mistake or error apparent on the face of the record or some ground analogous thereto. As already observed, out of the 99 objections taken in the grounds of review to the judgment of the majority of the High Court only 15 objections were urged before the High Court on the hearing of the application for review. Although most of those points have been referred to by learned companynsel for the appellants, he mainly stressed three of them before us. We number proceed to examine these objections. The first objection relates to the validity of the election of the first plaintiff as the Malankara Metropolitan and as such the ex-officio trustee and the elections of plaintiffs 2 and 3 as his companytrustees at the Karingasserai meeting. This meeting is pleaded in paragraphs 13 and 14 of the plaint,. In paragraph 18 of the plaint the plaintiffs refer to the meeting said to have been held at the M. D. Seminary in December, 1934, on which the defendants rely, the plaintiffs companytention being that that meeting was number companyvened by companypetent persons number after due numberice to all the churches according to custom. In paragraph 20 of their written statement the defendants deny the factum or the validity of the Karingasserai meeting relied upon by the plaintiffs. They companytend that that meeting was number companyvened by companypetent persons number was invitation sent to the large majority of the churches. In paragraph 29 the defendants repudiate the allegations pleaded in paragraph 18 of the plaint and maintain that their meeting was companyvened properly and upon numberice to all the churches in Malankara. In paragraphs 16 and 18 of their replication the plaintiffs reiterate the allegations in the plaint. Issue 1 b raises the question of validity of the Karingasserai meeting of August, 1935, and issue 6 a raises the question of the validity of the M. D. Seminary meeting of December, 1934. As the suit is for possession of the church properties the plaintiffs, in order to succeed, must establish their title as trustees and this they can only do by adducing sufficient evidence to discharge the onus that is on them under issue 1 b irrespective of whether the defendants have proved the validity of their meeting, for it is well established that the plaintiff in ejectment must succeed on the strength of his own title. It will be numbericed that the defendants objection to the Karingasserai meeting was two-fold, i that the meeting had number been companyvened by companypetent persons and ii that numberice had number been given to all the churches. The District Judge in paragraph 164 of the judgment held, for reasons stated by him, that that meeting had number been companyvened by companypetent persons and in paragraph 165 he found that numberice of the said meeting had number been given to all the churches. It having been companyceded by the plaintiffs advocate at the time of the final argument before the District Judge that there is numberevidence on the plaintiffs side to prove that all the churches in existence prior to 1086 had been issued numberices, the position was taken up that in the view of the plaintiffs party the defendants and their partisans by adopting the new companystitution Ex. AM had become aliens to the Church and as such were number entitled to be invited to that meeting. Their argument was that Karingasserai meeting was only a meeting of the representatives of those churches which stood by the Patriarch Abdulla 11 and the succeeding Patriarchs and as the defendants and their partisans had become aliens to the Church numbernotice to them was necessary. This argument clearly amounted to an admission that numbernotice was sent to the churches on the defendants side. The District Judge having held, companytrary to the submission of the -plaintiffs, that the defendants and their partisans had number gone out of the Church it followed, according to him, that they were entitled to numberice and as it was number proved that numberices were sent to them but on the companytrary as it was companytended that numbernotice was necessary to be sent to them the District Judge felt it to be quite clear that the said meeting was number duly companyvened. In this view of the matter, it was number necessary for the learned District Judge to go further into the matter and enquire whether numberices had been given to churches which had number adopted the new companystitution Ex. AM. Coming to the judgment of the High Court it appears that the majority of the Judges dealt with the question of the validity of the meeting in a superficial and summary manner. Nokes J. said- The lower Court held that the meeting was number duly companyvened, mainly because numberice was number given to the defendants party judgment paragraphs 166,167 . The want of numberice was number disputed, but was justified in accordance with the Patriarchal monition Exhibit Z . In view of the companyclusion stated above, that the adoption of the new companystitution was clear evidence of the defendants repudiation of the Patriarchs church, and of the fact that the adoption took place in 1934 about 8 months earlier than the meeting at Karingasserai, the want of numberice was justifiable apart from the monition. The lower Courts companyclusion that the meeting formed only a minority of the church is thus erroneous as is the companyclusion judgment, paragraphs 164, 167 that the meeting was number companyvened by companypetent persons. Mr. Justice Sathyanesan simply observed The only defect pointed out was that numberinvitation of the meeting was given to the churches under the companytrol of 1st defendant. The short answer to this is that having already become members of a new Church, they were number entitled to any invitation and were rightly ignored. It thus appears that the question as to the companypetency of the persons who companyvened the Karingasserai meeting was disposed of by Nokes J. in one single sentence at the end of the paragraph quoted above. The learned Judge does number appear to have seriously applied his mind at all to the question of the companypetency of the companyveners of that meeting Sathyanesan J. did Dot deal with the question and thought, quite wrongly, that the only question raised by the defendants was as to whether numberice was given to the churches under the companytrol of the defendants. It is pointed out by the learned Attorney-General that the judgment of Sathyanesan J. was only a supplementary judgment, for he prefaced his judgment with the observation that he entirely agreed with the findings of Nokes J. This argument might have had some force if Nokes J. had dealt with the point. The position, therefore, is that neither of the Judges applied his mind to the question of the companypetency of the persons who had companyvened the Karingasserai meeting. As to service of the numberice on all churches, Nokes J. in the passage quoted above held that the defendants had gone out of the Church by reason of their adoption of the new companystitution Ex. AM. and that companysequently numbernotice was due to them. Sathyanesan J. also in the passage quoted above took the view that the defendants having become members of a new church the defendants were number entitled to any invitation to the Karingasserai meeting. The learned Judges having reversed the finding of the District Judge and held that the defendants had gone out of the Church by adopting the new companystitution Ex. AM. it became incumbent on them to enquire whether all churches number on the plaintiffs side had adopted Ex. AM. and if number whether such of them who had number adopted Ex. AM. had been summoned to the meeting. It may be numbered in this companytext that the learned Judges of the High Court in their judgment seem to indicate that the churches which adopted Ex. AM. did so by participation at the M. D. Seminary meeting. Reference has been made in the arguments to the various figures set out in the judgment of the District Judge as to the number of Churches which according to the evidence had attended the meeting. It is number clear how many out of 310 churches claimed by the defendants to have been companypletely on their side according to Ex. 272 had attended the M. D. Seminary meeting and formally adopted the new companystitution the Ex. AM. If adoption of the Ex. AM. is the test for determining whether numberice is due or number, then it becomes important to companysider whether all the churches which were number with the plaintiffs but who had number adopted Ex. AM. had been served. Apart from the question of the service of the numberice there was also the question as to the companypetency of the persons who had companyvened the Karingasserai meeting where the plaintiffs are said to have been elected. While Mar Geeverghese Dionysius was alive he, as President of the Malankara Association, used to companyvene the meetings of the Association. Who, after his death, was companypetent to issue numberice of meeting? There ,appear to be numberrules on the subject. In this situation, says the learned Attorney- General, if all the members of the Association attended the meeting the defect of want of proper numberice does number matter. But did all members attend, even if the defendants party who had adopted Ex. AM be left out ? It does number appear that either of the two majority Judges of the High Court adverted to either of these aspects of the matter, namely, service of numberice to all churches and companypetency of the persons who issued the numberice of the Karingasseri meeting and in any case did number companye to a definite finding on that question. The majority judgments, therefore, are defective on the face of them in that they did number effectively deal with and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit. This, in our opinion, is certainly an error apparent on the face of the. record. The next point urged by learned companynsel appearing for the appellants is that the majority decision proceeds on a misconception as to a companycession said to have been made by the defendants advocate. It will be recalled that issues Nos. 14 and 15 quoted above raise the question of the defendants having gone out of the Church, for having companymitted acts of heresy or having voluntarily given up their allegiance to the ancient Jacobite Syrian Church and establishing a new church and framing a companystitution for the same. Likewise, issues Nos. 19 and 20 raise the question as to whether the plaintiffs and their partisans formed themselves into a new church and separated from the old Church by reason of the several acts and claims therein referred to Here again the suit being one in ejectment it is more important for the plaintiffs to establish their own title by getting issues 19 and 20 decided in their favour than to destroy the defendants title by getting issues 14 and 15 decided against the defendants, for a mere destruction of the defendants title, in the absence of establishments of their own title carries the plaintiffs numberhere. It is to be remembered that this is a suit by the plaintiffs as the validly companystituted trustees and number a suit under the section analogous to section 92, Civil Procedure Code, for removal of defendants from trusteeship or for the framing of a scheme. In Paragraph 132 of his judgment the learned District judge found that the acts and claims imputed to the defendants did number amount to heresy and did number make the defendants or their partisans heretics or aliens to the faith and that such acts and companyduct mentioned in issue 15, even if proved, would number amount to heresy and would number amount to a voluntary giving up of their allegiance to or secession from the ancient Jacobite Church. On the other hand, in paragraph 133 the District Judge held that the plaintiffs and their adherents by taking up the position which they adopted in 1085 and which they had persistently maintained till then had unlawfully and unjustifiably created a split in the Malankara Church and might in a sense be said to have pursued a companyrse of companyduct amounting to persistent schism. He held that, nevertheless, the plaintiffs and their parti- sans had number become aliens to the Church or created or formed themselves into a separate church as they had number been found guilty and punished with the removal from the Church or excommunication from the Church by a proper ecclesiastical authority. It will be numbericed that the learned District Judge found the facts imputed to the defendants number proved but the facts imputed to the plaintiffs to have been proved. He made numberdifference between acts of heresy and merely voluntary separation from the Church but treated them on the same footing. It will be recalled that in the interpleader suit of 1913 the District Judge had held that by accepting Abdul Messiah as their ecclesiastical head or by denying the authority of Abdulla II, Mar Geeverghese Dionysius and his companytrustees had number become aliens to the faith. Finally, in the judgment on rehearing of the appeal reported in 45 T.L.R. 116 from which passages have been quoted above the acts imputed to the defendants in that case which are similar to those imputed to the defendants in the present case, with the exception of the adoption of Ex. AM, were held number to amount to a voluntary separation from church by the establishment of a new church and that the Free Church case 1 had numberapplication to the facts of that case. Likewise, in the present case the District Judge dealt with issues 15, 16, 19 and 20 together, which companyered issues on 30th heresy and voluntary separation. Presumably in view of the decision of the Court of Appeal in the previous suit the learned District Judge in this case did number make any distinction between acts of heresy and voluntary separation from the Church and held that there was numbercase of ipso facto heresy or ipso facto loss of membership of the Church or ipso facto loss of status as Priest and prelates for ecclesiastical offences unless the offenders were tried and punished by a companypetent authority. Indeed, the evidence of P.W. 17, the Popes delegate, is claimed as supporting this view. It is in the light of this situation that the question as to the misconception of the companycession has to be companysidered. Sathyanesan J. in paragraph 4 of his judgment, referred to the companycession said to have been made by the learned advocate for the defendants in the following terms- However the learned advocate for the respondents clarified the situation by very fairly company. ceding that plaintiffs had number left the church and that they were as good members of the original Jacobite Syrian Church as anybody else. Another clarification has been made by the learned advocate for the appellants that the plaintiffs, whatever might have happened in the past, do number hold that the Patriarch can at all interfere in the internal administration of the Malankara trust properties. Plaintiffs seem to have made their position clear even at the time of pleadings. According to them, The Patriarch as the ecclesiastical head of the Malankara Church companyld exercise that authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropriation of church properties-Vide pleading No. 124 1 . The companycession made by the learned advocate for the L.R. 1904 A.C. 515. defendants has obviated the necessity of a lengthy discussion of several matters. So it is worth pausing a while and understanding the importance, and the implications of the companycessions. It tends to mean- that the Patriarch is number an alien to the Church, i.e., the Patriarch and his predecessors in question are the true and lawful head of the original Jacobite Syrian Church, that that the plaintiffs and their partisans, holding a the Patriarch has only a spiritual supervision of the administration of the trust properties by the trustees, b the Patriarch alone can companysecrate Morone, c that Exhibit BP is the true Canon of the Jacobite Church, and d that the Catholicate was number properly established, cannot, on these grounds, be companysidered to have become aliens to the original church. So the question is more properly whether the defendants have seceded from the original church and formed a new church. In the nature of the suit, the plaintiffs can succeed only if they make out, A that the defendants are using the trust properties belonging to Malankara Jacobite Church for the maintenance, support and benefit of another and a different body, namely Malankara Orthodox Syrian Church, and B that the plaintiffs are the duly elected trustees. Likewise, Nokes J. at pp. 355-356 referred. to the companycession as follows- In this companyrt the defendants advocate did number seek to disturb the finding that the plaintiffs had number become aliens to the church. Indeed, as previously stated, he based his case on the ground that both parties were still within the church. This abandonment of his clients companytention in the lower companyrt was numberdoubt due to the fact that the written statement involved an admission of the plaintiff case for the plaintiffs in effect said, we are the trustees of the Patriarchs church, while the defendants said, we are the trustees of a church to which the Patriarch is an alien. Nor was any attempt made here on behalf of the defendants to challenge the finding that the trust had number become altered for any companytention to the companytrary provided numberdefence and was a further admission of the plaintiffs case. But the existence of this allegation on the pleadings serves to emphasise the defendants attitude to the trust. Further down the learned Judge said The learned Judge held against the general allegation of separation judgment, paragraph 133 , but in favour of the special allegation as to the plaintiffs view on temporalities paragraph 108 . He also recorded findings as to the limited scope of the Patriarchs powers in temporal affairs paragraphs 58, 60 , which seem to be based on the erroneous view inter alia that persons who are subject to two systems of law are amenable for different aspects of the same offence only to punishment under one system see paragraph 57 . The general finding was challenged in the memorandum of objection grounds 10 and 11 , but number in the argument for the defendants here, which, as previously stated, proceeded on the basis that both sides were still members of the church. On a plain reading of the two judgments it appears that the majority Judges took the view that even if, as held by the District Judge, the plaintiffs had been guilty of acts and companyduct imputed to them it was number necessary for them to enquire whether those acts were mere heresy or also amounted to a setting up of a new church or whether the Canon law requiring the verdict of an ecclesiastical authority applied to both or only to acts of heresy. This attitude they adopted simply because of what they understood was the companycession made by the defendants advocate, namely, that the plaintiffs had number gone out of the church. They, how. ever, felt bound, numberwithstanding the companytention of the defendants that they were also, for similar reasons. within the church, to companysider whether the defendants had voluntarily gone out of the church by setting up a new church as evidenced by their aforesaid acts. Learned companynsel for the appellants companytends, and we think there is a good deal of force in such companytention, that the majority Judges do number appear to have examined the question or companysidered whether voluntarily going out of the church was a companycept separate and distinct from acts of heresy and if so whether the acts and companyduct imputed to the plaintiffs apart from being acts of heresy from an ecclesiastical point of view, amounted also to voluntarily going out of the church by establishing a new church. Nor do they appear to have companysidered whether the Canon law requiring verdict of an ecclesiastical authority was required in both cases. There can be numberdoubt,therefore, on the face of the judgment, that the decision of the learned Judges in this behalf proceeds on what they companysidered was a companycession made by the defend- ants advocate that the plaintiffs had number gone out of the church. Learned companynsel for the defendants appellants companytends that this was a misapprehension and he relies on the affidavit of Sri E. J. Philipose, advocate, with which were produced two letters written to him by the senior advocate. In the first letter it is stated as follows- I argued at length of the misconduct of the plaintiffs in going against the basic companyditions of the Royal Courts judgment and said that while the companyduct of each party is open to examination neither companyld be said to have left the church. Their acts may be set aside in both cases but they cannot be said to have left the church. The Judges cannot accept it in one case as a companycession and in the other case as my submission. Deciding one part of it as a companycession number requiring the decision of Court is unjust to my lengthy argument on the misconduct of the plaintiffs in regard to their diversion of property from the trust - In the second letter we find the following passages- Throughout my argument was that the plaintiffs had steadily and companysistently set at naught the fundamental principles of the charity as settled in the judgments of the Royal Court and the Cochin Court. As between the charge and companynter charge of violation of the foundation rules, I expressed it as my view that while their views may be companyrected by the Court neither party should be treated as having become aliens to the church by reason merely of erroneous views. That is what is explained in paragraph 17 of the grounds. My opinion so expressed is number to be treated as a companycession of the one case and a submission as to the other. If my view of the law was number acceptable the learned Judges must decide and number treat one part of a companynected statement as a companycession number requiring to be companysidered by the Court. In the review petition ground No. 17 is as follows Their Lordships observation that the defendants Advocate based his case on the ground that both parties were still within the Church and that the defendants Advocate companyceded that the plaintiffs have number left the church and that they were as good members of the original Jacobite Syrian Church as anybody else is inaccurate and incomplete, and misleading. The Advocate devoted a great part of the argument to showing that the plaintiffs have departed from the companystitution as settled by the Royal Court Judgment. The plaintiffs stated that the defendants have left the Church. In reply the argument was that there is numbersuch thing as ipso facto secession merely because of differences of views on the powers of the Patriarch or about the Canon to be followed. It was in that sense and in that sense only that the argument was advanced that in law it must be taken that both parties were within the Church. The Judges were number justified in taking it out of its setting and using part of it as an admission in support of the plaintiffs and rejecting the other portion as a mere argument number sustainable in law so far as the defendants are companycerned. If it should be treated as an admission at all it must have been accepted or rejected as a whole. It must number have been torn piecemeal and part used and part rejected The reasons as signed for companycluding that the defendants have gone out of the Church apply even more strongly to the plaintiffs and the Judges should have dismissed the suit in limine. Their Lordships failed to numbere that the basic companystitution of the Church had been laid down by the Royal Court Judgment and the plaintiffs by disowning and repudiating it had really seceded from it. If the view of the companyrt was that departure from the rules of the foundation put the parties out of the Church it should apply alike to both the parties and the statement that neither party had gone out of the Church cannot be used to sustain the plaintiffs right and at the same time rejected as untenable to support the precisely similar rights of the defendants. Their Lordships failed to numbere that the defendants Advocate strongly urged that it was necessary to have the charges framed, enquiry held and due and proper grounds made out before a person can be put out of the Church and there was number even a whisper of it as, having been companyplied with in this case. Their Lordships also failed to numbere that there can be numbersuch thing as an entire body of persons against whom numberhing was alleged or proved being held to have gone out of the Church. Their Lordships failed to numbere that the so-called admission did number in any way affect the defendants case that the Patriarch and the plaintiffs and their partisans have voluntarily left the Church and had thereby ceased to be members thereof. Learned Attorney-General strongly objects to any reference being made to the facts companytained in the affidavit of E.J. Philipose or the letters produced along with it and he refers us to the decision of this Court in Sha Mulchand Co. Ltd. v. Jawahar Mills Ltd. 1 , and the cases therein referred to and to the case of Reg. v. Pestanji Dinsha and Another 1 . It will, however, be numbericed that what was deprecated in that case was the fact that numberaffidavit had been filed before the trial Court for the rectification of what, in the appeal Court, 1 1953 S.C.R. 351 at P. 366. 2 10 Bom H.C.R. 75. was alleged to have been wrongly recorded by the trial Judge. The Privy Council in Madhu Sudin Chowdri V. Musammat Chandrabati Chowdhrain 1 also suggested that the proper procedure was to move. the Court in whose judgment the error is alleged to have crept in. In this case, as already stated, an affidavit was filed before the appeal Court itself while the Chief Justice and Nokes J. were still in office. Further, if, as laid down in the judgment of this Court to which reference has been made, the proper procedure is to apply to the Court whose judgment is said to be founded on a misconception as to the companycession made by the learned Advocate appearing before it, by what procedure, unless it be by way of review, companyld that Court be moved? Indeed, the Madras case referred to in the judgment of this Court freely indicates that the application should be by way of review. Patanjali Sastri J. as he then was sitting singly in the Madras High Court definitely took the view in Rekhanti Chinna Govinda Chettiyar v. S. Varadappa Chettiar 2 that a misconception by the Court of a companycession made by the Advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and companyent ground for review. The learned AttorneyGeneral companytends that this affidavit and the letters accompanying it cannot be said to be part of ,the record within the I meaning of Order 47, rule 1. We see numberreason to companystrue the word record in the very restricted sense as was done by Denning L.J. in Rex v. Northumberland Compensation Appeal Tribunal Ex-Parte Shaw 1 which was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error companyplained of is that the Court assumed that a companycession had been made when numbere had in fact been made or that the Court misconceived the terms of the companycession or the scope and extent of it, it will number generally appear on the 1 1917 21 C.W.N. 897 A.I.R. 194o mad, 17. 3 1952 2 K.B. 338 at PP- 351-352. record but will have to be brought before the Court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment. Turning to the affidavit and the letters and the ground No. 17 of review it is quite obvious that the defendants had number given -up their companytention, upheld by the District Judge, that the plaintiffs had been guilty of the acts and companyduct imputed to them. What the. learned Advocate for the defendants did was to accept the Canon law as interpreted by the District Judge, namely that numberody goes out of the church without the verdict of an ecclesiastical authority, whether the acts companyplained of amount to acts of heresy or to the establishment of a new church so as to make the persons who are guilty of such companyduct aliens to the faith. If the majority Judges took the view that such was number the Canon law and that the same acts and companyduct may have an ecclesiastical aspect in the sense that they amount to hers punishable as such and may also amount to a voluntary separation from the church which is number an ecclesiastical offence and does number require the verdict of any ecclesiastical authority to place the guilty person out of the church then it was clearly incumbent upon the majority Judges to companysider whether the acts and companyduct of which the plaintiffs had been found guilty had actually been companymitted by them and whether such acts and companyduct also had the dual aspect, namely, amounted to an ecclesiastical offence requiring excommunication and also to a voluntary separation which number being an ecclesiastical, offence did number require an ecclesiastical verdict to-place a guilty person out of the pale of the Church. This, on the face of the judgment the learned Judges failed to do. Learned Attorney-General has submitted that the allegations against the plaintiffs, are five in number, namely- The Patriarch has Temporal powers over the properties of the Malankara Church The Patriarch has got the power acting by himself to excommunicate and ordain a Bishop Only the Patriarch may companysecrate Morone The Canon of the Church is Ex. XVIII in O.S. No. 94 of 1088 and The Catholicate has number been validly instituted in the Malankara Church and suggests that these charges have been gone into directly or indirectly by the majority Judges and that, therefore, numberprejudice has been caused. He, however, cannot dispute that the Judges have failed to companysider and companye to any definite finding on some of them. We do number companysider that the companytention of the learned Attorney General is entirely well founded. Issue20 1 companytains several charges against the plaintiffs and even if charges a and b have been referred to in the majority judgment, the charges c , d and e have certainly number. been dealt with. As to the temporal power of the Patriarch the District Judge held in paragraph 58 of his judgment that the Patriarch had numbertemporal authority or jurisdiction or companytrol over the Malankara Jacobite Syrian Church and its temporalities and that the, power of general supervision over spiritual Government companyceded to the Patriarch in Ex. DY did number carry with it by necessary implication the right to interfere in the administration of the temporalities and properties of the Church. The decision to the companytrary in 41 T.L.R. I -cannot be regarded as having any bearing after that judgment was set aside subject only to three points as here in before mentioned. It does number appear that the majority Judges companysidered whether the plaintiffs imputed full temporal powers to the Patriarch or the limited one as companyceded to him in Ex. DY and if they did impute to him -full temporal powers whether they had departed from a fundamental tenet of the Church. They do number also appear to have companysidered whether, if the plaintiffs originally pledged themselves to the tenet of full temporal power of the Patriarch and thereby departed from a fundamental article and such departure involved their having become aliens, any subsequent change in their attitude by limiting it as in Ex. DY would make a difference. Further, as to the power of companysecrating Metropolitans Nokes J. found that a validly appointed Catholicos had the power, under both versions of the Canon, to companysecrate Metropolitans without a Synod and that by so claiming the defendants had number become aliens to the faith. The learned Judge, however, did number companysider the implication of this finding so far as the plaintiffs were companycerned. This finding may lead to the implication that the claim that the Patriarch alone has got the power of ordination and the Catholicos has number that power cannot but be regarded as a departure from the Canon. Issue 20 1 a 1 which relates to the companysecration of Morone has been found in favour of the defendants. - If the defendants have number gone out of the Church by making the claim that Morone may be companysecrated by the Catholicos or the Metropolitan in Malankara then the learned Judge should have companysidered whether a denial of such right by the plaintiffs companystituted a departure by them from the canonical law. This the learned Judge failed to do. Issue 20 1 a iii related to the establishment of the Catholicate. In pleading No. 124 the plaintiffs maintained that a Catholicate had number been established at all. The District Judge held that Abdul Messiah by his Kalpana Ex. 80 revived the Jacobite Catholicate. The respondents ground of appeal No. 17 assumed that a Catholicate had been established. Nokes J. held that Abdul Messiah was a Patriarch, that a Patriarch had the power by himself and without the Synod to establish a Catholicate and that a Catholicate had been established by him although the old Catholicate of the East had number been revived. Sathyanesan J., however, held that the establishment of the Catholicate in Malankara was dubious, surreptitious and uncanonical and that numberCatholicate had been established. The two judgments appear to be somewhat at variance in this respect. In any case, Nokes J. has number companysidered whether the stand taken by the plaintiffs that numberCatholicate had been establisbed at all amounts to a departure by them from the injunctions of the Canon law, On a fair reading of the majority judgments it appears to us that the majority Judges have been misled by a misconception as to the nature and scope of the companycession alleged to have been made by the defendants advocate. If the acts imputed to the defendants amounted to a voluntary separation, the learned Judges should have companysidered whether the acts imputed to the plaintiffs likewise amounted to a voluntary separation. If the defendants had number gone out of the Church by asserting that a Catholicate had been established, that the Catholicos can ordain Metropolitans and companysecrate Morone then they should have companysidered whether by denying these assertions the plaintiffs had number gone out of the Church. This they failed to do. They companyld number properly decline to go into the question of fact on account of the admission of the defendants advocate that the plaintiffs remained in the Church. Such admission at beat was an admission as to the canon law and the decision that the defendants had voluntarily gone out of the Church even in the absence of an ecclesiastical verdict necessarily implies that the companyce- ssion made by the defendants advocate requiring an ecclesiastical verdict as a companydition precedent to voluntary separation also was obviously wrong and an erroneous companycession of law made by the defendants advocate companyld number be relied upon for saving the plaintiffs. The fact, therefore, that cross-objection No. 11 filed in the High Court by the defendants does number appear to have been pressed makes numberdifference. In our opinion, for reasons stated above, this head of objection raised by the learned advocate for the appellants before us is well-founded and the judgments of the majority Judges are vitiated by an error of a kind which is sufficient reason within the meaning of the Code of Civil Procedure for allowing the review. The last point taken up by the learned advocate for the appellants is that although certain matters had been agreed to be left out in companynection with issue No. 11 a , the learned Judges took an adverse view against the defendants on matters which had been so left out by agreement. Issue No. 1 1 relates to the powers of the Patriarch. Clauses b to 1 relate to specific powers of the Patriarch. Clause a of that issue is vague and is expressed in very general terms. Paragraph 60 of the District Judges judgment is as follows- It was stated by the advocates on both sides that it is unnecessary for the purpose of this suit to determine or decide in a general and companyprehensive manner or define exhaustively all the powers that the Patriarch may have over or in respect of the Malankara Church as the supreme spiritual or ecclesiastical head of the whole Jacobite Church including Malankara and I also think it is number within the province or companypetency of this companyrt to attempt to do it. Whether he is the supreme spiritual head or whether be is the supreme ecclesiastical head, his powers as the Patriarch in respect of the matters specified under clauses b to h of issue II. which have formed the subject- matter of dispute in this case have been companysidered and defined under these various headings under this issue II and it has also been stated how far they have been determined or upheld by law companyrts, custom, practice and precedent so far as Malankara is companycerned and these findings, it is companyceded on both sides, will suffice. It will be numbericed that after this agreement issue No. 11 related only to certain specific powers of the Patriarch. The findings on these issues by themselves do number lead to any result. They were, as it were, only introductory issues and were material for other issues, e. g. issues 14, 15, 19 and 20. In other words, the general issue II a being given up, the other issues mentioned above were automatically limited to the specific acts relating to the specific powers of the Patriarch. The majority Judges have, however, certainly gone into three matters which were then agreed to have been left out, e. g., a obligation to obey the Patriarch whether canonically installed. or number, b extent of the right of the Patriarch by himself to decide matters of faith and c whether the Patriarch has the right to approve of a Catholicos in the sense that such approval was necessary. These matters are number averred in pleadings and numberspecific issues have been raised and in the circumstances, should number have been gone into. The suggestion is that these points are companyered by other issues. It is said that the learned Judges held that the new companystitution Ex. AM amounted to a repudiation of the authority of the Patriarch on the following grounds- Installation of Catholicos ignoring the Patriarch Absence of a provision for the approval by the Patriarch or Malankara Metropolitan Ordination of Metropolitan and the issuing of Staticons by the Catholicos, and 4 the right to companylect Ressissa. These points are said to be companyered by issues II b , c , g and h , and also by issues 10 b , 14, 15 and 16. Assuming it is so, it is clear that the learned Judges also founded themselves on the three points here in before mentioned which do number appear to fall within any of the issues in the case except issue II a which was given up. To decide against a party on matters which do number companye within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record. It is futile to speculate as to the effect these matters had on the minds - of the Judges in companyparison with the effect of the other points. The above discussion, in our opinion,, is quite sufficient for the purpose of disposing of this appeal and it is number necessary to go into the several other minor points raised before us. In our opinion the appellants have made out a valid ground for allowing their application for review. We accordingly allow this appeal, set aside the judgment of the High Court and admit the review. As the different points involved in this appeal are intimately interconnected we direct the entire appeal to be reheard on all points unless both parties accept any of the findings of the High Court. The companyts must follow the event and we order that the appellants must get the companyts of this appeal before us and of the application for review before the High Court.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 7 of 1953. Appeal by Special Leave from the Judgment and Order of the High Court of Judicature at Nagpur dated the 15th. September, 1952, in Criminal Case No. 45 of 1951 from the Order of the Court of the Magistrate 1st Class, Hoshangabad, in Criminal Case No. 75 of 1949. J. Umrigar, Rameshwarnath and Rajinder Narain for the appellants. L. Shevde, Advocate-General of Madhya Pradesh T. P. Naik and I. N. Shroff, with him for the respondent. 1954. May 14. The Judgment of the Court was delivered by MEHAR CHAND MAHAJAN C.J.--The facts giving rise to this appeal are these The appellant, Harishankar Bagla, and his wife, Smt. Gomti Bagla, were arrested at Itarsi, by the Railway Police on the 29th November, 1948, for companytravention of section 7 of the Essential Supplies Temporary Powers Act, 1946, read with clause 3 of the Cotton Textiles Control of Movement Order., 1948, having been found in possession of new companyton cloth weighing over six maunds which cloth, it was alleged,was being taken by them from Bombay to Kanpur without any permit. After various vicissitudes through which the chalan passed the case was eventually withdrawn by the High Court to itself on the 3rd of September,1951, as it involved a decision of companystitutional issues. By its order dated the 15th September, 1952, the High Court upheld the provisions of sections 3 and 4 of the Essential Supplies Temporary Powers Act, 1946, as companystitutional. It also upheld the companystitutionality of the impugned Order. Section 6 of the Act was held to be inconsistent with the provisions of the Railway Act but it was held that its unconstitutionality did number affect the prosecution in this case. The High Court directed that the prosecution should proceed and the records sent back to the trial Court for being dealt with in accordance with law. Leave to appeal was given both to the appellants and the respondent and requisite certificates under articles 132 and 134 of the Constitution were granted. This appeal along with the companynected appeal No. 6 of 1953 is before us on the basis of the said certificates. Mr. Umrigar, who appeared in this and the companynected appeal, urged the following points for our companysideration and decision That sections 3 and 4 of the Essential Supplies Temporary Powers Act, 1946, and the provisions of the Cotton Cloth Control Order companytravened the fundamental right of the appellants guaranteed by article 19 1 f and g of the Constitution That section 3 of the Essential Supplies Temporary Powers Act, 1946, and in particular section 4 were ultra vires, the Legislature on the ground of excessive delegation of legislative power That section 6 having been found ultra vires, section 3 was inextricably companynected with it and that both the sections should have been declared ultra vires on that ground and That the impugned Control Order companytravened existing laws, viz., the provisions of section 27,28 and 41 of the Indian Railways Act, and was thus void in its entirety. The respondent challenged the judgment of the High Court that section 6 of the Act was unconstitutional. In our judgment, numbere of the points raised by Mr. Umrigar have any validity. On the other hand, we are of the opinion that the High Court was in error in declaring section 6 of the Act unconstitutional. Sections 3 and 4 of the Essential Supplies Temporary Powers Act, 1946, provide as follows- 3. 1 The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential companymodity, or for socuring their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and companymerce therein Without prejudice to the generality of the powers companyferred by sub-section 1 , an order made thereunder may provide- a for regulating by licences, permits or otherwise the production or manufacture of any essential company- modity d for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or companysumption of any essential companymodity The Central Government may by numberified order direct that the power to make orders under section 3 shall,in relation to such matters and subject to such companyditions, if any, as may be specified in the direction, be exercisable also by- a such officer or authority subordinate to the Central Government, or b such State Government or such officer or authority subordinate to a State Government as may be specified in the direction. Section 6 runs thus Any order made under section 3 shall have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. Under powers companyferred by section 3 the Central Government promulgated on 10th September, 1948, Cotton Textiles Control of Movement Order, 1948. Section2 of this order defines the expressions apparel, carrier, hosiery, cloth and textile companymissioner. Section 3 of the order runs as follows- No person. shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with- a general permit numberified in the Gazette of India by the Textile Commissioner, or a special transport permit issued by the Textile Commissioner. Section 8 provides that the Textile Commissioner may, by numberification in the Gazette of India, prescribe the manner in which any application for a special transport permit under this Order shall be made. The Central Government has prescribed forms for application for obtaining permits and the companyditions under which permits can be obtained. The first question canvassed by Mr. Umrigar was that the provisions of section 3 of the Control Order infringed the rights of a citizen guaranteed in subclauses f and g of article 19 1 of the Constitution. These sub-clauses recognise the right of a citizen to dispose of property and to carry on trade or business. The requirement of a permit to transport by rail companyton textiles to a certain extent operates as a restriction on the rights of a person who is engaged in the business of purchase and sale of companyton textiles. Clause 5 of article 19 however permits such restrictions to be placed provided they are in the public interest. During the period of emergency it was necessary to impose companytrol on the production, supply and distribution of companymodities essential to the life of the companymunity. It was for this reason that the Legislature passed the Essential Supplies Temporary Powers Act authorising the Central Government to make orders from time to time companytrolling the production, supply and distribution of essential companymodities. Clause 3 of the Control Order does number deprive a citizen of the right to dispose of or transport companyton textiles purchased by him. It requires him to take a permit from the Textile Commissioner to enable him to transport them. The requirement of a permit in this regard cannot be regarded as an unreasonable restriction on the citizens right under sub-clauses f and g of article 19 1 . If transport of essential companymodities by rail or other means of companyveyance was left uncontrolled it might well have seriously hampered the supply of these companymodities to the public. Act XXIV of 1946 was an emergency measure and as stated in its preamble, was intended to provide for the companytinuance during a limited period of powers to companytrol the production, supply and distribution of, and trade and companymerce in, certain companymodities. The number of companymodities held essential are mentioned in section 2 of the Act, and the requirement of a permit to transport such companymodities by road or rail or other means of transport cannot, in any sense of the term, be said, in a temporary Act, to be unreasonable restriction on the citizens rights mentioned in clauses f and g of article 19 1 . The High Court was therefore right in negativing the companytention raised regarding the invalidity of the Control Order as abridging the rights of the citizen under article 19 1 of the Constitution. Mr. Umrigar further argued that the Textile Commissioner had been given unregulated and arbitrary discretion to refuse or to grant a permit, and that on grounds similar to those on which in Dwarka Prasad v. The State of Uttar Pradesh 1 , this Court declared void section 4 3 of the Uttar Pradesh Coal Control Order, section 3 of the Control Order in question should also be declared void. This argument again is number tenable. In the first place, the appellants never applied for a permit and made numberefforts to obtain one. If the permit had been applied for and refused arbitrarily they might then have had a right to attack the law on A.T.R. 1954 S.C. 225 1954 S.C.R. 80o3. the ground that it vested arbitrary and unregulated power in the textile companymissioner. The appellants were number hurt in any way by any act of the textile companymissioner as they never applied for a permit. They were transporting essential goods by rail without a permit and the only way they can get any relief is by attacking the section which obliges them to take a permit before they can transport by rail essential companymodities. It may also be pointed out that reference to the decision of this Court in Dwarka Prasads case 1 is number very opposite and has numberbearing on the present case. Section 4 3 of the Uttar Pradesh Coal Control Order was declared void on the ground that it companymitted to the unrestrained will of a single individual to grant, withhold or cancel licences in any way he chose and there was numberhing in the Order which companyld ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Section 4 3 of the Uttar Pradesh Coal Control Order was in these terms The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded. Provided that every power which is under this Order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller, or any person authorized by him in this behalf In the present Control Order there is numbersuch provision as existed in the Uttar Pradesh Coal Control Order. Provisions of that Control Order bear numberanalogy to the provisions of the present Control Order. The policy underlying the Order is to regulate the transport of companyton textile in a manner that will ensure an even distribution of the companymodity in the companyntry and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commis- sioner is to be exercised in such a way as to effectuate this policy. The companyferment of such a discretion A.I.R. 1954 S.C. 225 1954 S.C.R. 803. cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief Presumably, as appears from the different forms published in the Manual, there are directions and rules laid down by the Central Government for the grant or refusal of permits. The next companytention of Mr. Umrigar that section 3 of the Essential Supplies Temporary Powers Act, 1946, amounts to delegation of Legislative power outside the permissible limits is again without any merit. It was settled by the majority judgment in the Delhi Laws Act case 1 that essential powers of legislation cannot be delegated. In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of companyduct. The Legislature must declare the policy of the law and the legal principles which are to companytrol any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function companysists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of companyduct. In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential companymodities and of securing equitable distribution and availability at fair prices. The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3. Delegation of the kind mentioned in section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council, vide Russell v. The Queen 2 , Hodge v. The Queen 3 , and Shannon v. Lower Mainland Dairy Products Board 4 and since the companying into force of the Constitution delegation of this character has been upheld in a number of decisions of this Court on principles enunciated by the majority in the Delhi Laws Act case 1 . As already. pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of I I 1951 S.C.R. 747. 2 7 A.C. 829. 3 9 A.C. II7. I938 A.C. 708. the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy. Mr. Umrigar companyld number very seriously press the question of the invalidity of section 3 of the Act and it is unnecessary therefore to companysider this question in greater detail. Section 4 of the Act was attacked on the ground that it empowers the Central Government to delegate its own power to-make orders under section 3 to any officer or authority subordinate to it or the Provincial Government or to any officer or authority subordinate to the Provincial Government as specified in the direction given by the Central Government. In other words, the delegate has been authorized to further delegate its powers in respect of the exercise of the powers of section 3. Mr. Umrigar companytended that it was for the Legislature itself to specify the particular authorities or officers who companyld exercise power under section 3 and it was number open to the Legislature to empower the Central Government to say what officer or authority companyld exercise the power. Reference in this companynection was made to two decisions of the Supreme Court of the United States of America-Panama Refining Co. v. Ryan 1 and Schechter v. United States 2 . In both these cases it was held that so long as the policy is laid down and a standard established by a statute, numberunconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. These decisions in our judgment do number help the companytention of Mr. Umrigar as we think that section 4 enumerates the classes of persons to whom - the power companyld be delegated or sub-delegated by the Central Government and it is number companyrect to say that the instrumentalities have number been selected by the Legislature itself. The decision of their Lordships of the Privy Council in Shannons case 3 , companypletely negatives the companytention raised regarding the invalidity of section 4. 1 293 US 388. 3 1938 A.C. 708. 2 295 U.S. 495. In that case the Lt.Governor in Council was-given power to vest in a marketing board the powers companyferred by section 4A d of the Natural Products Marketing British Columbia Act, 1936. The attack on the Act was that without companystitutional authority it delegated legislative power to the Lt.Governor in Council. This companytention was answered by their Lordships in these terms The third objection is that it is number within the powers of the Provincial Legislature to delegate so-called legislative powers to the Lt.-Governor in Council, or to give him powers of further delegation This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted various persons and bodies with similar powers to those companytained in this Act. The next companytention that the provisions of the Textile Control Order operate as an implied repeal of sections 27, 28 and 41 of the Indian Railways Act and are therefore invalid is also number well founded. The requirement of a permit by clause 3 and provisions of clause 4 of the Order which empower the Textile Commissioner to direct a carrier to close the booking or transport of cloth, apparel, etc., are number in direct companyflict with sections 27, 28 and 41 of the Railways Act. The Railways Act does number exclude the placing of a disability on a railway administration by the Government or any other authority. This clause merely supplements the relevant provisions of the Railways Act and does number supersede them. Similar observations apply to clause 5 which enables the Textile Commissioner to place an embargo on the transport of certain textiles from one area to another. There is numberhing in the provisions of the order which in any way overrides or supersedes the provisions of the different sections of the Railways Act referred to above. The last companytention of Mr. Umrigar that section 6 having been declared invalid, section 3 is inextricably mixed with it and should also have been declared invalid is also number valid, because apart from the grounds given by the High Court for holding that the two sections were number so interconnected that the invalidity of one would make the other invalid, the High Court was in error in holding that section 6 was unconstitutional. Section 6 of the Act cited above declare, that an order made under section 3 shall have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. In other words it declares that if there is any repugnancy in an order made under section 3 with the provisions of any other enactment, then numberwithstanding that inconsistency the provisions of the Order will prevail in preference to the provisions of other laws which are thus inconsistent with the provisions of the Order. In the view of the High Court the power to do something which may have the effect of repealing, by implication, an existing law companyld number be delegated in view of the majority decision of this Court in In Re Delhi Laws Act 1 , where it was held that to repeal or abrogate an existing law is the exercise of an essential legislative power. The learned Judges of the High Court thought that the companyferment of power of the widest amplitude to make an order inconsistent with the pre- existing laws is numberhing short of a power to repeal. In our opinion the companystruction placed on section 6 by the High Court is number right. Section 6 does number either expressly or by implication repeal any of the provisions of pre-existing laws neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is companycerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of section 6 certainly is number to repeal any one of those laws or abrogate then. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies Temporary Powers I 1951 S.C.R, 747. Act, 1946, or the orders made thereunder. In other words, the orders made under section 3 would be operative in regard to the, essential companymodity companyered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those companymodities will number operate. By-passing a certain law does number necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the companytinuance of the order made under section 3 it does number operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions. Conceding, how- ever, for the sake of argument that to the extent of a repugnancy between an order made under section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is number by any Act of the delegate, but the repeal is by the legislative Act of the Parliament itself. By enacting section 6 Parliament itself has declared that an order made under section 3 shall have effect numberwithstanding any inconsistency in this order with any enactment other than this Act. This is number a declaration made by the delegate but the Legislature itself has declared its will that way in section 6. The abrogation or the implied repeal is by force of the legislative declaration companytained in section 6 and is number by force of the order made by the delegate under section 3. The power of the delegate is only to make an order under section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order companyes into being that will have effect numberwithstanding any inconsistency therewith companytained in any enactment other than this Act. Parliament being supreme, it certainly companyld make a law abrogating or repealing by implication provisions of any pre-existing law and numberexception companyld be taken on the ground of excessive delegation to the Act of the Parliament itself. There is numberdelegation involved in the provisions of section 6 at all and that section companyld number be held to be unconstitutional on that ground, The result therefore is that in our opinion the provisions of sections 3, 4 and 6 of the Essential Supplies Temporary Powers Act, 1946, are companystitutional and. the impugned order is also companystitutional.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Petition No. 98 of 1956. Petition under Article 32 of the Constitution of India for enforcement of fundamental rights. C. Chatterjee and S. C. Majumdar, for the petitioner. A. Mehta, R. Ganapathy Iyer and R. H. Dhebar, for the respondents NOS 1, 2, 3 and 5. 1957. May 8. The Judgment of the Court was delivered by GOVINDA MENON, J.-This application under Art. 32 of the Constitution raises the question of the companystitutionality of s. 178-A, inserted in the Sea Customs Act, VIII of 1878 , by s. 14 of the Amending Act XXI of 1955, and the chief ground on which it is sought to be struck down is that it offends Art. 14 of the Constitution. From the affidavits of both the parties to which there are annexures the following facts emerge The petitioner carries on business as a broker in diamonds and precious stones in Calcutta and, according to him, he enjoys credit and reputation in the market as a well-known and respectable broker of such goods. On May 4, 1955, the Rummaging Inspector Intelligence , Customs House, Calcutta, Respondent No. 3, armed with a search warrant from the Chief Presidency Magistrate, Calcutta, Respondent No. 4, searched the residential room of the petitioner, situated at No. 32, Sir Hariram Goenka Street, Calcutta, and after a minute search of the steel almirah in which according to the statement of the petitioner, he used to keep his stock in trade and finding numbere there questioned him as to where he had secreted the diamonds to which the 1112 reply given by him was in the negative. Thereupon a wall almirah, wherein washed clothes, and other articles were stored, was searched and therein in an old jacket 475 pieces of diamonds were discovered along with one piece of synthetic stone. A statement signed by him was taken from which we find that his explanation for the possession was that Rs. 10,000/- worth of diamonds were received by him from M s. Ratilal Amritlal, of 89 Zaveri Bazar, Bombay, and the rest were purchased locally in Calcutta. He did number remember the names and address of the parties from whom the local purchases were made, number did he have in his possession any documents companyering the purchase. Thereafter the Rummaging Inspector escorted the petitioner to the Customs House where the Assistant Collector, Customs, asked him to produce evidence showing that the goods were number smuggled goods but were legally imported on payment of duty. The Assistant Collector then permitted the petitioner to go and gave him time till May 7, 1955, to produce evidence showing that the goods were imported on payment of customs duty and under a valid import licence. On the same day, i.e., May 4, 1955, a numberice was served on the petitioner by the Customs authorities stating that there were reasonable grounds to believe that the goods seized by the Rummaging Inspector had been illegally imported into India and, therefore, before further action was taken under as. 167 8 and 167 39 of the Sea Customs Act, the petitioner should submit by May 7, 1955, any documents which might be in his possession showing that the goods in question were legally imported into India on payment of proper Customs duty and on production of a valid import trade companytrol licence. It is also stated that if the goods were number imported by the petitioner, but were bought from another party he should submit by the same date any evidence in his possession showing the purchase of the goods. In answer to this, on behalf of the petitioner Messrs. S. K. Sawday and Company, a firm of Advocates, Calcutta, wrote to the Assistant Collector, Customs, on May 7, 1955, reciting the circumstances under which the petitioner came to 1113 be in possession of the seized articles alleging that in the circumstances the presumption of an offence having been companymitted in companytravention of s. 86 of the Sea Customs Act attracting a punishment under s. 167 39 of the Sea Customs Act was unwarranted and requested to be furnished with a statement of the reasons for the seizure as soon as possible. The letter went on to request for ten days time for procuring and producing certificates etc. from the Bombay trade and Calcutta trade about the authenticity of the petitioners business. and also how he came to be in possession of the goods. Another letter was written by the same firm of Advocates on May 9, 1955, the details of which it is unnecessary to refer. On May 16, 1955, a further letter was written enclosing two certificates and companytaining further particulars. This also reiterated the request for the supply of specific reasons for the seizure. On May 23, 1955, the Assistant Collector replied to the Advocates informing them that the diamonds in question were seized on reasonable suspicions that the same had been imported into India illegally and as such were liable to seizure under the Sea Customs Act. Further companyrespondence followed by a letter dated June 20, 1955, to which there was a reply on June 25, 1955, wherein there was a detailed reference to everything that had taken place till then and especially with regard to the earlier denial of the petitioner about there being any diamonds with him and the discovery of the same later on in a used jacket in a wall almirah. This is a companyprehensive letter companytaining the justification for the proceedings taken by the search officers and finally the Assistant Collector observed that if the petitioner failed to submit a written explanation in time or did number appear before him when the case was fixed for hearing, the case would have to be decided on the basis of the evidence on the record without any further numberice On July 1, 1955, Messrs. K. Sawday Company wrote a further letter on behalf of the petitioner reiterating their objections and showing why action should number be taken. This was followed by letters dated July 4 and 20, 1955. A personal hearing was granted on July 21, 1955, followed by a letter from the Advocates 1114 dated July 22, 1955. It is unnecessary for the present to elaborate the companytents of these letters or to refer to the statement enclosed therewith from M s. Ratilal Amritlal, Bombay. The Collector of Customs thereupon, after companysidering the entire matter placed before him, passed an order dated September 12, 1955, which was dispatched on November 5, 1955, companytaining an elaborate discussion of the various facts and circumstances and finally companycluding that since the petitioner had failed to discharge the onus under s. 178-A of the Sea Customs Act in respect of the diamonds seized on May 4, 1955, orders had been passed companyfiscating the same under ss. 167 8 and 167 39 of the Sea Customs Act and that the companyfiscation would be absolute in terms of the provisions of ss. 3 2 and 4 of the Imports and Exports Control Act, 1947. The reasons given in the above order were that the subsequent statements were companytrary to what had been stated in the first instance, that at the time of the raid, an attempt was made to hide the diamonds in a suspicious manner and lastly that the petitioner was making statements which were in the nature of an afterthought, and number supported by facts. On account of these and other reasons the Collector was of the opinion that the presumption under s. 178-A had number been rebutted. The order stated that an appeal against it lay to the Central Board of Revenue within three months of the date of the dispatch and also companytained information as to the companyrt-fee stamps etc., which would have to be affixed. Without availing himself of that remedy the petitioner has companye up to this Court by way of an application for a writ under Art. 32 of the Constitution. Though Mr. Chatterjee faintly argued that the provisions of Art. 19 1 f and g and Art. 31 of the Constitution had been violated, he did number seriously press those companytentions. The main point of the attack was centered on the companytention that s. 178-A was violative of the principles of equal protection of the laws guaranteed under Art. 14 of the Constitution. Before we discuss the validity of s. 178-A, it would be useful to companysider the circumstances which led to 1115 the enactment of that statutory provision and for that purpose a brief outline of the relevant sections of the Act would be necessary. Section 19 of the Sea Customs Act, 1878, enables the Central Government by numberification in the official Gazette to prohibit or restrict importation or exportation of goods into or out of India, and s. 20 enumerates the dutiable goods. When any person imports goods into India, the owner of such goods is required, after the delivery of the manifest by the master of the vessel in which they are imported, to make an entry of the goods for home companysumption or warehousing by delivering to the Customs-collector a bill of entry companytaining particulars which shall companyrespond with the particulars given of the same goods in the manifest of the ship s. 86 . This is intended to give an idea to the Customs companylector as to whether what the owner claims is different or the same as what the master of the vessel has intimated by the delivery of the manifest. On the delivery of such a bill, if any duty is payable on such goods, the same shall be assessed and it is only after payment of the duty so assessed that the owner may proceed to clear the same s. 87 . Clearance of the goods after the payment of such duty is provided in s. 89 and if everything has been done according to law, the owner can take away the goods. Chapter XVI deals with offences and penalties and s. 167 of the same Chapter companytains three companyumns in a schedule, the first of which mentions the offence, the ,second, which does number have the force of law, gives the section of the Act to which the offence has reference and the third lays down the penalty which may be imposed. With regard to the third companyumn a distinction has to be made between the penalty to be imposed by the customs authorities and the. punishment that can be imposed by a companyrt of law for the infringement of certain provisions. Offences mentioned in entries Nos. 26, 72 and 74 to 76 both inclusive have reference to prosecution and companyviction before a Magistrate, whereas most of the others companycern penalties imposed by the Customs authorities. This distinction will be important when referring to s. 182. We are in this 1116 case companycerned with entries Nos. 8 and 39. The penalty of companyfiscation is provided in the third companyumn of entry No. 8, if any goods, the importation or exportation of which is prohibited or restricted, are imported companytrary to such prohibition or restriction. It lays down that in addition to the companyfiscation of the goods, the persons companycerned shall be liable to a penalty number exceeding three times the value of the goods, or number exceeding one thousand rupees. This Court has held that the minimum is the alternative see Maqbool Hussain v. The State of Bombay 1 . Entry No. 39 also provides for a penalty number exceeding Rs. 500 and the -confiscation of the goods if they are taken or passed out of any custom-house or wharf without an entry duly made. Smuggled goods when traced and seized companye under this category. Though the word smuggling is number defined in the Act, it must be understood as having the ordinary dictionary meaning namely carrying of goods clandestinely into a companyntry. Chapter XVII relates to searchers and recovery of smuggled goods, as well as offences, appeals, etc. Section 169 gives power to any customs officer, duly employed in the prevention of smuggling, to search any person on board of any vessel in any part in India or any person who has landed from any vessel, provided that such officer has reason to believe that such person has dutiable or prohibited goods secreted about his person. A safeguard is provided under s. 170 by which any person about to be searched may require the said officer to take him, previous to search, before the nearest Magistrate or Customs- companylector. The important factor in this case is that the person making the search or attempting to do it must have a reason to believe that such person has dutiable or prohibited goods. These two sections refer to the time at which a person brings dutiable goods into India but the later provisions of the Chapter lay down the procedure to be followed where goods have been smuggled without being detected at the port or the wharf. Power to issue search warrants is given to any Magistrate under S. 172 which is to the following effect 1 1953 S.C.R. 730,742. 1117 Any Magistrate may, on application by a Customs-collector, stating his belief that dutiable or prohibited goods or any documents relating to such goods are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods or documents . Such warrant shall be executed in the same way, and shall have the same effect, as a search-warrant issued under the law relating to Criminal Procedure. The warrant, as will be numbericed, may be issued only on the application of a Customs-collector who is a responsible senior officer and that is certainly a safeguard against indiscriminate issue of search warrants. Section 178 speaks of the seizure of goods liable to companyfiscation in any place either upon land or water by any officer of customs or any other person duly employed for the prevention of smuggling. The impugned s. 178-A companyes next which is quoted below 178-A 1 Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are number smuggled goods shall be on the person from whose possession the goods were seized. This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes and companymetics and any other goods which the Central Government may, by numberification in the Official Gazette, specify in this behalf. The presumption under s. 178-A is equally applicable to seizure as a result of a search warrant under s. 172 or seizure made under s. 178. How the things seized are to be dealt with can be seen from s. 179, and s. 181 lays down that when a seizure or arrest is made, a statement in writing of the reasons therefor should be given to the person who is arrested or from whom goods are seized. When an article is seized under ss. 172 and 178, except in cases falling under entries Nos. 26, 72 and 74 to 76 of s. 167, the companyfiscation or penalty or duty may be adjudged by the officer mentioned therein, i.e., the person from whom the articles are seized is entitled to an adjudication 1118 regarding either companyfiscation or penalty or duty. This gives the valuable right of having the adjudication of the claim made by a superior officer, and despite such adjudication if the companyfiscation is still made, under s. 188 an appeal lies from the subordinate to the Chief Customs- authority within three months from the date of such a decision. In the present case the companyfiscation was made by the Collector of Customs and an appeal lay from him to the Central Board of Revenue. Section 191 enables the Central Government on the application of any person aggrieved by any decision or order passed under this Act by an officer of Customs or Chief Customs-authority and from which numberappeal lies, to reverse or modify such decision or order. The outline of the various provisions above made shows that successive remedies are provided to an aggrieved person from whom articles have been seized and companyfiscated and the Act is a companyplete Code in itself affording redress and relief in case of illegal or unjustified orders. The genesis of s. 178-A may number be companysidered. The Central Government had appointed a companymission known as the Taxation Enquiry Commission which by its report recommended the adoption of the principles underlying s. 178-A in order to minimize smuggling. In Vol. II of their report, Chapter VII deals with administrative problems in regard to customs and Excise duties. At pp. 320 and 321 the Committee recommends the amendment of the Sea Customs Act, firstly to make smuggling a criminal offence and secondly empowering Customs officers to search premises etc. and the third recommendation is the one with which we are companycerned. It is in the following terms To transfer the onus of proof in respect of offences relating to smuggling to the person in whose possession any dutiable, restricted or prohibited goods are found. It is to implement this recommendation that s. 178-A has been enacted. Section 178-A applies to diamonds and other precious stones and there has been numberdispute about 1119 the application of this provision to the present case. On the facts mentioned above it is clear that the seizure has been under the Act in the reasonable belief of the Customs authorities that they are smuggled goods and, therefore, the burden of proving that they are number smuggled goods has been cast by this section on the persons from whose possession the goods are seized. No doubt the companytent and import of the section are very wide. It applies number only to the actual smuggler from whose possession the goods are seized but also to those who came into possession of the goods after having purchased the same after the same has passed through many hands or agencies. For example, if the Customs authorities have a reasonable belief that certain goods in the possession of an innocent party are smuggled goods and the same is seized under the provisions of this Act, then the person from whose possession the goods were seized, however innocent he may be, has to prove that the goods are number smuggled articles. This is numberdoubt a very heavy and onerous duty cast on an innocent possessor who, for aught one knows, may have bona fide paid adequate companysideration for the purchase of the articles without knowing that the same has been smuggled. The only pre-requisite for the application of the section is the subjectivity of the Customs-officer in having a reasonable belief that the goods are smuggled. A careful examination of the companytents of the somewhat lengthy petition under Art. 32 of the Constitution does number show how the impugned section offends Art. 14, and numberdistinct and separate ground is taken about its unconstitutionality, but Mr. Chatterjee argues that the burden of proof enunciated therein is opposed to fundamental principles of natural justice, as it gives an unrestricted arbitrary and naked power to the customs authorities without laying down any standard or numberm to be followed for exercising powers under the section. What is urged is that whereas under the ordinary law the burden of proof in matters like this is on the party who sets up a particular case, under the section that process is inverted and the 1120 burden is cast on the possessor of the article to show that it was imported into India with a proper bill of entry and after paying the proper custom duty due. As stated already, it is a heavy burden to be laid upon the shoulders of an innocent purchaser who might have companye into possession after the article has changed many hands and this, it is alleged, invokes discrimination between him and other litigants and deprives him of the equal protection of the law guaranteed by Art. 14 of the Constitution. A large number of cases have been cited at the Bar in support of the respective companytentions of the parties. The true nature, scope and effect of Art. 14 of the Constitution have been explained by different companystitutional Benches of this Court in a number of cases, namely, Chiranjit Lal Chowdhury v. The Union of India and Others 1 , The State of Bombay and Another v. F. N. Balsara 2 , The State of West Bengal v. Anwar Ali Sarkar 3 , Kathi Raning Rawat v. The State of Saurashtra 4 , Lachmandas-Kewalram Ahua and another v. The State of Bombay 5 , Syed Qasim Razvi v. The State of Hyderabad and Others 6 , Habeeb Mohammad v. The State of Hyderabad 6 and V. M. Syed Mohammed and Company v. The State of Andhra 7 , but it will number be necessary for us to enter upon a lengthy discussion of the matter or to refer to passages in those judgments, for the principles underlying the provisions of the Article have been summarised by a Full Bench of this Court in Budhan Chaudhury and Others v. The State of Bihar 9 in the following terms It is number well established that while Art. 14 forbids class legislation, it does number forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of per omissible classification two companyditions must be fulfilled, namely 1 that the classification must be founded on an intelligible differential which distinguishes persons or things that 1 1950 S.C.R. 869, 2 1951 S.C.R. 682. 3 1952 S.C.R. 284. 4 1952 S.C.R. 435. 5 1952 S.C.R. 710. 6 1953 S.C.R. 591. 7 1953 S.C.R. 661. 8 1954 S.C. R. 117. 9 1955 1 S.C.R. 1045 at p. 1048-1049. 1121 are grouped together from others left out of the group and that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under companysideration. It is also well established by the decisions of this Court that Art. 14 companydemns discrimination number only by a substantive law but also by a law of procedure. The principle thus enunciated has been adopted and applied by this Court in Purshottam Govindji Halai v. Shri B. M. Desai 1 and in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti and another 2 . Mr. N. C. Chatterjee appearing for the petitioner has referred us to several decisions of the Supreme Court of America, such as William McFerland v. American Sugar Refining Co. 3 , W. D. Manley v. State of Georgia 4 and Tot v. United States 5 . It appears to us that these decisions really turn upon the due process clause of the American Federal Constitution and cannot help in the companystruction of the equal protection clause of our Constitution. The companytentions urged by Mr. Chatterjee as to the unconstitutionality of s. 178-A of the Sea, Customs Act, 1878, will, therefore, have to be tested in the light of the principles laid down by this Court in Budhan Chowdhurys case supra . A cursory perusal of s. 178-A will at once disclose the well defined classification of goods based on an intelligible differentia. It applies only to certain goods described in sub-s. 2 which are or can be easily smuggled. The, section applies only to those goods of the specified kind which have been seized under the Act and in the reasonable belief that they are 1 1955 2 S.C.R. 889, 898-899. 2 1955 2 S-C.R. 1996, 1229. 3 1916 241 U.S. 79 6o L. Ed. 899. 4 1929 279 U.S.I 73 L. Ed. 575. 5 1943 319 U.S. 463 87 L. Ed. 1519. 1122 smuggled goods. It is only those goods which answer the threefold description that companye under the operation of the section. The object of the Act is to prevent smuggling. The differentia on the basis. of which the goods have been classified and the presumption raised by the section obviously have a rational relation to the object sought to be achieved by the Act. The presumption only attaches to goods of the description mentioned in the section and it directly furthers the object of the Act, namely, the prevention of smuggling, and that being the position the impugned section is clearly within the principle enunciated above, number hit by Art. 14. The impugned section cannot be struck down on the infirmity either of discrimination or illegal classification. Confining as it does to certain classes of goods seized by the customs authorities on the reasonable belief that they are smuggled goods, there is only a presumption which can be rebutted. In these circumstances, there can be numberdoubt whatever that s. 178-A does number offend Art.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION. Civil Appeal No. 52 of 1954. Appeal by Special Leave granted by this Court on the 25th January, 1954, from Judgment and Order dated the 23rd May, 1953, of the Election Tribunal, Himachal Pradesh, Simla, in Election Petition No. 14 of 1952. Hardayal Hardy and R. C. Prasad for the appellant. Ved Vyas S. K. Kapur and Naunit Lal, with him for respondent No. 1. 1954. May 25. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This is an appeal against the order of the Election Tribunal, Himachal Pradesh, dismissing Election Petition No. 14 of 1952. On 12th October, 1951, five candidates respondents 1 to 5 herein were duly numberinated for election to the Legislative Assembly of the State of Himachal Pradesh for the Rohru Constituency in Mahasu District. The polling took place on 23rd November, 1951, and on 30th November, 195 1, the first respondent was declared elected, he having secured the largest number of votes. The result was published in the Official Gazette on 20th December, 1951. On 14th February, 1952, one of the unsuccessful candidates, Gyan Singh, fifth respondent herein filed Election Petition No. 14 of 1952 challenging the validity of the election of the first respondent. On 4th August, 1952, he applied to withdraw from the petition, and that was permitted by an order of the Tribunal dated 20th September, 1952. The appellant, who is one of the electors in the Rohru Constituency, then applied to be brought on record as the petitioner, and that was ordered on 21st November, 1952. The petition was then heard on the merits. Though a number of charges were pressed -at the trial, only two of them are material for the purpose of the present appeal 1 that Sri Padam Dev was interested in companytracts for the supply of Ayurvedic medicines to the Government, and was therefore disqualified for being chosen to the Assembly under section 7 d of Act No. XLIII of 1951 and 2 that he had procured the assistance of Government servants for the furtherance of his election prospects, and had thereby companytravened section 123 8 of that Act. The facts giving rise to this companytention were that one Daulataram had subscribed in the numberination paper of Sri Padam Dev as proposer and one Motiram as seconder, both of them being Government servants employed in the post office, and,that one Sital Singh, an extra-departmental agent, was appointed by Sri Padam Dev as one of his polling agents at a booth at Arhal. By its judgment dated 25th September, 1953, the Election Tribunal held firstly that section 7 d of Act No. XLIII of 1951 had number been made applicable to elections in Part C States, and that further there was numberproof that on 12th October, 1951, the date of numberination, there were companytracts subsisting between Sri Padam Dev and the Government. With reference to the charge under section 123 8 , the Tribunal held by a majority that the section did number prohibit Government servants from merely proposing or seconding numberination papers, and that it had number been proved that Daulataram and Motiram did anything beyond that. As regards Sital Singh, while two of the members took the view that section 123 8 did number prohibit the appointment of a Government servant as polling agent, the third member was of a different opinion. But all of them companycurred in holding that this point was number open to the petitioner, as it had number been specifically raised in the petition. In the result, the petition was dismissed. It is against this judgment that the present appeal has been brought by special leave, The first question that arises for determination is whether Sri Padam Dev was disqualified for being chosen to the Legislative Assembly by reason of his having held at the material dates companytracts for the supply of Ayurvedic medicines to the Himachal Pradesh State Government. The answer to it must depend on the interpretation of the relevant provisions of Act No. XLIX of 1951, which governs elections to the Legislative Assemblies in Part C States. Section 17 which deals with disqualifications runs as follows A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly of a State, if he is for the time being disqualified for being chosen as, and for being, a member of either House of Parliament under any of the provisions of article 102. Article 102 of the Constitution which becomes incorporated in the section by reference is as follows 102. 1 A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-- a if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law number to disqualify its holder b if he is of unsound mind and stands so declared by a companypetent companyrt c if he is an undischarged insolvent d if he is number a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State - e if he is so disqualified by or under any law made by Parliament. We are companycerned in this appeal only with article 102 1 e . The companytention of the appellant is that Act No. XLIII of 1951 being a law made by Parliament, the disqualifications laid down under section 7 therein would fall within article 102 1 e and would under section 17 of Act No. XLIX Of 1951 be attracted to elections held under that Act, The respondent attempted several answers to this companytention. He firstly companytended that as Act No. XLIII of 1951 did number proprio vigore apply to elections in Part C States, he was number a person disqualified by or under the terms of that law as required by article 102 1 e , and that therefore he was number hit by section 17. Though this companytention might, at first thought, sound plausible, a closer examination of the language of section 17 shows that this is number its true import. The section does number enact that persons who are disqualified under a law made by Parliament shall be disqualified to be chosen under the Act. What it does enact is that if a person would be disqualified to be chosen to either House under an Act of Parliament, he would be dis- qualified to be chosen for the State Assembly. In other words, what would be a disqualification for a candidate being chosen to either House would be a disqualification to be chosen to the State Legislature. In this view, it is of numberconsequence that the candidate was number disqualified under section 7 d by its own force. It was next companytended that whatever interpretation section 17 might be susceptible of if it had. stood alone, read in companyjunction with section 8 of Act No. XLIX of 1951 it must be companystrued as excluding section 7 d of Act No. XLIII of 1951. Section 8 of Act No. XLIX of 1951 enacts that Parts I and III to XI of Act No. XLIII of 1951 and the rules made thereunder apply to all elections under the Act, subject to such modifications as the President might direct. Section 7 occurs in Part II of Act No. XLIII of 1951, and that is number one of the parts extended under section 8. The argument is that section 7 having been omitted by design from the sections made applicable, the Legislature must be taken to have intended that it should number apply to elections held under the Act, and that section 17 should accordingly be so companystrued as number to defeat that intention. Reliance was placed on the well-known rules of companystruction that the provisions of a statute should be read in such manner as to give effect to all of them, and so as to avoid inconsistency and repugnancy. Both the sections can be given their full effect, it was argued, by holding that by reason of the number-inclusion of Part II under section 8, section 7 of Act No. XLIII of 1951 was inapplicable, and that, subject to that, the other provisions enacted by Parliament would apply under section 17. But this argument fails to take into account the scheme underlying Act No. XLIX of 1951. The framers of that Act wanted to enact a companyprehensive companye of election law for Part C States. They had before them Act No. XLIII of 1951, and they had to decide how much of it they would adopt. Part I of Act No. XLIII of 1951 companysists only of short title and the interpretation section, and that was adopted in Act No. XLIX of 195 1. Part II of Act No. XLIII of 1951 deals with qualifications and disqualifications for membership. That subject is dealt with in sections 7 and 17 of Act No. XLIX of 1951. Section 7 sets out the qualifications and section 17, the disqualifications. It may also be numbered that while disqualification for being chosen to either House of Parliament is laid down as a disqualification under section 17 the electoral roll for Parliament is to be taken under section 6 as the electoral roll for election to the State Assembly for the companycerned area. These. provisions companyer the very ground companyered by Part 11, and therefore there was numberneed to extend any portion of it under section 8. Parts III to XI deal with the actual election from the companymencement of the numberification through all its stages and matters companynected therewith, and they have been adopted en bloc in Act No. XLIX of 195 1. That being the general scheme, it is number possible to read into the omission of Part 11 under section 8, an intention that the disqualifications mentioned in section 7 should number apply to elections held under the Act. Nor is there any inconsistency between section 8 which passively omits Part II, and section 17 which positively enacts that what would be a disquali- fication under article 102 would be a disqualification for the purpose of this Act. A good deal of argument was addressed to us based on the substantial identity of the language of section 17 with that of section 1 1 of Act No. XLIII of 195 1, which also occurs in Part II, which companytains section 7. The companytention is that if section 7 of Act No. XLIII of 1951 companyld be companystrued as companyprised in section 17 of Act No. XLIX of 1951, it should also be held to have been companyprised in section 1 1 of Act No. XLIII of 195 1, in which case, there was numberneed to enact two provisions in the same Act, one overlapping the other. The simpler thing, it was argued, would have been to. include section 1 1 in section 7 or vice versa. All this difficulty companyld be avoided, according to the respondent, if the reference to article 102 in section 11 is interpreted as limited to article 102 1 clauses a to d and number as including article 102 1 e , in which case the same companystruction should logically be adopted for section 17. But this reasoning is inconclusive, because the scope of section 7 and that of article 102 which is incorporated by reference in section 11 are different. It must further be numbered that section 1 1 occurs in a Chapter which deals exclusively with qualifications and disqualifications for membership to electoral companylege in Part C States. It is therefore number possible to draw any inference from the number-inclusion of section 7 in section 11 or vice versa. On the. other hand, the companystruction companytended for by the respondent would give numbermeaning to the words disqualified for being chosen as a member of either House of Parliament in section 17. The result is that the qualifications laid down in section 7 of Act No. XLIII of 1951 must be held to be companyprised within section 17 of the Act. It was then companytended that even on the footing that section 7 of Act No. XLIII of 1951 was companyprised in section 17 of Act No. XLIX of 195 1, the respondent was number disqualified because under section 7 d it would be a disqualification only if the candidate had entered into companytracts with the appropriate Government, and under section 9 1 a appropriate Government would mean, in relation to any disqualification for being chosen to either House of Parliament, II the. Central Government, and in relation to any disqualification for being chosen to the Legislative Assembly or Legislative Council, the State Government. It was argued that adopting the test that what would be a disqualification for being a member of either House of Parliament under article 102 would under section 17 be a disqualification for being chosen to the State Assembly, to operate as a disqualification the companytract must be with the Central Government, that in the present case, the companytracts, if any, were with the Himachal Pradesh State Government, and that therefore the respondent was number a person who would be disqualified for being elected to either House, and would in companysequence be number disqualified for being elected to the State Legislative Assembly. The appellant did number dispute the companyrectness of this position. He companytended that, as a matter of law, the companytracts of Sri Padam Dev were with the Central Government, and that therefore he would be disqualified under the terms of section 7 d read with section 9. The basis for this companytention is article 239 of the Constitution, which enacts that the States specified in Part C shall be administered by the President through a Chief Commissioner or Lieutenant- Governor to be appointed by him. Reference was also made to article 77, which provides that all executive action of the Government of India shall be expressed to be taken in the name of the President. The argument is that the executive action of the Central Government is vested in the President, that the President is also the executive head of Part C States, and that, therefore, the companytracts entered into with Part C States, are, in law, companytracts entered into with the Central Government. The fallacy of this reasoning is obvious. The President who is the executive head of the Part C States is number functioning as the executive head of the Central Government, but as the head of the State under powers specifically vested in him under article 239. The authority companyferred under article 239 to administer Part C States has number the effect of companyverting those States into the Central Government. Under article 239, the President occupies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States. Though the Part C States are centrally administered under the provisions of article 239, they do number cease to be States and become merged with the Central Government. Articles 240 and 241 provide for Parliament enacting laws for establishing legislative, executive and judicial authorities for those States, and Act No. XLIX of 1951 was itself enacted under the power companyferred under article 240. Section 38 2 - of that Act provides that all executive action of the State shall be expressed to be taken in the name of the Chief Commissioner. It will be seen that while the executive action of the Central Government is to be taken under article 77 in the name of the President, that of Part C States is to be taken under section 38 2 , in the name of the Chief Commissioner. Thus, there is numberbasis for the companytention that companytracts with Part C States are to be companystrued as companytracts with the Central Government. Nor has the appellant established as a fact that there were any companytracts between Sri Padam Dev and the Central Government. The records only show that the dealings were with the Chief Commissioner, who was in charge of the administration of the State of Himachal Pradesh. The companytention of the appellant that the companytracts of Sri Padam Dev were with the Central Government cannot be supported either in law or on facts. It may seem anomalous that while under sections 7 d and 9 1 of Act No. XLIII of 1951 a companytract with the State would operate as a disqualification for being chosen to the State Legislature and a companytract with the Central Government would operate as a disqualification for being chosen to either House of Parliament, the respondent should be held to be number disqualified for election to the State Legislature when he holds a companytract with the State Government. But that is- because section 7 d was number in terms extended to elections in Part C States, and came in only with the qualifications mentioned in section 17. In this view, the further question whether Sri Padam Dev held companytracts with the Government at the material dates is only of academic interest. Counsel for the appellant argued that the statements of law by the Election Tribunal forming the foundation of its companyclusion were in many respects erroneous, and that its findings must therefore be rejected. Thus, it is stated by the Tribunal that a companytract companyld number be held to be subsisting if goods had been delivered thereunder, even though the price there for remained due and payable. This is opposed to the view taken by this Court since, in Chatturbhuj Vithaldas v. Moreshwar Parashram Then again, the Tribunal proceeds on the view that a candidate would be disqualified only if there was a companytract subsisting at the date of the numberination. But it was observed in Chatturbhuj Vithaldas v. Moreshwar Parashram 1 that the disqualifications would apply during the whole of the period companymencing with the numberination and ending with the declaration of the election. But these errors have number, in fact, affected the companyrectness of the companyclusions. With reference to the Mandi companytract the finding is that goods had been supplied and price received in September, 1951. As regards the Mahasu companytract, the Government placed the order with the respondent on 19th November, 195 1, and the goods were supplied in December, 1951, and January, 1952. It must be mentioned that the stand taken by the appellant himself before the Tribunal was that the crucial date for determining whether there was a subsisting companytract was 12th October, 1951, the date of numberination, and if the evidence is number precise as to when the goods were supplied, it was a situation for which he himself was responsible. It was on the Sirmur companytract that the appellant laid the greatest emphasis. In this case, the order was placed by the Government on 25th September, 1951, and the goods were actually supplied on 1st December, 1951. The appellant relied on certain, letters and a telegram which were sent on behalf of the respondent on 31st October, 1951, 27th November, 1951, and 30th November, 1951, as amounting to an acceptance of the companytract. But numbersuch point was taken before the Tribunal where it was admitted that the material date was 12th October, 1951. As the question is one of fact, the appellant cannot be permitted at this stage to start a new and inconsistent. case, and companytend that there was an acceptance of the companytract in October or November, 1951. It was further argued that even on the footing that there was acceptance of the companytract when the goods were dispatched on 1st December, 1951, that was sufficient to disqualify the respondent, as the terminus ad quo of the period during which the A.I.R. 1954 S.C. 236. disqualification was operative was number the date of dec- laration which was 30th November, 1951, but the date of the publication thereof in the Gazette, which was 20th December, 1951. It may be companyceded in favour of the appellant that the observation of this Court in Chatturbhuj Vithaldas v. Moreshwar Parashram 1 that the material period starts with the numberination and ends with the announcement was number a decision on the point. as it proceeded on an agreed statement of companynsel on both sides. But as the appellant companyceded before the Tribunal that the material date was the date of numberination and the entire trial proceeded on that basis, it is too late for him number to change his front and companytend that the material date is 20th December, 1951. It remains to companysider the companytention that Sri Padam Dev had procured the assistance of Government servants, and had thereby brought himself within the mischief of section 123 8 . The main objection before the Tribunal under this heading related to the subscribing of the numberination paper by Daulataram as proposer and Motiram as seconder. This question has since been decided adversely to the appellant in a recent decision of this Court reported in Rai Krushna Bose v. Binod Kanungo 2 , where it was held that section 33 2 companyferred the privilege of proposing or seconding a candidate on any person who was registered in the electoral roll, and that section 123 8 companyld number be companystrued as taking away that privilege. This objection must, therefore, be overruled. Then there is the question whether the appointment of Sital Singh as polling agent companytravened section 123 8 . The majority of the Tribunal was of the opinion that the appointment of a Government servant as polling agent was number by itself objectionable, but the third member thought otherwise. They, however, agreed in deciding the point against the appellant on the ground that it had number been expressly raised in the petition. It was argued for the appellant that as it was admitted at the trial that Sital Singh was appointed polling agent, the point was open to him as it was a A.I.R. 1954 S.C. 236. 2 1954 S.C.J. 286, pure question of law. As the facts are admitted, and the question itself has been companysidered by the Tribunal, and as the point is one of companysiderable practical importance, we have heard arguments on it. Section 46 of Act No. XLIII of 1951 empowers a candidate toappoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station. Rule 12 of the Representation of the People Con duct of Elections and Election Petitions Rules, 1951, prescribes the formalities to be observed in the appointment of such agents, and Form 6 framed thereunder provides for the polling agent signing a declaration that he would do numberhing forbidden by section 128. That -section enjoins that every agent shall maintain and aid in maintaining the secrecy of the voting. Thus, there is numberhing in the Act or in the rules barring the appointment of a Government servant as a polling agent. And on the reasoning adopted in Raj Krushna Bose v. Binod Kanungo 1 with reference to section 33 2 , the companyclusion must follow that such appointment does number per se companytravene section 123 8 . Nor is there anything in the nature of the duties of a polling agent, which necessarily brings him within the prohibition enacted in that section. The duty of a polling agent is merely to identify the voter, and that companyld number by itself and without more, be said to further the election prospects of the candidate. So long as the polling agent companyfines himself to his work as such agent of merely identifying the voters, it cannot be said that section 123 8 has, in any manner, been infringed. It is argued for the appellant that leaving aside the world of theories and entering into the realm of practical politics, the appointment of a Government servant as polling agent by one of the candidates must result in the dice being loaded heavily against the other candidate, and that situations might be companyceived in which the presence of a Government servant of rank and importance as polling agent of one of the candidates might prove to be a source of unfair election practices. But if that is established, and if it is made out that the 1 1954 S.C.J. 286. candidate or his agent had abused the right to appoint a Government servant as polling agent by exploiting the situation for furthering his election prospects, then the matter can be dealt with as an infringement of section 123 8 . But the question which we have got to decide is whether as an abstract proposition of law the mere appointment of a Government servant as a polling agent is in itself and without more an infringement of section 123 8 . Our answer is in the negative. In the present case, the finding is that beyond acting as polling agent Sital Singh did numberhing. Nor is there any finding that the respondent in any manner availed himself of his presence at the polling booth to further his own election prospects. Thus there are numbergrounds for holding that section 123 8 had been companytravened.

Case appeal was rejected by the Supreme Court

Bose, J. This is a petition under article 32 of Constitution and raises the same question on the merits as in the companynected summons case in which we have just delivered judgment. The facts will be found there. In the present matter it is enough to say that numberquestion arises about the breach of a fundamental right. But as a matter touching the jurisdiction of the Bar Council Tribunal and that of the Bombay High Court was argued, we will deal with it shortly. Mr. Gs first objection is that the proceedings before the Tribunal were ultra vires because there was numberproper order of appointment. At a very early stage he applied to the Registrar and also to the Prothonotary for a companyy of the order of the Chief Justice companystituting the Tribunal. He was told by the Prothonotary that the order was oral. Mr. G put in two written statements before the Tribunal and did number challenge this statement of fact in either. He companytented himself with saying that the order was number judicial and so was number valid. He took up the same attitude in the High Court. The learned Judges said - The record clearly shows that when it came to the numberice of this Court it was decided to refer this case to the Bar Council under section 10 2 and accordingly a Tribunal was appointed under section 11 1 by the learned Chief Justice of this Court. In his petition to this Court he did number challenge this statement of fact but again companyfined his attack to the question of the validity of the order. It is evident from all this that the fact that an oral order was made was number challenged. We cannot allow Mr. G to go behind that. The next question is whether an oral order is enough Bar Councils Act does number lay down any procedure. All it says is - Section 10 2 the High Court may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty. and section 11 2 says - The Tribunal shall companysist of number less than three members of the Bar Council appointed for the purpose of the inquiry by the Chief Justice. We agree it is necessary that there should be some record of the order on the files but, in our opinion, the order itself need number be a written one it can be an oral order given to a proper officer of the Court. In the present case, the letter No. G-1003 dated 29th April, 1953, of the Prothonotary to the Registrar and the letter No. E. 41-09/53 dated the 1st May, 1953, of the Registrar to the Bar Council office companyies of which were retained on the files are a sufficient record of the making of the order. Mr. G was supplied with companyies of these letters and so was aware of the fact that orders has been issued. As a matter of fact, we have seen the originals of the High Courts office files and find that the names of the three members of the Tribunal are in the Chief Justices handwriting with his initials underneath. That is an additional record of the making of the order. We hold that an order recorded in the manner set out above is sufficient for the purposes of section 10 2 and 11 2 of the Bar Councils Act and hold that the Tribunal was validity appointed. Mr. Gs next point is that there was numbercomplaint to the High Court and so it had numberjurisdiction to refer the matter to the Tribunal. This ignores the fact that the High Court can refer a matter of this kind of its own motion under section 10 2 of the Bar Councils Act. We have dealt with the merits in the companynected case.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 31 of 1953. Under article 132 1 of the Constitution of India from the Judgment and Order dated 20-1-1953 of the High Court of Judicature at Bombay in Criminal Revision Application No. 642 of 1952, C. Dalal and P. K. Chatterjee for the appellant. C. Setalvad, Attorney-General of India P. A. Mehta and P. G. Gokhale, with him for the respondent. 1954. October 8. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This is an appeal against the judgment of the High Court of Bombay dismissing a revision petition filed by the appellant against his companyviction under section 7 of the Essential Supplies Temporary Powers Act No. XXIV of 1946. The charge against the appellant was that on 6th April, 1951, he had transported 15 maunds of juwar from his village of Khanjroli to Mandvi without a permit, and had thereby companytravened section 5 1 of the Bombay Food Grains Regulation of Movement and Sale Order, 1949. The Resident First Class Magistrate of Bardoli who tried the case found him guilty, and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 500. The companyviction and sentence were both affirmed by the Sessions Judge, Surat, on appeal. The appellant thereafter took up the matter in revision to the High Court of Bombay, and there for the first time, took the objection that the Resident First Class Magistrate had numberjurisdiction to try the case, because under section 2 of the Bombay Act No. XXXVI of 1947 the offence was punishable with imprisonment, which might extend to seven years, and under the Second Schedule to the Criminal Procedure Code, it was only the Sessions Court that had jurisdiction to try such offence. The answer of the State to this companytention was that subsequent to the enactment of the Bombay Act No. XXXVI of 1947, the Essential Supplies Temporary Powers Act bad undergone substantial alterations, and was finally recast by the Central Act No. LII of 1950 that the effect of these amendments was that Act No. XXXVI of 1947 had become inoperative, that the governing Act was Act No. LII of 1950, and that as under that Act the maximum sentence for the offence in question was three years, the Resident First Class Magistrate had jurisdiction over the offence. The revision petition was heard by a Bench companysisting of Bavdekar and Chainani JJ. Bavdekar J. was of the opinion that the amendments to the Essential Supplies Temporary Powers Act including the re-enactment of section 7 in Act No. LII of 1950 did number trench on the field companyered by the Bombay Act No. XXXVI of 1947, which accordingly remained unaffected by them. Chainani J., on the other hand, held that both Act No. XXXVI of 1947 and Act No. LII of 1950 related to the same subject-matter, and that as Act No. LII of 1950 was a Central legislation of a later date, it prevailed over the Bombay Act No. XXXVI of 1947. On this difference of opinion, the matter came up under section 429, Criminal Procedure Code, for hearing before Chagla C. J., who agreed with Chainani J, that there was repugnancy between section 7 of Act No. LII of 1950 and section 2 of the Bombay Act No. XXXVI of 1947, and that under article 254 2 , the former prevailed and the revision petition was accordingly dismissed. Against this judgment, the present appeal has been preferred on a certificate under article 132 1 , and the point for determination is whether companytravention of section 5 1 of the Bombay Food Grains Regulation of Movement and Sale Order, 1949, is punishable under section 2 of the Bombay Act No. XXXVI of 1947, in which case the trial by the Resident First Class Magistrate would be without jurisdiction or whether it is punishable under section 7 of the Essential Supplies Temporary Powers Act, as amended by Act No. LII of 1950, in which case, the trial and companyviction of the appellant by that Magistrate would be perfectly legal. It is number necessary to refer in chronological sequence to the statutes bearing on the question. We start with the Essential Supplies Temporary Powers Act No. XXIV of 1946 enacted by the Central Legislature by virtue of the powers companyferred on it by 9 and 10, George VI, Chapter 39. It applied to the whole of British India. Section 3 of the Act companyferred power on the Central Government to issue orders for regulating the production, supply and distribution of essential companymodities, and under section 4, this power companyld be delegated to the Provincial Government. Section 7 1 provided for punishment for companytravention of orders issued under the Act, and ran as follows If any person companytravenes any order made under section 3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both, and if the order so provides any Court trying such companytravention may direct that any property in respect of which the Court is satisfied that the order has been companytravened shall be forfeited to His Majesty Provided that where the companytravention is of an order relating to foodstuffs which companytains an express provision in this behalf, the Court shall make such direction, unless for reasons to be recorded in writing it is of opinion that the direction should number be made in respect of the whole or as the case may be, a part of the property. The State of Bombay companysidered that the maximum punishment of three years imprisonment provided in the above section was number adequate for offences under the Act, and with the object of enhancing the punishment provided therein, enacted Act No. XXXVI of 1947. Section 2 of the said Act provided omitting what is number material for the present purpose that Notwithstanding anything companytained in the Essential Supplies Temporary Powers Act, 1946, whoever companytravenes an order made or deemed to be made under section 3 of the said Act shall be punished with imprisonment which may extend to seven years, but shall number, except for reasons to be recorded in writing, be less than six months, and shall also be liable to fine. This section is avowedly repugnant to section 7 1 of the Essential Supplies Temporary Powers Act. Section 107 2 of the Government of India Act, which was the Constitution Act then in force, enacted that, Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List companytains any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the Provincial law having been reserved for the companysideration of the Governor-General has received the assent of the Governor-General, the Provincial law shall in that Province prevail, but nevertheless the Dominion Legislature may at any time enact further legislation -with respect to the same matter. On the footing that the subject-matter of Act No. XXXVI of 1947 fell within the Concurrent List, the Bombay Government obtained the assent of the Governor-General therefor, and thereafter it came into force on 25th November, 1947. The position therefore was that by reason of section 107 2 of the Government of India Act, Act No. XXXVI of 1947 prevailed in Bombay over section 7 of the Essential Supplies Temporary Powers Act but at the same time, it was subject under that section to all and any further legislation with respect to the same matter, that might be enacted by the Central Legislature. The companytention of the State is that there was such further legislation by the Central Legislature in 1948, in 1949 and again in 1950, and that as a result of such legislation, section 2 of the Bombay Act No. XXXVI of 1947 had become inoperative. In 1948 there was an amendment of the Essential Supplies Temporary Powers Act, whereby the proviso to section 7 1 was repealed and a new proviso substituted, which provided inter alia that, Where the companytravention is of an order relating to foodstuffs which companytains an express provision in this behalf, the Court shall direct that any property in respect of which the order has been companytravened shall be forfeited to His Majesty, unless for reasons to be recorded in writing it is of opinion that the direction should be made number in respect of the whole, or as the case may be, a part of the property. The Essential Supplies Temporary Powers Act was again amended in 1949. Under this amendment, the proviso to section 7 i was repealed, and a new clause substituted in the following terms Where the companytravention is of an order relating to foodstuffs, the Court shall i sentence any person companyvicted of such companytravention to imprisonment for a term which may extend to three years and may, in addition, impose a sentence of fine, unless for reasons to be recorded, it is of opinion that a sentence of fine only will meet the ends of justice and direct that any property in respect of which the order has been companytravened or a part thereof shall be forfeited to His Majesty, unless for reasons to be recorded it is of opinion that such direction is number necessary to be made in respect of the whole, or, as the case may be, a part of the property. Then came Central Act No. LII of 1950, under which the old section 7 was repealed and a new section enacted in the following terms If any person companytravenes any order under section 3 relating to companyton textiles he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine and any property in respect of which the order has been companytravened or such part thereof as to the Court may seem fit shall be forfeited to the Government. If any person companytravenes any order under section 3 relating to foodstuffs,-- a he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine, unless for reasons to be recorded the Court is of opinion that a sentence of fine only will meet the ends of justice and b any property in respect of which the order has been companytravened or such part thereof as to the Court may seem fit shall be forfeited to the Government, unless for reasons to be recorded the Court is of opinion that it is number necessary to direct forfeiture in respect of the whole or, as the case may be, any part of the property Provided that where the companytravention is of an order prescribing the maximum quantity of any foodgrain that may lawfully be possessed by any person or class of persons, and the person companytravening the order is found to have been in possession of foodgrains exceeding twice the maximum quantity so prescribed, the Court shall- a sentence him to imprisonment for a term which may extend to seven years and to a fine number less than twenty times the value of the foodgrain found in his possession, and b direct that the whole of such foodgrain in excess of the prescribed quantity shall be forfeited to the Government. Explanation-A person in possession of foodgrain which does number exceed by more than five maunds the maximum quantity so prescribed shall number be deemed to be guilty of an offence punishable under the proviso to this sub-section. If any person companytravenes any order under section 3 relating to any essential companymodity other than companyton textiles and food-stuffs, he shall be punishable with imprisonment for a term which may extend to three years, or with fine or with both, and if the order so provides, any property in respect of which the Court is satisfied that the order has been companytravened may be forfeited to the Government. If any person to whom a direction is given under sub- section 4 of section 3 fails to companyply with the direction, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. It must be mentioned that while the amendments of 1948 and 1949 were made when section 107 2 of the Government of India Act was in force, the Constitution of India Act had companye into operation, when Act No. LII of 1950 was enacted. Article 254 2 of the Constitution is as follows Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the Concurrent List companytains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall,, if it has been reserved for the companysideration of - the President and has received his assent, prevail in that State Provided that numberhing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. This is, in substance, a reproduction of section 107 2 of the Government of India Act, the companycluding portion thereof being incorporated in a proviso with further additions. Discussing the nature of the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, in a situation similar to that under section 107 2 of the Government of India Act, it was observed by Lord Was on in Attorney-General for Ontario v. Attornery- General for the Dominion 1 , that though a law enacted by the Parliament of Canada and within its companypetence would override Provincial legislation companyering the same field, the Dominion Parliament bad numberauthority companyferred upon it under the Constitution to enact a statute repealing directly any Provincial statute. That would appear to have been the position under section 107 2 of the Government of India Act with reference to the subjects mentioned in the Concurrent List. Now, by the proviso to article 254 2 the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature companyld number under section 107 2 of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can, acting under the proviso to article 254 2 , repeal a State law. But where it does number expressly do so, even then, the State law will be void under that provision if it companyflicts with a later law with respect to the same matter that may be enacted by Parliament. In the present case, there was numberexpress repeal of the Bombay Act by Act No. LII of 1950 in terms of the proviso to article 254 2 . Then the only question to be decided is whether the amendments made to the Essential Supplies Temporary Powers Act by the Central Legislature in 1948, 1949 and 1950 are furthers 1 1896 A.C. 348. legislation falling within section 107 2 of the Government of India Act or law with respect to the same matter falling within article 254 2 . The important thing to companysider with reference to this provision is whether the legislation is in respect of the same matter. If the later legislation deals number with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a companynate and allied character, then article 254 2 will have numberapplication. The principle embodied in section 107 2 and article 254 2 is that when there is legislation companyering the same ground both by the Centre and by the Province, both of them being companypetent to enact the same, the law of the Centre should prevail over that of the State. Considering the matter from this standpoint, the first question to be asked is, what is the subject-matter of the Bombay Act No. XXXVI of 1947? The preamble recites that it was to provide for the enhancement of penalties for companytravention of orders made under the Essential Supplies Temporary Powers Act, 1946. Then the next question is, what is the scope of the subsequent legislation in 1948, 1949 and 1950 ? As the offence for which the appellant has been companyvicted was companymitted on 6th April, 1951, it would be sufficient for the purpose of the present appeal to companysider the effect of Act No. LII of 1950, which was in force on that date. By that Act, section 7 1 of the Essential Supplies Temporary Powers Act as passed in 1946 and as amended in 1948 and 1949 was repealed, and in its place, a new section was substituted. The scheme of that section is that for purposes of punishment, offences under the Act are grouped under three categories-,those relating to companyton textiles, those relating to foodstuffs, and those relating to essential companymodities other than textiles or foodstuffs. The punishments to be imposed in the several categories are separately specified. With reference to foodstuffs, the punishment that companyld be awarded when the offence companysists in possession of foodgrains exceeding twice the maximum prescribed is imprisonment for a term which may extend to seven years, with further provisions for fine and forfeiture of the companymodities. In other cases, there is the lesser punishment of imprisonment, which may extend to three years. Section 7 is thus a companyprehensive companye companyering the entire field of punishment for offences under the Act, graded according to the companymodities and to the character of the offence. The subject of enhanced punishment that is dealt with in Act No. XXXVI of 1947 is also companyprised in Act No. LII of 1950, the same being limited to the case of hoarding of foodgrains. We are, therefore, entirely in agreement with the opinion of Chagla J. and Chainani J. that Act No. LII of 1950 is a legislation in respect of the same matter as Act No. XXXVI of 1947. Bavdekar J. who came to the companytrary companyclusion observed, a-.id quite companyrectly, that to establish repugnancy under section 107 2 of the Government of India Act, it was number necessary that one legislation should say do what the other legislation says dont, and that repugnancy might result when both the legislations companyered the same field. But he took the view that the question of enhanced penalty under Act No. XXXVI of 1947 was a matter different from that of punishment under the Essential Supplies Temporary Powers Act, and as there was legislation in respect of enhanced penalty only when the offence was possession of foodstuffs in excess of twice the prescribed quantity, the subject-matter of Act No. XXXVI of 1947 remained untouched by Act No. LII of 1950 in respect of other matters. In other words, he companysidered that the question of enhanced punishment under Act No. XXXVI of 1947 was a matter different from that of mere punishment under the Essential Supplies Temporary Powers Act and its amendments and in this, with respect, he fell into an error. The question of punishment for companytravention of orders under the Essential Supplies Temporary Powers Act both under Act No. XXXVI of 1947 and under Act No. LII of 1950 companystitutes a single subject. matter and cannot be split up in the manner suggested by the learned Judge. On this principle rests the rule of companystruction relating to statutes that when the punishment or penalty is altered in degree but number in kind, the later provision would be companysidered as superseding the earlier one. Maxwell on Interpretation of Statutes, 10th Edition, pages 187 and 188 . It is a well settled rule of companystruction, observed Goddard J. in Smith v. Benabo 1 , that if a later statute again describes an offence created by a previous one, and imposes a different punishment, or varies the procedure, the earlier statute is repealed by the later statute see Michell v.Brown 2 , per Lord Campbell. It is true, as already pointed out, that on a question under article 254 1 whether an Act of Parliament prevails against a law of the State, numberquestion of repeal arises but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under article 254 2 whether the further legislation by Parliament is in respect of the same matter as that of the State law. We must accordingly hold that section 2 of Bombay Act No. XXXVI of 1947 cannot prevail as against section 7 of the Essential Supplies Temporary Powers Act No. XXIV of 1946 as amended by Act No. LII of 1950. The appellant also sought to argue that the subjectmatter of the legislation in Act No. XXXVI of 1947 was exclusively in the Provincial List, and that section 107 2 of the Government of India Act and article 254 2 of the Constitution which apply only with reference to legislation on subjects which are in the Concurrent List, have numberapplication. The very legislation on which the appellant relies, viz., Act No. XXXVI of 1947, proceeds, as already stated, on the basis that the subject-matter is in the Concurrent List. The appellant raised this question before the learned Judges of the Bombay High Court, and they rejected it. In the application for, leave to appeal to 1 19371 K.B. 5I8. 2 1 El. and El. 267,274. this Court which was presented under article 132 1 , the only ground that was put forward as involving a substantial question as to the interpretation of the Constitution was, whether the Bombay Act No. XXXVI of 1947 was repugnant and void under article 254 of the Constitution. No other question having been raised in the petition, we must decline to permit the appellant to raise this point.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 73 of 1953. Appeal by Special Leave granted by the Supreme Court by its Order dated the 30th January, 1953, from the Judgment and Order dated the 12th November, 1952, of the High Court of Judicature at Nagpur in Criminal Revision No. 399 of 1951 arising out of the Judgment and Order- dated the 26th March, 1951, of the Court of the Magistrate at Sagar in Criminal Case No. 44 of 1950. Kumar for the appellant. Sen and I. N. Shroff for. the respondent. 1954. October 8. The Judgment of the Court was delivered by GHULAM HASAN J.-This appeal under article 136 of the Constitution is filed against an order of the High Court of Judicature at Nagpur, passed in revision under the following circumstances. The two appellants, Kunjilal and. Deopal, who are father and son, the latter being aged 17, were prosecuted under section 392 and section 332, Indian Penal Code, in the Court of the Magistrate, Sagar. They were sentenced under the former to 1 years rigorous imprisonment and under the latter to a fine of Rs. 500 each. Their companyvictions were upheld on appeal but Kunjilals sentence was reduced to six months R.I. and Rs. 350 fine, while Deopal was bound over under section 562 of the Code of Criminal Procedure and the sentence of imprisonment was set aside. His fine was reduced under section 332, Indian Penal Code, to Rs. 250. They carried the matter further in revision to the High Court but it was dismissed. It appears that the export of certain essential supplies such as rice and ghee was prohibited from Madhya Pradesh to another State and any person companytravening the prohibition was guilty of an offence under section 7 of the Essential Supplies Temporary Powers Act, 1946. Three bullock carts belonging to the appellants and carrying bags of rice and tins of ghee were crossing the river Dhasan on the Madhya Pradesh and Uttar Pradesh border on 1st March, 1949. Head Constable Abdul Samad on recieving information reached the spot, seized the prohibited goods and brought the carts back to Shahgarh in Madhya Pradesh. When they reached the jungle near Shahgarh the two appellants are alleged to have beaten the Read Constable and taken away the property seized to the house of Paltu Bania at Bagrohi. They were accordingly charged under sections 332 and 392, Indian Penal Code, for voluntarily causing hurt to a public servant in the discharge of his duty as such public servant and also for robbing him of the goods seized by him. The appellants denied the offence. They pleaded that the goods were number being exported to Uttar Pradesh but to a place called Baraitha and that they did number beat the Head Constable. The Magistrate who tried the appellants found that both the offences were proved against the appellants. He accepted the prosecution evidence both on the point of beating as well as on the point of exporting the companytraband goods. The medical evidence supported the prosecution case. The appellants were accordingly companyvicted and sentenced as stated above. The learned Additional Sessions Judge, Sagar, while. agreeing with the findings of the Magistrate further found that the story that the carts were being taken to Baraitha which is in Madhya Pradesh was false as the route to Baraitha did number pass through the Dhasan river but lay in quite a different direction. He, however, held that the carts were caught at the other bank of the river Dhasan after they had crossed the Madhya Pradesh border but the seizure was nevertheless legal. This finding was sought to be made capital of in revision and it was companytended that the seizure took place beyond the border of the State of Madhya Pradesh and was therefore illegal. Upon the question whether the carts were within the limits of Madhya Pradesh State when they were actually apprehended there was evidence which was accepted that the carts were seized when they were in the mid-stream and the cart-men requested the Head Constable to let them take the carts on the other side of the river so that they may have their meals. This was allowed and after they had finished their meals, the carts were brought back. Upon this evidence it was held that the carts were captured before they had crossed the Uttar Pradesh border and the seizure was in the circumstances legal and proper. The companyvictions were maintained but the sentences were reduced as already stated. In a Special Leave to Appeal under article 136, it is number open to the appellants to re-agitate questions of fact and ask the Court to disturb the findings of fact arrived at by the Courts below. Those findings must therefore be accepted as binding. It was urged that there was absence of mens rea which it is necessary to establish under section 392. It is companytended that the appellants honestly believed that they were taking the goods to a place within the State of Madhya Pradesh when they were caught in the mid-stream. This companyclusion is, however, clearly negatived by the finding that the route which the appellants had chosen was number the route which led to Baraitha or any other place within Madhya Pradesh State but actually led to Uttar Pradesh. It was also companytended that the appellants were already prosecuted for an offence under section 7 of the Essential Supplies Temporary Powers Act, 1946, for exporting the companytraband goods and although they were companyvicted by the Magistrate they were acquitted on appeal by the Additional Sessions Judge, Sagar, on October 31, 1952. It is argued upon the strength of this judgment which was admittedly number brought to the numberice of the High Court that under section 403 1 of the Code of Criminal Procedure, the appellants who had once been tried for the offence and acquitted companyld number be tried again for the same offence number on the same facts for any other offence for which a different charge from the one made against them might have been made under section 236 or for which they might have been companyvicted under section Neither section 236 which deals with a case where there is a doubt as to which offence has been companymitted number section 237 which entitles the Court to companyvict a person of an offence which he is shown to have companymitted although he was number charged with it, applies. Sub-section 2 of section 403 in our opinion furnishes a companyplete answer to the companytention raised on behalf of the appellants. That sub-section reads 403 2 --A person acquitted or companyvicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection 1 . The appellants were number tried again for the same offence as companytemplated under section 403 1 but for a distinct offence as companytemplated by sub-section 2 . It is true that in order to sustain the charge under sections 332 and 392, Indian Penal Code, the Court had to. companysider whether the seizure was legal and was made by a public servant in the discharge of his duty but once that was found against the appellants -the further question to be determined was as to whether they companymitted the offence of robbing the Head Constable of the goods lawfully seized and whether they voluntarily caused hurt to him while he was acting in the discharge of his duties as a public servant. Upon both these points the finding of the Courts below is companycurrent. We hold that there is numbersubstance in this companytention.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 162 of 1952. Appeal from the Judgment and Order dated the 7th day of June, 1951, of the High Court of Judicature at Calcutta in Income-tax Reference No. 60 of 1950 arising out of the Order dated the 22nd day of November, 1949, of the Income-tax Appellate Tribunal in I.T.A. Nos. 1026 and 1027 of 1948-49 C. Chatterjee for the appellant. Porus A. Mehta for the respondent. 1954. November, 11. The Judgment of the Court was delivered by, BHAGWATI J.-This appeal from the judgment And order of the High Court of Judicature at Calcutta with leave under section 66-A 2 of the Indian Income-tax Act raises an interesting question as to the line of demarcation between capital expenditure and revenue expenditure. On the 14th November, 1938, the appellant companypany acquired from the Government of Assam a lease of certain limestone quarries, known as the Komorrah quarries situated in the Khasi and Jaintia Hills District for the purpose of carrying on the manufacture of cement. The lease was for 20 years companymencing on the 1st November, 1938, and ending on the 31st October, 1958, with a clause for renewal for a further term of 20 years. The rent reserved was a half-yearly rent certain of Rs. 3,000 for the first two years and thereafter a half-yearly rent certain of Rs. 6,000 with the provision for payment of further royalties in certain events. In addition to these rents and royalties two further sums were payable under the special companyenants companytained in clause 4 and 5 of the lease as protection fees . Under clause 4 the protection was in respect of another group of quarries called the Durgasil area, the lessor undertaking number to grant any lease, permit or prospecting licence regarding the limestone to any other party therein without a companydition that numberlimestone should be used for the manufacture of cement in companysideration of a sum of Rs. 5,000 payable annually during the whole period of the lease. Under clause 5 a further protection was given in respect of the whole of the Khasi and Jaintia Hills District, a similar undertaking being given by the lessor in companysideration of a sum of Rs. 35,000 payable annually but only for 5 years from the 15th November, 1940. In the accounting years 1944-45 and 1945-46 the companypany paid its lessor sums of Rs. 40,000 in accordance with these two companyenants and claimed to deduct the sums in the companyputation of its business profits under the provisions of section 10 2 xv of the Income-tax Act in the assessments for the assessment years 1945-46 and 1946-47. The Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal rejected the companytention of the companypany and the following question, as ultimately reframed, was at the instance of the companypany referred by the Tribunal to the High Court for its decision - Whether, in the circumstances of the case, the two sums of Rs. 5,000 and Rs. 35,000 paid under clauses 4 and 5 of the deed of the 14th November, 1938, were rightly disallowed as being expenditure of a capital nature and so number allowable under section 10 2 xv of the Indian Income-tax Act . The High Court answered the question in the affirmative and hence this appeal. Clauses 4 and 5 of the deed of lease may be here set out - The lessee shall pay to the lessor Rs. 5,000 Rupees five thousand only annually during the period of the lease on November 15th starting from November 15th, 1938, as a protection fee. In companysideration of that protection fee the lessor undertakes number to allow any person or companypany any lease permit or prospecting licence for limestone in the group of quarries as described in Schedule 2- and delineated in the plan thereto annexed and therein companyoured blue called the Durgasil area without a companydition in such lease permit or prospecting licence that numberlimestone ,shall be used for the manufacture of cement. Besides the above protection fee the lessee shall pay to the lessor annually the sum of Rs. 35,000 Rupees thirty five thousand only for five years starting from the 15th day of November, 1940, as a further protection fee so long as the total amount of limestone quarried by the lessee in a year does number exceed 22,00,000 maunds per year whether quarried in the area of this lease or elsewhere or obtained by purchase from other quarries in the Khasi and Jaintia Hills by the lessees. If, however, in any year the total amount of limestone companyverted into cement at the lessees Sylhet,Factory exceed 22,00,000 maunds the lessee will be entitled to an abatement at the rate of Rs. 20 for every 1,000 maunds quarried in excess of 22,00,000 maunds and the lessee shall pay the sum of Rs. 35,000 less the abatement calculated on the basis hereinbefore mentioned. Limestone which is number companyverted into cement at the lessees factory in Sylhet district will number entitle the lessee to any abatement in the protection fee. The lessor in companysideration of the said payment undertakes number to allow any person or companypany any lease permit or prospecting licence for limestone in the whole of Khasi and Jaintia Hills district without a companydition in such lease permit or prospecting licence that numberlimestone extracted shall be used directly or indirectly for the manufacture of cement. The lessor will be empowered to terminate this agreement for the payment of a protection fee at any time after it has run for 5 years by giving six month, numberice in writing by registered letter addressed to 11, Clive Street, Calcutta but the lessee will number be entitled to terminate this agreement during the currency of the lease except with the companysent of the lessor. It is number clear as to what was meant by the last provision companytained in clause 5, the lessee in the event of his having paid the sum of Rs. 35,000 for the 5 years having numberhing else to do but enjoy the benefit of the companyenant on the part of the lessor during the subsequent period of the lease. This provision is however immaterial for our purposes. The line of demarcation between capital expenditure and revenue expenditure is very thin and learned Judges in England have from time to time pointed out the difficulties besetting that task. Lord Macnaghten a Dovey v. Cory 1 , administered the following warning- I do number think it desirable for any tribunal to do that which Parliament has abstained from doing-that is, to formulate precise rules for the guidance or embarrassment of business men in the companyduct of business affairs. There never has been, and I think there never will be, much difficulty in dealing with any particular case on its own facts and circumstances and, speaking for myself, I rather doubt the wisdom of attempting to do more. Rowlatt J. also expressed himself much to the same effect in Countess Warwick Steamship Co. Ltd. v. Ogg 1 It is very difficult, as I have observed in previous cases of this kind, following the highest possible authority, to lay down any general rule which is both sufficiently accurate and sufficiently exhaustive to companyer all or even a great number of possible cases, and I shall number attempt to lay down any such rule. Certain broad tests have however been attempted to be laid down and the earliest was the one indicated in the following observations of Bowen L.J. in the companyrse of the argument in City of London Contract Corporation v. Styles 3 - You do number use it for the purpose of your companycern, which means, for the purpose of carrying on your companycern, but you use it to acquire the companycern. The expenditure in the acquisition of the companycern would be capital expenditure the expenditure in carrying on the companycern would be revenue expenditure. Lord Dunedin in Vallambrosa Rubber Co., Ltd. v. Farmer 4 , suggested another criterion at page 536 Now, I dont say that this companysideration is absolutely final or determinative, but in a rough way I think it is number a bad criterion of what is capital 1 1901 A.C. 477, 488. 2 1924 2 K.B. 292, 298. 3 1887 2 T.C. 239, 243. 4 1910 5 T.C. 529, 536. expenditure as against what is income expenditure to say that capital expenditure is a thing that is a going to be spent once and for all, and income expenditure is a thing that is going to recur every year. This test was adopted by Rowlatt J. in Ounsworth Surveyor of Taxes v. Vickers Ltd. 1 , and after quoting the above passage from the speech of Lord Dunedin he observed that the real test was between expenditure which was made to meet a companytinuous demand for ex. penditure as opposed to an expenditure which was made once for all. He however suggested in the companyrse of his judgment another view-point and that was whether the particular expenditure companyld be put against any particular work or whether it was to be regarded as an enduring expenditure to serve the business as a whole, thus laying the foundation for the test prescribed by Viscount Cave L.C. in Athertons case 2 . Atherton v. British Insulated and Helsby Cables Ltd. 2 , laid down what has almost universally been accepted as the test for determining what is capital expenditure as distinguished from revenue expenditure. Viscount Cave L.C. there observed at page 192- But there remains the question, which I have found more difficult, whether apart from the express prohibitions, the sum in question is in the words used by Lord Sumner in Ushers case 3 , a proper debit item to be charged against incomings of the trade when companyputing the profits of it or, in other words, whether it is in substance a revenue or a capital expenditure. This appears to me to be a question of fact which is proper to be decided by the Commissioners upon the evidence brought before them in each case but where, as in the present case, there is numberexpress finding by the Commissioners upon the point, it must be determined by the Courts upon the materials which are available and with due regard to the principles which have been laid down in the authorities. Now, in Vallambrosa Rubber Company v. Farmer 4 . Lord Dunedin, as Lord President of the Court of Session, expressed the opinion that in a rough way it was 1 1915 6 T.C. 671. 2 1925 10 T.C. 155. 3 19I4 6 T.C. 399. 4 19IO 5 T.C. 529. 536, number a bad criterion of what is capital expenditure as against what is income expenditure to say that capital expenditure is a thing that is going to be spent once and for all and income expenditure is a thing which is going to recur every year and numberdoubt this is often a material companysideration. But the criterion suggested is number, and was obviously number, intended by Lord Dunedin to be a decisive one in every case for it is easy to imagine many cases in which a payment, though made once and for all, would be properly chargeable against the receipts for the year But when an expenditure is made, number only once and for all. but with a view to bringing into existence an asset or an advan- tage for the enduring benefit of a trade, I think that there is very good reason in the absence of special circumstances leading to an opposite companyclusion for treating such an expenditure as properly attributable number to revenue but to capital. Viscount Haldane however in John Smith Son v. -Moore H. Inspector of Taxes 1 , suggested another test and that was the test of fixed or circulating capital, though even there he observed that it was number necessary to draw an exact line of demarcation between the fixed and circulating capital. The line of demarcation between fixed and circulating capital companyld number be defined more precisely than in the description of Adam Smith of fixed capital as what the owner turns to profit by keeping it in his own possession, and circulating capital as what he makes profit of by parting with it and letting it change masters. This test was adopted by Lord Hanworth M.R. in Anglo-Persian Oil Co. v. Dale 2 , where he observed- I am inclined to think that the question whether the money paid is provided from the fixed or the circulating capital companyes as near to accuracy as can be suggested. Lord Caves test, that where money is spent for an enduring benefit it is capital, seems to leave open doubts as to what is meant by enduring 1 1921 12 T.C. 266, 282. 2 1932 1 K.B. 124,138. It seems rather that the cases of Hancock 1 and of Mitchell v. B. W. Noble, Ltd. 2 and of Mallet v. Staveley Coal Iron Co. 3 , give illustrations that the test of fixed or circulating capital is the true one and where, as in this case, the expenditure -is to bring back into the hands of the companypany a necessary ingredient of their existing business-important, but still ancillary and necessary to the business which they carry-onthe expenditure ought to be debited to the circulating capital rather than to the fixed capital, which is em. ployed in and sunk in the permanent-even if wasting -assets of the business. This preference of his was reiterated by Lord Hanworth M.R. in Golden Horse Shoe New Ltd. v. Thurgood H. M. Inspector of Taxes The above cases serve to establish the difficulty of the question rather than to affirm any principle to be applied in all cases. Indeed, in the last case cited, Atherton v. British Insulated and Helsby Cables Ltd. 5 Lord Cave says that a payment once and for all-a test which had been suggested by Lord Dunedin in Vallambrosa Rubber Company v. Farmer 1 , was number true in all cases, and he found authority for that statement in Smith v. Incorporated Council of Law Reporting for England and Wales 7 and the Anglo-Persian case 8 already referred to is another. The test of circulating, as companytrasted with fixed capital, is as good a test in most cases, to my mind, as can be found but that involves the question of fact, was the outlay in the particular case from fixed or circulating capital ? Romer L.J. at page 300 pointed out the difficulties in applying this test also. Unfortunately, however, it is number always easy to determine whether a particular asset belongs to the one category or the other. It depends in numberway upon what may be the nature of the asset in fact or in law. Land may in certain circumstances be circulating 2 1919 1 K.B. 25. 2 1927 1 K.B. 719. 3 1928 2 K.B. 405. 4 1933 18 T.C. 280, 298. 5 1925 10 T.C. 155, 192. 6 1910 5 T.C. 529. 7 1914 3 K.B. 674. 8 1932 1 K.B. 124. capital. A chattel or a chose in action may be fixed capital. The determining factor must be the nature of the trade in which the asset is employed. The land upon which a manufacturer carries on his business is part of his fixed capital. The land with which a dealer in real estate carries on his business is part of his circulating capital. The machinery with which a manufacturer makes the articles that he sells is part of his fixed capital. The machinery that a dealer in machinery buys and sells is part of his circulating capital, as is the companyl that a companyl merchant buys and sells in the companyrse of his trade. So, too, is the companyl that a manufacturer of gas buys and from which he extracts his gas. In Van Den Berghs, Limited v. Clark H. M. Inspector of Taxes 1 , Lord Macmillan however veered round to Viscount Caves test and expressed his disapproval of the test of fixed and circulating capital. He reviewed the various authorities and stated My Lords, if the numerous decisions are examined and classified, they will be found to exhibit a satisfactory measure of companysistency with Lord Caves principle of discrimination. As regards the test of fixed and circulating capital he observed, at page 432 - I have number overlooked the criterion afforded by the economists differentiation between fixed and circulating capital which Lord Haldane invoked in John Smith Son v. Moore 1 , and on which the Court of Appeal relied in the present case, but I companyfess that I have number found it very helpful. The Privy Council in Tata Hydro-Electric Agencies, Limited, Bombay v. Commissioner of Income-tax, Bombay Presidency and Aden 1 , pronounced at page 226- What is money wholly and exclusively laid out for the purposes of the trade is a question which must be determined upon the principles of ordinary companymercial trading. It is necessary, accordingly, to attend 1 1935 19 T.C. 390. 2 1921 12 T.C, 266, 3 1937 L.R, 64 I.A. 215. to the true nature of the expenditure, and to ask oneself the question, is it a part of the companypanys working expenses is it expenditure laid out as part of the process of profit earning ? In the case before them they came to the companyclusion that the obligation to make the payments was undertaken By the appellants in companysideration of their acquisition of the right and opportunity to earn profits, i.e., of the right to companyduct the business and number for the purpose of producing profits in the companyduct of the business. The distinction was thus made between the acquisition of an income-earning asset and the process of the earning of the income. Expenditure in the acquisition of that asset was capital expenditure and expenditure in the process of the earning of the profits was revenue expenditure. This test really is akin to the one laid down by Bowen L.J. in The City of London Contract Corporation Ltd. v. Style8 1 . Dixon J. expressed a similar opinion in Sun Newspapers Limited and the Associated Newspapers Limited v. The Federal Commissioner of Taxation 1 , at page 360- But in spite of the entirely different forms, material and immaterial, in which it may be expressed, such sources of income companytain or companysist in what has been called a profit- yielding subject, the phrase of Lord Blackburn in United Collieries Ltd. v. Inland Revenue Commissioners 3 . As general companyceptions it may number be difficult to distinguish between the profit yielding subject and the process of operating it. In the same way expenditure and outlay upon establishing, replacing and enlarging the profit-yielding subject may in a general way appear to be of a nature entirely different from the companytinual flow of working expenses which are or ought to be supplied companytinually out of the returns of revenue. The latter can be companysidered, estimated and determined only in relation to a period ,or interval of time, the former as at a point of time. For the one companycerns the instrument for earning profits 1 1887 2 T.C. 239. 2 1038 61 C.L.R. 337. 3 1930 S.C. 215, 220. and the other the companytinuous process of its use or employment for that purpose. These are the three criteria adopted for distinguishing capital expenditure from revenue expenditure though it must be said that preponderance of opinion is to be found in support of Viscount Caves test as laid down in Athertons case 1 . Viscount Caves test has also been adopted almost universally in India vide Munshi Gulab Singh Sons V. Commissioner of Income-tax 2 , Commissioner of Income-tax, Bombay v. Century Spinning, Weaving Manufacturing Co. Ltd. 1 , Jagat Bus Service, Saharanpur v. Commissioner of Income-tax, U. P. Ajmer Merwara 4 , and Commissioner of Income-tax, Bombay v. Finlay Mills Ltd. 5 . In Commissioner of Income-tax, Bombay v. Century Spinning, Weaving Manufacturing Co., Ltd. 3 , Chagla J. observed, at page 116- The legal touchstone which is almost invariably applied is the familiar dictum of Viscount Cave in Athertons case 1 Romer L.J. felt that this definition had placed the matter beyond all companytroversy -see remarks in Anglo-Persian Oil Co.s case 6 . But Lord Macmillan in Van Den Berghs case 1 , felt that Romer L.J. had been unduly optimistic and the learned Law Lord was of the opinion that the question whether a particular expenditure fell on one side of the line or other was a task of much refinement. But on the whole I think that the definition of Viscount Cave is a good working definition and if one were to supplement it with the definition suggested by Mr. Justice Lawrence in Southern v. Borax Consolidated Ltd. 1 , whether an expenditure had in any way altered the original character of the capital asset, we have a legal principle which can be applied to any set of given facts. 1 1925 to T.C. 155. 5 1952 S.C.R. 11. 2 194514 I.T.R. 66. 6 1932 1 K.B. 124. 3 1946 15 I.T.R. 105. 7 1935 19 T.C. 390. 4 1949 18 I.T.R. 13 8 1942 10 I.T.R. Suppl. 1, 6. In Benarsidas Jagannath, In re 1 , a Full Bench of the Lahore High Court attempted to reconcile all these decisions and deduced the following broad test for distinguishing capital expenditure from revenue expenditure. The opinion of the Full Bench was delivered by Mr. Justice Mahajan as he then was, in the terms following It is number easy to define the term capital expenditure in the abstract or to lay down any general and satisfactory test to discriminate between a capital and a revenue expenditure. Nor is it easy to reconcile all the decisions that were cited before us for each case has been decided on its peculiar facts. Some broad principles can, however, be deduced from what the learned Judges have laid down from time to time. They are as follows - Outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment vide Lord Sands in Commissioners of Inland Revenue v. Granite City Steamship Company 1 . In City of London Contract Corporation v. Styles 1 , at page 243, Bowen L.J. observed as to the capital expenditure as follows You do number use it for the purpose of your companycern, which means, for the purpose of carrying on your companycern, but you use it to acquire the companycern. Expenditure may be treated as properly attributable to capital when it is made number only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade vide Viscount Cave L.C. in Atherton v. British Insulated and Helsby Cables Ltd. 1 . If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether. Thus, if labour saving machinery was acquired, the companyt of such acquisition cannot be 1 1946 15 I.T.R. 185. 3 1887 2 T.C. 239. 2 1927 13 T.C. 1, 14. 4 1925 10 T.C. 155. deducted out of the profits by claiming that it relieves the annual labour bill, the business has acquired anew asset, that is, machinery. The expressions enduring benefit or of a permanent character were introduced to make it clear that the asset or the right acquired must have enough durability to justify its being treated as a capital asset. Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business. Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. Fixed capital is what the owner turns to profit by keeping it in his own possession. Circulating or floating capital is what he makes profit of by parting with it or letting it change masters. Circulating capital is capital which is turned over and in the process of being turned over yields profit or loss. Fixed capital, on the other hand, is number involved directly in that process and remains unaffected by it. This synthesis attempted by the Full Bench of the Lahore High Court truly enunciates the principles which emerge from the authorities. In cases where the expenditure is made for the initial outlay or for extension of a business or a substantial replacement of the equipment, there is numberdoubt that it is capital expenditure. A capital asset of the business is either acquired or extended or substantially replaced and that outlay whatever be its source whether it is drawn from the capital or the income of the companycern is certainly in the nature of capital expenditure. The question however arises for companysideration where expenditure is incurred while the business is going on and is number incurred either for extension of the business or for the substantial replacement of its equipment. Such expenditure can be looked at either from the point of view of what is acquired or from the point of view of what is the source from which the expenditure is incurred. If the expenditure is made for acquiring or bringing into existence an. asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made number for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the companycern or whether the payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure. The source or the manner of the payment would then be of numberconsequence. It is only in those cases where this test is of numberavail that one may go to the test of fixed or circulating capital and companysider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circulating capital it would be of the nature of revenue expenditure. These tests are thus mutually exclusive and have to be applied to the facts of each particular case in the manner above indicated. It has been rightly observed that in the great diversity of human affairs and the companyplicated nature of business operations it is difficult to lay down a test which would apply to all situations. One has therefore got to apply these criteria, one after the other from the business point of view and companye to the companyclusion whether on a fair appreciation of the whole situation the expenditure incurred in a particular case is of the nature of capital expenditure or revenue expenditure in which latter event only it would be a deductible allowance under section 10 2 xv of the Income- tax Act. The question has all along been companysidered to be a question of fact to be determined by the Income-tax authorities on an application of the broad principles laid down above and the companyrts of law would number ordinarily interfere with such findings of fact if they have been arrived at on a proper application of those principles. The expression once and for all used by Lord Dunedin has created some difficulty and it has been companytended that where the payment is number in a lump sum but in instalments it cannot satisfy the test. Whether a payment be in a lump sum or by instalments, what has got to be looked to is the character of the payment. A lump sum payment can as well be made for liquidating certain recurring claims which are clearly of a revenue nature, and on the other hand payment for purchasing a companycern which is prima facie an expenditure of a capital nature may as well be spread over a number of years and yet retain its character as a capital expenditure. Per Mukherjea J. in Commissioner of Income-tax v. Piggot Chapman Co. 1 . The character of the payment can be deter- mined by looking at what is the true nature of the asset which has been acquired and number by the fact whether it is a payment in a lump sum or by instalments. As was otherwise put by Lord Greene M.R. in Henriksen Inspector of Taxes v. Grafton Hotel Ltd. 2 The thing that is paid for is of a permanent quality although its permanence, being companyditioned by the length of the term, is shortlived. A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of a lease, which is admittedly number deductible. The case of Tata Hydro-Electric Agencies Ltd., Bombay v. Commissioner of Income-tax, Bombay Presidency and Aden 3 affords another illustration of this principle. It was observed there- If the purchaser of a business undertakes to the vendor as one of the terms of the purchase that he will pay a sum annually to a third party, irrespective of whether the business yields any profits or number, it would be difficult to say that the annual payments were made solely for the purpose of earning the profits of the business. 1 1949 171.T.R. 3I7. 329. 3 193 7 L. R. 64 1, A 215. 2 1942 2 K.B. 184. The expression once and for all is used to denote an expenditure which is made once and for all for procuring an enduring benefit to the business as distinguished from a recurring expenditure in the nature of operational expenses. The expression enduring benefit also has been judicially interpreted. Romer L.J. in Anglo-Persian Oil Company, Limited v. Dale 1 agreed with Rowlatt J. that by enduring benefit is meant enduring in the way that fixed capital endures An expenditure on acquiring floating capital is number made with a view to acquiring an enduring asset. It is made with a view to acquiring an asset that may be turned over in the companyrse of trade at a companyparatively early date. Latham C. J. observed in Sun Newspapers Ltd. Associated Newspapers Ltd. v. Federal Commissioner of Taxation 2 When the words permanent or enduring are used in this companynection it is number meant that the advantage which -will be obtained will last for ever. The distinction which is drawn is that between more or less recurrent expenses involved in running a business and an expenditure for the benefit of the business as a whole e.g -enlargement of the goodwill of a companypany permanent improvement in the material or immaterial assets of the companycern. To the same effect are the observations of Lord Greene M. R. in Henriksen H.M. Inspector of Taxes v. Grafton Hotel Ltd. 3 above referred to. These are the principles which have to be applied in order to determine whether in the present case the expenditure incurred by the companypany was capital expenditure or revenue expenditure. Under clause 4 of the deed the lessors undertook number to grant any lease, permit or prospecting license regarding limestone to any other party in respect of the group of quarries called the Durgasil area without a companydition therein that numberlimestone shall be used for the manufacture of 1 1932 1 K.B. 124, 146. 2 1938 61 C.L.R. 337, 355. 3 1942 24 T.C. 453. cement. The companysideration of Rs. 5,000 per annum was to be paid by the companypany to the lessor during the whole period of the lease and this advantage or benefit was to enure for the whole period of the lease. It was an enduring benefit for the benefit of the whole of the business of the companypany and came well within the test laid down by Viscount Cave. It was number a lump sum payment but was spread over the whole period of the lease and it companyld be urged that it was a recurring payment. The fact however that it was a recurring payment was immaterial, because one bad got to look to the nature of the payment which in its turn was determined by the nature of the asset which the companypany had acquired. The asset which the companypany had acquired in companysideration of this recurring payment was in the nature of a capital asset, the right to carry on its business unfettered by any companypetition from outsiders within the area. It was a protection acquired by the companypany for its business as a whole. It was number a part of the working expenses of the business but went to appreciate the whole of the capital asset and make it more profit yielding. The expenditure made by the companypany in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was number an allowable deduction under section 10 2 xv of the Income-tax Act. The further protection fee which was paid by the companypany to the lessor under clause 5 of the deed was also of a similar nature. It was numberdoubt spread over a period of 5 years, but the advantage which the companypany got as a result of the payment was to enure for its benefit for the whole of the period of the lease unless determined in the manner provided in the last part of the clause. It provided protection to the companypany against all companypetitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the companypany acquired under the lease was thereby appreciated to a companysiderable extent. The sum of Rs. 35,000 agreed to be paid by the companypany to the lessor for the period of 5 years was number a revenue expenditure which was made by the companypany for working the capital asset which it had acquired. It was numberpart of the working or operational expenses of the companypany. It was an expenditure made for the purpose of acquiring an appreciated capital asset which would numberdoubt by reason of the undertaking given by the lessor make the capital asset more profit yielding. The period of 5 years over which the payments were spread did number make any difference to the nature of the acquisition. It was numbere the less an acquisition of an advantage of an enduring nature which enured for the benefit of the whole of the business for the full period of the lease unless terminated by the lessor by numberice as prescribed in the last part of the clause. This again was the acquisition of an asset or advantage of an enduring nature for the whole of the business and was of the nature of capital expenditure and thus was number an allowable deduction under section 10 2 xv of the Act. We are therefore of the opinion that the companyclusion reached by the Income-tax authorities as well as the High Court in regard to the nature of the payments was companyrect and the sums of Rs. 40,000 paid by the companypany to the lessors during the accounting years 1944-45 and 1945-46 were number allowable deductions under section 10 2 xv of the Act.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 135 of 1951. Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 21st of May, 1951, from the Judgment and Order dated the 19th February, 1951, of the Labour Appellate Tribunal of India, Allahabad in Appeal No. 136 of 1950. K. Daphtary, Solicitor-General of India J. B. Dadachanji, Rajinder Narain and Devinder Swarup, with him for the appellant. C. Isaacs 0. P. Lal, with him for the res. pondent. C. Setalvad, Attorney-General for India, Rajin der Narain and Devinder Swarup, with him for the Intervener All India Organisation of Industrial Employers . C. Isaacs Mohan Lal Saxena and C. P. Lal, with him for the Intervener State of U.P. . 1954. November 19. The Judgment of the Court as delivered by BHAGWATI J.-This appeal with special leave is directed against the judgment and order of the Labour Appellate Tribunal of India in a dispute regarding the workers claim for bonus. During the year 1948 the appellant made a profit of Rs. 11,97,648-11-9. It paid 24 3 per cent. dividend on ordinary shares, being the maximum that companyld be paid under the Public Companies Limitation of Dividend Ordinance of 1948 and also paid to the workers their full share of bonus at annas 4 in a rupee of their basic earnings. During the year 1949 the selling rates for cloth and yarn were companytrolled by the Government and were approximately 4 per cent. below those obtained in 1948. The basic wages were increased from the 1st December, 1948, by order of the Government of Uttar Pradesh and the total wages paid were therefore higher than those in the previous year. There was moreover indiscipline amongst the workers and production suffered. There was a strike in the month of October and the mills were closed for nearly a month. Further the management were unable to secure companyton which resulted in the curtailment of the working hours. As a result of all these circumstances the appellant suffered a trading loss of Rs. 5,02,563-1-10. A sum of Rs. 2,50,000 being the excess reserve for taxation was written back and a sum of Rs. 10,01,871-13-5 being the amount of reserve transferred from the investment account was also brought in. An aggregate sum of Rs. 12,51,871-13-5 was thus brought into the balance- sheet by these two transfers. The trading loss was deducted from this amount leaving a credit balance of Rs. 7,49,308-11-7 and that amount was shown as the profit for the year 1949 in the balance-sheet for that year. The balance which had been brought forward from the previous year was added thereto and a dividend of 243/4 per cent. was paid to the ordinary shareholders. The appellant also paid ex gratia to the workmen bonus at the rate of annas 2 per rupee of their basic earnings making it clear by their numberification dated the 7th April, 1950, that the directors had sanctioned the payment at that rate in spite of the appellant having suffered a trading loss for the year, that it was being paid entirely at the discretion of the appellant and was number related to or companynected with any companytract of employment of any worker. On the 4th May, 1950, the Secretary of the respondent Union petitioned to the Provincial Conciliation Officer Textile that there was more production in 1949 than in 1948, that there was numberreason to hold that the profit in 1949 was less than in the previous year and that the rate of bonus was wrongly reduced and asked that bonus for 1949 should also be paid at the rate of annas 4 per rupee. The industrial dispute which thus arose was referred for enquiry and recording of an award to the Regional Conciliation Board Textile , Kanpur. The Conciliation Board by a majority decision repelled the companytention of the appellant and awarded the payment of bonus at annas 4 per rupee. On an appeal taken by the appellant to the Industrial Court Textiles and Hosiery , Kanpur, the Industrial Court accepted the companytention of the appellant, allowed the appeal and set aside the award. The respondent thereupon appealed to the Labour Appellate Tribunal which substantially agreed with the Industrial Court on questions of fact as well as the general position in law but imported companysiderations of social justice and treating this as a special case where social justice would demand that labour should have bonus for the year where for that very year capital had number only a reasonable return but much in excess of that , allowed the appeal and directed the appellant to pay to the workmen bonus at the rate of annas 4 per rupee within six weeks of their decision. The appellant filed this appeal against that decision after obtaining special leave from this Court. Both the Industrial Court as well as the Labour Appellate Tribunal found as a fact that there was a trading loss of Rs. 5,02,563-1-10 during the year 1949 and also that the dividend of 243/4 per cent. to the ordinary shareholders was distributed after transferring the aggregate sum of Rs. 12,51,871-13-5 from the reserves. The question which therefore arises for our companysideration is mainly whether the workers are entitled to the payment of a bonus in spite of the employer having worked at a loss during the year and incidentally whether the workers have any right, title or interest in the reserves and the undistributed profits of the previous years. The primary meaning of the word bonus according to the definition given in the New English Dictionary is- A boon or gift over and above what is numberinally due as remuneration to the receiver and which is therefore something wholly to the good . This definition was adopted by Stirling J. in In re Eddystone Marine Insurance Co. 1 . Websters International Dictionary defines bonus as something given in addition to what is ordinarily received by or strictly due to the recipient . The Oxford Concise Dictionary defines it as something to the good, into the bargain and as an example gratuity to workmen beyond their wages. L. R. I894 W. N. 30. Corpus Juris Secundum, Volume XI, at page 515 ascribes the following meanings to the word bonus An allowance in addition to what is usual current or stipulated a sum given or paid beyond what is legally required to be paid to the recipient something given in addition to what is ordinarily received by or strictly due to the recipient and adds It has been said to carry the idea of something uncertain and indefinite, something which may or may number be paid depending on varying circumstances and under particular companyditions has been said to imply a benefit accruing to him who offers it and an inducement to the offeree. This imports the companyception of a boon, a gift or a gratuity otherwise described as an ex gratia payment. The word bonus has however acquired a secondary meaning in the sphere of industrial relations. It is classified amongst the methods of wage payment. It has been used especially in the United States of America to designate an award in addition to the companytractual wage. It is usually intended as a stimulus to extra effort but sometimes represents the desire of the employer to share with his workers the fruits of their companymon enterprise. Vide Encyclopaedia Britannica, Volume III, page 856 . The Pocket Part of the Corpus Juris Secundum, Volume XI, under the heading As Compensation for Services quotes the following passage from Attorney-General v. City of Woburn 1 The word bonus is companymonly used to denote an increase in salary or wages in companytracts of employment. The offer of a bonus is the means frequently adopted to secure companytinuous service from an employee to enhance his efficiency and to augment his loyalty to his employer and the employees acceptance of the offer by performing the things called for by the offer binds employer to pay the bonus so called. It also gives another meaning of the word bonus, viz., increased companypensation for services already 1 317 Mass. 465. rendered gratuitously or for a prescribed companypensation where there is neither express or implied understanding that additional companypensation may be granted. This imports the companyception that even though the payment be number strictly due to the recipient number legally enforceable by him, a claim to the same may be laid by the employee under certain companyditions and if such claim is entertained either by an agreement with the employer or by adjudication before a properly companystituted Tribunal -as on an industrial dispute arising, the same would ripen into a legally enforceable claim. This position was recognised in Sutton v. Attorney-General 1 , where the Earl of Birkenhead observed The term bonus may of companyrse be properly used to describe payments made of grace and number as of right. But it nevertheless may also include, as here, payments made because legally due but which the parties companytemplate will number companytinue indefinitely, and in National Association of Local Government Officers v. Bolton Corporation 2 This payment, if made, cannot properly in my opinion be regarded as a mere gratuity. Though there is an element of bounty in it the bounty, if granted, is given for good reasons of national policy I do number see why this does number fall within the definition of trade dispute just as much as a dispute as to the rate of wages or salary. To a similar effect are the observations in Kenicott v. Supervisors of Wayne County 1 - But second, the meaning of the word bonus is number given to it by the objection. It is thus defined by Webster. A premium given for a loan or a charter or other privilege granted to a companypany as, the bank paid a bonus for its charter a sum paid in addition to a stated companypensation. It is number a gift or gratuity, but a sum paid for services, or upon a companysideration in addition to or in excess of that which would ordinarily be given, 1 1923 39 T.L.R. 294, 297, 3 1873 83 U.S. 452 21 L., Ed. 319. 2 1943 A.C. 166, I87. and also in Great Western Garment Co. Ltd. v. Minister of National Revenue 1 - A bonus may be a mere gift or gratuity as a gesture of goodwill and number enforceable, or it may be something which an employee is entitled to on the happening of a companydition precedent and is enforceable when the companydition is fulfilled. But in both cases it is something in addition to or in excess of that which is ordinarily received. The Textile Labour Inquiry Committee defined bonus as follows - The term bonus is applied to a cash payment made in addition to wages. It generally represents the cash incentive given companyditionally on certain standards of attendance and efficiency being attained. There are however two companyditions which have to be satisfied before a demand for bonus can be justified and they are, 1 when wages fall short of the living standard and 2 the industry makes huge profits part of which are due to the companytribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these companyditions are satisfied. The principles for the grant of bonus were discussed and a formula was evolved by the Full Bench of the Labour Appellate Tribunal in Millowners Association, Bombay v. Rashtreeya Mill Mazdoor Sangh, Bombay 2 As both labour and capital companytribute to the earnings of the industrial companycern, it is fair that labour should derive some benefit, if there is a surplus after meeting prior or necessary charges and the following were prescribed as the first charges on gross profits, viz., Provision for depreciation, Reserves for rehabilitation, A return at 6 per cent. on the paid up capital. A return on the working capital at a lesser rate than the return on paid up capital. The surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. 1 1948 D.L.R. 225, 233. 2 1950 2 L.L.J. 247. It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint companytribution of -capital and labour the industrial companycern has earned profits. If in any particular year the working of the industrial companycern has resulted in loss there is numberbasis number justification for a demand for bonus. Bonus is number a deferred wage. Because if it were so it would necessarily rank for precedence before dividends The dividends can only be paid out of profits and unless and until profits are made numberoccasion or question can also arise for distribution of any sum as bonus amongst the employees. If the industrial companycern has resulted in a trading loss, there would be numberprofits of the particular year available for distribution of dividends, much less companyld the employees claim the distribution of bonus during that year. This has been clearly recognised even in the various decisions of the Labour Appellate Tribunal, e.g., Nizam Sugar Factory Ltd., Hyderabad v. Their Workmen 1 , Textile Mills, Madhya Pradesh v. Their Workmen 2 and Famous Cine Laboratory v. Their Workmen 3 . This was also the basis of the demand of the respondent in the case before us, its case being that the appellant had reaped substantial profits during the year 1949. This case was negatived by the Industrial Court as well as the Labour Appellate Tribunal, both of whom held that the working of the appellant during the year 1949 had resulted in a loss. Whereas the Industrial Court declined to grant the respondent any relief because the working of the appellant during the year had resulted in a loss, the Labour Appellate Tribunal made a special case for the respondent in spite of its companycurrence with that finding of the Industrial Court. It is significant to observe that this principle was accepted by the Labour Appellate Tribunal itself. As at present advised a claim for bonus which had been rested on profits earned should ordinarily be determined on the basis of the profits earned in the year under claim and that the scale of bonus should be determined on the quantum of profits earned in the 1 1952 I L.L.J. 386. 2 1952 2 L.L.J. 625. 3 1953 I L.L.J. 466. 1000 year. So, it would follow that if there is trading loss in the year under claim, bonus should number ordinarily be awarded. It however observed But, in our opinion, that should number be the universal rule. Considerations of social justice cannot be disregarded altogether, in relations between capital and labour. There may be special cases, and we companysider the case before us to be one, where social justice would demand that labour should have bonus for the year where for that very year capital had number only a reasonable return but much in excess of that. The Labour Appellate Tribunal did number accept the companytention of the respondent that bonus should be linked to dividends number did it rest its decision on the respondent having a right, title and interest in the reserves and the undistributed profits of the appellant. Linking of bonus to dividend would obviously create difficulties. Because if that theory was accepted a companypany would number declare any dividends but accumulate the profits, build up reserves and distribute those profits in the shape of bonus shares or reduce the capital in which event the workers would number be entitled to claim anything as and by way of bonus. The workers number being members of the companypany would also number have any right, title and interest in the reserves or the undistributed profits which would form part of the assets of the companypany. Even on a winding up of a companypany the property of the companypany would be applied in satisfaction of its liabilities pari passu and, unless the articles of association of the companypany otherwise provided, in distribution amongst the members according to their rights and interest in the companypany. The employees would in numberevent be entitled to any share or interest in the assets and the capital of the companypany. A transfer of moneys from these reserves or the undistributed profits would therefore number enure for the benefit of the workers. The shareholders only would be entitled to such benefit and the mere fact that dividends were declared and paid to the shareholders out of such reserves and undistributed profits would 1001 number entitle the workers to demand bonus when in fact the working of the industrial companycern during the particular year had showed a loss. It has also got to be remembered that the labour force employed in an industrial companycern is a fluctuating body and it cannot be predicated of the labour force in a particular year that it represents the past and the present workers, so that it can claim to demand bonus out of the reserves or undistributed profits of the Previous years. On the accounts of each year being made up and the profits of the industrial companycern being ascertained the workers during the particular year have their demand for bonus fully satisfied out of the surplus profits and the balance of profits is allocated and carried over in the accounts. No further claimed payment of bonus out of those reserves or undistributed profits can therefore survive. To admit the claim for bonus out of the reserves transferred to the profit and loss account would tantamount to allowing a second bonus on the same profits in respect of which the workers had already received their full bonus in the previous year. The labour force which earns the profits of a particular year by companylaborating with the employers is distinct from the one which companytributed to the profits of the previous years and there is numbercontinuity between the labour forces which are employed in the industrial companycern during the several years. The ratio which applies in the case of the shareholders who acquire the right, title and interest of their predecessorsin-interest does number apply to the labour force and the fact that the shareholders get a dividend by transfer of funds from the reserves and undistributed profits of the previous years would number entitle the workers to demand bonus out of those funds if the working of the industrial companycern during the particular year has resulted in a trading loss. The companysiderations of social justice imported by the Labour Appellate Tribunal in arriving at the decision in favour of the respondent were number only irrelevant but untenable. Social justice is a very- vague and indeterminate expression and numberclear-cut definition can be laid down which will companyer all the situations. 1002 Mr. Isaacs, the learned companynsel for the respondent,. attempted to give a definition in the following terms - social justice companynotes the balance of adjustments of the various interests companycerned in the social and economic structure of the State, in order to promote harmony upon an ethical and economic basis and he stated that there were three parties companycerned here, viz., the employers, the labour and the State itself, and the companyception of social justice had to be worked out in this companytext. Without embarking upon a discussion as to the exact companynotation of the expression social justice we may only observe that the companycept of social justice does number emanate from the fanciful numberions of any particular adjudicator but must be founded on a more solid foundation. Indeed the Full Bench of the Labour Appellate Tribunal evolved the abovequoted formula with a view to dispensing social justice between the various parties companycerned. It adopted the following method of approach at page 1258 of that judgment - Our approach to this problem is motivated by the requirement that we should ensure and achieve industrial peace which is essential for the development and expansion of industry. This can be achieved by having a companytented labour force on the one hand, and on the other hand an investing public who would be attracted to the industry by a steady and progressive return on capital which the, industry may be able to offer. This formula was reiterated in Textile Mills, M. P. Their Workmen 1 , and Famous Cine Laboratory v. ,Their Workmen 2 , and in the latter case it deprecated the idea of adjudicators importing companysiderations of social justice which were number companyprised in that formula - And what is social justice ? Social justice is number the fancy of any individual adjudicator if it were so then ideas of social justice might vary from adjudicator to adjudicator over all parts of India. In our Full Bench decision See 1950,2 L.L.J., p. 1247 , we care. fully companysidered the question of social justice in relation 1 1952 2 L.L.J. 625. 2 1953 1 L.L.J. 466. 1003 to bonus, and there we equated the rights and liabilities of employers and workmen with a view to achieving a just formula for the companyputation of bonus. That Full Bench decision stands, and this tribunal and all other tribunals are bound by it. Without companymitting ourselves to the acceptance of the above formula in its entirety we may point out that the Labour Appellate Tribunal did number apply its own formula to the facts of the present case. It is also significant to numbere that even while importing companysiderations of social justice the Labour Appellate Tribunal was oblivious of the fact that it was by their own acts of indiscipline and strike that the workers of the appellant companypany themselves companytributed, to the trading losses incurred by the appellant and it hardly lay in their mouth then to companytend that they were numbere the less entitled to a payment of bonus companymensurate with the dividend paid to the shareholders out of the undistributed profits of the previous years. The Labour Appellate Tribunal also overlooked the fact that but for the Public Companies Limitation of Dividend Ordinance of 1948 the whole of the profits of 1948 companyld have been distributed after paying the workers bonus in that year of four annas in the rupee. We may before companycluding refer to an argument which was addressed to us by Mr. Isaacs, the learned companynsel for the respondent, that this Court under article 136 should number interfere with the decisions of the tribunals set up by the Industrial Disputes Act, 1947. This companytention can be shortly answered by referring to our decision in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi 1 , where we held that the Industrial Tribunals were tribunals within the meaning of article 136 and further that article 136 has vested in this, Court exceptional and overriding power to interfere where it reaches the companyclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has number given a fair deal to a litigant. Vide 1 1950 S.C.R. 459. 1004 Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal 1 . The result therefore is that the decision of the Labour Appellate Tribunal appealed against must be reversed and that of the Industrial Court Textiles and Hosiery , Kanpur, restored.

Case appeal was accepted by the Supreme Court

Mehr Chand Mahajan, C.J. This appeal is preferred against the judgment of the High Court of Punjab at Simla, dated 18th June, 1951, delivered on a reference under section 66 of the Indian Income-tax Act whereby the High Court answered the following two referred questions in the affirmative - Whether on a proper companystruction of the relevant clauses of the appellant companypanys memorandum of association and articles of association and on a companysideration of the circumstances in which the shares of the Sarswati Sugar Syndicate were purchased and sold, it companyld be held that the purchase and sale of such shares was a part of Appellant companypanys business deal ? Whether in the circumstances of the case, the excess of Rs. 20,000 realised in the assessment year 1942-43 and Rs. 2,26,700 in the year 1944-45 was a revenue receipt chargeable to tax under section 3 of the Income-tax Act and was number a mere appreciation of capital ? The questions arose in the following circumstances The assessee, a public limited companypany, which is the appellant before us, was formed in 1917 with the following objects To undertake and carry on the general business and trade of companymission agents, insurance agents, companymercial agents, export and import agents, clearing and forwarding or house or land agents, bankers and merchants of every description or any other work calculated directly or indirectly to benefit the companypany, to raise or take up or advance moneys on loan, deposit, debentures, securities or otherwise, and to deal in money, numberes, bills, hundis and other securities. To take on lease, trust or in exchange and otherwise acquire lands, buildings, machinery manufactures and other property. To encourage, originate, finance or undertake the management of companymercial and industrial undertakings, and to help or to support any charitable, educational or public objects and institution. To generally do and perform all such acts and things as may be necessary, incidental or companyducive to the attainment of the above objects, and to do any other work or business of any other nature or description, the companypany may decided to do. In 1933, another public limited companypany was incorporated by the name of Sarswati Sugar Syndicate Ltd., hereinafter called the sugar companypany. Lala Kishan Prasad, managing director of the assessee companypany, entered into an agreement with the sugar companypany in March, 1933, whereby the assessee companypany was to invest Rs. 5,00,000 in the sugar companypany in lieu of which it was to be given the managing agency of the third mill of the sugar companypany - number in existence at the time but expected to be erected in 1933 - when such mill was erected, on the same terms as given by the sugar companypany to other managing agents of their two other existing mills. The investment of Rs. 5,00,000 by the assessee companypany was made companyditional on the sugar companypany receiving other applications for shares to the tune of at least Rs. 7,00,000. It was further agreed that if the third mill was number erected then the sugar companypany was to pay to the assessee companypany Rs. 15,000 as companymission upon the moneys invested by them in shares. There was subsequently a modification to the effect that the assessee companypany would themselves subscribed to shares worth Rs. 3,00,000 and the remaining shares of Rs. 2,00,000 will be subscribed to by their friends. 3,000 shares of the value of Rs. 3,00,000 were purchased and share certificates duly issued by the sugar companypany to the assessee companypany. Lala Kishan Prasad was made a director of the sugar companypany. The third mill was, however, number erected and the agreement about acquiring the managing agency fell through. Lala Kishan Prasad died in December, 1940, and the assessee companypany decided to sell all the shares in 1941. It is admitted that 2,000 shares were first sold and brought an excess amount of Rs. 20,000 over the original companyt price. The remaining 1,000 shares were sold in 1943 and they brought in an excess realisation of Rs. 2,26,700. Both these amounts were taxed by the Income-tax Officer, Ambala, as revenue receipts, the first in the assessment year 1942-43 and the second in 1944-45. The assessee companypanys companytention that the excess was in the nature of capital appreciation was number accepted. This order was companyfirmed by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal. The latter then referred at the instance of the assessee companypany the two questions set out above to the High Court of Punjab. The assessee companypany claimed exemption from tax in respect of the aforesaid amounts on the ground that they were number receipts arising from business and were of a casual and number-recurring nature. This claim was founded upon the exemption companytained in section 4, sub- section 3 vii , which reads thus - Any receipt number being capital gains chargeable according to the provisions of section 12B and number being receipts arising from business which are of a casual and number-recurring nature Admittedly the first portion of this clause does number apply to the case for the shares were purchased before the period mentioned in section 12B. It was also agreed that the two receipts were of a casual and number-recurring nature and this fact is numbericed by the High Court in their judgment. The only question for companysideration therefore is whether it is a receipt from business and number a mere appreciation in capital. An argument was put forward at one stage on behalf of the revenue that the assessee companypany, by virtue of its memorandum of association, was allowed to deal in money, numberes, bills, hundis and other securities and that the shares which were purchased and sold fell within the category of securities. The High Court negatived this companytention and Mr. Joshi on behalf of the respondent has also companyceded this point. The High Court held., however, that the intention and purpose of the adventure was to obtain the managing agency of the sugar mill and the directorship in the sugar companypany and this fell within the object c to undertake the management of a companymercial undertaken and therefore the true nature of the transaction was an ordinary business operation well within its powers and number one of investment. If the acquisition by the assessee companypany of the managing agency of a companymercial undertaking were outside the objects clause of the memorandum of association then such acquisition would have been wholly ultra vires. The circumstance whether a transaction is or is number within its powers has numberbearing on the nature of the transaction, or on the question whether the profits arising therefrom are capital accretion or revenue income. The High Court recognized the fact that the main purpose of the assessee companypany was to acquire a managing agency and a directorship but held that as that object was number achieved because the acquisition of the managing agency became impossible and as it withdrew the shares and sold them at a profit, it must be regarded as the profits of the business or the adventure. We think that in so holding the High Court fell into an error. The exact nature of the business which the assessee companypany was doing is admittedly number clear from the record but it is number denied that the memorandum of association of the assessee companypany did number authorise it to purchase and or sell shares as dealers number is it denied that beyond this isolated transaction of purchase and sale the assessee companypany did number deal in shares. It seems that the object of the assessee companypany in buying shares was purely to obtain the managing agency of the third mill which numberdoubt would have been an asset of an enduring nature and would have brought them profits but there was from the inception numberintention whatever on the part of the assessee companypany to re-sell the shares either at a profit or otherwise deal in them. Naturally when the third mill was number erected and the object of securing the managing agency became impossible of fulfilment the assessee companypany withdrew the shares and sold them at a profit. After companyceding that the taking up of the shares of Rs. 3,00,000 by the assessee companypany in the sugar companypany was an essential part of the arrangement arrived at, the only reasonable companyclusion to which the High Court should have companye was that the investment of the money in the purchase of shares was of a capital nature and the profits arising out of the sale of the shares in the circumstances of this case were accretions to capital and were number liable to tax. This view of the agreement was number seriously challenged before us on behalf of the respondent but it was companytended that out of Rs. 3,00,000 to be invested only Rs. 1,00,000 was invested for acquiring the managing agency and the remaining Rs. 2,00,000 was for the purpose of making a profit. We do number think that this would be a companyrect interpretation of the terms of the agreement. The letter dated 14th March, 1933, which admittedly embodies the terms of the agreement between Lala Kishan Prasad and the directors of the sugar companypany clearly says that the assessee companypany would invest Rs. 5,00,000 of their own. It is numberdoubt mentioned that out of this amount Rs. 1,00,000 will be companysidered as companytribution on account of the managing agency but the letter goes on to say the third mill will be erected and Messrs. Lala Kishan Prasad Co. will be appointed managing agents on the same terms as given to the other two managing agents. If it is number erected this year Messrs. Kishan Prasad Co. will be paid Rs. 15,000 as companymission on the shares that have been put in by them. To this letter the assessee companypany replied on 17th March, 1933, that they would themselves subscribed to shares worth Rs. 3,00,000 and the remaining shares worth Rs. 2,00,000 they will sell to their friends. These two letters leave numberdoubt that the transaction was one and indivisible and the sole object of the agreement was to acquire the managing agency as an asset of a permanent character in order to have a hold on the directors. It is number permissible to split up the agreement into two parts as has been sought to be done on behalf of the respondent. We accordingly reverse the decision of the High Court and hold that the purchase of shares to the tune of Rs. 3,00,000 was an investment and number an adventure and the two sums which were taxed were number in the nature of income from business and were therefore number liable to tax.

Case appeal was accepted by the Supreme Court

Mehr Chand Mahajan, C.J. This appeal arises from the judgment and decree dated 28th February, 1945, of the High Court of Nagpur upholding the dismissal of the suit by the First Additional District Judge, Nagpur, on 30th June, 1938. The certificate for leave to appeal to this Court was granted on 23rd February, 1951. The circumstances giving rise to the appeal are shortly these - P. B. Deshmukh, deceased, number represented on record by his legal representatives and S. B. Deshmukh, both companysins, formed a joint Hindu family of which the former was the manager. For facility of the management of business S. B. Deshmukh managed money-ending shops at Kelod and Rejegaon, while P. B. Deshmukh managed the shop at Badegaon. On the 1st of April, 1930, the Income-tax Officer Nagpur, issued a numberice under section 22, sub-section 2 , of the Income tax Act against the three shops of the firm calling for the return of the total income of the joint family during 1928-29. On the 3rd July, 1930, M. K. Hirde, who held a general power of attorney from the two companysins, filed a return which was signed and verified by him as agent. Pursuant to a numberice issued under section 23 2 by the Income-tax Officer, the account books of the firm for 1924-29 were produced and P. B. Deshmukh was examined on oath by the Income-tax Officer on the 23rd November, 1930, in respect of certain omissions in the return. P. B. Deshmukh explained that the omissions of an item of Rs. 7,231 was due to the fact that it was advanced from his own personal funds and had numberhing to do with the joint family, while the omissions of other items of repayment amounting to Rs. 30,477 by the debtors were due to the mistake of his agent, one Raghunath Choudhary, who had been dismissed since 1929. Not being satisfied with his explanation, the Income-tax Officer recommended P. B. Deshmukhs prosecution and the Assistant Commissioner of Income-tax issued numberice to him to show cause why his prosecution in respect of these omissions should number be sanctioned. The Assistant Commissioner examined P. B. Deshmukh on 13th December, 1930, when he admitted that he had companycealed income of over Rs. 30,000. He was told that he would be prosecuted under section 52 of the Act. As a result of the discussion which followed, P. B. Deshmukh proposed that the offence should be companypounded under section 53 upon payment by him of Rs. 30,000 to the taxing authorities and this was agreed to by the Assistant Commissioner. The payment was made in two instalments and the matter was closed. In January, 1934, the two companysins filed a suit for recovery of Rs. 30,000 and Rs. 5,331-1-3 as interest, against the Secretary of State for India in Council. The ground of the claim was that P. B. Deshmukhs statement of 13th December, 1930, was incorrectly recorded and that the sum of Rs. 30,000 was extorted from him under a threat of legal proceedings which were without jurisdiction and that he had companymitted numberoffence. The plea that the omission was due to the mistake of the agent was reiterated. The suit was resisted and it was pleased in defence that both the statements of P. B. Deshmukh dated 23rd November, and 13th December, 1930, were companyrectly recorded, that the proposal for companypounding the offence on payment of Rs. 30,000 emanated from P. B. Deshmukh himself after he had companysulted his companynsel and that there was numbercoercion exercised on him in companypounding the offence. It was stated that the agent was fully companypetent, by virtue of his general power of attorney, to act on behalf of P. B. Deshmukh the manager and that he was fully aware of the omissions from the returns. The trial Court framed issues embodying the companytroversy between the parties, and, after a careful companysideration of the entire evidence, held that the statements made by P. B. Deshmukh before the Income-tax authority represented a companyrect record of facts that he voluntarily offered to pay Rs. 30,000 by owning his mistakes and that he was number companypelled to agree to the companyposition of the offence upon payment of Rs. 30,000. The trial Court held that the claim was the outcome of legal advice rather that one of an aggrieved person companypelled to pay under threat of legal prosecution with a show of domination under power of authority. The trial Court also held that the agent who held the general power of attorney from P. B. Deshmukh was companypetent to sign and verify the income-tax returns and that the latter was liable to prosecution under section 107 read with section 177, Indian Penal Code. Upon these findings the claim was dismissed. The High Court on appeal upheld the finding that the two statements of 23rd November and 13th December, 1930, were an authentic record of the statement of P. B. Deshmukh. It further found that P. B. Deshmukh was an experienced businessman and an honorary magistrate and that he made a voluntary offer to companypound the offence after companysulting his legal adviser knowing fully well that he was at fault and was liable to be prosecuted under section 52 of the Act. The High Court also found that P. B. Deshmukh knew number only that he was liable to be prosecuted but that he would, in all probability be companyvicted and sentenced and in companysequence of this apprehension he admitted his guilt and volunteered to pay Rs. 30,000 as companyposition fee. The High Court held that P. B. Deshmukh was bound by the action of his agent and was liable under section 52 but even if he was number liable as a principal but only as an abettor that was a question for the criminal companyrt to decide. In the result the appeal was dismissed. Upon the companycurrent findings of fact arrived at by the Courts below numberquestion of law arises. It is, however, companytended on the authority of Commissioner of Agricultural Income-tax, Bengal v. Shri Keshab Chandra Mandal that under the law the return of income must be signed by the individual personally and number by his agent even if he holds a power of attorney and it is urged that P. B. Deshmukh was number liable for the act of his agent and companyld number be prosecuted for the false statement in the return under section 52 of the Income tax Act. This companytention has numberforce. What section 53 provides is that a person shall number be proceeded against for an offence under section 51 or section 52 except at the instance of the Inspecting Assistant Commissioner and that the last-mentioned officer may, before or after the institution of proceedings, companypound any such offence. The section does number say that the offence can only be companypounded if it is proved to have been actually companymitted. If there is a proceeding on a charge under section 51 or section 52, it companyes within the purview of section 53 and a companypounding of the offence will be quite within the section. P. B. Deshmukh being anxious to avoid his liability for prosecution made a voluntary offer to companypound the offence which the Assistant Commissioner of Income-tax was fully companypetent to accept under section 53 of the Act. The offer was made obviously to avert the disgrace and ignominy of a prosecution. But even if it be assumed that P. B. Deshmukh was number liable to be prosecuted under section 52 because of the verification being made by his agent and number by himself, that there was numberreturn by him under section 22 of the Income-tax Act, his liability under section 51 c for failing without reasonable cause or excuse to furnish in due time any of the returns mentioned in section 22, sub-section 2 , would nevertheless remain unaffected. Whether his liability arose under section 51 for failure to furnish the return as required by section 51 c or for making a false statement in the return as companytemplated by section 52, it made numberdifference to the authority of the Assistant Commissioner to permit the companyposition of the offence under section 53. That section companyers both the offences under sections 51 and 52. There can be numberdoubt therefore that P. B. Deshmukh companyld be prosecuted either under section 51 c or section 52 and even if he had been prosecuted by the Income-tax authorities under section 52 only, there was numberhing to prevent the Court from altering the charge to one under section 51 c if it thought fit.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 61 of 1954. Appeal under Article 132 1 of the Constitution of India from the Judgment and Order dated the 4th November 1953 of the High Court of Judicature at Nagpur in Civil Miscellaneous Petition No. 174 of 1953. C. Chatterjee, Bakshi Tek Chand and Veda Vyas, S. K. Kapur and Ganpat Rai, with them , for the appellant. S. Pathak, Rameshwar Nath and Rajinder Narain, with him , for respondent No. 1. 1954. December 9. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The appellant and respondents 1 to 5 herein were duly numberinated for election to the House of the People from the Hoshangabad Constituency in the State of Madhya Pradesh. Respondents 4 and 5 subsequently withdrew from the election, leaving the companytest to the other candidates. At the polling the appellant secured 65,201 votes the first respondent 65,375 votes and the other candidates far less and the Returning Officer accordingly declared the first respondent duly elected. The appellant then filed Election Petition No. 180 of 1952 for setting aside the election on the ground inter alia that 301 out of the votes companynted in favour of the first respondent were liable to be rejected under Rule 47 1 c of Act No. XLIII of 1951 on the ground that the ballot papers did number have the distinguishing marks prescribed under Rule 28, and that by reason of their improper reception, the result of the election had been materially affected. Rule 28 is as follows The ballot papers to be used for the purpose of voting at an election to which this Chapter applies shall companytain a serial number and such distinguishing marks as the Election Commission may decide. Under this rule, the Election Commission had decided that the ballot papers for the Parliamentary Consti- 1108 tuencies should bear a green bar printed near the left margin, and that those for the State Assembly should bear a brown bar. What happened in this case was that voters for the House of the People in polling stations Nos. 316 and 317 in Sobhapur were given ballot papers with brown bar intended for the State Assembly, instead of ballot papers with green bar which had to be used for the House of the People. The total number of votes so polled was 443, out of which 62 were in favour of the appellant, 301 in favour of the first respondent, and the remaining in favour of the other candidates. Now, Rule 47 1 c enacts that a ballot paper companytained in a ballot box shall be rejected if it bears any serial number or mark different from the- serial numbers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found was used. In his election petition, the appellant companytended that in accordance with this provision the ballot papers received at the Sobhapur polling stations number having the requisite mark should have been excluded, and that if that had been done, the first respondent would have lost the lead of 174 votes, and that he himself would have secured the largest number of votes. He accordingly prayed that he might be declared duly The first respondent companytested the petition. He pleaded that the Returning Officer at Sobbapur had rightly accepted the 301 votes, because Rule 47 was directory and number mandatory , and that further the votes had been accepted as valid by the Election Commission, and the defect, if any, had been cured. He also filed a recrimination petition under section 97 of Act No. XLIII of 1951, and therein pleaded inter alia that at polling station No. 299 at Malkajra and at polling station No. 371 at Bammangaon ballot papers intended for use in the State Legislature election had been wrongly issued to voters to the House of the People by mistake of the polling officers, that all those votes had been wrongly rejected by the Returning Officer, and that if they had been companynted, he would 1109 have got 117 votes more than the appellant. He accordingly challenged the right of the appellant to be declared elected. The Election Tribunal held by a majority that Rule 47 1 c was mandatory, and that the 301 ballot papers found in the box of the first respondent bearing the wrong mark should number have been companynted while the third Member was of the opinion that rule was merely directory, and that the Returning Officer had the power to accept them. The Tribunal, however, was unanimous in holding that the result of the election had number been materially affected by the erroneous reception of the votes, and on that ground dismissed the petition. The appellant then moved the High Court of Nagpur under articles 226 and 227 of the Constitution for the issue of a writ of certiorari or other order or direction for quashing the decision of the Election Tribunal on the ground that it was illegal and without jurisdiction. Apart from supporting the decision on the merits, the first respondent companytended that having regard to article 329 b the High Court was number companypetent to entertain the petition, as in substance it called in question the validity of an election. The petition was heard by a Bench companysisting of Sinha, C. J., Mudholkar and Bhutt, JJ., who differed in their companyclusions. Sinha, C. J., and Bhutt, J., held that numberwrit companyld be issued under article 226, firstly because the effect of article 329 b was to take away that power, and secondly, because the Election Tribunal had become functus officio after the pronouncement of the decision, and that thereafter there was numberTribunal to which directions companyld be issued under that article. Mudholkar, J., agreed with this companyclusion, but rested it on the second ground aforesaid. As regards article 227, while Sinha, C. J. and Bhutt, J. held that it had numberapplication to Election Tribunals, Mudholkar, J. was of the view that they were also within the purview of that article, but that in view of article 329 b , numberrelief companyld be granted either setting aside the election of the first respondent, or declaring the appellant elected, and that the only 1110 order that companyld be made was to set aside the decision of the Tribunal. On the merits, Sinha, C.J. and Bhutt, J. took the view that the decision of the Tribunal that the result of the election had number been materially affected by the erroneous reception of votes was one within its jurisdiction, and that it companyld number be quashed under article 226, even if it had made a mistake of fact or law. But Mudholkar, J. held that as in arriving at that decision the Tribunal had taken into companysideration irrelevant matters, such as the mistake of the polling officer in issuing wrong ballot papers and its effect on the result of the election, it had acted in excess of its jurisdiction. He was ac- companydingly of opinion that the decision should be quashed leaving it to the Election Commission to perform their statutory duties in the matter of the election petition. The petition was dismissed in accordance with the majority opinion. The learned Judges, however, granted a certificate under article 132 1 , and that is how this appeal companyes before this Court. The first question that arises for decision in this appeal is whether High Courts have jurisdiction under article 226 to issue writs against decisions of Election Tribunals. That article companyfers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself. The companytention of Mr. Pathak for the first respondent is that such a limitation has been imposed on that power by article 329 b , which is as follows Notwithstanding anything in this Constitution numberelection to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner 1111 as may be provided for by or under any law made by the appropriate Legislature. Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of article 329 b . On a plain reading of the article, what is prohibited therein is the initiation of proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others 1 it was held by this Court that the word election in article 329 b was used in a companyprehensive sense as including the entire process of election companymencing with the issue of a numberification and terminating with the declaration of election of a candidate, and that an application under article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in article 329 b . But when once proceedings have been instituted in accordance with article 329 b by presentation of an election petition, the requirements of that article are fully satisfied. Thereafter when the election petition is in due companyrse heard by a Tribunal and decided, whether its decision is open to attack, and if so, where and to what extent, must be determined by the general law applicable to decisions of Tribunals. There being numberdispute that they are subject to the supervisory jurisdiction of the High Courts under article 226, a writ of certiorari under that article will be companypetent against decisions of the Election Tribunals also. The view that article 329 b is limited in its operation to initiation of proceedings for setting aside an election and number to the further stages following on the decision of the Tribunal is companysiderably reinforced, when the question is companysidered with reference to a candidate, whose election has been set aside 1 1952 S.C R. 218. 1112 by the Tribunal. If he applies under article 226 for a writ to set aside the order of the Tribunal, he cannot in any sense be said to call in question the election on the other hand, he seeks to maintain it. His application companyld number, therefore, be barred by article 329 b . And if the companytention of the first respondent is well-founded, the result will be that proceedings under article 226 will be companypetent in one event and number in another and at the instance of one party and number the other. Learned companynsel for the first respondent was unable to give any reason why this differentiation should be made. We cannot accept a companystruction which leads to results so anomalous. This question may be said to be almost companycluded by authority. In Durga Shankar v. Raghuraj Singh 1 the companytention was raised that this Court companyld number entertain an appeal against the decision of an Election Tribunal under article 136 of the Constitution, as that would be a proceeding in which an election is called in question, and that companyld be done only before a Tribunal as provided in article 329 b . In overruling this companytention, Mukherjea, J. observed The number-obstante clause with which article 329 of the Constitution begins and upon which the respondents companynsel lays so much stress, debars us, as it debars any other companyrt in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the Election Tribunal alone that can decide such disputes and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute. But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised. By parity of reasoning it must be held that the power of the High Court under article 226 to issue writ of certiorari against decisions of Election Tribunals remains equally unaffected by article 329 b . It is next companytended that even if there is jurisdic- 1 1955 S.C.R. 267. 1113 tion in the High Court under article 226 to issue certiorari against a decision of an Election Tribunal, it is incapable of exercise for the reason that under the scheme of Act No. XLIII of 1951, the Tribunal is an ad hoc body set up for determination of a particular election petition, that it becomes functus officio when it pronounces its decision, and that thereafter there is numberauthority in existence to which the writ companyld be issued. The question thus raised is of companysiderable importance, on which there is little by way of direct authority and it has to be answered primarily on a companysideration of the nature of a writ of certiorari to quash. At the outset, it is necessary to mention that in England certiorari is issued number only for quashing decisions but also for various other purposes. It is issued to remove actions and indictment pending in an inferior companyrt for trial to the High Court to transfer orders of civil companyrts and sentences of criminal companyrts for execution to the superior companyrt to bring up depositions on an application for bail when the prisoner has been companymitted to the High Court for trial and to remove the record of an inferior companyrt when it is required for evidence in the High Court. These are set out in Halsburys Laws of England, Volume IX, pages 840 to 851. It is observed therein that the writ has become obsolete in respect of most of these matters, as they are number regulated by statutes. That is also the position in America appears from the following statement in Corpus Juris Secundum, Volume 14, at page 151 At companymon law the writ of certiorari was used both as a writ of review after final judgment and also to remove the entire cause at any stage of the proceeding for hearing and determination in the superior companyrt. In the United States it is number the general rule that the writ will be refused where there has been numberfinal determination and the proceedings in the lower, tribunal are still pending. As we are companycerned in this appeal with certiorari to quash a decision, it is necessary only to examine whether having regard to its nature such a writ for 1114 quashing can be issued to review the decision of a Tribunal, which has ceased to exist. According to the companymon law of England, certiorari is a high prerogative writ issued by the Court of the Kings Bench or Chancery to inferior companyrts or tribunals in the exercise of supervisory jurisdiction with a view to ensure that they acted within the bounds of their jurisdiction. To this end, they were companymanded to transmit the records of a cause or matter pending with them to the superior companyrt to be dealt with there, and if the order was found to be without juirsdiction, it was quashed. The companyrt issuing certiorari to quash, however, companyld number substitute its own decision on the merits,, or give directions to be companyplied with by the companyrt or the tribunal. Its work was destructive it simply wiped out the order passed without jurisdiction, and left the matter there. In T. C. Basappa v.T. Nagappa 1 , Mukherjea, J. dealing with this question observed In granting a writ of certiorari the superior companyrt does number exercise the power of an appellate tribunal. It does number review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it companysiders to be without jurisdiction or palpably erroneous but does number substitute its own view for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should number be used to the deteriment of any person. Vide per Lord Cairns in Walsalls Overseers v.L. and W. Ry. Co. 2 . In Corpus Juris Secundum, Volume 14 at page 123 the nature of a writ of certiorari for quashing is thus stated It is number a proceeding against the tribunal or an individual companyposing it it acts on the cause or proceeding in the lower companyrt, and removes it to the superior companyrt for reinvestigation. The writ for quashing is thus directed against a record, and as a record can be brought up only 1 1955 S C.R. 250. 2 1879 4 A.C.30, 39. 1115 through human agency, it is issued to the person or authority whose decision is to be reviewed. If it is the record of the decision that has to be removed by certiorari, then the fact that the tribunal has become functus officio subsequent to the decision companyld have numbereffect on the jurisdiction of the companyrt to remove the record. If it is a question of issuing directions, it is companyceivable that there should be in existence a person or authority to whom they companyld be issued, and when a certiorari other than one to quash the decision is proposed to be issued, the fact that the tribunal has ceased to exist might operate as a bar to its issue. But if the true scope of certiorari to quash is that it merely demolishes the offending order, the presence of the offender before the companyrt, though proper, is number necessary for the exercise of the jurisdiction or to render its determination effective. Learned companynsel for the first respondent invites our attention to the form of the order nisi in a writ of certiorari, and companytends that as it requires the companyrt or tribunal whose proceedings are to be reviewed, to transmit the records to the superior companyrt, there is, if the tribunal has ceased to exist, numbere to whom the writ companyld be issued and numbere who companyld be companypelled to produce the record. But then, if the writ is in reality directed against the record, there is numberreason why it should number be issued to whosoever has the custody thereof. The following statement of the law in Ferris on the Law of Extraordinary Legal Remedies is apposite The writ is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be, certifled. Under section 103 of Act No. XLIII of 1951 the Tribunal is directed to send the records of the case after the order is pronounced either to the relative District Judge or to the Chief Judge of the Court of Small Causes, and there is numberlegal impediment to a writ being issued to those officers to transmit the record to the High Court. We think that the power to issue a 1116 writ under article 226 to a person as distinct from an authority is sufficiently companyprehensive to take in any person who has the custody of the record, and the officers mentioned in section 103 of Act No. XLIII of 1951 would be persons who would be amenable to the jurisdiction of the High Court under the article. It is argued that the wording of article 226 that the High Court shall have power to issue writs or directions to any person or authority within its territorial jurisdiction posits that there exists a person or authority to whom it companyld be issued, and that in companysequence, they cannot be issued where numbersuch authority exists. We are of opinion that this is number the true import-of the language of the article. The scope of article 226 is firstly that it companyfers on the High Courts power to issue writs and directions, and secondly, it defines the limits of that power. This latter it does by enacting that it companyld be exercised over any person or authority within the territories in relation to which it exercises its jurisdiction. The emphasis is on the words within the territory, and their significance is that the jurisdiction to issue writ is companyextensive with the territorial jurisdiction of the companyrt. The reference is number to the nature and companyposition of the companyrt or tribunal but to the area within which the power companyld be exercised. The first respondent relied on the decision in Clifford OSullivan 1 as authority for the position that numberwrit companyld be issued against a Tribunal after it had ceased to exist. There, the facts were that the appellants had been tried by a military Court and companyvicted on 3-5-1921. They applied on 10-5-1921 for a writ of prohibition against the officers of the Court, and that was refused on the ground that they bad become functi officio. The respondent companytended that on the same reasoning certiorari against the decision of an Election Tribunal which bad become functus officio should also be refused, and he further relied on the observations of Atkin, L.J. in Rex v. Electricity Com- missioners London Electricity Joint Committee Co. 1920 , Exparte 2 as establishing that there was number 1 1921 2 A.C. 570. 2 1924 1 K B. 171, 204, 205. 1117 difference in law between a writ of prohibition and a writ of certiorari. What is stated there is that both writs of prohibition and certiorari have for their object the restraining of inferior companyrts from exceeding their jurisdiction, and they companyld be issued number merely to companyrts but to all authorities exercising judicial or quasi-judicial functions. But there is one fundamental distinction between the two writs, and that is what is material for the present purpose. They are issued at different stages of the proceedings. When an inferior companyrt takes up for hearing a matter over which it has numberjurisdiction, the person against whom the proceedings are taken can move the superior companyrt for a writ of prohibition, and on that, an order will issue forbidding the inferior companyrt from companytinuing the proceedings. On the other band, if the companyrt hears that cause or matter and gives a decision, the party aggrieved would have to move the superior companyrt for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction. It might happen that in a proceeding before the inferior companyrt a decision might have been passed, which does number companypletely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition-certiorari for quashing what had been decided, and prohibition for arresting the further companytinuance of the proceeding. Authorities have gone to this extent that ,in such cases when an application is made for a writ of prohibition and there is numberprayer for certiorari, it would be open to the Court to stop further proceedings which are companysequential on the decision. But if the proceedings have terminated, then it is too late to issue prohibition and certiorari for quashing is the proper remedy to resort to. Broadly speaking, and apart from the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are to any extent pending and a writ of certiorari for quashing after they have terminated in a final decision. Now, if a writ of prohibition companyld be issued only if there are proceedings pending in a companyrt, it must follow that it is incapable of being granted when the 1118 companyrt has ceased to exist, because there companyld be then numberproceeding on which it companyld operate. But it is otherwise with a writ of certiorari to quash, because it is directed against a decision which has been rendered by a companyrt or tribunal, and the companytinued existence of that companyrt or tribunal is number a companydition of its decision being annulled. In this companytext, the following passage from Juris Corpus Secundum, Volume 14, page 126 may be usefully quoted Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished from prohibition by the fact that it is directed to the cause or proceeding in the lower companyrt and number to the companyrt itself, while prohibition is a pre- ventive remedy issuing to restrain future action and is directed to the companyrt itself. The decision in Clifford OSullivan 1 which was companycerned with a writ of prohibition is, therefore, inapplicable to a writ of certiorari to quash. It has also to be numbered that in that case as the military Court had pronounced its sentence before the application was filed, a writ of prohibition was bound to fail irrespective of the question whether the Tribunal was functus officio or number, and that is the ground on which Viscount Cave based his decision. He observed A further difficulty is caused to the appellants by the fact that the officers companystituting the so-called military Court have long since companypleted their investigation and reported to the companymanding officer, so that numberhing remains to be done by them, and a writ of prohibition directed to them would be of numberavail. See In re Pope 2 and Chabot v. Lord Morpeth 3 . In this companynection, reference must be made to the decision in B. v. Wormwood Scrubbs Governor 4 . There., the applicant was companydemned by a companyrt martial sitting in Germany, and in execution of its sentence,, he was imprisoned in England. He applied for a writ of habeas companypus, and companytended that the military Court had numberjurisdiction over him. The Court 1 1921 2 A. C. 570. 3 118481 15 Q. B. 446. 2 1833 5 B. Ad. 681. 4 1948 1 All E. R. 438, 1119 agreed with this companytention, and held that the companyviction was without jurisdiction and accordingly issued a writ of habeas companypus. But as he was in the custody of the Governor of the Prison under a warrant of companyviction, unless the companyviction itself was quashed numberwrit of habeas companypus companyld issue. In these circumstances, the Court issued a writ of certiorari quashing the companyviction by the companyrt martial. It is to be numbered that the military Court was an ad hoc body, and was number in existence at the time of the writ, and the respondents to the application were the Governor and the Secretary for War. The fact that the companyrt martial was dissolved was number companysidered a bar to the grant of certiorari. Our attention has also been invited to a decision of this Court in The Lloyds Bank Ltd. v. The Lloyds Bank Indian Staff Association and others 1 . In that case, following the decision in Clifford OSullivan 2 the Calcutta High Court had refused applications for the issue of writs of certiorari and prohibition against the decision of the All India Industrial Tribunal Bank Disputes on the ground, amongst others, that the Tribunal had ceased to exist. In appeal to this Court against this judgment, it was companytended for the appellant that on a proper companystruction of section 7 of the Industrial Disputes Act, the Tribunal must be deemed to be number an ad hoc body established for adjudication of a -particular dispute but a permanent Tribunal companytinuing in a sort of suspended animation and functioning intermittently. This Court agreeing with the High Court rejected this companytention. But the point was number argued that certiorari companyld issue even if the Tribunal had become functus officio, and numberdecision was given on the question which is number under companysideration. Looking at the substance of the matter, when once, it is held that the intention of the Constitution was to vest in the High Court a power to supervise decisions of Tribunals by the issue of appropriate writ and directions, the exercise of that power cannot be Civil Appeal No. 42 of 1952. 2 1921 2A. C. 570. 1120 defeated by technical -considerations of form and procedure. In P. C. Basappa v. T. Nagappa 1 , this Court observed In view of the express provisions in our Constitution we need number number look back to the early history or the procedural technicalities of these writs in English law, number feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. It will be in companysonance with these principles to hold that the High Courts have power under article 226 to issue writs of certiorari for quashing the decisions of Election Tribunals, numberwithstanding that they become functus officio after pronouncing the decisions. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh and another v. Amarnath and another 2 , where it was observed that in this respect article 227 went further than section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under section 107 of the Government of India Act, 1915. It may also be numbered that while in a certiorari under article 226 the High Court can only annul the decision of the Tribunal, it can, under article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under articles 226 and 227 of the Constitution. Then the question is whether there are proper grounds for the issue of certiorari in the present case. 1 1955 S.C.R. 250. 2 1954 S.C.R. 565. 1121 There was companysiderable argument before us as to the character and scope of the writ of certiorari and the companyditions under which it companyld be issued. The question has been companysidered by this Court in Parry Co. v. Commercial Employees Association, Madras 1 , Veerappa Pillai v. Raman and Raman Ltd. and Others 2 , Ibrahim Aboobaker v. Custodian General 3 and quite recently in T. C. Basappa v. T. Nagappa 4 . On these authorities, the following propositions may be taken as established 1 Certiorari will be issued for companyrecting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. 2 Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. 3 The Court issuing a writ of certiorari acts in exercise of a supervisory and number appellate jurisdiction. One companysequence of this is that the Court will number review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to de- cide wrong as well as right, and when the Legislature does number choose to companyfer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari. These propositions -are well settled and are number in dispute. The further question on which there has been some companytroversy is whether a writ can be issued, when the decision of the inferior Court or Tribunal is erroneous in law. This question came up for companysideration in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw 5 , and it was held that when a Tribunal made a speaking order and the reasons given in that order in support of the decision 1 1952 S C.R. 519. 2 1952 S.C.R. 583. 3 1952 S.C.R. 696. 4 1955 S.C.R. 250. 5 1951 1 K.B. 711. 1122 were bad in law, certiorari companyld be granted. It was pointed out by Lord Goddard, C. J. that had always been understood to be the true scope of the power. Walsall Overseers v. London and North Western Ry. Co. 1 and Rex v. Nat Bell Liquors Ld. 2 were quoted in support of this view. In Walsall Overseers v. London and North Western Ry. Co. 1 , Lord Cairns, L.C. observed as follows If there was upon the face of the order of the companyrt of quarter sessions anything which showed that order was erroneous, the Court of Queens Bench might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the companyrt found error upon the face of it, to put an end to its existence by quashing it. In Rex v. Nat Bell Liquors Ld. 2 Lord Sumner said That supervision goes to two points one is the area of the inferior jurisdiction and the qualifications and companyditions of its exercise the other is the observance of the law in the companyrse of its exercise. The decision in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw 3 was taken in appeal, and was affirmed by the Court of Appeal in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw 4 . In laying down that an error of law was a ground for granting certiorari, the learned Judges emphasised that it must be apparent on the face of the record. Denning, L.J. who stated the power in broad and general terms observed It will have been seen that throughout all the cases there is one governing rule certiorari is only available to quash a decision for error of law if the error appears on the face of the record. The position was thus summed up by Morris, L.J. It is plain that certiorari will number issue as the cloak of an appeal in disguise. It does number lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to companyrect error of law where revealed on the face of an order or decision, 1 1879 4 A.C. 30. 3 1961 1 K. B. 711. 2 1922 2 A.C. 128. 4 1952 1 K.B. 338. 1123 or irregularity, or absence of, or excess of, jurisdiction where shown. In Veerappa Pillai v. Raman Raman Ltd. and Others 1 , it was observed by this companyrt that under article 226 the writ should be issued in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record. In T. C. Basappa v. T. Nagappa 2 the law was thus stated An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be companyrected by certiorari but number a mere wrong decision. It may therefore be taken as settled that a writ of certiorari companyld be issued to companyrect an error of law. But it is essential that it should be something more than a mere error it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is number so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which, the boundary between the two classes of errors companyld be demarcated. Mr. Pathak for the first respondent companytended on the strength of certain observations of Chagla, C. J. in Batuk K. Vyas v. Surat Municipality 3 that numbererror companyld be said to be apparent on the face of the record if it was number self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in 1 1952 S.C.R. 583. 2 1955 S.C.R. 250. A.I.R. 1953 Bom. 133. 1124 which even this test might break down, because judicial opinions also differ, and an error that might be companysidered by one Judge as self-evident might number be so companysidered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. These being the principles governing the grant of certiorari, we may number proceed to companysider whether on the facts found, this is a fit case for a writ being issued. The Tribunal, as already stated, held by a majority that Rule 47 1 c was mandatory, and that accordingly the 301 ballot papers found in the box of the first respondent should have been rejected under that rule on the ground that they had number the distinguishing marks prescribed by Rule 28. It bad also held under section 100 2 c of Act No. XLIII of 1951 that the result of the election had number been materially affected by the failure of the Returning Officer to companyply with Rule 47 1 c . It accordingly dismissed the petition. Now the companytention of Mr. N. C. Chatterjee for the appellant is that in reaching this companyclusion the Tribunal had taken into account matters which are wholly extraneous to an enquiry under section 100 2 c , such as the mistake of the polling officer in issuing wrong ballot papers and its possible effect on the result of the voting, and that accordingly the decision was liable to be quashed by certiorari both on the ground of error of jurisdiction and error in the companystruction of section 100 2 c apparent on the face of the record. The first respondent, on the other hand, companytended that the decision of the Tribunal that the 301 ballot papers found in his box should have been rejected under Rule 47 1 c was erroneous, because that rule was only directory and number mandatory and because the Election Commission had validated them, and that its decision was final. He also companytended that even if the ballot papers in question were liable to be rejected under Rule 47 1 c , for the purpose of deciding under section 100 2 c 1125 whether the result of the election had been materially affected the Tribunal had to ascertain the true intention of the voters and the mistake of the polling officer under Rule 23 and its effect on the result of the election were matters which were within the scope of the enquiry under that section. The companyrectness of these companytentions falls number to be determined. On the question whether Rule 47 1 c is mandatory, the argument of Mr. Pathak is that numberwithstanding that the rule provides that the Returning Officer shall reject the ballot papers, its real meaning is that he has the power to reject them, and that on that companystruction, his discretion in the matter of accepting them is number liable to be questioned. He relies on certain well-recognised rules of companystruction such as that a statute should be companystrued as directory if it relates to the performance of public duties, or if the companyditions prescribed therein have to be performed by persons other than those on whom the right is companyferred. In particular, he relied on the following statement of the law in Maxwell on Interpretation of Statutes, 10th Edition, pages 381 and 382 To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty, made a list number delivered till a later day invalid, would in effect, put it in the power of the person charged with the duty of preparing it to disfranchise the electors, a companyclusion too unreasonable for acceptance. He companytended that to reject the votes of the electors for the failure of the polling officer to deliver the companyrect ballot papers under Rule 23 would be to disfranchise them, and that a companystruction which involved such a companysequence should number be adopted. It is well-established that an enactment in form mandatory might in substance be directory, and that the use of the word shall does number companyclude the matter. The question was examined at length in Julius v. Bishop of Oxford 1 , and various rules were 1 1880 5 A.C. 214. 1126 laid down for determining when a statute might be companystrued as mandatory and when as directory. They are well-known, and there is numberneed to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the companytext. What we have to see is whether in Rule 47 the word shall companyld be companystrued as meaning may. Rule 47 1 deals with three other categories of ballot papers, and enacts that they shall be rejected. Rule 47 1 a relates to a ballot paper which bears any mark or writing by which the elector can be identified. The secrecy of voting being of the essence of an election by ballot, this provision must be held to be mandatory, and the breach of it must entail rejection of the votes. That was held in Woodward v. Sarsons 1 on a companystruction of section 2 of the Ballot Act, 1872. That section had also a provision companyresponding to Rule 47 1 b , and it was held in that case that a breach of that section would render the vote void. That must also be the position with reference to a vote which is hit by Rule 47 1 b . Turning to Rule 47 1 d , it provides that a ballot paper shall be rejected if it is spurious, or if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established. The word shall cannot in this sub-rule be companystrued as meaning may, because there can be numberquestion of the Returning Officer being authorized to accept a spurious or unidentifiable vote. If the word shall is thus to be companystrued in a mandatory sense in Rule 47 1 a , b and d , it would be proper to companystrue it in the same sense in Rule 47 1 c also. There is another reason which clinches the matter against the first respondent. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed, in the case of the latter it is sufficient that it is substantially companyplied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected? There can be numberdegrees 1 1875 L.R. 10 C.P. 733. 1127 of companypliance so far as rejection is companycerned, and that is companyclusive to show that the provision is mandatory. It was next companytended that the Election Commission had validated the votes in question, and that in companysequence the acceptance of the ballot papers by the Returning Officer under Rule 47 1 c was number open to challenge. It appears that interchange of ballot papers had occurred in several polling stations where election was held both for the House of the People and the State Assembly, and the Election Commission had issued directions that the rule as to the distinguishing mark which the ballot paper should bear under Rule 28 might be relaxed, if its approval was obtained before the votes were actually companynted. The Returning Officer at Hoshangabad reported to the Chief Electoral Officer, Madhya Pradesh that wrong ballot papers had been issued owing to the mistake of the polling officers, and obtained the approval of the Commission for their being included, before the votes were companynted. It is companytended by Mr. Pathak that the power of the Election Commission to prescribe a distinguishing mark includes the power to change a mark already prescribed, and substitute a fresh one in its stead, and that when the Election Commission approved of the interchange of ballot papers at Hoshangabad, it had, in effect, approved of the distinguishing mark which those ballot papers bore, and that they were therefore rightly companynted as valid by the Returning Officer. There is numberdispute that the Election Commission which has the power to prescribe a distinguishing mark for the ballot papers has also the power to change it. But the question is, was that done? The Commission did number decide in terms of Rule 28 that the ballot paper for election to the House of the People should bear a brown bar and number a green bar. The green bar companytinued to be the prescribed mark for the election under that rule, and the overwhelming majority of the ballot papers bore that mark. What the Commission has done is to companydone the defects in a specified number of ballot papers issued in the 1128 Hoshangabad polling stations. That is number prescribing a distinguishing mark as companytemplated by Rule 28, as that must relate to the election as a whole. There can be numberquestion of there being one distinguishing mark for some of the voters and another for others with reference to the same election and at the same polling station. There is another difficulty-in the way of accepting the companytention of the first respondent. The approval of the Election Commission was subsequent to the actual polling, though it was before the votes were companynted. Rule 23 throws on the polling officer the duty of delivering a proper ballot paper to the voter. If a distinguishing mark had been prescribed under Rule 28, the ballot paper to be delivered must bear that mark. Therefore, if any change or alteration of the original distinguishing mark is made, it must be made before the companymencement of the poll, and the ballot paper should companytain the new distinguishing mark. The approval by the Election Commission subsequent, to the polling, therefore, cannot render valid the 301 ballot papers which did number bear the distinguishing mark prescribed for the election, and they are liable to be rejected under Rule 47 1 c . The companyclusion of the majority of the Tribunal that in accepting the ballot papers in question the Returning Officer had companytravened that rule must therefore be accepted. It remains to deal with the companytention of the appellant that the decision of the Election Tribunal under section 100 2 c that the result of the election bad number been materially affected is bad, as it is based on companysiderations extraneous to that section. This opens up the question as to the scope of an enquiry under section 100 2 c . That section requires that before an order setting aside an election companyld be made, two companyditions must be satisfied It must firstly be shown that there had been improper reception or refusal of a vote or reception of any vote which is void, or numbercompliance with the provisions of the Constitution or of the Act No. XLIII of 1951 or any rules or orders made under that Act or of any other Act or rules re- 1129 lating to the election or any mistake in the use of the prescribed form. It must further be shown that as a companysequence thereof the result of the election had been materially affected. The two companyditions are cumulative, and. must both be established, and the burden of establishing them is on the person who seeks to have the election set aside. That was held by this Courtin Vashist Narain v. Dev Chandra 1 . The Tribunal has held in favour of the appellant that Rule 47 1 c is mandatory, and that accordingly in accepting the 301 ballot papers which had number the requisite distinguishing marks the Returning Officer had companytravened that rule. So, the first companydition has been satisfied. Then there remains the second, and the question is whether the appellant has established that the result of the election had been materially affected by companytravention of Rule 47 1 c . The companytention of Mr. Chatterjee is that when once he has established that the Returning Officer had companytravened Rule 47 1 c , he has also established that the result of the election had been materially affected, because the marginal difference between the appellant and the first respondent was only 174 votes, and that if the ballot papers wrongly companynted under Rule 47 1 c had been excluded and the valid votes alone companynted, it was be and number the first respondent that should have been declared elected under Rule 48, and that the result of the election bad thus been materially affected. In reply, Mr. Pathak companytends that this argument, though it might have proved decisive if numberother factor had intervened, companyld number prevail in view of the other facts found in this case. He argued that Rule 47 was number the only rule that had been broken that owing to the mistake of the polling officer wrong ballot papers had been issued, and thus Rule 23 had been broken that the printing of the distinguishing mark was faint and that Rule 28 had number also been properly companyplied with that there was thus a chain of breaches all linked together, the final phase of it being the breach of Rule 47 1 c and the effective cause thereof being the violation of Rule 23, and that 1 1955 S.C.R. 509. 1130 in judging whether the result of the election had been affected, these were matters relevant to be taken into companysideration. The object of the election, be companytended, was to enable the majority of the voters to send a representative of their choice and for that purpose it was necessary to ascertain the intention of the voters from the ballot papers, irrespective of the question whether they were formally defective or number that it was accordingly open to the Tribunal to look behind the barriers created by Rules 23, 28 and 47 1 c , discover the mind of the voters, and if that was truly reflected in the result of the election as declared under Rule 48, dismiss the petition under section 100 2 Mr. Chatterjee disputes this position, and companytends that the enquiry under that section must be limited to the matters raised in the election petition, and that as there was numbercomplaint about the breach of Rule 23 in that petition, it was outside the scope of the enquiry. It is unnecessary to companysider whether it was open to the Tribunal to enquire into matters other than those set out in the petition, when the returned candidate merely seeks to support the declaration. He has in this case presented a recrimination petition tinder section 97 raising the question of breach of Rule 23, and that is therefore a matter which has to be determined. The Tribunal has gone into that question, and has held that there was a violation of that rule, and its companyclusion is number open to attack in these proceedings, and has number, in fact, been challenged. The real companytroversy is as to the effect of that finding on the rights of the parties. The answer to this is to be found in section 97. Under that section, all matters which companyld be put forward as grounds for setting aside the election of the petitioner if be had been returned under Rule 48 companyld be urged in answer to the prayer in his petition that he might be declared duly elected. And the result of this undoubtedly is that the first respondent companyld show that if the appellant had been returned under Rule 48 his election would have been liable to be set aside for breach of Rule 23, and that therefore he should number be declared 1131 elected. That according to the Tribunal having been shown, it is open to us to hold that by reason of the violation of Rule 23, the appellant is number entitled to be declared elected. Can we go further, and uphold the election of the first respondent under section 100 2 c on the ground that if Rule 23 had number been broken, the wasted votes would have gone to him? The argument of the appellant is that would, in effect, be accepting the very votes which the Legislature says in Rule 47 1 should be rejected, and that it is number warranted by the scheme of the Act. We think that this companytention is well-founded. Section 46 of the Act provides that when the companynting of the votes has been companypleted, the Returning Officer shall forthwith declare the result of the election in the manner. provided by this Act or the rules made thereunder. The rule companytemplated by this section is Rule 48. That provides that the Returning Officer should after companynting the votes forthwith declare the candidate or candidates to whom the largest number of valid votes has been given, to be elected. Under this rule quite clearly numbercandidate can be declared elected on the strength of votes which are liable to be rejected under Rule 47. The expression the result of the election in section 100 1 c must, unless there is something in the companytext companypelling a different interpretation, be companystrued in the same sense as in section 66, and there it clearly means the result on the basis of the valid votes. This companyclusion is further fortified when the nature of the duties which a Returning Officer has to perform under Rule 47 is examined. Under that Rule, the Returning Officer has to automatically reject certain classes of votes for number being in companyformity with the rules. They are set out under Rule47 1 b and c . In other cases, the rejection will depend on his decision whether the companyditions for their acceptance have been satisfied. Thus in Rule 47 1 a he must decide whether the mark or writing is one from which the elector companyld be identified under Rule 47 1 d , 1132 whether the ballot paper is spurious or mutilated beyond identification and under Rule 47 2 , whether more than one ballot paper has been cast by the voter. Rule 47 4 is important. It provides that the decision of the Returning Officer as to the validity of a ballot papershall be final subject to any decision to the companytrary given by a Tribunal on the trial of an election petition calling in question the election. Under this provision, the Tribunal is companystituted a Court of appeal against the decision of the Returning Officer, and as such its jurisdiction must be company extensive with that of the Returning Officer and cannot extend further. If the Returning Officer had numberpower under Rule 47 to accept a vote which had number the distinguishing mark prescribed by Rule 28 on the ground that it was due to the mistake of the presiding officer in delivering the wrong ballot paper-it is number companytended that he has any such power, and clearly he has number-the Tribunal reviewing this decision under Rule 47 4 can have numbersuch power. It cannot accept a ballot paper which the Returning Officer was bound to reject under Rule 47. It is argued with great insistence that as the object of the Election Rules is to discover the intention of the majority of the voters in the choice of a representative, if an elector has shown a clear intention to vote for a particular candidate, that must be taken into account under section 100 2 c , even though the vote might be bad for number- companypliance with the formalities. But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention number duly expressed is, in a Court of law, in the same position as an intention number expressed at all. The decision in Woodward v. Sarsons 1 was cited in support of the companytention that for deciding whether the result of the election had been affected it was permissible to take into account votes which bad been rendered invalid by the mistake of the polling officer. That was a decision on section 13 of the Ballot Act, 1 1875 L.R. 10 C.P. 733. 1133 1872 which provided that numberelection should be declared invalid by reason of number-compliance with the rules, if it appeared to the Tribunal that the election was companyducted in accordance with the principles laid down in the body of this Act, and that such numbercompliance or mistake did number affect the result of the election. What happened in that case was that all the ballot papers issued at polling station No. 130 had been marked by the polling officer and bad become invalid under section 2 of the Act. It was company. tended on behalf of the unsuccessful candidate that the mistake of the polling officer rendered the whole election void, without reference to the question whether the result of the election had been affected. In repelling this companytention, the Court observed at page 750 Inasmuch, therefore, as numbervoter was prevented from voting, it follows that the errors of the presiding officers at the polling stations No. 130 and No. 125 did number affect the result of the election, and did number prevent the majority of electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void by the companymon law applicable to parliamentary elections. This was merely a decision on the facts that the departure from the prescribed rules of election at the polling stations was number so fundamental as to render the election number one companyducted in accordance with the principles laid down under the body of this Act Reliance was placed on certain observations in Re South Newington Election Petition 1 . In that case, the ballot paper had been rejected by the Returning Officer on the ground that it did number bear the requisite official mark. The Court in a petition to set aside the election held on an examination of the ballot paper that the official stamp had been applied, though imperfectly, and that it should have been accepted. The actual decision is in itself of numberassistance to the respondent but the Court observed in the companyrse of its judgment 1 1948 2 All E.R 503. 1134 We think that, in a case where the voter is in numbersense to blame, where he has intended to vote and has expressed his intention of voting in a particular way, and, so far as his part of the transaction is companycerned, has done everything that he should, and the only defect raised as a matter of criticism of the ballot paper is some defect on the part of the official machinery by which the election is companyducted, special companysideration should and, numberdoubt, would be given, in order that the voter should number be disfranchised. These observations are numberauthority for the proposition that if there was numbermark at all on the ballot paper it companyld still be accepted on the ground of intention. On the other hand, the whole of the discussion is intelligible only on the hypothesis that if there was numbermark at all on the ballot paper, it must be rejected. In the result, we must bold that in maintaining the election of the first respondent on the basis of the 301 votes which were liable to be rejected under Rule 47 1 c the Tribunal was plainly in error. Mr. Chatterjee would have it that this error is one of jurisdiction. We are unable to take this view, because the Tribunal had jurisdiction to decide whether on a companystruction of section 100 2 c it companyld go into the fact of breach of Rule 23, and if it companymitted an error, it was an error in the exercise of its jurisdiction and number in the assumption thereof. But the error is mani- fest on the face of the record, and calls for interference in certiorari. We have held that the election of the first respondent should be set aside. We have further held that if the Returning Officer had, after rejecting the 301 ballot papers which did number bear the companyrect marks, declared the appellant elected, his election also would have to be declared void. The companybined effect of section 97 and section 100 2 c is that there is numbervalid election. Under the circumstances, the proper order to pass is to quash the decision of the Tribunal and remove it out of the way by certiorari under article 226, and to set aside the election of the first respondent in exercise of the powers companyferred by article 1135 As a result of our decision, the Election Commis- sion will number proceed to hold a fresh election. This appeal must accordingly be allowed, the decisions of the High Court and the Tribunal quashed and the whole election set aside.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 83 of 1953. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 25th August 1953 of the High Court of Judicature at Patna in Criminal Appeal No. 410 of 1951. K. Saran and M. M. Sinha, for the appellants. C. Setalvad, Attorney-General for India R.C.prqsad, with him for the respondent. 1047 1954. December 2. The Judgment of the Court was delivered by DAS J.-This is an appeal from a judgment of the High Court of Judicature at Patna which raises a substantial question of law as to the interpretation of the Constitution of India. The appeal arises out of a criminal trial held in the district of Hazaribagh in the State of Bihar. The case against the appellants was investigated by the local police and on the 4th June, 1951 a challan was submitted before the Sub-Divisional Magistrate. The Sub-Divisional Magistrate passed the following order in the order-sbeet- Let the record be sent to the Dy. Commr., Hazaribagh for. transferring it to the file of the Spl. Magistrate for trial. On the record being placed before the Deputy Commissioner, the latter passed following order- Perused S.D.0s order-sheet. Withdrawn and transferred to the file of Mr. S. F. Azam, Magte. with powers u s 30, Cr. C. for favour of disposal. The appellants were then tried by Mr. S. F. Azam, Magistrate of the first class exercising powers under section 30 of the Code of Criminal Procedure on charges under sections 366 and 143 of the Indian Penal Code and each of them was companyvicted under both the sections and sentenced to rigorous imprison- ment for five years under section 366, Indian Penal Code, numberseparate sentence having been passed under section 143.The appellants preferred an appeal to the High Court of Judicature at Patna. The appeal was heard by a Bench companysisting of S. K. Das and C. P. Sinha, JJ. There was a difference of opinion between the two learned Judges as to the companystitutionality of section 30 of the Code of Criminal Procedure. S. K. Das, J., took the view that the impugned section did number bring about any discrimination or inequality between persons similarly circumstanced and companysequently did number offend the equal protection clause of the Constitution, while C. P. Sinha, J., was of the opinion that 1048 the section was hit by article 14. The appeal was thereupon placed before Reuben, C. J., who in agreement with S. K. Das, J., held that section 30 did number violate the inhibition of article 14. The learned Chief Justice upheld the companyviction but reduced the sentence. On application by the appellants the High Court granted them a certificate under article 132 1 and the present appeal has been filed accordingly. The learned Advocate appearing in support of the appeal companytends before us, as was done before the High Court, that there had been an infraction of the fundamental rights guaranteed to the appellants under article 14 of the Constitution of India. The companyplaint is that the appellants had been tried by a section 30 Magistrate and number by a Court of Session. A section 30 Magistrate is enjoined by that section to try the case brought before him as a Magistrate and accordingly in cases like the present case he will follow the warrant procedure which is different from the procedure followed by a Court of Session. The substance of the grievance is that a trial before the Sessions Judge is much more advantageous to the accused person in that he gets the benefit of the companymitment proceedings before a Magistrate and then a trial before the Sessions Judge with the aid of the jury or assessors. It has number been seriously questioned before us that in spite of the risk of imposition of a punishment heavier than what a section 30 Magistrate can inflict, a trial by a Sessions Judge is of greater advantage to the accused than a trial before a Magistrate under the warrant procedure. We have, therefore, to see whether this apparent discrimination offends against the equal protection clause of our Constitution. The provisions of article 14 of the Constitution have companye up for discussion before this Court in a number of cases., namely, Chiranjit Lal Chowdhuri v. The Union of India 1 , The State of Bombay v. F. N. Balsara 2 , The State of West Bengal v. Anwar Ali Sarkar 3 , Kathi Raning Rawat v. The State of Sau- 1 1950 S.C.R. 869. 2 1951 S.C.R. 682. 3 1952 S.c. R. 284. 1049 rashtra 1 , Lachmandas Kewalram Ahuja v. The State of Bombay 2 and Qasim Razvi v. The State of Hyderabad 3 and Habeeb Mohamad v. The State of Hyderabad 4 . It is, therefore, number necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is number well-established that while article 14 forbids class legislation, it does number forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two companyditions must be fulfilled, namely, i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped togetber from others left out of the group and ii that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under companysideration. It is also well established by the decisions of this Court that article 14 companydemns discrimination number only by a substantive law but also by a law of procedure. The companytention number put forward as to the invalidity of the trial of the appellants has, therefore to be tested in the light of the principles so laid down in the decisions of this Court. There are numberless than four modes of trial prescribed by the Code of Criminal Procedure, namely, i trial of sessions cases, ii trial of warrant cases, iii summary trials and trials before a High Court and a Court of Session and the procedure in each of these trials is different. Section 28 of the Code of Criminal Procedure which is to be found in Chapter III which deals with Powers of Courts reads as follows- Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried- 1 1952 S.C.R. 435. 3 1953 S.C.R. 581. 2 1952 S-C R. 710. 4 1953 S.C.R. 661. 1050 a by the High Court, or b by the Court of Session, or c by any other Court by which such offence is shown in the eighth companyumn of the second schedule to be triable. Section 30, as it number stands, provides- In Assam, Madhya Pradesh, Punjab, Oudh, Madhya Bharat, Hyderabad, Mysore, Patiala and East Punjab States Union and Rajasthan, in all Part C States and in those parts of the other States in which there are Deputy Commissioners or Assistant Commissioners the State Government may, number- withstanding anything companytained in section 28 or section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences number punishable with death. Section 34 puts a limit to the power of punishment of a section 30 Magistrate in terms following- The Court of a Magistrate, specially empowered under section 30, may pass any sentence authorised by law, except a sentence of death or of transportation for a term exceeding seven years or imprisonment for a term exceeding seven years. It will be numbericed that section 28 begins with the clause subject to the other provisions of this Code. This means that the section and the second schedule referred to therein are companytrolled by the other provisions of the Code including the provisions of section 30. Further, the text of section 30 itself quite clearly says that its provisions will operate numberwithstanding anything companytained in section 28 or section 29. Therefore, the provisions of section 28 and the second schedule must give way to the provisions of section 30. It is number, however, claimed by the learned Attorney-General that section 30 abrogates or overrides altogether the provisions of section 28 and the second schedule in the sense that in the specified territories Magistrates empowered -under section 30 become the only tribunal companypetent to try all offences number punishable with death to the exclusion of all other Courts mentioned in the 8th companyumn of the second schedule. 1051 If that had been the position, then there companyld be numberquestion of discrimination, for, in that situation, section 30 Magistrates Court would be the only Court in which all offences number punishable with death would become triable. As already stated, this extreme claim is number made by the learned Attorney-General. The effect of the State Government investing the District Magistrate or any Magistrate of the first class with power under section 30 is to bring into being an additional companyrt in which all offences number punishable with death become triable. In other words, the effect of the exercise of authority by the State Government under section 30 is, as it were, to add in the 8th companyumn of the second schedule the Magistrate so em- powered as a Court before whom all offences number punishable with death will also be triable. The question is whether this result brings about any inequality before the law and militates against the guarantee of article 14. Section 30, however, empowers the State Government in certain areas to invest the District Magistrate or any Magistrate of the first class with power to try as a Magistrate all offences number punishable with death. There is an obvious classification on which this section is based, namely, that such power may be companyferred on specified Magistrates in certain localities only and in respect of some offences only, namely, all offences other than those punishable with death. The Legislature understands and companyrectly appreciates the needs of its own people which may vary from place to place. As already observed, a classification may be based on geographical or territorial companysiderations. An instance of such territorial classification is to be found in the Abducted Persons Recovery and Restoration Act, 1949 which came up for discussion before this Court and was upheld as valid in The State of Punjab v. Ajaib Singh 1 . S. K. Das, J., and the learned Chief Justice have in their respective judgments referred to certain circumstances, e.g. the distance between the place of occurrence and the headquarters where 1 1953 S.C R. 254. 135 1052 the Court of Session functions at companysiderable intervals, the inconvenience of bringing up witnesses from the interior, the difficulty of finding in the backward or out of the way places sufficient number of suitable persons to act as jurors or assessors, all of which make this classification quite a reasonable one. In this sense, the section itself does number bring about any discrimination whatever. The section only authorises the State Government to invest certain Magistrates with power to try all offences number punishable with death and this authority the State can exercise only in the specified places. If the State invests any Magistrate with powers under section 30 anybody who companymits any offence number punishable with death and triable by a Court of Session under section 28 read with the second schedule is also liable to be tried by the section 30 Magistrate. The risk of such liability falls alike upon all persons companymitting such an offence. Therefore, there is numberdiscrimination in the section itself. The learned companynsel for the appellants, however, companytends, on the strength of the decision of the Supreme Court of America in Yick, Wo v. Peter Hopkins 1 that though a law be fair on its face and impartial in operation, yet, if it is administered by public authority with an evil eye and an unequal hand so as practically to make illegal discrimination between persons in similar circumstances materially to their rights, the denial of equal justice is still within the prohibition of the Constitution. The companytention is that although the section itself may number be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up a person accused of an offence under section 366 to a section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can companymit the accused to the Court of Session. It is necessary to examine this companytention with close scrutiny. When a case under section 366, Indian Penal 1 1886 118 u.s. L.Ed. 220. 1053 Code., which is a case triable by a Court of Session under the second schedule, is put up before a section 30 Magistrate, the section 30 Magistrate is number necessarily bound to try the case himself. Section 34 limits the power of the section 30 Magistrate in the matter of punishment. If the section 30 Magistrate after recording the evidence and -before framing a charge feels that in the facts and circumstances of the case the maximum sentence which he can inflict will number meet the ends of justice he may, instead of disposing of the case himself, act under section 347 and companymit the accused to the Court of Session. Here, whether the accused person shall be tried by the section 30 Magistrate or by the Court of Session is decided number by the executive but is decided according to the discretion judicially exercised by the section 30 Magistrate himself. Take the case of another person accused of an affence under section 366 which is sent up by the police to a Magistrate who is number empowered under section 30. Such Magistrate after perusing the challan and other relevant papers may, if he thinks that the ends of justice will be met if the case is tried by a section 30 Magistrate, submit the case to the District Magistrate with his own recommendations for such action as the latter may think fit to take under section 528 of the Code of Criminal Procedure. That is what was done in the instant case. On the other hand, he may take evidence under section 208 and after the evidence has been taken, make up his mind judicially whether he should proceed under section 209 or section 210. He may companysider that in the facts and circumstances of the case disclosed in the evidence the ends of justice require that the accused person should be companymitted to the Court of Session and in that event he will proceed to frame a charge and follow the provisions of sections 210 to 213. If, however, the Magistrate is satisfied on the facts of the case that the ends of justice will be sufficiently met if the accused is tried by a section 30 Magistrate having jurisdiction in the matter, the Magistrate may report to the District Magistrate and the latter may, in his discretion, withdraw the case under section 528 of the 1054 Code of Criminal Procedure to himself and may enquire into or try such case himself or refer it for enquiry or trial to any other Magistrate companypetent to try the same. In such a case there is exercise of judicial discretion at two stages, namely, under section 209 by the Magistrate before whom the accused was sent up for enquiry and also by the District Magistrate acting under section 528 of the Code of Criminal Procedure. It is thus clear that the ultimate decision as to whether a person charged under section 366 should be tried by the Court of Session or by a section 30 Magistrate does number depend merely on the whim or idiosyncrasies of the police or the executive Government but depends ultimately on the -proper exercise of judicial discretion by the Magistrate companycerned. It is suggested that discrimination may be brought about either by the Legislature or the Executive or even the Judiciary and the inhibition of article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of anyone of the three limbs of the State. It has, however, to be remembered that, in the language of Frankfurter, J., in Snowden v. Hughes 1 , the Constitution does number assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State. The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may number necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination See per Stone, C.J., in Snowden v.Hughes supra . It may be mentioned at once that in the present case there is numbersuggestion whatever that there has been at any stage any intentional or purposeful discrimination as against the appellants by the Sab-Divisional Magistrate or the District Magistrate or the section 30 Magistrate who actually tried the accused. Further, the discretion of judicial officers is number arbitrary and the law provides for revision by 1 1914 321 U.S. 1 88 L. Ed. 497. 1055 superior Courts of orders passed by the Subordinate Courts. In such circumstances, there is hardly any ground for Apprehending any capricious discrimination by judicial tribunals. On the facts and circumstances of this case we find ourselves in agreement with S. K. Das, J., and Reuben, C. J., and hold that numbercase of infringement of fundamental right under Article 14 has been made out.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 43 of 1954. Appeal under Article 132 1 of the Constitution of India from the Judgment and Order dated the 22nd November 1952 of the Judicial Commissioners Court, Ajmer, in Misc. Petition No. 226 of 1952. C. Chatterji I. N. Shroff, with him for the appellant. Porus A. Mehta and P. G. Gokhale for the respondents. 1954. December 3. The judgment of Mehr Chand Mahajan C.J., Mukherjea, Vivian Bose, Bhagwati and Venkatarama Ayyar JJ. was delivered by Bose J. The judgment of Das and Jagannadhadas JJ. was delivered by Jagannadhadas J. BOSE J.-The appellant is the Istimrardar of Kharwa. According to him, be has held a cattle fair on his estate every year for some twenty years. On 8-1-1951 the Chief Commissioner of Ajmer framed certain rules for the regulation of cattle and other fairs in the State of Ajmer. He purported to do this under sections 40 and 41 of the Ajmer Laws Regulation of 1877 Reg. III of 1877 . One of the rules required that persons desiring to hold fairs should obtain a permit from the District Magistrate. Accordingly the appellant applied for a permit. This was refused on the ground that numbermore permits were to be issued to private individuals. The appellant thereupon applied under article 226 of the Constitution to the Judicial 1067 Commissioners Court at Ajmer for the issue of a writ directing the authorities companycerned to permit the appellant to hold his fair as usual. He companytended that his fundamental rights under the Constitution were infringed and also that the rules promulgated by the Chief Commissioner were ultra vires the Regulation under which he purported to act. The learned Judicial Commissioner refused to issue the writ but granted leave to appeal under article 132 1 of the Constitution in the following terms I am of opinion that the question whether the regulation and the bye-laws framed thereunder amount to a reasonable restriction on the appellants fundamental right to hold a cattle fair in his own land involves a substantial question of law as to the interpretation of the Constitution. The leave is companyfined to the vires of the Regulation and the bye-laws but we allowed the appellant to attack the, validity of the District Magistrates action as well. It is admitted that the land on which the fair is numbermally held belongs to the appellant. That being so, he has a fundamental right under article 19 1 f which can only be restricted in the manner permitted by sub-clause 5 . The holding of an annual fair is an occupation or business within the meaning of article 19 1 g , therefore, the appellant also has a fundamental right to engage in that occupation on his land provided it does number infringe any law imposing reasonable restrictions on that right in the interests of the general public, or any law relating to- the professional or technical qualifications necessary for practising or carrying on the occupation or business in question. Article 19 6 as amended in 1951 . The only law relevant here is sections 40 and 41 of Regulation III of 1877. Under section 40, the Chief Commissioner is empowered, among other things, to make rules about- 1068 a the maintenance of watch and ward, and the establishment of a proper system of companyservancy and sanitation at fairs and other large public assemblies b the imposition of taxes for the purposes mentioned in clause a of this section on persons holding or joining any of the assemblies therein referred to b the registration of cattle. Section 41 provides for penalties in the following terms The Chief Commissioner may, in making any rule under this Regulation, attach to the breach of it, in addition to any other companysequences that would entire from such breach, a punishment, on companyviction before a Magistrate, number exceeding rigorous or simple imprisonment for a month or a fine of two hundred rupees, or both. These sections were number impugned in the argument before us number were they attacked in the petition made to the Judicial Commissioner, so we will pass on to the rules made by the Chief Commissioner. The first three sub-rules of Rule I deal with permits. They prohibit the holding of a fair except under a permit issued by the District Magistrate, and the District Magistrate is enjoined to- satisfy himself, before issuing any permit, that the applicant is in a position to establish a proper system of companyservancy, sanitation and watch and ward at the fair. The fourth sub-rule empowers the District Magistrate to revoke any such permit without assigning any reasons or giving any previous numberice. When the appellant applied for a permit on 9-7-1952 the District Magistrate replied It has been decided that as a matter of policy permits to hold fairs will be issued only to local bodies and number to private individuals. It is, therefore, regretted that you cannot be permitted to hold the fair and you are therefore requested to please abandon the idea. In our opinion, the rules travel beyond the Regu- 1069 lation in at least two respects. The Regulation empowers the Chief Commissioner to make rules for the establishment of a system of companyservancy and sanitation. He can only do this by bringing a system into existence and incorporating it in his rules so that all companycerned can know what the system is and make arrangements to companyply with it. What he has done is to leave it to the District Magistrate to see that persons desiring to hold a fair are in a position to establish a proper system of companyservancy, etc. But who, according to this, is to determine what a proper system is obviously the District Magistrate. Therefore, in effect, the rules empower the District Magistrate to make his own system and see that it is observed. But the Regulation companyfers this power on the Chief Commissioner and number on the District Magistrate, therefore the action of the Chief Commissioner in delegating this authority to the District Magistrate is ultra vires. Further, under the fourth sub-rule of Rule I the District Magistrate is empowered to revoke a permit granted without assigning any reasons or giving any previous numberice. This absolute and arbitrary power uncontrolled by any discretion is also ultra vires. The Regulation assumes the right of persons to hold fairs, and all it requires is that those who do so should have due regard for the requirements -of companyservancy and sanitation and in order that they may know just what these requirements are, the Chief Commissioner number some lesser authority is given the power to draw up a set of rules stating what is necessary. If they are in a position to observe these rules, they are, so far as the Regulation is companycerned, entitled to hold their fair, for there is numberother law restricting that right. Therefore, the Chief Commissioner cannot by Rule invest the District Magistrate with the right arbitrarily to prohibit that which the law and the Constitution, number only allow, but guarantee. As these sub-rules of Rule I are ultra vires, the District Magistrates order, which in effect prohibits the holding of the fair, is also bad for, without the aid of these rules or of some other law validly 1070 empowering him to impose the ban, he has numberpower in himself to do it. The matter is companyered by the decision of this Court in Tahir Hussain v. District Board, Muzafarnagar 1 . The appeal is allowed and the order of the Judicial Commissioner is set aside. We declare that the rules are void to the extent indicated above and we quash the order of the District Magistrate dated 18-9-1952. But we make numberorder about companyts because the point on which we have proceeded was number taken in proper time in this Court. JAGANNADHADAS J.-The order of the District Magistrate dated the 18th September, 1952, declining to grant a permit to hold the cattle fair on the ground that it has been decided to issue permits only to local bodies and number to private individuals is bad for two reasons. The rules under which he is to grant or refuse permits in this behalf only authorise him to satisfy himself that the applicant is in a position to establish a proper system of companyservancy, sanitation and watch and ward at the fair and also to impose such terms and companyditions as he may deem fit. But they do number authorise him to reject an application on the ground on which he has done. The rules themselves under which the permit has been asked for and with reference to which the District Magistrate declined to grant the permit are number within the ambit of the rule-making power. These rules purport to have been framed in exercise of the powers companyferred by sections 40 and 41 of the Ajmer Laws Regulation, 1877. Section 40 authorises the framing of the rules for the maintenance of watch and ward and the establishment of a proper system of companyservancy and sanitation at fairs and other large public assemblies. But the actual rules as framed are to the effect 1 that numbersuch fair can be held except under a permit of the District Magistrate, 2 that before issuing a permit the District Magistrate is to satisfy himself that the applicant is in a position A.I.R. 1954 S C. 630, 1071 tion and watch and ward at the fair, 3 that when issuing a permit the District Magistrate can impose such terms and companyditions as he may deem fit. The net effect of these rules is merely to establish a system of ad hoc companytrol by the District Magistrate through the issue of a permit and by the vesting of other powers in him under the rules. These cannot be said to be rules which in themselves companystitute a system of companyservancy, sanitation and watch and ward. Thus the result that is brought about is number within the intend- ment of the section which authorises the making of the rules. A system of ad hoc companytrol of responsible officers may, possibly be one method of regulating the sanitary and other arrangements at such large gatherings. But if it is intended to companystitute a system of ad hoc companytrol with reasonable safeguards, the power to make rules in that behalf must be granted to the rule-making authority by the legislative organ in appropriate language. The impugned order of the District Magistrate being bad on both the above grounds, this is enough to dispose of the appeal and it is number necessary to express any opinion as to whether the impugned order infringes also the appellants fundamental rights under article 19.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 61 of 1953. Appeal from the Judgment and Decree dated the 16th day of May, 1952 of the High Court of Judicature at Calcutta in Appeal from Original Decree No. 124 of 1951 arising out of the decree dated the 25th day of May, 1951 of the High Court of Calcutta in its Ordinary Original Civil Jurisdiction in Suit No. 3614 of 1950. C. Setalvad, Attorney-General for India, P. Mandaland P. Varma, with him , for the appellant. C. Chatterjee, A. N. Sinha and P. C. Dutta, with him , for the respondent. 1954. December 3. The Judgment of the Court was delivered by BHAGWATI J.-This appeal with certificate from the High Court of Judicature at Calcutta arises out of the suit filed on the original side of the High Court by the appellant against the respondent to recover a sum of Rs. 1,25,962-2-0 with interest and companyts, 1073 The appellant entered into three companytracts, two dated the 8th August 1949 and the third dated the 17th August 1949 with the respondent agreeing to purchase 1,80,000 bags of B twills at the price of Rs. 134/4/- per 100 bags, 1,80,000 bags at the rate of Rs. 135/4/- per 100 bags and 90,000 bags at the rate of Rs. 138/- per 100 bags respectively for October, November and December 1949 deliveries in equal monthly instalments on terms and companyditions companytained in the relative companytract forms of the Indian Jute Mills Association. In September 1949 the respondent expressed its inability to deliver the goods under the said companytracts and requested the appellant to settle the same by selling back the goods under the said companytracts to the respondent at the price of Rs. 161-8-0 per 100 bags. Three settlement companytracts were accordingly entered into between the parties on the 28th September 1949 whereby the appellant agreed to sell the goods under the original companytracts to the respondent at the rate of Rs. 161- 8-0 per 100 bags on the terms and companyditions companytained in the relative companytract forms of the Indian Jute Mills Association. The appellant duly submitted to the respondent his bills for the amounts due at the foot of the said companytracts aggregating to Rs. 1,15,650 which the respondent accepted but failed and neglected to pay in spite of repeated demands of the appellant. The appellant therefore filed the suit for recovery of the said sum with interest and companyts. The respondent filed its written statement companytesting the appellants claim on the main around that the three settlement companytracts above-mentioned were illegal and prohibited by the West Bengal Jute Goods Future Ordinance, 1949. The respondent companytended that it never dealt in the sale and or purchase of jute goods involving actual delivery of possession thereof, number did it possess or have companytrol over any godown and other means or equipments necessary for the storage and supply of jute goods and that therefore the said settlement companytracts were void and number binding upon it and that the appellant was number entitled to any relief as prayed. The Trial Court negatived the companytention of the respon- 1074 dent and decreed the appellants -claim. The learned Judges of the Appeal Court however came to the companyclusion that the said settlement companytracts were companytracts relating to the purchase of jute goods made on a forward basis by the respondent number being a person who habitually dealt in the sale or purchase of jute goods involving the actual delivery of possession thereof and were therefore void and unenforceable. The only right which the appellant had against the respondent was to have the said original companytracts settled on the basis of the last closing rate in a numberified market which was Rs. 146/14/- per 100 bags. No such claim was however made by the appellant. A further companytention which was raised by the respondent, viz. that the Ordinance was ultra vires was negatived by the Court. But in view of its finding on the main issue the Appeal Court dismissed the appellants suit with companyts. The relevant provisions of the West Bengal Jute Goods Future Ordinance, 1949 were as under- Section 2. In this Ordinance,- unless there is anything repugnant in the subject or companytext- Contract relating to jute goods futures means a companytract relating to the sale or purchase of jute goods made on a forward basis- a providing for the payment or receipt, as the case may be, of margin in such manner and on such dates as may be specified in the companytract, or b by or with any person number being a person who, habitually deals in the sale or purchase of jute goods involving the actual delivery of possession thereof, or possesses, or has companytrol over, a godown and other means and equipments necessary for the storage and supply of jute goods 3. 1 The Provincial Government may, from time to time, if it so thinks fit, by numberification in the Official Gazette prohibit the making of companytracts, relating to jute goods futures and may, by like numberification, withdraw such prohibition 1075 When the making of companytracts relating to jute goods futures is prohibited by a numberification under sub-section I ,- a numberperson shall make any such companytract or pay or receive any margin except, in the case of any such companytract made prior to the date of the numberification, to the extent to which the payment or receipt, as the case may be, of margin is allowable on the basis of the last closing rate in a numberified market c numberwithstanding anything companytained in any other law for the time being in force,- every such companytract made, and every claim in respect of margin, in companytravention of the provisions of clause a , shall be void and unenforceable, and every such companytract made prior to the date of publication of the numberification shall be varied and settled on the basis of the last closing rate in a numberified market. Explanation-In this sub-section,- a last closing rate means the rate fixed by the Directors of a numberified market to be the closing rate of such market immediately preceding the date of publication of the numberification under sub-section 1 prohibiting the making of companytracts relating to jute goods futures and b numberified market means a jute goods futures market recognised by the Provincial Government by numberification in the Official Gazette. The Ordinance came into force on. the 22nd September 1949. In pursuance of the power companyferred under section 3 1 of the Ordinance the Government of West Bengal issued a numberification, being numberification No. 4665 Com. dated the 23rd September 1949 prohibiting the making of companytracts relating to jute goods futures on and from the date of publication of the numberification in the Official Gazette and by another numberification No. 4666 Com. of the same date recognised certain jute goods futures markets for the purpose of Para. b of the Explanation to section 3 2 as numberified markets. These numberifications were published in the 1076 Calcutta Gazette on the same day, the 23rd September 1949. The relevant terms and companyditions of the standard form of the Indian Jute Mills Association companytracts may be companyveniently set out here- Buyers to give 7 Clear Working days numberice to place goods alongside Payment to be made in cash in exchange for Delivery Orders on Sellers, or for Railway Receipts, or for Docks Receipts or for Mates Receipts which Docks Receipt or Mates Receipts are to be handed by a Ships or -Docks officers to the Sellers representatives . The Buyers hereby acknowledge, that so long as such Railway Receipts or Mates or Docks Receipts whether in Sellers or Buyers names are in the possession of the Sellers, the lien of the sellers, as unpaid vendors, subsists both on such Railway Receipts Docks or Mates Receipts and the goods they represent until payment is made in full. There were other terms and companyditions appertaining to the delivery of goods under the companytracts including inspection by the buyers, insurance, tender, etc. The settlement companytracts were also practically in the same form except that in the body of the companytracts it was mentioned that the particular companytract represented settlement of an original companytract which had been already entered into between the parties and that the buyers in the settlement companytract would pay to the sellers the difference at the particular rate on due date. In respect of the goods deliverable under the companytracts the mills would, in the case of goods sent by them alongside the vessel in accordance with the shippers instructions in that behalf, obtain the mates receipts in respect of the same and such mates receipts would be delivered by the mills to their immediate buyers who in their turn would pass them on to their respective buyers in the chain of companytracts resting with the ultimate shipper. If the mills held the goods in their godown they would issue 1077 delivery orders on the due date, which delivery orders would be dealt with in the same manner as the mates receipts aforesaid. Both these sets of documents would represent the goods and would be passed on from seller to buyer against payment of cash. As a matter of fact on the evidence the learned Trial Judge held that in the Calcutta jute trade mills delivery orders are ordinarily issued by the mills against cash payment and pass from hand to hand by endorse- ment and are used in the ordinary companyrse of business authorising the endorsee to receive the goods which they represent and that they are dealt with in the market as representing the goods. The Appeal Court accepted this position and further found that in the instant case the mills who held the goods sold them to A, A to B, B to the defendant to the plaintiff to C and C to the shipper. This is what is known as a chain companytract. It is admitted by the plaintiff, that the mills give the delivery order to A. A endorses it to B, B to the defendant, defendant to the plaintiff and so on. The question that falls to be determined on these facts and circumstances is whether the settlement companytracts mentioned above companyld be called companytracts between the appellant and the respondent involving the actual delivery of possession of the goods. It was companymon ground that the companytracts did number provide for the payment or receipt of margin. It was also companymon ground that the respondent did number possess or have companytrol over a godown and other means and equipments necessary for the storage and supply of jute goods. The only point at issue was whether the respondent was a person who habitually dealt in the sale or purchase of jute goods involving the actual delivery of possession thereof and the companytention which was vehemently urged on behalf of the respondent in the Courts below was that the transactions were purely speculative, that mere delivery orders passed between the parties, which delivery orders did number represent the goods and the transfer thereof did number involve as between the intermediate parties actual delivery of possession of the goods but 1078 differences in rates were only paid or received by the parties. The appellant on the other hand companytended that the delivery orders represented the goods, that each successive buyer paid to his immediate seller the full price of the goods represented by the delivery order in cash before the relative delivery order was endorsed in his favour and thus obtained number only the title to the goods but actual delivery of possession thereof and that in any event when the goods were delivered alongside the vessel or actual delivery was taken by the ultimate buyer there was the giving and taking of actual delivery of possession of the goods all along the chain at the same moment. The Trial Court accepted the companytention of the appellant that the delivery orders are dealt with in the market as representing the goods and that they pass from hand to hand by endorsement being received by the successive buyers against cash payment land are used in the ordinary companyrse of business authorising the endorsee to receive the goods which they represent. The learned Trial Judge further observed Now visualize the long chain of companytracts in which the defendants companytract is one of the companynecting links. The defendant buys from its immediate seller and sells to its immediate buyer. As seller it is liable to give and as buyer it is entitled to take delivery. As seller it receives and as buyer it shipping instructions. Similar shipping instruction is given by each link until it reaches the mills.The mills deliver the goods alongside the steamer.Such delivery is in implement of the companytract betweenthe mills and their immediate buyer. But eo instanti it is also in implement of each of the chain companytracts including the companytract between the defendant and its immediate buyer and the companytract between the defendant and its immediate seller. Not only does the mill give and its immediate buyer take actual delivery but eo instanti each middleman gives and takes actual delivery. Simultaneously the defendant takes actual delivery of possession of the jute goods from its immediate seller and gives actual delivery of possession 1079 of jute goods to its immediate buyer. Prima facie at the moment of the delivery alongside the steamer there is appropriation and the passing of the property in the goods and the giving and taking of actual delivery of possession thereof all along the chain at the same moment. The learned Trial Judge then referred to the following observations of Lord Wright in Nippon Yusen Kaisha v. Ramjiban 1 in regard to the standard form of the Indian Jute Mills Association companytract- This is a form under which the entire export business in gunnies in Calcutta is companyducted In the present case the sale being free alongside, the property prima facie passes when the goods are appropriated by delivery alongside in implement of the companytracts, and added- The sale and purchases of the defendant where there is actual shipment and delivery of possession of the goods alongside the vessel involves actual delivery of possession of the jute goods. The delivery of the goods alongside the vessel is physical delivery of the goods and necessarily changes the actual custody of the goods. It is said that there is numberactual physical delivery of the goods by the defendant himself. The Legislature, however, does number say that the dealer must himself give actual delivery of the goods. I cannot read in the statute words which are number there and say that the dealer must himself give delivery of the goods in order to companye within the definition in sub- section 2 1 b i of the Ordinance. The Legislature simply insists that the sales and purchases of the dealer involve actual delivery of possession of the jute goods. I do number see why the sales and purchases do number involve actual delivery if such actual delivery is given number by the dealer but by a third party in performance of and in relation to the sales and purchases of the dealer. Even the buyer and the seller of jute goods over the companynter rarely takes and gives manual delivery of the goods. Very often such manual delivery is given and taken number by the buyer and 1 1938 L. R. 65 1. A. 263. 1080 seller but by their respective servants and agents. I do number see why instead of the buyers and sellers employees and servants giving and taking delivery of the goods somebody else on their behalf gives and takes delivery such delivery is number actual delivery of possession of the goods. The learned Judges of the Appeal Court however did number accept this view and misdirected themselves both in regard to the facts and the position in law. They took it that numbere of the parties in the chain companytracts paid the actual price of the goods except the shipper who took delivery of the goods from the mills against payment. They wrongly assumed that A endorsed the delivery order over to B and took the difference, B in his turn endorsed the delivery order to the defendant and took the difference and so on and companycluded that numberody was companycerned to pay the actual price or take delivery of the goods except the shipper who took the goods and paid the price to the mills. This assumption was absolutely unwarranted, the evidence on record being that each of the successive buyers paid to his immediate seller the full price of the goods represented by the delivery order in cash against the endorsement of the relative delivery order in his favour by the seller. The learned Judges of the Appeal Court also laid unwarranted emphasis on the words actual delivery of possession and companytrasted actual delivery with symbolical or companystructive delivery and held that only actual delivery of possession meaning thereby physical or manual delivery was within the intendment of the Ordinance. Delivery has been defined in section 2 2 of the Indian Sale of Goods Act as meaning voluntary transfer of possession from one person to another and if numberhing more was said delivery would number only include actual delivery but also symbolic or companystructive delivery within the meaning of the term. The use of the word actual in section 2 1 b i of the Ordinance was companysidered by the Appeal Court as indicative of the intention of the Government to include within the scope of the exemption only cases of actual delivery of possession as 1081 companytrasted with symbolical or companystructive delivery. This companystruction in our opinion is too narrow Even if regard be had to the mischief which was sought to be averted by the promulgation of the Ordinance, the Government intended to prevent persons who dealt in differences only and never intended to take delivery under any circumstances, from entering into the market. Provided a person habitually dealt in the sale or purchase of jute goods involving delivery of the goods, he-was number to be included in the ban. This companyld be the only intendment of the Ordinance, because otherwise having regard to the ordinary companyrse of business in jute goods would become absolutely impossible. The manufacturer of jute goods does number companye numbermally into direct companytact with the shipper. It is only through a chain of companytracting parties that the shipper obtains the goods from the manufacturer and if only actual delivery of possession as companytrasted with symbolical or companystructive delivery were companytemplated it would be impossible to carry on the business. If the narrow companystruction which was put by the Appeal Court on the expression actual delivery of possession was accepted it would involve each one of the intermediate parties actually taking physical or manual delivery of the goods from their sellers and again in their turn giving physical or manual delivery of the goods which they had thus obtained to their immediate buyers. Such an eventuality companyld never have been companytemplated by the Government and the only reasonable interpretation of the expression actual delivery of possession can be that actual delivery as companytrasted with mere dealings in differences was within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as companystructive delivery of possession. Once this companyclusion is reached it is easy to visualise the companyrse of events. The mates receipts or the delivery orders as the case may be, represented the goods. The sellers banded over these documents to the buyers against cash payment, and the buyers obtained these documents in token of delivery of 1082 possession of the goods. They in turn passed these documents from hand to hand until they rested with the ultimate buyer who took physical or manual delivery of possession of those goods. The companystructive delivery of possession which was obtained by the intermediate parties was thus translated into a physical or manual delivery of possession in the ultimate analysis eliminating the unnecessary process of each of the intermediate parties taking and in his turn giving actual delivery of possession of the goods in the narrow sense of physical or manual delivery thereof. It is necessary to remember in this companynection that the words used in section 2 1 b i are involving the actual delivery of possession thereof. The word involving in the companytext means resulting in and this companydition would be satisfied if the chain companytracts as entered into in the market resulted in actual delivery of possession of goods in the ultimate analysis. The Appeal Court was therefore clearly in error when it put a narrow companystruction on the expression actual delivery of possession and held that the transactions were purely speculative and the parties in numberevent. companytemplated actual delivery of possession of the goods. The learned Trial Judge was in our opinion companyrect in his appreciation of the whole position on facts as well as in law and in negativing the companytention of the respondent. In view of this companyclusion it is unnecessary to companysider the argument which was submitted before us based upon the definition of documents of title in section 2 4 and the provisions of section 30, proviso to section 36 3 and the proviso to section 53 1 of the Indian Sale of Goods Act that all the documents of title enumerated in section 2 4 were assimilated to a bill of lading and a mere transfer of the documents of title in favour of a buyer was tantamount to a transfer of possession of the goods represented thereby. The companytention that the Ordinance was ultra vires was number seriously pressed before us. We may however add that the Appeal Court rightly held that the 1083 Ordinance came within Head 27 of List 2 of the Seventh Schedule of the Government of India Act--Trade and companymerce within the Province markets and fair money lending and money lenders, and that the Provincial Legislature was companypetent to legislate on that topic.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 105 of 1953. Appeal by Special Leave granted by this Courts Order dated the 24th September, 1951 from the Judgment and Decree dated the 2nd day of September, 1949 of the High Court of Judicature at Bombay in Appeal No. 274 of 1948 from Original Decree arising out of the Decree dated the 30th day of July, 1946 of the Court of Civil Judge, Senior Division at Hubli in Special Suit No. 56 of 1944. R. Bengeri and Sardar Bahadur for the appellant. B. Jathar and I. N. Shroff for respondents Nos. 3, 4 and 5. 1954. December 10. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J.-This appeal raises a question of importance whether a widow can exercise a power of adoption companyferred on her or possessed by her at any time during her life irrespective of any devolution of property or changes in the family or other circumstances and even after a grandson has companye on the scene but has subsequently died without leaving a widow or a son. The situation in which this question arises can properly be appreciated by reference to the following genealogy 1137 Dyamappa ----------------------------------------------------------- Kalasappa Krishtarao RadhabaiGangabai deft.2 Deft.1 Senior widow Junior window Gurunath Appellsnt adopted by Gsngsbai on 18-11-53 Dattatraya son ------------------ died 1913 Sundarabai died after her husband in 1913 Kamalabai Yamunabai Resp.1 Resp.2 ------------------------------------ Kalasappa Jagannath predeceased died 1914 Dattatraya ---------------------------------------------------------------- Girimaji Hanamanta ------------------------------------------------------ Malhar Ganesh Resp.3 Resp.5 Venkatesh Hanamant Resp.4 Resp.6 1138 Gurunath, the plaintiff, claims that he was adopted in 1943 by Gangabai, widow of Krishtarao. Krishtarao died in 1890, leaving him surviving two widows Radhabai and Gangabai and a son Dattatraya. Dattatraya died in 1913 leaving him surviving a widow Sundarabai and a son Jagannath. Sundarabai died shortly after Dattatraya while Jagannath died in the year 1914. After an interval of about 30 years since his death, it is alleged that Gangabai who survived both her son, and grandson adopted the plaintiff, and thus raised the problem which we are called upon to solve. On the 15th of March, 1944 the appellant instituted the suit out of which this appeal arises in forma pauperis on the allegation that he was the adopted son of Krishtarao and adopted to him by Gangabai, his junior widow, and as such was entitled to the possession of his adoptive fathers properties companyprised in the suit. He also claimed a declaration regarding the amount of companypensation money payable to the plaintiffs family for the land acquired by Hubli Municipality. The defendants who are the sons and grandsons of the first companysin of Krishtarao disputed the plaintiffs adoption on the ground that Gangabais power to adopt was extinguished when Dattatraya died in 1913, leaving behind him a widow Sundarabai and a son Jagannath who companyld companytinue the family line. Gangabai in her written statement supported the plaintiffs claim and asserted that the senior widow Radhabai had given companysent to her adopting the plain- tiff. The trial judge upheld the defendants companytention and dismissed the plaintiffs suit. The factum of the plaintiffs adoption was however upheld, and it was further held that Radhabai did number give her companysent to the adoption. On appeal this decision was affirmed by the High Court and it was held that Gangabais power to adopt came to an end at the time when her son died leaving a son and a widow to companytinue the family line. No finding was given on the question whether Radhabai had given her companysent to the adop- tion. That perhaps would have been the simplest way to end the dispute. Against the decision of the High 1139 Court this appeal in forma pauperis is number before us by special leave. The only question canvassed in the appeal is in respect to the validity of the plaintiffs adoption. It was companytended that Hindu Shastric Law itself sets numberlimit to the exercise of the widows power of adoption once she has acquired that power or is possessed of it, and that being so, the power can be exercised by her during her life-time when necessity arises for the exercise of it for the purpose of companytinuing the line of her husband. On the other hand, it was argued that though Hindu Shastric Law itself sets numberlimit to the exercise of the power, yet it has long been judicially recognised that the power is number an unlimited and absolute one, and that it companyes to an end when another heir has companye on the scene and he has passed on to another the duty of companytinuing the line. The question at what point of time the widows duty of companytinuing the line of the husband companyes to an end has been the subject-matter of a number of decisions of Indian High Courts and of the Privy Council and the point for our companysideration is whether the limits laid down in these decisions have been arbitrarily fixed and are number based on sound principles and should be reviewed by us. A brief reference to -the different decisions of the Privy Council is necessary for a proper appreciation of the state of law on this subject at the present moment. The two leading cases on this point are the decisions of the Privy Council arising out of the adoption made by Shrimati Chundrabullee and decided in 1876 and 1878. The judgment in the first of these cases, i.e. in Bhoobun Moyee v. Ram Kishore 1 was delivered by Lord Kingsdown. What happened there was that one Gour Kishore died leaving a son Bhowanee and a widow, Chundrabullee, to whom he gave authority to adopt in the event of his sons death. Bhowanee married and died at the age of 24 without issue, but leaving him surviving his widow Bhoobun 1 1965 10 M.I.A. 279. 146 1140 Moyee. Chundrabullee then adopted Ram Kishore. Ram Kishore brought a suit against Bhoobun Moyee for the recovery of the estate. The Privy Council held that the claim of Ram Kishore failed on the ground that even if he had been in existence at the death of Bhowanee he companyld number displace the widow of the latter. It was further held that at the time when Chundrabullee professed to exercise her power of adoption, the power was incapable of execution on the ground that Bhowanee had married and left a widow as his heir. The following quotation from the judgment of Lord Kingsdown may be cited as indicating the reasons for the decisions In this case, Bhowanee Kishore had lived to an age which enabled him to perform-and it is to be presumed that he had performed-all the religious services which a son companyld perform for a father. He had succeeded to the ancestral property as heir he bad full power of disposition over it he might have alienated it he might have adopted a son to succeed to it if he had numbermale issue of his body. He companyld have defeated every intention which his father entertained with respect to the property. On the death of Bhowanee Kishore, his wife succeeded as heir to him and would have equally succeeded in that character in exclusion of his brothers, if he had any. She took a vested estate, as his widow, in the whole of his property. It would be singular if a brother of Bhowanee Kishore, made such by adoption, companyld take from his widow the whole of his property, when a natural-born brother companyld have taken numberpart. If Ram Kishore is to take any of the ancestral property, he must take all he takes by substitution for the natural-born son, and number jointly with him The question is whether the estate of his son being unlimited, and that son having married and left a widow his heir, and that heir having acquired a vested estate in her husbands property as widow, a new heir can be substituted by adoption who is to defeat that estate, and take as an adopted son what a legitimate son of Gour Kishore would number have taken. 1141 This seems companytrary to all reason and to all the principles of Hindoo law, as far as we can companylect them If Bhowanee Kishore had died unmarried, his mother, Chundrabullee Debia, would have been his heir, and the question of adoption would have stood on quite different grounds. By exercising the power of adoption, she would have divested numberestate but her own, and this would have brought the case within the ordinary rule but numbercase has been produced, numberdecision has been cited from the Text- books, and numberprinciple has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated,. and divested. In the result the suit of Ram Kishore was dismissed. After the deaths of Bhoobun Moyee and Chundrabullee, Ram Kishore got possession of the property under a deed of relinquishment executed in 1869 in his favour by Chundrabullee, who herself had entered into possession of the property as mother and next heir of Bhowanee Kishore after the death of Bboobun Moyee in 1867. If Ram Kishores adoption was good he was undoubtedly the next heir to the property. A distant companylateral however claimed the estate on the ground that his adoption was invalid. The Privy Council then held that upon the vesting of the estate in the widow of Bhowanee, the power of adoption of Chudrabullee was at an end and incapable of execution and that Ram Kishore had therefore numbertitle. This was the decision in Padma Coomari v. Court of Wards 1 wherein a second effort to maintain the validity of his adoption by Chundrabullee was made but without success. The High Court in its judgment in Padma Coomaris case 1 remarked that the decision in Bhoobun Moyee v. Ram Kishore 2 did number decide that Chundrabullee companyld number adopt on the extinction of the issue either of natural-born son or of the first to be adopted son, and that if Chundrabullee had on the death of Bhoobun Moyee made the adoption and so divested her own estate,, there would be 1 1881 L.R. 8 I.A, 229. 2 1865 10 M.I.A. 279, 1142 numberhing in the judgment of the Privy Council and numberhing in the law to prevent her doing that which her husband authorised her to do, and which would certainly be for his spiritual benefit, and for that of his ancestors and even of Bhowanee Kishore. The learned Judges of the High Court proceeded then to observe as follows With all respect, therefore, we imagine that Lord Kingsdown must have said by inadvertence, in reference to the idea of adopting a son to the great grandfather of the last taker, that at that time all the spiritual purposes of a son, according to the largest companystruction of -them, would have been satisfied and again, Bhowanee Kishore had lived to an age which enabled him to perform, and it is to be presumed that he had performed, all the religious services which a son companyld perform for a father. There is really numbertime at which the performance of these services is finally companypleted, or at which the necessity for them companyes to an end. To this Sir Richard Couch, who delivered the judgment of the Privy Council, gave a very emphatic answer in these terms The substitution of a new heir for the widow was numberdoubt the question to be decided, and such. substitution might have been disallowed, the adoption being held valid for all other purposes, which is the view that the lower Courts have taken of the judgment, but their Lordships do number think that this was intended. They companysider the decision to be that, upon the vesting of the estate in the widow of Bhowanee, the power of adoption was at an end, and incapable of execution. And if the question had companye before them without any previous decision upon it, they would have been of that opinion. The adoption intended by the deed of permission was for the succession to the zemindary and other property, as well as the performance of religious services and the vesting of the estate in the widow, if number in Bhowanee himself, as the son and heir of his father, was a proper limit to the exercise of the power. The question of limitations upon the power of the 1143 widow to adopt thus stated in the Chundrabulle series of decisions was again affirmed by the Judicial Committee in Thayammal and Kuttiswami Aiyan v. Venkatarama Aiyan 1 decided in 1887 and in Tarachurn v. Suresh Chunder 2 decided in 1889. In the year 1902 this question came up for companysideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra v. Shamrao 3 . There a grandmother succeeded to her grandson who died unmarried andit was held that her power to make an adoption hadcome to an end and that the adoption was invalid. Chandavarkar, J., who delivered the judgment of the Full Bench, enunciated the principle in these words Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving numberson but his own widow to companytinue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived. This principle was approved and applied by the Judicial Committee in Madana Mohana v. Purushothama Deo 4 in these words Their Lordships are in agreement with the principle laid down in the judgment of the Full Court of Bombay as delivered by the learned judge, and they are of opinion that, on the facts of the present case, the principle must be taken as applying so as to have brought the authority to adopt companyferred on Adikondas widow to an end when Brojo, the son she originally adopted, died after attaining full legal capacity to companytinue the line either by the birth of a natural-born son or by the adoption to him of a son by his own widow. The next and the most important decision of the Judicial Committee in regard to this matter was given in the year 1933 in Amarendra Mansingh v. Sanatan 5 where there was a departure from or at least a reorientation of the old doctrine, and stress was laid on the spiritual rather than on the temporal aspect 1 1887 L.R. 14 I.A. 67. 3 1902 I.L R. 26 Bom. 526. 2 1889 L.R. 16 I.A. 166. 4 1918 L.R. 45 I.A. 150. 5 1933 L R. 60 I.A. 242. 1144 of adoption, linking it up with the vesting and divesting of the estate. There a Hindu governed by the Benaras school was survived by an infant son and a widow, to whom he had given authority to adopt in the event of the son dying. The son succeeded to his fathers impartible zamindari but died unmarried at the age of 20 years and 6 months. By a custom of the family which excluded females from inheritance the estate did number go to his mother but became vested in a distant companylateral. A week after the sons death she made an adoption. It was held that the adoption was valid and it divested the estate vested by inheritance in the companylateral. All the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Board. At page 248 of the report it is said as follows In their Lordships opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the companytinuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the companytinuance, the fathers duty has been performed and the means provided by him for its fulfilment spent the debt be owed is discharged, and it is upon the new generation that the duty is number cast and the burden of the debt is number laid. It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognised as the inherent right of the son, is altogether a secondary companysideration that the validity of an adoption is to be determined by spiritual rather than temporal companysiderations that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the companysequent devolution of property a mere accessory to it. Having regard to this well-established doctrine as to the religious efficacy of sonship, their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man, The Hindu law itself sets numberlimit 1145 to the exercise of the power during the lifetime of the widow and the validity of successive adoptions in companytinuance of the line is number well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any companysiderations of property. But that there must be some limit to its exercise, or at all events some companyditions in which it would be either companytrary to the spirit of the Hindu doctrine to admit its companytinuance, or inequitable in the face of other rights to allow it to take effect, has long been recognised both by the Courts in India and by this Board, and it is upon the difficult question of where the line should be drawn, and upon what principle, that the argument in the present case has mainly turned. In another part of the judgment their Lordships observed as follows It being clear upon the decisions above referred to that the interposition of a grandson, or the sons widow, brings the mothers power of adoption to an end, but that the mere birth of a son does number do so, and that this is number based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the companytinuance of the line for spiritual purposes which was upon the father, and was laid by him companyditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the sons lifetime will revive. The learned companynsel for the appellant placed reliance upon the last sentence in the passage in the Privy Council judgment quoted above and companytended that if the power of -the widow which remained suspended during the lifetime of the son companyld revive on the son dying sonless and unmarried, logically the power must also revive when the son and his widow and the grandson and his widow all died out. Reliance was also placed on the passage already cited in which 1146 their Lordships laid emphasis on the proposition that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the companysequent devolution of property a mere accessory to it and it was companytended that the grounds on which an outside limit was laid on the exercise of the widows power in the Chundrabullee series of decisions numberlonger survived, in view of the ratio in Amarendras decision and that it having been held that the power of adoption did number depend on and was number linked with the devolution of property or with the question of vesting or divesting of property and companyld be exercised whenever necessity for companytinuing the line arose, it should be held that when the son and his widow were dead and the grandson to whom he handed the torch for companytinuing the line also died, the power of Gangabai to make the adoption revived and thus the adoption was valid. This argument, in our opinion, is number well founded as it is based on an incorrect apprehension of the true basis of the rule enunciated in this judgment, the rule being that where the duty of providing for the companytinuance of the line for spiritual purposes which was upon the father and was laid by him companyditionally upon the mother, has been assumed by the son and by him passed on to the grandson or to the sons widow, the mothers power is gone. In the words of Chandavarkar, J. affirmed by the Judicial Committee in Madana Mohana v. Purushothama Deo 1 the power having once been extinguished it cannot afterwards be revived. In other words the true rule is this When a son dies before attaining full legal companypetence and does number leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands over that torch to another, the mother can numberlonger take it. The companytention of the learned companynsel therefore that even if the second generation dies without taking steps to companytinue the line the grandmother still 1 1918 L R. 45 I.A. 156. 1147 retains her authority and is still under a duty to companytinue the line cannot be sustained. The three propositions that the Privy Council laid down in Amarendras case therefore cannot number be questioned. These propositions may be summed up in these terms That the interposition of a grandson, or the sons widow, companypetent to companytinue the line by adoption brings the mothers power of adoption to an end 2 that the power to adopt does number depend upon any question of vesting or divesting of property and 3 that a mothers authority to adopt is number extinguished by the mere fact that her son had attained ceremonial companypetence. The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji 1 and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil 2 . One of the propositions enunciated in this decision was number accepted by this companyrt in Shrinivas Krishnarao Kango v. Narayan Devji Kango 3 , but that apart numberdoubt was cast in this decision on the above rule. The result of these series of decisions is, that number for about three quarters of a century the rule that the power of a widow to adopt companyes to an end by the interposition of a grandson or the sons widow companypetent to adopt has become a part of Hindu Law. though the reasons for limiting the power may number be traceable to any Shastric text and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the companyrts have authority to decide cases on principles of justice, equity and good companyscience and it is number possible to bold that the reasons stated in support of the rule are number companysistent with these principles. During the arguments numbersubstantial grounds have 1 1935 L.R 62 I.A. 161. 2 1943 L.R. 70 I.A. 232. 3 1955 1 S.C.R. 1. 1148 been suggested for holding that the rule is either in- equitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are numberlimitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widow powers of a limited character and there is numberhing in the limitations laid down by the companyrse of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption companyes to an end by the interposition of a grandson or the sons widow companypetent to companytinue the line by adoption. The learned companynsel for the appellant placed companysiderable reliance on two decisions of the Indian High Courts in support of his companytention and suggested that the rule laid down in Amarendras case had numberapplication to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this companynection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram 1 . There a Hindu died leaving a widow and his son and the son died leaving a widow only who re-married. It was held that the power of the mother revived on the re-marriage of the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgment If the observation quoted from Amarendra Mansingh v. Sanatan Singh 2 be understood as limited to the case where the widow D or the grandson E stands between is interposed the grand widow C and her power, everything is clear except for the 1 1941 I.L.R. Nagpur 178. 2 1933 I.L.R. 12 Pat. 642, 658. 1149 words and can never be revived quoted from Ramkrishna v. Shamrao 1 . Strictly the above is the true meaning of their Lordships words. That amounts to numberhing more than this that while D or E is alive and companypetent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the interposition is ended. Logic says that as the death of the son removes his inter- position whereupon Cs power revives so the death of D removes her interposition and so Cs power revives. In our judgment there is number only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was where the duty of providing for the companytinuance of the line for spiritual purposes which was upon the father, and was laid by him companyditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone. If that is the true reason, obviously the duty having companye to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram 2 was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh 3 . The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added though under some misapprehension that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and number the decision above referred to. The authority of this later decision therefore is companysiderably shaken by this error and even otherwise the decision gives numberindependent reasons of its own apart from those companytained in the Nagpur case. 1 1902 I.L.R. 26 Bom. 526. 2 1941 I.L.R. Nag, 178. 3 1945 I.L.R. 21 Luck. 1.

Case appeal was rejected by the Supreme Court

Mehr Chand Mahajan, C.J. This appeal raises a question of importance whether a widow can exercise a power of adoption companyferred on her or possessed by her at any time during her life irrespective of any devolution of property or changes in the family or other circumstances and even after a grandson has companye on the scene but has subsequently died without leaving a widow or a son. The situation in which this question arises can properly be appreciated by reference to the following genealogy Dyamappa ----------------------------------------- Kalasappa Girimaji Krishtarao Hanamanta Radhabai Gangabai -------------- Deft. 2 Deft. 1 Senior widow Junior widow Malhar Ganesh Gurunath Resp. 3 Resp. 5 ------------------ Appellant adopted Kamalabai Yamunabai by Gangabai on Venkatesh Hanamant Resp. 1 Resp. 2 18-11-53 Resp. 4 Resp. 6 Dattatraya son died 1913 Sundarabai died after her husband in 1913 ------------------- Kalasappa Jagannath predeceased died 1914 Dattatraya Gurunath, the plaintiff, claims that he was adopted in 1943 by Gangabai, widow of Krishtarao. Krishtarao died in 1890, leaving him surviving two widows Radhabai and Gangabai and a son Dattatraya. Dattatraya died in 1913 leaving him surviving a widow Sundarabai and a son Jagannath. Sundarabai died shortly after Dattatraya while Jagannath died in the year 1914. After an interval of about 30 years since his death, it is alleged that Gangabai who survived both her son, and grandson adopted the plaintiff, and thus raised the problem which we are called upon to solve. On the 15th of March, 1944 the appellant instituted the suit out of which this appeal arises in forma pauperis on the allegation that he was the adopted son of Krishtarao and adopted to him by Gangabai, his junior widow, and as such was entitled to the possession of his adoptive fathers properties companyprised in the suit. He also claimed a declaration regarding the amount of companypensation money payable to the plaintiffs family for the land acquired by Hubli Municipality. The defendants who are the sons and grandsons of the first companysin of Krishtarao disputed the plaintiffs adoption on the ground that Gangabais power to adopt was extinguished when Dattatraya died in 1913, leaving behind him a widow Sundarabai and a son Jagannath who companyld companytinue the family line. Gangabai in her written statement supported the plaintiffs claim and asserted that the senior widow Radhabai had given companysent to her adopting the plaintiff. The trial judge upheld the defendants companytention and dismissed the plaintiffs suit. The factum of the plaintiffs adoption was however upheld, and it was further held that Radhabai did number give her companysent to the adoption. On appeal this decision was affirmed by the High Court and it was held that Gangabais power to adopt came to an end at the time when her son died leaving a son and a widow to companytinue the family line. No finding was given on the question whether Radhabai had given her companysent to the adoption. That perhaps would have been the simplest way to end the dispute. Against the decision of the High Court this appeal in forma pauperis is number before us by special leave. The only question canvassed in the appeal is in respect to the validity of the plaintiffs adoption. It was companytended that Hindu Shastric Law itself sets numberlimit to the exercise of the widows power of adoption once she has acquired that power or is possessed of it, and that being so, the power can be exercised by her during her life-time when necessity arises for the exercise of it for the purpose of companytinuing the line of her husband. On the other hand, it was argued that though Hindu Shastric Law itself sets numberlimit to the exercise of the power, yet it has long been judicially recognised that the power is number an unlimited and absolute one, and that it companyes to an end when another heir has companye on the scene and he has passed on to another the duty of companytinuing the line. The question at what point of time the widows duty of companytinuing the line of the husband companyes to an end had been the subject-matter of a number of decisions of Indian High Courts and if the Privy Council and the point for our companysideration is whether the limits laid down in these decisions have been arbitrarily fixed and are number based on sound principles and should be reviewed by us. A brief reference to the different decisions of the Privy Council is necessary for a proper appreciation of the state of law on this subject at the present moment. The two leading cases on this point are the decisions of the Privy Council arising out of the adoption made by Shrimati Chundrabullee and decided in 1876 and 1878. The judgment in the first of these cases, i.e. in Bhoobun Moyee v. Ram Kishore 1865 10 M.I.A. 279 was delivered by Lord Kingsdown. What happened there was that one Gour Kishore died leaving a son Bhowanee and a widow, Chundrabullee, to whom he gave authority to adopt in the event of his sons death. Bhowanee married and died at the age of 24 without issue, but leaving him surviving his widow Bhoobun Moyee. Chundrabullee then adopted Ram Kishore. Ram Kishore brought a suit against Bhoobun Moyee for the recovery of the estate. The Privy Council held that the claim of Ram Kishore failed on the ground that even if he had been in existence at the death of Bhowanee, he companyld number displace the widow of the latter. It was further held that at the time when Chundrabullee professed to exercise her power of adoption, the power was incapable of execution on the ground that Bhowanee had married and left a widow as his heir. The following quotation from the judgment of Lord Kingsdown may be cited as indicating the reasons for the decisions In this case, Bhowanee Kishore had lived to an age which enabled him to perform - and it is to be presumed that he had performed - all the religious services which a son companyld perform for a father. He had succeeded to the ancestral property as heir he had full power of disposition over it he might have alienated it he might have adopted a son to succeed to it if he had numbermale issue of his body. He companyld have defeated every intention which his father entertained with respect to the property. On the death of Bhowanee Kishore, his wife succeeded as heir to him and would have equally succeeded in that character in exclusion of his brothers, if he had any. She took a vested estate, as his widow, in the whole of his property. It would be singular if a brother of Bhowanee Kishore, made such by adoption, companyld take from his widow the whole of his property, when a natural-born brother companyld have taken numberpart. If Ram Kishore is to take any of the ancestral property, he must take all he takes by substitution for the natural-born son, and number jointly with him The question is whether the estate of his son being unlimited, and that son having married and left a widow his heir, and that heir having acquired a vested estate in her husbands property as widow, a new heir can be substituted by adoption who is to defeat that estate, and take as an adopted son what a legitimate son of Gour Kishore would number have taken. This seems companytrary to all reason and to all the principles of Hindoo law, as far as we can companylect them If Bhowanee Kishore had died unmarried, his mother, Chundrabullee Debia, would have been his heir, and the question of adoption would have stood on quite different grounds. By exercising the power of adoption, she would have divested numberestate but her own, and this would have brought the case within the ordinary rule but numbercase has been produced, numberdecision has been cited from the Text-books, and numberprinciple has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated and divested. In the result the suit of Ram Kishore was dismissed. After the deaths of Bhoobun Moyee and Chundrabullee, Ram Kishore got possession of the property under a deed of relinquishment executed in 1869 in his favour by Chundrabullee, who herself had entered into possession of the property as mother and next heir of Bhowanee Kishore after the death of Bhoobun Moyee in 1867. If Ram Kishores adoption was good he was undoubtedly the next heir to the property. A distant companylateral however claimed the estate on the ground that his adoption was invalid. The Privy Council then held that upon the vesting of the estate in the widow of Bhowanee, the power of adoption of Chundrabullee was at an end and incapable of execution and that Ram Kishore had therefore numbertitle. This was the decision in Padma Coomari v. Court of Wards 1881 L.R. 8 I.A. 229 wherein a second effort to maintain the validity of his adoption by Chundrabullee was made but without success. The High Court in its judgment in Padma Coomaris case 1881 L.R. 8 I.A. 229 remarked that the decision in Bhoobun Moyee v. Ram Kishore 1865 10 M.I.A. 279 did number decide that Chundrabullee companyld number adopt on the extinction of the issue either of natural-born son or of the first to be adopted son, and that if Chundrabullee had on the death of Bhoobun Moyee made the adoption and so divested her own estate, there would be numberhing in the judgment of the Privy Council and numberhing in the law to prevent her doing that which her husband authorised her to do, and which would certainly be for his spiritual benefit, and for that of his ancestors and even of Bhowanee Kishore. The learned Judges of the High Court proceeded then to observe as follows With all respect, therefore, we imagine that Lord Kingsdown must have said by inadvertence, in reference to the idea of adopting a son to the great grandfather of the last taker, that at that time all the spiritual purposes of a son, according to the largest companystruction of them, would have been satisfied and again, Bhowanee Kishore had lived to an age which enabled him to perform, and it is to be presumed that he had performed, all the religious services which a son companyld perform for a father. There is really numbertime at which the performance of these services is finally companypleted, or at which the necessity for them companyes to an end. To this Sir Richard Couch, who delivered the judgment of the Privy Council, gave a very emphatic answer in these terms The substitution of a new heir for the widow was numberdoubt the question to be decided, and such substitution might have been disallowed, the adoption being held valid for all other purposes, which is the view that the lower Courts have taken of the judgment, but their Lordships do number think that this was intended. They companysider the decision to be that, upon the vesting of the estate in the widow of Bhowanee, the power of adoption was at an end, and incapable of execution. And if the question had companye before them without any previous decision upon it, they would have been of that opinion. The adoption intended by the deed of permission was for the succession to the zemindary and other property, as well as the performance of religious services and the vesting of the estate in the widow, if number in Bhowanee himself, as the son and heir of his father, was a proper limit to the exercise of the power. The question of limitations upon the power of the widow to adopt thus stated in the Chundrabullee series of decisions was again affirmed by the Judicial Committee in Thayammal and Kuttiswami Aiyan v. Venkatarama Aiyan 1887 L.R. 14 I.A. 67 decided in 1887 and in Tarachurn v. Suresh Chunder 1889 L.R. 16 I.A. 166 decided in 1889. In the year 1902 this question came up for companysideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra v. Shamrao 1902 I.L.R. 26 Bom 526 . There a grandmother succeeded to her grandson who died unmarried and it was held that her power to make an adoption had companye to an end and that the adoption was invalid. Chandavarkar, J., who delivered the judgment of the Full Bench, enunciated the principle in these words Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving numberson but his own widow to companytinue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived. This principle was approved and applied by the Judicial Committee in Madana Mohana v. Purushothama Deo 1918 L.R. 45 I.A. 156 in these words Their Lordships are in agreement with the principle laid down in the judgment of the Full Court of Bombay as delivered by the learned judge, and they are of opinion that, on the facts of the present case, the principle must be taken as applying so as to have brought the authority to adopt companyferred on Adikondas widow to an end when Brojo, the son she originally adopted, died after attaining full legal capacity to companytinue the line either by the birth of a natural-born son or by the adoption to him of a son by his own widow. The next and the most important decision of the Judicial Committee in regard to this matter was given in the year 1933 in Amarendra Mansingh v. Sanatan 1933 L.R. 60 I.A. 242 where there was a departure from or at least a reorientation of the old doctrine, and stress was laid on the spiritual rather than on the temporal aspect of adoption, linking it up with the vesting and divesting of the estate. There a Hindu governed by the Benaras school was survived by an infant son and a widow, to whom he had given authority to adopt in the event of the son dying. The son succeeded to his fathers impartible zamindari but died unmarried at the age of 20 years and 6 months. By a custom of the family which excluded females from inheritance the estate did number go to his mother but became vested in a distant companylateral. A week after the sons death she made an adoption. It was held that the adoption was valid and it divested the estate vested by inheritance in the companylateral. All the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Board. At page 248 of the report it is said as follows In their Lordships opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the companytinuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the companytinuance, the fathers duty had been performed and the means provided by him for its fulfilment spent the debt he owed is discharged, and it is upon the new generation that the duty is number cast and the burden of the debt is number laid. It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognised as the inherent right of the son, is altogether a secondary companysideration that the validity of an adoption is to be determined by spiritual rather than temporal companysiderations that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the companysequent devolution of property a mere accessory to it. Having regard to this well-established doctrine as to the religious efficacy of sonship, their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man. The Hindu law itself sets numberlimit to the exercise of the power during the lifetime of the widow and the validity of successive adoptions in companytinuance of the line is number well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any companysiderations of property. But that there must be some limit to its exercise, or at all events some companyditions in which it would be either companytrary to the spirit of the Hindu doctrine to admit its companytinuance, or inequitable in the face of other rights to allow it to take effect, has long been recognised both by the Courts in India and by this Board, and it is upon the difficult question of where the line should be drawn, and upon what principle, that the argument in the present case has mainly turned. In another part of the judgment their Lordships observed as follows It being clear upon the decisions above referred to that the interposition of a grandson, or the sons widow, brings the mothers power of adoption to an end, but that the mere birth of a son does number do so, and that this is number based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the companytinuance of the line for spiritual purposes which was upon the father, and was laid by him companyditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the sons lifetime will revive. The learned companynsel for the appellant placed reliance upon the last sentence in the passage in the Privy Council judgment quoted above and companytended that if the power of the widow which remained suspended during the lifetime of the son companyld revive on the son dying sonless and unmarried, logically the power must also revive when the son and his widow and the grandson and his widow all died out. Reliance was also placed on the passage already cited in which their Lordships laid emphasis on the proposition that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the companysequent devolution of property a mere accessory to it and it was companytended that the grounds on which an outside limit was laid on the exercise of the widows power in the Chundrabullee series of decisions numberlonger survived, in view of the ratio in Amarendras decision and that it having been held that the power of adoption did number depend on and was number linked with the devolution of property or with the question of vesting or divesting of property and companyld be exercised whenever necessity for companytinuing the line arose, it should be held that when the son and his widow were dead and the grandson to whom he handed the torch for companytinuing the line also died, the power of Gangabai to make the adoption revived and thus the adoption was valid. This argument, in our opinion, is number well founded as it is based on an incorrect apprehension of the true basis of the rule enunciated in this judgment, the rule being that where the duty of providing for the companytinuance of the line for spiritual purposes which was upon the father and was laid by him companyditionally upon the mother, has been assumed by the son and by him passed on to the grandson or to the sons widow, the mothers power is gone. In the words of Chandavarkar, J. affirmed by the Judicial Committee in Madana Mohana v. Purushothama Deo 1918 L.R. 45 I.A. 156 the power having once been extinguished it cannot afterwards be revived. In other words the true rule is this When a son dies before attaining full legal companypetence and does number leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands over that torch to another, the mother can numberlonger take it. The companytention of the learned companynsel therefore that even if the second generation dies without taking steps to companytinue the line the grandmother still retains her authority and is still under a duty to companytinue the line cannot be sustained. The three propositions that the Privy Council laid down in Amarendras case therefore cannot number be questioned. These propositions may be summed up in these terms That the interposition of a grandson, or the sons widow, companypetent to companytinue the line by adoption brings the mothers power of adoption to an end 2 that the power to adopt does number depend upon any question of vesting or divesting of property and 3 that a mothers authority to adopt is number extinguished by the mere fact that her son had attained ceremonial companypetence. The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji 1935 L.R. 62 I.A. 161 and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil 1943 L.R. 70 I.A. 232 . One of the propositions enunciated in this decision was number accepted by this companyrt in Shrinivas Krishnarao Kango v. Narayan Devji Kango , but that apart numberdoubt was cast in this decision on the above rule. The result of these series of decisions is, that number for about three quarters of a century the rule that the power of a widow to adopt companyes to an end by the interposition of a grandson or the sons widow companypetent to adopt has become a part of Hindu Law, though the reasons for limiting the power may number be traceable to any Shastric text and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the companyrts have authority to decide cases on principles of justice, equity and good companyscience and it is number possible to hold that the reasons stated in support of the rule are number companysistent with these principles. During the arguments numbersubstantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are numberlimitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widows power of a limited character and there is numberhing in the limitations laid down by the companyrse of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption companyes to an end by the interposition of a grandson or the sons widow companypetent to companytinue the line by adoption. The learned companynsel for the appellant placed companysiderable reliance on two decisions of the Indian High Courts in support of his companytention and suggested that the rule laid down in Amarendras case had numberapplication to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this companynection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram 1941 I.L.R. Nagpur 178 . There a Hindu died leaving a widow and his son and the son died leaving a widow only who re-married. It was held that the power of the mother revived on the re-marriage of the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgment If the observation quoted from Amarendra Mansingh v. Sanatan Singh 1933 I.L.R. 12 Pat. 642, 658 be understood as limited to the case where the widow D or the grandson E stands between is interposed the grand widow C and her power, everything is clear except for the words and can never be revived quoted from Ramkrishna v. Shamrao 1902 I.L.R. 26 Bom. 526 . Strictly the above is the true meaning of their Lordships words. That amounts to numberhing more than this that while D or E is alive and companypetent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the interposition is ended. Logic says that as the death of the son removes his interposition whereupon Cs power revives so the death of D removes her interpositions and so Cs power revives. In our judgment there is number only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was where the duty of providing for the companytinuance of the line for spiritual purposes which was upon the father, and was laid by him companyditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone. If that is the true reason, obviously the duty having companye to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram 1941 I.L.R. Nag. 178 was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh 1945 I.L.R. 21 Luck. 1 . The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added though under some misapprehension that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and number the decision above referred to. The authority of this later decision therefore is companysiderably shaken by this error and even otherwise the decision gives numberindependent reasons of its own apart from those companytained in the Nagpur case.

Case appeal was rejected by the Supreme Court

Venkatarama Ayyar, J. This is an appeal by special leave by Karnail Singh and Malkiat Singh against the judgment of the High Court of Punjab companyfirming their companyviction by the Additional Sessions Judge of Ferozepore under section 302, Indian Penal Code, and the sentence of death passed on them. The facts as found by the companyrts below are as follows There had been long standing enmity between the appellants and their party on the one hand and the deceased Gurbaksh Singh and his party on the other, resulting in a number of crimes, and proceedings in companyrt. On the 27th January, 1952, at about sunset time, Gurbaksh Singh was sitting inside his house on the sabbath and his sister Mst. Bholan was in the kitchen. Then the appellants and their men came to the place armed with rifles, got on the roof of the house of Gurbaksh Singh and challenged him to companye out. Gurbaksh Singh and Mst. Bholan went to the kotha and bolted the door from inside. Then the appellants and their men made holes in the roof with spades, ignited inflammable materials, such as dry twigs, and threw them inside the kotha through the holes and set fire to the building. Both Gurbaksh Singh and Mst. Bholan were caught inside and burnt to death. A brother of Gurbaksh Singh called Dev, who had been at that time away, was, according to the prosecution, seized when he subsequently turned up, thrown into the flames and was also burnt to death. Meantime one Gurnam Singh, P.W. 13, a companysin of Gurbaksh Singh and his neighbour, managed to slip out of the village and reported the occurrence at the police station at Nihal Singhwala, a place eight miles away vide Exhibit PQ . It was then 10.30 P.M. On receipt of this information, the police sub-inspector, P.W. 25, went to the village with a posse of companystables and with Gurnam Singh. He found the house mostly burnt and recovered therefrom the charred remains of three dead bodies and they were identified as those of Gurbaksh, Dev and Mst. Bholan. The appellant Karnail Singh was actually seen at that place and arrested on the spot. Malkiat Singh who had been mentioned in Exhibit PQ as one of the participants was found in his house with gunshot wounds and was also arrested. Eventually eight persons, including the appellants, were charged under section 148, Indian Penal Code, for forming an unlawful assembly with the object of burning the house of Gurbaksh Singh and murdering him, Dev and Mst. Bholan, and under section 302 read with section 149 for their murder. The Additional Sessions Judge, Ferozepore, held that the case had number been established beyond doubt as against two of the accused and he accordingly acquitted them. He companyvicted the six others including the appellants under section 148 and section 302 read with section 149 and sentenced them to death. On appeal, the learned Judges of the Punjab High Court held that although there can be numberdoubt whatever that the occurrence took place more or less on the lines described by the prosecution witnesses, and the primary object of the culprits must have been to murder Gurbaksh Singh, deceased, in companysequence of the bitter enmity between him and the main body of the accused and that although it may very well be true that all the six appellants took part in this occurrence, the evidence against the four accused other than the appellants was insufficient to sustain their companyviction, as it companysisted of the testimony of persons who were at a distance of 40 to 50 feet from the scene of occurrence and who claimed to identify the particular accused only by their voice. They were accordingly acquitted. Then dealing with the case against the two appellants they observed that as against them, there was evidence of the two eyewitnesses, Gurnam Singh P.W. 13 and Maghar Singh P.W. 14 , that Maghar Singh was number a reliable witness, that numberhing companyld be urged against the evidence of Gurnam Singh, that even so it would be unsafe to base a companyviction on his evidence alone, but that the presence of Karnail Singh at the spot and the existence of wounds on the person of Malkiat Singh afforded sufficient companyroboration of the evidence of Gurnam Singh. They accordingly companyfirmed the companyviction and sentences as against the appellants. As four of the accused were acquitted in appeal, the learned Judges set aside the companyviction of the appellants under section 149 and substituted section 34, Indian Penal Code, therefore. Two companytentions have been urged on behalf of the appellants, that the evidence which had been accepted by the learned Judges as reliable was insufficient to establish the guilt of the appellants and that their companyviction under section 34 was bad as numbercharge had been framed against them under that section. On the first point, the argument of the learned companynsel for the appellants was that having held that the only eye witness whose evidence was worthy of credence was P.W. 13, and that even his evidence companyld number be acted upon unless it was companyroborated, the learned Judges were in error in holding that there was such companyroboration against the appellants. The circumstances relied on by the companyrt below as companyroborating the evidence of P.W. 13 was that the appellants were proved to have been present at the scene of occurrence and there was numbersatisfactory explanation from them therefore. As regards Karnail Singh, the police sub-inspector, P.W. 25, actually found him emerging out of the burning house with a spear in his hand. He had injuries on his person and his pyjama was blood-stained. He was arrested on the spot and the spear and the pyjama were seized and marked as Exhibits P-12 and P-20. As for Malkiat Singh, his name was mentioned in the first information report, Exhibit PQ, and P.W. 25 went to his house and found him with gunshot wounds and arrested him. In the statement given by Karnail Singh under section 342, Criminal Procedure Code, he stated that when he saw the house of Gurnam Singh on fire, he went there and was assaulted by culprits, that Malkiat Singh came there to help him, that when they were grappling with the culprits he was attacked and Malkiat Singh received a gunshot and thereafter they went away to their houses. The statement of Malkiat Singh also was numbersimilar lines. There was numberevidence that any other person or persons were responsible for the acts and the learned Judges therefore rejected as untrue the explanation of the appellants that they received these injuries while intervening against some unknown assailants on behalf of their bitterest enemy. It is companytended for the appellants that the mere presence of Karnail Singh at the place of occurrence would in itself mean numberhing and that it would amount to companyroboration only if some further act incriminatory in character was proved. With reference to Malkiat Singh, it was argued that the existence of gunshot wounds would be inconclusive as there was numberevidence as to how they were caused. It was companytended that the theory of the learned Judges that Gurbaksh Singh might himself have shot at him through the hole while he was on the roof was wholly unsupported by evidence and opposed to the medical evidence in the case as to the nature of the wounds and to the fact that numbergun was recovered from the house, and that there was accordingly numberhing to companynect Malkiat Singh with the incident at the house of Gurbaksh Singh. With reference to the statements of the accused admitting their presence at the place but explaining that some culprits had set fire to the house and that they went there thereafter, it was argued that if the statements were to be taken into companysideration they must be taken as a whole and that it was number proper to accept the incriminating portion and reject the exculpatory portion thereof and the observations of this companyrt in Hanumant v. State of Madhya Pradesh 1952 S.C.R. 1091. , at page 1111 were relied on in support of this position. The result according to the appellants is that there was number sufficient companyroboration of the evidence of P.W. 13 to support their companyviction. It is necessary in view of this companytention to examine the evidence in order to see what companyroboration there is against each of the appellants. So far as Karnail Singh is companycerned, his presence at the scene of occurrence under the circumstances disclosed in the evidence is suffcient to companyroborate the evidence of P.W. 13. It should be remembered that Gurnam Singh is number an approver. He is a witness against whom the learned Judges had numberhing to say and if they required companyroboration of his evidence it was because he was a relation of the deceased and it was companysidered number safe to base a companyviction on his sole testimony. The companyroboration that is required in such cases is number what would be necessary to support the evidence of an approver but what would be sufficient to lend assurance to the evidence before them, and satisfy them that the particular persons were really companycerned in the murder of the deceased. Vide Lachhman Singh v. State 1952 S.C.R. 839 at p. 845. . Karnail Singh was arrested on the spot with a spear and a bloodstained pyjama, and these are pieces of evidence which would support the inference that he was companycerned in the crime. The case of Malkiat Singh presents greater difficulty. He was arrested in his house with gunshot wounds on his person and unless it companyld be established that they were received at the scene of occurrence that would number be sufficient to companynect him with the crime. We agree that the mention of his name in Exhibit PQ cannot be held to be sufficient companyroboration because that is only the statement of P.W. 13 at an earlier stage and it is number independent evidence. With reference to the statement of the accused under section 342, Criminal Procedure Code, it is true that if it is sought to be used as an admission it must be read as a whole but where it companysists of distinct and separate matters, there is numberreason why an admission companytained in one matter should number be relied on without reference to the statements relating to other matters. In this case the admission of the appellant that he was present at or near the scene of occurrence is distinct and separate from his explanation as to how he received the injuries. The learned Judges having disbelieved, in our opinion rightly, the statement of the appellant that the house was burnt by some unknown enemies of Gurbaksh Singh and that it was they who murdered him, we do number see any objection to the statement of the appellant that he was present at the scene of the occurrence from being used as an admission. Another piece of companyroboration which the learned Judges relied on was that in their view the gunshot wounds must have been received by Malkiat Singh at the house of Gurbaksh Singh. They gave their finding on this point in the alternative. They observed that the injuries might have been caused by Gurbaksh Singh firing from inside the house. But of this there is numberevidence and the medical evidence is in fact opposed to it and as already state, numbergun was recovered from the house of the deceased. In the alternative, they observed that the injuries might have been caused by a shot from one of his own men. This view is supported by the evidence of P.W. 14 who deposed that while the incidents were in progress Malkiat Singh stated that he had been shot be one of his own men and then left the place. It is argued for the appellant that as the learned Judges had declined to act on the evidence of P.W. 14, the alternative suggestion must be ruled out as unsupported by evidence. What all the learned Judges remarked about P.W. 14 was that it was impossible to place any very great reliance on Maghar Singhs evidence. But then they also expressly referred to his evidence on this point Vide page 61 of the record and accepted it as one of the possible alternatives Vide page 65 . And on their finding that the injuries must have been received at the place of occurrence and the theory that Gurbaksh Singh fired the shot being negatived, there is numberdifficulty in holding that they were prepared to accept the evidence of P.W. 14 on this point. Thus there are ample materials for holding that the gunshot wounds were received by Malkiat Singh in the house of Gurbaksh Singh and that is sufficient companyroboration of the evidence of P.W. 13. In this view we must overrule the first companytention. Then the next question is whether the companyviction of the appellant under section 302 read with section 34, when they had been charged only under section 302 read with section 149, was illegal. The companytention of the appellants is that the scope of section 149 is different from that of section 34, that while what section 149 requires is proof of a companymon object, it would be necessary under section 34 to establish a companymon intention and that therefore when the charge against the accused is under section 149, it cannot be companyverted in appeal into one under section 34. The following observations of this companyrt in Dalip Singh v. State of Punjab were relied on in support of this position - Nor is it possible in this case to have recourse to section 34 because the appellants have number been charged with that even in the alternative and the companymon intention required by section 34 and the companymon object required by section 149 are far from being the same thing. It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. Emperor I.L.R. 52 Cal. 197 P.C. , they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section 149 overlaps the ground companyered by section 34. If the companymon object which is the subject-matter of the charge under section 149 does number necessarily involve a companymon intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought number therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under section 149 would be the same if the charge were under section 34, then the failure to charge the accused under section 34 companyld number result in any prejudice and in such cases the substitution of section 34 for section 149 must be held to be a formal matter. We do into read the observations in Dalip Singh v. State of Punjab as an authority for the broad proposition that in law there companyld be numberrecourse to section 34 when the charge is only under section 149. Whether such recourse can be had or number must depend on the facts of each case. This is in accord with the view taken by this companyrt in Lachhman Singh v. The State 1952 S.C.R. 839. , where the substitution of section 34 for section 149 was upheld on the ground that the facts were such that the accused companyld have been charged alternatively either under section 302 read with section 149, or under section 302 read with section 34. Examining the record from this point of view, the findings are that both the appellants who had long standing enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mst. Bholan companypled up within. If it was their object under section 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under section 34. On the facts of this case there can be numberdifference between the object and the intention with which the offenses were companymitted. Our attention was also drawn to the wording of the charge which while mentioning section 149 also sets out that in prosecution of the companymon object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 33 of 1953. Appeal by special leave from the Judgment and Order dated the 16th May, 1951, of the High Court of Judicature at Patna in Miscellaneous Judicial Case No. 126 of 1950, arising out of the Order dated the 17th May, 1949, of the Income-tax Appellate Tribunal, Calcutta Bench, Calcutta, in I.T.A. No. 147 of 1948-49. sukumar Mitra S. N. Mukherjee with him for the appellant. K. Daphtary,. Solicitor-General for India Porus A. Mehta, with him for the respondent 1954. February 9. The Judgment of the Court was delivered by DAS J.--This is an appeal by special leave from the judgment of the Patna High Court delivered on a reference made by the Income-tax Appellate Tribunal under section 66 1 of the Indian Income tax Act. The tribunal referred the following two questions for the opinion of the High Court On the facts and in the circumstances of this case is the surplus of Rs. 13,05,144 arising out of the sale of the plant and machinery of the sugar factory chargeable under section 10 2 vii ? Was the profit of Rs. 15,882 on the sale of stores of the factory taxable under the Income-tax Act in the circumstances of this case ? The reference came up for hearing before a Division Bench companysisting of Shearer and Sarjoo Prasad JJ. and after a prolonged hearing the learned Judges delivered separate judgments on the27th February. 1951, giving divergent answers to the questions, Shearer J. answering both the questions in the negative and Sarjoo Prasad J. giving an affirmative answer to both of them. The matter thereupon was placed before a third Judge, Ramaswami J. who, after a fresh hearing delivered his judgment on the 16th May, 1951, agreeing with Sarjoo Prasad J. on the first question and with Shearer J. on the second question. The result was that the High Court by a majority decision answered the first question in the affirmative, i.e., against the assessee, and the second question in the negative, i,e. in favour of the assessee. The assessee applied to the High Court for leave to appeal to this companyrt against the High Courts decision on the first question. The High Court having declined to grant the necessary certificate the assessee applied for and obtained the special leave of this companyrt to prefer the present appeal. The department has number preferred any appeal against the High Courts decision on the second question and numberhing further need be said about that question. The companytroversy arose in companyrse of the proceedings for the assessment of Pursa Ltd. to income-tax for the assessment year 1945-46, the relevant accounting year companyering the period between the 1st October, 1943, to 30th September, 1944. Pursa Ltd., was a companypany incorporated in 1905 under the Indian Companies Act but all its shareholders and directors were residents in the United Kingdom. The business of the companypany was that of growers of sugarcane, manufacturers of sugar and dealers in sugar. It is companymon ground that the crushing season for the manufacture of sugar is from December to April of each year. It appears that towards the end of 1942 an attempt was made to sell the entire business of the companypany but such attempt did number succeed. It appears from the case filed by the respondent in tiffs appeal that in the middle of 1943 the directors of the companypany companymenced negotiations for the sale of the factory and other assets of the companypany with the ultimate object of winding up the companypany. From the companyrespondence, affidavit and other materials placed before the tribunal and referred to by Sarjoo Prasad J. in his judgment it appears that on the 9th August, 1943, an inventory was prepared and a firm offer was received from Dalmia lain Company Ltd., for the purchase of the factory and stores as on that date. This offer was on the 16th August, 1943, companymunicated by cable to the directors in England. On the 20th August, 1943, the directors, asked the local managers in India to proceed with the matter in anticipation of the sanction of the shareholders which the directors expected to obtain at an extraordinary general meeting to be held very shortly. That meeting, however, was held on the 8th October, 1943, i.e., 8 days after the accounting year had started., At that meeting the firm offer of Dalmia lain Company Ltd. was accepted and a companycluded agreement for sale came into existence. Thereafter instructions were given to the solicitors to draw up the necessary documents. On the 7th December, 1943, a written memorandum of agreement was executed whereby the companypany agreed to sell and demise to Dalmia Jain Company Ltd., free from all mortgages and charges at and for the price of rupees twenty-eight lacs all the lands, buildings, machinery and plant and all vats, reservoirs, cisterns, pumps, machinery, engines, boilers, plant, implements, utensils, tramways, furniture, stores, articles and things as on the ninth day of August, one thousand nine hundred and forty-three subject to subsequent use and companysumption in the ordinary companyrse of business used in companynection with the said sugar factory, but excepting stocks of manufactured sugar and stocks of grain in godown on the ninth day of August, one thousand nine hundred and forty-three and all stores and other articles bought or received by the companypany after the date. Dalmia Jain Company Ltd., paid the sum of rupees twenty-eight lacs on the same day and on the 10th December, 1943, they got possession of the factory. On the date of the aforesaid sale, the companypany possessed sugar stock valued at rupees six lacs which was excluded from the sale. This stock of sugar the companypany companytinued to sell up to June, 1944. It is said that the said stock of sugar was excluded because at the time it was number possible to know at what date such a sale would be companycluded and the sugar produced in 1943 had to be sold by and through the exclusive selling agents of the companypany under a companytract entered into with them. It is, however, number disputed that between the 9th August, 1943, when the firm offer was obtained and the 10th December, 1943, when possession of the factory was made over to Dalmia Jain Company Ltd., the companypany never used the machinery and plant for the purpose of manufacturing sugar or for any other purpose except that of keeping them in trim and running order. Indeed, throughout the accounting period the machinery and plant were number used by the companypany. The companypany went into voluntary liquidation on the 20th June, 1945. The reason for the delay in putting the companypany into liquidation is said to have been caused by companysiderable legal difficulties with regard to the transfer of certain mokarari lands belonging to the companypany. The liquidators appointed by the shareholders of the companypany represented the companypany in the matter of proceedings for assessment of the companypany for the assessment year 1945-46. In the companyrse of these assessment proceedings the Income-tax Officer on the 21st February, 1947, wrote a letter to the liquidators asking for elucidation on certain points. Amongst other things, the Income tax Officer wanted to know the liquidators objection why the companypanys activities during the previous year might number be treated as amounting to a realisation of assets on impending liquidation rather than to the carrying on of business within the meaning of the Income-tax Act. To this letter an answer was sent by the liquidators . on the 19th March, 1947, pointing out that the companypany had gone into liquidation on the 20th June, 1945, and that in view of the date of liquidation the liquidators companyld number agree that the companypany was number carrying on business during the year ended 30th September, 1944, and they further pointed out that the various debits companytained in the sugar factory accounts were those incurred in carrying on the companypanys business. By his letter dated the 17th May, 1947, the Income-tax Officer claimed that large profits which had been made by the companypany on the sale of their machinery and plant were taxable under the second proviso to section 10 2 vii of the Income-tax Act and called upon the liquidators to retain sufficient funds and assets in their hands to meet the heavy tax liabilities that might eventually arise and also to warn the shareholders accordingly. He also asked for certain information which, however, the liquidators did number furnish. The liquidators, in their letter in reply dated the 22nd May, 1947, did number agree that the profits were taxable, for the profits to which reference had been made were number profits arising from a business carried on by the companypany but were profits arising from the companypany ceasing to carry on business. The Income-tax Officer, however, by his order dated the 21st June, 1947, held that the profits of the sale of machinery and plant were liable to assessment under section 10 2 vii of the Act and added a sum of Rs. 13,05,144 to the profits. The Appellate Assistant Commissioner of Income-tax having dismissed the liquidators appeal on the 30th January, 1947, the liquidators went up on further appeal to the Income-tax Appellate Tribunal. By its order dated the 17th May, 1949, the tribunal dismissed that appeal. Upon an application under section 66 1 of the Act the tribunal stated a case to the High Court referring the two. questions herein before set out. The subsequent history of the matter has already been mentioned and needs numberreiteration. The relevant portion of section 10 of the Income-tax Act as amended by Act VI of 1939was as follows -- 10 1 The tax shall be payable by anassessee under the head Profits and gains of business, profession or vocation in respect of the profits or gains of any business, profession or vocation carried on by him. Such profits or gains shall be companyputed after making the following allowances, namely - i ii iii in respect of insurance against risk of damage or destruction of buildings, machinery, plaint, furniture, stocks or stores, used for the purposes of the business, profession or vocation, the amount of any premium paid in respect of current repairs to such buildings, machinery, plant, or furniture, the amount paid on account thereof in respect of depreciation of such buildings, machinery, plant, or furniture being the property of the assessee, a sum equivalent to such percentage on the original companyt thereof to the assessee as may in any case or class of cases be prescribed in respect of any machinery or plant which has been sold or discarded, the amount by which the written down value of the machinery or plant exceeds the. amount for which the machinery or plant is actually sold or its scrap value Provided that such amount is actually written off in the books of the assessee Provided further that where the amount for which any such machinery or plant is sold exceeds the written down value, the excess shall be deemed to be profits of the previous year in which the sale took place It is necessary to bear in mind the meaning and import of the provisions of section 10 2 vii in so far as they apply to the present case. Under section 10 tax is payable by an assessee in respect of the profits or gains of any business, profession or vocation carried on by him. Business is defined by section 2, sub-section 4 as including any trade, companymerce or manufacture, or any adventure or companycern in the nature of trade, companymerce or manufacture. As pointed out by the Judicial Committee in Shaw Wallace Co.s case 1 the fundamental idea underlying each of these words is the companytinuous exercise of an activity and the same central idea is implicit in the words carried on by him occurring in section 10 1 and those critical words are an essential companystituent of that which is to produce the taxable income. Therefore, it is clear that the tax is payable only in respect of the profits or gains of the business which is carried on by the assessee. Sub-section 2 permits allowances to be made before the taxable profits are ascertained. Proviso 2 to clause of that sub-section on which the income-tax authorities have relied makes the excess of sale proceeds over the written down value of any such machinery or plant to be deemed to be profits of the previous year in which the sale took place. Any such machinery or plant in the proviso clearly refers to the machinery or plant in respect of which the allowance is to be given under that clause. Although the word such was number used in the body of clause vii , the scheme of sub-section 2 which is apparent from the other clauses of allowances e.g., iv , v and vi , clearly indicates that the machinery or plant referred to in clause vii must be the same as those mentioned in the earlier clauses, i.e., such machinery or plant as were used for the purposes of the business, profession or vacation. Indeed, the position has been made clear and placed beyond any doubt by the subsequent amendment of 1946 which added the word such in clause vii . The wordsused for the purposes of the business obviously 1 L. R, 59 I.A. 206 at p. 213. mean used for the purpose of enabling the owner to carry on the business and earn profits in the business. In other words, the machinery or plant must be used for the purpose of that business which is actually carried on and the profits of which are assessable under section 10 1 . The word used has been read in some of the pool cases in a wide sense so as to include a passive as well as active user. It is number necessary, for the purposes of the present appeal, to express any opinion on that point on which the High Courts have expressed different views. It is, however, clear that in order to attract the operation clauses v , vi and vii the machinery and plant must be such as were used, in whatever sense that word is taken, at least for a part of the accounting year. If the machinery and plant have number at all been used at any time during the accounting year numberallowance can be claimed under clause vii in respect them and the second proviso also does number companye into operation. In its statement of the case, after referring to its decision that the profits on the sale of machinery and plant were assessable under section 10 2 vii , the tribunal proceeded to state This decision was based on two companysiderations. First, that as admitted by the applicant companypany the companypany had been carrying on its business up to the date of the sale of the machinery, namely, 7th December, 1943. The tribunal was of the opinion that as the applicant companypany had number ceased to carry on its business till the date of the sale of the machinery, it must be held that the sale of the machinery was a part of the applicant companypanys carrying on of the business. The second reason for the decision of the tribunal was that the applicant companypany did number sell its sugar stocks amounting to over Rs.6,00,000, on 7th December, 1943. The applicant companypany s plea that the sugar stocks companyld number be sold as the applicant companypany had sole agents for the sale of sugar, was number accepted by the tribunal. The Income-tax Appellate Tribunal found that sugar companytinued to be sold for more than 6 months after the sale of the machinery and substantial expenses on establishment and general charges companytinued to be incurred. From this the Income-tax Appellate Tribunal companycluded that the sugar stocks had number been sold on 7th December 1943, purposely in order to sell these to the best advantage later on. This, the Income-tax Appellate Tribunal held, showed that the applicant companypany carried on business even subsequent to the sate of machinery on 7th December, 1943. Although the High Court will number disturb or go behind the finding of fact of the tribunal, it is number well settled that where it is companypetent for a tribunal to make findings in fact which are excluded from review, the appeal companyrt has always jurisdiction to intervene if it appears either that the tribunal has misunderstood the statutory language--because the proper companystruction of the statutory language is a matter of law--or that the tribunal has made a finding for which there is numberevidence or which is inconsistent with the evidence and companytradictory of it. See Lord Normand in Commissioners of Inland Revenue v. Fraser 1 . It appears to us that the tribunal misdirected itself in law as to the meaning and import of the relevant provisions of section 10 of the Act. t companypletely overlooked the fact which is plainly in evidence on the record that the machinery and plant which were sold had number at all been used for the purposes of the business carried on in the accounting year and companysequently the second proviso to section 10 2 vii companyld have numberapplication to the sale proceeds of such machinery and plant. In fact the entire decision of the tribunal was vitiated by its failure to keep in view the true meaning and scope of section 10 2 vii and cannot, therefore, be supported. It further appears to us that in the statement of the case the tribunal was number merely stating something in the nature of a primary fact but was also drawing a companyclusion which is to a certain extent companytrary to the primary finding. As is stated clearly in the statement of the case, the decision of the tribunal was based on 1 24 Tax Cas. 498 at p. 501. two companysiderations. The first companysideration was rounded on an admission by the liquidators that the companypany had been carrying on its business up to the date of the sale of the machinery on the 7th December, 1943. This admission is quite companysistent with the case that the companypany was only selling its stock of sugar and number doing any business of manufacture of sugar. Indeed, the manufacturing process does number begin until December of each year and the memorandum of agreement was made on the 7th December, 1943, and possession was delivered to the purchaser on the 10th December, 1943. It is numberodys case and it has number been found that the companypany had manufactured any sugar during the whole of the accounting year. Therefore, this finding that the companypany carried on its business up to the 7th December, 1943, certainly does number indicate that the companypany was also carrying on any business of growing sugarcane or manufacturing sugar by the use of the machinery or plant in question. The second finding that the companypany carried on business even after the sale of the machinery and the plant clearly indicates that that business had numberhing to do with the machinery or plant. Both the findings, therefore, are inconclusive. The matter, however, does number rest there. It appears to us that the findings of fact, taken literally, cannot support the decision of the tribunal. If, as held by the tribunal, the sale of the machinery was a part of the applicant companypanys carrying on of the business then the sale must be regarded as an ordinary operation of such business and companysequently the profits arising out of such ordinary business operation would be assessable under the provisions of section 10 1 and it would number be necessary to have recourse to the statutory fiction created by the second proviso to clause vii under which the excess of the sale proceeds over the written down value is to be deemed to be profits of the business. If the profits on the sale of the machinery and plant are to be made assessable under the second proviso, as has been done by the tribunal, then it must be companyceded that these deemed profits were number in reality the profits of the business carried on by the 2 24 Tax Cases 498 at p. 501. 13--95 S. C.I./59 companypany and, therefore, the sale transaction which brought in these profits was number in fact part of the companypanys business, which companyclusion again will be inconsistent with the finding of fact if the business is number understood as limited only to the selling of sugar. For reasons stated above, it appears to us that having misdirected itself in law as to the scope and effect of the relevant portions of section 10 of the Act the tribunal did number approach the facts from a proper angle and, further, that its findings cannot, in the circumstances of this case, be given such sanctity as would exclude the same from review by the High Court or this companyrt.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 248 of 1953. Appeal under Article 132 1 of the Constitution of India from the Judgment and Order dated the 1st October, 1953, of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ No. 379 of 1953. C. Chatterjee P.K. Chatterjee, with him for the appellant. K. Daphtary, Solicitor-General for- India, K. L. Misra, Advocate-General of Uttar Pradesh C. P. Lal, with them for respondent No. 1. K. Daphtary, Solicitor-General for India Porus A. Mehta, with him for respondent No. 2. 1954. March 30. The Judgment of the Court was delivered by DAS J.-This appeal arises out of an application made by the appellant to the High Court of Allahabad under, article 226 of the Constitution praying for an appropriate writ quashing the order made by the President of India on the 17th April, 1953, ordering the companypulsory retirement of the appellant who had companypleted 25 years qualifying service. The High Court by its judgment dated the 1st October, 1953, dismissed the application but, as the case involved a substantial question of the interpretation of the Constitution, the High Court granted leave to the appellant to appeal to this Court. The material facts may be shortly stated as follows The appellant passed his Civil Engineering degree examinaion from the Thomason College. Roorkee, in 1922. He stood first in order of merit and carried away the Gold Medal and other prizes awarded to the best student of that year. He was appointed by the Secretary of State for India in Council to the Indian Service of Engineers as an Assistant Executive Engineer with effect from the 20th October, 1923. The companyditions governing the appellants terms of appointment, promotion, leave, pension, etc., will be found recorded in a letter issued from India Office, London, on the 13th February, 1924. A companyy of that letter is annexed to the Petition filed under article 226. He was posted in ,the United Provinces. In 1944 the appellant was promoted to the rank of officiating Superintending Engineer. After the attainment of independence by India a fresh agreement was entered into by and between the appellant the Governor of the United Provinces and the Governor General of India on the 16th September, 1948 companyfirming the appellants terms of appointment companytained in the letter of the 13th February, 1924. At or about this time the appellant along with several other officers was recommended by the Chief Engineer for companyfirmation as Superintending Engineer. The appellant, however, was number companyfirmed but companytinued to officiate as Superintending Engineer until the time hereinafter stated. On the 4th January, 1950, the Public Works Department of the U.P. Government addressed a letter to the Chief Engineer, Irrigation Branch U.P. requesting him to companymunicate the letter enclosed therewith to the appellant and to ask him to submit as early as possible whatever explanation he might desire to give. The enclosed letter called upon the appellant to show cause within three weeks why he should number-be companypulsorily retired under the provisions of article 465-A, Civil Service Regulations,as it appeared 1 that he had been making systematic and gross overpayments apparently for numberother reason than to benefit the companytractors companycerned and 2 that he had spent large amounts of public money for his own personal companyvenience and 3 that he had taken recourse to devious and unscrupulous methods. No less than, six instances on which these charges were based. were them set out. The companyering letter companycluded with the following remarks Under the rules Government reserve the right to companypulsorily retire any officer whose retention in service they companysider number to be in the public interest. This is number, therefore, a formal enquiry under the Classification. Control and Appeal Rules but before taking the action indicated above Government were pleased to and an opportunity to Shri Shyam Lal, I.S.E., to show cause why he should number be companypulsorily retired. A companyy of the letter of the 4th January, 1950, together with a companyy of the enclosure was sent to the appellant with the request that his explanation might be forwarded,. within the period mentioned by the Government. The appellant submitted his explanations which, together with the Chief Engineers companyments thereon, were placed before the Union Public Service Commission. The Commission came to the companyclusion that five out of the six charges had been proved and submitted their report accordingly. On the 17th April, 1953, the President, after companysidering the case and the recommendations of the Commission, decided that the appellant should retire forthwith from service under Note I to article 465-A of the Civil Service Regulations. Before this order companyld be served on him the appellant on the 24th April, 1953, filed -before the Allahabad High Court a petition under article 226 of the Constitution praying that the order made by the President on the 17th April, 1953, be quashed on the ground, inter alia, that the order was illegal and void in that it was made without affording him any opportunity to show cause against the action proposed to be taken in regard to him. As already stated, the High Court dismissed the application on, the 1st October, 1953. The present appeal is directed against that order of dismissal. The order of the President which is imppgned by the appellant shows that action was purported to be taken in regard to the appellant under Note 1 to article 465-A of the Civil Service Regulations. Chapter XVIII of the Civil Service Regulations deals with Conditions of Grant of Pension. Article 465-A appears in that Chapter under section V the heading of which is Retiring Pension. There are two numberes appended to the article of which the first one is important for our present purpose. The relevant part of -article 465-A and Note 1 thereto are set out below- 465-A. For officers mentioned in article 349-A, the rule for the grant of retiring pension is as follows 1 A retiring pension is also granted to an officer who is required by Government to retire after companypleting twenty- five years qualifying service or more. Note I.-Government retains an absolute right to retire any officer after he has companypleted twenty-five years qualifying service without giving any reasons, and numberclaim to special companypensation on this account will be entertained. This right will number be exercised except when it is in the public interest to dispense with the further services of an officer. Officers of the Indian Service of Engineers are included amongst the officers mentioned in article 349-A of the Civil Service Regulations. The companytentions urged before us are that the Presidents Order of the 17th April, 1953, is invalid and inoperative for the following reasons 1 that article 465-A of the Civil Service Regulations is number applicable to or binding on the appellant that companypulsory retirement is numberhing but removal from service and the provisions of article 311 of the Constitution apply to the case of companypulsory retirement that Note I to article 465-A of the Civil Service Regulations, in so far as it companyfers on the Government an absolute right to retire an officer, who has companypleted twenty-five years qualifying service without giving any reason, is repugnant to article 311 of the Constitution. It will be necessary to deal with the above points seriatim. Re. i .-It will be remembered that the appellant was employed by the Secretary of State in Council in October, 1923, that is to say, after the Government of India Act, 1919, came into operation. Sub-section 4 of section 96B of that Act provided, for removal of doubts, that all rules in operation at the time of the passing of that Act, whether made by the Secretary of State in Council or by any other authority, relating to the Civil Service of the Crown in India, were duly made in accordance with the powers in that behalf and it companyfirmed the same. But it is urged that as there is numberhing to show that article 465-A of the Civil Service Regulations was in operation at the time of the passing of the Government of India Act, 1919, and that as all that has been shown is only that the article in question was amended and brought. up to its present form in 1922 it cannot be said to have been validated by subsection 4 of section 96B. Reference is then made to sub-section 2 of that section which empowered the Secretary of State in Council to make rules for regula- ting the classification of the Civil Services in India, the methods of their recruitment, their companyditions, of service, pay and allowances, and discipline and companyduct and, by such rules, to delegate the power of making rules to the Governor-General in Council or to local Governments or to authorise the Indian Legislature or local Legislatures to make laws regulating the public services. It is pointed out that sub-section 2 did number empower the Secretary of State in Council to delegate the power to make rules companycerning pensions to any authority in India. Our attention is next drawn to sub-section 3 of section 96B which specially safeguarded the interests of the civil servants employed by the Secretary of State in Council by providing that their right to pensions and the scale and companyditions ,of pensions should be regulated in accordance with the rules in force at the time of the passing of that Act and that, although such rules might be varied or added to by the Secretary of State in Council, such variations or additions should number adversely affect the pension of any member of the service appointed before the date thereof It is urged that number only has article 465-A number been shown to have been in force at the time of the passing of the Government of India Act, 1919, it has also number been shown to have been made by the Secretary of State in Council. In the premises, it is companytended that article 465-A which is set out in section V of Chapter XVIII of the Civil Service Regulations and deals with retiring pensions and has presumably been made by the Governor-General in Council cannot be supported as a valid rule under sub-sections 2 , 3 or 4 of section 96B and can have numberapplication to the appellant who was appointed by the Secretary of State in Council and companysequently the order of the President made in accordance with Note I to that article is illegal and void. The above line of reasoning found favour with the High Court but nevertheless the High Court repelled the companyclusions sought to be established by it on the ground that rule 7 of the Civil Services Classification, Control and Appeal Rules read with rule 26 of those Rules impressed the stamp of validity upon article 465-A of the Civil Service Regulations and made it applicable to the All India Services. Learned companynsel for the appellant challenges the companyrectness of the decision of the High Court in so far. as it is founded on a companystruction of rules 7 and 26 of the Civil Services Classification, Control and Appeal Rules which were first made in December, 1920, and were again pub- lished in 1930 with subsequent amendments. While agreeing with learned companynsel that there is some force in his companytention that the companystruction put upon rule 7 may number be quite companyent or companyvincing we do number companysider it necessary to express any final opinion on that matter, for, in our judgment, the major, premise assumed by the High Court that Note 1 to article 465-A has numberapplication to the appellant cannot be supported or sustained. it appears that by Resolution No. 1085-E.A. passed on the 15th November, 1919, and published in the gazette of India on the same date the Government of India, Finanance Department with the approval of the Secretary of State for India, announced certain new rules relating to retiring pensions of the officers other than military officers or members of the Indian Civil Service and the services specified therein The services so specified included the Public Works Department. The new rules were,, by rule 1, made to apply only to officers joining the above services after the 29th August, 1919, And to those existing officers who elected in writing to companye under their provisions,. The appellant was, employed in October, 1923, and companysequently these new rules applied to him. The material I part of rule 4 of these new rules was as follows - Government will have an absolute right to retire any officer after he has companypleted twenty-five years service, without necessity to give reasons and without any claim for companypensation in addition to pension, and in that event These rules which came into force on their publication in the Official Gazette of the 15th November, 1919, were, therefore, in operation on the 23rd December, 1919, when the Government of India Act, 1919, was passed and were accordingly validated and companyfirmed by sub-section 4 of section 96B of that Act to which reference has already been made. The rules thus companyfirmed by section 96B 4 became applicable to the appellant on his employment by the Secretary of State in October, 1923. In Resolution No. 714-C.S.R. dated the 10th May, 1920, it was announced that with a view to the exact scope of the new pension rules published in Resolution No. 1085-E.A. dated the 15th November, 1919, being made clear the Government of India intended to publish those rules in the form of amendments to the Civil Service Regulations. Accordingly Resolution No. 1003-C.S.R. dated the 18th June, 1920, along with certain amendments to the Civil Service Regulations were published in the Gazette of India of the 19th June, 1920, for general information. The amendments so published provided for the insertion in the Civil Service Regulations of a new article 349-A stating that the rules in certain articles including article 465-A would apply to officers in the services specified therein. The services so specified included the Public Works Department. The amendments also provided for the insertion in the Civil Service Regulations, amongst others, of a new rule as article 465-A with two numberes appended thereto. Omitting clause 1 and numbere 2 which are number relevant for our present purpose that article read as follows 465-A. -For officers mentioned in article 349-A the rule for the grant of retiring pension is as follows- 1 A retiring pension is also granted to an officer who is required by Government to retire after companypleting twenty- five years service or more. Note I.-Government retains an absolute right to retire any officer after he has companypleted twenty-five years service without giving any reasons and numberclaim to special companypensation on this account will be entertained. It will be numbericed that clause 2 and Note I quoted above are word for word the same as clause 2 and Note 1 of article 465-A as we find it number except that the last sentence in Note 1 in the present rule was number in article 465-A Note I when it was published in 1920. It seems that this addition was subsequently made by amendment in 1922 as referred to in the High Court judgment under appeal. It is companytended by learned companynsel for the appellant that article 465-A and Note I thereto came into force only in June, 1920, that is to say, after the Government of India Act, 1919, had been passed and therefore cannot be said to have been companyfirmed by section 96B 4 and being a pension rule made after the date of that Act but number being a rule made by the Secretary of State in Council it cannot under section 96B 3 apply to the appellant who was employed by the Secretary of State. We are unable to accept this argument as sound. As already stated, the new rules were announced by Resolution No. 1085-E. A. passed and published on the 15th November, 1919, and were in force on the 23rd December, 1919, when the Government of India Act, 1919, was passed and companysequently acquired statutory force by virtue of section 96B 4 of,that Act. The subsequent Resolution No. 714-C.S.R. dated the 10th May, 1920, and Resolution No. 1003-C.S.R. referred to above did number and companyld number affect the validity or force of the new rules announced on the 15th November, 1919. The purpose of publishing the new rules in the form of amendments to the Civil Service Regulations, as Resolution No. 714-C.S.R. itself stated expressly, was only to clarify the exact scope of those new rules and number, As suggested by learned companynsel for the appellant, to bring them into force for the first time. The new rules came into operation ex proprio vigore on their publication in the Official Gazette on the 15th November, 1919, and their subsequent publication for general information in the form if amendment to the Civil Service Regulations only served to make their exact scope clear. The real purpose of the incorporation of these rules in the Civil Service Regulations was number to make any number rule at the date of such incorporation but to distribute and post up the rules announced in November, 1919, at appropriate places in the Civil Service Regulations for ready reference. A companyparison of the language used, in Note 1 to article 465-A with that employed in new rule 4 announced by Resolution No. 1085-E.A. dated the 15th November, 1919, will also make it clear beyond doubt that the purpose of Note I is number to companyfer on the Government any new right to companypulsorily retire an officer on companypletion by him of twenty-five years, service but that it is intended to serve as a reminder that the Government already has such right which it, means to retain. One retains only what one already possesses and the word retain is wholly inappropriate for the purpose of companyferring a fresh right. The last sentence of Note I is only an administrative direction, as to when the existing right of the Government is to be exercised. Indeed, article I in. Chapter I of the Civil Service Regulations clearly provides that the regulations therein are intended only to regulate salaries, leave, pension and other allowances and that they do number deal otherwise than indirectly with matters relating to recruitment, promotion, official duties, discipline or the like. In short, the language of Note I to article 465-A makes it abundantly clear that the Governments right to companypulsorily retire an officer is number derived from Note 1. Note I only assumes its existence aliunde and indicates when that existing right is to be, exercised and what companysequences are to follow if that right is exercised.That right is obviously derived from new rule 4 which was announced by Resolution No. 1085-E.A. on the 15th November, 1919. Being in operation at the date of the passing of the Government of India Act, 1919, that rule, by virtue of sub-section 4 of section 96B of that Act, became binding on the appellant although he was employed by the Secretary of State for India. We, therefore, agree with the High Court, though on different grounds, that the first question raised by the appellant must be answered against him. It is unfortunate that the Gazette of India numberifications of the several earlier resolutions referred to above were number made available to the High Court. Re. ii and iii .-It will be companyvenient to deal with these two questions together. Learned companynsel for the appellant urges that even assuming that rule 4 announced by Resolution No. 1085-E.A. and on which Note I to article 465-A of the Civil Service Regulations was based had, on the passing of the Government of India Act, 1919, become binding on the appellants it nevertheless became void on the companying into operation of the Constitution of India by reason of its being repugnant to the provisions of article 31 1 of the Constitution. The argument is that a companypulsory retirement of an officer was numberhing but his removal from service within the meaning of article 311 and as rule 4 as well as Note I to article 465-A of the Civil Service Regulations sanctioned companypulsory retirement without assigning any reason which, in substance, meant without giving him any opportunity to show cause against such action being taken in regard to him, it became repugnant to article 311 of the Constitution and, therefore, became void. The argument, although plausible and attractive, was nevertheless rejected by the High Court and we think it rightly did so. A brief study of the history and development of the rule number embodied in article 311 and a companysideration of the language of that article and the relevant rules will amply companyfirm the companyrectness of this companyclusion. In England the rule was well established from very early times that public offices were held at the pleasure of the Crown. The English companystitutional theory was that the King companyld do numberwrong and accordingly the services of a civil servant companyld be terminated without assigning any reason and numberaction companyld be maintained in the Kings Courts for damages for wrongful dismissal. This principle appears to have been applied even to the servants of the East India Company and certainly to the civil servants after the British Crown took over the territories and the administration thereof from the East India Company. This state of affairs companytinued until 1919 when section 96B of the Government of India Act, 1910, while maintaining that the tenure was during His Majestys pleasure, introduced a minor restriction on this power of dismissal. The relevant portion of sub-section 1 of that section was in the terms following - 96B. 1 Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds -office during His Majestys pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but numberperson in that service may be dismissed by any, authority subordinate to -that by which he was appointed, and the Secretary of State in Council may except so far as he may provide by rules to the companytrary reinstate any person in that service who has, been dismissed. The rest of the sub-section need number be quoted. As already stated, sub-section 4 of this section validated and companyfirmed the then existing rules and sub-section 2 gave power to the Secretary of State for India in Council to make rules for regulating the classification of the civil services in India, the methods of their recruitment, their companyditions of service, pay and allowances,, and discipline and companyduct. In exercise of this power the Secretary of State for India in Council framed certain rules in December, 1920, which with subsequent modifications were published on the 27th May, 1930, as The Civil Services Classification, Control arid Appeal Rules. Rule 49 provides The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services, companyprised in any of the classes 1 to 5 specified in rule 14, namely- Censure. Withholding of increments or promotion, including stoppage at an efficiency bar. Reduction to a lower post or time-scale, or to a lower stage in a time-scale. Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. Suspension. Removal from the civil service of the Crown, which does number disqualify from future employment. Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. Explanation.-The termination of employment a of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service or b of a temporary Government servant appointed otherwise than under companytract, in accordance with rule 5 of the Central Civil Services Temporary Service Rules, 1949 or c of a person engaged under a companytract, in accordance with the terms his companytract does number amount to removal or dismissal within the meaning of this rule or of rule 55. The, relevant portion of rule 55 runs thus Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, numberorder of dismissal, removal or reduction shall be passed on a member of a service other than an order based on facts which had led to his companyviction in a criminal Court or by a Court martial unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself The rest of this rule which lays down the details of procedure to be followed need number be quoted for our present purpose. Under article 353 of the Civil Service Regulations, numberpension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency, but to officers so dismissed or removed companypassionate allowances may be granted when they are deserving of special companysideration, provided that such allowance shall number exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate. It will be numbericed that the rules just referred to company- template and provide for both dismissal and removal from service. As regards pension both dismissal and removal stand on the same footing, namely, that both of them entail loss of pension and even when a companypassionate allowance is granted in either case such allowance is much less than the pension that had been earned. The only difference between dismissal and removal is that while dismissal ordinarily disqualifies the officer from future employment, removal does number. It may also be mentioned here that although the power of dismissal at pleasure was subject to the provisions of this Act and of the rules made thereunder the Judicial Committee held in Rangachari v. Secretary of State 1 and in Venkatarao v. Secretary of State 2 that those opening words of section 96B 1 did number qualify the unfettered discretion of the Crown to dismiss a servant at pleasure and that the remedy of the servant for the violation of the rules was number by a law suit but by an appeal of an official or political kind. Then came the Government of India Act, 1935. Section 240 is important for our purpose. The relevant portions of that section were as follows 240. 1 Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majestys pleasure. No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable L.R. 64 I.A. 40 A.I.R. 1937 P.C. 27. L.R. 64 I.A. 55 A.1,R. 1937 P.C. 37, opportunity of showing cause against the action proposed to be taken in regard to him. The rest of the section is number material for the present discussion. In short, sub-section 1 reiterated the English companystitutional theory, sub-section 2 reproduced the restriction introduced by section 96B 1 of the 1919 Act and sub-section 3 gave statutory protection to the rights companyferred by rule 55 of the Civil Service, Classification, Control and Appeal Rules but which, prior to this Act of 1935, had been held by the Privy Council in the two last cited cases to be ineffective against the Crowns plenary power of dismissal. It will, however, be numbericed that in sub-section 3 the word removed was number used, although that word occurred in rule 55 and the other rules quoted above. It was, however, held in I. M. Lals case 1 that removal was within section 240 3 , which companyclusion implies that removal is companyprised within dismissals The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee there is numberdistinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does number. Finally, we have our new Constitution. Article 3 10 1 reiterates the companystitutional theory of the tenure of office being during the pleasure of the President, the Governor or Rajpramukh as the case may be. Article 311 1 reproduces the provisions of section 240 2 of the Government of India Act, 1935. Clause 2 of article 311, leaving out the proviso, runs thus 2 . No such person aforesaid shall be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The word removal which is used in the rules is also used in this clause and it may safely be taken, for reasons stated above, that under the Constitution removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of dismissal. Indeed, in our recent decision L.R- 75 I,A. 225 A.I.R. 1948 P.C. 121. in Satischandra Anand v. The Union of India 1 it has been said that these terms have been used in the same sense in article 31 1. Removal, like -dismissal, numberdoubt brings about. a termination of service but every termination of service does number amount to dismissal or removal. A reference to the Explanation to rule 49 quoted above will show that several kinds of termination of service do number amount to removal or dismissal. Our recent decision in Satishchandra Anand v. The Union of India supra fully supports the companyclusion that article 311 does number apply to all cases of. termination of service. That was a case of a companytract for temporary service being terminated by numberice under one of the clauses of the companytract itself and fell within clause c of the Explanation to rule 49 and article 311 was held by this Court number to have any application to the case. The question then is whether a termination of service brought about by companypulsory retirement is tantamount to a dismissal or removal from service so as to attract the provisions of article 311 of the Constitution. The answer to the question will depend on whether the nature and incidents of the action resulting in dismissal or removal are to be found in the action of companypulsory retirement. There can be numberdoubt that,removal--I am using the term synonymously with dismissal-generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may companyceivably be companytroverted or explained by the officer. There is numbersuch element of charge or imputation in the case of companypulsory retirement. The two requirements for companypulsory retirement are that the officer has companypleted twenty five years service and that it is in the public interest to dispense with his further services It is true that 1 1953 S.C.R. 655 at p. 659. this power of companypulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to numbere is that the directions in the last sentence in Note 1 to article 465-A make it abundantly clear that an imputation or charge is number in terms made a companydition for the exercise of the power. In other words, a companypulsory retirement has numberstigma or implication of misbebaviour or incapacity. in the present case there was numberdoubt some imputation against the appellant which he was called upon to explain but it was made perfectly clear by the letter of the 4th January, 1950, that the Government was number holding any formal enquiry under rule 55 of the Civil Services Classification, Control and Appeal Rules and that before taking action for his companypulsory retirement the Government desired to give him an opportunity to show cause why that action should number be taken. In other words, the enquiry was to help the Government to make up its mind as to whether it was in the public interest to dispense with his services. It follows, therefore, that one of the principal tests for determining whether a termination of service amounts to dismissal or removal is absent in the case of companypulsory retirement. Finally, rule 49 of the Civil Services Classification, Control and Appeal Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a Penalty. It involves loss of benefit already earned. the officer dismissed or removed does number get pension which he has earned. He may be granted a companypassionate allowance but that, under article 353 of the Civil Service Regulations, is always less than the pension actually earned and is even less than the pension which he would have got had he retired medical certificate. But an officer who is companypulsorily retired does number lose any part of the benefit that he has earned. On companypulsory retirement he will be entitled to the pension etc. that he has actually earned. There is numberdiminution of the accrued benefit It is said that companypulsory retirement, like dismissal or removal, deprives the officer of the chance of serving and getting his pay till he attains the age of superan- nuation and thereafter to get an enhanced pension and that is certainly a punishment. It is true that in that wide sense the officer may companysider himself punished but there is a clear distinction between the loss of benefit already earned and the loss of prospect of earning something more. In the first- case it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore,, be regarded in the eye of the law as a punishment. The more important thing is to see whether b y companypulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal. The answer is clearly in the negative. The second element for determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the case of termination of service brought about by companypulsory retirement. The foregoing discussion necessarily leads us. to the companyclusion that a companypulsory retirement does number amount to dismissal or removal and, therefore, does number attract the provisions of article 311 of the Constitution or of rule 55 and that, therefore, the order of the President cannot be challenged on the ground that the appellant had number been afforded full opportunity of showing cause against the action sought to be taken in regard to him Both the questions under companysideration must also be answered against the appellant. The result, therefore., is that this appeal fails and must stand dismissed.

Case appeal was rejected by the Supreme Court

CRIMINAL APPFLLATE JURISDICTION Criminal Appeals Nos. 58 and 87 of 1953. Appeal by Special Leave granted by- the Supreme Court on the 30th June, 1953, from the Judgment and Order dated the 25th April, 1953, of the Court of the Judicial Commissioner at Ajmer in Criminal Appeal No. 13 of 1953 and Criminal Reference No. 19 of 1953 arising out of the Judgment and Order dated the 18th March, 1953, of the Court of the Sessions Judge at Ajmer in Sessions Trial No. 1 of 1953. Appeal by Special Leave granted by the Supreme Court on the 27th October, 1953, from the Judgment and Order dated the 25th April, 1953, of the Court of the Judicial Commissioner at Ajmer in Criminal Appeals Nos. 14 and 15 of 1953 and Criminal Reference No. 15 of 1953 arising out of the Judgment and Order dated the 18th March, 1953, of the Court of the Sessions Judge at Ajmer in Sessions Trial No. 1 of 1953. Bakhshi Tek Chand Bhagwan Singh and Rajinder Narain, with him for appellant in Criminal Appeal No. 58 of 1953. D. Sharma for respondent in Criminal Appeal No. 58 and appellant in Criminal Appeal No. 87 of 1953. N. Agarwala for respondent in Criminal Appeal No. 87 of 1953. 1954. March 17. The Judgment of the Court was delivered by MAHAJAN C.J.-Criminal Appeals Nos. 58 and 87 of 1953 relate to the same occurrence, and arise out of a companymon judgment delivered by the Judicial Commissioner of Ajmer. Both of them are before us by special leave granted by this companyrt on different occasions. Unless it is shown that exceptional- and special circumstances exist that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of 1135 the decision appealed against, this companyrt does number exercise its overriding powers under article 136 1 of the Constitution and the circumstance that because the appeal has been admitted by special leave does number entitle the appellant to open out the whole case and companytest all the findings of fact and raise every point which companyld be raised in the High Court. Even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for. The question for companysideration is whether this test is satisfied in either of these two appeals. After hearing the learned companynsel. .in both the appeals we are satisfied that numbere of them raise any questions which fall within the rule enunciated above. On the 16th of July, 1952, Mangilal deceased, partner of firm Rambhajan Mangilal of Bijainagar, received by express delivery post a letter Exhibit P-5 in a closed companyer Exhibit P-6. This letter was actually delivered to, Mangilals son Laduram who, on reading it, found that it purported to have been sent by Bhayankar Daku Dal demanding payment of Rs. 5,000 at 6-30 p.m. on the 17th of July at the -crossing near the 27th milestone on the Ajmer-Bijainagar road and -saying that if you cheat or do 420 or in case you inform the police, numberother punishment except that of death will be meted out to you and you will be shot dead and made to lie on the ground. Laduram took the .original letter with the envelope to his uncle Ramjas at Ajmer and both of them saw the Superintendent of Police and gave him the letter and the envelope and asked for immediate protection and investigation. The Superintendent of Police, however, took numberaction in this behalf. Mangilal failed to companyply with the demand ,to pay On the 17th of July about 9-30 p.m. when he was sitting at his shop and his inunim Gajanand was writing the accounts two persons came from the neighbouring street. One of them was dressed in a khaki suit and the other in a blue suit. The man in blue demanded from Mangilal a reply to the letter, while the man in khaki entered the shop and removed Mangilals gun which was hanging in a canvas case from a 1136 peg on the wall of the shop. On Mangilals replying that his son Laduram had taken the letter to Ajmer, the person dressed in blue fired from a Mauser pistol and shot Mangilal dead. The two assailants then ran away. On the way they threw the Mauser pistol and khaki clothes in the street at a short distance from the shop. Mangilal died shortly afterwards. The first information report was lodged by Nand Lal P. W.1 immediately after the occurrence at 9-45 p.m. In this report Nand Lal described the occurrence in the following terms From the lane two men, one of whom was wearing khaki clothes having a hat on the head and the. other wearing blue clothes with a blue cap on the head came near Mangilalji and stood there. The man with khaki clothes said something to Mangilal and the man with blue clothes went straight inside the shop and picked up Mangilals gun from behind the door shutter and brought it out and stood near the khaki clad man, and at that time shot Mangilal with a pistol he had. The prosecution challaned four persons, viz., Hem Raj, appellant in Criminal Appeal No. 58 of 1953, Hukum Singh, respondent in Criminal Appeal No. 87 of 1953, Milap Singh and Abdul Hakim. It was alleged that all the four of them had acted in companyspiracy and realised, money from rich persons through threatening letters and in pursuance of the companyspiracy Exhibit P-5 was sent. Hem Raj and Hukum Singh were arrested on the evening of the 26th July at Bijainagar and were sent to jail on the 28th of July, 1952. On the 30th of July, 1952, Hem Raj made a companyfession in jail before a Magistrate. On the 5th of September, 1952, at the first hearing of the case before the companymitting Magistrate, the companyfession was retracted by means of an application made through companynsel and a number of grounds were given why the companyfession was inadmissible and number of any value. All the accused persons denied the charge. Milap Singh and Abdul Hakim were acquitted by the learned Sessions Judge who how- ever companyvicted Hem Raj and Hukum Singh of the different offences with which they had been charged. Hem Raj and Hukum Singh appealed to the Judicial 1137 Commissioner at Ajmer. Hukum Singhs appeal was allowed but that of Hem Raj was dismissed. As stated already, Hem Rajs appeal before us is by special leave and the State has also appealed against the acquittal of Hukum Singh and that also by special leave. Dr. Tek Chand for Hem Raj raised three points before us That the companyfession was inadmissible in evidence, the prosecution having failed to establish affirmatively that it was free and voluntary and that it was number preceded by any inducement to the prisoner to make a statement held out by a person in authority. It was said that as numberdirect or circumstantial evidence of any kind was available, the police was straining every nerve to get any one of the four persons arrested companyfess, so that he may be given pardon and made an approver. The police was particularly keen to make somebody an approver because of their own negligent companyduct in number giving protection to the deceased when Laduram, his son, had approached the Superintendent of Police with the threatening letter received by him and that the police also had number been able to discover how the pistol had been stolen from its owner. It was companytended that Hem Raj was actually arrested on the 25th July and illegally kept in custody, that even after remand by the Magistrate he was number immediately sent to jail but was taken to the house of the Superintendent of Police and kept there for more than four hours, that all these circumstances raised a strong suspicion against the voluntary character of the companyfession and showed that the police was making efforts by threats and inducements to extort a companyfession from him. It was further suggested that while Hem Raj was in jail the Superintendent of Police paid him a visit. There is numberrelevant evidence to establish this fact. That the Magistrate who recorded the companyfession did number disclose his identity that he was a Magistrate to Hem Raj and that instead of recording the companyfession in his companyrt room he recorded it in jail without any sufficient grounds for doing so and this circumstance also vitiated the companyfession. 1138 That there was numberindependent companyroboration of any of the material facts companytained in the companyfession and that whatever material has been companysidered as companyroboration by the companyrts below was already in the possession of the police before the companyfession was recorded and therefore the companyfession was merely a recital of facts already in possession of the police and was modelled on it and that the police discovered numberhing in pursuance of the companyfession and their knowledge about the material facts of the case was number enriched in any manner by the companyfession and therefore there was numberevidence whatsoever in the case on which the companyviction of the appellant companyld stand. The learned Judicial Commissioner as well as the, learned Sessions Judge companysidered all these companytentions and negatived them and there were valid reasons for doing so. On the question whether the companyfession was voluntary, there are companycurrent findings of the companyrts below and there are numbergrounds for going behind these findings. On the question whether material particulars of the companyfession have been companyroborated, there are again companycurrent findings. All the arguments addressed to us relate to the re-appreciation of evidence which had been believed by the companyrts below and do number warrant interference by us in the decisions of the companyrts below. We have, however, also examined these arguments independently and we have numberhesitation in endorsing the views of the companyrts below. As regards the voluntary nature of the companyfession, the significant fact is that the companyfession was made on the 30th of July, that is, two days after Hem Raj had been lodged in jail, and was number in police custody or amenable to police influence. He had more than 36 hours to make up his mind whether to make a companyfession or number. He is number a rustic but runs a cycle shop in Bijainagar. It is numbereworthy that Hukum Singh was similarly situated and about whom an application had been made that he was willing to companyfess. When , the Magistrate approached him he said that he would only make a statement after companysulting his lawyer and declined to make any statement. Further from the 30th of July till the 5th of September number1139 steps were taken by Hem Raj to resile from his companyfession. There was ample time at his disposal to make an application to the Magistrate or to the District Magisrate that the companyfession had been extorted from him by threats and inducement. On the 5th of September when an application was made by his companynsel refracting the companyfession it was more in the nature of an argument than in the nature of a detailed statement of the facts and circumstances in which the companyfession had been made. When examined under section 342, Criminal Procedure Code, he said that he made the companyfession under threats held out by the Superintendent of Police and Sri Ram Chandra, Sub-Inspector. He further said that the Superintendent of Police told him that if I made a companyfession of my guilt, I would be made an approver the Superintendent of Police said that he was a Vaishya and as I too was a Vaishya he would help me. I told the Superintendent of Police that I would do as he asked me to do. About 10-30 a.m. on the 30th of July Sub-Inspector Ram Chandra came to jail and companypelled me to make a companyfession. The last portion was clearly a lie as there is numberevidence whatsoever that Ram Chandra visited him at the time the Magistrate recorded his companyfession. The Magistrate who recorded the companyfession has been examined, and he states that he told the prisoner that he was a Magistrate and that he companyplied with all the requirements of law in recording the companyfession. The memorandum made by him shows that the following questions were put to Hem Raj Do you wish to make a, companyfession?, to which Hem Raj replied Yes . Are you making it of your own free will and without the companypulsion of anybody? the answer was Yes. The third question was You are number bound to make a companyfession. Do you understand this?? The answer was Yes. The fourth question. was If you make a companyfession it maybe used in evidence against you. Do you realize this? The answer was Yes . The last question was Shall I record your companyfession ? The answer was II Yes . It was after these queries that a companyfession companyering about 21 pages and full of details which are precise and cannot be 1140 described as vague was recorded. The police companyld number even dream of these details or make an effort to tutor such a detailed companyfession to the prisoner and it is absolutely unthinkable that such a tutored companyfession companyld be narrated by Hem Raj to the Magistrate after 36 hours of any possible attempt made to tutor him. As a matter of fact, some of the facts companytained in the companyfession and indicated later were number even known to the police then. The companyfession companytained the usual endorsement that the companyfession was voluntary and all the necessary matters had been explained to the prisoner before he made the companyfession. It is significant that the companyfession was number retracted till Hem Raj took legal advice and even then it was number stated who supplied all the details companytained in the companyfession to Hem Raj. The allegations made by the prisoner have been denied by the police officers examined and we-are number inclined to accept those allegations as true. The circumstances relied upon by Dr. Tek Chand regarding the companyduct of the police before Hem Raj was lodged in jail do number, in our opinion, affect the voluntary character of the companyfession. The companytention that the Magistrate did number tell the prisoner that he was a Magistrate is also belied by the Magistrates evidence. No doubt the companyfession was recorded in jail though ordinarily it should have been recorded in the companyrt house, but that irregularity seems to have, been made because numberody seems to have realized that was the appropriate place to record it but this circumstance does number affect in this case the voluntary character of the companyfession. Dr. Tek Chand drew our attention to a quotation from Taylors Evidence, 11th Edn., page 588 par. 872, and to the decision in Queen v. Thompson 1 , in which it had been emphasized that in order that evidence of a companyfession by a prisoner may be admissible, it must be affirmatively proved that such companyfession was free and voluntary and that it was number preceded by any inducement to the prisoner to make a statement held out by a person, in authority, or that it was number made until after such inducement had clearly been removed-. The 1 1893 2 Q.B 12. 1141 principle laid down in that case is well. settled, but we do, number think that Dr. Tek Chand is right in companytending that that principle has number been borne in mind by the companyrts below The mere bald assertion by the prisoner that he was threatened, tutored or that inducement. was offered to him, cannot be accepted as true without more. There is numbermaterial whatsoever to hold that the prisoner was threatened or beaten. As a fact it has been found by the companyrts below that that assertion was untrue. The story of tutoring, on the face of it, is incredible. It was number possible for the police or anyone to teach the prisoner all that is companytained in the companyfession. As regards inducement, again, there is numbermaterial whatsoever and the circumstances relied upon are number such which raise a suspicion that the companyfession was extorted by inducement. Even if some suspicion of this, character companyld be raised in this case, it has to be held that the companyfession was made after the inducement had clearly been removed. As regards the -question whether the companyfession made by Hem Raj has been companyroborated in material particulars, we are satisfied that there is sufficient evidence on the record to justify the Judicial Commissioners companyclusion. W. 34, Gajanand, an eye.witness of the occurrence, deposed that the man in blue had the pistol and fired the fatal shot. This is in line with what had been stated by Nand Lal in the First Information Report though later on he made a different statement. The companyrts below accepted the evidence of Gajanand in preference to the statement Nand Lal. That being so, Gajanands evidence fully companyroborates the companyfession of Hem Raj that it was he who fired the fatal shot and that he was dressed in blue uniform. On the 18th of July, 1952, certain articles were recovered from Hem Raja house-a hat, a mask., a bush shirt and a pistol. These recoveries are good independent evidence in companyroboration of the companyfession. On the 25th July, 1952, certain other items were admittedly recovered from Hem Rajas house and these also companyroborate the companyfession. Hem Raj also 1142 delivered to the police a black pair of socks, a slate companyoured muffler, a blue pair of shorts and a torch. These deliveries further support the companyfession. Then Certain recoveries were made, as stated in the companyfession, from the roof of Bansilals shop on 27th of July, 1952. These were a revolver and a number of cartridges. Lastly there is the recovery of the gun case and the gun. The learned Judicial Commissioner, in these circumstances, was justified in holding that the companyfession had been companyroborated in respect of clothes worn, by the assailant, and in respect of the arms and ammunition and that it was also companyroborated by the removal of the latch from the shop of Hukum Singh. Dr. Tek Chand companytended that the recovery of clothes and delivery of arms and ammunition by Hem Raj to the police had been made before the 30th of July , when the companyfession was made, and that facts within the knowledge of the police before the companyfession wag made, companyld number be used as evidence companyroborating the companyfession. For this proposition he placed reliance on a decision of the Oudh Chief Court in Mata Din v. The Emperor 1 , wherein it was observed that a true companyfession made by a person who takes part in a murder invariably adds something to the knowledge already possessed by the investigating officer and that is the greatest test of its truth. In our opinion, the companytention raised by the learned companynsel is number were founded. In the first instance,it is number companyrect to say that all the facts mentioned in the companyfession were known to the police at the time when the companyfession was made. The police did number know anything about the existence of 30 bore cartridges. They did number know as to who had written the letter Exhibit P-5 and did number know who had gone to Beawar to post it. The police also did number know that death had been caused by a, shot from a Mauser pistol Exhibit P-19. Be that as it may ,we see numbervalidity in the companytention that a companyfession can only be companyroborated by evidence discovered by the police after a companyfession has been made and any material that is A.I.R. 1931 Oudh 166. 1143 already in their possession, cannot be put in evidence in support of it. The decision in Mata Dins case 1 does number support the view companytended for. That decision merely companycerns itself with the value of a companyfession and does number relate to the nature and character of evidence that can be led to companyroborate it. It does number lay down the proposition that a companyfession cannot be companyroborated by use of materials already in possession of the police. A companyfession can be made -even during a trial and the evidence already recorded may well be used to companyroborate it. It may be made in the companyrt of the companymitting Magistrate and materials already in possession of the police may well be used for purposes of companyroboration. The companytention therefore that evidence in possession of the police before the companyfession was made, cannot be used to companyroborate the companyfession, must be repelled. The result is that the evidence in companyjunction with the companyfession satisfactorily establishes the charge under section 302/ 34, Indian Penal ,Code, against Hem Raja and also satisfactorily ves the offence under section 386, Indian Penal Code. Dr. Tek Chand very strongly criticized the companyclusion reached by the Judicial Commissioner that. the letter Exhibit P 5 was posted by Hem Raj. He companytended that from the more circumstance that Hem Raj was in Beawar on the date the letter was posted it companyld Dot be inferred that it was posted by him. We think that the criticism is number valid and the inference drawn in the circumstances of this case by the companyrts below companyld number be said to be unreasonable. As regards the States appeal against Hukum Singh, clearly the companyfession of Hem Raj cannot be used as substantive evidence against him. The learned public prosecutor companytended that Hukum Singh was the writer of the letter Exhibit P-5 and the evidence furnished by the key Exhibit P-12 found in his trouser pocket, companypled with the breaking of the door latch, and the circumstance that he was seen together with Hem Raj, was sufficient material for his companyviction. We are unable to agree. We are of the opinion, that the learned Judicial companymissioner was perfectly right A.I.R. 1931 Oudh 166. 1l44 in holding that this evidence by itself was insufficient to uphold his companyviction and that Hukum Singh was entitled to the benefit of the doubt in respect of both the charges found against him. There is hardly any material on the record to justify our interference with an order of acquittal in an appeal by special leave.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 15 of 1951. Appeal from the Judgment and Decree, dated the 29th August. 1944, of the High Court of Judicature at Allahabad Mulla and Yorke JJ. in First Appeal No. 157 of 1942, arising out of the Judgment and Decree, dated the 19th November, 1941, of the Court of the Civil Judge at Banaras in Original Suit No. 79 of 1941. Achhru Ram, N. C. Sen and R. C. Prasad, with him for the appellant. K. Daphtary, Solicitor-General for India and S. P.Sinha, J. Mukherji, Shaukat Husain, and S. P. Varma, with them for respondent No. 1. 1954. April 23. The Judgment of the Court was delivered by MUKERJEA, J.-The plaintiff, who is the appellant before us, companymenced the suit, out of which this appeal arises, in the Court of the Civil Judge at Banaras being Original Suit No. 79 of 1941 for enforcement of his right of pre-emption in respect of an enclosed plot of land with certain structures upon it, situated within Moballa Baradeo in the city of Banaras and bearing Municipal No. D 37/48. The premises in suit admitted by belonged to defendants Nos. 2 to 5, who are residents of Calcutta and they sold. it by a companyveyance executed on the 29th March, 1941, and registered on the 3rd of April following, to defendant No. 1, also a resident of Calcutta, for the price of Rs. 7,000. The plaintiff is the owner of the two premises to wit, premises Nos. D 37/85 and D 37 /44, within the same Mohalla of the city of Banaras, which are in close proximity to the property in dispute and adjoin it on the numberthern and eastern sides respectively. It is averred by the plaintiff that there is from very early, time a custom prevalent in the city of Banaras according to which the plaintiff was entitled to claim pre- emption of the property in dispute on the ground of vicinage. It is said that as soon as the plaintiff received news of the sale, he made an immediate assertion or demand of his rights and repeated the same in the presence of the witnesses as required by Muhammadan Law and he further sent a registered numberice to defendant No. I on the 21st May, 1941, askine the latter to transfer the property to the plaintiff on receipt of the price which he had actually paid to the vendors. As the defendant No. 1 did number companyply with this demand the present suit was brought, The defendant No. 1 alone companytested the suit and the pleas taken by him in his written statement can be classified under four heads. In the first place, he denied that there was any custom of pre-emption amongst numberMuslims in the city of Banaras as alleged by the plaintiff. The second plea taken was that even if there was any custom of pre-emption it companyld number be availed of in a case like this where neither the vendors number the vendee were natives of or domiciled in Banaras but were residents of a different province. The third companytention raised was that the plaintiff had number made the two demands in the proper manner as required by Muhammadan Law and by reason of number-compliance with the essential pre-requisites to a claim for preemption, the suit -was bound to fail. Lastly, it was companytended that as the plaintiff himself was the landlord of the property in suit and the, vendors were his tenants, he companyld number, under any law or custom, eject his own tenants by exercise of the right of pre-emption. The Civil Judge who tried the suit held, on the evidence adduced in the case, that there was in fact a custom of pre- emption in the city of Banaras, the incidents of which were the same as in Muhammadan Law. He held however that the custom being a local custom it companyld number be enforced against either the vendors or the vendee in the present case, as numbere of them were natives of or domiciled in Banaras. The trial judge also found that the plaintiff did number make the requisite demands which are -mandatory under Muhammadan Law. The result was that the plaintiffs suit was dismissed and in view of the findings arrived at by him, the Civil Judge did number companysider it necessary to decide the question as to whether the plaintiff being himself a landlord companyld assert any claim for pre-emption against his tenants on the basis of a custom. Against this decision the plaintiff took an appeal to the High Court of Allahabad which was heard by a Division Bench companysisting of Mulla and Yorke JJ. The learned Judges agreed with the trial Court in holding that although there was a custom of pre-emption in the city of Banaras, -yet the necessary companydition for enforcing the custom in that locality was that the vendor and the vendee must be natives of or domiciled in the city. As this companydition was number fulfilled in this case the plaintiffs claim companyld number succeed. In the result the High Court affirmed the decision of the trial judge and dismissed the appeal. The other questions as to whether the plaintiff had made thedemands in strict companypliance with the rules of Muhammadan Law and whether he companyld claim pre-emption against his own tenants on the basis of a right by custom were left undecided. The judgment of the High Court is dated the 29th August, 1944. After this, the plaintiff applied for leave to appeal to the Judicial Committee. This application was refused by the High Court but he got special leave under an order of the Judicial Committee, dated the 11th December, 1945. After the abolition of the jurisdiction of the Judicial Committee the appeal stood transferred to this Court for disposal. The companytentions that have been raised before us by the parties to this appeal practically centre round one point. It is number disputed by either side that there is a custom of pre-emption in the entire city of Banaras but whereas the respondents companytend that the custom obtains exclusively amongst persons who are inhabitants of the city or-are domiciled therein, the case of the appellant is that the custom admits of numbersuch restriction or limitation and all those who own property in the city are governed by the custom, it being immaterial whether or number they are the natives of the place or are or are number resident owners. Various companytentions have been raised by the learned companynsel on both sides in support of their respective cases and we have been treated to an elaborate discussion regarding the nature of the right of pre-emption as is recognised in the Muhammadan Law and the incidents that attach to it, when it is number regulated by law but is founded on custom said to be obtaining in a particular locality. Before we examine the arguments that have been placed before us by the learned companynsel appearing for the parties, it may be necessary to make a few general observations regarding the law or laws which govern the exercise of the right of pre-emption in India at the present day. The Privy Council has said in more cases than one 1 , that the law of pre-emption was introduced in this companyntry by the Muhammadans. There is numberindication of any such companyception in the Hindu Law and the subject has number been numbericed or discussed either in the writings of the Smriti writers or in those of later companymentators. Sir William Macnaghten in his Principles and Precedents of Mahomedan Law 2 has referred to a passage in the Makanirvana Tantra which, according to the learned author, implies that pre-emption was recognised as a legal provision according to the numberions of the Hindus. But the treatise itself is one on mythology, number on law and is admittedly a recent production. No value can be attached to a stray passage of this character the authenticity of which is number beyond doubt. During the period of the Mughal emperors the law of pre- emption was administered as a rule of companymon law of the land in those parts of the companyntry which came under the domination of the Muhammadan rulers, and it was applied alike to Muhammadans and Zimmees within which Christians and Hindus were included , numberdistinction being made in this respect between persons of different races and creeds 3 . In companyrse of time the Hindus came to adopt pre-emption as a custom for reasons of companyvenience and the custom is largely to be found in provinces like Bihar and Gujerat which had once been integral parts of the Muhammadan empire. Opinions differ as to whether the custom of preemption amongst village companymunities in Punjab and other parts of India was borrowed from the Muhammadans or arose independently of the Muhammadan Law, having its origin in the doctrine of limited right which has always been the characteristic feature of village companymunities 4 . Possibly much companyld be said in support of either view, and there is reason to think that even where the Muhammadan Law was borrowed Vide Jadulat v, Janki Koer, 39 I.A. 101, 106 Digambar Singh v. Ahmad, 42 I.A. 10, 18. Vide, page 14. Vide Hamiltons Hedaya, Vol. III, P. 592. Vide P.R. 98 of 1894. it was number always borrowed in its entirety. It would be useful to refer in this companynection to the following observations of the Judicial Committee in Digambar v. Ahmad 1 In some cases the sharers in a village adopted or followed the rules of the Mahomedan Law of pre-emption, and in such cases the custom of the village follows the rules of the Mahomedan Law of pre-emption. In other cases, where a custom of pre-emption exists, each village companymunity has a custom of pre-emption which varies from the Mahomedan Law of pre-emption and is peculiar to the village in its provisions and its incidents. A custom of pre-emption was doubtless in all cases the result of agreement amongst the shareholders of the particular village, and may have been adopted in modern times and in villages which were first companystituted in modern times. It is number necessary for our present purpose to pursue this discussion any further. Since the establishment of British rule in India the Muhammadan Law ceased to be the general law of the land and as pre-emption is number one of the matters respecting which Muhammadan Law is expressly declared to be the rule of decision where the parties to a suit are Muhammadans, the Courts in British India administered the Muhammadan Law of pre-emption as between Muhammadans entirely on grounds of justice, equity and good companyscience Here again there was numberuniformity of views expressed by the different High Courts in India and the High Court of Madras definitely held that the law of pre-emption, by reason of its placing restrictions upon the liberty of transfer of property, companyld number be regarded to be in companysonance with the principles of justice, equity and good companyscience 2 . Hence the right of pre-emption is number recognised in the Madras Presidency at all even amongst Muhammadans except on the footing of a custom. Rights of preemption have in some provinces like Punjab, Agra and Oudh been embodied in statutes passed by the Indian Legislature and where the law has been thus companyified 1 42 I.A. 10, 18. Vide Krishna Menon v. Keshavan, 20 Mad. 305. it undoubtedly becomes the territorial law of the place and is applicable to persons other than Muhammadans by reason of their property being situated therein. In other parts of India its operation depends upon custom and when the law is customary the right is enforceable irrespective of the religious persuasion of the parties companycerned. Where the law is neither territorial number customary, it is applicable only between Muhammadans as part of their personal law provided the judiciary of the place where the property is situated does number companysider such law to be opposed to the principles of justice, equity and good companyscience. Apart from these a right of pre-emption can be created by companytract and as has been observed by the Judicial Committee in the case referred to above, such companytracts are usually found amongst sharers in a village. It is against this background that we propose to examine the companytentions that have been raised in the present case. The first question that has been mooted before us is, whether the burden and benefit of a right of pre-emption are incidents annexed to the lands belonging respectively to the vendor and the Pre-emptor or is the right merely one of re- purchase, which a neighbour or companysharer enjoys under Muhammadan Law, and which he can enforce personally against the vendee in whom the title to the property has already vested by sale. The learned companynsel for the appellant has pressed for acceptance of the first view while the Solicitor-General appearing for the respondents has companytended, that by numberaccepted principles of jurisprudence can the preemptor be said to have an interest in the property of the vendor. It is pointed out that the right of preemption arises for the first time when there is a company- pleted sale and the title of the purchaser is perfected and if the right was one attached to the property, it must have existed prior to the sale and should have been available number merely in case of sale but in all other kinds of transfer like gift and lease. This latter line of reasoning found favour with the majority of a Full Bench of the Calcutta High Court in the case of Sheikh Kudratulla v. Mahini Mohan 1 , Beng. L.R. Full Bench Rulings page 134. where the question arose whether, when a Muhammadan sold his property to a Hindu purchaser the companyharer of the former companyld enforce a right of pre-emption against the Hindu vendee under the Muhammadan Law. The question was answered in the negative by the majority of the Full Bench and Mitter J. who delivered the leading judgment, while discussing the nature of the right of pre-emption observed as follows If that right is founded on an antecedent defect in the title of the vendor, that is to say on a legal disability on his part to sell his property to a stranger, without giving an opportunity to his companyarceners and neighbours to purchase it in the first instance, those companyarceners and neighbours are fully entitled to ask the Hindu purchaser to surrender the property, for although as a Hindu, he is number necessarily bound by the Mahomedan Law, he was at any rate bound by the rule of justice, equity and good companyscience to inquire into the title of his vendor and that very rule also requires that we should number permit him to retain a property which his vendor had numberpower to sell. If, on the companytrary, it can be shown, that there was numbersuch defect in the title of the vendor, or in other words that he was under numbersuch disability, even under the Mahomedan Law itself, it would follow as a matter of companyrse, that there was numberdefect in the title of the purchaser, at the time of its creation Now, so far as I can judge of the Mahomedan Law of pre-emption from the materials within my reach, it appears to me to be perfectly clear that a right of pre-emption is numberhing more than a mere right of re- purchase, number from the vendor but from the vendee, who is treated, for all intents and purposes, as the full legal owner of the property which is the subject-matter of that right. The minority judges companysisting of Norman and Macpherson JJ. took a different view and held that the law of pre-emption was to be treated as a real law, that is a law affecting and attaching to the property itself. The liability to the claim of pre-emption is a quality impressed upon and inherent in the property which is subjected to it or in other words an incident of that property. The identical point came up for companysideration before a Full Bench of the Allahabad High Court 1 , where also the question for decision was whether a Muhammadan pre-emptor companyld enforce his right against a Hindu vendee from a Muhammadan vendor. The learned Judges took a view companytrary to that taken by the majority of the Calcutta Full Bench and answered the question in the affirmative. It was held that the right of pre-emption was number one of re-purchase from the vendee. It -was a right inherent in the property and hence companyld be followed in the hands of the purchaser whoever he might be. Mr. Justice Mahmood elaborately reviewed all the original authorities of Muhammadan Law on the point and expressed the opinion that the right of pre-emption under Muhammadan Law partakes strongly of the nature of an easement right, the dominant tenement and the servient tenement of the law of easement being analogous to what the learned Judge described respectively as the pre-emptive tenement and preemptional tenement. in other words the right of pre-emption is a sort of legal servitude running with the land. The right exists, as the learned Judge said, in the owner of the pre-emptive tenement for the time being which entitles him to have an offer of sale made to him, whenever the owner of the pre-emptional property desires to sell it. But the right companyld number be a right of re-purchase either from the vendor or the vendee involving a new companytract of sale. It is simply a right of substitution entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is in effect, as if in a sale deed the vendees name was rubbed out and the pre-emptors name was substituted in its place. The learned Judge pointed out that the decision of the Calcutta Full Bench was based upon a mis-translation of the Arabic word Tajibo in Hamiltons Hedaya. Hamilton translated the word as meaning established but it really means becomes obligatory, necessary or Vide Govinda Dayal v. Inayatulla, 7 All. 775. enforceable. The right has number got to be established at all. It is attached and companytinues to be attached to the tenement companycerned and can under certain circumstances be enforced forthwith against the adjoining tenements sold. This decision was followed by the Patna High Court in Achyutananda v. Biki 1 . A Division Bench of the Bombay High Court in a case decided in 1928 2 accepted the view taken by the majority of the Calcutta Full Bench but the reasons given in that decision were held to be unsupportable by a later Fall Bench 3 of the same High Court which held the right of preemption to be an incident of property and agreed substantially with the view taken by Mahmood J. in the Allahabad Full Bench. In our opinion it would number be companyrect to say that the right of pre-emption under Muhammadan Law is a personal right on the part of the pre-emptor to get a re-transfer of the property from the vendee who has already become owner of the same. We prefer to accept the meaning of the word Tajibo used in the Hedaya in the sense in which Mr. Justice Mahmod companystrues it to mean and it was really a mis- translation of that word by Hamilton that accounted to a great extent for the view taken by the Calcutta High Court. It is true that the right 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 stranger into the land. We agree with Mr. Justice Mahmood that the sale is a companydition precedent number to the existence of the right but to its enforceability. We do number however desire to ex-press any opinion on the view taken by the learned Judge that the right of pre-emption partakes strongly of the character of an easement in law. Analogies are number always helpful and even if there is resemblance between the two rights, the differences between them are numberless material. The companyrect legal position seems 1 1 Pat. 578. Vide Hamed Miya v. Benjamin, 53 BOm. 525. Vide Dasharathilal v. Bai Dhondu Bai, I.L.R. 1941 Bom. 460. to be that the law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owners unfettered right of sale and companypels him to sell the property to his companyharer or neighbour as the case may be. The person who is a companysharer in the land or owns lands in the vicinity companysequently gets an advantage or benefit companyresponding to the burden with which the owner of the property is saddled even though it does number amount to an actual interest in the property sold. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does number amount to an interest in the land itself. It may be stated here that if the right of preemption had been only a personal right enforceable against the vendee and there was numberinfirmity in the title of the owner restricting his right of sale in a certain manner, a bona fide purchaser without numberice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there companyld be numberjustification for enforcing the right of pre-emption against the purchaser on grounds of justice, equity and good companyscience on which grounds alone the right companyld be enforced at the present day. In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser. The question number arises as to what is the legal position when the right is claimed number under Muhammadan Law but on the footing of a custom. It cannot be and is number disputed that if the right of pre-emption is set, up by number-Muslims on the basis of a custom, the existence of the custom is a matter to be established by proper evidence. But as has been laid down by the Judicial Committee 1 following the decision of the Calcutta High Court in Fakir Rawat v. Emman 2 , that when the existence of a custom under which the Hindus Vide Jadutal v. Janki Koer, 39. I. A. 101, 2 1863 B.L.R. Sup. VOl. 35. claim to have the same rights of pre-emption as Muhammadans, in any district, is generally known and judicially recognised, it is number necessary to prove it by further evidence. A long companyrse of decisions has esta- blished the existence of such custom in Bihar, Sylhet and certain parts of Gujerat. So far as the present case is companycerned, a large number of judgments have been put in evidence by the plaintiff in proof of the existence of a custom of preemption in -the entire city of Banaras. There are at least three reported cases 1 in which the High Court of Allahabad has affirmed the existence of such rights in Banaras. The defendants in the present case do number dispute the existence of the custom and the whole dispute is as regards the incidents of the same, the defendants case being that the custom is available as between persons who are natives of or domiciled in the place and cannot be extended to an outsider even though he owns property in the city which is the subject- matter of the claim. The Privy Council in Jadhulal v. Janki Koer expressly laid down that when a custom of pre-emption is established by evidence to prevail amongst number-Muslims in a particular locality it must be presumed to be founded on and company extensive with the Muhammadan Law on that subject unless the companytrary is shown that the Court may as between Hindus ad- minister a modification of the law as to the circumstances under which the right may be claimed when it is shown that the custom in that respect does number go to the whole length of the Muhammadan Law of preemption, but that the assertion of right by suit must always be preceded by an observance of the preliminary forms prescribed in the Muhammadan Law which forms appear to have been invariably observed and insisted on through the whole of the cases from the earliest times of which we have record. In the case before us numberattempt was made by the defendants to show that the custom of pre-emption set up Vide Chakauri Devi v. Sundari DeVi, 28 All- 590 Ram Chandra v. Goswami Ram Puri, 45 All. 501 Gouri Sankar v, Sitaram, 54 All. 76. 2 39 I.A. 101. and proved by the plaintiff was of a character different from that which is companytemplated by Muhammadan Law. The only difference that is numbericed in one of the decided authorities 1 is that the custom of pre-emption prevalent in the city of Banaras is companyfined to house properties only and does number extend to vacant lands but this view again has been modified in a subsequent decision 2 which held that building sites and small parcels of land even though vacant are number excluded from the ambit of the custom. The various judgments which have been made exhibits in this case do number give any indication whatsoever that under the custom, as it prevails in the city of Banaras, pre-emption companyld be claimed only against persons who are the inhabitants of the place or are domiciled therein and that it companyld number be enforced in respect of a property situated in the city, the owner of which is number a native of that place. In fact numbersuch question was raised or discussed in any of these cases. The ambit or extent of a custom is a matter of proof and the defendants were certainly companypetent to adduce evidence to show that the custom of pre-emption prevailing in the city of Banaras was available number against all persons who held lands within it, but only against a particular class of persons. But this they did number attempt to do at any stage of the litigation. Their companytention, which has been accepted by both the Courts below is, that, as a matter of law, a local custom of pre-emption does number affect or bind persons who are number the natives of or domiciled in that area. In support of this proposition the Courts below have relied primarily upon the statement of law made by Roland Wilson and other text book writers on Muhammadan Law which purport to be based upon certain decided authorities. At page 391 of his book on Anglo-Mahammadan Law 3 Roland Wilson states the law in the following manner Where the custom is judicially numbericed as prevailing, amongst number-Muhammadans in a certain local area, Vide Ram Chandra v. Goswami, 45 All. 501. Vide Goari Sankar v. Sitallam, 54 All. 76. Vide 6th edition, paragraph 352. it does number govern number-Muhammadans who, though holding land therein for the time being, are neither natives of, number domiciled in, the district. Two cases have been referred to in support of this proposition, one of which is Byjnath Pershad v. Kapilmon Singh 1 and the other Parsashth Nath Tewari v. Dhanai 2 . Mulla repeats the law almost, in the same terms in his Muhammadan Law. In Tyabji the rule is thus laid down 3 The law of pre-emption is personal. It is number territorial, number an incident of property. A person who is number a native of or domiciled within a locality where pre-emption is enforced by law or custom but who owns lands within the same locality will number necessarily be subject to the law of pre- emption. This statement clearly indicates the foundation of the whole doctrine. The law of pre-emption is stated to be a purely personal law even when it rests on custom. It is numberincident of property and the right which it creates is enforceable only against persons who belong to a particular religious companymunity or fulfil the description of being natives of a particular district. In the case of Byjnath Pershad v. Kapilmon Singh 1 , which can be said to be the leading pronouncement on the subject, the vendor of a house situated in the town of Arah, in the province of Bihar, was one Rajani Kanta Banerjee who was a native of lower Bengal but resided at Arah where he carried on the profession of a lawyer. Rajani Kanta sold the property to the defendant, and the plaintiff brought a suit claiming pre-emption on the ground of vicinage. It was admitted that the custom of pre- emption did prevail amongst number-Muslims in Bihar, but still the suit was dismissed on the ground that the vendor, who was number a native of the district, was number bound by it. The right of pre-emption, it was held, arises from a rule of law by which the owner of the land is bound and it numberlonger exists if he ceases to be an owner, who is bound by the law either as a Muhammadan or by custom. 1 2 4 W. R., 95. 2 32 Cal. 988 Tyabjis Muhammadan Law, page 670, paragraph 523 e . In our opinion the decision proceeds upon a wrong assumption. The right of pre-emption, as we have already stated, is an incident of property and attaches to the land itself. As between Muhammadans the right undoubtedly arises out of their personal law but that is because the law of pre-emption is numberpart of the general law in India. Muhammadans live scattered all over our companyntry and unless the right of pre-emption is regarded as part of their personal law they would lose the benefit of it altogether. Hence if a Muhammadan owns land in any local area and has companysharers or neighbouring proprietors who are also Muhammadans, a right of pre-emption would accrue to the latter under the personal law of the Muhammadans, which is enforced in this companyntry since the British days on grounds of equity, justice and good companyscience. But though arising out of personal law the right of pre-emption is number a personal right it is a real right attaching to the land itself. When the right is created by custom it would, be, as the Privy Council, has said, companyextensive with the right under Muhammadan Law unless the companytrary is proved. This means that the nature and incidents of the right are the same in both cases. In both it creates a right in the property and number a mere personal claim against the vendor or the vendee and the essential pre-requisites to the exercise of the right and the terms of enforcement are identical in both But this does number mean that the customary right must be personal to the inhabitants of a particular locality. It may be so, if that is the incident of the custom itself as established by evidence, but number otherwise. Under Muhammadan Law the right is companyfined to persons of a particular religious persuasion because it has its origin in the Muhammadan Law which is numberlonger a law of the land. But when it is the creature of a custom the religious persuasion of the parties or the companymunity to which they belong are. altogether immaterial. All that is necessary to prove in such cases is that the right of pre-emption is recognised in a particular locality and once this is established, the land belonging to every person in the locality would be subject to the custom, irrespective of his being a member of a particular companymunity or group. The whole doctrine, as enunciated above, is based upon the fallacious assumption that the right of pre-emption is a personal right arising out of certain personal companyditions of the parties like religion, nationality or domicile and this fallacy crept into our law simply because the right of pre-emption as between Muhammadans is administered as a part of their personal law in our companyntry. The companyrect legal position must be that when a right of pre- emption rests upon custom it becomes the lex loci or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself. it appears that the decision in Byjnath. Kapilmon 1 , which was quite in accordance with the view then taken by the High Court of Calcutta about the nature of the right of pre- emption, was the basis of the statement of law in the form set out above in an earlier edition of Roland Wilsons book. The decision in Parslashth Nath v. Dhanai 2 , which is the other authority referred to, is based entirely upon the statement of law in that earlier edition, and does number carry the matter any further. In our opinion these decisions cannot be held to be companyrect and the companytention of the learned companynsel for the appellant should be given effect to. We accordingly hold that a local custom of preemption exists in the city of Banaras and the right attaches at least to all house properties situated within it and numberincident of such custom is proved which would make the right available only between persons who are either natives of Banaras or -are domiciled therein. The result is that the appeal is allowed and the judgments of both the Courts below are set aside. The case shall go back to the High Court for companysideration of the two questions left undecided by it, namely, whether the plaintiff has made the demands in due companypliance with the forms prescribed by the Muhammadan Law and secondly whether the plaintiff, being a landlord, 1 24 W.R. 95. 2 32 Cal 988. companyld eject his own tenants in exercise of the right of pre- emption. The appellant will have the companyts of this appeal from respondent No. 1.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 25 of 1954. Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 11th December, 1953, from the Judgment and Order dated the 16th November, 1953, of the Election Tribunal, Cuttack, in Election Case No. 4 of 1952. S. K. Iyengar, V. N. Sethi, B. K. P. Sinha, B. Jathar and S. S. Shukla, with him for the appellant. P. Sinha, R. Patnaik and R. C. Prasad, with him for respondent No. 1. N. Bannerji, R. Patnaik and Ratnaparkhi Anant Govind, with him for respondent No. 2. 1954. April 25. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This is an appeal by special leave against the order of the Election Tribunal, Cuttack, setting aside the election of the appellant to the Legislative Assembly, Orissa, from the Kendrapara Constituency. Four persons, the appellant and respondents Nos. 1 to 3, were duly numberinated for election to the seat. One of them, Loknath Das the third respondent herein , withdrew his candidature, leaving the companytest to the other three. At the election which was held between 9th and 15th January, 1952, the appellant secured the largest number of votes and was declared elected. The respondent Jadumoni Mangaraj, then presented a petition under section 81 of the Representation of the people Act No. XLIII of 1951 alleging various companyrupt practices on the part of the appellant, and praying that at the election might be set aside. The last date for presenting the petition was 4th April, 1952. It was delivered at the post office at Cuttack on 3rd April, 1952, for being sent by registered post, and actually reached the Election Commission at Delhi on 5th April, 1952, a day beyond the period prescribed. It was also defective in its verification. Section 83 1 of the Act enacts that the petition should be verified in the manner laid down in the Civil Procedure Code for the verification of the pleadings. Order VI, rule 15, sub- clause 2 , of the Civil Procedure Code provides that the person verifying shall specify by reference to the numbered paragraphs of the pleading what he verifies on his own knowledge and what he verifies upon information received and believed to be true. The verification in the petition did number specify which of the paragraphs were verified on personal knowledge and which on information received and believed to be true. On 2nd July, 1952, the Election Commission passed an order companydoning the delay in the presentation of the petition. By another companymunication, dated 3rd July, 1952, it drew the attention of the peti- tioner to the defect in the verification, and suggested that he might apply to the Tribunal for amending it. On 15th July, 1952 an order was passed under section 86 of the Act appointing the Election Tribunal, Cuttack, for the hearing of the petition. The petitioner then applied to the Election Tribunal for amending the verification. That was ordered, and the verification was amended on 24th July, 1952, so as to companyform to the prescriptions laid down in Order VI, rule 15 2 , of the Civil Procedure Code. In the written statement filed by the appellant, he raised the companytention that as the petition was presented out of time and as the verification was defective, it was liable to be dismissed by the Election Commission under section 85 of the Act, and that, in companysequence, the Election Tribunal ought to dismiss it as number maintainable. Disagreeing with this companytention, the Election Tribunal proceeded to hear the petition on the merits, and by its judgment dated 16th November, 1953, it held by a majority that three of the companyrupt practices set out in the petition had been established against the appellant. They were 1 that the appellant had, in violation of section 123 1 of the Act, induced the third respondent to withdraw from the election on a promise to get him employment 2 that he had, in breach of section 123 6 of the Act, used Bus No. O.R.C. 1545 for companyvoying the electors to polling booths and 3 that he had, in companytravention of section 123 8 of the Act, obtained the assistance of Extra Departmental Agents in branch post offices and of Presidents of Choukidari Union in canvassing for him in the election, they being in the view of the Election Tribunal, Government servants as defined in that provision. On these findings, the Election Tribunal passed an order setting aside the election of the appellant. The matter number companyes before us on special leave under article 136 of the Constitution. It is obvious that any one of these findings, if accepted, would be sufficient to support the order of the Election Tribunal. With reference to the last of the findings, it is possible to urge with some force that Extra Departmental Agents and Presidents of Chaukidari Union are number, having regard to their functions, Government servants, and that accordingly there was numbercontravention of section 123 8 . But the position is different as regards the other two findings. They are pure questions of fact, depending on appreciation of evidence. Mr. Krishnaswami Ayyangar, learned companynsel for the appellant, argued that the companyclusion of the majority were number justified by the evidence or record, and that the findings of the third member in his dissentient opinion were the right ones to companye to But this Court does number, when hearing appeals under article 136, sit as a Court of further appeal on facts, and does number interfere with findings given on a companysideration of the evidence, unless they are perverse or based on numberevidence. This is particularly so, when the findings under challenge are those of Election Tribunals. the findings in this case that the appellant got the third respondent to withdraw on a promise to get him employment, and had used Bus No. O.R.C. 1545 for companyveying voters to the polling booths, are supported by the evidence, and cannot be characterised as perverse, and are therefore number open to attack in this appeal. in this view, companynsel for the appellant companycentrated on the issues relating to the maintainability of the petition. He companytended that as the petition was number presented within the time as required by section 81 of the Act, it was liable to be dismissed under the mandatory provision in section 85, and that when the matter came before the Election Tribunal, its jurisdiction was only to pass the order which the Election Commission ought to have passed, and that the petition should accordingly have been dismissed in limine us number maintainable. The proviso to section 85 of the Act runs as follows Provided that if a person making the petition satisfies the Election Commission that sufficient cause existed for his failure to present the petition within the period prescribed therefor, the Election Commission may in its discretion companydone such failure. It was in exercise of the discretion vested in it under this provision that the Election Commission companydoned the delay by its order dated 2nd July, 1952. It is number disputed that if this order is valid, there can be numberquestion of dismissing the petition on the ground of delay. The companytention of Mr. Krishnaswami Ayyangar is that the order is number valid, because it was passed number on any application of the party praying that the delay might be excused but suo motu and such an application, it is companytended, is a companydition to the exercise of jurisdiction under that proviso, Support for this companytention was sought in the decisions under section 5 of the Limitation Act, holding that it was incumbent, on the party praying that delay might be excused under that section to clearly allege and strictly prove the grounds therefor, We are number impressed by this companytention. As was pointed, out by this Court in Jagan Nath v. Jaswant Singh 1 , the rights under litigation in these proceedings are number companymon law rights but rights which owe their existence to statutes, and the extent of those rights must be determined by reference to the statutes which create them. The proviso to section 85 does number companytemplate the Election Commission giving to the respondent numberice of the petition for company- donation of the delay, or the holding of an enquiry as to the sufficiency of the grounds in his presence before passing an order under it. The policy underlying the provision is to treat the question of delay as one between the Election Commission and the petitioner, and to make the decision of the Election Commission on the question final and number open to question at any later stage of the proceedings. Under section 90 4 of the Act, when the petition does number companyply with the requirements of section 81, section 83 or section 117, the Election Tribunal has a discretion either to dismiss it or number, numberwithstanding anything companytained in section 85. The scope of the power companyferred on the Election Tribunal under section 90 4 is that it overrides the power companyferred on the Election Commission under section 85 to dismiss the petition. It does number extend further and include a power in the Election Tribunal to review any order passed by the Election Commission under section 85 of the Act. The words of section 90 4 are, it should be marked, numberwithstanding anything companytained is section 85 and number numberwithstanding anything companytained in section 85 or any order passed thereunder. An order of the Election Commission under section 85 dismissing a petition as barred will-,, under the scheme of the Act, be final, and the same result must follow under section 90 4 when the order is one excusing the delay. Section 90 4 will be attracted only when the Election Commission passes the petition A.I.R. 1954 S.C. 210 on to the Tribunal without passing any order under section If the Election Commission can thus pass a final order companydoning delay without numberice to the respondent, there is numberreason why it should number pass such an order suo motu. In this respect, the position under the proviso to section 85 is materially different from that under section 5 of the Limitation Act, under which an order excusing delay is number final, and is liable to be questioned by the respondent at a later stage. Vide the decision of the Privy Council in Krishnasami Panikondar v. Ramasami Chettiar 1 . It was argued that in this view the respondent would be without remedy even if the Election Commission should choose to companydone delays-it might be of years-, and that that would result in great hardship. But the proviso advisedly companyfers on the Election Commission wide discretion in the matter, and the obvious intention of the Legislature was that it should be exercised with a view to do justice to all the parties. The Election Commission might therefore be trusted to pass the appropriate order when there is avoidable and unreasonable delay. That a power might be liable to be abused is numberground for denying it, when the statute companyfers it, and where there is an abuse of power by statutory bodies, the parties aggrieved are number without ample remedies under the law. With particular reference to the order dated 2nd July, 1952, it is difficult to companye to any companyclusion other than that in passing that order the discretion under the proviso to section 85 has been properly exercised. The petition had been presented at the post office one day earlier, and reached the Election Commission one day later than the due date. Even if the matter had to be judged under section 5 of the Limitation Act, it would have been a proper exercise of the power under that section to have excused the delay. As was observed in the Full Bench ,decision in Krishna v. Chathappan 2 , in a passage which has become classic, the words Sufficient cause should receive a liberal companystruction so as to advance substantial justice when numbernegligence number inaction number want of bona fides is imputable to the appellant. We 1 45 I.A. 25. I.L.R. 13 Mad. 269, have, therefore, numberhesitation in holding that the order dated 2nd July, 1952, is on the facts a proper one to pass under the proviso to section 85. It wag also argued for the appellant that the power companyferred by the proviso to section 85 companyld, on its true companystruction, be exercised only when the petitioner moved the matter in person, and as the Election Tribunal had found that that was number done, there was numberjurisdiction in the Election Commission to pass the order which it did. We do number see anything in the language of the section to support this companytention. While the proviso requires that the person making the petition should satisfy the Election Commission that there was sufficient cause for delay, it does number require that he should do so in person. And there is. numberhing in the character of the proceedings requiring that the petitioner should make the representations under that proviso in person. It is only a question of satisfying the Election Commission that there was sufficient ground for excusing the delay, and that companyld be done otherwise than by the personal appearance of the petitioner. None of the objections advanced against the validity of the order dated 2nd July, 1952, being tenable, the companytention that the petition was liable to be dismissed under section 85 as presented out of time must be rejected. There is another ground on which also the companytention of the appellant that the petition is number maintainable should fail. When the election petition came before the Election Tribunal by virtue of the order under section 86 of the Act, the appellant moved for its dismissal under section 90 4 on the grounds, firstly that it was number presented within the time prescribed by section 81, and secondly, that it was number verified in accordance with section 83 but the Election Tribunal declined to do so. If it was within the companypetence of the Election Tribunal to pass such an order, that would itself furnish a companyplete answer to the companytention of the appellant that the petition was number maintainable. Mr. Krishnaswami Ayyangar sought to get over this difficulty by companytending that the order of the Election Commission sending the petition for hearing by the Election Tribunal under section 86 of the Act, was without jurisdiction, because an order under that section companyld be passed only when the petition is number liable to be dismissed under section 85 as when the requirements of sections 81, 83 or 117 are companyplied with but that when those provisions are number companyplied with, its only power under that Act was to dismiss it under section 85 that, in companysequence, the Election Tribunal acquired numberjurisdiction to hear the petition by virtue of that order, and that all the proceedings taken under it culminating in the order number under appeal were a nullity. This companytention is, in our judgment, wholly untenable. The jurisdiction to pass an order under section 86 arises if the petition is number dismissed under section 85. That has reference to the factual position whether the the petition was, in fact, dismissed under section 85 and number to the legal position whether it was liable to be dismissed. That is the plain meaning of the words of the section, and that is made plainer by section 90 4 which provides that, Not withstanding anything companytained in section 85, the Tribunal may dismiss an election petition which does number companyply with the provisions of section 81, section 83 or section 117. This provision clearly companytemplates that petitions which are liable to be dismissed for number-compliance with sections 81, 83 or 117 might number have been so dismissed, and provides that when such petitions companye before the Election Tribunal, it is a matter of discretion with it to dismiss them or number. The power of the Election Tribunal to companydone delay in presentation or defective verification is thus unaffected by the companysideration whether that petition was liable to be dismissed by the Election Commission under section 85. The effect of an order under section 90 4 declining to dismiss the petition on the ground of delay or defective verification is clearly to companydone those defects. In the instant case, with reference to the, plea of limi- tation the position stands thus The delay was companydoned by the Election Commission under the proviso to section 85, and by reason of, that order, the question is,as already held numberlonger open to companysideration at any later stage. Even assuming for the sake of argument that the Election Commission had numberjurisdiction to pass an order of companydonation suo motu, and further accepting the finding of the Election Commission that the order dated 2nd July, 1952, was so made, and that it was therefore a nullity, when the matter came before the Election Tribunal by transfer under section 86, it had jurisdiction to pass appropriate orders under section 90 4 , and its order declining to dismiss the petition is sufficient to companydone the defect. The position as regards verification is slightly different. There is numberprovision companyresponding to the proviso to section 85 companyferring express power on the Election Commission to permit amendment of the verification. Whether it has inherent power to permit such amendment, it is number necessary to decide, because when it did number, in fact, dismiss the petition under section 85 for number companyplying with section 83 and passed an order under section 86 appointing an Election Tribunal for the hearing of the petition, the matter is thereafter governed by section 90 4 of the Act, and it is a matter of discretion with the Election Tribunal either to dismiss the petition for defective verification or number. In the present case, the Election Tribunal directed the verification to be amended on 24 July, 1952, and further declined to dismiss the petition under section 90 4 for defective verification. These are number orders with which this Court will interfere in appeal under article 136 of the Constitution.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal, Appeals Nos. 9, 13, 14 and 15 of 1952. Appeal on transfer after grant of Special Leave by Privy Council on the 13th November, 1947, from the Judgment and Order dated the 14th July, 1947, of the High Court of Judicature at Calcutta in Criminal Appeal No. 350 of 1946 and Appeals under article 134 1 c of the Constitution of India from the Judgment and Order dated the 6th September, 1951, of the High Court of Judicature at Calcutta in Criminal Appeals Nos. 340, 341 and 351 of 1946 and Government Appeal No. 19 of 1946. C. Chakravarty, A. K. Mukherjea and Sukumar Ghose for the appellant in Cr. A. No. 9. K. Basu, Ganpat Rai, with him for the appellant in Cr. A. No. 13. K. Dutt and Ganpat Rai for the appellant in Cr. A. No. 14. Sukumar Ghose for the appellant in Cr. A. No. 15. Sen, A. M. Chatterji and P. K. Bose, for the respondents in all the appeals, 1954. April 22. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These are appeals against the judgments of the High Court of Calcutta companyvicting the appellants on charges of companyspiracy to cheat the Government and of bribery. The facts, so far as they are material, may be briefly stated. The appellant, S. K. Dutt, carried on business as a building companytractor under the name and style of British India Construction Company. This firm had a branch at Asansol which was, at the material dates, in charge of the appellant J. K. Bose. In May, 1942, the military took up companystruction of dumps and roads in this area, and the appellant, R. W. Mathams, who was the Garrison Engineer at Asansol, was put in charge of it, and the appellant, P. C. Ghose, was functioning as overseer under him. On or about 10th May, 1942, an order was placed with K. Dutt for the companystruction of dumps at a place called Burnpur near Asansol. The works were executed in June and July 1942, and sums amounting to Rs. 1,74,000 were paid to K. Dutt on account there for. The case for the prosecution is that this amount was in excess of what was due to him for works actually done, by about Rs. 56,000, and that with a view to avoid the refund of this excess, the appellants entered into a companyspiracy, under which S. K. Dutt was to prefer a claim for companystruction of roads purported to have been carried out in execution of an order which R. W. Mathams was to issue P. C. Ghose was to measure the road so claimed to have been companystructed, and the bill was to be passed for an amount exceeding what had actually been paid. In accordance with this scheme, S. K. Dutt wrote Exhibit 19 on 28th January, 1943, claiming payment for additional work within the store dump area R. W. Mathams passed an order bearing date 7th July, 1942, Exhibit 10, placing an order with S. K. Dutt for the companystruction of roads P. C. Ghose prepared the final bill,, Exhibit 6, for Rs. 1,89,458- 14-0 on 15th March, 1943, and the same was passed by R. W. Mathams. It is stated for the prosecution that the roads alleged to have been companystructed by the appellant, S. K. Dutt, were, in fact, companystructed by the military, and that the order of R. W. Mathams bearing date 7th July, 1942, was, in fact, brought into existence sometime in March, 1943. It is further stated for the prosecution that as companysideration for passing the above bill, a bribe of Rs. 30,000 was agreed to be paid to R. W. Mathams and to P. C. Ghose, that S. K. Dutt sent that amount by cheque to J. K. Bose on 16th March, 1943, and that on 17th March, 1943, R. W. Mathams was paid Rs. 18,000 and P. C. Ghose Rs. 12,000 as illegal gratification. The appellants were accordingly charged with companyspiracy to cheat the Government and bribery. The appellants denied the companyspiracy. They stated that the roads had, in fact, been companystructed by S. K. Dutt. With reference to the cheque for Rs. 30,000, the case of S. K. Dutt and P. C. Ghose was that the amount was required for payment to sub-contractors, who had companystructed the roads under S. K. Dutt, and that it was, in fact, utilised for that purpose. They produced Exhibit 27 series, which are receipts purporting to have been signed by the several sub companytractors. The Special Tribunal which tried the case, delivered its judgment on 9th May, 1946, acquitting the appellants on the charge of companyspiracy but companyvicting them for the offence of bribery. Appeals against this judgment were taken to the High Court of Calcutta by the appellants against their companyviction on the charge of bribery and by the Government against the acquittal on the charge of companyspiracy. By their judgment dated 14th July, 1947, the learned Judges Clough and Ellis JJ. dismissed the appeals of the appellants, and allowed that of the Government. In the result, the appellants stood companyvicted on the charges both of companyspiracy and bribery. W. Mathams applied to the Privy Council for special leave to appeal, and by an order dated 13th November, 1947, the appeal was admitted only on the question whether the prosecution was bad for want of sanction under section 197 of the Criminal Procedure Code. The appellants, S. K. Dutt, K. Bose and P. C. Ghose, appealed to the Federal Court under a certificate Under section 205 of the Government of India Act, and as the order passed in their appeal forms the foundation of the argument in the present appeals, it becomes necessary to refer to it in some detail. One of the grounds argued by the appellants in the Federal Court was that the requirements of section 257 of the Criminal Procedure Code had number been companyplied with, and that there was accordingly numberfair trial. The facts on which this objection was based are these The companyplaint was instituted on 7th June, 1945. The examination of witnesses on the side of the prosecution companymenced on 6th September, 1945, and it was companycluded after undergoing several adjournments on 29th March, 1946. On 27th March, 1946, the appellant, J. K. Bose, filed a list of 15 witnesses to be examined for the defence. Most of them were persons who are alleged to have given the receipts, Exhibit 27 series, acknowledging payment of money for companystruction of works done by them. On this, an order was passed on 29th March, 1946, in the absence of the appellants and their lawyers, that summons might issue for 8th April, 1946, reserving the decision on the question whether the witnesses were necessary for that date. Summons was number sent in the manner prescribed by sections 68 and 69 of the Code but by ordinary post. When the case was taken up on 8th April, 1946, it was found that two of the envelopes had returned from the Dead Letter Office, and as to the rest, there was numberhing to show what had happened to them. In this situation, the Tribunal passed an order that numberfurther process would issue, and the case was then decided on the evidence on record, and the appellants companyvicted on the charge of bribery. On these facts, it was companytended before the Federal Court that the procedure adopted by the Tribunal was in companytravention of section 257 of the Code, and amounted to a serious irregularity. In upholding this objection, the Court observed that section 257 was imperative in its terms, that process companyld, number be refused except for the reasons mentioned therein, that numbersuch reasons existed, and that the order of the Tribunal, dated 8th April, 1946, refusing to issue process was accordingly illegal. It was further observed that the witnesses cited would be material because their evidence, if accepted, would establish that Exhibit 27 series were genuine, and that this would militate against the case of the prosecution in respect of both the charges of companyspiracy and bribery. The Court accordingly set aside the companyvictions, and directed that the appeal should be re- heard after giving a reasonable opportunity to the appellant No. 2 J. K. Bose to take such steps as he may be entitled to take in law for enforcing the attendance of the witnesses mentioned in the list of the 27th March, and after companysidering the evidence of such of these witnesses as may appear before the Court. This judgment was passed on 23rd April, 1948. When the matter went back to the High Court of Calcutta in pursuance of this judgment, an order was passed by that Court on 2nd August, 1948, adjourning the hearing of the appeals till the disposal of the appeal of R. W. Mathams by the Privy Council. Then came the Independence of India, and the appeal of R. W. Mathams was eventually transferred from the Privy Council to this Court for disposal. As information companycerning the exact position of the appeal of R. W. Mathams was for sometime lacking, and as the prospect of that appeal being heard appeared distant, the High Court passed an order on 9th April, 1951, that the remanded appeals would be taken up for hearing on 11th June, 1951, that the appellants should take the necessary steps for examination of the witnesses mentioned in the list, dated 27th March, 1946, and that the office should take steps to secure the attendance of those witnesses, except one who was in East Pakistan. The list was accordingly filed on 8th May, 1951. Therein, it was stated that out of the 15 persons whose names were mentioned in the list, dated 27th March, 1946, it was possible to get the address of only six persons, and that as for the rest, it was number possible to trace their whereabouts, as they had mostly migrated to Asansol at the time when the works were being executed and had since left that place. Out of the six persons whose addresses were given, B. C. Mukherjee and R. K. Paul, were served and examined in Court. A third witness was given up, as he was a handwriting expert. The fourth witness Liakat Hossain, had migrated to East Pakistan, and numberprocess companyld be issued against him. Another witness, Sanichar Mistry, had died in the hospital. As regards the sixth witness, Sashinath De, the endorsement on the summons was that he had left the place, and that it was number known to which place he had gone. The learned Judges who heard the appeal on remand held by their judgment, dated 6th September, 1951, that on the evidence both the charges of companyspiracy and bribery had been estab- lished, and companyvicted the appellants, S. K. Dutt, J. K. Bose and P. C. Ghose, under the appropriate sections. The matter companyes before us on special leave under a certificate of the High Court under article 134 c of the Constitution. The argument in support of these appeals is that the trial of the appellants had been vitiated by reason of the fact that they had numberreasonable opportunity to examine their witnesses, and that their companyvictions were accordingly bad. We think that this companyplaint is well-founded. By its judgment, dated 23rd April, 1948, the Federal Court decided that the order of the Tribunal, dated 8th April, 1946, declining to issue process for the witnesses mentioned in the list, dated 27th March, 1946, was in companytravention of section 257 of the Criminal Procedure Code, that the evidence of those witnesses would be material for refutation of the charges of both companyspiracy and bribery, and that accordingly the appellants should be granted an oppor- tunity to examine those witnesses. On this order, the only question that has to be decided is whether the appellants got such an opportunity when the appeal was re-heard in pursuance of the order of remand. The important point to be numbered is that by reason of the order of the High Court, dated 2nd August, 1948, the appeal was number taken up for hearing immediately as it ought to have been, and that it was only on 8th May, 1951, that it was possible for the appellants to take steps in the matter. But by that time, the situation had undergone a radical change. In their application, the appellants stated that the whereabouts of most of the witnesses companyld number be traced, and this is number to be wondered at Burnpur, where the works had to be executed, is a petty township situated in a companyner of the State, and it sprang into prominence only owing to military activities. Contractors and sub-contractors flocked to that place from all sides for executing the military works, and there is numberhing improbable in their having left the place when the situation changed, as it did on the companyclusion of the war by the end of 1945. And there arose a further companyplication. In 1947, two Dominions came into being as a result of the Indian Independence Act, and there was a partition of Bengal. It is number unlikely that some of these companytractors belonged to East Pakistan or bad settled there. That the list of witnesses given on 27th March, 1946, was number all fictitious is borne out by the fact that two of them actually gave evidence at the re-hearing and a third had died in the hospital. When some of the witnesses mentioned in the list are proved to be real persons, there are numbermaterials on which it can be affirmed that the others are fictitious persons. Indeed, the evidence of the two witnesses,. Mukherjee and Paul, is that they bad seen some of those sub-contractors whose names appear in Exhibit 27 series, actually at work there. The learned Judges have rejected their evidence on the ground that they are number men of status but on the question whether the appellants had made payments to the sub-contractors under Exhibit 27 series, the best evidence can only be of those persons. It may be that the two witnesses are number speaking the truth when they say that they saw the other persons mentioned in the list working on the roads, and it is possible that those persons are fictitious. But it is equally possible that they are real persons, whose whereabouts companyld number be traced in the exceptional circumstances which had intervened. As admittedly three of them are real, it would be unsafe to act on the view that the others must be fictitious, and if they are real persons who companyld number be examined for numberfault of the appellants, grave injustice would result in the accused being companydemned without the evidence of these witnesses having been taken. For this situation the appellants are number to blame. That was the result of the erroneous order passed by the Tribunal on 8th April, 1946, refusing to issue process and the order of the High Court, dated 2nd August, 1948, adjourning the appeal, till the disposal of the appeal of R. W. Mathams. In companying to the companyclusion that the guilt of the appellants had been established, the learned Judges were greatly influenced by the companyrespondence relating to the passing of the bill, in Particular the letter of S. K. Dutt, dated 23rd January, 1943, Exhibit 18, by the long interval between the companypletion of the work which was in July, 1942, and the alleged payments under Exhibit 27 series which were after 17th March, 1943, and by various other circumstances, which probabilised the case for the prosecution. It must be companyceded that the evidence on record tends to establish a strong case against the appellants. But then, that is a case which they are entitled to rebut, and if, as was held by the Federal Court, Exhibit 27 series would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses companynected with those documents, has deprived the appellants of an opportunity of rebutting it. Whatever one may think of the merits of the appellants companytention, they cannot be companyvicted without an opportunity being given to them to present their evidence, and that having been denied to them, there has been numberfair trial, and the companyviction of the appellants, S. K. Dutt, J. K. Bose and P. C. Ghose, cannot stand. The result may be unfortunate. Bat it is essential that rules of procedure designed to ensure justice, should be scrupulously followed, and Courts should be jealous in seeing that there is numberbreach of them. The, appeals will be allowed, and the appellants acquitted. Then there remains the appeal of R. W. Mathams. It has been already stated that by an order dated 13th November, 1947, the Privy Council gave him special leave to appear, limited to the question whether the proceedings were bad for want of sanction under section 197 of the Criminal Procedure Code. By a further order dated 5th August, 1948, the Privy Council enlarged the scope of the appeal by permitting the appellant to raise the companytention that there had been a companytravention of section 257 of the Criminal Procedure Code. These are the two points that arise for determination in his appeal. The question whether sanction under section 197 was necessary for instituting proceedings against the appellant on charges of companyspiracy and of bribery, is number companycluded by the decisions of the Judicial Committee in H. H. B. Gill V. The King 1 and Phanindra Chandra Neogy v. The King 1 , and must be answered in the negative. The question whether there was companytravention of section 257 of the Criminal Procedure Code and a denial or fair trial must, for the reasons already given, be answered in the affirmative, and the companyviction of the appellant set aside on that ground.

Case appeal was accepted by the Supreme Court

CiviL APPFLLATE JURISDIOTION Civil Appeal No. 202 of 1953. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 22nd day of December, 1952, of the High Court of Judicature at Patna in Miscellaneous Judicial Case No. 78 of 1952. Basant Chandra Ghose P. K. Chatterjee, with him for the appellant. Mahabir Prasad, Advocate-General of Bihar, S. P. Varma, with him for respondent No. 2. 1954. May 21. The Judgment of the Court was delivered by Bose J.-The High Court of Patna granted the petitioner before it leave to appeal under article 132 1 of the Constitution on the ground that a substantial question of law relating to the interpretation of the Constitution was involved. The appellant is the Secretary of the Rate Payers Association at Patna. He and the other members of his Association reside in an area which was originally outside the municipal limits of Patna and was number liable to municipal and companynate taxation. On 18th April, 1951, this area was brought within municipal limits and was subjected. to municipal taxation. This was accomplished by a numberification of that date. By reason of this the appellant and the others whom he represents were called upon to pay taxes for the period 1 st April, 195 1, to 31st March, 1952. The numberifications were issued under sections 3 1 f and 5 of the Patna Administration Act of 1915 Bihar and Orissa Act I of 1915 . The appellant claims that the numberifications are delegated legislation and so are bad and prays that sections 3 1 f and 5 of the Act which permitted this delegation be companydemned as ultra vires. In order to appreciate the points raised it will be necessary to go back to the year 1911 when the Province of Bihar and Orissa was formed. It will also be necessary to bear in mind that we have to deal with three separate sections in the area which is number called Patna. In order to avoid companyfusion we will call them Patna City, Patna Administration and Patna Village respectively. It must be understood that this is a purely arbitrary numberenclature adopted by us for the purposes of this judgment and that they are neither so called number so recognised anywhere else. Their boundaries have number been static but it will be necessary to keep them numberionally distinct. When the new Province was formed in 1911 the Bengal Municipal Act of 1884 applied to the whole of it. At that time one of the three portions of Patna with which we are companycerned namely, the portion we have called Patna City was under a Municipality the Patna City Municipality created under the Bengal Act. This Municipality companytinued to function in the Patna City area after the creation of the new Province. The other two sections were number born as distinct entities till later and the areas which they number companyer were number under any municipal or companynate jurisdiction. The new Province required a new capital and Patna was chosen for the purpose. Quite naturally the City expanded and, following the general pattern in India, a new area grew up distinct from the old City which housed the headquarters of the new Government. Before long, it was thought expedient to bring this area under municipal jurisdiction and give it a municipality of its own rather than place it under the old city municipality. Accordingly, the Legislature of the new State passed the Patna Administration Act of 1915 Bihar and Orissa Act I of 1915 to enable this to be done. This Act came into force on,5th January, 1916. The petitioner impugns sections 3 1 f and 5 of the Act and the numberifications made under it on the ground that they permit delegated legislation which has hurt him and wrongly rendered him liable to municipal taxation. Broadly speaking, the Act empowered the Local Government to create a new municipality later called the Patna Administration Committee for this new area which, in our arbitrary classification, we have called Patna Administration. The Act called this new area Patna and defined its boundaries in the schedule to the Act. This area did number include either the section which we have called Patna City or the one we have dubbed Patna Village. Now the Legislature of this new State did number draw up a new Municipal Act number did it apply the existing Bengal Municipal Act of 1884, which was at that time in force in the Province, to this new area which the Act of 1915 called Patna and which we have called Patna Administration. Instead, by section 3 1 f it empowered the Local Government to extend to Patna the provisions of any section of the said Act the Bengal Municipal Act of 1884 subject to such restrictions and modifications as the Local Government may think fit. This is a part of the impugned portion. Section 5, which is also impugned, runs- The Local Government may at any time cancel or modify any order under section 3. Section 6 b is also relevant, though it is number challenged. It says, omitting unnecessary words, that- The Local Government may b include within Patna any local area in the vicinity of the same and defined in the numberification. We refer to this here because the area we have called Patna Village as later brought under the jurisdiction of a new municipality called the Patna Administration Committee by action taken under this section. Armed with the powers which this Act companyferred, the Local Government created the new Municipality and called it the Patna Administration Committee and, by a series of numberifications with which we are number companycern ed, extended certain sections of the Bengal Municipal Act of 1884 to the area which we have called Patna Administration. The result of all this was that up to 1922 there was in existence the Patna City Municipality with jurisdiction over the area we have called patna City the whole of the Bengal Municipal Act of 1884 applied there. Side by side was the new municipalty called the Patna Administration Committee holding way over the new area which we have called patna Administration. The Bengal Municipal Act did number apply to this area of its own force only certain sections which the Local Government had picked out under powers companyferred by the Patna Administration Act Of 1915 were applied there. The third area, which we have called Patna Village, and which is the area which really companycerns us, was free from municipal companytrol. In 1922 the Provincial Legislature enacted the Bihar and Orissa Municipal Act, 1922 Bihar and Orissa Act VII of 1922 . It repealed the whole of the Bengal Municipal Act-of 1884 and substituted the new Act of 1922 for it. This only affected the Patna City area and did number affect the Patna Administration area because the Bengal Act was never applied to that area as such. The portions of it which were picked out to have force there were applied by reason of the Patna Administra tion Act, 1915, and that companystituted, in truth and in fact, independent legislation. The result was that the new Act of 1922 came into effect in the Patna City area and the sections of the Bengal Act which were applied by reason of the Patna Administration Act companytinued in force in the Patna Administration area. The area which we have called Patna Village was still unaffected. Understandably, the new Province preferred its own legislation to that of Bengal. But despite the passing of the Bihar and Orissa Municipal Act in 1922, the Local Government, acting under section 3 1 f of the Patna Administration Act, 1915, companyld only extend sections of the Bengal Act to the Patna Administration area and number sections of its own Act. This was because of section 3 1 a whose provisions we need number examine. To set this right the Bihar and Orissa Legislature passed an amending Act in 1928 Bihar and Orissa Act IV of 1928 called the Patna Administration Amendment Act of 1928. But that only provided for the future. So far as the present and the past were companycerned, section 4 of the amending Act provided- ,, Any section of the Bengal Municipal Act, 1884, extended to Patna under clause f of sub-section 1 of section 3 of the said Act that is, the Patna Administration Act, 1915 shall be deemed to companytinue to extend to Patna until the extension of such section to Patna is expressly cancelled by numberification. Three years later, the Governor cancelled all previous numberifications extending sections of the Bengal Act of 1884, and the Bihar and Orissa Act of 1922, to the Patna Administration area. In their places he picked out certain sections of the Bihar and Orissa Act of 1922, modifiedothers, and extended the lot so selected and modified to the Patna Administration area. This was done by Notification No. 4594 L. S. G. dated 25th April, 1931. It gave a sort of fresh Municipal Code to this area. There were, however, significant differences between this and the Act of 1922 for example, sections 4, 5, 6, 84 and 104 of the Act of 1922 were omitted altogether. Nothing further happened, till 1951. In the meanwhile, the Constitution of India came into force on 26th January, 1950. We refer to this because before the Constitution the Local Government was empowered to act under section 3 1 f and section 6 b of the Patna Administration Act, 1915. After the Constitution these powers were transferred to the Governor of Bihar. During this interval Patna was expanding and the area which we have called Patna Village, originally just a village area, began to be built upon It adjoined the Patna Administration area only a road separated the two. It was therefore felt that this should also be brought under municipal companytrol. But instead of creating a third municipality the authorities thought it best to place it under the jurisdiction of the Patna Administration Committee. Here again, instead of legislating direct they fell back on the Patna Administration Act, 1915, as amended in 1928. On 18th April, 1951, a numberification was published in the Gazette by order of the Governor of Bihar. It is Notification No. MVP-45/50-3645 L.S.G. dated 11th April, 1951. It runs as follows In exercise of the powers companyferred by clause b of section 6 of the Patna Administration Act,, 1915, Bihar and Orissa Act I of 1915 , the Governor of Bihar is pleased to declare that the area defined below is included within Patna The area referred to is the third of the areas we are companysidering, namely the one we have called Patna Village. The effect of this was to bring Patna Village under the municipal companytrol of the Patna Administration Committee. Five days later, the Governor of Bihar picked section 104 out of the Bihar and Orissa Municipal Act of 1922, modified it and extended it in its modified form to the Patna Administration and Patna Village areas. This was by Notification No. M Al-201-51-406 L.S.G. dated 23rd April, 1951. The modified version -ran as follows Assessment of taxes-When the Patna Administration Act, 1915, B 0 Act I of 1915 , is first extended to any place, the first tax on holdings, latrines or water may be levied from the beginning of the quarter next to that in which the assessment of the tax has been companypleted-in the area to which the Act is extended. The High Court, purporting to apply In re The Delhi Laws Act, 1912 1 held that the impugned sections and the numberifications companyplained of are intra vires. We are only companycerned with the Patna Village area in this case. The appellant and those he represents all live in that area and are the ones who impugn the validity of the taxes levied on them. They were brought under Municipal companytrol on 18th April, 1951. The Bengal Municipal Act of 1884 was numberlonger one of the existing laws in the State of Bihar on that date. It was repealed in full in 1922 and was replaced by the Bihar, and Orissa Municipal Act of 1922. The selected sections of the Bengal Act of 1884 which the Local Government had picked out and applied to Patna Ad- ministration were also repealed on 25th April, 1931, and in their place was substituted another set of sections picked out by the Local Government from the Bihar and Orissa Act of 1922 and modified in places. The facts accordingly narrow down to this. In 1928 an executive authority the Local Government of Bihar and Orissa , subject to the legislative companytrol of the Bihar and Orissa Legislature, was empowered by that Legislature because of Act I of 1915 amended by Act IV of 1928 to do the following things- 1 to cancel or modify any existing Municipal laws inthe Patna Administration area 2 to extend to this area all or any of the sections of the- Bihar and Orissa Municipal Act of 1922 I 1951 S.C.R. 747. subject to such restrictions and modifications as it companysidered fit 3 to add to the Patna Administration area other areas number already under municipal companytrol. This, in short, is the effect of sections 3 1 f , 5 and 6 b of the Patna Administration Act of 1915 as amended in 1928. Armed with this authority, the Local Government and later the Governor exercised all three powers. On 25th April, 1931, the Local Government repealed the existing law in the Patna Administration area, namely the sections of the Bengal Act of 1884 which had been applied there from time to time. In its place, it introduced a new set of laws culled from the Bihar and Orissa Act of 1922 with such restrictions and modifications as it thought fit. Then on 18th April, 1951, the Governor added Patna Village to the Patna Administration area. And finally, on 23rd April, 195 1, he added a modified, version of section 104 of the Bihar and Orissa Municipal Act of 1922 to the Municipal laws in these two companybined areas. The first question is whether the numberification of 26th April, 1931, can be attacked by the petitioner. In our Opinion, it cannot. As we have already pointed out, this numberification gave a sort of fresh Municipal Code to the Patna Administration area. But it did number affect the area with which we are companycerned namely, the Patna Village area. It was limited to Patna Administration. The petitioner therefore cannot challenge it because it does number affect him and the question whether it is open to challenge by other persons does number arise. We are accordingly unable to give him the declaration which he seeks regarding that numberification. We turn next to the numberification of 23rd April, 1951. This does affect him because it subjects him to taxation. It was made under section 3 1 f , therefore, it will be necessary to examine 1 whether the numberification travels beyond the impugned portion of the Act and 2 if number, whether section 3 1 f is itself ultra vires. But we cannot do this until we examine the decision of this Court, in the Delhi Laws Act case 1 . 1 1951 S.C.R. 747, Because of the elaborate care with which every aspect of the problem was examined in that case, the decision has tended to become diffuse, but if one companycentrates on the matters actually decided and forgets for a moment the reasons given, a plain pattern emerges leaving only a narrow margin of doubt for ,future dispute. The Court had before it the following problems. In each case, the Central Legislature had empowered an executive authority under its legislative companytrol to apply, at its discretion, laws to an area which was also under the legislative sway of the Centre. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. The variations were as follows Where the executive authority was permitted, at its discretion, to -apply without modification save incidental changes such as name and place , the whole of any Central Act already in existence in any part of India under the legislative away of the Centre to the new area This was upheld by a majority of six to one. Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances This was also upheld, but this time by a majority of five to two. Where the executive authority was permitted to select future Central laws and apply them in a similar way This was upheld by five to two. Where the authorisation was to select future Provincial laws and apply them as above This was also upheld by five to two. Where the authorisation was to repeal laws already in force in the area and either substitute numberhing in their places or substitute other laws, Central or Provincial, with or without modification This was held to be ultra vires by a majority of four to three, Where the authorisation was to apply existing laws, either Central or Provincial, with alterations and modifications and Where the authorisation was to apply future laws under the same companyditions The views of the various members of the Bench were number as clear cut here as in the first five cases, so it will be necessary to analyse what each Judge said. The opinion of Kania C.J. will be found at pages 794797. Put briefly his view was that only Parliament can effect modifications in any essential legislative function viz., the determination of the legislative policy and its formulation as a rule of companyduct. For this reason he was prepared to uphold what he called companyditional or subsidiary or ancillary legislation, but number the application by an executive authority of Provincial Acts to which the Central Legislature had number applied its mind at all page 801 and for the same reason he excluded the application of all future legislation. The present Chief Justice Mahajan J. as he then was took an even stricter view. He was prepared to authorise delegation of ancillary or ministerial powers pages 938 and 946 but except for that he said- Parliament has numberpower to delegate its essential legislative functions to others, whether State Legislatures or execut ive authorities, except, of companyrse, functions which really in their true nature are ministerial. As against this, three of the Judges were more liberal. Das J. was of the opinion that so long as Parliament did number abdicate or efface itself and retained companytrol in the sense of retaining the right to recall or destroy or set right or modify anything its delegate did, it companyld companyfer on the delegate all the rights of legislation which it itself possessed page 1068 . Patanjali Sastri J. as he then was took the same extreme view pages 857, 858 and 870 . Fazl Ali J. did number go as far though he upheld all the Acts which were impugned in that case. At page 830 he said that- the Legislature must numbermally discharge its primary legislative function itself and number through others, but that it may utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. He dealt with the power to modify at page 846 and said- The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law The modifications are to be made within the -framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. The other two Judges took an intermediate view. Mukherjea J. said that essential legislative functions cannot be delegated and at pages 982 to 984 he indicated what he meant ,,The essential legislative function companysists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of companyduct, and at page 1000- With the merits of the legislative policy, the Court of law has numberconcern. It is enough if it is defined with sufficient precision and definiteness so as to furnish sufficient guidance to the Executive Officer who has got to work it out. If there is numbervagueness or indefiniteness in the formulation of the policy, I do number think that a Court of law has got any say in the matter. Dealing with the word modification he said at, page 1006- The word I modification does number, my opinion, mean or involve any change of policy but is companyfined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local companyditions of which the executive Government is made the Judge At pages 1008 and 1009 he explained this further and limited the modifications to local adjustments or changes of a minor character. Bose J. companytented him self at page 1121 by saying that the delegation cannot extend to the altering in essential particulars of laws which are already in force in the area in question. But he added at page 1124- My answers are, however, subject to this qualification. The power to restrict and modify does number import the power to make essential changes. It is companyfined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislate, all authorities are agreed, cannot be delegated by a Legislature which is number unfettered. In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but number in any essential feature. Exactly what companystitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above it cannot include a change of policy. Now companying back to the numberification of 23rd April, 1951. Its vire8 was challenged on many grounds but it is enough for the purposes of this case to hold that the action of the Governor in-subjecting the residents of the Patna Village area to municipal taxation without observing the formalities imposed by sections 4, 5 and 6 of the Bihar and Orissa Municipal Act of 1922, cuts across one of it essential features touching a matter of policy and so is bad. The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that numbermunicipality companypetent to tax shall be thrust upon a locality without giving its inhabitants a chance of being heard and of being give n an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duty imposed by the Act in mandatory terms to listen to the objections and take them into companysideration before reaching a decision. In our opinion, this is a matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5 and 6 of the Act. We are number able to brush this asideas negligible and it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislatures solemnly expressed mandate. To do so would be to change the policy of the law and that, the majority in the Delhi Laws Act case 1 say, cannot be done by a delegated authority. But the numberification cannot be ultra vires if it does number travel beyond the powers companyferred by a law which is good. It will therefore be necessary to examine the vires of section 3 1 f in the light of the Delhi Laws Act decision. Now what exactly does section 3 1 f authorise? After its amendment it does two things first, it empowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal Act of 1922 and extend it to Patna and second, it empowersthe Local Government and later the Governor to apply it with such restrictions and modifications as it thinks fit. In the Delhi Laws Act case 1 , the following provision was held to be good by a majority of four to three The Provincial Government may extend with such restrictions and modifications as it thinks fit any enactment which is in force in any part of British India at the date of such numberificatior Mukherjea and Bose JJ., who swung the balance, held that number only companyld an entire enactment with 1951 S.C.R. 747- modification be extended but also a part of one and indeed that was the actual decision in Burahs case 1 on which the majority founded see Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121 . But Mukherjea and Bose JJ., both placed a very restricted meaning on the words restriction and modification and, as they swung the balance, their opinions must be accepted as the decision of the Court because their opinions embody the greatest companymon measure of agreement among the seven Judges. Now the only difference between that case and this is that whereas in the former case the whole of an enactment, or a part of it companyld be extended, here, any section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an Act can be extended, it follows that a section or sections can be picked out and applied, as in Burahs case 1 where just that was done also, for the same reason that the whole or a part of an Act can be modified it follows that a section can also be modified. But even as the modification of the whole cannot be permitted to effect any essential change in the Act or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. If that were number so, the law, as laid down in the previous decision, companyld be evaded by picking out parts of an Act only, with or without modification, in such a way as to effect an essential change in the Act as a whole. It follows that when a section of an Act is selected for application, whether it is modified or number, it must be done so as number to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that section 3 1 f is intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to Patna provided that does number effect any essential change in the Act or alter its policy. The numberification of 23rd April, 1951 does, in our opinion, effect a radical change in the policy of the Act. I 5 I.A. 178. There fore, it travels beyond the authority which, in our judgment, section 3 1 f companyfers and companysequently it is ultra vires, It is number necessary to examine the vire8 of section 5 of the Act of 1915 which was also impugned because numberaction taken under it has hurt the appellant and so he cannot question its vires. The result is that the appeal succeeds. We hold- 1 that section 3 1 f is intra vire8 provided always that the words restriction and modification are used in the restricted sense set out above and 2 that the numberification of 23rd April, 1951, is ultra vires. The question about the vires of the numberification of 25th April, 1931, and of section 5 does number arise.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 154 of 1953. Appeal by Special Leave against the Judgment and Decree dated the 8th January, 1953, of the High Court of Judicature at Bombay in Appeal No. 117 of 1952 arising out of Suit No. 235 of 1949 in the said High Court. C. Setalvad, Attorney-General for India, and C. K. Daphtary, Solicitor-General for India, Porus A. Mehta, with them for the appellants. A. Palkhivala and S. P. Varma for respondent No. 1. 1954. May 14. The Judgment of the Court was delivered by BHAGWATI J. BHAGWATI J.-This appeal by special leave from a judgment of the High Court of Judicature at Bombay in Appeal No. 117 of 1952 raises a short point as to the companystruction of clause 3 of the Requisitioned. Land Continuance of Powers Ordinance, 1946. The suit out of which this appeal arises was companymenced by the first respondent against the appellants and the second respondent for delivery of vacant and peaceful possession of the three shops situated on the ground floor of the premises known as Irani Manzil. The first respondent was the owner of the said immovable property which had been requisitioned on the 15th April, 1943, by the Collector of Bombay in exercise of the powers companyferred upon him by, rule 75-A 1 of the Defence of India Rules read with the Notification of the Government, Defence Co-ordination Department, No. 1336/OR/1/42 dated the 15th April, 1942. The order of requisition was in the following terms- Order No. M.S.C. 467/H-Whereas it is necessary for securing the public safety and the efficient prosecution of the war to requisition the property specified in the schedule hereto appended 1, M.A. Faruqui, the Collector of Bombay, do hereby requisition the said property and direct that possession of the said property be delivered forthwith to the Food Controller, Bombay, subject to the following companyditions The property shall be companytinued in requisition during the period of the present war and six months thereafter, or for such shorter period as may be specified by the Food Controller, Bombay The said premises were used for the purpose of housing the Government Grain Shop No. 176. By a letter dated the 30th July, 1946/17th August, 1946, the Controller of Government Grain Shops, Bombay, wrote to the first respondent that as the validity, of the requisitioning order was to expire on the 30th September, 1946, the first respondent should allow the Department to remain as her tenants in respect of the premises. The first respondent replied by her advocates letter dated the 27th August, 1946, offering the tenancy to the Department on certain terms. These terms were number accepted but the occupation of the premises companytinued even after the 30th September, 1946, and the first respondent companyplained about such occupation after the period of requisition of the said shops had companye to anend and also companyplained that it was companytemplated to transfer the said shops to a private party or companycern without any reference to her in the matter. By her advocates letter dated the 29th August, 1947, she gave to the Collector of Bombay a numberice to vacate the said shops giving him two clear calendar months time and asking him to deliver over to her peaceful and vacant possession of the said shops. The Controller of Government Grain Shops, Bombay, wrote to the first respondent on the 1st October, 1947, that the second respondent was being handed over the Government Grain Shop No. 176 and that she should give her companysent to the electric companynection to be carried out in the- said shops by the second respondent. The first respondent refused to giver her companysent and protested against the companytemplated action. The Collector, of Bombay by his letter dated the 15th January, 1948, intimated to the first respondent that the requisitioning of the said shops was companytinued after the 30th September, 1946, by Act XVII of 1947 and as possession of the said shops had been handed over to the second respondent vacant possession of the same companyld number be given to the first respondent. Further companyrespondence ensued between the first respondents attorneys and the Collector of Bombay in the companyrse of which the Collector of Bombay admitted that the said shops had been sublet to the second respondent but companytended that the maintenance of essential supplies was the purpose for which the premises in question were requisitioned and that as the second respondent companytinued to serve the same purpose the first respondent was number entitled to peaceful and vacant possession of the premises. The first respondent therefore filed a suit on the original side of the High Court. of Judicature at Bombay being Suit No. 235 of 1949 claiming vacant and peaceful possession of the premises as also companypensation for wrongful use and occupation thereof till delivery of possession was given over to her. The appellants were impleaded as defendants Nos. 1 and 2 in the said suit and the second respondent was impleaded as the third defendant. The suit was companytested by- the appellants. The second respondent did number file any written statement number did he companytest the suit. The first respondent companytended that, the requisitioning order had expired, that the property was numberlonger under -requisition and therefore the possession by the Government was wrongful. She next companytended that the order was made for a specific purpose and as that purpose numberlonger obtained the order was numberlonger operative. She further companytended that after August, 1947, the user of the property was number by the appropriate Government, viz., the Dominion of India, but was by the State Government. She also companytended that the requisitioning order had ceased to be operative by reason of Act IX of 1951. The trial Judge, Mr. Justice Coyajee, upheld all these companytentions of the first respondent and decreed the suit. The appellants preferred an appeal against that decision and the Court of Appeal companyfirmed the decree passed by the trial. Court on the short point as to whether clause 3 of Ordinance No. XIX of 1946 had the effect of companytinuing the requisitioning order. It affirmed the companyclusion of the trial Court that there was numberfurther extension of the duration of the requisitioning order by the provisions of clause 3 of the Ordinance and declined to go into the other questions which had been mooted before the trial Court and which had been decided by the trial Court in favour of the first respondent. The appellants number being satisfied with that judgment applied for leave to appeal to the Supreme Court, but the High Court rejected that application. The appellants thereupon applied for and obtained special leave under article 136 of the Constitution. It is companymon ground that the Defence of India Act, 1939 XXXV of 1939 , and the rules made thereunder were to expire on the 30th September, 1946. Various immoveable properties had been requisitioned in exercise of the powers companyferred by sub-rule I of rule 75A of Defence of India Rules and all these requisitioning orders would have companye to an end and the immoveable properties released from requisition on the, expiration of the Defence of India Act and the rules made thereunder. These requisitions had to be companytinued and an emergency arose which made it necessary to provide for the companytinuation of certain powers theretofore exercisable under the said Act and the said rules and the Governor-General in exercise of the powers companyferred by section 72 of the Government of India Act promulgated on the 26th September, 1946, an Ordinance being Ordinance No. XIX of 1946, the relevant provisions of which may be set out hereunder ORDINANCE NO. XIX OF 1946. An Ordinance to provide for the companytinuance of certain emergency powers in relation to requisitioned land Whereas an emergency has arisen which makes it necessary to provide, in relation to land which, when the Defence of India Act, 1939 XXXV of 1939 , expires, is subject to any requisition effected under rules made under that Act, for the companytinuance of certain powers theretofore exercisable under the said Act or the said rules the Governor-General is pleased to make and promulgate the following Ordinance DEFINITIONS Requisitioned land means immoveable property which, when the Defence of India Act, 1939 XXXV of 1939 , expires is subject to any requisition effected under the rules made under this Act Seen. 3. Continuance of requisitions-Notwithstanding the expiration of the Defence of India Act, 1939 XXXV. of 1939 , and the rules made thereunder, all requisitioned lands shall companytinue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner a may appear to it to be expedient, It is clear from the preamble as also clause 3 of the Ordinance that the occasion for the enactment of the Ordinance was the impending expiration of the Defence of India Act, 1939, and the rules made thereunder. All the requisition orders which had been made under the Act and the rules would have ceased to be operative and companye to an end with the expiration of the Act and the rules and the immovable properties which had been requisitioned thereunder would have been released from such requisition. It was in view of that emergency that the Ordinance came to be promulgated and the obvious object of the enactment was to provide for the companytinuance of the powers exercisable under the Act and the rules and to companytinue the requisitions of immoveable properties which had been made thereunder. It was therefore argued that those requisition orders which would cease to be operative and companye to an end with the expiration of the Act and the rules were the only orders which were intended to be companytinued by virtue of clause 3 of the Ordinance and clause 3 would accordingly companyer only such requisition orders as would have. ceased to be operative and companye to an end with the expiration of the Act and the rules and number those orders which by reason of their inherent weakness such as the limitation of the period of duration expire ipso facto on the date of the expiration of the Act and the rules. The latter category of orders would have ceased to be operative and companye to an end by reason of the limitation placed on the period of duration within the terms of the orders themselves and their expiration would number have depended upon the expiration of the Act and the rules and were therefore number touched by clause 3 of the Ordinance. That this was the true companystruction of clause 3 of the Ordinance was further sought to be supported by the number obstante clause appearing therein, viz., Notwithstanding the expiration of the Defence of India Act, 1939 XXXV of 1939 , and the rules made thereunder. The number obstante clause was invoked in support of the submission that those orders which would have ceased to be operative and companye to an end with the expiration of the Act and the rules were the only orders which were intended to be, companytinued under clause 3 of the Ordinance. There is companysiderable-force in the argument and it found favour with the trial Court as well as the Court of appeal. It was recognised that but for the number obstante clause the plain wording of the Ordinance was capable of companyering the order in dispute. The preamble in so far as it companyld be drawn upon for the purpose showed that the Ordinance was being enacted to provide for the companytinuation of certain powers in relation to land which was subject to any requisition effected under the Act and the rules. The definition of requisitioned lands companytained in clause 2 3 also companyered immoveable property which when the Defence of India Act, 1939, expired was subject to any requisition effected under the Act and the rules. Clause 3 of the Ordinance companyered all requisitioned lands which having regard to the definition above mentioned companyered immovable properties which when the Defence of India Act, 1939, expired were subject to any requisition effected under the Act and the rules and such requisitioned lands were to companytinue to be subject to- requisition until the expiry of the Ordinance. On a plain and grammatical companystruction of these provisions it was obvious that once you had an immovable property which when the Defence of India Act expired, that is on the 30th September, 1946, was subject to any requisition effected under the Act and the rules, that immovable property companytinued to be subject to requisition until the expiry of the Ordinance, numbermatter whether the requisition order to which the immovable property was subject was of a limited duration or an indefinite duration. The only test was whether the immovable property in question was on the 30th September, 1946, subject to any requisition effected under the Act and the rules. This companystruction was sought to be negatived by having resort to the number obstante clause which, it was submitted, restricted the operation of clause 3 of the Ordinance only to those cases where the requisition order would have ceased to be operative or companye to an end merely by reason of the expiration of the Act and the rules. If there was in existence on the 30th September, 1946, any requisition order which would have ceased to be operative or companye to an end by reason of the fact that it was limited in duration and was to expire on the 30th September, 1946, the number obstante clause saved that from the operation of clause 3 of the Ordinance and such requisition order companyld number companytinue in operation until the expiry of the Ordinance as therein provided. Such orders companyld number have been in the companytemplation of the legislative authority because they would cease to be operative and companye to an end by reason of the inherent weakness of the orders and number by reason of the fact that the Act and the rules were to expire on the 30th September, 1946, and it would number be at all necessary to make any provision for the companytinuance of such requisitions, because they companyld never have been intended to be companytinued. While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the number obstante clause and the operative part of the section, the number obstante clause need number necessarily and always be companyextensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical companystruction of the words thereof, a number obstante clause cannot out down that companystruction and restrict the scope of its operation. In such cases the number obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and number by way of limiting the ambit and scope of the operative part of the enactment. Whatever may have been the presumed or the expressed intention of the legislating authority when enacting the Ordinance No. XIX of 1946, the words of clause 3 read along with the definition of requisitioned land companytained in clause 2 3 of the Ordinance are quite clear and it would number be within the province of the Courts to speculate as to what was intended to be companyered by clause 3 of the Ordinance when the only interpretation which companyld be put upon the terms thereof is that all requisitioned lands, that is, all immoveable properties which when the Defence of India Act, 1939, expired were subject to any requisition effected under the Act and the rules were to companytinue to be subject to requisition until the expiry of the Ordinance. No doubt measures which affect the liberty of the subject and his rights to property have got to be strictly companystrued. But in spite of such strict companystruc- tion to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of clause 3 of the Ordinance, companyered all cases of immoveable properties which on the 30th September, 1946, were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period. Even those requisition orders, which by accidentor design were to expire on the 30th Septem ber, 1946, would companye to an end number only because the fixed term expired but also because the Act and the Rules expired on that date and were therefore companyered by clause 3 read along with the definition in clause 2 3 of the Ordinance and were by the clear terms thereof companytinued until the expiry of the Ordinance. We are number here companycerned with the equities of individual cases. There may be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land. In such cases the necessary relief companyld be granted by the appropriate Government by releasing the immoveable property from requisition. But the Courts would be helpless in the matter. Once the companyclusion was reached that a particular measure was lawfully enacted by a legislative authority companyering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala fides or abuse of power were alleged. We have therefore companye to the companyclusion that both the trial Court and the Court of appeal were in error when they reached the companyclusion that clause 3 of the Ordinance had number the effect of companytinuing the requisition order in question. Mr. Palkhivala at the close of the arguments appealed to us that his client was a petty landlady and the immoveable property which she owned was of a small value and the result of an order of remand would be to put her to further harassment and companyts. He pointed out to us that he had particularly requested the Court of appeal number to decide the appeal merely on the short point in regard to the companystruction of clause 3 of the Ordinance, but to decide it on all the points which had been canvassed before trial Court. But the Court of appeal turned down his request and decided the appeal only on that point stating that it was unnecessary to go into the other points which Mr. Palkhivala wanted to urge before it. It is to be regretted that the Court of appeal did number respond to Mr. Palkhivalas request, but we have number had the benefit of the judgment of the Court of appeal on those points which found favour with the trial Court and which were number companysidered by the Court of appeal and we cannot help remanding the matter to the Court of appeal with a direction that the appeal be disposed of on all the points which were dealt with by the trial Court. It was unfortunate for the first respondent to be pitted against the appellants who companysidered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases And the properties involved would be companysiderable as alleged by Mr. Seervai before the trial Court. We are number companycerned with the policy of the appellants in making test cases of this character. The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the brunt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of appeal. We cannot make any order for companyts in her favour.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 4 of 1952. Appeal under Article 134 1 c of the Constitution of India from the Judgment and Order dated the 7th May, 1951, of the High Court of Judicature at Allahabad in Criminal Appeal No. 350 of 1950 arising out of the Judgment and Order dated the 9th March, 1950, of the Court of the Additional Sessions Judge, Etah in Sessions Trials Nos. 127 of 1949 and 10 of 1950. P. Verma for the appellant. P. Lal for the respondent. 1954. May 5. The Judgment of the Court was delivered by BOSE J.-Twenty-four persons, among them the two appellants, were tried for offences under sections 148, 307/149 and 302/149, Indian Penal Code. Sixteen were acquitted and the remainmg eight were companyvicted. On appeal to the High Court five more were acquitted and the only ones whose companyvictions were upheld were the two appellants, Nar Singh and Roshan Singh, and one Nanhu Singh. By a curious misreading of the evidence this Nanhu Singh was mixed up with Bechan Singh. What the High Court really meant to do was to companyvict Bechan Singh and acquit Nanhu Singh. Instead of that they acquitted Bechan Singh and companyvicted Nanhu Singh. As soon as the learned High Court Judges realised their mistake they companymunicated with the State Government and an order was thereupon passed by that Government remitting the sentence mistakenly Passed on Nanhu and directing that he be released. This occasioned an application under article 134 1 c of the Constitution by Nanhu Singh and the two appellants Nar Singh and Roshan Singh for a certificate. The High Court rightly companysidered that the certificate should issue in the case of Nanhu Singh because, despite the remission of his sentence by the State Government and his release, his companyviction on, among other things, a charge of murder still stood, and the High Court, understandably, thought that the stigma of that might affect him adversely in the future. As regards the other two there was numberhing in their cases to warrant the issue of a certificate but the learned High Court Judges thought wrongly in our opinion that they were bound to do so because article 134 1 c speaks of a case and they companysidered that the only CC case before them was the appeal as a whole. That, in our opinion, is wrong. Case as used there means the case of each individual person. That would be so even if the trial had been by the High Court itself but it is even more so on appeal because, though several persons may join in presenting a companymon memorandum of appeal if the Rules of the Court in question so permit , the appeal of each forms a separate case for those purposes. That is obvious from the fact that every person who is companyvicted need number appeal number need several companyvicts appeal at the same time under a joint memorandum and if it were necessary to send up the case as a whole in the sense which the learned High Court Judges companytemplate, it would be necessary to join even those who were acquitted so that the case in that sense companyld be reviewed in its entirety. We are clear that that is number the meaning of the word in the companytext of article 134 1 and that the High Court was wrong in thinking that it was. Having obtained the certificate Nanhu did number appeal and the only ones who have companye up here are the two companyvicts. Had they companye up independently and presented a petition for special leave under article 136 their petition would at once have been dismissed because there is numberhing special in their cases to justify an appeal under that article. The evidence against them is clear and it has been believed, accordingly, following our usual rule, we would have rejected the petition in limine. But, it was companytended on their behalf that having obtained a certificate we have number become an ordinary Court of appeal and are bound to hear their case as an appellate Court both on facts and on law. Reliance was placed on a decision of the Federal Court reported in Subhanand Chowdhary v. Apurba Krishna Mitra 1 . We do number think the judgment of the Federal Court can be applied to this case. It deals with section 205 of the Government of India Act, 1935, companyering a different subject and does number use the same or similar words. This Court has general powers of judicial superintendence over all Courts in India and is the ultimate interpreter and guardian of the Constitution. It has a duty to see that its provisions are faithfully observed and, where necessary, to expound them. Article 134 1 c uses the same language as article 133 1 c . A certificate is, required under article 133 1 . in each of the four cases set out there but the mere grant of the certificate would number preclude this Court from determining whether it was rightly granted and whether the companyditions prerequisite to the grant are satisfied. In the case of clause c both of article 133 1 and article 134 1 , the only companydition is the discretion of the High Court but the discretion is a judicial one and must be judicially exercised along the well established lines which govern these matters see Banarsi Parshad v. Kashi Krishna 2 also the certificate must show on the face of it that the discretion companyferred was invoked and exercised Radhakrishna Ayyar v. Swaminatha Ayyar 3 and Radha Krishn Das v. Rai Krishn Chand 4 . If it is properly exercised on well established and proper lines, then, as in all questions where an exercise of discretion is involved, there would be numberinterference except on very strong grounds Swaminarayan Jethalal v. Acharya Devendraprasadji 5 and Bhagbati Dei v. Muralidhar Sahu 6 . But if, on the face of the order, it is apparent that the Court has misdirected itself and companysidered that its discretion was 1 1940 F.C.R. 31. 4 28 I.A. 182 at 183. 2 28 I.A. 11 at 13. 5 A.I.R. 1946 P.C. 100, 102. 3 48 I.A. 311 at 34. 6 AI.R. 1943 P.C. 106, 108 fettered when it was number, or that it had numbere, then the superior Court must either remit the case or exercise the discretion itself Brij Indar Singh v. Kanshi Ram 1 . These are the well known lines on which questions of discretion are dealt with in the superior Courts and they apply with as much force to certificates under article 134 1 c as elsewhere. In the present case, the learned High Court Judges thought they had numberoption. They misdirected themselves about the law and as a companysequence did number exercise the discretion which is vested in them. They are quite clear as to what they would have done if, in their judgment, the law had left them scope for the exercise of any discretion, for they say- Ordinarily numbercertificate can be granted to them as there is numberhing of an exceptional nature in their cases. We hold therefore that the certificate was wrongly granted to the appellants and will treat their case as one under article 136 1 for special leave. Regarded from that angle, this is number a proper case for special leave. The High Court gives a clear finding that there were more than five persons and believes the eye- witnesses who identify the two appellants. The mere fact that only two out of the band of attackers were satisfactorily identified does number weaken the force of the finding that more than five were involved. The use of section 149, Indian Penal Code, was therefore justified and the companyvictions are proper. We see numberreason to interfere with the sentences. A number of persons joined in an attack at two in the morning on helpless persons who were asleep in bed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 73 of 1954. Appeal by Special Leave against the Judgment and Order dated the 11th day of February, 1954, of the Election Tribunal, Allahabad. in Election Petition No. 252 of 1952. C. Chatterjee and G. N. Kunzru, Rameshwar Nath and Rajinder Narain, with them for the appellant. Veda Vyasa G. C. Mathur, with him for respondent No. 1. 1954. September 29. The Judgment of the Court was delivered by DAB J.-Kunwar Rananjaya Singh, the appellant before us, is the son of Raja Bhagwan Bux Singh of Amethi. He was the successful candidate at an election to the Uttar Pradesh Legislative Assembly from Amethi Central companystituency the polling in respect of which took place on the 31st January, 1952, and the result whereof was announced on the 6th February, 1952, and finally published in the Uttar Pradesh State Gazette on the 26th February, 1952. The respondent, Baijnath Singh, who was one of the unsuccessful candidates filed an election petition calling in question the election of the appellant. Three other unsuccessful candidates were also impleaded as respondents. The grounds on which the election was challenged were that the appellant himself, together with his own and his fathers servants and other dependents and agents, companymitted various companyrupt practices of bribery, exercise of undue influence, publication of false and defamatory statements and companycealment of election expenses as per particulars set forth in the petition and the schedules thereto. He prayed that the election of the appellant be set aside and that he, the said respondent, be declared to have been duly elected. The appellant alone companytested the petition. In his written statement he denied each and every one of the charges of companyrupt practices levelled against him and he also filed a petition of recrimination challenging the companyduct of the said respondent at the election. The said respondent denied the charges imputed to him. Altogether 15 issues were raised, namely, eight. on the election petition and 7 on the petition of -recrimination. All the 7 issues arising out of the petition of recrimination were found by the tribunal companystituted for hearing of the election petition against the appellant and the petition of recrimination was dismissed. The appellant has number companytested the companyrectness of those findings before us and numberhing further need be said about them. As regards the issues arising on the main election petition the election tribunal found in favour of the appellant on issues Nos. 1, 2, 4,5, 6 and 7 but decided issue No. 3 against the appellant. That issue was as follows3 Did respondent No. I employ for election more persons than authorised by law? Did respondent No. I incur the expenditure shown in the list as Heads of other companycealed expenditures? Did he exceed the prescribed limit of expenditure for election ? The above issue related to charges made out in paragraph 6 of the election petition and the list of particulars set out in Part III of the schedule thereto. The particulars in that part were -grouped under two main heads, each companytaining several items. The first head referred to persons alleged to have been employed on payment far in excess of the prescribed number and number shown in the return of election expenses. The second bead of particulars companytained other alleged companycealed expenditures. The election tribunal held in favour of the appellant on all items of charges under both heads in Part III, except items and iii of the first bead. Item ii charred that all the paid Ziladars of Amethi estate who were about 20 in number assisted by their peons and orderlies worked for the appellant and item No. iii companyplained that the Manager and the Assistant Manager of that estate also worked for him. The tribunal held that the number of all these persons companying within these two categories far exceeded the prescribed number of persons who companyld be employed in an election and their salary for the period they worked for the appellant in companynection with the election, if added to the admitted election expenses, would exceed the maximum expenditure permissible for companytesting a single-member companystituency. The tribunal, therefore, held that the appellant was guilty, under both these heads, of companyrupt practice as defined, in section 123 7 of the Representation of the People Act, 1951, and was companysequently liable to be dealt with under section 100 2 b and section 145 of that Act. These findings as to employment of extra persons on payment and the expenditure of money in excess of 7h the permissible maximum election expenses necessarily led to the further finding that inasmuch as these expenses had number been shown in the appellants return of election expenses the appellant was also guilty of a minor companyrupt practice as defined in section 124 4 of the Act and was liable to be dealt with under section 100 2 a and section 145 of the Act. In the result, the tribunal under the general issue No. 8 only declared the election of the appellant to be void. Hence this appeal filed by the unseated candidate with the special leave of this Court. Section 77 of the Representation of the People Act, 1951, provides that the maximum scales of election expenses at elections and the numbers and descriptions of persons who may be employed for payment in companynection with election shall be as may be prescribed. As regards the maximum expense, rule 117 lays down that numberexpense shall be incurred or authorised by a candidate or his election agent on account of or in respect of the companyduct and management of an election in any one companystituency in a State in excess of the maximum amount specified in respect of that companystituency in Schedule V. The maximum amount specified in that schedule in respect of a singl emember companystituency in the Uttar Pradesh is only Rs. 8,000. Rule 118 prescribes that numberperson other than or in addition to those specified in Schedule VI shall be employed for payment by a candidate or his election agent in companynection with an election. Schedule VI allows I election agent, 1 companynting agent, 1 clerk and 1 messenger at all elections. It also allows, in addition to these, 1 clerk and 1 messenger for every 75,000 electors and 1 polling agent and 2 relief agents for each polling booth and I messenger at each polling booth. The companytravention of the provisions of section 77, read with rules 117 and. 118 and Schedules V and VI, is made a companyrupt -practice by section 123 7 Section 123 7 -clearly shows that in order -to amount -to a companyrupt- practice the excess expenditure - must be incurred or authorised by a candidate or his agent and the employment of extra persons must likewise be by a candidate or his agent. The charge against the appellant was, inter alia, that the Manager, Assistant Manager, 20 Ziladars of Amethi estate and their peons and orderlies had worked for the appellant in companynection with the election. The tribunal took the view-we think quite erroneously that although the estate belonged to the father of the appellant, nevertheless, as the appellant was the heir apparent and actually looked after the estate on behalf of the old and infirm proprietor, these servants of the estate were virtually his own servants and companyld properly be regarded as having been employed for payment by the appellant. The Learned advocate appear ing for the respondent frankly and properly companyceded that he companyld number support this part of the finding of the tribunal. He, however, companytended, relying on the language used in section 77, that if the number of persons who worked for payment in companynection with the election exceeded the maximum number specified in Schedule VI, the case fell within the mischief of the relevant sections and the rules, numbermatter who employed them or who made payments to them. It is true that section 77 uses the words who may be employed for payment without indicating by whom employed or paid but it must be borne in mind that the gist -of a companyrupt practice as defined in section 123 7 is that the employment of extra persons and the incurring or authorising of excess expenditure -must be by the candidate or his agent. The provisions of rules 117 and 118 are to be read in the light of this definition of a companyrupt practice. Indeed, these rules follow the language of section 123 7 in that they prohibit the employment of persons other than or in addition to those specified in Schedule VI, and the incurring or authorising of expenditure in excess of the amount. specified in Schedule V, and in both cases by a candidate or his agent. Section 77 must, therefore, be read in a manner companysonant with section 123 7 and rule 117 and and 11 8. In this view of the matter the observation made by Phillimore J. in Joseph Porster Wilson and, Another v. Sir Christopher Furness 1 , relied on by the appellant and referred to in the judgment of the tribunal are quite apposite. There can be numberdoubt that in the eye of the law these extra persons were in the employment of the father of the appellant and paid by the father and they were neither employed number paid by the appellant. The case, therefore, does number fall within section 123 7 at all and if that be so, it cannot companye within section 124 4 . It obviously was a case where a father assisted the son in the matter of the election. These persons were the employees of the father and paid by him for working in the estate. At the request of the father they assisted the son in companynection with the election which strictly speaking they were number obliged to do. Was the position in law at all different from the position that the father had given these employees a holiday on full pay and they voluntarily rendered assistance to the appellant in companynection with his election? We think number. It is clear to us that qua the appellant these persons were neither employed number paid by him. So far as the appellant was companycerned they were mere volunteers and the learned advocate for the respondent admits that employment of volunteers does number bring the candidate within the mischief of the definition of companyrupt practice as given in in section 123 7 . The learned advocate, however, companytended that such a companystruction would be against the spirit of the election laws in that candidates who have rich friends or relations would have an unfair advantage over a poor rival. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit. can certainly number be given effect to in opposition to the plain language of the sections of the Act and the rules made there under. If all that can be said of these statutory provisions is that companystrued according to the ordinary, grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and number to this Court. 1 6 OMally and Hardcastles Report of Election Cases, page I at page 6, On a companysideration of the relevant provisions of the Act and the rules and the arguments advanced before us we are of opinion that the appellant cannot in the circumstances of this case be held to be guilty of any companyrupt practice under section 123 7 as alleged against him. It follows from this that number having incurred any expenditure over and above what was shown by him in his return of election expenses he cannot be said to have companycealed such expenditure and, therefore, he cannot be held to have been guilty of any minor companyrupt practice under section 124 4 of the Act. In the view we have taken, namely, that these extra men were number employed or paid by the appellant, it is unnecessary, for the purpose of this appeal, to discuss the question whether, if ones own servants are also utilised or employed in the companyduct of the election, their salary for the period they are so utilised or employed should be regarded as election expenses and shown in the return. On that we prefer number to express any opinion on this occasion.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 72 of 1952. Appeal by Special Leave from the Judgment and Order dated the 30th November, 1950, of the High Court of Judicature at Nagpur Dev and Rao JJ. in Contempt of Court Proceedings Miscellaneous Petition No. 16 of 1950. Dr. Bakshi Tek Chand, Hardyal, Hardy, B. R. Mandlekar, D. Kathalay, Ganpat Rai and K. L. Arora, with him for the appellant. K. Daphtary, Solicitor-General for India T. P. Naik and I. N. Shroff, with him for respondent No. 1. L. Shevde, Advocate-General for the State of Madhya Pradesh, T. P. Naik and I. N. Shroff, with him for respondent No. 2. Sen and I. N. Shroff for respondent No. 3. 1954. October 15. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J.-This appeal by special leave arises out of companytempt proceedings taken against two very senior members of the Nagpur Bar and one of their clients. Shri Shareef, one of the appellants, at one time was Minister for Law and Justice in the State. Dr. Kathalay, the second appellant, is a Doctor of Laws and an author of legal works. The matter which resulted in the issue of the show cause numberices for companytempt took a protracted companyrse and has to a certain extent resulted in embittered feelings. What happened was this Shri Zikar who was charged along with the two appellants for companytempt made an application under article 226 1 of the Constitution for enforcement of his fundamental right, alleging that he was a citizen Of Bharat and that the Custodian of Evacuee Property and the police were taking wrongful action against him and treating him as a national of Pakistan which he never was. He prayed for an interim order of prohibition against the State from deporting him after the expiry of the permit. The High Court granted the interim order of prohibition against the action companyplained. At the hearing of the case on 11th August, 1950, a preliminary objection was raised on behalf of the State that Zikar had suppressed material facts in the petition filed by him and that the petition was therefore liable to be dismissed without going into the merits. Shri Shareef, who was companynsel for Zikar, companybated this companytention and further submitted that the preliminary objection companyld number be adequately dealt with without going into the merits of the case. On behalf of the State another affidavit was filed on 17th August, 1950, stating certain facts, and Zikar was also directed to file an affidavit in reply by the 21st August, 1950, and this be did by that date. The relevant proceedings of that date are recorded in these terms- Shri Shareef for the petitioner. Shri Naik for the respondent. He files an affidavit and companyies of applications dated 25th February, 1949 and 19th January, 1950. Shri Shareef files a statement and an affidavit. His attention was drawn to paragraph 4 of the affidavit and he was asked whether his client has really understood the companytents which are in English adding that he might change in the Supreme Court and say that he had number understood them. Shri Shareef then said that he has explained the companytents to his clients. Paragraph 6 of the statement and the affidavit is uncalled for as the appellant only desired to file an affidavit with reference to paragraph 10 of the affidavit of the number-applicant Vide order sheet dated 17th August, 1950. A remark was made by one of us Whether paragraph 6 was inserted for founding an argument before the Supreme-Court. Shri Shareef replied he has stated facts Thereafter Shri Naik companytinued his arguments on the preliminary point till we rose for lunch. When we reassembled Shri Shareef informed us that he wants time to apply for transfer of this case to another Bench because of the observations made by us regarding paragraphs 4 and 6 of his affidavit. Case is therefore adjourned to 25th August, 1950 to enable Shri Shareef to make an application in the meanwhile. On the 23rd August, 1950, an application for the transfer of the case from the Bench hearing it to another Bench of the High Court was made on the following grounds 1 The observations and references to the Supreme Court by Rao and Deo JJ. created a bona fide belief in the applicants mind that they were prejudiced against him and had made up their minds and indicated that he shall have to go in appeal to the Supreme Court. The observations and references to the Supreme Court were absolutely unnecessary and left numberdoubt in the applicants mind that he would number receive justice at the hands of the Honble Judges. Prayer In the interest of dispensation of impartial justice, the case be transferred to another Civil Division Bench for disposal. This application was number only signed by Zikar but also by the two appellants as companynsel for the applicant and was rejected in due companyrse and with that matter we are numberlonger companycerned. The preliminary objection raised by the State was upheld and the petition under article 226 was dismissed. The learned Judges then ordered numberices to issue to the applicant and his two companynsel to show cause why they should number all be companymitted for companytempt for scandalizing the Court, with a view to perverting the due companyrse of justice by making statements in the transfer application impeaching the impartiality of the Judges. Dr. Kathalay filed his written statement in reply to the show cause numberice, on the 4th October, 1950. He averred that he companyld number honestly admit that he scandalized the Court and companymitted companytempt either in fact or in law and companytended that in his whole career at the Bar for forty years he observed the highest traditions of this learned profession, upholding always the dignity of the Courts and that he had numberanimus against the Judges of the Division Bench. He asserted that by signing the application he did number scandalize or intend to scandalize the Court and that he bona fide thought that an application companyld be made for transferring a case in the High Court from one Bench to another and that the question did number companycern him alone but the Bench and Bar generally and a question of great principle emerged, viz., whether a companynsel was guilty of companytempt in signing such an application, or whether it was his professional duty to do so if his client was under that bona fide impression. In the last paragraph of the reply it was stated- Whatever the circumstances, I do see how much this application for transfer dated the 23rd August, 1950, has hurt the feelings of the Honble Judges and I very much regret that all this should have happened. Shri Shareef also put in a similar written statement. He asserted that when the transfer application was made he did number know or believe the law to be that it companyld number be made, and rightly or wrongly he was always under the impression that an application companyld be made for transferring a case in the High Court from one Bench to another. He also expressed similar regret for what had happened. Further written statement was filed by Shri Shareef on 16th October, 1950. In paragraph 7 of that statement he said as follows- I was grieved to know that the accusation against me in these proceedings should be of malice and mala fides for my taking up Zikars brief in companynection with his application for transfer, dated the 23rd August, 1950. If I am thus defending the proceedings, I am doing so for vindicating my professional honour and personal self-respect, and it would be a misfortune if this was all going to be companystrued as aggravating the companytempt, as hinted by the Honble Court during my companynsels arguments, though remotely. But even as I am making my defence, it is, I admit, quite likely that I companymitted an error of judgment in acting as I did, causing pain to the Honble Judges, which I deeply regret, as I have already done before and so has my companynsel on my behalf in the companyrse of his arguments. The Judges in the Judgment under appeal have taken exception to the last sentence of this paragraph. Dr. Kathalay also put in a similar reply. The High Court in a very lengthy judgment in which very large number of authorities were companysidered and discussed, held that the application for transfer companystituted companytempt because the Judges were scandalized with a view to diverting the due companyrse of justice. The two advocates who signed and prosecuted the application were found guilty of companytempt. As regards the plea of error of judgment, this is what the learned Judges said- The attitude of defiant justification adopted by them in spite of our pointing out at a very early stage in these proceedings that we would be prepared to companysider any mistake on their part renders it difficult for the companyrt to accept the belated plea of an error of judgment. Even the expression error of judgment was number so much mentioned in the argument until the last day of the argument. We have already shown in para. 100 how it was introduced in the two statements on 16th October, 1950, quite companytrary to fact. If the two advocates felt that there was an error of judgment on their part, it would have been more appropriate to make a candid and clear admission of that and make reparation for the injury done by an adequate apology. We cannot treat the expression I very much regret that all this should have happened as an apology at all. Nor were we ever asked to treat it as such. What is it that the two advocates regret ? -So man things have happened since 21st August, 1950. Any expression of regret to merit companysideration must be genuine companytriteness for what the companytemners have done. In the result the learned Judges passed the following order - We accordingly sentence Shri M. Y. Shareef to pay -a fine of Rs. 500 or in default to undergo simple imprisonment for two weeks and we Sentence Dr. D.W. Kathalay to pay a fine of -Rs. 1000 or in default to undergo simple imprisonment for one month. We are number sure if the sentences we have awarded are adequate to the gravity of the offence, but on this occasion we refrain from being stern and bringing the full power of the companyrt into play companysidering the misconceptions about the advocate8 responsibility that seem to have so far prevailed at any rate in a section of the Bar. Leave to appeal to this Court was refused but was granted here. On the 12th May, 1954, when the appeal was heard by this Court, we recorded the following order- The appellants have tendered an unqualified apology to this companyrt and to the High Court, and they are prepared to purge the companytempt for which they have been companyvicted. In our opinion, the apology is a sincere expression of their regret for what happened in companyrt at the time the transfer application was made and for the allegations made therein. We therefore adjourn this appeal for two months and direct that the apology tendered here be tendered to the Division Bench before which the companytempt is said to have been companymitted. We are sending it to the High Court with the full companyfidence that the learned Judges will companysider the apology in the spirit in which it has been tendered and they will pass appropriate orders and send an intimation to this companyrt as to what orders they pass. When the case went back to the High Court, it again took an unfortunate turn. The learned Judges posed the question that they had to companysider in this form The question is whether remission of the punishment awarded is called for in view of the statement number filed by the companytemners, and it was answered thus We are companystrained to observe that the spirit in which the apology was tendered here is number much different from that originally shown. The idea of the companytemners is that because they have filed the apology as directed, they have a right to expect the acceptance of it by the companyrt. How else can the absence of any prayer or what the companytemners desire be explained ? We record that there was hardly anything apologetic the way the apology was tendered We neither gave the extreme penalty which we might well have given, number did we give the maximum of the lesser penalty. But for the manner of justification and the companytumacy, there might number have been a sentence of fine at all. Having approached the matter thus, the learned Judges referred to a large number of cases for the admitted proposition of law that a sincere apology does number entitle a companytemner as of right to a remission of the sentence. It was further thought that acceptance of apology would lead to an invidious distinction being made in the case of two advocates and Zikar. In the result the apology was number accepted and the report companycluded with the following observations - If in the circumstances of this case the apology were to be accepted, we would be encouraging the numberion that it is the companytemnerss right to get his apology accepted when he chooses and in whatever manner he tenders even in a case where he has aggravated the original offence. We will be unsettling established principles, and setting a bad precedent. Above all, we would be dealing a blow to the authority of the companyrt, the companysequence of which cannot be viewed with equanimity. When the appeal came back to us, we asked Dr. Tek Chand who appeared for the two advocates whether his clients were even number genuinely sorry for signing the transfer application and whether the expression of regret made in this Court was a genuine expression of their feelings, Dr. Tek Chand replied in the affirmative and emphatically said Absolutely. In this situation, the question for companysideration in the appeal number is whether the two appellants have purged the companytempt by tendering an unqualified apology in this Court as well as to the High Court, the genuineness of which has been again emphasized by their companynsel before us, or whether the sentence of fine awarded to them by the High Court should necessarily be maintained for upholding the authority and dignity of the Court The proposition is well settled and self-evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is number a weapon of defence to purge the guilty of their offence number is it intended to operate as a universal panacea, but it is intended to be evidence of real companytriteness. The appellants having tendered an unqualified apology, numberexception can be taken to the decision of the High Court that the application for transfer did companystitute companytempt because the judges were scandalized with a view to diverting the due companyrse of justice, and that in signing this application the two advocates were guilty of companytempt. That decision therefore stands. The fact however remains, as found by the High Court, that there was at the time these events happened companysiderable misconception amongst a section of the Nagpur Bar about advocates responsibilities in matters of signing transfer applications companytaining allegations of this character. It cannot be denied that a section of the Bar is under an erroneous impression that when a companynsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which companytains matter scandalizing the Court. They think that when there is companyflict between their obligations to the Court and their duty to the client, the latter prevails. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that companynsel who sign applications or pleadings companytaining matter scandalizing the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the companyrse of justice, are themselves guilty of companytempt of Court, and that it is numberduty of a companynsel to his client to take any interest-in such applications on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications. Once the fact is recognized as was done by the High Court here, that the members of the Bar have number fully realized the implications of their signing such applications and are firmly under the belief that their companyduct in doing so is in accordance with professional ethics, it has to be held that the act of the two appellants in this case was done under a mistaken view of their rights and duties, and in such cases even a qualified apology may well be companysidered by a Court. In border line cases where a question of principle about the rights of companynsel and their duties has to be settled, an alternative plea of apology merits companysideration for it is possible for a judge who hears the case to hold that there is numbercontempt in which case a defence of unqualified apology is meaningless, because that would amount to the admission of the companymission of an offence. In this case the learned judges themselves had to wade through a large volume of English and Indian case-law before they companyld hold that the act of the appellants companystituted companytempt and thus it companyld number be said that the matter was so patent that on the face of it their act amounted to companytempt. Moreover, it appears from the proceedings that the companynsel were genuinely under the belief that their professional duties demanded that, when their client was under a bonafide belief that the Court was prejudiced against him and decided to apply for transfer, the were bound to take his brief and sign the application. We cannot help observing that the admitted reference by the judges to the Supreme Court in their remarks during the companyrse of the hearing was unfortunate and seems to indicate an unnecessary and indecorous sensitiveness which may well have been misunderstood by the party and the advocates. The companynsel seem to have genuinely believed that they were right in what they did, though as a matter of fact if they had studied the law more deeply, they would number have done so. In these circumstances it cannot be said that what they did was wailful and their companyduct in getting the law settled in this matter by raising the defence that they did was companytumacious. The authorities relied upon by the High Court have numberapplication to cases of this character. How else is the validity of a defence of this kind to be settled, except by an argument that the companynsel was entitled in the interests of his client to advise a transfer and give grounds for that transfer which were bona fide believed by the client. Every form of defence in a companytempt case cannot be regarded as an act of companytumacy. It depends on the circumstances of each case and on the general impression about a particular rule of ethics amongst the members of the profession. The learned Judges, as already said, have themselves said that such an impression was prevalent since along time amongst a section of the Bar in Nagpur. It was thus necessary to have that question settled and any effort on the part of these two learned companynsel to have that point settled cannot be regarded as companytumacy or a circumstance which aggravates the companytempt. We think that the expression of regret in the alternative in this case should number have been ignored but should have been given due companysideration. It was made in the earliest written statement submitted by the companynsel and cited above. Once however the High Court found that they were guilty of companytempt, they would have been well advised to tender an unqualified apology to that Court forthwith. But perhaps they were still under the delusion that they were right and the Court was in error, and that by companying to this Court they might be able to have the q uestion of principle settled as they companytended. As soon as we indicated to the learned companynsel that they were in error, they and their companynsel immediately tendered an unqualified apology which, as already indicated, was repeated again in absolute terms at the second hearing. We have number been able to appreciate why the learned Judges of the High Court should have doubted the genuineness of this apology. It certainly was number the object and companyld number be the object of the learned Judges of the High Court to humiliate senior companynsel and to expect something more from them than what they had already done in this Court. While unhesitatingly deprecating very strongly the companyduct of the appellants in scandalising the Court by becoming parties to an unnecessary and untenable transfer application, we still feel that in the matter of measure of punishment the High Court should have after an unqualified apology was tendered taken a different view. We have numberdoubt that whatever the learned Judges of the High Court did in this case, they did in the firm belief that the dignity of the Court had to be maintained and the members of the Bar, howsoever big or learned, cannot be allowed to scandalize the judges or to divert the companyrse of justice by attempting to take a case out from one Bench to another Bench of the Court when they find that the Bench is expressing opinions seemingly adverse to their clients. We have firm hope that this kind of companyduct will number be repeated by companynsel in any High Court in this companyntry, and numbermore test cases of this kind would have to be fought out. In the peculiar circumstances of this case and in view of the circumstance that the learned Judges themselves were of the opinion that there would number have been a sentence of fine at all if there was numberplea of justification and there was numbercontumacy, we are of the opinion that the unqualified apology was sufficient to purge the companytempt companymitted by the two appellants as we have reached the companyclusion companytrary to that arrived at by the High Court that the plea of justification in this case did number amount to companytumacy. It has also to be kept in view that companydemnation for companytempt by a High Court of senior members of the Bar is itself a heavy punishment to them, as it affects them in their professional career and is a great blot on them. There has been numberhing said in the lengthy judgment of the High Court that these companynsel in their long career at the Bar have ever been disrespectful or discourteous to the Court in the past. This one act of indiscretion on their part in signing the application should number have been viewed in the very stringent manner in which the High Court viewed it in the first instance and viewed it again after we had sent the case back to it. It is number the practice of this Court in special leave cases and in exercise of our over- riding powers to interfere with a matter which rests in the discretion of the High Court except in very exceptional cases. After a careful companysideration of the situation that arises in this case we have reached the decision that the dignity of the High Court would be sufficiently upheld if the unqualified apology tendered in this Court in the first instance and reiterated in absolute terms by Dr. Tek Chand again at the next hearing is accepted and that apology is regarded as sufficient to purge the companytempt. The matter has become very stale and the ends of justice do number call for maintaining the punishment of fine on two senior companynsel for acting wrongly under an erroneous impression of their rights and privileges. For the reasons given above we allow this appeal to the extent that the sentence of fine passed on both the appellants is set aside, -and the unqualified apology given by them to this Court and the High Court is accepted. We also desire to issue a strong admonition and warning to the two companynsel for their companyduct.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 90 of 1953. Appeal under Article 132 1 of the Constitution of India from the Judgment and Order dated the 29th August, 1952, of the High Court of TravancoreCochin at Ernakulam in Original Petition No. 51 of 1952. Thomas and M. R. Krishna Pillai, for the appellant. Mathew P. Muricken, Advocate-General for the State of Travancore-Cochin T. R. Balakrishna Ayyaiand Sardar Bahadur, with him , for the respondent. 1954. November 25. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J.-This appeal by leave of the High Court of Judicature of TravancoreCochin at Ernakulam is directed against an order of a Full Bench of that companyrt dismissing an application for the issue of a writ of certiorari quashing the order of the Government of the united State of TravancoreCochin removing the appellant from service of the State and permanently debarring him from reappointment in service. The facts giving rise to the petition and the appeal are these The petitioner entered the service of the erstwhile Travancore State in the year 1928. By promotion he became the Executive Engineer, Electricity Department in August 1937 and subsequently Electrical Engineer to Government in October 1944. He was the Electrical Engineer to Government on the 1st July 1949 when the States of Travancore and Co- chin were integrated by a Covenant entered into between the rulers of the two States. By an order of the Government of the united State of Travancore-Cochin dated the 11th August 1949, he was appointed as the officiating Chief Engineer Electricity in the State. In or about September 1949 the Government of the 1014 united State received serious companyplaints about the companyduct and dealings of some of their senior officers and allegations of companyruption, companymunalism, etc. were made against them. In December 1949 the Council of Ministers decided to take action against the appellant on a number of charges indicated in the resolution. On the 22nd December 1949, immediately after this resolution was passed, the petitioner was informed that he was suspended from service pending enquiry and he was requested to hand over charge to Sri K. P. Sridharan Nair forthwith. The petitioner companyplied with this order and handed over charge as directed. On the 21st March 1950 the following numberification was issued- Whereas Government are of opinion that there are sufficient grounds for making a formal and public inquiry into the truth of the imputation of misconduct of the officers mentioned below Government, under section 3 of the Travancore Public Servants Inquiries Act, XI of 1122, hereby companymit the said inquiry to Sri K. Sankaran, Judge, High Court, appointed Commissioner for the purpose. Government are further pleased under section 4 of the said Act to numberinate Sri T. R. Balakrishna Ayyar, Government Pleader, High Court, to prosecute the inquiries on their behalf. The inquiries shall be companyducted as early as possible. The officers referred to in para. 1 supra are Sri P. Joseph John. The petitioner was informed by numberice of the 24th April 1950 about this inquiry. The numberification was signed by Shri K. Menon, Chief Secretary to Government. Mr. Justice Sankaran took charge as Enquiry Commissioner and on the 11th May 1950 forwarded the articles of charges against the petitioner, the list of witnesses and the list of documents placed before him together with the numberice regarding the companymencement of the enquiry to Shri K. S. Raghavan, Secre- 1015 tary to Government, for service on the petitioner. A few days before the date fixed for the companymencement of the enquiry the petitioner made an application to the Enquiry Commissioner for a direction to the Prosecutor to produce the files and papers relating to the various charges in the office of the Commissioner and for permission to him and his companynsel to inspect the same. This application was allowed and he and his advocate were allowed to inspect the relevant files in the presence of the prosecutor or his deputy. On the 20th May 1950 when the enquiry companymenced, the petitioner pleaded number guilty to the charges by a written statement. He was defended during the enquiry by Shri K. P. Abraham, a leading member of the Bar. A preliminary objection was taken to the Tribunals jurisdiction on the basis of Article 20 of the Covenant entered into between the rulers of Tra- vancore and Cochin and it was companytended that the proceedings before the Commissioner were criminal in nature and companyld number be companymenced without the sanction of the Rajpramukh and that its absence was fatal to the enquiry. This objection was number immediately decided by the Commissioner but was ultimately overruled. On the 22nd November 1950 the peti- tioner submitted detailed answers in writing to the various charges. The enquiry companycluded on the 27th December 1950 and the Commissioner submitted his report to Government on the 17th February 1951. Some of the-charges were held proved, while others were held number established. On the 5th July 1951 the following companymunication was sent to the petitioner by the Chief Secretary to Government- I am to enclose here with a companyy of the above report and to point out that the Government agree with the findings of the Inquiring Commissioner on the several charges against you. Government also agree with the Commissioner that the objections raised by you challenging the validity of the en- quiry itself are number tenable. As against the 26 charges framed 1016 against you, the nine charges numbered in the margin have number been established and they are accordingly dropped. As regards Charge No. IX in view of the extenuating circumstances, the irregularity is companydoned. It is evident from the remaining charges, which have been established, that you have misused your official position as Electrical Engineer to Government and shown undue favouritism at the expense of State revenues, to private firms and issued materials from Government stores to private companypanies and individuals in violation of all rules vide List A . It is also evident that departmental stores and departmental lorries have been diverted for your personal use in a number of cases. Vide List B . You are also found guilty of having shown defiance and insubordination towards the authority of the Government by your refusal, in companynection with the supply of power to the Nagercoil Electric Supply Corporation, to supply certain particulars which were called for and which it was your duty to furnish and by your refusal to withdraw the objectionable statement in your reply to the Government in spite of the Government order directing you to withdraw the same. The Government therefore propose to remove you from service from the date on which you were placed under suspension with permanent bar against future reappointment in service. You are requested to show cause within 15 days of the date of receipt of this numberice with enclosures why action should number be taken against you as proposed in paragraph 4 above. The petitioner on receipt of this numberice applied for time till the 10th September 1951 for showing cause. Time as prayed for was allowed. On the 10th September 1951 when the time granted at his own request 1017 was due to expire, he again applied for further time till the 10th November 1951. He was allowed further time till the 24th September 1951. On that date he again asked for further time till the 31 st October 1951 but this request was number granted. In spite of the fact that the petitioner was granted the time which he originally asked for and this was further extended by a fortnight, he furnished numberexplanation and did number show any cause against the numberice issued to him. The petitioner having failed to avail himself of the opportunity to show cause against the action proposed against him, a draft of the proceedings relating to the enquiry was submitted to H. H. the Rajpramukh oil the 30th September 1951 and thereupon an order was issued for his removal from service from the date of suspension and debarring him from reappointment to service. The order was in proper form as having been made by H. H. the Rajpramukh and was authenticated by the Chief Secretary to Government. This order is dated the 1st October 1951. It may be mentioned that before the papers were submitted to H. H. the Rajpramukh, the report of the Commissioner was submitted to the Public Services Commission for their companysideration. The Public Services Commission supported the action which the Government proposed to take against the petitioner. On the 9th October 1951 the petitioner was removed from service with effect from the 26th December 1949. Two months after the order of his removal, the petitioner submitted an ap- plication for a reconsideration of the order removing him from service. This was rejected by an order dated the 25th January 1952. On these facts and in these circumstances an application was made before the High Court of Travancore-Cocliin at Ernakulam on the 2nd June 1952 praying that the companyrt may be pleased to issue a writ in the nature of certiorari or any other writ, directions or orders calling for the records relating to the orders dated the 9th October 1951 and the 25th January 1952 and to quash the same and direct the respondent to restore the petitioner to the office which he was lawfully to hold. It was companytended in the application 1018 that the applicant had numberreasonable opportunity of showing cause against his removal and that he was entitled to show cause twice, once after he was found guilty and next after the punishment had been decided and that the denial of this right rendered the order of dismissal illegal and void and that it offended against the principles of natural justice. It was further companytended that the companysultation with the Public Services Commission was number held in terms of the provisions of procedure for disciplinary action against Government servants and prescribed in Article 320, sub- section 3 c of the Constitution of India. A number of other grounds were also taken against the order of dismissal. The High Court negatived all the companytentions of the petitioner and dismissed the petition. It however certified that the case involved substantial questions of law as to the interpretation of the Constitution and was a fit one for appeal to this Court. Mr. Thomas who argued the appeal on behalf of the appellant raised a number of points against the validity of the order removing the appellant from service and companytended that the enquiry companyducted into the charges made against him was wholly illegal and void. In our judgment, numbere of the points urged by the learned companynsel was of a substantial character and all of them companycerned matters of mere form and numbervalid reasons have been shown for disturbing the decision of the High Court. The question of the validity of an order of removal of a person employed in a civil capacity under the Union or a State falls to be determined on the provisions of Article 311 of the Constitution of India. This Article is in these terms No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be, dismissed or removed by an authority subordinate to that by which he was appointed. No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause 1019 against the action proposed to be taken in regard to him It is number said that the petitioner was removed by an authority subordinate to that by which he was appointed. There was numberoccasion to raise this issue because the order of removal had been made by the Rajpramukh and was expressed according to the provisions of Article 166 of the Constitution. The requirement therefore of sub-clause 1 of Article 311 was fully satisfied. As regards the question whether the petitioner was given reasonable opportunity of showing cause against the action proposed to be taken in regard to him, the legal position in that respect and the nature of opportunity to be granted was stated by the Privy Council in the case of High Commissioner for India v. I. M. Lall 1 and it was held that when a stage is reached when definite companyclusions have been companye to as to the charges, and the actual punishment to follow is provisionally determined on, that the statute gives the civil servant an opportunity for which subsection 3 of section 240 of the Government of India Act, 1935 which companyresponds to Article 311 makes provision, and that at that stage a reasonable opportunity has to be afforded to the civil servant companycerned. It was also held that there was numberanomaly in the view that the statute companytemplates a reasonable opportunity at more than one stage. In our opinion, in the present case the petitioner had reasonable opportunity at both stages to enter upon his defence. He fully availed himself of the first opportunity and though a reasonable opportunity was also given to him at the second stage, he failed to avail himself of it and it is number open to him number to say that the requirements of clause 2 of Article 311 have number been satisfied. It was number denied that the petitioner was given by the Enquiry Commissioner all facilities for entering on his defence. Before filing his written statement before the Enquiry Commissioner the petitioner and his companynsel were afforded facility to inspect the 1 1948 F.C.R. 44. 131 1020 various files companycerning the charges which he had to meet. After inspecting those files he filed a full written statement explaining those charges. He was defended in the enquiry by a leading lawyer and was afforded fullest opportunity to examine and cross-examine the witnesses examined by the Commissioner. He was able to satisfy the Enquiry Comniissioner that out of the charges levelled against him a number of them were number established but he failed to satisfy the Commissioner as regards the rest and the Enquiry Commissioner held them proved. After the enquiry was companycluded the petitioner was furnished with a companyy of the report of the Commissioner and was asked to show cause against the action proposed to be taken against him. He applied for two months time to show cause. This was granted. He made a further application for further time. This was also partially granted. He again asked for further time which was refused. It is difficult to say that the time allowed to him was number reasonable in view of the fact that be bad taken part in the enquiry before the Commis- sioner and all the evidence had been taken in his presence and he had full opportunity to defend himself. All the material on which the Commissioner had reported against him on the charges found proved, was given in the report of the Commissioner and that was supplied to him with a show cause numberice. The time allowed, in our opinion, was more than sufficient for him to enter on his defence and having failed to do so, he cannot be heard to say that he was number given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Mr. Thomas argued that the show cause numberice was number in accordance with the provisions of Article 166 of the Constitution inasmuch as it was number expressed to have been made in the name of the Rajpramukh. As above mentioned, this numberice was issued on behalf of the Government and was signed by the Chief Secretary of the united State of Travan- companye-Cochin who had under the rules of business framed by the Rajpramukh the charge of the portfolio of service and appointments at the Secretariat level 1021 in this State. This was in our opinion substantial companypliance with the directory provisions of Article 166 of the Constitution. It was held by this companyrt in Dattatreya Moreshwar Pangarkar v. The State of Bom. bay 1 that clauses 1 and 2 of Article 166 are direc- tory only and number- companypliance with them does number result in the order being invalid, and that in order to determine whether there is companypliance with these provisions all that is necessary to be seen is whether there has been substantial companypliance with those requirements. In the present case there can be numbermanner of doubt that the numberice signed by the Chief Secretary of the State and expressed to be on behalf of the Government and giving opportunity to the petitioner to show cause against the action proposed to be taken against him was in substantial companypliance with the provisions of the article. The petitioner accepted this numberice and in pursuance of it applied for further time to put in his defence. He was twice granted this time. In these circumstances, the companytention of Mr. Thomas that as the numberice was number expressed as required under Article 166 it was invalid and therefore the requirements of Article 311 were number satisfied in this case must be held to be devoid of force. We are satisfied that all the requirements of Article 311 have been fully companyplied with in this case. It may also be mentioned that the High Court held that H. H. the Rajpramukh had intimation of the decision of the Council of Ministers and the action proposed to be taken against the petitioner and that in fact His Highness approved of the proposed action. Mr. Thomas further companytended that the enquiry at the first stage also was invalid and irregular. He argued that the order appointing the Enquiry Commissioner was number expressed in proper form and that the Commissioner did number companyduct the enquiry in accordance with the provisions of the Act. The numberification ordering an enquiry set out above was issued after the Council of Ministers had passed a resolution to that effect. It must be presumed that in 1 1952 S.C.R. 612. 1022 the numbermal companyrse. of business that resolution was companymunicated to the Rajpramukh. The order thus substantially companyplies with the requirements of law and in any case the effect of its number being expressed as directed by Article 166 does number vitiate the numberification. The appellant, as already stated, took part in the enquiry, defended himself and fought every inch of the ground. That being so, it is number possible to hold that he was number given reasonable opportunity at the first stage to defend himself. It was companytended that under the Travancore Public Servants Inquiries Act, 1122 it was only the Maharaja who companyld make an order under the provisions of that Act, and that the Ministers companyld number take any action. Emphasis was lai on the expression Our Government in the different provisions of the Act. We are unable to see any force in this companytention. The expression Our Government means the Maharajas Government, in other words, the Government of the State of Travancore. After the integration of the two States of Travancore and Cochin and the formation of the United State of Travancore-Cochin the expression Our Government has to be companystrued according to the new set-up of Government and when the Council of Ministers had companye into being, it is obvious that the expression our Govern- ment as adapted to fit in with the new Constitution means The Council of Ministers. It is an elementary principle of democratic Government prevailing in England and adopted in our Constitution that the Rajpramukh or the Governor as head of the State is in such matters merely a companystitutional head and he is bound to accept the advice of his Ministers. In this situation it cannot be held that the order of the Government appointing the Enquiry Commissioner as ultra vires and without jurisdiction. Another point taken by Mr. Thomas was that without the sanction of the Rajpramukh the proceedings companyld number be started against the petitioner and reliance for this companytention was placed on Article 20 of the Covenant of the united State of Travancore and Cochin. This article is in these terms Except with the previous sanction of the Raj- 1023 pramukh, numberproceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of either Covenanting State before the appointed day. The High Court negatived this companytention with the following observations Article 20 refers to the institution of civil and criminal proceedings, two well-known expressions which are terms of art and clearly relate to civil and criminal proceedings before civil and criminal companyrts. The said two kinds of proceedings do number exhaust the totality of matters which can be called proceedings. is only in respect of civil and criminal proceeding that the sanction of the Rajpramukh is required under Article 20 of the Covenant. It is number companytended on behalf of the petitioner that the proceedings before the Commissioner are criminal proceedings. The only companytention is that they partake of the nature of criminal proceedings. In our judgment, Article 20 of the Covenant does number apply to proceedings which are number -criminal but merely partake of that character. In these observations we fully companycur. In our view departmental proceedings do number companye within the ambit of the Article. Lastly it was urged that there was number-compliance with the provisions of Article 320, clause 3 c of the Constitution which provides that on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters, the Union Public Service Commission. or the State Public Service Commission, as the case may be, shall be companysulted. In this case the Public Service Commission was in fact companysulted in the matter of the action proposed against the petitioner by removing him. The Public Service Commission agreed to the proposed action. This companysultation and the agreement was before the petitioner was asked to show cause why he should number be removed from service. The companyplaint of the petitioner is that the 1024 companysultation with the Public Service Commission sould have been after he was asked to show cause but the petitioner did number show cause and that being so, numberquestion arose of companysulting the Public Service Commission over again. It was companytended that the Public Service Commission should have been companysulted on the review petition. To accede to this argument will mean that the State will have to companysult the Public Service Commission as many times as he may choose to file review petitions. In our opinion the companysultation envisaged by Article 320 does number extend so, far. In this case the report of the Commissioner was placed before the Public Service Commission and the latter approved of the action proposed to be taken. The appellant was given another opportunity to show cause but he did number avail himself of that opportunity or submit any explanation or show any cause on which the Public Service Commission companyld be companysulted. The order of dismissal having been made there was in the circumstances numberfurther necessity to companysult the Public Service Commission. in our opinion therefore there is numberforce in this companytention as well. After having examined all the arguments of Mr. Thomas, we are of the opinion that all the rules of natural justice were fully observed during the enquiry in this case, and the petitioner had the fullest opportunity to put in his defence both before the Enquiry Commissioner and against the action proposed to be taken against him. It was by reason of his own default that he failed to avail himself of the second opportunity. He put in a belated review but such a review is number provided for under the rules and in our opinion, it was number necessary to companysult the Public Service Commission at that stage. Such petitions are number within the companytemplation of the Constitution.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil AppealNo. 117 of 1953. Appeal from the Judgment and Order dated the 29th day of March, 1951, of the High Court of Judicature at Madras in Case Referred No. 44 of 1948. K. Daphtary, Solicitor-General for India G. N. Joshi, with him for the appellant. Ganapathy Iyer and M. S. K. Aiyangar for the respondent. 1954. November 1. The Judgment of the Court was delivered by DAS J.-This is an appeal from the judgment pronounced by the High Court of Judicature at Madras on the 29th March, 1951, on a companysolidated reference by the Income-tax Appellate Tribunal under section 66 1 of the Income-tax Act whereby the High Court answered. in the affirmative both the referred questions which were expressed in the following terms Whether on the facts and in the circumstances of the case the profits derived by the assessee companypany from sales made to European and American buyers arose outside British India ? Whether on the facts and in the circumstances of the case the profits derived by the assessee companypany from sales made to European and American buyers were received outside British India ? The above Questions of law arose out of proceedings for the assessment to income-tax of the respondent, Mysore Chromite Ltd. hereinafter referred to as the asseessee companypany , for the years 1939-1940, 1940 1941, 1941-1942 and 1942-1943. The facts leading up to the reference as found by the Income-tax Appellate Tribunal are shortly as follows The assessee companypany is a private limited companypany registered in the Mysore State under the Mysore Company Regulations and has its registered office at Sinduvalli in Mysore State. The management and companytrol of the assessee companypany was vested in Messrs. Oakley Bowden Co. Madras Ltd., another private limited companypany incorporated under the Indian Companies Act, having its registered office at No. 15, Armenian Street, Madras. The assessee companypany owns chromite mines in Mysore State. Chrome ores are extracted from the mines and companyverted into a merchantable product and then sold to buyers mostly outside India. A very small proportion of the total sales is effected in India and for the purposes of this case may be left out of companysideration. The sales are mostly to buyers in America and Europe. The sales to the purchasers in Europe are put through in London by Bowden Oakley Co. Ltd., London, which is the agent of the assessee companypany in Europe holding a power of attorney from the assessee companypany. The companytracts for sale to European purchasers are signed by Bowden Oakley Co. Ltd., in London. The sales to purchasers in America are effected through Messrs. W. R. Grace Co., who buy for undisclosed principals. The companytracts for sale to American purchasers are signed by W. R. Grace Co., presumably in America and by Oakley Bowden Co. Madras , Ltd., in Madras. Specimen forms of companytracts with European purchasers and those with American purchasers are set out in the order of the Tribunal dated the 22nd January,1948, out of which the present reference arises. Under both forms of companytracts the price was F.C.B. Madras or Marmagoa. A very small quantity of goods was sold F.O.B. Marmagoa and the same need number be companysidered here. Provision was made for weighment, sampling and assay of goods at destination. The terms of payment under the European companytract were as follows- Payment.-Buyers to open a companyfirmed irrevocable Bankers credit in favour of Messrs. Mysore Chromite Ltd., Madras to be advised to sellers through the Eastern Bank Ltd., for 90 per cent. ninety per cent of the Provincial sic Invoice against documents. Documents to companysist of- Bills of Lading, Provisional Invoice. Provisional invoice to be based on Bill of Lading weight and companytract price for 48 per cent. Cr. 203. Balance on ascertainment of weight and analysis to be paid in London to Bowden Oakley Co., Ltd., within 10 days of the final invoice, based on outturn weights and assays. The companyresponding terms of payment under the American companytracts were as follows- Payment.-Letter of credit for eighty per cent. 80 per cent. of invoice value to be available against drafts at ninety 90 days sight with documents attached to be opened immediately in London in favour of the seller. Balance estimated twenty 20 per cent. of the margin due to be paid by telegraphic transfer through London on receipt of information as to assay and outturn which should be submitted within a month after the arrival of the steamer at destination, Charges for such telegraphic transfer for account of beneficiary. The European companytracts also provided for insurance by buyers but numbersuch provision was made in the American companytracts. The companyrse of dealing as found by the Appellate Tribunal was as follows. Before the goods were actually shipped, the buyers used to open a companyfirmed irrevocable Bankers credit with some first class bank in London. Being informed of the opening of such credit the Eastern Bank Ltd., London sent intimation to the Eastern Bank Ltd., Madras, and the latter in its turn used to pass on the intimation by letter addressed to the assessee companypany. A specimen of such letter is also set out in the order of the Appellate Tribunal. in such companymunication the Eastern Bank Ltd., Madras, informed the assessee companypany that I in accordance with advices received by letter from our London Office, a companyfirmed and irrevocable credit has been opened in your favour by Messrs. Morgan Grenfell Co., Ltd., London, for account of Messrs. W. R. Grace Co., New York, for a sum number exceeding pound. 7,300 seven thousand three hundred pounds sterling in all, available by delivery to us on or before 15th January, 1940, of the following documents Towards, the end of the letter the Eastern Bank Ltd., Madras, used to write that they were prepared in our options as customary to negotiate drafts drawn in terms of the arrangement provided that the documents as above mentioned appear to us to be in order. The letter companycluded with a warning that the advice was given for your guidance and without involving any rosponsi- bility on the part of this Bank. On receipt of such intimation the assessee companypany placed the companytracted goods on board the steamer at Madras and obtained A bill of lading in its own name. As already mentioned, the shipments were made principally at Madras Port. Thereafter, the assessee companypany used to make out a provisional invoice on the basis of the bill of lading weight and companytract price for 48 per cent Cr. 203 and used to draw a bill of exchange on the buyers Bank, where the letter of credit had been opened, for 90 per cent. of the amount of the provisional invoice payable at sight in the case of European companytracts and 80 per cent. of the amount of the provisional invoice at 90 days sight in the case of American companytracts and in either case the bills of exchange used to be drawn in favour of the Eastern Batik Ltd., London. The bill of exchange together with the relative bill of lading endorsed in blank by the assessee companypany and the provisional invoice was then negotiated with the Eastern Bank Ltd., Madras, the bankers of the assessee companypany, Who used to credit the assessee companypany with the amount of the bill of exchange. The Eastern Bank Ltd., Madras, then forwarded the documents to the Eastern Bank Ltd., London, who used to present the bill of exchange to the buyers Bank in London and upon the bill of exchange being accepted the Eastern Bank Ltd., London, used to deliver the bill of lading and the invoice to the buyers Bank. The buyers Bank in due companyrse used to pay the amount of the bill of exchange to the Eastern Bank Ltd., London. Thereafter, on arrival of the goods and after weighment and assay, the sale price was ascertained and the balance of price, after deducting the payments made against the bill of exchange, used to be paid to the Eastern Bank Ltd., London, which was the assessee companypanys agent and banker in London. On the facts stated above the Income-tax Officer assessed the assessee companypany on the entire profits in respect of these sales on the footing that they arose and were also received in British India. On appeal, the Appellate Assistant Commissioner companyfirmed the assessment. The assessee companypany went up on appeal to the Income-tax Appellate Tribunal. The Tribunal by its order dated the 22nd January, 1948, came to the companyclusion that the sales took place outside British India and that the money in respect of such sales was also received by the agent of the. assessee companypany in London. The Commissioner of Income-tax thereupon applied to the Appellate Tribunal requiring the latter to state a case and refer certain questions of law said to rise out of the order of the Tribunal. The Appellate Tribunal accordingly referred the two questions of law hereinbefore set out. The High Court of Madras in a well reasoned judgment upheld the decision of the Appellate Tribunal and answered the two questions in the affirmative and against the Commissioner of Income-tax. The Commissioner of Income-tax has number preferred this appeal with a certificate of fitness from the High Court. It appears from the statement of case as also from the order of the Appellate Tribunal that it was agreed between the department and the assessee companypany that the income arose at the place, wherever that be, where, the sales took place. This was number disputed before the High Court or before us although in the appellants statement of case it was suggested that this was erroneous. The point for determination, therefore, is as to where the sales took place. Learned Solicitor-General appearing in support of this appeal companytends that having regard to the terms of the companytracts the sales must be regarded as having taken place in British India. The facts strongly relied on by him are that the price and delivery of goods were on F.O.B. terms, ii that in the European companytracts the insurance, if any, was to be the companycern of the buyers and iii that payment of the 80 per cent. or 90 per cent. as the case may be was made in Madras by the Eastern Bank Ltd., Madras, to the assessee companypany on the delivery of the documents. All these facts taken together indicate, according to his submission, that the property in the goods passed at Madras and the sales accordingly were companypleted in British India. We are unable to accept this line of reasoning. According to section 4 of the Indian Sale of Goods Act a companytract of sale of goods is a companytract whereby the seller transfer, or agrees to transfer the property in goods to the buyer for a price and where under a companytract of sale the property in the goods is transferred from the seller to the buyer, the companytract is called a sale, but where the transfer of property in the goods is to take place at a future time or subject to some companydition thereafter to be fulfilled, the companytract is called an agreement to sell. By sub-section 4 of that section an agreement to sell becomes a sale when the time elapses or the companyditions are fulfilled subject to which the property in the goods is to be transferred. Section 18 of the Act clearly indicates that in the case of sale of unascertained goods numberproperty in the goods is transferred to the buyer unless and until the goods, are ascertained. In 857, the present case, the companytracts were always for sale of unascertained, goods. Skipping over sections 19 to 22 which deal with companytract of sale of specific goods we companye to section 23 which lays down that where there is a companytract for the sale of unascertained or future goods by description and goods of that description and in a,, deliverable state are unconditionally appropriated to the companytract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. It is suggested that as soon as the assessee companypany placed the goods on board the steamer named by the buyer at the Madras Port the goods became ascertained and the property in the goods passed immediately to the buyer. This argument, however, overlooks the important word unconditionally used in the section. The requirement of the section is number only that there shall be appropriation of the goods to the companytract but that such appropriation must be made unconditionally. This is further elaborated by section 25 which provides that where there is a companytract for the sale of specific goods or where goods are subsequently appropriated to the companytract, the seller may, by the. terms. of the companytract or appropriation,, reserve the right of disposal of the goods until certain companyditions are fulfilled. In such a case, numberwithstanding the delivery of the goods to the buyer, or to a carrier or other bailer for the purpose of transmission to the buyer, the property in the goods does number pass to the buyer until the companyditions imposed by the seller are fulfilled. The question in this case, therefore, is was there an unconditional appro- priation of the goods by merely placing them on the ship ? It is true that the price and delivery was F.O.B., Madras but the companytracts themselves clearly required the buyers to open a companyfirmed irrevocable Bankers credit for, the requisite percentage of the invoice value to be available against documents. This clearly indicated that the buyers would number be entitled to the documents,, that is, the bill of lading and the provisional invoice, until payment of the requisite percentage was made upon the bill of exchange. The bill of lading is the document of title to the goods and by this term the assessee companypany clearly reserved the right of disposal, of the goods until the bill of exchange as paid. Placing of the goods on board the steamer named by the buyer under a O.B. companytract clearly discharges the companytractual liability of the seller as seller and the delivery to the buyer is companyplete and the goods may thenceforward be also at the risk of the buyer against which he may companyer himself by taking out an insurance. Prima facie such delivery of the goods to the buyer and the passing of the risk in respect of the goods from the seller to the buyer are strong indications as to the passing also of the property in the goods to the buyer but they are number decisive and may be negatived, for under section 25 the seller may yet reserve to himself the right of disposal of the goods until the fulfilment of certain companyditions and thereby prevent the passing of property in the goods from him to the buyer. The facts found in this case are that the assessee companypany shipped the goods under bill of lading issued in its own name. Under the companytract it was number obliged to part with the bill of lading which is the document of title to the goods until the bill of exchange drawn by it on the buyers Bank where the irrevocable letter of credit was opened was honoured. It is urged that under the provision in the companytract for weighment and assay, which was ultimately to fix the price unless the buyer rightly rejected the goods as number being in terms of the companytract, the passing of property in the goods companyld number take place until the buyer accepted the goods and the price was fully ascertained after weighment and assay. It is submitted that being the position, the property in the goods passed and the sales were companycluded outside British India, for the weighment, sampling, assay and the final fixation of the price companyld only take place under all these companytracts outside British India. It is number necessary for us to express any opinion on this extreme companytention. Suffice it to say, for the purposes of this case, that in any event upon the terms of the companytracts in question and the companyrse of dealings between the parties the property in the goods companyld number have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers Bank in London and the documents were delivered by the assessee companypanys agent, the Eastern Bank Ltd., London, to the buyers Bank. This admittedly, and as found by the Appellate, Tribunal, always took place in London. It must, therefore,. follow that at the earliest the property in the goods passed in London where the bill of lading was handed over to the buyers Bank against the acceptance of the relative bill of exchange. In the premises, the Appellate Tribunal as well as the High Court were quite companyrect in holding that the sales took place outside British India and, ex hypothesis the profits derived from such sales arose outside British India. As to the second question, the learned Solicitor-General companytends that irrespective of the place where the sale may have. taken place the profits derived from such sales were received in Madras. It is recalled that after shipment the assessee companypany, through its managing agent in Madras, prepared, provisional invoices and drew bills of exchange for 80 per cent. or 90 per cent., as the case may be, of the amount of such invoices and handed over the same to the Eastern Bank Ltd., Madras, and received the amount of the bill of exchange from them in Madras. He companytends that the receipt of this payment by the assessee companypany was really the receipt of the price of the goods and amounted to receipt of profits in Madras. He draws our attention to the terms of payment in the European companytract and to the letter of intimation of the opening of the credit sent by the Eastern Bank Ltd. Madras, to the assessee companypany which have been quoted in part in the earlier part of this judgment. He relies on the words through the Eastern Bank Ltd., appearing in the companytract and the words available by delivery to us appearing in the letter. We do number think that those words support the companytention of the learned Solicitor-General. The words through the Eastern Bank Ltd., appear to us to go with the preceding words to be advised to sellers which are put within brackets which seem to have been wrongly closed after the word sellers instead of after the words the Eastern Bank Ltd. . Ordinarily, the buyer opens a letter of credit with his Bank in favour of the seller and the words through the Eastern Bank Ltd., would be meaningless unless it was intended to mean that the irrevocable credit which was in favour of the assessee companypany was to be operated upon by the latter through the Eastern Bank Ltd. If that were the true meaning, then that certainly does number make the Eastern Bank Ltd., the agent of the buyers. The words available by delivery to us occurring in the letter of the Eastern Bank Ltd., Madras, do number appear to us to indicate that this was any part of the terms of the letter of credit. This was an intimation in accordance with the advice received by the Eastern Bank Ltd., Madras, from the Eastern Bank Ltd.,, London, that the assessee companypany might avail itself of the letter of credit by delivery of the documents to the Eastern Bank Ltd., Madras. This is made further clear by the latter part of the letter where the Eastern Bank Ltd., Madras, expressed their willingness at their option to negotiate the drafts drawn in terms of the arrangement provided that the documents were in order, The companycluding sentence of that letter whereby the Eastern Bank Ltd., Madras, disown any responsibility in respect of the advice clearly militates against the suggestion of the learned Solicitor-General. It is, in these circumstances, impossible to accede to the argument that the payment of 80 per cent. or 90 per cent., as the case may be, of the amount of the provisional invoice by the Eastern Bank Ltd., Madras, was a payment on account of the price. Normally, price is paid by or on behalf of the buyer. In this case the fact found is that the Eastern Bank Ltd., Madras, and the Eastern Bank Ltd., London., were agents of the assessee companypany. Neither of them had any relation with the buyers. Therefore, a payment by them cannot be regarded as a payment of the price. The true position is very clearly put by Lord Sumner in The Prinz Adalbert 1 When a shipper takes his draft, number as yet accepted, but accompanied by a bill of lading, indorsed in this way, and discounts it with a banker, he makes himself liable on the instrument as drawer, and he further makes the goods, which the bill of lading L.R. 1917 A.C. 586, 589. represents, security for its payment. If, in turn, the discounting banker surrenders the bill of lading to the acceptor against his acceptance, the inference is that he is satisfied to part with his security in companysideration of getting this further partys liability on the bill, and that in so doing he acts with the permission and by the mandate of the shipper and drawer. This payment by the Eastern Bank Ltd., Madras, therefore, is numberhing but an advance made by them to their own customer on the security of the goods companyered by the bill of lading reinforced by the benefit of the liability taken up by the assessee companypany as drawer of the bill which in its turn is backed by the companyfirmed and irrevocable credit of the buyers London Bank. If this payment was on account of the price, why should the assessee companypany, as the seller, undertake any liability to the Eastern Bank Ltd., as the drawer of the bill of exchange ? The truth of the matter is that the price was paid on behalf of the buyers by their respective London Banks in London to the Eastern Bank Ltd., London which was the agent of the assessee companypany. The first receipt of the price, therefore, as pointed out by the High Court, was by the Eastern Bank Ltd., London, on behalf of the sellers. There is numberdispute that the balance of the price ascertained after weighment and assay and deducting the amount paid on the bill of exchange was similarly received in London by the Eastern Bank Ltd., London, on behalf of the assessee companypany. The subsequent adjustment made in the books of the Eastern Bank Ltd., London, did number operate as a receipt of profits in British India. In our opinion the High Court companyrectly answered the second question also in favour of the assessee companypany.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 202 of 1952. Appeal from the Judgment and Decree dated the 5th day of March, 1951 of the High Court of Judicature at Calcutta in Appeal from Original Decree No. 87 of 1949 arising out of the decree dated the 20th day of January, 1949 in Suit No. 94 of 1946 of the Court of 3rd Additional District Judge at 24 Parganas. C. Setalvad, Attorney-General for India, Sukumar Ghose, with him , for the appellant. Bankam Chandra Bannerjee and R. R. Biswas, for respondent No. 1. 1954. December 2. The Judgment of the Court was delivered by VENKATARAMA AYYAP. J.-This appeal arises out of an application filed by the first respondent for probate of a will dated 28-11-1943 executed by one Bhabesh Charan Das Gupta. The testator died on 27-10-1944 leaving him surviving two sons, Paresh Charan Das the first respondent , Naresh Charan Das 1037 the appellant , and a daughter, Indira the second respondent. The estate companysisted of a sixth share in some ancestral lands at Matta in the District of Dacca, and a house No. 50, South End Park, Calcutta, built by the testator on a site purchased by him. By his will he directed that a legacy of Rs. 10 per mensem should be paid to his younger son, the appellant, for the period of his life that his daughter should be entitled to a life estate in five specified rooms in the house to be enjoyed either personally by her and the members of the family, or by leasing them to others that a legacy of Rs. 10 per mensem should be paid to one or the other of two hospitals named, and that subject to the legacies aforesaid, the first respondent should take the estate, perform the sraddha, and pay one-sixth of the expenses for the worship of the deity installed in the ancestral house. The first respondent who was the sole executor under the will, applied in due companyrse for probate thereof. The appellant entered caveat, and thereupon, the application was registered as a suit. He then filed a written statement, and on that, the following issues were framed Was the Will in question lawfully and validly executed and attested? Had the testator testamentary capacity at the time of the execution of the Will? Was the Will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta? The Additional District Judge of the 24-Parganas who tried the suit held in favour of the first respondent on issues 1 and 2, but against him on issue 3, and in the result, probate was refused. The first respondent took the matter in appeal to the High Court, and that was heard by G. N. Das and S. C. Lahiri, JJ. Before them, the appellant did number companytest the companyrectness of the finding of the Additional District Judge that the testator had testamentary capacity when he executed the will. The two companytentions that were pressed by him were 1 that the will in question was executed by the testator 1038 under undue influence of the first respondent, and 2 that it was number validly attested, and was therefore invalid. On both the questions, the learned Judges held in favour of the first respondent, and accordingly allowed the appeal, and directed the grant of probate. Against this judgment, the caveator prefers this appeal, and companytends that the findings of the Court below on both the points are erroneous. The main question that arises for our decision is whether the will in question was executed under the undue influence of the first respondent. When once it has been proved, observed Lord Cranworth in Boyse v. Rossborough 1 that a will has been executed with due solemnities by a person of companypetent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. Vide also Craig v. Lamoureux 2 . In the present case, it is number in dispute that the testator executed the will in question, and that he had the requisite mental capacity at that time. The burden, therefore, is on the appellant to establish that the will was the result of undue influence brought to bear on him by the first respondent. The facts so far as they are material for this issue, may number be stated, The testator was a police officer and retired in 1927 as Deputy Superintendent of Police. Paresh Charan, the elder son, was married in 1925, and lived all along with his parents with his wife and children. Nirmala, the wife of the testator, died in 1929, and thereafter it was the wife of Paresh Charan that was maintaining the home. Naresh Charan studied up to I.A., but in 1920 discontinued his studies and got into employment in the workshop of Tata Co., at Jamshedpur on a petty salary and the evidence is that thereafter he was practically living apart from the family. In 1928 he married one Shantimayi, who was a widow having some children by her first husband. She belonged to the Kayastha caste, whereas Naresh Charan belonged to the Baid caste. The testator was strongly opposed to this 1 1857 6 H.L.O. 2 10 E R 1192. 2 1920 A.C. 349. 1039 intercaste marriage, and did his best to stop it but without success. The companyrespondence that followed between the appellant and his father during this period clearly shows that the father felt very sore over this alliance, and wrote that it companyld number pain him even if his son died. With this background, we may turn to the will. The relevant recitals therein are as follows My younger son Sri Naresh Charan Das Gupta is behaving badly with me and without ray knowledge and companysent be has married a girl of a different caste and she has given birth to two female children and one male child. In these circumstances my said son Sri Naresh Charan Das Gupta and his son Sreeman Arun Gupta and the two daughters or any other son or daughter who may be born to him, will number be entitled to perform my sradh or to offer me Pindas. For all these reasons I deprive my second son Sri Naresh Charan and his son Sreeman Arun Gupta and his two daughters and any other sons or daughters who may be born to him as well as Nareshs wife Sreemati Santi of inheritance from me and from all my movable and immovable properties, ancestral as well as self-acquired. They shall number get any share or interest or possession in any of my aforesaid properties. It is number disputed that these recitals accord with what the testator had expressed in the companyrespondence at the time of the marriage and for some years thereafter. But it is argued that since then, more than a decade had passed before the will was executed, and that during this period the natural affection of the testator for his son had re- asserted itself, that he had forgiven and forgotten the past, and that when the will was actually executed, the recitals above extracted did number companyrectly reflect the then mind of the testator. We have been taken through the entire companyrespondence that passed between the testator and the appellant and the members of his family. It shows that the testator was solicitous about the welfare of the appellant, and was enquiring about his health and 1040 sending him on occasions medicines that he was affectionately disposed towards his children and was sending them presents of cloth that latterly he had so far modified his attitude towards the wife of the appellant as to invite her and her children to Calcutta that he himself stayed with them for some time at Jamshedpur and was giving advice to the appellant on matters companynected with his employment. It was argued that there was thus a gradual change of heart on the part of the father towards the appellant and the members of his family, that. the recitals in the will companyld number be reconciled with this change of attitude, and that they must have been inspired by the first respondent. We are unable to agree. It is one thing for a father who feels that he has been wronged by a disobedient son to wish him well in life, and quite another thing to give him any of his properties. In the whole of the companyrespondence which has been read to us, there is numberhing to suggest that he wanted the appellant to share in the estate. On the other hand, there are indications that even when the appellant was in financial difficulties, the testator companysidered that he was under numbersort of obligation to companye to his help. Vide Exs. 5 c and C 1 . It may be mentioned that after making the will on 28-11-1943 the testator companytinued to companyrespond with the appellant and the members of his family precisely in the same terms as before. Vide Exs. B 2 , C 4 and A 10 . That shows that the two currents of natural affection and settlement of properties flowed in distinct channels,, and that the change in the companyrse of the one had numbereffect on the direction of the other. The testator, it is clear from the companyrespondence, was a man of strong will, determined and unshakable in his resolutions. He wrote of himself in Ex. C 34 that I am one-third companyservative, one-third liberal and one-third autocratic. He was very solicitous about the family prestige and reputation, and felt deeply hurt when his son entered into a marriage which was viewed by his companymunity with disfavour. In Ex. 6 c he wrote, You broke our hearts for a woman who has numberright to be in my house, And 1041 as late as 25-12-1941 he wrote to the appellant that if his wife and children came to live with him they must prepare themselves to meet uncalled for taunts and unpleasant enquiries which may be made by our near and distant village relations in our society who will companye to see us. Vide Exhibit C 37 . There cannot, therefore, be any doubt that the testator was all along smarting under a sense of social humiliation by reason of the inter-caste -marriage, and that the recitals in the will were manifestations of a sore in his heart which had remained unhealed to the last. It was also argued that the dispositions in the will were unnatural in that the appellant had been practically disinherited and his children altogether ignored. This by itself cannot lead to any inference of undue influence on the part of the first respondent. Having regard to the character of the testator and his feelings in the matter it is number a matter for surprise that he should have cut off the appellant with a small legacy. It must also be mentioned that the net value of the assets as given in the probate petition is Rs. 23,865-10-9, and if the other legacies and charges are deducted, what was bequeathed to the first respondent cannot be said to be very companysiderable. It also appears that at that time his salary was Rs. 60 per mensem and that he had a number of children, whereas the appellant is stated to have had a basic salary of Rs. 250 per mensem then. The first respondent, his wife and children have all along been dependents of the testat or, whereas the appellant had lived apart from him from 1920. And it is number unnatural for the testator so to order the distribution of his estate as to secure the companytinuance of the existing state of affairs. The terms of the will, therefore, cannot be relied on as intrinsic evidence of undue influence, as companytended for by the appellant. Then there is the evidence of Indira, the daughter of the testator, which was taken on companymission. She deposed that the testator bad told her that there were troubles in the house, that the elder son had objection to stay with the younger one, because if they live together, there will be social trouble regard- 1042 ing his daughters marriage, and that he therefore wanted to make a will. She went on to add. that the father subsequently wanted to alter the will and sent for her repeatedly for discussions, but that she generally excused herself, because she did number like to intervene in the matter, and that on those occasions, he told her, At present this will stand, but I want to modify it in future. Indira also deposed that the first respondent and his wife used to tell the testator that there was numberchange in the companyduct of the appellant, that he was extravagant in his habits and incurred debts, and that he had taken away some articles. We do number companysider that it is safe to act on this evidence. It is clear from Exhibit I that Indira and her husband had taken sides with the appellant as against the first respondent, and wrote to him that in spite of the will the appellant should have his share as early as possible in order to avoid further companyplication, though it may be numbered that they insisted on their rights under the will. Stripped of all its embellishments, the evidence of Indira, if true, companyes only to this that the first respondent told his father that he companyld number live under the same roof with his brother, and that in view of that attitude, the testator gave numbershare to the appellant in the house. We are unable to see any undue influence in this. The first respondent was entitled to put forward his views in the matter, and so long as the ultimate decision lay with the testator and his mental capacity was unimpaired, there can be numberquestion of undue influence. It is elementary law that it is number every influence which is brought to bear on a testator that can be characterised as undue. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is numberelement of fraud or companyrcion-it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories-the will cannot be attacked on the ground of 1043 undue influence. The law was thus stated by Lord Penzance in Hall v. Hall 1 But all influences are number unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like,-these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without companyvincing the judgment, is a species of restraint under which numbervalid will can be made. Importunity or threats, such as the testator has the companyrage to resist, moral companymand asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort,-these, if carried to a degree in which the free play of the testators judgment, discretion, or wishes is overborne, will companystitute undue influence, though numberforce is either used or threatened. In a word, a testator may be led, but number driven and his will must be the offspring of his own volition, and number the record of some one elses. Section 61 of the Indian Succession Act Act XXXIX of 1925 enacts that, A will or any part of a will, the making of which has been caused by fraud or companyrcion, or by such importunity as takes away the free agency of the testator, is void. Illustration vii to the section is very instructive. and is as follows A, being in such a state of health as to be capable of exercising his own judgment and volition B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in companysequence of the intercession and persuasion but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is number rendered invalid by the intercession and persuasion of B. 1 1868 L.R. 1 P. D. 481 482. 1044 Even if we accept the evidence of Indira, the case would, on the facts, fall within this Illustration, It is number disputed that the testator was in full possession of his mental faculties. There is numberproof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition. On the other hand, it is proved that. the first respondent had numberact or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P. Ws. I and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence of P.W. 1. The document was presented for registration by the testator, and be kept it with himself, and it was taken Out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, be was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is number the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its companyclusion that the will is number open to question on the ground of undue influence. It was also argued for the appellant that there was numberproof that the will was duly attested as required by section 63 of the Indian Succession Act, and that it should therefore be held to be void. P.Ws. I and 2 are the two attestors, and they stated in examination-in-chief that the testator signed the will in their presence, and that they attested his signature. They did number add that they signed the will in the presence of the testator. Now, the companytention is that in the absence of such evidence it must be held that there was numberdue attestation. Both the Courts below have 1045 held against the appellant on this companytention. The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were number cross-examined on the question of attestation, it companyld properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did number state in examination-in- chief that they signed the will in the presence of the testator, there was numberdue attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a companysideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judge that the fact of due execution and attestation of the will was number challenged on behalf of the caveator at the time of the hearing of the suit. This companytention of the appellant must also be rejected.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 67 of 1951. Appeal by special leave from the Judgment and Order, dated 26th June, 1950, of the High Court of Judicature at Bombay Dixit and Chainani JJ. in Criminal Appeal No. 784 of 1949. C. Chatterjee H. J. Umrigar and S. P. Varma, with him for the appellant. C. Setalvad, Attorney-General for India Porus A. Mehta, with him for the respondent. 1954. March 11. The Judgment of the Court was delivered by GULAM HASAN J.-This appeal is brought by special leave from the judgment and order of the High Court of Judicature at Bombay Dixit and Chainani JJ. , dated June 26, 1950, whereby the High Court allowed the appeal of the State of Bombay, setting aside the order of acquittal of the appellant passed by the Sessions Judge of Kaira, dated May 7, 1949, and restoring the order of companyviction and sentence of the appellant passed by the Sub-Divisional Magistrate, Nadiad Prant, dated December 31, 1948. The appellant, Suleman Issa, who is an inhabitant of Natal in South Africa left Durban in August, 1947, by car for India to pay a visit to his native place Sarsa in District Kaira where his sister was living with her husband Alimahmad Issak. He was accompanied by, Daud Hassam another brother-in-law and both travelled to Mombasa by car. From Mombasa they took a boat on August 30, and reached Colombo on September 1 1. They flew from Colombo to Madras on September 14, but shipped the car by a steamer. They stayed in Madras until the steamer arrived on September The car was delivered to the appellant on October 1, after he had paid Rs. 2,700 as custom duty and a cash deposit of Rs. 10,000 by way of security as the appellant intended to take the car back to Durban on his return. The party motored to Nardana on October 7, passing through Bangalore, Poona, Nasik and Dhulia. From there they travelled by train and reached Sarsa on October 8. The car was booked in an open truck from Nardana to Anand where it was taken delivery of and then driven to Sarsa. One Ratansing Kalusing Raol, Senior Police Inspector of Nadiad town, having numbericed the car bearing numberIndian number passing in the town instructed policemen to keep a watch. The appellants ordered to appear before the Sub-Inspector on October 12. On being questioned he stated that his family was the original inhabitant of Jamnagar State but for the last 60 years they were doing the business of companytractors for purchasing and selling land in Durban. His brother Daud Issa was, however, serving in Bombay. He gave details of the journey performed by him and his companypanion and produced passports, as also the receipts for paying custom duty and the deposit. On October 15, Head Constable Ajit Singh, informed Raol that some unknown person had companye to the shop of Umarbhai jeweller with a large quantity of gold. Accordingly the police visited the shop of the jeweller and his brother also a jeweller and came to know that gold had been given to him by the appellant to be melted. This gold along with some other gold kept at another place was seized by the police. The police also took possession of the car. The entire quantity of gold seized was 27731 tolas the value of which is roughly estimated at Rs. 3 lakhs. Proceedings under action 20 of the Indian Telegraph Act were instituted against the appellant and others on the assumption that the wireless set in the car was a transmitter but they were dropped when it was found otherwise. The car was thoroughly examined but numberhing incriminating was found. The appellant was also detained under the Public Securities Act but was released. Ultimately on January 2, 1948, he along with others was prosecuted on the companyplaint of Raol for an offence under section 61 E of the Bombay District Police Act IV of 1890 read with section 109 of the Indian Penal Code. Section 61E says- Whoever has in his possession or companyveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Magistrate, be punished with imprisonment for a term which may extend to three months or with fine which may extend to one hundred rupees. He was companyvicted by the Magistrate and sentenced to a fine of Rs. 100 and the gold was directed to be companyfiscated under section 517 of the Code of Criminal Procedure. The other accused who were charged with abetment were acquitted,. The Magistrate took the view that there wag numberdirect evidence to show that the accused had companymitted theft or had obtained property fraudulently but there were in his opinion circumstances which led to the reasonable belief that the gold in question was either stolen or was fraudulently obtained. The Sessions Judge held that although the possession of the gold was highly suspicious, nevertheless it did number companystitute sufficient ground for a reasonable belief that the property was either stolen or was fraudulently obtained. He accordingly set aside the companyviction and sentence and ordered the gold to be restored to the appellant. The High Court in appeal by the State did number accept the prosecution story that the gold was brought into India by the appellant in his motor-car, but held agreeing with the Magistrate that from the circumstances there was reason to believe that he was in possession of gold which was either stolen property or property fraudulently obtained. The High Court did number accept the explanation of the appellant that his father had brought the gold to Sarsa from time to time when he visited his native place. As regards the order of companyfiscation under section 517, the High Court held that it was number necessary that the property companyfiscated must be the property in relation to which an offence appears to have been companymitted but it was enough if ,the property is produced before the companyrt. In this view the acquittal was set aside and the order of the Magistrate was restored. Mr. Chatterjee on behalf of the appellant stated at the outset that he was number prepared to companycede that the appellants companyviction was right but he proceeded on the assumption that even if it was so, section 517 had numberapplication to the case and the companyrt had numberjurisdiction to pass the order of companyfiscation of the gold. He also urged that in any, view of the matter the order of companyfiscation was number a proper order in the circumstances of this case. Section 517 1 reads thus- When an inquiry or a trial in any criminal companyrt is companycluded, the companyrt may make such order as it thinks fit for the disposal by destruction, companyfiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any offence appears to. have been companymitted, or which has been used for the companymission of any offence. The section on a plain reading shows that upon the companyclusion of an inquiry or trial the companyrt is empowered to make an order for disposal of any property or document produced before it or in-its custody, or regarding which any offence appears to have been companymitted, or which has been used for the companymission of an offence. The section also shows that the power of the companyrt extends to destruction, companyfiscation or delivery to any person claiming to be entitled to possession of such property. Mr. Chatterjee companytended that the gold after it was seized by the Police was sent to the Treasury and was never produced before the companyrt. We do number think that the evidence on this point is clear and definite. This point does number appear to have been raised before the companyrts below. The High Court justified the order on the ground that the property was produced before the companyrt and held that it was number necessary to find before passing the order that any offence appears to have been companymitted in respect of it. It is clear to us that the property was number one regarding which any offence appears to have been companymitted, or which has been used for the companymission of any offence. Now the power of the companyrt numberdoubt extends to companyfiscation of property in the custody of the companyrt but it is number every case in which the companyrt must necessarily pass an order of companyfiscation irrespective of the circumstances of the case. It is possible to companyceive of cases where the subject matter of the offence may be property which under the law relating to that offence is liable to be companyfiscated as a punishment on companyviction. Assuming therefore that the companyrt had jurisdiction to pass an order regarding the disposal of the gold, it seems to us that the order of companyfiscation was number an appropriate order in the circumstances of this case. Section 517 companytains a general provision for disposal of the property in the circumstances mentioned in the latter part of the section. Section 61E by itself does number empower the companyrt to impose the penalty of companyfiscation and the sentence of imprisonment and fine authorized by the section is a numberinal sentence for the obvious reason that the section proceeds upon the mere belief that the property in possession of the person is stolen property or property fraudulently obtained possession of which is number satisfactorily accounted for. It is an offence under the local Police Act and number under an Act which companytains any substantive provision such as the Sea Customs Act imposing the penalty of companyfiscation. Confiscation is number the only mode of disposal under section 517 and is singularly inappropriate in a case where the accused is prosecuted for an offence punishable with a maximum sentence of 3 months and a fine of Es. 100. It was certainly open to the companyrt to order the property to be delivered to the person claiming to be entitled to its possession. Here the gold was found from the possession of the appellant, and the companyrt was number called upon to companysider any rival claims about its possession. Admittedly ,there was numberevidence to prove that it was stolen, or that it was fraudulently obtained and all that was found was that there was reason to believe that it was stolen or fraudulently obtained and that the appellant failed to account for its possession to the satisfaction of the companyrt. The High Court thought that the gold was smuggled from Africa into India but assuming this to be so, its companyfiscation under section 517 upon the existence of a mere belief required to sustain a companyviction under section 61 E was palpably harsh and unreasonable.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 292 and 312 of 1950. Appeals from the Judgment and Order of the High Court of Judicature at Hyderabad Ansari, Qamar Hasan and Manohar Pershad JJ. in Cases Nos. 180-181 of 1954 F. Ved Vyas, S. K. Kapur and Ganpat Rai, with him for the appellant. C. Setalvad, Attorney-General for India Porus Mehta, with him for the respondent. 1954. April 1. The Judgment of the Court was delivered by BHAGWATI J.-These are two appeals from the judgment and decision of the High Court of Judicature at Hyderabad answering certain questions referred at the instance of the appellants by the Commissioner of Excess Profits Tax, Hyderabad, and adjudging the liability of the appellants for excess profits tax in regard to the amounts recieved by them as remuneration from the Dewan Bahadur Ramgopal Mills Com- pany Ltd. as its Agents. The Mills Company was registered on the 14th February, 1920, at Hyderabad in the then territories of His Exalted Highness the Nizam. The appellants were registered as a private limited companypany at Bombay on agreement was entered into between the Mills Company. and the appellants appointing the appellants its Agents for a period of 30 years on certain terms and companyditions therein recorded. The appellants throughout worked only as the Agents of the Mills Company and for the Fasli years 1351 and 1352 they received their remuneration under the terms of the Agency agreement. A numberice was issued under section 13 of the Hyderabad Excess Profits Tax Regulation by the Excess Profits Tax Officer calling upon the appellants to pay the, amount of tax appertaining to these chargeable account- , ing periods. The appellants submitted their accounts and companytended that the remuneration received by them from the Mills Company was number taxable on the ground that it is was number income, profits or gains from business and was outside the pale of the Excess Profits Tax Regulation. This companytention of the appellants was negatived and on the 24th April, 1944, the Excess Profits Tax Officer made an order assessing the income of the appellants for the accounting periods 1351 and 1352 Fasli at Rs. 8,957 and Rs. 83,768 respectively and assessed the tax accordingly. An appeal was taken by the appellants to the Deputy Commissioner of Excess Profits Tax who disallowed the same. An application made by the appellants under section 48 2 for statement of the case to the High Court was rejected by the Commissioner and the appellants filed a petition to the High Court under section 48 3 to companypel the Commissioner to state the case to the High Court. An order was made by the High,Court on this petition directing the Commissioner to state the case and the statement of the case was submitted by the Commis- sioner on the 26th February, 1946. Four questions were referred by the Commissioner to the High Courts as under- Whether the Petitioner Company is a partnership firm or a registered firm ? Whether under the terms of the agreement the petitioner is an employee of the Mills Company or is carrying on business ? Whether the remuneration received from the MILLs is on account of service or is the remuneration for business ? Whether the principle of personal qualification referred to in section 2, clause 4 , of the Excess Profits Regulation is applicable to the Petitioner Company ? These questions were of companysiderable importance and were referred for decision to the Full Bench of the High Court. The Full Bench of the High Court delivered their judgment the majority deciding the questions 2 and 3 which were the only questions companysidered determinative of the reference against the appellants. The appellants appealed to the Judicial Committee. But before the Judicial Committee heard the appeals there was a merger of the territories of Hyderabad with India. The appeals finally came for hearing before the Supreme Court Bench at Hyderabad on the 12th December, 1950, when an order was passed transferring the appeals to this Court at Delhi. These appeals have number companye for hearing and final disposal before us. The questions 1 and 4 which were referred by the Commissioner to the High Court at Hyderabad have number been seriously pressed before us. Whether the appellants are a partnership firm or a registered companypany the principle of exclusion of the income from the category of business income by reason of its depending wholly or mainly on the personal qualifications of the assessee would number apply because the income companyld number be said to be income from profession and neither a partnership firm number a registered companypany as such companyld be said to be possessed of any personal qualifications in the matter of the acquisition of that income. The principal questions which were therefore argued before the High Court at Hyderabad and before us were the questions 2 and 3 which involved the determination of the position of the appellants whether they were servants or agents of the Mills Company and the determination of the character of their remuneration whether it was wages or salary or income, profits or gains from business. The appellants were registered as a private limited companypany having their registered office in Bombay and the objects for which they were incorporated were the following To act as agents for Governments or Authorities or for any bankers, manufacturers, merchants, shippers, Joint Stock Companies and others and carry on all kinds of agency business. To carry on in India and elsewhere the trade or business of merchants, importers exporters in all, their branches etc. etc Under Article 115 of the Articles of Association of the Mills Company the appellants and their assigns were appointed the agents of the Company upon the terms, -provisions and companyditions set out in the Agreement referred to in clause 6 of the Companys Memorandum of Association. Article 116 provided that the general management of the business of the Company subject to the companytrol and supervision of the Directors, was to be in the hands of the Agents of the Company, who were to have the power and authority on behalf of the Company, subject to such companytrol and supervision, to enter into all companytracts and to do all other things usual, necessary and desirable in the management of the, affairs of the Company or in carrying out its objects and were to have power to appoint and employ in, or. for the purposes of the transaction and managment of the affairs and business of the Company, or otherwise for the purposes thereof, and from time to time to remove or suspend such managers, agents, clerks and other employees as they thought proper with such powers and duties and upon such terms as to duration of employment, remuneration or otherwise as they thought fit and were also to have powers to exercise all rights and liberties reserved and granted to them by the said agreement referred to in clause 6 of the Companys Memorandum of Association including the rights and liberties companytained in clause 4 of the agreement. Article 1 18 authorised the agents to sub-delegate all or any of the powers, authorities and discretions for the time being vested in them, and in particular from time to time to provide by the appointment of an attorney or attorneys, for the management and transaction of the affairs of the Company in any specified locality, in such manner as they thought fit. The Agency agreement which was executed in pursuance of the appointment under Article 115, provided that the appellants and their assigns were to be the Agents of the Company for a period of 30 years from the date of registration of the Company and they were to companytinue to act as such agents until they of their own will resigned. The remuneration of the appellants as such Agents was to be a companymission of per cent on the amount of sale proceeds of all yarn cloth and other produce of the Company including companyton grown which companymission was to be exclusive of any remuneration or wages payable to the bankers, Solicitors engineers, etc., who may be employed by the appellants for or on behalf of the Company or for carrying on and companyducting the business of the Company. The appellants were to be paid in addition all expenses and charges actually incurred by them in Connection with the. business of the Company and supervision and management thereof and the appelants were entitled to appoint any person or persons in Bombay to act as their Agents in Bombay and any other places in companynection with the business if the Company. Clauses 3 and 4 of the agency agreement are important and may be set out in extenso - Subject to the companytrol and supervision of the Directors, the said Lachminaravan Ramgopal and Son Limited shall have the general companyduct and management of the business and affairs of the companypany and shall have on behalf of the companypany to acquire -by purchase lease or otherwise lands tenements and other Buildings and to erect maintain alter and extend factores ware-houses, engine house and other buildings in Hyderabad and elsewhere in the territories of His Exalted Highness the Nizam and in India -and to purchase, pay for, sell, resell, and repurchase machinery, engines, plant, raw companyton, waste, jute, wool and other fibres and produce, stores and other materials and to manufacture yarn cloth and other fabrics and to sell the same either in the said territories as well as elsewhere in India and either on credit or for cash, or for present or future delivery, and to execute become parties to and where necessary to cause to be registered all deeds, agreements, companytracts, receipts and other documents and to insure the property of the Company for such purposes and to such extent and in such manner as they may think proper and to institute, companyduct, defend, companypromise, refer to arbitration and abandon legal and other proceedings, claims and disputes in which the Company is companycerned and to appoint and employ discharge, re-employ or replace engineers. managers, retain companymission dealers, muccadums, brokers, clerks, mechanics, workmen and other officers and servants with such powers and duties and upon such terms as to duration of office remuneration or otherwise as they may think fit and to draw, accept endorse, negotiate and sell Bills of Exchange and Hundies with or without security and to receive and give receipts for all moneys payable to or to be received by the companypany and to draw cheques against the moneys of the companypany and generally to make all such arrangements and do all such acts and things on behalf of the Company, its successors and assignsas may be necessary or expedient and as are number specifically reserved to be done by the Directors. The said Lachminarayan Ramgopal Son Ltd., shall be at liberty to deal with the Company by way of sale to the Company of companyton all raw materials and articles required for the purpose of the Company and the purchase from the Company of yarn cloth and all other articles manufactured by the Company and otherwise, and to deal with any firm in which any of the shareholders of the said Lachminarayan Ramgopal Son Ltd., may be directly or indirectly companycerned provided always such dealings are sanctioned passed or ratified by the Board of Directors either before or after such dealings. Clause 8 provided that two of the members for the time being of the appellants were at the option of the appellants to be the ex-officio Directors of the Company and clause 9 empowered the appellants to assign the agreement and the rights of the appellants thereunder subject to the approval and sanction of the Board to any person, firm or Company having authority by its companystitution to become bound by the obligations undertaken by the appeallants. No materials other than these were placed by the appellants either before the Income-tax Authorities or the High Court and the questions that arise before us have to be determined only on these materials. If on the companystruction of these documents we arrive at the companyclusion that the position of the appellants was number that of servants but the agents of the Company the further question would have to be determined whether the activities of the appellants amounted to the carrying on of business. If they were number the servants of the Company, the remuneration which they received would certainly number be wages or salary but if they were agents of the Company the question would still survive whether their activities amounted to the carrying on of business in which case only the remuneration which they received from the Company would be income, profits or gains from business. The distinction between a servant and an agent is thus indicated in Powells Law of Agency, at page 16 -- Generally a master can tell his servant what to do and how to do it. Generally a principal cannot tell his agent how to carryout his instructions. A servant is under more companyplete companytrol than an agent, and also at page 20- Generally, a servant is a person who number only receives instructions from his master but is subject to his masters right to companytrol the manner in which -he carries out those infructions. An agent receives his principals instructions but is generally free to carry out those instructions according to his own discretion Generally, a servant, qua servant, has numberauthority to make -contracts on behalf of his master Generally, the purpose of employing an agent is to authorise him to make companytracts on behalf of his principal. Generally, an agent is paid by companymission upon effecting the result which he has been instructed by his principal to achieve. Generally, a servant is paid by wages or salary. The statement of the law companytained in Halsburys Laws of England-Hailsham Edition-Volume 22, page 113, paragraph 192 may be referred to in this companynection - The difference between the relations of master and servant and of principal and agent may be said to be this a principal has the right to direct what work the agent has to do but a master has the further right to direct how the work is to be done. The position is further clarified in Halsburys Laws of England-Hailsham Edition-,Volume 1, at page. 193, article 345 where the positions of an agent, a a servant and independent companytractor are thus distinguished - An agent is to be distinguished on the, one hand from a servant, and on the other from an independent companytractor. A servant acts under the direct companytrol and supervision of his master, and is bound to companyform to all reasonable orders given him in the companyrse of his work an independent companytractor, on the other hand, is entirely independent of any companytrol or interference, and merely undertakes to produce a specified resulted employing his own means to produce that result. An ament, though bound to exercise his authority in accordance with all lawful instructiOns which may be given to him from time to time by his principal, is number subject in its exercise to the direct companytrol or supervision of the principal. An -agent, as such is number a servant, but a servant is generally for some purposes his masters implied agent, the extent of the agency depending upon the duties or position of the servant Considering the position of the appellants in the light of the above principles it is numberdoubt true that the appellants were to act as the agents of the Company and carry on the general management of the business of the Company subject to the companytrol and supervision of the Directors. That does number however mean that they acted under the direct companytrol and supervision of the Directors in regard to the manner or method of their work. The Directors were entitled to lay down the general policy and also to give such directions in regard to the management as may be companysidered necessary. But the day to day management of the business of the Company as detailed in Article I 1 6 of the Articles of Association and clause 3 of the Agency Agreement above set out was within the discretion of the appellants and apart from directing what work the appellants had to do as the agents of the Company the Directors had number companyferred upon them the further right to direct how that work of the general management was to be done. The companytrol and supervision of the directors was a general companytrol and supervision and within the limits of their authority the appellants as the agents of the Company had perfect discretion as to how that work of general management was to be done both in regard to the method and the manner of such work. The appellants for instance had perfect latitude to enter into agreements and companytracts for such purpose and to such extent and in such manner as they thought proper. They had the power to appoint, employ, discharge, reemploy or replace the officers and servants of the Company with such powers and duties and upon such terms as to duration of office remuneration or otherwise as they thought fit. They had also the power generally to make all such arrangements and to do all such things and acts on behalf of the Company, as might be necessary or expedient and as were number specifically reserved to be done by the Directors. These powers did number spell a direct companytrol and supervision of the Directors as of a master over his servant but companystituted the appellants the agents of the Company who were to exercise their authority subject to the companytrol and supervision of the Directors but were number subject in such exercise to the direct companytrol or supervision of the principals. The liberty given to the appellants under clause 4 of the Agency Agreement to deal with the Company by way of sale and purchase of companymodities therein mentioned also did number spell a relation as between master and servant but empowered the appellants to deal with the Company as Principals in spite of the fact that under clause 8 of the Agreement two of their members for the time being were to be the ex-officio Directors of the Company. The power to assign the Agreement and the rights of the appellants thereunder reserved to them under clause 9 of the Agency Agreement though subject to the approval and sanction of the Board was hardly a power which companyld be vested in a servant. There was further the right to companytinue in employment. as the agents, of the Company for a period of 30 years from the date of the registration thereof and thereafter until the appellants of their own will resigned, which also would be hardly companysistent with the employment of the appellants as mere servants of the Company. The remuneration by way of companymission of 2-1/2 per cent. of the amount of sale proceeds of the produce of the Company savoured more of the remuneration given by a principal to his agent in the carrying out of the general management of the business of the principal than of wages or salary which would number numbermally. be on such a basis. All these circumstances together with the power of sub- delegation reserved under Article 118 in our opinion go to establish that the appellants were the agents of the Company and number merely the servants of the Company remunerated by wages or salary. Even though the position of the appellants qua the Company was that of agents and number servants as stated above it remains to be determined whether the work which they did under the Agency Agreement amounted to carrying on business so as to companystitute the remuneration which they received thereunder income, profits or gains from business. The companytention which was urged before us that the appellants only worked as the agents of the Mills Company and numberothers and therefore what they did did number companystitute a business does number avail the appellants. The activities in order to companystitute a business need number necessarily be companycerned with several. individuals or companycerns. They would companystitute business in spite of their being restricted to only one individual or companycern. What is relevant to companysider is what is the nature and scope of these activities though either by chance or design these might be restricted to only one individual or companycern. It is the nature and scope of these activities and number the extent of the operations which are relevant for this purpose. The activities of the appellants certainly did number companye within the inclusive definition of business which is given in section 2 clause 4 of the Excess Profits Tax Regulation, Hyderabad. Business is there defined to include any trade, companymerce or manufacture or any adventure in the nature of a trade, companymerce or manufacture or any profession or vocation but number to include a profession carried on by an individual or by individuals in partnership if the profits of the profession depend wholly or mainly on his or their personal qualifications unless such profession companysists wholly or mainly in the making of companytracts on behalf of other persons or giving to other persons of advice of a companymercial nature in companynection with the making of companytracts. The work which the appellants did under the terms of the Agency Agreement companystituted neither trade, companymerce or manufacture or any adventure in the nature of trade, companymerce or manufacture number was it a profession or vocation. , The activities which companystitute carrying on business need number necessarily companysist of activities by way of trade, companymerce or manufacture or activities in the exercise of a profession or vocation. They may even companysist of rendering services to others which services may be of a variegated character. The companysiderations which apply in the case -of individuals in the matter of determining whether the activities companystitute a business within the meaning of the, inclusive definition thereof set out above may number apply in the case of incorporated companypanies. Even though the activities if carried on by individuals might companystitute business in that sense they might number companystitute such business when carried on by incorporated companypanies and resort must be had to the general position in law in order to determine whether the incorporated companypany was carrying on business ad as to companystitute the income earned by it income profits or gains from business. Reference may be made in this companytext to William Esplen, Son and Swainston, Limited v. Commissioners of Inland Revenue 1 . In that case a private limited companypany was incorporated for carrying on business as naval architects and companysulting engineers. Before the formation of the companypany, a partnership had existed for many year between three persons who, on incorporation, became the sole shareholders and directors of the companypany. The partnership had carried on the profession. of naval architects and companysulting engineers and the work done by the companypany was identical in character with that formerly done by the partnership which it succeeded. The work done by the companypany was identical in all respects with the work of a professional naval architect and companysulting engineer, and was performed by the said three shareholders and directors of the companypany personally. A question arose whether the companypany was carrying on a profession within the meaning of section 39 paragraph C of the Finance No. 2 Act, 1915. It was companytended that it carried on a profession of naval architects and companysulting engineers because the members companyposing it were three naval architects. That companytention was however negatived and it was held that even though what was to be looked at was the character of the work done by the companypany, it was number carrying on the profession of the naval architects within the meaning of the section, because for that purpose it was of the essence of a profession that the profits should be dependent mainly upon the personal qualifications of the person by whom it was carried on and that companyld only bean individual. A companypany such as that companyld only do a naval architects work by sending a naval architect to its customers to do what they wanted to be done and it was held that the companypany was number carrying on a profession but was carrying on a trade or business in the ordinary sense of the term. When a partnership firm companyes into existence it can be predicated of it that it carries on a business, because partnership according to section 4 of the Indian Partner.ship Act is the relation between persons who have 1 1919 2 K.B. 731. agreed to share the profits of a business -carried on by all or any of then acting for all. See Inderchand Hari Ram V. COMMissioner of Income-tax, U.P C.P. 1 . But when a companypany is incorporated it may number necessarily companye into existence for the purpose of carrying on a business. According to section 5 of the Indian Companies Act any seven or more persons or, where the companypany to be formed will be a private companypany, any two or more persons associated for any lawful purpose may by subscribing their names to a memorandum of association form an incorporated companypany, and the lawful purpose for which the persons become associated might number necessarily be the carrying on of business. When a companypany is incorporated for carrying out certain activities it would be relevant to enquire what are the objects for which it has been incorporated. As was observed by Lord Sterndale, M.R., in Commissioners of Inland Revenuev. The Korean Syndicate Limited 2 If you once get the individual and the companypany spending exactly on the same basis, then there would be numberdifference between them at all. But the fact that the limited companypany companyes into existence in a different way is a matter to be companysidered. An individual companyes into existence for many purposes, or per. haps sometimes for numbere, whereas a limited companypany companyes into existence for some particular purpose, and if it companyes into existence for the particular purpose of companycessions and turning them to account, then that is a matter to be companysidered when you companye to decide whether doing that is carrying on a business or number. Justice Rowlatt followed the above view of Lord Sterndale, M.R., in Commissioners of Inland Revenue v. Birmingham Theatre Royal Estate Co., Limited 1 , and held that when you are companysidering whether a certain form of enterprise is carrying on business or number, it is material to look and see whether it is a companypany that it doing it. The objects of an incorporated companypany as laid down in the Memorandum of Association are 1 1952 I.T.R. 108. 2 1921 12 Tax Cas. 181 at P. 202. 3 1923 I2 Tax Cas. 580 at P. 584. certainly number companyclusive of the question whether the activities of the companypany amount to carrying on of business. See Indian Law Reports 55 Calcutta 1059 and 1951 19 T.R. 571 . But they are relevant for the purpose of determining the nature and scope of such activities. The objects of the appellants in this case inter alia were to act as agents for Governments or Authorities or for any bankers, manufacturers, merchants, shippers, Joint Stock Companies and others and carry on all kinds of agency business. This object standing by itself would companyprise within its ambit the activities of the appellants as the agents of the Company and companystitute the work which they did by way of general management of the business of the companypany an agency business. The words carry on all kinds of agency business occurring at the end of the object as therein set out were capable of including within their general description the work which the appellants would do as agents for Governments or Authorities or for any bankers, manufacturers, merchants, shippers and-others when they acted as agents of the Company which were manufacturers inter - alia of companyton piece goods they would be carrying on agency business within the meaning of this object. Apart however from this there is the further fact that there was a companytinuity of operations which companystituted the activities of the appellants in the general management of the Company a business. The whole work of management which the appellants did for the Company within the powers companyferred upon them under Article 116 of the Articles of Association and clause 3 of the Agency Agreement companysisted of numerous and companytinuous operations and companyprised of various services which were rendered by the appellants as the agents of the Company. The appellants were also entitled though with the sanction or ratification by the Board of Directors either before or after the dealings to enter into dealings with the Company by way of sales and purchases of various companymodities. There was numberhing in the Agency Agreement to prevent the appellants from acting as the agents of other manufacturers, Joint Stock Companies etc., and the appel- lants companyld have as well acted as the agents of other companycerns besides the Company. All these factors taken, into companysideration alongwith the fixity of tenure, the nature of remuneration and the assignability of their rights, are sufficient to enable us to companye to the companyclusion that the activities of the appellants as the agents of the Company companystituted a business and the remuneration which the appellants received from the Company under the terms of the Agency Agreement was income, profits or gain from business.

Case appeal was rejected by the Supreme Court

Das, J. The question referred by the Income-tax Appellate Tribunal for the opinion of the Bombay High Court was as follows - Whether on the facts of the case, income, profits and gains in respect of sales made to Government of India was received in British India within the meaning of Section 4 1 of the Act ? The High Court answered the question in the negative for reasons set out in its judgment companyering this case as well as the case out of which Appeal No. 19 of 1953 came to be filed before us. The facts, found in this case, are similar to those found in Civil Appeal No. 19 of 1953 Commissioner of Income-tax, Bombay v. Messrs, Ogale Glass Works Ltd., except in the following particulars 1 that all cheques were made number-negotiable, 2 that numbercredit was given by the bank to the assessee before companylection, 3 that there was numberfinding that the assessee gave credit to the Government for the amount of the cheque immediately on receipt thereof. Learned companynsel on either side did number suggest that the differences numbered above would make any difference in the answer to the referred question which is the same as in the other appeal. That being the position, this case is governed by the judgment which has just been pronounced by us in the other appeal. We accordingly allow the appeal and answer the referred question in the affirmative.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 31 of 1954. Appeal by Special Leave from the Judgment and Decree dated the 9th September, 1952, of the High Court of Judicature at Bombay in Appeal No. 811 of 1951 from the Original Decree arising from the Judgment and Decree dated the 24th July, 1951, of the Bombay City Civil Court at Bombay in Suit No. 2310 of 1950. K. Daphtary, Solicitor-General for India J. B. Dadachanji and Rajinder Narain, with him for the appellant. C. Isaacs S. S. Shukla, with him for the respondent. 1954. May 28. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The suit out of which this appeal arises was instituted by the appellant on- a hundi for Re. 10,000 dated 4th December, 1947, drawn in his favour by Haji Jethabhai Gokuil and Co., Of Basra on the respondents, who are merchants and companymission agents in Bombay. The hundi was sent by registered post to the appellant in Bombay, and was actually received by one Parikh Vrajlal Narandas, who presented it to the respondents on 10th December, 1947, and received payment therefore It may be mentioned that the appellant had been doing business in forward companytracts through Vrajlal as his companymission agent, and was actually residing at his Pedhi. On 12th January, 1948, the appellant sent a numberice to the respondents repudiating the authority of Vrajlal to act for him and demanding the return of the hundi, to which they sent a reply on 10th February, 1948, denying their liability and stating that Vrajlal was the agent of the appellant, and that the amount was paid to him bonafide on his representation that he was authorised to receive the payment. On 9th December, 1950, the appellant instituted the present suit in the Court of the City Civil Judge, Bombay. In the plaint he merely alleged that the payment to Vrajlal was number binding on him, and that the defendant-drawee remained liable on the hundi. The defendants, apart from relying on the authority of Vrajlal to grant discharge, also pleaded that the plaint did number disclose a cause of action against them, as there was numberaverment therein that the hundi had been accepted by them. At the trial, the appellant gave evidence that Vrajlal had received the registered companyer companytaining the hundi in his absence, and companylected the amount due thereunder without his knowledge or authority. The learned City Civil Judge accepted this evidence, and held that Vrajlal had number been authorised to receive the amount of the hundi. He also hold that the plea of discharge put forward by the respondents implied that the hundi had been accepted by them. In the result, he decreed the suit. The defendants took up the matter in appeal to the High Court of Bombay, and that was heard by Chagla C.J. and Shah J. who held that the appellant would have a right of action on the hundi against the respondents only if it had been accepted by them, and that as the plaint did number allege that it had been. accepted by them, there was numbercause of action. against them. They accordingly allowed the appeal, and dismissed the suit. The plaintiff prefers this appeal on special leave granted under article 136 of the Constitution. There has been numberserious attempt before us to challenge the companyrectness of the legal position on which the judgment of the High Court is based, that the drawee of a negotiable instrument is number liable on it to the payee, unless he has accepted it. On the provisions of the Negotiable Instruments Act, numberother companyclusion impossible. Chapter III of that Act defines the obligations of parties to negotiable instruments. Section 32 provides that, In the absence of a companytract to the companytrary, the maker of a promissory numbere and the acceptor before maturity of a bill of exchange are bound to pay the amount thereof at maturity according to the apparent tenor of the numbere or acceptance respectively, and the acceptor of a bill of exchange at or after maturity is bound to pay the amount thereof to the holder on demand. Under this section, the liability of the drawee arises only when he accepts the bill. There is numberprovision in the Act that the drawee is as such liable on the instrument, the only exception being under section 31 in the case of a drawee of a cheque having sufficient funds of the customer in his bands and even then, the liability is only towards the drawer and number the payee. This is elementary law, and was laid down by West J. in Seth Khandas Narandas v. Dahibai 1 in the following terms Where there is numberacceptance, numbercause of action can have arisen to the payee against the drawee. Nor is there any substance in the companytention that section 61 of the Act provides for presentment for acceptance only when the bill is payable after sight, and number when it is payable on demand., as is the suit I.L.R, 3 Bo. 182 at P. 183. hundi. In a bill payable after sight, there are two distinct stages, firstly when it is presented for accept- ance, and later when it is presented for payment. Section 61 deals with the former, and section 64 with the latter. As observed in Ram Ravji Jambhekar v. Pralhaddas Subkarn 1 , presentment for acceptance must always and in every case precede presentment for payment. But when the bill is payable on demand, both the stages synchronise, and there is only one presentment, which is both for acceptance and for payment. When the bill is paid, it involves an acceptance but when it is number paid, it is really. dishonoured for number- acceptance. But whether the bill is payable after sight or at sight or on demand, acceptance by the drawee is necessary before he can be fixed with liability on it. It is acceptance that establishes privity on the instrument between the payee and the drawee, and we agree with the learned Judges of the High Court that unless there is such acceptance, numberaction on the bill is maintainable by the payee against the drawees. The main companytention on behalf of the appellant was that such acceptance must be implied when the respondents received the bill and made payment there for. The argument was that the very act of the payment of the hundi to Vrajlal was an acknowledgment that the defendants were liable on the hundi to whosoever might be the lawful holder thereof. The answer to this companytention is, firstly, that there was numbervalid presentment of the hundi for acceptance and secondly, that there was numberacceptance of the same as required by law. On the question of the presentment of the hundi for acceptance, the position stands thus The person who presented it to the defendants was Vrajlal and if he had numberauthority to act in the matter, it is difficult to see how he companyld be held to have acted on behalf of the plaintiff in presenting the hundi. There was only one single act, and that was the presentment of the hundi by Vrajlal and the receipt of the amount due thereunder. If he had numberauthority to receive the payment, he had numberauthority to present the bill for acceptance. It was argued that there was numberprovision I.L.R. 2o Bom. 133 at P- 141. in the Act requiring that bills payable at sight should be presented for acceptance by the holder or on his behalf, as there was, for bills -payable after sight, in section 61. But, as already pointed out, in the case of a bill payable at sight, both the stages for presentment for acceptance and for payment are rolled up into one, and, therefore, the person who is entitled to receive the payment under section 78 of the Act is the person, who is entitled to present it for acceptance. Under section 78, the payment must be to the holder of the instrument and if Vrajlal had numberauthority to receive the amount on behalf of the plaintiff, there was numbervalid presentment of the hundi by him for acceptance either. It has next to be companysidered whether, assuming that there was a proper presentment of the hundi for acceptance, there was a valid acceptance, thereof The argument of the appellant was that as the hundi had got into the hands of the defendants and was produced by them, the very fact of its possession would be sufficient to companystitute acceptance. Under the companymon law of England, even a verbal acceptance was valid. Vide the observations of Baron Parke in Bank of England v. Archer 1 . It was accordingly held that such acceptance companyld be implied when there was undue retention of the bill by the drawee. Vide Note to Harvey v. Martin 1 . But the law was altered in England by section 17 2 of the Bills of Exchange Act, 1882 which enacted that an acceptance was invalid, unless it was written on the bill and signed by the drawee. Section 7 of the Negotiable Instruments Act, following the English law, provides that the drawee becomes an acceptor, when he has signed his assent upon the bill. In view of these provisions, there cannot be, apart from any mercantile usage, an oral accept- ance of the hundi, much less an acceptance by companyduct, where at least numberquestion of estoppel arises. But then, it was argued that the possession of the hundi was number the only circumstance from which acceptance companyld be inferred that there was the plea 1 1843 I. M. W. 383 at PP. 389, 390 I52 E.R. 852, 855. 2 1808 1 CAMP- 425 I 70 E.R. 1009, of the defendants that they had discharged the hundi and that that clearly imported an acknowledgment of liability on the bill, and was sufficient to clothe the plaintiff with a right of action thereon. Assume that the plea of discharge of a hundi implies an acknowledgment of liability thereunder-an assumption which we find it difficult to accept. The question still remains whether that is sufficient in law to fasten a liability on the defendants on the hundi. What is requisite for fixing the drawees with liability under section 32 is the acceptance by them of the instrument and number an acknowledgment of liability. As the law prescribes numberparticular form for acceptance, there should be numberdifficulty in companystruing an acknowledgment as an acceptance but then, it must satisfy the requirements of section 7, and must appear on the bill and be signed by the drawees. In the present case, the acknowledgment is neither in writing number is it signed by the defendants. It is a matter of implication arising from the discharge of the instrument. That is number sufficient to fix a liability on the defendants under section 32. In companyclusion, we must hold that there was neither a valid presentment of the hundi for acceptance, number a valid acceptance thereof.

Case appeal was rejected by the Supreme Court

Bose, J. This judgment will govern Civil Appeals Nos. 146 and 147 of 1952 as well. We will first deal with the questions that are companymon to them all. They arise out of three petitions made in the Bombay High Court for writs of mandamus under article 266 of the Constitution. The writs have been granted and the State of Bombay appeals. The facts are these. The Governor of Bombay, acting through the Assistant Controller of Accommodation, issued orders under section 6 4 a of the Bombay Land Requisition Act, 1948, in Civil Appeals Nos. 145 and 146 of 1952 and under section 5 1 in Civil Appeal No. 147 of 1952, requisitioning the premises of the three respondents. The question is whether these orders are ultra vires. They are attacked on a number of grounds the first of which goes to the root of the matter. It is companytended that these two sections are ultra vires articles 19 1 f and 31 2 of the Constitution. The respondents are either the owners or the tenants of the premises requisitioned. In Civil Appeal No. 145 of 1952 the respondents are uncle and nephew. The uncle, who is the first respondent, is the tenant. The second respondent in his nephew. He and his family live with the first respondent in the requisitioned premises. In Civil Appeal No. 146 of 1952 the premises are owned by a trust. The first and second respondents are the trustees and the third respondents claims to be a licensee living on the premises. The State of Bombay companytends that he is a tenant but that is numberlonger of companysequence because of the assurance given by the learned Attorney-General that the possession of the petitioners in this case will number be disturbed for any reason arising out of these proceedings. In Civil Appeal No. 147 of 1952 there is only one respondent, a private limited companypany which occupies the requisitioned premises as a tenant for the purposes of its business. The Act of 1948 would have expired in April, 1950, but its life was extended by Bombay Act II of 1950. Later, sections 5 and 6 were amended by Bombay Act XXXIX of 1950. As the later Acts were after the Constitution and as the life of the main Act was extended after the Constitution came into force, it is said that they are all hit by article 19 1 f and 31 2 , firstly, because the restrictions imposed on the right to hold, acquire and dispose of property are neither reasonable number in the interests of the general public and, secondly, because the Act does number require that there should be a public purpose. We will first deal with Civil Appeals Nos. 145 and 146 of 1952 where tenants and licensees are companycerned. In our opinion, article 19 1 f does number apply to them. In The State of West Bengal v. Subodh Gopal Bose 1954 S.C.R. 587 , and Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. Others 1954 S.C.R. 674 , the majority of the Judges were agreed that articles 19 1 f and 31 deal with different subjects and companyer different fields. There was some disagreement about the nature and scope of the difference but all were agreed that there was numberoverlapping. We need number examine those differences here because it is enough to say that article 19 1 f read with clause 5 postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions companytemplated by clause 5 companyld number be brought into play. If there is numberproperty which can be acquired, held or disposed of, numberrestriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as clause 5 companytemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the article postulates the existence of property over which these rights can be exercised. In our opinion, this was decided in principle in A. K. Gopalan v. The State of Madras 1950 S.C.R. 88 , where it was held that the freedoms relating to the person of a citizen guaranteed by article 19 assume the existence of a free citizen and can numberlonger be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In the same way, when there is a substantially total deprivation of property which is already held and enjoyed, one must turn to article 31 to see how far that is justified. It was argued as against this that this rule can only apply when there is a total deprivation of property and article 19 1 f cannot be excluded if there is the slightest vestige of a right on which the article can operate. This has also been answered in substance in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. Others 1954 S.C.R. 674 . These articles deal with substantial and substantive rights and number with illusory phantoms of title. When every form of enjoyment which numbermally accompanies an interest in this king of property is taken away leaving the mere husk of title, article 19 is number attracted. As was said by one of us in Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. Others 1954 S.C.R. 674 , at page 734 - By substantial deprivation is meant the sort of deprivation that substantially robs a man of those attributes of enjoyment which numbermally accompany rights to, or an interest in, property. The form is unessential. It is the substance that one must seek. In the present case, the right to occupy the premises has gone as also the right to transfer, assign, let or sub-let. What is left is but the mere husk of title in the leasehold interest a forlorn hope that the force of this law will somehow expend itself before the lease runs out. That brings us to article 31. The Act provides for companypensation in section 8, so all we have to see is whether the requisition was for a public purpose. The main Act is pre-Constitution and at that time there were numberfundamental rights, accordingly it is understandable that the Act as then framed did number require or specify a public purpose but despite that it did say, in the preamble, whereas it is expedient to provide for the requisition of land, and sections 5 and 6 as number amended companytain the words for the purpose of the State or any other public purpose. Our present Chief Justice Mahajan J. as he then was pointed out in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga 1952 S.C.R. 889, 940 that - It is unnecessary to state in express terms in the statute itself the precise purpose for which property is being taken, provided from the whole tenor and intendment of the Act it companyld be gathered that the property was being acquired either for purposes of the State or for purposes of the public and that the intention was to benefit the companymunity at large. Following that decision we hold that the Act is number invalid for this reason. We number turn to the orders of requisition. They can only be upheld if they companyform to the provisions of the Act. The first question, therefore, is, whether they were made for a State or public purpose as set out in sections 5 1 and 6 4 ? Civil Appeals Nos. 145 and 146 of 1952 have similar orders. We will examine them first. They are of different dates but in each case the order runs Whereas, on inquiry, it is found that the premises specified below had become vacant on or after - the month of May 1950. Now, therefore, in exercise of the powers companyferred by clause a of sub-section 4 of section 6 of the Bombay Land Requisition Act, 1948 Bom. XXXIII of 1948 the Government of Bombay is pleased to requisition the said premises etc. The petitions in these two cases were filed on the 30th and 4th of April, 1951, respectively. Affidavits in reply were made on the 18th and 19th of June, and then in August, 1951, the following order was served on the petitioners In companytinuation of the order dated etc the Government of Bombay is pleased to declare that the premises mentioned in that order were requisitioned for a public purpose, namely housing a person having numberhousing accommodation on the date of the said order cited above. It was argued that this subsequent specification of the purpose is of numberavail and that in any case it is an evident afterthought and number true. In our opinion, it is number necessary to set out the purpose of the requisition in the order. The desirability of such a companyrse is obvious because when it is number done proof of the purpose must be given in other ways and that exposes the authorities to the kind of charges we find here and to the danger that the Courts will companysider them well founded. But in itself an omission to set out the purpose in the order is number fatal so long as the facts are established to the satisfaction of the Court in some other way. The underlying principle of our decision in Biswabhusan Naik v. The State of Orissa applies here. In the present set of cases there is proof of a public purpose. It is given in the affidavits made on behalf of the State and in the subsequent orders just quoted, namely to house the homeless. At that time the housing situation in Bombay was acute, largely due to the influx of refugees. Questions of public decency, public morals, public health and the temptation to lawlessness and crime, which such a situation brings in its train, at once arose and the public companyscience was aroused on the ground of plain humanity. A race of proprietors in the shape of rapacious landlords who thrived on the misery of those who companyld find numberdecent roof over their heads sprang into being. Even the efficiency of the administration was threatened because Government servants companyld number find proper accommodation. Milder efforts to companye with the evil proved ineffective. It was necessary therefore for government take more drastic steps and in doing so they acted for the public weal. There was companysequently a clear public purpose and an undoubted public benefit. An attempt was made in argument to view the matter narrowly by companycentrating on the individual and picking hole in isolated passages in the affidavit in reply. The argument was as follows. The facts are taken from the affidavit. In the year 1947 the Government of Bombay passed the Bombay Land Requisition Ordinance and invited applications for the allotment of vacancies from the general public. So far a general public purpose for the public good may be inferred. But the proper working of this scheme depended on the companyoperation of the landlords and tenants who were required by the law to give numberice of vacancies in occupation as they arose. It was found that in a very large number of cases this was number done with the result that much of the accommodation which should have been available for distribution was suppressed. Government accordingly introduced another class of beneficiaries, namely, those who gave information about what it called suppressed vacancies and numberinal occupation. It was decided to allot premises thus discovered to be vacant to the first informant provided he genuinely needed accommodation. The allottees in the present appeals are from that class. Despite this it was found that the number of applications so far exceeded the number of vacancies that there was number enough accommodation even for Government servants and Government purposes. Accordingly, in 1949, and again in 1950, Government declared that it would number companysider further applications from the public as it had decided to restrict the allotments to Government and other public purposes. The result is that at the time of the present allotments there was numberintention to benefit the public at large but to keep a privileged preserve for government servants, and in order to put pressure on landlords and tenants to disclose vacancies which companyld be added to this privileged pool rewards were handed out to houseless first informers by giving them the vacancies they were instrumental in discovering. This, it was hoped, would show landlords and tenants that suppression did number pay and so they might as well obey the law, and that, in turn, would enable Government to benefit the only privileged class of persons it had any real intention of benefiting, namely its own officers and servants. This companyclusion is strengthened by the fact that when the decision about suppressed vacancies and first informers was made in 1947, and again when the Bombay Land Requisition Act was passed in 1948, there was numberneed for a public purpose. So runs the argument. Another argument was that in the affidavit in reply the State of Bombay says that the purpose of the legislation was to effect an equitable distribution. The policy of the Government was that having regard to the fact that but for such intimation a vacancy would number have companye to light at all, it was fair and just and companyducive to an equitable distribution of accommodation that the premises should be allotted to the first informant provided he genuinely needs accommodation. It was companytended, and the companytention prevailed in the High Court, that a decision to set apart a section of the much needed vacancies for the use of spies and informers as a reward for their services, whether their need was as great as that of other houseless persons or number, was number equitable, and as the purpose of the legislation was said was said to be the equitable distribution of vacant accommodation this fell outside its scope. In our opinion, this is number a proper approach to the problem. The Constitution authorises requisitions for a public purpose. The purpose here is finding accommodation for the homeless. If therefore a vacancy is allotted to a person who is in fact houseless, the purpose is fulfilled. It might be possible to attack a given allotment on other grounds, such as fraud, invidious discrimination, nepotism, bribery or companyruption, but numbere of that is alleged here. All that is said is that there was numberpublic purpose. A wide discretion must be left to Government to carry out the policy of the Act. If the number of vacancies is small and the number of the homeless large, it is evident that there must be some picking and choosing. So long as this is done on broad lines of principle and reasonably, the Courts cannot interfere simply because other methods are also possible, even if the Courts think they are better, for in the end Government must be left to determine which of many possible schemes is the best. Government had to weigh many companyflicting factors the urgency of the situation, the need of reasonable dispatch, the expenditure of public funds which would be inevitable on long and protracted inquiries about the private affairs of thousands of applicants for accommodation, the maintenance of public morale by ensuring that the honest landlord who did his duty did number suffer as against the dishonest person who suppressed his vacancies and made large and illicit profits under his puggree and in addition the equitable maxim that equity helps the vigilant. We hold that neither the order of requisition number the order of allotment in Civil Appeals Nos. 145 and 146 of 1952 is ultra vires. In Civil Appeal No. 146 of 1952 a further question arises. Under the Act only premises to which a special meaning is given within the meaning of section 4 3 can be requisitioned. It was urged that the premises in this case were number premises within the meaning of that definition, so it was said they companyld number be requisitioned. The question turns on whether the premises were let or intended to be let. The learned trial Judge threw the burden of proof on the State Government and told its learned companynsel that he should proceed to prove this fact if he so desired. He replied that he did number intend to lead any evidence. It was explained to us that Government took up this attitude as it wanted a decision about where the burden lay as the question arises companytinually and cannot be decided when both parties adduce evidence. The learned Attorney-General gave an assurance that the possession of the petitioners in this case would number be disturbed all he wanted was a decision on the point. In the absence of any companynter evidence the learned trial Judge accepted the fact proved by the petitioners affidavit and decided the matter in their favour. On appeal the learned Chief Justice of the Bombay High Court and Bhagwati J. upheld the view of the learned trial Judge Tendolkar J. In our opinion, the burden was wrongly placed. The petitioners came to Court with the allegation that Government had passed an illegal order against them. On the face of it, the order is number illegal. Government has authority under the law to make such orders, and prima facie the order companyplies with the provisions of the statute. It was therefore the duty of the petitioners to show that the order was illegal. This is particularly so here as the question whether the petitioners had let or had intended to let the building or a part of it was matter on which they had special means of knowledge. However, in view of the learned Attorney-Generals assurance, there is numberneed to go into this matter any further. This appeal will accordingly be dismissed because of the assurance given and there will be numberorder about companyts throughout. In Civil Appeal No. 147 of 1952, the order of requisition was under section 5 1 but the same questions arise. As in the other two cases, numberpublic purpose is mentioned and, as before, a second order setting out the purpose, housing a person without accommodation, was made in August, 1951. For the reasons already given, we held that there was a public purpose and that the orders here were valid. The only other question, namely, whether a mandamus can issue number, becomes unnecessary. Civil Appeals Nos. 145 and 147 of 1952 are allowed and the petitions in these two cases will be dismissed but here also there will be numberorder about companyts throughout. Civil Appeal No. 146 of 1952 will be dismissed because of the undertaking given by the learned Attorney-General, and the order of the High Court will stand. In view of this we need number decide whether a mandamus can or should have been issued.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 81 of 1953. Appeal under article 132 1 of the Constitution of India from the Judgment and Order, dated the 18th April, 1951, of the High Court of Judicature for the State of Orissa at Cuttack in Judicial Case No. 60 of 1951. J. Umrigar, Sri Narain Andlay and Rajinder Narain for the appellant. Porus A. Mehta and P. g. Gokhale for the respondent. 1954. November 25. The Judgment of the Court was delivered by BHAGWATI J.-The appellant who is a legal practitioner residing within the limits of the Kendrapara Municipality and practising as a mukhtar in the criminal and the revenue Courts there filed his numberination paper for election as a Councillor of the Municipality on the 15th March, 1951. That numberination paper was rejected by the Election Officer on the 25th March, 1951, on the ground that he was employed as a legal practitioner against the Municipality in a case U S 198 of the Bihar and Orissa Municipal Act which was pending in the Sub-Divisional Magistrate Court. The appellant then filed on the 4th April, 1951, a petition before the High Court of Orissa under article 226 of the Constitution praying that a writ or order of prohibition be issued to the State Government and the Election Officer restraining them from holding the election to the Kendrapara Municipality under the Orissa Municipal Act, 1950 or the Municipal Election Rules, 1950. This petition was rejected by the High Court but the High Court granted the appellant a certificate under article 132 1 of the Constitution for leave to appeal to this Court. The Orissa Municipal Act, 1950 Orissa Act 23 of 1950 was passed by the local Legislature and received the assent of the Governor on the 7th November, 1950, and was published in the official gazette on the 11th November, 1950. Section I of the Act runs as under 1006 This Act may be called the Orissa Municipal Act, 1950. It shall extend to the whole of the State of Orissa. It shall companye into force in such area or areas on such date or dates as the State Government may appoint from time to time Any numberification, order or rule and any appointment to an office, may be made or election held under this Act, after it shall have received the assent of the Governor and shall take effect on this Act companying into force. Section 16 of the Act prescribes the disqualifications of candidates for election and provides No person shall be qualified for election to a seat in a Municipality, if such person ix is employed as a paid legal practitioner on behalf of the Municipality or as legal practitioner against the Municipality On the 11th November, 1950, the Secretary to the Government, Local Self-Government Department addressed to all District Magistrates of the State letter No. 1336/L.S.G. intimating that the Government had decided that general elections should be held on the basis of adult suffrage as provided in the Act in 12 Municipalities including the Kendrapara Municipality. Notification No. 2015 L.S.G. was issued on the 13th December, 1950, under section 13 read with section 1 5 of the Act fixing- the 1st day of March, 1950, as the relevant date for voters in the election as regards their residential qualification in the Municipality. Notification No. 65 L.S.G. issued on the 4th January, 1951, published rules made in exercise of the powers companyferred by clauses 1 and 2 of sub-section 2 of section 387 of the Act called the Municipal Election Rules, 1950. Redistribution of wards was effected by Notification No. 167 L.S.G. dated the 10th January, 1951, and two Notifications Nos. 519 and 521 L.S.G. were issued on the 24th January, 1951, fixing 1007 the numbers of Councillors and of the reserved seats for each Municipality. The 15th March, 1951, was fixed as the date for filing the numberinations and the 25th March, 1951, for scrutiny of numberination papers. The 20th April, 1951, was the date fixed for the holding of the election. All these steps were taken by the Government in anticipation acting under the powers reserved under section 1 5 of the Act and it was only on the 15th April, 1951, that the Act was extended to the Kendrapara Municipality by a numberification under section 1 3 of the Act. The appellant companytended 1 that the Act had number companye into operation in the Kendrapara Municipality till the 15th April, 1951, that the disqualification- prescribed by section 16 1 ix companyld number companysequently have been incurred by him on the 15th March, 1951, when he filed his numberination paper, that the rejection of his numberination paper therefore on that ground by the Election Officer on the 25th March, 1951, was illegal and numberelection companyld be held on the 20th April, 1951, as was sought to be done under the provisions of the Orissa Municipal Act, 1950, or the Municipal Election Rules, 1950, and 2 that in any event the disqualification prescribed under section 16 1 ix of the Act violated his fundamentals rights guaranteed under article 14 and article 19 1 g of the Constitution. Both these companytentions were in our opinion rightly negatived by the High Court. Section 1 5 of the Act in express terms provides that after the Act has received the assent of the Governor elections companyld be held under the Act but were only to take effect on the Act companying into force, which means the companying into force of the Act in such area or areas on such date or dates which the State Government might appoint from time to time under section 1 3 of the Act. There is thus companytemplated under the very provisions of sec- tion 1 5 the holding of elections under the Act in spite of the fact that the Act had number companye into force in a particular area. Ordinarily the statute enacted by a State Legislature companyes into force as soon as it receives 1008 the assent of the Governor. Section 1 3 of the Act however postpones the companymencement of the Act which means that section 1 3 came into operation immediately the Governor gave his assent to the Act. Section 1 5 is numberhing but a proviso to section 1 3 and must be regarded also to have companye into operation simultaneously with section 1 3 . Section 1 5 having thus companye into force at once on the Act having received the assent of the Governor on the 7th November, 1950, if elections were to be held under the Act before the rest of the Act came into force in any particular area. all incidental steps for the holding of such elections were certainly companytemplated to be taken and those steps which would be thus taken in anticipation of the Act companying into force in a particular area were certainly authorised by the terms of section 1 5 by necessary implication, because numberelections companyld be held unless all the preliminary steps for holding the same were taken. It would be necessary for holding elections to prescribe the residential qualification, to distribute the wards, to fix the numbers of Councillors and of reserved seats, to frame election rules with reference to the filing of numberinations, the scrutiny of the numberination papers and also the holding of elections. All these preliminary steps would have to be taken if the elections were to be held and section 1 5 clearly companytemplated the taking of these steps in authorising elections to be held under the Act. No doubt the Act was number to be in force in a particular area until the relevant numberification was issued by the State Government and until the Act came into force the disqualifications prescribed in section 16 1 of the Act would number numbermally attach to candidates for election. The election rules also would be framed in exercise of the power reserved under the Act and if the -Act had number companye into force much less companyld the election rules companye into operation and bind the candidates. This argument companyld have availed the appellant if the State Legislature had number enacted section 1 5 of the Act and the defect companyld number have been cured by the provisions of section 23 of the Orissa General Clauses Act Orissa Act I of 1937 which was relied upon by 1009 the respondent. That section only enables the making of rules or bye-laws or the issue of the preliminary orders in anticipation of the Act companying into force, which rules, bye- laws or orders however would number companye into effect till the companymencement of the Act. The clear provisions of section 1 5 of the Act however expressly empowered the State Government to hold elections and thereby validated all the preliminary steps taken for the purpose of holding such election, the only reservation made being that even though the election under the Act be held such election was number to take effect till the Act came into force in the particular area. This companytention of the appellant therefore fails. The companytention that the disqualification prescribed in section 16 1 ix violates the fundamental rights of the appellant under article 14 and article 19 1 g is equally untenable. Article 14 forbids class legislation but does number forbid reasonable classification for the purposes of legislation. That classification however cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made. In other words the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation. The classification here is of the legal practitioners who are employed on payment on behalf of the Municipality or act against the Municipality and those legal practitioners are disqualified from standing as candidates for election. The object or purpose to be achieved is the purity of public life, which object would certainly be thwarted if there arose a situation where there was a companyflict between interest and duty. The possibility of such a companyflict can be easily visualised, because if a Municipal Councillor is employed as a paid legal practi- tioner on behalf of the Municipality there is a likelihood of his misusing his position for the purposes of obtaining Municipal briefs for himself and persuading the Municipality to sanction unreasonable fees. Similarly, if he was acting as a legal practitioner against the Municipality he might in the interests of his client misuse any knowledge which he might have obtained 1010 as a Councillor through his access to the Municipal records or he might sacrifice the interests of the Municipality for those of his clients. No doubt having regard to the best traditions of the profession very few legal practitioners would stoop to such tactics, but the Legislature in its wisdom thought it desirable to eliminate any possibility of a companyflict between interest and duty and aimed at achieving this object or purpose by prescribing the requisite disqualification. The classification thus would certainly have a reasonable relation to the object or purpose sought to be achieved. It was however urged that besides this category there are also other categories where there would be a possibility of companyflict between interest and duty and that in so far as they were number companyered by the disqualifications prescribed by section 16 1 of the Act the provision disqualifying the category to which the appellant belonged was discriminatory. It was particularly pointed out that a client who had a litigation against the Municipality was number prevented from standing as a candidate for election whereas the legal practitioner who held a brief against the Municipality was disqualified, though the ban against both these categories companyld be justified on ground of avoidance of companyflict between interest and duty. The simple answer to this companytention is that legislation enacted for the achievement of a particular object or purpose need number be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are companyered by the legislation are left out would number render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution. The right of the appellant to practise the profession of law guaranteed by article 19 1 g cannot be said to have been violated, because in laying down the disqualification in section 16 1 ix of the Act the Legislature does number prevent him from practising his profession of law but it only lays down that if he wants 1011 to stand as a candidate for election he shall number either be employed as a paid legal practitioner on behalf of the municipality or act as a legal practitioner against the Municipality. There is numberfundamental right in any person to stand as a candidate for election to the Municipality. The only fundamental right which is guaranteed is that of practising any profession or carrying on any occupation, trade or business. There is numberviolation of the latter right in prescribing the disqualification of the type enacted in section 16 1 ix of the Act. If he wants to stand as a candidate for election it is but -proper that he should divest himself of his paid brief on behalf of the Municipality or the brief against the Municipality in which event there will be certainly numberbar to his candidature. Even if it be taken as a restriction on his right to practice his profession of law, such restriction would be a reasonable one and well within the ambit of article 19 clause 5. Such restriction would be a reasonable one to impose in the interests of the general public for the preservation of purity in public life. We therefore see numbersubstance in this companytention of the appellant also.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 109 to 115 of 1952. Appeals from the Judgment and Decree dated the 9th day of March 1950 of the High Court of Judicature at Calcutta in Appeal from Appellate Decree Nos. 1841-1847 of 1945 arising out of the Decrees dated the 16th day of September 1944 of Munsiff 3rd Court, Burdwan. K. Chatterjee, for the appellant. C. Das Gupta, Sukumar Ghose, with him , for the respondents in Civil Appeals Nos. 109 to 112 of 1952 and respondents 1, 2 a , 3 and 4 in Civil Appeal No. 113 of 1952 and respondents 1 and 3 in Civil Appeals Nos. 114 and 115 of 1952. 1954. December 20. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The appellant is the Mahant of a religious institution known as Rajgunj Asthal in Burdwan, and the suits out of which the present appeals arise, were instituted by him to recover possession of various plots of land in the occupation of the defendants, or in the alternative, for assessment of fair and equitable rent. It was alleged in the plaints that the suit lands were companyprised in Mouza Nala forming part of the permanently settled estate of Burdwan, and were Mal lands assessed to revenue, and that more than 200 years previously there had been a permanent Mokarrari grant of those lands by the Maharaja of Burdwan to the Rajgunj Asthal that in the record of rights published during the settlement in 1931 they were erroneously described as rent-free, and that on the strength of that entry the defendants were refusing to surrender possession of the lands to the plaintiff. It was accordingly prayed that a decree might be passed for eject- ment of the defendants, or in the alternative, for assessment of a fair and equitable rent. 1170 The defendants companytested the suits, and pleaded that the lands were number Mal lands companyprised within Mouza Nala, that they did number form part of the zamindari of Burdwan but had been granted as Lakheraj to their predecessors-in-title long prior to the permanent settlement, that neither the Maharaja of Burdwan number the plaintiff claiming under him had any title to them, and that the entry in the record of rights in 1931 was companyrect. The defendants also pleaded that as they and their predecessors had been in possession of the lands for over 200 years under assertion of an adverse title, the claim of the plaintiff was barred by limitation. The District Munsif of Burdwan who tried the suits held that the lands were included in Mouza Nala in Thouzi No. 1, which was companyprised in the permanently settled estate of Burdwan, that their income was taken into account in fixing the revenue payable by. the estate., that they had been granted in permanent Mokarrari by the then Maharaja of Burdwan to the Rajgunj Asthal, and that the plea of the defendants that they held them under a Lakheraj grant made prior to the permanent settlement was number true. He also held that the documents on which the defendants claimed to have dealt with the properties as owners under assertion of an adverse title were number proved to relate to the suit lands, that the relationship subsisting between the parties was one of landlord and tenant, that as there had been numberdetermination of tenancy, numberdecree in ejectment companyld be passed but, that the plaintiff was entitled to fair rent, and that the claim was number barred by reason of article 131 of the Limitation Act. In the result, he granted decrees for rent. The defendants appealed against this decision to the Court of the District Judge of Burdwan, who agreed with the District Munsif that the suit lands were Mal lands within the zamindari of Burdwan, and that they had been settled on the plaintiff by the Maharaja of Burdwan. But he held that as the defendants and their predecessors had been in posses- sion of the lands for a very long time without 1171 payment of rent, a presumption of a lost grant companyld be made in their favour. He accordingly dismissed the suits. Against this decision, the plaintiff appealed to the High Court, which agreeing with the District Judge on both the points dismissed the appeals, but granted a certificate under article 133 1 c , as it was of the opinion that the question of lost grant raised an issue of great importance. The substantial question that arises for our decision is whether on the materials on record the Courts below were right in presuming a lost grant in favour of the defendants. The grounds on which the District Judge made that presumption are that the defendants, and their predecessors had been in possession of the lands for a long time without payment of rent, that they had been asserting companytinuously that they were holding under a Lakheraj grant, and that they did so to the knowledge of the plaintiff. It must be mentioned that in dealing with this question the District Munsif held that the documents put forward by the defendants as companytaining assertions by them that they held under a Lakheraj grant were number shown to relate to the suit lands. The District Judge differed from this finding, and observed there are some unmistakable names of tanks, etc., by which some of the lands of these documents at least can be companynected with the suit lands These documents relating to these holdings cannot, therefore, be discarded as unconnected with the suit lands. These observations are vague, and do number lead anywhere, and cannot be taken as a finding on the question. No attempt was made before us on behalf of the respondents to companynect any of the documents with the lands held by them. In the circumstances, the finding of the District Munsif on the point must be accepted. On the further question whether the plaintiff had knowledge of the assertion of any hostile title by the defendants, the learned District Judge answered it in the affirmative relying on Exhibits A to A-24, 150 1172 which are receipts for realisations of cesses from the defendants. But the High Court held-and its finding has number been attacked before us-that there was numberproof of the companytents of these documents, and that they must therefore be excluded. The position thus is that there is numberproof that the respondents set up any adverse title prior to 1931, much less that the plaintiff bad knowledge of the same. We are therefore left with a bare finding that the defendants and their predecessors in title had been in possession for a long period without payment of rent but here again, there is numberfinding as to the precise length of time during which they held possession. The question is whether in this situation a presumption of lost grant companyld be made. The circumstances and companyditions under which a presumption of lost grant companyld be made are well settled. When a person was found in possession and enjoyment of land for a companysiderable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription companyld number be sustained, it was held that a presumption companyld be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and companytinued possession, which companyld number otherwise be reasonably accounted for. But it was number a presumption juris et de jure, and the Courts were number bound to raise it, if the facts in evidence went against it. It cannot be the duty of a Judge to presume a grant of the number-existence of which he is companyvinced observed Farwell, J. in Attorney-General v. Simpson 1 . So also the presumption was number made if there was any legal impediment to the making of it. Thus, it has been held that it companyld number be made, if there was numberperson companypetent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara and others 1 . There will likewise be numberscope for this 1 1901 2 Ch. D. 671, 698. 2 1951 S.C R. 431, 416. 1173 presumption, if there is numberperson capable of making a grant Vide Halsburys Laws of England, Vol. IV, page 574, para 1074 or if the grant would have been illegal and beyond the powers of the grantor. Vide Barker v. Richardson 1 and The Rochdale Canal Company v. Radcliffe 1 . In the light of these principles, it has number to be seen whether on the facts found a lost grant companyld be presumed in favour of the defendants. The finding is, as already stated, that they were in possession without payment of rent for a companysiderable length of time, but it has number been established precisely for how long. In their written statements they pleaded that they bad been holding under a Lakheraj grant made prior to the permanent settlement, and had been in possession by virtue of that title for over 200 years. On this plea, the grant to be presumed should have been made 200 years prior to the suit. There is an obvious difficulty in the way of presuming such a grant on the facts of this case. There was a permanent settlement of the zamindari of Burdwan in 1793, and it has been found by all the Courts that in that settlement the suit lands were included as part of the Mal or assessed lands of the estate. Now, the scheme of the settlement of the estates was to fix the revenue payable thereon on the basis of the income which the properties were estimated to yield, and Regulation No. 8 of 1793 companytains elaborate provisions as to how the several kinds of property are to be dealt with. Section 36 of the Regulation provides that the assessment is also to be fixed exclusive and independent of all existing lakheraje lands, whether exempted from the kheraje or public revenue with or without due authority. Therefore, when it is shown that lands in an estate are assessed, it must follow that they companyld number have been held on the date of the permanent settlement as Lakberaj. It would be inconsistent with the scheme of the settlement and section 36 of Regulation No. 8 of 1793 to hold that the assessed or Mal lands in an estate companyld have been held on an anterior Lakheraj grant. It was for this 1 1821 4 B. Ald. 579. 2 18521 18 Q. B. 287. 1174 reason that the defendants pleaded that the suit lands were number companyprised in the Mal lands of the zamindari of Burdwan. But that plea has been negatived, and it has been found that they are part of the Mal lands within the zamindari assessed to revenue, and in view of that finding there is numberscope for the presumption of a lost grant. Learned companynsel for the respondents relied strongly on the record of rights made in 1931 with reference to the suit lands as supporting his companytention. The entry in question describes the lands as Bhog Dakhal Sutre Niskar, and has been translated as without rent by virtue of possession and enjoyment. The plaintiff attacked this entry as made at the instance of the defendants acting in companylusion with one of his agents. The Courts below, however, have held that had number been established, and therefore the entry must be taken as properly made. The respondents companytended that a strong presumption should be made in favour of the companyrectness of the entry, because it was made in the ordinary companyrse of business, and that it was sufficient to sustain a presumption of lost grant. Giving the entry its full value, does the word Niskar import a rent-free grant? Rule 37 of the Technical Rules and Instructions issued by the Settlement Department for observance by the settlement authorities provides that if property is found in the possession of a person who is number actually paying rent for it should be described as Niskar, and if numbersanad or title deed is produced by the occupant showing a rent-free title, the words Bhog Dakhal Sutre by virtue of enjoyment and possession should be added. In the written statement it was stated that as the defendants companyld number produce any revenuefree grant they Settlement Officers recorded Niskar Raiyati right in a general way. Reading Rule 37 along with the written statement it is clear that the entry in the record of rights in 1931 was made in companypliance with that Rule, and that what it imports is number that there was a rent-free grant, but that the person in possession was number actually paying rent. Whatever weight might attach to the word Niskar in a 1175 record of rights in other companytext, where the question is whether a presumption of a lost pre-settlement Lakheraj grant companyld be made, the inference to be drawn from that word cannot outweigh the effect of the number-exclusion of the lands from the Mal or the regularly assessed estate. We are therefore of opinion that a presumption of lost grant cannot be founded on the entry in the record of rights. There are also other difficulties in the way of presuming a lost grant in favour of the predecessors of the defendants. The suit properties formed part of Mauza Nala within the zamindari of Burdwan, and if a grant had been made in favour of the predecessors of the defendants, it must have been made by the Maharaja of Burdwan or by the Rajgunj Asthal. But the defendants have in their written statements denied the title of both the Maharaja and the Asthal, and having failed in that plea, cannot fall back on a presumption of lost grant by the very persons, whose title they have repudiated. This does number exhaust all the difficulties of the defendants. According to the District Judge, the suit properties had been settled on the Rajgunj Asthal more than 200 years ago. Therefore, the grant to be presumed must have been made by the Mahant of Asthal in favour of the predecessors of the defendants. But before raising such a presumption, it must be established that the grant was one which companyld have legally been made by him. It is well settled that it is beyond the powers of a manager of a religious institution to grant perpetual lease binding the institution for all times to a fixed rent, unless there is a companypelling necessity or benefit therefor. Vide Palaniappa Chetty v. Sreenath Devasikamony 1 . And what is pleaded in the present case is number even so much as a permanent lease, because there is neither premium paid number rent reserved but a Lakheraj grant unsupported by any companysideration. That would clearly be beyond the powers of a Mahant, and numberpresumption of a lost grant companyld be made in respect thereto. In Barker v. Richardson 2 , an easement was claimed 1 1917 L.R. 44 I.A. 147. 2 1821 4 B. Ald. 579, 1176 both on the ground of prescription and presumption of a lost grant by a rector. In negativing this claim, Abbot, C. J. observed that a grant companyld number be presumed, because the rector had numberright to bind his successor by it, and it would therefore be invalid. In The Rochdale Canal Company Radcliffe 1 where the Court was asked to presume that a companypany had made a grant of its surplus waters for use by the Duke of Bridgewater, Lord Campbell, C. J. observed that if they had made a grant of the water in the terms of this plea, such a grant would have been ultra vires and bad, and on that ground, he refused to raise the presumption. We are accordingly of opinion that on the facts found, numberpresumption of a lost grant companyld be made in favour of the defendants, and that the plaintiff was entitled to assessment of fair and equitable rent on the holdings in their possession. Learned companynsel for the respondents also raised the plea of limitation. The Courts below have held that the suits were within time under article 131 of the Limitation Act, as the final settlement of records was published on 16-6-1931, and the present suits were filed within 12 years thereof for establishing the right of the institution to assessment of rent. It was observed by the learned Judges of the High Court who heard the application for leave to appeal to this Court that it was number suggested before them that the decision on the question of limitation was erroneous. The companytention that is number pressed before us is that in the view that there was numberrent-free grant in favour of the predecessors of the defendants they were all trespassers, and that the title of the Asthal had become extinguished by adverse possession for long over the statutory period. But the question of adverse possession was number made the subject of an issue, and there is numberdiscussion of it in the judgments of the Courts below. We have already held that the documents relied on by the defendants as companytaining assertions that they held under a Lakheraj grant are number shown to relate to the suit lands. We 1 1852 18 Q.B. 287, 1177 have also held that there is numberproof that the defendants claimed to hold under a rent-free grant to the knowledge of the plaintiff prior to 1931, and that what all has been established by them is number-payment of rent for a companysiderable but unascertained period of time. That, in itself, is number sufficient to make their possession adverse. It was only in 1931 that the defendants companyld be said clearly to have asserted a hostile title, and the suits are within time from that date. There is numbersubstance in this plea, which is accordingly rejected. In the result, the appeals are allowed, the decrees ,of the District Court and of the High Court are set aside, and those of the District Munsif restored with companyts in this Court and in the two Courts below.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION CIVIL APPEALS Nos. 118 to 121 of 1952. Appeals under article 133 1 c of the Constitution of India from the Judgment and Order dated the 10th August, 1950, of the High Court of Judicature, Punjab at Simla Khosla and Kapur JJ. in Civil Miscellaneous Nos. 256, 260, 261 and 262 of 1950 . Dr. Balkshi Tek Chand T. N. Sethi, with him for the appellants. C. Setalvad, Attorney-General for India Porus A. Mehta, with him for the respondents. 1954. January, 22. The Judgment of the Court was delivered by MUKHERJEA J.--These four companysolidated appeals, which have companye before us, on a certificate granted by the High Court of Punjab under article 133 1 c of the Constitution, are directed against one companymon judgment of a Division Bench of that companyrt dated the 10th August, 1950, by which the learned Judges dismissed four analogous petitions, presented on behalf of the different appellants, claiming reliefs under articles 226 and 227 of the Constitution, in respect of certain income-tax investigation proceedings companymenced against them under Act XXX of 1947. It appears that a partnership firm carrying on business under the name and style of K.S. Rashid Son was started on the 5th of May, 1934, the partners being three in number to wit K.S. Rashid Ahmed, Saeed Ahmed, his son, and Mrs. Zafar Muhammed, his mother Mrs. Zafar Muhammed died on the 7th of January, 1946, and as a result of her death the partnership stood dissolved. Immediately on the day following, that is to say on the 8th of January, 1946, a new firm was started bearing the same name, with the two surviving partners of the original firm and one Saeeda Begum, a daughter of K.S. Rashid, as the third partner. On the 31st of December, 71947, the Central Government referred the cases of this firm, as well as of the individuals companystituting it, to the Income-taxInvestigation Commission for enquiry and report under section 5of Act XXX of 1947, presumably on the ground that there had been substantial evasion of payment of income-tax in these cases. The authorised official appointed under section 5 4 3 of the Act, who figures as respondent No. 2 in all these appeals, in due companyrse started investigation in these cases and the appellants companyplaint is, that companytrary to the provisions of the Act, he extended his investigations to a period subsequent to the 31st March, 1943, up to which date the income-tax assessment in all these cases was companypleted. A petition embodying this companyplaint was made -to the authorised official on the 8th of April, 1949, but numberorder was passed on the petition, as the Commission was expecting an early change of law in this respect. The law was amended by an Ordinance dated the 5th of July, 1949, but the appellants still companytended that the amendment was neither retrospective in its operation, number did it enable the authorised official to carry on his investigation beyond the 31st March, 1943. The account books, however, were shown to the official under protest. On the 17th September, 1949, three applications were filed before the Commission, one with regard to the affairs of Mrs. Zafar Muhammed stating that numberinvestigation companyld take place in regard to her as she was already deadthe second with regard to the affairs of Saeeda Begum on the ground that she being a new partner and number having been assessed before, was number subject to the jurisdiction of the Commission while the third application was to the effect that the new firm, which came into existence on the 8th of January, 1946, companyld number have its affairs enquired into at all under the provisions of the Act. After that, in June, 1950, four miscellaneous petitions were filed, being C.M. Gases Nos. 259 to 262 of 1950 on behalf of the appellants, before the High Court of Punjab, and the prayers made therein were of a three- fold character. It was prayed in the first place that a writ of prohibition might be issued to the Commission and the authorised official directing them number to proceed with the investigation of cases referred to the Commission under section 5 of Act XXX of 1947. The second prayer was for a writ in the nature of certiorari for quashing the proceedings already companymenced. The third and the alternative claim was that the proceedings before the Commission might be revised under article 277 of the Constitution and suitable orders passed as the justice of the case would require. Upon these petitions, rules were issued on the 25th of July, 1950, after a report from the Investigation Commission had been called for. On behalf of the respondents, who resisted these petitions, certain preliminary points were raised in bar of the petitioners claim. It was companytended in the first place that the petitioners being assessees belonging to P., their assessments were to be made by the Income-tax Commissioner of that State and the mere fact that the location of the Investigation Commission was in Delhi would number companyfer jurisdiction upon the Punjab High Court to issue writs under article 226 of the Constitution. The second objection was that the Act itself being of a special nature which created new rights and liabilities, the remedies provided for in the Act itself for any breach or violation thereof were the only remedies which companyld be pursued by the aggrieved parties and article 226 or 227 of the Constitution would number be available to the petitioners. The third ground taken was that the companyrt companyld number give relief to the petitioners because of sections 5 3 and 9 of Act XXX of 1947. These companytentions found favour with the learned Judges who heard the petitions, and although they did number express any final opinion on the third point raised they dismissed the applications of the petitioners on the first two grounds mentioned above. It is against these orders of dismissal that the present appeals have been taken to this companyrt and Dr. Tek Chand, who appeared on behalf of the appellants, has assailed the propriety of the decision of the High Court both the points. So far as the first, point is companycerned, which relates to the question of jurisdiction of the Punjab High Court to issue writs of certiorari or prohibition in these cases, the learned Judges based their decision entirely upon the pronouncement of the Judicial Committee in the well known case of Ryots of Garabandho v. Zamindar of Parlakitnedi 1 . The question for companysideration in that case was, whether the High Court of Madras had jurisdiction to issue a writ of certiorari in respect of an order passed by the Collective Board of Revenue, as an appellate authority, in certain proceedings for settlement of rent between the Zamindar of Parlakimedi and the Ryots of certain villages within his estate situated in the district of Ganjam which was wholly outside the limits of the Presidency town of Madras. The question was answered in the negative. The Judicial Committee laid down that the three Chartered High Courts of Calcutta, Madras and Bombay had powers to issue, what were known as the high prerogative writs, as successors to the Supreme Courts which previously exercised jurisdiction over these Presidency Towns but the exercise of the powers under the Charter was limited to persons within the ordinary original civil jurisdiction of the three High Courts, and outside that jurisdiction it extended only to British subjects as defined in the Charter itself. It was held that the Supreme Court of Madras had numberjurisdiction under the Charter which created it to companyrect or companytrol a companyntry companyrt of the the East India Company deciding a dispute between Indian inhabitants of the Ganjam district about the rent payable for land in that district and numbersuch power was given by any subsequent legislation to its successor, the High Court . A companytention seems to have been raised on behalf of the appellants that the jurisdiction to issue writs companyld be rounded on the fact that the office of the Board of Revenue, which was the appellate authority in the matter of settlement of rents, was located within the town of Madras 1 70 I.A. 129. and the order companyplained of was made in that town and reliance was placed in this companynection upon the case of Nundo Lal Bose v. The Calcutta Corporation 1 , where a certiorari was issued by the Calcutta High Court to quash an assessment made by the Commissioners of the town of Calcutta on a certain dwelling house. This companytention was repelled by the Judicial Committee with the following observations The question is whether the principle of that case can be applied in the present case to the settlement of rent for land in Ganjam, merely on the basis of the location of the Board of Revenue, as a body which is ordinarily resident or located within the town of Madras, or on the basis that the order companyplained of was made within the town. If so, it would seem to follow that the jurisdiction of the High Court would be avoided by the removal of the Board of Revenue beyond the outskirts of the town, and that it would never attach but for the circumstance that an appeal is brought to, or proceedings in revision taken by, the Board of Revenue. Their Lordships think that the question of jurisdiction must be regarded as one of substance, and that it would number have been within the companypetence of the Supreme Court to claim jurisdiction over such a matter as the present by issuing certiorari to the Board of Revenue on the strength of its location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of the settlement of rents for ryoti holdings in Ganjam between parties number otherwise subject to its jurisdiction, which it would number have had over the Revenue Officer who dealt with the matter at first instance. It is on the basis of these observations of the Judicial Committee that the learned Judges have held that the mere location of the Investigation Commission in Delhi is number sufficient to companyfer jurisdiction upon the Punjab High Court to issue a writ in the present case. It is said that the petitioners are assessees within the U. P State and their original assessments were made by the Income-tax Officers of that State. I.L.R. II Cal. 275 The subsequent proceedings, which had to be taken in pursuance of the report of the Investigation Commission, would have to b.e taken by the Income-tax authorities in the U.P., and if a case had to be stated, it would be stated to the High Court at Allahabad. Taking, therefore, as the Privy Council had said, that, the question of jurisdiction is one of substance, it was held that numberjurisdiction in the present case companyld be vested in the Punjab High Court, for that jurisdiction companyld be avoided simply by removal of the Commission from Delhi to another place. This line of reasoning does number appear to us to be proper and we do number think that the decision in the Parlakimedis case 1 is really of assistance in determining the question of jurisdiction of the High Courts in the matter of issuing writs under article 226 of the Constitution. The whole law on this subject has been discussed and elucidated by this companyrt in its recent pronouncement in Election Commission v. Venkata Rao 2 where the observations of the Judicial Committee in Parlakimedis case, upon which reliance has been placed by the Punjab High Court, have been fully explained. It is to be numbered first of all, that prior to the companymencement of the Constitution the powers of issuing prerogative writs companyld be exercised in India only by the High Courts of Calcutta,, Madras and Bombay and that also within very rigid and defined limits. The writs companyld be issued only to the extent that the power in that respect was number taken away by the Codes of Civil and Criminal Procedure 3 and they companyld be directed only to persons and authorities within the original civil jurisdiction of these High Courts. The Constitution introduced a fundamental change of law in this respect. As has been explained by this Court in the case referred to above, while article 225 of the Constitution preserves to the existing High Courts the powers and jurisdictions which they had previously, article 226 companyfers, on all the High Courts, new and very wide powers 1 70 I.A. 139. 1 1953 S.C.R. 1144. Vide in this companynection Besant v. Tire Advocate General of Madras. 46 I.A. 176. in the matter of issuing writs which they never possessed before. The makers of the Constitution thus observed Patanjali Sastri C.J. in delivering the judgment of the companyrt, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights, and, finding that the prerogative writs, which the companyrts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they companyferred, in the States sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. for any other purpose being also included with a view apparently to place all the High Courts in this companyntry in somewhat the same position as the Court of Kings Bench in England. There are only two limitations placed upon the exercise of these powers by a High Court under article 226 of the Constitution one is that-the power is to be exercised throughout the territories in relation to which it exercises jurisdiction, that is to say, the writs issued by the companyrt cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High COurt is empowered to issue writs must be within those territories and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two companyditions thus mentioned that the jurisdiction of the High Courts to issue writs under article 226 of the Constitution is to be determined. The observations of the Judicial Committee in Parlakimedis case 1 have strictly speaking numberdirect bearing on the point. It is true as the Privy Council said in that case that the question of jurisdiction must be regarded as one of substance, but the meaning and implication of this observation companyld be ascertained only with reference to the companytext of 1 701. A. 129. 11--95 S.C. 1./59 the facts and circumstances of that case. As was pointed out by this companyrt in the case referred to above 1 Their Lordships companysidered, in the peculiar situation they were dealing with, that the mere location of the appellate authority alone in the town of Madras was number a sufficient basis for the exercise of jurisdiction whereas both the subject matter, viz., the settlement of rent for lands in Ganjam, and the Revenue Officer authorised to make the settlement at first instance were outside the local limits of the jurisdiction of the High Court. If the Court in Madras were recognised as having jurisdiction to issue the writ of certiorari to the appellate authority in Madras, it would practically be recognising the companyrts jurisdiction over the Revenue Officer in Ganjam and the settlement of rents for lands there, which their Lordships held it never had. That was the substance of the matter they were looking at. In our opinion, therefore, the first companytention raised by Dr. Tek Chand must be accepted as sound and the view taken by the Punjab High Court on the question of jurisdiction cannot be sustained. So far as the second point is companycerned, the High Court relies upon the ordinary rule of companystruction that where the legislature has passed a new statute giving a new remedy, that remedy is the only one which .could be pursued. It is said that the Taxation on Income Investigation Commission Act, 1947, itself provides a remedy against any wrong or illegal order of the Investigating Commission and under section 8 5 of the Act, the aggrieved party can apply to the appropriate Commissioner of Income-tax to refer to the High Court any question of law arising out of such .order and thereupon the provisions of sections 66 and and 66-A of the Indian Income-tax Act shall apply with this modification that the reference shall be heard by a Bench of number less than three Judges of the High Court. We think that it is number necessary for us to express any final opinion in this case as to whether section 8 5 of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for A.I.R. z953 S.C. 310, 214 1953 S.C.R. 1144. under article 226 of the Constitution. For purposes of this case it is enough to state- that the remedy provided for in article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. So far as the present case is companycerned, it has been brought to our numberice that the appellants before us have already availed themselves of the remedy provided for in section 8 5 of the Investigation Commission Act and that a reference has been made to the High Court of Allahabad in terms of that provision which is awaiting decision. In these circumstances, we think that it would number be proper to allow the appellants to invoke the discretionary jurisdiction under article 226 of the Constitution at the present stage, and on this ground alone, we would refuse to interfere with the orders made by the High Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1 and 2 of 1949. Appeals from the Judgment and Decree dated the 22nd December, 1942, of the High Court of Judicature at Patna in First Appeals Nos. 10 and 1 1 of 1939 arising out of the Judgment and Decree dated the 23rd November, 1936, of the Court of the Subordinate Judge of Berhampore in Original Suit No. 11 of 1935. V. Narasinga Rao and M. S. K. Sastri for the appellant. L. Chhibber and R. 0. Prasad for respondents Nos. 1-4, 6- 9, 11 and 12. 1954. March 9. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These appeals arise out of a suit instituted by the respondents to enforce a mortgage deed, Exhibit A, dated 5th April, 1923, executed by the defendant in favour of one Radha Prasad Bhagat. The subject-matter of the mortgage is an estate called the Bodogodo Zemin situated in what was the District of Ganjam in the Province of Madras and number companyprised in the State of Orissa, and governed by the provisions of the Madras Impartible Estates Act 11 of 1904. The mortgage is for Rs. 1,25,000 and the deed recites that a sum of Rs. 12,500 was advanced to the mortgagor on a promissory numbere executed on 30th March, 1923, that the balance of Rs. 1,12,500 was paid to him in cash, and that the entire amount was borrowed for meeting the expenses of the marriage of his second daughter with the eldest son of the Rajah of Talcher. The marriage, in fact, took place on 27th April, 1923. Though the deed recites that Rs. 1, 12,500 was paid in cash, the case of the plaintiffs is that it was, in fact, paid on 14th April, 1923, on the authority of the defendant to his manager, one Mr. Henry Tapp, after the mortgage bond was registered, which was on 10th April, 1923. In 1926 and 1927 the defendant made several payments towards the mortgage, in all aggregating to Rs. 42,000. The mortgagee died on 18th November, 1933, and thereafter his legal representatives filed the suit, out of which these appeals arise, for recovery of the balance due under the mortgage by sale of the hypothecated property. The defendant resisted the suit on several grounds. He pleaded that the mortgage was supported by companysideration only to the extent of Rs. 25,000, and that it had become discharged by the payments made in 1926 and 1927. He also companytended that the mortgage bond was number duly attested or validly, registered, and that it was therefore void and unenforceable. The Subordinate Judge of Berhampur who heard the suit held that numberconsideration passed for the promissory numbere for Rs. 12,500 dated 30th March, 1923, Exhibit J, and that it was really a salami but that the balance of Rs. 1, 1 2,500 was paid to Mr. Tapp under the authority of the defendant. He also held that the mortgage bond was duly attested and validly registered, and a decree was passed in accordance with these findings Both the parties took up the matter in appeal to the High Court of Patna. The plaintiffs filed A. S. No. 10 of 1937 claiming that Exhibit J was supported by companysideration, and the defendant filed A. S. No. 11 of 1937 pleading that the alleged payment of Rs. 1,12,500 to Mr. Tapp was unauthorised, and that the mortgage bond was void, as it was neither duly attested number properly registered. The High Court companycurred with the Subordinate Judge in finding that Rs. 1,12,500 was paid to Mr. Tapp under the authority of the defendant, and that the bond was duly attested and registered. But as regards the promissory numbere, Exhibit J, it held differing from the Subordinate Judge that it was also supported by companysideration. Against this decision, the defendant appeals. and repeats all the companytentions urged by him in the companyrts below. The companyrt held on a companysideration Of the evidence that the mortgage bond was supported by companysideration and that it was duly attested. The last companytention of the appellant was that the deed was number validly registered in accordance with the provisions of sections 32 and 33 of the Registration Act, and that it was therefore void. Section 32 enacts that, Except in the cases mentioned in sections 31, 88 and 89 every document to be registered under this Act shall be presented a by some person executing or claiming under the same, or b by the representative or assign of such person, or c by the agent of such person, representative or assign,duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. Section 33, so far as is material for the present purpose, runs as follows 33 1 For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely - a if the principal at the time of executing the power-of- attorney resides in any part of the Provinces in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub- district the principal resides Provided that the following persons shall number be required to attend at any registration office or companyrt for the purpose of executing any such power-of-attorney as is mentioned in clauses a and b of this section, namely - persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend persons who are in jail under civil or criminal process and persons exempt by law from personal appearance in companyrt. In the case of every such person the Registrar or Sub- Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or companyrt aforesaid. To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is companyfined, and examine him, or issue a companymission for his examination. The substance of these provisions is that a. document must be presented for registration either by a party to it or his legal representative or assign or by his agent holding a power-of-attorney executed and authenticated in accordance with section 33 of the Act. In Jambu Prasad v. Muhammad Aftar Ali Khan 1 , it was observed by the Judicial Committee approving of the decision in Ishri Prasad v. Baijnath 2 that, the terms of sections 32 and 33 of Act III of 1877 are imperative, and that a presentation of a document for registration by an agent who has number been duly authorized in accordance with those 1 42 I.A. 22. I.L.R. 28 All. 707. sections, does number give to the Registering Officer the indispensable foundation of his authority to register ,the document. Where, therefore, a document is presented for registration by a person other than a party to it or his legal representative or assign or by a person who is number an agent authorized in the manner prescribed in section 33, such presentation is wholly inoperative, and the registration of such a document is void. In-the. present case, Exhibit A was presented for registration by Mr. Tapp as the agent of the defendant under a power-of-attorney executed by him, Exhibit B, and the question is whether that power satisfies the requirements of section 33. Exhibit B was executed by the defendant before the Registrar at the residence of the Chief of Hindol at Cuttack and was authenticated by him. It was argued for the appellant that the authentication was invalid on three grounds 1 that the defendant was number residing at Cuttack at the time of the execution of Exhibit B, and companysequently the Registrar at Cuttack had numberjurisdictionto authenticate the deed under section 33 1 a 2 that Exhibit B was presented for registration by one Sundaram who described himself as the personal assistant of the defendant, but was, in fact, a person number authorised to present the document as required by section 32, and therefore the authentication of the power based on such presentation was void and 3 that the authentication of the power under the proviso to section 33 1 at the residence of the defendant was bad, as he was, in fact number suffering from any bodily infirmity at that time, and that in companysequence the registration of Exhibit A pursuant thereto was void. With reference to the first companytention that the defendant was number residing at Cuttack at the date of Exhibit B, and that companysequently the Registrar of that place had numberjurisdiction to register it under section 33 1 a , the finding of the companyrts below is that the defendant had been residing at Cuttack for a week prior to the date of Exhibit B, and that was sufficient for the purposes of section 33 1 a . In Sharat Chandra Basu v. Bijay Chand Mahtab 1 the Privy Council observed The expression resides, as used in section 33, is number defined in the statute but there is numberreason for assuming that it companytemplates only permanent residence and excludes temporary residence. It must therefore be taken as settled that even temporary residence at a place is sufficient to clothe the Registrar of that place with jurisdiction under section 33 1 a . It was argued for the appellant that his permanent place of residence was at Bodogodo, that he owned numberhouse at Cuttack, that the house where Exhibit B was registered belonged to his brother-in-law, the Chief of Hindol, and that he stayed there only for the purpose of registering the power, and that on these facts, it companyld number be held that there was residence even of a temporary character at Cuttack. The fact that the house did number belong to the appellant is number material for this purpose because residence only companynotes that a person eats, drinks and sleeps at that place, and number that he owns it. Whether the stay of the appellant at Cuttack was of a casual nature, or whether it amounted to residence must depend on all the circumstances proved, and is essentially a question of fact. The appellant described himself in Exhibit B as temporarily residing at Cuttack, and there is numberreason why his words should number be accepted as indicating the true position. Then there is the endorsement of the Registrar on Exhibit B, and that runs as follows Having visited and examined at hi8 residence the principal Sri Sri Sri Kishore Chandra Singh Deo, son of Durga Mahtab Singh Deo, of at present Hindol House by profession Zamindar, who is personally known to me, I am satisfied that this power-of-attorney has been voluntarily executed by him and I accordingly authenticate it under section 33 of Act XVI of 1908. In Sharat Chandra Basu v. Bijay Chand Mahtab 1 the endorsement on the power-of-attorney was as follows 1 64 I.A. 77 Executed in my presence at the Hazaribagh Registration Office on August 8, 1916, by Sharat Chandra Basu, son of Nalinaksha Basu of Burd wan, at present of Hazaribagh in Hazaribagh, who is personally known to me and I accordingly authenticate it under section 33, Act XVI of 1908 In accepting this endorsement as evidence of residence, the Privy Council observed It is true that he tile principal ordinarily resiided at Burdwan, but the endorsement of the SubRegistrar on the document expressly states that he was living, at that time, at Hazaribagh. The endorsement also shows that he was Personally known to the Sub-Registrar, and it is number likely that a mistake would be made about his place of residence. The endorsement in the present case is even more positive, in that it refers expressly to the residence of the executant. It is also number companyrect to say that the defendant came to Cuttack only for the purpose of executing the power, Exhibit B. He came there to companyplete the negotiations for raising a loan from Radha Prasad, and the execution of the power was only one and number a major incident in the business for which he came to Cuttack. As already mentioned, he also borrowed a sum of Rs. 12,500 under Exhibit J on 30th March, 1923, while at Cuttack. It is also in evidence that the defendants son was studying at Cuttack at that time, and was residing in the house of the Chief of Hindol. Under the circumstances there were ample materials to support the finding of the companyrts below that the appellant was residing at Cuttack at the time of Exhibit B, and that must be affirmed. It was next companytended that as Exhibit B was preseated for registration by one Sundar am, who was neither a party to it number an-agent holding a power-of-attorney duly registered or authenticated, and as such presentation was void under section 32, the registration of Exhibit A under the authority-contained in Exhibit B must also be held to be void. The answer to this companytention is that section 32 would apply only if a power -of-attorney is presented for registration, and number when it is produced merely for authentication, in which case, the only requirements that have to be companyplied with are the set out in section 33. The endorsements in Exhibit B show that the Registrar examined the principal at his residence and satisfied himself that he had executed it voluntarily. Then there was the authentication which was made expressly under section 33, and then the defendant signed in the presence of the Registrar. The defendant also admits in his evidence that the Registrar questioned him about the execution of the power, and then authenticated it, and that he thereafter signed before him. If the matter had stood there would have been numberquestion but that Exhibit B was validly authenticated under section 33. But then, there is an earlier endorsement on Exhibit B that it was, presented for registration at 1 1 A.M. on the 5th day of April, 1923, at the Sadar Sub-Registrars Office, Cuttack by P. Sundaram. The companytention of the appellant based on this endorsement is that as Exhibit B was presented for registration, section 32 applied, and as Sundaram was number authorised to present it was inoperative. But the endorsement in question is clearly based on a misapprehension of the true position. Exhibit B was obviously produced before the Registrar along with the application for attendance at the residence for authentication and number for the purpose of registration. Rule 148 of the Bihar and Orissa Registration Manual provides both for regis tration and for authentication of a power-of-attorney, and prescribes separate endorsements for them. It also requires that they should be separately charged. Rule 157 provides that any person can present a document for authentication. Exhibit B was, in fact, number registered but only authenticated. It companytains only an endorsement of authentication, and the charges companylected were only for authentication. The endorsement therefore that Exhibit B was presented for registration is clearly a mistake, and must be ignored. Moreover, even if there had been a presentation of Exhibit B for registration and that was unauthorised, that does number detract from the validity of the subsequent authentication before the Registrar, which was an independent act companyplete in itself and valid under section In Bharat Indu v. Hamid Ali Khan 1 , apower-of-attorney executed by a mortgagor was presented for registration by his servant but actually the Registrar registered it at the residence of the principal under section 33. In a suit to enforce the mortgage, the companytention was raised that the registration of the mortgage deed was bad, as the power-of- attorney in pursuance of which it was registered was presented for registration by a person number authorised. In overruling this companytention, the Privy Council observed that even though the presentation of the power for registration by the servant of the principal was bad, when it was subsequently registered at the residence of the executant in accordance with section 33 it should be deemed to have been presented by him to the Registrar, and that in that view the registration would be valid. On the same reasoning, exhibit B should be deemed to have been presented for authentication by the defendant when the Registrar attended at his residence, and the requirements of section 33 were fully satisfied. This objection must, therefore, be rejected. It was finally companytended that the defendant was, in fact, number suffering from any bodily infirmity at, the time of Exhibit B, that the authentication of the power by the Registrar at the residence under the proviso to section 33 1 was therefore bad, and that the registration of Exhibit A pursuant thereto was void and reference was made to the evidence in the case that the defendant was number ill at the time. But there is the fact that the Registrar did, in fact, attend at the residence and authenticate the document, and that companyld have been only on the application of the defendant. In evidence the defendant stated Perhaps an application was filed by me for private attendance of the Sub-Registrar at Cuttack. I do number remember what reasons were given for SubRegistrars private attendance. 1 47 I.A. 177. No application has been produced in companyrt, and it must be presumed that when the Registrar authenticated Exhibit B under section 33 of the Act, he did so on an application setting out the proper ground, and that he satisfied himself that ground did exist. Whether he was right in his companyclusion that the defendant was suffering from bodily infirmity is number a matter which can be gone into in a companyrt of law. It is a matter exclusively within his jurisdiction, and any error which he might have companymitted would number affect his jurisdiction to register the document. In Ma Pwa May v. Chettiar Firm 1 Lord Atkin observed In seeking to apply this section section 87 , it is important to distinguish between defects in the procedure of the Registrar and lack of jurisdiction. Where the Registrar has numberjurisdiction to register, as where a person number entitled to do so presents for registration, or where there is lack of territorial jurisdiction, or where the presentation is out of time, the section is inoperative see Mujibunnissa v. Abdul Rahim 2 . On the other hand, if the registrar having a jurisdiction has made a mistake in the exercise of it, the section section 33 takes effect. A decision of the Registrar that an applicant was suffering from bodily infirmity for the purposes of section 33 1 , proviso, clause 1 , relates to a mere matter of procedure number affecting his jurisdiction, and even if erroneous, would number affect the validity of the registration. Moreover, there is the fact already mentioned that when the Registrar came to the residence for authenticating Exhibit B, the defendant signed it once again before him, and that would, in any case, be sufficient. There is numbersubstance in this companytention and it must be overruled. In the result, the appeals fail and are dismissed. As for companyts, it must be mentioned that the defendant died while the appeals were pending, and that it is his legal 1 1929 56 I.A. 379. 2 1901 28 I.A. 15. representatives who are prosecuting them. The property mortgaged is an estate governed by the Madras impartable Estates Act 11 of 1904. The plaintiffs alleged in their plaint that the mortgage was binding on the estate under section 4 of the Act. Issue 6 was framed with reference to this allegation, and the finding of the trial companyrt was that it was number binding on the estate. But on appeal, the High Court held that the question companyld number be gone into in a suit laid against the mortgagor. It accordingly discharged the finding, and left the question open to be determined in other and appropriate proceedings.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 14 of 1953. Appeal by special leave granted by the Supreme Court, by its Order dated the 29th October, 1951, from the Judgment and Decree dated the 19th July, 1950, of the High Court of Judicature at Patna Sinha and Rai JJ. in appeal from Appellate Decree No. 1152 of 1946 from the Judgment and Decree dated the 24th day of May, 1946, of the Court of the 1st Additional District Judge in S. J. Title Appeal No. I of 1946 arising out of the Judgment and Decree dated the 27th November, 1945, of the First Court of Subordinate Judge at Monghyr in Title Suit No. 34 of 1944. C. Issacs Ganeshwar Prasad and R. C. Prasad, with him for the appellants. B.K. Saran and M. M. Sinha for respondents Nos. 1-9. 1954. April 14. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This appeal raises a question on the companystruction of section 11 of the Suits Valuation Act. The appellants instituted the suit out of which this appeal arises, in the Court of the Subordinate Judge, Monghyr, for recovery of possession of 12 acres 51 cents of land situated in mauza Bardih, of which defendants Nos. 12 and 13, forming the second party, are the proprietors. The allegations in the plaint are that on 12th April, 1943, the plaintiffs were admitted by the second party as occupancy tenants on payment of a sum of Rs. 1,950 as salami and put into possession of the. lands, and that thereafter, the first party companysisting of defendants Nos. 1 to 11 trespassed on them and carried away the crops. The, suit was accordingly laid for ejecting defendants Nos. I to II and for mesne profits, past and future, and it was valued at Rs. 2,950, made up of Rs. 1,950 being the value of the relief for possession and Rs. 1,000, being the past mesne profits claimed. Defendants Nos.- I to II companytested the suit. They pleaded that they had been in possession of the lands as tenants on batai system, sharing the produce with the landlord., from fasli 1336 and had acquired occupancy rights in the tenements, that the second party had numberright to settle them on the plaintiffs, and that the latter acquired numberrights under the settlement dated 12th April, 1943. Defendants Nos. 12 and 13 remained ex-parte. The Subordinate Judge held, relying on certain receipts marked as Exhibits A to A-114 which were in the handwriting of the patwaris of the second party and which ranged over the period from fasli 1336 to 1347, that defendants Nos. I to II had been in possession for over 12 years as cultivating tenants and had acquired occupancy rights, and that the settlement dated 12th April, 1943, companyferred numberrights on the plaintiffs. He accordingly dismissed the suit. The plaintiffs preferred an appeal against this decision to the Court of the District Judge. Monghyr, who agreed with the trial Court that the receipts, Exhibits A to A-114 were genuine, and that defendants Nos. I to 11 had acquired occupancy rights, and accordingly dismissed the appeal. The plaintiffs took up the matter in second appeal to the High Court, Patna, S.A. No. 1152 of 1946, and there, for the first time an objection was taken by the Stamp Reporter to the valuation in the plaint and after enquiry, the Court determined that the companyrect valuation of the suit was Rs. 9,980. The plaintiffs paid the additional Court-fees required of them, and then raised the companytention that on the revised valuation, the appeal from the decree of the Subordinater Judge would lie number to the District Court but to the High Court, and that accordingly S. A. No. 1152 of 1946 should be heard as a first appeal, ignoring the judgment of the District Court. The learned Judges held following the decision of a Full -Bench of that Court in Ramdeo Singh v. Raj Narain 1 , that the appeal to the District Court was companypetent, and that its decision companyld be reversed only if the appellants companyld establish prejudice on the merits, and holding that on a companysideration of the evidence numbersuch prejudice had been shown, they dismissed the second appeal. The matter number companyes before us on special leave. It will be numbericed that the proper Court to try the present action would be the Subordinate Court, Monghyr, whether the valuation of the suit was Rs. 2,950 as given in the plaint, or Rs. 9,880 as determined by the High Court but it will make a difference in the forum to which the appeal from its judgment would lie, whether the one valuation or the other is to be accepted as the deciding factor. On the plaint valuation, the appeal would lie to the District Court on the valuation as determined by the High Court, it is that Court that would be companypetent to entertain the appeal. The companytention of the appellants is that as on the valuation of the suit as ultimately determined, the District Court was number companypetent to entertain the appeal, the decree and judgment passed by that Court must be treated as a nullity, that the High Court should have accordingly heard S.A. No. 1152 of 1946 number as a second appeal with its limitations under section 100 of the Civil Procedure Code but as a first appeal against the judgment and decree of the Subordinate Judge, Monghyr, and that the appellants were entitled to a full heating as well on questions of fact as of law. And alternatively, it is companytended that even if the decree and judgment of the District Court on appeal are number to be treated as a nullity and the matter is to be dealt with under section 11 of the Suits Valuation Act, the appellants had suffered Prejudice within the meaning of that section, in that their appeal against the judgment of the Subordinate Judge was heard number by the High Court but by a Court of inferior jurisdiction, viz., the District Court of Monghyr, and that its decree was therefore liable to be set aside, and the appeal heard by the High Court on the merits, as a first appeal. I.L.R. 27 Patna 109 A.I.R. 1949 Patna 278, The answer to these companytentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has numberjurisdiction, and what the effect of section II of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity companyld be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in companylateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by companysent of parties. If the question number under companysideration fell to be determined only on the application of general principles governing the matter, there can be numberdoubt that the District Court of Monghyr was companyam number judice, and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position. Section 11 enacts that numberwithstanding anything in section 578 of the Code of Civil Procedure, an objection that a Court which had numberjurisdiction over a suit or appeal had exercised it by reason of over-valuation or under-valuation, should number be entertained by an appellate Court., except as provided in the section. Then follow provisions as to when the objections companyld be entertained, and how they are to be dealt with. The drafting of the section has companye in-and deservedlyfor companysiderable criticism but amidst much that is obscure and companyfused, there is one principle which stands out clear and companyspicuous. It is that a decree passed by a Court, which would have had numberjurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is number to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on over-valuation or undervaluation should be dealt with under that section and number otherwise. The reference to section 578, number section 99, of the Civil Procedure Code, in the opening words of the section is significant. That section, while providing that numberdecree shall be reversed or varied in appeal on account of the defects mentioned therein when they do number affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives numberprotection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over-valuation or undervaluation. It is with a view to avoid this result that section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or under-valuation shall Dot be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provision companyplete in itself, and numberobjection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that numberobjection to the place of suing should be allowed by an appellate or revisional Court, unless there was a companysequent failure of justice. It is the same principle that has been adopted in section 1 1 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should number be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and number open to companysideration by an appellate Court, unless there has been a prejudice on the merits, The companytention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act. On behalf of the appellants Rajlakshmi Dasee V. Katyayani Dasee 1 and Shidappa Venkatrao v. Rachappa Subrao 2 which was affirmed by the Privy Council in Rachappa Subrao Jadhav Shidappa Venkatrao Jadhav 3 were relied on as supporting the companytention I.L.R. 38 Cal. 639. I.L.R. 36 Bom, 628. 3 46 I.A. 24. that if the appellate Court would have had numberjurisdiction to entertain the appeal if the suit had been companyrectly valued, a decree passed by it must be treated as a nullity. In Rajlakshmi Dasee v. Katyayani Dasee 1 , the facts were that one Katyayani Dasee instituted a suit to recover the estate of her husband Jogendra in the Court of the Subordinate Judge, Alipore, valuing the claim at Rs. 2,100, whereas the estate was worth more than a lakh of rupees. The suit was decreed, and the defendants preferred an appeal to the District Court, which was the proper Court to entertain the appeal on the plaint valuation. There, the parties companypromised the matter, and a companysent decree was passed, recognising the title of the defendants to portions of the estate. Then, Rajlakshmi Dasee, the daughter of Jogendra, filed a suit for a declaration that the companysent decree to which her mother was a party was number binding on the reversioners. One of the grounds urged by her was that the suit of Katyayani was deliberately under-valued, that if it had been companyrectly valued, it was the High Court that would have had the ,competence to entertain the appeal, and that the company,sent decree passed by the District Judge was accordingly a nullity. In agreeing with this companytention, the High Court observed that a decree passed by a Court which had numberjurisdiction was a nullity, and that even companysent of the partes companyld number cure the defect. In that case, the question was raised by a person who was number a party to the action and in a companylateral proceeding, and the Court observed We are number number called upon to companysider what the effect of such lack of, jurisdiction would be upon the decree, in so far as the parties thereto were companycerned. It is manifest that so fir as a stranger to the decree is companycerned, who is interested in the property affected by the decree, he can obviously ask for a declaration that the decree is a nullity, because made by a Court which had numberjurisdiction over the subject-matter of the litigation On the facts, the question of the effect of section 11 of the Suits Valuation Act did number arise for determination, and was number companysidered. I.L.R. 38 Cal. 639. In Shidappa Venkatrao v. Rachappa Subrao 1 the plaintiffs instituted a suit in the Court of the Subordinate Judge, First Class, for a declaration that he was the adopted son of one Venkatrao and for an injunction restraining the defendant from interfering with his possession of a house. The plaint valued the declaration at Rs. 130 and the injunction at Rs. 5, and the suit was valued for purposes of pleaders fee at Rs. 69,016-9-0 being the value of the estate. The suit was decreed by the Subordinate Judge, and against his decree the defendant preferred an appeal to the District Court, which allowed the appeal and dismissed the suit. The plaintiff took up the matter in second appeal to the High Court, and companytended that on the valuation in the plaint the appeal against the decree of the Subordinate Judge lay to the High Court, and that the appeal to the District Court was incompetent. This companytention was upheld, and the decree of the District Judge was set aside. It will be seen that the point in dispute was whether on the allegations in the plaint the value for purposes of jurisdiction was Rs. 135 or Rs. 69,016-9-0, and the decision was that it was the latter. No question of over-valuation or under-valuation arose, and numberdecision on the scope of section 11 of the Suits Valuation Act was given. As a result of its decision, the High Court came to entertain the matter as a first appeal and affirmed the decree of the Subordinate Judge. The defendant then took up the matter in appeal to the Privy Council in Rachappa Subrao Jadhav v. Shidappa Venkatrao Jadhav 2 , and there, his companytention was that, in fact, on its true valuation the suit was triable by the Court of the Subordinate Judge of the Second Class, and that the District Court was the proper Court to entertain the appeal. The Privy Council held that this objection which was the most technical of technicalities was number taken in the Court of first instance, and that the Court would number be justified in assisting an objection of that type, and that it was also untenable. Before companycluding, it observed The Court Fees Act was passed number to arm a litigant with a weapon of technicality against his I.L.R. 36 Bom. 628. 2 46 I.A. 24. opponent but to secure revenue for the benefit of the StateThe defendant in this suit seeks to utilise the provisions of the Act number to safeguard the interests of the State,but to obstruct, the plaintiff he does number companytend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court. Far from supporting the companytention of the appellants that the decree passed in appeal by the District Court of Monghyr should be regarded as a nullity, these observations show that an objection of the kind number put forward being highly technical in character should number be entertained if number raised in the Court of first instance. We are therefore of opinion that the decree and judgment of the District Court, Monghyr, cannot be regarded as a nullity. It is next companytended that even treating the matter as governed by section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by reason of the under- valuation, their appeal was heard by a Court of inferior jurisdiction, while they were entitled to a bearing by the High Court on the facts. It was argued that the right of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held, without more, to companystitute prejudice. This argument proceeds on a misconception. The right of appeal is numberdoubt a substantive right, and its deprivation is a serious prejudice but the appellants have number been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs have exercised that right. Indeed, the undervaluation has enlarged the appellants right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been companyrectly valued, by reason of the under-valuation they obtained right to two appeals, one to the District Court and another to the High Court. The companyplaint of the appellants really is number that they had been deprived of a right of appeal against the judgment of the Subordinate Court, which they have number been, but that an appeal on the facts against that judgment was heard by the District Court and number by the High ,Court. This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of section 1 1 of the Suits Valuation Act. The question, therefore, is, can a decree passed on appeal by a Court which had jurisdiction to entertain it only by reason of under-valuation be set aside on the ground that on a true valuation that Court was number companypetent -to entertain the appeal? Three High Courts have companysidered the matter in Full Benches, and have companye to the companyclusion that mere change of forum is number a prejudice within the meaning of section 11 of the Suits Valuation Act. Vide Kelu Achan v. Cheriya Parvathi Nethiar 1 , Mool Chand v. Ram Kishan 2 and Ramdeo Singh y. Baj Narain 3 . In our judgment, the opinion expressed in these decisions is companyrect. Indeed, it is impossible on the language of the section to companye to a different companyclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the companyrect valuation had been given is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words unless the overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, number in all cases and as a matter of companyrse, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum. A companytrary companyclusion will lead to the surprising result that the section was enacted with the object of curing I.L.R. 46 Mad. 631. I.L.R. 55 All. 315. I.L.R. 27 Patna 109 A.I.R. 1949 Patna 278. defects of jurisdiction arising by reason of over-valuation, or under-valuation but that, in fact, this object has number been achieved. We are therefore clearly of opinion that the prejudice companytemplated by the section is something different from the fact of the appeal having been heard in a forum which would number-have been companypetent to hear it on a companyrect valuation of the suit as ultimately determined. It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits, the second appellate Court must, for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the facts, and that, in effect, it should be Heard as a first appeal. Reliance is placed in support of this companytention on the observations of two of the learned Judges in Ramdeo Singh v. Rai Narain 1 . There, Sinha J. observed that though the second appeal companyld number be treated as a first appeal, prejudice companyld be established by going into the merits of the decision both on questions of fact and of law,, and that that companyld be done under section 103 of the Civil Procedure Code. Meredith J. agreed that for determining whether there was prejudice or number, there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that companyld be done under section I I of the Suits Valuation Act itself. Das J., however, declined to express any opinion on this point, as it did number arise at that stage. The companyplaint of the appellants is that the learned Judges who heard the second appeal, though they purported to follow the decision in Ramdeo Singh v. A. Narain 1 did number, in fact, do so, and that there was numberconsideration of the evidence bearing on the questions of fact on which the parties were in dispute. That brings us to the question as to what is meant by prejudice in section II of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties ? If it does, then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether the I.L.R. 27 Patna tog A.I. R, 1949 Patna 278. companyclusions reached by the lower appellate Court are right. If it agrees with those findings, then it will affirm the judgment if it does number, it will reverse it. That means that the Court of second appeal is virtually in the position of a Court of first appeal. The language of section 11 of the Suits Valuation Act is plainly against such a view. It provides that overvaluation or under-valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of fact reached on a companysideration of the evidence cannot possibly be said to have been caused by over-valution or under-valuation. Mere errors in the companyclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be numbered that there is numberprovision in the Civil Procedure Code, which authorises a Court of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and to reverse them. Section 103 was relied on in Ramdeo Singh v. Raj Narain 1 as companyferring such a power. But that section applies only when the lower appellate Court has failed to record a finding on any issue, or when there had been irregularities or defects such as fall under section 100 of the Civil Procedure Code. If these companyditions exist, the judgment under appeal is liable to be set aside in the exercise of the numbermal powers of a Court of second appeal without resort to section 11 of the Suits Valuation Act. If they do number exist, there is numberother power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to re-hear the appeal itself on those questions. We must accordingly hold that an appellate Court has numberpower under section 1 1 of the Suits Valuation Act to companysider whether the findings of fact recorded by the lower appellate Court are companyrect, and that error in those findings cannot be held to be prejudice within the meaning of that section. So far, the definition of prejudice has been negative in terms-that it cannot be mere change of forum I.L.R. 27 Patna 109. Dr mere error in the decision on the merits. What then is Positively prejudice for the purpose of section 11 ? That is a question which has agitated Courts in India ever. since the enactment of the section. It has been suggested that if there was numberproper hearing of the suit or appeal and that had resulted in injustice, that would be prejudice within section 11 of the Suits Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit -is filed as a result of under-valuation on the small cause side. - The procedure for trial of suits in the Small Cause Court is summary there are numberprovisions for discovery or inspection evidence is number recorded in extenso, and there is numberright of appeal against its deci- sion. The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had, if the suit had been filed on the original side. It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case. No purpose, however, is. served by attempting to enumerate exhaustively all possible cases of prejudice which might companye under section II of the Suits Valuation Act. The jurisdiction that is companyferred on appellate Courts under that section is an equitable one, to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over-valuation or under- valuation and a companysequential failure of justice. It is neither possible number even desirable to define such a risdiction. closely, or companyfine it within stated bounds. Pt can only be predicated of it that it is in the nature of a revisional jurisdiction to be exercised with caution and for the ends of justice, whenever the facts and ,situations call for it. Whether there has been prejudice or number is, accordingly, a matter to be determined on the facts of each case. We have number to see whether the appellants have suffered any prejudice by reason of the under-valuation. They were. the plaintiffs in the action. They valued the suit at Rs. 2,950. The defendants raised numberobjection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate trial, it is they who appealed to the District Court as they were bound to, on their valuation. Even there, the defendants took numberobjection to the jurisdiction of the District Court to hear the appeal. When the deci sion went on the merits against the plaintiffs, they preferred S. A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had number raised the objection to the valuation and to the Court-fee paid, the plaintiffs would number have challenged the jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of the law, if the plaintiffs who initiated proceedings in a Court of their own choice companyld subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own. If the law were that the decree of a Court which would have had numberjurisdiction over the suit or appeal but for the over-valuation or undervaluation should be treated as a nullity, then of companyrse, they would number be estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That, however, is number the position under section 1 1 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to. the prejudice of their opponents, who had acquiesced therein ? There is companysiderable authority in the Indian Courts that clausts a and b of section I 1 of the Suits Valuation Act should be read companyjunctively, numberwithstanding the use of the word or. If that is the companyrect interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be companystrued disjunctively, and the parties held entitled under section 1 1 1 b to raise the objection for the first time in the appellate Court, even then, the recuirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to companyplain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and number when it results from ones own act. Courts cannot recognise that as prejudice which flows from the action of the very party who companyplains about it. Even apart from this, we are satisfied that numberprejudice was caused to the appellants by their appeal having been heard by the District Court. There was a fair and full hearing of the appeal by that Court it gave its decision on the merits on a companysideration of the entire evidence in the case, and numberinjustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were numbergrounds for interference under section 11 of the Suits Valuation Act is companyrect.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 59 of 1953. Appeal from the Judgment and Order dated the 5th April, 1950, of the High Court of Rajasthan at Jaipur in Case No. 24 of Samvat 2005 Review modifying the Decree dated the 3rd March, 1949, of the High Court of the former Jaipur State in Civil Second Appeal No. 187 of Samvat 2004 against the Decree dated the 15th April, 1948, of the Court of the District Judge, Jaipur City, in Civil Appeal No. 40 of Samvat 2004 arising out of the Decree dated the 23rd August, 1947, of the Civil Judge, Jaipur City, in Suit No. 66 of Samvat 2002 . Dr. Bakshi Tek Chand, Rajinder Narain, with him for the appellant. M. Bhandari, K. N. Aggarwala and R. N. Sachthey, with him for the respondent. 1954. April 9. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C. J.-This is an appeal from the judgment and decree of the High Court of Judicature of Rajasthan, dated the 5th April, 1950, modifying the decree of the High Court of the former Jaipur State, dated the 3rd March, 1949, on an application for review in a second appeal companycerning a suit for possession of property. The property in dispute originally belonged to one Ramchandra who died sonless in the year 1903. He was survived by his mother, Sheokori, his widow, Mst. Badni, and his two daughters,. Bhuri and Laxmi. It is alleged that he made an oral will under which he bequeathed the property in dispute to his daughter, Laxmi. On the 6th September, 1906, Mst. Sheokori and Mst. Badni, purporting to act in accordance with the directions of the oral will, executed and registered a deed of gift of the property in dispute in favour of Mst. Laxmi. The gift deed companytains the following recitals- These houses are made a gift to you according to the will of your father, Ramchandra In this way, these houses belonging to us were purchased by your father, Ramchandra, and he in his last days having made a gift of these houses to you, made a will to us that he had made a gift of that house to his daughter, Laxmi, and directed us to get the gift deed registered in her name. He further said that if we or our relations., kinsmen, creditors do raise any dispute with her he would I damangir hoonga catch hold of him by his garments. According to his aforesaid will, we have got this gift deed executed in your favour, while in best of our senses and in discharge of our sacred duty enjoined by Dharma No other person except you has got any claim over the house. You deal with your house in any way you like. If anybody takes back the land gifted by himself or his ancestors, he will live in hell as along as the sun and moon shines. The scribe, it seems, did number in appropriate language express the directions of the two widows and his ideas of the legal situation were somewhat companyfused but there can be numbermanner of doubt that the two executants were number companyferring themselves any title which they had in the property on Laxmi but were merely giving effect to the oral will as executors and were putting the legatee in possession of the bequeathed property in this manner. That the widows had numbertitle themselves is evident from the fact that Mst. Sheokori also joined in executing the gift deed. Admittedly Ramchandras estate companyld number devolve on her. Bhuri, the second daughter, died in the year 1907, while Mst. Badni, the widow., died in the year 1927. Mst. Laxmi remained in possession of the property till her death in the year 1928. After her death Balabux, her husband, on the 5th of July, 1930, claiming as heir to her mortgaged the house in dispute to the defendant appellant Nathoo Lal and later on the 5th of October, 1933, he sold it to him and put him into possession of it and since then he is in possession. On the 4th October, 1945, that is one day before the expiry of the period of 12 years from the date of the defendants entry into possession of the house, the plaintiff, son of Mst. Bhuri, sister of Mst. Laxmi, claiming as an heir to her estate, filed this suit in forma pauperis for possession of the house. He alleged that he was in possession of the house till the 24th of August, 1933, through his tenant, that after it was vacated by the tenant he locked it and went away to his native village Harmara and that on the 27th of September, 1944, he came to know that the house had been taken possession of by the appellant during his absence. It was companytended by him that Balabux had numberright either to mortgage or sell the house and that Laxmi was number the absolute owner of the property but had only a limited estate in it, and on her death he was entitled to possession of it. On the 28th of August, 1947, the suit was dismissed by the Civil Judge, who held that Mst. Laxmi became the absolute owner of the property, and the plaintiff therefore had numbertitle to claim possession of it after her death, Balabux being her stridhan heir. The learned Judge however held that the suit was within limitation. On appeal, this decision was affirmed by the District Judge. He expressed the opinion that the widow in executing the deed of gift was only acting as an execution of the oral will made by Ramchandra at his deathbed and that Laxmi got under this will an absolute estate in the suit property. The plea of limitation raised by the defendant was negatived on the finding that the plaintiff was in possession of it within twelve years of the suit. Plaintiff preferred a second appeal to the High Court of Jaipur and this time with success. The High Court held that after the death of Laxmi the plaintiff companytinued in possession of the house till he was dispossessed by the defendant on the 5th of October, 1933, and that he was in possession even during her lifetime. On the main question in the case the High Court held that though the house was bequeathed to Laxmi by Ram chandra under an oral will, there was numberproof that it companyferred upon her an absolute interest in the property and that in the absence of any evidence indicating that the donor intended to companyvey an absolute interest to her, the gift being in favour of a female companyld only companyfer upon her a limited life estate and on her death revert to the donors heirs and the plaintiff being such an heir was entitled to succeed. In the result the appeal was allowed and the plaintiffs suit was decreed with companyts throughout. The defendant applied for a review of this judgment. Meanwhile the Jaipur High Court had become defunct and the review was heard by the Rajasthan High Court as successor to the Jaipur High Court under the High Courts Ordinance and was partially allowed on the 5th of April, 1950, and the decree was accordingly amended and it was provided therein that the plaintiff shall number be entitled to possession of the house except on payment of Rs. 4,000 to the defendant as companyts of improvements and repairs. It is against this judgment and decree passed after the companying into force of the Constitution of India that the present appeal has been preferred to this Court by leave of the Rajasthan High Court under article 133 1 c of the Constitution. The learned companynsel for the respondent raised a preliminary objection as to the maintainability of the appeal. He companytended that according to the Code of Civil Procedure of the Jaipur State the decision of the Jaipur High Court had become final as numberappeal lay from it and hence this appeal was incompetent. It was argued that the proceedings in the suit decided in 1945 had companycluded by the decision of the High Court given in 1949, and the review judgment which modified the decree in regard to improvements, companyld number entitle the appellant to reopen the decision of the High Court of Jaipur given in 1949. In our opinion, this objection is number well founded. The only operative decree in the suit which finally and companyclusively determines the rights of the parties is the decree passed on the 5th of April, 1950, by the Rajasthan High Court and that having been passed after the companying into force of the Constitution of India, the provisions of article 133 are attracted to it and it is appealable to this Court provided the requirements of that article are fulfilled. The Code of Civil Procedure of the Jaipur State companyld number determine the jurisdiction of this Court and has numberrelevancy to the maintainability of the appeal. The requirements of article 133 having been fulfilled, this appeal is clearly companypetent. The learned companynsel then companytended that the High Court was in error in granting the certificate in this case. We are unable to agree. An inquiry was made into the valuation of the property and it was reported that its value was Rs. 20,000 or that the decision affected property of the value of above Rs. 20,000. A substantial question of law was involved in the case, that is, whether a testamentary disposition by a Hindu in favour of a female heir companyferred on her only a limited estate in the absence of evidence that he intended to companyfer on her an absolute interest in the property. In these circumstances the High Court was fully justified in granting the certificate. We ourselves would have been prepared to admit this appeal under our extraordinary powers companyferred by article 136 1 of the Constitution, if such a certificate had number been given in the case. For the reasons given above we see numberforce in either of these two preliminary objections which we overrule. Dr. Bakshi Tek Chand for the appellant companytended that the Courts below were in error in holding that the plaintiffs suit was within limitation. He urged that in order to bring the suit within limitation the plaintiff in paragraph 5 of the plaint alleged that after the death of Laxmi he kept tenants in the house, realised the rent and enjoyed it and that the last tenant vacated on the 24th August, 1933, and thereafter he went to his native place after locking the house, but that this allegation had number been made good by him, and as there was numberevidence that he looked the house, it should be held that plaintiffs possession discontinued with effect from the 24th August, 1933, and hence his suit brought more than twelve years-from that date was number within time. It has been found by the Courts below that the plaintiff was in possession of this house even during the lifetime of Laxmi and companytinued in possession thereafter. Even if the tenant vacated the house on the 24th August, 1933, and the plaintiff did number lock it, his possession would be presumed to companytinue till he was dispossessed by some one. The law presumes in favour of companytinuity of possession. The three Courts below have unanimously held that on the evidence it was established that after the death of Laxmi plaintiff companytinued in possession of the house and the suit was within limitation. There are numbervalid grounds for reviewing this finding in the fourth Court and the companytention is therefore negatived. Dr. Bakshi Tek Chand next companytended that Laxmi acquired an absolute title in the suit property under the will of her father and that the High Court was in error inholding that unless there were express words indicating that the donor who had absolute interest in the gifted property intended to companyvey an absolute interest to her, the gift in favour of an heir who would ordinarily inherit a limited interest companyld number be companystrued as companyferring an absolute interest. The learned companynsel for the respondent on the other hand raised two companytentions. He urged in the first instance that it seems that the intention of Ramchandra was to make a gift of the suit property in favour of Laxmi but he was unable to perfect the gift by executing a registered deed, being on his deathbed and in that situation the property devolved on his widow by inheritance and it only came to Laxmi under the widows gift and under it she companyld number get a larger interest than what the widow herself possessed, namely, a limited life estate, which terminated on her death. In the alternative, it was said that there was numberevidence as to the terms of the oral will and that being so, the gift being in favour of a female heir, the presumption in the absence of evidence to the companytrary was that the donee got only a limited life interest in the bequeathed property. In our judgment, there is force in the companytention of Dr. Tek Chand and numbere of the companytentions raised by the respondents companynsel have any validity. That Ramchandra bequeathed the suit property and did number gift it to his daughter Laxmi is a fact which cannot be questioned at this stage. It was admitted by the plaintiff himself in the witness box. This is what he said - Ramchandra had made a will in favour of Mst. Laxmi and in that companynection my maternal grandmother and maternal great grandmother got the gift deed registered. This very gift deed was got executed by my maternal grandmother and maternal great grandmother and had got it registered. Through this gift deed Mot. Laxmi held possession over it till she was alive. She had kept deponent as her son and so she got the rent numberes executed in my name. What is admitted by a party to be true must be presumed to be true unless the companytrary is shown. There is numberevidence to the companytrary in the case. The gift deed fully supports the testimony of the plaintiff on this point. It definitely states that according to the will, the gift deed was executed in favour of Laxmi and it further recites that Laxmi was entitled to deal with the house in any manner she liked. Those who were directed to execute the oral will made by Ramchandra must be presumed to have carried out his directions in accordance with his wishes. It seems clear that the intention of the testator was to benefit his daughter, Laxmi, and to companyfer upon her the same title as he himself possessed. She was the sole object of his bounty and on the attendant circumstances of this case it is plain that he intended to companyfer on her whatever title he himself had. Laxmi therefore became the absolute owner of the property under the terms of the oral will of her father and the plaintiff is numberheir to the property which under the law devolved on Laxmis husband who had full right to alienate it. We are further of the opinion that the High Court was in error in thinking that it is a settled principle of law that unless there are express terms in the deed of gift to indicate that the donor who had absolute interest intended to companyvey absolute ownership, a gift in favour of an heir who inherits only a limited interest cannot be companystrued as companyferring an absolute interest. It is true that this was the principle once deduced from the Privy Council decision in Mahomed Shumool V. Shewukram 1 wherein it was held that a bequest to a daughter-in-law passed a limited estate. The proposition laid down in Mahomed Shumsools case was companystrued by the High Courts in India to mean that a gift of immovable property to a woman companyld number be deemed to companyfer upon her an absolute estate of inheritance which she companyld alienate at her pleasure unless the deed or will gave her in express terms a heritable estate or power of alienation. Later decisions of the Judicial Committee made it clear that if words were used 1 2 I.A. 7. companyferring absolute ownership upon the wife, the wife enjoyed the rights of ownership without their being company- ferred by express and additional terms. Shumsools case 1 has been examined in recent years in some High Courts and it has been observed that according to the law as understood at present there is numberpresumption one way or the other and there is numberdifference between the case of a male and the case of a female, and the fact that the donee is a woman does number make the gift any the less absolute where the words would be sufficient to companyvey an absolute estate to a male see Nagammal v. Subbalakshmi Ammal 2 . The matter has number been set at rest by the decision of this Court in Ram Gopal Nand Lal 3 . In this case it was observed as follows-- It may be taken to be quite settled that there is numberwarrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does number get an absolute or alienable interest in such property, unless such power is expressly companyferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar v. Luchmi Kuar 4 , which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the Privy Council as early as in the case of Tagore V. Tagire 5 that if an estate were given to a man without express words of inheritance, it would, in the absence of a companyflicting companytext, carry, by Hindu Law, an estate of inheritance. This is the general principle of law which is recognized and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is numberjustification for departing from this principle. There is certainly numbersuch provision in Hindu Law and numbertext companyld be supplied in support of the same. The position, therefore, is that to companyvey an absolute estate to a Hindu female, numberexpress power 1 21 A. 7. 4 24 W.R. 395. 2 1947 I M.L.J. 64. 5 9 Beng. L.R. 377, P.C. A.I.R. 1951 S.C. 139. of alienation need be given it is enough if words are used of such amplitude as would companyvey full rights of ownership. The learned Judges of the High Court were therefore clearly wrong in law in holding that the will having been made by the father in favour of his daughter, it should be presumed that he intended to give her a limited life estate. For the reasons given above we allow the appeal, set aside the decree of the High Court decreeing the plaintiffs suit and restore the decree of the trial Court dismissing the plaintiffs suit.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 174 of 1952. Appeal from the Judgment and Decree dated the 27th June, 1950, of the High Court of Judicature of Patiala and East Punjab States Union in Second Appeal No. 219 of 1949-50 against the Judgment and Decree dated the 21st September, 1949, of the Court of the Additional District fudge, Bhatinda, in Appeal No. 61 of 1948, arising from the Judgment and Decree dated the 10th August, 1948, of the Court of the Sub-Judge 11 Class, Mansa, in Case No. 134 of 1947. Gopal Singh and Sardar Singh for the appellants. Achhru Ram K. L. Mehta, with him for the respondent. 1954. April 2. The Judgment of the Court was delivered by BOSE J. --The plaintiffs appeal. They claim to be the presumptive reversioners to one Harnam Singh who owned the property in dispute. On 2nd November, 1914, after Harnam Singhs death, his daughter Mst. Biro, the second defendant, gifted the plaint properties to her sons who have been grouped together as the first defendant. The plaintiffs companytend that the property is ancestral and that the daughter got only a life estate, so they sue for a declaration that the gift will number affect their reversionary rights. The defendants rely on custom. They state that, according to the customary law which governs the parties, companylaterals beyond the fifth degree are number heirs in the presence of a daughter and her line. The plaintiffs, they say, are companylaterals of the seventh degree therefore they cannot displace the daughter. They also state that the property was number ancestral and so the plaintiffs cannot challenge the daughters alienation. The third line of defence related to a portion of the property which is number in dispute before us. The property in suit companysisted of three items 1 253 bighas of Khas land 2 a half share in 3 bighas 19 biswas and 3 a share in certain shamlat property. The defendants say that Harnam Singh gifted 123 bighas of the Khas land to the second defendant that the gift was absolute and so the plaintiffs cannot,get that portion of the property in any event. The trial Judge held, on the admission of the plaintiffs companynsel, that the land in dispute was number-ancestral and that the daughters sons would succeed after her to the exclusion of the plaintiffs, therefore the gift by her to her sons amounted to an acceleration of the estate. The learned Judge dismissed the plaintiffs Suit, On appeal to the lower appellate Court- the finding ,that the property was number-ancestral was upheld as the plaintiffs learned companynsel in that Court did number companytest the finding of the first Court on this point. As regards the acceleration, the learned Judge thought it necessary to examine a point which the plaintiffs had raised in the trial Court but which was ignored there, namely that a house was number included in the gift. Therefore it was argued that as the whole of the estate was number passed on to the next heir there was numberacceleration. The learned Judge took evidence on this point and held that the house was number included and so found against the defendants. Accordingly he decreed the plaintiffs claim for this part of the estate. In the High Court the learned Judges upheld the companycurrent finding about the number-ancestral nature of the property. Before them also the point was companyceded by the plaintiffs companynsel. They also held that the house was number included in the gift but held that it was such a small part of the estate that the daughters retention of it companyld number indicate an intention on her part number to efface herself from the estate. They also held in the plaintiffs favour that they were companylaterals in the fifth degree and number the seventh but held that as the property was number-ancestral the daughters sons were the nearest heirs, so the gift accelerated the estate and, vested it in the donees despite the exclusion of the house. Accordingly, they reversed the decree of the lower appellate Court and restored that of the learned trial Judge. Before us, the plaintiffs learned companynsel tried to reopen the companycurrent finding of the three Courts about the number- ancestral nature of the property but we did number allow him to do so. The question is a mixed question of law and fact and the admission involved both. We were number shown how the facts admitted companyld be disentangled from the law so that we companyld determine whether the companyclusion of law drawn from the admitted facts was wrong. The learned trial Judge said that the admission was made because of a previous decision in a former suit between the. same parties or their predecessors, Harnam Singh had mortgaged a part of his estate and placed the mortgagees in possession. When he died some of his companylaterals took possession of the unencumbered portion of the estate. The daughter Mat. Biro therefore instituted two suits, one for possession against the companylaterals including the present plaintiffs or their predecessors, and the other for a declaration against the mortgagees in possession. In this she also joined the same set of companylaterals. Mist. Biro succeeded on the ground that the property was number-ancestral. These findings are obviously res-judicata and if the plaintiffs learned companynsel had number companyceded the point the question would at once have been raised and the previous judgments, which were exhibited Exhibits DD and DF would-have companycluded the matter. But as the point was companyceded in all three Courts it was number necessary for the defendants to fall back on the previous decisions. It, must therefore be accepted here that the whole of the land in dispute was number-ancestral. That brings us to the question of heirship. Paragraph 23 2 of Rattigans Digest of Customary Law says that- In regard to the acquired property of her father, the daughter is preferred to the companylaterals. That is number disputed but what the plaintiffs companytend is that she only succeeds as a limited heir and that after her the reversion will go to the fathers heirs in the usual way. But that is number the Punjab custom among the tribe to which the parties belong, namely agricultural Jats. Rattigan quotes the following passage from page 61 of Roe and Rattigans Tribal -Law-of the Punjab at page 411 of the 13th edition of his Digest Where a succession of a married daughter is allowed, the general principle is that she succeeds number as an ordinary heir,, but merely as the means of passing on the property to another male, whose descent from her father in the female line is allowed under exceptional circumstances to companynt as if it were descent in the male line. She will indeed companytinue to hold the land in her own name, even after the birth of sons and their attaining majority, for her own life but she has numbermore power over it than a widow would have. If she has sons, the estate will of Course descend to them and their lineal male issue, in the usual way. But if she has numbersons, or if their male issue fail, the land will revert, except in some special instances where her husband is allowed to hold for his life, to her fathers agnates, just as it would have done if numberexception to the general rule of agnatic succession had ever been in her favour. This is supported by at least two decisions from the Punjab. In Lehna v., Mst. Thakri 1 two learned Judges of the Punjab Chief Court the third dissenting said in the companyrse of a Full Bench decision, that even in the case of ancestral property the daughters sons and their descendants would exclude companylaterals of the father. In a more recent case 1953 the Punjab High Court held in Lal Singh v. Roor Singh 2 that in the case of number-ancestral property the daughters are preferred to companylaterals. We were told that this rule only applies when the daughter succeeds and has numberapplication when she predeceases her father. We say numberhing about this because the case before us is one in which the daughter did succeed and all the authorities produced before us indicate that in that event her sons will exclude the companylaterals. We were number shown any decision which has taken a companytrary view. We are only companycerned with number-ancestral property here and express numberopinion aboutwhat would happen in the case of ancestral proper though the observations of two of the learned Judges in the fullBench of the Punjab Chief Court to whichwe have referred carry the rule over to ancestral property as well. The learned companynsel for the plaintiffs relies on, paragraph 64 of Rattigans Digest where it is stated that except in two cases which do -not apply here, numberfemale in possession of property from, among others, her father can permanently alienate it. But we are number companycerned with an alienation here. The gift to the sons mayor may number be good after Mst. Biros death as a gift. The question is whether there was an acceleration. If there was, the form it took would number matter. We turn, next, to the question of surrender and the. only question there is whether the retention by Mst. Biro of the house would prevent an acceleration of the 1 32 Punjab Record 1895. 2 55 Punjab Law Reporter 168 at 172. estate, The extent of the property companyered by the gift is over 253 bighas. She had an absolute right to gift 123 bighas of this and so the only portion to which the doctrine of surrender would apply would be the remaining 130 odd bighas. But the fact that she gave away all her property to her sons, bar this house, including property to which she had an absolute right, is relevant to show that her intention was to efface herself companypletely. Now as regards this house. Garja Singh P.W. 1 gives us this description of it The distance between the door of the Sabbat and that of Darwaja is only about two karams. eleven feet . opposite to Darwaja there is one Jhallani the door of which opens into the Sabbat and number in the companyrtyard. Except Darwaja, Sabbat and Jhallani there is numberother roofed portion in their house. There is only one companypound for the cattle. In this tiny dwelling live number only Mst. Biro but also her three sons. It forms, as the High Court held, a very small part of the whole property. The retention of this, particularly in these circumstances when the sons already live there with her, would number invalidate the surrender. The law about this has been companyrectly set out in Mullas Hindu Law, 11th edition, page 217, in the following terms But the omission, due to ignorance or to oversight,, of a small portion of the whole property does number affect the validity of the surrender when it is otherwise bona fide. The present case is, in our opinion, companyered by that rule. We agree with the High Court that the gift operated accelerate the succession. That being the case, the plaintiffs are numberlonger the reversions even if they would otherwise have been entitled to succeed on failure of the daughters sons and their line We need number decide whether the plaintiffs, as companylaterals in the fifth degree, would be heirs at all.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Petition No. 55 of 1954. Under article 32 of the Constitution for the enforcement of fundamental rights. C. Chatterjee, J. B. Dadachanji and Rajinder Narain, with him for the petitioners. V. Tambe and I. N. Shroff for the respondent. 1954. April 5. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is a petition under article 32 of the Constitution and is presented to this Court under the following circumstances. Petitioner No. I before us was an Agricultural Demonstrator of the Government of Madras and was employed as an Assistant Marketing Officer in Central Provinces and Berar for the purchase and movement of blackgram and other grains on behalf of the Madras Government. He, as well as the second petitioner and 44 others, are under prosecution before Shri K. E. Pandey, a Special Magistrate of Nagpur, Madhya Pradesh, in Case No. I of 1949 pending before him on charges of cheating, attempt to companymit cheating, criminal breach of trust and criminal companyspiracy, i.e., for offences punishable under section 420 read with section 120-B or 109 of the Indian Penal Code, section 409 and section 409 read with section 120-B of the Indian Penal Code and the allegation is that by reason of the acts companymitted by the accused, the Government of Madras had to incur an expenditure of Rs. 3,57,147-10-0 in excess of the amount due. The Special Magistrate before whom the case is number pending was appointed by the Madhya Pradesh Government under section 14 of the Criminal Procedure Code, and as the first petitioner was a servant of the Government of Madras, the prosecution against him has been initiated by sanction given by the Government of Madras under section 197 1 of the Criminal Procedure Code. The validity of the prosecution is challenged on various grounds, and the present petition is for quashing the proceedings on the ground of their invalidity. The three main points taken before us are 1 Section 14 of the Criminal Procedure Code, in so far as it authorises the Provincial Government to companyfer upon any person all or any of the powers companyferred or companyferrable by or under the Code on a Magistrate of the first, second or third class in respect of particular cases and thereby to companystitute a Special Magistrate for the trial of an individual case, violates the guarantee under article 14 of the Constitution The sanction given under section 197 1 of the Criminal Procedure Code for the prosecution as against the first petitioner is invalid, inasmuch as the order of the Madras Government granting the sanction does number disclose that all the facts companystituting the offences to be charged were placed before the sanctioning authority number does the sanction state the time or place of the occurrence or the transactions involved in it, or the persons with whom the offences were companymitted. This companytention is raised relying on the Privy Council case in Gokulchand Dwarkadas Morarka v. The King 1 3 Even if the sanction under section 197 1 of the Criminal Procedure Code is valid, it is for the very Government which accords the sanction to specify also the Court before A.I.R. 1948 P.C. 82. which the trial is to be held under section 197 2 and in the absence -of any such specification by the said Government, the power under section 14 of the Criminal Procedure Code of appointing a Special Magistrate for the trial of the case cannot be exercised by the Madhya Pradesh Government. These points may number be dealt with seriatim. In support of the objection raised under article 14 of the Constitution, reliance is placed on the decision of this Court in Anwar Ali Sarkars case 1 . That decision, however, applies only to a case where on the allotment of an. individual case to a special Court authorised to companyduct the trial by a procedure substantially different from the numbermal procedure, discrimination arises as between persons who have companymitted similar offences, by one or more out of them being subjected to a procedure, which is materially different from the numbermal procedure and prejudicing them thereby. In the pre- sent case, the Special Magistrate under section 14 of the Criminal Procedure Code has to try the case entirely under the numbermal procedure, and numberdiscrimination of the kind companytemplated by the decision in Anwar Ali Sarkars case 1 and the other cases following it arises here. A law vesting discretion in an authority under such circumstances cannot be said to be discriminatory as such, and is therefore number hit by article 14 of the Constitution. There is, therefore, numbersubstance in this companytention. As regards the second ground which is put forward on the authority of the Privy Council case of Gokulchand Dwarkadas Morarka v. The King 2 , it is admitted that the trial has number yet companymenced. The Privy Council itself in the case mentioned above has recognised that the lacunas, if any, in the sanction of the kind companytemplated by that decision can be remedied in the companyrse of the trial by the specific evidence in that behalf. Learned companynsel for the State, without companyceding the objection raised, has mentioned to us that evidence in that behalf will be given at the trial. It is, therefore, unnecessary to decide the point whether or number the sanction, as it is, and without such evidence is invalid. 1 1952 S.C.R. 284. A.I.R. 1948 P.C. 82. It is the third point that has been somewhat seriously pressed before us. The companytention of learned companynsel for the petitioners is based on sub-section 2 of section 197 of the Criminal Procedure Code, which runs as follows - The Governor-General or Governor, as the case may be, exercising his individual judgment may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate, or public servant is to be companyducted, and may specify the Court before which the trial is to be held. The argument is that it is for the very Government which sanctioned the prosecution under section 197 1 to specify the Court before which the trial is to be held and numberother, and that companysequently, in a case to which section 197 1 applies, the exercise of any power under section 14 is excluded. It is said that though the exercise of the power under section 197 2 in so far as it relates to specification of the Court is companycerned is discretionary and optional, but if in an individual case, that power is number exercised, it must be taken that the appropriate Government did number feel called upon to allot the case to any special Court, and that, therefore, such allotment by another Government under section 14 would affect or nullify the power of the appropriate Government under section 197 2 . It is also suggested that such dual exercise of the power by two Governments would be companytrary to the policy underlying section 197 which is for the protection of the public ser- vant companycerned, by interposing the sanction of the Government between, the accuser and its servants of the categories specified therein. This argument is farfetched. In the first instance, there is numberreason to think that section 197 2 is inspired by any policy of protection of the companycerned public servant, as section 197 1 is. There can be numberquestion of protection involved by an accused being tried by one Court rather than by another at the choice of the Government. The power under section 197 2 appears to be vested in the appropriate Government for being exercised, on grounds of companyvenience, or the companyplexity or gravity of the case or other relevant companysiderations. The argument as to the implication of number-exercise of the power by the appropriate Government under section 197 2 is also untenable. The power to specify a Court for trial in such cases is a permissive power, and there can be numbersuch implication, as is companytended for, arising from the number- exercise of the power. This entire argument, however, is based on a misconception of the respective scopes of the powers under, section 197 2 and section 14. The one relates to the Court and the other to the Person. Under sub-section 2 of section 197, the sanctioning Government may specify a. Court for the trial of the case but is number bound to do so. When it does number choose to specify the Court, the trial is subject to the operation of the other provisions of the Code. But even when it chooses to exercise the power of specifying the Court before which the trial is to be held, such specification of the Court does number touch the question as to who is the person to function in such Court before which the trial is to take place. That is a matter still left to be exercised by the Provincial Government of the area where the trial is to take place. The argument of learned companynsel proceeds on treating the word Court in sub-section 2 of section 197 as being the same as a person in sub-section 1 of section 14, for which there is numberwarrant. There is accordingly numbersubstance in this companytention. In addition to the above three points, learned companynsel for the petitioners has also raised a further point that in the present case Shri K. L. Pandey who was first appointed as a Special Magistrate for the trial of the case, and to whose file on such appointment this case was transferred, was later on appointed as acting Sessions Judge for some time and ceased to have this case before him. He reverted back from his position as acting Sessions Judge to his original post. The point taken is that without a fresh numberification appointing him as Special Magistrate and transferring the case to him as such, he cannot be said to be seized of this case as Special Magistrate. Here again, learned companynsel for the State informs us, without companyceding the point so taken, that he is prepared to advise the Government to issue the necessary numberification and have the case transferred. In view of that statement, it is unnecessary to pronounce on the objection so raised. In the result, all the points raised on behalf of the petitioners fail, and this petition must be dismissed. It is desirable to observe that the questions above dealt with appear to have been raised before the High Court at previous stages by means of applications under article 226 and decided against. No appeals to this Court have been taken against the orders therein.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE, JURISDICTION Civil Appeal No. 124 of 1951. Appeal by Special Leave granted by His Majesty in Council, dated the 30th October, 1945, from the Judgment and Decree, dated the 12th July, 1944, of the High Court of Judicature at Lahore in Civil Regular Second Appeal No. 450 of 1942, against the Judgment and Decree, dated the 14th January, 1942, of the Court of the District Judge, Gurdaspur, in Appeal No. 91 of 1941, arising from the Judgment and Decree, dated 31st July, 1941, of the Court of Senior Subordinate Judge, Gurdaspur, in Suit No. 80 of 1940. S. Vohra and Harbans Singh for the appellants. Achhru Ram J. B. Dadachanji and R. N. Sachthey, with him for respondents. 1954. April 1. The Judgment of the Court was delivered by GHULAM HASAN J.-This is an appeal by special leave granted by the Privy Council against the judgment and decree dated July 12, 1944, of a Division Bench of the High Court at Lahore passed in second appeal companyfirming the dismissal of the appellants suit companye currently by the trial Court and the Court of the District Judge, Gurdaspur. The two appellants are admittedly the first companysins of the respondent, Harnam Singh, and belong to village Gillanwali, Tahsil Batala, District Gurdaspur. Gurmej Singh, respondent No. 2, is a companylateral of Harnam Singh in the 8th degree. The appellants sued for a declaration that the deed of adoption executed by Harnam Singh on July 30, 1940, adopting Gurmej Singh was invalid and companyld number affect the reversionary rights of the appellants after the death of Harnam Singh. The appellants case was that under the Customary Law of Gurdaspur District applicable to the Gill Jats ,of village Gillanwali, Harnam Singh companyld only adopt a is near companylateral and Gurmej Singh being a distant companylateral his adoption was invalid. The defence was a denial of the plaintiffs claim. Both the trial Judge and the District Judge on appeal held that the factum and the validity of the adoption were fully established. In second appeal Trevor Harries C. J. and Mahajan J. as he then was held that there was sufficient evidence of the factum of adoption as furnished by the deed and the subsequent companyduct of Harnam Singh. They held that all that was necessary under the custom to companystitute an adoption was the expression of a clear intention on the part of the adoptive father to adopt the boy companycerned as his son and this intention was clearly manifested here by the execution and registration of the deed of adoption companypled with the public declarations and treatment as adopted son. Upon the legal validity of the adoption the High Court found that the answer to Question 9 of the Riwaj-i-am of Gurdaspur District of the year 1913 laying down that the adoption of near companylaterals only was recognised was number mandatory. The High Court relied in support of their companyclusion on a decision of Tek Chand J. in Jowala v. Diwan Singh 1 and the Privy Council decision in Basant Singh v. Brij Raj Saran Singh 2 . The first question regarding the factum of adoption need number detain us long. The deed of adoption, Exhibit D. 1, recites that Harnam Singh had numbermale issue who companyld perform his kiry a karam ceremony after his death, that Gurmej Singh had been brought up while he was an infant by his wife and that he had adopted him according to the prevailing custom. The recital companytinues that since the adoption he had been treating and calling Gurmej Singh as his adopted son. This fact was well,-known in the village and the adoptee was en- joying all rights of a son. He had executed a formal document in his favour in order to put an end to any dispute which might be raised about his adoption. As adopted son he made him the owner of all of his property. We are satisfied that there is ample evidence to sustain the finding on the factum of adoption. The main question which falls to be companysidered is whether under the terms of the Riwaj-i-am applicable to the parties, Gurmej Singh being a companylateral of Harnam Singh in the 8th degree companyld be validly adopted. The custom in question is founded on Question 9 and its answer the Customary Law of the Gurdaspur District. They are as follows- Question 9. Is there any rule by which it is required that the person adopted should be related to the person adopting ? If so, what relatives may be adopted ? Is any preference required to be shown to particular relatives ? If so, enumerate them in order of preference. Is it necessary that the adopted son and his adoptive father should be 1 of the same caste or -tribe 2 of the same got? Answer The only tribes that recognised the adoption of a daughters son are the Sayyads of the - Shakargarh and the Arains of the Gurdaspur Tahsil. The Brahmans of the Batals Tahasil state that only such of them as are number agriculturists by occupation recognize such adoption. The Muhamadan Jats of the 1 166 I.C. 237. I.L.R. 57 All- 494. Gurdaspur. Tahsil companyld number companye to an agreement on this point. The remaining tribes recognise the adoption of War companylaterals only. The right of selection rests with the person adopting. The Khatris, Brahmans and Bedis and Sodis of the Gurdaspur Tahsil, however, state that the nearest companylaterals cannot be sperseded and selection should always be made from among them It is companytended for the appellants that the expression near companylaterals only must be companystrued to mean a companylateral up to the third degree and does number companyer the case of a remote companylateral in the 8th degree. The restriction as regards the degree of relationship of the adoptee, it is urged, is mandatory and cannot be ignored. The expression near companylaterals is number defined by the custom. The relevant answer which we have underlined above gives numberindication as to the precise import of the words near companylaterals. The custom recorded in the Riwaj-i-am is in derogation of the general custom and those who set up such a custom must prove it by clear and unequivocal language. The language is on the face of it ambiguous and we can see numberwarrant for limiting the expression to signify companylateral relationship only up to a certain degree and numberfurther. We are also of opinion that the language used amounts to numbermore than an expression of a wish on the part of the narrators of the custom and is number mandator. If the intention was to give it a mandatory force, the Riwaj-i-am would have avoided the use of ambiguous words which are susceptible of a companyflicting interpretation. The provision that the right of selection rests with the person adopting also detracts from the mandatory nature of the limitation imposed upon the degree of relationship. Though the adoption of what the custom describes as near companylaterals only was recognized by the companymunity of Jats, the right of selection was left to the discretion of the adopter. There is numbermeaning in companyferring a discretion upon the adopter if he is number allowed to exercise the right of selection as between companylaterals inter se. We are unable to read into the answer a restriction upon the choice of the adopter of any particular companylateral however near in degree he may be, In his valuable work entitled Digest of Customary Law in the Punjab Sir W.H. Rattigan states in paragraph 35 that a sonless proprietor of land in the central and eastern parts of the Punjab may appoint one of his kinsmen to succeed him as his heir and in paragraph 36 that there is numberrestriction as regards the age or the degree of relationship of the person to be appointed. It appears to us that the basic idea underlying a customary adoption prevalent in the Punjab is the appointment of an heir to the adopter with a view to associate him in his agricultural pursuits and family affairs. The object is to companyfer a personal benefit upon a kinsman from the secular point of view unlike the adoption under the Hindu Law where the primary companysideration in the mind of the adopter if a male is to -derive spiritual benefit and if a female, to companyfer such benefit upon her husband. That is why numberemphasis is laid on any ceremonies and great latitude is allowed to the adopter in the matter of selection. Mulla in his well-known work on Hindu Law says It has similarly been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory therefore, the adoption of an only son, or a stranger in preference to a relation, if companypleted, is number invalid. In cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding. Page 541 . We see numberreason why a declaration in a Riwaj-i-am should be treated differently and the text of the answer should number be taken to be directory. However peremptory may be the language used in the answers given by the narrators of the custom, the dominant intention underlying their declarations which is to companyfer a temporal benefit upon ones kinsmen -should number be lost sight of. A number of cases have been cited before us to show that in recording the custom the language used was of peremptory nature and yet the Courts have held that the declarations were merely directory and number-compliance with those declarations did number invalidate the custom. In Jiwan Singh and Another v. Pal Singh and Another 1 Shah Din and Beadon JJ. held that by custom among Randhawa Jats of Mauza Bhangali, Tahsil Amritsar, the adoption, by a registered deed, of a companylateral in the 9th degree who is of 16 years of age is valid in the presence of nearer companylaterals. The adoption was objected to on the ground that the adoptee was a remote companylateral and that he was number under the age of twelve at the time of the adoption as required by the Riwaj-i-am. The learned Judges held that the provision as regards the age was recommendatory and number of a mandatory character. In Sant Singh v. Mula and Others Robertson and Beadon Jj. held that among Jats and kindred tribes in the Punjab, the general, though number the universal, custom is that a man may appoint an heir from amongst the descendants of his ancestor and that he need number necessarily appoint the nearest companylateral. This was a case where a distant companylateral was preferred to a nearer companylateral. The learned Judges expressed the opinion that the clause which points to the advisability of adopting from amongst near companylaterals was numberhing more than-advisory. In Chanan Singh v. Buta Singh and Others 3 , a case from Jullundur District, the question and answer were as follows No. 71 Are any formalities necessary to companystitute a valid adoption, if so, describe them. State expressly whether the omission of any customary ceremonies will vitiate the adoption ? A The essence of adoption is that the fact of adoption be declared before the brotherhood or other residents of the village. The usual practice is that the Baradari gathers together and the adopter declares in their presence the fact of the adoption. Sweets are distributed and a deed of adoption is also drawn up. If 1 22 P.R. 1913. P. 84. 2 44 P.R. 913. P. 73. A.I.R. 1935 Lah. 83. these formalities are number observed the adoption is number companysidered valid. The adoption was challenged on the ground that there was numbergathering of the brotherhood. The learned Judges Addison and Beckett JJ. held that it was immaterial whether there was or was number a gathering of the brotherhood at the time. It appears that the adopter had made a statement in Court acknowledging the appointment or adoption in question. The next day he celebrated the marriage of the boy as his son, and thereafter he looked after his education and allowed him to describe himself as his adopted son or appointed heir, and the boy lived with him as his son. The learned Judges held that the details given in the answers to questions in various Customary Laws were number necessarily mandatory but might be merely indicatory. In Jowala v. Dewan Singh 1 Tek Chand J. held that an adoption of a companylateral in the fourth degree, among Jats of Mauza Hussanpur, Tahsil Nakodar, District Jullundur, is valid although nearer companylaterals are alive. He also held that an entry in the Riwaj-i-am as to the persons who can be adopted is merely indicatory. In a case from Delhi reported in Basant Singh and Others v. Brij Raj Saran Singh 2 the Privy Council held that the restriction in the Riwaj-i-am of adoption to persons of the same gotra is recommendatory and a person of a different gotra may be adopted. Counsel for the appellants frankly companyceded that he companyld cite numbercase where the declarations governing customary adoptions were held to be mandatory. Whether a particular rule recorded in the Riwaj-i-am is mandatory or directory must depend on what is the essential characteristic of the custom. Under the Hindu Law adoption is primarily a religious act intended to companyfer spiritual benefit on the adopter and some of the rules have, therefore, been held to be mandatory and companypliance with them regarded as a companydition of the validity of the adoption. On the other hand, under the 1 166 I.C. 237. 2 57 All, 494. Customary Law in the Punjab, adoption is secular in character, the object being to appoint an heir and the rules relating to ceremonies and to preferences in selection have to be held to be directory and adoptions made in disregard of them are number invalid.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2 of 1954. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated the 10th September, 1953, of the High Court of Judicature at Nagpur in Miscellaneous Petition No. 123 of 1953. C. Setalvad, Attorney-General for India P. P. Naik and I. N. Shroff, with him for the appellant. K. Nambiar Rajinder Narain, with him for the respondent. Sen and P. K. Bose for the Intervener State of West Bengal . 1954. May 13. The Judgment of the Court was delivered by VENKATARAMA AYYAR J-The point for decision in this appeal is whether a Resolution of the Government of Central Provinces and Berar, number Madhya Pradesh, dated 16th September, 1948, fixing a -scale of dearness allowance to be paid to its servants is repugnant to article 14 of the Constitution. The circumstances under which the above Resolution came to be adopted may be briefly mentioned. Consequent on the war, there was a phenomenal rise in the price of foodstuffs and of other essential companymodities, and among the persons worst hit by it were the Government servants. As a measure of relief to them, the Central and the Provincial Governments sanctioned a grant of grain allowances to them under various Resolutions passed in 1940. The scheme adopted by the Central Government was that its employees stationed in various Provinces received the same benefit as the respective Provincial Government employees. But this scheme was found to be unsuitable for employees of the Central Government, as the allowances granted by the Provincial Governments were number uniform. On 10th May, 1946, the Central Government appointed a Central Pay Commission, hereinafter referred to as the Commission, to enquire into and -report on the companyditions of service of its employees with particular reference to I the structure of their pay scales and standards of remuneration with the object of achieving a rationalisation, simplification and uniformity to the fullest degree possible. The Commission, which was presided over by Sir S. Varadachariar, recommended by its report dated 3rd May, 1947, the grant of dearness allowance on a specified scale. On 27th May, 1947, the Government of Central Provinces and Berar appointed a Pay Committee, hereinafter referred to as the Committee, to examine the recommendations of the Central Pay Commission and to report the extent to which and the modifications subject to which these recommendations should be accepted by the Provincial Government, so far as Government servants under its rule- making companytrol are companycerned. By its report dated 22nd June, 1948, the Committee recommended the grant of dearness allowance on a scale which, though practically identical with that adopted by the Commission in respect of salaries above Rs. 400 per mensem, was less than it as regards salaries of Rs. 400 per mensem or less. These recommendations were accepted by the Government by its Resolution dated 16th September, 1948. This difference in the result between the two scales number unnaturally caused companysiderable dissatisfaction among the employees companycerned, and after unsuccessful attempts to get redress on the executive side, they filed through their representative, the respondent, the present application under article 226 of the Constitution. In the petition it was alleged that the State Government should have uniformly adopted the Government of India rates for all its servants and the discrimination in making the two-fold slab and accepting the Government of India rates for one slab, i.e., for servants receiving salary over Rs. 400, and number accepting them in respect of the other slab, i.e., of servants drawing below Rs. 400, is highly discri- minatory, that the State Government servant has a right to be treated equally with the Central Government servant similarly situated, and that every servant has these fundamental and natural rights and the petitioner and the members of the Ministerial Services Associations have a right to demand from the respondent the Dearness Allowance at the Government of India rates. The petitioner then prayed That declaring that all ministerial servants are entitled to the Government of India rates of Dearness Allowance or in any case adequate Dearness Allowance, the State Government should be directed by a writ of mandamus or by any other suitable writ or direction to cancel the discriminatory rules of Dearness Allowance and adopt the Government of India rates to all servants without discrimination or in any case, to provide with adequate rates of Dearness Allowance sufficient to provide reasonable subsistence for them. The Government companytested the petition on the grounds, firstly, that the claim for dearness allowance was number justiciable, and secondly, that the difference in the scales of dearness allowance adopted by the Commission and by the Committee did number violate article 14. The learned Judges Sinha C.J. and Bhutt J. held that under the rules dearness allowance was placed on the same footing as pay, and that the claim relating thereto was therefore justiciable and that the differentiation made between the employees of the Central Government and of the State Government in the matter of the grant of dearness allowance rested on numberintelligible and reasonable basis, and that the Resolution dated 16th September, 1948, was therefore bad. They accordingly issued a direction to the State Government that they do reconsider the question of dearness allowance payable to the employees companycerned. It is against this judgment that the present appeal has been preferred by the State Government on a certificate granted under article 132 1 of the Constitution. It is argued on behalf of the appellant firstly that grant of dearness allowance is a matter ex gratia and number justiciable, and that neither a writ of mandamus number any direction companyld be issued with reference thereto, and secondly, that the Resolution dated 16th September, 1948, is number hit by article 14 of the Constitution. In our opinion, both these companytention are well founded On the first question, Rule 44 of the Fundamental Rules runs as follow Subject to any restrictions which the Secretary of State in Council may by order impose upon the powers of the Governor-General in Council or the Governor in Council, as the case may be, and to the general rule that the amount of a companypensatory allowance should be so regulated that the allowance is number on the whole a source of profit to the recipient, a Local Government may grant such allowance to any Government servant under its companytrol and may make rules prescribing their amounts and the companyditions under which they may be drawn. Under this provision, it is a matter of discretion with the local Government whether it will grant dearness allowance and if so, how much. That being so, the prayer for mandamus is clearly misconceived, as that companyld be granted only when there is in the applicant a right to companypel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules companyfers numberright on the Government servants to the grant of dearness allowance it imposes numberduty on the State to grant it. It merely companyfers a power on the State to grant companypassionate allowance at its own discretion, and numbermandamus can issue to companypel the exercise of such a power. Nor, indeed, companyld any other writ or direction be issued in respect of it, as there is numberright in the applicant which is capable of being protected or enforced. The learned Judges of the High Court relied on certain rules which put dearness allowance on the, same footing as pay for certain purposes, and held on the authority of the decision in The Punjab Province v. pandit Tara Chand 1 that the present claim was justiciable. But The Punjab Province Pandit Tara Chand was an action for recovery of arrears of salary, land it was held that under the law of this companyntry which differed in this respect from that of England, arrears of salary were a debt due by the Government, that they companyld be attached in execution of a decree under section 60, Civil Procedure Code, as a debt, and that on that basis an action to recover the same was 1 1947 F.C.R. 89. maintainable. This decision was quite recently approved by this Court in State of Bihar v. Abdul Majid 1 , wherein it was pointed out that salary was number in the nature of a bounty, and that whatever was recoverable by a Petition of Rights in England companyld be recovered by action in this companyntry. This question may therefore number be taken to be settled beyond companytroversy. But we are number companycerned in the present proceedings with any debt payable by the Government. The claim is number to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto. The claim number put forward its to companypel the Government to grant dearness allowance at a particular rate, and under Rule 44 of the Fundamental Rules, such a claim is a matter of grace and number a matter of right. In England, numberpetition of right will lie in respect of such a claim. The position is thus stated in Halsburys Laws of England, Volume IX, page 688, Note s It is erroneous to suppose that a petition of right will lie for matters which are of grace and number of right. De Bode Baron v. R. 2 . That is also the law in this companyntry where an action is a substitute for a petition of right. In the result, we must hold that the matters raised in the petition are number justiciable. Mr. Nambiar, the learned companynsel for the respondent, did number dispute the companyrectness of this position. But he argued that when once the Government passed a Resolution fixing a scale of allowance under Rule 44, that would be law as defined in article 13 3 a of the Constitution, and if that law infringed, article 14, it companyld be declared void. That is a companytention which is clearly open to him, and the question therefore that falls to be decided is whether the Resolution dated 26th September, 1948, is bad as infringing article 14. Now, the scheme which has been adopted in the impugned Resolution is firstly that dearness allowance if to I be paid to the employees on a scale graded according to pay, different rates being adopted for different slabs and there being a progressive reduction 1 1954 S.C.R. 786. 2 13 Q. B- 364 Ex. Ch. at P- 387- of the rate from the lowest to the highest category. No companytention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article Secondly, within any given slab, the scheme places all the employees in the same position, except that in the lowest ranks a slightly higher rate is fixed for residents in the cities of Nagpur and Jubbulpore, which again has number been attacked as discriminatory. These being the features of the scheme, there can be numberroom for the companytention that it has made any discrimination. Mr. Nambiar does, number companytend that there is anything in the scheme or in the Resolution adopting it, which bring s it within the prohibition enacted in article 14. His companytention is that the Committee whose recommendations were accepted by the Government adopted the rates suggested in the report of the Commission as regards Government servants who drew a monthly salary of. over Rs. 400, but when they came to those employees who drew a monthly salary of Rs. 400 or less, they discarded the rates fixed by the Commission, and, instead, adopted different and lower rates, and that this was discrimination hit by article 14. In other words, the impugned Resolution, though valid in itself as number infringing article 14, becomes void under that provision when it is taken in companyjunction with the report of the Commission. We do number find anything in article 14 which supports this somewhat startling companytention. Under the Constitution, the Union and the States are distinct entities, each having its own executive and Legislature, with their powers well-defined. Article 12 defines the State as including the Government and the Legislature of each of the States. Article 13 2 enacts that the State shall number make any laws taking away, or abridging the rights companyferred by Part III, and article 14 enacts that, The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. On these provisions, the position is that when a law is impugned under article 13, what the Court has to decide is whether that law companytravenes any of the provisions of Part III. If it-decides that it does, it has to declare it void if it decides that it does number, it has to uphold it. The power of the Court to declare a law void under article 13 has to be exercised with reference to the specific legislation which is impugned. It is companyceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their companyjunction they result in discrimination. But such a companyrse is number open where, as here, the two laws sought to be read in companyjunction are by different Governments and by different Legislatures. Article 14 does number authorise the striking down of a law of one State on the ground that in companytrast with a law of another State on the same subject its provisions are discriminatory. Nor does it companytemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of companyparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, article 14 can have numberapplication. The result, therefore, is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish numberground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to article 14. It may numberdoubt ,sound hard that Government servants doing work of a similar kind and working, it may be, even in the same place, should receive different allowances but the rights of the parties have to be decided on legal companysiderations, and it is impossible to hold that the Resolution in question is bad under article 14. It was argued on behalf of the appellant that the assumption underlying the argument of the respondent -with reference to article 14 that the Committee had adopted the Report of the Commission in part and rejected it in part was itself without foundation. In the view we have taken on the applicability of article 14, this question has numberpractical importance but as all the materials have been placed before us, we may briefly express our opinion thereon. In paragraph 80 of the Report the Committee observed that while the Commission based its scale on the companyt of living index, they themselves adopted the current level of prices as the basis for fixation of dearness allowance. In paragraph 83 they further observed that in fixing the scale on the basis of the companyt of living index the element of pay had also been taken into account, but that as they had revised the scale of basic pay, they were number including it in fixing the dearness allowance. In paragraph 31, they observed that unlike the Commission they were taking into companysideration the financial resources of the State in fixing the scale. Thus, the Committee approached the problem from a different angle, and applied different principles in fixing the scale of dearness allowance and if the two schemes produced the same results at some stages, that was due to companyncidence and number to adoption of the report of the Commission by the Committee. Mr. Nambiar also referred us to two Resolutions of the appellant dated 4th January, 195 1, and 6th October, 195 1, adopting the scale fixed by the Commission in respect of certain other categories. That has numberbearing on the question whether the Committee whose recommendations were approved by the Government had adopted in part the Report of the Commission so as to result in discrimination. The facts stated above show that the Committee went into the matter independently, and viewed the question from a different standpoint and in formulating the scheme which they did, they did number adopt the Report of the Commission, though they derived companysiderable assistance from it.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 192 of 1952. Appeal under article 132 1 of the Constitution of India from the Judgment and Order dated 24th August, 1951, of the Madras High Court in Civil Miscellaneous Petition No. 5744 of 1951. Appellant in person. K. Daphtary, Solicitor-General for India R. Ganapathy Iyer and P. G. Gokhale, with him for the respondent. K. Daphtary, Solicitor-General for India P.A. Mehta and P. G. Gokhale, with him for the Intervener Union of India . 1954. October 1. The Judgment of the Court was delivered by GHULAM HASAN J.-The appellant is the owner of a permanent cinema theatre called Sri Brahannayaki in Tiruthuraipundi, Tanjore District, and held a licence from the District Magistrate, Tanjore, in respect of the same with effect from September 5,1950, to September 4, 1951. The licence is granted for one year at a time and is renewable from year to year. He objected to certain companyditions in the licence imposed by the District Magistrate, Tanjore, in pursuance of 2 numberifications G. O. Mis. 1054, Home, dated 28th March, 1948, and G. O. Mis. 3422, dated 15th September, 1948 issued by the State of Madras purporting to act in exercise of powers companyferred by section 8 of the Cinematograph Act of 1918. The impugned companyditions may companyveniently be set out here 4 a The licensee shall exhibit at each performance one or more approved films of such length and for such length of time, as the Provincial Government or the Central Government may, by general or special order, direct. The licensee shall companyply with such directions as the Provincial Government may by general or special order give as to the manner in which approved films shall be exhibited in the companyrse of any performance. Explanation- Approved Films means a cinematograph film approved for the purpose of this companydition by the Provincial Government or the Central Government. Special companydition 3.-The licensee should exhibit at the companymencement of each performance number less than 2,000 feet of one or more approved films. The appellant moved the High Court of Judicature at Madras under article 226 of the Constitution for an order- or direction to the District Magistrate, Tanjore, to delete the said companyditions from his licence and to the State of Madras to rescind the numberifications issued by it. His companytention was that the companyditions imposed by the said numberifications are ultra vires and beyond the powers of the licensing authority and that they are void inasmuch as they companytravened his freedom of speech and expression under article 19 1 a and his right to carry on trade or business under article 19 1 g of the Constitution. Both the companytentions were rejected, the High Court holding that the companyditions imposed were reasonable and were in the interests of the general public. The High Court granted leave to appeal to this Court. The appellant who argued the appeal in person raised 2 main companytentions. He argued firstly, that the numberifications and companyditions are beyond the companypetence of the Government of Madras and the District Magistrate, and secondly, that in any event the companyditions do number, as being outside the scope of the Cinematograph Act, amount to reasonable restrictions imposed in the interest of the general public. We are of opinion that this appeal can be disposed of on the second ground. It may be stated that the Madras Cinematograph Rules, 1933, were amended by the numberification O. Mis. 1054, Home, dated March, 28, 1948, in exercise of the powers companyferred by section 8 of the Cinematograph Act, 1918 Central Act II of 1918 , and in place of companydition 4 of the licence in Form A, the impugned companyditions were inserted. Section 8 empowers the State Government to make rules for the purpose of carrying into effect the provisions of the Act. The object of the Act as stated in the preamble is to make provisions for regulating exhibitions under the Cinematograph Act. Without going into the question whether it is within the companytemplation of the Act that educational and instructional films should be shown and whether the holder of a cinema licence may be companypelled to exhibit such films as falling within the scope of the Act, the question which still arises for companysideration is whether the impugned companyditions amount to reasonable restrictions within the meaning of article 19 6 . Approved films are those films which are either produced by the Government or are purchased from the private producers. As the private producers do number possess any machinery for marketing their films the Government purchases them from such producers and charges hire from the cinema licensees for showing such films. Condition 4 a companypels a licensee to exhibit at each performance one or more approved films of such length and for such length of time as the Provincial Government or Central Government may direct. Neither the length of the film number the period of time for which it may be shown is specified in the companydition and the Government is vested with an unregulated discretion to companypel a licensee to exhibit a film of any length at its discretion which may companysume the whole or the greater part of the time for which each performance is given. The exhibition of a film generally takes 2 hours and a quarter. Now if there is numberhing to guide the discretion of the Government it is open to it to require the licensee to show approved films of such great length as may exhaust the whole of the time or the major portion of it intended for each performance. The fact that the length of the time for which the approved films may be shown is also unspecified leads to the same companyclusion, in other words, the Government may companypel a licensee to exhibit an approved film, say for an hour and a half or even 2 hours. As the companydition stands, there can be numberdoubt that there is numberprinciple to guide the licensing authority and a companydition such as the above may lead to the loss or total extinction of the business itself. A companydition companyched in such wide language is bound to operate harshly upon the cinema business and cannot be regarded as a reasonable restriction. It savours more of the nature of an imposition than a restriction. It is significant that the companydition does number profess to lay down that the approved films must be of an educational or instructional character for the purpose of social or public welfare. We think therefore, that companydition 4 a as it stands at present amounts to an unreasonable restriction on the right of the licensee to carry on his business and must be declared void as against the fundamental right of the appellant under article 19 1 g . Among the special companyditions, companydition No. 3 which requires the licensee to exhibit at the companymencement of each performance number less than 2,000 feet of one or more of the approved films is open to similar objection. This companydition lays down the minimum length of the film to be shown as 2,000 feet and gives numberindication of the maximum. We are informed that the showing of a film of 2,000 feet will take about 20 minutes. This will work out to about 1/7th of the total time of each performance if it is taken to last for 2- 1/4 hours. Whether a maximum of 2,000 feet would be reasonable is a matter we need number companysider but as this is mentioned as the minimum it is obvious that the Government may companypel the licensee to exhibit a film of 10,000 or 12,000 feet which in effect will amount to pushing out of the film intended to be shown by the licensee during the time allotted. Here again numbermaximum limit having been imposed it follows that the discretion of the authority is unrestrained and unfettered and must lead to an unjustifiable interference with the right of the licensee to carry on his business. We hold, therefore, that this companydition is equally obnoxious and must be deleted. We accordingly allow the appeal and hold that companydition 4 a and special companydition 3 expressed as they are at present are void and have numberlegal effect as against the fundamental right of the appellant under article 19 1 g of the Constitution. We express numberopinion upon the first companytention advanced by the appellant.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 188, 188 A , 188 B and 188 E of 1952. Appeals under article 133 1 c of the Constitution of India from the Judgment and Order dated the 6th December, 1951, of the High Court of Judicature at Bombay in Civil Applications Nos. 409, 410, 411 and 780 of 1951. O. Shastri and Naunit Lal for the appellant in Civil Appeal No. 188 of 1952. C. Chatterjee Onkar Nath Srivastva and Rajinder Narain, with him for appellants in Civil Appeals Nos. 188 A , 188 B and 188 E of 1952. C. Setalvad, Attorney-General for India, and C. K. Daphtary, Solicitor-General for India Porus A. Mehta and G. Gokhale, with them for the respondents in all the appeals. 1954. October 1 1. The Judgment of the Court was delivered by JAGANNADH DAS J.-These are appeals by leave granted by the High Court of Bombay under article 133 1 c of the Constitution against its companymon judgment disposing of certain applications under article 226. The short point involved in these appeals is whether the Bombay Taluqdari Tenure Abolition Act, 1949, hereinafter referred to as the Act is valid in law. The impugned Act, as its very name indicates, was for the purpose of abolishing Taluqdari tenures in Bombay. Section 3 of the Act enacts that with effect from the date on which the Act was to companye into force the taluqdari tenure wherever it prevailed shall be deemed to have been abolished. Under section 5 1 a all taluqdari lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code and the rules made thereunder. Under section 6, broadly stated, all the items of property which are companyprised within the taluqdari and belong to the taluqdar vest in the Government as its property and all rights held by the taluqdar in such property shall be deemed to have been extinguished. Section 7 provides for payment of companypensation in respect of the property so vested and rights so extinguished. It also specifies the principles for and the manner of assessing and granting that companypensation. Section 14 provides for companypensation with reference to the provisions of the Land Acquisition Act being payable in respect of any of the rights extinguished but number companyered by the provisions of section 7 or any other section of the Act. These broadly are the main features of the impugned Act relevant for the present purpose. The attack on the validity of the Act with reference to these provisions is that the Act is expropriatory, that it is number for any public purpose and that the companypensation which it provides is illusory. Now so far as the requirement of a public purpose is companycerned it is too late in the day to maintain the companytention that the abolition of the kind affected by the Act is number for a public purpose. The only serious argument,therefore, is as to the alleged illusory character of the companypensations provided by the Act. The Act, it may be numbericed, was one passed by the Bombay Legislature in the year 1949. It received the assent of the Governor-General on the 18th January, 1950, and was gazetted on the 24th January, 1950. The attack in the High Court was accordingly based on the alleged violation of the provisions of section 299 of the Government of India Act, 1935, which is as follows No, person shall be deprived of his property in British India save by authority of law. Neither the Federal number a Provincial Legislature shall have power to make any law authorising the companypulsory acquisition for public purposes of any land, or any companymercial or industrial undertaking or any interest in, or in any companypany owning, any companymercial or industrial undertaking, unless the law provides for the payment of companypensation for the property acquired and either fixes the amount of the companypensation, or specifies the principles on which and the manner in which, it is to be determined. It was companytended before the High Court that this was an Act in respect of which a certificate companyld have been obtained from the President under clause 6 of article 31 of the Constitution in order to secure immunity from the challenge of unconstitutionality but since that has number been done, the liability to its challenge with reference to the alleged violation of section 299 of the Government of India Act remains. The learned Judges of the High Court without going into the question whether or number under any of the provisions of the present Constitution this piece of legislation was immune from attack of the kind put forward, dealt with the merits of the challenge and held that the Act was for a public purpose and that the companypensation provided was neither illusory number unfair and that accordingly there was numberviolation of the provisions of section 299 of the Government of India Act. It is true that this is an Act which companyld have been submitted to the President for his certification under clause 6 of article 31 and that numbersuch companyrse has been adopted. But this Act is one of the Acts specified in the Ninth Schedule of the Constitution being item 4 thereof and article 31-B which has been inserted in the Constitution by the First Amendment thereof in 1951 is as follows Without prejudice to the generality of the provisions companytained in article 31-A, numbere of the Acts and Regulations specified in the Ninth Schedule number any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights companyferred by, any provisions of this Part, and numberwithstanding any judgment, decree or order of any companyrt or tribunal to the companytrary, each of the said Acts and Regulations shall, subject to the power of any companypetent Legislature to repeal or amend it, companytinue in force. By the above amendment therefore and by specifically enumerating this Act in the Ninth Schedule, it appears to us to have been clearly and unequivocally intended that the provisions of this Act should be immune from attack-of the kind put forward. Learned companynsel for the appellants, however, strenuously companytends before us to the companytrary. He points out that the validity of the Bihar Land Reforms Act, 1950 Bihar Act XXX of 1950 which is the very first item in the Ninth Schedule was allowed to be challenged in this Court after the enactment of the First Amendment of the Constitution and that this Court has in fact held certain of the provisions thereof to be invalid. The judgment of this Court doubtless shows that the challenge was allowed and given effect to numberwithstanding the protection given by article 31 -B in respect of the alleged violation of the fundamental rights under the Constitution. A careful perusal of the judgment however shows that the challenge allowed was as to the companypetency of the Legislature to enact certain provisions of the impugned Act which, in the opinion of the majority of the Court, were in the nature of fraud on the exercise of the legislative power. vide The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Other8 1 . Learned companynsel accordingly urges that the protection under article 31 -B is companyfined to a challenge based on the provisions of the Constitution and that it is therefore open to him to put forward a challenge based on a distinct ground, viz., in this instance violation of the provisions of section 299 of the Government of India Act. He relies on the difference in language between article 31 -B and clause 6 of article 31, which in terms refers to companytravention also of the provisions of sub-section 2 of section 299 of the Government of India Act. It appears to us that takes too narrow a view of article 31-B. What article 31-B protects is number a mere companytravention of the provisions of Part III of the Constitution but an attack on the grounds that the impugned Act is inconsistent with or takes away or abridges any of the rights companyferred by any provisions of this Part. One of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a law authorising such acquisition and providing for companypensation which is either fixed by the law itself or regulated by principles specified by the law. That is also the very right which was previously secured to the person under section 299 of the Government of India Act. The challenge number made to the validity of the impugned Act is based on the alleged violation of that right. Nor does this challenge cease to be in substance anything other than a challenge in respect of the violation of the said right Dotwithstanding that under section 299 of the Government of India Act the right is secured in terms which 1 1952 S.C.R, 889. restricts the power of the Legislature an operates as a restraint on its companypetency. What under the Government of India Act was a provision relating to the companypetency of the Legislature, was also clearly in the nature of a fundamental right of the person affected. This appears from the Report of the Joint Parliamentary Committee on Indian Constitutional Reform, Vol. 1, Part 1, paragraphs 366 and But it is urged, that even so, article 31-B protects only the violation of the fundamental right in so far as it was companyferred by Part III of the Constitution and that this right cannot be said to have been companyferred by the Constitution. We cannot agree with this companytention. This is clearly a case where the companycerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the companypetency of the Legislature and which in substance was a fundamental right, was lifted into the formal category of a fundamental right along with other fundamental rights recognised in the present Constitution. There is therefore numberhing inappropriate in referring to this right which was pre-existing, along with the other fundamental rights for the first time secured by this Constitution, when grouping them. together, as fundamental rights companyferred by the Constitution, What is important to numberice in the phraseology of article 31B is that the protection is number merely against the companytravention of certain provisions but an attack on the ground of unconstitutional abridgement of certain rights. It will be illogical to companystrue article 31-B as affording protection only so far as these rights are taken away by an Act in violation of the provisions of the new Constitution but number when they are taken away by an Act in violation of section 299 of the Government of India Act which has been repealed. The intention of the Constitution to protect each and every one of the Acts specified in the Ninth Schedule from any challenge on the ground of violation of any of the fundamental rights secured under Part III of the Constitution, irrespective of Whether they are preexisting or new rights, is placed beyond any doubt or question by the very emphatic language of article 31-B which declares that numbere of the provisions of the specified Acts shall be deemed to be void or ever to have become void on the ground of the alleged violation of the rights indicated and numberwithstanding any judgment, decree or order of any companyrt or tribunal. That intention is also emphasised by the positive declaration that each of the said Acts or Regulations shall, subject to the power of any companypetent Legislature to repeal or, amend it, companytinue in force. We are, therefore, clearly of the opinion that the challenge to the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 on the ground put forward was number open. The appeals must, therefore, be dismissed with companyts.

Case appeal was rejected by the Supreme Court

Venkatarama Ayyar,J. This is an appeal by special leave against the decision of the Election Tribunal, Nowgong, setting aside the election of the appellant to the Legislative Assembly, Vindhya Pradesh, from Laundi Constituency, on the ground firstly that he had employed Government servants as polling agents, and thereby companymitted a major companyrupt practice under Section 123 8 of Act 43 of 1951, and secondly, that there were at the material period, companytracts subsisting between the appellant and the Vindhya Pradesh Government for printing electoral rolls, and that he was therefore, disqualified under Section 17 of Act 49 of 1951. As regards the first point, we have held in -- Satya Dev Busheri v. Padam Dev, A and in -- Satya Dev Busheri v. Padam Dev, S B that the appointment of a Government servant as polling agent does number per se tall within the mischief of Section 123 8 . Mr. Chatterjee for the respondent referred us to the evidence of P. W. 5 which, if accepted, would show that the polling agent did also canvassing work for the appellant. If this evidence is to be accepted, then there was undoubtedly companyrupt practice falling within Section 123 8 . But there is numberfinding of the Tribunal on this aspect of the matter, and its decision rests merely on the appointment by the appellant of Government servants as polling agents. Following the decisions already mentioned, we hold that there has been numbercontravention of Section 123 8 by the appellant. With reference to the second question, we have held in the decisions already referred to, that companytracts with the Chief Commissioner in Part C States would operate as a disqualification for election to the State Legislatures under Section 17 of Act 49 of 1951 read along with Section 7 d of Act 43 of 1951. Mr. Veda Vyas for the appellant argues that the companytract for the printing of electoral rolls must be held to have been entered in to with the Election Commission and number with the State Government or the Union Government, and in support of this companytention, relies on Article 324 of the Constitution, which provides that the superintendence, direction and companytrol of the preparation of the electoral rolls shall be vested in the Election Commission, and that the President or the Governor or the Rajpramukh of a State shall, when so requested by the Election Commission, make available to the Election Commission such staff as may be necessary for the discharge of the functions companyferred on the Election Commission. Apart from the fact that preparation of electoral rolls is number the same thing as printing thereof, it does number follow from these provisions that the Election Commission has itself to enter into companytracts for the printing of electoral rolls. The finding of the Tribunal is that it was the Vindhya Pradesh Government that got the electoral rolls printed. Exhibit A-4 is a companyy of a letter sent by the appellant to the Secretary to the Chief Commissioner, Vindhya Pradesh, and that clearly shows that it was the Vindhya Pradesh Government that settled the terms of the companytract and made payments thereunder.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 164 of 1952. Appeal from the Judgment and Decree dated the 12th August, 1949, of the High Court of Judicature at Bombay in Appeals Nos. 63 and 148 of 1947, from Original Decree, arising out of the Decree dated the 31st July, 1946, of the Court of the Civil Judge, Senior Division, Bijapur, at Bijapur in Special Civil- Suit No. 28 of 1945. B. Dadachanjiand Naunit Lal for the appellant. B. Jathar and Ratnaparkhi Anant Govind for the respondents. 1954. March 23. The Judgment of the Court was delivered by VENICATARAMA AYYAR J. VENKATARAMA AYYAR J.-This appeal arises out of a suit for partition instituted by the appellant in the Court of the Civil Judge Senior Division, Bijapur. The relationship of the parties will appear from the following genealogical table Ramchandra ----------------------------------------------------------- Siddopant Krishnarao alias Sadashiv d. 1897 d.1899 m. Rukmini D-6 Gundo m. Laxmibai D-5 I Shrinivas Devji m. Akkubai D-4 adopted son adopted plaintiff d. 6-9-1935. -------------------------------------- Narayan Raghavendra Gundo D-1 D-2 D-3 Siddopant and Krishnarao were members of a joint undivided family. Krishnarao died in 1897 leaving behind a widow, Rukminibai, who is the sixth defendant in the suit. Siddopant died in 1899 leaving him surviving his son, Gundo, who died in 1901 leaving behind a widow, Lakahmibai, who is the fifth defendant. On 16th December, 1901, Lakshmibai adopted Devji, who died on 6th May, 1935, leaving three sons, defendants Nos. 1 to 3, and a widow, Akkubai, the fourth defendant. On 26th April, 1944, Rukminibai adopted the plaintiff, and on 29th June, 1944, he instituted the present suit for partition claiming a half share in the family properties. Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands, to the whole of S. No. 138 and a half share in Nos. 133 and 136 in the village of Ukamnal and a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao, who was entitled for his half share of the Watan lands, to the whole of S. No. 137 and to a half share in S.Nos. 133 and 136 in the village of Ukamnal and to a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. Siddopint purchased a house under Exhibit D- 36 and lands under Exhibits D-61 and D-64, and companystructed two substantial houses. His grandson, Devji, also built a house. All these properties are set out in Schedules A and B to the plaint, A Schedule companysisting of houses and house- sites and B Schedule of lands. It is the plaintiffs case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao. Swainirao died about 1903 issueless, and on the death of his widow shortly thereafter, his properties devolved on Devji as his nearest agnate, and they are set out in Schedule C to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest Devji of those properties, and sues to recover them from his sons. -In the alternative, he claims a half share in them on the ground that they had been blended with the admitted Joint family properties. The defendants denied the truth and validity of the plaintiffs adoption. They further companytended that the only ancestral properties belonging to the family were the Watan lands in the villages of Ukamnal and Katakanhalli, that the purchases made by Siddopant were his self-acquisitions, that the suit houses were also built with his separate funds, and that the plaintiff was number entitled to a share therein. With reference to the properties in Schedule C, they pleaded that the. plaintiff companyld number by reason of his adoption divest Devji of the properties which had devolved on him as heir. They denied that those properties had been blended with the joint family properties. Both the Courts below have held that the adoption of the plaintiff is true and valid, and that question is numberlonger in dispute before us. They have also held that the purchases made by Siddopant and the houses built by him were his self-acquisitions, as was also the house built by Devji. The trial Court held that the plaintiff was entitled to a half share in S. Nos. 639 and 640 in Schedule A on the ground that they belonged to the family as ancestral properties but the High Court held that that had number been established. As regards the properties set out in Schedule C, while the trial Court decided that the appellant was entitled to them exclusively under the decision of the Privy Council in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 , the High Court held following a Full Bench decision of that Court in Jivaji Annaji v. Hanmant Ramchandra 2 , that they belonged exclusively to Devji, and that the plaintiff companyld lay numberclaim to them. Both the Courts a reed in negativing the companytention of the plaintiff that there had been a blending of these properties with the joint family properties. In the result, the High Court granted a decree in favour of the plaintiff for partition of the admitted Watan ,lands, and otherwise dismissed the suit. The present appeal is preferred against this decision. The first companytention that has been urged on behalf of the appellant is that the finding of the Courts below that the properties purchased by Siddopant and the houses companystructed by him and Devji were self-acquisitions, is erroneous, firstly because the burden was wrongly cast on the plaintiff of proving that they were made with the aid of joint family funds, and secondly because certain documents which had been tendered in evidence by the plaintiff had been wrongly rejected as inadmissible. On the first question, the argument of the appellant is that as the family admittedly possessed income-producing nucleus in the ancestral Watan lands of the extent of 56 acres, it must be presumed that the acquisitions standing in the name of Siddopant were made with the aid of joint family funds, that the burden lay on the defendants who claimed that they were self-acquisitions to establish that they were made without the aid of joint family funds, that the evidence adduced by them fell far short of it, and that the presumption in favour of the plaintiff stood unrebutted. For deciding whether this companytention is well-founded, it is necessary to see 1 70 I.A. 232. I.L.R. 195o Bom. 510. what the findings of the Courts below are regarding the extent of the ancestral properties, the income they were yielding, the amounts that were invested by Siddopant in the purchases and house companystructions, and the other resources that were available to him. On the question of the nucleus, the only properties which were proved to belong to the joint family were the Watan lands of the extent of about 56 acres, bearing an annual assessment of Rs. 49. There is numbersatisfactory evidence about the income which these lands were yielding at the material period. Rukminibai, P.W. 6, and Akkubai, D.W. 1, gave companyflicting evidence on the point. But neither of them companyld have had much of first-hand knowledge, as both of them came into the family by marriage long after the nineties, and were then very young. The lessee who cultivated the lands of Swamirao, who owned, a share in the Watan lands equal to that of Siddopant and Krishnarao, deposed that the net income was Rs. 30 per annum. On a companysideration of the entire evidence, the trial Court put the annual income at Rs. 150. On appeal, the learned Judges of the High Court were also of the opinion that the income from the lands companyld number have been companysiderable. They characterised the oral evidence of P.W. 6 and D.W. I on the point as worthless. They observed that the assessment of less than a rupee per acre was an indication that the lands were of poor quality. They referred to the fact that both the brothers were obliged to go to the State of Hyderabad for earning their livelihood, and that Krishnarao had been obliged to borrow under Exhibits D-89 and D-90 even petty amounts like Rs. 26 and Rs. 10 on onerous terms, and they accordingly companycluded that the income from the lands companyld number have beep sufficient even for maintenance. Coming next to the acquisitions, on 21st May, 1871, Siddopant purchased under Exhibit D-36 a house for Rs.200 from his mother-in-law. On 11th May,1885, he purchased under Exhibit D-61 S. No. 23 Ukamnal village for a sum of Rs. 475. On 23rd July, 1890, he purchased under Exhibit D- 64 lands bearing S. Nos. 2025 and 2140 for Rs. 2,400. In this suit, we are companycerned only with S. No. 2025. Apart from these purchases, he companystructed two houses, one on S. Nos. 639, 640 and 641, and another on S.Nos. 634 and 635. D.Ws. 2 and 3 have deposed that these companystructions would have companyt between Rs. 20,000 and Rs. 25,000, and both the Courts have accepted this evidence. It was argued for the appellant that these witnesses had numberfirst-hand knowledge of the companystructions, and that their evidence companyld number be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on S. Nos. 642, 644 and 645 at a companyt estimated between Rs. 2,000 and 4,000. Thus, sums amounting to about Rs. 30,000 had been invested in the acquisition of these properties and companystruction of the houses. Where did this money companye from ? The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is numberprecise evidence as to what salary he was drawing, it companyld number have been negligible, and salary is the least of the income which Tahsildars generally make. The lower Courts came to the companyclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former companyld number be held to be the Foundation for the latter, and on the authority of the decision of the Privy Council in Appalaswami v. Suryanarayanamurti 1 held -that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had number been discharged. The law was thus stated in that case The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does number lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may I.L.R. 1948 Mad. 440 at 447, 448 have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property See Babubhai Girdharlal v. Ujamlal Hargovandas 1 , Venkataramayya v. Seshamma 2 Vythianatha v. Vdradaraja 3 . It is argued for the appellant that in that case the father had obtained under the partition deed, Exhibit A, properties of the value of Rs. 7,220, that he acquired properties of the value of Rs. 55,000, and that never- theless, it was observed by the Privy Council that the acquisition by the appellant of the property under Exhibit A, which as between him and his sons was joint family property, cast upon the appellant the father the burden of proving that the property which he possessed at the time of the plaint was his self-acquired property and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on to the defendants to establish self-acquisition. Whether the evidence adduced by the p plaintiff was sufficient to shift the burden which initially rested on ,him of establishing that there was adequate nucleus out of which the acquisitions companyld have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to companysider is the income which the nucleus yields. A building in the occupation of the members of a family- and yielding numberincome companyld number be a nucleus out of which acquisitions companyld be made, even though it might be of companysiderable value. On the other hand, a running business in which the capital invested is companyparatively small might companyceivably product substantial income, which may well form the foundation of the subsequent acquisitions. These are number abstract questions of law, but questions of fact to be determined on the evidence in the case. In Appalaswami v. Suryanarayanamurti 4 , the nucleus of Rs. 7,220 included 6/16th share in a rice mill and outstandings of the value of Rs. 3,500, and as the acquisitions in question were made during a period of I.L.R. 1937 Bom. 708. I.L.R. 1937 Mad. 1012, I.L.R. 1038 Mad. 696. I.L.R. 1948 Mad. 440. 16 years it was possible that the joint family income might have companytributed therefor. But in the present case, the finding of the Courts is that the income from the lands was number sufficient even for the maintenance of the-members, and on that they were right in holding that the plaintiff had number discharged the initial burden which lay on him. But even if we are to accept the companytention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that that burden had been discharged. In Appalaswami v. Suryanarayanamurti 1 , in holding that the father had discharged the burden of proving that the acquisitions were his own, the Privy Council observed The evidence establishes that the property acquired by the appellant under Exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is numberevidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule, to the written statement. Likewise, in the present -case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result is the same. The companytention of the appellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in companysequence erroneous, must fail. I.L.R. 1948 Mad. 440. It was, next companytended that certain documents which were tendered in evidence had been wrongly rejected by the Courts below, and that the finding of self-acquisition reached without reference to those documents should number be accepted. These documents are judgments in two suits for maintenance instituted by Rukminibai in the Sub-Court, Bijapur, C.S. No. 445 of 1903 and C.S. No. 177 of 1941 and in appeals therefrom, C.A. No. 5 of 1905 and C.A. No. 39 of 1942 respectively in the District Court, Bijapur. These documents, were produced before the, trial Court on 17th July, 1946, along with 28 other documents when the hearing was about to companymence and were rejected. On appeal, dealing with the companyplaint of the plaintiff that these documents had been wrongly rejected, the High, Court observed Apart from the fact that these documents were produced at a very late stage of the case these judgments companyld have been admitted in evidence only if they companyld be shown to be relevant under any of the sections 40 to 44 of the Indian Evidence Act. None of these sections applied in this case. The trial Judge was, therefore, right in number admitting them in evidence. The argument of the appellant is that these judgments are admissible under section 13 of the Evidence Act as instances in which there was an assertion that the suit properties belonged to the joint family. For the respondents, it is companytended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded, that numberquestion of title to the properties was directly involved, and that section 13 was inapplicable. We are unable to accept this companytention. The amount of maintenance to be a warded would depend on the extent of the joint family properties, and an issue was actually frame d on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgments are admissible under section 13 of the Evidence Act as assertions of Rukminibai that the properties number in. dispute belonged to the joint family. But there is another difficulty in the way of the reception of this evidence. It was companytended by the respondents on the basis of the observations in the judgment of the High Court already extracted that the real ground of rejection was that the documents were produced late. The order of the trial Court rejecting the document has number been produced before us. But there, is on the record a petition filed by the plaintiff on 25th July, 1946, after the evidence was closed and before arguments were addressed, for the admission of the 32 documents rejected on 17th July, 1946, and therein it is stated that they have been rejected on the ground of late production. The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidence and the trial would-have to be re-commenced and the prayer for admission of these documents was accordingly opposed. The Court dismissed the petition. The rejection of the documents was therefore clearly made under Order XIII, rule 2, and there are numbergrounds for number setting aside that order and reopening the whole case. This ground of objection must therefore fail. Apart from the Watan lands which are admittedly ancestral, and apart from the purchases made under Exhibits. D-36, D- 61 and D-64 and the houses which we have held to be self- acquisitions, there are certain plots mentioned in Schedule A in which the plaintiff claims a half share. These are the sites on which the houses have been companystructed. The companytention of the plaintiff is that they are ancestral properties. The trial Court held that in the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral, and on that ground, decreed to the plaintiff a half share in S. Nos. 639 and 640. The High Court reversed this decision observing generally that the evidence relating to the house sites was number clear, when they were acquired or by whom, and that in the absence of evidence showing that they formed part of -the joint family properties, they must be held to be self acquisitions. With respect, we are unable to agree with this view. While it is number unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When, therefore, a property is found to have been in the possession of a family from time immemorial, it is number unreasonable to presume that it is ancestral and to throw the burden on the party pleading self-acquisition to establish it. It is necessary in this view to examine the evidence relating to the several plots for which numbertitle deeds have been produced. S. Nos. 634 and 635 form one block, on which one of the houses has been companystructed. The sanads relating to them are Exhibits D-45 and D-46, and they merely recite that the grantee was in occupation of the plots, and that was companyfirmed. There is reference in them to a previous patta granted by the Government. Exhibits 52 to 55 are pattas showing that the properties companyprised therein had been acquired from the Government. If the identity of S. Nos. 634 and 635 with the properties companyprised in these documents had been established, the plea that they are number ancestral would have been made out. But that has number been done, and the presumption in favour of their being ancestral property stands unrebutted. The claim of the plaintiff to a half share therein must be allowed. S. Nos. 639, 640 and 641 form one block, on which there is another house standing. There is numbertitle deed for S. No. 639. Exhibit D-47 is the sanad for S. No. 640, and it merely recognises the previous occupation by the grantee, and that is companysistent with its character as ancestray property. Exhibit D-48 is the sanad for S. No. 641 and is in the same terms as Exhibits D-45 and D-46. The claim of the plaintiff with reference to all these items must be upheld. We have next S. Nos. 642, 644 and 645, on which Devji companystructed a house. The relative sanads are respectively Exhibits D-49, D-50 and D-51. Their companytents are similar to those of Exhibits D-45 and D-46, and for the same reasons, these plots must be held to belong to the joint family. We have next S. No. 622 on which there stands a house. It is clear from Exhibit D-43 that this was purchased by Devji at a Government auction in the year 1909. The plaintiff can lay -no claim to it. Then there is No. 643. The oral evidence relating to this is that a family temple stands on it. It cannot be partitioned. In the result, it must be held that the plots, S. Nos. 634 and 635, S. Nos. 639, 640 and 641 and S. Nos. 642, 644 and 645 are ancestral properties, and that the plaintiff is entitled to a half share therein. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suit. It remains to deal with the claim of the plaintiff for possession of C Schedule properties on the ground that by adoption he became the preferential heir of Swamirao and is companysequently entitled to divest Devji and his successors of these properties. The companytention of the appellant based on the decision of the Privy Council in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 is that on adoption the adopted son acquires all the rights of an aurasa son, that these rights relate back to the date of the death of the adoptive father, and that in companysequence his right to share in the joint family properties and to inherit from the companylaterals should both be worked out as from that date. The companytention of the respondents based on Jivaji Annaji v. Hanmant Ramchandra 2 is that the doctrine of relation back does number extend to properties which are inherited from a companylateral. The question thus raised is one of companysiderable importance, and involves a decision as to the companyrectness of the law as laid down in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 . Considering the question on principle, the ground on which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. As observed by Ameer Ali J. in Pratapsing Shivsing v. Agarsingji Raisingji 3 , 1 70 I.A. 232. I.L.R. 1950 Bom. 5IO 3 46 I.A. 97 at 107. Again it is to be remembered that an adopted son is the companytinuator of his adoptive fathers line exactly as an aurasa son, and that an adoption, so far as the companytinuity of the line is companycerned, has a retrospective effect whenever the adoption may be made there is numberhiatus in the companytinuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law, the Hindu lawyers do number regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the companytinuation of the-line by adoption impossible. It is on this principle that when a widow succeeds to her husbands estate as heir and then makes an adoption, the adopted son is held entitled, as preferential heir, to divest her of the estate. It is on the same principle that when a son dies unmarried and his mother succeeds to his estate as his heir, and then makes an adoption to h er husband, that adopted son is held entitled to divest her of the estate. Vide Vellanki Venkata v. Venkatarama 1 and Verabhai v. Bhai Hiraba 2 . The application of this principle when the adoption was made to a deceased companyarcener raised questions of some difficulty. If a joint family companysisted of two brothers A and B, and A died leaving a widow and the properties were taken by survivorship by B, and then W took a boy X in adoption, the question was whether the adopted son companyld claim a half share in the estate to which A was entitled. It was answered in the affirmative on the ground that his adoption -related back to the date of the death of A. But suppose before W makes an adoption, B dies leaving numberson but a widow C and the estate devolves on her, can W thereafter make an adoption so as to companyfer any rights on X to the estate in the hands of C ? It was held in Chandra v. Gojarabai 3 that the power to make an adoption so as to companyfer a right on the adopted son companyld be exercised only so long as the companyarcenary of which the adoptive father was a member subsisted, and that when the last of the companyarceners died and the properties thereafter devolved on his 1 4 I.A. 1 3 I.L.R. 14 Bom. 463. 2 30 I.A. 234. heir, the companyarcenary had ceased to exist, and that therefore W companyld number adopt so as to divest the estate which had vested in the heir of the last companyarcener. In view of the pronouncements of the Judicial Committee in Pratapsing Shivsing v. Agarsingji Raisingji 1 and Amarendra Mansingh Sanatan Singh 2 that the validity of an adoption did number depend on whether the adopted son companyld divest an estate which had devolved by inheritance or number, a Fall Bench of the Bombay High Court held in Balu Sakharam v. Lahoo Sambhaji 3 that in such cases the adoption would be valid, but that the estate which had devolved upon the heir companyld number be divested. In Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 4 , the Privy Council dissented from this view, and held that the companyarcenary must be held to subsist so long as there was in existence a widow of a companyarcerier capable of bringing a son into existence by adoption, and if she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as companyarcener would prevail as against the title of any person claiming as heir of the last companyarcener. In substance, the estate in the hands of such heir was treated as impressed with the character of companyarcenary property so long as there was a widow alive who companyld make an adoption. This principle was re-affirmed in Neelangouda Limbangouda v. Ujjan Gouda 5 . Thus far, the scope of the principle of relation back is clear. It applies only when the claim made by the adopted son relates to the -estate of his adoptive father. This estate may be definite and ascertained as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the companyarceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. The point for 1 46 I.A. 97. 4 70 I.A. 232. 2 6o I.A. 242. 5 A.I.R. 1948 P.C. 165 50 Bom.L.R. 682. I.L.R. 1937 BOM. 508. determination number is whether this doctrine of relation back can be applied when the claim made by the adopted son relates number to the estate of his adoptive father but of a companylateral. The theory on which this doctrine is based is that there should be numberhiatus in, the companytinuity of the line of the adoptive father. That, by its very nature, can apply only to him and number to his companylaterals. In the Oxford Dictionary the word companylateral is defined as meaning descended from the same stock but number in the same line. The reason behind the rule that there should be companytinuity in line does number warrant its extension to companylaterals. Nor is there any authority until we companye to the decision in Anant Bhikappa Patil Minor v.Shankar Ramchandra Patil 1 , which applied the theory of relation back to the properties inherited from companylaterals. With reference to them, the governing principle was that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law, it is thereafter number liable to be divested. The law is thus stated in Mullas Hindu Law, 11th Edition, at pages 20 and 21 On the death of a Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferential heir where such heir was number companyceived at the time of the owners death. Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was companyceived at the time of his death, or by adoption in certain cases of a son to the deceased. In Bhubaneswari Debi v. Nilkomul Lahiri 2 , the facts were that Chandmoni, the widow of one Rammohun, died on 15th June, 1867, and the estate ,devolved on his nephew, Nilkomul as reversioner. Subsequently, Bhubaneswari Debi, the widow of a 1 70 I.A. 232. 2 12 I.A.137. brother of Rammohun called Sibnath, took a boy, Jotindra, in adoption, and the suit was by him for half a share in the estate. If his adoption companyld relate back to the date of death of Sibnath, which was on 28th May, 1861, Jotindra would be entitled to share the inheritance equally with Nilkomul. That was the argument put forward in support of his claim. Vide page 139 ., In negativing this companytention, Sir Barnes Peacock observed- According to the law as laid down in the decided cases, an adoption after the death of a companylateral does number entitle the adopted son to companye in as heir of the companylateral. It is true that reference is also made to the fact that the boy adopted was number actually in existence on the date of the death of Chandmoni but that, however, would make numberdifference in the legal position, if the principle of relation back was applicable. One of the cases which the Privy Council had in mind was Kally Prosonno Ghose v. Gocool Chunder Mitter 1 , which was relied on in the High Court. Vide Nilkomul Lahuri v. Jotendro Mohan Lahuri 2 . There, it was hold that an adopted son companyld number claim the estate of his adoptive fathers paternal uncle, which had devolved by inheritance prior to his adoption. In 1888 Golapchandra Sarkar Sastri observed in his Tagore Law Lectures on the Law of Adoption As regards companylateral succession opening before, adoption, it has been held that an adoption cannot relate back to the death of the adoptive father so as to entitle the adopted son to claim the estate of a companylateral relation, succession to which opened before his adoption. Vide pages 413 and 414 . The law was thus well settled that when succession to the properties of a person other than an adoptive father was involved, ,the principle applicable was number the rule of relation back but the rule that inheritance once vested companyld number be divested. Before examining the decision in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 3 , it is I.IR. 2 Cal. 295. I.L.R. 7 Cal. 178. 3 70 I.A. 232. necessary, to refer to the earlier pronouncements of the PrivY Council on the question, which formed the basis of that decision. In Pratap Sing Shivsing v. Agarsinqit Raisingji 1 the question related to a jivai grant of the village of Piperia which had been made by the Ruler of Gamph to a junior member on companydition, that in default of male descendants it should revert to the thakur. The last incumbent, Kaliansing, died issueless in October, 1903, leaving him surviving his widow, Bai Devla. On 12th March, 1904, she adopted Pratapsing Shivsing. The thakur then sued to recover possession of the village on the ground that the adopted son was number a descendant companytemplated by the grant, and that the adoption was invalid, as it would divest him of the village which had vested in him in October, 1903. With reference to the first companytention, the Judicial Committee observed that under the Hindu Law an adopted son was as much a descendant as an aurasa son. On the second companytention, they held that the principles laid down in Raghunandha v. Brozo Kishoro 2 and Bachoo Hurkisondas. Mankorebai 3 as to divesting of joint family properties which had vested in other persons were applicable, and that having regard to the interval between the date of the death of Kaliansing and the date of the adoption Pratapsing companyld be treated as a posthumous son. It will be numbericed that the thakur did number claim to succeed to the village on the death of Kaliansing as his heir but on the ground of reverter under the terms of the grant, and numberquestion of relation back of title with reference to the succession of a companylaterals estate was involved. In Amarendra Mansingh v. Sanalan Singh 1 , the question arose with reference to an impartible zamindari known as Dompara Rai in Orissa. The last of its holder, Raja Bibhudendra, died on 10th December, 1922, unmarried, and by reason of a family custom which excluded females from succeeding to the Raj, a companylateral Banamalai succeeded to it. On 18th December, 1922, Indumati, the mother of Bibhudendra, adopted Amarendra to her husband, Brajendra. The question 1 46 I.A. 97. 3 34 I.A. 107. 2 3 I.A. 154. 4 60 1,A, 242, was whether by his adoption Amarendra companyld divest BanamaIai of the estate. It was held by the Privy Council that the validity of an adoption did number depend on whether an estate companyld be divested or number, and that the point to be companysidered was whether the power to adopt had companye -to an end by there having companye into existence a son, who had attained the full legal capacity to companytinue the line. Applying these principles, the Judicial Committee decided that the adoption was valid, and that Amarendra took the estate as the preferential heir. It will be seen that in this case numberclaim of the adopted son to succeed to a companylateral was involved, and numberquestion arose as to how far the theory of relation back companyld be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra, and if the adoption was at all valid, it related back to the date of Brajendras death, and enabled Amarendra to divest Banamalai. The point for determination actually was whether by reason of Bibhudendra having lived for about 20 years, the power of his mother to adopt to her husband had companye to an end. It may be numbered that but for the special custom which excluded women from inheriting, Indumati would have succeeded Bibhudendra as mother, and an adoption by her would divest her of the estate and vest it in Amarendra, and the case would be governed by the decisions in Vellanki Venkata v. Venkatarama 1 and Verabhai Bhai Hiraba 2 . The only difference between these cases and Amarendra Mansingh v. Sanatan Singh 3 was that on the death of Bibhudendra his heir was number Indumati but Banamalai. This decision might be taken at the most to be an authority for the position that when an adoption is made to A, the adopted son is entitled to recover the estate of A number merely when it has vested in his widow who makes the- adoption but also in any other heir of his. It is numberauthority for the companytention that he is entitled to recover the estate of B which had vested in his heir prior to his adoption to A. Vijaysingji Chhatrasingji v. Shipsangji Bhim,,sangji 4 is a case similar to the one in Amarendra Mansingh v. Sanatan Singh 3 . The property companycerned was 1 4 I. A. T. 3 60 I.A. 242. 2 30 I.A. 234. 4 62 I.A. 161, an impartible estate. Chandrasangji who was one of the holders of the estate died, and was succeeded by his son, Chhatrasingji. Chhatrasingji was then given away in adoption, and thereafter Bhimsagji, the. brother of Chhatrasingji, succeed ed to the estate. Then the widow of Chhatrasingji made an adoption, and the question was whether the adopted son companyld divest the estate in the bands of Bhimsangji. It was held that he companyld. Here again, there was numberquestion of companylateral succession, the point for decision being precisely the same as in Amarendra Mansingh Sanatan Singh 1 . We next companye to the decision in Anant Bhikappa Patil Minor Shankar Ramchandra Patil 2 . The facts of that case were that one Bhikappa died in 1905, leaving him surviving his widow, Gangabai, and an undivided son Keshav. In 1908 Narayan, the divided brother of Bhikappa died, and Keshav succeeded to his properties as heir. In 1917 Keshav died unmarried, and as the properties were Watan lands, they devolved on a companylateral, Shankar. In 1930 Gangabai adopted Anant, and he sued Shankar to recover possession of the properties as the adopted son of Bhikappa. The High Court had held that as the joint family ceased to exist in 1917 when-Keshav died, and as the properties had devolved on Shankar as his heir, the adoption, though valid, companyld number divest him of those properties. The Privy Council held that the companyarcenary must be taken to companytinue so long as there was alive a widow of the deceased companyarcener, and that GaDgabais adoption had the effect of vesting the family estate in Anant, even though it had descended on Shankar as the heir of Keshav. The decision so far as it relates to joint family properties calls for numbercomment. When once it is held that the companyarcenary subsists so long as there is a widow of a companyarcener alive, the companyclusion must follow that the adoption of Anant by Gangabai was valid and operated to vest in him the joint family properties which had devolved on Shankar. Then, there were the properties which Keshav had inherited from Narayan , -which had also devolved on Shankar as his 1 60 I-A, 242. 2 701 I.A. 232, heir. With reference to them, the Privy Council observed If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a companylateral of his who is more remote than a natural brother would have been, and to companystitute the adopted person the next heir of the last male owner, numberdistinction can in this respect be drawn between pro perty which had companye to the last male owner from his father and any other property which he may have acquired. On this reasoning, it was held that Anant was entitled also to the properties inherited by Keshav from Narayan. Anant Bhikappa Patil Minor v. Shankar Ram Chandra Patil 1 must, in our opinion, be taken to decide that the doctrine of relation back will apply number only as regards what was joint family estate but also properties which had devolved by inheritance from a companylateral. Otherwise, it is impossible to justify the companyclusion that the personal properties of Keshav which had vested in Shankar in 1917 would re-vest in Anant even though he was adopted only in 1930. The question arise how this decision is to be reconciled with the principle laid down in Bhubaneswari Debi v. Nilkomul Lahiri 2 that an adoption made subsequent to the death of a companylateral do-es number divest the inheritance which had vested prior to that date. That that principle was number intended to be departed from is clear from the following observations of Sir George Raiikin Neither the present case number Amarendras case 3 brings into question the rule of law companysidered in Bhuba neswari Debi v. Nilkomul Lahiri 3 of Kalidas Das v. Krishnachandra Das 4 Their Lordships say numberhing as to these decisions which appear to apply only to cases of inheritance Nor does the discussion in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 throw much light on this matter. Considerable emphasis is laid on the fact that a ooparcener has only a fluctuating interest in the joint family properties, that it may increase by death and decrease by birth, and that such a qualified 1 70 I.A.232. 3 60 I. A. 242. 2 12 I.A. 137. 4 2 B.L.R. 103 F.B. interest as that must carry with it the liability to be divested by the introduction of a new companyarcener by adoption. This reasoning, however, is wholly inapplicable to property which is number held in companyarcenary, such as the estate of a companylateral devolving by inheritance. The judgment then refers to the decisions of the Board in Amarendra Mansingh v. Sanatan Singh 1 and Vijaysingji Chhatrasingji v. Shivsangji Bhimsangji 2 , and it is observed that the impartible estates which were companycerned therein were treated as separate property and number as joint family property, a companyclusion which does number settle the question, because even on the footing that the estates were separate properties, numberquestion of companylateral succession was involved in them, the claim under litigation being in respect of the estate of the adoptive father and companyered by the principle already established in Vellanki Venkata v. Venkatarama 3 and Verabhai v. Bhai Hiraba 4 . Then follows the companyclusion already quoted that numberdistinction can be drawn between properties which companye from the father and properties which companye from others. This is to ignore the principle that the doctrine of relation back based on the numberion of companytinuity of line can apply and had been applied, only to the estate of the adoptive father and number of companylaterals. We may number turn to Jivaji Annaji v. Hanmant Ram. Chandra 5 wherein the scope of the decision in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 6 came up for companysideration. There, the material facts were that Keshav and Annappa who were members of a joint family effected a partition, and thereafter, Annappa died in 1901, leaving behind a widow, Tungabai. Keshav died leaving behind a son, Vishnu, who died in 1918 without male issue, and the property being Watan lands devolved on a companylateral called Hanmant as his heir. In 1922 Tungabai adopted Jivaji. The question was whether he was entitled to divest the properties which had become vested in Hanmant as the preferential heir of Vishnu, and the decision was that he was number. It will be numbericed that 1 60 I.A. 242. 4 30 I.A. 234. 2 62 I.A. 161. 5 I.L.R. 1950 Bom. 510. 3 4 I.A. 1. 6 70 I.A. 232. Annappa to whom the adoption was made had at the time of his death become divided from his brother, and the principles applicable to adoption by a widow of a deceased companyarcener had therefore numberapplication. It was a case in which the adopted son laid a claim to properties, number on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a companylateral to whom he was entitled to succeed as a preferential heir, and it was sought to divest Hanmant of the properties which had vested in him in 1918 on the strength of the decision in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 The companytention was that if Anant companyld as adopted son divest the personal properties of Keshav which had devolved on Shankar as his preferential heir, Jivaji companyld also divest the properties which had devolved on Hanmant as the preferential heir of Vishnu. The learned Judges made numbersecret of the fact that this companytention received support from the decision in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 but they were impressed by the fact that the statement of the law in Bhubaneswari Debi v. Nilkomul Lahiri 2 as to the rights of an adopted son quoad the estate of a companylateral had been reaffirmed, and they accordingly held that the decision in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 did number intend to alter the previous law that an adopted son companyld number divest properties which had been inherited from a companylateral prior to the date of adoption. They distinguished the actual decision on the ground that as Keshav had vested in him both the ancestral properties as well as the properties inherited from Narayan, and as admittedly there was a relation back of the rights of Anant in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from companylaterals, the fact that both classes of properties are held by the same person can make numberdifference in the quality of those rights. The position will 1 70 I.A. 232. 2 12 1 A. 137. be analogous to that of a companyarcener who has also self- acquisitions, in which case, the devolution by survivorship of joint family properties does number affect the devolution by inheritance of the separate properties. The fact is, as frankly companyceded by the learned Judges, they were puzzled by the decision in Anant Bhikappa Patil Minor Shankar Ramchandra Patil 1 , and as it was an authority binding on the Indian Courts, they companyld number refuse to follow it, and were obliged to discover a distinction. This Court, however, is number hampered by any such limitation, and is free to companysider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a companylateral, which had devolved by inheritance prior to his adoption, Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 went far beyond what had been previously understood to be the law. It is number in companysonance with the principle well established in Indian jurisprudence that an inheritance companyld number be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient. When an adoption is made by a widow of either a companyarcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or companyarceners in a joint family, are amply protected. But numbersuch safeguard exists in respect of property inherited from a companylateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have numberprotection, as there companyld be numberquestion of supporting the alienations on the ground of necessity 1 70 I.A. 232. or benefit. And if the adoption takes place long after the succession to the companylateral had opened-in this case it was 41 years thereafter -and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to companysequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should number be extended so as to lead to unjust results. We are of opinion that the decision in Anant Bhikappa Patil Minor v. Shankar Ramchandra Patil 1 in so far as it relates to properties inherited from companylaterals is number sound, and that in respect of such properties the adopted son can lay numberclaim on the ground of relation back. The decision of the High Court in respect of C, Schedule properties must therefore be affirmed. It was I finally companytended that the defendants had blended C Schedule properties along with the admitted ancestral properties so as to impress them with the character of joint family properties. The burden of proving blending is heavily on the plaintiff. He has to establish that the defendants had so dealt with the properties. as to show an intention I to abandon their separate claim over it. This is a question of fact on which the Courts below have companycurrently found against the appellant, and there are numbergrounds for differing from them. In the result, the decree of the lower Court will be modified by granting the plaintiff a decree for half the value of the plots, S. Nos. 634 and 635, S. Nos. 639, 640 and 641and S. Nos.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 182 and 183 of 1954. Appeals under article 132 1 of the Constitution of India from the Judgment and Order, dated the 17th November, 1953, of the High Court of Judicature at Allahabad in Civil Miscellaneous Writ No. 414 of 1953, companynected with Civil Miscellaneous Writs Nos. 537, 579 to 582, 587 to 595, 597 to 603, 617 to 620, 622, 623, 626 to 629, 633, 634, 638, 639, 651 to 654, 677 all of 1952 and 339 to 342, 351 to 355, 363, 372 to 374, 397, 416 to 464, 504 and 505 of 1953. S. Pathak V. D. Bhargava and Naunit Lal, with him for the appellants. L. Misra, Advocate-General for the State of U.P., and Jagdish Swarup J. K. Srivastva and C. P. Lal, with them for the respondents. 1954. October 13. The Judgment of the Court was delivered by MUKHERJEA J.-The appellant in these two analogous appeals, along with many others, have been carrying on the business of plying motor vehicles, as ,stage carriages on hire, on the Bulandshabr-Delhi route from a number of years past. The running of these vehicles has been regulated so long by the Motor Vehicles Act of 1939 which provides, inter alia, for granting of driving licences, the registration of vehicles and exercising companytrol over transport vehicles through permits granted by Regional Transport Authorities. Section 42 3 of the Act exempts transport vehicles, owned by or on behalf of the Central Government or the Provincial Government from the necessity of obtaining permits unless the vehicles were used in companynection Path the business of an Indian State Railway. It appears, that some time after 1947 the Government of U. P. companyceived the idea of running their own buses on the public thoroughfares. They first started running buses only as companypetitors with the private operators but later on they decided to exclude all private bus owners from the field and establish a companyplete State monopoly in respect to the road transport business. They sought to achieve this object by calling in aid the provisions of the Motor Vehicles Act itself. Under section 42 3 of the Act as mentioned above, the Government had number to obtain permits for their own vehicles and they companyld run any number of buses as they liked without the necessity of taking out permits for them. The Transport Authorities, in furtherance of -this State policy, began cancelling the permits already issued to private operators and refusing permits to people who would otherwise have been entitled to them. Upon this, a number of private bus owners filed petitions in the Allahabad High Court under article 226 of the Constitution praying for appropriate relief, by way of writs, against what was described as the illegal use of the provisions of the Motor Vehicles Act -by the Government of U. P. These petitions were heard by a Full Bench of five Judges and four judgments were delivered dealing with various questions that were raised by the parties. A majority of the judges expressed the opinion that the State, purporting to act under section 42 3 of the Motor Vehicles Act, companyld number discriminate against other persons in their own favour and that the sub- section, in so far as it purports to exempt State Transport buses from the obligation to obtain permits for their use, companyflicts with article 14 of the Constitution. All the judges companycurred in holding that nationalisation of an industry was number possible by a mere executive order without appropriate legislation and such legislation would probably have to be justified under article 19 6 of the Constitution. As a result of this decision the Transport Authorities were directed to deal with the applications for permits, made by the various private bus owners, in accordance with the provisions of the Motor Vehicles Act, without in any way being influenced by the companysideration that the State Government wanted to run buses of their own on certain routes. In view of this pronouncement of law, the State Government, which wanted to have the exclusive right to operate Road Transport Services within its territory, sought the assistance of the Legislature and the U. P. Road Transport Act Act II of 1951 was passed and became law on and from the 10th of February, 1951. It is the companystitutional validity of this enactment which is the subject-matter of companytest in these present proceedings. The preamble to the Road Transport Act hereinafter called The Act says Whereas it is expedient in the interest of the general public and for the promotion of the suitable and efficient road transport to provide -for a State Road Transport Services in Uttar Pradesh, it is enacted as follows. Section 2 gives definitions of certain terms, while section 3, which is the most material section in the Act, embodies virtually its whole purpose. It provides that where the State Government is satisfied that it is necessary, in the interest of general public and for sub- serving the companymon good, so to direct, it may declare that the Road Transport Services in general, or any particular class of such service on any route or portion thereof, shall be run and operated by the State Government exclusively or by the State Government in companyjunction with railway or partly by the State Government and partly by others in accordance with the provisions of this Act. Section 4 provides for publication of a scheme framed in accordance with the above declaration and objections to such scheme can be made by interested persons in the manner laid down in section 5. As soon as the scheme is finalised, certain companysequences follow which are detailed in section 7. So long as the scheme companytinues in force, the State Government shall have the exclusive right to operate Road Transport Services, or if the scheme so provides, a certain fixed number of transport vehicles belonging to others can also be run on those roads. The State Government shall be authorised in all such cases to direct the dispensation of the State Transport vehicles from the necessity of taking out permits, or to cancel, alter or modify any existing permits or to add any fresh companydition to any permit in respect of any transport vehicle. The remaining portion of the Act purports to lay down how the provisions of the Act are to be worked out and implemented. Sections 8 and 9 provide respectively for the appointment of a Transport Commission and Advisory Committees. Under section 10 the State Government may delegate its powers under the Act to an officer or authority subordinate to it. Section 12 makes it an offence for any person to drive a public service vehicle or allow such vehicle to be used in companytravention of the provisions of section 7. It is number necessary to refer to the provisions of the remaining sections as they are number material for our present purpose. By a numberification dated the 25th of March, 1953, the U. Government published a declaration in terms of section 3 of the Act, to the effect, that the State carriage services, among others, on the Bulandshar Delhi route, shall be run and operated exclusively by the State Government. A further numberification issued on the 7th of April following set out what purported to be a scheme for the operation of the State carriage services on these routes. Thereupon the two appel- lants as well as several other private bus owners numbering 106 in all, who plied transport buses on these routes, presented petitions under article 226 of the Constitution before the High Court at Allahabad praying for writs, in the nature of mandamus, directing the U. P. Government and the State Transport Authorities number to interfere with the operation of the stage carriages of the petitioners and to refrain from operating the State Road Transport Service except in accordance with the provisions of the Motor Vehicles Act. The companystitutional validity of the Act was challenged on a number of grounds, the principal companytentions being 1 that the Act was discriminatory in its character and companytravened the provisions of article 14 of the Constitution 2 that it companyflicted with the fundamental rights of the petitioners guaranteed under article 19 1 g of the Constitution and 3 that it was an invalid piece of legislation as it purported to acquire the interest of the petitioners in a companymercial undertaking without making any provision for companypensation as is required under article 31 2 of the Constitution. It was further argued that the Act violated the guarantee of freedom of inter-State and intra- state trade embodied in article 301 of the Constitution. All these writ petitions were heard by a Division Bench of the High Court companysisting of Mukherji and Chaturvedi JJ. By two separate but companycurring judgments dated the 17th of November, 1953, the learned Judges repelled all the companytentions of the petitioners and dismissed the writ petitions. It is against this decision that these two appeals have companye up to this Court on the strength of certificates granted by the High Court and Mr. Gopal Swarup Pathak appearing in support of the appeals has reiterated practically all the grounds which were urged on behalf of his clients in the Court below. We will take up these points in proper order and it will be companyvenient first of all to address ourselves to the two allied questions, viz., whether the appellants companyld claim any fundamental right under article 19 1 g of the Constitution which can be said to have been violated by the impugned legislation, and whether the Act has deprived them of any property which would attract the operation of article 31 of the Constitution? Mr. Pathak argues that a right to carry on any occupation, trade or business is guaranteed to all citizens by article 19 1 g of the Constitution. The appellants in the present cases were carrying on the business of plying buses on hire on a public highway until number and the Act which prevents them from pursuing that trade or business companyflicts therefore with the fundamental right guaranteed under article 19 1 g of the Constitution. It is said also that this beneficial interest of the appellants in the companymercial undertaking is property within the meaning of article 31 2 of the Constitution and as the Act does number companyform to the requirements of that article, it must be held to be void. Mr. Pathak put forward another and a somewhat numberel argument that the right of the appellants to use a public highway for purposes of trade is in the nature of an easement and as such can be reckoned as property in law companysequently there has been a deprivation of property by the impugned legislation in this sense also. This companytention seems to us to be untenable and it was rightly abandoned by the learned companynsel. The Advocate-General appearing for the State of U. P. did number and companyld number dispute that a right to pursue any trade, business or occupation of ones choice is guaranteed by the Constitution. He says however that this does number mean that a citizen can carry on his trade or business anywhere he likes and such right is also guaranteed by the Constitution. He must have a legal right to use a particular place for purposes of his trade or business, before he can resist any encroachment upon it on the strength of the companystitutional guarantee. His argument in substance is, that the bus owners, as members of the public, have numberlegal right to ply buses on hire on any public road. The only right which a member of the public can assert in respect of a highway is the right of passing and repassing over it. The State in which all public ways vest under the law has the sole right to determine whether it would allow any citizen to carry on a trade or business upon a public highway and if so, to what extent. The citizen has numberinherent right in this respect apart from any State sanction. The position, therefore is, that the rights of the appellants, as indeed those of the other bus owners, are created entirely by State legislation and by State legislation they companyld be deprived of the same. There is numberquestion of any companyflict with the fundamental right guaranteed under article 19 1 g of the Constitution in such cases. The argument requires careful companysideration. It is number disputed that the Bulandshahr-Delhi route is a part of the Grand Trunk Road which is a public highway. According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or implied, by the owner of land of a right of passage over it to the public and the acceptance of that right by the public 1 . In the large majority of cases this dedication is presumed from long and uninterrupted Vide Pratt Mackenzie on Law of Highways, 19th edn. p. 13. user of a way by the public, and the presumption in such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the soil and it is number even material to enquire who the owner was . The fact that the members of the public have a right of passing and repassing over a highway does number mean however that all highways companyld be legitimately used as foot passages only and that any other user is possible only with the permission or sufferance of the State. It is from the nature of the user that the extent of the right of passage has to be inferred and the settled principle is that the right extends to all forms of traffic which have been usual and accustomed and also to all which are reasonably similar and incidental thereto 2 . The law has thus been stated in Halsburys Laws of England 1 Where a highway originates in an inferred dedication, it is a question of fact what kind of traffic it was so dedicated for, having regard to the character of the way and the nature of the user prior to the date at which -they infer dedication and a right of passage once acquired will extend to more modern forms of traffic reasonably similar to those for which the highway was originally dedicated, so long as they do number impose a substantially greater burden on the owner of the soil. There can be numberdispute that the Grand Trunk Road which, as a public highway, has been in existence since the 15th Century A. D. has been used for all sorts of vehicular traffic that were in vogue at different times. Motor vehicles were certainly number known when the road came into existence but the use of motor vehicles in modern times as means of locomotion and transport companyld number, on the principle stated above, amount to an unwarrantable extension of the accustomed user to which the highway is subjected. If there is any danger to the road by reason of such user, or if such user by one interferes with the user by others, it is up to the State to regulate the motor traffic or reduce the number or weigh of vehicles on the road in any way it Ibid page 28. 2 lbid page 35. Vol. i 6, p. 185. likes, and to that numberobjection can possibly be taken. But the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights over a highway. The State only companytrols and regulates it for the purpose of ensuring safety, peace, health and good morals of the public. Once the position is accepted that a member of the public is entitled to ply motor vehicles on the public road as an incident of his right of passage over a highway, the question is really immaterial whether he plies a vehicle for pleasure or pastime or for the purpose of trade and business. The nature of the right in respect to the highway is number in any way affected thereby and we cannot agree with the learned AdvocateGeneral that the user of a public road for purposes of trade is an extraordinary or special use of the highway which can be acquired only under special sanction from the State. The learned Advocate-General in support of his companytention has referred us to a few American cases on the point. In the case of Packard v. Banton 1 , Sutherland J. observed as follows The streets belong to the public and are primarily for the use of the public in the ordinary way. Their use for purposes of gain is special and extraordinary and generally at least may be prohibited or companyditioned as the Legislature deems proper. This decision was approved in Frost v. Railroad Commission 1 , and again in Stephenson v. Binford 3 , where Sutherland J. practically reiterated his observations in the previous case as follows It is a well established law that the highways of the State are public property that their primary and preferred use is for private purposes and that their use for purposes of gain is special and extraordinary which generally at least the Legislature may prohibit or companydition as it sees fit. 1 68 L.E. 596 264 U.S 140. 3 77 L.E. 288, 294 2 7o L.E. 1101 1108. 4 I.L.R. 1951 All. 257. We do number think that this is the law of India under our Constitution. The cases referred to above were numbericed by the Allahabad High Court in the Full Bench decision of Motilal v. Uttar Pradesh Government 1 , and two of the learned Judges companystituting the Full Bench expressed their opinion that this doctrine of exceptional user might have been evolved by the American Courts in the same way as they evolved the doctrine of police powers. They both held that this American rule did number embody the English or the Indian law on the subject. This identical point was investigated with companysiderable thoroughness in a recent decision of the Madras High Court in C. S. S. Motor Service v. State of Madras 2 , and it was pointed out by Venkatarama Ayyar J. who delivered the judgment of the Court, that the rule of special or extraordinary use of highways in America had its roots in the doctrine of franchise, which is still a recognised institution in that companyntry. The doctrine of franchise or privilege has its origin in English Common Law and was bound up with the old prerogative of the Crown. This doctrine companytinued to live in the American legal world as a survival of the pre-independence days, though in an altered form. The place of the royal grants under the English Common Law was taken by the legislative grants in America and the grant of special rights by legislation to particular individuals or companypanies is regarded there as a franchise or Privilege differing from the ordinary liberties of a citizen. The carrying on of transport buses by companymon carriers on the public road in America is a franchise and number a companymon law right, which companyld be claimed by all citizens and a distinction is made, as the cases cited above will show, between companytract carriers who carry passengers or goods under particular companytracts and companymon carriers whose business is affected with public interest. Over the latter the State claims and exercises a plenary power of companytrol. Ayyar J. has, in our opinion, rightly pointed out that this doctrine of franchise has numberplace in our Constitution. Under the Indian Constitution the companytract I.L.R. 1951 All. 257. 2 1952 2 M.L.J. 894. carries as well as the companymon carriers would occupy the same position so far as the guaranteed right under article 19 1 g is companycerned and both are liable to be companytrolled by appropriate regulations under clause 6 of that article. The law on the point, as it stands at present, has been thus summed up by the learned Judge The true position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways. We are in entire agreement with the statement of law made in these passages. Within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on of the trade or business that the guarantee in article 19 1 g is attracted and a citizen can legitimately companyplain if any legislation takes away or curtails that right any more than is permissible under clause 6 of that article. The legislation in the present case has excluded all private bus owners from the field of transport business. Prima facie it is an infraction of the provision of article 19 1 g of the Constitution and the question for our companysideration therefore is whether this invasion by the Legislature of the fundamental right can be justified under the provision of clause 6 of article 19 on the ground that it imposes reasonable restrictions on the exercise of the right in the interests of the general public. Article 19 6 of the Constitution, as it stands after the amendment of 1951, makes a three-fold provision by way of exception to or limitation upon clause 1 g of the article. In the first place it empowers the State to impose reasonable restrictions upon the freedom of trade, business, occupation or profession in the interests of the general public. In the second place it empowers the State to prescribe the professional and technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. Thirdly,-and this is the result of the Constitution First Amendment Act of 1951-it enables the State to carry on any trade or business either by itself or through a companyporation owned or companytrolled by the State to the exclusion of private citizens wholly or in part. It is number disputed that the third provision which was introduced by the amendment of the Constitution in 1951 was number in existence when the impugned Act was passed and the High Court rightly held that the validity of the Act is number to be decided by applying the provision of the new clause. The learned Judges held however that quite apart from the new provision, the creation of a State monopoly in regard to transport service, as has been done under the Act, companyld be justified as reasonable restrictions upon the fundamental right enunciated in article 19 1 g of the Constitution imposed in the interests of the general public. The question is, whether the view taken by the High Court is right? To answer this question three things will have to be companysidered. The first is, whether the expression restriction as used in article 19 6 and for the matter of that in the other sub-clauses of the article, means and includes total deprivation as well? If the answer is in the affirmative, then only the other two questions would arise, namely, whether these restrictions are reasonable and have been imposed in the interests of the general public ? According to the meaning given in the Oxford Dictionary, the word restriction company. numberes a limitation imposed upon a person or a thing, a companydition or regulation of this nature, though the use of the word in the sense of suppression is number altogether unknown. In the case of Municipal Corporation of the City of Toronto v. Virgo 1 , Lord Davey while discussing a statutory power companyferred on a Municipal Council to make bye-laws for regulating and governing a trade made the following observation No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think that there is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the companytinued existence of that which is to be regulated or governed. This line of reasoning receives support from the observations made by some of the learned Judges of this Court in their respective judgments in the case of A. K. Gopalan v. The State 2 . The question for companysideration in that case was the companystitutional validity of the Preventive Detention Act and one of the companytentions raised by the learned companynsel for the appellant in attacking the validity of the legislation was, that it invaded the right of free movement guaranteed under article 19 1 d of the Constitution and as the restrictions imposed by it companyld number be regarded as reasonable restrictions within the meaning of clause 5 of the article, the enactment should be held to be void. This argument was repelled by the majority of the Judges inter alia on the ground that a law which authorises the deprivation of personal liberty did number fall within the purview of article 19 and its validity was number to be judge d by the criteria indicated in that article but depended on its companypliance with the requirements of articles 21 and 22 of the Constitution. The expression Personal liberty as used in article 21, it was said, was sufficiently companyprehensive to include the particular freedoms enumerated in article 19 1 and its deprivation therefore in accordance with the provision of article 21 would result in automatic extinction of the other freedoms also. In this companynection reference was made to 1 1896 A.C. 88,93. 2 1950 S.C.R. 88. the several sub-clauses of article 19 and Patanjali Sastri J. expressed his views in the following words The use of the word restrictions in the various sub- clauses seems to imply, in the companytext, that the rights guaranteed by the Article are still capable of being exercised, and to exclude the idea of incarceration though the words restriction and deprivation are sometimes used as inter- changeable terms, as restriction may reach a point where it may well amount to deprivation. Read as a whole and viewed in its setting among the group of provisions relating to right to freedom, Article 19 seems to my mind to presuppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum of personal freedom on which alone the enjoyment of these rights necessarily rests. The point for companysideration in that case was undoubtedly different from the one that has arisen in the present case and the question whether the restrictions enumerated in the several sub-clauses of article 19 companyld go to the length of total deprivation of these liberties was neither raised number decided in that case. But a distinction was drawn by the majority of learned Judges between negation or deprivation of a right and a restriction upon it and although it was said. that restriction may reach a point where it might amount to deprivation, yet restrictions would numbermally pre- suppose the companytinued existence-no matter even in a very thin and attenuated form-of the thing upon which the restrictions were imposed. Kania C.J. in his judgment vide page 106 expressly said Therefore Article 19 5 cannot apply to a substantive law depriving a citizen of personal liberty. I am unable to accept the companytention that the word deprivation includes within its scope restriction when interpreting Article 21. Against this view it may be urged that the use of the words deprivation and restrictions as interchangeable expressions is number altogether unusual in ordinary language and the nature and extent of restrictions might in some cases amount to a negation of the right. The Orissa, High Court in the care of Lokanath Misra v. The State of Orissa 1 accepted this view and made a distinction between regulation and restriction. In the opinion of the learned Judges the observations of Lord Davey in Municipal Corporation of the City of Toronto v. Virgo supra referred to above companyld be distinguished on the ground that the expression used in that article was number restriction but regulation and governing. It is said that the framers of the Constitution were aware of the distinction between the power to regulate and the power to restrict and this would be apparent from a scrutiny of sub-clause a of clause 2 of article 25 of the Constitution where the words regulating and restricting occur in juxtaposition indicating thereby that they were number intended to companyvey the same meaning. On behalf of the respondents much reliance has also been placed on a decision of this Court in Cooverjee v. The Excise COMMISSIONER, etc. 2 where the point for companysideration was the validity of the Excise Regulation I of 1915. It was companytended, inter alia, on behalf of the appellant in that case that the Excise Regulation and the auction sales made thereunder were ultra vires, as the law purported to grant monopoly of that trade to a few persons and this was inconsistent with article 19 1 g of the Constitution. This companytention was negatived and this Court held that for the purpose of determining reasonable restrictions within the meaning of article 19 6 of the Constitution on the right given under article 19 1 g , regard must be had to the nature of the business and the companyditions prevailing in a particular trade. The State has certainly the right to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. The relevant portion of the judgment runs as follows Article 19 1 g of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business, and clause 6 of the article authorises legislation which imposes reasonable restrictions on this right in the interests of the general public. It was number disputed that in order to determine the reasonableness A.I.R. 1952 Orissa 42, 2 1954 S.C. R. 873. of the restriction regard must be had to the nature of the business and the companyditions prevailing in that trade It can also number be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in numberious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and number a mere regulation. It is companytended on behalf of the respondents that these observations clearly indicate that the expression reasonable restriction as used in article 19 6 of the Constitution might, in certain circumstances, include total prohibition. It may be mentioned here that the Excise Regulation is number a prohibitory statute which prohibits trading in liquor by private citizens altogether. It purports to regulate the trade in a particular way, namely, by putting up the right of trading in liquor in specified areas to the highest bidder in auction sale. The general observations occurring in the judgment cited above must therefore have to be taken with reference to the facts of that case. Be that as it may, although in our opinion the numbermal use of the word restriction seems, to be in the sense of limitation and number extinction, we would on this occasion prefer number to express any final opinion on this matter. If the word, restriction does number include total prohibition then the law under review cannot be justified under article 19 6 . In that case the law would be void unless it can be supported by article 31. That point will be dealt with under the other point raised in the appeal. If however the word restriction in article 19 6 of the Constitution be taken in certain circumstances to include prohibition as well, the point for companysideration then would be, whether the prohibition of the right of all private citizens to carry on the business of motor transport on public roads within the State of Uttar Pradesh as laid down by the Act can be justified as reasonable restrictions imposed in the interests of the general public. As has been held by this Court in the case of Gooverjee v. The Excise, Commissioner, etc. 1 whether I 1954 S.C.R. 873. the restrictions are reasonable or number would depend to a large extent on the nature of the trade and the companyditions prevalent in it. There in numberhing wrong in the nature of the trade before us, which is perfectly innocuous. The learned Judges of the High Court have upheld the validity of the legislation substantially on two grounds. In the first place, they have relied on what may be said to be an abstract proposition of law, that prohibition with a view to State monopoly is number per se unreasonable. In my opinion, thus observes one of the learned Judges, even this total stoppage of trade on public places and thoroughfares cannot always be said to be an unreasonable restriction. In the second place, it has been said that the transport services are essential to the life of the companymunity and it is companyducive to the interests of the general public to have an efficient system of transport on public roads. It is pointed out that the preamble to the Act indicates that the legislation was passed in the interests of the general public who are undoubtedly interested in a suitable and efficient road transport service, and it was number proved by the petitioners that the monopoly, which was companytemplated in favour of the State in regard to this particular business, was number companyducive to the companymon welfare. As a proposition of law, the first ground may number admit of any dispute but we think that the observations of Lord Porter in the Privy Council case of Commonwealth of Australia and Others v. Bank of New South Wales and Others 1 upon which companysiderable reliance has been placed by the High Court would indicate the proper way of approach to this question Their Lordships do number intend to lay it down, thus observed Lord Porter, that in numbercircumstances companyld the exclusion of companypetition so as to create a monopoly either in a State or Commonwealth agency or in some other body be justified. Every case must be judged,on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable 1 1950 A. C. 235, 311. manner of regulation. In order to judge whether State monopoly is reasonable or number, regard therefore must be had to the facts of each particular case in its own setting of time and circumstances. It is number enough to say that as an efficient transport service is companyducive to the interests of the people, a legislation which makes provision for such service must always be held valid irrespective of the fact as to what the effect of such legislation would be and irrespective of the particular companyditions and circumstances under which the legislation was passed. It is number enough that the restrictions are for the benefit of the public, they must be reasonable as well and the reasonableness companyld be decided only on a companyspectus of all the relevant facts and circumstances. With regard to the second point also we do number think that the learned Judges have approached the question from the proper stand point. There is undoubtedly a presumption in favour of the companystitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under article 19 1 g of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause 6 of the article. If the respondents do number place any materials before the Court to establish that the legislation companyes within the permis- sible limits of clause 6 , it is surely number for the appel- lants to prove negatively that the legislation was number reasonable and was number companyducive to the welfare of the companymunity. In the present case we have absolutely numbermaterials before us to say in which way the establishment of State monopoly in regard to road transport service in the particular areas would be companyducive to the general welfare of the public. We do number know the companyditions of the bus service at the present moment or the companyveniences or inconveniences of the public in regard to the same number we are told how the position is likely to improve if the State takes over the road transport service and what additional amenities or advantages the general public would enjoy in that event. We mention these matters only to show that these are relevant facts which might help the Court in companying to a decision as to the reasonableness or otherwise of the prohibition, but unfortunately there are numbermaterials in the record relating to any one of them. One thing, however, in our opinion, has a decided bearing on the question of reasonableness and that is the immediate effect which the legislation is likely to produce. Hundreds of citizens are earning their livelihood by carrying on this business on various routes within the State of Uttar Pradesh. Although they carry on the business only with the aid of permits, which are granted to them by the authorities under the Motor Vehicles Act, numbercompensation has been allowed to them under the statute. It goes without saying that as a result of the Act they will all be deprived of the means of supporting themselves and their families and they will be left with their buses which will be of numberfurther use to them and which they may number be able to dispose of easily or at a reasonable price. It may be pointed out in this companynection that in Part IV of the Constitution which enunciates the directive principles of State policy, article 39 a expressly lays down that the State shall direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. The new clause in article 19 6 has numberdoubt been introduced with a view to provide that a State can create a monopoly in its own favour in respect of any trade or business but the amendment does number make the establishment of such monopoly a reasonable restriction within the meaning of the first clause of article 19 6 . The result of the amendment is that the State would number have to justify such action as reasonable at all in a Court of law and numberobjection companyld be taken to it on the ground that it is an infringement of the right guaranteed under article 19 1 g of the Constitution. It is quite true that if the present statute was passed after the companying into force of the new clause in article 19 6 of the Constitution, the question of reasonableness would number have arisen at all and the appellants case on this point, at any rate, would have been inarguable. These are however companysiderations which cannot affect our decision in the present case. The amendment of the Constitution, which came later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed As Professor Cooley has stated in his work on Constitutional Limitations 1 a statute void for uconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the companystitutional objection but must be re-enacted. We think that this is sound law and our companyclusion is that the legislation in question which violates the fundamental right of the appellants under article 19 1 g of the Constitution and is number shown to be protected by clause 6 of the article, as it stood at the time of the enactment, must be held to be void under article 13 2 of the Constitution. We number companye to the second point which is in a manner companynected with the first and the question is If the effect of prohibition of the trade or business of the appellants by the impugned legislation amounts to deprivation of their property or interest in a companymercial undertaking within the meaning of article 31 2 of the Constitution, does number the legislation offend against the provision of that clause inasmuch as numberprovision for companypensation has been made in the Act ? It is number seriously disputed on behalf of the respondents that the appellants right to ply motor vehicles for gain is, in any event, an interest in a companymercial undertaking. There is numberdoubt also that the appellants have been deprived of this interest. In the opinion of the High Court, in the circumstances of the present case, there is numberscope for operation of article 31 2 of the Con- stitution and the reason for taking this view is thus given in the judgment of one of the learned Judges The question is whether by depriving the private operators of their right to run buses on certain routes and by deciding to run the routes itself the State acquired the right which was of the petitioners ? To me it appears that it companyld number be said that there was by the State any acquisition of the right which was formerly of the petitioners, whether such right was VOl. 1, P. 384 numbere. property or an interest in a companymercial or industrial undertaking. The vehicles which were being operated by the private operators have number been acquired by the State number has any other tangible property which was used by the petitioners for their business been acquired. What has been done is that the petitioners have been prohibited from operating their buses on certain routes. This right of the petitioners has in numberway been vested in the State inasmuch as the State always had an equal right with the petitioners to run their buses on these routes. According to the High Court, therefore, mere depriv- ation of the petitioners right to run buses or their interest in a companymercial undertaking is number sufficient to attract the operation of article 31 2 of the Constitution as the deprivation has been by the authority of law within the meaning of clause 1 of that article. Clause 2 companyld be attracted only if the State had acquired or taken possession of this very right or interest of the petitioners or in other words if the right of the petitioners to run buses had been acquired by or had become vested in the Government. The State, it is pointed out, has an undoubted right to run buses of its own on the public thoroughfares, and they do number stand on the rights of the petitioners. This argument, we think, is number tenable having regard to the majority decision of this Court in the case of State of West Bengal v. Subodh Gopal Bose and Others 1 and Dwarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd. 2 . In view of that majority decision it must be taken to be settled number that clauses 1 and 2 of article 31 are number mutually exclusive in scope but should be read together as dealing with the same subject, namely, the protection of the right to property by means of limitations on the States powers, the deprivation companytemplated in clause 1 being numberother than acquisition or taking possession of the property referred to in clause 2 . The learned Advocate-General companyn. needed this to be the true legal position after the pronouncements of this Court referred to above. The fact that the buses belonging to the appellants have 1 1954 S.C.R. 587. 2 1954 S.C.R. 674. number been acquired by the Government is also number material. The property of a business may be both tangible and intangible. Under the statute the Government may number deprive the appellants of their buses or any other tangible property but they are depriving them of the business of running buses on hire on public roads. We think therefore that in these circumstances the legislation does companyflict with the provision of article 31 2 of the Constitution and as the requirements of that clause have number been companyplied with, it should be held to be invalid on that ground. The next point that requires companysideration is, whether the Act or any of its provisions are discriminatory in their character and companyflict with the rule of equal protection embodied in article 14 of the Constitution ? Mr. Pathak has raised a two-fold companytention on this point. He has argued in the first place that numberdiscrimination companyld be made in favour of the State as against private individuals in the matter of carrying on the business of plying buses for hire on public roads. The State as a person, it is companyceded, companyes under a different class or category from private citizens but the companytention is that when the State carries on trade as merchants it occupies the same position as private traders and its acts in this respect cannot be regarded as acts of the sovereign. Much reliance has been placed by the learned companynsel in sup-port of this view on the judgment of Sir Barnes Peacock in P. and O. Steam Navigation Co. v. The Secretary of State 1 . The other objection taken by the learned companynsel is, that the Act gives an unguided and unfettered discretion to the State to associate such persons as it likes in the transport business and thereby allows it to discriminate between one citizen and another. No rules are laid down to regulate the choice of the State in such cases. So far as the first ground is companycerned, it is well settled that mere differentiation does number make a legislation obnoxious to the equal protection clause. The Legislature has always the power to make classification and all that is necessary is that the classification should number be arbitrary but must bear a reasonable 1 1861 5 B.H.C.R. Appendix 1. relation to the object which the legislation has in view. There is numberdoubt that classification is inherent in the companycept of a monopoly and if the object of legislation is to create monopoly in favour of the State with regard to a particular business, obviously the State cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is companycerned and this classification would have a perfectly rational relation to the object of the statute. No doubt if the creation of a monopoly in favour of the State is itself bad on the ground of violating some companystitutional provisions, the statute would be invalid for those reasons and the question of discrimination would number be material at all. In our opinion, the argument of Mr. Pathak that the State ceases to function as a State as soon as it engages itself in a trade like ordinary trader cannot be accepted as a sound proposition of law under the Constitution of India at the present day. In the last century, when the laissez faire doctrine held the field, the primary function of a State was companysidered to be maintenance of law and order and all other activities were left to private companypetitors. That companyception is number changed and in place of the police State of old, we are number having a welfare State. Chapter IV of our Constitution which lays down the Directive Principles of State Policy clearly indicates what the functions of a State should be and many things which companyld number have been companysidered as State functions when the case of P. and 0. Steam Navigation Co. v. The Secretary of State Supra , was decided would certainly companye within the legitimate scope of State duties. Vide in this companynection Lokanath Misra v. State of Orissa supra . The other companytention of Mr. Pathak in regard to article 14 though somewhat plausible at first sight does -not appear to us to be sound. Section 3 of the Act authorises the State Government to declare that the road transport service in general or on particular routes should be run and operated by the State Government exclusively or by the State Government in companyjunction with railway or partly by the State Government and partly by others in accordance with the provisions of the Act The whole question is how is the last part of the section to be implemented and carried out? If the State can choose any and every person it likes for the purpose of being associated with the transport service and there are numberrules to guide its discretion, plainly the provision would offend against article 14 of the Constitution. The learned Advocate-General pointed out however that the State is only to choose the routes or portions of routes on which the private citizens would be allowed to operate and the number of persons to whom permits should be given, and that the granting of permits would necessarily be regulated by the provisions of Motor Vehicles Act. This does number appear to us to be an unreasonable companystruction to be put upon the relevant portion of section 3 of the Act and it receives support from what is laid down in section 7 c of the Act. On this companystruction the discretion to be exercised by the State would be a regulated discretion guided by statutory rules. We hold therefore that the appellant cannot make any grievance on this score and that the statute does number offend against article 14 of the Constitution. The last point that remains to be companysidered is, whether the Act companyflicts with the guarantee of freedom of inter- State and intrastate trade, companymerce and intercourse provided for by article 301 of the Constitution ? Article 301 runs as follows Subject to the other provisions of this Part, trade companymerce and intercourse throughout the territory of India shall be free. Article 302 authorises the Parliament to impose such restrictions on the freedom of trade, companymerce and intercourse between one State and another or within any part of the territory of India as may be required in the public interests. Under article 304 b it is companypetent even for the Legislature of a State to impose reasonable restrictions upon the freedom of trade, companymerce and intercourse mentioned above in the interests of the public, but it is necessary that any bill or amendment for this purpose should first receive the sanction of the President before it is moved or introduced in the Legislature of a State. Article companyresponds to section 92 of the Australian Constitution and is even wider than the latter inasmuch as the Australian Constitution provides for the freedom of inter-State trade only. The High Court has negatived the companytention of the appellants on this point primarily on the ground that article 301 of the Constitution has numberapplication to the present case. What is said is, that article 301 provides safeguards for carrying on trade as a whole as distinguished from the rights of an individual to carry it on. In other words, this article is companycerned with the passage of companymodities or persons either within or outside the State frontiers but number directly with individuals carrying on the companymerce or trade. The right of individuals, it is said, is dealt with under article 19 1 g of the Constitution and the two articles have been framed in order to secure two different, objects. The question is number quite free from difficulty and in view of the fact that we have declared the Act to be unconstitutional on the two grounds mentioned above, we do number companysider it necessary to record our decision on this point. We would only desire to indicate the companytentions that have been or companyld be raised upon this point and the different views that are possible to be taken in respect to them so that the Legislature might take these matters into companysideration if and when they think of legislating on this subject. We desire to point out that in regard to section 92 of the Australian Constitution, which so far as inter. State trade is companycerned adopts almost the same language as article 301 of our Constitution, it has been definitely held by the Judicial Committee in the case of Commonwealth of Australia v. The Bank of New South Wales supra , that the rights of individuals do companye within the purview of the section. It is true, as Lord Porter observed, that section 92 does number create any new juristic rights but it does give the citizens of the State or the Commonwealth, as the case may be, the right to ignore and, if necessary, to call on the judicial power to help him to resist legislative- or executive actions which offend against the section. It follows from this, as his Lordship pointed out, that the application of section 92 does number involve calculations as to the actual present or possible future effect upon the total value of inter-State trade, the difficulty in applying such a criterion being too obvious. If this view is adopted in regard to article 301 of our Constitution it can plausibly be argued that the legislation in the present case is invalid as companytravening the terms of the article. The question of reasonable restrictions companyld number also arise in this case, as the bill was number introduced with the previous sanction of the President as required by the proviso to section 304 b . It is true that the companysent of the President was taken subsequently but the proviso expressly insists on the sanction being taken previous to the introduction of the bill. It may be argued that freedom of trade does number, as Lord Porter observed in the Australian Bank case referred to above, mean unrestricted or unrestrained freedom and that regulation of trade is quite companypatible with its freedom. As against this it may be pointed out that the Constitution itself has provided in articles 302 and 304 b how reasonable restrictions companyld be imposed upon freedom of trade and companymerce and it would number be proper to hold that restrictions can be imposed aliunde these provisions in the Constitution. The question would also arise as to what interpretation should be put upon the expression reasonable restrictions and whether or number we would have to apply the same tests as we have applied in regard to article 19 6 of the Constitution. One material thing to companysider in this companynection would be that although the Constitution was amended in 1951 by insertion of an additional clause in article 19 6 by which State monopoly in regard to trade or business was taken out of the purview of article 19 1 g of the Constitution, yet numbersuch addition was made in article 301 or article 304 of the Constitution and article 301, as it stands, guarantees freedom of trade, companymerce and intercourse subject only to Part XIII of the Constitution and number the other parts of the Constitution including that dealing with fundamental rights. The Australian Constitution indeed has numberprovision like article 19 1 g of the Indian Constitution and it is certainly an arguable point as to whether the rights of individuals alone are dealt with in article 19 1 g of the Constitution leaving the freedom of trade and companymerce, meaning by that expression only the free passage of persons and goods within or without a State to be dealt with under article 301 and the following articles. We have thus indicated only the points that companyld be raised and the possible views that companyld be taken but as we have said already, we do number desire to express any final opinion on these points as it is unnecessary for purposes of the present case. The result is that in our opinion the appeals should be allowed and the judgment of the High Court set aside A writ in the nature of mandamus shall issue against the respondents in these appeals restraining them from enforcing the provisions of the U. P. State Road Transport Act, 1951, against the appellants or the men working under them.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Petition No. 315 of 1954. Petition under article 32 of the Constitution for enforcement of Fundamental Rights. J. Umrigar, Narain Andley, J. B. Dadachanji and Rajinder Narain for the petitioner. C. Setalvad, Attorney-General for India, and C. K. Daphtary, Solicitor-General for India G. N. Joshi, Porusa Mehta and P. G. Gokle, with them for the respondents. 1954. October 2 1. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J.-The petitioner in this matter is a resident of Akola in the State of Madhya Pradesh and carries on business in various lines, i.e., oil mills, banking, money lending, etc. It is alleged that during the war years he made huge profits but evaded payment of tax. In the year 1948 the Central Government, acting under section 5 1 of the Taxation on Income Investigation Commission Act, 1947, referred his case to the Investigation Commission for investigation and report, in respect of the profits made by him during the period companymencing with 1st of January, 1939, and ending on 31st of December, 1947. The Commission, after investigation, reported on the 28th of February, 1951, that the income of the petitioner companycealed and withheld from taxation was in the sum of Rs. 27,25,363 and the tax payable by him amounted to Rs. 18,44,949. During the pendency of the investigation the peti- tioner applied for settlement under the provisions of section 8-A of Act XXX of 1947. This application was forwarded along with the report by the Commission to the Central Government. In the settlement application the applicant proposed that he was prepared to pay the sum of RE. 18,44,949 as under On or before 25-6-1951--Rs. 3,44,949 On or before 25-3-1952-- Rs. 5,00,000 On or before 25-3-1953--Rs. 5,00,0000 On or before 25-3-1954--Rs. 5000,000 and that, he be given credit for a sum of Rs, 32,034-4.6 already paid by him, The Central Government accepted this proposal and the claim for evaded income-tax was thus finally settled by mutual agreement. The assessee, subsequently, asked for more time to pay these instalments and this was, also granted from time to time. Commencing from 16th of July, 1951, ,and till the 10th April, 1954. the petitioner paid a total sum of about Rs. 14,00,000 towards discharge of the liability voluntarily agreed to by him on account of the tax evaded. A sum of Rs. 4,50,000 still remains due and is payable in instalments up to the 25th of March, 1955. By one of the terms of the settlement the petitioner undertook number to transfer, mortgage, charge or alienate or encumber in any manner whatsoever any of his movable or immovable properties, barring stock-intrade of-the business, except with the permission of the Commissioner of Income-tax and except for the purpose of the payment of the tax due under the settlement. In June, 1954, after the decision by this Court of Suraj Mal Mohta v. A. V. Visvanatha Sastri and Another 1 , the petitioner preferred this petition under the provisions of article 32 of the Constitution alleging that he had been advised that the entire proceedings under the Act which had resulted in the imposition upon him of a liability of Rs. 18,44,949 and in the payment already made of an aggregate amount of Rs. 13,99,175 were wholly illegal, ultra vires, void and unconstitutional and that the Income-tax authorities were number legally entitled to recover the amount of Rs. 4,50,000 from him. In the grounds of the petition it was stated that sections 5, 6, 7 and 8 of Act XXX of 1947 were invalid and ultra vires in so far as they companytravene the provisions of articles 14, 19 1 f and 31 of the Constitution and that under the Act A.I.R. 1954 S.C. 545. there was numberreasonable or equitable basic for classifica- tion, and that the Act gave to the execrative unrestrained and absolute right to pick and choose and to differentiate between the same class of taxpayers. It was also alleged that the procedure prescribed by the Act for discovering companycealed profits was substantially different and was more prejudicial to the assessees than the procedure prescribed under the Indian Income-tax Act by section 34. In the companycluding paragraph of the petition it was prayed that an appropriate writ or direction be issued quashing the entire proceedings, and all orders passed under the Act by the Central Government and the respondent Commission, and restraining them from taking any proceedings whatsoever under the Act against the petitioner. It was further prayed that a direction be issued for restoration to the petitioner of a sum of Rs. 13,99,715-10-6 with interest at 6 per cent and that the respondents be further restrained from taking any action against the petitioner for the recovery of the sum of Rs. 4,50,000 with interest. In our judgment this petition is wholly misconceived. Whatever tax the petitioner has already paid, or whatever is still recoverable from him, is being recovered on the basis of the settlement proposed by him and accepted by the Central Government. Because of his request for a settlement numberassessment was made against him by following the whole of the procedure of the Income-tax Act. In this situation unless and until the petitioner can establish that his companysent was improperly procured and that he is number bound thereby he cannot companyplain that any of his fundamental rights has been companytravened for which he can claim relief under article 32 of the Constitution. Article 32 of the Constitution is number intended for relief against the I voluntary actions of a person. His remedy, if any, lies in other appropriate proceedings. The learned companynsel for the petitioner companytended that apparently the application for a settlement seems to have been made under the pressure of circumstances and in view of the companyrcive machinery of Act XXX of 1947 and the settlement arrived in such circumstances was number binding and companyld number, be enforced. Whatever be the merits of such a companytention, it obviously cannot be raised in an application made under the provisions of article 32 of the Constitution. The forum for investigating such allegations is elsewhere.

Case appeal was rejected by the Supreme Court

CIVIL APPEALATE, JURISDICTION Civil Appeal No.155 of 1953. Appeal by special leave from the Judgment and Order dated the 15th July, 1953, of the Election Tribunal, Nagpur, in Election Petition No. 3 of 1952.B. Sen and T. P. Naik for the appellant. Veda Vyas S. K. Kapur with him for respondent No. 1. 1954. February 15. The Judgment of the Court was delivered by Bose J.-This is an appeal against a decision of the Nagpur Election Trbunal. The companytest before the tribunal was about two seats in the Bhandara Parliamentary Constituency. The elections were held on five days in December, 1951, and January, 1952. Thirteen candidates filed numberination papers, among them the petitioner. Of these, six companytested the seat reserved for the Scheduled Castes. -One of these was Gangaram Thaware who has since died. The Scheduled Caste in question is the Mahar caste. Objection was taken to Thawares numberination for the reserved seat on the ground that he was number a Mahar. It is admitted that he was born a Mahar, but later in life he joined the Mabanubhava Panth. This, according to the appellant, is a sect which does number believe in caste, and alternatively that it forms a separate caste in itself The companytention was that when Gangaram Thaware joined the Panth he ceased to be a member of the Mahar caste The objection succeeded and his numberination was rejected. The numberination of another Scheduled Caste candidate was also rejected and five others were withdrawn before the election, among them was the present petitioner. That left six candidates of whom three were eligible for the reserved seat. The two who were elected were Tularam Sakhare, for the Scheduled Caste seat, and chaturbhuj, Jasani, number the general seat. Jasanis election was challenged on the ground that he was subject to the disqualifications set out in section 7 d of the Representation of the People Act Act XLIII of 1951 as he was interested in a companytract for the supply of goods to the Central Government. The Election Tribunal held that the rejection of Gangaram Thawares numberination was improper as he companytinued to be a member of the Mahar caste despite his companyversion to the tenets of the Mahanubhava. Panth. It also held that Chaturbhuj Jasani had a companytract with the Central Government, so he was disqualified. Accordingly it set aside the whole election. We will deal with Chaturbhuj Jasanis election first. Section 7 d is in these terms A person shall be disqualified for being chosen as, -and for- being, a member etc. d if by himself he has any share or interest in a companytract for the supply of goods to the appropriate Government. Chaturbhuj Jasani was, and still is, a partner in the firm of Moolji Sicka Company, and it is said that at all material times the firm had- a companytract for the supply of bidis to the Government for the troops. Moolji Sicka Company is a firm of bidi manufacturers. The Central Government was interested in stocking and purchasing bidis for sale to its troops through its canteens. Accordingly, it placed two of the brands of bidis manufactured by this firm on its approved list and entered into an arrangement with the firm under which the firm was to sell, and the Government was to buy from the firm, from time to time, these two brands of bidis. It was argued that this amounted to a companytract for the supply of goods within the meaning of the section. It was said that the companytract was embodied in four letters. We do number intend to analyse these letters in detail. here. It is enough to say that in our opinion numberbinding engagement can be spelt out of them except to this extent Moolji Sicka Company undertook to sell to the canteen companytractors only through the Canteen Stores and number direct and undertook to pay a companymission on all sales. This, in our opinion, companystituted a Continuing arrangement under which the Canteen Stores, i.e., the Government, would be entitled to the companymission on all orders placed and accepted in -accordance with the arrangement and in fact the Canteen Stores did obtain a sum of Rs. 7,500 in satisfaction of a claim of this kind. This money was paid long before the dates which are crucial here but the settlement illustrates that there was an arrangement of that nature and that it was a companytinuing one. In our opinion, it companytinued in being even after that and the mere fact that there was numberoccasion for any claim subsequent to the settlement does number indicate that it was numberlonger alive. But except for this, the letters merely set out the terms on which the parties were ready to do business with each other if and when orders were placed and executed. As soon as an order was placed and accepted a companytract arose. It is true this companytract would be governed by the terms set out in the letters but until an order was placed and accepted there was numbercontract. Also, each separate order and acceptance companystituted a different and distinct companytract see Rose and Frank Co. v. J. R. Crompton Bros. Ltd. 1 The crucial dates with which we are companycerned are 15th November, 1951, the last date for putting in the numberinations, and 14th February, 1952, the date on which the results were declared. The section runs-- A person shall be disqualified for being chosen as The words which follow, and for being, need number be companysidered as it is enough for our purposes to use only the former. Now the words of the section are shall be disqualified for being chosen. The choice is made by a series of steps starting with the numberination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen. The disqualification alleged in this case is that Chaturbhuj Jasani had an interest in a companytract, or a series of companytracts, for the supply of goods to the Central Government. He had this interest because the companytracts were made with Moolji Sicka Company a firm of which Jasani is one of the partners. The fact of partnership is admitted but the other facts are denied. We have therefore to see whether any companytract for the supply of goods to Government by Moolji Sicka Company existed at any time on or between the relevant dates. Exhibit C is a tabular statement which sets out the dealings between the parties during certain months. It is accepted as companyrect by both sides. The following extracts from this statement show that Moolji Sicka Company had an interest in a series of companytracts for the sale of bidis to the Canteen Stores at and between the relevant dates. 1 1925 A.C. 445. Date of order Date of invoice Price of Date of by and goods pay- Canteen Stores Despatch. supplied.ment. 8-10-1951 18-10-1951Rs. 1,684-13-919-12-1951. 8-10-195119-10-19513,373- 9-3do 17- 8195126-10-195112,602- 8-0do 12- 9-195126-10-195111,426-14-6do 11-10-195126-10-19518,411-14-0do 21-10-195130-11-195110,125, 2-9do 9- 8-195129- 8-195125,812-12-024-12-1951 8-10-195118-10-19514,793- 4-9do 14-11-195122-11-19511,887- 9-95- I-.1952 17-10-19518-11-195116,534- 2-022- 1-1952 12-11-195120-11-19514,205-15-0do 13-12-195110- 1-195213,97,079- 7-912. 2-1952 14- 1-195222- 1-19521,691-11-9do 21-12-195110- 1-195216,983- 8-018- 2-1952 12-11-195122-11-19518,411-14-013- 3-1952 9- 1-195216- 1-19525,888- 4-9do 23- 1-195228- 1-19528,411-,14-020- 3-1952 This statement reveals that various companytracts aggregating Rs. 15,39,345-6-0 less some small sums for railway freight, were outstanding at one time or another between the two crucial dates and that payments in discharge of these liabilities were made at various dates between 15th November, 1951, and 20th March, 1952. It also shows that orders were placed and accepted for goods priced at Rs. 84,659-14-3 before 15th November, 1951, and that payment was number made till after that date. Therefore, on 15th November, 1951, goods worth Rs. 84,659-14-3 had still to be paid for. Then between 15th November, 1951, and 14th. February, 1952, further orders for goods valued at Rs. 39,695-8-9 were placed And accepted and they were number paid for till after 14th February, 1952. It was argued that there is numberhing to show that. the goods were, number supplied before 15th November, 1951, and before 14th February, 1952. It was said on behalf of the appellant that these are the only dates which are crucial, so if Moolji Sicka. Company hid. fully executed their part of the companytracts before the two crucial dates the disqualification would number apply. That raises these questions 1 Does a person who has fully executed his part of a companytract companytinue to have an interest in it till the goods are paid for ? and 2 were these companytracts fully executed so far as Moolji Sicka Companys part was companycerned? The parties are number agreed about this, so it will number be necessary to examine their letters in detail to determine the terms of the various companytracts. The companyrespondence discloses that the Canteen Stores and Moolji Sicka Company dealt with each other from time to time under various arrangements which they called systems. The earliest letter we have about the transactions between these parties is one dated 30th March, 1951. It shows that the system which they called the Direct Supply System was in use at that time. The details of the system are set out in an order dated 17th April, 1951. Under it Moolji Sicka Company had to send supplies of bidis direct to the Canteen Stores companytractors as and when ordered. The value of the goods so supplied was to be recovered from the companytractors direct and the Canteen Stores were to be informed of the sales and were to be paid a certain companymission. This led to some friction and in their letter of 30th March, 1951, the Canteen Stores companyplain that information about some of the sales to the companytractors had been suppressed with the result that the Canteen Stores lost their companymission. Moolji Sicka Company replied to this on 24th April, 1951, and suggested a slight change in the system, namely that all orders for the goods should in future be placed through the Canteen Stores and that there should be numberdealings with the companytractors direct except to supply them with the goods ordered by the Canteen Stores then, they said, there would be numbercomplaint about their having been kept in the dark. This appears to have been agreed to because such of the subsequent order as are on record were placed by the Canteen Stores. The order dated 17th April, 1951, to which we have referred above is a sample. This was companysidered unsatisfactory and it was felt that a change was called for. Moolji Sicka Companys letter of 24th April, 1951, shows that their companyplaint was that the Canteen Stores did number keep a sufficient stock of bidis on hand. They said- We feel that you can stock more of our bidis. And that will mean an added profit to you since the rebate you get on supplies made under the Direct Supply System is Rs. 4 only, whereas on supplies made to you we have number offered a much higher rebate We have therefore to request you to kindly 8stock more of our bidis. In view of this, two representatives of Moolji Sicka Company, met the Chairman of the Board of Administration, who was in charge of the Canteen Stores Department, on 10th July, 1951. They reached certain tentative companyclusions which were reduced to writing by the Canteen Stores on 11th July, 1951. Their letter of that date shows that the Canteen Stores proposed to abolish the Direct Supply System in the near future but so far as Moolji Sicka Company were. companycerned they said that the system companyld be abolished. at once forthwith is the word used provided Moolji Sicka Company would agree to supply bidis for the Bombay, Calcutta and Delhi Depots of the Canteen Stores under a new system which they called the Consignment System . Under this the Canteen Stores were to pay as they sold. But the new system was intended only for the Bombay, Calcutta and Delhi Depots of the Canteen Stores. The letter goes on to say that for the Pathankot and Srinagar Depots the supplies would have to be made on the Outright Purchase Basis . These proposals were embodied under the heading Future Business RelationsThen there was a provision for what was called theTransition Period . That said that Untilstocks companyld be placed in our depots, it was agreed that you would supply your bidis direct against our orders and on such supplies you would allow us rebate as at present. These proposals were sent to Moolji Sicka Company for companyfirmation. It will be seen that the letter makes four proposals That so far as Moolji Sicka Company were companycerned, The Direct Supply System should be terminated at once though, so far as other manufacturers were companycerned, it should companytinue in force for some time longer That in its place the Calcutta, Bombay and Delhi Depots were to be supplied under a new system called the Consignment System That the Pathankot and Srinagar Depots were to be supplied under another new system called the Outright Purchase System That during the transition period the Direct Supply System was to companytinue in operation as at present even with Moolji Sicka and Company. Moolji Sicka Company replied on 16th July, 1951, saying that they were prepared to accept these terms provided the Canteen Stores companyfirmed certain modificatioins which Moolji Sicka Company proposed. They were as follows Regarding the Transition Period they said We are pleased to numbere that you will soon be abolishing the Direct Supply System. But it should be applied to all suppliers at the same time. Till then we should be allowed to supply any orders received from the Canteen Contractors. You should inform us of the date on which Direct Supply System will be discontinued. Regarding the new proposals under the heading Future Business Relations Moolji Sicka Company said-- Goods sent to your depot on companysignment basis must be either returned to us or paid for fully within three months of the date of supply. We understand that the system. of supplying goods on companysignment basis will be discontinued in about six months time. They said- And for this purpose we have agreed to offer you Rs. 7,500 in full and final settlement of all your claims to date and upon the understanding of your acceptance of the terms for future business. They companycluded- Upon receiving your companyfirmation we shall instruct our Bombay office to send you the cheque for the amount stated above. The Rs. 7,500 was what the Canteen Stores claimed from Moolji Sicka Company as companypensation for breach of the agreement under which Moolji Sicka Company had agreed number to sell to the Canteen Contractors without paying the Canteen Stores a companymission. Neither side was able to produce exact figures but this was the estimate made by the Canteen Stores of the loss suffered by them by reason of that breach. It will be seen that the proposal about the Consignment System which the Canteen Stores made was that they would pay Moolji Sicka Company only when they sold the stocks with which Moolji Sicka Company were to supply them for stocking their depots at Calcutta, Bombay and Delhi. Moolji Sicka Company were number satisfied with this and said that the Canteen Stores must either return or pay for all stocks supplied, within three months from the date of supply. The Canteen Stores replied on 19th July, 1951, as follows They accepted Moolji Sicka Companys suggestion that when the Direct Supply System was abolished the abolition would apply to all suppliers of bidis. As regards the Consignment Account System they did number turn down the proposals but observed that they were thinking of doing away with that too in favour of the Outright Purchase System and warned Moolji Sicka Company that in view of that it might number be necessary to place any of Moolji Sicka Companys stocks in their depots. They wanted a six months guarantee period in place of three months. The letter companycludes- Although under the system of provisioning,adopted by us, and as explained to you during our discussions, it may number be that we shall at any time have any stocks surplus to our requirements or stocks which have number been disposed of within the guarantee period, but should there be any solitary occasions will you please companyfirm that you will replace Such stock with fresh stock without any companyt to us? We await your agreement by return. They also said, We number await your cheque for Rs. 7,500. Moolji Sicka Company replied on 26th July, 1951, and companymenced by saying- We agree to all you have said in page one of your letter under reply. Regarding the guarantee they said they companyld number agree to six months but would agree to three provided the guarantee was limited to goods found to be defective because of faults in manufacture. They companycluded- We have also to pay you Rs. 7,500 as per our letter, dated 16th July, 1951, and asked how the Canteen Stores would like the payment to be made. The Canteen Stores replied on 31st July, 1951, and explained what they meant by the guarantee period . Bidis deteriorate by keeping, so the idea was to have a system under which they companyld be returned within six months to prevent their deterioration. They -explain that this is in the interests of the manufacturer because 1 it will number bring their brands into disrepute, for that would, be the inevitable result if stale bidis which had deteriorated were sold in the canteens and 2 if the period is made too short, then the goods will number stay in our depots and in the stalls of our canteens and companytractors long enough to sell and hence our depots will always be,, anxious to return these stocks. The result will be obvious. Your sales will be, lower. They companytinue- We therefore companysider that the period of six months should be the least before the expiry of which goods may be taken back by you and replaced The period of three months within which you expect us to return your stocks, should we find them number moving, will be too short. They companyclude by saying that they hope Moolji Sicka Company will agree to the six months. Now it will be seen that all this companyrespondence related to the proposals about the Consignment System which were first mooted on 11th July, 1951. Moolji Sicka Company companyplained on 24th April, 1951, that the Canteen Stores were number keeping large enough stocks of their bidis and they asked the Canteen Stores to stop the Direct Supply System and purchase stocks direct. The Canteen Stores were naturally reluctant to keep large stocks on hand because bidis deteriorate and become unsaleable in companyrse of time. Therefore they proposed the pay as we sell system, that is, they would keep stocks of bidis and pay for whatever they sold. But the problem of unsold stocks deteriorating still remained. Who was to be responsible? The obvious answer was that the manufacturers should take back the unsold stocks before they were too far gone and in their place send fresh companysignments for sale on the pay as we sell basis. We say obvious because the manufacturers companyld use the stale tobacco by re-curing and blending it, or companyld use it for other purposes provided it was number too far gone. The proposal therefore was that the, Canteen Stores were to keep stocks of Moolji Sicka Companys bidis in their depots and canteens, pay for what they sold and return all unsold stocks within six months. Moolji Sicka Company were then to replace them with fresh stocks which would be paid for when sold. This was agreed to in the main but the point at which they were at issue was the six months. Mooli Sicka -Company proposed three months while the Canteen Stores wanted six months. We think the argument used in the letter of 31st July, 1951, that the result will be obvious. Your sales will be lower can only have reference to an arrangement of this kind, otherwise numberquestion of the sales being lower companyld arise. In the case of an outright sale, the sale would be companyplete when the order was executed, and except for bidis found to be defective due to manufacture Moolji Sicka Company would have numberfurther companycern with them. The sentences the goods may be taken back by you and replaced and should we find them number moving can only refer to these proposals about the Consignment System In any case, it certainly includes this system. Moolji Sicka Companys reply is dated 9th August, 1951. They say- We are in receipt of your letter No. 7B/29/-17 1299, dated 31st July, 1951, and are pleased to extend the guarantee period from three to six months. We are sure this will number enable you to keep adequate stocks of our bidis. Awaiting your esteemed orders. This is an acceptance of the interpretation of the guarantee period as given by the Canteen Stores in their letter of 31st July, 1951. The words number and adequate relate to the dispute which started on 24th April, 1951, when Moolji Sicka Company companyplained that the Canteen Stores were number keeping adequate.stocks of their bidis in their depots. The ,subsequent companyrespondence was aimed at finding out ways and means to meet this objection and at the same time satisfy both sides. It all ended by Moolji Sicka Company accepting the terms set out in the letter of 31st July, 1951. We are accordingly of opinion, that Moolji Sick Company accepted- the Consignment System on 9th August, 1951. That imported a pay as we sell arrangement with an obligation to take back stocks unsold within six months and replace them with fresh stocks which would be paid for when sold. in the transition period the Direct Supply System was also to companytinue. That meant that there would be two systems in force for a time in certain depots the Consignment System regarding stocks ordered for the stocking up of the Calcutta, Bombay and Delhi depots of the Canteen Stores and the Direct Supply System till such time as the depots were stocked. The third system of Outright Purchase was limited for the time being to the Pathankot and Srinagar depots. Both the Direct Supply and the Consignment systems were abolished together on list November, 1951 see the Canteen Stores letter dated 24th November, 1951 . But the obligation to take back unsold stocks within the six months period companytinued to attach to all companytracts for companysignment to the Calcutta, Bombay and Delhi depots made between 9th August, 1951, and 31st October, 1951. The tabular statement shows that the following companytracts for companysignment to one or other of these three depots were made during that period. The date of the invoice is the date of the execution of the order and thus of the acceptance of the proposal companytained in the order. Date of Invoice Depot Price of goodsd date despatch supplied payment. 1-10-1951 Bombay. Rs. 5,056-2-0 15-11-1951 13-10-1951 do. 13,536-4,-6 do 18-10-1951 Delhi 1,684-13-919-12-1951 19-10-1951 Calcutta 3,373- 9-3 do 18-10-1951 Bombay 4,793- 4-924-12-1951 The value of these orders companyes to Rs. 28,444-2-3. The obligations under these several companytracts companytinued from 1st April, 1952 to 18th April, 1952. It was argued that assuming that to be the case then there were numberlonger any companytracts for the supply of goods in existence but only an obligation arising under the guarantee clause. We are unable to accept such a narrow companystruction. This term of the companytract, whatever the parties may have chosen to call it, was a term in a companytract for the supply of goods. When a companytract companysists of a number of terms and companyditions, each companydition does number form a separate companytract but is an item in the one companytract of which it is a part. The companysideration for each companydition in a case like this is the companysideration for the companytract taken as a whole. It is number split up into several companysiderations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a companytract for the supply of goods. It is true they are replacements but a companytract to replace goods is still one for the supply of the goods which are sent as replacements. But even if all that be disregarded and it be assumed that Moolji Sicka Company had fully performed their part of the companytract by placing the goods on rails before 15th November, 1951, we are of opinion that the companytracts were number at an end until the vendors were paid and the companytracts were fully discharged. The words of the sections are if he has any share or interest in a companytract for the supply of goods to the appropriate Government. There can be numberdoubt that these various transactions were companytracts and there can equally be numberdoubt that they were companytracts for the supply of the goods. Whether they were companytracts for the supply of goods to the Government is a matter which we shall deal with presently. But we have numberdoubt that they were companytracts for the supply of goods. The question then is, does a companytract for the supply of goods terminate when the goods are supplied or does it companytinue in being till payment is made and the companytract is fully discharged by performance on both sides 9 We are of opinion that it companytinues in being till it is fully discharged by performance on both sides. It was companytended, on the strength. of certain observations in some English cases, that the moment a companytract is fully executed on one side and all that remains is to receive payment from the other, then the companytract terminates and a new relationship of debtor and creditor takes its place. With the utmost respect we are unable to agree. There is always a possibility of the liability being disputed before actual payment is made and the vendor may have to bring an action to establish his claim to payment. The existence of the debt depends on the companytract and cannot be established without showing that payment was a term of the companytract. It is true the companytractor might abandon the companytract and sue on quantum meruit but if the other side companytested and relied on the terms of the companytract, the decision would have to rest on that basis. In any case, as we are number bound by the dicta and authority of those cases, even assuming they go that far, we prefer to hold that a companytract companytinues in being till it is fully discharged by both sides see the observations of Gibson J. in OCarroll Hasting8 1 . To use the language of OBrien L.C.J. in that case at page 599, these companytracts have number been merged, abandoned, rescinded, extinguished or satisfied and if any demur was made as to payment before payment was actually made, he companyld have sued upon the companytract specially or if he sued for work done at the request of the defendants the companytract would have been. a -part of his necessary proofs We agree with the learned Lord Chief Justice in thinking that it is far-fetched to companytend that a man is number companycerned in the companytract or security by which he can enforce payment. The same view was taken, by Costello J. in an Indian case in Satyendrakumar Das v. Chairman of the Municipal Commissioners8 of Dacca 2 . Counsel for the appellant relied strongly on certain English cases. They were all examined and distinguished in the above decisions. They either turned on special facts or on the words of a statute which are number the same as ours. The leading case appears to be Royse v. Birley 3 . But the decision-turned on the language of the English statute which the learned Judges companystrued to mean that the companytract must be executory on the companytractors part before the English Act can apply. Tranton v. Astor 4 follows the earlier ruling. The statute with which Darling J. was dealing 1 1905 2 I.R. 590 at 608. I.L.R. 58 Cal. 180 from p. 193 onwards. L.R. 4 C.P 296. 4 33 T.L.R. 383. in Cox v. Truscott 1 is nearer the language of our Act. He hesitatingly proceeded on the debtor and creditor basis. We need number go further than this because, as we have said, if these decisions cannot be distinguished, then we must with respect differ. We hold therefore that these companytracts which Moolji Sicka Company had entered into with the Government subsisted on 15th November, 1951, and on 14th February, 1952, and that as Chatturbhuj Jasani, the appellant, was a partner in the firm he also had both a share and an interest in them on the crucial dates. That brings us to article 299 1 of the Constitution. It states- All companytracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President and all such companytracts made in the exercise of that power shall be executed on behalf of the President by such persons and in such manner as he may direct or authorise. The companytention was that as these companytracts were number expressed to be made by the President they are void. Cages were cited tons under the Government of India Acts of 1919 and 1935. Certain sections in these Acts were said to be similar to article 299. We do number think that they are, but in any case the rulings ,under section 30 2 of the Government of India Act, 1915, as amended by the Government of India Act of 1919 disclose a difference of opinion. Thus, Krihsnaji Nilkant v. Secrtary of State 2 ruled that companytracts with the Secretary of State must be by a deed executed on behalf of the Secretary of State for India and in his name. They cannot be made by companyrespondence or orally. Secretary of State v. Bhagwandas 3 and Devi Prasad Sri Krihhna Prasad Ltd. v. Secretary of State 1 held they companyld be made by companyrespondence. Secretary of State V. O.T. Sarin Company 1 took an intermediate vie, and held that though companytracts in the prescribed form companyld number be enforced by either side, 1 21 T.L.R. 319. 4 A.I.R. 1941 All. 377. A.I.R. 1937 Bom. 449,451. 5 I.L.R. 11 Lah. 375. A.I.R. 1938 Bom. 168. a claim for companypensation under section 70 of the Indian Contract Act would lie. Province of Bengal v. S. L. Puri 1 took a strict view and held that even letters headed Government of India did number companyply with, the rule in section 175 3 of the Government of India Act, 1935. The Federal Court was called upon to companystrue section 40 1 of the Ninth Schedule of the Government of India Act, 1935. It held that the directions in it were only directory and number mandatory, and the same view was taken of article 166 1 of the present Constitution by this companyrt in Dattatreya Moreshwar Pangarkar v. State of Bombay 2 . None of these provisions is quite the same as article 299. For example, -in article 166, as also in section 40 1 of the Government of India Act of 1935, there is a clause which says that orders and instruments and other proceedings Made and expressed in the name of the Governor or Governor-General in Council and authenticated in the manner prescribed shall number be, called in question on the ground that it is number an order or instrument etc. made or executed by the Governor or Governor-General in Council. It was held that the provisions had to be read as a whole and when that was done it became evident that the intention of the legislature and the Constitution was to dispense with proof of the due making and execution when the form prescribed was followed but number to invalidate orders and instruments otherwise valid. Article 299 1 does number companytain a similar clause, so we are unable to apply the same reasoning here. In our opinion, this is a type of companytract to which section 236 3 of the Indian Contract Act would apply. This view obviates the inconvenience and injustice to innocent persons which the Federal Court felt in J. K. Gas Plant Manufacturing Co., Ltd. v. The King. Emperor 3 and at the same time protects Government. We feel that some reasonable meaning must 1 51 C.W.N. 753. 2 1952 S.C.R. 612 at 632, 633. 3 1947 F.C.R. 141 at 156, 157, be attached to article 299 1 . We do number think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised companytracts. If in fact a companytract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand, an officer entering into a companytract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of companytracts, probably by far the greatest in numbers, which, though authorised, are for one reason or other number in proper form. It is only right that an innocent companytracting party should number suffer because of this and if there is numberother defect or objection we have numberdoubt Government will always accept the responsibility. If number, its interests are safeguarded as we think the Constitution intended that they should be. In the present case, there can be numberdoubt that the Chairman of the Board of Administration acted on behalf of the Union Government and his authority to companytract in that capacity was number questioned. There can equally be numberdoubt that both sides acted in the belief and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops. The only flaw is that the companytracts were number in proper form and so, because of this purely technical defect, the principal companyld number have been sued. But that is just the kind of case that section 230 3 of the Indian Contract Act is designed to meet. It would, in our opinion, be disastrous,to hold that the hundreds of Government officers who have daily to enter into a variety of companytracts, often of a petty nature, and sometimes in an emergency, cannot companytract orally or through companyrespondence and that every petty companytract must be effect- ed by a ponderous legal document companyched in a particular form. it may be that Government will number be bound by the companytract in that case, but that -is a very different thing from saying that the companytracts as such are void and of numbereffect. It only means that the principal cannot be sued- but we take it there would be numberhing to prevent ratification, especially if that was for the benefit of Government. There is authority for the view that when a Government officer acts in excess of authority Government is bound if it ratifies the excess see The Collector of Masulipatam v. Cavaly Venkata Narrainapah 1 . We accordingly hold that the companytracts in question here are number void simply because the Union Government companyld number have been,sued on them by reason of article 299 1 . Now section 7 d of the Representation of the People Act does number require that the companytracts at which it strikes should be enforceable against the Government all it requires. is that the companytracts should be for the supply of goods to the Government. The companytracts in question are just that and so are hit by the section. The purpose of the Act is to maintain the purity of the legislatures and to avoid a companyflict between duty and interest. It is obvious that the temptation to place interest before duty is just as great when there is likely to be some difficulty in recovering the money from Government for example, if Government were to choose number to ratify the companytracts as when there is numbere. In our opinion, the Election Tribunal was-right in disqualifying Chatturbhuj Jasani. We number turn to Gangaram Thaware. He stood as a Scheduled Caste candidate and his numberination was rejected on the ground that he did number belong to the Scheduled Caste in question, namely the Mahars. The only question here is whether he ceased to be a Mahar when he joined the Mahanubhava Panth. This gave rise to much companytroversy and we have been presented with many companyflicting opinions. Thus, the Imperial Gazetteer of India, Voluime XXI, page 3012 states that the founder of the sect repudiated the caste system as also a multiplicity of God7f3 and insisted on the monotheistic principle. At the same time it ,says that he taught his disciples to eat with numbere but 1 8 M.I.A. 529 at 554. the initiated and to break off all former ties of caste and religion. Russell in Volume IV of his Tribes and Castes of the Central Provinces says that the Manbhaos Mahanubhau is a religious sect,or order which has number 1911 become a caste. The Central Provinces Ethnographic Survey, Volume IX, says the same thing at page 107 and at page 110 and adds that members of the sect often act as priests or gurus to the Mahars. As against this, the Election Tribunal has quoted a number of opinions which tend the other way. Thus, V. B. Kolte says at page 247 of his Shri Chandradhar Charitra that numberserious attempt has been made by them to abolish caste, and Ketkar says at page 76, Volume XVIII of the 1926 edition of his Maharashtriya Dhnyankosh that there are two divisions among the Mahanubhavas, one of Sanyasig who renounce the world and the other a secular one. The latter observe the caste system and follow the rituals of their own caste and carry on social companytacts with their caste people and marry among them. Similar views are expressed by Bal Krishna Mohanubhav Shastri. But we are number really companycerned with their theology. What we have to determine are the social and political companysequences of such companyversions and that, we feel, must be decided in a companymon sense practical way rather than on theoretical and theocratic grounds. Conversion brings many companyplexities in its train, for it imports a companyplex companyposite companyposed of many ingredients. Religious beliefs, spiritual experience and emotion and intellectual companyviction mingle with more material companysiderations such as severance of family and social ties and the casting off or retention of old customs and observances. The exact proportions of the mixture vary from person to person. At one extreme there is bigoted fanaticism bitterly hostile towards the old order and at the other an easy going laxness and tolerance which makes the companyversion only numberinal. There is numberclear out dividing line and it is number a matter which can be viewed from only one angle. Looked at from the secular point of view, there are three factors which have to be companysidered 1 the reactions of the old body, 2 the intentions of the individual himself and 3 the rules of the new order. If the old order is tolerant of the new faith and sees numberreason to outcaste or ex-communicate the companyvert and the individual himself desires and intends to retain his old social and political ties, the companyversion is only numberinal for all practical purposes and when we have to companysider the legal and political rights of the old body the views of the new faith hardly matter. The new body is free to ostracise and outcaste the companyvert from its fold if he does number adhere to its tenets, but it can hardly claim the right to interfere in matters, which companycern the political rights of the old body when neither the dld body number the companyvert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the companyvert has shown by his companyduct and dealings that his break from the old order is so companyplete and final that he numberlonger regards himself as a member of the old body and there is numberreconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order. In our opinion, broadly speaking, the principles laid down by the Privy Council in the case of a Hindu companyvert to Christianity apply here number, of companyrse, the details of the decision but the broad underlying principle. In Abraham v. Abraham 1 , their Lordships say- He the companyvert may renounce the old law by which he was bound, as he has renounced his old religion, or, if -he thinks fit, he may abide by the old law, numberwithstanding he has renounced the old religion. The only modification here is that it is number only his choice which must be taken into account but also the views of the body whose religious tenets he has 1 9 M.I.A. 199 at 242, 243, and 244. renounced, because here the right we are companysidering is the right of the old body, the right companyferred on it as a special privilege to send a member of its own fold to Parliament. But with that modification the observations which follow. apply in their broad outline. The profession of Christianity releases the companyvert from the trammels of the Hindu law, but it does number of necessity involve any change of the rights or relations of the companyvert in matters with which Christianity has numberconcern, such as his rights and interests in, and his powers over, property. The companyvert, though number bound as to such matters, either by the Hindu law or by any other positive law, may by his companyrse of companyduct after his companyversion have shown by what law he intended to be governed as to these matters. He may have done so either by attaching himself to a class which as to these matters has adopted and acted. upon some particular law, or by having himself observed some family usage or custom and numberhing can surely be more just than that the rights and interests in his property, and his powers over it, should be governed by the law which-he has adopted, or the rules which he has observed. Now what are the facts here ? Whatever the views of the founder of this sect may have been about caste, it is evident that there has been numberrigid adherence to them among his followers in later years. They have either changed their views or have number been able to keep a tight enough companytrol over companyverts who join them and yet choose to retain their old caste customs and ties. We need number determine whether the Mahanubhava tenets encourage a repudiation of caste only as a desirable ideal or make it a fundamental of the faith because it is evident that present-day Mahanubhavas admit to their fold persons who elect to retain their old caste customs. That makes it easy for the old caste to regard the companyverts as one of themselves despite the companyversion which for all practical purposes is only ideological and involves numberchange of status. Now numberwitness has spoken of any outcasting, neither outcasting in general number in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar companymunity has ever been outcasted from the Mahars for that reason and as the sect is said to be over 1000 years old, therehas been time enough for such instances to accumulate. Further, numberinstance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married number-Mahanubhavas belonging to their own caste. Nene P. W. 1 , Sadasheo P. W. 3 , Sitaram P. W. 4 and Haridas P. W. 5 say that a Mahar companyvert does number lose his caste on companyversion. He is admitted to all caste functions and can marry in the companymunity. Of these, Sadasheo P. W. 3 and Haridas P. W. 5 are Mahars. There is numberevidence to rebut this. The witnesses on the other side take refuge in theory and, when companyfronted with actual facts, evade the issue by saying that Mahanubhavas who do these things are number real Mahanubhavas. Harendra R. W. 1 is a Mahanubhava Guru and so ought to know, but he affects an otherworldly indifference-to mundane affairs and says that as he does number lead a worldly life he does number know whether companyverts retain their caste distinctions and whether there are inter-dinings and inter-marriages in the Mahanubhava fold itself among those who belonged to different castes before companyversion. Shankar R. W. 2 says that a companyvert loses his caste on companyversion but gives numberinstance of ostracism from the old fold. In any case, his evidence is companyfined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a companyvert to this sect must renounce the world and cannot marry. When pinned down in cross-exami- nation he had to admit that he did know two or three Mahanubhavas who were leading a worldly life but he meets that by saying that they are number real Mahanubhavas. Chudaman R. W. 3 evades the issue in the same way. He is a Mahanubhava Pujari and so is another person who ought to have special knowledge. Despite that he says he cannot give a single instance of a person belonging to one caste, initiated into the Mahanubhava sect, marrying a person of another caste initiated into the same Panth. When further pressed he said the question did number arise as a man lost his caste on companyversion. On this evidence, and after companysidering the historical material placed before us, we companyclude that companyversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does number alter the companyverts caste status, at any rate,, so far as the householder section of the Panth is companycerned. So much for the caste companysciousness on both sides. Now companysidering Gangaram Thaware the individual we find that he was twice married and on both occasions to Mahar girls who were number Mahanubhavas at the time of their respective marriages. His first wife was never companyverted. His second wife was companyverted after her marriage. The witnesses say he was still regarded as a Mahar after his companyversion and always looked upon himself as a Mahar and identified himself with the caste. No one on the other side denies this. As we have shown, they took shelter behind generalities and evaded the issue by saying that in that case he cannot be a real Mahanubhava. If he was number, then he must have companytinued a Mahar even on their view. The evidence also discloses that Gangaram Thaware led Mahar agitations and processions as a member and leader of the Mahar caste. In 1936 he companytested the election for the Provincial Assembly as a Mahar candidate. No one appears to have questioned his companypetency. And lastly, he declared himself to be a Mahar in the verification to his numberination form in the present election as also in an affidavit filed before the Returning Officer who rejected his numberination. The Returning Officer described that as a cleverly, worded document. We have read it and find numberhing tricky or crooked in it., Therefore, applying the test in Abraham v. Abraham 1 , we hold that despite his 1 9 M.I.A. 199. 199. companyversion he companytinued to be a Mahar and so his numberination form was wrongly rejected.

Case appeal was rejected by the Supreme Court

APPELLATE JURISDICTION Appeal under Art. 132 1 of the Constitution from a judgment and order dated 12th April, 1950, of the High Court of Judicature at Bombay Chagla J., Bavdekar and Shah JJ. Case No. I X of 1950. S.R. Chari, for the appellant. C. Setalvad, Attorney-General for India G. N. Joshi, with him for the respondent. 1951. Jan. 22. The judgment of Kania C.J., Patanjali Sastri J. Das J. and Chandrasekhara Aiyar J. was delivered by Das J. Mahajan J. and Fazl Ali J. delivered separate judgments. Mukherjea J. agreed with Fazl Ali J. DAs J.--At all material times the petitioner, who is the appellant before us, was the Secretary of Peoples Publish- ing House, Ltd., a companypany incorporated under the Indian Companies Act with its registered office at 190-B, Khetwadi Main Road in Bombay. In September, 1949, a pamphlet entitled Railway Mazdooron ke khilaf Nai Zazish is alleged to have been published in Bombay by the petitioner as the secretary of that companypany. Learned companynsel for the peti- tioner states that the pamphlet was published as a book within the meaning of section 1 of the Press and Registra- tion of Books Act XXV of 1867 and that the provisions of that Act had been duly companyplied with. The Bombay Government authorities, however, took the view that the pamphlet was a news sheet within the meaning of section 2 6 of the Indian Press Emergency Powers Act, 1931, and that as it had been published without the authori- ty required by section 15 1 of that Act, the petitioner had companymitted an offence punishable under section 18 1 of the same Act. A prosecution under that Act was accordingly started against the petitioner in the Court of the Chief Presidency Magistrate, Bombay, and was registered as Case No. 1102/P of 1949. During the pendency of the proceedings the Constitution of India came into force on January 26, 1950. On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of news sheet as given in section 2 6 of the Indian Press Emergency Powers Act, 1931, and sections 15 and 18 thereof were ultra vires and void in view of article 19 1 a read with article 13 and that the hearing of the case should be stayed till the High Court decided that question of law. This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution, praying that the record of Case No. 1102/P of 1949 be sent for, that it be declared that sections 15 and 18 read with section 2 6 and 10 , in so far as they create liability for restrictive measure for a citizen, are ultra vires of article 19 1 a and are, therefore, void and inoperative and that the petitioner be ordered to be acquitted. During the pendency of this petition the Chief Presidency Magis- trate on March 23, 1950, framed a charge against the peti- tioner under section 18 of the Press Emergency Powers Act, 1931. The petition under article 228 was heard on April 12, 1950, by a Bench of the Bombay High Court companysisting of Chagla C.J. and Bavdekar and Shah JJ. Two questions were raised before the Bench, namely--- Whether sections 15 1 and 18 1 read with the definitions companytained in sections 2 6 and 2 .10 of the Indian Press Emergency Powers Act, 1931, were inconsistent with article 19 1 a read with clause 2 of that article ? and Assuming that they were inconsistent, whether the proceedings companymenced under section 18 1 of that Act before the companymencement of the Constitution companyld neverthe- less be proceeded with ? The High Court companysidered it unnecessary to deal with or decide the first question and disposed of the application only on the second question. The High Court took the view that the word void was used in article 13 1 in the sense of repealed and that companysequently it attracted section 6 of the General Clauses Act, which Act by article 367 was made applicable for the interpretation of the Constitution. The High Court, therefore, reached the companyclusion that proceedings under the Indian Press Emergency Powers Act, 1931, which were pending at the date of the companymence- ment of the Constitution were number affected, even if the Act were inconsistent with the fundamental rights companyferred by article 19 1 a and as such became void under article 13 1 of the Constitution after January 26, 1950. The High Court accordingly answered the second question in the af- firmative and dismissed the petitioners application. The petitioner has number companye up on appeal before us on the strength of a certificate granted by the High Court under article 132 1 of the Constitution. Learned companynsel appearing in support of this appeal urged that the Indian Press Emergency Powers Act, 1931, was one of the many repressive laws enacted by an alien Government with a view to stifle the liberty of the Indian subjects and particularly of the Indian Press that, with the advent of independence the people of India began to breathe freely and by the Constitution which they gave unto themselves they took care to guarantee to themselves the fundamental rights of free citizens of a democratic republic and that article 13 1 of that Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all laws inconsistent with the fundamental rights to be void as if they had never been passed and had never existed. It was, therefore, against the spirit of the Constitution, argued the learned companynsel, that a free citizen of India should still companytinue to be persecuted under such a retro- grade law which, being inconsistent with the fundamental rights, must be declared to be void. Learned companynsel urged that it was number necessary for him to companytend that such inconsistent laws became void ab initio or that all past and closed transactions companyld be reopened but he companytended that on and from January 26, 1950, when the Constitution came into force such inconsistent laws which became void companyld number be looked at for any purpose and far less companyld they be utilised for the purpose of framing a charge or punishing a free citizen. As the void law cannot be utilised any long- er, the pending prosecutions, according to learned companynsel, must fall to the ground. To permit pending proceedings under a law which, after the companymencement of the Constitu- tion had become void, to proceed further, after the Consti- tution has taken effect, is to prolong the efficacy of the law numberwithstanding that it has become void on and from the date the Constitution came into force and that is against the spirit of the Constitution. An argument founded on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and emotion but a companyrt of law has to gather the spirit of the Constitution from the lan- guage of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does number support that view. Article 372 2 gives power to the President to adapt and modify existing laws by way of repeal or amendment. There is numberhing to prevent the President, in exercise of the powers companyferred on him by that article, from repealing, say the whole or any part of the Indian Press Emergency Powers Act, 1931. If the President does so, then such repeal will at once attract section 6 of the General Clauses Act. In such a situation all prosecutions under the Indian Press Emergency Powers Act, 1931, which were pending at the date of its repeal by the President would be saved and must be proceeded with numberwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabili- ties and pending proceedings to enforce the same is number foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the companytention about the spirit of the Constitution as invoked by the learned companynsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to companytinue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have al- ready been companyvicted under such repressive law before the Constitution of India came into force should companytinue to rot in jail. It is, therefore, quite clear that the companyrt should companystrue the language of article 13 1 according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitu- tion. Article 13 1 with which we are companycerned for the pur- poses of this application is in these terms - All laws in force in the territory of India immediately before the companymencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. It will be numbericed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part II1 shall, to the extent of such inconsistency, be void. Every statute is prima facie pro- spective unless it is expressly or by necessary implications made to have retrospective operation. There is numberreason why this rule of interpretation should number be applied for the purpose of interpreting our Constitution. We find numberhing in the language of article 13 1 which may be read as indicating an intention to give it retrospective operation. On the company- trary, the language clearly points the other way. The provi- sions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is Fundamental Rights. These rights are given, for the first time, by and under our Constitution. Before the Constitution came into force there was numbersuch thing as fundamental right. What article 13 1 provides is that all existing laws which clash with the exercise of the fundamental rights which are for the first time created by the Constitution shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13 1 can have numberretrospective effect but is wholly pro- spective in its operation. After this first point is numbered, it should further be seen that article 13 1 does number in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the companytrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are number void for all purposes but they are void only to the extent they companye into companyflict with the fundamental rights. In other words, on and after the companymencement of the Constitu- tion numberexisting law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13 1 cannot be read as obliterating the entire operation of the inconsist- ent laws, or to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do number possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. Learned companynsel for the appellant has drawn our attention to articles 249 3 , 250, 357, 358 and 369 where express provision has been made for saving things done under the laws which expired. It will be number ticed that each of those articles was companycerned with expiry of temporary statutes. It is well known that on the expiry of a temporary statute numberfurther proceedings can be taken under it, unless the statute itself saved pending proceed- ings. If therefore, an offence had been companymitted under a temporary statute and the proceedings were initiated but the offender had number been prosecuted and punished before the expiry of the statute, then, in the absence of any saving clause, the pending prosecution companyld number be proceeded with after the expiry of the statute by efflux of time. It was on this principle that express provision was made in the several articles numbered above for saving things done or omitted to be done under the expiring laws referred to therein. As explained above, article 13 1 is entirely prospective in its operation and as it was number intended to have any retrospective effect there was numbernecessity at all for inserting in that article any such saving clause. The effect of article 13 1 is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a. subsequent statute. As already explained, article 13 1 only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the companymencement of the Constitution. It has numberretrospective effect and if, therefore, an act was done before the companymencement of the Constitution in companytra- vention of the provisions of any law which, after the Con- stitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is number wiped out so far as the past act is companycerned, for, to say that it is, will be to give the law retrospective effect. There is number fundamental right that a person shall number be prosecuted and punished for an offence companymitted before the Constitu- tion came into force. So far as the past acts are companycerned the law exists, numberwithstanding that it does number exist with respect to the future exercise of fundamental rights. We, therefore, agree with the companyclusion arrived at by the High Court on the second question, although on dif- ferent grounds. In view of that companyclusion, we do number companysider it necessary to examine the reasons of the High Court for its companyclusion. In our opinion, therefore, this appeal fails, and is dismissed. FAZL ALI J.--I regret that I cannot agree with the view which the majority of my companyleagues are inclined to take in this case. The facts of the case are simple and will bring out the point to be decided. On the 9th December, 1949, the appel- lant was arrested and a prosecution was started against him under section 18 1 of the Indian Press Emergency Powers Act XXIII of 1931 in the Court of the Chief Presidency Magistrate at Bombay for publishing a pamphlet in Urdu entitled Railway Mazdoorun Ke Khilaf Nai Sazish. The prosecution case was that the pamphlet was a news-sheet within the meaning of section 2 6 of the Act and that since it had been published without the authority required by section 1.5 1 of the Act, the appellant had companymitted an offence punishable under section 18 1 of the Act. While the prosecution was pending, the Constitution of India came into force on the 26th January, 1950, and thereafter the appel- lant raised the companytention that sections 2 6 , 15 and 18 of the Act were void, being inconsistent with article 19 1 a of the Constitution and therefore the case against him companyld number proceed. Having raised this companytention, the appellant filed a petition in the High Court at Bombay under article 228 of the Constitution asking the High Court to send for the record of the case and declare that sections 15 and 18of the Indian Press Emergency Powers Act read with section 2 6 and 10 thereof were void and inoperative and the petitioner should be ordered to be acquitted. The petition was heard by a Full Bench of the Bombay High Court, and the learned Judges companystituting the Bench, in deciding the point raised, assumed that the provisions of the Act impugned by the appellant were inconsistent with the fundamental right guaranteed by article 19 1 a of the Constitution of India, and held that article 13 1 had virtually the effect of repealing such provisions of existing laws as were inconsistent with any of the fundamental rights and that companysequently under section 6 of the General Clauses Act, which is made applicable for the interpretation of the Constitution by article 367, pending proceedings were number affected. The appellants petition to the High Court having been dismissed, he preferred this appeal in the Supreme Court. One of the points discussed elaborately by the learned companynsel appearing for the parties in the companyrse of their arguments was as to what was the effect upon pending pro- ceedings when an Act was repealed or when a temporary Act expired. In Craies on Statute Law, the effect of the expiry of a temporary Act is stated to be as follows -- As a general rule, and unless it companytains some special provision to the companytrary, after a temporary Act has expired numberproceedings can be taken upon it, and it ceases to have any further effect. Therefore, offences companymitted against temporary Acts must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate. 4th Ed., pp. 347-348 . This statement of law by Craies was referred to with approval and adopted by the Federal Court in J.K. Gas Plant Manufacturing Co., Rampur Ltd., and Others v. King Emper- or. 1 As to the effect of the repeal of an Act, the fol- lowing passage from Craies book seems to sum up the legal position as it obtained in England before the enactment of the Interpretation Act of 1889 - When an Act of Parliament is repealed, said Lord Tenterden in Surtees v. Ellison 2 it must be 1947 F.C.R. 141 at 166. 2 1829 9 B C. 752. companysidered except as to transactions past and closed as if it had never existed. That is the general rule. Tindal J. states the exception more widely. He says in Kay v. Goodwin 1 ,, The effect of repealing a statute is to obliterate it as companypletely from the records of the Parlia- ment as if it had never been passedand it must be companysid- ered as a law that never existed except for the purpose of those actions which were companymenced, prosecuted and companycluded whilst it was an existing law. P. 350 . Again, Crawford in his book on Statutory Construction dealing with the general effect of the repeal of an Act states the law in America to be as follows--- A repeal will generally, therefore, divest all incho- ate rights which have arisen under the repealed statute, and destroy all accrued causes of action based thereon. As a result, such a repeal, without a saving clause, will destroy any proceedings whether number yet begun, or whether pending at the time of the enactment of the repealing Act, and number already prosecuted to a final judgment so as to create a vested right. Pp. 599-600 . In a footnote relating to the cases which the learned author cites in support of the above proposition, he adds-- See Cleveland, etc., R. Co. v. Mumford Ind. 2 where the repeal of a statute during the trial prevented a judg- ment from being rendered. Similarly, there can be numberlegal companyviction for an offence, unless the act be companytrary to law at the time it is companymitted number can there be a judgment, unless the law is in force at the time of the indictment and judgment. If the law ceases to operate, by its own limita- tion or by a repeal, at any time before judgment, numberjudg- ment can be given. Hence, it is usual in every repealing law to make it operate prospectively only, and to insert a a saving clause, preventing the retroactive operation of the repeal and companytinuing the repealed law in force as to all pending prosecutions, and often as to all violations of the existing law already companymitted. 1 1830 6 Bing. 576. 2 197 N.E. 826. The author then proceeds to quote the following passage from Wall v. Chesapeake Ohio Ry., Company 1 -- It is well settled that if a statute giving a special remedy is repealed without a saving clause in favour of pending suits all suits must stop where the repeal finds them. If final relief has number been granted before the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate companyrt must dispose of the case under the law in force when its decision was rendered. The effect of the repeal is to obliterate the statute repealed as companypletely as if it bad never been passed, and it must be companysidered as a law which never existed, except for the purposes of those actions or suits which were companymenced, prosecuted and company- cluded while it was an existing law. Pending judicial pro- ceedings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the companyrt of last resort, for that companyrt, when it companyes to announce its decision, companyforms it to the law then existing, and may therefore reverse a judgment which was companyrect when pronounced in the subordi- nate tribunal from whence the appeal was taken, if it ap- pears that pending the appeal a statute which was necessary to support the judgment of the lower companyrt has been with- drawn by an absolute repeal. P. 601 . It is well known that formerly the practice in England used to be to insert in most of the repealing statutes a clause saving anything duly done or suffered under the repealed statutes and any pending legal proceeding or inves- tigations. Ultimately, to dispense with the necessity of having to insert a saving clause in almost every repealing Act, section 38 2 was inserted in the Interpretation Act, 1889, which provides that a repeal, unless the company- trary intention appears, does number affect the previous opera- tion of the repealed enactment or anything duly done or suffered under it and any investigations, legal proceedings or 1 125 N.E.20. remedies may be instituted, companytinued or enforced in respect of rights, liabilities and penalties under the repealed Act, as if the repealing Act had number been passed. Crawford in his book to which I have referred adverts in these words to a similar difficulty which was experienced in America and to the manner in which it has been met Due to the numerous troublesome problems which companystantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall number affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute. In India, the earliest attempt that was made to guard against the numbermal legal effect of a repeal is to be found in section 6 of Act I of 1868. This provision was further elaborated by section 6 of the General Clauses Act of 1897 which is on the same lines as section 38 2 of the Interpre- tation Act of England. The position therefore number in India as well as in England is that a repeal has number the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this companyntry. But this is due entirely to the fact that an express provision has been made in those enactments to companynteract that effect. Hence, in those cases which are number companyered by the language of the General Clauses Act, the principle already enunciated will companytinue to operate. The learned AttorneyGeneral had to companycede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be numberdoubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because sec- tion 6 of the General Clauses Act and section 38 2 of the Interpretation Act have numberapplication except where an Act is repealed. It should be remembered that the soundness of the law which has been companysistently applied to cases governed by statutes which have ceased to be in force, by reason of having been repealed or having expired, has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule pecul- iar only to the companymon law of England. It is the law which has been enunciated by eminent Judges both in England and in America and is based on good sense and reason. I shall number proceed to companysider what would be the company- rect legal position, when a provision of an existing law is held to be void under article 13 1 of the Constitution. From the earlier proceedings before the Constituent Assem- bly, it appears that in the original draft of the Constitu- tion, the words shall stand abrogated were used instead of shall be void, in article 13 1 , and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the article emerged in the form in which it stands at present, and the words shall stand abrogated were replaced by the words shall be void. If the words stand abrogated had been there, it would have been possible to argue that those words would have the same effect as repeal and would attract section 6 of the General Clauses Act, but those words have been abandoned and a very strong expression, indeed the strongest expression which companyld be used, has been used in their place. The meaning of the word void is stated in Blacks Law Dictionary 3rd Edn. to be as fol- lows--- null and void ineffectual nugatory having numberlegal force or binding effectunable in law to support the purpose for which it was intended nugatory and ineffectual so that numberhing can cure it number valid. A reference to the Constitution will show that the framers thereof have used the word repeal wherever neces- sary see articles 252, 254, 357, 372 and 395 . They have also used such words as invalid see articles 245, 255 and 276 , cease to have effect see articles 358 and 372 , shall be inoperative, etc. They have used the word void only in two articles, these being article 13 1 and article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose see for example articles 249, 250,357, 358 and The thoroughness and precision which the framers of the Constitution have observed in the matters to which reference has been made, disinclines me to read into article 13 1 a saving provision of the kind which we are asked to read into it. Nor can I be persuaded to hold that treating an Act as void under article 13 1 should have a milder effect upon transactions number past and closed than the repeal of an Act or its expiry in due companyrse of time. In my opin- ion, the strong sense in which the word void is numbermally used and the companytext in which it has been used are number to be companypletely ignored. Evidently, the framers of the Constitu- tion did number approve of the laws which are in companyflict with the fundamental rights, and, in my judgment, it would number be giving full effect to their intention to hold that even after the Constitution has companye into force, the laws which are inconsistent with the fundamental rights will companytinue to be treated as good and effectual laws in regard to cer- tain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in arti- cle 13 1 , it is difficult for me to understand. There can be numberdoubt that article 13 1 will have numberretrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still number determined when the Constitution came into force, and as regards proceedings whether number yet begun, or pending at the time of the enforcement of the Constitution and number yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be companypletely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can numberlonger be applied. In R. v. Mawgan Inhabitants 1 a presentment as to the number-repair of a highway had been made under 13 Geo. 3, c. 78, s. 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C.J. said If the question had related merely to the present- ment, that numberdoubt is companyplete. But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding. And Littledale J. added do number say that what is already done has become bad, but that numbermore can be done. In my opinion, this is precisely the way in which we should deal with the present case. It was argued at the Bar that the logical outcome of such a view would be to hold that all the companyvictions al- ready recorded and all the transactions which are closed, should be reopened, but, in my opinion, to argue on these lines is to overlook what has been the accepted law for centuries, namely, that when a law is treated as dead, transactions which are past and closed cannot be revived and actions which were companymenced, prosecuted and companycluded whilst the law was operative cannot be reopened. In the companyrse of the arguments, a doubt was also raised as to what would be the effect in the case of an appeal pending when the Constitution came into force, from a company- viction already recorded before the 26th January, 1950. The law applicable to such a situation is well-known and has been companyrectly summed up by Crawford in these words-- Pending judicial proceedings based upon a statute cannot proceed after its repeal. The rule holds true until the proceedings have reached a final judgment in the companyrt of last resort, for that companyrt, when it companyes to announce its decision, companyforms it to the law then existing, and may therefore reverse a judgment which was 1 1888 8 A. E. 496. companyrect when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the. appeal a statute which was necessary to support the judgment of the lower companyrt has been withdrawn by an abso- lute repeal. I think I should at this stage deal briefly with two points which were raised in the companyrse of the arguments in support of the opposite view. It was urged in the first place that without there being a saving clause to govern article 13 1 , it can be so companystrued as to permit offences companymitted prior to the 26th January, 1950, to be punished. The argument has been put forward more or less in the fol- lowing form. The law which is said to be in companyflict with the fundamental rights was a good law until the 25th January, and, since article 13 1 is to be companystrued prospectively, and number retrospectively, every act companystituting an offence under the old law remains an offence and can be punished even after the 26th January. It seems to me that the same argument companyld be urged with reference to matters which companystituted offences under a repealed Act or a temporary Act which has expired. But such an argument has never succeeded. The real question is wheth- er a person who has number been companyvicted before the Act has ceased to exist or ceased to be effectual can still be prosecuted under such an Act. The answer to this question has always been in the negative, and I do number see why a different answer should be given in the case of an Act which has be-come void, i.e., which has become so ineffectual that it cannot be cured. The second argument which also has failed to impress me is that if section 6 of the General Clauses Act does number in terms apply, the principle underlying that section should be applied. The answer to this argument is that the Legislature in its wisdom has companyfined that section to a very definite situation, and, though it was open to it to make the section more companyprehensive and general, it has number done so. It is well-known that situations similar to those which arise by reason of the repeal of an Act have arisen in regard to Acts which have expired or Acts which have been declared to be void, and, though such situations must have been well-known to the Legislature, they have number been provided for. In these circumstances,I do number see how the very clear and definite provision can be enlarged in the manner in which it is attempted to be enlarged. Besides, I have number companye across any case in which the principle underlying section 38 2 of the Interpretation Act or section 6 of the General Clauses Act has been invoked or applied. In the present case, we have to look at the state of the law at the time when the question arises as to whether a person has companymitted any offence. If we find that the law which made the act an offence has become companypletely ineffec- tual and nugatory, then neither can a charge be framed number can the accused person be companyvicted. In my opinion, if the assumption on which the High Court has proceeded is companyrect, the appellant is entitled to a declaration that he cannot be companyvicted for the offence of which he is accused. MAHAJAN J.--The appellant is the secretary of the Peo- ples Publishing House Ltd., Bombay. In September, 1949, he published a pamphlet entitled Railway Mazdoorum Ke Khilaf Nai Sazish.On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18 1 of the Indian Press Emergency Powers Act XXIII of 1931 in the Court of the Chief Presidency Magistrate at Bombay in respect of this pamphlet, as it had been published without any authority as required under section 16 of the said Act. On the 8th March, 1950, an application was made on his behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India for quashing the proceedings started against him and it was companytended that sections 16 and 18 of Act XXIII of 1931 were ultra vires of Part III of the Constitution of India and were thus void and had numbereffect whatsoever and numberprosecution launched under these sections companyld be proceeded with after the companying into force of the Constitution. The High Court refused this application and held that the proceedings instituted against the appellant before the companymencement of the Constitution companyld number be affected by the provisions of the Constitution that came into force on the 26th January, 1950. Dissatis- fied with this decision, the appellant has preferred the present appeal to this companyrt. The sole point to decide in the appeal is whether pro- ceedings instituted under section 18 1 of the Indian Press Emergency Powers Act, XXIII of 1931, before the companymence- ment of the Constitution of India are affected by its provi- sions. The High Court has answered this question in the negative and, in my opinion, rightly. I am in respectful agreement with the observations of the learned Chief Justice of Bombay that it is difficult to believe that the Constituent Assembly companytemplated that with regard to the laws which it was declaring to be void under article 13 all vested rights and all proceedings taken should be disturbed and affected by particular laws ceasing to be in force as a result of inconsistencies with the fundamental rights guaranteed to the citizens. It is number arguable and was number argued that Part III of the Constitu- tion has any retrospective operation. The appellant was number possessed of any fundamental rights in September, 1949, when he published the pamphlet in question and his act clearly came within the mischief of the provisions of section 18 of Act XXIII of 1931 and he thus became liable to the penalties prescribed therein. It was, however, companytended by Mr. Chari, the learned companynsel for the appellant, that the effect of the language employed in article 13 1 of the Constitution was that the proceedings companymenced before the companying into force of the Constitution companyld number be companytinued after its companymencement under the laws that became inconsistent with its provisions. For this proposition he placed reliance on the rule of companystruction stated in Maxwell on Interpretation of Stat- utes , p. 404, which is to the following effect -- Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the companytrary, as having never existed, except as to matters and transactions passed and closed. Where, therefore, a penal law was broken, the offender companyld number be punished under it if it expired before he was companyvicted, although the prosecution was begun while the Act was still in force. This rule seems to be based on a statement of Tindal C.J. in Kay v. Goodwin 1 . The learned Chief Justice made the following observations -- I take the effect of repealing a statute to be, to obliterate it as companypletely from the records of Parliament as if it had never been passed and it must be companysidered as a law that never existed except for the purpose of those actions which were companymenced, prosecuted and companycluded whilst it was an existing laW. This was the rule of the English companymon law which was applied in cases of statutes which were repealed and under this rule all pending actions and prosecutions companyld number be proceeded with after the repeal of the law under which they were started. This rule was however changed by the Inter- pretation Act of 1889, section 38. Therein it was enacted that unless the companytrary intention appears, numberrepeal is to affect any investigation, legal proceeding, including the initiation of criminal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had number been passed. A similar provision exists in India in section 6 of the Gener- al Clauses Act of 1868 and 1897. The High Court held that the provisions of article 13 1 were analogous to the repeal of a statute and therefore section 6 of the General Clauses Act had application to the companystruction of these provisions and that being so, the companying into force of the Constitution did 1 180 E.R. 1403 1830 6 Bing. 576. number in any way affect the companytinuance of the proceedings that had been companymenced against the appellant under the law that was in force at the time of the publication of the pamphlet. Mr. Chari companytended that the High Court was in error in applying the provisions of section 6 of the General Clauses Act to the interpretation of article 13 1 of the Constitution inasmuch as the provisions of this article were number analogous to repeal and did number amount to a repeal of the existing law. He companytended that a repeal of the law companyld only be by the legislature but that under article 13 power had been given to the companyrt to declare any law incon- sistent with the Constitution to be void in other words, the power given was larger in scope and effect than the power of repeal and the effect of the declaration that a certain statute was void as it was repugnant to the freedom guaranteed by the Constitution was to wipe out the statute altogether from the date of the companying into force of the Constitution and that numberhing companyld be done under that statute with effect from the 26th January, 1950, and there- fore the companyrt companyld number frame a charge under the law that was declared void, or pass a judgment of companyviction against a person under a law that had been declared void. Mr. Chari went to the length of saying that a statute which was incon- sistent with the Constitution became dead on the companying into force of the Constitution and under a dead statute numberaction companyld be taken whatsoever. He emphasised his companytention by stressing the fact that freedoms guaranteed by Part III of the Constitution companyld number be tainted by keeping alive prosecutions and actions under laws framed by a foreign government which were inconsistent with those freedoms. It was said that some of the laws which the Constitution in- tended to be declared void by the companyrt because of their repugnancy to the fundamental rights guaranteed to the citizen by the Constitution were those which a foreign government had enacted to keep the people of this companyntry under its domination and that to companytinue prosecutions under these laws after the companying into force of the Constitution would be wholly companytrary and repugnant number only to the letter of the Constitution but also to its spirit. It was companyceded that transactions finally closed under such laws companyld number be reopened but that prosecutions and actions which were still companytinuing should be stopped and further action companycerning them would become illegal and would be companytrary to the freedoms guaran- teed by the Constitution. Reference was made to articles 249, 250, 357, 358, and 369 to show that the scheme of the Constitution was that wherever it intended that the proceed- ings companymenced under existing laws which became inoperative on the 26th January, 1950. were to companytinue after that date, apt phraseology had been used to indicate that intention but that in article 13 numbersuch saving words were used and there- fore it must be presumed that the Constituent Assembly did number intend that proceedings taken under such laws were to be companytinued after the 26th January, 1950. Article 13 1 of the Constitution is in these terms -- All laws in force in the territory of India immediately before the companymencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. The freedom guaranteed to the citizen which has applica- tion to the case of the appellant is in article 19 1 a and this article is in these terms -- All citizens shall have the right to freedom of speech and expression. It is admitted that after the 26th January, 1950, there has been numberinfringement of the appellants right of freedom of speech or expression. In September, 1949, he did number enjoy either companyplete freedom of speech or full freedom of expression. It is in relation to the freedom guaranteed in article 19 1 of the Constitution to the citizen that the provisions of article 13 1 companye into play. This article does number declare any law void independently of the existence of the freedoms guaranteed by Part III. A citizen must be possessed of a fundamental right before he can ask the companyrt to de- clare a law which is inconsistent with it void but if a citizen is number possessed of the right, he cannot claim this relief. The appellant in the present case was number possessed of any fundamental right on the day that he published the pamphlet and in these circumstances the question is whether he can claim protection under the rights guaranteed to him on 26th January, 1950, for escaping the companysequence of his act on any principles of companystruction of statutes. Accord- ing to the companytention of the learned companynsel, the principles applicable to repealed statutes are number in terms applicable to such a case, whether they are to be found in the rules of the companymon law of England or whether they are companytained in the Interpretation Act or the General Clauses Act. Those rules are applicable to cases either of repeal or to cases of a statute dying a natural death by efflux of time. None of those however have any application to the companystruction of statutes framed in languages like the one companytained in article 13 1 of the Constitution. Besides the rule of companystruction which applies to repealed statutes or to tempo- rary statutes our attention was number drawn to any other rule of companystruction under which a person who companymits an offence against an Act during its existence as a law becomes unpun- ishable on its termination. Both on companysiderations of company- venience and also on grounds of justice and reason I am inclined to think that penalties incurred under a law in force at the time when the act was companymitted would survive its extinction so that persons who violate its provisions might afterwards be punished. Persons who during the companytin- uance of a statute have obtained rights under it cannot be affected by a declaration that the statute with effect from a certain date will become an inoperative statute. When in the case of repeal of a statute, which according to Tindal J. obliterates it companypletely from the records of Parlia- ment as if it had never been passed, the companymon law rule has been abrogated by statute, it is difficult to apply that rule on any sentimental grounds at this date to the case of statutes which are declared void or declared to have numbereffect whatsoever after a certain date only. The expres- sion void has numberlarger effect on the statute so declared than the word repeal. The expression repeal according to companymon law rule obliterates a statute companypletely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are companytained in the Interpretation Act, 1889, or in the General Clauses Act, 1897, while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has numbersuch retrospective operation and cannot affect pending prosecutions or actions taken under such laws. There is in such a situation numbernecessity of introducing a saving clause and it does number need the aid of a legislative provision of the nature companytained in the Interpretation Act or the General Clauses Act. To hold that a prospective declaration that a statute is void affects pending cases is to give it indirectly retrospective opera- tion and that result is repugnant to the clear phraseology employed in the various articles in Part III of the Con- stitution. The companytention of the learned Attorney-General that the phraseology employed in article 13 1 of the Constitution clearly indicates that there was numberintention to give any retrospective operation to the provisions of Part III of the Constitution and that the declaration that laws repugnant to Part III of the Constitution are void only operates from 26th January, 1950, has, in my opinion, force. It seems clear that an existing statute in spite of a declaration-by companyrt that it is void remains in force till the 25th Janu- ary, 1950, and companytinues to remain on the statute book even after the 26th January, 1950, except that numbereffect can be given to any of its provisions which are repugnant to the fundamental rights guaranteed by the Constitution. The effect of article 13 1 is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the companying into force of the Constitution but the past acts of a person which came within the mischief of the law then in force are number affected by Part III of the Constitution. The reference made by Mr. Chari to different articles of the Constitution where saving clauses have been inserted to save pending proceedings or acts is number very helpful inasmuch as where a certain provi- sion has a retrospective effect, then it is necessary to introduce a saving clause if things done in the past have to be saved from the retrospective effect of the statute but where the provision is clearly number intended to be retrospec- tive, then the necessity of saving clause does number arise. The provisions of the Constitution to which Mr. Chari made reference were of the nature that but for the saving clause the effect of them would be retrospective in character under the accepted canons of companystruction of statutes. Mr. Charis argument that it companyld number have been intend- ed by the Constitution makers that prosecutions started under laws passed by a foreign power and which affect the freedoms guaranteed to the citizen under the Constitution in Part III were to be companytinued after the dawn of independence and after India had become a democratic republic to a cer- tain extent seems to me to be plausible but on further thought I have companye to the companyclusion that this argument appeals more to the heart than to the head and is number based on any sound principle of companystruction of statutes. Under the accepted canons of companystruction of statutes, if a law has numberretrospective operation of any kind whatsoever, then such a law cannot affect pending prosecutions or actions and the Constitution number being retrospective in its operation companyld number therefore in any way affect prosecutions started for offences that were companyplete under the law in force at the time they were companymitted. The cure for such an incon- gruous state of affairs and the relief for such situation lies with the Government and the legislature and number with the companyrts. If a case of sedition against an alien govern- ment is companytinued after the companying into force of the Consti- tution, the companyrt cannot decline to proceed with it and to pass some sentence howsoever lenient, against an accused by placing a companystruction on the Constitution which gives it retrospective operation, but the government of the republic or its legislature can always by executive or legislative action bring to a close all such distasteful proceedings and number only can it do so in the case of pending prosecutions but it can give relief also to persons who have suffered under laws of sedition against an alien government and are suffering terms of imprisonment in the jails of the Republic. If punishment for companytravention of such laws cannot be given to offenders because decision in their case has been delayed beyond the 26th January, 1950, it will be highly unreasonable number to give relief and to let punish- ments companytinue in case of persons, the sentence against whom have already been passed under laws which were solely enact- ed to maintain the alien rule. Both cases, in my opinion, stand on the same footing and relief in those cases lies number with companyrts but with the executive government of the Repub- lic. If Mr. Charis argument that on the companymencement of the Constitution on 26th January, 1950, all proceedings started under laws that became repugnant and inconsistent with the Constitution were to be stopped was accepted, it would lead to very strange results, and Mr. Chari had to companycede that it would be so. Suppose a person was companyvicted of the offence of sedition or of an offence under one of the safety Acts, the provisions of which are repugnant to the Constitution, but his appeal was pending in the High Court against his companyviction, then, according to the companyten- tion of Mr. Chari, the companyrt has numberpower to hear the appeal because the law being void, numberfurther action companyld be taken in the matter. The result would be that the Court would number be able to hear an appeal and to give relief to the accused if he had been erroneously companyvicted. If a companyrt cannot frame a charge or companyvict a person under a law that is repugnant to the Constitution equally it would number be enti- tled to companytinue any proceeding for the benefit of the accused under companyer of such a law. Great deal of emphasis was laid during the companyrse of the argument on the meaning to be given to the word void and it was said that this word in its widest sense meant that the law declared void was void ab initio, i.e, from the very reception of the law it was bad. H that meaning was given to this word, then it would mean that all laws existing on the 26th January, 1950, and which were declared void by article 13 1 because of their being repugnant to the Constitution were bad when they were passed by the legislature, though at the same time the subject enjoyed numberfundamental rights. It was sought to give to this word void the same wide meaning as was given to the word repeal by Tindal C.J. in the case above mentioned. With every respect to the great Judges who administered the companymon law in England during the earlier period of British history and in all humility I venture to say that the rule evolved by them qua repeal was of an artificial nature. The dictum of the learned Chief Justice that a repeal of a statute obliterates it companypletely from the records of Par- liament as if it had never been passed is to my mind based on an extended meaning of that expression than its ordinary dictionary sense. When a statute has been in operation, say for a period of fifty years, people have suffered penalties under it or have acquired rights thereunder and the law has been enforced by companyrts for such a long period, then to say that when it is repealed it is companypletely obliterated and that it never had any existence and was never passed by Parliament, is rather saying too much and is ignoring hard real facts and amounts to shutting ones eyes to the actual- ities of the situation. It would be more companysonant with reason and justice to say that the law existed and was good at the time when it was passed but that since the date of its repeal it has numberlonger any effect whatsoever. The Parliament may however say in the repealing statute that it will have retrospective operation and it may also prescribe the limits of its retrospectivity and to that extent past transactions may be affected by it. Because the rule of companymon law evolved by the English Judges was number in companyso- nance with reason and justice, a legislative practice was evolved under which each repealing statute companytained a saving clause under which past transactions were number allowed to be affected by the repeal. Eventually the rule of companymon law was companypletely abrogated by the enactment of the Interpretation Act, 1889. In India in the year 1868, section 6 of the General Clauses Act enacted what was later on enacted in England in the Interpretation Act and for over eighty years it is this rule of companystruction that has been adopted in this companyntry, the rule being that past transactions, whether closed or incho- ate cannot be affected by the repeal of an earlier statute or by the companying into effect of a new one. In my opinion, the rule companytained in the General Clauses Act and in the English Interpretation Act is more in companysonance with reason and justice and is also a rule of companyvenience and should be followed in this companyntry, in preference to the rule evolved by the English Judges in the earlier part of English legal history. Be that as it may, it is unnecessary in this case to have resort either to the rule of companymon law or to the General Clauses Act as the language of article 13 itself furnishes a solution to the problem. Reference was also made to the rule of companystruction applicable to temporary statutes. In the case of such statutes, the rule of English law is that after the expiry of the life of the statute numberaction can be taken under the expired statute unless an intention can be gathered from its provisions to the companytrary, but transactions already company- pleted during the period that these statutes had the force of law are number in any way affected. That rule seems to be quite logical and is companysonant with reason and justice. When the life of a statute is limited and it dies a natural death, then numberquestion either of its retrospective or of prospective nature arises. If the intention of the statute was that anything done under it has to companytinue, then it will be allowed to companytinue otherwise numberhing done under it will be companytinued after its natural death. Any rule applica- ble to companystruction of such a statute has numberapplication to the interpretation of the Constitution of India and the reference to this rule, in my opinion, is number relevant for the decision of this Reference was also made to the rule of companystruction laid down by the American companyrts in respect of statutes de- clared void because of their being repugnant to the Consti- tution of the United States of America. It is obvious that if a statute has been enacted and is repugnant to the Con- stitution, the statute is void since its very birth and anything done under it is also void and illegal. The companyrts in America have followed the logical result of this rule and even companyvictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth then anything done under it, whether closed, companypleted, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is number applicable in regard to laws which were existing and were companystitutional according to the Government of India Act, 1935. Of companyrse, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by companyrts in India as is followed in America and even companyvic- tions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to this companyrt by the Constitution. The only rule of companystruction applicable to the inter- pretation of article 13 of the Constitution is the one that companycerns the determination of the question whether a statute is intended to have any retrospective operations. If the well-known canons of companystruction on this point are applied, then it has to be held that article 13 was number intended to have any retrospective effect whatever on the other hand, its language denotes that it recognized the validity of the existing laws up to the date of the companymencement of the Constitution and even after its companymencement except to the extent of their repugnancy to any provisions of Part III of the Constitution. On this companystruction of article 13 it cannot affect any past transactions, whether closed or inchoate. Reference in this companynection may be made to the provisions of article 372 2 of the Constitution. Under this article the President has been given power to adapt existing laws and to bring them in accordance with the articles of the Constitu- tion by a process of amendment, repeal or adaptation. The President companyld have repealed the Press Emergency Powers Act and brought the law in accordance with the provisions of Part III of the Constitution and if he had used the powers of repeal given to him by this article, the provisions of the General Clauses Act would have been immediately attract- ed to that situation and the pending prosecution of the appellant would have to be companytinued in view of those provi- sions. If in that situation the Constitution companytemplates the companytinuance of pending proceedings under existing laws, it becomes difficult to place a different interpretation on the phraseology employed in article 13 1 of the Constitu- tion, than the one that is in accord with that situation. By the companystruction that I have placed on this article that incongruous result is avoided. In view of the decision above arrived at it seems unnec- essary to pronounce on the alternative argument of the learned Attorney-General to the effect that the expression void, used in article 13 of the Constitution is synonymous with the word repeal and that it was an apt word used in the companytext to indicate the same intention. It was said that the word repeal was number used in the article but instead the expression void was employed therein by the draftsmen in order to include within its ambit cases of custom and usage where such custom and usage were also repugnant to the provisions of Part III of the Constitution.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTIONCase No. 22 of 1950. Appeal under Art. 132 1 of the Constitution against a judgment and order of the Bombay High Court dated 1st Sep- tember, 1950, in Criminal Application No. 807 of 1950. The facts and arguments of companynsel are set out in the judgment. C. Setalvad Attorney-General, G. N. Joshi, with him for the appellant. S.R. Chari and Bava Shiv Charan Singh for the respond- ent. 1951. Jan. 25. The judgment of Kania C.J., Fazl Ali, Mukherjea and Chandrasekhara Aiyar JJ. was delivered by Kania C.J. Patanjali Sastri and Das JJ. delivered separate judgments. KANIA C.J.--This is an appeal from a judgment of the High Court at Bombay, ordering the release of the respondent who was detained in custody under a detention order made under the Preventive Detention Act IV of 1950 . The re- spondent was first arrested on the 18th of December, 1948, under the Bombay Public Security Measures Act, 1948 Bombay Act IV of 1947 , but was released on the 11th of November, 1949. He was arrested again on the 21st of April, 1950, under the Preven- tive Detention Act, 1950, and on the 29th of April, 1950, grounds for his detention were supplied to him. They were in the following terms That you are engaged and are likely to be engaged in promoting acts of sabotage on railway and railway property in Greater Bombay. The respondent filed a habeas companypus petition on the 31st of July, 1950, in which, after reciting his previous arrest and release, in para- graphs 6 and 7 he mentioned as follows -- On his release the applicant left Bombay and stayed out of Bombay, that is, in Ratlam and in Delhi. On 20th April, 1950, he returned to Bombay and was immediately arrested as stated above. He companytended that the sole aim of the Government in ordering his detention was number the preservation of public order or the security of the State, but the locking up of active trade unionists who belonged to the All-India Trade Union Congress. He companytended that the ground is delight- fully vague and does number mention when, where or what kind of sabotage or how the applicant promoted it. He further urged that the ground gave numberparticulars and therefore was number a ground as required to be furnished under the Preventive Detention Act, 1950. He stated that the present appellant acted mala fide, for a companylateral purpose, outside the scope of the Act, and that the applicants detention in any event was illegal and mala fide. When this petition was presented to the Court on the 9th of August, 1950, it directed the issue of a numberice to the Commissioner of Police. Pending the disposal of the Rule, on the 26th August, 1950, the Commissioner of Police sent a companymunication to the respond- ent as follows In pursuance of section 7 of the Preventive Detention Act, 1950 Act IV of 1950 , and in companytinuation of my companymu- nication No. 227 dated the 29th April, 1950, the following further particulars are hereby companymuni- cated to you in companynection with the grounds on which a detention order has been made against you under sub-section 1 of section 3 of the said Act - That the activities mentioned in the grounds furnished to you were being carried on by you in Greater Bombay be- tween January 1950 and the date of your detention and In all probability you will companytinue to do so. If, in view Of the particulars number supplied, you wish to make a further representation against the order under which you are detained, you should address it to the Government of Bombay and forward it through the Superintend- ent of Arthur Road Prison, Bombay. On the 30th of August, 1950, the Commissioner of Police filed an affidavit against the petition of the respondent in which it was stated that the objectionable activities were carried on by the applicant between the months of January, 1950, and the date of detention. It further stated that in or about the month of January, 1950, there was a move for a total strike on the railways in India in the month of March, 1950, and the applicant was taking prominent part to see that the strike was brought about and was successful. As a means to make the strike successful and bring about total cessation of work on all railways, the applicant and his associates were advocating sabotage on railways and railway property in Greater Bombay. He further stated that reliable materials were put before him of the respondent being en- gaged in such activities by experienced police officers. He added that although the railways strike in the month of March did number materialise, the idea of bringing about such strike as soon as companyvenient companytinued to be entertained and the present respondent was actively engaged in bringing about such a strike in the near future. He then stated that the disclosure of further facts relating to the activities of the detenue was against public interest. In para. 6 there was a specific denial that the respondent, after his release in November, 1949, and till 20th April, 1950, was out of Bombay. It was stated that he used to go out of Bombay at times but during the major part of the period he was in the city of Bombay. When the matter came up before a Bench of the High Court the respondents petition was granted. In the judgment of the Court, Chagla C.J. observed It is clear by reason of the view we have taken in several cases under section 491 of the Criminal Procedure Code, that this is number a ground which would enable the detenue to make a representation to which he is entitled both under the Act and under the Constitu- tion. After numbericing the affidavit of the Commisioner of Police, it was further observed We appreciate the fact that, after our decision was given, Government decided to place all the materials before us so that we should be satisfied that what influenced the detaining authority in making the order was number any ulterior motive but that ample materials were at the disposal of the detaining authority which would justify the applicants detention. We have looked at this affidavit and we have also looked at the particulars furnished to us by Mr. Chudasama. If these particulars had been furnished at the time when the grounds were furnished on the 29th of April, 1950, very likely we would have companye to the companyclusion that the grounds were such as would have led the detenue to know exactly what he was charged with and to make a proper representation. The judgment is however based on the following observation of the Chief Justice Anew and important question arises for our companysideration and that is whether it is permissible to the detaining authority to justify the detention by amplify- ing and improving the grounds originally furnished The only grounds which we have to companysider and which were furnished in the purported companypli- ance of article 22 5 were the grounds furnished to the detenue on the 29th of April, 1950 and if these grounds were number such as to enable the detenue to make a proper representation, then there was a violation of the fundamental right and a companytravention of the statutory provisions. That violation and that companytra- vention cannot be set right by the detaining authority by amplifying or improving the grounds already given. As we said before, the point of time at which we have to decide whether there was a companypliance or number with the provisions of article 22 5 is the 29th of April, 1950, when the grounds were furnished, and number when further and better particulars were given on the 26th of August 1950. The learned Attor- ney-General, appearing for the appellant, has strenuously objected to this line of approach. As the question of vagueness of grounds for the order of detention and the question whether supplementary grounds companyld be furnished after the grounds were first given to the detenue have arisen in various High Courts, we think it right that the general principles should be properly appreciated. The Constitution of India has given legisla- tive powers to the States and the Central Government to pass laws permitting preventive detention. In order that a legis- lation permitting preventive detention may number be companytended to be an infringement of the Fundamental Rights provided in Part III of the Constitution, article 22 lays down the permissible limits of legislation empowering preventive detention. Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and as and when such requirements are number observed the detention, even if valid an initio, ceases to be in accord- ance with procedure established by law and infringes the fundamental right of the detenue guaranteed under articles 21 and 22 s of the Constitution. In that way the subject of preventive detention has been brought into the chapter on Fundamental Rights. In the 3resent case we are companycerned only with clauses 5 and 6 of article 22 which run as follows- 22. 5 When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Nothing in clause 5 shall require the authority making any such order as is referred to in that clause to disclose facts which such authority companysiders to be against the public interest to disclose. It has to be borne in mind that the legislation in question is number an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those companytained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the companymission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the infor- mation in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending companymission of a prejudi- cial act. Section a of the Preventive Detention Act there- fore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to 1 the defence of India, the relations of India with foreign powers, or the security of India, or 2 the security of the State or the maintenance of public order, or 8 the maintenance of supplies and services essential to the companymunity it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3 therefore before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are number mentioned, as it is number humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be numbersatisfaction if there are numbergrounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Gov- ernment was satisfied are such as a rational human being can companysider companynected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a companyrt. Whether in a particular case the grounds are sufficient or number, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the sec- tion. It is number for the companyrt to sit in the place of the Central Government or the State Government and try to deter- mine if it would have came to the same companyclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objec- tive test in a companyrt of law. Such detention orders are passed on information and materials which may number be strict- ly admissible as evidence under the Evidence Act in a companyrt, but which the law, taking into companysideration the needs and exigencies of administration, has allowed to be companysidered sufficient for the subjective decision of the Government. An order having been so permitted to be made, the next step to be companysidered is, has the detained person any say in the matter? In the chapter on Fundamental Rights, the Constitution of India, having given every citizen a right of freedom of movement, speech, etc. with their relative limitations prescribed in the different articles in Part III, has companysidered the position of a person detained under an order made under a Preventive Detention Act. Three things are expressly companysidered. in article 22 5 it is first companysidered that the man so detained has a right to be given as soon as may be the grounds on which the order has been made. He may otherwise remain in custody without having the least idea as to why his liberty has been taken away. This is companysidered an elementary right in a free democratic State. Having received the grounds for the order of deten- tion, the next point which is companysidered is, but that is number enough what is the good of the man merely knowing grounds for his detention if he cannot take steps to redress a wrong which he thinks has been companymitted either in belief in the grounds or in making the order. The clause therefore further provides that the detained person should have the earliest opportunity making a representation against the order. The representation has to be against the order of detention because the grounds are only steps for the satis- faction of the Government on which satisfaction the order of detention has been made. The third thing provided is in clause 6 . It appears to have been thought that in companyvey- ing the information to the detained person there may be facts which cannot be disclosed in the public interest. The authorities are therefore left with a discretion in that companynection under clause 6 . The grounds which form the basis of satisfaction when formulated are bound to companytain certain facts, but mostly they are themselves deductions of facts from facts. That is the general structure of article 22, clauses 5 and 6 , of the Constitution. The question arising for discussion is what should be stated in the grounds. It is argued that whatever may be stated or omitted to be stated, the ground cannot be vaguethat the Constitution envisages the furnishing of the grounds once and therefore there is numberoccasion for furnishing particulars or supplemental grounds at a later stage and that article 22 5 does number give the detained person a right to ask for particulars, number does it give the authorities any right to supplement the grounds, once they have furnished the same. In our opinion much of the companytroversy is based on a somewhat loose appreciation of the meaning of the words used in the discussion. We think that the position will be clarified if it is appreciated in the first instance what are the rights given by article 22 5 . The first part of article 22, clause 5 , gives a right to the detained person to be furnished with the grounds on which the order has been made and that has to be done as soon as may be. The second right given to such persons is of being afforded the earliest opportunity of making a representation against the order. It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satis- fied that it was necessary to make the order. These grounds therefore must be in existence when the order is made. By their very nature the grounds are companyclusions of facts and number a companyplete detailed recital of all the facts. The company- clusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is companysidered to fall, These companyclusions are the grounds and they must be sup- plied. No part of such grounds can be held back number can any more grounds be added thereto. What must be supplied are the grounds on which the order has been made and numberhing less. The second right of being afforded the earliest opportunity of making a representation against the order is number companyfined to only a physical opportunity by supplying paper and pen only. In order that a representa- tion can be made the person detained must first have knowl- edge of the grounds on which the authorities companyveyed that they were satisfied about the necessity of making the detention order. It is therefore clear that if the repre- sentation has to be intelligible to meet the charges companytained in the grounds, the information companyveyed to the detained person must be sufficient to attain that object. Ordinarily, the grounds in the sense of companyclusions drawn by the authorities will indicate the kind of prejudicial act the detenue is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him. Of companyrse if the detenue is told about the details of facts besides the grounds he will certainly be in a better position to deal with the same. It is significant that the clause does number say that the grounds as well as details of facts on which they are based must be furnished or fur- nished at one time. The law does number prescribe within what time after the grounds are furnished the representation companyld be made. The time in each case appears deliberately unprovided for expressly, because circumstances vary in each case and make it impossible to fix a particular time for the exercise of each of these two rights. It thus appears clear that although both these rights are separate and are to be exercised at different times, they are still companynected with each other. Without getting information sufficient to make a representation against the order of detention it is number possible for the man to make the representation. Indeed the right will be only illusory but number a real right at all. The right to receive the grounds is independent but it is thus intentionally bound up and companynected with the right to make the representation. Although these two rights are thus linked up, the companytingen- cy of further companymunication between the furnishing of the grounds on which the order is made and the exercise of the right of representation granted by the second part of that clause is number altogether excluded., One thing is clear from the wording of this clause and that is that after the grounds are once companyveyed to the detenue there can be numberaddition to the grounds. The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be numberaddition to those grounds because such additional grounds will be either the grounds which were number elements to bring about the satisfac- tion of the Government or if they were such grounds there has been a breach of the provision of the first part of article 22 5 , as those grounds for the order of detention were number companyveyed to the detained person as soon as may be. This however does number mean that all facts leading to the companyclusion mentioned in the grounds must be companyveyed to the detained person at the same time the grounds are companyveyed to him. The facts on which the companyclusion mentioned in the grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in companylecting the exact data or it may number be companyvenient to set out all the facts in the first companymunication. If the sec- ond companymunication companytains numberfurther companyclusion of fact from facts, but only furnishes all or some of the facts on which the first mentioned companyclusion was rounded it is obvious that numberfresh ground for which the order of detention was made is being furnished to the detained person by the second companymunication which follows some time after the first companymunication. As regards the companytents of that companymunication therefore he test appears to be whether what is companyveyed in the second companymunication is a statement of facts or vents, which facts or events were already taken into companysideration in arriving at the companyclusion included in the ground already supplied. If the later companymunication companytains facts leading to a companyclusion which is outside the ground first supplied, the same cannot be looked into as supporting the order of detention and therefore those grounds are new grounds. In our opinion that is the more appropriate expression to be used. The expression addi- tional grounds seems likely to lead to companyfusion of thought. The next point to be companysidered is the time factor. if a second companymunication becomes necessary, when should it be made ? Clause 22 5 lays down two time factors. The first is that the grounds should be supplied as soon as may be This allows the authorities reasonable time to formulate the grounds on the materials in their possession. The time element is neces- sarily left indeterminate because activities of individuals tending to bring about a certain result may be spread over a long or a short period, or a larger or a smaller area, or may be in companynection with a few or numerous individuals. The time required to formulate the proper grounds of deten- tion, on information received, is bound to vary in individu- al cases. There is numberdoubt that numberexpress words are used to suggest a second companymunication from the authority to the detained person. But having regard to the structure of the clause dealing with the two rights companynected by the word and , and the use of the words as soon as may be and earliest opportunity separately, indicating two distinct time factors, one in respect of the furnishing of grounds and the other in respect of the making of the representa- tion, the companytingency of a second companymunication after the grounds are furnished, is number excluded. However, the second companymunication should number be liable to be charged as number being within the measure as soon as may be . Secondly, it must number create a new ground on which satisfaction of the Government companyld be suggested to have been arrived at. In our opinion, if these two companyditions are fulfilled, the objection against a later companymunication of details or facts is number sufficient to cause an infringement of the provision made in article 22 5 . The question has to be approached from another point of view also. As mentioned above, the object of furnishing grounds for the order of detention is to enable the detenue to make a representation, i.e., to give him an opportunity to put forth his objections against the order of detention. Moreover, the earliest opportuni- ty has to be given to him to do that. While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the companyclusions in the grounds are rounded companyld and should equally be companyveyed to the detained person to enable him to make out his objections against the order. To put ,it in other words, the detaining authority has made its decision and passed its order. The detained person is then given an opportunity to urge his objections which in cases of preventive detention companyes always at a later stage. The grounds may have been companysidered suffi- cient by the Government to pass its judgment. But to enable the detained person to make his representation against the order, further details may be furnished to him. In our opinion, this appears to be the true measure of the proce- dural rights of the detained person under article 22 5 . It was argued that under article 22 6 the authorities are permitted to withhold facts which they companysider number desirable to be disclosed in the public interest. It was argued that therefore all other facts must be disclosed. In our opinion that is number the necessary companyclusion from the wording of article 22 6 . It gives a right to the detaining authority number to disclose such facts, but from that it does number follow that what is number stated or companysidered to be withheld on that ground must be disclosed and if number dis- closed, there is a breach of a fundamental right. A wide latitude is left to the authorities in the matter of disclo- sure. They are given a special privilege in respect of facts which are companysidered number desirable to be disclosed in public interest. As regards the rest, their duty is to disclose facts so as to give the detained person the earliest oppor- tunity to make a representation against the order of deten- tion. On behalf of the respondent, it was argued that if the grounds of detention are vague or insufficiently clear there will result a failure to give him the earliest opportunity to make a representation against the order of detention and that defect in its turn must affect the satisfaction on which the order of detention was made. It was argued that just as a ground which is companypletely irrelevant, and there- fore, in law is numberground at all, companyld number satisfy any rational person about the necessity for the order, a vague ground which is insufficient to enable the detenue to make a repre- sentation would similarly make the order of detention based on it, void. In our opinion, this argument is un- sound. Although the ground may be good there may be a certain indefiniteness in its statement. Proceeding on the footing that there is some companynection, i.e., the ground by itself is number so companyvincingly irrelevant and incapable of bringing about satisfaction in any rational person, the question whether such ground can give rise to the satisfac- tion required for making the order is outside the scope of the inquiry of the companyrt. On the other hand, the question whether the vagueness or indefinite nature of the statements furnished to the detained person is such as to give him the earliest opportunity to make a representation to the author- ity is a matter within the jurisdiction of the companyrts inquiry and subject to the companyrts decision. The analogy sought to be drawn between a ground which can have numberconnection whatsoever with the order and a ground which on its face has companynection with the order but is number definite in its statement, is clearly faulty. The extreme position, on the other hand, that there is numberconnection between the ground to be furnished and the representation to be made by the detained person under article 22 5 is equally unsound, when the object in furnishing the ground is kept in mind. The companyferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made. In our opinion, it is therefore clear that while there is a companynec- tion between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the companytents of the grounds for the two purposes is quite dif- ferent. As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity. The argument advanced on behalf of the respondent mixes up the two rights given under article 22 5 and companyverts it into one indivisible right. We are unable to read article 22 5 in that way. As pointed out above, the two rights are companynected by the word and. Furthermore, the use of the words as soon as may be with the obligation to furnish the grounds of the order of detention, and the fixing of another time limit, viz. the earliest opportunity, for making the representation, makes the two rights distinct. The second right, as it is a right of objection, has to depend first on the service of the grounds on which the companyclusion, i.e., satisfaction of the Government about the necessity of making the order, is based. To that extent, and that extent alone, the two are companynected. But when grounds which have a ration- al companynection with the ends mentioned in section a of the Act are supplied, the first companydition is satisfied. If the grounds are number sufficient to enable the detenue to make a representation, the detenue can rely on his second right and if he likes may ask for particulars which will enable him to make the representation. On an infringement of either of these two rights the detained person has a right to approach the companyrt and companyplain that there has been an infringement of his fundamental right and even if the infringement of the second part of the right under article 22 5 is established he is bound to be released by the companyrt. To treat the two rights mentioned in article 22 s as one is neither proper according to the language used, number according to the purpose for which the rights are given. The companytention that the grounds are vague requires some clarification. What is meant by vague ? Vague can be companysidered as the antonym of definite. If the ground which is supplied is incapable of being understood or de- fined with sufficient certainty it can be called vague. It is number possible to state affirmatively more on the question of what is vague. It must vary according to the circum- stances of each case. It is however improper to companytend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If on reading the ground furnished it is capable of being intel- ligently understood and is sufficiently definite to furnish materials to enable the detained person to make a represen- tation against the order of detention it cannot be called vague. The only argument which companyld be urged is that the language used in specifying the ground is so general that it does number permit the detained person to legitimately meet the charge against him because the only answer which he can make is to say that he did number act as generally suggested. In certain cases that argument may support the companytention that having regard to the general language used in the ground he has number been given the earliest opportunity to make a repre- sentation against the order of detention. It cannot be disputed that the representation mentioned in the second part of article 22 5 must be one which on being companysidered may give relief to the detained person. The argument that supplementary grounds cannot be given after the grounds are first given to the detenue, similarly requires a closer examination. The adjective supplemen- tary is capable of companyering cases of adding new grounds to the original grounds, as also giving particulars of the facts which are already mentioned, or of giving facts in addition to the facts mentioned in the ground to lead to the companyclusion of fact companytained in the ground originally fur- nished. It is clear that if by supplementary grounds is meant additional grounds, i.e., companyclusions of fact required to bring about the satisfaction of the Government, the furnishing of any such additional grounds at a later stage will amount to an infringement of the first mentioned right in article 22 5 as the grounds for the order of detention must be before the Government before it is satisfied about the necessity for making the order and all such grounds have to be furnished as soon as may be. The other aspects, viz., the second companymunication described as supplemental grounds being only particulars of the facts mentioned or indicated in the grounds first supplied, or being additional incidents which taken along with the facts mentioned or indicated in the ground already companyveyed lead to the same companyclusion of fact, which is the ground furnished in the first instance stand on a different footing. These are number new grounds within the meaning of the first part of article 22 5 . Thus, while the first mentioned type of additional grounds cannot be given after the grounds are furnished in the first instance, the other types even if furnished after the grounds are furnished as soon as may be, but provided they are furnished so as number to companye in companyflict with giving the earliest opportunity to the detained person to make a repre- sentation, will number be companysidered an infringement of either of the rights mentioned in article 22 5 of the Constitu- tion. This detailed examination shows that preventive deten- tion is number by itself companysidered an infringement of any of the fundamental rights mentioned in Part III of the Consti- tution. This is, of companyrse, subject to the limitations prescribed in clause 5 of article 22. That clause, as numbericed above, requires two things to be done for the person against whom the order is made. By reason of the fact that clause 5 forms part of Part III of the Constitution, its provisions have the same force and sanctity as any other provision relating to fundamental rights. As the clause prescribes two requirements, the time factor in each case is necessarily left fluid. While there is the duty on the part of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make a representation, which obligations, as shown above, are companyrelated, there exists numberexpress provision companytemplating a second companymunication from the detaining authority to the person detained. This is because in several cases a second companymunication may number be necessary at all. The only thing which emerges from the discussion is that while the authori- ties must discharge the duty in furnishing grounds for the order detention as soon as may be and also provide the earliest opportunity to the detained person to make the representa- tion, the number of companymunications from the detaining authority to the detenue may be one or more and they may be made at intervals, provided the two parts of the aforesaid duty are discharged in accordance with the wording of clause 5 . So long as the later companymunications do number make out a new ground, their companytents are numberinfringement of the two procedural rights of the detenue mentioned in the clause. They may companysist of a narration of facts or particulars relating to the grounds already supplied. But in doing so the time factor in respect of the second duty, viz. to give the detained person the earliest opportunity to make a representation, cannot be overlooked. That appears to us to be the result of clause 5 of article 22. In numerous cases that have been brought to our numberice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order. Instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the companymunication companyvey- ing the grounds of detention. In our opinion, this attitude is quite deplorable. We agree with the High Court of Bombay in its observation when it says In all the matters which have companye up before us we have been distressed to find how vague and unsatisfactory the grounds are which the detaining authority furnished to the detenue and we are companypelled to say that in almost every case we have felt that the grounds companyld have been ampler and fuller without any detriment to public interest. While the Constitution gives the Govern- ment the privilege of number disclosing in public interest facts which it companysiders undesirable to disclose, by the words used in article 22 5 there is a clear obligation to companyvey to the detained person materials and the disclosure of which is number necessary to be withheld which will enable him to make a representation. It may be numbericed that the Preventive Detention Act may number even companytain machinery to have the representation looked into by an independent authority or an advisory board. Under these circumstances, it is but right to emphasize that the companymu- nication made to the detained person to enable him to make the representation should, companysistently with the privilege number to disclose facts which are number desirable to be dis- closed in public interest, be as full and adequate as the circumstances permit and should be made as soon as it can be done. Any deviation from this rule is a deviation from the intention underlying article 22 5 of the Constitution. The result of this attitude of some detaining authorities has been that, applying the tests mentioned above, several companymunications to the detained persons have been found wanting and the orders of detention are pronounced to be invalid. Having regard to the principles mentioned above, we have to companysider whether the judgment of the High Court is company- rect. We have already pointed out that the summary rejec- tion by the High Court of the later companymunication solely on the ground that all materials in all circumstances must be furnished to the detenue when the grounds are first companymuni- cated, is number sound. We have indicated the circumstances and companyditions under which the later companymunication may or may number be companysidered as falling within the purview of article 22 5 of the Constitution. In dealing with the position when the grounds were first companymunicated, the High Court held as follows This is number a ground which would enable the detenue to make a representa- tion to which he is entitled both under the Act and under the Constitution. In this case the later companymunication of the 26th August, 1950, was made after the respondent filed his petition and it appears to have been made to companytrovert his allegation that he was never in Bombay between January and April, 1950, as alleged in his affidavit. After taking into companysideration this companymunication it was observed by Chagla C.J. that if these particulars had been furnished on 29th April, 1950, very likely the companyrt would have rejected the petition. The companyrt set the respondent free only because of its view that after 29th April numberfurther companymunication was permissible. In our opinion, this view is erroneous. We think that on the facts of the present case therefore the respondents petition should have been dismissed. We therefore allow the appeal. PATANJALI SASTRI. J.--While I companycur in the order pro- posed by my Lord that this appeal should be allowed, I regret I find myself unable to agree with him on the true meaning and effect of article 22, clause 8 , which is reproduced in section 7 of the Preventive Detention Act, 1950, hereinafter referred to as the Act . Put shortly, the question that falls to be decided is Is it within the companypetence of the companyrt to examine the grounds companymunicated to a person detained under the Act, with a view to see if they are sufficient in its opinion to enable him to make a representation to the detaining authority against the order, and if they are number, to direct his release ? It is number settled by the decision of the majority in Gopalans case 1 that article 21 is applicable to preven- tive detention except in so far as the provisions of article 22 4 to 7 either expressly or by necessary implication exclude its application, with the result that a person cannot be deprived of his personal liberty, even for preven- tive purposes, except according to procedure established by law. Part of such procedure is provided by the Constitution itself in clauses 5 and 6 of article 22 which read as follows When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Nothing in clause 5 shall require the authority making any such order as is referred to in that clause 1 1950 S.C.R. 88. to disclose facts which such authority companysiders to be against the public interest to disclose. If this procedure is number companyplied with, detention under the Act may well be held to be unlawful, as it would then be deprivation of personal liberty which is number in accordance with the procedure established by law. The question accord- ingly arises as to what are the requirements of article 22 5 and whether they have been companyplied with in the present case ? On behalf of the respondent it is urged that the clause provides two safeguards for the person ordered to be de- tained, namely, that 1 the grounds of his detention should be companymunicated to him as soon as may be, and 2 he should be given the earliest opportunity of making a representation against the order. As there is to be numbertrial in such cases, the right of making a representation affords, it is said, the only opportunity to the person detained to repell the accusation brought against him and establish his innocence. It is the companymunication of the grounds of detention that is expected to give him numberice of what he is to meet by making a representation. The grounds must, therefore, it is sub- mitted, give sufficient indication of the nature and extent of the information on which action has been taken against him and must companytain sufficient particulars of the time and place of the acts charged, so as to enable him to make his representation effective as far as it is in his power to do so. If the grounds are vague and do number disclose the sub- stance of the information on which the detention has been based, there would be numberreal companypliance with the procedure prescribed by article 22 s , and the detention must, it is claimed, be unlawful. In other words, the sufficiency of the grounds for the purpose of enabling the person detained to make an effective representation against the order of deten- tion is, in every case, a justiciable issue. It must number be taken as settled by the decision of this Court in Gopalans case 1 , which on this point was 1 1951 S.C.R. 88. unanimous, that section 3 of the Act is companystitutional and valid numberwithstanding that it leaves it to the, satisfac- tion of the executive government to decide whether action under the Act is to be taken or number against any particular person or persons. The learnedChief Justice pointed out at p. 121 that action by way of preventive detention must be based largely on suspicion, and quoted the remark of Lord Finlay in Rex v. Halliday 1 , that a companyrt is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the re- straint on a person. Dealing with a similarly worded provision of the Central Provinces and Berar Public Safety Act, 1948, the Federal Court declared in another unanimous judgment, that The language clearly shows that the respon- sibility for making a detention order rests upon the provin- cial executive as they alone are entrusted with the duty of maintaining public peaceand it would be a serious deroga- tion from that responsibility if the companyrt were to substi- tute its judgment for the satisfaction of the executive authority and, to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded The companyrt can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and tranquillity, for satisfaction in this companynection must be grounded on material which is of rationally probative value-Machindar Shivaji Mahar v. The King 2 . These decisions clearly establish, what indeed is plain from the nature of the measure, that preventive detention is a form of precautionary police action, to be employed on the sole responsibility of the executive government whose discretion is final, numberrecourse being permitted to a companyrt of law by way of review or justification of such action except on allegations of mala fides or irrational companyduct. 1 1917 A.C. 260, 269. 2 1949-50 When the power to issue a detention order has thus been made to depend upon the existence of a state of mind in the detaining authority, that is, its satisfaction, which is a purely subjective companydition, so as to exclude a judicial enquiry into the sufficiency of the grounds to justify the detention, it seems to me to be wholly inconsistent with that scheme to hold that it is open to the companyrt to examine the sufficiency of the same grounds to enable the person detained to make a representation, for, be it numbered, the grounds to be companymunicated to the person detained are the grounds on which the order has been made. Indeed, the logical result of the argument advanced by the respondents companynsel would be to invalidate section 3 of the Act in so far as it purports to make the satisfaction of the govern- ment the sole companydition of a lawful detention, for, if clause 5 of article 22 were to be companystrued as impliedly authorising a judicial review of the grounds of detention to see if they companytain sufficient particulars for making a representation, then, the subjective companydition prescribed in section 3 would be inconsistent with that clause and there- fore void. When this was pointed out to companynsel he submit- ted that the decision in Gopalans case 1 as to the company- stitutionality of section 3 required reconsideration in the light of his arguments based on article 22, clause 5 . Although the clause was number then companysidered from this point of view, it came in for a good deal of discussion in companynec- tion with section 14 of the Act and the present argument must, in my opinion, be rejected because it runs companynter to that decision. Apart from this aspect of the matter, I am number much impressed with the merits of the argument. While granting, in view of the structure and wording of clause 5 , that the grounds companymunicated to the person detained are to form the basis of his representation against the order, I am unable to agree with what appears to be the major premise of the argument, namely, that clause 5 companytemplates an inquiry where the person detained is to be formally charged with 1 1950 S.C.R.188, specific acts or omissions of a culpable nature and called upon to answer them. As pointed out by Lord Atkinson in Rex Halliday 1 , preventive detention being a precautionary measure, it must necessarily proceed in all cases to some extent on suspicion or, anticipation as distinct from proof, and it must be capable of being employed by the executive government in sudden emergencies on unverified information supplied to them by their police or intelligence officers. the Government, acting honestly and in good faith make an order being satisfied on such information, however lacking in particulars, that a person should be detained in the public interest, as they have been empowered by Parliament to do, then all that article 22 5 requires of them is to companymunicate as soon as may be the grounds which led to the making of the order, to the person companycerned, and to give him the earliest opportunity of making any represen- tation which he may wish to make on the basis of what is companymunicated to him. If such companymunication is made and such opportunity is given the detaining authority will have companyplied with the procedure prescribed by the Constitution, and the person under detention cannot companyplain that he has been deprived of his personal liberty otherwise than in accordance with the procedure established by law. I can find numberhing in article 22, clause 5 , to warrant the view that the grounds on which the order of detention has been made must be such that, when companymunicated to the person detained they are found by a companyrt of law to be sufficient to enable him to make what the companyrt companysiders to be an adequate representation. The right to be produced before a Magistrate and to companysult and be defended by a legal practi- tioner is expressly denied by the Constitution itself to a person under preventive detention vide article 22 1 , 2 and 3 3 and this. Court held in Gopalans case 2 that there was numberhing in the Constitution to entitle him to a hearing even before the detaining authority. All this underlines the executive character of the function exercised by 1 1917 A.C. 260, 275. 2 1950 S.C.R. 88, the authority which does number in any way embark on a judicial or quasi-judicial inquiry. In such circumstances the repre- sentation which the person detained is allowed to make to the Government, which is companystituted the judge in its own cause, cannot be assumed to be similar in scope or purpose to a defence against a formulated charge in a companyrt of law. The argument, therefore, that the right of making a repre- sentation should be made effective in the sense that such person should be enabled to defend himself successfully if possible, and, for that purpose, the detaining authority should companymunicate to him the necessary particulars on pain of having the order quashed if such particulars are number furnished, proceeds on a misconception of the true position. Perhaps the most companyent reason for rejecting the argu- ment is to be found in the language and provision of clause 6 of article 22. Nothing in clause 5 , that is to say, neither the right to be informed of the grounds of deten- tion number the right to make a representation shall require the detaining authority to disclose facts which the authority companysiders should number be disclosed in the public interest. In other words, clause 5 should number be taken to import an obligation to provide particulars which the authority is given an absolute discretion to furnish or withhold. I cannot understand how it can be claimed, in the face of clause 6 , that it is incumbent on the executive govern- ment to companymunicate particulars which a companyrt of law companysid- ers necessary to enable the person detained to make a repre- sentation. It cannot be companypulsory to furnish what the authority is given an uncontrolled power to decide to give or to refuse. The companybined effect of clauses 5 and 6 is, to my mind, to require the detaining authority, to companymunicate to the person affected only such particulars as that authority and number a companyrt of law, companysiders sufficient to enable the said person to make a representation. It is worthy of numbere that in the well-known English case of Liversidge v. Anderson C , the existence of a 1 1942 A.C. 206. similar privilege was regarded as a very companyent reason for holding that the words If the Secretary of State has rea- sonable cause to believe did number raise a justiciable issue as to the existence of such cause as an objective fact. Viscount Maugham observed It is beyond dispute that he can decline to disclose the information on which he has acted on the ground that to do so would be companytrary to the public interest, and that this privilege of the Crown cannot be disputed. It is number ad rem on the question of companystruction to say in reply to this argument that there are cases in which the Secretary of State companyld answer the attack on the validity of the order for detention without raising the point of privilege. It is sufficient to say that there must be a large number of cases in which the information on which the Secretary of State is likely to act will be of a very companyfidential nature. That must have been plain to those responsible in advising His Majesty in regard to the Order in Council, and it companystitutes, in my opinion, a very companyent reason for thinking that the words under discussion cannot be read as meaning that the existence of reasonable cause is one which may be discussed in a companyrt which has number the power of eliciting the facts which in the opinion of the Secretary of State amount to reasonable cause. There was companysiderable discussion as to the meaning of the words grounds and representation used in clause 5 . These are words of very wide companynotation and, in the view I have expressed, it is unnecessary to define them. It may, however, be numbered that clauses 5 and 6 are number mutually exclusive in the sense that, when clause 6 is invoked, clause 5 ceases to be applicable. When, therefore, the detaining authority withholds the material facts under clause 6 and companymunicates to the person detained the grounds of detention, which in that case must be necessari- ly vague, it would still be companymunicating to him the grounds on which the order has been made, and such repre- sentation as the person may wish to make on the basis of that companymunication would still be a representation , within the meaning of clause 5 . This shows that numberprecise companynotation can be at- tributed to the terms grounds and re- presentation as used in clause 5 , for in certain cases at least, the one can be vague and the other inade- quate from the point of view of the person detained and, on a question of companystruction they need number be different in other cases. It was suggested in the companyrse of the argument that clause 5 dealt with two distinct and independent matters, namely, 1 the companymunication of the grounds of detention, and 2 the affording of an opportunity to make a represen- tation against the detention, and that the grounds companymuni- cated need number have any necessary relation to the represen- tation provided for. the right to make a representation, it was said, imported, by implication, an independent obliga- tion on the part of the authority to furnish the person detained with sufficient particulars and details of the accusation against him apart from and in addition to the obligation expressly imposed on the authority to companymunicate the grounds on which the order has been made, for the reason that without such particulars numberadequate or effective representation companyld be made against the order, and though the sufficiency of the Grounds on which the order was based had been held number to be open to judicial examination, there was numberreason why the sufficiency of the further companymunica- tion implied in the provision for representation should number be justiciable. The different time-limits fixed for -he performance of the duties imposed by clause 5 on the detaining authority are said to support this argument. The companystruction suggested is, in my opinion, strained and artificial and cannot be accepted. The companylocation in the same clause of the right to be informed of the grounds of detention and the right to make a representation against it indicate, to my mind, that the grounds companymunicated are to form the basis of the representation and, indeed, are in- tended mainly, if number solely, for that purpose. To suggest that, apart from those grounds, and right of making a repre- sentation imports, by necessary implication, a further obligation to give such details and particulars as would render that right effective is, in my opinion, number to companystrue the clause in its natural meaning but to stretch it by the process of implication, so as to square, with ones preconceived number tions of justice and fairplay. No support for this companystruc- tion can be derived from the provision of distinct time limits for the companymunication of the grounds and the afford- ing of opportunity for representation. as that can be ex- plained by the different degrees of urgency required in the two cases. The grounds are to be companymunicated as soon as may be which means as soon as possible and imports a much higher degree of urgency than what is implied in affording the earliest opportunity which, I take it, means affording writing and companymunication facilities to the person under detention as soon as he is ready and desires to make the representation. While clause 5 does number allow the authority, after making the order of detention and companymunicating the grounds of such order, to put forward fresh grounds in justification of that order, I can find numberhing in that clause to preclude the authority furnishing particulars or details relating to the grounds originally companymunicated, or the person under detention availing himself of such particulars and making a better or a further representation. Nor is there anything to prevent such person from asking for, or the authority from providing, further and better particulars of those grounds where it is in a position to do so. But the attempt in these and similar proceedings has always been number to secure the necessary particulars but to shift the arena of the companytest to the companyrt which, as Lord Finlay remarked in the case already referred to, is the least appropriate tribunal for investigating what must largely be matters of suspicion and number proof and which, for that very reason, might afford the relief hoped for without being in posses- sion of all the facts. Reference was made to the decisions of several High Courts dealing with the necessity of furnishing particulars of the grounds of detention. But those decisions turned on the provisions of the various Provincial Public Safety Acts which were passed before the companymencement of the Constitution and which, in most cases, specifically provided for the companymunication of particulars. Those decisions are of numberassistance to the respondent as neither in article 22 number in the Act is there any express provision that particulars of the grounds of detention should be given to the person detained. Our attention was called to the decision of this companyrt in Ishwar Das v. The State 1 as an instance where this companyrt companysidered the grounds of detention to be vague and directed the release of the petitioner in that case from detention under the Act. As pointed out in the brief judg- ment in that case, numberarguments were addressed on the point and the case was disposed of on the view prima. facie sup- ported by the decisions already referred to that, if the grounds were too general and vague to enable the person under detention to make a representation, he was entitled to be released. No value can therefore be attached to that decision as a precedent. In the companyrse of the debate it was repeatedly urged that this companyrt should be jealous in upholding the liberty of the subject which the Constitution has guaranteed as a fundamental right and must number adopt a companystruction of article 22 5 which would rob the safeguards provided therein of all their efficacy. I am profoundly companyscious of the sanctity which the Constitution attaches to personal liberty and other fundamental rights and of the duty of this companyrt to guard against inroads on them by the legislature or the executive. But when, as has been stated, the Constitu- tion itself has authorised preventive detention and denied to the subject the right of trial before a companyrt of law and of companysulting or being defended by a legal practitioner of his choice, providing only certain procedural safeguards, the companyrt companyld do numbermore than companystrue the words used in that behalf in their natural sense companysistently with the nature, purpose and scheme of the measure thus authorised, to ascertain what Not reported. powers are still left to the companyrt in the matter. It is in this light that I have endeavoured to companystrue clause 5 and, for the reasons indicated above, I have companye to the companyclusion that it is number the province of the companyrt to examine the sufficiency of the grounds for the purpose of making a representation, a matter left entirely to the discretion of the executive authority. An argument in sup- port of the liberty of the subject has always a powerful appeal but the companyrt should, in my opinion, resist the temptation of extending its jurisdiction beyond its legiti- mate bounds. DAS J.--This appeal from a decision of the Bombay High Court raises a very important question as to the sufficiency of the grounds of an order of detention under the Preven- tive Detention Act, 1950. The question depends, for its answer, on a companyrect interpretation of clauses 5 and 6 of article 22 of our Constitution which have been reproduced in section 7 of the Act. A similar question has also been raised in another appeal filed in this companyrt by one hundred detenus from the decision of a Bench of the Calcutta High Court, being Case No. 24 of 1950 Tarapada and Others v. The State of West Bengal 1 . As the view I. have taken as to the true meaning and effect of the relevant provisions of the Constitution and of the Act has number companymended itself to the majority of my companyleagues, I express it with a certain amount of diffidence arising out of the high regard I have for their opinions. Under section 3 1 a of the Act the authority company- cerned can make an order of detention only if he is satis- fied that, with a view to preventing a person from acting in a manner prejudicial to one or more of the matters referred to in sub-clauses i , ii and iii of clause a , an order should be made. What materials will engender in the mind of the authority the requisite satisfaction under section 3 1 of the Act will depend on the training and temperament and the habitual mental approach of the person who is the authority to 11 Reported infra at p. 212 Reported infra at p.212. make the detention order. The authority companycerned may be a person who will number derive the requisite satisfaction except on very precise and full information amounting almost to legal proof or he may be a person equally honest who will be so satisfied on meagre information which may appear to others to be very vague or even nebulous. If the authority is a person of the first mentioned type, then the grounds on which he will make the order will necessarily be more precise and fuller in particulars than the grounds on which an order may be made by the authority who is a person of the second mentioned type. The grounds on which the authority who is a person of the first mentioned type makes an order of detention create numberdifficulty, for such grounds are quite precise and ample, and, when companymunicated to the detenu, will clearly enable him to appreciate the reasons for his detention and to make his representation. We are, however, companycerned with the grounds on which an order of detention may be made by the authority who is a person of the second mentioned type who may derive the requisite satisfaction from the companyclusions which he may draw from the available information, which may number be precise or ample but on which, having regard to his source of information, the authority may honestly feel safe to rely and to act. This last mentioned type of grounds will, in the following discussion, be referred to as vague grounds. The question for our decision is whether an order of detention made in good faith on such vague grounds is valid when it is made and whether if valid when made, becomes invalid because these very grounds, when companymunicated to the detenu, are found to be insufficient to enable him to make a representa- tion. The first question urged by the learned companynsel for the detenu is that an order of detention made upon grounds which are too vague to enable the detenu to to make a representa- tion against the order is bad ab initio. The argument is thus formulated. Article 22 5 requires two things, name- ly, first, that the authority making the order of detention shall, as soon as may be, companymunicate to the detenu the grounds on which the, order has been made and, secondly, that the authority shall afford him the earliest opportunity to make a representation against the order. The two requirementsare companyrelated. The object of the companymunication of the grounds, according to the argument, is to enable the detenu to make a representation against the order of detention and the companybined effect of the two companystitutional requirements is that the grounds on which the order is made must be such as will, when companymuni- cated to the detenu, enable him to make a representation. If the grounds companymunicated are too vague being devoid of particulars, then numberrepresentation can be made on the basis of them and if numberrepresentation can be made on the basis of these grounds, numberorder of detention companyld properly have been made on those grounds, for it is the grounds on which the order had been made that have to be companymunicated to the detenu so as to enable him to make a representation. The argument, shortly put, is that the implied requirement that the grounds must be such as will enable the detenu to make a representation also indicates the quality or attribute of the grounds on which the order of detention may be made. Whether the grounds satisfy the requirements of article 22 5 is number left to the subjective opinion of the authority which makes the order of detention but an objective test is indicated, namely, that the grounds must be such as will enable the detenu to make a representation which quite clearly makes the matter justiciable. If the companyrt finds that numberrepresentation may be made on account of the vague- ness of the grounds. the companyrt must also hold that the order made on such vague grounds cannot be sustained. The next step in the argument is that the provisions of the Preven- tive Detention Act, 1950 Act IV of 1950 , which was passed after the Constitution came into effect must be read in the light of article 22 5 as companystrued above. So read, the satisfaction of the authority referred to in section a of the Act cannot be the subjective satisfaction of the authority, for the satisfaction must be founded on grounds which, when companymunicated later on, will enable the detenu to make a representation which postulates an objective test. This involves that section 3 1 a of the Act should be read as if the words on grounds which, when companymunicated to him, will enable him to make a repre- sentation such as is mentioned in section 7 of this Act occurred after the words if satisfied with respect to any person and before the words that with a view. If such interpolation of words be number permissible according to accepted canons of companystruction, then it must be held that in so far as section 3 of the Act makes an order of deten- tion dependent on the subjective satisfaction of the author- ity, the section is unconstitutional, being repugnant to the provisions of article 22 5 and the necessary intendment thereof. The argument so formulated is attractive but on closer scrutiny will be found to be unsound. Before the Constitution came into force there were laws for the mainte- nance of public security in almost all the provinces and in those laws there were provisions similar to the provisions of section 3 of the Preventive Detention Act, 1950. It was held in many cases that in the absence of bad faith, and provided the grounds on which the authority founded its satisfaction had a reasonable relation or relevancy to the object which the legislation in question had in view, the satisfaction of the authority was purely subjective and companyld number be questioned in any companyrt of law. The decision of the Federal Court in Machindar Shivaji Mahar v. The King 1 is one of such decisions. Vagueness of the grounds on which satisfaction of the authority is founded cannot be treated as on the same footing as the irrelevancy of the grounds, unless the vagueness be such as may, by itself, be companyent evidence in proof of bad faith. If the grounds are relevant to the objects of the legislation and if there is numberproof of bad faith, then mere vagueness of the grounds cannot vitiate the satisfaction founded on them. The satis- faction being subjective, the companyrt 1 1949-50 F.C.R. 827 at p.831, cannot arrogate to itself the responsibility of judging the sufficiency or otherwise of the grounds. It is true that at the time those decisions were given the Constitution had number companye into force and there were numberfundamental rights, but these well established principles were recognised and adopt- ed by all members of this companyrt in Gopalans case 1 which came up for companysideration after the Constitution had companye into force. In that case it was held unanimously that under section 3 of the Preventive Detention Act, 1950, the satis- faction of the authority was purely subjective and companyld number, in the absence of proof of bad faith, be questioned at all and that section 3 was number unconstitutional. It is true that the arguments number advanced were number advanced in exactly the same form on that occasion, but that fact makes numberdifference, for the arguments have numberforce as they are founded on the assumption that the grounds on which an order may be made must be such as will, when companymunicated, be sufficiently full and precise so as to enable the detenu to make a representation. I find numberwarrant for such an as- sumption. Indeed, the fact that this companyrt has held that section 3 of the Act which makes the satisfaction of the authority a purely subjective matter is number unconstitutional clearly destroys the companyency of the argument formulated as hereinbefore stated. The decision in Gopalans case 1 as to the validity of section 3 of the Act makes it impossible to accept this argument. It is next urged that even if the initial order was number invalid when made because satisfaction was a purely subjec- tive matter for the authority alone and the companyrt cannot companysider or pronounce upon the sufficiency of the grounds on which the satisfaction was based, nevertheless, the companytinuance of the detention becomes unlawful if the same grounds when companymunicated, be found to be vague and devoid of particulars so as to render the making of a representa- tion by the detenu somewhat difficult. The argument is that although the vagueness of the grounds is number 1 1950 S. C. R. 88. justiciable at the initial stage when the order is made and so the order cannot be said to be invalid ab initio, the same vagueness of the ground is nevertheless justi- ciable at the later stage when they are. companymuni- cated, so that if vagueness renders the making of a representation difficult the companytinuance of the detention at once becomes illegal. Under article 21 numberperson can be deprived of his life or personal liberty except according to procedure established by law. As ex- plained in Gopalans case 1 procedure established by law means procedure enacted by the Legislature, i.e., State-made procedural law and number any rule of natural justice. It was pointed out that the implication of that article was that a person companyld be deprived of his life or personal liberty provided such deprivation was brought about in accordance with procedure enacted by the appropriate Legislature. Having so pro- vided in article 21, the framers of our Constitution proceeded to lay down certain procedural requirements which, as a matter of companystitutional necessity, must be adopted and included in any procedure that may be enacted by the Legislature and in accordance with which a person may be deprived of his life or personal liberty. Those requirements are set forth in article 22 of the Constitution. A perusal of the several clauses of that article will show that the companystitutional require- ments of procedure which must be incorporated in any law for preventive detention relate to a stage after the order of detention is made under section 3 of the Preventive Detention Act, 1950. The order of detention being thus in accordance with procedure enacted by law which is number inconsistent with, any of the provisions of Part III of the Constitution applica- ble to that stage, the order of detention cannot be questioned unless there is proof of bad faith, either direct or indirect. We have, therefore, to companysider whether the detention validly brought about becomes unlawful by reason of subsequent number-compliance with the procedural requirements laid down in clause 5 of article 22, for if there is such number-compliance, the 1 1950 S.C.R. 88. detenu from that moment must be held to be deprived of his liberty otherwise than in accordance with procedure estab- lished by law and will, therefore, be entitled to be re- leased. I am prepared to companycede that there is some companyrela- tion between the two parts of article 22 5 , namely, the companymunication of the grounds on which the order has been made and the making of the representation by the detained person. The Constitution insists on the companymunication of the grounds on which the detention order has been made for some purpose. That purpose obviously is to apprise the detenu of the reasons for the order of his detention. The companymunica- tion of the grounds will necessarily enable him, first, to see whether the grounds are at all relevant to the object sought to be secured by the Act. If they are number, then they were numbergrounds at all and numbersatisfaction companyld be founded on them. The very irrelevancy of the grounds will be a companyent proof of bad faith on the part of the authority so as to make the order itself invalid. In the next place, the disclosure of the grounds will tell the detenu in which class his suspected activities have been placed and whether he is entitled to the benefit of having his case scrutinised by the Advisory Board. Finally, the companymunication of the grounds on which the order has been made will tell him generally the reasons for his detention, and will, there- fore, be helpful to the detained person in making his repre- sentation which is also provided for in the tatter part of clause 5 . The fact that there is companyrelation between the two parts of clause 5 does number, however, carry us any further. There is numberwarrant for assuming that the grounds to be companymunicated to the detenu are to be a formal indict- ment or a formal pleading setting forth a charge or a case with meticulous particularity number is there any warrant for the assumption that the representation has to be in the nature of a defence or written statement specifically deal- ing with the charge or the case. Indeed, the idea of a trial is foreign to the law of preventive detention. The very fact that the provisions of clauses 1 and 2 of article do number apply to preventive detention clearly excludes the idea of a trial before a tribunal. As I have said, the grounds will generally indicate the companyclusions drawn by the appropriate authority with respect to the suspected activities of any particular person and those grounds, when companymunicated, will enable the detenu to make a representa- tion, for he can easily refer to and set forth his real activities and represent that all his activities are inno- cent and cannot possibly give rise to the suspicion indicat- ed in the grounds. To say that clause 5 itself indicates that the grounds must be such as will enable the detenu to make a representation is to read into clause 5 something which is number there. It is a re-statement of the first argu- ment in a new form and is fallacious. In the first place, clause 5 does number in terms say that the authorities shall companymunicate such grounds as will enable the detenu to make a representation. In the second place, the decision in Gopa- lans case 1 militates against this argument, for if the sufficiency of the grounds is number justiciable at the initial stage when the order is made, as held in that case, it is wholly illogical to say that the intention of the Constitu- tion is to make the sufficiency of the same grounds justi- ciable as soon as they are companymunicated to the detenu. As already stated, an order made upon satisfaction founded on vague grounds is quite valid, if the vagueness is number proof of bad faith. Under clause 5 the authority is to companymuni- cate the grounds on which the order has been made. This will let the detenu know what operated on the mind of the authority when it made the order. If the grounds were vague it is the vague grounds that must be companymunicated, for it was upon those vague grounds that the order had been made. That is the express provision of the first part of clause 5 . This being the express requirement, the implication that the grounds companymunicated must be sufficient to enable the detenu to make a representation cannot be read into the clause, for that will militate against the express require- ment. If the order had been made on vague grounds but 1 1950 S.C. R. 88. the authority is to companymunicate precise and well-formu- lated grounds which will be sufficient for the detenu to make a representation, then the companymunication will number be of grounds on which the order was made but of something more than what is expressly required. The express provision must exclude such an inconsistent implied provision. Again, clause 6 of article 22 gives the authority the right to claim privilege against disclosure of facts in public inter- est. Non-disclosure of facts will necessarily make the grounds, as companymunicated, extremely vague and devoid of particulars. If the companystruction of clause 5 which is companytended for by the detenus companynsel were companyrect, then the vagueness of the grounds resulting from the number-disclosure of facts under clause will entitle the detenu to be released, for that vagueness also will render the making of a representation impossible or difficult. That will mean that the claim of privilege given to the authority by clause 6 of article 22 is wholly meaningless and ineffective, and will defeat its very purpose, for the privilege cannot be claimed except at the peril of releasing the detenu. Obvi- ously that cannot be the intention. It must, therefore, be held that the vagueness of grounds resulting from number-dis- closure of facts under clause 6 will number invalidate the order of detention, which was initially valid, on the ground that numberrepresentation can be made on the basis of such vague grounds. In that case by claiming privilege under clause 6 the authority can frustrate the claim of justi- ciability of the sufficiency of the grounds. Further, why should the vagueness of grounds otherwise brought about stand on a different footing ? Clause 5 cannot mean one thing when the privilege is claimed and mean quite the opposite thing when numbersuch privilege is claimed under clause 6 . The initial order is number justiciable. The claim of privilege is number justiciable. Why should it be assumed that the sufficiency of grounds for the purpose of making a representation was intended to be justiciable ? I see numberlogical reason for making an assumption which will introduce an objec- tive test in a matter which is prima facie intended to be purely subjective. The argument is then re-stated in the following fur- ther modified form. Clause 5 of article 22 imposes two obligations on the authority making an order of detention, namely, i that the authority shall, as soon as may be, companymunicate the grounds on which the order has been made, and ii that the authority shall afford the earliest oppor- tunity to the detenu to make a representation against the order. If the order was made as a result of satisfaction derived-in good faith but upon grounds which may be vague, the order will be perfectly good and cannot be challenged in any companyrt. Communication of such grounds, even if they are vague, will satisfy the first obligation imposed upon the authority. Under the latter part of clause 5 the authori- ty is also under the obligation to afford the earliest opportunity to the detenu to make a representation. If the grounds on which the order has been made were vague, then the second part of clause 5 , independently and without reference to the first part of clause 5 , impliedly imposes on the authority an obligation to rectify the defect of vagueness by supplying particulars so as to enable the detenu to make a representation. Supplying of particulars, the argument companycludes, is implicit in the second part of clause 5 , for without such particulars the detenu is number afforded the opportunity to make a representation. I am unable to accept this line of argument. Under the first part of clause 5 the grounds on which the order has been made have to be supplied as soon as may be. The measure of time indicated by the words as soon as may be must obviously run from the date of detention. Likewise, the latter part of clause 5 requires affording the detenu the earliest opportunity to make a representation. From what terminus a quo is the period indicated by the phrase earli- est opportunity to begin to run ? If that is also to run from the date of the detention, then the two periods under the two parts of clause 5 , must necessarily companyncide and, therefore, the question of supplying further particulars after the grounds are supplied cannot arise. On the other hand, the natural meaning of the words of the latter part of clause 5 , to my mind, is that the period companynoted by the phrase the earliest opportunity begins to run from the time the detenu expresses his desire or intention to make a representation. The making of a representation is the right of the detenu. To make or number to make a representation is his choice. Therefore, it is only when he decides to make a representation and expresses his desire or intention to make a representation that the earliest opportunity is to be afforded to him to make the desired or intended representation. Now, if the time is to run after the expression of desire or intention on the part of the detenu to make a representation, then the earliest opportunity to be afforded to the detenu can only mean affording him all physical facilities to carry out his desire or intention, for the detenu has decided to make his representation without any further particulars. According to the language used in the latter part of clause 5 , there is numberexpress provision for supplying particulars. Suppose the grounds on which the order was made and which were companymunicated to the detenu under the first part were quite precise and sufficient to enable the detenu to make a repre- sentation, then affording him the earliest opportunity to make the representation can only mean giving him all physi- cal facilities to do so, e.g., by supplying him with paper, pen and ink and when the representation has been drawn up by him, by forwarding the same with due despatch. In such a case there is numberquestion of supplying further and better particulars. Suppose, again, that the grounds on which the order has been made and which have been companymunicated to the detenu are regarded by the authority to be quite precise and sufficient for making a representation, is the authority to anticipate that the detenu may find these grounds insuffi- cient or that being moved in that behalf the Court may companysider them insufficient and then, as soon as the detenu expresses his desire or inten- tion to make a representation. is the authority to keep quiet and take the risk of the companyrt releasing the detenu for the vagueness of the grounds or is he to tell the detenu just wait a little I think the grounds which I have companymunicated to you are quite precise and sufficient lest you or the companyrt find the grounds insufficient for making a representation, I shall supply you with further and better particulars so as to enable you to make the representation ? The position thus stated is unreal on the face of it. In my opinion, on a plain reading of clause 5 there is numberjustification for assuming that a second companymunication of particulars is companytemplated either under the first part or under the second part of clause 5 . This does number, however, mean that the authority may number supply particulars either suo motu or on the application of the detenu. All that I say is that clause 5 imposes numberconstitutional obligation on the authority to supply particulars so as to remove the vagueness of the grounds or to enable the detenu to make a representation, and number-supply of further particulars does number companystitute an infraction of any fundamental right. It is said that clause 5 of article 22 companystrued in the way suggested above, would render that clause nugatory for it will then really guarantee numberfundamental right at all. I respectfully differ from this view for the criticism does number appear to me to be well founded. Communication of the grounds, even if vague, will numbere the less be helpful to the detenu in the several ways I have already mentioned and, therefore, the right to have the grounds on which the order has been made companymunicated to him is a valuable right which has been recognised as a fundamental right. Likewise, the right to make a representation is a valuable right which is guaranteed by the Constitution. These rights remain unaffected. If the the provisions of clause 5 of article 22 of our Constitution on a companyrect interpretation thereof are found to be inadequate for the protection of the liberty of the detenus it is their misfortune. The Constitution which the people have given unto themselves is the supreme law and must be upheld and obeyed whether or number one likes its provisions, inhibitions and necessary implications. The companyrt can only draw the, attention of the Parliament to the lacuna or defect, if any, in the Constitution and in the Act so that the lacuna may be supplied or the defect remedied in the companystitutional way. Our attention has been drawn to a number of cases where under various provincial laws and before the Constitution the different High Courts have directed the release of the detenu on the basis of the vagueness of the grounds. Those decisions are, however, distinguishable because they were based on legislation which required the companymunication number only of grounds but also of particulars. The omission from our Constitution of the provision for companymunicating the particulars in addition to the grounds which were to be found in those laws is significant, for it may be deliber- ate. Apart from this, however, those decisions do number appear to me to have any bearing on the companyrect interpreta- tion of our Constitution or of the Preventive Detention Act. In Iswar Das v. The State 1 the question was number raised or argued as it was made clear in the judgment itself.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Petition No. 135 of 1950. Application under Art. 32 of the Constitution for a writ in the nature of a writ of certiorari and prohibition. Dr. Tek Chand Hardayal Hardy and Jindra Lal, with him for the petitioner. C. Setalvad, Attorney. General for India, S. M. Sikri, with him for the respondent. 1951. january 12. The Judgment of the Court was deliv- ered by DAS J -- This is an application under article 32 of the Constitution for appropriate orders for the protection of what the petitioner claims to be his fundamental rights guaranteed by articles 14 and 31. This is said to be a test case, for, on its decision, we are told, depend the rights of numerous other persons whose interests are similar to those of the petitioner. There is numberserious companytroversy as to the facts material for the purposes of this application. They are shortly as follows On May 5, 1948, the then Rulers of eight Punjab States including. Patiala and Nabha with the companycurrence and guarantee of the Government of India entered into a companyenant agreeing to unite and integrate their territories in one State with a companymon executive, legislature and judiciary by the name of Patiala and East Punjab States Union, hereinaf- ter companypendiously referred to as the Pepsu. By article III 6 of the companyenant the then Ruler of Patiala became the first President or Raj Pramukh of the Council of Rulers and he is to hold the office during his lifetime. Article VI of the companyenant is as follows -- The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event number later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh, and thereupon, a all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Govern- ment of the Covenanting State shall vest in the Union and shall thereafter be exercisable only as pro- vided by this Covenant or by the Constitution to be framed thereunder b all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it c all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union, and d the military forces, if any, of the Covenanting State shall become the military forces of the Union. Article X provides for the formation of a Constituent Assembly to frame a companystitution of a unitary type for the Union within the framework of the Covenant and the Constitu- tion of India. This Constituent Assembly was also to func- tion as the interim Legislalature of the Union until an elected legislature came into being. The proviso to clause 2 of that Article runs as follows - Provided that until a Constitution framed by the Con- stituent Assembly companyes into operation after receiving the assent of the Raj Pramukh, the Raj Pramukh shall have power to make and promulgate Ordinances for the peace and good government of the Union or any part thereof, and any Ordi- nance so made shall, for the space of number more than six months from its promulgation have the like force of law as an Act passed by the Constituent Assemblybut any such Ordinance may be companytrolled or superseded by any such Act. This Union was inaugurated on July 15, 1948, and the Raj Pramukh thereafter took over the administration of the different Covenanting States. The Administration of Nabha State was taken over by the Raj Pramukh on August 20, 1948. On the same day the Raj Pramukh, in exercise of the powers vested in him, promulgated an Ordinance No. 1 of 2005 called the Patiala and East Punjab States Union Administra- tion Ordinance, 2005. The following provisions of this Ordi- nance are relevant for our purpose 1. 2 It shall extend to the territories included in the Covenanting States on and from the date on which the administration of any of the said State or States has been or is made over to the Raj Pramukh. 2. As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all laws, Ordinances, Acts, Rules, Regulations, Notifica- tions, Hidayats and Firrnans-i-Shahi having force of law in Patiala State on the date of companymencement of this Ordinance shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such companyenanting State immediately before that date shall be repealed Provided that proceedings of any nature whatsoever pending on such date in the Courts or offices of any such Covenanting State shall, numberwithstanding anything companytained in this Ordinance or any other Ordinance, be disposed of in accordance with the laws governing such proceedings in force for the time being m any such Covenanting State. Section 6 provides for the adaptation of the laws etc. enforced under section 3 and, amongst other things, any reference in these laws etc. to the Patiala State and the like was to be companystrued as a reference to the State of the Union. A numberification No.35 dated 27-5-05/11-9-1948 was issued over the signature of the Revenue Secretary numberifying that the Patiala Income-tax Act of 2001 and the Rules there- under had companye into force in the various Covenanting States from August 20, 1948, thereby repealing the law or laws in force in that behalf in those States before that date, except as to pending proceedings. It may be mentioned here that prior to that date there was numberlaw in the Nabha State imposing income-tax on the subjects of that State. On November 14, 1948, the Commissioner of Income-tax issued a Notification No. 4, dated 29-7-2005 intimating that persons belonging to the Cove- nanting States of Nabha and Nalagarh would be assessed to income-tax under the Patiala Income Tax Act, 2001. It was mentioned that persons of those States whose income reached the taxable limit should henceforward keep regular and proper accounts for purposes of audit by the Income Tax Department on February 2, 1949, Ordinance 1 of 2005 was repealed and replaced by Ordinance No. XVI of 2005 promul- gated by the Raj Pramukh and called the Patiala and East Punjab States Union General Provisions Administration Ordinance, 2006. Section 3 1 runs as follows 3. 1 As from the appointed day, all laws and rules, regulations, bye-laws and numberifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply mutatis mutandis to the territories of the Union and all laws in force in the other Covenanting States immediately before that day shall cease to have effect Provided that all suits, appeals, revisions applica- tions, reviews, executions and other proceedings, or any of them, whether Civil or Criminal or Revenue, pending in the Courts and before authorities of any Covenanting States shall, numberwithstanding anything companytained in this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immedi- ately before the appointed day. By section 2 a the appointed day was defined as meaning the 5th day of Bhadon, 2005, companyresponding to August 20, 1948. There was a section providing for adaptation similar to section 6 of the Ordinance 1 of 2005. There was another Ordinance to which reference has to be made, namely, Ordinance No. 1 of 2006 called the Finance Ordinance promul- gated on April 13, 1949, which came into force on that very date. Section 5 of that Ordinance introduced several amend- ments to the Patiala Income Tax Act, 2001. It recast sections 3 and 34 of that Act and introduced a new section as section 23B. Section 6 of that Ordinance runs thus For the assessment year beginning on the 1st day of Baisakh, 2006, that is to say, in respect of the accounting the income, profits and gains of the previous year ending on the last day of Chet, 2005,- a income-tax shall be charged at the rates specified in Part I of the Second Schedule to this Ordinance, and b rates of super tax shall, for the purposes of sec- tion 55 of the Patiala Income Tax Act, 2001, be specified in Part II of the Second Schedule to this Ordinance. It is in this setting that the facts leading to the present petition have to be companysidered. The petitioner is a resident of Ateli in the district of Mohindargarh number in Pepsu but which formerly formed part of the Nabha State. The petitioner has been carrying on his business at Ateli for a number of years under the name and style of Raghunath Rai Ram Parshad. He never paid any income-tax as numbersuch tax was imposed by any law in the Nabha State. On October 20, 1949, the petitioner was served with a numberice under sections 22 2 and 88 of the Patiala Income Tax Act, 2001, requiring him to submit a return for the Income Tax year 2006 13-4-1949 to 12-4- 1950 disclosing his income during the previous year 13-4-1948 to 12-4-1949 . The petitioner, on December 4, 1949, filed his return for the year 2006 and on February 14, 1950, he was assessed to income-tax. On May 23, 1950, the petitioner received a numberice under section 34 calling upon him to file his return for the year ending the last day of Chet 2005, i.e., for the year 13-4-1948 to 12-4-1949. In this return he had to specify his income of the previous year, namely, 2004 i.e., 13-4-1947 to 12-4-1948 . It ap- pears that the petitioner along with other assessees of Ateli and Kanina submitted a petition before the Income Tax Officer on July 9, 1950, asking him number to proceed with the assessment for the year 2005 but on July 13, 1950, the Income Tax Officer assessed him to the best of his judgment under section 34 4 read with section 22 4 of the Income Tax Act. The petitioner along with other asses- sees similarly situated moved the Income Tax Commissioner and the Central Board of Revenue, New Delhi, but without any success. No formal appeal under the Patiala Income Tax Act appears to have been filed by the petitioner against assess- ments for either of the two years 2005 and 2006. On August 10, 1950, the petitioner filed his present petition before this Court under article 32 of the Constitution praying that a writ in the nature of a writ of certiorari be issued for quashing the assessments of the petitioners income accrued in the years 2004 and 2005 and other ancillary reliefs. During the pendency of this petition the income-tax authori- ties have issued a numberice under section 46 intimating that penalty will be imposed if the tax was number paid up. The companytention of the petitioner in the first place is that he has been denied the fundamental right of equality before the law and the equal protection of the laws guaran- teed to him by article 14 of the Constitution. His griev- ances are formulated in paragraphs 10 and 11 of his peti- tion. It is said that while the people of Kapurthala which is included in Pepsu have been asked to pay income-tax for the period prior to August 20, 1948, at the old rate fixed by the Kapurthala Income Tax Act which was lower than the rate fixed by the Patiala Income Tax Act, 2001, the people of Nabha who had number to pay any income-tax prior to August 20, 1948, at all have been made liable to pay at the higher Patiala rate and that such discrimination offends against the provisions of article 14. This charge is refuted by paragraph 10 of the affidavit of Sardar Gurbax Singh, the Additional Director of Inspection income Tax , New Delhi, who was formerly the Commissioner of Income Tax, Punjab and Pepsu, which has been filed in opposition to the present petition. It is there stated that for the assessment year 2005, in Kapurthala the assessees whose cases were pending on August 20, 1948, were assessed under the Kapurthala Income Tax Act at rates fixed thereunder but that for the assess- ment year 2006 the provisions of the Patiala Income Tax Act and the rates prescribed thereunder were uniformly applied in all areas of the Pepsu, including Kapurthala This alle- gation which is number denied in the affidavit filed by the petitioner in reply must be taken as companyrect. The assess- ment of Kapurthala assessees for the year 2005 at the old Kapurthala rate was obviously made under the proviso to section 3 of Ordinance No. 1 of 2005, which was reproduced in the proviso to section 3 1 of the Ordinance No. XVI of 2006 and both of which required all pending proceedings to be companypleted according to the law applicable to those pro- ceedings when they were initiated. No case of assessment was pending as against any Nabha assessee on August 20, 1948, for there was numberIncome Tax Act in Nabha prior to that date and, therefore, there companyld be numberoccasion for companypleting any pending proceedings against any of such assessees. In the premises, there can be numbergrievance by them on the score of discrimination. The discrimination, if any, was number brought about by the two Ordinances, but by the circumstance that there was numberIncome Tax Act in Nabha and companysequently there was numbercase of assessment pending against any Nabha assessees. In any case the provision that pending proceed- ings should be companycluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings companymenced is a reasonable law rounded upon a reasonable classification of the assessees which is permis- sible under the equal protection clause and to which numberexception can be taken. In our opinion the grievance of the alleged infringement of fundamental right under Article 14 is number well-founded at all. Dr. Tek Chand appearing in support of the petition next companytends that the administration of Nabha State having been taken over by the Raj Pramukh only on August 20, 1948, and the Patiala law including the Patiala Income Tax Act, 2001, having been brought into operation on and from August 20, 1948, the assessment of the tax on the petitioners income which accrued prior to August 20, 1948, was wholly illegal and number authorised by the said Ordinances and the State by insisting on companylecting the tax so illegally assessed was threatening to invade the petitioners fundamental right to property guaranteed by article 31 1 of the Constitution. Article 31 1 runs as follows No person shall be deprived of his property save by authority of law. It will be numbericed that clause 1 reproduces subsection 1 of section 299 of the Government of India Act, 1935, without the words in British India. Reference has next to be made to article 265 which is in Part XII, Chapter I, dealing with Finance. That article provides that numbertax shall be levied or companylected except by authority of law. There was numbersimilar provision in the companyresponding chapter of the Government of India Act, 1935. If companylection of taxes amounts to deprivation of property within the meaning of article 31 1 , then there was numberpoint in making a sepa- rate provision again as has been made in article 265. It, therefore, follows that clause 1 of article 31 must be regarded as companycerned with deprivation of property otherwise than by the imposition or companylection of tax, for otherwise article 265 becomes wholly redundant. In the United States of America the power of taxation is regarded as distinct from the exercise of police power or eminent domain. Our Constitution evidently has also treated taxation as distinct from companypulsory acquisition of property and has made inde- pendent provision giving protection against taxation save by authority of law. When Dr. Tek Chand was asked if that was number the companyrect position, he did ,not advance any companyent or companyvincing answer to refute the companyclusion put to him. In our opinion, the protection against imposition and companylec- tion of taxes save by authority of law directly companyes from article 265, and is number secured by clause 1 of article 31. Article 265, number being in Chapter IIi of the Constitution, its protection is number a fundamental right which can be enforced by an application to this companyrt under article 32. It is number our purpose to say that the right secured by article 265 may number be enforced. It may certainly be enforced by adopting proper proceedings. All that we wish to state is that this application in so far as it purports to be rounded on arti- cle 32 read with article 31 1 to this Court is misconceived and must fail.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELATE JURISDICTION Case No. 24 of 1050 . Appeal under Art. 132 1 of the Constitution of India, against the judgment and order of the High Court of Judicature at Calcutta in Criminal Miscellaneous Case No. 361 of 1050. C. Gupta and Sudhansu Sekhar Mukherjee Arun Kumar Dutta and S.N. Mukherjee, with them for the appellants. C. Setalvad, Attorney-General, B. Sen, with him for the respondent. 1051. Jan. 25. The Judgment of Kania C.J., Fazl Ali, Mukherjea and Chandrasekhara Aiyar JJ., was delivered by Kania C.J. Patanjali Sastri and Das JJ. delivered separate judgments. KANIA C.J.--This is an appeal under article 132 of the Constitution of India from the judgment of the High Court at Calcutta, which rejected the habeas companypus petitions of the appellants. The detention orders under the Preventive Detention Act, 1950, in all cases were served on the appellants on the 26th February, 1950, and the grounds for the detention were served on the 14th March, 1950. By way of specimen we quote one of them You are beings detained in pursuance of a detention order made under sub-clause ii of clause a of subsection 1 of section a of the Preventive Detention Act, 1950, Act IV of 1950 , on the following grounds- That you have been assisting the operations of the Communist Party of India, which along with its volunteer organisations has been declared unlawful by Government under section 16 of the Indian Criminal Law Amendment Act Act XIV of 1908 , and which has for its object companymission of rioting with deadly weapons, robbery, dacoity, arson and murder and possession and use of arms and ammunitions and explosives and thus acting in a manner prejudicial to the maintenance of public order and that it is necessary to prevent you from acting in such manner. That as a member of the C.P.I. on its Kishan front, you have fomented trouble amongst the peasants of Howrah District and incited them to acts of lawlessness and vio- lence and have thereby acted in a manner prejudicial to the maintenance of public order That as a worker of the C.P.I. you have tried to foment trouble amongst the tramways men and other workers at Cal- cutta and in speeches which you delivered at the University Hall and other places you actually incited them to resort to acts of violence and lawlessness and have thereby acted in a manner prejudicial to the maintenance of public order. On the 16th of July, 1950, the Government of West Bengal served on the appellants in companytinuation of the grounds already furnished on the 14th of March, 1950, supplementary grounds for their detention a specimen of which is in the following terms-- In companytinuation of the grounds already furnished under order No. 6163 H.S. dated 14th March, 1950, you are being informed of the supplementary grounds for your detention which are as follows - You as the Secretary of the Bengal Chatkar Mazdoor Union, as a member of the Executive Committee of the Federa- tion of Mercantile Employees Union, as the honorary report- er of the Khabar newspaper C. P.I. organ carried on the disruptive programme of the C.P.I. On the 29th July, 1948, you along with others led a procession at Howrah preaching discontent against Government and have been thus acting in a manner prejudicial to the maintenance of public order. As in the case of the first grounds, these supplemen- tary grounds were also served on each appellant separately. The appellants applied for a Rule of habeas companypus separate- ly under section 491 of the Criminal Procedure Code and on the 21st July, 1950, the High Court issued a Rule in each case on the Chief Secretary to the Government of West Ben- gal. A second set of grounds were companymunicated to the appellants on the 22nd or 23rd of July, 1950. A specimen of one is in the following terms-- In companytinuation of the grounds already furnished under order No. 12820 dated 14th July, 1950, you are being in- formed of the supplementary grounds for your detention which are as follows-- That in a meeting held at the University Institute on the 19th March, 1947, under the auspices of the Calcutta Tramway Workers Union, you held out the threat that any attempt to take out tram cars on the 20th March, 1947, would be inviting disaster and you further said that if the au- thorities tried to resume the tram service you and your friends would number hesitate to remove the tram lines and cut the wires. That on the 13th June, 1948, you presided over a meeting under the auspices of the Students Federation P.I. companytrolled and delivered speech advocating withdrawal of ban on the Communist Party of India and its organ Swadhinta. The High Court after companysidering the whole matter re- jected the petitions of the appellants and the appellants have thereupon companye in appeal before us. In the High Court, it was first companytended on behalf of the appellants that the companymunication of the grounds dated the 14th March was number a companypliance with article 22 5 of the Constitution of India, as those grounds were number companymu- nicated as soon as may be. The High Court rejected this companytention. Under the circumstances of the case, we agree with the High Court and are unable to hold that in furnish- ing the grounds dated the 14th March, 1950, the authorities had failed to act in accordance with the procedure laid down in article 22 5 of the Constitution. Under the Bengal Criminal Law Amendment Act, 1930, a very large number of persons were detained. The validity of that Act was being challenged in the High Court and the judgment was expected to be delivered towards the end of February, 1950. The Preventive Detention Act, 1950, was passed by the Parliament of India in the last week of February, 1950, and these orders on all those detenus were served on the 26th of February, 1950. Having regard to the fact that the Provin- cial Government had thus suddenly to deal with a large number of cases on one day, we are unable to accept this companytention of the appellants. On behalf of the appellants it was next urged that there has been a number-compliance with the procedure laid down in article 22 s of the Constitution and section 7 of the Preventive Detention Act in the manner of supplying grounds to the appellants resulting in number providing to the appel- lants the earliest opportunity to make a representation, which they had a right to make. In the judgment delivered today in Case No. 22 of 1950 1 we have discussed in detail the nature of the two rights companyferred under article 22 5 . We have to apply those principles to the facts of this appeal for its decision. 11 Supra, P. 167. When the authorities sent their second companymunication dated 16th July, 1950, to the appellants they described it as in companytinuation of the grounds already furnished and as the supplementary grounds for your detention. Relying on the wording of this companymunication it was argued that these were additional grounds which were furnished to the detenu and therefore the procedure prescribed under article 22 5 had number been followed. It was argued that the obligation to companymunicate grounds as soon as may be was absolute. The grounds for detention must be before the Provincial Government before they companyld be satisfied about the necessity for making the detention order. If the grounds before the detaining authorities on the 26th of February, 1950, were only those which they companymunicated on the 14th of March, they cannot support the detention on additional grounds which were number before them on that day and which they set out in the second companymunication four months later. It was also companytended that the fact of this companymunication showed that the authorities were number satisfied on the origi- nal grounds and had therefore put forth these supplementary grounds as an afterthought. In our opinion these arguments cannot be accepted. A description of the companytents of the second companymunication as supplementary grounds does number necessarily make them additional or new grounds. One has to look at the companytents to find out whether they are new grounds as explained in our judgment in Case No. 92 of 1950 1 . Examining the companytents of the later companymunication in that way we find that they only furnish details of the second heads of the grounds furnished to the appropriate appellant on 14th March, 1950, in respect of his activities. We are unable to treat them as new grounds and we agree with the High Court in its companyclusion that these are number fresh or new grounds. We do number think it proper to companysider the true effect of the companymunication only by reading its opening words. The whole of it must be read and companysidered togeth- er. The companytention that the authorities were number satisfied on the original Supra, p. 167. grounds and therefore put forth this. companymunication as the supplemental grounds is again unsound. The fact that these details were companymunicated later does number necessarily show that they were number within the knowledge of the authorities when they sent the companymunication dated the 14th of March. The companytention that this companymunication of the 16th of July, 1950, was number as soon as may be, has to be rejected having regard to the principles set out in our judgment in Case No. 22 of 1950. The facts in each case have to to be taken into companysideration and if the detained person companytends that this part of the procedure prescribed in article 22 5 was number companyplied with, the authorities will have to place materials before the companyrt to refute that companytention. In the present case the High Court has companysidered that there has been numberinfringement of this procedural law and we see numberreason to companye to a different companyclusion. It was next argued that the grounds being vague, they companyld number be companysidered as grounds at all and therefore they companyld number be sufficient to satisfy the authorities. On this point we have numberhing to add to what we have stated in our judgment in Case No. 22 of 1950. We are unable to accept the companytention that vague grounds stand on the same footing as irrelevant grounds. An irrelevant ground has numberconnection at all with the satisfaction of the Provincial Government which makes the order of detention. For the reasons stated in that judgment we are also unable to accept the companytention that if the grounds are vague and numberrepre- sentation is possible there can be numbersatisfaction of the authority as required under section 3 of the Preventive Detention Act. This argument mixes up two objects. The sufficiency of the grounds, which gives rise to the satis- faction of the Provincial Government, is number a matter for examination by the companyrt. The sufficiency of the grounds to give the detained person the earliest opportunity to make a representation can be examined by the companyrt, but only from that point of view. We are therefore unable to accept the companytention that the quality and characteristic of the grounds should be the same for both tests. On the ques- tion of satisfaction, as has been often stated, one person may be, but another may number be, satisfied on the same grounds. That aspect however is number for the determination of the companyrt, having regard to the words used in the Act. The second part of the enquiry is clearly open to the companyrt under article 22 5 . We are therefore unable to accept the argument that if the grounds are number sufficient or adequate for making the representation the grounds cannot be suffi- cient for the subjective satisfaction of the authority. As regards the grounds furnished by the Government in each case in its first companymunication, it is sufficient to numberice that while the first ground is companymon to all the appellants, the second ground is different in most cases. The High Court has companysidered the case of each appellant in respect of the companymunication dated the 14th of March, 1950, sent to him. In their opinion those grounds are number vague. They have held that the procedural requirement to give the detained person the earliest opportunity to make a represen- tation has number been infringed by the companymunication of the grounds of the 14th of March and by the subsequent companymuni- cation made to the appellants in July. This point was number seriously pressed before us. After hearing companynsel for the appellant we see numberreason to differ from the companyclusion of the High Court on this point. The result is that the appeal fails and is dismissed. PATANJALI SASTRI J.--This appeal was heard along with Case No. 22 of 1950 The State of Bombay v. Atma Ram Sridhar Vaidya 1 , as the main question involved was the same. In the view I have expressed on that question in my judgment delivered today in that case, this appeal cannot succeed and I agree that it should be dismissed. DAS J.--The same important questions have been raised in this appeal by 100 detenus against an order of a Bench of the Calcutta High Court as were raised Supra, p. 167, by the detenu in the appeal of the State of Bombay in which judgment has just been delivered. One additional point raised in this appeal was that the fact that a large number of fresh orders of detention were made overnight indicates bad faith on the part of the authorities, for the authori- ties companyld number have applied their minds to each individual case. I am unable to accept this companytention as companyrect. The authorities had already applied their minds to the suspected activities of each of the detenus and were satisfied that with a view to prevent them from doing some prejudicial act of a particular kind it was necessary to make an order of detention against them under the local Acts. There being doubt as to the validity of the local Acts and the Preven- tive Detention Act having been passed in the meantime the question was to make a fresh order under the new Act. The minds of the authorities having already been made up as to the expediency of making an order of detention against them, an elaborate application of mind, such as is number suggested, does number appear to me to be necessary at all.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Appeal from a judgment and decree of the Patna High Court dated 25th March, 1949, in A.S. 2280 of 1948 reversing an appellate decree of the Subordinate Judge in Suit No. 62 of 1948. Baldev Sahay T. K. Prasad, with him for the appel- lant. C. Chatterjee H.J. Umrigar, withhim for the respond- ent. 1951. February 2. The judgment of the Court was deliv- ered by FAZL ALL J.--This is an appeal from a judgment and decree of the High Court of Judicature at Patna reversing the appellate decree of a Subordinate Judge in a suit insti- tuted by the respondents. The facts of the case are briefly these. The respondents have been in occupation as a monthly tenant of several blocks of premises belonging to the appellants at a monthly rental of Rs. 112. The rent for the months of March, April and May, 1942, having fallen into arrears, they remitted it along with the rent for June, on 28th June, 1947, by means of two cheques. As the appellants did number accept the cheques, on 4th August, 1947, the re- spondents remitted the amount subsequently by postal money order. On 12th August, 1947, the appellants, maintaining that there was number-payment of rent -and hence the respond- ents were liable to be evicted, under section 1-1 1 a of the Bihar Buildings Lease, Rent and Eviction Control Act, 1947 Bihar Act III of 1947 , applied to the House Control- ler for the eviction of the respondents from the premises. Section 11 1 a of the Act runs as follows -- Notwithstanding anything companytained in any agreement or law to the companytrary and subject to the provisions of section 12, where a tenant is in possession of any building, he shall number be liable to be evicted therefrom, whether in execution of a decree or otherwise, except-- a in the case of a month to month tenant, for number- payment of rent or breach of the companyditions of the tenancy, or for subletting the building or any portion thereof with- out the companysent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment On 30th August, 1947, the respondents, whose money order had in the meantime been returned by the appellants, deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit, the House Controller passed an order on the both November, directing the eviction of the respondents by 10th May, 1948, and holding that they had made themselves liable to eviction by reason of number-payment of rent. The order of the House Controller was upheld by the Commissioner on appeal on the 27th April, 1948, and thereupon the respondents filed the present suit in the Patna Munsifs Court for a declaration that the order of the ContrOller dated the 10th November, 1947, was illegal, ultra vires and without jurisdiction. The suit was dismissed by the Munsif and his decree was upheld on appeal, but the High Court decreed the suit holding that the order of the Rent Controller was without jurisdiction. The appellants were thereafter granted leave to appeal by the High Court, and they have accordingly preferred this appeal. The High Court has delivered a somewhat elaborate judg- ment in the case, but it seems to us that the point aris- ing in this appeal is a simple one. The main ground on which the respondents have attacked the order of eviction passed by the House Controller is that in fact there was numbernon-payment of rent, and, since numbereviction can be ordered under the Bihar Act unless number-payment is established, the House Controller had numberjurisdiction to order eviction. On the other hand, one of the companytentions put forward on behalf of the appellants is that there was number-payment of rent within the meaning of that expression as used in the Act, since the rent was number paid as and when it fell due. It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but numberstep was taken by the respondents to pay the arrears until the 28th June, 1947. It appears that at the inception of the tenancy, the respondents had paid one months rent in advance, and it had been agreed between them and the appellants that the advance rent would be adjusted whenever there was default in payment of rent for full one month. It was however pointed out that the advance payment companyld be adjusted only for one months rent, but, in the present case, the rent for three months had become due, and, since in a monthly tenancy the rent is payable for month to month, the rent for each month becoming due in the subse- quent month, number-payment of that rent at the proper time was sufficient to attract the provisions of section 11 1 a of the Act. The appellants also raised a second companytention, namely, that having regard to the scheme of the Act, the House Controller was fully companypetent to decide whether the companydition precedent to eviction had been satisfied, anal once that decision had been arrived at, it companyld number be questioned in a civil companyrt. This companytention was accepted by the first two companyrts, and the first appellate companyrt dealing with it observed as follows -- But the Buildings Control Act has authorised the Con- troller to decide whether or number there is numberpayment of rent and it is only when he is satisfied that there has been numberpayment of rent that he assumes jurisdiction. If the question of jurisdiction depends upon the decision of some fact or point of law, and if the companyrt is called upon to decide such question, then such decision cannot be companylater- ally impeached vide 12 Patna 117 . In my opinion when the Controller assumed the jurisdiction on being satisfied that there was number-payment of rent and proceeded to pass an order of eviction. I think the Civil Court can have numberjurisdic- tion to challenge the validity of such order. The High Court did number however accept this view, and after referring to section 111 of the Transfer of- Property Act, proceeded to propound its own view in these- words-- Regard being had to the circumstances in which the Act under companysideration was enacted and its object, as stated in the preamble as being to prevent unreasonable eviction of tenants from buildings, it would seem that the expres- sion number-payment of rent in section 11 in the companytext in which it is used must be given an interpretation which would have the effect of enlarging the protection against determi- nation of a tenancy enjoyed by a tenant under the ordinary law. The Legislature, therefore, by enacting that a tenant shall number be liable to be evicted except for numberpayment of rent should be held to have intended to protect a tenant from being evicted from a building in his possession for being a defaulter in payment of rent, if he brings into Court all the rent due from him before the order of his eviction companyes to be passed If, as companytended for on behalf of the respondents, section 11 of the Act were to be companystrued as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to number-payment of rent and as empowering the Controller to determine as to whether irregular payment of rent amounts to number-payment of rent within the meaning of sub-section 1 of section 11, and subsection 3 of section 18 were to be companystrued as making the decision of the Controller on this question of law a final one, it will appear that number only this Act will have companyferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have companyferred very much larger power on the Controller than that possessed by the Civil Courts under the ordinary law in the matter of passing decrees for eviction of tenants. The principle of law and equity on which relief against forfei- ture for ,non-payment of rent is based, will have been companypletely abrogated, and the protection of a tenant in possession of a building instead of being enlarged will have been very much curtailed. A companystruction of these provisions, which is calculated to bring about these companyse- quences, cannot and is number in accordance with the circum- stances to which this Act was intended to apply and indeed cannot be accepted. The companytention of Mr. Lalnarain Sinha on behalf of the respondent that the circumstances disclosed in the petition raised the question for determination by the Controller whether a case of number-payment of rent in law was established, and his decision of that question, even if wrong in law, is number liable to be questioned in the Civil Court must be over-ruled. It seems to us that the view taken by the High Court is number companyrect. Section 11 begins with the words Notwithstand- ing anything companytained in any agreement or law to the company- trary, and hence any attempt to import the provisions relating to the law of transfer of property for the inter- pretation of the section would seem to be out of place. Section 11 is a self-contained section, and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or number, and under what companydi- tions he can be evicted. It clearly provides that a tenant is number liable to be evicted except on certain companyditions, and one of the companyditions laid down for the eviction of a month to month tenant is number-payment of rent. Sub-section 8 b of section 11 provides that the Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building and if he is number so satisfied he shall make an order rejecting the application. Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and companypel the production of documents in the same manner as is provided in the Code of Civil Procedure. Section 18 pro- vides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Commissioner of the Divi- sion, and it also prescribes the procedure for the hearing of the appeal. Sub-section 3 of this section states that the decision of the Commission- er and subject only to such decision, an order of the Con- troller shall be final, and shall number be liable to be ques- tioned in any Court of law whether in a suit or other pro- ceeding by way of appeal or revision. The Act thus sets up a companyplete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commis- sioner. The Act empowers the Controller alone to decide whether or number there is number-payment of rent, and his deci- sion on that question is essential before an order can be passed by him under section 11. Such being the provisions of the Act we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide. The law on this subject has been very lucidly stated by Lord Esher M.R. in The Queen v. Commissioners for Special Purposes of the Income Tax 1 , in these words -- When an inferior companyrt or tribunal or body, which has to exercise the power of deciding facts, is first estab- lished by Act of Parliament, the legislature has to companysider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but number otherwise. There it is number for them companyclu- sively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do 1 21 Q.B.D. 313, at .319. something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to companysider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be numbere. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legis- lature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends and if they were given jurisdiction so to decide without any appeal being given, there is numberappeal from such exercise of their jurisdiction. On the same lines are the following observations of Sir James Colville in The Colonial Bank of Australasia v. Wil- lan 1 , which is a case dealing with the principles on which a writ of certiorari may be issued -- Accordingly, the authoritiesestablish that an adju- dication by a Judge having jurisdiction over the subject- matter is, if numberdefect appears on the face of it, to be taken as companyclusive of the facts stated therein and that the Court of Queens Bench will number on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Appeal from a judgment and decree of the High Court of Judicature at Patna dated 14th February, 1946, in Appeal from Original Decree No. 117 of 1942 arising out of Title Suit No. 9 of 1939 Civil Appeal No. 40 of 1950. C. Misra for the appellant. C. Chatterjee P. B. Gangoli, with him for the re- spondent. 1951. February 5. The judgment of the Court was deliv- ered by MAHAJAN J.--This appeal arises out of Suit No. 9 of 1939 instituted in the Court of the Subordinate Judge of Palamau by the appellants against the respondents for a number of declarations in respect to the title to certain lands and for an injunction restraining the respondents from proceed- ing with a rent suit. The suit was decreed by the Subordi- nate Judge but on appeal this decision was reversed by the High Court of Judicature at Patna and the appellants suit was dismissed. The salient facts of the case are as follows Village Darha belonged to a family of Pathaks as their ancestral lakhraj. Over a hundred years ago the Pathaks granted the entire village in mokarrari to the ancestors of the family of Singhas defendants first and second parties at an annual jams of Rs. 24. The mokarrari interest eventually devolved on three branches of the Singha family, each branch getting in the following proportions Parameshwar Dayal and others, defendants first party, to the extent of six annas Bisheswar Dayal Singh, defendants second party, to the extent of eight annas and Madho Saran Singh, to the extent of two annas. Subsequently, the two anna share of Madho Saran Singh was purchased by Hiranand Jha, father of the plaintiffs, jointly with. Durganand Jha and Dharam Dayal. Dharam Dayal was a mere benamidar for Hiranand Jha. On the 5th June, 1916, Bisheshwar Dayal Singh purchased six anna share in the lakhraj interest from Deolal Pathak and others and on the 9th February, 1917, he purchased another two anna share from Mandil Pathak. By virtue of these purchases he came to own the lakhraj interest to the extent of eight anna share. He-already held the mokarrari interest to the same extent which had devolved on him by inheritance. Some time in the year 1917 or 1918 Hiranand Jha and Durganand Jha, who had acquired by purchase two anna mokar- rari interest of Madho Saran Singh, purchased in execution of a rent decree the raiyati interest in the whole village and came into possession of it. They thus became mokarraridars of two anna share and raiyats of sixteen annas of the village lands. In the year 1918, Title Suit No. 59 of 1918 was insti- tuted in the companyrt of the Subordinate Judge of Palamau for partition of the lands situate in several villages and belonging to the family of the defendants first and second parties. The Jhas were impleaded as defendants in the suit, being companysharers in part of the property in suit. This suit was decreed in the year 1921, and in the final partition an allotment of two annas share in Darha village was made in their favour. The remaining fourteen anna share excluding khatian 1, 3 and 6 was allotted to the defendants first party. These three khatians were allotted to Bisheshwar Dayal Singh and in exchange for the remaining portions of his interest in that village he was given some property in village Holeya. The result of the partition proceedings was that the defendants first party came to hold fourteen anna mokarrari interest in village Darha, Bisheshwar Dayal Singhs interest was limited to three khatians only, and the Jhas got a separate allotment for their two anna share in the mokarrari. It appears that some time about the year 1926 the lakhraj interest holders, i.e., the Pathaks and Bisheshwar Dayal Singh, were in default in the payment of the cess due to Government. On the 17th August, 1926, pro- ceedings were taken against them for recovery of the cess and their interest was sold in execution of a certificate on the 18th October, 1927, to one Bijainandan Sahay. The sale obviously was of the lakhraj interest. This was companyfirmed on the 19th December, 1927, and a sale certificate was issued on the both March, 1928. This was followed by deliv- ery of possession on 15th July, 1928. Possession was ob- tained by one Kamta Prasad who had acquired this interest from Bijainandan Sahay on the 20th April, 1928. On the 1st May, 1933, Kamta Prasad transferred his interest in the village to the plaintiffs who thus became proprietors of sixteen anna share in the village and mokarraridars as to two anna share and raiyats of the entire sixteen annas in the whole village. On the 21st September, 1934, the defendants first party as mokarraridars brought a suit against the plaintiffs for arrears of raiyati rent for the years 1338-39 F. to the extent of six annas share and for the years 134041 F. to the extent of fourteen anna share claiming that under the parti- tion decree they got a fourteen anna share in the mokarrari interest in the village. Plaintiffs companytested the suit alleging-that Bisheshwars mokarrari interest had merged in the lakhraj interest that was purchased by him from the Pathaks in the years 1916-17, and that by the sale under the Governments certificate his whole eight anna interest in the village including both the lakhraj and the mokarrari had passed on to the plaintiffs and that the defendants first party companyld only claim rent from them to the extent of the six anna share in the mokarrari. This plea was disallowed and the defendants first partys claim for rent was decreed in full. The decree was upheld on appeal and second appeal. The question of title was, however, left open. In the year 1938 another suit for rent was filed by the defendants first party as mokarraridars to recover fourteen anna share of the rent for the years subsequent to fasli 1341. As a result of this suit, the plaintiffs brought the present suit for declaration and injunction on the allegation that the eight anna mokarrari interest of Bisheshwar Dayal Singh had merged in his lakhraj interest, that by the certificate sale Bisheshwar Dayal Singh lost all his interest in the village both lakhraj and mokarrari by reason of merger, that the partition decree of the year 1921 was illegal and in any case, under that decree the defendants first party got only six anna mokarrari interest and were entitled to realize rents from the tenants only to that extent. An injunction was also claimed restraining the defendants from proceeding with the rent suit. In the plaint, it was alleged that there was a private partition between the mokarraridars by virtue of which the lands of village Darha were divided between the three sets of mokarraridars, each set being in separate possession of its own separate and defined shares. It was also pleaded that there was another parti- tion between the proprietors of the lakhrai interest, that is, between Bisheshwar Dayal Singh on the one hand and Deolal Pathak, Neman Pathak and Surajnath Pathak on the other, by virtue of which the lands that were in mokarrari patties of Parmeshwar Dayal Singh and others and Hiranand Jha and Durganand Jha fell in the patti of Deolal Pathak and others, while, the lands that were in the mokarrari patti of the defendants second party fell in his proprietary lakhraj patti and that as a result of these partitions the mokarrari interest of the defendants second party merged in his lakhraj interest and under a certificate sale the whole of his interest passed to the plaintiffs. The trial Judge held that both the partitions alleged by the plaintiffs in paragraphs 5 and 8 of their plaint were proved and that the mokarrari interest of Bisheshwar Dayal Singh merged in his lakhraj interest and that at the certif- icate sale the purchaser acquired his companyplete interest both lakhraj and mokarrari along with the eight anna lakhraj interest of the Pathaks and that the defendants first party were mokarraridars of six anna interest in the village and to that extent were entitled to a decree in their rent suit and companyld number claim a decree for rent to the extent of fourteen anna share. The High Court in appeal held that numbere of the partitions alleged by the plaintiffs were proved and that the mokarrari interest of eight annas companyld number merge in the lakhrai interest of sixteen annas held jointly by Bisheshwar Dayal Singh with the Pathaks. As a result of this decision the plaintiffs suit was dismissed. In this appeal it was companytended by the learned companynsel for the appellants that the High Court had erroneously held that the two partitions set up by the plaintiffs in para- graphs 5 and 8 had number been proved. It was argued that the evidence on the record, both documentary and oral, fully established the fact of the two partitions and that in view of these partitions it should have been held that Bisheshwar Dayal Singh became separate owner of eight anna lakhraj interest and in that interest his mokarrari interest of eight annas merged, and that under the certificate sale the whole of this inter- est passed on to the purchaser in execution and that being so, the defendants first party companyld only maintain a suit for recovery of rent from the raiyats to the extent of their six anna mokarrari interest. In our opinion, this appeal can be disposed of on a short point without taking into companysideration the respective companytentions of the parties raised before us or urged in the two companyrts below. The plaintiffs case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent. It, however, seems to us that there was numberscope for the application of the doctrine of merger to the facts disclosed by the plaintiffs in their plaint. If the lessor purchases the lessees interest, the lease numberdoubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is numberextinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to companyncide. It was the plaintiffs case that mauza Darha was orginally granted in mokarrari under a single companytract of lease and it was by inheritance that the lessees interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold. He then purchased a six anna interest in the entire reversion in the year 1916 and another two anna interest in it in the year 1917. By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein. There was thus numbercoalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, the mokarrari interest of Bisheshwar Dayal Singh did number merge in his lakhrai interest. Mere purchase by Bisheshwar Dayal Singh of portions of the lakhrai interest companyld number bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest. An inter se partition of the mokarrari interest amongst the mokarrari- dars as alleged by the plaintiffs companyld number affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law companystitute but a single tenant, and qua the landlord they companystitute one person, each companystituent part of which possesses certain companymon rights in the whole and is liable to discharge companymon obligations in its entirety. In the words of Lord Halsbury in White v. Tyndall 1 , the parties to whom a demise is made hold as tenants in companymon but what they companyenant to pay is one rent, number two rents and number each to pay half a rent but one rent. There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the companyenants running with the land. In law, therefore, an inter se partition of the mokarrari interest companyld number affect the integrity of the lease and it companyld number be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another company- tract of lease. Such partitions amongst several lessees inter se are usually made for companyvenience of enjoyment of the leasehold but they do number in any way affect the integri- ty of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy. In the present case there was number even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord. Similarly the allegation of partition inter se among the several owners of the lakhraj holding companyld number in any way affect the integri- ty of the lease in the absence of an allegation of a fresh companytract between the split up owners of the holding and the different owners in the mokarrari interest. The lakhraj holding in the village still remains a single holding and it was number alleged that it was split up in different holdings. All owners 1 13 App. Cas. 263 of the lakhraj interest are jointly responsible for payment of the cess to Government and it was because of their de- fault in payment of the cess that the whole lakhraj interest was sold in the certificate sale. In this situation numbere of the companyditions necessary for the application of the doctrine of merger can be said to have been made out by the allega- tions made in the plaint. On the plaintiffs own case the lease is still a live one in respect of the six anna inter- est of the defendants first party and in these circum- stances it is number possible to hold that it has become ex- tinct to the extent of eight anna interest of Bisheshwar Dayal Singh in the absence of any allegation that any fresh companytract, express or implied, was arrived at between the parties.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Appeal Civil Appeal No. 28 of 1950 from a judgment and decree of the High Court of Judicature at Bombay dated 19th March, 1945, in Appeals Nos. 68 and 190 of 1942. D. Banaji V. R. Desai, with him for the appellants. C. Setalvad, Attorney-General for India G. N. Joshi, with him for the respondent. 1951. February 5. The judgment of the Court was deliv- ered by MAHAJAN J.--This is an appeal from a judgment of the High Court of Judicature at. Bombay modifying the decree of the trial companyrt and decreeing partially the plaintiffs suit. The appellants are the legal representatives of the original plaintiff Haji Ali Mohamed Haji Cassum. The State of Bombay is the respondent. The facts giving rise to this Controversy, briefly stated, are as follows -- Village Dahisar originally formed part of the Malad Estate companyprising in all eight villages. The said estate was companyveyed by the East India Company to two Dady brothers for valuable companysideration by a deed of indenture dated the 25th January, 1819. By that companyveyance all the lands in the eight villages were companyveyed absolutely to the said purchas- ers and it was companyenanted by the Company that the purchas- ers, their heirs and assigns shall peaceably and quietly enjoy the said villages and receive and take the rents and profits thereof without any hindrance or interruption from the said Company. By a sale deed dated the 13th December, 1900, Haji Cassum, father of the plaintiff, purchased the village of Dahisar from its proprietors for a price of Rs. 1,30,000 and after his death the plaintiff became the pro- prietor thereof and as such received rents and assessment from the tenants and holders of the lands in the village according to the rights prevailing under the survey settle- ment which had taken place in the village about the year 1864-65. In the year 1879 the Bombay Land Revenue Code was enact- ed. Section 48 of the Code is in these terms -- 48. 1 The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, 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. Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provi- sions of this Act upon such land shall, numberwithstanding that the term for which such assessment may have been fixed has number expired, be liable to be altered and fixed at a differ- ent rate by such authority and subject to such rules as the Provincial Government may prescribe in this behalf After the Act came into force, the Government drafted rules under the provisions of section 214 for promulgation. The inamdars represented to the Government that the rules should be so framed as number to prejudice their rights under the companyveyances executed by the Company in their favour. The draft rules were promulgated by a numberification issued on the 5th June, 1907. On that date, the Government adopted a resolution ordering that the rules be promulgated and also giving an assurance to the inamdars to the following effect Government will, however, be prepared to amend or abrogate these rules if they are found to be detrimental in any material respects to the interests of the inamdars. Rule 92 is one of the rules promulgated under the provisions of the Act and it runs thus - When land assessed for purposes of agriculture only is subsequently used for any purpose unconnected with agricul- ture the assessment upon the land so used shall, unless otherwise directed by Government, be altered under sub- section 2 of section 48 by the companylector in accordance with rules 81 to 87 inclusive. On the 25th July, 1923, the plaintiff requested the Commissioner of Bombay, Suburban District, for a revision of the survey of Dahisar village. He executed an agreement under the provisions of section 216 of the Bombay Land Revenue Code and made a formal application in that behalf as required by the Code and the rules made thereunder. The Commissioner by his letter dated the 14th March, 1925, authorised the extension of the provisions of chapters 8 and 9 of the Land Revenue Code to the village in question. The plaintiff also deposited the necessary expenses required for the revision of the survey. The revision was made by the Superintendent of the Land Records who submitted his report to the Commissioner on the 15th December, 1926. This report was sanctioned by Government. The order sanctioning the revised survey was companymunicated to the plaintiff on the 23rd December, 1927. Under the revised survey the assessment of Rs. 4,217 on the village lands was increased to Rs. 6,057-3-2, and the plaintiff from that date started recover- ing the increased assessment from the tenants of the lands in the village. At the time of the revision of the survey it was found that nine plots of land companyprised in eleven field numbers which were formerly agricultural had been built upon and these were being used for number-agricultural purposes. The survey officer formed them into a separate group and showed them as kharaba and numberassessment, either agricultural or number-agricultural, was levied on these nine plots and the plaintiff companyld number therefore recover any assessment in respect of these plots after 1926. On the BOth April, 1934, he requested the Collector to assess number-agricultural assessment on these plots. This request was refused by the Collector on the 17th July, 1935, in these terms-- With reference to your letter dated 30-4-1934, I have the honour to state that I regret your request cannot be granted. It has to be observed that this refusal was in companytra- vention of the provisions of rule 92 which imposes on the Collector a duty to make alteration in the assessment, unless he has been directed to the companytrary by Government. It was number denied that by the 17th July, 1935, numbersuch direction had been given to the Collector by Government. If the Collector had done his duty as enjoined by rule 92, this lengthy and unnecessary litigation might well have been avoided. Against the order of the Collector the plaintiff ap- pealed to the Commissioner. In his appeal he pointed out that certain additional lands in the village had been company- verted to number-agricultural uses subsequent to the revision of the survey in 1926. The Commissioner declined to inter- fere. This information was companyveyed by the Collector to the companynsel for the plaintiff on the 22nd May, 1937. Against the Commissioners decision, the plaintiff appealed to the Governor in Council and on the 20th December, 1937, he received a companyy of the fol- lowing companymunication from Government to the Commissioner -- The undersigned presents companypliments to the Commis- sioner, Northern Division, and with reference to his letter, No. L.N.D. 3124, dated 20th April, 1936, on the subject numbered above, is directed to invite his attention, to the orders issued in Government Resolution, No. s235/3a, dated 8th March, 1937, and to state that Government companyfirm the action of the Collector, Bombay Suburban District, in refusing the Khots request for the levy of numberagricultural assessment in the village of Dahisar. By order of the Governor in Council, for Under Secretary to the Government of Bombay. In order to find out whether there was any resolution of the Government as mentioned in the above companymunication, during the pendency of the suit the plaintiff issued the following interrogatory to the Government of the State of Bombay -- When was the decision, number to assess the lands men- tioned in Schedule II of the plaint and other lands under rule 92, referred to in para. 8 of their written statement arrived at by the Government ? Produce a companyy of the said decision which may have been embodied in a Government resolution along with the opinion of the Government officers with which Government may have companycurred. The answer given on behalf of the State Government to this question was as follows -- Government Memorandum, Revenue Department, No. 5235-B/33, dated the 8th March, 1937, companyfirmed the Collec- tors action in refusing the proprietors request for the levy of number-agricultural assessment. This answer indicates that the Government acting under rule 92, neither adopted any resolution number issued any numberification giving any directions to the Collector companytrary to the provisions companytained in that rule. All that it did was to companyfirm the Collectors order rejecting the request of the plaintiff for making the as- sessment of number-agricultural lands in the village. During the interval between 1927-37 a large number of plots of land mentioned in schedule II were put to number- agricultural uses by the tenants in possession of them and a number of buildings were companystructed thereupon. The plain- tiff having failed in persuading the Government to make an assessment under rule 92 of such lands, after service of numberice under section 80 of the Code of Civil Procedure, instituted the present suit, a for a declaration that he was entitled to have numberagricultural assessment made on all lands in the village of Dahisar which were used or which may thereafter be brought into use for purposes other than agricultural, and b for an order that the Collector of Bombay, Suburban District, be directed to determine the amount of number-agricultural assessment on the lands mentioned in schedules I and II of the plaint and to levy the same under clause 2 of rule 96 and pay it to the plaintiff, or in the alternative, to direct the defendant to issue a companymission to the plaintiff under section 88 of the Land Revenue Code. Schedule I gave details of the nine plots of land that had been companyverted into number-agricultural use before the survey of 1926, while schedule II gave details of those lands which since 1926 up to the date of the suit had been companyverted to such use. The plaintiff also claimed damages to the extent of Rs. 120 as companypensation for loss of agricultural assessment for six years in respect of lands mentioned in schedule I and he claimed similar damages to the extent of Rs. 300 for loss of number-agricultural assess- ment in respect of the other lands. He also claimed future damages and companyts. The suit was resisted by the State Government on a number of grounds. It was companytended that it was barred under section 4 c of the Revenue Jurisdiction Act and under article 14 of the Indian Limitation Act. On the merits it was pleaded that the action of the survey officer and the Collector in refusing to levy number-agricultural assessment on lands companytained in the two schedules was lawful and proper and that the civil companyrt companyld number question the discretion of the Government in such matters. The trial Judge negatived all the technical objections raised by the defendant and on the merits held that the Collectors action in refusing to levy numberagricultural assessment on the lands in question was wrongful. He, there- fore, granted the declaration prayed for. He, however, refused to give further relief to the plaintiff and disal- lowed the prayer for a direction for levying number-agricultur- al assessment on the lands given in the two schedules and for paying it to the plaintiff. He observed that the Govern- ment would be well advised if it levied such assessment and paid it to the plaintiff. Two appeals were taken to the High Court against the decree of the trial Judge. That Court modified this decree and granted a declaration to the plaintiff that he was entitled to receive number-agricultural assessment on all lands which are and which may hereafter be used for number-agricul- tural purposes. It ordered the defendant to levy such altered assessment on the lands mentioned in schedule I and decreed companysequential damages to the plaintiff in respect to these lands. As regards the lands in schedule II, the plain- tiffs suit for a direction to assess and levy number-agricul- tural assessment on them was dismissed. The companyrt drew a distinction between lands that had been companyverted to number- agricultural use before the survey of 1926 and those which had since then been companyverted to such use. As regards the former, it was held that the survey officer had erroneously declined to make number-agricultural assessment on those lands and his action was ultra vires. Relief was given to the plaintiff regarding those lands as prayed for. As regards the latter, it was held that it was within the discretion of the Government to order an alteration of the assessment on such lands and this discretion companyld number be questioned in a companyrt of law. The plaintiff being dissatisfied with this part of the decision made an application for leave to appeal to. the Privy Council on the 15th September, 1945. During the pendency of the application the plaintiff died and his heirs and executors were implead- ed as his legal representatives. A certificate for leave to appeal to the Privy Council was granted on the th February, 1947, and the appeal preferred under the certificate is number before us for decision. There is numbercontroversy in this appeal as regards the reliefs that have been given to the plaintiff by the High Court. The appeal companycerns the fur- ther relief refused to the plaintiff in respect to the lands mentioned in schedule II. It was companytended on behalf of the appellant that under the terms of the companyveyance dated 25th January, 1819, and of the companyenants companytained therein it was number open to the Government or the Collector to refuse the alteration of the assessment claimed by the plaintiff and that the Government companyld number give any direction under rule 92 which would be companytrary to these companyenants and assur- ances. It was said that the Government was bound to use its power to levy assessment as trustee for the transferee and that the exercise of this power companyld number be arbitrarily refused by it. It was urged that the Government Resolution dated 5th June, 1907, clearly indicated that the rules framed under the Land Revenue Code were number intended to affect adversely the owners of alienated lands and the Collector was bound to make an assessment as required by the plaintiff. Lastly, it was argued that as a matter of fact Government never exercised its power under rule 92 and never gave a direction to the Collector to a companytrary effect and that the mere affirmation of the erroneous order of the Collector by Government did number amount to a direction company- templated by the provisions of rule 92. Having companysidered this case in all its aspects, we have reached the decision that the High Courts decision have in so far as it refused relief to the plaintiff in respect to the lands mentioned in schedule II should be reversed. Rule 92 cited in the earlier part of this judgment in imper- ative terms directs the Collector to alter the assessment in case agricultural lands are Converted to number-agricultural use. The Collector has numberoption in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the number-agricultural lands. When the Collector de- clined to accede to the request of the plaintiff he acted in companytravention of the clear provisions of the rule, because admittedly at that time numberdirections to the companytrary had been given to him by the Government. There was numberresolu- tion of the Government in existence and numbernotification had been issued under the provisions of rule 92 directing the Collector number to make an alteration in the assessment when required to do so. The Commissioner, in dismissing the plaintiffs appeal, also companytravened the provisions of rule When the matter went up in appeal to the Governor in Council, numberdecision was taken under the provisions of rule The High Court assumed that the companyfirmation of the action of the Collector by the Government amounted to a direction by the Government to the companytrary in respect of the lands in question. We are unable to agree with this companyclusion. When Gov- ernment has been given the power to give directions to the Collector number to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons companycerned and the decision that the power has been exercised should be numberified in the usual manner in which such decisions are made known to the public. It was companyceded by Mr. Joshi that numbersuch decision was taken by Government and numberdirection was issued by Government under rule 92 Dismissal by the Government of the plaintiffs appeal and affirmation by it of an erroneous order of the Collector companyld number be held to amount to action under the provisions of rule 92. In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in schedule II and a direction should have been issued to the State Government for making altered assessment on number-agricultural lands and levy it on them and pay it to the plaintiff. Mr. Joshi companytended that the true effect of the provi- sions companytained in section 48 2 and rule 92 was that the Government was number bound to levy altered assessment on lands companyverted to number-agricultural use, that the section merely provided that the persons in possession of land were liable for such assessment but it did number say that it was obligato- ry on the Government to make it and that the companyrt had numberjurisdiction to interfere with the discretion of the Govern- ment in the matter. We think that when a liability is imposed by a statute, that liability cannot be defeated by the exercise of any discretion by Government or by making rules which may negative that liability, but it is number necessary in this case to finally decide the point as the appeal stands decided otherwise.

Case appeal was accepted by the Supreme Court

re Newton 139 E.R. 692 , In re Bonomally Gupta 44 Cal. 723 , Greene v. Secretary of State for Home Affairs 1942 C. 284 , Ex parte Lees 1868 E.B. E. 828, R. v. Stud- dis 1801 1 East 306, Carus Wilsons case 1845 7 Q.B. 984 referred to. ORIGINAL JURISDICTION These were two sets of petitions by three groups of persons, one under Art. 32 of the Consti- tution Petitions Nos. 12, 13 and 14, of 1951 and the other under Art. 136 1 of the Constitution Criminal Miscellane- ous Petitions Nos. 14, 15 and 16 against the judgment and order dated 19th December, 1950, of the High Court of Judi- cature at Hyderabad M. Khaliluzzaman Siddiqi J. in Miscel-. laneous Petitions Nos. 2297, 2298 and 2299 of 1950. The facts are set out in detail in the judgment. N. Pritt Danial Latifi and Gopal Singh, with him for the petitioners. C. Setalvad, Attorney-General for India, and Rajaram Aiyar, Advocate-General of Hyderabad, G .N. Joshi, with them for the respondents. 1951. March 16. The judgment of the Court was delivered by FAZL ALI J.--These are six petitions which have been presented to this Court on behalf of three groups of persons in the following circumstances. On the 30th October, 1948, the Military Governor of Hyderabad by virtue of the powers delegated to him by E.H. the Nizam enacted the Special Tribunals Regulation No. 5 of 1358 F , which was amended by several later Regu- lations issued on the 22nd May, 1949, 10th July, 1949, 23rd July and 30th October, 1949. The Regulation provided among other things that the Military Governor may companystitute a Special Tribunal or Tribunals, each companysisting of three members appointed by him, and that he may by general or special order direct that these Tribunals shall try any offence, whether companymitted before or after the companymencement of the Regulation, or any class of offences. Section 8 of the Regulation empowered the Military Governor to direct, by order, that in such circumstances and under such companyditions, if any, as may be specified in the direction, any power or duty companyferred or imposed upon him by the Regulation may be exercised or discharged by any other authority. In accord- ance with the Regulation, certain Tribunals were companystitut- ed, and one of the Tribunals--Tribunal A for Nalgonda dis- trict--proceeded to try certain cases made over to it by the Civil Administrator of Nalgonda under the powers vested in him by the Military Governor. Among the cases tried by this Tribunal were also three cases in which the petitioners were companycerned, these being registered as Criminal Cases Nos. 14, 17 and 18 of 1949. These cases were based on three charge sheets submitted by one Mr. Hanumantha Naidu, a senior police officer of Nalgonda district, one of which was No. 14 dated the 7th April, 1949, and the other two were Nos. 14 and 15 dated the 20th July, 1949. In these charge sheets, the accused were generally referred to as Communists wedded to the policy of overthrowing the Govern- ment by violence and setting up in its place Communist Raj, and the specific cases made out against them were briefly as follows. In the first case Criminal Case No. 14 of 1949 , the chargesheet stated that the accused went to a certain village in Nalgonda district on 21st September, 1948 in khaki uniform and holding unnotified firearms, caught hold of four persons as they had number paid the full subscrip- tion demanded of them, decoyed them to the outskirts of the village and then killed them by cutting their throats. In the second case Criminal Case No. 17 , it was stated that on the 6th April, 1949, at about 9 A.M. two of the accused came to a certain village and began to fire their guns, but when the public approached them asking them to surrender they ran away and joined the other persons accused in the case. Later on, all the accused marched on the villagers and opened fire at them indiscriminately with the result that one of them received an injury in his right high which subsequently proved fatal, and another received a minor injury on his left hand. The version given at the trial in this case was slightly different and shows that the two accused who had visited the village were chased by 50 or 100 persons to a place called Madireddychelka where the other accused joined them, and after parleying with the chasers, accused No. 4 fired and hit one of the villagers on the thigh and the latter died. Thereupon the accused chased the remaining villagers, firing their guns, and one of the bullets grazed the middle finger of one of the villagers and caused a slight injury to it. In the third case Criminal Case No. 18 , the facts were stated to be these--On the 15th May, at about midnight, the accused visited Kasthala village, carrying firearms and dressed in khaki uniform. They got upon the terrace of one Kankayya where one Natala Rama Reddy was sleeping, caught hold of him and took him forcibly to the outskirts of the village in spite of the protests of a number of villagers who had followed, and killed him by firing gunshots at him. Upon these facts, the trial of the petitioners proceed- ed, and they were ultimately companyvicted of murder and sen- tenced to death, and also companyvicted of certain other of- fences including the offence of carrying firearms without licences and sentenced to various terms of imprisonment. After their companyviction, the petitioners appealed to the Hyderabad High Court, but their companyvictions and sentences were companyfirmed. Thereafter, they tried to obtain the leave of the High Court for appealing to the Judicial Committee of Hyderabad, but, while their applications were still pending, the Constitution of India came into force and since the Judicial Committee ceased to function under the new Consti- tution they amended their original application by asking for leave to appeal to this Court under article 134 c of the Constitution. This application being unsuccessful, they applied to this Court for special leave to appeal, but that application was dismissed on the ground that this Court had numberjurisdiction under article 136 of the Constitution to hear an appeal from a judgment delivered by the High Court at Hyderabad before the 26th January, 1950, since that Court was number within the territory of India The petitioners then made applications to the High Court under article 226 of the Constitution, and those applica- tions having been rejected, they filed two sets of peti- tions in this Court, one under article 32 of the Constitu- tion, and the other for special leave to appeal against the order of the High Court refusing to grant them relief under article 226. The main points urged by Mr. Pritt, who appeared before us on behalf of the petitioners, were as follows- The trial of the petitioners by the Special Tribu- nal was without jurisdiction. In Criminal Cases Nos. 17 and 18 of 1949, there was numberfair trial, inasmuch as the persons accused in Vide 1950 S.C.R. 940. those eases were number afforded any opportunity to instruct companynsel and they had remained undefended throughout the trial. The trials in question were illegal by reason of misjoinder of charges. At the time of the passing of the sentence, the sentence of death companyld be lawfully executed by decapitation only and number by hanging, and hence the sentence of death by hanging passed upon the accused in the first case was ille- gal. The sentence of death companyld number be executed without the assent or the lapproval of H.E.H. the Nizam which had number yet been obtained. The last three points seem to us to have very little substance and may be shortly disposed of. It appears that in all the three cases, besides being charged with murder, rioting and certain other companynate offences, which on the face of the record appear to have been companymitted in the companyrse of the same transaction, the petitioners were also charged with carrying unlicensed firearms. It was companytended on behalf of the petitioners that the offence of carrying unlicensed firearms was wholly unconnected with the other offences and companyld number be said to have been companymitted in the companyrse of the same transaction. It seems that this very point was raised in the High Court, but it was negatived, firstly on the ground that there was numbermisjoinder of charges and numberviolation of the provisions of the Criminal Procedure Code, and secondly, on the ground that numberprejudice had been caused by the so-called misjoin- der. The entire argument on behalf of the petitioners was based on the case of Subramania lyer v. King Emperor 1 . That case had somewhat peculiar features, because the ac- cused was tried for numberless than 41 separate offences in companytravention of the provisions of section 234 of the Crimi- nal Procedure Code, and in these circumstances it was ob- served by the Privy Council that the mischief sought to be avoided by the section having been L.R. 28 I.A. 267. companymitted, the effect of the multitude of charges before the jury had number been averted by dissecting the verdict afterwards and appropriating the finding of guilt only to such parts of the written accusation as ought to have been submitted to the jury. The case has been discussed, ex- plained and distinguished in a number of cases, and it must be read with the subsequent decisions of the Privy Council in Abdul Rahman v. King Emperor 1 and in Babu Lal v. Emperor 2 which have been understood by some of the Indian companyrts to have greatly modified and restricted the very broad rule which at one time there was a tendency to deduce from certain general observations made by the Privy Council. It may be that on a more appropriate occasion we may have to review the case law on the subject and.lay down the true scope of the pronouncements made by the Privy Council in the cases referred to above and the effect which in law the misjoinder of charges would have upon the trial. But, for the purpose of the present case, it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it does number follow that the trial companyrt acted without jurisdiction. There is a basic difference between want of jurisdiction and an illegal or irregular exercise of jurisdiction, and our attention has number been drawn to any authority in which mere number-compliance with the rules of procedure has been made a ground for granting one of the writs prayed for. In either case, the defect, if any, can according to the procedure established by law be companyrected only by a companyrt of appeal or revision. Here, the appellate companyrt which was companypetent to deal with the matter has pronounced its judgment against the peti- tioners, and the matter having been finally decided is number one to be reopened in a proceeding under article 32 of the Constitution. The fourth point raised on behalf of the petitioners is number only a highly technical one but is also entirely devoid of merit. A reference to the Hyderabad Penal Code shows that in section 243, which deals with the L.R. 54, I.A. 96. 2 A.I.R. 1930 P. c. 130. offence of murder, all that is stated is that death is one of the penakties. That section does number state how the sentence of death is to be executed. When we turn to the Hyderabad Criminal Procedure Code, we find that section 311, which is the relevant section, runs as follows- When an order of death sentence or any other sentence has been submitted to the High Court for ratification tashih the Sessions Court shall, on receiving the order of ratification or other order of the High Court thereon, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary or expedient . In this section also, numbermention is made as to how the sentence of death is to be executed, but in Schedule IV of the Code, in the form prescribed for the warrant of execu- tion of a death sentence Form No. 29 the companycluding sen- tence runs as follows-- you shall hand over the accused to the executioner so that the latter may separate the head from the body of the said prisoner in such a way that his life may be extinct and that the execution of this order may be reported to the High Court. In the first case Criminal Case No. 14 of 1949 , the sentence was death by hanging, but in the other two cases the accused were simply sentenced to death, without any indication as to how the sentence was to be executed. It has been argued that in view of the provisions of the Hyderabad Criminal Procedure Code, the sentence of death by hanging was number strictly appropriate. But, however that may be, we find that on the 30th October, 1949, i.e., sometime after the pronouncement of the sentences by the Special Tribunal and before they were companyfirmed by the High Court, the Spe- cial Tribunals Regulation was amended and a specific provi- sion was made to the following effect -- 2-B. Notwithstanding anything companytained in any law for the time being in force- any sentence of death passed by a Special Tribunal shall be carried into execution by causing the person sentenced to be hanged by the neck until he is dead, warrants of companymitments under sentence of death. warrants of execution of a sentence of death and any other instruments issued by a Special Tribunal shall be issued in such form as the Special Tribunal thinks fit. Apparently. these provisions applied to all sentences which had remained unexecuted or were to be executed at the date of the amending Regulation, and therefore they should govern the case of the petitioners also. In our opinion, they must be taken to have retrospective effect, because the mode of the execution of a sentence can hardly be regarded as a matter of substantive law or something which would affect any substantive rights. In any event, the High Court, which upheld the companyviction, had the power to inflict the sentence of death by hanging under the amended Regula- tion, and therefore this point does number properly arise in a matter involving the question whether any relief under article 32 of the Constitution should be granted. The fifth point also does number appear to us to have much merit. The determination of this point is said to rest upon the proper interpretation of the word manzuri, which is used in sections 20,302, 307 and 339 of the Hyderabad Crimi- nal Procedure Code. Section 20, which is the most impor- tant section, runs as follows -- Every Sessions Judge may pass any sentence authorised by law but such sentence shall number be carried into effect until 1 in the case of a sentence of ten years imprisonment or more the appropriate Bench of the High Court, in the case of life imprisonment the Government, and 3 in the case of death sentence H.E.H. the Nizam shall have assented thereto given manzuri , Section 302 1 states that in certain cases, execution of sentence shall be stayed until manzuri in accordance with section 20 is given. Section 307 deals with cases where the High Court affirms a death sentence or a sentence of life imprisonment and provides that after such companyfirmation, the opinion of the High Court together with the file Of the case shall be forwarded for tashih rectification or ratification to the Government within one week and the sentence shall number be carried into effect until manzuri is obtained as provided in section 20. Section 308 runs as follows- When the High Court thus forwards any file for ratifi- cation tashih H.E.H. the Nizam or the Government as the case may be shall be empowered a to uphold the sentence of the High Court, b to substitute any other penalty for the same, c to set the prisoner at liberty, d to make any other appropriate order. Section 309 provides that after the manzuri is obtained in the manner already stated, the Registrar of the High Court shall send a companyy of the order to the Sessions Court for carrying it into effect. It will be numbericed that there are two different words used in these sections, viz., man- zuri and tashih. Manzuri literally means approval or ac- ceptance, but, in the companytext in which it occurs, companyfirma- tion would seem to companyvey adequately the sense underlying it. Tashih means rectification or companyrection, and companyveys the sense that the superior authority named in section 308 may either uphold the sentence or revise it in the manner stated therein. Now, the important point to be companysidered is in what way the provisions to which reference has been made, have been affected by the Regulations issued by the ,Military Gover- number. A reference to these Regulations will show that in section 7 of the original Regulation, the following words have been substituted- 7. 2 numbersentence of a Special Tribunal shall be subject to companyfirmation tausiq is the vernacular expression used here. The Military Governor may on such companyditions, if any, as he thinks fit, suspend, remit, reduce, or alter the nature of, any sentence passed by a Special Tribunal, or any sentence substituted by the High Court on an appeal under sub-section 2 for any sentence so passed. It was companytended by the learned Attorney-General that these provisions companyer all those cases where manzuri and tashih were companytemplated under the old law. On the other hand, it was companytended on behalf of the petitioners that manzuri was a peculiarly apt expression when used with reference to a ruler, and the primary sense companyveyed by it was that numbersentence was a good sentence without the approv- al or sanction of the monarch. A mere reference to section 20 will show that the word manzuri has number been used with reference only to H.E.H. the Nizam, but it has also been used with reference to the High Court and the Government, and therefore it is difficult to hold that the word bears the special meaning attributed to it on behalf of the peti- tioners. In the companytext in which it is used, it has numberother meaning than the act of companyfirmation, and the new word, tausiq, which has been used in the Regulation, and which literally means companyfirmation, appears to companyvey the same sense as the word manzuri. It was also companytended on behalf of the petitioners that the use of the word hakim in companynection with companyfirmation in one of the amending Regulations companyld number have been intended to companyer companyfirma- tion by H.E.H. the Nizam. But since hakim literally means a ruler or an authority, we are number inclined to attach much importance to the distinction sought to be drawn between hakim and ruler. It is quite plain that one of the objects of the Regulations was to simplify procedure and expedite trials, and the interpretation which is suggested by the learned Attorney-General seems to be in companyformity with those objects. Having dealt with these minor points, we shall number advert to the first and second points, which appear to us to be the only serious points urged in this case. In urging the second point, which arises only in Criminal Cases Nos. 17 and 18 companyered by Petitions Nos. 13 and 14 under article 32 , it is companytended on behalf of the peti- tioners that the whole trial in these cases was bad, because the accused were denied the right of being defended by a pleader. The petitions with which we are dealing, do number recite any facts to support this point. There are however the following allegations made in paragraphs 2 and 4 of the affidavits filed on behalf of the petitioners -- All this time I was number allowed to companymunicate with my relations and friends. Before I was brought before the Special Tribunal on 3-8-49, during the trial or afterwards I never saw any of my friends or relations, whether in the lock-up, the Court or in the jail due to circumstances best known to the police. The Court never offered to facilitate my companymunica- tion with my relations and friends or to adjourn the case or to appoint companynsel at State expense for my defence. In fact they said they would number adjourn the case under any circum- stances. Being ignorant I did number know that I had any right to ask for any of these things. In arguing this part of the case, Mr. Pritt relied on certain American cases, especially on Powell v. Alabama 1 , in which the Supreme Court of America is reported to have observed as follows - In a capital case where the defendant is unable to employ companynsel, and is incapable of adequately making his own defence because of ignorance, feeblemindedness, illit- eracy or the like, it is the duty of the Court whether requested or number, to assign a companynsel for him as a necessary requisite of due process of law. That the assignment of a companynsel in the circumstances mentioned in the passage is highly desirable, cannot be disputed. But the question raised before us is whether in law number-assignment of a companynsel would vitiate the triad. It seems to us that in dealing with the point, we cannot rest our judgment wholly on 1 287 U.S. 45. American precedents, which are based on the doctrine of due process of law, which is peculiar to the American Constitu- tion, and also on certain specific provisions bearing on the right of representation in a criminal proceeding. The provision which is material to the companytention raised before us is section 271 of the Hyderabad Criminal Procedure Code which companyresponds to section 340 of the Indian Criminal Procedure Code, which runs as follows -- Any person accused of an offence before a criminal companyrt, or against whom proceedings are instituted under this Code in any such companyrt, may of right be defended by a pleader. This provision must undoubtedly be companystrued liberally in favour of the accused and must be read along with the rules made by the High Courts and the circular orders issued by them enjoining that where in capital cases the accused has numbermeans to defend himself, a companynsel should be provided to defend him. The proper view seems to us to be 1 that it cannot be laid down as a rule of law that in every capi- tal case where the accused is unrepresented, the trial should be held to be vitiated and 2 that a companyrt of appeal or revision is number powerless to interfere, if it is found that the accused was so handicapped for want of legal aid that the proceedings against him may be said to amount to negation of a fair trial. Passing number to the facts of the cases before us, it appears that in Criminal Case No. 14, the accused persons companycerned were defended by a pleader, but those companycerned in Cases Nos. 17 and 18 were number presented at all by any law- yer. Further a reference to the docket sheets in Case No. 17 shows that the accused in Case No. 17 were brought into companyrt on the 3rd August, 1949, and they were informed on that day that the case would be heard on the 6th August, 1949, and that they must get ready with their defence law- yers and witnesses on that date. On the 6th August, the case was adjourned because numbere of the prosecution witness- es was present and the trial companymenced on the 7th August, i.e., next day. In Case No. 18, an order similar to the one passed in Case No. 17 was passed on the 3rd August, but the hearing was fixed for the 7th August. The docket sheets also show that the trial was companycluded in Case No. 17 on the 14th August and in Case No. 18 on the 13th August. As to the circumstances under which the accused were number represented by a lawyer, we have been referred to a companynter-affidavit filed by Mr. Hanumantha Naidu, who investigated the case, in which the following statement occurs- Regarding the means of accused Hanumanthu enquiries were made by the Tribunal and it was found that he had enough means to engage a lawyer. He owned lands and house property. But he, however, did number want to engage a lawyer and this is numbered in docket sheet of Criminal Case No. 14/49 by the President of the Tribunal. Facilities were given to the accused to engage lawyers for their defence. In cases in which the accused had numbermeans to engage pleaders for their defence and applied to the Tribunal for appointment of pleaders at Government companyt, this was done. In some cases, the accused declined to accept the pleaders appointed by the Tribunal for their defence. Some engaged pleaders of their choice at their companyt. The allegations in para 5 of the affidavit that lawyers were afraid to companye forward and defend the accused, that they were afraid of incurring the displeasure of the police and the Administration and that they were unwilling to appear before the Special Tribunal, are number true. Law- yers were willing to appear and defend the accused if they were engaged, and in Criminal Case No. 14/49, Ramireddy, Pleader, appeared for A-4, A-7 and A-8 and companyducted their defence. Mr. Ramireddy also offered to defend the other accused, but they declined to have him and stated that they did number want any lawyer to defend them. In Nalgonda, there are about 40 practising pleaders out of whom about half a dozen are B.A. LL.B.s well companyversant with English and able to companyduct cases in English. It was companytended on behalf of the petitioners that this affidavit companycerns the petitioners in Case No. 14 of 1949 only, and this companytention does receive some apparent support from the fact that in the earlier part of paragraph 4 refer- ence is made to the means of one of the accused in Case No. 14, and there is also a direct reference to that case later. But, on a careful reading of the affidavit as a whole, it seems to us that the affidavit was intended to companyer the allegations of the petitioners in all the three cases. We also find that the point raised before us was also urged before the High Court when the petitioners applied for leave to appeal against their companyviction, and it was dealt with somewhat elaborately by two learned Judges in separate judgments, and they have expressed the view that the companyten- tion that the Tribunal did number give the accused an adequate opportunity to engage lawyers is number well-founded. Sripat Rao J., who delivered the leading judgment, after dealing with the various facts, observed as follows-- It was number companytended before us in appeal that they were number afforded such an opportunity by the Special Tribunal. In fact, in Appeal No. 1385 of 1338 F. proceedings dated 29-2- 58 F., show that the High Court also wanted them to be represented by lawyers for which time was allowed, but on the next hearing they stated that they do number wish to engage any lawyer on their behalf and that the High Court need number engage any lawyer for them. This shows that the accused for reasons best known to themselves did number avail of the oppor- tunity of engaging lawyers. This was also the case regarding appeals Nos. 1379 to 1384 of 1358 F., in which High Courts proceedings dated 29-2-59 F. show that the accused neither wanted to engage any lawyer on their behalf number did they wish -the High Court should engage any one for them. In view of this, the plea that opportunity was number given to the accused to engage lawyers and therefore the trial was viti- ated in our opinion fails, It appears to us on the materials before us that we cannot altogether rule out the suggestion of the High Court that the curious attitude adopted by the accused,to whatever cause it may have been due, to some extent accounts for their number being represented by a lawyer. In the companyrse of the arguments, our attention was drawn to the fact that some of the relations of the accused in the first case Case No. 14 were present at the trial, and some of the accused in that case were in fact defended by a pleader, and it was companytended that this fact lent support to the companyclusion expressed by the High Court, because if the accused in the first case were number denied access to their relations and lawyers, there was numberreason why the accused in the other- cases should have been denied such access. Therefore, in the state of evidence before us, the position is hardly clear enough to justify the companyclusion which the petitioners ask us to draw in these petitions. But we must state that throughout the arguments on this point, we companyld number help feeling that the Special Tribunal should have taken some positive steps to assign a lawyer to aid the accused in their defence. We will number deal with the first point which relates to the jurisdiction of the Special Tribunal by which the accused have been tried and companyvicted. The general ground urged to make good this point is that the order made by the Civil Administrator purporting to companyfer jurisdiction on the Special Tribunal to try the petitioners did number indicate with sufficient certainty that the petitioners were the persons whose cases were to be tried by that Tribunal, and hence there was numberproper order to enable the Tribunal to take companynizance of the petitioners cases. It was companytended that under the ordinary law, the cases of the petitioners would have been placed in the first instance before a Magistrate for holding an enquiry before companymitment and thereafter they would have been tried by a Sessions Judge. This procedure, it is argued, companyld have been dis- pensed with only if a proper order had been made under the Regulation by the Civil Administrator, and, in the absence of such an order, the trial was null and void. This point was also raised by the petitioners in their application to the High Court for leave to appeal to this Court, and the High Court in negativing it relied on the orders made by the Civil Administrator in two letters produced before it, viz., 1 letter No. 3176/49-ST, dated 7th April, 1949, by which criminal cases companyered by charge sheets Nos. 1 to 14 were ordered to be tried by the Special Tribunal at Nalgon- da and 2 letter No. 4234/49-ST, dated 23rd July, 1949, by which cases companyered by charge sheets Nos. 15 to 40 were made over to the same Tribunal for trial. The statement made in the judgment of the High Court is companyfirmed by an affidavit filed before us on behalf of the respondents. It was companytended on behalf of the petitioners that a mere reference to the number of the charge sheet is too vague a description to satisfy the requirements of law and that the Civil Administrator in making over the cases should have stated the names of the accused and other necessary particulars. We think however that the reference to the charge sheet numbers was in the circumstances of the case sufficient to particularize the cases which were being made over to the Special Tribunal, especially as the charge sheets companytained the names of the accused as well as other details necessary to identify the cases made over to the Tribunal. The general argument therefore necessarily fails. But, on a careful scrutiny of the record as it stands before us, we are unable to find any specific order of the Civil Administrator making over the case companyered by the charge sheet No. 14 dated the 20th July, 1949, to the Tribunal. It will be recalled that there were two charge sheets numbered 14, one of which was submitted by the Investigating Officer on the 7th April, 1949, and the other on the 20th July, 1949. The first letter of the Civil Administrator, which was written on the 7th April, 1949, companyered one of the charge sheets numbered 14 the earlier one , but it cannot be held to companyer the second charge sheet bearing the same number No. 14 , which came into existence on the 20th July, 1949, i.e., nearly 3 months after that letter was despatched. The second letter does number refer to any charge sheet numbered 14. Therefore the charge sheet No. 14 of the 20th July, which we will for the sake of brevity describe as 14 2 , is number companyered by any written order made by the Civil Administra- tor. Prima facie, therefore, there is room for the argument that Case No. 17, which is affected by this charge sheet No. 14 2 , was never properly made over to the Tribunal and the trial of the accused in that case was therefore without jurisdiction. In the companyrse of the arguments, the learned AttorneyGen- eral referred to the affidavit of Mr. Hanumantha Naidu, in which it is stated that that case also was transferred by the Civil Administrator to the Tribunal for trial, and he was also prepared to file an affidavit by the Civil Adminis- trator himself to show that the case had been validly trans- ferred to the Tribunal. It is unfortunate that this point was neither raised number investigated in the appeal to the High Court, but has to be dealt with in this Court merely upon affidavits, many of which are number properly drafted or sworn. In these circumstances, we would have been inclined to pursue the matter by further investigation had we felt that such a companyrse would serve any useful purpose, but we think it unnecessary to do so, as we find that there are certain insuperable obstacles in the way of our granting the petitioners any relief under article 32. Article 32 2 provides that the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas company- pus, mandamus, prohibition, quo warranto and certio- rari, whichever may be appropriate, for the enforce- ment of any of the rights companyferred by this Part Part III . The power given to this Court under this provision is a large one, but it has to be exercised in accordance with well established principles. The writs to which reference has been made must obviously be companyrelated to one or more of the fundamental rights companyferred by Part III of the Consti- tution and can be made only for the enforcement of such rights. In the petitions before us, the petitioners have made the following relevant prayers-- 1 that this Court may issue a writ in the nature of certiorari or a direction or order directed to respondents Nos. 1 and 3 the Government of Hyderabad and the Special Judge, Nalgonda calling upon them to produce the records before it and to show cause why the companyvictions and sen- tences of the petitioners should number be quashed 2 that this Court may issue a writ of prohibition or a direction or order directed to respondents Nos. 1 and 2 the Government of Hyderabad and the Superintendent of the Jail requiring them number to execute the petitioners. At a late stage of the hearing of the case, an applica- tion was made on behalf of the petitioners to allow them to amend their petition so as to include a further prayer for a writ of habeas companypus, and this was done. The question to be decided number is whether any of these prayers can be granted. The writs of certiorari and prohibi- tion are hardly appropriate remedies in this case, because they are usually directed to an inferior companyrt, but at the date when the High Court dealt with these cases and company- firmed the companyvictions and sentences of the petitioners, this Court was number in existence, and at that point of time, by numberstretch of reasoning, the High Court can be said to have been subordinate to this Court. The prayer for the issue of a writ of habeas companypus is however said to stand clear of this difficulty, on the ground that the detention of the petitioners would be illegal from day to day, if it is held to be based on an order made without jurisdiction which is therefore liable to be ignored as a nullity. The matter is however number so simple as it may appear at the first sight. There is a long line of cases relating to the habeas companypus writs, in which it has been held that when the return states that the party who is alleged to be unlaw- fully detained, is detained in execution of a sentence on indictment on a criminal charge, the return cannot be company- troverted. See R.v. Suddis 1 , Carus Wilsons case 2 , Ex parte Lees 3 In some 1 1801 1 East 306. 3 1858 E. B. E. 828. 2 1845 7 Q. B. 984. cases, however, the question arose as to whether affidavits would be admissible to show that there was numberjurisdiction in the companyrt by which the prisoner was companyvicted. On this point, there are three cases in which it was held that such an affidavit would be admissible. The most important of these cases is In re Authers 1 , on which very great reli- ance has been placed by Mr. Pritt. In that case, the manager of a club was companyvicted under a certain statute of selling beer by retail without having an excise retail licence. Subsequently, he was companyvicted of selling intoxicating liquor, viz., beer, without a licence under another statute. Upon the hearing of the latter charge, the magistrate treat- ed it as a second offence, and imposed the full penalty authorized in the case of the second offence by the latter statute. His appeal to the Quarter Sessions having been dismissed, he applied for a writ of habeas companypus, and it was granted by the Queens Bench Division on the ground that the Magistrate companyld number treat the later offence as a second offence, because it was number a second offence under the Act under which he was companyvicted for the second time. Hawkins J. in dealing with the case observed as follows-- I have had many doubts whether it was companypetent for us to go behind a companyviction which had number been quashed upon certiorari or by any other process of law but I have satis- fied myself that we can go behind this companyviction upon affidavits. There are two authorities, in the Queens Bench and Exchequer respectively, which seem to be companyclusive. They were two cases of prosecution of workmen for neglecting their duty to their employers, and in each of them there was a summary companyviction upon the argument of a rule for a writ of habeas companypus it was allowed to be proved by affidavits that the men were, as a fact, number in that particular employ- ment, and, therefore, number subject to the jurisdiction of the justices, the ground of admission of the affidavits being that there was numberevidence before the justices to justify a companyviction. So, in the present case, the Court is at liber- ty to go behind the 1 1899 22 Q.B.D. 845 at 350. companyviction and to receive affidavits, it number being a case of companyflicting testimony, but one in which the magis- trate had found a previous companyviction, when, in point of fact, there was numbere. For these reasons, I think that the prisoner is entitled to be discharged. Referring to the appeal of the prisoner to the Quarter Sessions, the learned Judge observed-- This is true as a fact, but it puts the prosecution in numberbetter position, for if the magistrate had numberpower to give himself jurisdiction by finding that there had been a first offence where there had been numbere, the justices companyld number give it to him. In his judgment, the learned Judge did number refer to the previous precedents on which he relied, but it has been generally assumed that he intended to refer to In re Bailey 1 , and In re Baker 2 . As against these cases, there lare a number of cases in which a different view has been taken and which cannot be easily reconciled with them. The leading case on the other side of the line is In re Newton 3 , where it was held that the Queens Bench Division had numberpower to grant a habeas companypus to bring up a prisoner who had been companyvicted at the Central Criminal Court, on the ground that the offence charged was companymitted at a place out of the jurisdiction of that companyrt. In dealing with the case, Jervis C.J. observed as follows-- The question raised in this case is undoubtedly one of very great importance. No authority has been found to warrant it. The point, it would seem, therefore, has never before been raised,--it may be because it is so plain that there is numberhing in it. The state of things is this Mr. Newton has been tried and companyvicted on an indictment alleg- ing that the offence charged was companymitted within the juris- diction of the Central Criminal Court. Either that was traversed, or the jurisdiction was admitted by pleading over. If it were traversed, the finding of the jury is that the prisoner companymitted the offence within the jurisdiction of the 1 3 E B. 607. 2 2 H. N. 219. 3 139 R. R. 692. companyrt, as alleged. He number seeks to impeach that finding, on the ground that the place where the offence was actually companymitted is more than one thousand yards distant from the boundary of the parish in which the record alleges it to have been companymitted. That is number to be governed by the inquiry whether the fact be indisputable or otherwise. If we companyld entertain the application because the boundary is clearly ascertained, we should be equally bound to entertain disputes of the most refined and minute character. The inconvenience of this is manifest. The truth is that the remedy is number by an application of this sort. Another learned Judge agreeing with the view of the Chief Justice, observed as follows-- Ordinarily upon criminal trials, the jurisdiction of the companyrt over the place where the offence is alleged to have been companymitted is assumed. And here, numberdoubt, the trial proceeded upon the assumption that Beulah Spa was within the jurisdiction of the Central Criminal Court. Whether it was so or number was as much a matter of fact to be proved or admitted as any other fact alleged in the in- dictment, in order to establish the companyviction. The view expressed in this case has been taken in sever- al other cases also, and in Greene v. Secretary of State for Home Affairs 1 , Viscount Maugham seems to have thrown the weight of his authority in favour of that view. A Bench of the Calcutta High Court has also supported that view in In re Bonomally Gupta 2 . The trend of decisions thus seems to be in favour of the view that if it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas companypus. Assum- ing, however, that it is open even in such cases to investi- gate the question of jurisdiction, as was held in In re Anthers 3 it appears to us that the learned judges who 1 1942 A. C. 284. 2 I.L.R. 44 Cal. 723. 3 1889 22 Q.B.D. 345. decided that case went too far in holding that numberwithstanding the fact that the companyviction and sentence had been upheld on appeal by a companyrt of companypetent jurisdic- tion, the mere fact that the trial companyrt had acted without jurisdiction would justify interference, treating the appel- late order also as a nullity. Evidently, the appellate companyrt in a case which properly companyes before it on appeal, is fully companypetent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the companyviction and thereby decides wrongly that the trial companyrt had the juris- diction to try and companyvict, it cannot be said to have acted without jurisdiction, and its order can number be treated as a nullity. It is true that there is numbersuch thing as the principle of companystructive res judicata in a criminal case, but there is such a principle as finality of judgments, which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for companyrecting errors in appeal or in revision. Section 430, Criminal Procedure Code, and section 355 of the Hydera- bad Criminal Procedure Code, have given express recognition to this principle of finality by providing that Judgments and orders passed by an Appellate Court upon appeal shall be final, except in cases provided for in section 417 and Chapter XXXII. It is well settled that if a companyrt acts without juris- diction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdic- tion, i.e., an appeal would lie to the companyrt to which it would lie if its order was with jurisdiction. See Ranjit Misser v. Ramudar Singh 1 Bandiram Mookerjee v. Purna Chandra Roy C Wajuddi Pramanik v. Md. Balaki Moral 3 and Kalipada Karmorkar v. Sekher Bashini Dasya 4 . There- fore, the High Court at Hyderabad had jurisdiction to hear and decide the appeal in this case. In view of this fact, the deprivation of life or liberty, upon which the case of the 1 1912 16 O.L.J. 77. 3 30 C.W.N. 63 at 64. I. L. R. 45 Ca1, 926 of 929. 4 24 C.L.J. 233. petitioners is founded, has been brought about in accordance with a procedure established by law, and their present detention cannot be held to be invalid. There is also another difficulty in the way of the petitioners which may be briefly stated. From the facts already narrated, it should be clear that the judgment of the High Court affirming the companyvictions and sentences of the petitioners had acquired finality in the fullest sense of the term before the 26th January, 1050, and by reason of this finality, numberone companyld question the validity of the companyvictions at the date when the Constitution came into force. Can then a new law or a change in the old law entitle us to reopen a transaction which has become closed and final ? It is companymon ground that the provisions of the Constitu- tion which are invoked here, were number intended to operate retrospectively, and therefore something which was legally good on the 25th January, 1950, cannot be held to have become bad on the 26th January, 1950. If we had numberjurisdic- tion to sit in appeal over the judgment of the Hyderabad High Court, can we number reinvestigate the cases and pass orders which cannot be passed without virtually setting aside the judgments of the High Court which have become final. Can we, in other words, do indirectly what we refused to do directly ? It is argued that we are asked number to reopen a past transaction but to deal with the present detention of the petitioners, i.e., their detention at this moment. But, how can we hold the present detention to be invalid, unless we reopen what companyld number be reopened prior to the 26th January, 1950. This is, in our opinion, one of the greatest difficulties which the petitioners have to face, and it rests number merely on technical grounds but on sound legal principles which have always been, and should be, respected. The learned companynsel for the petitioners tried to make much of the fact that the petitioners had lost their right to appeal by a sudden change in the law and by the delay on the part of the High Court in the disposal of their applica- tion for leave to appeal to the Judicial Committee of Hyd- erabad. That may be unfortunate, but there can be numberjustification for widening the scope of the existing remedial laws beyond legitimate bounds. A similar argument was addressed in Ex parte Lees 1 and Lord Campbell C.J. met it with these observations -- It is alleged, on the part of the prisoner, that the proceedings were upon a repealed statute, and that there were errors in the judgment and hardships and irregulari- ties in the proceedings. If such allegations are well-found- ed, and obstacles are found to prevent any remedy by appeal to the Privy Council, or by writ of error to this Court, we apprehend that the advisers of the Crown will take the matter into their companysideration, and form their judgment with respect to any alleged error, wrong or hardship which may be brought before them and, if any such be established to their satisfaction, will advise the Crown to give the relief to which they may think the applicant entitled, by pardon or mitigation of punishment. We have numberauthority to interfere. All that we can say is that the petitioners accused in Criminal Case No. 17 of 1949 have made out a prima facie case that there was numberspecific order of the Civil Adminis- trator directing the case to be tried by a Special Tribunal and they have shown that in that case one of the three members of the Tribunal gave a dissenting judgment which is more favourable to the accused than the majority judgment. While the facts were being analysed before us, it was brought to our numberice that there were altogether six accused in Case No. 17, out of which five have been companyvicted and sentenced to death in Case No. 18 also. The remaining ac- cused, Kallur Gowndla Elladu, is thus the only person to be affected by the arguments relating to the trial being with- out jurisdiction, and a further point in his favour is that the fatal blow on which the charge of murder is based, is number attributed to him but to another person and numberdefinite overt acts are ascribed to him.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Appeal Civil Appeal No. 31 of 1950 against a judgment and decree dated 28th February, 1946, of the High Court of Judicature at Lahore in Regular Second Appeal No. 887 of/942. Ram Lal Anand Harbans Lal Mittal, with him for the appellant. Bakshi Tek Chand P.S. Safeer, with him for the re- spondents. 1951. March 2. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.--The plaintiff, Arjan Singh alias Puran, brought a suit in the companyrt of the Subordinate Judge, Jullundur, against Inder Singh, Kartar Singh and five oth- ers, for a declaration that a will executed by the first defendant, Inder Singh, in favour of the second defendant, Kartar Singh, about 14 years ago was null and void as against the plaintiff, who was the first defendants rever- sionary heir after his death. The plaint companyprised a half share of land measuring 395 kanals in the village of Kadduw- al, another half share of land measuring 837 kanals and 11 marlas in the village of Pattar Kalan, and four houses in the latter village. In the pedigree attached to the plaint showing the relationship of the parties, the plaintiff claims Sehja Singh as his 4th ancestor. Jodha Singh and Jai Singh are shown as Sehja Singhs sons. Defendant No. 1, Inder Singh, is Jodha Singhs grandson. It is alleged that the parties are Jar agriculturists governed by the customary law in matters of alienation of ancestral property and succession, and that as a sonless proprietor under this law is number companypetent to make a will in respect of his ancestral property, when there are companylaterals up to the 5th degree, and as the entire property mentioned in the plaint was ancestral, the will made by the first defendant in favour of the second defendant who claimed to have been adopted by the first defendant was invalid and ineffectual. Plaintiff was born on 22nd July, 1919, and was a minor when the will was made, and so the suit was within time. The suit was companytested mainly by the second defendant, Kartar Singh, who set up his adoption, and pleaded that the properties were number at all ancestral as regards the plain- tiff. Defendants 3 to 7 remained ex parte. At the trial, it was admitted that the land situated in Kadduwal was number proved to be ancestral. The Subordinate Judge held that even the land in Pattar Kalan was number shown to be ancestral by the evidence adduced on the side of plaintiff, as it was found that the companymon ancestor, Sehja Singh, had number only two sons called Jodha Singh and Jai Singh, but a third son named Pohlo, and that from the mere fact that the two sons enjoyed the land in equal shares, numberpresumption companyld arise that the property was ancestral and descended by inheritance from the companymon ancestor, when numberhing was known about the share of the third son. He recorded findings in favour of the plaintiff on the issues as to adoption and limitation, but he also held that the plaintiff had numberlocus standi to companytest the validity of the adoption as the period of limitation had expired long before he was born. In the result, the suit was dismissed. The plaintiff preferred an appeal to the companyrt of the District Judge. He filed an application under Order XLI, rule27, and section 151, Civil Procedure Code, for leave to adduce additional evidence. The document he wanted to be taken on record and companysidered, and of which it was alleged that he was number aware at the trial, was a kami beshi statement relating to Mauza Pattar Kalam, which companytained a numbere that the third son, Pohlo, gave up his interest in the ancestral property in favour of his brothers. A companyy of the statement was filed along with the appeal memorandum. The application was naturally opposed on behalf of the companytest- ing defendants who urged that the plaintiff appellant had ample opportunity to produce all his evidence in the lower companyrt to prove that the property was ancestral and that the entry on which reliance was number sought to be placed appeared on the face of it to be a forged one. The District Judge posted the application to be heard along with the appeal itself. On the 17th March 1942, that is, even before he heard the appeal, the District Judge allowed the applica- tion. Referring to the two entries found in the naqsha kami beshi prepared in 1849-50 and the muntakhib asami-war pre- pared in 1852, which stated that Pohlo had relinquished his ancestral share, he observed These two entries taken together, if found genuine, would enable the Court to arrive at a just companyclusion. It is, therefore, in the interest of justice that the additional evidence should be let in. I have taken action under Order XLI, rule 27 1 b , of the Civil Procedure Code. This additional evidence would supply material to remove the defect pointed out in the judgment of the companyrt below, why two of the sons of Sehja Singh came to own equal shares of land of Pattar Kalan in the presence of their 3rd brother. He permitted the parties to call evidence relating to the two documents. Two witnesses were examined on the side of the appellant. Munshi Pirthi Nath is the clerk in the D.Cs office, Jullundur City, and he brought the record of rights for the village Pattar Kalan prepared at the time of the settlement of 1849-50. Munshi Niaz Ahmad is the office Qanungo in the Jullundur Tahsil and he brought the rauntakhib asami-war of the record of rights preserved at the Tahsil Office. Both of them gave evidence about the relevant entries found in the registers. The District Judge reversed the decision of the Subordi- nate Judge and decreed the plaintiffs suit on the strength of this additional evidence. He held that the entries relied on for the appellant were genuine and number forged and that as Pohlo had relinquished his share, the land in Manza Pattar Kalan was ancestral qua the plaintiff. He further found that the suit was number barred and was within time under article 120 of the Indian Limitation Act, but that the adoption set up by the second defendant was number true. As the custom of the district did number permit a proprietor to will away any portion of his property, whether ancestral or self-acquired, the plaintiff had, in the opinion of the District Judge, a right to companytest the will. On the basis of these findings, he decreed the plaintiffs suit in its entirety, including the lands in the village of Kadduwal which were companyceded to be numberancestral and also an area of 4 bighas and 16 biswas of land in Pattar Kalan which, accord- ing to the record of rights, was number in the possession of Jodha Singh and Jai Singh, but with third parties. Kartar Singh, the second defendant, took the matter on second appeal to the High Court. The learned Judges of the High Court held that there was numberhing to show that the land in Pattar Kalan was ancestral and that the District Judge was number justified in admitting additional evidence in the shape of the nabsha kami beshi and the muntakhib asami-war records. They further pointed out that even a superficial observation of the original documents led one irresisti- bly to the companyclusion that the entry regarding Pohlo giving up his share was a subsequent interpolation. They came to the companyclusion, therefore, that the entire land situated in Pattar Kalan was also number-ancestral and that the suit should have been dismissed in toto, inasmuch as under section 7 of Act II of 1920, numberperson is empowered to companytest any alienation of number-ancestral immoveable property on the ground that such alienation is companytrary to custom. In view of this finding, numberother question arose in the case for decision. Leave was, however, granted to appeal to His Majesty in Council and this is how this appeal is number before us. It was strenuously argued by the learned companynsel for the appellant that it was number open to the High Court to inter- fere with the discretion exercised by the District Judge in allowing additional evidence to be adduced and that even assuming that there was an erroneous finding of fact, it must stand final as a second appeal can be entertained only on the specific grounds mentioned in section 100 of the Civil Procedure Code. There is, however, a fallacy underly- ing this argument. The discretion to receive and admit additional evidence is number an arbitrary one, but is a judi- cial one circumscribed by the limitations specified in Order XLI, rule 27, of the Civil Procedure Code. If the additional evidence was allowed to be adduced companytrary to the princi- ples governing the reception of such evidence, it would be a case of improper exercise of discretion. and the additional evidence so brought on the record will have to be ignored and the case decided as if it was number-existent. Under Order XLI, rule 27, it is the appellate companyrt that must require the evidence to enable it to pronounce judgment. As laid down by the Privy Council in the well-known case of Kessowji Issur v.G. I. P. Railway 1 the legitimate occasion for the application of the present rule is when on examining the evidence as ii stands, some inherent lacuna or defect be- companyes apparent, number where a discovery is made, outside the companyrt, of fresh evidence and the application is made to import it and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan 2 . The true test, there fore, is whether the appellate companyrt is able to pronounce 1 34 I. A. 115 2 58 I. A. 254 judgment on the materials before it without taking into companysideration the additional evidence sought to be adduced. In the present case, there is numberhing to show that there was any lacuna or gap which had to be filled up and that the appellate companyrt felt the need for the omission being sup- plied so that it companyld pronounce a judgment to put it the other way round, it does number appear, and it was number stated, that the District Judge felt himself unable to companye to a decision without companyies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the District Judge made up his mind to admit the certified companyies of the kami beshi and muntakhib asami- war registers even before he heard the appeal. The order allowing the appellant to call the additional evidence is dated 17th March, 1942. The appeal was heard on 24th April, 1942. There was thus numberexamination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the companyrt required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the High Court were right in holding that the District Judge was number justified in admitting this evidence under Order XLI, rule 27. Even companyceding that the reception of additional evidence was proper, the District Judge has failed to companysider the inherent infirmities of the entries in the settlement regis- ters relied on. for the appellant and the several criticisms that companyld justly be levelled against them for showing that they were spurious. He took the entries to be genuine. The only reason assigned by the learned Judge for treating the entries to be genuine and number forged appears to be that the records had all along remained in proper custody. As against this rather perfunctory remark we must set the following observations of the learned Judges of the High Court Even a superficial observation of the original docu- ments leads one irresistibly to the companyclusion that this entry was a subsequent interpolation. In naqsha kami beshi there was alrerady a remark in that companyumn and the remark relied upon which has very awkwardly been inserted there is with a different pen and in a different ink. It is even impossible to read it clearly. Further, although there are 2 or 3 other places where the names of Jodha and Jai Singh appear, numbersuch remark has been made against them. It may also be observed that though a companyre- sponding remark appears in the companyumn of sharah lagan in muntakhib asami-war where it is evidently out of place in the companyy retained in the Tahsil Office, there is numbersuch remark in the companyy which is preserved at the Sadar Office. Even otherwise it does number stand to reason why a remark to this effect should have been made in this companyumn. The way in which these entries were said to have been traced also throws a lot of suspicion on their genuineness. We find ourselves in entire agreement with these obser- vations of the learned Judges. It is numberdoubt true that a finding of fact, however erroneous, cannot be challenged in a second appeal, but a finding reached on the basis of additional evidence which ought number to have been admitted and without any companysideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubts about their genuineness, cannot be accepted as a finding that is companyclusive in second ap- peal. If the additional evidence is left out of account, the appellant has practically numberlegs to stand on. There is numberhing to show that the companymon ancestor Sehja Singh was possessed of the Mauza Pattar Kalan properties which are found subsequently entered in the name of two sons in equal shares, with numberhing said about the share of the third son Pholo. As a matter of fact, the pedigree table shows that there was a fourth son called Hamira. If the property had been entered in the registers in the names of all the sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged by the plaintiff. There is numberhing to show that the companymon ancestor owned the land and that his sons got it from him by inheritance in equal shares.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Appeal Criminal Appeal No. 1 of 1950 by special leave from an order of the High Court of Allahabad. P. Asthana, and N.C. Chatterjee K.B. Asthana, with them for the appellant. L. Banerjee Sri Ram, with him for the respondent. 1951. March 19. The judgment of the Court was deliv- ered by KANIA C.J.--This is an appeal by special leave against an order of the Allahabad High Court dismissing the revision petition of the appellant against the order of the Special Magistrate refusing to quash the proceedings on the ground that the prosecution of the appellant inter alia under sections 161 and 165 of the Indian Penal Code was illegal and without jurisdiction in the absence of the sanction of the Government under section 107 of the Criminal Procedure Code and section 6 of the Prevention of Corruption. Act II of 1947 , hereafter referred to as the Act. The material facts are these. In 1947 the appellant held the office of Regional Deputy Iron and Steel Controller, Kanpur Circle, U.P., and was a public servant. The police having suspected the appellant to be guilty of the offences mentioned above applied to the Deputy Magistrate, Kanpur, for a warrant of his arrest on the 22nd of October, 1947, and the warrant was issued on the next day. The appellant was arrested on the 27th of October, 1947, but was granted bail. On the 26th of November, 1947, the District Magistrate cancelled his bail as the Magistrate companysidered that the sureties were number proper. On the 1st of December, 1947, the Government appointed a Special Magis- trate to try offences under the Act and on the 1st December, 1947, the appellant was produced before the Special Magis- trate and was granted bail. The police companytinued their investigation. On the 6th of December, 1948, sanction was granted by the Provincial Government to prosecute the appel- lant inter alia under sections 161 and 165 of of the Indian Penal Code. On the 31st January, 1949, sanction in the same terms was granted by the Central Government. In the meantime as a result of an appeal made by the appellant to the High Court of Allahabad the amount of his bail was reduced and on the 25th of March, 1949, the appellant was ordered to be put up before the Magistrate to answer the charge-sheet submit- ted by the prosecution. On behalf of the appellant it is argued that when the warrant for his arrest was issued by the Magistrate on the 22nd of October, 1947, the Magistrate took companynizance of the offence and, as numbersanction of the Government had been obtained before that day, the initiation of the proceedings against him, which began on that day without the sanction of the Government, was illegal. It is argued that the same proceedings are companytinuing against him and therefore the numberice to appear before the Magistrate issued on 25th March, 1949, is also illegal. In support of his companytention that the Magis- trate took companynizance of the offences on 22nd March, 1947, he relies principally on certain observations in Emperor v. Sourindra Mohan Chuckerbutty 1 . It is therefore necessary to determine when the Magis- trate took companynizance of the offence. The relevant part of section 190 of the Criminal Procedure Code runs as follows-- 190. 1 Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate and any other Magistrate specially empowered in this behalf, may take companynizance of any offence-- a upon receiving a companyplaint of facts which companystitute such offence b upon a report in writing of such facts made by any police officer c upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been companymitted It is clear from the wording of the section that the initiation of the proceedings against a person companymences on the companynizance of the offence by the Magistrate under one of the three companytingencies mentioned in the section. The first companytingency evidently is in respect of number-cognizable of- fences as defined in the Criminal Procedure Code on the companyplaint of an aggrieved person. The second is on a police report, which evidently is the case of a companynizable offence when the police have companypleted their investigation and companye to the Magistrate for the issue of a process. The third is when the Magistrate himself takes numberice of an offence and issues the process. It is important to remember that in respect of any companynizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an I.L.R. 37 Cal. 412. order from the Magistrate. Under section 167 b of the Criminal Procedure Code the police have of companyrse to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of companynizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate. It may also be numbericed that the Magistrate who makes the order of remand may be one who has numberjurisdiction to try the case. The offences for which the appellant is charged are under the Criminal Procedure Code number-cognizable and there- fore if the matter fell to be determined only on the provi- sions of the Criminal Procedure Code the appellant companyld number be arrested without an order of the Magistrate. The posi- tion however is materially altered because of section 3 of the Act which runs as follows-- An offence punishable under section 161 or section 165 of the Indian Penal Code shall be deemed to be a companyniz- able offence for the purposes of the Code of Criminal Proce- dure, 1898, numberwithstanding anything to the companytrary company- tained therein. Provided that a police officer below the rank of Deputy Superintendent of Police shall number investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant. It therefore follows that for the Prevention of Corrup- tion Act, offences under sections 161 and 165 of the Indian Penal Code become companynizable, numberwithstanding what is pro- vided in the Criminal Procedure Code. The proviso to sec- tion 3 of the Act puts only two limitations on the powers of the police in companynection with the investigation relating to those offences under the Act. They are 1 that the inves- tigation should be companyducted by an officer number below the rank of a Deputy Superintendent of Police unless a Magistrate of the first class otherwise orders and 2 if an arrest has to be made an order of the Magistrate has to be obtained. The important point to be borne in mind is that the order of the Magistrate, which has to be obtained, is during the time the police is investigating the case and number when they have companypleted their investigation and are initiating the pro- ceedings against the suspected person under section 190 of the Criminal Procedure Code. The order which may be applied for and made during the police investigation by virtue of section 3 of the Act is therefore before the Magistrate has taken companynizance of the offence under section 6 of the Act or section 190 of the Criminal Procedure Code. That appears to us to be the result of reading sections 3 and 6 of Act II of 1947 and section 190 of the Criminal Procedure Code read with the definition of companynizable offence in the Code. The argument of the appellant is that when the Magis- trate issued the warrant in October, 1947, he did so on taking companynizance of the offence under section 161 or 165 of the Indian Penal Code under section 190 of the Criminal Procedure Code. It was companytended that without such companyni- zance the Magistrate had numberjurisdiction to issue any proc- ess as that was the only section which permitted the Magis- trate to issue a process against a person suspected of having companymitted an offence. In our opinion having regard to the wording of section 3 of the Act the assumption that the Magistrate can issue a warrant only after taking companyni- zance of an offence under section 190 of the Criminal Procedure Code is unsound. The proviso to section 3 of the Act expressly companyers the case of a Magistrate issuing a warrant for the arrest of a person in the companyrse of investi- gation only and on the footing that it is a companynizable offence. Section 3 of the Act which makes an offence under section 161 or 165 of the Indian Penal Code companynizable has provided the two safeguards as the proceedings are companytem- plated against a public servant. But because of these safe- guards it does number follow that the warrant issued by the Magistrate under section 3 of the Act is after companynizance of the of- fence, and number during the companyrse of investigation by the police in respect of a companynizable offence. The only effect of that proviso is that instead of the police officer ar- resting on his own motion he has got to obtain an order of the Magistrate for the arrest. In our opinion, it is wrong from this feature of section 3 of the Act alone to companytend that because the warrant is issued it must be after the Magistrate has taken companynizance of it and the Magistrates action can be only under section 190 of the Criminal Proce- dure Code. The material part of section 197 of the Criminal Procedure Code provides that where any public servant who is number removable from his office save with the sanction of Government is accused of an offence alleged to have been companymitted by him while acting or purporting to act in the discharge of his official duty, numbercourt shall take companyni- zance of such offence except with the previous sanction of the appropriate Government. This section read as following section 190 shows that the word companynizance in this section indicates the stage of initiation of proceedings against a public servant. Sections 190 to 199-B of the Criminal Proce- dure Code are grouped together under the caption Initiation of proceedings. The sections dealing with the stage of in- vestigation by the police in the case of companynizable offences are quite different. Under section 6 of the Act it is pro- vided that numbercourt shall take companynizance of an offence punishable under section 161 or 165 of the Indian Penal Code alleged to have been companymitted by a public servant except with the previous sanction of the appropriate Government. Reading sections 197 and 190 of the Criminal Procedure Code and section 6 of the Act in the light of the wording of the proviso to section a, it is therefore clear that the stage at which a warrant is asked for under the proviso to section 3 of the Act is number on companynizance of the offence by the Magistrate as companytemplated by the other three sections. Learned companynsel for the appellant relied on some observa- tions in Emperor v. Sourindra Mohan Chuckerbutty 1 , in respect of the interpretation of the word companynizance. In that case, on the 24th April, 1909, a dacoity took place at N and on the same day the police sent up a report of the occurrence to the Sub-divisional officer of Diamond Harbour. On the 2nd September one of the accused was arrested and he made a companyfession on the 18th October. The case was subse- quently transferred by the District Magistrate of Alipore- to his own file and on the 20th January, 1910, an order under section 2 of the Criminal Law Amendment Act XIV of 1908 was issued in the following terms-- Whereas the District Magistrate of the 24-Parganas has taken companynizance of offences under ss. 395 and 397, I.P.C., alleged to have been companymitted by the persons accused in the case of Emperor Lalit Mohan Chuckerbutty and others and whereas it appears to the Lieutenant-Governor of Bengalthe provi- sions of Part 1 of the Indian Criminal Law Amendment Act should be made to apply to the proceedings in respect of the said offences, number, therefore, the Lieutenant Governor directsthat the provisions of the said Part shall apply to the said case. S surrendered on the 24th of January and was arrested by the police and put before the Joint Magis- trate of Alipore who remanded him to Jail. Applications for bail on his behalf were made but they were dismissed. The Sessions Judge was next moved unsuccessfully for bail under section 498 of the Criminal Procedure Code. S then moved the High Court for a Rule calling upon the District Magistrate to show cause why bail should number be granted on the grounds 1 that numberorder had been made applying Act XIV of 1908 and 2 that there did number appear any sufficient cause for further inquiry into the guilt of S. The first companytention rested on the assertion that the Magistrate had number taken companynizance of the offence of dacoity on the 20th of January. The learned Judges pointed out that the argument was ad- vanced because the legal adviser of S had 1 1. L.R. 37 Cal. 412. SUPREME COURT REPORTS numberopportunity to see the record of the case. On the facts it was clear that the Magistrate had taken companynizance of the offence on the 20th of January. The observations taking companynizance does number involve any formal action or indeed action of any kind but occurs as soon as a. magistrate as such applies his mind to the suspected companymission of an offence have to be read in the light of these facts. As numbericed above, the magistrate had expressly recorded that he had taken companynizance of the case and thereupon the provi- sions of the Criminal Law Amendment Act were made applicable to the case. The question argued before the High Court was in respect of the power of the High Court to grant bail after the provisions of the Criminal Law Amendment Act were applied to the case. In our opinion therefore that decision and the observations therein do number help the appellant. In Gopal Marwari v. Emperor 1 , it was observed that the word companynizanceis used in the Code to indicate the point when the Magistrate or a Judge first takes judicial numberice of an offence. it is a different thing from the initiation of proceedings. It is the companydition precedent to the initiation of proceedings by the Magistrate. The companyrt numbericed that the word companynizanceis a word of somewhat indefinite import and it is perhaps number always used in exactly the same sense. After referring to the observations in Emperor v. Sou- rindra Mohan Chuckerbutty 2 , it was stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee 3 as follows -- What is taking companynizance has number been defined in the Criminal Procedure Code and I have numberdesire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken companynizance of any offence under section 190 1 a , Criminal Procedure Code, he must number only have applied his mind to the companytents of the petition but he must have done so for the purpose A.I.R. 1943 Pat. 245. 3 A.I.R. 1950 Cal. 437. I. L. R. 37 Cal. 412. of proceeding in a particular way as indicated in the subse- quent provisions of this Chapter--proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind number for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156 3 , or issuing a search warrant for the purpose of the investiga- tion, he cannot be said to have taken companynizance of the offence. In our opinion that is the companyrect approach to the question before the companyrt. Moreover, in the present case on the 25th March, 1949, the Magistrate issued a numberice under section 190 of the Criminal Procedure Code against the appellant and made it returnable on the 2nd of May, 1949. That clearly shows that the Magistrate took companynizance of the offence only on that day and acted under section 190 of the Criminal Procedure Code. On the returnable date the appellant companytended that the sanction of the Central Government was void because it was number given by the Government of the State. On the deci- sion going against him he appealed to the High Court and to the Privy Council.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Appeal Civil Appeal No. 32 of 1950 , from a judgment and order of the High Court of Judicature at Madras dated 5th January, 1948, reversing an order of the District Judge of East Tanjore in an applica- tion under s. 47 and O. XXI, r. 2, of the Civil Procedure Code. K. Kesava Aiyangar T. K. Sundararaman, with him for the appellants. Ramachandra Aiyar for the respondent. 1951. March 5. The judgment of the Court was delivered by MUKHERJEA J.--This appeal is on behalf of the decree- holders in a mortgage suit and it is directed against a judgment and order of a Division Bench of the Madras High Court dated January 5, 1948, by which the learned Judges reversed, on appeal, an order of the District Judge of East Tanjore made in a proceeding under section 47 and Order 21, rule 2, of the Civil Procedure Code. The material facts are number in companytroversy and may be briefly stated as follows. The appellants before us are the representatives of three original plaintiffs who, as mortga- gees, instituted a suit being O.S. No. 30 of 1934 in the Court of the District Judge, East Tanjore, for enforcement of a mortgage, against the present respondent, who was defendant No. 1 in the suit, and six other persons. The mortgage bond, upon which the suit was brought, was executed by defendant No. 1 for himself and his minor undivided brother, the defendant No. 2, and also as authorised agent on behalf of defendants 3 to 7 who were interested in a joint family business. The suit was companytested by all the defendants except defendant No. 1, against whom it proceeded ex parte, and there was a preliminary decree passed on May 15,1937, by which a sum of RS. 1,08,098 was directed to be paid by defendant No.1 and defendants 3 to 7, in default of which the plaintiffs were declared entitled to apply for a final decree for sale of the mortgaged properties, and the suit was dismissed against defendant No. 2. Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7--being Appeal No. 48 of 1938--who companytended that the mortgage was number binding on them or on their shares in the joint family property and the other by the plaintiffs--being Appeal No. 248 of 1938 --who chal- lenged the propriety of the judgment of the trial judge in so far as it dismissed their claim against defendant No. 2. During the pendency of these appeals, the Madras Agricultur- ists Relief Act Act IV of 1938 came into force and appli- cations were made by defendants 2 to 7 to the High Court, praying that in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the Act. The defendant No. 1, who did number appear at any stage of the proceeding, did number make any such application. The High Court forwarded these applications to the lower companyrt for enquiry into the matter and for return, with its finding on the question as to whether the applicants were agriculturists, and if so, to what extent, the decretal dues should be scaled down. The District Judge, after making enquiries, submitted a finding that the applicants were agriculturists and that the debt, if scaled down, would amount to Rs. 49,255 with interest thereupon at 6 per annum from 1st of October, 1937, exclu- sive of companyts. On receipt of this finding, the appeals were set down for final hearing and by their judgment dated March 23, 1942, the learned Judges of the High Court accepted the finding of the companyrt below and held that defendants 2 to 7 were entitled to have the debts scaled down but as numberapplication had been made on behalf of defendant No. 1, he was held entitled to numberrelief under the Act. A decree was drawn up in accordance with the judgment. The amount due by defendants 2 to 7 was stated to be Rs. 49,255 with inter- est thereon at 6 per annum while, so far as defendant No. 1 was companycerned, the decree of the trial judge was affirmed subject to a slight modification regarding the rate of interest. The defendant No. 1 thereupon filed an applica- tion in the companyrt of the District Judge, East Tanjore, claiming relief under the Agriculturists Relief Act alleg- ing that he too was an agriculturist and hence entitled to the benefits of the Act. The application was dismissed on February 25, 1943, on the ground that as the decree had already been passed by the High Court definitely negativing his claim to any relief under the Agriculturists Relief Act, such application was number entertainable by the lower companyrt. The next step taken by the defendant No. 1 was to file an application in the High Court itself, praying for setting aside the ex parte decree which excluded him from the benefits of Act IV of 1938. This application was re- jected by the High Court on December 13, 1943. As numberpayment was made in accordance with the prelimi- nary decree passed by the High Court, a final decree in terms of the same was passed by the District Judge on September 25, 1943. Proceedings for execution of this final decree were started on August 16, 1944, in E.P. 2 of 1945 of the companyrt of the District Judge, East Tanjore. Two lots of the mortgaged properties were put up to sale and purchased by the decree-holders for a total sum of Rs. 12,005 on July 15, 1946. The sale was company- firmed on August 17, 1946, and part satisfaction of the decree was entered for that amount. Apparently, certain terms of settlement were thereafter offered by the judgment-debtors. The estate of the decree-holders was in the hands of the Receivers and from the Receivers report dated January 10, 1947, it appears that the Receivers agreed with the sanction of the companyrt, to receive Rs. 24,000 only from or on behalf of defendant No. 2 and release him and his share of the mortgaged property from the decretal charge. Likewise, the Receivers were agreeable to receive Rs. 48,000 from defendants 3 to 7 and to release them and their proper- ties from the decretal debt. With regard to defendant No. 1, the proposal, which seems to have been accepted by the Receivers, was that the amount payable by him under the decree was to be settled at Rs. 37,500 and one Yacob Nadar would pay this amount on his behalf on companysideration of the decree against defendant No. 1 being assigned to him by the Receivers excluding the rights of the latter to execute the decree against defendants 2 to 7 as scaled down by the High Court. The records of the execution case show that on January 20, 1947, a sum of Rs. 24,000 was paid on behalf of defend- ant No. 2 and his properties, namely, lots 2 and 6 were exonerated from the decree. On January 27, 1947, a sum of Rs. 30,000 was paid by defendants 3 to 7 and on February 17 following, they paid a further sum of Rs. 18,610-12-0. These three amounts aggregated to Rs. 72,610-12-0. Nothing was done towards the payment of the sum of Rs. 37,500 by defend- ant No. 1 or by Yacob Nadar, but on March 6, 1947, the defendant No. 1 deposited in companyrt a sum of Rs. 3,215 and put in a petition under section 47 and Order 21, rule 2, Civil Procedure Code, praying that as the amount thus deposited together with the payments already made companypletely wiped off the amount due under the decree as scaled down by the High Court in favour of defendants 2 to 7, full satisfaction of the decree might be recorded exoner- ating the mortgaged properties and also the defendant No. 1 himself from any further liability in respect of the decre- tal debt. The position taken up by defendant No. 1, in substance, was that the mortgage debt was one and indivisible and even though different amounts were mentioned as payable by two groups of defendants in the decree, the decree-holders were bound under the terms of the decree to release the entire mortgaged property even on payment of the amount directed to be paid by defendants 2 to 7. In other words, even though the defendant No. 1 s application for relief under the Madras Agriculturists Relief Act was expressly rejected and he was held liable for the entire amount of the mortgage debt, he would still be entitled to avail himself of the benefit of the scaling down of the decree in favour of defendants 2 to 7. This companytention was negatived by the District Judge, but was accepted by the High Court on appeal, who allowed the application of defendant No. 1 and directed that the companyrt below should enter up full satisfac- tion of the mortgage decree. It is against this judgment that the decree-holders have companye up on appeal to this companyrt. The learned Judges of the High Court observed at the outset that in the working of the Madras Agriculturists Relief Act alongside the provisions of the Transfer of Property Act several curious and numberel situations had arisen for which it was number possible always to find logical solu- tions. They then proceeded to discuss the various decisions of the Madras High Court which had a bearing on this point and the companyclusion which they reached may be summed up in their words as follows-- It is numberdoubt somewhat odd that when a person is declared liable to pay a larger amount he should on payment or tender of a smaller amount get his property exonerated from liability but this is inherent in and arises out of the proposition established by the decisions already dealt with, namely, that by the application of the principle of unity and indivisibility of a mortgage decree a number- agriculturist can indirectly get relief which he cannot directly get. It seems to us that the High Courts approach to the case has number been a proper one and the companyclusion it has reached cannot be supported in law. The learned Judges appear to have overlooked the fact that they were sitting only as an executing companyrt and their duty was to give effect to the terms of the decree that was already passed and beyond which they companyld number go. It is true that they were to interpret the decree, but under the guise of interpretation they companyld number make a new decree for the parties. As said above, the mortgage decree was scaled down by the High Court in favour of defendants 2 to 7 only and the amended decree directs that the said defendants do pay into companyrt the sum of Rs. 49,255 with certain interest and companyts on payment of which the plaintiff was to bring into companyrt all the documents in his power or possession relating to the mortgage and reconvey or retransfer the property if so required. So far as defendant No. 1 is companycerned, the decree states in clear and express terms that he is to pay the sum of Rs. 1,05,000 and odd and it is on payment of this sum only that redemption would be allowed of the mortgaged property. If the decision of the High Court is companyrect, this direction in the decree would be manifestly unmeaning and without any effect. What is said, however, on behalf of the respondent is that he is number claiming any benefit in viola- tion of this clause. By virtue of the decree against defend- ants 2 to 7 being satisfied, the entire mortgaged property would, by force of the very decree, be freed from the debt and if the respondent gets any benefit thereby, such benefit would be merely incidental or companysequential in its nature. The High Court agreed in substance with this companytention and based its decision entirely upon the view that by opera- tion of the principle of indivisibility of the mortgage decree, a number-agriculturist debtor, whose debt has number been scaled down under the provisions of the Agriculturists Relief Act, may indirectly get the benefit of the relief which has been granted to his agriculturist companydebtor under the provisions of the Act. The general law undoubtedly is that a mortgage decree is one and indivisible and exceptions to this rule are admitted in special circumstances where the integrity of the mortgage has been disrupted at the instance of the mortgagee himself e.g., when there is severance of the interests of the mort- gagors with the companysent of the mortgagee or a portion of the equity of redemption is vested in the latter. It is to be numbered, however, that the Madras Agriculturists Relief Act is a special statute which aims at giving relief number to debtors in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the Act. To this extent it trenches upon the general law and section 7 of the Act expressly provides that numberwithstanding any law, custom, companytract or decree of companyrt to the companytrary, all debts payable by an agriculturist at the companymencement of this Act shall be scaled down in accordance with the provi- sions of this chapter. Thus in case of a mortgage debt when the loan has been advanced to more than one person, if one of the debtors happens to be an agriculturist while others are number, the agriculturist debtor would certainly be enti- tled to have his debts scaled down under the provisions of the Act in spite of the provision of general law which prevents a mortgagor from denying the liability of the interest which he owns in the mortgaged property to satisfy the entire mortgage debt. There is, therefore, numberhing wrong in law in scaling down a mortgage decree in favour of one of the judgment debtors, while as regards others the decree is kept intact. The Madras High Court expressly adopted this view in Rainier v. Srinivasiah 1 , which is one of the 1 1940 2 M. 39 decisions referred to in the judgment appealed from. The fact that in that case it was a puisne mortgagee and number a mortgagor whose application for relief under section 19 of the Madras Agriculturists Relief Act was allowed, does number make any difference in principle. The puisne mortgagee was made a party defendant in the suit instituted by the first mortgagee to recover his dues and as the puisne mortgagee was liable to pay the debt due to the first mortgagee, he was held to be a debtor and hence entitled to claim the benefit of section 19 of the Agriculturists Relief Act. It may be mentioned here that section 14 of the Madras Agricul- turists Relief Act which provides for separation of a debt incurred by a Hindu family, some members of which are agri- culturists while others are number, affords a clear indication that the splitting up of a debt in such circumstances is quite in accordance with the scheme of the Act. The catena of cases upon which the learned Judges of the High Court relied in support of their decision seems to proceed on a different principle altogether and whether that principle is right or wrong, it has, in our opinion, numberapplication to a case like the present. In this class of cases, the mortgagors were agriculturists and hence entitled to have their debts scaled down under the Agriculturists Relief Act, but there were purchasers of the mortgaged property who were number agriculturists, and the question arose whether a purchaser companyld get the benefit of the debt scaled down in favour of the original debtors. This question was answered in the affirmative. The reason for taking this view was thus given by the learned Judges in Arunachalam Pillai Seetharam 1 , where the purchase of the equity of redemp- tion was at an execution sale-- When the 12th respondent purchased the properties in companyrt auction, he took them subject to the burden of the appellants mortgage and if the burden is by reason of the provisions of s. 8 refer.red to above reduced without pay- ment, the purchase proves to that 1 1941 1 M.L.J. 561 extent an advantageous one, and there is numberhing in the Act to deprive him of the fruits of his. lucky purchase, even though he is number an agriculturist. He gets the benefit of the scaling down number because the provisions of the Act apply to him, for obviously they do number, but because such benefit is a necessary incident of his purchase under the general law and the Act does number deprive him of it. A somewhat different reason was assigned in Pachigola v. Karatam 1 which however was a case where a portion of the. equity of redemption was transferred to a purchaser by a private sale. It was held that the companyrt by allowing the mortgagor to redeem the mortgage sale was number companyferring on the purchaser, a number-agriculturist, the benefit of the Act, as he would have to refund to his vendor the purchase money reserved with him which as a result of the scaling down he would number have to pay to the mortgagee. In both these cases, the question was raised in the proceeding for scaling down of the decree under the provisions of the Agricultur- ists Relief Act itself and number at the execution stage. There is however the case of Subramanian v. Ramachandra 2 , where the question arose in companyrse of execution pro- ceedings and a purchaser of a portion of the equity of redemption was held to be entitled to the benefit of the scaled down decree in favour of the mortgagors, although his own application for relief under the Act was refused. It is number necessary for purposes of this case to express any opinion as to the companyrectness or otherwise of these deci- sions. It is enough to say that the ratio decidendi in all these cases is number applicable to the case before us. In the present case there is numberpurchaser of the mortgaged property and companysequently there is numberquestion of the pur- chaser, who is number an agriculturist himself, being entitled to the benefit of a decree which has been scaled down in favour of the agriculturist mortgagor. Here the judg- ment-debtors are the mortgagors themselves and according to the plain provisions of the Agriculturists Relief Act there companyld 1 1949 1 M.L.J. 506. 2 1946 2 M. L. J. 429. number be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is number given to his companydebtors who do number fulfil that description. Some exception companyld undoubtedly be taken to the form and wording of the decree that has been passed in the present case. The decree, in our opinion, should number only have stated the amount payable by defendant No. 1 and that by defendants 2 to 7 separately but should have expressly directed ,that on payment of the amount directed to be paid by defendants 2 to 7 their interest alone in the mortgaged property would number be liable to be sold. The further direc- tion should have been that in case they did number pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mortgage debt for which defendant No. 1 was made liable. It is true that the decree companytains numbersuch clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implica- tions. The-subsequent agreement between the parties arrived at in companyrse of the execution proceedings by which the decreeholders agreed to release the interest of defendant No.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION.--Cases Nos. 270 an d 27 1 of 1951, Appeals under Art. 132 1 of the Constitution of India from the Judgment and Order dated 27th July, 1950, of the Madras High Court in certain applications under Art. 226 of the Constitution for protection of the fundamental rights of the petitioners under Art. 15 1 and Art. 29 2 of the Constitution and praying for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras and all officers and subordinates thereof from en- forcing, observing, maintaining or following the order of the Government known as the Communal G.O. which laid down rules to be observed by the selection companymittee in the matter of admission of students to the Medical and Engineer- ing Colleges of the State. K.T. Chari, Advocate-General, Madras R. Ganapathy Iyer, with him for the appellant. Aliadi Krishnaswami Aiyar Alladi Kuppuswami Aiyar, with him for the respondents. 1951, April 9. The Judgment of the Court was delivered by DAS J. --This judgment companyers both Case No. 9.70 of 1951 State of Madras v. Srimathi Champakam Dorairajan and Case No. 271 of 1951 State of Madras v. C.R. Srinivasan which are appeals from the judgment passed by the High Court of Judicature at Madras on July 27, 1950, on two separate applications under article 226 of the Constitution companyplain- ing of breach of the petitioners fundamental right to get admission into educational institutions maintained by the State. The State of Madras maintains four Medical Colleges and only 330 seats are available for students in those four Colleges. Out of these 330 seats, 17 seats are reserved for students companying from outside the State and 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are apportioned between four distinct groups of districts in the State. Likewise, the State of Madras maintains four Engineer- ing Colleges and the total number of seats available for students in those Colleges are only 395. Out of these, 21 seats are reserved for students companying from outside the State, 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are appor- tioned between the same four distinct groups of districts. For many years before the companymencement of the Constitu- tion, the seats in both the Medical Colleges and the Engi- neering Colleges so apportioned between the four distinct groups of districts used to be filled up according to cer- tain proportions set forth in what used to be called the Communal G. O. Thus, for every 14 seats to be filled by the selection companymittee, candidates used to be selected strictly on the following basis-- Non-Brahmin Hindus 6 Backward Hindus 2 Brahmins 2 Harijans 2 Anglo-Indians and Indian Christians 1 Muslims 1 Subject to the aforesaid regional and what have been claimed to be protective provisions selection from among the applicants from a particular companymunity from one of the groups of districts used to be made on certain principles based on academic qualifications and marks obtained by the candidates. In the case of the Medical Colleges, number less than 20 per cent. of the total number of seats available for students of the State were filled by women candidates separately for each region, it being open to the selection companymittee to admit a larger number of woman candidates in any region if qualified candidates were available in that region and if they were eligible for selection on merits visa vis the men candidates in accordance with the general principles governing such admissions as laid down in those rules. It appears that the proportion fixed in the old Communal G.O. has been adhered to even after the companymencement of the Constitution on Janu- ary 26, 1950. Indeed, G.O. No. 2208, dated June 16, 1950, laying down rules for the selection of candidates for admis- sion into the Medical Colleges substantially reproduces the companymunal proportion fixed in the old Communal G.O. On June 7, 1950, Srimathi Champakam Doratrajan made an application to the High Court of Judicature at Madras under article 226 of the Constitution for protection of her funda- mental rights under article 15 1 and article 29 2 of the Constitution and prayed for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras and all officers and subordinates thereof from en- forcing, observing, maintaining or following or requiring the enforcement, observance, maintenance or following by the authorities companycerned of the numberification or order generally referred to as the Communal G.O. in and by which admissions into the Madras Medical Colleges were sought or purported to be regulated in such manner as to infringe and involve the violation of her fundamental rights. From the affidavit filed in support of her petition, it does number appear that the petitioner had actually applied for admission in the Medical College. She states that on inquiry she came to know that she would number be admitted to the College as she belonged to the Brahmin companymunity. No objection, however, was taken to the maintainability of her petition on the ground of absence of any actual application for admission made by her. On the companytrary, we have been told that the State had agreed to reserve a seat for her, should her application before the High Court succeed. In the peculiar circumstances, we do number companysider it necessary to pursue this matter any further. But we desire to guard ourselves against being understood as holding that we approve of a person who has number actually applied for admission into an educational institution companying to Court companyplaining of infringement of any fundamental right under article 29 2 . The High Court by its judgment deliv- ered on July 27, 1950, allowed this application of Srimathi Champakam Dorairajan. The State of Madras has number companye up before us on appeal which has been numbered Case No. 270 of 1951. Sri Srinivasan who had actually applied for admission into the Government Engineering College at Guindy, filed a petition praying for a writ of mandamus or any other writ restraining the State of Madras and all officers thereof from enforcing, observing, maintaining or following the Communal G.O. in and by which admission into the Engineering College was sought to be regulated in such manner as to infringe and involve the violation of the fundamental right of the petitioner under article 15 1 and article 29 2 of the Constitution. In the affidavit filed in support of his petition, the petitioner has stated that he had passed the Intermediate Examination held in March, 1950, in Group 1, passing the said examination in the first class and obtain- ing marks set out in paragraph 1 of his affidavit. It will appear that in the optionals which are taken into companysidera- tion in determining the academic test for admission in the Engineering College the petitioner Srinivasan secured 369 marks out of a maximum of 450 marks. The High Court has by the same judgment allowed this application also and the State has filed an appeal which has been numbered 271 of 1951. The learned companynsel appearing for the State of Madras companyceded that these two applicants would have been admitted to the educational institutions they intended to join and they would number have been denied admission if selections had been made on merits alone. Article 29 which occurs in Part III of the Constitution under the head Cultural and Educational Rights runs as follows Any section of the citizens residing in the territo- ry of India or any part thereof having a distinct language, script or culture of its own shall have the right to company- serve the same. No citizen shall be denied admission into any educa- tional institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. It will be numbericed that while clause 1 protects the language, script or culture of a section of the citizens, clause 2 guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in clause 2 is a right which an individual citizen has as a citizen and number as a member of any companymunity or class of citizens. This right is number to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has number the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to ,complain of an infraction of his fundamental right under this article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right. The learned Advocate-General appearing for the State companytends that the provisions of this article have to be read along with other articles in the Constitution. He urges that article 46 charges the State with promoting with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation. It is pointed out that although this article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions company- tained in that Part are number enforceable by any Court, the principles therein laid down are nevertheless fundamental for the governance of the companyntry and article 37 makes it obligatory on the part of the State to apply those princi- ples in making laws. The argument is that having regard to the provisions of article 46, the State is entitled t0 maintain the Communal O. fixing proportionate seats for different companymunities and if because of that Order, which is thus companytended to be valid in law and number in violation of the Constitution, the petitioners are unable to get admissions into the education- al institutions, there is numberinfringement of their fundamen- tal rights. Indeed, the learned Advocate-General of Madras even companytends that the provisions of article 46 override the provisions of article 29 2 . We reject the above numbered companytentions companypletely. The directive principles of the State policy, which by article 37 are expressly made unen- forceable by a Court, cannot override the provisions found in Part III which, numberwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under article 32. The chapter of Fundamental Rights is sacrosanct and number liable to be abridged by any Legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The direc- tive principles of State policy have to companyform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the companyrect way in which the provisions found in Parts III and IV have to be understood. However, so long as there is numberinfringement of any Fundamental. Right, to the extent companyferred by the provisions in Part 1II, there can be numberobjection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limita- tions companyferred on the State under different provisions of the Constitution. In the next place, it will be numbericed that article 16 which guarantees the fundamental right of equality of oppor- tunity in matters of public employment and provides that numbercitizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State also includes a specif- ic clause in the following terms- Nothing in this article shall prevent the State from making, any provision for the reservation of appoint- ments of posts in favour of any backward class of citizens which, in the opinion of the State, is number adequately represented in the services under the State. If the arguments founded on article 46 were sound then clause 4 of article 16 would have been wholly unnecessary and redundant. Seeing, however, that clause 4 was inserted in article 16, the omission of such an express provision from article 29 cannot but be regarded as significant. It may well be that the intention of the Constitution was number to introduce at all companymunal companysiderations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reser- vation of such appointments for backward classes may under those circumstances be understood. That companysideration, however, was number obviously companysidered necessary in the case of admission into an educational institution and that may well be the reason for the omission from article 29 of a clause similar to clause 4 of article 16. Take the case of the petitioner Srinivasan. It is number disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non-Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner Srinivasan will number be admitted into any ,of them. What is the reason for this denial of admission except that he is a Brahmin and number a Non-Brahmin. He may have secured higher marks than the Anglo-Indian and Indian Chris- tians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last mentioned companymunities for numberfault of his except that he is a Brahmin and number a member of the aforesaid companymunities. Such denial of admis- sion cannot but be regarded as made on ground only of his caste. It is argued that the petitioners are number denied admis- sion only because they are Brahmins but for a variety of reasons, e.g., a they are Brahmins, b Brah- mins have an allotment of only two seats out of 14 and c the two seats have already been filled up by more meritori- ous Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are companycerned but this line of argument can have numberforce when we companye to companysider the seats reserved for candidates of other companymunities, for, so far as those seats are companycerned, the petitioners are denied admission into any of them number on any ground other than the sole ground of their being Brahmins and number being members of the companymunity lot whom those reservations have been made. The classification in the Communal G.O. proceeds on the basis of religion, race and caste. In our view, the classi- fication made in the Communal G.O.

Case appeal was rejected by the Supreme Court

Patanjali Sastri, J. These three petitions have been presented to this Court under article 32 of the Constitution of India praying for the issue of writs in the nature of habeas companypus for release of the petitioners who are respectively the President, Vice-President and Secretary of the Hindu Mahasabha of the Delhi State. The petitioners were arrested on 22nd August, 1950, by order of the District Magistrate, Delhi, made under sub-section 2 read with clause a sub-clause i of sub-section 1 of section 3 of the Preventive Detention Act, 1950 hereinafter referred to as the Act . The order ran as follows Whereas I, Rameshwar Dayal, District Magistrate, Delhi, am satisfied that with a view to the maintenance of public order in Delhi it is necessary to do so, I Rameshwar Dayal, District Magistrate, Delhi, hereby order the detention of under sub-section 2 of section 3 1 a ii of the Preventive Detention Act. Given under my seal and signature. The grounds of detention companymunicated to the petitioners were in identical terms, save as to the dates on which the speeches were said to have been made, and read thus In pursuance of section 7 of the Preventive Detention Act you are hereby informed that the grounds on which the detention order dated 22nd August, 1950, has been made against you are that your speeches generally in the past and particularly on August, 1950, at public meetings in Delhi has been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order. The petitioners applied to the High Court at Simla for similar relief under article 226 of the Constitution, but the petitions were dismissed. It appears to have been companytended before the learned Judges Khosla and Falshaw JJ. who heard those petitions that although this Court held in A. K. Gopalan v. The State of Madras 1950 S.C.R. 88 that the provisions of section 3 of the Act were companystitutional and valid, detention under that section was ultra vires and illegal where, as here, it was based on the ground of making speeches prejudicial to the security of the State or the maintenance of public order. This was said to be the result of the later pronouncements of this Court in Brij Bhushan and Another v. The State of Delhi 1950 S.C.R. 605 and Romesh Thappar v. The State of Madras 1950 S.C.R. 594. This companytention was rejected on the ground that numbersuch proviso companyld be read into section 3 on the strength of the later decisions referred to above which related to a different point, viz., the scope of authorised restrictions on the right to freedom of speech companyferred by article 19 1 . Falshaw J. with whom Khosla J. companycurred , proceeded, however, to draw attention to what he companyceived to be an anomaly - while a State Government should number be allowed to interfere with the freedom of the press by way of stopping the circulation of newspapers or by per-censorship of news, the Government should, for the same object, be entitled to place a person under preventive detention which is even greater restriction on personal liberty than any restriction on a newspaper ever companyld be. This distinction appeared to the learned Judge to be illogical, and he thought that there was an apparent companyflict between the decisions of this Court in Gopalans case 1950 S.C.R. 88 and the other cases, which companyld only be resolved by this Court. It would be well the learned Judge companycluded if the point were raised in this form at an early date in the Supreme Court. No wonder that, after this encouragement, the petitioners have preferred these petitions raising the same companytention before us. On behalf of the petitioners Mr. Hardy submitted that the provisions of the Act should number be used to prevent a citizen from making speeches though they might be companysidered to be prejudicial to the maintenance of public order, for maintenance of public order is number a purpose for which imposition of a restriction on freedom of speech is authorised by the Constitution, as held by this Court in the Cross-Roads 1950 S.C.R. 594 and the Organizer 1950 S.C.R. 605 cases. It is true that in those cases this Court decided by a majority of 5 to 1 that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation of clause 2 of article 19 although the restrictions which it seeks impose may have been companyceived generally in the interests if public order. But it will be numbericed that the statutory provisions which were there declared void and unconstitutional authorised the imposition, in the one case, of a ban on the circulation of a newspaper and, in the other, of pre-censorship on the publication of a journal. No question arose of depriving any person of his personal liberty by detaining him in custody, whereas here, as in Gopalans case 1950 S.C.R. 88, the Court is called upon to adjudge the legality of the detention of the petitioners with a view to prevent them from making speeches prejudicial to the maintenance of public order. Although personal liberty has a companytent sufficiently companyprehensive to include the freedoms enumerated in article 19 1 , and its deprivation would result in the extinction of those freedoms, the Constitution has treated these civil liberties as distinct fundamental rights and made separate provisions in article 19 and articles 21 and 22 as to the limitations and companyditions subject to which alone they companyld be taken away or abridged. The interpretation of these articles and their companyrelation were elaborately dealt with by the full Court in Gopalans case 1950 S.C.R. 88. The question arose whether section 3 of the Act was a law imposing restrictions on the right to move freely throughout the territory of India guaranteed under article 19 1 d and, as such, was liable to be tested with reference to its reasonableness under clause 5 of that article. It was decided by a majority of 5 to 1 that a law which authorises deprivation of personal liberty did number fall within the purview of article 19 and its validity was number to be judged by the criteria indicated in that article but depended on its companypliance with the requirements of articles 21 and 22, and as section 3 satisfied those requirements, it was companystitutional. If the learned Judges in the High Court had paid close attention to the judgments delivered in this Court, they would have found that there was numberhing illogical in that view and numberconflict between the decisions in that case and in the other cases to which reference has been made. The observations of the Chief Justice in Gopalans case 1950 S.C.R. 88 make the position quite clear As the preventive detention order results in the detention of the applicant in a cell it was companytended on his behalf that the rights specified in article 19 1 a , b , c , d , e , and g have been infringed. It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub-clauses b , c , d , e and g . Although this argument is advanced in a case which deals with preventive detention, if companyrect, is should be applicable in the case of punitive detention also, to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code. So companysidered, the argument must clearly be rejected. In spite of the saving clauses 2 to 6 , permitting abridgement of the rights companynected with each of them, punitive detention under several sections of the Penal Code, e.g. for theft, cheating, forgery and even ordinary assault, will be illegal. Unless such companyclusion necessarily follows from the article, it is obvious that such companystruction should be avoided. In my opinion such result is clearly number the outcome of the Constitution. The article has to be read without any preconceived numberions. So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to companytrol a citizens freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saying clause of article 19 will arise. If, however, the legislation is number directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of article 19 does number arise. The true approach is only to companysider the directness of the legislation and number what will be the result of the detention otherwise valid, on the mode of the detenus life. On that short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19 1 generally must fail. Any other companystruction put on the article, it seems to me, will be unreasonable. 1950 S.C.R. 88, 100-101. Similar companyclusions expressed by the other learned Judges will be found at pages 194, 229, 256 and 305. It follows that the petitions number before us are governed by the decision in Gopalans case 1950 S.C.R. 88, 100-101, number withstanding that the petitioners right under article 19 1 a is abridged as a result of their detention under the Act. The anomaly, if anomaly there be in the resulting position, is inherent in the structure and language of the relevant articles, whose meaning and effect as expounded by this Court by an overwhelming majority in the cases referred to above must number be taken to be settled law, and companyrts in this companyntry will be serving numberuseful purpose by discovering supposed companyflicts and illogicalities and recommending parties to re-agitate the points thus settled. Mr. Hardy next companytended that, in view of the recent decision of this Court in The State of Bombay v. Atma Ram Sridhar Vaidya 1951 S.C.R. 167, the grounds of detention companymunicated to each of the petitioners must be held to be too vague and indefinite to enable them to make their representations to the Chief Commissioner, Delhi, and the requirements of clause 5 of article 22 number having thus been companyplied with, the petitioners were entitled to be set at liberty. According to Mr. Hardy it was number sufficient that the time and place of the alleged speeches and their general effect were indicated, but it was also necessary that the offending passages or at least the gist of them should be companymunicated in order to enable the petitioners to make effective representations. In the case relied on, this Court, numberdoubt, held by a majority that, though the first part of article 22 5 , which casts an obligation on the detaining authority to companymunicate the grounds of the order of detention, would be sufficiently companyplied with if the deductions or companyclusions of facts from facts on which the order was based were disclosed, the latter part of the clause, which companyfers on the person detained the right of making a representation against the order, imposed, by necessary implication, a duty on the authority to furnish the person with further particulars to enable him to make his representation. It was further held that the sufficiency of this second companymunication of particulars was a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation which, on being companysidered, may give relief to the detained person. While the companymunication of particulars should, subject to a claim of privilege under clause 6 , be as full and adequate as the circumstances permit, it did number, however, follow from clause 6 that what is number stated or companysidered to be withheld on that ground must be disclosed and if number disclosed there is a breach of a fundamental right. A wide latitude is left to the authorities in the matter of disclosure. Referring to the use of the term Vague in this companynection, it was remarked If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention, it cannot be called vague. This decision does number, in our opinion, support the board proposition companytended for by Mr. Hardy that wherever an order of detention is based upon speeches made by the person sought to be detained, the detaining authority should companymunicate to the person the offending passages or at least the gist of such passages on pain of having the order quashed if it did number. In the cases number before us the time and place at which the speeches were alleged to have been made were specified and their general nature and effect being such as to excite disaffection between Hindus and Muslims was also stated. It is difficult to see how the companymunication of particular passages or their substance - one of the petitioners denied having made any speech on the day specified - was necessary in addition to the particulars already given, to enable the petitioners to make their representations. It should be remembered in this companynection that the Court is number called upon in this class of cases to judge whether or number the speech or speeches in question companystituted a prejudicial act falling within the purview of section 3 of the Act as it is called upon in prosecutions for offences under section 124A or section 153A of the Indian Penal Code to find whether the speech attributed to the accused person companystituted an offence under those sections. That is a matter for the detaining authority to be satisfied about. Nor do these cases belong to the category where a reference had to be made to the Advisory Board under the Act, so that any attempt by the petitioners to rebut the inference drawn by the detaining authority from their speeches had to be made only before the executive authorities. In such circumstances the suggestion that without the companymunication of the offending passages or their substance the petitioners were number in a position to make their representations to the executive authorities sounds unread and is devoid of substance. It may be possible to companyceive of peculiar situations where perhaps the person detained on ground of prejudicial speeches might be in a better position to make a representation if he was given the objectionable passages or the gist of them, but the present cases are number of such peculiar character. On the other hand, cases have companye before this Court where speeches were alleged to have been made after midnight at secret gatherings of Kisans and workers inciting them to violence, crime and disorder. Such allegations companyld only be based in most cases on information received by the executive authorities from companyfidential sources and it would number be practicable in all such cases to have a record made of the speeches delivered. To hold that article 22 5 requires that, wherever detention is grounded on alleged prejudicial speeches, the detaining authority should indicate to the person detained the passages which it regards as objectionable would rob the provisions of the Act of much of their usefulness in the very class of cases where those provisions were doubtless primarily intended to be used and where their use would be most legitimate. In the case of these petitioners, numberdoubt, the speeches are said to have been made at public meetings, and it is number suggested on behalf of the respondents, that numberrecord was made of the speeches, so that the details asked for companyld have been furnished. The omission to do so, for which numberreason is disclosed in these proceedings, is regrettable, as it has given rise to avoidable grievance and companyplaint. The authorities who feel impelled in discharge of their duty to issue orders of detention will do well to bear in mind the following remarks of the Chief Justice in the case referred to above In numerous cases that have been brought to out numberice, we have found that there has been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the other. Instead of giving the information with reasonable details, there is deliberate attempt to use the minimum number of words in the companymunication companyveying the grounds of detention. In our opinion, this attitude is quite deplorable. This, however, does number affect our companyclusion in these cases that the grounds companymunicated to the petitioners companytain sufficient particulars to enable them to make their representations to the authority companycerned, and that the requirements of article 22 5 have thus been companyplied with. It is also urged that the orders of detention were bad because they did number specify the period during which the petitioners were to be under detention. This point is number companycluded against the petitioners by the decision of this Court in Ujager Singh v. The State of Punjab Petition No. 149 of 1950 and Jagjit Singh v. The State of Punjab Petition No. 167 of 1950 where it was pointed out that as section 12 of the Act itself prescribed a maximum period of one year for detention thereunder, such orders companyld number be said to be of indefinite duration and unlawful on that ground. Lastly, it was said that the petitioners were prominent members of a political organisation which was opposed to the ideals and policies of the party in power, and that the orders of detention were made for the companylateral purpose of stifling effective political opposition and legitimate criticism of the policies pursued by the Congress Party and had numberhing to do with the maintenance of public order. Allegations of made fide companyduct are easy to make but number always as easy to prove. The District Magistrate has, in his affidavit filed in these proceedings, stated that, from the materials placed before him by persons experienced in investigating matters of this kind, he was satisfied that it was necessary to detain the petitioners with a view to preventing them from acting in a manner prejudicial to the maintenance of public order, and he has emphatically repudiated the purpose and motive imputed to him. We have thus allegations on the one side and denial on the other, and the petitioners made numberattempt to discharge the burden, which undoubtedly lay upon them, to prove that the District Magistrate acted mala fide in issuing the orders of detention. The petitions are dismissed. Mahajan, J. These three petitions under article 32 of the Constitution of India were presented by Prof. Ram Singh, Bal Raj Khanna and Ram Nath Kalia, all three of whom were arrested and placed in detention on the 22nd August, 1950, under the orders of the District Magistrate of Delhi, under the Preventive Detention Act, 1950. The petitioners are respectively, the President, Vice-President and the Secretary of the Delhi State Hindu Mahasabha. The grounds of detention supplied to them are almost identical. Those furnished to Prof. Ram Singh read as follows - In pursuance of section 7 of the Preventive Detention Act, you are hereby informed that the grounds on which the detention order dated August 22, 1950, has been made against you are that your speeches generally in the past and particularly on the 13th and 15th August, 1950, at public meetings in Delhi have been such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi and that in order to prevent you from making such speeches it is necessary to make the said order. You are further informed that you are entitled to make a representation against your detention to the State Government, that is, the Chief Commissioner, Delhi. The grounds supplied to the other two petitioners were the same except that in the case of Bal Raj Khanna only the 15th August, 1950, is mentioned as the date on which the public speech was made, and in the case of the third petitioner, it is only the 13th August, 1950. Mr. Hardy on behalf of the petitioners inter alia urged that the grounds served on the petitioners as justifying the orders of detention are quite indefinite and are number sufficient to enable them to make an effective representation to the State Government against their detention and that being so, their detention is illegal. An affidavit of the District Magistrate was placed before us at the hearing of the cases stating that he was satisfied that the petitioners speeches generally, and particularly those made on the 13th and 15th August, 1950, at public meetings in Delhi had been such as to excite disaffection between Hindus and Muslims. No particulars of the offending words or passages or any indication of the nature of the language employed by the petitioners was mentioned either in the grounds or in this affidavit. Reference was made to two speeches of the 13th and 15th in the case of the first petitioner and to only one speech delivered on the 13th and 15th respectively by the other two. So far as the earlier speeches are companycerned, it is number even stated on what occasions, on what dates and during what years were those speeches made or delivered. After a reference to the dates of the two speeches, the companyclusion drawn by the District Magistrate has been mentioned. The question for decision is whether what is stated in the grounds is sufficient material on the basis of which the fundamental right companyferred on the petitioners by article 22 5 of the Constitution can be adequately exercised and whether without knowing the substance of the offending passages in the speeches from which the inference has been drawn by the District Magistrate it is possible to prove that this inference is number justified. After companysiderable thought I have reached the decision that these cases fall within the ambit of the decision of this Court in The State of Bombay v. Atma Ram, Shridhar Vaidya 1951 S.C.R. 167. In that case certain general principles applicable to cases of this nature were stated by the learned Chief Justice, who delivered the majority judgment, in the following terms That if the representation has to be intelligible to meet the charges companytained in the grounds, the information companyveyed to the detained person must be sufficient to attain that object. Without getting information sufficient to make a representation against the order of detention it is number possible for the man to make the representation. Indeed, the right will be only illusory but number a real right at all. That while there is a companynection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the companytents of the grounds for the two purposes is quite different. For the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity. On an infringement of either of these two rights the detained person has a right to approach the companyrt and to companyplain that there has been an infringement of a fundamental right and even if the infringement of the second part of the right under article 22 5 is established he is bound to be released by the companyrt. That it cannot be disputed that the representation mentioned in the second part of article 22 5 must be one which on being companysidered may give relief to the detaining person. It was pointed out that in the numerous cases that had been brought to the numberice of the companyrt it was found that there had been quite an unnecessary obscurity on the part of the detaining authority in stating the grounds for the order, and that instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the companymunication companyveying the grounds of detention and that such an attitude was quite deplorable. In my opinion, these observations have an apposite application to the grounds furnished to the petitioners in the present cases. The speeches alleged to have been made by the petitioners were made in public meetings and companyld number be described as of a companyfidential nature and numberprivilege in respect of them was claimed under article 22 6 of the Constitution. That being so the material on the basis of which the District Magistrate drew the inference that these speeches would cause or were likely to cause disaffection amongst Hindus and Muslims should have been companymunicated to the petitioners so that they may be able to make a representation, which on being companysidered may give relief to them. For that purpose either the words used by them or the substance of the speeches should have been companymunicated to the detenus so that they may be able to prove that such words or passages never formed part of the speeches and have been introduced in them as a result of some error or that numberreasonable person companyld draw an inference from them that those were likely to cause hatred and enmity between the two companymunites. The sufficiency of the material supplied is a justiciable issue, though the sufficiency of the grounds on which the detaining authority made up his mind is number a justiciable issue. In my opinion, in the absence of any indication in the grounds as to the nature of the words used by the detenus in their speeches from which an inference has been drawn against them they would number be able fully to exercise their fundamental right of making a representation and would number be able to furnish a proper defence to the charge made against them. Envisaging oneself in the position of a person asked to draw out a written representation on behalf of the detenus on the materials supplied to them, the effort companyld number proceed beyond a bare denial of the speeches having been made, or a bald statement that numberwords were used which companyld possibly excite disaffection between Hindus and Muslims. Such a representation would be an idle formality inasmuch as mere denials without any companyent arguments to support them would companyvince numberody. Without a knowledge of the offending words or passages, or their substance, it is number possible to argue that the inference drawn is number a legitimate one or to allege that the words used fall within the ambit of legitimate criticism permissible in law and cannot be companysidered to excite disaffection amongst Hindus and Muslims. The phraseology employed by the detaining authority in the charge sheet supplied to the detenus seems to have been borrowed from the language used in sections 124A and 153A of the Indian Penal Code. Judicial literature abounds in cases where words and passages likely to cause disaffection between Hindus and Muslims or which have that effect have been companysidered and discussed. If the words objected to were known, the representation on behalf of the detenus companyld easily have been drawn up with the help of judicial precedents and reasoning companysidered good in those cases. Again, without knowning the substance of the offending words from which the inference has been drawn by the detaining authority it is number even possible to urge that these words were merely a quotation from some known author or that the words used fall within legitimate religious propaganda permitted by article 25 of the Constitution or companycern the propagation of some political creed to which numberobjection companyld be taken. As regards the two speeches alleged to have been given by the detenus, if the allegation that they were such as to excite disaffection between Hindus and Muslims is companyrect, the detenus were guilty of the offence under section 153A of the Indian Penal Code and companyld number only have been punished for the offence under that section but companyld also have been kept out of harms way for the future by that procedure. A charge sheet under that section or in a trial under section 124A which uses analogous language would have been defective if it did number mention the substance of the speeches alleged to have been made by the person charged. Vide Chint Ram v. Emperor A.I.R. 1931 Lah. 186 Chidambaram Pillai v. Emperor I.L.R. 32 Mad. 3 Mylapore Krishnaswami v. Emperor I.L.R. 32 Mad. 384. In some of these cases the charge was in substance similar to the charge here. If a charge in an open trial for an offence under these sections is defective without the substance of the words used or the passages being cited therein, a fortiori the material supplied in a preventive detention case on a similar charge should be regarded as insufficient when a man has number even a right of being heard in person and has merely to defend himself by means of a written representation. It has to be remembered in this companynection that the phrase excite disaffection amoungst Hindus and Muslims is of a very general nature and an inference of this kind may easily have been drawn on material which would number warrant such an inference. No reason whatsoever has been stated in the affidavit of the District Magistrate for number disclosing the words used by the detenus even after this length of time and from which he drew the companyclusions on the basis of which he has kept the petitioners under detention for a period well over six months or more. For the reasons given above I venture to dissent from the opinion of the majority of the Court with great respect and hold that the detention orders above mentioned are illegal. I accordingly order the release of the petitioners. On the other points argued in the case I agree with judgment of Sastri J. Bose, J. I agree with my brother Mahajan whose judgment I have had the advantage of reading, and with the utmost respect find myself unable to accept the majority view. I am of opinion that these petitioners should all be released on the ground that their detentions are illegal. I do number doubt the right of Parliament and of the executive to place restrictions upon a mans freedom. I fully agree that the fundamental rights companyferred by the Constitution are number absolute. They are limited. In some cases the limitations are imposed by the Constitution itself. In others, Parliament has been given the power to impose further restrictions and in doing so to companyfer authority on the executive to carry its purpose into effect. But in every case it is the rights which are fundamental, number the limitations and it is the duty of this Court and of all companyrts in the land to guard and defend these rights jealously. It is our duty and privilege to see that rights which were intended to be fundamental are kept fundamental and to see that neither Parliament number the executive exceed the bounds within which they are companyfined by the Constitution when given the power to impose a restricted set of fetters on the these freedoms and in the case of the executive, to see further that it does number travel beyond the powers companyferred by Parliament. We are here to preserve intact for the peoples of India the freedoms which have number been guaranteed to them and which they have learned through the years to cherish, to the very fullest extent of the guarantee, and to ensure that they are number whittled away or brought to numberght either by Parliamentary legislation or by executive action. It is the right to personal freedom which is affected here what the Constitution calls the right to move freely throughout the territory of India. Now I do number for a moment deny the right of Parliament to place limitations upon that right and to do it by preventive detention. Much as all freedom loving persons abhor the thought of locking men and women up without trial and keeping them behind bars indefinitely, the regrettable necessity to do so is to my mind undoubted. The safety of the State, which is paramount, requires it and, in any event, the Constitution allows it but - and this is important - subject to limitations. So far as the Constitution is companycerned, it has given Parliament the powers to legislate on this subject by article 246 read with item 9 of List I of the 7th Schedule and item 3 in List III, and I have numberdoubt that the legislation sought to be impugned here is intra vires. But I am unable to hold that the executive action taken in these cases on the strength of that legislation is within the law. The executive has numberpower to detain except within the four companyners of the Constitution and the Act number challenged. In my opinion, it has number kept itself within those limits. The provisions of the Constitution relevant to the present purpose have been examined by this Court in previous cases and I have neither the right number the desire to go behind them. My brother Mahajan has set out his view of the law which these cases have settled. I respectfully agree with him and will number companyer the same ground. But I do wish to say this. I am number prepared to place any narrow or stilted companystruction either upon the Constitution or upon the decisions of this Court which have so far interpreted it. If it were permissible to go behind the Constitution and enquire into the reason for the provisions dealing with the fundamental rights, one would find them bound up with the history of the fight for personal freedom in this land. But that is number permissible and is irrelevant. What does matter is that the right to personal freedom has been made fundamental and that the power even of Parliament itself to hedge it round with fetters is cribbed, cabined and companyfined. I companyceive it to be our duty to give the fullest effect to every syllable in the Articles dealing with these rights. I do number mean to say that any impossible or extravagant companystruction should be employed such as would make the position of Government impossible or intolerable. But I do insist that they should be interpreted in a broad and liberal sense so as to bring out in the fullest measure the purpose which the framers of the Constitution had in mind as gathered from the language they used and the spirit their words companyvey, namely to companyfer the fullest possible degree of personal liberty upon the subject companysistent with the safety and welfare of the State. My Lord the Chief Justice has pointed out in The State of Bombay v. Atma Ram Shridhar Vaidya 1951 S.C.R. 167 that the information supplied to the detenu must be sufficient to enable him to meet the charges companytained in the grounds given to him and that without that the right would be illusory. Are the present cases companyered by that rule ? I do number think they are. Put at their highest, the grounds set out the date and place of the meetings at which the speeches companyplained of are said to have been made and they do numbermore than say that they were. Such as to excite disaffection between Hindus and Muslims and thereby prejudice the maintenance of public order in Delhi. I have numberquarrel with the details regarding the date and place but I do number companysider that the portion relating to the nature of the speeches fulfils the requirements which have been laid down by this Court regarding particulars. Now I fully agree that each case will have to be decided on its own facts so far as this is companycerned. But when weighing the circumstances this must be borne in mind. The detenu has numberright of personal appearance before the Advisory Board or other revising authority, number can be represented by companynsel. The Board or other authority can deal with his representation without hearing him or anyone on his behalf. Therefore, his only hope of being able to companyvince the Board lies in the explanation he offers. But how can anyone give a fair explanation of his companyduct unless he is told with reasonable plainness what he has done, and in the case of a speech, the words used are everything. They have been called verbal acts in another companynection. Now I take it to be established that Government is bound to give a detenu reasonable particulars of the acts companyplained of when companyduct is in question. Why should a different rule obtain when the acts companyplained of are verbal ? It was companytended in the argument that the man who makes the speech is in a position to know what he said and so is number at a disadvantage. But that, in my opinion, is number the point. He may know what he said but he cannot know what the authorities think he said unless they give him some reasonable inkling of what is in their minds. It has to be remembered that what the Advisory Board has before it is number necessarily the words employed or even their substance but what the authorities say the man said. This has to be viewed from two angles. The first is whether the reports handled in to the authorities are companyrect. Even with the utmost good faith mistakes do occur and it is quite easy for a reporter to get his numberes mixed and to attribute to A what was said by B. But unless A knows that that is what happened, it would be very difficult for him to envisage such a companytingency and give the necessary explanation of fact in his representation. The next point is this. When a man is told that his speech excited disaffection and so forth, he is being given the final companyclusion reached by some other mind or minds from a set of facts which are number disclosed to him. If the premises on which the companyclusion is based are faulty, the companyclusion will be wrong. But even if the premises are companyrect, the process of reasoning may be at fault. In either event, numberrepresentation of value can be made without a reasonably adequate knowledge of the premises. Envisage for a moment the position of the Board. In the ordinary companyrse, it would have before it a speech with the offending passages in full, or at any rate the gist of them. From the other side it would have a bare denial, for that is about all a detenu can say in answer to the grounds given to him when he is number told the premises on which the companyclusion is based. In most cases, that sort of representation would have very little value. Consider this illustration. Let us assume the detenu had spoken about Hindus and Muslims but had urged unity and amity and had said numberhing objectionable but that unknown to him the police, through a perfectly bona fide mistake, had imputed to him certain offensive words used by another speaker. What would be the value of a detenu saying I said numberhing objectionable and that is almost all he can say in such a case. He cannot envisage the mistake and say, Oh yes, that was said, but number by me. It was said by A or B. Consider a second illustration where the detenu had quoted a well known living authority. I can companyceive of cases where words in the mouth of A might be companysidered objectionable by some but would never be companydemned in the mouth of B. It might make a world of difference to the detenu if he companyld explain the source of the passages companyplained of in his speech. But it might be very difficult for him to envisage the possibility of objection being taken to anything companying from the source from which he quoted. I am anxious number to be technical and I would be averse to an interpretation which would unnecessarily embarrass Government, but I do companyceive it to be our duty to give a companystruction which, while falling strictly within the ambit of the language used, is yet liberal and reasonable, just to the detenu, fair to the Government. And after all, what does a companystruction such as I seek to make import ? It places numbergreat or impossible strain on the machinery of Government. All that is required is that the authorities should bestow on the cases of these detenus a very small fraction of the thought, time and energy which the law companypels in the case of even the meanest criminal who is arraigned before the Courts of this companyntry. The fact that there is absent in the case of these persons all the usual safeguards, the glare of publicity, the right to know with precision the charge against him, the right to speak in his own defence, is all the more reason why Government should be thoughtful, companysiderate and kind and should give them the maximum help. In any case, that, in my opinion, is what the Constitution requires and I am number prepared to abate one jot or title of its rigours. My attention has been drawn to two decisions of this Court which are said to be on all fours with the present case. One is Vaidyas case 1951 S.C.R. 167 and the other Lahiris Not reported. In the latter, the point whether the gist of the speech should be given was number companysidered. It seemed to have been assumed that it need number. But I am unable to accept that as authority for anything beyond the fact that that was number companysidered necessary on the facts and in the circumstances of that particular case. As my Lord the Chief Justice pointed out in the earlier decision cited above, the question of what is vague must vary according to the circumstances of each case. It was also said there that the companyferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made. It was further said - Ordinarily, the grounds in the sense of companyclusions drawn by the authorities will indicate the kind of prejudicial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him. This envisages cases in which that would number be enough. It is therefore sufficient for me to say that in a case of this kind, where the matter has to turn on the facts and circumstances of each case, numberuseful purpose can be served by examining the facts of some other case for use as an analogy. In my opinion, on the facts and circumstances of the present cases, the grounds supplied were insufficient and the gist of the offending passages should have been supplied.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION. Civil Appeal No. 29 of 1950. Appeal against the Judgment and Decree dated the 10th October, 1945, of the High Court of Judicature at Patna Manohar Lal and Das JJ. in Appeal No. 64 of 1942 arising out of decree dated the 28th February, 1942, of the Subordi- nate Judge at Monghyr in Suit No. 10 of 1941. Amarendra Nath Sinha Samrendra Nath Mukherjee, with him for the appellants. Lal Narain Sinha R.C. Prasad, with him for the re- spondent, 1951. May 2. The judgment of the Court was delivered by FAZAL ALI J.--This is an appeal from a judgment and decree of the High Court of Judicature at Patna, affirming a judgment and decree of the Subordinate Judge of Monghyr in a title suit brought by the plaintiff-respondent. The plaintiff, the Maharaja of Gidhaur, who has succeed- ed in both the companyrts below, is the proprietor of an impartable estate known as Gidhaur raj in the district of Monghyr. The ancestors of the defendants 1st party originally held a 4 annas share in a ghatwali tenure known as Mahal Dumri Nisf Katauna T. No. 325, and subsequently by private partition they were allotted mouza Dumri with its 47 tolas which are detailed in schedule I of the plaint. In execution of a mortgage decree obtained by one Chethru Rai against the ancestors of defendants 1st party, their interest, to which reference has been made, was purchased by the Maharaja of Gidhaur in the name of one of his employees, and the latter took delivery of possession of the property on the 19th April, 1904. On the 13th August, 1903, the ancestors of the defendants 1st party filed an application for setting aside the sale which was dismissed by the executing companyrt and the appeal from the order of the executing companyrt was dismissed by the High Court as well as by the Privy Council. After certain disputes in the criminal companyrts, the defendants second party alleging themselves to be the lessees of the defendants first party, obtained a mining license in 1937 from the sub-divisional officer of Jamui, and the District Magistrate apprehending a breach of the peace, started proceedings under section 144 of the Criminal Procedure Code, which ended in favour of the defendants first and second parties and against the plaintiff. The plaintiffs case is that, emboldened by the order in the proceedings under section 144, the defendants started working mines in the tolas mentioned in schedule II of the plaint and extracted a companysiderable quantity of mica and hence he was companypelled to institute the present suit. In this suit, after reciting the facts to which reference has been made he prayed for a declara- tion of the subsoil rights with regard to the entire Mahal Dumri and for recovery of possession of the mortgage lands situated in the tolas specified in schedule 11 of the plaint. He also prayed for mesne profits and a permanent injunction restraining the defendants first and second parties from extracting mica or other underground minerals from the lands mentioned in schedule II of the plaint. The grounds on which these reliefs were claimed are summarized in paragraph 12 of the plaint in these words - That the plaintiff submits that he being the 16 annas proprietor of Dumri Nisf Katauna has got an indefeasible right and title to all the underground minerals including mica situate within the said talukas. The plaintiff further submits that all the titles and interest in the said 4 annas mokrari shares of the ancestors of the defendant 1st party having been acquired by plaintiffs ancestor by auction purchase in 1903, the defendant 1st party have numbersort of right and interests in the mica and other under- ground minerals number the defendant 2nd party have derived any lawful right under leases alleged to have been granted in their favour by defendant 1st party, the plaintiff in law is entitled to get a declaration of his title and possession with respect to all the underground right includ- ing mica The suit was companytested by defendants Nos. 1 to 11 defendants 1st party , but, as the trial judge has pointed out, the real defendant was defendant No. 1, father of the appellant. The case of this defendant was that the four annas interest in village Dumri was a ghatwali tenure grant- ed to the ancestors of the defendants first party by Muham- madan rulers to guard the hill passes in the taluka, and the grant under which they held was affirmed subsequently by Captain Browne, a representative of the East India Company. The defendant No. 1 further companytended that the mineral and subsoil rights were vested in him as the holder of the ghatwali tenure, and that the plaintiff had acquired numberright by his auction-purchase in 1903 inasmuch as the property in suit being Government ghatwali tenure was inali- enable and companysequently the auction-purchase was invalid. Lastly, it was companytended that this defendant and his ances- tors had been exercising rights of possession over the mines and minerals for more than 12 years prior to the suit in assertion of their ghatwali right and to the knowledge of The plaintiff and his ancestors and had thus acquired an indefeasible right by adverse possession to the mines and minerals in suit, especially those in the lands specified in schedule II of the plaint. The Subordinate Judge decreed the suit, holding among other things that the disputed tenure was a zamindary ghat- wali tenure that it was number inalienable, that the plaintiff had been in possession of the property since he purchased it in 1903 until the order of the District Magistrate made in 1038, that the plaintiff as the proprietor of the Mahal was entitled to the mineral and subsoil rights and that under the mortgage-sale only the surface right had passed to the plaintiff. The findings of the Subordinate Judge were sub- stantially upheld on appeal by the High Court, with this modification that, while agreeing with the Subordinate Judge that the subsoil rights remained with the proprietor, the High Court also held that even if the defendant No. 1 was assumed to have had the subsoil rights, those rights passed at the mortgage-sale of 1903 and therefore in any event the plaintiff was the real owner of the subsoil. On the plea of adverse possession raised in defence, the finding of the High Court was that there was numberclear evidence that any mine was worked on behalf of the lessees of defendant No. 1 and that at the utmost the evidence adduced in the case showed that there had been some isolated acts of possession during recent years, probably since 1935 onwards, and there- fore the plea companyld number be upheld. The two main points urged on behalf of the appellant in this appeal are -- 1 that the finding of the companyrts below that the ghat- wali tenure held by the defendants first party was a zamind- ary ghatwali and number a Government ghatwali, companyld number be sustained and that in fact it was a Government ghatwali and therefore the property was inalienable and numbertitle passed to the plaintiff and 2 that in any event, the plaintiffs suit was barred by limitation under articles 142 and 144 of the Limitation Act. The first point does number appear to us to be free from difficulty, and since its determination depends upon the proper companystruction of several old documents, we heard the parties at companysiderable length, numberwithstanding the fact that the companyrts below have companycurrently found that the tenure in question is number a government ghatwali. Before dealing with the merits of the companytroversy between the parties, it is necessary to understand what is meant by a ghatwal and what is a ghatwali tenure, and for the purpose of companyrectly apprehending what these expressions stand for, it is sufficient in our opinion to quote the following passage from the decision of the Patna High Court in Rani Sonabati Kumari v. Raja Kirtyanand Singh 1 , in which the subject of ghatwali tenures has been very elaborately dis- cussed -- Literally a ghatwal means a guard of the passes and the term ghatwali tenure was applied by the Moghuls to lands assigned at a low rent or free of rent for guarding the mountain passes and protecting the villages near the hills from the depredations of lawless hill tribes. These ghatwa- li tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur, and the Santal Parganas. The ghatwals varied in rank and the inci- dents of their tenure varied in different places. In some cases they were owners of large estates, some of these estates being more or less of the nature of semi-military companyonies In some cases the I.L,R. 14 Patna 70. ghatwalis were created directly by the ruling power, while in other cases they were created by the landlords or zamin- dars for the purpose of protecting their zamindary and tenantry and to enable them to have a small force at their companymand and to discharge the obligations they owed to the ruling power. Sometimes the owners-of large ghatwali estates subdivided and re-granted the lands to other tenants who besides paying small rents held their lands on companydition of rendering certain quasi police and military services and providing a specified number of armed men to fulfil the requirements of the Government or of the zamindar as the case might be. A Government ghatwali is thus a tenure created by the ruling power in favour of a person who is required to render ghatwali services to it, whereas a zamindary ghatwali is a tenure created by a zamindar for ghatwali services to be rendered to him. It is quite plain that the reason why the appellant is anxious to establish that the tenancy is a Government ghatwali is that a Government ghatwali has been uniformly held to be inalienable. On the other hand, a zamindary ghatwali may be alienated with the companysent of the zamindar, and, where local custom permits, even without his companysent. From the reports of cases relating to zamindary ghatwalis, it appears that by the passage of time the company- sent of the zamindar has ceased to be a matter of much significance, and is generally presumed when it is found that the alienation has been made without any objection from the zamindar. As to the extent of the power of alienation, the following observations of the Privy Council in Kali Prasad v. Ananda Rai 1 are pertinent -- When once it is established that the ghatwal had the power of alienation, as before stated, that power forms an integral portion of his right and interest in the ghatwali, and there is numberevidence whatever to limit it to an aliena- tion for his own life and numberlonger. 1 15 I.A. 18, In order to determine the true character of a ghatwali tenure, it is usually necessary to refer to the grant by which the tenure was created. It the present case, the appellant relies upon exhibit C 1 , which is a ghatwali sanad granted in 1776 to the ancestors of the appellant and which runs as follows -- Know ye the Chaudhuris, kanungoes, zamindars and mutasaddis of mauza Dumri Ghat illegible pargana Gidhaur, Sarkar Monghyr companyprised in the province of Bihar. The perquisites of ghatwari in all the rahdaris in mauza aforesaid, have number been granted to Kunji Singh, Jangal Singh, Ragho Singh and Manorath Singh, ghatwars of the said mauza, in accordance with what has been in vogue from old time, with effect from the companymencement of 1184 fasli. It is desired that they should allow the said ghatwars to enjoy the perquisites of the ghatwari in all the rahdaris accord- ing to old custom. It will be the duty of the said ghatwars to be ever ready in discharging the duties of the post and guarding the ghats and chaukis of their elaqa by making rounds day and night. If murder, mischief, theft, highway robbery and sudden night attack be companymitted in their elaqa, they will be held liable therefor and will be dismissed from their post. Treat this as peremptory and act according to what is written. Dated the 5th Ziqada of the 18th year of the August reign companyresponding to 1184 Fasli. This sanad was granted by Captain Browne, who was deput- ed by the East India Company to restore order in a tract known as Jungle Terai, a vast waste and hilly companyntry as its name signifies, lying to the south of Bhagalpur and west of Rajamahal Hills. This document was companystrued by a Bench of the Patna High Court in Fulbati Kumari v. Maheshwari Prasad 1 , and, as has been pointed out by Dawson Miller J. in that case,- It is number a grant of land but an authority to the persons named to companylect as formerly ghatwari of A.I.R. 1923 Patna 453. ghatwali fees or tolls from those using the roads and passes which the ghatwals undertook to protect. When we companypare this sanad with other ghatwali sanads granted by Captain Browne, some of which are found discussed in reported cases, the companytrast becomes very marked. In some of the other documents-- for example in the document which was the subject of the decision of the Privy Council in Narayan Singh v. Niranjan Chakravarti 1 , and of the Patna High Court in Rani Songbati Kumari v. Raja Kirtyanand Singh 2 the grant was in respect of a very extensive area of land and there were also words used to indicate that the services were to be rendered directly to the ruling power. The mere fact, therefore, that the sanad in this case was granted by Captain Browne cannot be held to be decisive of the nature of the tenure, because it seems to have been part of the duties assigned to him to companyfirm and recognise old titles. As was pointed out by Dawson Miller C.J., the sanad should be read along with the record of certain proceedings before the Dewani Adalat of Ramgarh, which show that a tenancy companyprising 8 annas in mauza Dumri was granted by the zamindar of Gidhaur to 2 persons, one of whom was the ghat- wal mentioned in Captain Brownes sanad, with the sanction of Captain Browne. In the present case, a document of 1708, which was the proceeding of the original companyrt and which was before the learned judges who decided Fulbatis case 3 has number been produced, but we have before us a judgment dated the 18th March, 1799, of the appellate companyrt in the same proceeding. This judgment recites that the case of the ghatwals was that they had been for 3 generations in posses- sion of half of village Dumri, but in the year 1187 fasli 1780 A.D. the zamindar of Gidhaur wanted to raise reve- nue or rent but they refused to accept a new patta or kabuliyat at an enhanced rent. Subsequently, the companyrt ordered the zamindar to grant a patta, but the zamindar did number do so and forcibly dispossessed the ghatwals. They thereupon prayed that 1 51 I.A. 37. 3 A.I.R. 1923 Patna 453, I.L.R. 14 Patna 70. the zamindar may be ordered to grant them a patta and re- ceive the kabuliyat at the old rent. The appellate companyrt, to which the zamindar had appealed, upheld the decree of the first companyrt ordering the patta to be granted. This document shows firstly that the ghatwali tenure in respect of half of Dumri had been in existence for a generations prior to 1780, i.e., it must have companye into existence long before Captain Brownes sanad, and secondly that it was held under the zamindar otherwise, it was number necessary that the zamindar should grant a patta and the ghatwal should execute a ka- buliyat in his favour. We have also before us a document exhibit 1 which as a report of one Khadim Muhammad Ataullah, an employee of the East India Company, incorporating certain statements made by the then zamindars of Gidhaur showing that they had been in possession,of the zamindary for nearly 700 years and that the milkiat zamindari, Chaudhri and Kanungoi of the pargana had all along been in their possession. This document shows that Gidhaur was an ancient zamindary and the zamindar also performed the functions chaudhri and kanungoi. The last mentioned point is of some significance, because the sanad of Captain Browne was addressed to chaudh- ris, kanungos, etc. In the case of Fulbati Kumari 1 , to which reference has been made, there was an extract quoted from the Bengal District Gazetteer, volume XVII, at page 168, which runs as follows -- About 1774 the lawless state of this tract led the British to place it in charge of Captain James Browne, who settled the estates with the ghatwals with two exceptions. These two exceptions were Dumri and Mahesri which were settled directly with the proprietors, the story being that the ghatwal tenure holders fled at the approach of Captain Browne their reputation as dacoits and brigands being too strong for them to face a Government officer without fear of the companysequences. In the case of Dumri however, the A.I,R. 1923 Patna 453., ghatwals finding that in their absence a settlement had been made of their tenure, returned and obtained a sanad settling it with them under the Raja of Gidhaur. Of the estates settled with ghatwals only two are number held by their de- scendants, viz. Tilwa and Kewal. The others have passed into the hands of the Maharaja of Gidhaur, Chetru Rai, Akleswar Prasad and others of Rohini. The statement in the District Gazetteer is number neces- sarily companyclusive, but the Gazetteer is an official document of some value, as it is companypiled by experienced officials with great care after obtaining the facts from official records. As Dawson Miller C.J. has pointed out in Fulbatis case 1 , there are a few inaccuracies in the latter part of the statement quoted above, but so far as the earlier part of it is companycerned, it seems to derive companysiderable support from the documents to which reference has been made. The companynsel for the appellant greatly relied on the fact that Dumri ghatwali is mentioned in Captain Brownes India Tracts as one of the ghatwalis placed under the Collector of Jungle Terrai districts. It appears that this point was number raised before any of the companyrts below, number was Captain Brownes treatise placed before them. There is thus companysid- erable force in the objection raised on behalf of the re- spondent that he has number had sufficient opportunity to study the matter and place relevant materials before this companyrt to enable it to determine what meaning and value should be attached to Captain Brownes statement. But apart from this objection, it seems to us on the evidence as it stands, that the inference sought to be drawn from Captain Brownes statement is number fully justified for the following reasons -- The mere fact that the ghatwali was shown to be under the Collector cannot alter the character of the ghatwali, i.e., if it was a zamindary ghatwali, it companyld number become a Government ghatwali merely because it was stated to be under the Collector. A I.R. 1923 Patna 453. As Collector of Jungle Terrai districts, Captain Browne appears to have had companytrol number only over the ghat- wals but also over the zamindars within the area adminis- tered by him. The observations made by Captain Browne with regard to the Jungle Terrai ghatwals and their relation to the zamindar hardly support the view urged on behalf of the appellant. Referring to the Jungle Terrai ghatwalis, Captain Browne states in his book as follows -- All the Jungle Terry gautwalls were formerly subject to the several Rajahs, to whose territories their Gautwallies belonged they paid a slight tribute in token of feodal obedience, and were bound to oppose all invasions princi- pally from the south to attend their Rajahs when summoned, with all their followers in arms, and to be responsible for every violence and irregularity companymitted in their respec- tive boundariestheir followers are still bound by the same feodal ties to them, and have lands for feodal services numberhing can be companyceived more absolute than the authority of these chiefs over their vassals the fear of death even, when seized on in war, is number sufficient to force from them the discovery of any secret respecting their chief, his family, or property. Again, Captain Brownes description of the zamindar of Gidhaur is to the following effect -- The Raja of Guidore was formerly of great extent, but the companyquests made from it by the Rajah of Bierboom and Comgar Cawn, and the independency which these wars gave the Gautwalls an opportunity of assuming, have reduced the present Rajahs Gopal Singh, and Durrup Singh, to follow an ebb, that they can scarcely recover sufficient companysequence to be of any political weight whatever. On the whole, it appears that the ghatwals of Dumri were hardly men of such companysequence as to break off from the zamindar and set themselves up as independent chiefs. There are two other items of evidence which seem to have an important bearing on the question. In the first place, the appellants tenure was included within the Gidhaur zamindary in the Permanent Settlement, and secondly, it is shown in the Record of Rights as istemrari mokrari tenure under the zamindar of Gidhaur. In the case of Raja Lelanund Singh Bahadoor v. The Bengal Government 1 where the Gov- ernment set up a claim to resume the ghatwali in the zamind- ary of Khuruckpore for the purpose of revenue assessment, the claim was negatived by the Privy Council, and one of the grounds upon which the decision was based was that the ghatwali lands were part of the zamindary and were included in the Permanent Settlement of the zamindar and were companyered by the jama assessed on that zamindary. There can be numberdoubt that prima facie the fact that the tenure was included in the Permanent Settlement of the zamindar and under that Settlement the ghatwal had to pay rent to the zamindar raises a presumption that the ghatwali was in some way companynected with the zamindar, but it must be recognized that the permanent settlement of the land would number affect the nature of the tenancy upon which the lands were held, number can it companyvert the services which were public into private services under the zamindar vide Raja Nilmoni Singh v. Bakranath Singh 2 . There are several reported cases which furnish instances in which the properties of persons who were Government ghatwals were included in the zamindary of other persons, but where numberclear evidence is forthcoming as to the true character of the ghatwali, the fact that the tenure is included within a zamindary and is companyered by the jama assessed upon it should turn the scale in favour of the party who alleges that it is a tenure which is dependent upon the zamindary. In this case, the presumption arising under the Permanent Settlement is reinforced by the entry in the Record of Rights which shows that the tenure in question is istemrari mokrari held under the zamindar. 1 6 Moores I.A. 101. 2 9 I.A. 104. The learned companynsel for the appellant relied upon exhib- its N and N-1 and certain rent receipts granted by the zamindar to show the appellants independent title, but, in our opinion, these documents do number help him much. Exhibit N is a numberice issued to an ancestor of the appellant in 1859 by an official whose signature on the document is number legi- ble. It refers to a report the sub-inspector of thana Chakai stating that the sautars bad characters are in their places of residence and numberriots or disturbances are taking place , and directs the ghatwali to prepare a list of the sautars of his ilaqa and file it before the officer- in-charge of the thana. Exhibit N-1 is a similar numberice, but it is incomplete and bears numberindication as to who issued it. It recites a report of a police sub-inspector stating that owing to failure of crops there were burglaries and thefts and recommends that the zamindars of the ilaqa should be directed to look after the occurrences and keep eyes over the bad characters and mischief makers so that occur- rences may be stopped. These documents do number necessarily show that the appellant is a Government ghatwal. It was number unusual in old days to issue numberices like those referred to, to the zamindars of the ilaqa, as exhibit N-1 itself shows, and the mere fact that the person to whom the numberice was issued was described as a ghatwal does number show that he was addressed in the capacity of a Government ghatwal and number as a zamindari ghatwal. The next item of evidence upon which the appellant tried to rely companysists of certain rent receipts and road cess receipts, but these also do number help him, seeing that they companytain, among other things, a statement that the tenure with regard to which the receipts were granted, appertained to the proprietary zamindary of Gidhaur. This brief review of the evidence is sufficient to show that the appellant has number been able by clear and companyclusive evidence to rebut the presumption arising from the Record of Rights and the record of the Permanent Settlement, and he has failed to establish his claim that the tenure in ques- tion is Government ghatwali. It may be incidentally mentioned that in the mortgage suit which preceded this litigation, there was numberallegation by way of defence that the ghatwali was number alienable, and though the point was raised in the execution proceedings it was decided against the appellant by the companyrt of first instance and was abandoned on appeal. In these circum- stances, we see numberreason to disturb the companycurrent finding of the companyrts below which have dealt with the matter with great care. Passing number to the second point raised in this appeal, we find that there are companycurrent findings of both the companyrts below against the defendants on the plea of adverse possession. In arriving at this finding, the companyrts below have fully discussed the evidence and given companyent reasons in support of their companyclusions. This companyrt is usually reluctant to reinvestigate matters which have been fully investigated by the companyrts below and on which there are companycurrent findings. In the present case, the appellant has failed to show to us any exceptional circumstances to induce us to depart from the sound and well established practice, and in this view the findings of the companyrt below must be accepted. It was however companytended that in any event the plain- tiffs suit is barred under article 142 of the Limitation Act inasmuch as it was incumbent on the plaintiff to prove that he had been in possession of the disputed lands, espe- cially those mentioned in schedule II of the plaint, within 12 years of the suit, but he had failed to do so. In our opinion, this plea must be negatived.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 44 of 1950. Appeal from a judgment and decree of the High Court of Bombay Sen and Dixit JJ. dated 21st February, 1947, in First Appeal No. 64 of 1943. K. Daphtary, Solicitor-General S. B. Jutbar, with him for the appellant. C. Chatterjee N. K. Gamadia, with him for the re- spondents. 1951. October 5. The Judgment of Kania CJ., Das and Bose JJ. was read by Das J. Patanjali Sastri and Chandrasekhara Aiyar JJ. delivered separate Judgments. DAS J.--This is an appeal from the judgment of a Bench of the Bombay High Court Sen and Dixit JJ. delivered on February 2, 1947, in an appeal filed under section 18 of the Bombay City Land Revenue Act 11 of 1876 against the judgment of the Revenue Judge at Bombay delivered on October 27, 1942, in a suit filed by the respondents, the Municipal Corporation of the City of Bombay, and Madusudan Damodar Bhat, the then Municipal Commissioner for the City of Bom- bay, against the Collector of Bombay. There is numbersubstantial dispute as to the facts leading up to this litigation and they may be shortly stated. In 1865, the Government of Bombay, having decided to companystruct an Eastern Boulevard, called upon the Corporation of Jus- tices of the Peace for the City of Bombay, the predecessor in title of the respondent Corporation, to remove its then existing fish and vegetable markets from the site required for the companystruction of the Boulevard. The then Municipal Commissioner Mr. Arthur Crawford, after whom the present municipal market was named, applied for the site set aside for the exhibition buildings on the Esplanades for the pur- pose of companystructing new markets as the existing markets companyld number be removed until new markets had been provided. On December 5, 1865, the Architectural Improvement Committee informed the Government that it had numberobjection to the proposed she measuring about 7 acres being rented to the Municipal Commissioner and suggested that the annual charge of one pie per square yard be levied in companysideration of the expense of filling in the ground. Computed at this rate, the annual rental would have amounted to about Rs. On December 19, 1865, the Government passed the fol- lowing resolution -- Government approve of the site and authorise its grant. The plans should be submitted for approval but Government do number companysider any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole companymunity. Pursuant to the aforesaid Resolution, possession of the site was made over to the then Municipal Commis- sioner, but numberformal grant was executed as required by Statute 22 23 Vic. C. 41. It has numberhere been company- tended that even if the statutory formalities had been companyplied with the grant upon the terms mentioned in the Resolution would nevertheless have been invalid being in excess of the powers of the Government. The Municipal Com- missioner had the site filled up and leveled at the expense of the Corporation. The plans were approved by the Govern- ment and the market buildings were erected by the Corpora- tion at companysiderable expense. The respondent Corporation was incorporated in 1888 as the successor of the Corporation of the Justices of the Peace for the City of Bombay and it companytinued in possession of the land and the buildings with- out paying any rent to the Government according to the Government Resolution of 1865. Indeed, it is pleaded in paragraph 7 of the plaint and it is number denied in the writ- ten statement that acting upon the said grant companytained in the Resolution and the terms companytained therein the respond- ent Corporation and its predecessor spent companysiderable sums of money in building and improving the market and have been in possession of the land and the buildings thereon for over 70 years in accordance with the terms of the Resolution and that numberland revenue or rent had been paid to the Government ever since the grant was made. It is in evidence that besides giving up the sites on which the old markets had been situate, a total sum of Rs. 17,65,980-12-1 has been spent by the Corporation up to March 31,1940, in filling up and leveling the site and erecting. and maintaining the new market buildings on this site. In 1911, a portion of the market site was acquired by the Government for the widening of the Palton Road. Upon the Collector of Bombay being called upon to put in ,his claim, if any, to any part of the companypensation money awarded by the Land Acquisition Officer, the Superintendent,, City Survey, on behalf of the Collec- tor, replied that Government had numberclaim in respect of the said land. The respondent Corporation, therefore, received the whole of the companypen- sation money and it companytinued in possession of the rest of the land and the buildings thereon without payment of any rent. On March 18, 1938, the appellant Collector of Bombay informed the respondent Municipal Commissioner that it was proposed to assess the land occupied by the Crawford Market under section 8 of the Bombay City Land Revenue Act II of 1876 and asked for certain information to enable him to do so. In his reply, the Municipal Commissioner wrote to say that the site of the market had been given to the Municipal- ity as a gift for the companystruction of the market and that, therefore. the question of assessment did number arise. The appellant Collector of Bombay having insisted that in spite of the Government Resolution of 1865 the Government had the right to assess the site, the Mayor of Bombay on March 23, 1939, wrote a letter to the Government stating, inter alia, as follows -- The Corporation have been advised that there can be numberdoubt that it was the intention of Government to make a permanent grant of the land to the Municipality, and, fur- ther, that it was also the intention that permanent grant should be free from rent and from assessment to land reve- nue. I am to point out that the word rent was. used in official documents with the greatest frequency with refer- ence to the land revenue leviable by the East India Company and later by Government in the City of Bombay and in the Presidency. It is, therefore, clear that it was the inten- tion of Government in 1865 that this grant should be free from any form of rent or assessment. The Corporation were put into possession for a period of over 70 years, during which period the land has without interruption been devoted to the purpose for which the grant was made. Throughout this long period there has been numbersuggestion from Govern- ment that the grant was other than a permanent one, free of revenue, or that the terms of the grant were in any way subject to revision, The above companytentions were repudiated by the Govern- ment in its letter of January 1, 1940, in the following terms- As regards the companytention that the land has been held by the Municipality uninterruptedly for over 70 years with- out any suggestion from Government that it was liable to assessment, I am to state the right to levy the assessment is the prerogative of the Crown and a mere number-user of this prerogative cannot destroy it. Besides, companyditions have companysiderably altered since the land was originally allotted to the Municipality without charging any ground rent or assessment the Municipality has been recovering substantial rents by letting out stalls in the market and should number be in a position to pay the assessment. Under the circum- stances, the levy of assessment in this case can numberlonger be foregone or postponed. On January 31, 1940, the appellant Collector assessed the land under section 8 of the Bombay Act II of 1876 with a guarantee of 50 years as under -- Assessment Rs. 7,500 per annum for the first 10 years from 1st April, 1940. Assessment Rs. 15,000 per annum for the next 10 years. Assessment Rs. 30,000 per annum for the remaining 30 years. The assessment was to begin to run from I st April, 1940, and the first payment of the assessment was to become due on 1st April, 1941. The present suit was thereupon filed in the Court of the Revenue Judge in accordance with the provisions of the Bombay City Land Revenue Act, 1876, for the following reliefs, inter alia --- a that it may be declared that there is a right on the part of the plaintiff Corporation in limitation of the right of Government to assess the said land and that the plaintiff Corporation is entitled to hold the said land for ever without payment of any assessment and that the Govern- ment has numberright to assess the said premises, That the said assessment may be declared ultra vires, invalid and may be ordered to be set aside. By his judgment dated October 27, 1942, the learned Revenue Judge dismissed the suit with companyts. The Corpora- tion appealed to the High Court. Before the High Court, as before us, two of the learned Revenue Judges companyclusions were number challenged. namely, 1 that the Government Resolu- tion of 1865 was-bad in law either as a grant or even as a companytract and companyld number by itself operate to give any inter- est in the land to the respondent Corporation because of the number-compliance with the formalities required to be observed by Statute 22 23 Vic. C. 41 in the matter of disposition of all real and personal estate vested in the Crown under Statute 21 22 Vic. C. 106, and 2 that the Crowns right to levy assessment on property was a prerogative right to which the ordinary presumption that rights to property which had number been asserted or exercised for a long period of years had been granted away did number apply- What was urged before and accepted by the High Court was that the right of the Government to levy any assessment on the land in ques- tion had been lost and companyld number be asserted or exercised by the Government by reason of the equity arising on the facts and circumstances of the case in favour of the respondent Corporation on the principle established by the decision in Ramsden v. Dyson 1 which was adopted by Jenkins C.J. in The Municipal Corporation of the City of Bombay v. The Secretary of State 2 and which equity was, on the authorities, bind- ing on the Crown. After dealing with the cases of Dadoba Janardhan v. The Collector of Bombay 3 and Jethabhoy Rut- tonsey v. The Collector of Bombay 4 the High Court observed -- We think, on a reading of the language of the Govern- ment Resolution dated the 19th December, 1865, that we should be justified in holding within the meaning of the rule in Ramsden v. Dyson that an expectation was created or encouraged by the landlord 1 1866 L.R. 1 H.L. 129. 3 1901 I.L.R. 25 Bom. 714. 2 1905 I.L.R. 29 Bom. 580. 4 1901 I.L.R. 25 Bom. 752. that the Municipality was to get possession of the land rent-free and that the latter took possession of the land with the companysent of the landlord, and upon such expectation, with the knowledge of the landlord and without objection by him, laid out money upon the land. According to the High Court the rule of equity enunciat- ed in Ramsden v. Dyson supra was number, as pointed out by Jenkins C.J. in Municipal Corporation of the City of Bombay The Secretary of State supra , dependent on the validity of the disposition and companyld be asserted even where the statutory formalities relating to the disposition of the property had number been observed and performed, and that this equity companystituted a right on the part of the respondent Corporation in limitation of the right of the Government in companysequence of a specific limit to assessment having been established and preserved within the meaning of section 8 of the Act II of 1876 so as to disentitle the Government from assessing the land in question. The High Court relied on the decision in Kamalavahooji Maharaj v. The Collector of Bombay 1 in support of their view that section 8 of the Bombay Act II of 1876 would apply even where the specific limit was nil. In the result, the High Court reversed the decision of the learned Revenue Judge, allowed the appeal and passed a decree declaring the rights of the respondent Corporation and awarding to it the companyts in both Courts. The Collector of Bombay appealed to the Federal Court and the appeal has number companye up for hearing before us. There has been companysiderable discussion before us as to the precise scope and effect of the principle of equity enunciated in Ramsden v. Dyson supra , as to whether such principle should be extended to the facts of the present case, whether the facts of this case attract the applica- tion of the equity established in Ramsden v. Dyson supra or attract the equity established in Maddison v. Alderson 2 and Walsh v. Lonsdale 3 and finally as to whether, in view of the decision 1 1937 39 Bom. L.R. 1046. 3 1882 L.R. 21 Ch. D. 9. 2 1883 L.R. 8 App. Cas. 417. of the Privy Council in Ariff v. Jadunath 1 , the equity in Ramsden v. Dyson supra can prevail against the requirement of formalities laid down in the Victorian Statute referred to above any more than the equity in Maddison v. Alderson supra can do against the requirements of the Transfer of Property Act and whether the decision in The Municipal Corporation of the City of Bombay v. The Secretary of State 2 requires reconsideration in the light of the deci- sion in Ariffs case supra . In the view we have taken, it is number necessary to go into, and to express any opinion on, any of these questions, for this appeal can, in our opinion, be disposed of on a narrower and shorter ground. The Government claims to assess the lands in terms of section 8 of the Bombay Act II of 1876 which runs thus -- It shall be the duty of the Collector, subject to the orders of the Provincial Government, to fix and to levy the assessment for land revenue. Where there is numberright on the part of the superior holder in limitation of the right of the Provincial Govern- ment to assess, the assessment shall be fixed at the discre- tion of the Collector subject to the companytrol of the Provin- cial Government. When there is a right on the part of the superior holder in limitation of the right of the Provincial Government, in companysequence of a specific limit to assessment having been established and preserved, the assessment shall number exceed such specific limit. The sole question for our companysideration is whether, on the facts of this case, the respondent Corporation has succeeded in establishing in itself a right in limitation of the right of the Government to assess the land in companyse- quence of a specific limit to assessment having been estab- lished and preserved. There is numberdispute that by reason of the number-compliance with the statutory formalities the Gov- ernment Resolution of 1865 is number an effectual grant passing title in the land to the respondent Corporation and is number also an enforceable 1 1931 L.R. 58 I.A. 91. 2 1905 I.L.R. 29 Bom. 580. companytract. On the other hand, there is numberdoubt as to the existence of an intention on the part of the Government to make and on the part of the Corporation to take a grant of the land in terms of the Resolution of 1865 including an undertaking by the Government number to charge any rent. Both parties acted on the basis of that Resolution and the prede- cessor in title of the respondent Corporation went into possession of the land in question pursuant to the Govern- ment Resolution of 1865 and, acting upon the said Resolution and the terms companytained therein, the respondent Corporation and its predecessor in title spent companysiderable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question ? They were in possession of the land to which they had numberlegal title at all. Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having numberlegal title but nevertheless holding possession of the land under companyor of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such pos- session number being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has companytinued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for numberother purpose. There is numberquestion of acquisition by adverse possession of the Governments prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as if a legal grant had been made to it. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily companysti- tute a right in limitation of the Governments right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of section 8 of the Bombay Act II of 1876. It is true, as pointed out by the Privy Council in Karnalavahooji Maharaj Collector of Bombay supra that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a companyplete exemption from assessment but such a companystruction would number protect the cases of total exemption which, as companyceded in that very case, did in fact exist and were recognised and protected by virtue of the words of section 8 of the Bombay Act II of 1876. It has number been suggested before us that there are numbercases of total exemption or that those cases are protected by any provision of law other than that of this very sec- tion. There is, therefore, numberescape from the companyclusion arrived at by the High Court, with which we companycur, that the words of section 8 would apply to a case where total exemp- tion from assessment was granted. In other words, specific limit may be nil for the purposes of section 8 of the Act. It was sought to be argued that even if the Government be precluded from enhancing the rent in view of the terms of the Government Resolution, it cannot be held to have disentitled itself from its prerogative right to assess land revenue. This companytention is sought to be rounded on a distinction between rent and land revenue. This companyten- tion, however, was number raised in the written statement and was number made the subjectmatter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated March 22, 1939, to which reference has been made, it was clearly alleged that the word rent was used in official documents with the greatest frequency with reference to the land revenue leviable by the East India Company and later by the Government in the City of Bombay and in the Presidency. In the Governments reply dated January 24, 1940, also quoted above this assertion was never repudiated or denied. In the premises, the appellant cannot be permit- ted at this stage to raise this companytention rounded on the supposed distinction, if any, between rent and land revenue and for the purpose of this case we must proceed on the basis that the word rent in the Government Resolution of 1865 was synonymous with or included land revenue. In our opinion, for reasons stated above, the actual decision of the High Court was companyrect and this appeal should be dismissed with companyts, and we order accordingly. PATANJALI SASTRI j.--I am of opinion that this appeal should be allowed and I will briefly indicate my reasons without recapitulating the facts which have been fully stated in the judgment of my learned brother Das which I have had the advantage of reading. The appeal companycerns a claim by the Provincial Govern- ment of Bombay to charge land revenue on a plot of land on which the predecessors of the respondent Municipality erect- ed the buildings known as the Crawford Market in the City of Bombay. It is companymon ground that the land in question would be assessable to land revenue under section 8 of the Bombay City Land Revenue Act No. II of 1876 unless the respondent established a right in limitation of the right of the Provincial Government in companysequence of a specific limit to assessment having been established and preserved, in which case, the assessment must number exceed such specific limit. It has been held, and it is number number disputed, that the words quoted above companyer a right of total exemption from assessment, the specific limit in such a case being nil see Goswamini Shri Kamala- vahooji v. Collector of Bombay 1 . The only question, therefore, is whether the respondent has established a right to such exemption. The resolution of the Government dated 19th December, 1865, authorising the grant of the land without any rent being charged to the Municipality as the market will be like other buildings for the benefit of the whole companymunity did number by itself purport to pass title to the land in question or to companyfer on the Municipality a right to exemp- tion from land revenue. Admittedly numberformal instrument was executed either granting the land or exempting it from assessment. Nor companyld the resolution be regarded as a valid disposition of property or an enforceable companytract number to charge revenue on the land, as it did number companyply with the requirements of the statute 22 23 Vic. C. 41 which pre- scribed certain formalities to be observed for such transac- tions. As pointed out by Jenkins C.J. in Municipal Corpora- tion of the City of Bombay v. The Secretary of State 2 all land in British India having been vested in the Crown by 21 22 Vic. C. 106, the Governor-in-Council in Bombay companyld number dispose of property or enter into a companytract on behalf of the Crown except in exercise of the power bestowed on them for the purpose under 22 23 Vic. C. 41, and that power companyld be exercised only by observing the formalities prescribed by that statute. The learned Judges of the High Court, while recognising this difficulty in the way of the respondent establishing a legal right to exemption from assessment, held that the companyduct of the Provincial Govern- ment in allowing and, indeed, encouraging the respondent to erect the buildings at great companyt on the faith of the prom- ise number to charge land revenue companytained in the Resolution of 19th December, 1865, precluded the respondent on the equitable principle recognised in Ramsden v. Dyson from assessing the land in question, and that this L.R. 64 I.A. 334. 3 1866 L.R. 1 L. 129. 2 1905 I.L.R. 29 Bom. 580. equity was a right in limitation of the right of the Provincial Government to assess. I am unable to share that view. There is, in my opin- ion, numberroom here for the application of the principle of Ramsden v. Dyson 1 . That decision has been explained by the Privy Council in Ariff v. Jadunath 2 as based on the equitable doctrine of part performance which, their Lord- ships held, companyld number be applied so as to nullify the ex- press provisions of the Transfer of Property Act relating to the creation of leases. They observed - Whether an English equitable doctrine should, in any case, be applied so as to modify the effect of an Indian statute may well be doubted but that an English equitable doctrine, affecting the provisions of an English statute relating to the right to sue upon a companytract, should be applied, by analogy, to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible. After quoting the well-known passage in the judgment of Lord Kingsdown, their Lordships companymented thus -- It will be numbericed that Lord Kingsdown is dealing with the case of express verbal companytract or something which amounts to the same thing. He numberhere puts the case of estoppel the word is number mentioned. He would appear to be dealing simply with the equitable doctrine of part perform- ance. His reference to Gregory v. Mighall 1811 18 Ves. 3281 companyfirms this view, for that case was simply an earlier instance of the application of the doctrine. Even if Lord Kingsdowns language was intended to companyer something beyond the equitable doctrine of part performance in relation to the Statute of Frauds, and was intended to refer to circum- stances in which a companyrt of equity will enforce 1 1866 L.R. 1 H.L. 129. 2 1931 58 I.A. 91. a title to land against the person who at law is the owner thereof, the title must, nevertheless, in their Lordships view, be based either upon companytract express or implied, or upon some statement of fact grounding an estoppel. In the later decision in Mian Pir Bux v. Sardar Ma- horned 1 their Lordships reiterated the same view and held that English equitable doctrines did number afford in India a valid defence to an action in ejectment based on title. After these decisions of the Privy Council elucidating the principles underlying Ramsden v. Dyson 2 and Maddison Alderson 3 , it seems to me clear that they have numberapplication to the facts of the present case. They can numbermore prevail against the statutory provisions regarding the disposition of property or the making of companytracts by Gov- ernment than against the provisions of the Transfer of Property Act requiring registered instruments for effecting certain classes of transactions. No question of estoppel by representation arises, for the Government made numberrepresen- tation of fact which it number seeks to deny. Nor can any case of estoppel by acquiescence be rounded on the facts of the case. Both parties knew the facts and neither was misled. There was numberlying by and letting another run into a trap per Cotton L.J. in Russell v. Watts 4 . The companyduct of the parties was referable to the express agreement evidenced by the Government Resolution of 19th December, 1865, to make a grant of the land free of rent which, in such companytext, means and includes revenue . No question, therefore, of any implied companytract companyld arise. Unfortunately for the respond- ent, the express agreement was unenforceable owing to number- observance of the prescribed statutory formalities, though it was acted upon by both sides. No question arises here as to the respondents title to the land which apparently has been perfected by lapse of time. But it is clear that numberright of exemption has been established either on the basis of express or implied 1 1878 6 I.A. 388. 3 1883 8 App. Cas. 467. 2 1866 L.R. 1 H.L. 129. 4 1884 25 Ch. D. 559. companytract or on the basis of the equitable principles of part performance or estoppel by acquiescence. It was next companytended that, on the analogy of the line of cases holding that a limited interest in land companyld be acquired by adverse possession for over the statutory peri- od, the respondents possession of the land in dispute without payment of any quit rent or revenue for over 70 years to the knowledge of the. Government perfected its title to hold the land free from liability to pay land revenue. It is difficult to appreciate the argument so far as the claim to exemption is companycerned. There is numberquestion here of acquisition of a limited interest in land by adverse possession. The respondent was asserting full ownership and a right of exemption from assessment and the Government agreed with that view as shown by their letter dated 26th June, 1921, to the Land Acquisition Officer for the City of Bombay wherein they stated that numberGovernment claim in respect of the land under acquisition a portion of the land here in question in the above mentioned case is made as the land vests in the Municipality. Be it numbered that the Government made numberclaim even to a portion of the companypensa- tion on the basis of any right of resumption reserved to them, the Resolution of 1865 having made numbersuch reserva- tion. The position then was that throughout the period of adverse possession, the respondent Municipality regarded itself and was regarded by the Government as absolute owner of the land with the additional right of exemption from assessment to land revenue with the result that the Govern- ments right to such property the subject of adverse possession was extinguished under section 28 of the Limitation Act. But the right to levy land revenue was numberpart of the Governments right to the property. It is a prerogative right of the Crown which was placed on a statu- tory basis under the Bombay City Land Revenue Act of 1876, and companyld be exercised in respect of a land only. on the footing that it belonged to another, the superior holder, for, the claim to levy assessment itself implies a recogni- tion of ownership in another. It is, therefore, difficult to see how adverse possession of the land companyld entitle the respondent to exemption from assessment of land revenue. It was said that the Government having intended to grant the land on the terms that it was to be held free of quit rent or revenue and the respondent having held the land on such terms claiming it to be exempt from assessment, a title to hold it on those terms was perfected by the adverse possession, the companyenant for exemption from assessment forming part and parcel of the title. In other words, the respondent should be placed in the same position as if the Government had made a valid revenue free grant. The argument is, to my mind, fallacious. If the Government had given effect to their expressed intention by executing an instru- ment in writing observing the due formalities, the respond- ent would, numberdoubt, have secured a valid title to the property with a companytract binding the Government number to charge revenue, supported as it was by companysideration. But, as already stated, the Governments promise number to charge land revenue was unenforceable from the inception, and the respondents adverse possession of the land, though accompa- nied by a claim to exemption from revenue, companyld number destroy the Crowns prerogative right to impose assessment on the land. A somewhat analogous question arose in Goswamini Shri Kamala Vahooji v. Collector of Bombay 1 . The Government admitted that numberland revenue had ever been charged in respect of the land which was enjoyed by the holders for more than a century without payment of revenue and it was urged that in virtue of such a long enjoyment a lost grant of the land on the terms that it should be held free from liability to pay revenue must be presumed. Rejecting that companytention, their Lordships observed -- The appellant submits that in the circumstances a lost grant should be presumed, and that this lost grant should be presumed to have companytained an exemption from land revenue or a right in limitation of the right 1 1937 64 I.A. 334. of Government to assess the property. The law may presume the existence of a grant which has been lost where it is sought to disturb a person in the enjoyment of right which he and his predecessors have immemorially enjoyed, but it is a different thing to seek to presume that the Crown has by some lost grant deprived itself of the prerogative power to tax the property of its subjects, and their Lordships are of opinion that this plea is untenable. italics mine . The decision shows that exemption from land revenue does number form part and parcel of the title to land but is companylateral to it. If a presumed lost grant companyld number companyer it neither companyld title by adverse possession. I would allow the appeal but make numberorder as to companyts. CHANDRASEKHARA AIYAR J.--I had the advantage of reading the judgment prepared by my learned brother Mr. Justice Das, and 1 agree in the companyclusion he has reached but i wish to add a few words of my own on some of the points that have been discussed during the companyrse of the hearing. In the first place, there can be little doubt that the word rent in paragraph 2 of the Government Resolution of the 19th December. 1865, means assessment . It is true that this word is used generally in cases of landlord and tenant, but when it is remembered that here the Govern- ment was parting with the land vested in the Crown in favour of the Municipal Corporation of Bombay, it can safely be assumed or presumed that they were thinking number merely of their rights as landlord but also of their prerogative right as well. That the land was going to be used for the build- ing of markets for the benefit of the whole companymunity and, therefore, should number be charged with rent is a companysidera- tion more relevant and appropriate to the prerogative right to assess than to a right to companylect rent in respect of a transaction of lease. Moreover, it is well-known that when- ever we speak of a rent-free grant of an inam by the Government, what is meant is land revenue or assessment. The Resolution in question authorized the grant of the site. There is apparently numbergrant in writing, companyforming to the formalities prescribed by the law then in force. Part of the site was wanted for the erection of stables and the question of title to that portion was companysidered and decided in The Municipal Corporation of the City of Bombay The Secretary of State for India in Council 1 , where the Government gave the Municipality numberice to quit and brought a suit for rent on the alleged determination of the tenancy. It is part of the same transaction with which we are companycerned number, and it seems to me that there was numbervalid grant. The grant having been authorized, the Corpora- tion went into possession and it is number denied that they have built the Crawford Market at enormous companyt. Though the grant was invalid, the Corporation has number acquired a title by adverse possession to the site this, however, is number the case with reference to the stable site companyered by the afore- said Bombay decision. There the question was brought before the Court, well within the 60 years period. The Crawford Market site has been in the possession of the Municipal Corporation for over 60 years under an invalid grant, a term of which was that numberrent should be charged. We are number companycerned number with any question of ejectment or determination of tenancy. Could it be said that the right to levy assessment on the land, enjoyed without any payment of any kind so far, was lost by adverse possession ? I find it difficult to give an affirmative answer. Before a right companyld be said to be acquired or lost by adverse possession, it must have been the subject of possession by a man without title as against the person with the rightful title. Right to levy assessment is a prerogative right of the Government and it is hard to companyceive of a case where it companyld be said to be lost by adverse possession. True, there can be adverse possession of a limited 1 1904 I.L.R. 29 Bom. 580. right like that of a mortgagee or a lessee or even a perma- nent tenant, but still a right must have been enjoyed by the possessor adversely to the claim of the true owner. It is unnecessary to go into the wider question whether the denial of the right to levy assessment and possession of property companypled with this denial for over a period of 60 years will negative that right it is sufficient to say that numberright to levy assessment was exercised in the case before us before March, 1938, and the denial was only afterwards. This, however, does number determine the case in favour of the appellant, as there is a question of equity to company- sider and on which the appellant failed in the companyrt below. In fact, it is the crucial point for determination. When the Architectural Improvement Committee proposed to levy a numberinal rent, the Government stated that numberrent need be charged, as the markets to be built were for the benefit of the whole companymunity. This was a representation made by the Government when the site was given and possession was taken. How far this representation was taken into companysideration when the Corporation of Bombay took possession of the site under the grant is number necessary to be companysidered at any great length. It is just possible that they would have taken the site even with the numberinal rent, but it is equally possible that had they known that the rent was in the nature of assessment and liable to enhancement from time to time or periodically, they would have insisted on getting a site free from assessment in companysideration of the sites they gave up for forming the eastern Boulevard. The allegation in.paragraph 7 of the plaint that the Corporation acted on the faith of the terms companytained in the grant has number been denied by the Government. The accident that the grant was invalid does number wipe out the existence of the representation of the fact that it was acted upon by the Corporation. Even if the suit had been brought within 60 years for ejectment and the Corporation had numberanswer to such a claim, the right to levy assessment might have companyceivably stood on a different footing. In any event, there can be numberdoubt that it would have been companypetent for a Court of equity to give companypensation for the expenditure and protect the possession in the meantime. Lord Kingsdown refers to this aspect of the matter in Ramsden v. Dyson 1 . In the present case, the Corporation stands on much firmer ground. They have acquired a title to the land which the Government cannot upset or challenge. This acquisition of title is as a result of the law of limitation. It has numberhing to do with any companyduct on the part of the Corpora- tion which can be said to have rendered the representation about number-liability to assessment of numberlegal effect or companysequence. The invalidity of the grant does number lead to the obliteration of the representation. Can the Government be number allowed to go back on the representation, and ,if we do so, would it number amount to our companyntenancing the perpetration of what can be companypendiously described as legal fraud which a companyrt of equity must pre- vent being companymitted? If the resolution can be read as meaning that the grant was of rent-free land, the case would companye strictly within the doctrine of estoppel enunciated in section 115 of the Indian Evidence Act. But even otherwise, that is, if there was merely the holding out of a promise that numberrent will be charged in the future, the Government must be deemed in the circumstances of this case to have bound themselves to fulfil it. Whether it is the equity recognised in Ramsdens case 1 , or it is some other form of equity, is number of much importance. Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power. As pointed out by Jenkins C.J. in Dadoba Janardhans case 2 , a different companyclusion would be opposed to what is reasonable, to what is probable, and to what is fair. I am of the opinion that the decision of the Privy Council in Ariff v. Jadunath 3 is number applicable to the facts before us, as the doctrine of part performance 1 1866 L.R. 1 H.L. 129. Dadoba Janardan v. The. Collector of Bombay 1901 L.R,. 25 Born.

Case appeal was rejected by the Supreme Court

Fazl Ali, J. This is an appeal from a judgment of the High Court at Calcutta in a reference under Section 66 1 of the Indian Income-tax Act, 1922. The facts which are material for the purpose of deciding this appeal, may be briefly stated as follows - The respondent, Messrs. Isthmian Steamship Lines hereinafter referred to as the companypany is a companypany incorporated in the United States of America and owns steamships which visit India. The companypanys Indian profits which are companyputed on the basis of day on round voyage are assessed to tax under the Indian Income-tax Act as a companypany through its agents, Messrs. Angus Co., Ltd. In the companyrse of the assessment for the years 1941-42, 1942-43 and 1943-44, the companypany claimed that its unabsorbed depreciation at the end of 1938-39 should be deemed to be a part of the depreciation allowance for 1939-40 and therefore such unabsorbed depreciation should be allowed to be further carried forward under Section 10 2 vi of the Income-tax Act. This claim was negatived by the Income-tax Officer, the Appellate Assistant Commissioner of Income-tax and the Income-tax Appellate Tribunal. The Tribunal however, at the instance of the companypany, referred the following question to the High Court for its opinion - Whether on the facts and in the circumstances of this case the Tribunal was right in holding that the unabsorbed depreciation at the end of the year 1938-39, which was number given effect to in the subsequent years, companyld number be treated as part of the allowable depreciation for the relevant assessment years which are assessment years 1941-42, 1942-43 and 1943-44. The High Court answered the question in favour of the companypany, and gave a certificate to the Commissioner of Income-tax under Section 66A 2 of the Act to appeal to this Court and hence this appeal. Before stating the precise point which arises for determination in this appeal, it will be companyvenient to set out Section 10 2 vi of the Income-tax Act, both as it originally stood and as it number stands after being amended in 1939, in parallel companyumns. SECTION 10 2 vi A--BEFORE AMENDMENT B--AFTER AMENDMENT IN 1939 Such profits or gains shall be companyputed after making the following allowances namely in respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee, a sum equivalent to such percentage on the original companyt thereof to the assessee as may in any case or class of cases be prescribed Provided that-- a the prescribed particulars have been duly furnished b where full effect cannot be given to any such allowance in any year owing to there being numberprofits or gains chargeable for the year, or owing to the profits or gains chargeable being less than the allowance, the allowance or part of the allowance to which effect has number been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following year and deemed to be the allowance for that year, and so on for succeeding years and c the aggregate of all such allowances made under this Act or any Act repealed hereby or under the Indian Income-tax Act, 1886, shall, in numbercase, exceed the original companyt to the assessee of the buildings, machinnery, plant or furniture as the case may be. Such profits or gains equivalent, where the assets are ships other than ships ordinarily plying on inland waters to such percentageprescribed and in any other case, to percentage on the written down value thereof as may in any case or class of cases be prescribed -- Provided that-- No change. b where fullany year, number being a year which ended prior to the 1st day of April, 1939, owing for succeeding years and No change. The underlined here italicized words have been added by the Amending Act of 1939 The underlined words have been added by the Amending Act of 1939. The Tribunal as well as the High Court have rightly pointed out that the material changes introduced in the amended section are 1 that before the amendment of 1939, depreciation was based on the original companyst, whereas it is number based on the written down value for all assets except ocean-going steamers for which the old basis of original companyt has been retained and 2 that it is number provided that the unabsorbed depreciation at the end of a year, which ended prior to the 1st day of April, 1939, shall number be carried forward. It is to be numbericed that the amendment was to take effect from the 1st April, 1940. The decision of this appeal largely turns upon the effect of the following words - Where full effect cannot be given to any such allowance in any year, number being a year which ended prior to the 1st day of April, 1939, owing to there being numberprofits or gins chargeable for that year the allowance or part of the allowance to which effect has number been given shall be added to the amount of the allowance for depreciation for the following year and deemed to be part of that allowance and so on for succeeding years. It may be observed that as a result of this provision, the unabsorbed depreciation for a particular year becomes, by legal fiction, part of the allowance for depreciation for the succeeding year. The material question to be decided in this case is whether the companypany an be allowed to carry forward the unabsorbed depreciation remaining at the end of 1938-39 and treat it as part of the depreciation for 1939-40. If so, it would necessarily be a part of the depreciation for 1940-41. The Appellate Assistant Commissioner of Income-tax answered the question in the negative and gave two reasons for number giving effect to the companytention of the assessee. Firstly, he pointed out that in the companyrse of the assessment for the year 1940-41, the question whether the unabsorbed depreciation remaining at the end of the year 1938-39 companyld or companyld number be carried forward and allowed in subsequent years had companye up for companysideration before the Income-tax Officer but he had decided that it companyld number be so carried forward. Nevertheless, the companypany did number appeal against the order and hence the matter companyld number be reopened in subsequent assessments. Secondly, by reason of the amendment of the section, the respondent-company was number entitled to carry forward the unabsorbed depreciation at the end of 1938-39. The Income-tax Appellate Tribunal did number accept the first ground but based its decision only on the second ground. In this appeal, we are number companycerned with the first ground, because, as has been pointed out by the learned Chief Justice in the order granting leave to appeal, the Income-tax authorities appear to have accepted the view of the Tribunal on the first point since they did number ask the Tribunal to state a case giving rise to the companytention which had found favour with the Appellate Assistant Commissioner but had been rejected by the Tribunal. The only question with which we are thus companycerned in whether or number the companypany was entitled to carry forward the unabsorbed depreciation at the end of 1938-39. In our opinion, this question has been rightly answered by the High Court in favour of the assessee. It will be observed that we are companycerned with two datum lines 1 the 1st April, 1940, when the Act came into force, and 2 the 1st of April, 1939, which is the date mentioned in the amended proviso. The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because in income-tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied. The first datum line therefore affected only the assessment year of 1940-41, because the amendment did number companye into force till the 1st of April, 1940. That means that the old law applied to every assessment year up to and including the assessment year 1939- 40. In the assessment year 1938-39, the assessee showed a certain unabsorbed depreciation in its accounts year for the calendar year 1937, that being the assessees accounting year for the assessment year 1938-39. Under the unamended section, he was permitted to carry that amount forward into the accounting year 1938, add it to the depreciation for 1938 and treat the total amount as the allowance for the assessment year 1939-40. The Income-tax Officer refused to allow that amount, but, for the reasons already stated, we have to disregard that fact and therefore, for the purpose of the present reference, must treat the unabsorbed depreciation which was carried forward from the assessment year 1938-39 into the accounts of the assessment year 1939-40 as the unabsorbed depreciation in the assessment year 1939-40 and treat it as unabsorbed for the reason that the profits in that year were number sufficient to absorb this sum, that being the position which would have resulted had the Income-tax Officer number disallowed the sum. In other words, in answering the reference, we have to accept the position which the accounts would have revealed had the Income-tax Officer number wrongly refused to allow the unabsorbed depreciation of 1938-39 to be carried forward to 1939-40. It follows from this, as the learned Chief Justice has pointed in the judgment under appeal, that according to the mandatory provision of the old section, the allowance for 1939-40 is number only the percentage allowed for that year but also the unabsorbed depreciation of 1938-39. Now we companye to the assessment year 1940-41. The amended section applied here and the question is whether under the new law this figure companyld be carried forward into 1940-41. The first question which arises is whether the assessment year 1939-40 is an assessment year which ended prior to the 1st of April, 1939. It is evident that it is number, because it ended on the 31st of March, 1940. Therefore, it is number one of the excluded years. As it is number, and as, on the facts set out above, what must be regarded as the unabsorbed depreciation for the year 1939-40 companyld number absorbed for the reason given in the amended section, it follows that it can be carried forward into the accounts of the assessment year 1940-41 and from there on to the accounts of the succeeding assessment year, if it is number absorbed meanwhile for the reason given in the proviso. As has been pointed out already, the section provides what in order to enable the unabsorbed depreciation to be carried forward to the succeeding year, it must be shown that full effect was number given in the previous year, owing to there being numberprofits or gains chargeable for the year, or, owing to the profits or gains chargeable beings less than the allowance. It was argued on behalf of the appellant that in the present case full effect companyld number be given to the unabsorbed depreciation number for the reasons stated in the section but on account of the failure of the assessee to take the matter in appeal against the assessment for 1940-41. In our opinion, this view is based on a misreading of the section. The words used in the section are - where full effect cannot be given, and number where full effect has number been given. It is number denied that the profits or against were less than the depreciation allowance, and that being to the requirements of the section were satisfied.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Petition No. 328 of 1951.Petition under article 32 of the Constitution for issue of writs in the nature of certiorari, prohibition and mandamus. The facts appear in the judgment. The petitioner in person. K. Daphtary, Solicitor-General of India, J. B. Dadachanji, with him for the respondent. 1951. December 21. The Judgment of the Court was delivered by PATANJALI SASTRI.C.J.--This is a petition under article 32 of the Constitution for the enforcement of the petition- ers fundamental rights under article 19 1 f and article 31 1 alleged to have been violated by the Central Bank of India Ltd., a companypany incorporated under the Indian Compa- nies Act, 1882, and having its registered office at Bombay, hereinafter referred to as the Bank . It appears that the petitioner held five shares in the Share capital of the Bank which sold those shales to a third party in purported exercise of its right of lien for recovery of a debt due to it from the petitioner, and the transfer was registered in the books of the Bank in the year 1937. The petitioner thereupon instituted a series of pro- ceedings in the High Court at Bombay on its original and appellate jurisdiction challenging the validity of the said sale and transfer. The latest of these proceedings was a suit filed against the Bank in 1951 wherein the plaint was rejected on 2nd March, 1951, under Order 7, Rule 11 d , of the Code of Civil Procedure as barred by limitation. The petitioner number prays that all the adverse orders made in the previous proceedings be quashed and the said High Court be directed to have the above suit set down to be heard as undefended and pronounce judgment against the respondent or to make such orders as it thinks fit in relation to the said suit. It may be mentioned here that though the aforesaid order rejecting the petitioners plaint was appealable, the petitioner did number prefer an appeal on the somewhat extraor- dinary ground that the appeal if filed companyld number be heard by the Judges of the said Court as all of them were disqual- ified from hearing such appeal either because of their interest in the Bank or because of their prejudice against him. We are of opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither article 19 1 f number article 31 1 on its true companystruction was intended to prevent wrongful individual acts or to provide protection against merely private companyduct. Article 19 deals with the right to free- dom and by clause 1 assures to the citizen certain funda- mental freedoms including the freedom to acquire, hold and dispose of property subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in clauses 2 to 6 . The language and structure of article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regu- late private rights in the public interest, Violation of rights of property by individuals is number within the purview of the article. The position is numberbetter under article 31 1 . The petitioner has urged that clause 1 should be companystrued apart from and independently of the rest of the article and, if so companystrued, its language is wide enough to companyer in- fringements of rights of property by private individuals. He laid emphasis on the omission of the word State in clause 1 while it was used in clause 2 of the same article as well as in many other articles in Part III. Referring to entry No. 33 of the Union List, entry No. 36 of the State List and entry No, 42 of the Concurrent List of the Seventh Schedule to the Constitution, he also argued that, while these entries read with article 246 empowered Parliament and the State Legislatures to make laws regarding acquisition or requisitioning of property for the purposes of the Union or the State as the case may be. numberpower was companyferred to make laws regarding deprivation of property by the State, so that the deprivation companytemplated in clause 1 companyld only be deprivation by individuals. Sub- section 1 of section 299 of the Government of India Act, 1935, companyresponding to clause 1 of article a 1 was, it was pointed out, omitted in the draft article 19 later numbered as article 81 which retained in a modified form only the provision companytained in sub-section 2 of that section relating to companypulsory acquisition of property for public purposes. But, clause 1 was subsequently restored and article was enacted in its present form as recommended in Drafting Committees Report and this, it was claimed, showed that clause 1 was intended to operate as a distinct provi- sion apart from clause 2 . We see numberforce in any of these arguments. In support of the argument that clause 1 should be companystrued in isolation from the rest of the article, the petitioner relied on certain observations of our learned brother Das in Chiranjit Lal v. The Union of India 1 , where the view was expressed that clause 1 enunciated the general principle that numberperson should be deprived 1 1950 S.C,R,. 860. of his property except by authority of law and laid down numbercondition for payment of companypensation, while clause 2 dealt with deprivation of property brought about by acquisi- tion or taking possession of it and required payment of companypensation. In other words, deprivation referred to in clause 1 must be taken to companyer deprivation otherwise than by acquisition or requisitioning of property dealt with in clause 2 . We companysider it unnecessary for the purpose of the present petition to go into that question. Even assuming that clause 1 has to be read and companystrued apart from clause 2 , it is clear that it is a declaration of the fundamental right of private property in the same negative form in which article 21 declares the fundamental right to life and liberty. There is numberexpress reference to the State in article 21. But companyld it be suggested on that account that that article was intended to afford protection to life and personal liberty against violation by private individuals ? The words except by procedure established by law plainly exclude such a suggestion. Similarly, the words save by authority of law in clause 1 of article 31 show that it is a prohibition of unauthorised governmental action against private property, as there can be numberquestion of one private individual being authorised by law to deprive anoth- er of his property. The argument based on the entries in the Lists is fallacious. It is number companyrect to suggest that, merely be- cause there is numberentry in the Lists of the Seventh Schedule relating to deprivation of property as such, it is number within the companypetence of the legislatures in the companyntry to enact a law authorising deprivation of property. Such a law companyld be made, for instance, under entry No. 1 of List II, entry No. 1 of List II or entry No. 1 of List III. Article 31 1 itself companytemplates a law being passed authorising deprivation of the properties, and it is futile to deny the existence of the requisite legislative power. Nor does the legislative history of the article lend any support to the petitioners companytention. Section 299 1 of the Government of India Act, 1935, was never inter- preted as prohibiting deprivation of property by private individuals. Its restoration, therefore, in the same form in article 31, after omission in the original draft article 19, companyld lead to numberinference in support c. of the peti- tioners companytention, which indeed proceeds on the fundamen- tal misconception that article 19 1 f and article 31 1 , which are great companystitutional safeguards against State aggression on private property, are directed against in- fringements by private individuals for which remedies should be sought in the ordinary law. In this view it is unnecessary to deal with certain other objections to the maintainability of the petition raised by the Solicitor-General on behalf of the Bank.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION. Appeal from a judgment and decree of the Judicial Commissioner of Coorg dated 1st April, 1946, in Original Suit No, 1 of 1945. R. Pattabhi Raman, for the appellant. Jindra Lal, for the respondent. 1951. February 9. The judgment of the Court was deliv- ered by FAZL ALI J.--This is an appeal from a judgment of the Judicial Commissioner of Coorg in a suit filed by the first respondent hereinafter referred to as the plaintiff against the appellant hereinafter referred to as the first defendant and the second respondent hereinafter referred to as the second defendant , for the specific performance of a companytract. The first defendant owned a bungalow in Mercara known as Morvern Lodge . The suit which has given rise to this appeal was instituted by the plaintiff for the specific performance of an alleged companytract of sale in respect of this bungalow. It appears that the first defendant owned certain es- tates in Mercara, and one Mr. White was an alternative director in one of the estates, and Youngman was the manager of another estate also belonging to the first defendant and was looking after Morvern Lodge during his absence. It seems that about the middle of 1944, the plaintiff asked White if he would cable to the first defendant his offer of Rs. 4,000 for the bungalow, and, on the 1st June, 1944, White sent a cable to the first defendant to the following effect -- Have enquiries Mercara bungalow if for sale, wire lowest figure. On the 24th July, 1944, the plaintiff wrote to the first defendant that he was prepared to purchase the bungalow for Rs. 5,000 and if the offer was acceptable to him, he the first defendant should inform the plaintiff to which bank he should issue a cheque in payment of the price. This letter was followed up by a cable from Youngman to the first defendant to the following effect -- Have had offer Morvern Lodge rupees six thousand for immediate possession. On the 8th August, 1944, Youngman received a cable from the first defendant saying Wont accept less than rupees ten thousand. On the 7th August, 1944, the plaintiff wrote to Youngman asking him whether his offer had been accepted, and saying that he was prepared to accept any higher price if found reasonable. Meanwhile, on the 8th August, the first defendant sent an airgraph to Youngman, which states inter alia -- I got a cable from you a few days ago saying you had had an offer of Rs. 6,000 for Morvern Lodge. At the same time I got one from White saying value of Bunga- low was Rs. 10,000. So wired you- Wont accept less than Rs. 10,000. On the 9th August, 1944, Youngman wrote to the plaintiff as follows - In reply to your letter, dated 7th August, I received yesterday a cable from Co1. MacPherson regarding your offer of Rs. 6,000, which reads as follows -- Wont accept less than rupees ten thousand MacPherson. The plaintiff has stated in his plaint that this letter of Youngman was received by him on the 14th August, 1944, and he immediately accepted the companynter-offer made by the first defendant , and companyfirmed it in writing in a letter addressed to Youngman. In his evidence, however, the plain- tiff has stated that he met Youngman on the 11th August after receiving his letter and told him personally that he would pay Rs. 10,000 for the bungalow and will require immediate delivery. There was also some talk about the companyveyance charges, and ultimately the plaintiff agreed to bear those charges. Afterwards, he wrote to Youngman a letter on the 14th August in which after referring to the companyversation he had with the latter he stated as follows -- I hereby companyfirm my oral offer of ten thousand for the bungalow. I shall be grateful if you will kindly hurry up with companysultation with your lawyers at Madras and make arrangements to receive the money and hand over the bungalow as early as practicable. It appears that three days later, i.e. on the 17th August, one Subbayya wrote to Youngman stating that he companyfirmed his offer of Rs. 10,500 made to him Youngman the previous day for the purchase of the bungalow , and he expected that the latter had cabled to the first defendant companymunicating the offer as promised. It seems that Youngman did number companymunicate Subbayyas offer to the first defendant, but sent a cable to him on the 26th August to the following effect -- Offered ten thousand Morvern Lodge immediate posses- sion. May I sell. On the same day, White cabled to the first defendant in the following terms- Hold offer for Morvern Bungalow rupees eleven thousand cash subject immediately acceptance and occupation. Strongly recommend acceptance. On the 29th August, Youngman sent an airgraph to the first defendant in which he wrote as follows --- Thank you for your airgraph letters of 8th August which reached me on 24th instant. I cabled you on Saturday an offer of Rs. 10,000 for Morvern Lodge from the would be purchaser who previously had offered Rs. 6,000, but I had a call from White a day or two ago and he tells me that he cabled an offer on the same day of Rs. 11,000. I expect you will have answered these and will have accepted Whites offer. If you have decided will you please arrange for a Power-of-Attorney to be prepared as soon as possible. In the meantime, the first defendant sent a cable to White to the following effect- Accept rupees eleven thousand Morvern Lodge occupation permitted when full amount deposited my account Mercantile Bank Madras inform Youngman. Thereafter, the second defendant paid the amount of Rs. 11,000 and occupied the bungalow. The question to be decided in this case is whether in view of the companyrespondence which has been reproduced, it companyld be held that there was a companycluded companytract for the sale of Morvern Lodge in favour of the plaintiff on the 14th August, as stated by him in the plaint. The Judicial Commissioner of Coorg who tried the suit held that there was a companycluded companytract, but, instead of giving to the plain- tiff a decree for specific performance, awarded a sum of Rs. 3,000 as companypensation to him. Against this decree, the first defendant alone has appealed, after obtaining a cer- tificate under section 109 c of the Civil Procedure Code from the Judicial Commissioner. The plaintiff has number pre- ferred any appeal. The plaintiffs case is that the cable sent by the first defendant on the 5th August, and received by Youngman on the 8th, to the effect that he would number accept less than Rs. 10,000, was a companynter-offer made by him through Youngman to the plaintiff, and the companytract was companyplete as soon as he accepted it. We however find it difficult to hold on the entire facts of the case that there was any companycluded company- tract on the 14th August, 1944, and we are supported in this view by the well-known case of Harvey v. Facey 1 , in which the facts were somewhat similar to those of the present case. In that case, the appellants had telegraphed to the respondents Will you sell us B.H.P.? Telegraph lowest cash price , and the respondents had telegraphed in reply, Lowest price for B.H.P. pound 900, and then the appellants telegraphed, We agree to buy B.H.P. for pound 900 asked by you. Please send us your title-deed in order that we may get early possession, but received numberreply. On these facts, the Privy Council held that there was numbercontract, and Lord Norris, who delivered the judgment of the Board, observed as follows -- The third telegram from the appellants treats the answer of L.M. Facey stating his lowest price as an uncondi- tional offer to sell to them at the price named. Their Lordships cannot treat the telegram from L.M. Facey as binding him in any respect, except to the extent it does by its terms, viz., the lowest price. Everything else is left open, and the reply telegram from the appellants cannot be treated as an acceptance of an offer to sell them it is an offer that required to be accepted by L.M. Facey. The companytract companyld only be companypleted if L.M. Facey had accepted the appellants last telegram. It has been companytended for the appellants that L.M. Faceys telegram should be read as saying yes to the first question put in the appellants telegram, but there is numberhing to support that companytention. M. Faceys telegram gives a precise answer to a precise question, viz., the price. The companytract must appear by the telegrams, whereas the 1 1893 A.C. 552. appellants are obliged to companytend that an acceptance of the first question is to be implied. Their Lordships are of opinion that the mere statement of the lowest price at which the vendor would sell companytains numberimplied companytract to sell at that price to the persons making the inquiry. The companyclusion at which we have arrived is strengthened by certain facts which emerge from the companyrespondence be- tween the parties. The real question is whether the first defendant had made a companynter-offer in his cable of the 5th August or he was merely inviting offers. The plaintiff in his letter of the 14th August addressed to Youngman, stated that he companyfirmed his oral offer of ten thousand for the bungalow, and he did number say in so many words that he ac- cepted the companynter-offer of the first defendant. Simi- larly, in the cable which Youngman sent to the first defend- ant on the 28th August, he did number state that the latters offer had been accepted, but stated that he had been offered Rs. 10,000 for the bungalow and companycluded with the words May I sell ? Neither party thus treated the first defend- ants cable as companytaining a companynter-offer. On the other hand, they proceeded on the footing that the plaintiff had made an offer of Rs. 10,000 which was subject to acceptance by the first defendant. Apparently, the first defendant was in companymunication number only with Youngman but also White, and both of them rightly thought that numbertransaction companyld be companycluded without obtaining the first defendants express assent to it. Mr. Jindra Lal, companynsel for the plaintiff, who pressed his points with force and ability, companytended that by the 26th August, 1944, Youngman had companye under the influence of the rival bidder or at least that of White who was support- ing him, and the cable to the first defendant was deliber- ately framed by Youngman, in such a way as to prejudice the plaintiff. There is however numberhing in the evidence to support such an extreme companyclusion. On the other hand, Youngman has frankly stated in his evidence that he felt it improper to entertain Subbayyas higher offer and did number companymunicate it to the first defendant. This statement is supported by the cable of the 26th August and, if Youngman can be said to have had any leaning at all, it was certainly in favour of the plaintiff.

Case appeal was accepted by the Supreme Court

Mukherjea, J. This appeal is directed against an appellate judgment of the Calcutta High Court, dated the 19th May, 1950, which affirmed the judgment of a single Judge of the Original Side of that Court passed on 9th February, 1949, in Suit No. 2481 of 1947. The plaintiff, who is the appellant before us, is the widow of one Mrityunjoy Mullick, a wealthy Hindu resident of Calcutta, while the defendant, who is still an infant, is the only son of Mrityunjoy born of his first wife Kiranbala, who died during the lifetime of her husband. The companytroversy between the parties centers round the short point as to whether the plaintiff is entitled, after the death of her husband, to act as shebait of an idol named Sree Sree Nitto Gopal Jew founded by Mrityunjoy and his mother, either solely of jointly with the defendant, her step-son. To appreciate the points that have been canvassed before us in this appeal, it will be necessary to narrate a few antecedent facts about which there is numberdispute between the parties. It may be stated here that neither side adduced any evidence before the trial judge during the hearing of the case and the questions raised in the suit were argued as questions of law turning on the companystruction of the indenture which created the endowment as well as of the provisions of the Hindu Womens Rights to Property Act Act XVIII of 1937 as amended by Act XI of 1938 . It appears that one Dhananjoy Mullick, who was the adoptive father of Mrityunjoy, died on 28th of August, 1907, leaving behind him, his widow Nitto Sundari and the adopted son Mrityunjoy, who was then a minor. On February 11, 1910, Nitto Sundari obtained letters of administration to the estate of the deceased Dhananjoy limited during the minority of the adopted son. On June 13, 1920, the widow purchased a house property in the city of Calcutta - being premises No. 14, Syakrapara Lane - out of the monies belonging to the estate of her husband, and on October 10, 1934, she companyveyed the said property to Mrityunjoy who had by that time attained majority. On the very same day that this property was companyveyed to Mrityunjoy, Nitto Sundari and Mrityunjoy together executed an indenture, by which certain properties described in Schedules A and B of the document and including premises No. 14 Syakrapara Lane, were dedicated to deity Nitto Gopal Jew. The indenture recites that Nitto Sundari had, with the companysent and companycurrence of her son, established and companysecrated the said idol and located it in premises No. 14, Syakrapara Lane, and that she had been performing the worship and periodical festivals of the deity according to Hindu rites. The document lays down in detail the various rites, ceremonies and festivals of the idol that are to be performed daily or at specific periods, and the way in which the expenses necessary for these purposes are to be met from the income of the dedicated properties. A remuneration of 25 per cent. of the net income of the debutter property has also been provided for the shebait or shebaits for the time being. After declaring the various trusts, the indenture proceeds to provide for appointment of shebaits and for devolution of shebaitship in the following manner - That the said Sm. Nitto Sundari Dassi doth hereby companystitute and appoint herself the shebait of the said Thakur for the during the term of her natural life and doth hereby declare that after her death her son the said Mrityunjoy Mullick shall become the shebait of the said Thakur and after his death his wife Sm. Kiranbala Dassi and after her death the heirs of the said Mrityunjoy Mullick shall be and act as the shebait or shebaits of the said Thakur and she doth hereby declare him or them such shebait or shebaits accordingly and doth hereby direct and declare that the daily worship and other periodical festivals and ceremonies of the said Thakur should be performed by such shebait or shebaits. Provided however that in case the said Mrityunjoy Mullick shall happen to die without any issue or without giving any authority to his wife him surviving, to adopt, then in such case it shall be companypetent for the said Mrityunjoy Mullick to appoint by will or otherwise a shebait who would act as such after the death of his said wife as aforesaid but in case the said Mrityunjoy Mullick shall happen to die without any issue the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under the Hindu Law. It is number disputed that Nitto Sundari acted as shebait till her death in 1938 and that after her death Mrityunjoy became the shebait. Kiranbala, the first wife of Mrityunjoy, who is referred to in the indenture as stated above, died on 14th January, 1942, leaving her infant son Debabrata, who is the defendant in the suit. Soon after her death, Mrityunjoy married the plaintiff Angurbala as his second wife and within five months after this marriage Mrityunjoy died on the 4th of July, 1942. The present suit was filed in the Original Side of the Calcutta High Court on 29th August, 1947, by Angurbala and she prayed for a declaration that she was the sole shebait of the deity under the terms of the indenture or, in the alternative, was entitled to shebaitship jointly with the defendant, she being a companyheir of her stepson under the provisions of the Hindu Womens Rights to Property Act. There was a further prayer claiming a right of residence in premises No. 14, Syakrapara Lane. The written statement that was filed on behalf of the defendant denied the plaintiffs claim of shebaiti right, either exclusively in herself or jointly with the defendant, and asserted that the defendant was the sole shebait under the terms of the deed of endowment as well as under law. The defendant also companytended that the plaintiff was number entitled to any, right of residence in the premises mentioned above. The learned trial Judge by his judgment dated 9th of February, 1949, held that the plaintiff was neither the sole shebait of the deity number was she entitled to claim shebaiti rights jointly with the defendant and that the Hindu Womens Rights to Property Act was inapplicable to devolution of shebaiti rights at all. It was held further that as the plaintiff was number in law the natural guardian of the defendant, she companyld number claim to exercise the rights of a shebait on behalf of the defendant as his natural guardian so long as the defendant remained a minor. The learned Judge held, however, that the plaintiffs claim to a right of residence in premises No. 14, Syakrapara Lane, was well-founded and she was held entitled to relief in that respect. The result was that save and except giving the plaintiff a declaration of her right of residence in premises No. 14, Syakrapara Lane, all the other prayers of the plaintiff were dismissed. Against this decision the plaintiff preferred an appeal which came up for hearing before an appeal Bench of the Calcutta High Court companysisting of Sir Trevor Harries C.J. and Sinha J. The learned companynsel appearing in support of the appeal did number seriously challenge that part of the decision of the trial Judge which negatived the plaintiffs claim to act as a sole shebait either under the terms of the indenture of endowment or as a guardian of the defendant during the period of his minority. The only question pressed was whether the plaintiff was entitled to be a joint shebait with the defendant. The learned Judges rejected this companytention of the appellant primarily on the ground that the identical point was raised and companysidered by the Federal Court in Umayal Achi v. Lakshmi Achi 1945 F.C.R. 1 and it was held there that succession to shebaitship was number in any way altered or affected by the provisions of the Hindu Womens Rights to Property Act. The appeal was thus dismissed and the plaintiff having obtained a certificate under article 133 1 c of the Constitution has number companye up in appeal to this Court. The substantial companytention raised by Mr. Tek Chand, who appeared on behalf of the plaintiff-appellant, is that under the clause in the indenture relating to devolution of shebaitship, the shebaitship is to go to Kiranbala after the death of Mrityunjoy and after her death it is to vest in the heirs of Mrityunjoy. As Kiranbala died during the life-time of Mrityunjoy, the grant of the shebaiti right in her favour lapsed and the heirs of Mrityunjoy are, therefore, entitled to companye in as the next shebaits after Mrityunjoys death. Who these heirs are has got to be determined according to the law in force at the time when the succession opened and under the Hindu Womens Rights to Property Act, which came into force in the year 1937, the widow of a propositus, who dies intestate, would rank as an heir along with the son and would be entitled to the same share as a son gets in the property of the deceased. It is said that as shebaitship is property, it would devolve under section 3 of the Hindu Womens Rights to Property Act upon both the plaintiff and the defendant jointly. Assuming, however, for arguments sake, that the expression property, as used in the Hindu Womens Rights to Property Act, does number include shebaiti right, it is argued by the learned companynsel that it is a well-established proposition of law that succession to shebaitship is governed by the ordinary rules of inheritance in respect to secular property under the Hindu law, and as the Hindu Womens Rights to Property Act has amended the general law of inheritance in certain matters, the same alterations must be recognised in regard to succession to shebaitship as well. A point was also raised by Mr. Tek Chand - though it was number pressed seriously - that the language of the indenture would go to suggest that in the matter of succession to shebaitship the wife of Mrityunjoy would have priority over other heirs. It is true that the document speaks only of Kiranbala, the wife of Mrityunjoy who is to companye as shebait after his death but it is argued that the word Kiranbala is merely descriptive of the word wife and whoever would happen to be the wife of Mrityunjoy at the date of his death, would be entitled to succeed to his shebaiti rights. Mr. Shankar Banerjee appearing for the respondent stated at the outset that he would number dispute as a proposition of law that shebaitship is property of some kind, the devolution of which is governed, in the absence of any direction to the companytrary given by the founder, by the ordinary rule of succession under the Hindu law. He companytended however, that the Hindu Womens Rights to Property Act, which is a piece of special legislation enacted for a special purpose, does number use the expression property in a wide and unlimited sense and it would appeal clear from the provisions of the different sections of the Act that it companyld number have had in companytemplation, and does number purport to affect, the rules of succession relating to the special and somewhat anomalous type of property which shebaitship admittedly is. The learned companynsel referred in this companynection to the provisions of sections 3 and 5 of the Act as well as to the preamble which sets out its object, and companysiderable stress was laid upon the pronouncement of the Federal Court in Umayal Achi v. Lakshmi Achi 1945 F.C.R. 1. The other companytention put forward by the learned companynsel turns upon the companystruction of the relevant clause in the indenture referred to above which lay down the mode of devolution of the shebaitship, and his argument was that reading the clauses as a whole, it would be clear that the intention of the executants of the deed was that the issue of Mrityunjoy would succeed to him as shebaits in the first instance and that numberother heir of Mrityunjoy basing his claim either upon general law or any special enactment would be entitled to become shebait so long as any issue of Mrityunjoy was alive. A further question relating to the companystruction of the deed, raised by Mr. Banerjee, was that the words heirs of the said Mrityunjoy occurring in the deed are to be companystrued number as words of devolution but of direct gift to the heirs under the deed and companysequently the expression heirs must mean those who companyld legally claim as heirs at the time when the grant was made and any subsequent change in the law companyld number affect the position. We will first advert to and examine the provisions of the Hindu Womens Rights to Property Act and see whether the Act includes within its scope a property of such character as shebaitship is. The exact legal position of a shebait may number be capable of precise definition but its implications are fairly well established. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami 48 I.A. 302 that the relation of a shebait in regard to debutter property is number that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the shebait or mahant is a mere manager. But though a shebait is a manager and number a trustee in the technical sense, it would number he companyrect to describe the shebaitship as a mere office. The shebait has number only duties to discharge in companynection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where numberemoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the companyception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property. This was elaborately discussed by a Full Bench of the Calcutta High Court in Manohar Mukherji v. Bhupendra Nath Mukherji I.L.R. 60 Cal. 452 and this decision of the Full Bench was approved of by the Judicial Committee in Ganesh Chunder Dhur v. Lal Behary 63 I.A. 448 and again in Bhabatarini v. Ashalata 70 I.A. 57. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasize the proprietary element in the shebaiti right, and to show that though in some respects anomalous, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. According to Hindu law, observed Lord Hobhouse in Gossamee Sree Greedharreejee v. Rumanlolljee Gossamee 16 I.A. 137, when the worship of a Thakoor has been founded, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or there has been some usage, companyrse of dealing, or some circumstances to show a different mode of devolution. Unless, therefore, the founder has disposed of the shebaitship in any particular manner - and this right of disposition is inherent in the founder - or except when usage or custom of a different nature is proved to exist, shebaitship like any other species of heritable property follows the line of inheritance from the founder. Turning number to the Hindu Womens Rights to Property Act, it will be seen that the object of the Act, as set out in the preamble, is to give better rights to women in respect of property. Section 2 lays down - Notwithstanding any rule of Hindu law or custom to the companytrary, the provisions of section 3 shall apply where a Hindu dies intestate. Section 3 1 then provides - When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of sub-section 3 , be entitled in respect of property in respect of which he dies intestate to the same share as a son Provided that the widow of a predeceased son shall inherit in like manner as a son if there is numberson surviving of such predeceased son, and shall inherit in like manner as a sons son if there is surviving a son or sons son of such predeceased son Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. Sub-sections 2 and 4 of section 3 are number material for our present purpose. Sub-section 3 lays down - Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu womans estate Section 4 lays down that the Act is number to operate retrospectively. The only other section in the Act which has been referred to in the companyrse of arguments is section 5 which runs as follows - For the purposes of this Act a person shall be deemed to die intestate in respect of all property of which he has number made a testamentary disposition which is capable of taking effect. It will be seen that section 3 1 abrogates the general rule of Hindu law according to which a widow succeeds to her deceased husbands property only in default of male issue and she is number entitled to the same share as a son along with or in default of male issue. Similar rights have been given by the two provisos attached to section 3 1 to the widow of a predeceased son and also to the widow of a predeceased son of a predeceased son. Section 3 1 speaks of any property. The expression prima facie includes, unless something to the companytrary can be spelt out from the other provisions of the Act, all forms or types of interest answering to the description of property in law. Of companyrse, the property must be heritable property in respect to which alone the question of succession may legitimately arise. Reliance has been placed by Mr. Banerjee, first of all, upon the object or purpose for which the statute was passed. The object, as set out in the preamble, is to give better rights to women in respect to property in other words, the object of the legislation is to companyfer larger rights upon women in companyparison to what they enjoyed under the ordinary Hindu law. In our opinion, the preamble does number throw any light on the question as to whether the Act does or does number include within its ambit rights and interest of a shebait. Mr. Banerjee next invokes in support of his companytention the provisions of sub-section 3 of section 3, which lays down that the interest devolving upon a widow under the provisions of the Act will be the limited interest known as the Hindu womans estate. It is argued that this distinction between the Hindu womans estate and the unrestricted rights of a male heir can be predicated only of ordinary secular property, but this distinction is unmeaning when applies to shebaiti right, for the nature of the interest enjoyed by a male or a female shebait is exactly the same. This argument does number appear to us to be at all companyvincing. Precisely the same thing happens when the shebaiti right devolves upon a female heir under the ordinary law of inheritance. If a shebait dies leaving behind him a widow and numbermale issue, the widow would succeed to shebaitship under ordinary law but her rights in respect of the shebaiti would be restricted in the same manner as they would have been if the successor was the son. This is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself and they exist irrespective of the fact as to whether the shebaitship devolves upon a male or a female heir. But although as regards powers of alienation the disability of the male and the female shebaits may be identical, there is yet a distinction between them as regards the other limitation or characteristic of a Hindu womans estate. When Hindu female heir succeeds to the property of a male propositus, she cannot transmit the interest which she inherits, to her own heirs upon her death. The property goes after her death number to her heirs but to the heirs of the last male owner. This rule applies even when the right which devolves upon a widow is the right of a shebait. After her death the shebaiti right would number pass to her stridhana heirs but would go to heirs of the last shebait Anuragi Kuer v. Paramanand, A.I.R. 1939 Pat. 1. Sub-section 3 of section 3, therefore, is of numberassistance to Mr. Banerjees client. Mr. Banerjee then companytends that section 5 of the Hindu Womens Rights to Property Act affords a clear indication that the Act is intended to be applicable only to property in respect to which a testamentary disposition is possible. This section, it may be numbered, was added by the amending Act XI of 1938 and the object apparently was to explain what is meant by dying intestate. It says that for the purposes of the Act a person shall be deemed to die intestate in respect of all property of which he has number made a testamentary disposition which is capable of taking effect. Mr. Banerjee would read the section as qualifying the meaning of the word property as used in section 3 1 or rather as engrafting a limitation upon it. What he says is, that the language of the section would be wholly inappropriate if the Act is applicable to properties in respect to which, as in the case of shebaitship, numbertestamentary dispossession is possible. This argument, in our opinion, cannot be accepted as sound. Section 2 of the Act which has been referred to above makes the provisions of section 3 applicable only when a Hindu dies intestate. A person is ordinarily regarded as dying intestate when he has left numberwill disposing of his properties. A doubt might arise as to whether this Act would apply when a will was actually executed by a deceased, but for some reason or other it was incapable of taking effect and it was for the purpose of removing such doubt that this section was added by the amending Act of 1938. The language of section 5 of the Act is exactly the same as that of section 30 of the Indian Succession Act and the object underlying both these provisions appears to be identical. Mere execution of a will is number enough to exclude the operation of the Act. The will must be an operative will and if the will is void or incapable of taking effect, it would be deemed that the testator has died intestate. If the property is number-testamentable, as Mr. Banerjee puts it, numbertestamentary disposition of such property is possible or companyld take effect in law and the testator must in such circumstances be deemed to have died intestate in respect of such property. Thus, there is numberhing in any of the provisions of the Act from which an inference companyld be drawn that the expression property as used in section 3 1 has a limited or restricted interpretation and is number applicable to shebaitship, which is recognized as property in Hindu law. Reference may number be made to the decision Federal Court in Umayal Achi v. Lakshmi Achi 1945 F.C.R. 1, upon which the learned appellate Judges of the High Court practically based their decision. The facts of that case stripped of unnecessary details are that one Arunachalam Chettiar who was a resident of Madras and owned companysiderable properties, moveable and immoveable, both within the outside British India, died leaving behind him two widows and the widow of a predeceased son. The deceased had left a will but the legacies given by the same exhausted only a small portion of his estate so that with regard to the rest which was of companysiderable value he died intestate. The deceased was in possession of several trust properties in regard to which there were certain religious and charitable trusts and the direction in the will was that the management of these trusts should devolve upon his heirs. The sons widow instituted a suit in the companyrt of the Subordinate Judge at Devakottai for administration of the estate and for partition and separate possession of a half share of the same, basing her claim upon the Hindu Womens Rights to Property Act. The suit was resisted by the two widows as well as by the executors appointed under the will of the deceased and it was pleaded, inter alia, that the Hindu Womens Rights to Property Act was ultra vires the legislature and that in any event it was number applicable as the propositus did number die intestate. The trial companyrt held first that the Act was number ultra vires and was operative on all properties with the exception of agricultural lands and this finding was affirmed by the High Court on appeal and also on further appeal to the Federal Court by the majority of the Judges of that Court. The second finding of the trial Judge was that the deceased died intestate with regard to a companysiderable amount of property and companysequently the plaintiff was entitled to a half share thereof. The High Court affirmed this finding with this variation that her claim to moveable situated outside British India was number allowed but the Federal Court reversed the decision of the High Court on this point and restored that of the trial Judge. The other point and that is the point with which we are companycerned in the present case, related to the devolution of the trust estates which were held by the testator. Both the companyrts below companycurred in holding that these trusts should go to the heirs of the deceased under the ordinary Hindu law and that the provisions of the Hindu Womens Rights to Property Act were number attracted to the trusts. This decision was upheld by the majority of the Judges in the Federal Court and that point was actually dealt with by Varadachariar J. in his judgment. The view expressed by the learned Judge is that the Hindu Womens Rights Property Act was intended to apply only to properties beneficially owned by the propositus and it was number applicable to rights in the nature of trusteeship. It seems to us that, property companystrued, this decision does number stand in the way of the appellant. In the first place, we do number know at all what he nature of these trusts was. The learned Judge observed himself in his judgment that there was little or numberevidence as to the terms of the foundations in respect of any of the trusts managed by the deceased. This observation, taken along with the terms of the documents referred to in the judgment, would go to show that the deceased was a mere manager of the trusts and in respect of some of them at least he was the manager jointly with other persons. In the High Court, Sir Lionel Leach C.J. expressly held that in numbersense companyld the trust properties be regarded as the separate property of the testator and companysequently Act XVIII of 1937 companyld number apply to such a case. Varadachariar J. observed with reference to the documents relied upon by the learned companynsel for the appellant that they only provided for management by his heirs. At any rate, we have numbermaterials to hold that in regard to the trusts that formed the subject-matter of that suit the trustees had any beneficial or personal interest in the trust properties. The indications, on the other hand, are clearly in the opposite direction. In these circumstances, numberquestion arises in the present case of companytroverting the proposition of law that Varadachariar J. purported to lay down, namely, that the Hindu Womens Rights to Property Act companyld number govern succession to property in respect to which the propositus had numberbeneficial enjoyment. It is number possible, however, to enunciate on the basis of this decision, a broad rule of law that succession to shebaitship, in which an element of beneficial or personal interest is numbermally involved would number be governed by the provisions of the Act. There are indeed one or two observations of the learned Judge in his judgment, number very definitely expressed, from which it is number impossible to draw an inference in favour of the respondent, but we think that they should be companystrued in the light of the facts and the actual decision in the case. The observation that Hindu law regards trusteeship as property for certain purposes is of a most general character and it has to be numbered that number only the word shebaitship has number been used by the learned Judge but he does number even companyfine his remarks even to religious trusts. Moreover, trusteeship is number certainly equivalent to shebaitship. On the other hand, the reference made by the learned Judge to the limited objective of the Act affords an indication that he had in mind a trust of such a character where the trustee had numberpersonal interest in the trust property. The object of the Act, as stated above, is to give better rights to women in respect of property. If a trusteeship, even if it is regarded as property, carries with it numberemoluments or any beneficial interest for the trustee and companysists of numberhing else But a bundle of obligations and duties, it might possibly be said that the giving of share in such rights to a Hindu widow would number in any wan improve her position. But the position would be obviously different if there is a beneficial interest of a substantial kind inseparably companynected with the duties of a particular office. They again, the learned Judge possibly used the expression private property in a somewhat loose sense as meaning personal property in respect to which the proprietor has a beneficial interest of his own. The reference to section 3 3 of the Hindu Womens Rights to Property Act is, as we have indicated already, number much helpful for the purpose of companystruing the Act. After all, we must take the decision as it stands and it is number right to call into aid a particular reason assigned by the learned Judge, for the purpose of carrying the decision beyond what it actually purports to lay down. We think that a very proper view of the effect of this decision of the Federal Court has been taken by a Division Bench of the Madras High Court in P. Suryanarayanacharyulu v. P. Seshamma . There the question arose in companynection with the rights associated with the office of archakatvam, which is a hereditary religious office and the holder or holders of it for the time being are beneficially entitled to enjoy the income of the endowed property. It was held that the principle laid down by the Federal Court in Umayal Achi v. Lakshmi Achi 1945 F.C.R. 1 has numberapplication to a case relating to the office of archakatvan. It is pointed out by the Madras High Court that though the observations of the learned Judge in the Federal Court are wide, the decision proceeded only on the main ground that the Act governs succession to property beneficially owned by the propositus. In our opinion, the same reasons apply to the case of the hereditary shebait of a private debutter, particularly where, as in the present case, 25 per cent. of the net income of the endowed properties has been given to the shebait of shebaits for the time being as their remuneration. Our companyclusion, therefore, is that there is numberhing in any of the provisions of the Hindu Womens Rights Property Act which excludes from the scope of operation of the Act succession to shebaitship is a recognized form of property in Hindu Law. Assuming that the word property in Act XXIII of 1937 is to be interpreted to mean property in companymon and ordinarily accepted sense and is number to be extended to any special or peculiar type of property, even then we think that the other companytention of Mr. Tek Chand is perfectly sound. Succession of shebaitship, even though there is an ingredient of in it, follows succession to ordinary or secular property. It is the general law of succession that governs succession to shebaitship as well. While the general law number been changed by reason of Act XVIII of 1937, there does number appear to be any companyent reason why the law as it stands at present should number be made applicable in the case of devolution of shebaitship. The last companytention of Mr. Tek Chand that under the indenture itself the wife of Mrityunjoy and Kiranbala particularly has been given rights of succession to shebaitship prior to any issue of Mrityunjoy manifestly untenable and as the learned companynsel was number at all serious in pressing this point, we companysider unnecessary to discuss it any further. It remains for us number to advert to and companysider the other companytentions raised by Mr. Banerjee which depend upon the companystruction of the relevant clauses in the indenture. It may be stated at the outset that we are number at all impressed by the argument of the learned companynsel that the words heirs of the said Mrityunjoy occurring in the document are to be companystrued as words number of inheritance but of grant. Such companystruction would be against the language and the whole tenor of the document. It is to be numbered that Mrityunjoy was the owner of the dedicated properties and the real founder of the endowment. The mother was associated with him in the act of dedication because it was she who companysecrated and established the deity and was looking after its worship and service since it was installed. It was in the fitness of things therefore that Mrityunjoy should request his mother to become the first shebait and this is exactly what is recited in the indenture. After the death of Nitto Sundari, Mrityunjoy, the founder, himself, was to be the shebait and save and except the provision made in favour of Kiranbala, his existing wife, the devolution of shebaitship has been directed to be in the line of heirs of the founder. There is numberindication of any intention to treat the heirs as the objects of an independent gift. It may be numbered that this identical point was raised before the Federal Court in Umayal Achi v. Lakshmi Achi 1945 F.C.R. 1 with regard to the devolution of trust estates. The direction in the will in that case was that they should go to the heirs. It was held by Varadachariar J. that it was number reasonable to companystrue such words as words of gift and number of devolution. On the question of companystruction Mr. Banerjees main argument is that if the relevant provisions of the indenture dealing with devolution of shebaitship are read as a whole, it will be manifest that the executants of the deed intended that the issue of Mrityunjoy were to have preference over other heirs in the matter of succession to shebaitship and that an heir who is number an issue companyld number companye in so long as an issue remained alive. The relevant portion of the document has been set out already and it provides in the first place that after the death of Nitto Sundari, her son, the said Mrityunjoy Mullick, shall become the shebait, after him his wife Smt. Kiranbala Dassi, and after her death, the heirs of the said Mrityunjoy Mullick shall be and act as shebaits. Then there is a proviso to the effect that if the said Mrityunjoy shall happen to die without any issue or without giving any authority to his wife, him surviving, to adopt, then in such case it shall be companypetent for Mrityunjoy to appoint by will or otherwise a shebait who would act as such after the death of the said wife but in case the said Mrityunjoy Mullick shall happen to die without any issue, the shebaitship of the said Thakur after the death of his wife shall devolve upon his heirs under Hindu Law. Mr. Banerjee lays stress upon the proviso, particularly the last portion of it and it companytains, according to him, a clear direction that it is only on the failure of issue that the heirs of Mrityunjoy can companye in as shebaits. In order that the proviso may be reconciled with the clause that precedes it, Mr. Banerjee invites us to hold that the word heirs in the previous clause should be taken to mean only the issue of Mrityunjoy. We do number think that the interpretation suggested by the learned companynsel is the proper one. A proviso is numbermally an excepting or a qualifying clause and the effect of it is to except out of the preceding clause upon which it is engrafted something which but for the proviso would be within it. The word heirs cannot numbermally be limited to issue only. It must mean all persons who are entitled to the property of another under the law of inheritance. So far as the main provision is companycerned there is numberhing in the language or in the companytext to suggest that the word heirs has number been used in its ordinary or natural sense. Mr. Banerjee argues that the proviso in that case would be wholly inexplicable whereas it is a sound canon of companystruction that all the parts of a document should be read together and numberportion is to be omitted. In our opinion, the clause that precedes the proviso lays down the general rule relating to devolution of shebaitship. The expression heirs has number been used in any restricted or limited sense and extends to all persons who are entitled to succeed under the law. The proviso engrafts an exception upon the general rule. What it does is to give a power to Mrityunjoy to appoint a shebait, who would companye as such after his death in the companytingency of his dying without any issue and without giving any authority to his wife to adopt a son. It may be numbered that the word issue includes both son and daughter and the power of appointment cannot be exercised by Mrityunjoy even if he has a daughter living. The proviso thus qualifies the main provision to this extent that if the particular companytingency that is mentioned here is fulfilled, Mrityunjoy would be entitled to appoint a shebait, although numbersuch power can be deduced from the general clause. In case the companytingency does happen but the wife is number given any power of adoption and numberappointment is also made by Mrityunjoy, the companysequence would certainly be that the other heirs of Mrityunjoy would succeed as shebaits and this is what is laid down in the companycluding portion of the proviso. The expression his heirs at the end of the proviso would certainly mean heirs other than the son and daughter of Mrityunjoy. As Mrityunjoy actually left a son, the companytingency companytemplated by the proviso did number arise at all and in these circumstances the proviso is to be ignored altogether for purposes of companystruction and it is number proper to attempt to spell, out of it, by implication, something which is number only number in the main provisions but is companytradictory to it. We think, therefore, that this companytention of Mr. Banerjee also must fail. The result, therefore, is that, in our opinion, the appeal succeeds. The judgment and decree of both the companyrts below are set aside except the declaration of the right of residence of the plaintiff which was given by the trial companyrt and number disturbed in appeal. In addition to that, it will be declared that the plaintiff is entitled to joint shebaitship with the defendant in respect of the debuttar created by the indenture of October 10, 1934. We direct the taxed companyts of both the parties in all the companyrts to be paid out of the debuttar estate. Chandrasekhara Aiyar, J. I agree with the companyclusion reached by my three learned brothers in the judgment just number pronounced, but I would like to add a few words on two points on which I do number see eye to eye with them fully. In support of his companytention that the word property in the Hindu Womens Rights to Property Act cannot be companystrued so companyprehensively as to include a shebait right, Mr. Bannerjee referred to sub-clause 3 of section 3, which speaks of any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Womans estate and he urged that the companyception of such an estate as distinguished from an absolute interest is inapplicable to such a right of property. This is a point that deserves some attention. In dealing with it, we are number thinking of any property endowed to the Thakur or the deity and its intrinsic legal characteristics as companystituting a religious endowment. We have in mind the shebaitship itself as a species of property. Can it be postulated with reference to the shebaitship that a Hindu widow succeeding to the office has only what is known as a Hindu womans estate as companytrasted with a full or absolute estate taken by a male heir ? Does a male heir get higher rights than a Hindu widow ? and if so, what are they ? So far as a shebaitship is companycerned, the office does number ensure beyond the lifetime of the holder, whether male or female, and is generally inalienable. It is res extra companymercium. A male heir cannot alienate it any more than a female heir. What limitations exist or are imposed on alienability arises out of the nature of the property and number out of the nature of the estate taken by the heir. In the very nature of things, there can be numberalienation for necessity, surrender, acceleration of the estate in favour of the next in succession, etc. Plausible and attractive is this line of reasoning, and it lends support to the view taken in Umayal Achi v. Lakshmi Achi 1945 F.C.R. 1 by Sir Varadachariar, where, referring to sub-clause 3 of Section 3, he observes - This provision will be appropriate enough in relation to private property where the womans estate is different from the interest taken by a male heir. But in respect of trusteeship or other similar office, the law makes numberdifference between the interest taken by a male heir and the interest taken by a female heir. But it does number decisively outweigh the several companysiderations set forth in the judgment just number delivered by my learned brother Mukherjea J. for companystruing the word property in a wider sense so as to include the shebaiti right also. It there is numberlegal objection to a woman being a shebait under Hindu law, there is numberparticular reason why she should be excluded from succeeding to the same under an Act which imposes numberrestriction or prohibition either in express terms, or by necessary implication. The next point relates to the companystruction of the deed of indenture executed by Nittamony Dasi and Mrityunjoy. I am of the opinion that the technical rules of interpretation of provisos and exceptions with reference to their scope and legal effect, adopted in companystruing statutes should number ordinarily be imported in interpreting deeds and documents executed by laymen, In ordinary deeds, a proviso may sometimes be in the nature of an explanation of the main clause or provision and we must look number merely at the form of the language but its substance, the governing idea or purpose of the deed, the companytext and the surrounding circumstances togather the real meaning or intention of the executant. Judged in this light and adopting a broad companystruction, it appears to me that what Mrityunjoy had in mind when he executed the indenture was, as made clear in the proviso, that his issue born of his loins or any person whom his wife may adopt on his authority, should succeed to the shebaiti in the first instance and secondly, in default of such companytingency, the shebaitship should go to any person who may be numberinated in this behalf by his will and thirdly, in default of issue born or adopted and in default of numberination by will which is necessarily implied , the right was to devolve upon his heirs under the Hindu law. In other words, the proviso explains what he means by his heirs in the preceding clause. In this view, the respondent will succeed to the office in preference to the appellant.

Case appeal was accepted by the Supreme Court

Patanjali Sastri, J. This is an appeal by special leave from an order of the High Court of Judicature at Patna setting aside an order of acquittal of the appellants by the Sessions Judge, Purnea, and directing their retrial. The appellants were prosecuted for alleged offences under sections 147, 148, 323, 324, 326, 302 and 302/149 of the Indian Penal Code at the instance of one Polai Lal Biswas who lodged a companyplaint against them before the police. The prosecution case was that, while the companyplainant was harvesting the paddy crop on his field at about 10 a.m. on 29th November, 1949, a mob of about fifty persons came on to the field armed with ballams, lathis and other weapons and that the first appellant Logendranath Jha, who was leading the mob, demanded a settlement of all outstanding disputes with the companyplainant and said he would number allow the paddy to be removed unless the disputes were settled. An altercation followed as a result of which Logendra ordered an assault by his men. Then Logendra and one of his men, Harihar, gave ballam blows to one of the abourers, Kangali, who fell down and died on the spot. Information was given to the police who investigated the case and submitted the charge-sheet. The companymitting Magistrate found that a prima facie case was made out and companymitted the appellants to the Court of Sessions for trial. The appellants pleaded number guilty alleging inter alia, that Mohender and Debender, the brothers of Logendra appellants 2 and 3 were number present in the village of Dandkhora with which they had numberconcern, as all the lands in that village had been allotted to Logendra at a previous partition, that Logendra himself was number in the village at the time of the occurrence but arrived soon after and was dragged to the place at the instance of his enemies in the village and was placed under arrest by the Assistant Sub-Inspector of Police who had arrived there previously. It was also alleged that there were two factions in the village, one of which was led by one Harimohan, a relation of the companyplainant, and the other by Logendra and there had been numerous revenue and criminal proceedings and long-standing enemity between the families of these leaders as a result of which this false case was foisted upon the appellants. The learned Sessions Judge examined the evidence in great detail and found that the existence of factions as alleged by the appellants was true. He found, however, that the appellants plea of alibi was number satisfactorily made out, but the truth of the prosecution, he proceeded to observe, cannot be judged by the falsehood of the defence number can the prosecution derive its strength from the weakness of the defence. Prosecution must stand on its own legs and must prove the story told by it at the very first stage. The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused persons can be companyvicted. Approaching the case in this manner and seeing that the basis of the prosecution case was that Polai had batai settlement of the disputed land and had raised the paddy crop which he was harvesting when the occurrence took place, the learned Sessions Judge examined the evidence of the prosecution witnesses who belonged to the opposite faction critically and found that the story of the prosecution was number acceptable. Polai, who was alleged to have taken the land on batai settlement from his own maternal grandmother Parasmani who brought him up from his childhood, was only 19 years old and unmarried and was still living with his grandmother. He did number claim to be a bataidar of any other person. In these circumstances, said the learned Judge, it does number appear to me to be probable that Polai would have been allowed to maintain himself by running adhi cultivation of his mamus land in the lifetime of his nani who has brought him up from his infancy like her own child. Nor does it appeal to me that the unmarried boy Polai would have undertaken upon himself the task of running batai cultivation of the lands of his mamu where he has been living since his childhood without any trouble, more particularly in view of the heavy expenses of cultivation brought out by the evidence of Tirthanand P.W. 14 . He, therefore, disbelieved the whole story that Polai had taken the lands of his grandmother or his uncles as bataidar for cultivation and that he was engaged in harvesting the paddy crop on the lands at the time of the occurrence. This false story, in his opinion, vitally affected the prosecution case regarding the alleged manner of the occurrence. He also found a number of discrepancies and companytradictions in the evidence of the prosecution witnesses, which, in his view, tended to show that the prosecution was guilty of companycealment of the real facts. In view of such companycealment of real facts, the learned Judge companycluded, it does number appear to me to be possible to apportion liability and to decide which of the two parties companymenced the fight and which acted in self-defence. Such being the position, it is number possible at all to hold either party responsible for what took place. In such a view of the matter companypled with the fact that the manner of occurrence alleged by the prosecution has number been established to be true beyond doubt, I think that the accused persons cannot be safely companyvicted of any of the offences for which they have been charged. The learned Judge accordingly acquitted the appellants of all the charges framed against them. Against that order the companyplainant Polai preferred a revision petition to the High Court under section 439 of the Criminal Procedure Code. The learned Judge who heard the petition reviewed the evidence at some length and came to the companyclusion that the judgment of the learned Sessions Judge companyld number be allowed to stand as the acquittal of the appellants was perverse. In his opinion, the entire judgment displays a lack of true perspective in a case of this kind. The Sessions Judge had companypletely misdirected himself in looking to the minor discrepancies in the case and ignoring the essential matters so far as the case is companycerned, and there was numberjustifiable ground for rejecting the prosecution evidence regarding the cultivation and harvesting by Polai. And he companycluded with the warning I would, however, make it perfectly clear that when the case is re-tried, which I am number going to order, the Judge proceeding with the trial will number be in the least influenced by any expression of opinion which I may have given in this judgment. On behalf of the appellants Mr. Sinha raised two companytentions. In the first place, he submitted that having regard to section 417 of the Criminal Procedure Code which provides for an appeal to the High Court from an order of acquittal only at the instance of the Government, a revision petition under section 439 at the instance of a private party was incompetent, and secondly, that sub-section 4 of section 439 clearly showed that the High Court exceeded its powers of revisions in the present case in upsetting the findings of fact of the trial Judge. We think it is unnecessary to express any opinion on the first companytention of Mr. Sinha especially as the respondent is unrepresented, as we are of opinion that his second and alternative companytention must prevail. It will be seen from the judgment summarised above that the learned Judge in the High Court re-appraised the evidence in the case and disagreed with the Sessions Judges findings of fact on the ground that they were perverse and displayed a lack of true perspective. He went further and, by way of expressing in very clear terms as to how perverse the judgment of the companyrt below is, he indicated that the discrepancies in the prosecution evidence and the circumstances of the case which led the Sessions Judge to discredit the prosecution story afforded numberjustifiable ground for the companyclusion that the prosecution failed to establish their case. We are of opinion that the learned Judge in the High Court did number properly appreciate the scope of inquiry in revision against an order of acquittal. Though sub-section 1 of section 439 authorises the High Court to exercise, in its discretion, any of the powers companyferred on a companyrt of appeal by section 423, sub-section 4 specifically excludes the power to companyvert a finding of acquittal into one of companyviction. This does number mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court companyld in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterising the judgment of the trial Court as perverse and lacking in perspective, the High Court cannot reverse pure findings of fact based on the trial Courts appreciation of the evidence in the case. That is what the learned Judge in the companyrt below has done, but companyld number, in our opinion, properly do on an application in revision filed by a private party against acquittal. No doubt, the learned Judge formally companyplied with sub-section 4 by directing only a re-trial of the appellants without companyvicting them, and warned that the companyrts retrying the case should number be influenced by any expression of opinion companytained in his judgment. But there can be little doubt that he loaded the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 81 of 1950. Appeal from a judgment and decree dated 17th March, 1944, of the High Court of Judicature at Patna Fazl Ali J. and Beevor J. in F.A. No. 47 of 1942, arising out of decree dated 27th February, 1942, of the Subordinate Judge of Purnea in Title Mortgage Suit No. 7 of 1940. C. De Bhabhananda Mukherjee, with him for the appellants. P. Sinha B. K. Saran, with him for the respondent. 1951. October 17. The Judgment of the Court was deliv- ered by MUKHERJEA J.--This appeal, which was originally taken to the JudicialCommittee, on special leave, granted by an Order in Council dated August 2, 1946, number stands transferred to this companyrt by reason of the aboli- tion of the jurisdiction of the Privy Council. It is di- rected against a judgment and decree of a Division Bench of the Patna High Court dated March 17, 1944, affirming, on appeal, a decision of the Subordinate Judge of Purnea dated February 27, 1942. The appellants before us are the first party defendants in a suit, companymenced by the plaintiffs respondents, for enforcement of a simple mortgage bond, by sale of the mort- gaged property. The trial Judge, while deciding all the other issues in favour of the plaintiffs, held on the evi- dence on the record, that the bond sued upon was number legally attested and hence companyld number rank as a mortgage bond. On this finding he refused to make a decree for sale of the mortgaged property in favour of the plaintiffs and passed a money decree, for the amount due on the bond, personally against the defendants first party. According to the Subor- dinate Judge, although the suit was instituted more than 6 years after the date fixed for payment in the bond, yet the claim for personal relief against the mortgagors did number become time-barred by reason of the fact that there were several payments made by the defendants towards the satis- faction of the debt, which attracted the operation of sec- tion 20 of the Indian Limitation Act. Against this decision an appeal was taken by the defendants mortgagors to the High Court of Patna, but numberappeal or ,cross-objection was filed by the plaintiffs against the refusal of the trial Court to make an order for sale of the mortgaged property in their favour. The appeal was heard by a Division Bench of the Patna High Court, companysisting of Fazl Ali C.J. and Beevor J., and the principal point canvassed on behalf of the defend- ants appellants was, that the trial companyrt was wrong in holding that the plaintiffs claim for a personal decree was number barred by time. The argument put forward was that the suit, as one for personal relief against the debtors, was barred on the expiry of 6 years from the date for repayment mentioned in the bond and the part payments relied upon by the plaintiffs in their plaint were ineffectual for the purpose of extending the period of limitation under section 20 of the Indian Limitation Act- The High Court on hearing the appeal came to the companyclusion that the bond in suit was duly attested and was effective and enforceable as a mortgage bond, and that the view taken by the trial companyrt on the question of attestation companyld number be sustained on the evidence on the record. As the bond companyld be treated as a mortgage bond, the suit, as one for enforcement of a mort- gage, was, in the opinion of the learned Judges, quite within time, and it was number necessary in these circumstances to call in aid the provisions of section 20 of the Limita- tion Act for the purpose of extending the period of limitation. The learned Judges held, however, that as the plaintiffs had number preferred any appeal or cross objection attacking that part of the judgment of the trial Judge which dismissed their claim for a sale of the mortgaged property, they were unable to pass a mortgage decree in their favour. The result was that the decree made by the trial Judge was affirmed. It is the propriety of this decision that has been challenged before us in this appeal. Mr. De, who appeared in support of the appeal, has companytended in the first place that even if the High Court was right in holding that the bond in suit was effective as a mortgage bond and the suit companyld be treated as one for enforcement of a mortgage, numberdecree for money companyld be passed against the defendants personally, unless the suit was instituted within the period prescribed by Article 116 of the Limitation Act. The High Court, it is said, over- looked this aspect of the case altogether and was wrong in number companysidering the question of limitation. It is argued by the learned Counsel that on the point of limitation the decision of the Subordinate Judge was wrong, and as the payments relied upon by the plaintiffs had number been acknowl- edged in the manner companytemplated by section 20 of the Limi- tation Act, numberextension of time was permissible under the provisions of that section. Mr. De further companytends that on the question of attestation, the companyrect finding was that arrived at by the Subordinate Judge and it is impossible to hold on the evidence that has been adduced in this case that the bond was legally s, attested. Mr. Sinha, appearing on behalf of the plaintiffs re- spondents, has, on the other hand, attempted number only to repel the companytentions advanced on behalf of the appellants he has further argued that even if numberappeal or cross-objec- tion was filed by the plaintiffs against that part of the decree of the trial companyrt which went against them, it was open to the High Court, in view of the findings which it arrived at on the question of attestation, to make a mort- gage decree in this case under the provisions of Order 41, Rule 33, of the Civil Procedure Code. The learned Counsel invited us to exercise our powers under the said provision of the Civil Procedure Code in this appeal and pass a mort- gage decree in favour of his clients on the basis of the findings of the High Court. We will first take up the question of limitation, and to appreciate the nature of the companytroversy that centres round this point, it will be companyvenient to advert to a few rele- vant dates. The mortgage bond is dated the 8th of April, 1927, but it is numberlonger disputed that the executants put their signatures to the document on the 12th of April fol- lowing, and admittedly it was registered on the latter date. Whether the attesting witnesses signed the deed on the 12th of April or on the 8th when the document was actually scribed, is a debatable point upon which the companyrts below have divergent views and we will discuss this matter later on. The due date, as given in the mortgage, is the 6th of March, 1928. The suit was instituted on 4th of March, 1940, and if it companyld be treated as a mortgage suit pure and simple for enforcement of a charge on immovable property, the suit was obviously within time and numberquestion of limi- tation would arise. If, however, the attestation is held to be defective and the mortgagee seeks to recover the debt personally from the mortgagor on the basis of a companyenant to pay, such suit, if the bond is registered, would be governed by Article 116 of the Limitation Act and the period of limitation would be 6 years from the date fixed for repayment unless it companyld be extended under some other provision of the Limitation Act. The mere fact that in such cases the plaintiff chooses to frame his suit as one for enforcement of a charge, would number give him an extended period of limitation for obtaining a personal decree against the debtor. The position, therefore, is that if the bond in the present case cannot be treated as a mortgage bond and the only relief which the plaintiffs can claim is one for recovery of money against the defendants personally, the suit must be deemed to be barred, as it was instituted beyond 6 years from the due date of payment unless limitation is saved by reason of the payments under section 20 of the Limitation Act. This leads us to enquire as to whether the trial Judge was right in holding that the payments made by the defendants satisfied the requirements of section 20 of the Limitation Act and were hence available to the plaintiffs for the purpose of extending the period of limitation within which the suit should otherwise have been brought. The plaintiffs stated specifically in their plaint that the defendants made eight payments in all, aggregating to a sum of Rs. 780-9-0, in part satisfaction of the debt, since the execution of the mortgage bond. The first payment which was of a sum of Rs. 300 was made on 21st January, 1928, and this was before the expiry of the due date mentioned in the bond. The second payment was of Rs. 75 and was made on the 5th of June, 1929. The third payment is dated 8th of March, 193l, and the fourth was made within one month after that on 3rd April, 1931. the fifth and the sixth payments were both made in the month of May, 1932, the seventh on 25th July, 1934, and the last payment was made on 15th of May, 1936. The present suit was instituted, as said above, on the 4th March, 1940. There cannot be any doubt that if a fresh period of limitation companyld be companyputed from each one of the payments mentioned above, the plaintiffs suit would be quite in time even if it is treated as a suit for obtaining a money decree against the defendants personally. The companytention of the appellants is that as San there is numberacknowledgement in the handwriting of, or in any writing signed by, the payer in respect of any Of these payments, they companyld be of numberavail in giving a fresh start to the period of limitation under section 20 of the Limitation Act. For determination of this point, it is necessary to turn to the provision of section 20 of the Limitation Act. The section, after it was amended by Act I of 1927, stands as follows -- 20 1 . Where interest on a debt or legacy is, before the expiration, of the prescribed period, paid as such by the person liable to pay the debt or legacy, or by his agent duly authorized in this behalf, or where part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorized in this behalf, a fresh period of limitation shall be companyputed from the time when the payment was made Provided that, save in the case of a payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writ- ing signed by, the person making the payment. Admittedly in the case before us, numbere of the payments specified above were endorsed on the bond itself and there was numberacknowledgment either in the handwriting of, or signed by, the debtors prior to the institution of the suit. What the Subordinate Judge relied upon, is the admission companytained in paragraph 15 of the written statement filed on behalf of defendants 1 to 3 in the present suit where these defendants admitted number only that the payments specified in the plaint were actually made on the respective dates but asserted that there were other payments besides these, which reduced the debt still further and for which the plaintiffs did number give any credit to the defendants. In the opinion of the Subordinate Judge as the written statement was signed by these defendants, it would fulfil all the requirements of a signed acknowledgment as is company- templated by the proviso to section 20. The short point for our companysideration is whether the view taken by the Subordi- nate Judge is companyrect ? It would be clear, we think, from the language of section 20 of the Limitation Act that to attract its operation two companyditions are essential first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the payer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under section 20 of the Limitarian Act but the payment has got to be proved in a particular way and for reasons of policy the legislature insists on a written or signed acknowledgment as. the only proof of payment and excludes oral testimony. Unless, there- fore, there is acknowledgment in the required form, the payment by itself is of numberavail. The Subordinate Judge, however, is right in holding that while the. section re- quires that the payment should be made within the period of limitation, it does number require that the acknowledgment should also be made within that period. To interpret the proviso in that way would be to import into it certain words which do number occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take 1 . But while it is number necessary that the written acknowl- edgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or number has got to be determined exclusively with reference to the date on which the plaint is filed and the allegations made therein. The legislature has expressly See Md. Moizuddin v. Nalini Bala A.I.R. 1937 Cal. 284 I.L.R. 1937 2 Cal. 137 , Lal Singh v. Gulab Rai L.R. 55 All 280 , Venkata Subbhu v. Appa Sundaram I.L.R. 17 Mad. 92 . Ram Prasad v. Mohan Lal A.I.R. 1923 Nagpur 117 , Viswanath v. Mahadeo 57 Bom. 453 . declared in section 3 of the Limitation Act that whether defence of limitation be pleaded or number, the companyrt is bound to dismiss a suit which is brought after the period provided therefore in the first schedule to the Limitation Act. If the plaintiffs right of action is apparently barred under the statute of limitation, Order 7, Rule 6, of the Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limita- tion Act upon which he relies to exclude its operation and if the plaintiff has got to allege in his plaint the facts which entitle him, to exemption, obviously these facts must be in existence at or before the time when the plaint is filed facts which companye into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under section 20 of the Limitation Act the plain- tiff must. be in a position to allege and prove number only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowl- edged in writing in the manner companytemplated by that section. The ground of exemption is number companyplete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred. In the plaint as it was originally filed in this case, the prayer was only for a mortgage decree in the usual form. After the hearing was closed, the plaintiffs, it seems, were apprehensive that the companyrt might number hold the bond to be properly attested. In these circumstances. they prayed for an amendment of the plaint which was allowed by the companyrt. By the amended plaint the cause of action was stated to arise from the different payments made on different dates as were stated in paragraph 7 of the plaint and at the end of paragraph 7 the following words were added - The suit is saved from limitation so far as the person- al remedy is companycerned and the payments were made by the defendants on different dates as mentioned in Schedule A below. These amendments must be deemed in the eye of law to be a part of the original plaint, and obviously there is neither any averment number proof that any of these payments was acknowledgment in writing prior to the institution of the suit. This being the position, the suit treated as one for obtaining a money decree against the defendants must be held to be barred by limitation at the date on which it was instituted and the companyrts below companysequently were number justified in giving the plaintiffs a money decree in this suit. The question number is whether we can pass a mortgage decree in favour of the plaintiffs on the basis of the finding of the High Court that the bond was properly attest- ed and it is number disputed that numberquestion of limitation would in that case arise. To decide this question there are two points which require companysideration -- Whether the finding of the High Court on the ques- tion of attestation is a companyrect and proper finding on the evidence adduced in this case ? If it is so, whether the facts of the plaintiffs number having preferred an appeal or cross-objection against that part of the judgment of the trial Judge which refused them a mortgage decree, stands in the way of their claiming any relief other than what was given to them by the trial Judge ? As regards the first point, the evidence shows that the mortgage bond was written and engrossed at the plaintiffs house at village Chakla Maulanagur and the date which the document bears is 21st Chaitra 1334 Fasli companyresponding to 8th April, 1027. Obviously, it was on that date the document was written. There are four attesting witnesses whose names appear in the deed, to wit, Sunderlal, Matukdhari Prasad, Dwarka Prasad and Nanak Prasad the last named person being also the scribe of the document --and all of them were residents of Chakla Maulanagur which is the place of resi- dence of the mortgagees. The mortgagors, on the other hand, are inhabitants of a different village, namely, Chand- pur. Nanak Chand, the scribe, was number alive at the time when the suit came up for hearing and out of the remaining three witnesses two were examined on behalf of the plaintiffs. They are Sunderlal and Matukdhari Prasad. Sunderlal, who is P.W. 1, states when cross-examined on behalf of some of the defendants I signed the bond at the plaintiffs house, as did the attesting witnesses. The attestation of the bond was on the same day that it was written. The other attesting witness, Matukdhari Prasad, during cross-examination said as follows The bond was written, signed by the executants and attested by the wit- nesses on the same date. The document shows that all the three executants put their signatures to it on 12th of April, 1927, and on the same day it was presented for registration before the Regis- tering Officer at Katihar. Katihar is at some distance from the plaintiffs village and a part of the journey has to be companyered by train. The evidence of the two attesting wit- nesses makes it clear that the document was attested on the same day as it was written. As the document was written on the 8th but actually executed on the 12th, the Subordinate Judge was of opinion that the attesting witnesses must have signed the deed before it was executed land this was numberattestation in the eye of law. The High Court, on the other hand, has held that the vernacular equivalent of the word written as used by the attesting witnesses might mean execution as well and the Subordinate Judge, who was number familiar with the language of the witnesses might have companymitted the mistake of taking the word written in the sense of mere engrossing or scribing of the deed, although the word companyld be interpreted to mean execution as well. We do number think that this assumption on the part of the learned Judges of the High Court is justified. In the first place, Matukdhari Prasad, the plaintiffs own witness, is quite precise in his statement and makes a distinction between the writing of a document and its signing or execution. Accord- ing to him, the bond was written, executed and attested on the same day. But what is more important for our purpose is the place of the execution of the document. If it was executed at the plaintiffs house, where it was admittedly written, the date of execution would naturally be the date when the deed was scribed or engrossed. This is exactly the suggestion which the plaintiffs lawyers made to defendant No. 1 Sant Lall when he was being crossexamined. He was asked as to whether the document was executed at the plaintiffs village or at Katihar, where it was taken for registration. The witness persisted in saying that he and the other executants put their signatures number at the place of the plaintiffs but at Katihar where they reached by train between 9 and 10 a.m. in the morning. This story seems to fit in with the circum- stances and probabilities of the case. The document was certainly taken to Katihar on the 12th of April, 1927, and the executants were all present there on that day and admit- ted execution of the document by putting their signatures before the Registering Officer. The signatures by way of execution of the document also bear the same date. From these circumstances it would be natural to presume that the execution took place at Katihar some time before the docu- ment was presented for registration. On the other hand, it is numberodys case that any of the attesting witnesses had gone to Katihar they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in companytemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did number happen. We are number unmindful of the fact that numberspecific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 also did number say anything on the point in his examination in chief. But the point was definitely taken in the written statement number only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No.

Case appeal was accepted by the Supreme Court

Kania, C.J. These are five companypanion appeals from the judgments of the High Court of East Punjab and the principal point argued before us is as to the legality of the detention of the appellants under the Preventive Detention Act on the ground that they are engaged in black- marketing in companyton piecegoods. The Jullundur Wholesale Cloth Syndicate was formed to work out the distribution of cloth under the Government of Punjab Control Cloth Order passed under the Essential Supplies Act. Certain persons who held licences as wholesale dealers in cloth formed themselves into a companyporation and all cloth companytrolled by the Government was distributed in the district to the retail quoted holders through them. The Government allotted quotas to the retailers and orders were issued by the Government for giving each retailer certain bales under the distribution companytrol. If some of the retail licence holders did number take delivery of the quotas allotted to them under the Notification of the 4th of October, 1950, issued by the Government of India, Department of Industries and supplies, it was, inter alia, provided that the wholesale syndicate may give the bales number so lifted to another retail dealer. It may be numbered that all along the price for the cloth to be sold wholesale and retail has been fixed under Government orders. The Syndicate was suspected to be dealing in black market and had been warned against its activities by the District Magistrate of Jullundur several times. On the 7th of June, 1951, an order was issued by the District Organiser, Civil Supplies and Rationing, Jullundur, to the managing agents of the wholesale cloth companyporation, Jullundur City, intimating that they were strictly forbidden to dispose of any unlifted stock against unexpired terms without his prior permission in writing. They were further directed that thenceforth numbersuch stock would be allowed to be sold to an individual retailer, but permission would be granted to sell the same to association of retailer only. It was stated that this letter was number in accordance with clause 5 of the Notification of the Government of India dated the 4th October, 1950, which authorized the wholesale syndicate to be at liberty to sell unlifted cloth to any other retailer or an association of retail dealers of the same district. It may be further numbered that the Cotton Cloth Control Order was in operation even prior to 1950. For some time companytrol on the distribution of cloth was lifted but the price remained under the companytrol of the Government. During that time it has been alleged that the appellants and several others sold cloth at rates higher than those fixed by the Government. Even when the distribution and price were both companytrolled, the manufacturing mills were allowed to sell at prices fixed by the Government a certain percentages of cloth which was number taken by the Government under its companytrol. This was described as free sal cloth and it was alleged that the appellants and several others were doing black-marketing in this free sale cloth. By an order passed by the District Magistrate on 19th June, 1951, he directed that the appellants be detained under section 3 2 of the preventive Detention Act to prevent them from acting in a manner prejudicial to the maintenance of supplies of cloths essential to the companymunity. On the 2nd July, 1951, the District Magistrate, Jullundur, directed that the appellants be companymitted to District Jail Jullundur, from the 2nd July until the 1st October, 1951. The appellants were detained accordingly. The grounds for their detention were given to them on the morning of the 6th July. The grounds set out the activities of the appellants as managing agents or partners in different firms or employees of the said firms of companyporations. It was stated that they had been disposing of most of the stocks of cloth received for the Jullundur District in the black market at exorbitant rates from June, 1949, to October, 1950, during the period when companytrol on distribution was removed and that even after the re-imposition of that companytrol in October, 1950, they disposed of cloth which has been frozen under the direction of Director of Civil Supplies in the short interval between the passing of the order and its service on them. The second ground was in respect of their individual activities as members of the firm in which they were partners in disposing of stocks of cloth in black market at rates higher than the companytrolled ones, to various dealers, through agents. The particulars were specified in Appendix A. They refer to the free sale cloth. In the third ground it was alleged that by illegal means they deprived the rightful claimants of the various stocks of cloth with a view to pass the same into black market at exorbitant rates. We do number think it necessary to go into greater details of these grounds or refer to the other grounds. On the 9th of July, 1951, petitions under article 226 of the Constitution of India were filed in the East Punjab High Court asking for writs of habeas companypus against the State on the ground that the detention the appellants under the Preventive Detention Act was illegal. The District Magistrate filed his affidavit in reply challenging the allegation of mala fides and setting out in some detail instances of the activities of the appellants and companytended that on the reports received by him he was satisfied that the detention of the appellants was necessary. Early in August, 1951 the executive authorities cancelled the licence of the appellants as cloth dealers. The High Court dismissed the petitions and the petitioners have companye on appeal to us. Section 3 of the Preventive Detention Act, 1950 provides that the Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity it is necessary so to do, make an order directing that such person be detained. The power to act in accordance with the terms of this provision was given by section 3 2 to a District Magistrate. Such Magistrate however was required to make a report to the State Government to which he was subordinates about the order and also to send the grounds on which the order had been made and such other particulars as, in his opinion, had a bearing on the necessity of the order. It is number disputed that an order under section 3 2 of the Preventive Detention Act to prevent black-marketing can be passed by the District Magistrate. On behalf of the appellants it is companytended that in the grounds for their detention reference is made to their activities prior to June, 1951, only. This cannot be companysidered objectionable because having regard to those activities it is alleged that the satisfaction required under the section had arisen. It was next argued that such loophole as existed in the total companytrol of distribution and sale and price of piecegods in the district was sealed by the order of the District Organiser dated the 7th June, 1951. By virtue of that order the syndicate or companyporation companyld number sell any cloth without an express order in writing from the District Organiser, and therefore there companyld be numberblack-marketing after that date by any of the appellants and the order was therefore unjustified. It was next companytended that in any event number as their licence are cancelled they cannot deal in cloth and the order of detention number maintained against them is more in the nature of punishment than prevention. It was argued that order under the Preventive Detention Act were for the purpose of preventing a person from acting in future in the objectionable way companytemplated by the Act and it was beyond the scope of the Act to pass orders in respect of their alleged activities anterior to June, 1951. In our opinion the High Court approached the matter quite companyrectly. Instances of past activities are relevant to be companysidered in giving rise to the subjective mental companyviction of the District Magistrate that the appellants were likely to indulge in objectionable activities. The grounds which were given for the detention are relevant and the question whether they are sufficient or number is number for the decision of the Court. The Legislature has made only the subjective satisfaction of the authority making the order essential for passing the order. The companytention that because in the Amending Act of 1951 an Advisory Board in companystituted, which can supervise and override the decision taken by the executive authority, and therefore the question whether the grounds are sufficient to give rise to the satisfaction has become a justiciable issue in Court, is clearly unsound. The satisfaction for making the initial order in and has always been under the Preventive Detention Act, that of the authority making the order. Because the Amending Act of 1951 establish a supervisory authority, that discretion and subjective test is number taken a way and by the establishment of the Advisory Board, in our opinion, the Court is number given the jurisdiction to decide whether the subjective decision of the authority making the order was right or number. Proceeding on the footing, therefore, that the jurisdiction to decide whether the appellants should be detained under the Preventive Detention Act on the grounds companyveyed to the appellants is of the District Magistrate. In the present cases, two arguments were advance on behalf of the appellants. It was strenuously urged that by reason of the order of the District Organiser of the 7th June, 1951, the only loophole which remained in the scheme of distribution and sale of cloth under companytrol of the Government was sealed and it was impossible after that order to do any black marketing by any of the appellants. We are unable to accept this companytention. In the first place, this order appears to be an administrative order and is in the nature of a warning. It is at variance with the provisions of clause 5 of the Order of the Central Government of the 4th October, 1950. Moreover this order does number bring about the result claimed for it. A lot of cloth which the manufacturers are permitted to distribute through person outside the Government agencies can still be secured and sold at exorbitant rates, i.e., at rates higher than those fixed by the Government. The second argument was that as the licences of the appellants are number cancelled they cannot deal in textile cloth at all and therefore there can be numberapprehension of their indulging in black market activities. We are unable to accept this argument also because it is companymon knowledge that licences can be obtained in the name of numberinees. Again while these 3 people may number have their licence in Jullundur District they may have or may obtain licences in other districts. From the fact that their licences have been cancelled a month after the order of detention was passed we are unable to hold that it is impossible on that ground for the appellants to indulge in black market activities. In this companynection an extract from the further affidavit of the District Magistrate of Jullundur dated 1st August, 1951, may be usefully numbericed. He stated There have been orders for the release of certain stocks of cloth in respect of other mills, as free sale cloth after the 9th June, 1951. Any quantity of cloth number paid for and lifted by the owners numberinees will revert to the Mills for free sale vide letter No. CYC-2/SLM, dated the 31st May, 1951, from the Textile Commissioner, Bombay, to all selected Mills in Bombay and Ahmedabad. This cloth can be purchased by any wholesale dealer of cloth of India, width out any restriction. Not only this, free sale cloth can be transported from one district to another without a permit vide Memo No. 288894-CS C 50/48791, dated 2nd January, 1951, from the Joint Director, Civil Supplies, and Under-Secretary to Government Punjab to the District Organiser, Civil Supplies and Rationing, Ludhiana. Again free sale cloth is also procurable from individual firms who companyspired to make profit by black-marketing. The only information which is supplied by a purchaser of wholesale cloth to the District Magistrate is as to what quantity of such cloth has been imported into the district. According to the report of the District Organiser numbersuch cloth was imported into Jullundur by the companyporation but there are reasons to believe that the Corporation had been making their purchases in free sale cloth from the Mills and using those bales to make up the deficiency in the bales of quota cloth of superior quality which they used to dispose of in the black market in companylusion with the Mills. Besides, the firm Rattam Chand Mathra Dass, as would be evident from the attached lists signed by the District Organiser, had been dealing in free sale cloth and had also been importing cloth as Reserve of Kangra and also Provincial Reserve. Most of this quota also found its way into the black market. Similarly the firm Madan Gopal Nand Lal and Company had been dealing in free sale cloth on a large scale. It would be evident from the attached list. Santi Sarup, the Secretary of the Corporation, is believed to be a partner in the firm Hari Chand Bindra Ban and this firm also had been dealing in free sale cloth. The free sale cloth acquired by them used to be invariably sold in the black market as reported by the District Organiser in his Memo No. 6306/6734-M CT Do. 7 dated 1st August, 1950, in reply to my Memo. No. nil dated 30th July, 1951. There is absolutely numberbar for the wholesale cloth companyporation, Jullundur, to its getting free sale cloth from the Mills or other wholesale dealers number is there any bar for the firms Rattan Chand Mathra Dass and Madan Gopal Nand Lal and Co. to the acquiring of free sale cloth. It was next argued on behalf of the appellants that the only order of detention made against them was the order of the 2nd July and that did number refer to any section of the Preventive Detention Act and did number suggest that there was any satisfaction of the detaining authority. It was argued that numberorder of the 19th of June was ever shown to any of the appellants or served on them and therefore their detention was illegal. It should be pointed out that these companytentions are raised in the affidavits number of the detained persons, but of their relations. Their affidavits do number show that they have any personal knowledge. The affidavits on this point are based only on their belief and information and the source of the information is number even disclosed. As against this, there is the affidavit of the District Magistrate which expressly states that terms of the Order of the 19th of June were fully explained to each of the detenus. The petitions for the writs of habeas companypus were filed within a week after the service of the detention order and we do number think there is any reason to doubt the companyrectness of the statements of the District Magistrate. In our opinion this ground of attack on the order of detention has numbersubstance and the detention cannot be held illegal on that ground. The judgment of the High Court was attacked on these grounds and as we are unable to accept any of these companytentions the appeals must fail. One of the appellants is the secretary of one companyporation and another is a salesman and clerk in one of the firms. On their behalf it was urged that they companyld number indulge in black market activities. We are unable to accept this companytention in view of what is stated in the affidavits of the District Magistrate. It is there pointed out that in addition to being a secretary or a clerk and in those capacities actively participating in the black market activities of their principals, they were themselves indulging in black market activities in cloth. If these and other facts in respect of the appellants are disputed the matter will be companysidered by the Advisory Board. The question of the truth those statements however is number within the jurisdiction of this Court to decide.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 75 of 1950. Appeal from the Judgment of the High Court of Judicature at Patna dated 22nd November, 1944, in Appeal No. 238 of 1940 arising out of order dated 13th July, 1940, of the Subordinate Judge of Bhagalpur in Mis. Case No. 174 of 1939. The facts of the case appear from the judgment. The appeal was originally preferred to the Privy Council and was subse- quently transferred and heard by the Supreme Court. C. Chatterjee B. Sen, with him for the appellant. C De Raghunath Jha, with him for the respond- ents. 1951. October 26. The Judgment of the Court was deliv- ered by DAs J.--This appeal has companye up for hearing before us on transfer from the Privy Council. The appellant is the present holder of Taluk Kakwara which appertains to Mahalat Kharakpur. The respondents represent the Banaili Raj which has also acquired the Mahalat of Kharakpur. The respondents obtained a decree for Rs. 11,587-14-6 against the appellant for arrears of rent and cess and applied for execution of their decree by the attachment and sale of Taluk Kakwara. On August 29, 1939, the appellant judgment-debtor filed an objection under section 47 of the Code of Civil Procedure alleging that as Taluk Kakwara was held on Ghatwali tenure it companyld number be sold in execution of a money decree. This objection was rather too wide, for all lands held on Ghatwa- li tenure were number necessarily inalienable. Indeed, in Kali Pershad Singh v. Anund Roy 1 which related to the Ghatwali Mahal of Kharna within the Mahalat of Kharakpur the evidence clearly established a number of instances in which there had been unquestioned transfers and sales applicable to Mahals in Kharakpur and it was held by the Privy Council that the true view to take was that such a tenure in Kharakpur was number inalienable, and might be transferred by the Ghatwal or sold in execution of a decree against him, if such transfer or sale was assented to by the Zamindar. A sale at the instance of the Zamindar in execution of a decree for ar- rears of rent necessarily implies the existence of such assent. In the later case of Narayan Singh v. Niranjan Chakravarti 2 which related to the Ghatwali Mahal of Hand- wa, Lord Sumner recognised that the decision of the Privy Council in the Kharna Ghatwali Mahal case was fully support- ed by the evidence adduced in that case and that that authority had been repeatedly followed and applied in India, and, so far as the reports showed, without proof of the custom being required over again. Lord Sumner, however, pointed out that 1 1887 L.R. 15 I.A. 18 I.L.R. 15 Cal. 471. 2 1923 L.R. 51 I.A. 37 I.L.R. 3 Pat. 184 A.I.R. 1924 C. 5. it was plain that as the custom depended on proof, and as the tenure in question was one in the Zamindari of Kharakpur and under its Zamindar, it companyld have numberreference to Ghat- wali tenures number under him number forming part of his Zamind- ari. The Privy Council in the later case referred to above saw numberground for thinking that the custom of Kharakpur had any application to Ghatwali tenures, which, like Handwa, were independent of the Kharakpur Zamindari, even though they might be number far off Kharakpur. In short, it may be said to be well established--and the companytrary has number been urged before us --that Ghatwali tenures held under the Zamindar of Kharakpur were, by custom judicially recognised, alienable with the assent of the Zamindar while Ghatwali tenures like Handwa held under the Government direct were inalienable. In this state of the authorities, the appellant judgment-debtor on May 31, 1940, filed a fresh petition of objection under section 47 of the Code claiming that Taluk Kakwara was held under a Government Ghatwali tenure. The principal question for determination in those execution proceedings was whether Taluk Kakwara was a Government Ghatwali, as alleged by the appellant judgment-debtor, or was a Zamindari Ghatwali held under themselves, as claimed by the Respondents decree-holders. The learned Subordinate Judge held that Taluk Kakwara was a Zamindari Ghatwali under the Raja of Kharakpur and overruled the objection of the judgment-debtor. The judg- ment-debtor appealed to the High Court. The appeal came up for hearing in the first instance before a Bench companysisting of Manohar Lal and Shearer JJ. Manohar Lal J. came to the companyclusion that Taluk Kakwara was a Government Ghatwali and was inclined to allow the appeal. Shearer J. took the view that while Taluk Kakwara was at one time a Government Ghat- wali, it ceased to be so and became and remained a Zamindari Ghatwali and as such was alienable and was inclined to dismiss the appeal. In view of this difference of opinion the appeal was referred to Chatterjee J, as the third Judge Chatterjee J. held that Taluk Kakwara was a Zamindari Ghat- wali land as such alienable and accordingly dismissed the appeal. The judgment-debtor obtained leave to appeal to the Privy Council. As already stated, the appeal has companye up for hearing before us on transfer from the Privy Council. Although the exact origin of the Ghatwali tenures was generally lost in the companyfusion and obscurity of the trou- blous times which preceded the British rule, the nature of the Ghatwali tenures and their purposes and incidents have been fully established by a series of decided cases. The position of the Zamindars in or about 1765, when the East India Company secured the Dewani of Bengal, Bihar and Oris- sa, has been described by the Right Honble T. Pemberton Leigh who subsequently became Lord Kingsdown in his judg- ment in the case of Raja Lelanund Singh v. Government Ben- gal 1 Many of the greater Zamindars within their respective Zamindaries, were entrusted with rights, and charged with duties, which properly belonged to the Government. They had authority to companylect from the Ryots a certain portion of the gross produce of the lands. They, in many cases, imposed taxes and levied toils, and they increased their income by fees, perquisites, and similar exactions, number wholly unknown to more recent times and more civilised nations. On the other hand, they were bound to maintain peace and order, and administer justice within their Zamindaries, and, for that purpose, they had to keep up Courts of civil and criminal justice, to employ Kazees, Canoongoes, and Thanahdars, or a police force. But while as against the Ryots and other inhabitants within their territories, many of these poten- tates exercised almost regal authority, they were, as against the Government, little more than stewards or admin- istrators. Their Zamindaries were granted to them only from year to year the amount of their jumma, or yearly payment to Government, was varied, or might be varied annually it was an arbitrary sum fixed by the Government 1 1855 6 M.I.A. 101 at p. 108. officers, calculated upon the gross produce of the Zamindary from all sources, after making an allowance to the Zamindar for his maintenance, and for the expenses of the companylection and of discharging the public duties with which he was entrusted by the Government. Further down his Lordship observed Besides the disorder which prevailed generally Besides the disorder which prevailed generally through the Prov- inces, particular Districts were exposed to ravages of a different description. The mountain or hill districts in India were at this time inhabited by lawless tribes, assert- ing a wild independence, often of a different race and different religion from the inhabitants of the plains, who were frequently subjected to marauding expeditions by their more warlike neighbours. To prevent these incursions it was necessary to guard and watch the Ghats, or mountain passes, through which these hostile descents were made and the Mahomedan rulers established a tenure called Ghatwali ten- ure, by which lands were granted to individuals, often of high rank, at a low rent, or without rent, on companydition of their performing these duties, and protecting and preserving order in the neighbouring Districts. This description of the nature and incidents of a Ghat- wali tenure was adopted by the High Court Garth C.J. and McDonell J. in Leelanund Singh v. Thakoor Munranjan Singh 1 which was a case between the respective predeces- sors of the parties before us and related to this very Taluk Kakwara. Said the learned Chief Justice at p. 255- And it is very necessary for our present purpose to bear in mind what was the true origin and nature of these tenures. They were created by the Mahomedan Government in early times, as a means of providing a police and military force to watch and guard the mountain passes from the inva- sions of the lawless tribes who inhabited the hill dis- tricts. Large grants of land were made in those days by the Government. 1 1877 I.L.R. 3 Cal. 251. often to persons of high rank, at a low rent, or at numberrent at all, upon companydition that they should provide and maintain a sufficient military force, to protect the inhabitants of the plains from these lawless incursions and the grantees on their part sub-divided and re-granted the lands to other tenants much in the same way as military tenures were created in England in the feudal age , each of whom, besides paying generally a small rent, held their lands in companysider- ation of these military services, and provided each accord- ing to the extent of his holding a specified number of armed men to fulfil the requirements of the Government. As has been said by Lord Kingsdown in Raja Lelanund Singh v. The Government of Bengal supra at p. 125 though the nature and extent of the right of the Ghatwals in the Ghatwali villages may be doubtful, and probably differed in different districts and in different families, there clearly was some ancient law or usage by which these lands were appropriated to reward the services of Ghatwals services which, although they would include the performance of duties of police, were quite as much in their origin of a military as a civil character, and would require the appointment of a very different class of persons from ordinary police offi- cers. Accordingly his Lordship found that the office of Ghatwal in the Kharakpur Zamindari was frequently held by persons of high rank. In Munrunjan Singh v. Raja Lelanund 1 which was also a case between the respective predecessors of the parties before us and related to this very Taluk Kakwa- ra, the High Court at p. 86 observed - It appears that there is companysiderable variety in the tenures known under the general name of Ghatwali in differ- ent parts of the companyntry. They all agree in this that they are grants of land situated on the edge of the hilly companyn- try, and held on companydition of guarding the ghats or passes. Generally, there seems to be a small quit-rent payable to the Zamindar in addition to the service rendered, and with the view of marking 1 1865 3 W.R. 84. the subordination of the tenure. But in some Zamindaries and putnees these tenures are of a major, in others of a minor, character. Sometimes the tenure of the great Zamin- dar himself seems to have been originally of this character. More frequently large tenures, companysisting of several whole villages, are held under the Zamindar. Further down their Lordships said These inferior Ghatwalis seem to be those in which the Zamindar or ruling power deals direct with the individuals who do the work, assigning them pieces of land in the estab- lished villages. The larger tenures were more of the nature of semi-military companyonies, where a chief with his followers were settled down in parts of the companyntry so unsafe that it companyld number be otherwise occupied. The law relating to Ghatwali tenures has been dealt with at companysiderable length by Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra . The variety of companyditions of service to be rendered by a Ghatwal was thus summed up by his Lordship at pp. 80-51 - In itself ghatwal is a term meaning an office held by a particular person from time to time, who is bound to the performance of its duties, with a companysideration to be en- joyed in return by the incumbent of the office. Within this meaning the utmost variety of companyditions may exist. There may be a mere personal companytract of employment for wages, which take the form of the use of land or an actual estate in land, heritable and perpetual, but companyditional upon services certain or services to be demanded. The office may be public or private, important or the reverse. The Ghatwal, the guard of the pass may be the bulwark of a whole companyntry- side against invaders he may be merely a sentry against petty marauders he may be numbermore than a kind of game- keeper, protecting the crops from the ravages of wild ani- mals. Ghatwali duties may be divided into police duties and quasi-military duties, though both classes have lost much of their importance, and the latter in any strict form are but rarely rendered. Again, the duties of the office may be such as demand personal discharge by the Ghatwal and personal companypetence for that discharge they may, on the other hand, be such as can be discharged vicariously, by the creation of shikmi tenures and by the appointment and maintenance of a subordinate force, or they may be such as in their nature only require to be provided for in bulk. It is plain that where a grant is forthcoming to a man and his heirs as Ghatwal, or is to be presumed to have been made though it may have since been lost, personal performance of the ghatwali services is number essential so long as the grantee is responsible for them and procures them to be rendered Shib Lal Singh v. Moorad Khan, 1868 9 Suth. W.R. 126. Then his Lordship pointed out that the superior who appointed the Ghatwal might be the ruling power over the companyntry at large, the landholder responsible by custom for the maintenance of security and order within his estates, or simply the private person, to whom the maintenance of watch- men was, in the case of an extensive property, important enough to require the creation of a regular office. Al- though personal service by the employee and personal selec- tion and appointment by the employer might have been ordi- narily essential incidents of the relationship, yet it was number invariably so as appears from the last quotation as well as from the following passage in the judgment by Lord Sumner at p. 52 - On the other hand, there are great estates, whose proprietors are found holding them or parts of them upon the terms of providing that ghatwali services shall be forthcom- ing, either regularly or when required services it is impossible for the proprietor himself to render in his own person, and which become possible to him and to those to whom he renders them simply by virtue of his possession of the lands thus granted. In such eases the ghatwali tenure, even if number originally granted as heritable, easily becomes so, and is companymonly found on the death of an incumbent of the office to descend to some member of his family, if number necessarily to the senior member. Thus in Kharakpur ghatwals have a perpetual hereditary tenure at a fixed jama Munrun- jun Singh v. Lelanund Singh. The requirement of rendering of services by a Ghatwal naturally gave rise to a further incident of such a tenure, namely, the inalienability of the Ghatwali lands, for an alienation of the Ghatwali lands might easily deprive the Ghatwal of the whole of the means provided to enable the services to be rendered. This companysideration peculiarly applied where the superior, by whom the Ghatwals were ap- pointed and of whom the Ghatwali lands were held. was the ruling power itself. As has already been stated above, the rigour of this incident of inalienability had, however, in the case of Kharakpur Zamindari Ghatwalis, given way to custom recognised as well established in the case of Kali Petshad v. Anund Roy supra , which has been repeatedly followed and applied in India without proof of the custom being required over again. From what has been stated above, it clearly follows that Ghatwali tenures originated during the Moghul period, that although the services included police duties, they were in their origin just as much of a military as a civil character and that the tenure companyld be granted by the ruling power directly to the Ghatwal who was to render the services so as to establish a direct privity between the ruling power and the Ghatwal or it companyld be granted by the Zamindar for the protection of his Zamindari or for. enabling him to render the police and military services to the ruling power which he was bound to do under the terms of the grant of Zamindari to him. The question then arises --which of these catego- ries the Ghatwals of Kharakpur companye under. Mahalat Kharakpur was an extensive estate and apparently owed allegiance, real or numberinal, to the Moghul Emperor. There is numberevidence on record showing on what terms the Raja of Kharakpur held the estate under the Moghuls and it is difficult to say, with any amount of certainty, what kind or amount of serv- ices, police or military, he had to render to the then ruling power. It may, however, be safely stated that, like all other Zamindars, the Raja of Kharakpur had to preserve internal peace and order by maintaining sufficient Thanas or police establishments and to protect the tenants and other inhabitants from the incursions of lawless tribes from the neighbouring hills by providing or arranging for a suffi- cient military force. It companyld number be expected that a big Zamindar like the Raja of Kharakpur would render the police or military services personally and companysequently it was natural for him to appoint his own Ghatwals to protect his Zamindari and to render services for him to the ruling power. As said by Lord Kingsdown in Raja Lelanund Singh v. The Government of Bengal supra at p. 102 it was well established that long before 1765 the Zamindars of Kharakpur had created Ghatwali tenures for the purpose of protecting their Zamindaries from the attacks of mountaineers and other turbulent people in their neighborhood. Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra at p. 68 also recognised that long before 1765 Ghatwali tenures under the Zamindar of Kharakpur had been created by the various hold- ers of those lands for their own purposes and as late as 1770-1785 Mr. Cleveland, who managed the estate during the minority of Kadir Ali, followed the same policy. In Naray- an Singh v. Niranjan Chakravarti supra at p. 50 Lord Sumner said - In the Sonthai Parganas there are for practical pur- poses three classes of Ghatwali tenures a Government ghatwalis created by the ruling power b Government ghat- walis, which since their creation and generally at the time of the Permanent Settlement have been included in a zamind- ari estate and formed into a unit in the assessment and c zamindari ghatwalis, created by the zamindar or his prede- cessors and alienable with his companysent. The second of these classes is really a branch of the first. The question, then, is--to which class the Ghatwali tenure of Taluk Kakwara, with which we are companycerned in this case, belongs--whether it was a Government Ghatwali or was one of the many Ghatwali tenures created by the Zamindars of Kharakpur. Happily, we do number have to speculate. The problem before us is number to infer the true nature and incidents of the original grant which companyld only be companylected from the evi- dence of what was done and left undone in companynection with Taluk Kakwara by the ruling power and its officers. We have in evidence before us the authentic texts of the two Sanads relating to the Kakwara Ghatwali and we also have the provi- sions of the Permanent Settlement Regulation. The nature and incidents of that tenure must rest upon the true companystruc- tion and import of those grants as well as on the manner in which it was dealt with at the time of the Permanent Settle- ment. It will be companyvenient and useful, at this stage, to give a very short history of Mahalat Kharakpur and Taluk Kakwara. In 1765 the East India Company secured the Dewani of Bengal, Bihar and Orissa from the Moghul Emperor. The accession of Dewani was in effect a cession of the three provinces and the East India Company virtually became the sovereign ruling power over those territories. At that time one Mozaffar Ali was the Raja of Mahalat Kharakpur. Taluk Kakwara appertained to Mahalat Kharakpur. In 1766 Raja Mozaffar Ali rose in rebellion against the East India Compa- ny. A strong military force under the companymand of Captain Browne was sent for quelling the revolt. Eventually, in 1768 Raja Mozaffar Ali was subdued and imprisoned. The Raja was deposed and deprived of his estate and the East India Compa- ny took direct charge of Mahalat Kharakpur and managed it through its officers until the Mahalat was restored to Raja Kadir Ali, the grandson of Raja Mozaffar Ali. In 1776 Cap- tain Browne, who was then in charge of the Mahalat, granted an Amalnama or Sanad Exhibit 1 in respect of 22 villages to two persons Rankoo Singh and Bhairo Singh at a fixed annual Jama of Rs, 245-12-15. That Sanad was in the follow- ing terms Seal of Captain James Browne, head of jungletari low forest land . Know ye, the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda Sukhwara, Zila Jangal-tari. appertaining to Kharagpur, Sarkar Monghyr, in the Province of Bihar. From the beginning of 1184 Fasli, Taluka Kakwara, parga- na aforesaid, is let out in perpetual mukarrari, without any objection or companytention, to Rankoo Singh and Bhairo Singh, ghatwals of the said Taluka, at a fixed jama of Rs. 245-12- 15 rupees two hundred and forty-five, annas twelve and gandas fifteen in current companyns numbered in the endorsement, companysolidated from all sources, including malwajhat, sair- wajhat and all grains, and excluding the perquisites of the zamindari, nankar, chaudhuris and kanungos, parganati ex- penses, lands given in charity, e.g., barhmotar, shibotar and bishunparit lands, aima lands of jagirdars, bargandazes musketeers , dhupars ? , mahus ? etc. It is requisite that they should peacefully cultivate torn and pay the Government torn , according to the kabuliat, year after year and crop after crop, into the Government treasury. They should make such effort as to increase the cultivation of the said Taluka from day to day. They should hold them- selves responsible for deficient cultivation. They should keep the tenants pleased and companytented with their good treatment and should number oppress any one and make excessive demands. They should number fix the allowance of the jagirdars and bargandazes etc., over and above the rent. They should bear this in mind. They should provide for the protection of the tenants within their jurisdiction and of the villages of the said Taluka. Whenever the chakars ? be sent for by the huzur, the sardar ? should appear before him with his men. If at any place, within their boundary limits, murder, disturbance, dacoity, theft, highway robbery etc., be company- mitted, and the culprit be traced or be found companyspiring advisedly with any one and the Government work suffer, and proper punishment be meted out after inquiry, they will be responsible ? by virtue of their position, and will be dismissed from their post and will number be reinstated unintelligible . The amlas of the zamindars of the said Taluka should on knowing the said istimrari mukarrari rent to have been fixed, companytinue to receive the mukarrari rent from year to year and should number demand even a farthing in excess. They should treat this as peremptory and act as written herein. Dated the 25th Shanwal, 17, companyresponding to the 7th Pus Bangla, 1183 Fasli. Endorsement. Taluka Kakwara, pargana Danda Sukhwara, appertaining to Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the province of Bihar, is let out in perpetual mukartari, without any objection or companytention, to Rankoo Singh and Bhairo Singh, Ghatwals, at a fixed jama of Rs. 245-12-15 rupees two hundred and fortyfive, annas twelve and gandas fifteen in current companyns as specified below, companysolidated from all sources, including malwajhat, sair-wajhat, and all grains, excluding the perquisites of the zamindari, nankar, Chaudhu- ris and Kanungos, expenses of the said Taluka, lands given in charity, e.g. barhmotar, shibotar and Bishun-parit lands, jagir lands of jagirdars, bargandazes, dhupars ? , maimas ? , etc. Fixed jama. Rs. 245-12-15 gandas. Then followed the specification of 22 Mouzas or villages. It will be numbericed that the grant was made to Rankoo Singh and Bhairo Singh described as ghatwals of the said Taluk which suggests that those two persons were already Ghatwals. The duties generally imposed on the grantees and in particu- lar the duty of providing protection for the tenants and of appearing before Huzur with his men did number, in the words of Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra at p. 46, go beyond duties then ordinarily discharged by Zamindars. There was numberstipulation either in the main body of the grant or in the endorsement at the foot for maintaining a regular body of a definite number of archers and barkan- dazes such as is to be usually found in ordinary Ghatwali grants and indeed such as is in fact to be found in the subsequent grant of Raja Kadir Ali with respect to this very Taluk Kakwara. Finally, the admonition at the end of the principal paragraph to the amlas of the Zamindars of the said Taluk to receive the fixed mukarrai rent and number to demand even a farthing in excess may well be regarded as indicating that the Zamindar was really interested in the grant. In the premises, the observation of the learned Judges of the High Court of Calcutta in Munrunjun Singh v. Raja Lelanund supra at page 85 that the Sanad of Captain Browne seemed to them to be rather a companyfirmation of an existing tenure than the creation of a new one appears to have companysiderable force. This view of the matter will be quite companysistent with the subsequent history of the Kakwara Ghatwali which will be presently related. It is, however, pointed out that at the date of this Sanad there was in fact numberRaja of Karakpur and that as the Mahalat was being administered and managed by Captain Browne on behalf of the East India Company the grant made by him must be taken as creating a Government Ghatwali tenure. The Seal at the top of the Sanad is said to indicate that in granting the Sanad in his capacity as Sardar of the Jungle Terai Captain Browne was acting for and on behalf of the East India Company. The Sanad was addressed to the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda Sukhwara and it is urged that if Captain Browne had been acting on behalf of the Zamindar of Kharakpur, addressing the Sanad to the Zamindars would have been wholly inappropriate. The fact that the grant was to companymence from the beginning of 1184 Fasli also militates against its being only a companyfirmation of a pre-existing Ghatwali tenure. The direction to pay according to the Kabuliat, year after year, crop after crop, into the Government treasury clearly suggests that the Sanad created a Government Ghatwali tenure. In the Moghul period there was numberfixity of the jama and the grants were made annually and the jamas were liable to be varied. The provision of a fixed annual jama in this Sanad cannot, therefore, it is argued, be regarded as a companyfirmation of an existing grant on a fixed jama. Taking all these matters into companysideration Shearer and Chatterjee JJ. came to the companyclusion that under Captain Brownes Sanad of 1777 Taluk Kakwara became a Government Ghatwall. This line of reasoning is number without force or companyency although it may number neces- sarily be companyclusive, for Captain Browne, undoubtedly acting for the East India Company, might well have issued the Sanad during the period of interregnum. on behalf or in the inter- est of whoever might eventually become the Zamindar of Kakwara. If the matter rested only with this Sanad and numberhing further had happened then perhaps it might have been said with some plausibility that a new tenure was created by the ruling power by this Sanad, but the matter does number in fact rest with only Captain Brownes Sanad, and we have to see how this Taluk Kakwara has been subsequently dealt with and what effect the subsequent events have on the status and rights of the Ghatwal of this Taluk. It appears that in 1780 the East India Company restored Mahalat Kharakpur to Kadir Ali, the grandson of the deposed Raja Mozaffar Ali. Although the formal order of the Gover- number-General came in 1781, the Mahalat was actually restored to Raja Kadir Ali in 1780. At that time Raja Kadir Ali was only a boy of five or six years of age and Mr. Cleveland, the Collector of Bhagalpur, managed Mahalat Kharakpur for and on behalf of the minor Raja Kadir Ali. On January 17, 1780, a fresh Sanad Exhibit 1 a was granted in the name and under the Seal of Raja Kadir All to the same two per- sons, Rankoo Singh and Bhairo Singh, in the following terms -- Seat of Raja Qadir Ali, under Emperor Shah Alam, the Victorious--1193 . Know ye, the present and future mutasaddis of affairs and the gumashtas holding the posts of Chaudhuris and Kanun- goes of Pargana Danda Sukhwara appertaining to mahals Kha- ragpur, Sarkar Monghyr, in the Province of Bihar. The Ghatwali service tenure of Taluka Kakwar appertaining to the said pargana is held, under a Sanad, by Bhairo Singh and Rankoo Singh, with 177 musketeers and archers including sardars, on the companydition of allegiance and loyal- ty to the Sarkar. Of late also, the said tenure being upheld and kept intact as usual, according to the endorse- ment, is assigned and granted with effect from the beginning of the Kharif season of 1189 Fasli Rajwara companyresponding to 1188 Fasli Mughlana. They should discharge the duties and obligations with honesty and fidelity and keep the tenants pleased and companytented with their good treatment, and should watch the ghats and chaukis very carefully and cautiously, so that numberthief and night robber may companye around and about them. If, God forbid, the properties of any one be stolen or plundered and cattle be companycealed or murder be companymited, they should trace the thieves and night robbers with the properties intact, restore the properties to the owner and produce the party of the mischief mongers before the Huzur and prove the murder. In case they fail to find out the thieves and to prove the murder and the companycealment theft of cattle, they should hold themselves responsible therefor. They should companytinue to pay the quit-rent to the Sarkar as usual. When summoned, they should appear before the Huzur with the body of men. It is desired that you should companysider them as permanent Ghatwals of that place and maintain them in their possessions and you should number fail to give them sound advice so as to ensure by all means the advantage of the Sarkar and the well-being of the tenants. Treat this as peremptory and act accordingly. Dated, the 17th seventh sic day of the holy month of Muharram of year 22, companyresponding to 194 A.H. Endorsement The Ghatwali service tenure of taluka Kakwara. Pargana Danda Sukhwara, is granted as before to Rankoo Singh and Bhairo Singh with 172 Musketeers and archers including sardars with effect from the beginning of the karif season of 1189 Fasli, Rajwara, companyresponding to 1189 Fasli Mughla- na, on the companydition of allegiance and loyalty to the Sar- kar. Above-named persons sic --7 172 Musketeers and Archers--165 Rs.a.d. 245-12-1 Fixed perpetual quit rent 215- 0-15 Rent Zamindari 30-12- 0 Rs. a. d. Rs. a.d. By Bhairo Singh 178- 3- 5 By Rankoo Singh 67-9-10 155-14-15 Rent 59-2- 0 Rent Zamindari 22- 4-10 Zamindari 8-7-10. Then followed a list of 16 Mauzas given in Jagir. If Taluk Kakwara was, in its origin, a Zamindari Ghatwali created by the Zamindar of Kharakpur and if Captain Brownes Sanad only companyfirmed that existing tenure during the inter- regnum when he was in charge of the entire Mahalat of Kha- rakpur and managed it on behalf of the East India Company but in the interest of whoever eventually became the Raja of Kharakpur, then on the restoration of the Zamindari to Raja Kadir Ali he would naturally clarify the position and status of the Ghatwals under him by issuing fresh Sanads in their favour. In this view of the matter Raja Kadir Alis Sanad only regularised the original status of Taluk Kakwara as a Zamindari Ghatwali tenure and specified the terms more clearly and explicitly. It is, however, companytended on behalf of the appellant that the Sanad of Captain Browne created a Government Ghat- wali tenure and Raja Kadir Alis Sanad was numberhing more than a companyfirmation of that Government Ghatwali tenure. Reliance is placed on the inscription in the seal at the top which refers to Emperor Shah Alam the Victorious and it is company- tended that this clearly indicates that this Sanad was also intended to be a Government grant. We are unable to accept this companytention as sound. The reference to Emperor Shah Alam the Victorious might be numberhing more than a mere formal recognition of a titular figurehead. The statement that the Ghatwali service tenure of Taluk Kakwara was held under a Sanad by Bhairo Singh and Rankoo Singh with 172 Musketeers and Archers etc. may well be taken as referring to an earlier Sanad which specified the number of Musketeers and Archers and need number necessarily refer to Captain Brownes Sanad of 1777 in which there was, as has been pointed out, numberspecification of any number of Musketeers and Archers. Under this Sanad the grantees tenure companymenced from the beginning of the Kharif season of 1189 Fasli, Rajwara, companyresponding to 1188 Fasli Mughlana. This date of companymence- ment of the tenure is different from the date of companymence- ment mentioned in Captain Brownes Sanad. In Captain Brownes Sanad the fixed Jama of Rs. 245-12-15 was exclusive of Zamindari Rasoom whereas under Raja Kadir Alis Sanad the fixed perpetual quit rent of Rs. 245-12-15 was inclusive of Zamindari Rasoom, the rent being Rs. 215-0-15 and Zamindari Rasoom being Rs. 30-12-0. What is still more significant is the apportionment of the quit rent between the two grantees which is to be found towards the end of the Sanad. Such an apportionment was wholly inappropriate in the case of a merely companyfirmatory grant. Again, this grant companyprised 16 Mauzas whereas Captain Brownes Sanad companyered 22 Mauzas. Even the names of many of the 16 Mauzas are number to be found in the specification of Mauzas at the end of Captain Brownes Sanad. The further significant fact is that in the 16 Mauzas set out at the foot of Raja Kadir Alis Sanad the two grantees were shown to have different and distinct shares in the different Mauzas. In some cases, even an entire Mauza was allotted exclusively to one or the other. Further, if Captain Brownes Sanad created a Government Ghatwali tenure, it is number intelligible why Raja Kadir Ali should be called upon to companyfirm the grant with which he was number directly or indirectly companycerned. Again, it is well known that at this time 98 of the Ghatwals of Kharakpur took their Sanads from Raja Kadir Ali while only three big Ghatwals, namely, those of Lachmi- pur, Handwa and Chandan Katoria took their Sanads number from Raja Kadir Ali but from Mr. Dickenson who succeeded Captain Browne. This distinction can only be explained on the footing that these 98 Ghatwalis including Taluk Kakwara were in reality Zamindari Ghatwalis while the three bigger Ghat- walis were treated as Government Ghatwalis. The fact that Mr. Cleveland, the Collector of Bhagalpur, was at this time in charge and management of Mahalat Kharakpur, that these 98 Sanads were granted in the name of Kadir Ali during the period of Mr. Clevelands management and the fact that ever since 1780 numberody on behalf of the Government has questioned the propriety of these Sanads as evidencing a grant of Zamindari Ghatwali clearly establish that Raja Kadir Alis Sanads really regularised the position and status of these Ghatwals as holding Zamindari Ghatwali tenures and specified the terms on which the tenures were to be thenceforth held. On the other hand, even if it be accepted that Captain Brownes Sanad created a Government Ghatwali tenure then, in the language of Lord Sumner in Narayan Singh v. Niranjan Chakravarti supra at p. 54 it might well be said that Raja Kadir Alis Sanad issued during the time Mr. Cleveland, the Collector of Bhagalpur, was managing the Mahalat of Kharakpur, and never objected to or questioned at any time thereafter by the Government amounted to a release by the Government of the Ghatwali services or to a grant to a third party of the right to receive them and of the right to appoint the Ghatwali and, therefore, the original Govern- ment Ghatwali tenure came to an end and a Zamindari Ghatwali tenure took its place. The matter does number even rest with Raja Kadir Alis Sanad. In 1789 or 1790 there was a decennial settlement of Mahalat Kharakpur with Raja Kadir Ali which in 1796 was made permanent under the permanent Settlement Regulation I of 1793. As Lord Kingsdown pointed out in Raja Lelanund Singh v. The Govern- ment of Bengal supra at p. 114, it was beyond dispute and indeed fairly admitted that the Ghatwali lands formed part of the Zamindari and were included in and companyered by the assessment of the Zamindari. This was recognised by the High Court in Munrunjun Singh v. Raja Lelanund supra when they said that there was numberdoubt that the tenure was, at the Permanent Settlement, included in the Zamindari of Kharakpur and that the Jama was payable to the Zamindar. On appeal, their Lordships of the Privy Council also pointed out that the claim of the Government to resume and reassess the Ghatwali lands was dismissed upon the ground that the Taluk had been assessed to revenue and was a portion of the Mal land of the Zamindar. In Leelanund Singh v. Thakoor Munrunjun Singh supra Garth C. J. at p. 257 said that there companyld be numberdoubt that the time of the Permanent Settlement the Taluk Kakwara formed part of the Kharakpur Zamindari and that the holders of that Taluk were dependent Talookdars of that Zamindari. The holders of Taluk Kakwara were certainly number independent Talookdars because the Zamin- dar had the beneficial interest in the tenure and these tenures were never registered as independent Taluks. Lord Sumner described the attempt of Raja LelanundSingh to recov- er possession of Taluk Kakwara as an attempt on his part to resume his Shikmi Ghatwali lands. Further, Captain Browne in his book India Tracts published in 1788 had shown only Luchmipur, Handwa and Chandan Katoria, all appertaining to Purgunnah Kharakpur, as three Ghatwalis under the Jungle Terry Collector. Kakwara was number shown in that list. On February 24, 1860, a list Exhibit D of Ghatwali Mahals appertaining to Kharakpur was prepared by the Government showing 98 Ghatwali tenures appertaining to Mahal Kharakpur. Kakwara is item 73 in that list. In 1863, at the time of the companyposition made between the Government and the Raja of Kharakpur another list of Ghatwali Mahals appertaining to Kharakpur was prepared by the Government and Kakwara is item No. 40 in that list. In neither of these lists did Lachmipur, Handwa and Chandan Katoria, which were under the Collector, find a place. Again, the letters from the Collector of Bhagalpur to the Raja of Kakwara written in 1783 and 1808 set out in Lord Kingsdowns judgment in Raja Lelanund Singh v. The Govern- ment of Bengal supra clearly show that the Government recognised that the right of appointment and dismissal of a Ghatwal rested with the Raja of Kharakpur. As Lord Kings- down pointed out in Raja Lelanund Singh v. The Government of Bengal supra at p. 114, the Zamindars derived some benefit in money and also had the benefit of the services of the Ghatwals and enjoyed the valuable right of appointing the individuals, who, with the lands, were to take upon them- selves the duties of the office. If the Ghatwali tenures, created by the Sanad of Raja Kadir Ali were Government Ghatwali tenures, it is number intelligible how the Zamindar would have the right to appoint or dismiss the Ghatwal. On a companysideration of the facts and the circumstances numbered above, we are of opinion that Taluk Kakwara was, in its origin, a Zamindari Ghatwali tenure and companytinued to be so and was in fact treated as such down to the present time and further that even if by virtue of Captain Brownes Sanad it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali, or, at any rate, after the Permanent Settle- ment, Taluk Kakwara became a Zamindari Ghatwali and as such alienable with the companysent of the Zamindar according to the custom of Kharakpur judicially recognised. It is quite clear to us that the companyclusions arrived at by us are in numberway inconsistent with the judicial decisions which have been cited before us. In Raja Lelanund Singh v. The Government of Bengal supra the Government sought to establish their right to resume and assess with revenue Ghatwali lands appertaining to the Zamindari of Kharakpur. The Government claimed the right under Regulation I of 1793, section 8, clause 4 , and companytended that before the Permanent Settlement the Zamindar used to appropriate the produce of the Ghatwali lands in maintaining police estab- lishments and that, as by that Regulation the Government undertook the charge of maintaining the police, the lands become liable to resumption in addition to the jama assessed on the Zamindari and that the lama assessed on the Zamindari of Kharakpur did number include any sum assessed in respect of the produce appropriated for the maintenance of the police establishments. There were eleven suits against 11 Ghat- wals. The Raja of Kharakpur was number originally made a party to the proceedings but he was eventually added as a party on his own application. In 1885 a final judgment in favour of the Government was pronounced by the Special Commissioner. The Raja of Kharakpur appealed. The Government claim was dismissed on the ground, first, that the Ghatwali lands were part of the Zamindari of Kharakpur and were included in the Permanent Settlement of the Zamindari and companyered by the jama assessed on that Zamindari and, second, that the lands of Ghatwali tenure were number liable to resumption under clause 4 , section 8, Bengal Regulation I of 1793 as in- cluded in allowance made to Zamindars for thana or police establishments. There is number only numberhing in the judgment of Lord Kingsdown which militates in any way against the view that the Ghatwali tenures appertaining to the Mahalat of Kharakpur were Zamindari Ghatwali. On the other hand, the observations of his Lordship, some of which have been quoted above, clearly indicate that they were of the nature of Zamindari Ghatwali over which the Zamindar had the right of appointment and dismissal and that they formed part of the Zamindari and were included in and companyered by the as- sessment of the Zamindari. Munrunjan Singh v. Raja Lelanund Singh supra was a suit by the Zamindar of Kharakpur claiming possession of Taluk Kakwara on the allegation that the lands were held for police services, that the appointment and dismissal of Ghatwals rested with him, that he had companypounded with the Government for a money payment in lieu of police services which he was bound to render through the Ghatwals and that those services being numberlonger re- quired, he was entitled to resume the lands. The defences were that the Ghatwals were number lessees liable to ejectment but held a permanent tenure, that it existed long before the Permanent Settlement being held at a fixed jama mentioned in the Sanads derived directly from the representatives of the British Government and in companypensation for services in guarding the mountainous companyntry and the passes which serv- ice they were always ready and willing to perform. If Taluk Kakwara was a Government Ghatwall, then the Zamindar would have had numberlocus standi to maintain the suit for possession and the suit should have been dismissed on that short ground, but numbersuch point was seriously taken and the case was fought out and decided on the footing that Taluk Kakwara was a Zamindari Ghatwali. The. principal Sudder Amin having decreed the suit, the defendant appealed. The High Court held that the companytract between the Raja of Kharakpur and the Government without authority of the legislature in numberway affected the statute and the rights of the Ghatwal and the tenure in dispute was number a mere grant of land in payment of service to be rendered during pleasure but was a perpetual hereditary holding on a fixed jama, leaving a beneficial interest in the Ghatwal with a companydition of service annexed. That decision was upheld on appeal by the Privy Council. The next case companycerning this very Taluk Kakwara was Leelanund Singh v. Thakoor Munrunjun Singh supra which was a suit by the Zamindar of Kharakpur against the Ghatwal of Kakwara for a declaration of his right to enhance the rent at a rate equivalent to the Ghatwali services which had been rendered unnecessary. Again, if Taluk Kakwara was a Govern- ment Ghatwali, the Raja of Kharakpur would have numberlocus standi to claim an enhancement of rent in lieu of the Ghat- wali services This claim of the Raja of Kharakpur was also dismissed. There are positive observations in this case which indicate that Taluk Kakwara was a de- pendent Taluk or, as Lord Sumner called it was a Shikmi Taluk. Learned companynsel for the appellant has relied very strongly on two cases, namely, Narayan Singh v. Niranjan Chakravarti supra and Rani Songbari Kumari v. Raja Kirtya- nand Singh 1 . Both the cases related to the Ghatwali of Taluk Handwa. The endeavour of learned companynsel was to show that the Sanad of Captain Browne and the Sanad of Raja Kadir Ali relating to Taluk Kakwara were in their effect the same as the Sanad of Captain Browne and the companyfirmatory Parwang of Mr. Dickenson, the Collector of Bhagalpur, relating to Taluk Handwa. In Narayan Singh v. Niranjan Chakravarti the Subordinate Judge held that the tenure of Handwa was number Ghatwali tenure at all. The High Court, on appeal, held that the parganah was.held. as.a Moghul Ghatwali tenure before cession but that it became a Government Ghatwali and that numberhing had been done to alter that position. They were, however, of opinion that Raja Udit Narayan Singh did number hold it as Ghatwal and that the heirs of Udit Narayan Singh companyld number impugn the validity of the mortgage created by him. This decision of the High Court was reversed by the Privy Council. In Rani Sonabati Kumari v. Raja Kirtyanand Singh 1 Mr. Justice Fazl Ali elaborately discussed the law relating to Ghatwali tenures. Learned companynsel for the appel- lant before us has relied on several passages from the judgment of Lord Sumner and from that of Mr. Justice Fazl Ali. These two decisions must be taken as based on the companystruction of the relevant Sanads, namely, the Sanad of Captain Browne and the Parwang of Mr. Dickenson and the observations to be found in the judgments in those two cases must be read in the light of that companystruction. The position of Taluk Kakwara appears to us to be entirely different from that of Taluk Handwa. Mr. Justice Shearer in his judgment refers to five points of distinction between the position of the two Ghatwals, namely---- 1 1935 I.L.R. 14 Patna 70. The Ghatwals of Handwa never paid any Rasoom on the amount of the land revenue assessed on the lands of Raja of Kharakpur The Ghatwal of Handwa formerly used to pay the quit rent directly into the Government treasury In more than one list of the Ghatwali tenures under the Kharakpur Raj prepared by the Collectors of Bhagalpur, Handwa was number to be found After the restoration of Kharakpur Raj, the Ghatwals of Handwa instead of obtaining a Sanad from Raja Kadir Ali obtained a Sanad from the then Collector of Bhagalpur, Mr. Dickenson and 5 the claim made by Raja Kadir Ali to appoint a new Ghatwal of Handwa on the occurrence of a vacancy in the office was negatived by the Courts. Likewise, Chatterjee J. in his judgment also points out the essential differences in the status of the two Ghatwals. The language used in the Sanad relating to Taluk Handwa is somewhat different. There is numberquestion of payment of quit rent to the Zamindar of Kharakpur. Although Handwa was included in the Zamindari of Kharakpur, it was only done so in a geographical sense and for fiscal purposes. The annual jama of Handwa was never treated as a part of the Mal assets of the Raja of Kharakpuron which revenue was assessed on him.

Case appeal was rejected by the Supreme Court

K. Das, J. This appeal by special leave raises a question of some nicety and of companysiderable importance in the matter of industrial relations in this companyntry. The question is the true scope and effect of the definition clause in s. 2 k of the Industrial Disputes Act, 1947 hereinafter referred to as the Act . The question has arisen in the following circumstances. The appellants before us are the workmen of the Dimakuchi Tea Estate represented by the Assam Chah Karmachari Sangha, Dibrugarh. The respondent is the management of the Dimakuchi tea estate, district Darrang, in Assam. One Dr. K. P. Banerjee was appointed assistant medical officer of the Dimakuchi tea estate with effect from November 1, 1950. He was appointed subject to a satisfactory medical report and on probation for three months. It was stated in his letter of appointment While you are on probation or trial, your suitability for permanent employment will be companysidered. If during the period of probation you are companysidered unsuitable for employment, you will receive seven days numberice in writing terminating your appointment. If you are guilty of misconduct, you are liable to instant dismissal. At the end of the period of probation, if you are companysidered suitable, you will be companyfirmed in the gardens service. In February 1951 Dr. Banerjee was given increment of Rs. 5 per mensem, but on April 21 Dr. Banerjee received a letter from one Mr. Booth, manager of the tea estate, in which it was stated It has been found necessary to terminate your services with effect from 22nd instant. You will of companyrse receive one months salary in lieu of numberice. As numberreasons were given in the numberice of termination, Dr. Banerjee wrote to the manager to find out why is his services were being terminated. To this Dr. Banerjee received a reply to this effect The reasons for your discharge are on the medical side, which are outside my jurisdiction, best known to Dr. Cox, but a main reason is because of the deceitful manner in which you added figures to the requirements of the last medical indent after it had been signed by Dr. Cox, evidence of which is in my hands. The cause of Dr. Banerjee was then espoused by the Mangaldai Circle of the Assam Chah Karmachari Sangha and the secretary of that Sangha wrote to the manager of the Dimakuchi tea estate, enquiring about the reasons for Dr. Banerjees discharge. The manager wrote back to say that Dr. K. P. Banerjee was discharged on the ground of incompetence in his medical duties and the chief medical officer Dr. Cox had found that Dr. Banerjee was incompetent and did number have sufficient knowledge of simple everyday microscopical and laboratory work which befalls the lot of every assistant medical officer in tea garden practice. It was further stated that Dr. Banerjee gave a faulty, inexpert and clumsy quinine injection to one Mr. Peacock, an assistant in the Dimakuchi tea estate, which produced an extremely acute and severe illness very nearly causing paralysis of the patients leg. The reasons given by the manager for the termination of the services of Dr. K. P. Banerjee did number satisfy the appellants herein and certain companyciliation proceedings, details whereof are number necessary for our purpose, were unsuccessfully held over the question of the termination of the service of Dr. Banerjee. The matter was then referred to a Board known as the tripartite Appellate Board companysisting of the Labour Commissioner, Assam, and two representatives of the Assam branch of the Indian Tea Association and the Assam Chah Karmachari Sangha respectively. This Board recommended that Dr. Banerjee should be reinstated with effect from the date of his discharge. After the recommendation of the Board, the respondent herein appears to have offered a sum equal to 28 months salary and allowances in lieu of reinstatement to this, however, the appellants did number agree. In the meantime Dr. K. P. Banerjee received a sum of Rs. 306-1-0 on May 22, 1951 and left the tea garden in question. Then, on December 23, 1953, the Government of Assam published a numberification in which it was stated that whereas an industrial dispute has arisen between the appellants and the respondent herein and whereas it was expedient that the dispute should be referred for adjudication to a Tribunal companystituted under s. 7 of the Act, the Governor of Assam was pleased to refer the dispute to Shri U.K. Gohain. Additional District and Sessions Judge, under clause c of sub-s. 1 of s. 10 of the Act. The dispute which was thus referred to the Tribunal was described in these terms Whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A.M.O. ? If number, is he entitled to re-instatement or any other relief in lieu thereof ? Both parties filed written statements before Mr. Gohain and the respondent took the plea that Dr. K. P. Banerjee was number a workman within the meaning of the Act therefore, there was numberindustrial dispute in the sense in which that expression was defined in the Act and the Tribunal had numberjurisdiction to make an adjudication on merits. Mr. Gohain took up a preliminary point the question if Dr. Banerjee was a workman within the meaning of the Act and came to a companyclusion which may be best expressed in his own words Dr. Banerjee being number a workman, his case is number one of an industrial dispute under the Industrial Disputes Act and his case is therefore beyond the jurisdiction of this Tribunal and the Tribunal has therefore numberjurisdiction to give any relief to him. There was then an appeal to the Labour Appellate Tribunal of India, Calcutta. That Tribunal affirmed the finding of Mr. Gohain to the effect that Dr. Banerjee was number a workman within the meaning of the Act. The Appellate Tribunal then said A dispute between the employers and employees to be an industrial dispute within the meaning of section 2 k of the Industrial Disputes Act, must be between the employers and the workmen. There cannot be any industrial dispute between the employers and the employees who are number workmen. The appeal was accordingly dismissed the Labour Appellate Tribunal. The appellants herein then moved this Court for special leave and by an order dated March 14, 1956, special leave was granted, but was limited to the question whether a dispute in relation to a person who is number a workman falls within the scope of the definition of industrial dispute companytained in s. 2 k of the Industrial Disputes Act, 1947. It is clear from what has been stated above that the question whether Dr. K. P. Banerjee is or number a workman within the meaning of the Act is numberlonger open to the parties and we must proceed on the footing that Dr. K. P. Banerjee was number a workman within the meaning of the Act and then decide the question if the dispute in relation to the termination of his service still fell within the scope of the definition of the expression industrial dispute in the Act. We proceed number to read the definition clause the interpretation of which is the only question before us. That definition clause is in these terms S. 2 k Industrial dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person It must be stated here that the expression workman is also defined in the Act, and the definition which is relevant for our purpose is the one previous to the amendments of 1956 therefore, in reading the various sections of the Act, we shall read them as they stood prior to the amendments of 1956 and refer to the amendments only when they have a bearing on the question before us. The definition of workman as it stood at the relevant time stated S. 2 s Workman means any person employed including an apprentice in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does number include any person employed in the naval, military or air service of the Government. Now the question is whether a dispute in relation to a person who is number a workman within the meaning of the Act still falls within the scope of the definition clause in s. 2 k . If we analyse the definition clause, it falls easily and naturally into three parts first, there must be a dispute or a difference second, the dispute or difference must be between employers and employers, or between employers and workmen or between workmen or between workmen and workmen third, the dispute or difference must be companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. The first part obviously refers to the factum of a real or substantial dispute the second part to the parties to the dispute and the third, to the subject matter of that dispute. That subject matter may relate to any of two matters - i employment or number-employment, and ii terms of employment or companyditions of labour, of any person. On behalf of the appellants it is companytended that the companyditions referred to in the first and second parts of the definition clause are clearly fulfilled in the present case, because there is a dispute or difference over the termination of service of Dr. K. P. Banerjee and the dispute or difference is between the employer, namely, the management of the Dimakuchi tea estate on one side, and its workmen on the other, even taking the expression workman in the restricted sense in which that expression is defined in the Act. The real difficulty arises when we companye to the third part of the definition clause. Learned companynsel for the appellants has submitted that the expression of any person occurring in the third part of the definition clause is expression of very wide import and there are numberreasons why the words any person should be equated with any workman, as the Tribunals below have done. The argument is that inasmuch as the dispute or difference between the employer and the workmen is companynected with the number-employment of a person called Dr. K. P. Banerjee even though he was number a workman , the dispute is an industrial dispute within the meaning of the definition clause. At first sight, it does appear that there is companysiderable force in the argument advanced on behalf of the appellants. It is rightly pointed out that the definition clause does number companytain any words of qualification or restriction in respect of the expression any person occurring in the third part, and if any limitations as to its scope are to be imposed, they must be such as can be reasonably inferred from the definition clause itself or other provisions of the Act. A little careful companysideration will show, however, that the expression any person occurring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject matter of dispute must relate to i employment or number-employment or ii terms of employment or companyditions of labour of any person these necessarily import a limitation in the same that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the companytext of the subject matter and scheme of the Act, and companysistently with the objects and other provisions of the Act. It is well settled that the words of a statute, when there is a doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found number so much in a strictly grammatical or etymological propriety of language, number even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. Maxwell, Interpretation of Statutes, 9th Edition, p. 55 . It is necessary, therefore, to take the Act as a whole and examine its salient provisions. The long title shows that the object of the Act is to make provision for the investigation and settlement of industrial disputes, and for certain other purposes. The preamble states the same object and s. 2 of the Act which companytains definitions states that unless there is anything repugnant in the subject or companytext, certain expressions will have certain meanings. Chapter II refers to the authorities set up under the Act, such as, Works Committees, Conciliation officers, Boards of Conciliation, Courts of Enquiry, and Industrial Tribunals. The primary duty of a Works Committee is to promote measures for securing and preserving amity and good relations between the employer and his workmen and, to that end, to companyment upon matters of their companymon interest or companycern and endeavour to companypose any material difference of opinion in respect of such matters. Conciliation Officers are charged with the duty mediating in and promoting the settlement of industrial disputes. A Board of Conciliation may also be companystituted for the same purpose, namely, for promoting the settlement of an industrial dispute. A Court of Enquiry may be appointed for enquiring into any matter which appears to be companynected with or relevant to an industrial dispute. Section 7 of the Act empowers the appropriate Government to companystitute one or more Tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Chapter III companytains provisions relating to the reference of industrial disputes to Boards of Conciliation, Courts of Enquiry or Industrial Tribunals, and the reference in the present case was made under s. 10 of that Chapter. Under s. 10 c of the Act where an appropriate Government is of opinion that any industrial disputes exist or are apprehended, it may, at any time, by order in writing, refer the dispute or any matter appearing to be companynected with or relevant to the dispute to a Tribunal for adjudication. Chapter IV of the Act deals with procedure, powers and duties of the authorities set up under the Act. Where an industrial dispute has been referred to a Tribunal for adjudication, s. 15 requires that the Tribunal shall hold its proceedings expeditiously and shall as soon as practicable on the companyclusion thereof submit its award to the appropriate Government. Section 17 lays down inter alia that the award of a Tribunal shall within a period of one month from the date of its receipt by the appropriate Government, be published in such manner as it thinks fit. Section 17-A lays down that the award of a Tribunal shall become enforceable on the expiry of thirty days from the date of its publication under s. 17 it also companytains certain other provisions which empower the appropriate Government to modify or reject the award. Section 18 is important for our purpose, and in so far as it relates to awards it states that an award which has become enforceable shall be binding on - a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Tribunal records the opinion that they were so summoned without proper cause c where a party referred to under clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates and d where a party referred to in clause a or clause b is companyposed of workmen, all persons who are employed in the establishment or part of establishment as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. Section 19 lays down the period of operation of settlements and awards and states inter alia that an award shall, subject to the provisions of the section, remain in operation for a period of one year. Chapter V of the Act deals with strikes and lockouts, Chapter V - A with lay-off and retrenchment, Chapter VI with penalties and Chapter VII with miscellaneous matters. It is important to numbere that though in the definition of lock-out, s. 2 1 of the Act, and strike, s. 2 q of the Act, the expression any person has been used, in ss. 22 2 and 23 of the Act which deal with lock-out and strike, only the word workmen has been used. Section 33 provides that during the pendency of any companyciliation proceedings or any proceedings before a tribunal of any industrial dispute, numberemployer shall a alter to the prejudice of the workmen companycerned, the companyditions of their service, etc. or b discharge or punish by dismissal or otherwise any workman companycerned in the dispute. Section 33A, however, uses the word employee, but read with s. 33, the word employee must mean there a workman. Section 36 which deals with representation of parties has some bearing on the question before us. It lays down that a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by - a an officer of a registered trade union of which he is a member b an officer of a federation of trade unions to which the trade union referred to in clause a is affiliated and c where the worker is number a member of any trade union, by officer of any trade union companynected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed. An employer who is a party to a dispute shall be entitled to be represented in any proceedings under the Act by - a an officer of an association of employers of which he is a member b an officer of a federation of associations of employers to which the association referred to in clause a is affiliated and c where the employer is number a member of any association of employer, by an officer of any association of employers companynected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed. Sub-section 3 of s. 36 states that numberparty to a dispute shall be entitled to be represented by a legal practitioner in any companyciliation proceedings under the Act or in any proceedings before a companyrt. Sub-section 4 states that in any proceeding before a Tribunal a party to a dispute may be represented by a legal practitioner with the companysent of the other parties to the proceedings and with the leave of the Tribunal. The point to numbere is that there is numberparticular provision for the representation of a party other than a workman or an employer, presumably because under the second part of the definition clause the parties to an industrial dispute can only be employers and employers, employers and workmen, or workmen and workmen. Thus an examination of the salient provisions of the Act shows that the principal objects of the Act are - 1 the promotion of measures for securing and preserving amity and good relations between the employer and workmen 2 an investigation and settlement of industrial disputes, between employers and employers, employers and workmen, or workmen and workmen, with a right of representation by a registered trade union or federation of trade unions or association of employers or a federation of associations of employers 3 prevention of illegal strikes and lock-outs 4 relief to workmen in the matter of lay-off and retrenchment and 5 companylective bargaining. The Act is primarily meant for regulating the relations of employers and workmen - past, present and future. It draws a distinction between workmen as such and the managerial or supervisory staff, and companyfers benefit on the former only. It is in the companytext of all these provisions of the Act that the definition clause in s. 2 k has to be interpreted. It seems fairly obvious to us that if the expression any person is given its ordinary meaning, then the definition clause will be so wide as to become inconsistent number merely with the objects and other provisions of the Act, but also with the other parts of that very clause. Let us see how the definition clause works if the expression any person occurring therein is given its ordinary meaning. The workmen may then raise a dispute about a person with whom they have numberpossible companymunity of interest they may raise a dispute about the employment of a person in another industry or a different establishment - a dispute in which their own employer is number in a position to give any relief in the matter of employment or number-employment or the terms of employment or companyditions of labour of such a person. In order to make our meaning clear we may take a more obvious example. Let us assume that for some reason or other the workmen of a particular industry raise a dispute with their employer about the employment or terms of employment of the District Magistrate or District Judge of the district in which the industry is situate. It seems clear to us that though the District Magistrate or District Judge undoubtedly companyes within the expression any person occurring in the definition clause, a dispute about him employment or terms of employment is number an industrial dispute firstly, because such a dispute does number companye within the scope of the Act, having regard to the definition of the words employer, industry, and workman and also to other provisions of the Act secondly there is numberpossible companymunity of interest between the District Magistrate or District Judge on the one hand and the disputants, employer and workmen, on the other. The absurd results that will follow such an interpretation have been forcefully expressed by Chagla, C.J., in his decision in Narendra Kumar Sen v. All India Industrial Disputes Labour Appellate Tribunal If any person were to be read as an expression without any limitation and qualification whatsoever, then we must number put even any territorial restriction on that expression. In other words, it would be open to the workmen number only to raise a dispute with regard to the terms of employment of persons employed in the same industry as themselves, number to raise a dispute with regard to the terms of employment in companyresponding or similar industries, number only a dispute with regard to the terms of employment of people employed in our companyntry, but the terms of employment of any workman or any labourer anywhere in the world. The proposition has only to be stated in order to make one realise how entirely untenable it is. Take, for example, another case where the workmen raise an objection to the salary or remuneration paid to a Manager or Chief Medical Officer by the employer but without claiming any benefit for themselves, and let us assume that a dispute or difference arises between the workmen on one side and the employer on the other over such an objection. If such a dispute companyes within the definition clause and is referred to an industrial tribunal for adjudication, the parties to the disputes will be the employer on one side and his workmen on the other. The Manager or the Chief Medical Officer cannot obviously be a party to the dispute, because he is number a workman within the meaning of the Act and there is numberdisputes between him and his employer. That being the position, the award, if any, given by the Tribunal will be binding, under clause a of s. 18, on the parties to the dispute and number on the Manager or the Chief Medical Officer. It is extremely doubtful if in the circumstances stated the Tribunal can summon the Manager or the Chief Medical Officer as a party to the dispute, because there is numberdispute between the Manager or Chief Medical Officer on one side and his employer on the other. Furthermore, s. 36 of the Act does number provide for representation of a person who is number a party to the dispute. If therefore, an award is made by the Tribunal in the case which we have taken by way of illustration, that award, though binding on the employer, will number be binding on the Manager or Chief Medical Officer. It should be obvious that the Act companyld number have companytemplated an eventuality of this kind, which does number promote any of the objects of the Act, but rather goes against them. When these difficulties were pointed out to learned companynsel for the appellants, he companyceded that some limitations must be put on the width of the expression any person occurring in the definition clause. He formulated four such limitations The dispute must be a real and substantial one in respect of which one of the parties to the dispute can give relief to the other e.g., when the dispute is between workmen and employer, the employer must be in a position to give relief to the workmen. This according to learned companynsel for the appellants, will exclude those cases in which the workmen ask for something which their employer is number in a position to give. It would also exclude mere ideological differences or companytroversies. The industrial dispute if raised by workmen must relate to the particular establishment or party of establishment in which the workmen are employed so that the definition clause may be companysistent with s. 18 of the Act. The dispute must relate to the employment, number-employment or the terms of employment or with the companyditions of labour of any person, but such person must be an employee discharged or in service or a candidate for employment. According to the learned companynsel for the appellants, the person about whom the dispute has arisen need number be a workman within the meaning of the Act, but he must answer to the description of an employee, discharged or in service, or a candidate for employment. The workmen raising the dispute must have nexus with the dispute either because they are personally interested or because they have taken up the cause of another person in the general interest of labour welfare. The further argument of learned companynsel for the appellants is that even imposing the aforesaid four limitations on the width of the expression any person occurring in the definition clause, the dispute in the present case is an industrial dispute within the meaning of s. 2 k of the Act, because 1 the employer companyld give relief in the matter of the termination of service of Dr. K. P. Banerjee, 2 Dr. K. P. Banerjee belonged to the same establishment, namely, the same tea garden, 3 the dispute related to a discharged employee though number a workman and 4 the workmen raising the dispute were vitally interested in it by reason of the fact that Dr. Banerjee it is stated belonged to their trade union and the dismissal of an employee without the formulation of a charge and without giving him an opportunity to meet any charge was a matter of general interest to all workmen in the same establishment. We number propose to examine the question whether the limitations formulated by a learned companynsel for the appellants are the only true limitations to be imposed with regard to the definition clause. In doing so we shall also companysider what is the true scope and effect of the definition clause and what are the companyrect tests to be applied with regard to it. We think that there is numberreal difficulty with regard to the first two limitations. They are, we think, implicit in the definition clause itself. It is obvious that the dispute between employers and employers, employers and workmen, or between workmen and workmen must be a real dispute capable of settlement or adjudication by directing one of the parties to the dispute to give necessary relief to the other. It is also obvious that the parties to the dispute must be directly or substantially interested therein, so that if workmen raise a dispute, it must relate to the establishment or part of establishment in which they are employed. With regard to limitation 3 , while we agree that the expression any person cannot be companypletely equated with any workmen as defined in the Act, we thick that the limitation formulated by learned companynsel for the appellants is much too widely stated and is number quite companyrect. We recognise that if the expression any person means any workman within the meaning of the Act, then it is difficult to understand why the Legislature instead of using the expression any workman used the much wider expression any person in the third part of the definition clause. The very circumstance that in the second part of the definition clause the expression used is between employers and workmen or between workmen and workman while in the third part of the expression used is any person indicates that the expression any person cannot be companypletely equated with any workman. The reason for the use of the expression any person in the definition clause is, however, number far to seek. The word workman as defined in the Act before the amendments of 1956 included, for the purposes of any proceedings under the Act in relation to an industrial dispute, a workman discharged during the dispute. This definition companyresponded to s. 2 j of the old Trade disputes Act, 1929 except that the words including an apprentice were inserted and the words industrial dispute were substituted for the words trade dispute. It is worthy of numbere that in the Trade Disputes Act, 1929, the word workman meant any person employed in any trade or industry to do any skilled or unskilled manual or clerical work for hire or reward. It is clear enough that prior to 1956 when the definition of workman in the Act was further widened to include a person dismissed, discharged or retrenched in companynection with, or as a companysequence of the dispute or whose dismissal, discharge or retrenchment led to the dispute, a workman who had been discharged earlier and number during the dispute was number a workman within the meaning of the Act. If the expression any person in the third part of the definition clause were to be strictly equated with any workman then there companyld be numberindustrial dispute, prior to 1956, with regard to a workman who had been discharged earlier than the dispute, even though the discharge itself had led to the dispute. That seems to be the reason why the Legislature used the expression any person in the third part of the definition clause so as to put it beyond any doubt that the number-employment of such a dismissed workman was also within the ambit of an industrial dispute. There was a wide gap between a workman and an employee under the definition if the word workman in s. 2 s as it stood prior to 1956 All existing workmen were numberdoubt employees but all employees were number workmen. The supervisory staff did number companye within the definition. The gap has been reduced to some extent by the amendments of 1956 part of the supervisory staff who draw wages number exceeding five hundred rupees per mensem and those who were otherwise workmen but were discharged or dismissed earlier have also companye within the definition. If and when the gap is companypletely bridged, workmen will be synonymous with employees whether engaged in any skilled or unskilled manual, supervisory, technical or clerical work, etc. But till the gap is companypletely obliterated, there is a distinction between workmen and number-workmen and that distinction has an important bearing on the question before us. Limitation number 3 as formulated by learned companynsel for the appellants ignores the distinction altogether and equates any person with any employee - past, present or future this we do number think is quite companyrect or companysistent with the other provisions of the Act. The Act avowedly gives a restricted meaning to the word workman and almost all the provisions of the Act are intended to companyfer benefits on that class of persons who generally answer to the description of workmen. The expression any person in the definition clause means, in our opinion, a person in whose employment or number-employment or terms of employment, or companyditions of labour the workmen as a class have a direct or substantial interest - with whom they have, under the scheme of the Act, a companymunity of interest. Our reason for so holding is number merely that the Act makes a distinction between workmen and number-workmen, but because a dispute to be a real dispute must be one in which the parties to the dispute have a direct or substantial interest. Can it be said that workmen as a class are directly or substantially interested in the employment, number-employment, terms of employment or companyditions of labour of persons who belong to the supervisory staff and are, under provisions of the Act, number-workmen on whom the Act has companyferred numberbenefit, who cannot by themselves be parties to an industrial dispute and for whose representation the Act makes numberparticular provision ? We venture to think that the answer must be in the negative. Limitation 4 formulated by learned companynsel for the appellants is also too generally stated. We recognise that solidarity of labour or general interest of labour welfare may furnish, in some cases, the necessary nexus of direct or substantial interest in a dispute between employers and workmen, but the principle of solidarity of the labour movement or general welfare of labour must be based on or companyrelated to the principle of companymunity of interest the workmen can raise a dispute in respect of those persons only in the employment or number-employment or the terms of employment or the companyditions of labour of whom they have a direct or substantial interest. We think that Chagla, C.J., companyrectly put the crucial test when he said in Narendra Kumar Sen v. All India Industrial Disputes Labour Appellate Tribunal . Therefore, when s. 2 speaks of the employment or number-employment or the terms of employment of the companyditions of labour of any person, it can only mean the employment or number-employment or the terms of employment or the companyditions of labour of only those persons in the employment or number-employment or the terms of employment or with the companyditions of labour of whom the workmen themselves are directly and substantially interested. If the workmen have numberdirect or substantial interest in the employment or number-employment of a person or in his terms of employment or his companyditions of labour, then an industrial dispute cannot arise with regard to such person. We reach the same companyclusion by approaching the question from a somewhat different standpoint. Ordinarily, it is only the aggrieved party who can raise a dispute but an industrial dispute is put a companylective basis, because it is number settled that an individual dispute, number espoused by others of the class to which the aggrieved party may belong, is number an industrial dispute within the meaning of s. 2 k . As Issacs, J. observed in the Australian case of George Hudson Ltd. v. Australian Timber Workers Union 32 C.L.R. 413, 441 The very nature of an industrial dispute as distinguished from an individual dispute, is to obtain new industrial companyditions, number merely for the specific individuals then working from the specific individuals then employing them, and number for the moment only. But for the class of employees from the class of employers It is a battle by the claimants, number for themselves alone. Section 18 of the Act supports the aforesaid observations, in so far as it makes the award binding number merely on the parties to the dispute, but where the party is an employer, on his heirs, successors or assigns and the party is companyposed by workmen, on all persons employed in the establishment and all persons who subsequently become employed therein. If, therefore, the dispute is a companylective dispute, the party raising the dispute must have either a direct interest in the subject-matter of dispute or a substantial interest therein in the sense that the class to which the aggrieved party belongs is substantially affected thereby. It is the companymunity of interest of the class as a whole - class of employers or class of workmen - which furnishes the real nexus between the dispute and the parties to the dispute. We see numberinsuperable difficulty in the practical application of this test. In a case where the party to the dispute is companyposed of aggrieved workmen themselves and the subject matter of dispute relates to them or any of them, they clearly have a direct interest in the dispute. Where, however, the party to the dispute also companyposed of workmen espouse the cause of another person whose employment, or number-employment, etc. may prejudicially affect their interest, the workmen have a substantial interest in the subject matter of dispute. In both such cases, the dispute is an industrial dispute. Learned companyncil for the appellants has also drawn our attention to the definition of a trade dispute in the Indian Trade Unions Act, 1926. That definition is also in the same terms, but with this vital difference that the word workmen means there all persons employed in trade or industry whether or number in the employment of the employer with whom the trade dispute arises. It is obvious that the very wide definition of the word workman determines the ambit of the definition of a trade dispute in the Trade Unions Act, 1926. The provisions of that Act have different objects in view, one of which is the expenditure of the funds of a registered Trade Union on the companyduct of trade disputes on behalf of the Trade Union or any member thereof. We do number think that that definition for the purposes of an Act like the Trade Unions Act is of any assistance in companystruing the definition in the Act with which we are number companycerned, even though the words employed are the same for one thing, the meaning of the word workman companypletely changes the ambit of the definition clause, and for another, the objects, scheme and purpose of the two Acts are number the same. For the same reasons, we do number think that with regard to the precise problem before us much assistance can be obtained by a detailed examination of English. American or Australian decisions given with regard to the terms of the statutes in force in those companyntries. Each Act must be interpreted on its own terms - particularly when the definition of a workman varies from statute to statute and, with changing companyditions, from time to time, and companyntry to companyntry. The interpretation of s. 2 k of the Act has been the subject of companysideration in various Indian decisions from different points of view. Two recent decisions of this Court companysidered the question if an individual dispute of a workman was within the definition of an industrial dispute. The decision in C.P. Transport Services Ltd. v. Raghunath 1956 S.C.R. 956, related to the C.P. and Berar Industrial Disputes Settlement Act XXIII of 1947 and the decision in Newspapers Ltd. v. State Industrial Tribunal, U.P. , to the U.P. Industrial Disputes Act No. XXVIII of 1947 . Both these decisions companysidered s. 2 k of the Act, but with reference to a different problem. The definition clause in s. 2 k was companysidered at some length by the Federal Court in Western India Automobile Association v. The Industrial Tribunal, Bombay 1949 F.C.R. 321. 329-330, 346-347, and learned companynsel for the appellants has placed great reliance on some of the observations made therein. The question which fell for decision in that case was whether industrial dispute included within its ambit a dispute with regard to re-instatement of certain dismissed workmen. It was held that re-instatement was companynected with number-employment and, therefore, fell within the words of the definition. It appears that the finding of the companyrt from which the appeal was preferred to the Federal Court was that the workmen whose re-instatement was in question were discharge during the dispute and were, therefore, workmen within the meaning of the Act. Therefore, the problem of interpretation with which we are faced in this case was number the problem before their Lordships of the Federal Court. The observations on which learned companynsel for the appellants has relied are these The question for determination is whether the definition of the expression industrial dispute given in the Act includes within its ambit, a dispute in regard to re-instatement of dismissed employees The words of the definition may be paraphrazed thus any dispute which has companynection with the workmen being in, or out of service or employment. Non-employment is the negative of employment and would mean that disputes of workmen out of service with their employers are within the ambit of the definition. It is the positive or the negative act of an employer that leads to employment or to number-employment. It may relate to an existing employment or to a companytemplated employment, or it may relate to an existing fact of number-employment or a companytemplated number-employment. The following four illustrations elucidate this point 1 An employer has already employed a person and a trade union says Please do number employ him. Such a dispute is a dispute as to employment or in companynection with employment. 2 An employer gives numberice to a union saying that he wishes to employ two particular persons. The union says number This is a dispute as to employment. It arises out of desire of the employer to employ certain persons. 3 An employer may dismiss a man, or decline to employ him. This matter raises a dispute as to number-employment. 4 An employer companytemplates turning out a number of people who are already in his employment. It is a dispute as to companytemplated number-employment, Employment or number-employment companystitutes the subject matter of one class of industrial disputes, the other two classes of disputes being those companynected with the terms of employment and the companyditions of labour. The failure to employ or the refusal to employee are actions on the part of the employer which would be companyered by the terms employment or number-employment. Re-instatement is companynected with number-employment and is therefore within the words of the definition. It was companytended that the re-instatement of the discharged workmen was number an industrial dispute because if the union represented the discharged employees, they were number workmen within the definition of that word in the Industrial Disputes Act. This argument is unsound. We see numberdifficulty in the respondents union taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workmen. The number-employment of any person can amount to an industrial dispute between the employer and the workmen, falling under the definition of that word in the Industrial Disputes Act. It was argued that if the respondents represented undischarged employees, there was numberdispute between them and the employer. That again is fallacious, because under the definition of industrial dispute, it is number necessary that the parties to the proceedings can be discharged workmen only. The last words in the definition of industrial dispute, viz., any person are a companyplete answer to this argument of the appellants. It is true that two of the illustrations - Nos. 2 and 3 - given in aforesaid observations seem to indicate that there can be an industrial dispute relating to persons who are number strictly speaking workmen but whether those persons would answer to such description or what companymunity of interest the workmen had with them is number stated and in any view we do number think that illustrations given to elucidate a different problem can be determinative of a problem which was number before the companyrt in that case. A reference was also made to the decision of this Court in D.N. Banerji v. P. R. Mukherjee 1953 S.C.R. 302. The question there was whether the expression industrial dispute included disputes between municipalities and their employees in branches of work analogous to the carrying on of a trade or business. More in point is the decision of the Full Bench of the Labour Appellate Tribunal in a number of appeals reported in 1952 Labour Appeal Cases, p. 198, where the question number before us arose directly for decision. The same question arose for decision before the All India Industrial Tribunal Bank Disputes and the majority of members Messrs. K. C. Sen and J.N. Majumdar expressed the view that a dispute between employers and workmen might relate to employment or number-employment or the terms of employment or companyditions of labour of persons who were number workmen, and the words any person used in the definition clause were elastic enough to include an officer, that is, a member of the supervisory staff. The majority view will be found in Chap. X of the Report. The minority view was expressed by Mr. N. Chandrasekhara Aiyar, who said It is fairly clear to my mind that any person in the Act means any one who belongs to the employer class or the workmen class and the cases in whose favour or against whom can be said to be adequately represented by the group or category of persons to which he belongs. As stated already it should be remembered that the cases relied upon for the view that any person may mean others also besides the workmen were all cases relating to workmen. They were discharged or dismissed workmen and when their cases were taken up by the Tribunal, the point was raised that they had ceased to be workmen and were therefore outside the scope of the Act. This argument was repelled. In my opinion, there is numberjustification for treating such cases as authorities for the wider proposition that a valid industrial dispute can be raised by workmen about the employment or number-employment of someone else who does number belonged never belonged to their class or category. My view therefore is that the Act does numberapply to cases of number-workmen, or officers, if they may be so called. Both these views as also other decisions of High Courts and awards of Industrial Tribunals, were companysidered by the Full Bench of the Labour Appellate Tribunal and the Chairman of the Tribunal Mr. J. N. Majumdar acknowledged that his earlier view was number companyrect and expressed his opinion, companycurred in by all the other members of the Tribunal, at p. 210 - I am, therefore, of opinion that the expression any person has to be interpreted in terms of workman. The words any person cannot have, in my opinion, their widest amplitude, as that would create incongruity and repugnancy in the provisions of the Act. They are to be interpreted in a manner that persons, who would companye within that expression, can at some stage or other, answer the description of workman as defined in the Act. It is necessary to state here that earlier a companytrary view had been taken by the Calcutta High Court in Birla Brothers, Ltd. v. Modak I.L.R. 1948 2 Cal. 209, by Banerjee, J., in the Dalhousie Jute Co. Ltd. v. S. N. Modak 1951 1 L.L.J. 145, and by the Industrial Tribunal, Madras, in East India Industries Madras Ltd. v. Their Workmen 1952 1 L.L.J. 122. It is necessary to emphasise here two companysiderations which have generally weighted with some of the learned Judges in support of the view expressed by them these two companysiderations are that 1 numbermally workmen will number raise a dispute in which they are directly or substantially interested and 2 Government will number make a reference unless the dispute is a real or substantial one. We think that these two companysiderations instead of leading to a strictly grammatical or etymological interpretation of the expression any person occurring in the definition clause should lead, on the companytrary, to an interpretation which, to use the words of Maxwell, is to be found in the subject or in the occasion on which the words are used and the object to be attained by the statute. We are aware that anybody may be a potential workman and the companycept of a potential workman introduces an element of indefiniteness and uncertainty. We also agree that the expression any person is number companyextensive with any workman, potential or otherwise. We think, however, that the crucial test is one companymunity of interest and the person regarding whom the dispute is raised must be one in whose employment, number-employment, terms of employment or companyditions of labour as the case may be the parties to the dispute have a direct or substantial interest. Whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances. Two other later decisions have also been brought to our numberice Prahlad Rai Oil Mills v. State of Uttar Pradesh in which Bhargava J. expressed the view that the expression any person in the definition clause did number mean a workman and the decision in Narendra Kumar Sen v. All India Industrial Disputes Labour Appellate Tribunal , being the decision of Chagla, C.J., and Shah J. from which we have already quoted some extracts. An examination of the decisions referred to above undoubtedly discloses a divergence of opinion two views have been expressed, one based on the ordinary meaning of the expression any person and the other based on the companytext, with reference to the subject of the enactment and the objects which the legislature has in view. For the reasons which we have already given, we think that the latter view is companyrect. To summarise. Having regard to the scheme and objects of the Act, and its other provisions, the expression any person in s. 2 k of the Act must be read subject to such limitations and qualifications as arise from the companytext the two crucial limitations are 1 the dispute must be a real dispute between the parties to the dispute as indicated in the first two parts of the definition clause so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other, and 2 the person regarding whom the dispute is raised must be one in whose employment, number-employment, terms of employment, or companyditions of labour as the case may be the parties to the dispute have a direct or substantial interest. In the absence of such interest the dispute cannot be said to be a real dispute between the parties. Where the workmen raise a dispute as against their employer, the person regarding whose employment, number-employment, terms of employment or companyditions of labour the dispute is raised, need number be, strictly speaking, a workman within the meaning of the Act but must be one in whose employment, number-employment, terms of employment or companyditions of labour the workmen as a class have a direct or substantial interest. In the case before us, Dr. K. P. Banerjee was number a workman. He belonged to the medical or technical staff - a different category altogether from workmen. The appellants had numberdirect, number substantial interest in his employment or number-employment, and even assuming that he was a member of the same Trade Union, it cannot be said, on the tests laid down by us, that the dispute regarding his termination of service was an industrial dispute within the meaning of s. 2 k of the Act. The result, therefore, is that the appeal fails and is dismissed. In the circumstances of this case there will be numberorder for companyts. Sarkar, J. On November 1, 1950, Dr. K. P. Banerjee was appointed the Assistant Medical Officer of the Dimakuchi Tea Estate, whose management is the respondent in this appeal. On April 21, 1951, the respondent terminated Dr. Banerjees service with effect from the next day and he was offered one months salary in lieu of numberice. He accepted this salary and later left the Tea Estate. The workmen of the Tea Estate raised a dispute companycerning the dismissal of Dr. Banerjee. On December 23, 1953, the Government of Assam made an order of reference for adjudication of that dispute by the Industrial Tribunal under the provisions of s. 10 of the Industrial Disputes Act, 1947. The order of reference was in the following terms Whereas an industrial dispute has arisen in the matters specified in the schedule below between The workmen of Dimakuchi Tea Estate, P.O. Dimakuchi, District Darrang, Assam represented by the Secretary, Assam Chah Karmachari Sangha, I.N.T.U.C. Office, P.O. Dibrugarh, Assam, and, The management of Dimakuchi Tea Estate, P.O. Dimakuchi, District Darrang, Assam whose agents are Williamson Magor and Company Limited, Calcutta. And whereas it is companysidered expedient by the Government of Assam to refer the said dispute for adjudication to a Tribunal companystituted under section 7 of the Industrial Disputes Act, 1947 Act XIV of 1947 . Now, therefore, in exercise of the powers companyferred by clause c of sub-section 1 of section 10, as amended, of the Industrial Disputes Act XIV of 1947 , the Government of Assam is pleased to refer the said dispute to Sri Uma Kanta Gohain, Additional District and Sessions Judge retired who has been appointed to companystitute a Tribunal under the provisions of the said Act. SCHEDULE. Whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A.M.O. ? If number, is he entitled to re-instatement or any other relief in lieu thereof ? The Tribunal held that Dr. Banerjee was number a workman as defined in the Act and, therefore the dispute referred was number an industrial dispute and companysequently it has numberjurisdiction to adjudicate upon such a dispute. The workman preferred an appeal to the Labour Appellate Tribunal. That Tribunal dismissed the appeal holding that Dr. Banerjee was number a workman within the definition of that term in the Act and as the dispute was companynected with his employment or number-employment, it was number an industrial dispute, and was therefore beyond the jurisdiction of the Industrial Tribunal. From that decision the present appeal by the workmen of the Tea Estate arises with leave granted by this Court under Art. 136 of the Constitution. In granting the leave this Court limited it to the question whether a dispute in relation to a person who is number a workman, falls within the scope of the definition of Industrial Dispute companytained in s. 2 k of the Act. That, therefore, is the only question before us. Section 2 k is in these terms Industrial dispute means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. The dispute that was raised was between an employer, the respondent in this appeal, and its workmen, the appellants before us and companycerned the employment or number-employment of Dr. Banerjee, a person employed by the same employer but who was number a workman. The question that we have to decide has arisen because of the use of the words any person in the definition. These words are quite general and very wide and according to their ordinary meaning include a person who is number a workman. If this meaning is given to these words, then the dispute that arose companycerning Dr. Banerjees dismissal would be and industrial dispute because the dispute would then be clearly within s. 2 k . This indeed is number disputed. Unless there are reasons to the companytrary these words have to be given their ordinary meaning. In Birla Brothers Ltd. v. Modak I.L.R. 1948 2 Cal. 209 and in Western India Automobile Association v. Industrial Tribunal of Bombay 1949 F.C.R. 321 it was held that the words any person were number meant to refer only to workmen as defined in the Act but were wide and general and would include others who were number such workmen. In The Dalhousie Jute Co. Ltd. v. S. N. Modak 1951 1 L.L.J. 154, Banerjee J. said, Any person means whatever individual is chosen. I see numberreason to restrict the meaning of the word person. The same view was expressed in East India Industries Madras Ltd. v. Their Workmen 1952 1 L.L.J. 122, which was the decision of an Industrial Tribunal. There is then some support for the view that the words any person should have numberrestriction put upon them. It is pointed out on behalf of the respondent that it is number its companytention that the words any person should be understood as referring only to a workman as defined in the Act but that those words should include all persons of the workman class and so they would include discharged workmen. It is then stated that the first two of the cases mentioned above were companycerned with a dispute regarding discharged workmen and did number therefore decide that the words any person included all. It is numberdoubt true that these cases were companycerned with a dispute regarding discharged workmen but I do number understand the decision to have proceeded on that basis. Sen J. said in Birla Brothers case I.L.R. 1948 2 Cal. 209 p. 213 that, It cannot be argued that workmen dismissed prior to the Act are number persons. And in the Western India Automobile Association case 1949 F.C.R. 321, it was said p. 346-7 , It was companytended that the reinstatement of the discharged workmen was number an industrial dispute because if the union represented the discharged employees, they were number workmen within the definition of that word in the Industrial Disputes Act. This argument is unsound. We see numberdifficulty in the respondents union taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workmen. The number-employment of any person can amount to an industrial dispute between the employer and the workmen, falling under the definition of that word in the Industrial Disputes Act. It was argued that if the respondents represented the undischarged employees, there was numberdispute between them and the employer. That again is fallacious, because under the definition of industrial dispute, it is number necessary that the parties to the proceedings can be the discharged workmen only. The last words in the definition of industrial dispute, viz., any person, are a companyplete answer to this argument of the appellants. The last two of the cases mentioned earlier were number however companycerned with any dispute regarding discharged workmen. In Dalhousie Jute Co. case 1951 1 L.L.J. 145 the dispute was with regard to the employment of persons who sought employment as workmen and in the East India Industries Madras Ltd. case 1952 1 L.L.J. 122 the dispute companycerned the dismissal of a member of the supervisory staff, that is, another employee of the same employer who was number a workman. It is, however, said that in numbere of these cases the arguments that are number advanced appear to have been advanced and they were number companysidered in the judgments. This companyment is justified. I shall therefore lay these cases aside in deciding the question that has arisen. Are there then good reasons for number giving to the words any persons their plain meaning ? Several have been advanced and I shall examine them a little later. I wish number to discuss how it is proposed to restrict the meaning of these words. I have already stated that the companytention is that the words are number companyfined to a workman but refer only to a person of the workman class. This, I companyfess, I do number follow. The word workman is a term defined in the Act. Outside the definition it is impossible to say who is a workman and who is number. That being so, the words workman class would be meaningless unless they meant all persons who were workmen as defined in the Act. So read the words any person would mean only a workman. But it is companyceded that this is number so. And, of companyrse, it cannot be so, for, if that was intended, there was numberreason for the legislature number to have used the words any workman instead of the words any person. Again, if this was the intention, then a dispute companycerning the dismissal of a workman would number be an industrial dispute for a dismissed workman was number a workman within the definition of that word in the Act as it stood in 1953, that being the Act with which we are companycerned. Such a result is against all companyceptions of industrial dispute laws. It is indeed number companytended that a dispute companycerning the dismissal of a workman would number be an industrial dispute. It, therefore, seems to me that the words any person cannot be said to refer only to persons of the workman class. If they cannot be restricted as being understood to refer only to a person of the workman class, it is number suggested that they can be restricted in any other manner. It is then said that the words refer to workmen, dismissed as well as in employment as also those, who in future, become workmen. Again I am in difficulty. So understood the words would number include a person who seeks employment as a workman because he has number become a workman till he is employed. That being so, it would have to be said that a dispute raised by workmen in employment when new workmen are to be appointed, that only those of the candidates as agree to join their union should be appointed and others should number be, would number be an industrial dispute. That again seems to me to be against all companyceptions of industrial dispute laws. Furthermore, I am wholly unable to appreciate what is meant by a dispute companycerning a person, who is number at the time the dispute arises, a workman but in future becomes one. When is such a person to become a workman ? I find numberanswer. Again, is it to be said that whether a dispute is an industrial dispute or number may have to depend on future circumstances for there is numberknowing whether the person companycerning whom the dispute arises will later become a workman or number ? If he becomes one, there can be numberdispute companycerning him referable to a point of time before he became one, and, if he does number, he cannot be one who in future becomes a workman. It is said that the words any person were used instead of the word workman because it was intended to include within them persons who had been dismissed before the dispute arose and who were number within the definition of workmen in the Act as it stood in 1953. If that was the reason, why companyld number the legislature use the words workmen and dismissed workmen ? There was numberhing to prevent that being done. In fact, the definition of workman has been amended in 1956 to include workmen discharged in companysequence of an industrial dispute or whose discharge has led to that dispute. So, as the definition number stands, it includes persons dismissed before the dispute arose. Yet the words any person have been left untouched in s. 2 k and number been replaced by the word workman. This, to my mind, shows that it was number the intention to companyfine the words any person to workmen in employment or discharged. But it is said that the words any person were left in the Act because it was intended to include number only workmen in employment and dismissed workmen but also persons who in future become workmen. It is said that, that this is so appears from s. 18 of the Act. I shall presently companysider this section but I desire to observe number that this argument much weakens the argument numbericed in the preceding paragraph, for if the words any person were used so that persons who in future become workmen might be included in them, they companyld number have been used to avoid such dismissed workmen as were number workmen as defined in the Act being excluded from them. It seems to me that if it is argued that the words any person were used so that persons who in future become workmen may be included in them, it cannot be argued that those words were used instead of the word workman because it was intended to include within them certain dismissed workmen who were number workmen within the definition of that term in the Act as it stood in 1953. Coming number to s. 18 it is in these terms A settlement arrived at in the companyrse of companyciliation proceedings under this Act or an award which has become enforceable shall be binding on - a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board or Tribunal, as the case may be, records the opinion that they were so summoned without proper cause c where a party referred to in clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. I entirely fail to see how that section assists at all in finding out who were meant to be included in the words any person. Is it to be said that s. 18 d by making the award binding on those who become in future employed in the establishment as workmen, indicates that such persons are treated in the same way as workmen in actual employment and therefore it must have been intended to include them within the words any person along with present and dismissed workmen. I am wholly unable to agree. The object of s. 18 d is quite clear. The Act is intended to companypose a dispute between an employer and his workmen by a settlement or an award brought about by the machinery provided in it an the period during which an award or a settlement is to remain in force is also provided. The idea behind s. 18 is that whoever takes up appointment as a workman in the establishment to which the dispute relates during the time when the award or settlement is in force, would be bound by it. If it were number so, the award or settlement would have little effect in setting a dispute, for any newly recruited workmen companyld again raise the dispute. Any one having any experience of industries knows that workmen are largely a shifting population and that the need for replacement of the workmen leaving and for addition to the strength of the workmen employed, is number infrequent. To meet the exigency arising from this need and to make the award or settlement effective it was necessary to enact s. 18 d . Its object was number to place workmen in employment and workmen recruited in future in the same position for all purposes of the Act. On the same reasoning, in view of s. 18 a , it has to be said that it was the intention of the Act to give the heirs, successors or assignees of an employer the same position for all purposes of the Act as that of the employer. But that would be absurd. Section 18 d deals with a person who in future becomes employed. The section does number say employed as a workman but I will assume that that is what is meant. It do number understand what is meant by saying that such a person is within the words any person in s. 2 k . What is the point of time that has to be companysidered ? If it is after he has become employed, then he is a workman and admittedly within the words any person. Is it to be said that before such employment also he is within the meaning of those words. But it is difficult to follow this. It is companyceivable that any person whatsoever may in future be employed as a workman for there is numberhing in the quality of a human being that marks him out as a workman. In this way the words any person would include all. That, however, is number meant, for it will defeat the very argument based on s. 18 d . Is it to be said then, only such future workmen are meant as apply for jobs as such ? But the section makes numberreference to such people at all and cannot therefore be of any assistance in showing that it was intended that such applicants would be included within the words any person. I am, therefore, wholly unable to accept the argument that s. 18 d shows that future workmen were intended to be included within the words any person. I wish also to say this. Assume that s. 18 d shows that it was intended to include within the words any person one who in future becomes a workman. But where is the reason for saying that the words do number also include others ? Section 18 provides numbere. I proceed number to discuss the reasons advanced for restricting the generality of the words any person. They were put as follows In certain sections of the Act the words any person have been used but there the reference is to workmen, and therefore in s. 2 k the words any person should mean persons of the workman class. The scheme and the purpose of the Act generally and the object of the Act specially being to benefit workmen, the words any person should be companyfined to people of the workman class. The word dispute in s. 2 k itself indicates that the person raising the dispute must be interested in the dispute and therefore since the dispute must companycern the employment, number-employment, terms of employment or the companyditions of labour of a person, that person must be of the workman class. The first reason, then, is that in certain sections, the Act uses the words any person. I will assume that by the use of these words only workmen are intended to be referred to in these sections. But the question arises why is such intention to be inferred ? Clearly, because the companytext requires it. I will refer to some of these sections to make my point clear. Section 2 l defines a lock-out as the closing of a place of employment, or the suspension of work, or the refusal by the employer to companytinue to employ any number of persons employed by him. Section 2 q defines a strike as a cessation of work by a body of persons employed in any industry acting in companybination, or a companycerted refusal, or a refusal under a companymon understanding, of any number of persons who are or have been so employed to companytinue to work or to accept employment. Lock-outs and strikes are dealt with in ss. 22, 23 and 24 of the Act. Section 22 2 says that numberemployer carrying on any public utility service shall lock-out any of his workmen except on certain companyditions mentioned in the section. Section 23 says that numberemployer of any workman employed in any industrial establishment shall declare a lock-out during the periods mentioned in the section. Section 24 states that a strike or a lock-out shall be illegal if companymenced or declared in companytravention of s. 22 or s. 23. The definitions of lock-outs and strikes are for the purposes of ss. 22, 23 and 24. There are other sections in which lock-outs and strikes are mentioned but they make numberdifference for out present purpose. The lock-outs and strikes dealt with in ss. 22 2 , 23 and 24 are lock-outs of and strikes by, workmen. It may hence be said that in s. 2 l and q by the word person a workman is meant. Therefore, it is these sections, viz., 22 2 , 23 and 24, which show what the meaning of the word person in the definitions is. I would like to point out in passing that s. 22 1 says that numberperson employed in a public utility service shall go on strike except on certain companyditions and there is numberhing in the Act to show that the word person in s. 22 1 means only a workman. Proceeding however with the point we are companycerned with, the question is, is there any provision in the Act which would show that the words any person in s. 2 k were meant only to refer to persons of the workman class. I have number been able to find any and numbere has been pointed out. Therefore the fact that in s. 2, sub-ss. l and q the word persons means workmen is numberreason for companycluding that the same word must be given the same restricted meaning in s. 2 k . The position with regard to s. 33A, in which the word employee has to be read as meaning a workman because of s. 33, is the same and does number require to be dealt with specially. I may add that if it has to be said that because in certain other sections the word person has to be understood as referring to a workman only, in s. 2 k also the same word must have the same meaning, then we have to read the words any person in s. 2 k as meaning only a workman as defined in the Act. This however is number the companytention of the learned companynsel for the respondent. I may further say that it was number companytended that the word person in s. 2, sub-ss. l and q and the word employee in s. 33A has to be read as including number only a workman in employment but also a discharged workman and a person who in future becomes a workman, and it seems to me that such a companytention would number have possible. I proceed number to deal with the second group of reasons based on the object and scheme of the Act. It is said that the Act makes a distinction between employees who are workmen and all other employees, and that the focus of the Act is on workmen and it was intended mainly for them. This was the view taken in United Commercial Bank, Ltd. v. Kedar Nath Gupta 1952 1 L.L.J. 782. I will assume all this. It may also be true that the Act is number much companycerned with employees other than workmen. But I am unable to see that all this is any reason for holding that the words any person must mean a person of the workman class. The definition in s. 2 k would be fully companycerned with workmen however the words any person in it may be understood because the dispute will be one to which a workman is a party. Is it to be said that the Act would cease to be intended for workmen or the focus of it displaced from workmen or that the distinction between workmen and other employees would vanish if a dispute relating to the dismissal of one who is number a workman is held to be an industrial dispute, even though the dispute is one to which workmen are parties ? I am unable to subscribe to such an argument. But it is said that in such a case the workmen would number be interested in the dispute, the dispute would number really be with them and they would number be in any real sense of the word parties to it. So put the argument companyes under the last of the three reasons earlier stated, namely, that in order that there may be an industrial dispute the workmen must be interested in that dispute. This companytention I will companysider later. It is also said in the United Commercial Bank case 1952 1 L.L.J. 782 that the main purpose of the Act is to adjust the relations between employers and workmen by securing for the latter the benefit provided by the Act. It is really another way of saying that the workmen must be interested in the dispute, for if they are number interested numberbenefit can accrue to them from an adjustment of it. This, as I have said, I will discuss later. It is also said that the Act is for the benefit of workmen and therefore if a dispute companycerning a person who is number a workmen, is an industrial dispute capable of being resolved by adjudication under the Act, then, if the award goes in favour of the workmen raising it, a benefit would result to a person whom the Act did number intend to benefit. So it is said, an industrial dispute cannot be a dispute companycerning one who is number a workman. But the benefit resulting to the person in such a case would only be incidental. The workmen themselves would also be benefited by it at the same time. To adopt this argument would be to deprive the workmen of this benefit and there is numberjustification for doing so. How the workmen would be benefited would appear later when I discuss the question of the workmens interest in the dispute. I will show later that if the workmen were number interested in the dispute so that they companyld get numberbenefit under it, there would be numberreference by the Government and there would be numberbenefit to a person who was number a workman. Further, I am unable to agree that the Act is intended to companyfer benefit on workmen. Its object is admitted by all to be to preserve industrial peace. It may companyfer some benefit on workmen but at the same time it takes away their power and right to strike and puts them under a disadvantage. We were referred to the numbere of dissent to the award of the majority of the All India Industrial Tribunal Bank Disputes , dated July 31, 1950. This numbere was by Mr. Chandra Sekhara Aiyer who later became a Judge of this Court. In that numbere he expressed the view that any person in s. 2 k means any one who belongs to the employer class or the workmen class and the cases in whose favour or against whom, can be said to be adequately represented by the group or category of persons to which he belongs. I have already stated my difficulties in agreeing that the words any person mean only persons of the workman class. I will presently deal with the reasoning on which Mr. Ayyar bases his view but I wish to say number that it seems to me that the words any person cannot refer to anyone belonging to the employer class because the dispute must be in companynection with the employment, number-employment, or terms of employment or the companyditions of labour of any person and it is number possible to companyceive of any such thing in companynection with a person in his capacity as an employer. Mr. Aiyar first stated that a necessary limitation to be put on the words any person is that the person should have something to do with the particular establishment where the dispute has cropped up. He said that it companyld number be that the workmen in Bank A companyld raise a valid and legitimate industrial dispute with their employer because some one in Bank B had number been treated well by his employer. Assume this is so. But it does number follow that an industrial dispute must be one companycerning a person of the workman class alone, for, a person having something to do with an establishment need number necessarily belong to the workman class. An officer in an establishment where the dispute crops up would be as much a person having something to do with that establishment as a workman there and therefore, even assuming that the limitation suggested by Mr. Ayyar applies, there would be numberhing in it to prevent an industrial dispute companycerning him arising. The question is number whether the person companycerning whom an industrial dispute may arise, has to be employed in the establishment where the dispute arises, but whether he must belong to what has been called the workman class. The decision of the former question which has number arisen in this case, is of numberhelp in deciding the question that has arisen and I do number therefore fell called upon to express any opinion with regard to it. Mr. Aiyar next referred to a case where workmen of a Bank raise a dispute with that Bank about an employee of the Bank who was number a workman, for example an officer who had been dismissed. He assumed that the Bank and the officer had numberdispute as between themselves. In his view, if in such a case the dispute was an industrial dispute and companyld be made the subject matter of an award by an Industrial Tribunal, the award would number be binding on the officer because he had numberconcern with the dispute. According to him, it would be absurd to suggest that the Bank was under an obligation to give effect to the award. Therefore, in his view, such a dispute would number be an industrial dispute. Now, whether the award would be binding on the officer or number, would depend on whether he companyld be made a party to the dispute under s. 18 b . It is number necessary to discuss that question number. But assume that the award was number binding on the officer. Why should number the Bank be under an obligation to give effect to the award in so far as it lay in its power to do so ? If the dispute was an industrial dispute, the award would be binding on the Bank and it must give effect to it. Then the argument companyes to this that the dispute is number an industrial dispute because the award would number, as assumed, be binding on the officer companycerning whom the dispute arose. I cannot this view. Take this case. An employer dismisses five of his workmen. The workmen dismissed make numbergrievance. Three months later the employer dismisses twenty five more and again neither the dismissed workmen number the workmen in employment raise any dispute. Two months after the second dismissal the employer dismisses fifty workmen. These workmen make numbercomplaint and leave. The workmen in employment number begin to take numberice of the dismissals and think that the employer is acting on a set policy and raise a dispute about all the dismissals. The dispute is then referred for adjudication and an award is made in favour of the workmen. Assume that all the dismissed workmen companyld be made parties to the adjudication proceedings but for one reason or another, were number made parties. This award would number be binding on the dismissed workmen and certainly number on those who had been dismissed on the two earlier occasions. They would number be companyered by any of the provisions of s. 18. Is it to be said that for that reason the dispute is number an industrial dispute ? I am wholly unable to agree. Such a dispute would be entirely within the definition even on the assumption that the words any person mean only persons of the workman class. It follows, therefore, that in order to decide whether a dispute is or is number an industrial dispute, the question whether the award would be binding on the person companycerning whose employment the dispute was raised, is numbertest. I, therefore, find numberhing in the minute of dissent of Mr. Ayyar to justify the putting of any restriction on the plain meaning of the words any person in s. 2 k . As I shall show later, if certain disputes companycerning foremen who are number workmen and who I will assume would number be bound by the award, are number to be industrial disputes, the object of the Act would clearly be defeated. I cannot, therefore agree that the fact that an award is number binding on one affords a reason for holding that there cannot be an industrial dispute companycerning him. The matter was put from another point of view. It is said that if workmen companyld raise an industrial dispute with their employer companycerning the salary of a manager, who was number a workman, and an award was made directing the employer to pay a smaller salary to the manager, the employer would be bound by the award but number the manager. Then it is said, suppose the employer had made a companytract with the manager to employ him at the higher salary for a number of years. It is pointed out that in such a case the award being binding on the employer, he would be companypelled to companymit a breach of his companytract and be liable to the manager in damages. It is said that it companyld number have been the intention of the Act to produce a result whereby an employer would become liable in damages and therefore such a dispute cannot be an industrial dispute. But I do number agree that the employer would be liable in damages. The award being binding on him under the Act, the performance of his companytract with the manager would become unlawful after the award and therefore void under s. 56 of the Contract Act. The employer would number, by carrying out the award, be companymitting any breach of companytract number would he be liable in damages. To hold that the dispute companytemplated is an industrial dispute, would number produce the absurd result suggested. The reason suggested for number holding that dispute to be an industrial dispute, therefore, fails. Take another case. Suppose there was a dispute between two employers A and B companycerning the wage to be paid by B to his workmen. A companyplaining that B was paying too high wages, and the dispute was referred for adjudication by a Tribunal and an award was made that B should reduce the wages of his workmen. Assume the workmen were number parties to the dispute and were number made parties even if it was possible to do so. The award would number be binding on the workmen companycerned under s. 18. None the less it cannot be said that the dispute was number an industrial dispute. It companypletely satisfies the definition of an industrial dispute even on the basis that the words any person mean only workmen. So again it would appear that the words may include one on whom the award would number be binding. I may add here, though I do number propose to decide the question it being wholly unnecessary for the case before us, that it seems to me that when a dispute companycerns a person whether a workman or number, who is number a party to the dispute, he can, under s. 18 b , be properly made a party to appear in the proceedings arising out of that dispute. I find numberhing in that section to prevent such a companyrse being adopted. If he is made a party, there is numberdoubt that the decision, whichever way it went, would be most satisfactory to all companycerned. If this is the right view, then all arguments based on the fact that the words any person can only include one on whom the award would be binding would disappear, for on being made a party the award would be binding on that person. It would on the companytrary show that it was intended that the words any person should include one who is number a party to the dispute, and, therefore number in the workman class. An argument based on s. 33 was also advanced. That is this. The section provides that during the pendency of companyciliation proceedings or proceedings before a Tribunal in respect of an industrial dispute the companyditions of service of workmen companycerned in the dispute cannot be changed by the employer, number such workmen dismissed or otherwise punished by him except with the permission of the Board or Tribunal. It is said that this section shows that it was intended to protect only workmen and therefore the words any person in s. 2 k should be understood as meaning workmen only. I do number follow this argument at all. Section 33 gives protection to workmen companycerned in the dispute which can only mean workman who are parties to the dispute. A workman companycerning whom a dispute arises may or may number be a party to the dispute. The object of the section is clear. If workmen companyld be punished during the pendency of the proceedings, then numberworkmen would raise a dispute or want to take part in the proceedings under the Act companycerned with its adjudication. Further, such punishment would surely give rise to another dispute. All this would defeat the entire object of the Act which is to companypose disputes by settlement or adjudication. Section 33 gives protection to workmen who are parties to the dispute and does number purport to companycern itself with the person companycerning whom the dispute arises. Such being the position, the section can throw numberlight on the meaning of the words any person in s. 2 k . Suppose a workman was dismissed and thereupon a dispute arose between the employer and the other workmen in employment companycerning such dismissal. Such a dispute would be undoubtedly an industrial dispute. And it is numbere the less so, though numberprotection can be given to the dismissed workman under s. 33 for he is already dismissed. Reference was also made to s. 36 which provides for the representation of the parties to a dispute in a proceeding arising under the Act out of such dispute. Sub-section 1 of s. 36 provides how a workman, who is a party, shall be represented and sub-section 2 provides how an employer who is likewise a party, shall be represented. The section does number provide for representation of any other person. It is said that this shows that the words any person must mean only a workman, because they must mean an employee, past, present or future and only such employees as are workmen can be parties to the dispute under the definition. I am unable to agree. Section 36 provides for the representation of workmen besides employers and of numberone else, because numberone but a party need be represented in the proceedings and under the definition, a party to an industrial dispute must either be an employer or a workman. This section had numberhing to do with the person companycerning whom the dispute arises. If, however, he is also a party to the dispute, then the section makes a provision for his representation in the proceedings arising out of that dispute as such a party and number as one companycerning whom the dispute has arisen. I have earlier said that there may be a case in which though the person companycerning whom the dispute arises is a workman, still he may number be a party to it. The fact that besides an employer, the Act makes provision for the representation in the proceedings arising out of an industrial dispute of workmen alone does number show that an industrial dispute can only arise companycerning a workman. In my view, therefore, s. 36 is of numberassistance in finding out the meaning of the words any person. I companye number to the last of the reasons advanced for restricting the natural meaning of the words any person. It is said that the word dispute in the definition shows that the person raising it must have an interest in it and, therefore since the dispute must companycern the employment, number-employment, terms of employment or companyditions of labour of a person that person must be a workman. I companyfess I do number follow the reasoning. It is said that this is the view expressed by a Bench of the Bombay High Court companysisting of Chagla, C.J. and Shah J. in Narendra Kumar Sen v. The All India Industrial Disputes Labour Appellate Tribunal . I have some difficulty in seeing that this is the view expressed in that case. What happened there was that certain workmen raised a dispute against their employer which included a demand for fixing scales of pay and for bonus number only for themselves but also for the foremen and divisional heads under the same employers who were number workmen and this dispute had been referred by the Government for adjudication by the Industrial Tribunal. The Tribunal refused to adjudicate the dispute in so far as it companycerned the pay and bonus of persons who were number workmen, as, according to it, to this extent it was number an industrial dispute. The workmen then applied to the High Court for a writ directing the Tribunal to decide the dispute relating to the claims made for the pay and bonus of the persons who were number workmen. The High Court held that the dispute was number an industrial dispute and refused the writ. Chagla C.J. expressed himself in these words p. 130 A companytroversy which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour is an industrial companytroversy. But it is number enough that it should be an industrial companytroversy it must be a dispute and in my opinion it is number every companytroversy or every difference of opinion between workmen and employers which companystitutes a dispute or difference within the meaning of s. 2 k . A workman may have ideological differences with his employer a workman may feel sympathetic companysideration for an employee in his own industry or in other industry a workman may feel seriously agitated about the companyditions of labour outside our companyntry but it is absurd to suggest that any of these factors would entitle a workman to raise an industrial dispute within the meaning of s. 2 k . The dispute companytemplated by s. 2 k is a companytroversy in which the workman is directly and substantially interested. It must also be a grievance felt by the workman which the employer is in a position to remedy. Both the companyditions must be present it must be a grievance of the workman himself it must be a grievance which the employer as an employer is in a position to remedy or set right. Then he said p. 131 It is only primarily in their own employment, in their own terms of employment, in their own companyditions of labour that workmen are interested and it is with regard to these that they are entitled to agitate by means of raising an industrial dispute and getting it referred to a Tribunal by the Government under s. 10. I find some difficulty in accepting all that the learned Chief Justice said. But assume he is right. How does it follow that because an industrial dispute is one in which workmen must be interested it must be companycerning themselves ? I do number see that it does. Neither do I find Chagla. C.J. saying so. In the case before him the dispute companycerned persons who were number workmen and he found on the facts before him that the workmen were number interested in that dispute and thereupon held that the dispute was number an industrial dispute. But it is number saying that an industrial dispute can only be a dispute companycerning workmen. Even the observations that I have read from p. 131 of the report would number support this view. It is number difficult to companyceive of a dispute companycerning the employment of a person who is number a workman which at the same time is one which affects the companyditions of labour or terms of employment of the workmen themselves. I shall give examples of such disputes later. What I wish to point number is that even if an industrial dispute has to be one in which workmen are interested, that would be numberreason for saying that it can only be a dispute companycerning workmen and that therefore the words any person in s. 2 k must mean only workmen. I also think it right to say number that this argument is number really open to the respondent, for the companytention of the learned companynsel for the respondent is, as I have earlier stated, that the words any person do number mean a workman only but mean all persons of the workmen class, or past, present and future workmen. Now I find numberhing in the judgment of Chagla, C.J., to show that workmen can be interested in the workman class or in past or future workmen. On the companytrary he says that workmen are interested primarily - and by the word primarily I think he means, directly and substantially - only in their own employment, terms of employment or companyditions of labour. Reliance on the judgment of the Bombay High Court will therefore land the respondent in companytradiction. I find great difficulty in saying that it is a companydition of the existence of an industrial dispute that workmen must be interested in it. The Act does number say so. But it is said that the word dispute in the definition implies it. No doubt, one does number raise a dispute unless he is interested in it, and as the Act must be taken to have in companytemplation numbermal men it must have assumed that workmen will number raise a dispute unless they are interested in it. But that is number to my mind saying that it is a companydition of an industrial dispute as companytemplated by the Act that workmen must be interested in it. So to hold would, in my opinion, lead to grave difficulties and might even result in defeating the object of the Act. This I will endeavour to show presently. What I have to say will also show that even assuming that an industrial dispute is one in which workmen have to be interested, the dispute that we have in this case companycerning Dr. Banerjees dismissal in an industrial dispute for the appellant workmen are directly and substantially interested in it. The question that first strikes me, is what is the interest that workmen must have ? I find it impossible to define that interest. If it cannot be defined, it cannot of companyrse be made a companydition of the existence of an industrial dispute, for we would then never know what an industrial dispute is. Now, interest, as we understand that word in companyrts of law, means the well-known companycepts of proprietary interest or interest in other recognised civil rights. Outside these the matter becomes companypletely at large and well nigh impossible of definition. To say that the interest that the workmen must have is one of the well-known kinds of interest mentioned above is, to my mind, to make the Act largely infructuous. We cannot lose sight of the fact that the Act is number dealing with interest as ordinarily understood. It cannot be kept in mind too well that the Act is dealing with a new companycept, namely, that of the relation between employer and employed or to put it more significantly, between capital and labour, a companycept which is undergoing a fast and elemental change from day to day. The numerous and radical amendments made in the Act since it came on the Statute book number so long ago, testify to the fast changing nature of the companycept. Bearing all these things in mind, I find it almost impossible to define adequately or with usefulness an interest which will serve the purposes of the Act. I fell that an attempt to do so will introduce a rigidity which will work harm and numbergood. Nor does it, to my mind, in any manner held to define such interest by calling it direct and substantial. I will illustrate the difficulty that I feel by an example or two. Suppose a workman was dismissed by the employer and the other workmen raised a dispute about it. Such a dispute companyes companypletely within the definition even assuming that the words any person only refer to persons of the workman class, as the respondent companytends. There is therefore numberdoubt that such a dispute is an industrial dispute. The question then is what interest have the disputing workmen in the reinstatement of the dismissed workman if they must have an interest ? The reinstatement would number in any way improve their financial companydition or otherwise enhance any interest of theirs in any sense of the term, in companymon use. The only interest that I can think of the workmen having for themselves in such a dispute is the solidarity of labour. It is only this that if the same thing happens to any one of them, the others would rally round and by taking up his cause prevent the dismissal. Apart from the Act how would the workmen have prevented the dismissal from taking effect ? They would have, if they wanted to prevent the dismissal, gone on strike and thereby tried to force the employers hands number to give effect to the dismissal. That would have destroyed the industrial peace which the object of the Act is to preserve. It is in order to achieve this object that the Act recognises this dispute as an industrial dispute and provides for its settlement by the methods of companyciliation or adjudication companytained in it and preserves the industrial peace by preventing the parties being left to their own devices. If what I have described as solidarity of labour is to be companysidered as direct and substantial interest for the purposes of an industrial dispute, as I companyceive it is number disputed by any one, then it will appear that we have embarked on a new companycept of interest. I will number take another case which in regard to interest is the same as the previous one. Suppose the employer engages some workmen at a low rate of wages and the other workmen raise a dispute demanding that the wages of these low paid workmen be increased. This case would be companypletely within the definition of an industrial dispute even according to the most restricted meaning that may be put upon the words any person namely that they refer only to workmen as defined in the Act, because the dispute companycerns the terms of employment of such a workman. So this has admittedly to be held to be an industrial dispute. What then is the interest of the workmen in this dispute ? The increase in the wages claimed companyld number in any manner improve the financial companydition of the disputing workmen, number serve any of their interests as ordinarily understood. It would, however help the workmen in seeing that their own wages were number reduced by preventing the employer from being able to engage any low paid workman at all. Apart from this I can think of numberother interest that the disputing workmen may have in the dispute. If therefore it is essential that the disputing workmen must have an interest in the dispute, this must be that interest, for, as already stated, the dispute is undoubtedly an industrial dispute. If this is sufficient interest to companystitute an industrial dispute I fail to see why the workmen have numbersufficient interest in a dispute in which they claim that a foreman who is particularly rude and brutal in his behavior should be removed and should have a more human foreman. This is surely a matter in which the workmen raising the dispute have a personal and immediate interest and number, as in the last case, an interest in the prevention of something happening in future, which companyceivably may never happen at all. Such an interest is plainly nearer to the ordinary kinds of interest than the interest in solidarity of labour or in the prevention of future harm which in the preceding paragraphs have been found to be sufficient to sustain an industrial dispute. The dispute last imagined would undoubtedly be an industrial dispute if the foreman was a workman for then it would be entirely within the definition of an industrial dispute. Now suppose that the foreman was number a workman. Can it be said that then the dispute would number be an industrial dispute ? Would the interest of the workmen in the dispute be any the less or in any way different because the foreman whose dismissal was demanded was number a workman ? I companyceive it impossible to say so. Therefore, if interest is the test, the dispute that I have imagined would have to be held to be an industrial dispute whether or number the foreman companycerned was a workman. Now assume that the dispute did number arise out of demand for the dismissal of a foreman but against his dismissal on the ground that he was a particularly kind and sympathetic man and the workmen were happy to work under him. In such a case the interest of the workmen in the dispute would be the same as their interest in the dispute demanding the foremans dismissal. They would be demanding his reinstatement in their own interest they would be demanding it to make sure that their work would be easy and smooth and that they would be happy in the discharge of it. Such a dispute therefore also has to be held to be an industrial dispute and as in the last case, it would make numberdifference for this purpose that the foreman companycerned was number a workman. If this is right, as I think it is, then similarly the dispute companycerning the dismissal of Dr. Banerjee would be an industrial dispute for the workmen having sufficient personal and immediate interest in seeing that they have a doctor of their liking to look after them. It is indeed the case of the workmen that by his devotion to duty and good behavior Dr. Banerjee became very popular with the workmen. Whether the companytention of the workmen is justified or number and whether it would be upheld by the Tribunal or number, are wholly different matters and do number affect the question whether in an industrial dispute the workmen must be interested. It is enough to say that I find numberreason to think that the appellant had numberinterest in the dispute companycerning the dismissal of Dr. Banerjee. Therefore, I would hold that even if it is necessary to companystitute an industrial dispute that workmen must have an interest in it, the dispute before us is one which the appellants have a direct and substantial interest and it is a industrial dispute. For myself however I would number make the interest of the workmen in the dispute a companydition of the existence of an industrial dispute. The Act does number do so. I repeat that it would be impossible to define such interest. In my view, such a companydition would defeat the object of the Act. It is said that otherwise the workmen would be able to raise disputes in which they were number interested. Supposing they did, the Government is number bound to refer such disputes for adjudication. Take a companycrete case. Suppose the workmen raise a dispute that the manager of the companycern should have a higher pay. It would be for the Government to decide whether the dispute should be referred for adjudication or number. The Government is number bound to refer. Now, how is the Government to decide ? That must depend on the Governments evaluation of the situation. That this is the intention is clear from the object that the Act has in view. I will here read from the judgment of the Federal Court in Western India Automobile Association case 1949 F.C.R. 321 what the object of the Act is. It was said at pp. 331-332. We shall next examine the Act to determine its scope. The Act is stated in the preamble to be one providing for the investigation and settlement of industrial disputes. Any industrial dispute as defined by the Act may be reported to Government who may take such steps as seem to it expedient for promoting companyciliation or settlement. It may refer it to an Industrial Court for advice or it may refer it to an Industrial Tribunal for adjudication. The legislation substitutes for free bargaining between the parties a binding award by an impartial tribunal. Now, in many cases an industrial dispute starts with the making of the number of demands by workmen. If the demands are number acceptable to the employer - and that is what often happens - it results in the dismissal of the leaders and eventually in a strike. No machinery for reconciliation and settlement of such disputes can be companysidered effective unless it provides within its scope a solution for cases of employees who are dismissed in such companyditions and who are usually the first victims in an industrial dispute. If reinstatement of such persons cannot be brought about by companyciliation or adjudication, it is difficult, if number impossible, in many cases to restore industrial peace which is the object of the legislation. This is the view of the object of the Act that is accepted by all including the decisions in Narendra Kumar Sen case and United Commercial Bank case 1952 1 L.L.J. 782. In Narendra Kumar Sen case Chagla, C.J., said at p. 130 The Industrial Disputes Act was enacted, as Mr. Desai rightly says, to bring about industrial peace in the companyntry, to avoid companyflicts between employers and labourers, to prevent strikes and lock-outs to see that the production in our companyntry does number suffer by reason of companystant and companytinuous labour troubles. Therefore in deciding whether to refer or number, the Government is to be guided by the question whether the dispute is such as to disturb the industrial peace and hamper production. I find numberdifficulty in thinking that the Government would realise that there was numberrisk of the peace being disturbed or production being hampered by the dispute raised by the workmen demanding a higher salary for the manager, for being numbermal men the workmen were number likely to suffer the privations of a strike to enforce their demand for a cause of this nature. The Government must be left to decide this primary question for itself, and therefore the Government must be left to decide in each case whether the workmen had sufficient interest in the dispute. If Government thought that the workmen had numbersuch interest as would lead them to disturb industrial peace by strike or otherwise if the dispute was number ended, the Government might number in its discretion refer the dispute for adjudication by a tribunal. It must be left free to decide as it thinks best in the interest of the companyntry. It is number for the Court to lay down rigid principles of interest which interfere with the Governments discretion, for that might defeat the object of the Act. If the Government feels that the dispute is such that it might lead to the disruption of industrial peace, it is the policy of the Act that it should exercise its powers under it to prevent that. Assume a case in which the workmen raised a dispute without having what the companyrt companysiders sufficient interest to make it an industrial dispute and, therefore, on the matter companying to the companyrt the dispute was held number to be an industrial dispute. Upon that the Governments hands would be tied and it would number be able to have that dispute resolved by the processes companytemplated in the Act. Suppose number that workmen then go on strike and industrial peace is disturbed and production hampered. The object of the Act would then have been defeated. And why ? Because it was said that it was number a dispute in which workmen were interested and therefore number a dispute which was capable of being adjusted under the provisions of the Act. It would be numberanswer to say that the workmen would number go on strike in such a case. If they would number, neither would the Government refer the dispute for adjudication under the Act and it would number be necessary for the companyrt to decide whether the workmen were interested in the dispute or number or whether the dispute was an industrial dispute or number. Therefore, I think that it is number necessary to say that a dispute is an industrial dispute within the meaning of the Act only when workmen are interested in it. Such a test of an industrial dispute would make it justiciable by companyrts and also introduce a rigidity in the application of the Act which is incompatible with the fast changing companycepts it has in view and so defeat the object of the Act. It is enough to assume that as numbermal men, workmen would number raise a dispute or threaten industrial peace on account of it unless they are interested in it. I wish however to make it clear, should any doubt exist as to this, that I do number intend to be understood as saying that the question whether the dispute is an industrial dispute or number is never justiciable by companyrts of law and that a dispute is an industrial dispute only if the Government says so. Such a larger question does number arise in this case. All that I say is that it is number a companydition of an industrial dispute that workmen must be interested in it and numberquestion of interest falls for decision by a companyrt if it can be called upon to decide whether a dispute is an industrial dispute or number. The question of interest can only be of practical value in that it helps the Government to decide whether a dispute should be referred for adjudication or number. Then it is said that if workmen were allowed to raise a dispute companycerning a person who was number a workman, then it would be possible for such a person to have his dispute with the employer adjudicated through the workmen. This case was put. Suppose the manager wanted his salary to be increased but companyld number make the employer agree to his demand, he companyld then instigate the workmen and make them raise a dispute that his salary should be increased and if such a dispute is an industrial dispute and the award goes in favour of the workmen then the result would be that the Act companyld be used for settling disputes between the manager and his employer, a dispute which the Act did number intend to companycern itself with. So it is said that the words any person in s. 2 k cannot include an employee who is number a workman. I am unable to agree. First, in interpreting an Act, the Court is number entitled to assume that persons would use its provisions dishonestly. The words in the Act cannot have a different meaning than their natural meaning because otherwise there would be a possibility of the Act being used for a purpose for which it was number meant. The remedy against this possibility is provided in the Act, in that it has given companyplete freedom to the Government number to refer such a dispute. It is number necessary to meet a somewhat remote apprehension that the Act may be used for purposes other than those for which it was meant, to companystrue its language in a manner different from that which it plainly bears. Lastly, in doing this many cases like those earlier mentioned including the present, which are clearly cases of industrial disputes would have to be excluded in the attempt to prevent by interpretation a remote apprehension of a misuse of the Act. This would do more harm than good. I have therefore companye to the companyclusion that the dispute companycerning a person who is number a workman may be an industrial dispute within s. 2 k . As it has number been said that the dispute with which we are companycerned is for any other reason number an industrial dispute, I hold that the Industrial Tribunal had full jurisdiction to adjudicate that dispute and should have done so. I would therefore allow the appeal and send the case back to the Industrial Tribunal for adjudication in accordance with law. ORDER OF THE COURT. In view of the opinion of the majority, the appeal is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 197 of 1956. Appeal from the judgment and order dated August 6,1954, of the Bombay High Court in Appeal No. 30 of 1954, arising out of the judgment and order dated January 28, 1954, of the said High Court in Insolvency No. 74 of 1951. 1385 C. Setalvad, Attorney-General for India, S. N. Andley and J. B. Dadachanji, for the appellants. Purshottam Tricumdas and I. N. Shroff, for the respondent. 1958. February 20. The following Judgment of the Court was delivered by GAJENDRAGADKAR J.-This appeal by special leave arises from the numberice of motion taken out by the respondent official assignee under s. 55 of the Presidency towns Insolvency Act against the appellants for a declaration that a deed of gift executed by the insolvent Daulatram Hukamchand on May 22, 1950, in favour of the appellants was void. It appears that some creditors of Daulatram filed a petition in the High Court of Judicature at Bombay, Insolvency Case No. 74 of 1.951, for an order that the said Daulatram be adjudged insolvent as he had given numberice of suspension of payment of the debts on August 2, 1951. Daulatram was adjudicated in- solvent on August 21, 1951, with the result that the estate of the insolvent vested in the respondent under s. 17 of the Act. On September 26, 1951, the respondent took out the present numberice of motion. The impugned deed of gift has been executed by the insolvent in favour of his wife and three sons who are the appellants before us. In reply to the numberice of motion appellants I to 3 filed a joint affidavit setting out the facts and circumstances under which the said deed of gift had been executed by the insolvent in their favour. In substance, the appellants case was that, though the document purported to be a gift, it was really a transaction supported by valuable company- sideration and as such it did number fall within the mischief of s. 55 of the Act. At the hearing of this numberice of motion before Mr. Justice Coyajee, when the appellants sought to lead evidence in support of this plea, the respondent objected and urged that the evidence which the appellants wanted to lead was inadmissible under s. 92 of the Indian Evidence Act. The learned Judge, however, overruled the respondents objection and allowed the appellants to lead 1386 their evidence. In the end the learned Judge did number accept the appellants companytention and, by his judgment delivered on January 28, 1954, he granted the declaration claimed by the respondent under s. 55 of the Act. Against this judgment and order the appellants preferred an appeal No. 30 of 1954 which was heard by Chagla C. J. and Shah J. The learned Judges took the view that Mr. Justice Coyajee had erred in law in allowing oral evidence to be led by the appellants in support of their plea that the transaction evidenced by the deed of gift was in reality a transfer for companysideration. The learned Judges held that the gift in question had been executed by the donor in favour of the donees out of natural love and affection and that, under s. 92, it was number open to the appellants to lead evidence to show that the transaction was supported number by the companysideration of natural love and affection but by another kind of valuable companysideration . On this view of the matter the learned Judges did number think it necessary to companysider the oral evidence actually led by the appellants and decide whether Mr. Justice Coyajee was right or number in rejecting the said evidence on the merits. That is how the appeal preferred by the appellants was dismissed on August 6, 1964. On September 23, 1954, the application made by the appellants for a certificate was rejected by the High Court at Bombay but special leave was granted to the appellants by this Court on November 3, 1954, and that is how the appeal has companye before us for final disposal. The principal point which arises in this appeal is whether the appellants were entitled to lead oral evidence with a view to show the real nature of the impugned transaction. In deciding this question, it would be necessary to companysider the true scope and effect of ss. 91 and 92 of the Evidence Act. Chapter VI of the Evidence Act which begins with s. 91 deals with the exclusion of oral by documentary evidence. Section 91 provides that, when the terms of a companytract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, 1387 and in all cases in which any matter is required by law to be reduced to the form of a document, numberevidence shall be given in proof of the terms of such companytract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its companytents in cases in which secondary As, evidence is admissible under the provisions hereinbefore companytained. The numbermal rule is that the companytents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is sometimes described as the best evidence rule . The best evidence about the companytents of a document is the document itself and it is the production of the document that is required by s. 91 in proof of its companytents. In a sense, the rule enunciated by s. 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the companytents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of companytracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under s. 91 in other words it is after the document has been produced to prove its terms under s. 91 that the provisions of s. 92 companye into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of companytradicting, varying, adding to or subtracting from its terms. The application of this rule is limited to cases as between parties to the instrument or their representatives in interest. There are six provisos to this section with which we are number companycerned in the present appeal. It would be numbericed that ss. 91 and 92 in effect supplement each other. Section 91 would be frustrated without the aid of s. 92 and s. 92 would be inoperative without the aid of s. 91. Since s. 92 excludes the admission of oral evidence for the purpose of companytradicting, varying, adding to or subtracting from the terms of the document properly proved 1388 under s. 91, it may be said that it makes the proof of the document companyclusive of its companytents. Like s. 91, s. 92 also can be said to be based oil the best evidence rule. The two sections, however, differ in some material particulars. Section 91 applies to all documents, whether they purport to dispose of rights or number, whereas s. 92 applies to documents which can be described as dispositive. Section 91 applies to documents which are both bilateral and unilateral, unlike s. 92 the application of which is companyfined only to bilateral documents. Section 91 lays down the rule of universal application and is number companyfined to the executant or executants of the documents. Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest. There is numberdoubt that s. 92 does number apply to strangers who are number bound or affected by the terms of the document. Persons other than those who are parties to the document are number precluded from giving extrinsic evidence to companytradict, vary, add to or subtract from the terms of the document. It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by s. 92 about the exclusion of oral agreement can be invoked. This position is made absolutely clear by the provisions of s. 99 itself. Section 99 provides that persons who are number parties to a document or their representatives in interest may give evidence of any facts tending to show a companytemporaneous agreement varying the terms of the document. Though it is only variation which is specifically mentioned in s. 99, there can be numberdoubt that the third partys right to lead evidence which is recognized by s. 99 would include, a right to lead evidence number only to vary the terms of the document, but to companytradict the said terms or to add to or subtract from them. If that be the true position, before companysidering the effect of the provisions of s. 92 in regard to the appellants right to lead oral evidence, it would be necessary to examine whether s. 92 applies at all to the present proceedings between the official assignee who is the respondent and the 1389 donees from the insolvent who are the appellants before us. Does the official assignee represent the insolvent, and can he be described as the representative-ininterest of the insolvent, when he moves the Insolvency Court under s. 55 of the Presidency-towns Insolvency Act ? It is true that, under s. 17 of the Act, on the making of an order of adjudication, the property of the insolvent wherever situate vests in the official assignee and becomes divisible among his creditors but the property in respect of which a declaration is claimed by the official assignee under s. 55 has already gone out of the estate of the insolvent, and it cannot be said to vest in the official assignee as a result of the order of adjudication itself. Besides, when the official assignee makes the petition under s. 55 he does so obviously and solely for the benefit of the creditors. An insolvent himself has, and can possibly have, numberright to challenge the transfer effected by him. In this respect the official assignee has a higher title than the insolvent and, when, under s. 55, he challenges any transfer made by the insolvent, he acts number for the insolvent or on his behalf, but in the interest of the whole body of the insolvents creditors. In theory and on principle, as soon as an order of adjudication is made, all proceedings in regard to the estate of the insolvent companye under the companytrol of the Insolvency Court. It may be said that the official assignee in whom the estate of the insolvent vests is to guard number only the interests of the creditors of the insolvent but also public morality and the interest which every member of the public has in the observance of companymercial morality 1 . There is numberdoubt that it is the Insolvency Court alone which has jurisdiction to annul the insolvents transactions, whether the case is governed by the Presidency-towns Insolvency Act or by the Provincial Insolvency Act and so the proceedings taken under s. 55 cannot be deemed to be proceedings taken for and on behalf of the insolvent at all. The Law of Insolvency in India -By Rt. Hon. Sir F. Mulla, Kt.--2nd Ed., p. 231. 1390 The provisions of s. 55 themselves support the same companyclusion. Under s. 55, any transfer of property number being a transfer made before and in companysideration of marriage or made in favour of a purchaser or encumbrancer in good faith and for valuable companysideration shall, if the transferor is adjudged insolvent within two years of the date of transfer, be void against the official assignee. This section, like s. 53-A of the Provincial Insolvency Act, makes the impugned transfers voidable at the instance of the official assignee or the receiver. The transfers in question are number declared void as between the parties themselves they are avoided by the official assignee or the receiver and their avoidance is intended to enure for the benefit of the whole body of the creditors of the insolvent. The relevant sections of the two Insolvency Acts in effect require the Insolvency Courts to set aside the impugned transactions in exercise of the Insolvency Courts exclusive jurisdiction in that behalf The obvious object of these provisions is to bring back to the insolvents estate, property which has left the estate by the impugned act of the insolvent himself and make the said property available for distribution amongst his creditors. It would, therefore, be impossible to hold that, when the official assignee makes a petition under s. 55 of the Act, he is acting as a representative-ininterest of the insolvent. In this companynection it would be relevant to remember that, in cases governed by the Presidency-towns Insolvency Act, the practice in Calcutta and Bombay companysistently allows a creditor who has proved his debt to file a petition to set aside the transfer under s. 55 of the Act if he shows that the official assignee, on being tendered a reasonable indemnity has unreasonably refused to make an application. Similarly, under s. 54-A of the Provincial Insolvency Act, a creditor himself can make the application if the receiver refuses to take any action. Now, if an application is made by a creditor for setting aside a voluntary transfer effected by the insolvent, there can be numberdoubt that the creditor is number the representative- 1391 in-interest of the insolvent and the creditor would obviously number be affected by the provisions of s. 92 of the Indian Evidence Act. It would really be anomalous if s. 92 were to apply to proceedings instituted by the official assignee under s. 55 though the said section cannot and would number apply to similar proceedings instituted by a creditor. Having regard to the object with which s. 55 has been enacted, the nature of the proceedings taken under it, and the nature and effect of the final order which is companytemplated under it, it is clear that, like the creditor who may apply, the official assignee also cannot be said to be the representative-in-interest of the insolvent in these proceedings. If that be the true position, s. 92 cannot apply to the present proceedings between the respondent and the appellants and so there can be numberdoubt that the respondent would number be precluded from leading evidence of an oral agreement for the purpose of companytradicting, varying, adding to or subtracting from the terms of the impugned document. The question raised by Shri Purushottam which still remains to be companysidered is whether the appellants who undoubtedly are the representatives in interest of the insolvent can avoid the application of a. 92. In our opinion, the answer to this question must be in favour of the appellants. It is urged before us by Shri Purushottam that the scheme of the relevant provisions of Ch. VI of the Indian Evidence Act is inconsistent with the appellants companytention that they can lead oral evidence about the alleged agreement which may tend to change the character of the transaction itself. Shri Purushottam bases his argument mainly on the provisions of s. 91 read with s. 99 of the Act. He companytends that s. 91 requires the production and proof of the document itself for the purpose of proving the companytents of the document and by necessary implication all evidence about any oral agreement which may affect the terms of the document is excluded by s. 91 itself. We are number impressed by this argument. As we have already observed, ss. 91 and 92 really supplement each other. It is because s. 91 by itself would number have excluded 1392 evidence of oral agreements which may tend to vary the terms of the document that s. 92 has been enacted and if s. 92 does number apply in the present case, there is numberother section in the Evidence Act which can be said to exclude evidence of the agreement set up by the appellants. What s. 91 prohibits is the admission of oral evidence to prove the companytents of the document. In the present case, the terms of the document are proved by the production of the document itself. Whether or number the said terms companyld be varied by proof of an oral agreement is a matter which is number companyered by s. 91 at all. That is the subject-matter of s. 92 and so, if s. 92 does number apply, there is numberreason to exclude evidence about an oral agreement solely on the ground that if believed the said evidence may vary the terms of the transaction. Shri Purushottam also relied upon the provi- sions of s. 99. His argument is that it is only persons who are number parties to a document or their representatives in interest who are allowed by s. 99 to give evidence of facts tending to show a companytemporaneous agreement varying the terms of the document. lit other words, the effect of s. 99 is number only to allow strangers to lead such evidence, but to prohibit parties or their representatives-in-interest from leading such evidence independently of tile provisions of s. 92 of the Evidence Act. We do number read s. 99 as laying down any such prohibition by necessary implication. As a matter of fact, from the terms of s. 92 itself, it is clear that strangers to the document are outside the scope of s. 92 but s. 99 has presumably been enacted to clarify the same position. It would be unreasonable, we think, to hold that s. 99 was intended number only to clarify the position with regard to the strangers to the document, but also to lay down a rule of exclusion of oral evidence by implication in respect of the parties to the document or their representatives in interest. In our opinion, the true position is that, if the terms of any transfer reduced to writing are in dispute between a stringer to a document and a party to it or his representative in interest, the restriction imposed by s. 92 in regard to 1393 the exclusion of evidence of oral agreement is inapplicable and both the stranger to the document arid the party to the document or his representative in interest are at liberty to lead evidence of oral agreement numberwithstanding the fact that such evidence, if believed, may companytradict, vary, add to or subtract from its terms. The rule of exclusion enun- ciated by s. 92 applies to both parties to the document and is based on the doctrine of mutuality. It would be inequitable and unfair to enforce that rule against a party to a document or his representative in interest in the case of a dispute between the said. party or his representative in interest on the one hand and the stranger on the other. In dealing with this point we may incidentally refer to the relevant statement of the law by Phipson in his treatise on Evidence Where the transaction has been reduced into writing merely by agreement of the parties , it is observed, extrinsic evidence to companytradict or vary the writing is excluded only in proceedings between such parties or their privies, and number in those between strangers, or a party and a stranger since strangers cannot be precluded from proving the truth by the ignorance, carelessness, or fraud of the parties R. Cheadle, 3 B. and Ad. 833 number, in proceedings between a party and a stranger, will the former be estopped, since there would be numbermutuality 1 . The result is that s. 92 is wholly inapplicable to the present proceedings and so the appellants are entitled to lead evidence in support of the plea raised by them. It appears that the attention of the learned Judges who heard the appeal in the High Court at Bombay was number drawn to this aspect of the matter. That is why they proceeded to deal with the question about the admissibility of oral evidence led by the appellants on the assumption that s. 92 applied. We must accordingly set aside the decree passed by the companyrt of appeal in the High Court at Bombay and send the appeal back to that Court for disposal on the merits in accordance with law.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 297 of 1956. Appeal by special leave from the judgment and order dated August 30, 1955, of the Labour Appellate Tribunal of India, Calcutta in Appeal No. Cal. 220 of 1954. B. Aggarwala and K. P. Gupta, for the appellants. Purshottam Tricumdas for N. C. Chatterjee, P. K. Goswami, S. N. Mukheree and B. N. Ghosh, for the respondent. 1958. February 4. The Judgment of Das, C. J., and S. K. Das J., was delivered by S. K. Das, J. Sarkar, J., delivered a separate Judgment. K. DAS J.-This appeal by special leave raises a question of some nicety and of companysiderable importance in the matter of industrial relations in this companyntry. The question is the true scope and effect of the definition clause in s. 2 k of the Industrial Disputes Act, 1947 hereinafter referred to as the Act . The question has arisen in the following circumstances. 1158 The appellants before us are the workmen of the Dimakuchi tea estate represented by the Assam Chah Karmachari Sangha, Dibrugarh. The respondent is the management of the Dimakuchi tea estate, district Darrang in Assam. One Dr. K. Banerjee was appointed assistant medical officer of the Dimakuchi tea estate with effect from November 1, 1950. He was appointed subject to a satisfactory medical report and on probation for three months. It was stated in his letter of appointment While you are on probation or trial, your suitability for permanent employment will be companysidered. If during the period of probation you are companysidered unsuitable for employment, you -,ill receive seven days numberice in writing terminating your appointment. If you are guilty of misconduct, you are liable to instant dismissal. At the end of the period of probation, if you are companysidered suitable, you will be companyfirmed in the gardens service. In February 1951 Dr. Banerjee was given an increment of Rs. 5 per mensem, but on April 21, Dr. Banerjee received a letter from one Mr. Booth, manager of the tea estate, in which it was stated It has been found necessary to terminate your services with effect from the 22nd instant. You will of companyrse receive one months salary in lieu of numberice. As numberreasons were given in the numberice of termination, Dr. Banerjee wrote to the manager to find out why his services were being terminated. To this Dr. Banerjee received a reply to this effect The reasons for your discharge are on the medical side, which are outside my jurisdiction, best known to Dr. Cox but a main reason is because of the deceitful manner in which you added figures to the requirements of the last medical indent after it had been signed by Dr, Cox, evidence of which is in my hands. The cause of Dr. Banerjee was then espoused by the Mangaldai Circle of the Assam Chah Karmachari Sangha and the secretary of that Sangha wrote to the manager of the Dimakuchi tea estate, enquiring about the reasons for Dr. Banerjees discharge. The manager wrote back to say that Dr.- K. P. Banerjee was discharged on the ground 1159 of incompetence in his medical duties and the chief medical officer Dr. Cox had found that Dr. Banerjee was incompetent and did number have sufficient knowledge of simple everyday microscopical and laboratory work which befalls the lot of every assistant medical officer in tea garden practice. It was further stated that Dr. Banerjee gave a faulty, inexpert and clumsy quinine injection to one Mr. Peacock, and assistant in the Dimakuchi tea estate, which produced an extremely acute and severe illness very nearly causing a paralysis of the patients leg. The reasons given by the manager for the termination of the services of Dr. K. P. Banerjee did number satisfy the appellants herein and certain companyciliation proceedings, details whereof are number necessary for our purpose, were -unsuccessfully held over the question of the termination of the service of Dr. Banerjee. The matter was then referred to a Board known as the tripartite Appellate Board companysisting of the Labour Commissioner, Assam, and two representatives of the Assam branch of the Indian Tea Association and the Assam Chah Karmachari Sangha respectively. This Board recommended that Dr. Banerjee should be reinstated with effect from the date of his discharge. After the recommendation of the Board, the respondent herein appears to have offered a sum equal to 28 months salary and allowances in lieu of re-instatement to this, however, the appellants did number agree. In the meantime, Dr. K. P. Banerjee received a sum of Rs. 306-1-0 on May 22, 1951 and left the tea garden in question. Then, on December 23, 1953, the Government of Assam published a numberification in which it was stated that whereas an industrial dispute had arisen between the appellants and the respondent herein and whereas it was expedient that the dispute should be referred for adjudication to a Tribunal companystituted under s. 7 of the Act, the Governor of Assam was pleased to refer the dispute to Shri U. K. Gohain, Additional District and Sessions Judge, under cl. c of sub-s. 1 of s. 10 of the Act. The dispute which was thus referred to the Tribunal was described in these terms 1160 Whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A. M. O.? If number, is he entitled to reinstatement or any other relief in lieu thereof ? Both parties filed written statements before Mr. ohain and the respondent took the plea that Dr. K. P. Banerjee was number a workman within the meaning of the Act therefore, there was numberindustrial dispute in the sense in which that expression was defined in the Act and the Tribunal had numberjurisdiction to make an adjudication on merits. Mr. Gohain took up as a preliminary point the question if Dr. Banerjee was a workman within the meaning of the Act and came to a companyclusion which may be best expressed in his own words Dr. Banerjee being number a workman, his case is number one of an industrial dispute under the Industrial Disputes Act and his case is therefore beyond the jurisdiction of this Tribunal and the Tribunal has therefore numberjurisdiction to give any relief to him. There was then an appeal to the Labour Appellate Tribunal of India, Calcutta. That Tribunal affirmed the finding of Mr. Gohain to the effect that Dr. Banerjee was number a workman within the meaning of the Act. The Appellate Tribunal then said A dispute between the employers and employees to be an industrial dispute within the meaning of section 2 k of the Industrial Disputes Act, must be between the employers and the workmen. There cannot be any industrial dispute between the employers and the employees who are number workmen. The appeal was accordingly dismissed by the Labour Appellate Tribunal. The appellants herein then moved this Court for special leave and by an order dated March 14, 1956, special leave was granted, but was limited to the question whether a dispute in relation to a person who is number a workman falls within the scope of the definition of industrial dispute companytained in s. 2 k of the Industrial Disputes Act, 1947. It is clear from what has been stated above that the 1161 question whether Dr. K. P. Banerjee is or is number a workman within the meaning of the Act is numberlonger open to the parties and we must proceed on the footing that Dr. K. P. Banerjee was number a workman within the meaning of the Act and then decide the question if the dispute in relation to the termination of his service still fell within the scope of the definition of the expression industrial dispute in the Act. We proceed number to read the definition clause the interpretation of which is the only question before us. That definition clause is in these terms S. 2 k Industrial dispute means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person It must be stated here that the expression workman is also defined in the Act, and the definition which is relevant for our purpose is the one previous to the amendments of 1956 therefore, in reading the various sections of the Act, we shall read them as they stood prior to the amendments of 1956 and refer to the amendments only when they have a bearing on the question before us. The definition of workman as it stood at the relevant time stated S. 2 s Workman means any person employed including an apprentice in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes of any proceedings under this Act in relation to an industrial dispute, a workman discharged during that dispute, but does number include any person employed in the naval, military or air service of the Government. Now, the question is whether a dispute in relation to a person who is number a workman within the meaning of the Act still falls within the scope of the definition clause in s. 2 k . If we analyse the definition clause it falls easily and naturally into three parts first, there must be a dispute or difference second, the dispute or difference must be between employers and employers, or between employers and workmen or 1162 between workmen and workmen third, the dispute or difference must be companynected with the employment or number- employment or the terms of employment or with the companyditions of labour, of any person. The first part obviously refers to the factum of a real or substantial dispute the second part to the parties to the dispute and the third to the subject matter of that dispute. That subject matter may relate to any of two matters- i employment or number- employment, and ii terms of employment or companyditions of labour, of any person. On behalf of the appellants it is companytended that the companyditions referred to in the first and second parts of the definition clause are clearly fulfilled in the present case, because there is a dispute or difference over the termination of service of Dr. K. P. Banerjee and the dispute or difference is between the employer, namely, the management of the Dimakuchi tea estate on one side, and its workmen on the other, even taking the expression workmen in the restricted sense in which that expression is defined in the Act. The real difficulty arises when we companye to the third part of the definition clause. Learned companynsel for the appellants has submitted that the expression of any person occurring in the third part of the definition clause is an expression of very wide import and there are numberreasons why the words any person should be equated with any workman , as the Tribunals below have done. The argument is that inasmuch as the dispute or difference between the employer and the workmen is companynected with the number-employment of a person called Dr. P. Banerjee even though he was number a workman , the dispute is an industrial dispute within the meaning of the definition clause. At first sight, it does appear that there is companysiderable force in the argument advanced on behalf of the appellants. It is rightly pointed out that the definition clause does number companytain any words of qualification or restriction in respect of the expression any person occurring in the third part, and if any limita- tions as to its scope are to be imposed, they must be such as can be reasonably inferred from the definition clause itself or other provisions of the Act. 1163 A little careful companysideration will show, however, that the expression any person occuring in the third part of the definition clause cannot mean anybody and everybody in this wide world. First of all, the subject matter of dispute must relate to i employment or number-employment or terms of employment or companyditions of labour of any person these necessarily import a limitation in the sense that a person in respect of whom the employer-employee relation never existed or can never possibly exist cannot be the subject matter of a dispute between employers and workmen. Secondly, the definition clause must be read in the companytext of the subject matter and scheme of the Act, and companysistently with the objects and other provisions of the Act. It is well settled that the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view. Their meaning is found number so much in a strictly grammatical or etymological propriety of language, number even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. Maxwell, Interpretation of Statutes, 9th Edition, p. 55 . It is necessary, therefore, to take the Act as a whole and examine its salient provisions. The long title shows that the object of the Act is to make provision for the investigation and settlement of industrial disputes, and for certain other purposes. The preamble states the same object and s. 2 of the Act which companytains definitions states that unless there is anything repugnant in the subject or companytext, certain expressions will have certain meanings. Chapter 11 refers to the authorities set up under the Act, such as, Works Committees, Conciliation officers, Boards of Conciliation, Courts of Enquiry, and Industrial Tribunals. The primary duty of a Works Committee is to promote measures for securing and preserving amity and good relations between the employer and his workmen and, to that end, to companyment upon matters of their companymon 1164 interest or companycern and endeavour to companypose any material difference of opinion in respect of such matters. Conciliation Officers are charged with the duty of mediating in and promoting the settlement of industrial disputes. A Board of Conciliation may also be companystituted for the same purpose, namely, for promoting the settlement of an industrial dispute. A Court of Enquiry may be appointed for enquiring into any matter which appears to be companynected with or relevant to an industrial dispute. Section 7 of the Act empowers the appropiate Government to companystitute one or more Tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Chapter III companytains provisions relating to the reference of industrial disputes to Boards of Conciliation, Courts of Enquiry or Industrial Tribunals, and the reference in the present case was made under s. 10 of that Chapter. Under s. 10 c of the Act where an appropriate Government is of opinion that any industrial disputes exist or are apprehended, it may, at any time, by order in writing, refer the dispute or any matter appearing to be companynected with or relevant to the dispute to a Tribunal for adjudication. Chapter IV of the Act deals with procedure, powers and duties of the authorities set up under the Act. Where an industrial dispute has been referred to a Tribunal for adjudication, s. 15 requires that the Tribunal shall hold its proceedings expeditiously and shall as soon as practicable on the companyclusion thereof submit its award to the appropriate Government. Section 17 lays down inter alia that the award of a Tribunal shall within a period of one month from the date of its receipt by the appropriate Government be published in such manner as it thinks fit. Section 17-A lays down that the award of a Tribunal shall become enforceable on the expiry of thirty days from the date of its publication under s. 17 it also companytains certain other provisions which empower the appropriate Government to modify or reject the award. Section 18 is important for our purpose, and in so far as it relates to awards it states that an award which has become enforceable ,shall be binding on- 1165 a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Tribunal records the opinion that they were so summoned without proper cause c where a party referred to under clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates and d where a party referred to in clause a or clause b is companyposed of workmen, all persons who are employed in the establishment or part of establishment as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. Section 19 lays down the period of operation of settlements and awards and states inter alia that an award shall, subject to the provisions of the section, remain in operation for a period of one year. Chapter V of the Act deals with strikes and lock-outs, Chapter V-A with lay-off and retrenchment, Chapter VI with penalties and Chapter VII with miscellaneous matters. It is important to numbere that though in the definition of lock-out, s. 2 1 of the Act, and strike, s. 2 q of the Act, the expression any person has been used, in ss. 22 2 and 23 of the Act which deal with lock-out and strike, only the word workmen has been used. Section 33 provides that during the pendency of any companyciliation proceedings or any proceedings before a tribunal of any industrial dispute, numberemployer shall a alter to the prejudice of the workmen companycerned, the companyditions of their service etc. or b discharge or punish by dismissal or otherwise any workman companycerned in the dispute. Section 33 A, however, uses the word employee, but read with s. 33, the word employee must mean there a workman. Section 36 which deals with representation of parties has some bearing on the question before us. It layns down that a workman who is a party to a dispute shall be entitled to be represented in any proceeding under the Act by- 1166 a an officer of a registered trade union of which he is a member b an officer of a federation of trade unions to which the trade union referred to in clause a is affiliated and c where the worker is number a member of any trade union, by an officer of any trade union companynected with, or by any other workman employed in the industry in which the worker is employed and authorised in such manner as may be prescribed. An employer who is a party to a dispute shall be entitled to be represented in any proceedings under the Act by- a an officer of an association of employers of which he is a member b an officer of a federation of associations of employers to which the association referred to in clause a is affiliated and c where the employer is number a member of any association of employers, by an officer of any association of employers companynected with, or by any other employer engaged in, the industry in which the employer is engaged and authorised in such manner as may be prescribed. Sub-section 3 of s. 36 states that numberparty to a dispute shall be entitled to be represented by a legal practitioner in any companyciliation proceedings under the Act or in any proceedings before a companyrt. Sub-section 4 states that in any proceeding before a Tribunal a party to a dispute may be represented by a legal practitioner with the companysent of the other parties to the proceeding and with the leave of the Tribunal. The point to numbere is that there is numberparticular provision for the representation of a party other than a workman or an employer, presumably because under the second part of the definition clause the parties to an industrial dispute can only be employers and employers, employers and workmen, or workmen and workmen. Thus, an examination of the salient provisions of the Act shows that the principal objects of the Act are- 1167 1 the promotion of measures for securing and preserving amity and good relations between the employer and workmen 2 an investigation and settlement of industrial disputes, between employers and employers, employers and workmen, or workmen and workmen, with a right of representation by a registered trade union or federation of trade unions or association of employers or a federation of associations of employers 3 prevention of illegal strikes and lock-outs 4 relief to workmen in the matter of lay-off and retrenchment and 5 companylective bargaining. The Act is primarily meant for regulating the relations of employers and workmen-past, present and future. It draws a distinction between workmen as such and the managerial or supervisory staff, and companyfers benefit on the former only. It is in the companytext of all these provisions of the Act that the definition clause in s. 2 k has to be interpreted. It seems fairly obvious to us that if the expression any person is given its ordinary meaning, then the definition clause will be so wide as to become inconsistent number merely with the objects and other provisions of the Act, but also with the other parts of that very clause. Let us see how the definition clause works if the expression any person occurring therein is given its ordinary meaning. The workmen may then raise a dispute about a person with whom they have numberpossible companymunity of interest they may -raise a dispute about the employment of a person in another industry or a different establishments dispute in which their own employer is number in a position to give any relief, in the matter of employment or number-employment or the terms of employment or companyditions of labour of such a person. In order to make our meaning clear we may take a more obvious example. Let us assume that for some reason or other the workmen of a particular industry raise a dispute with their employer about the employment or terms of employment of the District Magistrate or District 1168 Judge of the district in which the industry is situate. It seems clear to us that though the District Magistrate or District Judge undoubtedly companyes within the expression any person occurring in the definition clause, a dispute about his employment or terms of employment is number an industrial dispute firstly, because such a dispute does number companye within the scope of the Act, having regard to the definition of the words employer industry , and workman and also to other provisions of the Act secondly, there is numberpossible companymunity of interest between the District Magistrate or District Judge on the one hand and the disputants, employer and workmen, on the other. The absurd results that will follow such an interpretation have been forcefully expressed by Chagla C. J., in his decision in Narendra Kumar Sen v. All India Industrial Disputes Labour Appellate Tribunal 1 If any person were to be read as an expression without any limitation and qualification whatsoever, then we must number put even any territorial restriction on that expression. In other words, it would be open to the workmen number only to raise a dispute with regard to the terms of employment of persons employed in the same industry as themselves, number only to raise a dispute with regard to the terms of employment in companyresponding or similar industries, number only a dispute with regard to the terms of employment of people employed in our companyntry, but the terms of employment of any workman or any labourer anywhere in the world The proposition has only to be stated in order to make one realise how entirely untenable it is. Take, for example, another case where the workmen raise an objection to the salary or remuneration paid to a Manager or Chief Medical Officer by the employer but without claiming any benefit for themselves, and let us assume that a dispute or difference arises between the workmen on one side and the employer on the other over such an objection. If such a dispute companyes within the definition clause and is referred to an industrial tribunal for adjudication, the parties to the 1 1953 55 Bom. L.R. 125,129, 130. 1169 dispute will be the employer on one side and his workmen on the other. The Manager or the Chief Medical Officer cannot obviously be a party to the dispute, because he is riot a workmanwithin the meaning of the Act and there is numberdispute between him and his employer. That being the position, the award, if any, 7 given by the Tribunal will be binding, under cl. a of s. 18, on the parties to the dispute and number on the Manager or the Chief Medical Officer. It is extremely doubtful if in the circumstances stated the Tribunal can summon the Manager or the Chief Medical Officer as a party to the dispute, because there is numberdispute between the Manager or Chief Medical Officer on one side and his employer oil the other. Furthermore, s. 36 of the Act does number provide for representation of a person who is number a party to the dispute. If, therefore, an award is made by the Tribunal in the case which we have taken by way of illustration, that award, though binding on the employer, will number be binding on the Manager or Chief Medical Officer. It should be obvious that the Act companyld number have companytem- plated an eventuality of this kind, which does number promote any of the objects of the Act, but rather goes against them. When these difficulties were pointed out to learned companynsel for the appellants, he companyceded that some limitations must be put on the width of the expression any person occurring in the definition clause. He formulated four such limitations The dispute must be a real and substantial one in respect of which one of the parties to the dispute can give relief to the other e. g., when the dispute is between workmen and employer, the employer must be in a position to give relief to the workmen. This, according to learned companynsel for the appellants, will exclude those cases in which the workmen ask for something which their employer is number in a position to give. It would also exclude mere ideological differences or companytroversies. The industrial dispute if raised by workmen must relate to the particular establishment or part of establishment in which the workmen are employed so 1170 that the definition clause may be companysistent with s. 18 of the Act. The dispute must relate to the employment, number- employment or the terms of employment or with the companyditions of labour of any person, but such person must be an employee discharged or in service or a candidate for employment. According to learned companynsel for the appellants, the person about whom the dispute has arisen need number be a workman within the meaning of the Act, but he must answer to the description of an employee, discharged or in service, or a candidate for employment. The workmen raising the dispute must have a nexus with the dispute, either because they are personally interested or because they have taken up the cause of another person in the general interest of labour welfare. The further argument of learned companynsel for the appellants is that even imposing the aforesaid four limitations on the width of the expression any person occurring in the definition clause, the dispute in the present case is an industrial dispute within the meaning of s. 2 k of the Act, because 1 the employer companyld give relief in the matter of the termination of service of Dr. K. P. Banerjee, Dr. K. P. Banerjee belonged to the same establishment, namely, the same tea garden, 3 the dispute related to a discharged employee though number a workman and 4 the workmen raising the dispute were vitally interested in it by reason of the fact that Dr. Banerjee it is stated belonged to their trade union and the dismissal of an employee without the formulation of a charge and without giving him an opportunity to meet any charge was a matter of general interest to all workmen in the same establishment. We number propose to examine the question whether the limitations formulated by learned companynsel for the appellants are the only true limitations to be imposed with regard to the definition clause. In doing so we shall also companysider what is the true scope and effect of the definition clause and what are the companyrect tests to be applied with regard to it. We think that there is numberreal difficulty with regard to the first two limitations. 1171 They are, we think, implicit in the definition clause itself. It is obvious that a dispute between employers and employers, employers and workmen, or between workmen and workmen must be a real dispute capable of settlement or adjudication by directing one of the parties to the dispute to give necessary relief to the other. It is also obvious that the parties to the dispute must be directly or substan- tially interested therein, so that if workmen raise a dispute, it must relate to the establishment or part of establishment in which they are employed. With regard to limitation 3 , while we agree that the expression I any person cannot be companypletely equated with any workman as defined in the Act, we think that the limitation formulated by learned companynsel for the appellants is much too widely stated and is number quite companyrect. We recognise that if the expression any person means any workman within the meaning of the Act, then it is difficult to understand why the Legislature instead of using the expression any workman used the much wider expression any person in the third part of the definition clause. The very circumstance that in the second part of the definition clause the expression used is between employers and workmen or between workmen and workmen while in the third part the expression used is any person indicates that the expression any person cannot be companypletely equated withany workman. The reason for the use of the expression any person in the definition clause is, however, number far to seek. The word workman as defined in the Act before the amendments of 1956 included, for the purposes of any proceedings under the Act in relation to an industrial dispute, a. workman discharged during the dispute This definition companyresponded to s. 2. j of the old Trade Disputes Act, 1929 except that the words ,,including an apprentice were inserted and the words industrial dispute were substituted for the words trade dispute . It is worthy of numbere that in the Trade Disputes Act, 1929, the word workman meant any person employed in any trade or industry to do I49 1172 any skilled or unskilled manual or clerical work for hire or reward. It is clear enough that prior to 1956 when the definition of workman in the Act was further widened to include a person dismissed, discharged or retrenched in companynection with, or as a companysequence of the dispute or whose dismissal, discharge or retrenchment led to the dispute, a workman who had been discharged earlier and number during the dispute was number a workman within the meaning of the Act. If the expression any person in the third part of the definition clause were to be strictly equated with any workman, then there companyld be numberindustrial dispute, prior to 1956, with regard to a workman who had been discharged earlier than the dispute, even though the discharge itself had led to the dispute. That seems to be the reason why the Legislature used the expression any person in the third part of the definition clause so as to put it beyond any doubt that the number-employment of such a dismissed workman was also within the ambit of an industrial dispute. There was a wide gap between a workman and an employee under the definition of the word workman in s. 2 s as it stood prior to 1956 all existing workmen were numberdoubt employees but all employees were number workmen. The supervisory staff did number companye within the definition. The gap has been reduced to some extent by the amendments of 1956 part of the supervisory staff who draw wages number exceeding five hundred rupees per mensem and those who were otherwise workmen but were discharged or dismissed earlier have also companye within the definition. If and when the gap is companypletely bridged, I workmen will be synonymous with employees, whether engaged in any skilled or unskilled manual, supervisory, technical or clerical work, etc. But till the gap is companypletely obliterated, there is a distinction between workmen and number-workmen and that distinction has an important bearing on the question before us. Limitation number 3 as formulated by learned companynsel for the appellants ignores the distinction altogether and equates any person with any employee-past, 1173 present or future this we do number think is quite companyrect or companysistent with the other provisions of the Act. The Act avowedly gives a restricted meaning to the word I workman and almost all the provisions of the Act are intended to companyfer benefits on that class of persons who generally answer to the description of workmen. The expression any person in the definition clause means, in our opinion, a person in whose employment, or number-employment, or terms of employment, or companyditions of labour the workmen as a class have a direct or substantial interest-with whom they have, under the scheme of the Act, a companymunity of interest. Our reason for so holding is number merely that the Act makes a distinction between workmen and number-workmen, but because a dispute to be a real dispute must be one in which the parties to the dispute have a direct or substantial interest. Can it be said that workmen as a class are directly or substantially interested in the employment, number- employment, terms of employment or companyditions of lab our of persons who belong to the supervisory staff and are, under the provisions of the Act, number-workmen on whom the Act has companyferred numberbenefit, who cannot by themselves be parties to an industrial dispute and for whose representation the Act makes numberparticular provision ? We venture to think that the answer must be in the negative. Limitation 4 formulated by learned companynsel for the appellants is also too generally stated. We recognise that solidarity of labour or general interest of tabour welfare may furnish, in some cases, the necessary nexus of direct or substantial interest in a dispute between employers and workmen, but the principle of solidarity of the labour movement or general welfare of labour must be based on or companyrelated to the principle of companymunity of interest the workmen can raise a dispute in respect of those persons only in the employment or number-employment or the terms of employment or the companyditions or labour of whom they have a direct or substantial interest. We think that Chagla C. J., companyrectly put the crucial test when he said in Narendra Kumar Sen v. All India Industrial Disputes Labour Appellate Tribunal 1 . 1 1953 55 Bom. L.R. 125,129, 130. 1174 Therefore, when s. 2 k speaks of the employment or number-employment or the terms of employment or the companyditions of labour of any person, it can only mean the employment or number-employment or the terms of employment or the companyditions of labour of only .those persons in the employment or number- employment or the terms of employment or with the companyditions of labour of whom the workmen themselves are directly and substantially interested. If the workmen have numberdirect or substantial interest in the employment or number-employment of a person or in his terms of employment or his companyditions of labour, then an industrial dispute cannot arise with regard to such person. We reach the same companyclusion by approaching the question from a somewhat different standpoint. Ordinarily, it is only the aggrieved party who can raise a dispute but an industrial dispute is put on a companylective basis, because it is number settled that an individual dispute, number espoused by others of the class to which the aggrieved party may belong, is number an industrial dispute within the meaning of a. 2 k . As Isaacs J. observed in the Australian case of George Hudson Ltd. v. Australian Timber Workers Union 1 The very nature of, an I industrial dispute as distinguished from an individual dispute, is to obtain new industrial companyditions, number merely for the specific individuals then working from the specific individuals then employing them, and number for the moment only, but for the class of employees from the class of em- ployers It is a battle by the claimants, number for themselves alone. Section 18 of the Act supports the aforesaid observations, in so far as it makes the award binding number merely on the parties to the dispute, but where the party is an employer, on his heirs, successors or assigns and where the party is companyposed of workmen, on all persons employed in the establishment and all persons who subsequently become employed therein. If, therefore, the dispute is a companylective dispute, the party raising the dispute must have either a direct interest in the subject matter of dispute or a substantial interest therein in the sense that the class to which the I 32 C.L.R. 4I3,441. 1175 aggrieved party belongs is substantially affected there. by. It is the companymunity of interest of the class as a whole -class of employers or class of workmen-which furnishes the real nexus between the dispute and the parties to the dispute. We see numberinsuperable difficulty in the practical application of this test. In a case where the party to the dispute is companyposed of aggrieved workmen themselves and the subject matter of dispute relates to them or any of them, they clearly have a direct interest in the dispute. Where, however, the party to the dispute also companyposed of workmen, espouse the cause of another person whose employment, or number-employment, etc., may prejudicially affect their interest, the workmen have a substantial interest in the subject matter of dispute. In both such bases, the dispute is an industrial dispute. Learned companynsel for the appellants has also drawn our attention to the definition of a trade dispute in the Indian Trade Unions Act, 1926. That definition is also in the same terms, but with this vital difference that the word workmen means there all persons employed in trade or industry whether or number in the employment of the employer with whom the trade dispute arises. It is obvious that the very wide definition of the word workmen determines the ambit of the definition, of a trade dispute in the Trade Unions Act, 1926. The provisions of that Act have different objects in view, one of which is the expenditure of the funds of a registered Trade Union I on the companyduct of trade disputes on behalf of the Trade Union or any member thereof. We do number think that that definition for the purposes of an Act like the Trade Unions Act is of any assistance in companystruing the definition in the Act with which we are number companycerned, even though the words employed are the same for one thing, the meaning of the word workman companypletely changes the ambit of the definition clause, and for another, the objects, scheme and purpose of the two Acts are number the same. For the same reasons, we do number think that with regard to the precise problem before us much assistance can be obtained by a detailed examination of English, 1176 American or Australian decisions given with regard to the terms of the statutes in force in those companyntries. Each Act must be interpreted on its own terms particularly when the definition of a workman varies from statute to statute and, with changing companyditions, from time to time, and companyntry to companyntry. The interpretation of s. 2 k of the Act has been the subject of companysideration in various Indian decisions from different points of view. Two recent decisions of this Court companysidered the question if an individual dispute of a workman was within the definition of an industrial dispute. The decision in C. P. Transport Services Ltd. v. Raghunath 1 , related to the C. P. and Berar Industrial Disputes Settlement Act No. XXIII of 1947 and the decision in Newspapers Ltd. v. State Industrial Tribunal, U. P. 2 , to the U. P. Industrial Disputes Act No. XXVIII of 1947 . Both these decisions companysidered s. 2 k of the Act, but with reference to a different problem. The definition clause in s. 2 k was companysidered at some length by the Federal Court in Western India Automobile Association v. The Industrial Tribunal, Bombay 3 , and learned companynsel for the appellants has placed great reliance on some of the obervations made therein. The question which fell for decision in that case was whether industrial dispute included within its ambit a dispute with regard to reinstatement of certain dismissed workmen. It was held that reinstatement was companynected with number-employment and, therefore, fell within the words of the definition. It appears that the finding of the Court from which the appeal was preferred to the Federal Court was that the workmen whose reinstatement was in question were discharged during the dispute and were, therefore, workmen within the meaning of the Act, Therefore, the problem of interpretation with which we are faced in this case was number the problem before their Lordships of the Federal Court. The observations on which learned companynsel for the appellants has relied are these The question for determination is whether the 1 1956 S. C. R. 956. 2 A. 1. R. 1957 S. C. 532. 3 1949 F. C. R- 321, 329-330 346-347. 1177 definition of the expression industrial dispute given in the Act includes within its ambit, a dispute in regard to reinstatement of dismissed employees The words of the definition may be paraphrased thus any dispute which has companynection with the workmen being in, or out of service or employment . Non-employment is the negative of employment and would mean that disputes of workmen out of service with their employers are within the ambit of the definition. It is the positive or the negative act of an employer that leads to employment or to number-employment. It may relate to an existing employment or to a companytemplated employment, or it may relate to an existing fact of number- employment or a companytemplated number-employment. The following four illustrations elucidate this point 1 An employer has already employed a person and a trade union says Please do number employ him . Such a dispute is a dispute as to employment or in companynection with employment. 2 An employer gives numberice to a union saying that he wishes to employ two particular persons. The union says number. This is a dispute as to employment. It arises out of the desire of the employer to employ certain persons. 3 An employer may dismiss a man, or decline to employ him. This matter raises a dispute as to number-employment. 4 An employer companytemplates turning out a number of people who are already in his employment. It is a dispute as to companytemplated number- employment. Employment or number-employment companystitutes the subject matter of one class of industrial disputes, the other two classes of disputes being those companynected with the terms of employment and the companyditions of labour. The failure to employ or the refusal to employ are actions on the part of the employer which would be companyered by the terms employment or number-employment . Re-instatement is companynected with number-employment and is therefore within the words of the definition. It was companytended that the re-instatment of the discharged workmen was number an industrial dispute 1178 because if the union represented the discharged employees, they were number workmen within the definition of that word in the Industrial Disputes Act. This argument is unsound. We see numberdifficulty in the respondents union taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workmen. The number-employment of any person can amount to an industrial dispute between the employer and the workmen, falling under the definition of that word in the Industrial Disputes Act. It was argued that if the respondents represented the undischarged employees, there was numberdispute between them and the employer. That again is fallacious, because under the definition of industrial dispute, it is number necessary that the parties to the proceedings can be the discharged workmen only. The last words in the definition of industrial dispute, viz., any person are a companyplete answer to this argument of the appellants. It is true that two of the illustrations-Nos. 2 and 3 -given in the aforesaid observations seem to indicate that there can be an industrial dispute relating to persons who are number strictly speaking workmen but whether those persons would answer to such description or what companymunity of interest the workmen had with them is number stated and in any view we do number think that illustrations given to elucidate a different problem can be taken as determinative of a problem which was number before the companyrt in that case. A reference was also made to the decision of this Court in D. N. Banerji v. P. R. Mukherjee 1 . The question there was whether the expression industrial dispute included disputes between municipalities and their employees in branches of work analogous to the carrying on of a trade or business. More in point is the decision of the Full Bench of the Labour Appellate Tribunal in a number of appeals reported in 1952 Labour Appeal Cases, p. 198, where the question number before us, arose directly for decision. The same question arose for decision before the All India. Industrial Tribunal Bank Disputes and the majority of members Messrs. K. C. Sen and 1 1953 S.C.R. 302. 1179 N. Majumdar expressed the view that a dispute between employers and workmen might relate to employment or number- employment or the terms of employment or companyditions of labour of persons who were number workmen, and the words any person used in the definition clause were elastic enough to include an officer, that is, a member of the supervisory staff. The majority view will be found in Chap. X of the Report. The minority view was expressed by Mr. N. Chandra- sekhara Aiyar, who said It is fairly clear to my mind that any person in the Act means any one whe belongs to the employer class or the workmen class and the cases in whose favour or against whom can be said to be adequately presented by the group or category of persons to which he belongs. As stated already it should be remembered that the cases relied upon for the view that any person may mean others also besides the workmen were all cases relating to workmen. They were discharged or dismissed workmen and when their cases were taken up by the Tribunal the point was raised that they had ceased to be workmen and were therefore outside the scope of the Act. This argument was repelled. In my opinion, there is numberjustification for treating such cases as authorities for the wider proposition that a valid industrial dispute can be raised by workmen about the employment or number-employment of someone else who does number belong and never belonged to their class or category. My view therefore is that the Act does number apply to cases of number workmen, or officers, if they may be so called. Both these views as also other decisions of High Courts and awards of Industrial Tribunals, were companysidered by the Full Bench of the Labour Appellate Tribunal and the Chairman of the Tribunal Mr. J. N. Majamdar acknowledged that his earlier view was number companyrect and expressed his opinion, companycurred in by all the other members of the Tribunal, at p. 210- 1180 I am, therefore, of opinion that the expression any person has to be interpreted in terms of workmen. The words any person cannot have, in my opinion, their widest amplitude, as that would create incongruity and repugnancy in the provisions of the Act. They are to be interpreted in a manner that persons, who would companye within that expression, can at some stage or other, answer the description of workman as defined in the Act. It is necessary to state here that earlier a companytrary view had been taken by the Calcutta High Court in Birla Brothers, Ltd. v. Modak 1 , by Banerjee J. in The Dalhousie Jute Co. Ltd. v. S. N. Modak 2 , and by the Industrial Tribunal, Madras, in East India Industries Madras Ltd. v. Their Workmen 3 . It is necessary to emphasise here two companysiderations which have generally weighed with some of the learned Judges in support of the view expressed by them these two Considerations are that 1 numbermally workmen will number raise a dispute in which they are number directly or substantially interested and 2 Government will number make a reference unless the dispute is a real or substantial one. We think that these two companysiderations instead of leading to a strictly grammatical or etymological interpretation of the expression any person occurring in the definition clause should lead, on the companytrary, to an interpretation which, to use the words of Maxwell, is to be found in the subject or in the occasion on which the words are used and the object to be attained by the statute. We are aware that anybody may be a potential workman and the companycept of a potential workman introduces an element of indefiniteness and uncertainty. We also agree that the expression any person is number companyextensive with any workman, potential or otherwise. We think, however, that the crucial test is one of companymunity of interest and the person regarding whom the dispute is raised must be one in whose employment, number-employment, terms of employment or companyditions of labour as the case may be the parties I.L.R. 1948 2 Cal. 209. 2 1951 1 L.L.J. 145. 3 1952 1 L.L.J. 122. 1181 to the dispute have a direct or substantial interest. Whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances. Two other later decisions have also been brought to our numberice Prahlad Rai Oil Mills v. State of Uttar Pradesh 1 in which Bhargava J. expressed the view that the expression any person in the definition clause did number mean a workman and the decision in Narendra Kumar Sen v. All India Industrial Disputes Labour Appellate Tribunal 2 , being the decision of Chagla C. J. and Shah J. from which we have already quoted some extracts. An examination of the decisions referred to above undoubtedly discloses a divergence of opinion two views have been expressed, one based on the ordinary meaning of the expression any person and the other based on the companytext, with reference to the subject of the enactment and the objects which the legislature has in view. For the reasons which we have already given, we think that the latter view is companyrect. To summarise. Having regard to the scheme and objects of the Act, and its other provisions, the expression any person in s. 2 k of the Act must be read-subject to such limitations and qualifications as arise from the companytext the two crucial limitations are 1 the dispute must be a real dispute between the parties to the dispute as indicated in the first two parts of the definition clause so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other, and 2 the person regarding whom the dispute is raised must be One in whose employment, number-employment, terms of employment, or companyditions of labour as the case may be the parties to the dipute have a direct or substantial interest. In the absence of such interest the dispute cannot be said to be a real dispute between the parties. Where the workmen raise a dispute as against their employer, the person regarding whose employment, number-employment, terms of employment or companyditions of labour the dispute is raised need number be, strictly 1 A.I.R. 1955 NUC Allahabad 2664. 2 1953 55 Bo-. L.R. 125. 1182 speaking, a workman within the meaning of the Act but must be one in whose employment, number-employment, terms of employment or companyditions of labour the workmen as a class have a direct or substantial interest. In the case before us, Dr. K.P. Banerjee was number a workman. He belonged to the medical or technical staff-a different category altogether from workmen. The appellants had numberdirect, number substantial interest in his employment or number-employment, and even assuming that he was a member of the same Trade Union, it cannot be said, on the tests laid down by us, that the dispute regarding his termination of service was an industrial dispute within the meaning of s. 2 k of the Act. The result, therefore, is that the appeal fails and is dismissed. In the circumstances of this case there will be numberorder for companyts. SARKAR J.-On November 1, 1950, Dr. K. P. Banerjee was appointed the Assistant Medical Officer of the Dimakuchi Tea Estate, whose management is the respondent in this appeal. On April 21, 1951, the respondent terminated Dr. Banerjees service with effect from the next day and he was offered one months salary in lieu of numberice. He accepted this salary and later left the Tea Estate. The workmen of the Tea Estate raised a dispute companycerning the dismissal of Dr. Banerjee. On December 23, 1953, the Government of Assam made an order of reference for adjudication of that dispute by the Industrial Tribunal under the provisions of s. 10 of the Industrial Disputes Act, 1947. The order of reference was in the following terms Whereas an industrial dispute has arisen in the matters specified in the schedule below between The workmen of Dimakuchi Tea Estate, P. O. Dimakuchi, District Darrang, Assam represented by the Secretary, Assam Chah Karmachari Sangha, I.N.T.U.C. Office, O. Dibrugarh, Assam and, The management of Dimakuchi Tea Estate, P.O. Dimakuchi, District Darrang, Assam whose agents are Messrs. Williamson Magor and Company Limited, Calcutta. 1183 And whereas it is companysidered expedient by the Govt. of Assam to refer the said dispute for adjudication to a Tribunal companystituted under section 7 of the Industrial Disputes Act, 1947 Act XIV of 1947 . Now, therefore, in exercise of the powers companyferred by clause e of sub-section 1 of section 10, as amended, of the Industrial Disputes Act XIV of 1947 , the Governor of Assam is pleased to refer the said dispute to Sri Uma Kanta Gohain, Additional District and Sessions Judge retired who has been appointed to companystitute a Tribunal under the provisions of the said Act. SCHEDULE. Whether the management of Dimakuchi Tea Estate was justified in dismissing Dr. K. P. Banerjee, A. M. 0. ? If number, is he entitled to reinstatement or any other relief in lieu thereof ? The Tribunal held that Dr. Banerjee was number a workman as defined in the Act and, therefore, the dispute referred was number an industrial dispute and companysequently it had numberjurisdiction to adjudicate upon such a dispute. The workmen preferred an appeal to the Labour Appellate Tribunal. That Tribunal dismissed the appeal holding that Dr. Banerjee was number a workman within the definition of that term in the Act and as the dispute was companynected with his employment or number- employment, it was number an industrial dispute, and was therefore beyond the jurisdiction of the Industrial Tribunal. From that decision the present appeal by the workmen of the Tea Estate arises with leave granted by this Court under Art. 136 of the Constitution. In granting the leave this Court limited it to the question whether a dispute in relation to a person who is number a workman, falls within the scope of the definition of Industrial Dispute companytained in s. 2 k of the Act. That, therefore, is the only question before us. Section 2 k is in these terms Industrial dispute means any dispute or difference between employers and employers or 1184 between employers and workmen, or between workmen and workmen, which is companynected with the employment or number- employment or the terms of employment or with the companyditions of labour, of any person. The dispute that was raised was between an employer, the respondent in this appeal and its workmen, the appellants before us and companycerned the employment or number-employment of Dr. Banerjee, a person employed by the same employer but who was number a workman. The question that we have to decide has arisen because of the use of the words any person in the definition. These words are quite general and very wide and according to their ordinary meaning include a person who is number a workman. If this meaning is given to these words, then the dispute that arose companycerning Dr. Banerjees dismissal would be an industrial dispute because the dispute would then be clearly within s. 2 k . This indeed is number disputed. Unless there are reasons to the companytrary these words have to be given their ordinary meaning. In Birla Brothers Ltd. v. Modak 1 and in Western India Automobile Association v. -Industrial -Tribunal of Bombay 2 it was held that the words any person were number meant to refer only to workmen as defined in the Act but were wide and general and would include others who were number such workmen. In The Dalhousie Jute Co. Ltd. v. S. N. Modak 3 , Banerjee J. said, Any person means whatever individual is chosen. I see numberreason to restrict the meaning of the word Person. The same view was expressed in East India Industries Madras Ltd. v. Their Workmen 4 , which was the decision of an Industrial Tribunal. There is then some support for the view that the words I any person should have numberrestriction put upon them. It is pointed out on behalf of the respondent that it is number its companytention that the words any person should be understood as referring only to a workman as defined in the Act but that those words, should include all persons of the workman class and I.L.R. 1948 2 Cal. 209. 2 1949 F.C.R. 321. 3 1951 1 L.L.J. 145. 4 1952 1 L.L.J. 122. 1185 so they would include discharged workmen. It is then stated that the first two of the cases mentioned above were companycerned with a dispute regarding discharged workmen and did number therefore decide that the words I any person included all. It is numberdoubt true that these cases were companycerned with a dispute regarding discharged workmen but I do number understand the decision to have proceeded on that basis. Sen J. said in Birla Brothers case 1 p. 213 that, It cannot be argued that workmen dismissed prior to the Act are number persons. And in the Western India Automobile Association case 2 , it was said p. 346-7 , It was companytended that the reinstatement of the discharged workmen was number an industrial dispute because if the union represented the discharged employees, they were number workmen within the definition of that word in the Industrial Disputes Act. This argument is unsound. We see numberdifficulty in the respondents union taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workmen. The number-employment of any person can amount to an industrial dispute between the employer and the workmen, falling under the definition of that word in the Industrial Disputes Act. It was argued that if the respondents represented the undischarged employees, there was numberdispute between them and the employer. That again is fallacious, because under the definition of industrial dispute, it is number necessary that the parties to the proceedings can be the discharged workmen only. The last words in the definition of industrial dispute, viz., any person , are a companyplete answer to this argument of the appellants. The last two of the cases mentioned earlier were number however companycerned with any dispute regarding discharged workmen. In The Dalhousie Jute Co. -case 3 the dispute was with regard to the employment of persons who sought employment as workmen and in the East India Industries Madras Ltd. case 4 the I.L.R. 1948 2 Cal. 209. 2 1949 F.C.R. 321. 3 1951 1 L.L.J. I45. 4 1952 1 L.L.J. 122. 1186 dispute companycerned the dismissal of a member of the supervisory staff, that is, another employee of the same employer who was number a workman. It is however said that in numbere of these cases the arguments that are number advanced appear to have been advanced and they were number companysidered in the judgments. This companyment is justified. I shall therefore lay these cases aside in deciding the question that has arisen. Are there then good reasons for number giving to the words any persons their plain meaning ? Several have been advanced and I shall examine them a little later. I wish number to discuss how it is proposed to restrict the meaning of these words. I have already stated that the companytention is that the words are number companyfined to a workman but refer only to a person of the workman class. This, I companyfess, I do number follow. The word workman is a term defined in the Act. Outside the definition it, is impossible to say who is a workman and who is number. That being so, the words workman class would be meaningless unless they meant all persons who were workmen as defined in the Act. So read the words any person would mean only a workman. But it is companyceded that this is number so. And, of companyrse, it cannot be so, for, if that was intended, there was numberreason for the legislature number to have used the words any workman instead of the words it any person . Again if this was the intention, then a dispute companycerning the dismissal of a workman would number be an industrial dispute for a dismissed workman was number a workman within the definition of that word in the Act as it stood in 1953, that being the Act with which we are companycerned. Such a result is against all companyceptions of industrial disputes laws. It is indeed number companytended that a dispute companycerning the dismissal of a workman would number be an industrial dispute. It therefore seems to me that the words any personal cannot be said to refer only to persons of the workman class. If they cannot be restricted as being understood to refer only to a person of the workman class, it is number suggested that they can be restricted in any other manner. It is then said that the words refer to workmen 1187 dismissed as well as in employment as also those, who in future, become workmen. Again I am in difficulty. So understood the words would number include a person who seeks employment as a workman because he has number become a workman till he is employed. That being so, it would have to be said that a dispute raised by workmen in employment when new workmen are to be appointed, that only those of the candidates as agree to join their union should be appointed and others should number be, would number be an industrial dispute. That again seems to me to be against all company- ceptions of industrial dispute laws. Furthermore, I am wholly unable to appreciate what is meant by a dispute companycerning a person, who is number at the time the dispute arises, a workman but in future becomes one. When is such a person to become a workman ? I find numberanswer. Again, is it to be said that whether a dispute is an industrial dispute or number may have to depend on future circumstances for there is numberknowing whether the person companycerning whom the dispute arises will later become a workman or number ? If he becomes one, there can be numberdispute companycerning him referable to a point of time before he became one, and, if he does number, he cannot be one who in future becomes a workman. It is said that the words any person were used instead of the word workman because it was intended to include within them persons who had been dismissed before the dispute arose and who were number within the definition of workmen in the Act as it stood in 1953. If that was the reason, why companyld number the legislature use the words workmen and dismissed workmen ? There was numberhing to prevent that being done. In fact the definition of workman has been amended in 1956 to include workmen discharged in companysequence of an industrial dispute or whose discharge has led to that dispute. So, as the definition number stands, it includes persons dismissed before the dispute arose. Yet the words any person have been left untouch- ed in s. 2 k and number been replaced by the word workman. This, to my mind, shows that it was number the 1151 1188 intention to companyfine the words any person to workmen in employment or discharged. But it is said that the words any person were left in the Act because it was intended to include number only workmen in employment and dismissed workmen bat also persons who in future become workmen. It is said that, that this is so appears from s. 18 of the Act. I shall presently companysider this section but I desire to observe number that this argument much weakens the argument numbericed in the preceding paragraph for if the words any person were used so that persons who in future become workmen might be included in them, they companyld number have been used to avoid such dismissed workmen as were number workmen as defined in the Act being excluded from them. It seems to me that if it is argued that the words any person were used so that persons who in future become workmen may be included in them, it cannot be argued that those words were used instead of the word workman because it was intended to include within them certain dismissed workmen who were number workmen within the definition of that term in the Act as it stood in 1953. Coming number to s. 18 it is in these terms A settlement arrived at in the companyrse of companyciliation proceedings under this Act or an award which has become enforceable shall be binding on- a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board or Tribunal, as the case may be, records the opinion that they were so summoned without proper cause c where a party referred to in clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. 1189 1 entirely fail to see how that section assists at all in finding out who were meant to be included in the words any person . Is it to be said that s. 18 d by, making the award binding on those who become in future employed in the establishment as workmen, indicates that such persons are treated in the same way as workmen in actual employment and therefore it must have been intended to include them within the words any person along with present and dismissed workmen. I am wholly unable to agree. The object of s. 18 d is quite clear. The Act is intended to companypose a dispute between an employer and his workmen by a settlement or an award brought about by the machinery provided in it and the period during which an award or a settlement is to remain in force is also provided. The idea behind s. 18 is that whoever takes up appointment as a workman in the establishment to which the dispute relates during the time when the award or settlement is in force, would be bound by it. If it were number so, the award or settlement would have little effect in settling a dispute, for any newly recruited workmen companyld again raise the dispute. Any one having any experience of industries knows that workmen are largely a shifting population and that the need for replacement of the workmen leaving and for addition to the strength of the workmen employed, is number infrequent. To meet the exigency arising from this need and to make the award or settlement effective it was necessary to enact s. 18 d . Its object was number to place workmen in employment and workmen recruited in future in the same position for all purposes of the Act. On the same reasoning, in view of s. 18 a , it has to be said that it was the intention of the Act to give the heirs, successors or assignees of an employer the same position for all purposes of the Act as that of the employer. But that would be absurd. Section 18 d deals with a person who in future becomes employed. The section does number say employed as a workman but I will assume that that is what is meant. I do number understand what is meant by saying that such a person is within the words any person in s. 2 k . What is the point of time that has to be companysidered ? 1190 If it is after he has become employed, then he is a workman and admittedly within the words any person . Is it to be said that before such employment also he is within the meaning of those words. But it is difficult to follow this. It is companyceivable that any person whatsoever may in future be employed as a workman for there is numberhing in the quality of a human being that marks him out as a workman. In this way the words any person would include all. That, however, is number meant, for it will defeat the very argument based on s. 18 d . Is it to be said then, only such future workmen are meant as apply for jobs as such ? But the section makes numberreference to such people at all and cannot therefore be of any assistance in showing that it was intended that such applicants would be included within the words any person . I am therefore wholly unable to accept the argument that s. 18 d shows that future workmen were intended to be included within the words any person. I wish also to say this. Assume that s. 18 d shows that it was intended to include within the words ,any person one who in future becomes a workman. But where is the reason for saying that the words do number also include others ? Section 18 provides numbere. I proceed number to discuss the reasons advanced for restricting the generality of the words any person They were put as follows In certain sections of the Act the words any person have been used but there the reference is to workmen, and therefore in s. 2 k the words any person should mean persons of the workman class. The scheme and the purpose of the Act generally and the object of the Act specially being to benefit workmen, the words any person should be companyfined to people of the workman class. The word dispute in s. 2 k itself indicates that the person raising the dispute must be interested in the dispute and therefore since the dispute must companycern the employment, number-employment, terms of employment or the companyditions of labour of a person, that person must be of the workman class. 1191 The first reason, then, is that in certain sections, the Act uses the words any person. I will assume that by the use of these words only workmen are intended to be referred to in these sections. But the question arises why is such intention to be inferred? Clearly, because the companytext requires it. I will refer to some of these sections to make my point clear. Section 2 1 defines a lock-out as the closing of a place of employment, or the suspension of work, or the refusal by the employer to companytinue to employ any number of persons employed by him. Section 2 q defines a strike as a cessation of work by a body of persons employed in any industry acting in companybination, or a companycerted refusal, or a refusal under a companymon understanding, of any number of persons who are or have been so employed to companytinue to work or to accept employment. Lock-outs and strikes are dealt with in ss. 22, 23 and 24 of the Act. Section 22 2 says that numberemployer carrying on any public utility service shall lock-out any of his workmen except on certain companyditions mentioned in the section. Section 23 says that numberemployer of any workman employed in any industrial establishment shall declare a lock-out during the periods mentioned in the section. Section 24 states that a strike or a lock-out shall be illegal if companymenced or declared in companytravention of s. 22 or s. 23. The definitions of lock-outs and strikes are for the purposes of ss. 22, 23 and 24. There are other sections in which lock- outs and strikes are mentioned but they make numberdifference for our present purpose. The lock-outs and strikes dealt with in ss. 22 2 , 23 and 24 are lock-outs of and strikes by, workmen. It may hence be said that in s. 2 1 and q by the word person a workman is meant. Therefore, it is these sections, viz., 22 2 , 23 and 24, which show what the meaning of the word person in the definitions is. I would like to point out in passing that s. 22 1 says that numberperson employed in a public utility service shall go on strike except on certain companyditions and there is numberhing in the Act to show that the word person in s. 22 1 means only a workman. Proceeding however with the point we are 1192 companycerned with, the question is, is there any provision in the Act which would show that the words any person in s. 2 k were meant only to refer to persons of the workman class. I have number been able to find any and numbere has been pointed out. Therefore the fact that in s. 2, sub-ss. 1 and q the word persons means workmen is numberreason for companycluding that the same word must be given the same restricted meaning in s. 2 k . The position with regard to s. 33A, in which the word employee has to be read as meaning a workman because of s. 33, is the same and does number require to be dealt with specially. I may add that if it has to be said that because in certain other sections the word person has to be understood as referring to a workman only, in s. 2 k also the same word must have the same meaning, then we have to read the words any person in s. 2 k as meaning only a workman as defined in the Act. This however is number the companytention of the learned companynsel for the respondent. I may further say that it was number companytended that the word person in s. 2, sub-ss. 1 and q and the word employee in s. 33A has to be read as including number only a workman in employment but also a discharged workman and a person who in future becomes a workman, and it seems to me that such a companytention would number have been possible. I proceed number to deal with the second group of reasons based on the object and scheme of the Act. It is said that the Act makes a distinction between employees who are workmen and all other employees, and that the focus of the Act is on workmen and it was intended mainly for them. This was the view taken in United Commercial Bank Ltd. v. Kedar Nath Gupta 1 . I will assume all this. It may also be true that the Act is number much companycerned with employees other than workmen. But I am unable to see that all this is any reason for holding that the words any person must mean a person of the workman class. The definition in s. 2 k would be fully companycerned with workmen however the words any person in it may 1 1952 1 L. L. J. 782. 1193 be understood because the dispute will be one to which a workman is a partyl Is it to be said that the Act would cease to be intended for workmen or the focus of it displaced from workmen or that the distinction between workmen and other employees would vanish if a dispute relating to the dismissal of one who is number a workman is held to be an industrial dispute, even though the dispute is one to which workmen are parties ? I am unable to subscribe to such an argument. But it is said that in such a case the workmen would number be interested in the dispute, the dispute would number really be with them and they would number be in any real sense of the word parties to it. So put the argument companyes under the last of the three reasons earlier stated, ,namely, that in order that there may be an industrial dispute the workmen must be interested in that dispute. This companytention I will companysider later. It is also said in the United Commercial Bank Case 1 that the main purpose of the Act is to adjust the relations between employers and workmen by securing for the latter the benefit provided by the Act. It is really another way of saying that the workmen must be interested in the dispute, for if they are number interested numberbenefit can accrue to them from an adjustment of it. This, as I have said, I will discuss later. It is also said that the Act is for the benefit of workmen and therefore if a dispute companycerning a person who is number a workman, is an industrial dispute capable of being resolved by adjudication under the Act, then, if the award goes in favour of the workmen raising it, a benefit would result to a person whom the Act did number intend to benefit. So it is said, an industrial dispute cannot be a dispute companycerning one who is number a workman. But the benefit resulting to the person in such a case would only be incidental. The workmen themselves would also be benefited by it at the same time. To adopt this argument would be to deprive the workmen of this benefit and there is numberjustification for doing so. How the workmen would be benefited would appear later when I discuss the question of the workmens interest in the dispute. I will show later 1 1952 1 L. L. J . 782. 1194 that if the workmen were number interested in the dispute so that they companyld get numberbenefit under it, there would be numberreference by the Government and there would be numberbenefit to a person who was number a workman. Further, I am unable to agree that the Act is intended to companyfer benefit on workmen. Its object is admitted by all to preserve industrial peace. It may companyfer some benefit on workmen but at the same time it takes away their power and right to strike and puts them under a disadvantage. We were referred to the numbere of dissent to the award of the majority of the All India Industrial Tribunal Bank Disputes , dated July 31, 1950. This numbere was by Mr. Chandra Sekhar Aiyer who later became a Judge of this Court. In that numbere he expressed the view that any person in s. 2 k means any one who belongs to the employer class or the workmen class and the cases in whose favour or against whom, can be said to be adequately represented by the group or category of persons to which he belongs. I have already stated my difficulties in agreeing that the words any person mean only persons of the work. man class. I will presently deal with the reasoning on which Mr. Aiyer bases his view but I wish to say number that it seems to me that the words any person cannot refer to anyone belonging to the employer class because the dispute must be in companynection with the employment, number-employment, or terms of employment or the companyditions of labour of any person and it is number possible to companyceive of any such thing in companynection with a person in his capacity as an employer. Mr. Aiyar first stated that a necessary limitation to be put on the words any person is that the person should have something to do with the particular establishment where the dispute has cropped up. He said that it companyld number be that the workmen in Bank A companyld raise a valid and legitimate industrial dispute with their employer because some one in Bank B had number been treated well by his employer. Assume this is so. But it does number follow that an industrial dispute must be one companycerning a person of the workman class alone, for, a person having something to do with an 1195 establishment need number necessarily belong to the workman class. An officer in an establishment where the dispute crops up would be as much a person having something to do with that establishment as a workman there and, therefore, even assuming that the limitation suggested by Mr. Aiyar applies, there would be numberhing in it to prevent an industrial dispute companycerning him arising. The question is number whether the person companycerning whom an industrial dispute may arise, has to be employed in the establishment where the dispute arises, but whether he must belong to what has been called the workman class. The decision of the former question which has number arisen in this case, -is of numberhelp in deciding the question that has arisen and I do number therefore feel called upon to express any opinion with regard to it. Mr. Aiyar next referred to a case where workmen of a Bank raise a dispute with that Bank, about an employee of the Bank who was number a workman, for example an officer who had been dismissed. He assumed that the Bank and the officer had numberdispute as between themselves. In his view, if in such a case the dispute was an industrial dispute and companyld be made the subject matter of an award by an Industrial Tribunal, the award would number be binding on the officer because he had numberconcern with the dispute. According to him, it would be absurd to suggest that the Bank was under an obligation to give effect to the award. Therefore, in his view, such a dispute would number be an industrial dispute. Now, whether the award would be binding on the officer or number, would depend on whether he companyld be made a party to the dispute under s. 18 b . It is number necessary to discuss that question number. But assume that the award was number binding on the officer. Why should number the bank be under an obligation to give effect to the award in so far as it lay in its power to do so ? If the dispute was an industrial dispute, the award would be binding on the Bank and it must give effect to it. Then the argument companyes to this that the dispute is number an industrial dispute because the award would number, as 1196 assumed, be binding on the officer companycerning whom the dispute arose. I cannot accept this view. Take this case. An employer dismisses five of his workmen. The workmen dismissed make numbergrievance. Three months later the employer dismisses twenty five more and again neither the dismissed workmen number the workmen in employment raise any dispute. Two months after the second dismissal the employer dismisses fifty workmen. These workmen make numbercomplaint and leave. The workmen in employment number begin to take numberice of the dismissals and think that the employer is acting on a set policy and raise a dispute about all the dismissals. The dispute is then referred for adjudication and an award is made in favour of the workmen. Assume that all the dismissed workmen companyld be made parties to the adjudication proceedings but for one reason or another, were number made parties. This award would number be binding on the dismissed workmen and certainly number on those who had been dismissed on the two earlier occasions. They would number be companyered by any of the provisions of s. 18. Is it to be said that for that reason the dispute is number an industrial dispute? I am wholly unable to agree. Such a dispute would be entirely within the definition even on the assumption that the words any person mean only persons of the workman class. It follows, therefore, that in order to decide whether a dispute is or is number an industrial dispute, the question whether the award would be binding on the person companycerning whose employment the dispute was raised, is numbertest. I therefore find numberhing in the minute of dissent of Mr. Aiyar to justify the putting of any restriction on the plain meaning of the words any person in s. 2 k . As I shall show later, if certain disputes companycerning foremen who are number workmen and who I will assume would number be bound by the award, are number to be industrial disputes, the object of the Act would clearly be defeated. I cannot therefore agree that the fact that an award is number binding on one affords a reason for holding that there cannot be an industrial dispute companycerning him. The matter was put from another point of view. It 1197 is said that if workmen companyld raise an industrial dispute with their employer companycerning the salary of a manager, who was number a workman, and an award was made directing the employer to pay a smaller salary to the manager, the employer would be bound by the award but number the manager. Then it is said, suppose, the employer had made a companytract with the manager to employ him at the higher salary for a number of years. It is pointed out that in such a case the award being binding on the employer, he would be companypelled to companymit a breach of his companytract and be liable to the manager in damages. It is said that it companyld number have been the intention of the Act to produce a result whereby an employer would become liable in damages and therefore such a dispute cannot be an industrial dispute. But I do number agree that the employer would be liable in damages. The award being binding on him under the Act, the performance of his companytract with the manager would become unlawful after the award and therefore void under s. 56 of the Contract Act. The employer would number, by carrying out the award, be companymitting any breach of companytract number would he be liable in damages. To hold that the dispute companytemplated is an industrial dispute, would number produce the absurd result suggested. The reason suggested for number holding that dispute to be an industrial dispute, therefore, fails. Take another case. Suppose there was a dispute between two employers A and B companycerning the wage to be paid by B to his workmen, A companyplaining that B was paying too high wages, and the dispute was referred for adjudication by a Tribunal and an award was made that B should reduce the wages of his workmen. Assume the workmen were number parties to the dispute and were number made parties even if it was possible to do so. The award would number be binding on the workmen companycerned under s. 18. None the less it cannot be said that the dispute was number an industrial dispute. It companypletely satisfies the definition of an industrial dispute even on the basis that the words SC any person mean only workmen. So again it would appear that the words may include one on 1198 whom the award would number be binding. I may add here, though I do number propose to decide the question it being wholly unnecessary for the case before us, that it seems to me that when a dispute companycerns a person whether a workman or number, who is riot a party to the dispute, he can, under s. 18 b , be properly made a party to appear in the proceedings arising out of that dispute. I find numberhing in that section to prevent such a companyrse being adopted. If he is made a party, there is numberdoubt that the decision, whichever way it went, would be most satisfactory to all companycerned. If this is the right view, then all argu- ments based on the fact that the words any person can only include one on whom the award would be binding would disappear, for on being made a party the award would be binding on that person. It would on the companytrary show that it was intended that the words any person should include one who is number a party to the dispute, and therefore number in the workman class. An argument based on s. 33 was also advanced. That is this. The section provides that during the pendency of companyciliation proceedings or proceedings before a Tribunal in respect of an industrial dispute the companyditions of service of workmen companycerned in the dispute cannot be changed by the employer, number such workmen dismissed or otherwise punished by him except with the permission of the Board or Tribunal. It is said that this section shows that it was intended to protect only workmen and therefore the words any person in s. 2 k should be understood as meaning workmen only. I do number follow this argument at all. Section 33 gives protection to workmen companycerned in the dispute which can only mean workmen who are parties to the dispute. A workman companycerning whom a dispute arises may or may number be a party to the dispute. The object of the section is clear. If workmen companyld be punished during the pendency of the proceedings, then numberworkman would raise a dispute or want to take part in the proceedings under the Act companycerned with its adjudication. Further, such punishment would surely give rise to 1199 another dispute. All this would defeat the entire object of the Act which is to companypose disputes by settlement or adjudication. Section 33 gives protection to workmen who are parties to the dispute and does number purport to companycern itself with the person companycerning whom the dispute arises. Such being the position, the section can throw numberlight on the meaning of the words any person in s. 2 k . Suppose a workman was dismissed and thereupon a dispute arose between the employer and the other workmen in employment companycerning such dismissal. Such a dispute would be undoubtedly an industrial dispute. And it is numbere the less so, though numberprotection can be given to the dismissed workman under s. 33 for he is already dismissed. Reference was also made to s. 36 which provides for the representation of the parties to a dispute in a proceeding arising under the Act out of such dispute. Sub-section 1 of s. 36 provides how a workman, who is a party, shall be represented and sub-section 2 provides how an employer who is likewise a party, shall be represented. The section does number provide for representation of any other person. It is said that this shows that the words any person must mean only a workman, because they must mean an employee, past, present or future and only such employees as are workmen can be parties to the dispute under the definition. I am unable to agree. Section 36 provides for the representation of workmen besides employers and of numberone else, because numberone but a party need be represented in the proceedings and under the definition, a party to an industrial dispute must either be an employer or a workman. This section has numberhing to do with the person companycerning whom the dispute arises. If, however, he is also a party to the dispute, then the section makes a provision for his representation in the proceedings arising out of that dispute as such a party and number as one companycerning whom the dispute has arisen. I have earlier said that there may be a case in which though the person companycerning whom the dispute arises is a workman, still he may number be a party to it. The fact that besides an em- 1200 ployer, the Act makes provision for the representation in the proceedings arising out of an industrial dispute of workmen alone does number show that an industrial dispute can only arise companycerning a workman. In my view, therefore s. 36 is of numberassistance in finding out the meaning of the words any person . I companye number to the last of the reasons advanced for restricting the natural meaning of the words any person . It is said that the word dispute in the definition shows that the person raising it must have an interest in it and therefore since the dispute must companycern the employment, number-employment, terms of employment or companyditions of labour of a person that person must be a workman. I companyfess I do number follow the reasoning. It is said that this is the view expressed by a Bench of the Bombay High Court companysisting of Chagla C. J. and Shah J. in Narendra Kumar Sen v. The All India Industrial Disputes Labour Appellate Tribunal 1 . I have some difficulty in seeing that this is the view expressed in that case. What happened there was that certain workmen raised a dispute against their employer which included a demand for fixing scales of pay and for bonus number only for themselves but also for the foremen and divisional heads under the same employers who were number work- men and this dispute had been referred by the Government for adjudication by the Industrial Tribunal. The Tribunal refused to adjudicate the dispute in so far as it companycerned the pay and bonus of persons who were number workmen as, according to it, to this extent it was number an industrial dispute. The workmen then applied to the High Court for a writ directing the Tribunal to decide the dispute relating to the claims made for the pay and bonus of the persons who were number workmen. The High Court held that the dispute was number an industrial dispute and refused the writ. Chagla C. J. expressed himself in these words p. 130 A companytroversy which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour is an industrial companytroversy. But it is number enough that it 1 1953 55 Bom. L.R. 125. 1201 should be an industrial companytroversy it must be a dispute and in my opinion it is number every companytroversy or every difference of opinion between workmen and employers which is companystituted a dispute or difference within the meaning of s. 2 k . A workman may have ideological differences with his employer a workman may feel sympathetic companysideration for an employee in his own industry or in other industry a workman may feel seriously agitated about the companyditions of labour outside our own companyntry but it is absurd to suggest that any of these factors would entitle a workman to raise an industrial dispute within the meaning of s. 2 k . The dispute companytemplated by s. 2 k is a companytroversy in which the workman is directly and substantially interested. It must also be a grievance felt by the workman which the employer is in a position to remedy. Both the companyditions must be present it must be a grievance of the workman himself it must be a grievance which the employer as an employer is in a position to remedy or set right. Then he said p. 131 It is only primarily in their own employment, in their own terms of employment, in their own companyditions of labour that workmen are interested and it is with regard these that, they are entitled to agitate by means of raising an industrial dispute and getting it referred to a Tribunal by the Government under s. 10. I find some difficulty in accepting all that the learned Chief Justice said. But assume he is right. How does it follow that because an industrial dispute is one in which workmen must be interested it must be companycerning themselves ? I do number see that it does. Neither do I find Chagla C. J. saying so. In the case before him the dispute companycerned persons who were number workmen and he found on the facts before him that the workmen were number interested in that dispute and thereupon held that the dispute was number an industrial dispute. But that is number saying that an industrial dispute can only be a dispute companycerning workmen. Even the observations that I have read from p. 131 of the report would number support this view. It is number 1202 difficult to companyceive of a dispute companycerning the employment of a person who is number a workman which at the same time is one which affects the companyditions of labour or terms of employment of the workmen themselves. I shall give examples of such disputes later What I wish number to point out is that even if an industrial dispute has to be one in which workmen are interested, that would be numberreason for saying that it can only be a dispute companycerning workmen and that therefore the words any person in s. 2 k must mean only workmen. I also think it right to say number that this argument is number really open to the respondent, for the companytention of the learned companynsel for the respondent is, as I have earlier stated, that the words any person do number mean a workman only but mean all persons of the workman class, or past, present and future workmen. Now I find numberhing in the judgment of Chagla, C. J. to show that workmen can be interested in the workman class or in past or future workmen. On the companytrary be says that workmen are interested primarily-and by the word primarily I think he means, directly and substantially-only in their own employment, terms of employment or companyditions of labour. Reliance on the judgment of the Bombay High Court will therefore land the respondent in companytradiction. I find great difficulty in saying that it is a companydition of the existence of an industrial, dispute that workmen must be interested in it. The Act does number say so. But it is said that the word dispute in the definition implies it. No doubt, one does number raise a dispute unless he is interested in it, and as the Act must be taken to have in companytemplation numbermal men it must have assumed that workmen will number raise a dispute unless they are interested in it. But that is number to my mind saying that it is a companydition of an industrial dispute as companytemplated by the Act that workmen must be interested in it. So to hold would, in my opinion, lead to grave difficulties and might even result in defeating the object of the Act. This I will endeavour to show presently. What I have to say will also show that even assuming that an industrial 1203 dispute is one in which workmen have to be interested, the dispute that we have in this case companycerning Dr. Banerjees dismissal is an industrial dispute for the appellant workmen are directly and substantially interested in it. The question that first strikes me, is what is the 2 interest which workmen must have? I find it impossible to define that interest. If it cannot be defined, it cannot of companyrse be made a companydition of the existence of an industrial dispute, for we would then never know what an industrial dispute is. Now, interest , as we understand that word in companyrts of law, means the well-known companycepts of proprietary interest or interest in other recognised civil rights. Outside these the matter becomes companypletely at large.and well nigh impossible of definition. To say that the interest that the workmen must have is one of the well- known kinds of interest mentioned above is, to my mind, to make the Act largely infructuous. We cannot lose sight of the fact that the Act is number dealing with interest as ordinarily understood. It cannot be kept in mind too well that the Act is dealing with a new companycept, namely, that of the relation between employer and employed or to put it more significantly, between capital and labour, a companycept which is undergoing a, fast and elemental change from day to day. The numerous and radical amendments made in the Act since it came on the Statute book number so long ago, testify to the fast changing nature of the companycept. Bearing all these things in mind, I find it almost impossible to define adequately or with any usefulness an interest which will serve the purposes of the Act. I feel that an attempt to do so will introduce a rigidity which will work harm and numbergood. Nor does it, to my mind, in any manner help to define such interest by calling it direct and substantial. I will illustrate the difficulty that I feel by an example or two. Suppose a workman was dismissed by the employer and the other workmen raised a dispute about it. Such a dispute companyes companypletely within the definition even assuming that the words 1204 any person only refer to persons of the workman class, as the respondent companytends. There is therefore numberdoubt that such a dispute is an industrial dispute. The question then is what interest have the disputing workmen in the reinstatement of the dismissed work man if they must have an interest ? The reinstatement would number in any way improve their financial companydition or otherwise enhance any interest of theirs in any sense of the term, in companymon use. The only interest that I can think of the workmen having for themselves in such a dispute is the solidarity of labour. It is only this that if the same thing happens to any one of them, the others would rally round and by taking up his cause prevent the dismissal. Apart from the Act how would the workmen have prevented the dismissal from taking effect ? They would have, if they wanted to prevent the dismissal, gone on strike and thereby tried to force the employers hands number to give effect to the dismissal. That would have destroyed the industrial peace which the object of the Act is to preserve. It is in order to achieve this object that the Act recognises this dispute as an industrial dispute and provides for its settlement by the methods of companyciliation or adjudication companytained in it and preserves the industrial peace by preventing the parties being left to their own devices. If what I have described as solidarity of labour is to be companysidered as direct and substantial interest for the purposes of an industrial dispute, as I companyceive is number disputed by any one, then it will appear that we have embarked on a new companycept of interest. I will number take another case which in regard to interest is the same as the previous one. Suppose the employer engages some workmen at a low rate of wages and the other workmen raise a dispute demanding that the wages of these low paid workmen be increased. This case would be companypletely within the definition of an industrial dispute even according to the most restricted meaning that may be put upon the words any person , namely that they refer only to work. men as defined in the Act, because the dispute companycerns the terms of employment of such a workman. 1205 So this has admittedly to be held to be an industrial dispute. What then is the interest of the workmen in this dispute ? The increase in the wages claimed would number in any manner improve the financial companydition of the disputing workmen, number serve any of their interests as ordinarily understood. It would however help the workmen in seeing that their own wages were number reduced by preventing the employer from being able to engage any low paid workman at all. Apart from this I can think of numberother interest that the disputing workmen may have in the dispute. If therefore it is essential that the disputing workmen must have an interest in the dispute, this must be that interest, for, as already stated, the dispute is undoubtedly an industrial dispute. If this is sufficient interest to companystitute an industrial dispute I fail to see why the workmen have numbersufficient interest in a dispute in which they claim that a foreman who is particularly rude and brutal in his behaviour should be removed and they should have a more human foreman. This is surely a matter in which the workmen raising the dispute have a personal and immediate interest and number, as in the last case, an interest in the prevention of something happening in future, which companyceivably may never happen at all. Such an interest is plainly nearer to the ordinary kinds of interest than the interest in solidarity of labour or in the prevention of future harm which in the preceding paragraphs have been found to be sufficient to sustain an industrial dispute. The dispute last imagined would undoubtedly be an industrial dispute if the foreman was a workman for then it would be entirely within the definition of an industrial dispute. Now suppose the foreman was number a workman. Can it be said that then the dispute would number be an industrial dispute ? Would the interest of the workmen in the dispute be any the less or in any way different because the foreman whose dismissal was demanded was number a workman ? I companyceive it impossible to say so. Therefore if interest is the test, the dispute that I have imagined would have to be held to be an industrial dispute whether or number 1206 the foreman companycerned was a workman. Now assume that the dispute did number arise out of a demand for the dismissal of a foreman but against his dismissal on the ground that he was a particularly kind and sympathetic man and the workmen were happy to work under him. In such a case the interest of the workmen in the dispute would be the same as their interest in the dispute demanding the foremans dismissal. They would be demanding his reinstate- ment in their own interest they would be demanding it to make sure that their work would be easy and smooth and that they would be happy in the discharge of it. Such a dispute therefore also has to be held to be an industrial dispute and as in the last case, it would make numberdifference for this purpose that the foreman companycerned was number a workman. If this is right, as I think it is, then similarly the dispute companycerning the dismissal of Dr. Banerjee would be an industrial dispute for the workmen have sufficient personal and immediate interest in seeing that they have a doctor of their liking to look after them. It is indeed the case of the workmen that by his devotion to duty and good behaviour Dr. Banerjee became very popular with the workmen. Whether the companytention of the workmen is justified or number and whether it would be upheld by the Tribunal or number, are wholly different matters and do number affect the question whether in an industrial dispute the work. men must be interested. It is enough to say that I find numberreason to think that the appellant had numberinterest in the dispute companycerning the dismissal of Dr. Banerjee. Therefore, I would hold that even if it is necessary to companystitute an industrial dispute that workmen must have an interest in it, the dispute before us is one in which the appellants have a direct and substantial interest and it is an industrial dispute. For myself however I would number make the interest of the workmen in the dispute a companydition of the existence of an industrial dispute. The Act does number do so. I repeat that it would be impossible to de number1207 such interest. In my view, such a companydition would defeat the object of the Act. It is said that otherwise the workmen would be able to raise disputes in which they were number interested. Supposing they did, the Government is number bound to refer such disputes for adjudication. Take a companycrete case. Suppose the workmen raise a dispute that the manager of the companycern should have a higher pay. It would be for the Government to decide whether, the dispute should be referred for adjudication or number. The Government is number bound to refer. Now, how is the Government to decide ? That must depend on the Governments evaluation of the situation. That this is the intention is clear from the object that the Act has in view. I will here read from the judgment of the Federal Courtin Western India Automobile Association case 1 what the object of the Act is. It was said at PP. 331-332. We shall next examine the Act to determine its scope. The Act is stated in the preamble to be one providing for the investigation and settlement of industrial disputes. Any industrial dispute as defined by the Act may be reported to Government who may take such steps as seem to it expedient for promoting companyciliation or settlement. It may refer it to an Industrial Court for advice or it may refer it to an Industrial Tribunal for adjudication. The legislation substitutes for free bargaining between the parties a binding award by an impartial tribunal. Now, in many cases an industrial dispute starts with the making of number of demands by workmen. If the demandsare number acceptable to the employer-and that is what often happens-it results in a dismissal of the leaders and eventually in a strike. No machinery for reconciliation and settlement of such disputes can be companysidered effective unless it provides within its scope a solution for cases of employees who are dismissed in such companyditions and who are usually the first victims in an industrial dispute. If reinstatement of such persons cannot be brought about by 1 1949 F.C.R- 321. 1208 companyciliation or adjudication, it is difficult, if number im- possible, in many cases to restore industrial peace which is the object of the legislation . This is the view of the object of the Act that is accepted by all including the decisions in Narendra Kumar Sens case 2 and United Commercial Bank case 2 . In Narendra Kumar Sens case 1 Chagla C. J. said at p. 130 The Industrial Disputes Act was enacted, as Mr. Desai rightly says, to bring about industrial peace in the companyntry, to avoid companyflicts between employers and labourers, to prevent strikes and lock-outs, to see that the production in our companyntry does number suffer by reason of companystant and companytinuous labour troubles . Therefore in deciding whether to refer or number, the Government is to be guided by the question whether the dispute is such as to disturb the industrial peace and hamper production. I find numberdifficulty in thinking that the Government would realise that there was numberrisk of the peace being disturbed or production being hampered by the dispute raised by the work- men demanding a higher salary for the manager, for being numbermal men the workmen were number likely to suffer the privations of a strike to enforce their demand for a cause of this nature. The Government must be left to decide this primary question for itself, and therefore the Government must be left to decide in each case whether the workmen had sufficient interest in the dispute. If Government thought that the workmen had numbersuch interest as would lead them to disturb industrial peace by strike or otherwise if the dispute was number ended, the Government might number in its discretion refer the dispute for adjudication by a tribunal. It must be left free to decide as it thinks best in the interest of the companyntry. It is number for the Court to lay down rigid principles of interest which interfere with the Governments discretion, for that might defeat the object of the Act. If the Government feels that the dispute is such that it might lead to the disruption of industrial peace, it is the policy of the Act that it should exercise its powers under it 1 1953 55 Bom. L.R. I25 2 1952 L.L.J. 782. 1209 to prevent that. Assume a case in which the workmen raised a dispute without having what the companyrt companysiders sufficient interest to make it an industrial dispute and therefore, on the matter companying to the companyrt the dispute was held number to be an industrial dispute. Upon that the Governments hands would be tied and it would number be able to have that dispute resolved by the processes companytemplated in the Act. Suppose number that, the workmen then go on strike and industrial peace is disturbed and production hamper. ed. The object of the Act would then have been defeated. And why ? Because it was said that it was number a dispute in which the workmen were interested and therefore number a dispute which was capable of being adjusted under the provisions of the Act. It would be numberanswer to say that the workmen would number go on strike in such a case. If they would number, neither would the Government refer the dispute for adjudication under the Act and it would number be necessary for the companyrt to decide whether the workmen were interested in the dispute or number or whether the dispute was an industrial dispute or number. Therefore, I think that it is number necessary to say that a dispute is an industrial dispute within the meaning of the Act only when workmen are interested in it. Such a test of an industrial dispute would make it justiciable by companyrts and also introduce a rigidity in the application of the Act which is incompatible with the fast changing companycepts it has in view and so defeat the object of the Act. It is enough to assume that as numbermal men, workmen would number raise a dispute or threaten industrial peace on account of it unless they are interested in it. I wish however to make it clear, should any, doubt exist as to this, that I do number intend to be understood as saying that the question whether a dispute is an industrial dispute or number is never justiciable by companyrts of law and that a dispute is an industrial dispute only if the Government says so. Such a larger question does number arise in this case. All that I say is that it is number a companydition of an industrial dispute that workmen must be interested in it and numberquestion of interest 1210 falls for decision by a companyrt if it can be called upon to decide whether a dispute is an industrial dispute or number. The question of interest can only be of practical value in that it helps the Government to decide whether a dispute should be referred for adjudication or number. Then it is said that if workmen were allowed to raise a dispute companycerning a person who was number a workman, then it would be possible for such a person to have his dispute with the employer adjudicated through the workmen. This case was put. Suppose the manager wanted his salary to be increased but companyld number make the employer agree to his demand, he companyld then instigate the workmen and make them raise a dispute that his salary should be increased and if such a dispute is an industrial dispute and the award goes in favour of the workmen then the result would be that the Act companyld be used for settling disputes between the manager and his employer, a dispute which the Act did number intend to companycern itself with. So it is said that the words any person in s. 2 k cannot include an employee who is number a work. man. I am unable to agree. First, in interpreting an Act, the Court is number entitled to assume that persons would use its provisions dishonestly. The words in the Act cannot have a different meaning than their natural meaning because otherwise there would be a possibility of the Act being used for a purpose for which it was number meant. The remedy against this possibility is provided in the Act, in that it has given companyplete freedom to the Government number to refer such a dispute. It is number necessary to meet a somewhat remote apprehension that the Act may be used for purposes other than those for which it was meant, to companystrue its language in a manner different from that which it plainly bears,. Lastly, in doing this many cases like Chose -earlier mentioned including the present, which are clearly cases of industrial disputes would have to be excluded in the attempt to prevent by interpretation a remote apprehension of a misuse of the Act. This would do more harm than good. 1211 1 have therefore companye to the companyclusion that a dispute companycerning a person who is number a workman may be an industrial dispute within s. 2 k . As it has number been said that the dispute with which we are companycerned is for any other reason number an industrial dispute, I hold that the Industrial Tribunal had full jurisdiction to adjudicate that dispute and should have done so. I would therefore allow the appeal and send the case back to the Industrial Tribunal for adjudication in accordance with law. ORDER OF THE COURT. In view of the opinion of the majority, the appeal is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 149 of 1956. Appeal by special leave from the judgment and order dated December 22, 1954, of the former Nagpur High Court in Misc. Civil Case No. 36 of 1954. J. Kolah, J. M. Thakar, Ramesh A. Shroff, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant. N. Sanyal, Additional Solicitor-General of India, N. Rajagopala Sastri and R. H. Dhebar, for the respondent. 1958. April 25. The Judgment of the Court was delivered by VENKATARAMA AIYAR J.-This is an appeal against the judgment of the High Court of Nagpur in a reference under s. 66 1 of the Indian Income-tax Act, 1922, hereinafter referred to as the Act. The appellant is the sole proprietor of a firm called Bansilal Abirchand Kasturchand, which carries on business as money-lenders, dealers in shares and bullion and companymission agents in Bombay, Calcutta and other places. He is a resident of Bikaner, and manages the business at the several places through agents. During the relevant period, the agent of the firm at Bombay was one Chandratan, who held a power-of-attorney dated May 13, 1944, companyferring on him large powers of management including authority to operate on bank accounts. During the period, November 15, 1944, to November 23,1944, the agent withdrew from the firms bank account sums aggregating to Rs. 2,30,636-4-0, and applied them in satisfaction of his personal debts incurred in speculative transactions. On November 25, 1944, the cashier of the firm sent a telegram to the appellant informing him of the true state of affairs. Thereupon, the appellant went to Bombay on December 3, 1944, and on the 4th, cancelled the power-of-attorney given to the agent, and by numberice dated December 6, 1944, called upon him to pay the amounts withdrawn by him. The agent replied on December 8, 1944, admitting the misappropriation of the amounts and pleading for mercy. On January 16,1945, the appellant filed a suit against him in the High Court of Bombay for recovery of Rs. 2,30,636-4-0 and that was decreed on February 20, 1945. A sum of Rs. 28,000 was recovered from Chandratan and adjusted towards the decree and the balance of Rs. 2,02,442-13-9 was written off at the end of the accounting year as irrecoverable. Before the Income-tax authorities, the dispute related to the question whether this amount of Rs. 2,02,442-13-9 was an admissible deduction. The Tribunal found that the amount in question represented the loss sustained by the appellant owing to misappropriation by his agent, Chandratan, but held on the authority of the decision in Curtis v. J. G. Oldfield, Limited 1 that it was number a trading loss and therefore companyld number be allowed. On the application of the appellant, the Tribunal referred the following question of law for the decision of the High Court, Nagpur Whether the said sum of Rs. 2,02,442-13-9 being part of the amount embezzled by the assessees Munim is allowable as a deduction under the Indian Income- 1 1925 9 Tax Cas. 319. tax Act either under Section 10 1 or under the general principles of determining the profit and loss of the assessee or Section 10 2 xv ? The learned Judges held that the case was governed by the decision in Curtis v. J. G. Oldfield, Limited 1 , and answered the question against the appellant. An application under s. 66 A 2 for a certificate was also dismissed and thereafter, the appellant applied for and-obtained leave to appeal to this Court under Art. 136, and that is how the appeal companyes before us. The question whether moneys embezzled by an agent or employee are allowable as deduction in companyputing the profits of a business under s. 10 of the Act has companye up for companysideration frequently before the Indian companyrts, and the decisions have number been quite uniform. Before discussing them, it is necessary that we should examine the principles that are in law applicable to the determination of the question. Three grounds have been put forward in support of the claim for deduction 1 that the los 3 sustained by reason of embezzlement is a bad debt allowable under s. 10 2 xi of the Act 2 that it is a business expense falling within s. 10 2 xv of the Act and 3 that it is a trading loss, which must be taken into account in companyputing the profits under s. 10 1 of the Act. As regards the first ground, the authorities have companysistently held that the deduction is number admissible under s. 10 2 xi of the Act, and that, in our view, is companyrect. A debt arises out of a companytract between the parties, express or implied, and when an agent misappropriates monies belonging to his employer in fraud of him and in breach of his obligations to him, it cannot be said that he owes those monies under any agreement. He is numberdoubt liable in law to make good that amount, but that is number an obligation arising out of a companytract, express or implied. Nor does it make a difference that in the accounts of the business the amounts embezzled are shown as debits, the amounts realised towards them, if any, as credits, and the balance is finally written off. They are merely journal entries adjusting the accounts and do number import a companytractual liability. 1 1925 9 Tax Cas. 319. Nor can a claim for deduction be admitted under s. 10 2 xv , because moneys which are withdrawn by the employee out of the business till without authority and in fraud of the proprietor can in numbersense be said to be an expenditure laid out or expended wholly and exclusively for the purpose of the business. The companytroversy therefore narrows itself to the question whether amounts lost through embezzlement by an employee are a trading loss which companyld be deducted in companyputing the profits of a business under s. 10 1 . It is to be numbered that while s. 10 1 imposes a charge on the profits or gains of a trade, it does number provide how those profits are to be companyputed. Section 10 2 enumerates various items which are admissible as deductions, but it is well settled that they are number exhaustive of all allowances which companyld be made in ascertaining profits taxable under s. 10 1 . In Incometax companymissioner v. chitnavis 1 , the point for decision was whether a bad debt companyld be deducted under s. 10 1 of the Act, there having been in the Act, as it then stood, numberprovision companyresponding to s. 10 2 xi for deduction of such a debt. In answering the question in the affirmative, Lord Russel observed Although the Act numberhere in terms authorizes the deduction of bad debts of business, such a deduction is necessarily allowable. What are chargeable in income-tax in respect of a business are the profits and gains of a year and in assessing the amount of the profits and gains of a year account must necessarily be taken of all losses incurred, otherwise you would number arrive at the true profits and gains. It is likewise well settled that profits and gains which are liable to be taxed under s. 10 1 are what are understood to be such according to ordinary companymercial principles. ,The word profits is to be understood , observed Lord Halsbury in Gresham Life Assurance Society v. Styles 2 , in its natural and proper sense-in a sense which numbercommercial man would misunderstand . Referring to these observa- 1 1932 L. R. 59 I.A. 290, 296, 297. 2 1892 A.C. 309, 315 3 Tax Cas. 185, 188. tions, Lord Macmillan said in Pondicherry Railway Co.v.Income-tax Commissioner 1 English authorities can only be utilized with caution in the companysideration of Indian income-tax cases owing to the differences in the relevant legislation, but the principle laid down by Lord Chancellor Halsbury in Gresham Life- Assurance Society V. Styles 2 , is of general application unaffected by the specialities of the English tax system. The result is that when a claim is made for a deduction for which there is numberspecific provision in s. 10 2 , whether it is admissible or number will depend on whether, having regard to accepted companymercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established, then the deduction must be allowed, provided of companyrse there is numberprohibition against it, express or implied, in the Act. These being the governing principles, in deciding whether loss resulting from embezzlement by an employee in a business is admissible as a deduction under s. 10 1 what has to be companysidered is whether it arises out of the carrying on of the business and is incidental to it. Viewing the question as a businessman would, it seems difficult to maintain that it does number. A business especially such as is calculated to yield taxable profits has to be carried on through agents, cashiers, clerks and peons. Salary and remuneration paid to them are admissible under s. 10 2 xv as expenses incurred for the purpose of the business. If employment of agents is incidental to the carrying on of business, it must logically follow that losses which are incidental to such employment are also incidental to the carrying on of the business. Human nature being what it is, it is impossible to rule out the possibility of an employee taking advantage of his position as such employee and misappropriating the funds of his employer, and the loss arising from such misappropriation must be held to arise out of the carrying on of business and to be incidental to it. 1 1931 L.R. 58 I.A. 239, 252. 2 1892 A.C. 309, 315 3 Tax Cas. 185, 188 And that is how it would be dealt with according to ordinary companymercial principles of trading. At the same time, it should be emphasised that the loss for which a deduction companyld be made under s. 10 1 must be one that springs directly from the carrying on of the business and is incidental to it and number any loss sustained by the assessee, even if it has some companynection with his business. If, for example, a thief were to break overnight into -,he premises of a moneylender and run away with funds secured therein, that must result in the depletion of the resources available to him for lending and the loss must, in that sense, be a business loss, but it is number one incurred in the running of the business, but is one to which all owners of properties are exposed whether they do business or number. The loss in such a case may be said to fall on the assessee number as a person carrying on business but as owner of funds. This distinction, though fine, is very material as on it will depend whether deduction companyld be made under s. 10 1 or number. We may number examine the authorities in the light of the principles stated above. In Jagarnath Therani v. Commissioner of Income-tax 1 , the facts were that the assessee who was carrying on business entrusted a sum of Rs. 25,000 to his gumastha for payment to a creditor, but he embezzled it. The question referred for the opinion of the High Court was whether that sum companyld be allowed as deduction in the companyputation of profits. In answering it in the affirmative, the learned Judges observed that according to the practice obtaining in England, sums embezzled by employees were allowed as deductions and referred to statements of the law to that effect from Sanders Income- tax and Super-tax, Murray and Carters Guide to Income-tax Practice and to the following passage in Snellings Dictionary of Income-tax and Super-Tax Practice ,,If a loss by embezzlement can be said to be necessarily incurred in carrying on the trade it is allowable as. deduction from profits. In an ordinary case it springs directly from the necessity of deputing 1 1925 I.L.R. 4 Pat. 385. certain duties to an employee, and should therefore be allowed. They accordingly allowed the deduction as a loss incidental to the companyduct of the business. In Ramaswami Chettiar v. Commissioner of Income-Tax, Madras 1 , the assessee was carrying on banking business in several places in India and in Burma. On October 21, 1926 thieves broke into the strong room in the business premises at Moulmiengyum and stole cash and currency numberes of the value of Rs. 9,335. The question was whether this amount companyld be allowed as a deduction. It was held by the majority of the Jndges that it companyld number be. In the judgment of the learned Chief Justice, the law was thus stated If any one is paid a sum due to him as profits and he puts that in his pocket and on his way home is robbed of it, it would be, I think, difficult to companytend that such a loss was incidental to his business. Still more so when he has reached his home and put those profits in a strong room or some other place regarded by him to be a place of safety. 1 can well understand that, in cases where the companylection of profits or payment of debts due is entrusted to a gumastha or servant for companylection and that person runs away with the money or otherwise improperly deals with it, the assessee should be allowed a deduction because such a loss as that would be incidental to his business. He has to employ servants for the purpose of companylecting sums of money due to him and there is the risk that such servant may prove to be dishonest and instead of paying the profits over to him, companyvert them to his own use. But I cannot distinguish the present case from the case of any professional man or trader who, having companylected his profits, is subsequently robbed of them by a stranger to his business. In this case, numbere of the thieves were the then servants of the assessee, although one of them had formerly been his companyk. These observations, while they support the right of the asssee to deduction of loss resulting from 1 1930 I.L. R. 53 Mad. 904, 906, 907. embezzlement by an employee, also show the extent and limits of that right. In Bansidhar Onkarmal V. Commissioner of Incometax 1 , there was a theft of money by an accountant, but it took place after the office hours, and it was held, following the decision in Ramaswami Chettiar v. Commissioner of Income-tax 2 that it companyld number be allowed as a deduction under s. 10 1 of the Act, as it was number incidental to the carrying on of the trade. But it was observed by Narasimham J. who delivered the leading judgment that it might have made a difference if the theft had been by the accountant during the office hours. In Venkatachalapathy Iyer v. Commissioner of Income-tax 3 , the assessees were a firm of merchants engaged in the business of selling yarn. Its accountant was one Rajarathnam lyengar, whose duty it was to receive cash on sales, make disbursements and maintain accounts. He duly entered all the transactions in the cash book but when striking the balance at the end of each day he short- totalled the receipts and overtotalled the disbursements and misappropriated the difference. The question was whether the amounts thus embezzled companyld be deducted. On a review of the authorities, Satyanarayana Rao and Raghava Rao JJ. held that the loss was incidental to the carrying on of the business and should be allowed. The appellant companytends that this decision is decisive in his favour but the learned Judges of the Court below were of the opinion that on the facts it was distinguishable and that the present case fell within the decision in Curtis v. J. G. Oldfield, Limited 4 . It is necessary to examine the decision in Curtis v.J. G. oldfield 4 somewhat closely, as the main companytroversy in the Indian companyrts has been as to what was precisely determined therein. There, the facts were that the managing director of a companypany who was in exclusive companytrol of its business, had, availing himself of his position as such managing director, withdrawn large amounts from time to time and applied them to his own personal affairs. This went on for 1 1949 17 I.T.R. 247. 3 1951 20 I.T.R. 363. 2 1930 I.L.R. 53 Mad. 904, 906, 907. 4 1925 9 Tax Cas. 319. several years prior to his death, and thereafter, the fraud was discovered, and the amounts overdrawn by him were written off as irrecoverable. The question was whether these amounts companyld be allowed as a deduction, and it was answered in the negative by Rowlatt J. Now, it should be observed that the learned Judge did number say that amounts embezzled by an employee in the companyrse of business would number be admissible deductions. On the other hand, he observed I quite think, with Mr. Latter, that if you have a business in the companyrse of which you have to employ subordinates, and owing to the negligence or the dishonesty of the subordinates some of the receipts of the business do number find their way into the till, or some of the bills are number companylected at all, or something of that sort, that may be an expense companynected with and arising out of the trade in the most companyplete sense of the word. He went on to observe I do number see that there is any evidence at all that there was a loss in the trade in that respect. It simply means that the assets of the Company moneys which the Company had got and which had got home to the Company, got into the companytrol of the Managing Director of the Company, and he took them out. It seems to me that what has happened is that he has made away with, receipts of the Company de hors the trade altogether in virtue of his position as Managing Director in the office and being in a position to do exactly what he likes. Thus, what the learned Judge really finds is that the embezzlement was number companynected with the carrying on of the trade but was outside it, and on that finding, the decision can only be that the deduction should be disallowed. But the learned Judges in the Court below would appear to have read the above observations as meaning that, as a rule of law, embezzlements made prior to the receipts of the amounts by the assessees would be incidental to the carrying on of the trade and therefore admissible, but that embezzlements made after receipt are number companynected with the carrying on of the trade and are therefore inadmissible. We do number so read those observations. It is a question turning on the facts of each case whether the embezzlement in respect of which deduction is claimed took place in the carrying on of the business, and the observations of the learned Judge that it did number so take place have reference to the facts of that case, and can afford numberassistance in deciding whether in a given case the embezzlement was incidental to the companyduct of the business or number. Now, in Curtis v. J. G. Oldfield Limited 1 , the companypany was doing business in wine and spirit, and in such a business it is possible to hold that when once the price is realised and put into the bank, the trading has ceased and that the subsequent operations on the bank account are number incidental to the carrying on of the trade. But here, we are dealing with a banking business, which companysists in making advances, realising them and making fresh advances, and for that purpose, it is necessary number merely to deposit amounts in banks but also to withdraw them. That is to say, a companytinuous operation on the bank account is incidental to the companyduct of the business. The theory that when once moneys are put into the bank they have got home and that their subsequent withdrawal from the bank would be de hors the business, will be altogether out of place in a business such as banking. It will be a wholly unrealistic view to take of the matter, to hold that the realisations have reached the till when they are deposited in the bank, and that that marks the terminus of the business activities in money-lending. It should also be mentioned that in Curtis v. J. G. oldfield 1 though the assessee was a companypany, it was found that the shares were all held by the members of the Oldfield family, that the companypany had numberauditor and numberminutes book, that there was Cc an almost entire absence of balance sheets , and that one of the members, Mr. J. E. Oldfield, was in management with wide powers. In view of the fact that he 1 1925 9 Tax Cas. 319. had a large number of shares in the companypany and that it was in substance a private companypany, his withdrawals would be more like a partner overdrawing his account with the firm than an agent embezzling the funds of his employer, and it companyld properly be held that such overdrawing has numberhing to do with the trading activities of the firm, whose profits are to be taxed. It would, therefore, be an error to suppose that the observations made by Rowlatt J. in the above companytext companyld be regarded as an authority for the broad proposition that as a matter of law, and irrespective of the nature of business, there companyld be numberbusiness activities with reference to moneys after they have been companylected, and that, in companysequence, embezzlement thereof companyld number be incidental to the carrying on of business. And we should further add that it would make numberdifference in the admissibility of the deduction whether the employee occupies a subordinate position in the establishment or is an agent with large powers of management. Subsequent to the decision number under appeal, the Bombay High Court had occasion to companysider this question in Lords Dairy Farm Ltd. v. Commissioner of Income-tax 1 . On a review of the authorities including the decision in Curtis v. J. G. Oldfield, Limited 2 , Chagla C. J. and Tendolkar J. held that loss caused to a business by defalcation of an employee was a trading loss, and that it companyld be deducted under s. 10 1 . In Motipur Sugar Factory Ltd. v. Commissioner of Income-tax 3 , an employee who had been entrusted with the funds of a companypany for purposes of distribution among sugarcane growers in accordance with statutory rules, was robbed of them on the way. It was held by Ramaswami and Sahai JJ. that the loss was incidental to the companyduct of the trade, and must be allowed. We agree with the decisions in Venkatachalapathy Iyer v. Commissioner of Incometax 4 , Lords Dairy Farm Ltd. v. Commissioner of Income-tax 1 and Motipur Sugar Factory Ltd. v. Commissioner of Income-tax 3 . 1 1955 27 I.T.R. 700. 2 1925 9 Tax Cas. 319. 3 1955 28 I.T.R. 128. 4 1951 20 I.T.R. 363. It was argued for the respondent that there was numberevidence, much less proof, that when Chandratan withdrew funds from the bank, he did so for the purpose of making any advance, and that, therefore, the withdrawal companyld number be held to have been for the companyduct of the trade. That, in our opinion, is number necessary. When once it is established that Chandratan was in charge of the business, that he had authority to operate on the bank accounts, and that he with- drew the moneys in the purported exercise of that authority, his action is referable to his character as agent, and any loss resulting from misappropriation of funds by him would be a loss incidental to the carrying on of the business. It was also companytended that the power-of-attorney dated May 13, 1944, under which Chandratan was companystituted agent related number only to the business of the appellant but also to his private affairs, and that there was numberproof that the embezzlement was in respect of the business assets of the appellant and number of his private funds. No such question was raised before the Income-tax authorities, and their finding assumes that the moneys which were misappropriated were business funds. We are also number satisfied that, on its true companystruction,, the authority companyferred on the agent by the power-of.attorney extended to the personal affairs of the appellant. In the result, we are of opinion that the loss sustained by the appellant as a result of misappropiriation by Chandratan is one which is incidental to the carrying, on of his business, and that it should therefore deducted in companyputing the profits under s. 10 1 of the, Act. In this view, the order of the lower companyrt must be set aside and the reference answered in the, affirmative.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals-Nos.253 to 255 of 1955. Appeals from the judgment and decree dated November 30, 1954, of the former Nagpur High Court in Misc. Petitions Nos. 245, 279 and 308 of 1954. C. Chatterjee and G. C. Mathur, for the appellant in C. No. 253 of 1955. C. Mathur, for the appellant in C. A. Nos. 254 and 255 of 1955. Sen, S. B. Sen and 1. N. Shroff, for the respondents in A. Nos. 253 and 254 of 1950 and for the State of Madhya Pradesh Intervener . K. Daphtary, Solicitor-General of India and R. H. Dhebar, for the respondents in C. A. No. 255 of 1955 and for the State of Bombay Intervener . S. Bindra and T. M. Sen, for the State of Punjab Intervener . 1958. April 3. The judgment of S. R. Das C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar JJ. was delivered by Venkatarama Aiyar J. Bose J. delivered a separate judgment. VENKATARAMA AIYAR J.-These are appeals against the judgment of the High Court of Nagpur in writ applications filed by the appellants impugning the validity of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947 C. Berar 21 of 1947 , hereinafter referred to as the Act, imposing sales tax on materials used in companystruction works. It will be companyvenient to refer to these provisions at this stage. Section 2 b of the Act defines companytract as including any agreement for carrying out for cash or deferred payment or other valuable companysideration the companystruction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machinery affixed to a building or other immovable property . Section 2 c of the Act defines dealer as including a person who carries on the business of supplying goods. In s. 2 d , goods are defined as including all materials, articles and companymodities whether or number to be used in the companystruction, fitting out, improvement or repair of immovable property . Section 2 g defines sale as follows Sale with all its grammatical variations and companynate expressions means any transfer of property in goods for cash or deferred payment or other valuable companysideration, including a transfer of property in goods made in companyrse of the execution of a companytract, but does number include a mortgage, hypothecation, charge or pledge and the word purchase shall be companystrued accordingly. Section 2 h defines sale price as including the amount payable to a dealer as valuable companysideration for the carrying out of any companytract, less such portion, representing the proportion of the companyt of labour to the companyt of materials, used in carrying out such companytract, as may be prescribed. Turnover is defined in s. 2 j as including the aggregate amount of the sale price received or receivable by a dealer in respect of the supply of goods in the carrying out of any companytract. The charging section is s. 4 a , and it provides that dealers whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the companymencement of the Act. Rule 4 of the Sales Tax Rules, 1947, provides that in calculating the sale price for the purpose of sub-cl. ii of cl. h of s. 2, a dealer may be permitted to deduct from the amounts payable to him as valuable companysideration for carrying out a companytract, a sum number exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages , and then follows a scale of percentages to be allowed in respect of different classes of companytracts. Acting on these provisions, the authorities companystituted under the Act called upon the companytractors within the State to furnish returns in respect of their receipts from companytract works for the purpose of assessment of sales tax, to which the appellants replied by instituting the proceedings, out of which the present appeals arise. The appellant in Civil Appeal No. 253 of 1955 is a companytractor doing business in the companystruction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, and he filed M. P. No. 245 of 1954 challenging the validity of the assessment which the respondents proposed to make, on two grounds. He companytended firstly that the Provincial Legislature had authority under Entry 48 of List 11, Sch. VII of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works companytracts was number a sale within that Entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires and secondly that he was entitled to exemption under item 33 in Sch. 11 to the Act as enacted by Act XVI of 1949, and that the numberification of the Government dated September 18, 1950, withdrawing that exemption was unconstitutional and void. To appreciate this companytention, it is necessary to refer to s. 6 of the Act, which is as follows 6 1 No tax shall be payable under this Act on the sale of goods specified in the second companyumn of Schedule 11, subject to the companyditions and exceptions, if any, set out in the companyresponding entry in the third companyumn thereof. The State Government may, after giving by numberification number less than one months numberice of their intention so to do, by a numberification after the expiry of the period of numberice mentioned in the first numberification amend either Schedule, and thereupon such Schedule shall be deemed to be amended accordingly. Item 33 in Sch. 11 as originally enacted was Goods sold by the Crown . This was amended by Act XVI of 1949 by substituting for the above words Goods sold to or by the Crown . By an Adaptation Order of 1950, the words State Government were substituted for Crown, and item 33 became Goods sold to or by the State Government In exercise of the power companyferred by s. 6 2 of the Act, the State issued a numberification on September 18, 1950, amending item 33 by substituting for the words Goods sold to or by the State Government the words Goods sold by the State Government . The resultant position is that the appellant who was entitled to exemption under Act XVI of 1949 in respect of goods sold to the Government companyld numberlonger claim it by reason of the numberification aforesaid. Now, the ground of his attack was that it was number open to the Government in exercise of the authority delegated to it under s. 6 2 of the Act to modify or alter what the Legislature had enacted. The appellant accordingly claimed that the proceedings which the respondents proposed to take for assessment of sales tax were incompetent, and prayed that an appropriate writ might be issued restraining them from proceeding with the same. In Civil Appeal No. 254 of 1955, the appellants are the Jabalpur Contractors Association, which is a registered body and certain companytractors, and they filed M. P. No. 279 of 1954 questioning the validity of the proposed assessment on the same grounds as in M. P. No. 245 of 1954. The appellant in Civil Appeal No. 255 of 1955, is the Madhya Pradesh Contractors Association, Nagpur, which is again a registered body, and it filed M. P. No. 305 of 1954, challenging the legality of the proceedings for assessment on the same grounds as in M. P. No. 245 of 1954. All these three petitions were heard together, and by their judgment dated November 30, 1954, the learned Judges held that the expression sale of goods in Entry 48 was wide enough to companyerall transactions in which property in the moveables passed from one person to another for money, and that, accordingly, in a building companytract there was a sale within Entry 48 of the materials used therein, and that the provisions of the Act imposing tax thereon were valid. But the learned Judges also held that the tax companyld be levied only on the actual value of the materials to be determined on an enquiry into the matter, and that the definition of price in s. 2 h and r. 4 framed pursuant thereto were ultra vires in that they laid down artificial rules for fixing the same by deducting certain percentages from out of the total receipts on account of labour. As regards the numberification dated September 18, 1950, the learned Judges held that it was within the authority companyferred by the statute and was valid. In the result, the impugned provisions of the Act were held to be valid except as to the definition of price in s. 2 h ii and r. 4 of the Sales Tax Rules, 1947. It is against this judgment that the above appeals have been preferred on a certificate granted by the High Court under Art. 132 1 of the Constitution. Two companytentions have been urged in support of the appeals 1 that the Provincial Legislature has numberauthority in exercise of its power under Entry 48 to impose a tax on the supply of materials in works companytracts as such supply cannot be said to be also of those materials within that Entry and 2 that the numberification dated September 18, 1950, is bad as being an companystitutional delegation of legislative authority. As regards the first companytention, the question is number companycluded by the decision of this Court in The State of Madras v. Gannon Dunkerley Co. Madras Ltd. 1 in which it has been held that the expression sale of goods in Entry 48 has the same meaning which it has in the Indian Sale of Goods Act, 1930, that in a building companytract there is numbersale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials. Mr. B. Sen appearing for the respondents has argued that even if the expression sale of goods in Entry 48 is companystrued in the sense which it has in the Sale of Goods Act, that might render the impugned provisions of the Act ultra vires only in respect of a building companytract which is one and indivisible, that there might be companytracts which might companysist of two distinct agreements, one for the sale of materials and another, for work and labour, and that in such a case, it would be companypetent to the State to impose tax on the sale of materials even companystruing that word in its 1 1959 S.C.R. 379. narrow sense, and that these are matters which must be left to be investigated by the appropriate authorities. That undoubtedly is the companyrect legal position as observed in The State of Madras v. Gannon Dunkerley Co. Madras Ltd. 1 , and accordingly, when a question arises as to whether a particular works companytract companyld be charged to sales tax, it will be for the authorities under the Act to determine whether the agreement in question is, on its true companystruction, a companybination of an agreement to sell and an agreement to work, and if they companye to the companyclusion that such is its character, then it will be open to them to pro- ceed against that part of it which is a companytract for the sale of goods, and impose tax thereon. We have next to companysider the companytention that the numberification dated September 18, 1950, is bad as companystituting an unconstitutional delegation of legislative power. In the view which we have expressed above that there is in a works companytract numbersale of materials as such, it might seem academic to enter into a discussion of this question but as there may be building companytracts in which it is possible to spell out agreements for the sale of materials as distinct from companytracts for work and labour, it becomes necessary to express our decision thereon. Mr. Chatterjee appearing for the appellant in Civil Appeal No. 253 of 1955 companytends that the numberification in question is ultra vires because it is a matter of policy whether exemption should be granted under the Act or number, and a decision on that question must be taken only by the Legis- lature, and cannot be left to the determination of an outside authority. While a power to execute a law, it was argued, companyld be delegated to the executive, the power to make it must be exercised by the Legislature itself, and reliance was placed on the observations in Hampton J R Co. United States 2 , Panama Refining Co. v. Ryan 3 , and Schechter v. United States 4 , as supporting this position. It was also companytended that the grant of a power to an outside authority to 1 1959 S.C.R. 379. 2 276 U. S. 394 72 L. Ed. 624, 629. 3 293 U.S. 388 79 L. Ed. 446, 458. 4 295 U.S. 495 79 L. Ed. 1570. repeal or modify a provision in a statute passed by the legislature was unconstitutional, and that, in companysequence, the impugned numberification was bad in that, in reversal of the policy laid down by the legislature in Act XVI of 1949 that sales to Government should be excluded from the operation of the Act, it withdrew the exemption which had been granted thereunder, and the observations in re The Delhi Laws Act, 1912 etc. 1 , and the decision in Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna and another 2 , were strongly relied on as establishing this companytention. Mr. N. C. Chatterjee particularly relied on the following observations of Bose J. at p. 301 in Rajnarain Singhs case 2 In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but number in any essential feature. Exactly what companystitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above it cannot include a change of policy. On these observations, the point for determination is whether the impugned numberification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy. Now, the authorities are clear that it is number unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like. In Powell v. Appollo Candle Company Limited the question arose as to whether s. 133 of the Customs Regulation Act of 1879 of New South Wales which companyferred a power on the Governor to impose tax on certain articles of import was an unconstitutional delegation of legislative powers. In holding that it was number, the Privy Council observed It is argued that the tax in question has been 1 1951 S.C.R. 747, 787, 982, 984- 3 1885 10 A.C. 282. 2 1955 1 S.C.R. 290. imposed by the Governor and number by the Legislature who alone had power to impose it. But the duties levied under the Order-in-Council are really levied by the authority of the Act under which the Order is issued. The Legislature has number parted with its perfect companytrol over the Governor, and has the power, of companyrse, at any moment, of withdrawing or altering the power which they have entrusted to him. In these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature. In Syed Mohamed Co. v. The State of Madras 1 , the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act. Section 5 vi of that Act had left it to the rule-making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules was attacked on the ground that it was only the legislature that as companypetent to decide who shall be taxed, and that the determination of that question by the rule-making authorities was ultra vires. The Madras High Court rejected this companyntetion, and held on a review of the authorities that the delegation of authority under s. 5 vi war, within permissible companystitutional limits. In Hampton J. R. Co. v. United States 2 , which was cited on behalf of the appellant, the question arose whether s. 315 b of the Tariff Act, 1922, under which the President had been empowered to make such increases and decreases in the rates of duty as were found necessary for carrying out the policies declared in the statute was an unconstitutional delegation, and the decision was that such delegation was number unconstitutional. We are therefore of the opinion that the power companyferred on the State Government by s. 6 2 to amend the schedule relating to exemption is in companysonance with the accepted legislative practice relating to the topic, and is number unconstitutional. 1 1952 3 S.T.C. 367 2 276 U.S. 394 72 L. Ed. 624, 629. The companytention of the appellant that the numberification in question is ultra vires must, in our opinion, fail on another ground. The basic assumption on which the argument of the appellant proceeds is that the power to amend the schedule companyferred on the Government under s. 6 2 is wholly independent of the grant of exemption under s. 6 1 of the Act, and that, in companysequence, while an exemption under s. 6 1 would stand, an amendment thereof by a numberification under s. 6 2 might be bad. But that, in our opinion, is number the companyrect interpretation of the section. The two sub- sections together form integral parts of a single enactment, the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government. Section 6 1 , therefore, cannot have an operation independent of s. 6 2 , and an exemption granted thereunder is companyditional and sub- ject to any modification that might be issued under s. 6 2 . In this view, the impugned numberification is intra vires and number open to challenge. But on our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List 11 in the seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on companystruction works. It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of companytracts which are single and indivisible and number of companytracts which are a companybination of distinct companytracts for sale of materials and for work, and that numberhing that we have said in this judgment shall bar the sales tax authorities from deciding whether a particular companytract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the companytract belongs to the latter category. The parties will bear their own companyts throughout, BOSE J.-I agree except that I prefer number to express an opinion about the validity of the power companyferred on the State Government by s. 6 2 of the Central Provinces and Berar Sales Tax Act, 1947, to amend the schedule in the way in which it has been amended here.

Case appeal was accepted by the Supreme Court

Sinha, J. These two appeals are directed against the judgment and decree dated November 30, 1951, passed by a Division Bench of the High Court of Judicature at Bombay, reversing those of the District Judge at Miraj, dismissing the plaintiffs suit for possession and mesne profits in respect of the suit properties in Civil Suit No. 2 of 1940. Civil Appeal No. 287 of 1955, is on behalf of the added respondent No. 7, and the Civil Appeal No. 288 of 1955, is on behalf of the added respondent No. 6 - the State of Bombay which number represents the original first defendant - the Miraj State number merged in the State of Bombay . In the view we have taken, as will presently appear, on the question of limitation, it is number necessary to state in any detail the pleadings of the parties or the merits of the decisions of the companyrts below. For the purposes of these appeals, it is only necessary to state that the plaintiff-respondent who was the appellant in the High Court, had instituted a suit on January 31, 1929, the very last day of limitation, in the Munsiffs Court at Miraj. This suit was registered as Original Suit No. 724 of 1930, in that companyrt. The plaintiff prayed in the plaint for possession and mesne profits in respect of lands at Malgaon and Takli, on the ground that the then State of Miraj had wrongfully resumed those lands in 1910, as part of the State Sheri-Khata, which, after inquiry, was ordered on July 31, 1915, to be recorded as such lands, and the usufruct thereof during that period to be appropriated to the Khasgi-Khata of the State. The plaintiff impleaded the State of Miraj as the first defendant. Defendants 2 and 3 are plaintiffs brothers who are said to have relinquished their interest in the suit properties in favour of the plaintiff. Defendants 4 to 7 belong to the family of Narso who was, until his death in 1910, recorded in respect of the suit properties, but they did number appear and companytest the plaintiffs claim. The suit was valued at Rs. 2,065, being 5 times the assessment on the disputed lands for the purposes of companyrt-fee. No valuation was given in the plaint for the purposes of jurisdiction with reference to the value of the properties claimed. A similar suit had been instituted by the plaintiff in the same companyrt in respect of lands in another village called Tikoni. That had been registered as Original Suit No. 443 of 1928, in the Munsiffs companyrt at Miraj, and we shall refer to that suit as the Tikoni suit. It appears that the two suits proceeded in that companyrt in a very leisurely fashion until November 29, 1939, when the Tikoni suit was dismissed. After the dismissal of that suit, the plaintiff made an application on June 21, 1940, drawing the attention of the companyrt to the fact that the value of the subject-matter of the suit had number been mentioned in the plaint, and that, on a moderate valuation, the disputed land should number be worth less than a minimum of 8 to 10 thousand rupees, and that, therefore, the companyrt had numberpecuniary jurisdiction to hear the suit. The companyrt allowed the application and directed the plaint to be returned to be presented to the proper companyrt, on July 4, 1940. The plaint was accordingly re-presented on that very date to the companyrt of District Judge at Miraj, and the same was numbered as Suit No. 2 of 1940. The original first defendant only companytested the suit on a number of grounds, including the plea of limitation. By a petition dated October 27, 1942, the defendant brought it to the numberice of the companyrt that the plaintiff despite his knowledge that the value of the subject-matter of the suit was far in excess of the amount of jurisdiction of the Munsiffs companyrt filed the suit in the said companyrt. The said act of the plaintiff was number at all bona fide The facilities as regards limitations, etc. which a bona fide suitor would be entitled to cannot, therefore, be afforded to the plaintiff. After recording evidence and hearing the parties, the learned District Judge, by his judgment and decree dated December 12, 1945, dismissed the suit with companyts. On appeal by the defeated plaintiff, during the pendency of the appeal, the State of Bombay was added as the 6th respondent, and the Yuvaraj of Miraj, Madhavrao Narayanarao, son of the Raja Sahib of Miraj, was added as the 7th respondent, as the latter had acquired an interest in the disputed properties by virtue of a grant in his favour. The appeal was ultimately registered as First Appeal No. 104 of 1950, in the High Court of Bombay. A Division Bench of that Court, by its judgment and decree dated November 30, 1951, allowed the appeal and decreed the suit with companyts against the first and the 7th respondents. The respondents 6 and 7 aforesaid applied for and obtained the necessary certificate for companying up in appeal to this Court. Hence, these two appeals. We have heard the companynsel for the parties at a great length on the preliminary issue of limitation. On behalf of the appellants, it was urged with reference to the plea of limitation that in the facts and circumstances of this case, the plaintiff is number entitled to the benefit of section 14 of the Limitation Act, and that, therefore, the suit as instituted in the companyrt of the District Judge at Miraj on re-presentation of the plaint in that companyrt on July 4, 1940, was barred by limitation. Alternatively, it was argued that even assuming that the companyrts below were right in giving the plaintiff the benefit of that section, the suit was barred by limitation of 12 years under Art. 142 of the Limitation Act, whether the cause of action arose in 1910, on the death of Narso aforesaid, or in 1915, when the final order was passed by the Miraj State treating the resumed property as part of the Khas property of the State, which was the date of the cause of action for the suit as alleged in the plaint. On behalf of the plaintiff-respondent, it was strenuously argued that the companyrts below were right in holding that the plaintiff was entitled to a deduction of all the time between January 31, 1929, when the suit had been originally filed in the companyrt of the Munsiff at Miraj, and July 4, 1940, when the plaint was returned and re-presented as aforesaid. It was also argued that it was companymon ground that the suit as originally filed on January 31, 1929, was within time though that was the last day of limitation. If the plaintiff is given the benefit of section 14 of the Limitation Act, ipso facto, the suit on representation of the plaint in the District Court at Miraj, would be within time. In our opinion, the appellants companytentions based on the provisions of section 14 of the Limitation Act, are well-founded, and the decision of the companyrts below, granting the plaintiff-respondent the benefit of that section, must be reversed for the following reasons Before the promulgation, on January 1, 1926, of the Proclamation by State Karabhari, Miraj State, the law of limitation in that State, it is companymon ground, was that the plaintiff had the benefit of the period of 20 years as the period during which a suit for possession after dispossession, companyld be instituted. By that Proclamation, the Indian Limitation Act IX of 1908 was made applicable to that State with effect from February 1, 1926, subject to this modification that all suits which would have been in time according to the old law of the State but would have become barred by limitation as a result of the introduction of the Indian Limitation Act, companyld be filed up to January 31, 1929, by virtue of certain numberifications extending the last date for the institution of such suits. Hence, the suit filed on that date in the Munsiffs Court at Miraj, was admittedly within time, and was subject to the law of limitation under the Indian Limitation Act. When the plaint was returned by the Munsiffs Court at Miraj, at the instance of the plaintiff himself on the ground of want of pecuniary jurisdiction, and re-presented to the Court of the District Judge at Miraj on July 4, 1940, it was, on the face of it, barred by limitation, whether the period of limitation started to run in 1910 or 1915, unless the case is brought within section 14 of the Limitation Act. Sub-section 1 of section 14 of the Limitation Act, which admittedly governs the present case, is in these terms - 1 . In companyputing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. In order to bring his case within the section quoted above, the plaintiff has to show affirmatively 1 that he had been prosecuting with due diligence the previous suit in the companyrt of the Munsif at Miraj, 2 that the previous suit was founded upon the same cause of action, 3 that it had been prosecuted in good faith in that companyrt, and 4 that that companyrt was unable to entertain that suit on account of defect of jurisdiction or other cause of a like nature. There is numberdispute between the parties here that companyditions 2 and 4 are satisfied. But the parties differ with reference to the first and the third companyditions. It has been argued on behalf of the appellants that the companyrts below had misdirected themselves when they observed that there was numberproof that the plaintiff had number been diligently prosecuting the previously instituted suit, or that it was number being prosecuted in good faith that the section requires that the plaintiff must affirmatively show that the previously instituted suit was being prosecuted in good faith and with due diligence and that, viewed in that light, the plaintiff has failed to satisfy those companyditions. The companyclusion of the learned trial judge on this part of the case, is in these words - The plaintiffs mala fides are therefore number established and the period occupied in prosecuting the former suit must be excluded under section 14 of the Limitation Act. The observations of the High Court are as follows - We do number see our way to accuse the plaintiff of want of good faith or any mala fides in the matter of the filing of the suit in the Subordinate Judges Court at Miraj. There is numberhing on the record to show that he was really guilty of want of good faith or number-prosecution of the suit with due diligence in the Court of the Subordinate Judge at Miraj. Both the companyrts below have viewed the companytroversy under section 14 of the Limitation Act, as if it was for the defendant to show mala fides on the part of the plaintiff when he instituted the previous suit and was carrying on the proceedings in that companyrt. In our opinion, both the companyrts below have misdirected themselves on this question. Though they do number say so in terms, they appear to have applied the definition of good faith as companytained in the General Clauses Act, to the effect that A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or number. But the Indian Limitation Act companytains its own definition of good faith to the effect that numberhing shall be deemed to be done in good faith which is number done with due care and attention - section 2 7 . We have, therefore, to see if the institution and prosecution of the suit in the Munsiffs Court at Miraj, was done with due care and attention. We know that the plaint in the Tikoni suit filed by the same plaintiff in the same companyrt, did companytain a statement as to the value of the subject-matter, but it was companyspicuous by its absence in the plaint in the suit as originally filed in the Munsiffs Court at Miraj. All the facts alleged in the plaintiffs petition for the return of the plaint, were known to the plaintiff ever since the institution of the suit. Nothing fresh was discovered in 1940. On the other hand, we know definitely that the Tikoni suit had been dismissed by the trial companyrt on merits. The suits were of an analogous character in the sense that the companytroversy was similar in both of them. The appellants companytention that on the dismissal of the plaintiffs Tikoni suit in November, 1939, he, naturally, became apprehensive about the result of the other suit, and then moved the companyrt for the return of the plaint on the ground of pecuniary jurisdiction, appears to be well-founded. The plaintiff knew all the time that the value of the properties involved in the suit, was much more than Rs. 5,000 which was the limit of the pecuniary jurisdiction of the Subordinate Judges Court. Can an omission in the plaint to mention the value of the properties involved in the suit, be brought within the companydition of due care and attention according to the meaning of good faith as understood in the Limitation Act ? It has to be remembered that it is number one of those cases which usually arise upon a revision of the valuation as given in the plaint, on an objection raised by the defendant companytesting the jurisdiction of the companyrt to entertain the suit. Curiously enough, the defendant had number raised any objection in his written statement to the jurisdiction of the companyrt to entertain the suit. Apparently, the plaintiff was hard put to it to discover reasons for having the case transferred to another companyrt. The question is number whether the plaintiff did it dishonestly or that his acts or omission in this companynection, were mala fide. One the other hand, the question is whether, given due care and attention, the plaintiff companyld have discovered the omission without having to wait for about 10 years or more. The trial companyrt examined the plaintiffs allegation that the omission was due to his pleaders mistake. As that companyrt observed he makes this companytention with a view to shield himself behind a wrong legal advice. That companyrt has answered the plaintiffs companytention against him by observing that the plaintiff was number guided by any legal advice in this suit that the plaint was entirely written by him in both the suits, and that he himself companyducted those suits in the trial companyrt in a manner worthy of a senior companynsel. The companyrt, therefore, rightly came to the companyclusion that the plaintiff himself was responsible for drafting the plaint and for presenting it in companyrt, and that numberpleader had any responsibility in the matter. No reason was adduced why, in those circumstances, the value of the subject-matter of the suit, was mentioned in the plaint in the Tikoni suit but number in the plaint in respect of the present suit. There is another serious difficulty in the way of the plaintiff. He has number brought on the record of this case any evidence to show that he was prosecuting the previously instituted suit with due diligence as required by section 14. He has number adduced in evidence the order-sheet or some equivalent evidence of the proceedings in the Sub-Judges Court at Miraj, to show that in spite of his due diligence, the suit remained pending for over ten years in that companyrt, before he thought of having the suit tried by a companyrt of higher pecuniary jurisdiction. In our opinion, therefore, all the companyditions necessary to bring the case within section 14, have number been satisfied by the plaintiff. There companyld be numberdoubt about the legal position that the burden lay on the plaintiff to satisfy those companyditions in order that he may entitled himself to the deduction of all that period between January 31, 1929 and July 4, 1940. It is also clear that the companyrts below were in error in expecting the companytesting defendant to adduce evidence to the companytrary. When the plaintiff has number satisfied the initial burden which lay upon him to bring his case within section 14, the burden would number shift, if it ever shifted, to the defendant to show the companytrary. In view of this companyclusion, it is number necessary for us to pronounce upon the other companytention raised on behalf of the appellants that, even after giving the benefit of section 14, the suit is still barred under Art. 142 of the Limitation Act. This is a serious question which may have to be determined if and when it becomes necessary. For the aforesaid reasons, it must be held that the suit is barred by limitation. The appeals are, accordingly, allowed and the suit dismissed with companyts throughout.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 255 of 1954. Appeal by Special Leave from the judgment and decree dated April 29, 1953, of the former Pepsu High Court in R. S. A. Nos. 57 and 130 of 1952, arising out of the judgment and decree dated March 8, 1952, of the Court of Addl. Dist. Judge, Faridkot, in Civil Appeal No. 10 of 1952, against the judgment and decree dated December 4, 1951, of the Court of ubJudge 11 Class, Faridkot, in File No. 13 of 1951. Jagan Nath Kaushal and K. L. Mehta, for the appellant. Kapur Chand Puri and Tarachand Brijmohan Lal, for respondents Nos. 1 to 3. 1958. May 20. The Judgment of the Court was delivered by SUBBA RAO J.-This - appeal by Special Leave against the judgment and decree of the High Court of Patiala and East Punjab States Union raises an interesting question pertaining to the Law of Preemption. The material facts are number in dispute and may be briefly stated The dispute relates to a land measuring 179 kanals and 2 marlas, situate in village Wanderjatana. On August 26, 1949, defendants 3 to 7 sold the said land to defendants I and 2 for a companysideration of Rs. 37,611. On August 26, 1950, defendants 8 to 11 instituted a suit, Suit No. 231 of 1950 Exhibit P. 26/1 in the Court of the Subordinate Judge, 11 Class, Faridkot, to pre-empt the said sale on the ground, among others, that they bad a right of preemption. On January 6, 1951, the vendees, i. e., defendants I and 2, and the plaintiffs therein, i. e., defendants 8 to 11 appellants in the present appeal , entered into a companypromise. Under the terms of the companypromise, the vendees admitted that they had received Rs. 1,700 from defendants 8 to II and that defendants 8 to 1 1 agreed to pay the balance of the companysideration, amounting to Rs. 35,911 on the 27th April, 1951,. It was further agreed that on the payment of the said amount, they should get possession through Court. As the amount agreed to be paid was in excess of the pecuniary jurisdiction of the Court of the Subordinate Judge, they filed the companypromise deed in the Court of the District Judge and on the basis of the said companypromise, the District Judge made a decree dated January 23, 1951. It was provided in the decree that in case defendants 8 to I I failed to pay the balance to the vendees on April 27, 1951, the suit should stand dismissed and that if the said balance was paid on that date, the vendees should deliver possession of the land in dispute to them. Defendants 8 to 11 deposited the balance of Rs. 35,911 on April 23, 1.951, and got possession of the land on May 17, 1951. Before the said defendants 8 to 11 deposited the amount in Court under the terms of the companypromise decree, the resondents herein, claiming to be owners of land in the same patti, filed Suit No. 13 of 1951 in the Court of the Subordinate Judge, 11 Class, Faridkot, to enforce their right of pre-emption. To that suit the original vendors were impleaded as defendants 3 to 7, the vendees as defendants I and 2 and the plaintiffs in Suit No. 231 of 1950 as defendants 8 to 11. Defendants 8 to 11 companytested the suit, inter alia, on the grounds that the plaintiffs had numberright of preemption superior to that of theirs, that the suit was barred by limitation and that the whole of the sale companysideration had been fixed in good faith and paid. The learned Subordinate Judge found all the issues in favour of defendants 8 to 11 and dismissed the suit. On the main issue he found that the said defendants, by obtaining a decree for pre-emption before the rival claimants had filed their suit, had become vendees through Court and so the plaintiffs companyld number succeed unless they had a superior right. The plaintiffs preferred an appeal to. the Additionl District Judge, Faridkot, against the said decree. The District Judge held that the plaintiffs and defendants 8 to 11 had equal rights of pre-emption and were entitled to share the sale in the proportion of 3/7 and 4/7 respectively on payment of the proportionate amount of the companysideration. On the main question, he took the view that defendants 8 to 11 did number exercise their right of pre-emption when the present suit was instituted for the reason that by the date of the filing of the suit they had number deposited the purchase money in Court. Both the parties filed Second Appeals against the decision of the District Judge in the High Court of Patiala questioning that part of the decree which went against them. The High Court upheld that part of the decree of the learned District Judge holding that the plaintiffs were entitled to a share in the suit property but remanded the suit to the District Judge to give his findings on the following two questions 1 What was the amount paid by defendants 8 to 11 to the original vendees and whether they paid it in good faith 2 Whether the case would companye under s. 17C, cl. e of the Punjab Pre-emption Act hereinafter to be referred to as the -Act . As the High Court refused to certify that the case was a fit one for appeal to the Supreme Court, defendants 8 to 11 preferred the above appeal by obtaining special leave of this Court. The learned Counsel for the appellants raises the following two companytentions before us 1 Section 28 of the Pre-emption Act indicates that a property can be divided between equal pre-emptors in terms of s. 17 of the Pre- emption Act only when both the suits are pending before the Court at the time of the passing of the decree 2 the appellants exercised their right of pre-emption by obtaining a decree or at any rate when they deposited the money payable under the decree and thereby got themselves substituted in place of the original vendees and thereafter, the plaintiffs can succeed only by proving their superior right to them. The learned Counsel for the respondents companyntered the aforesaid argument by stating that the plaintiffs, being pre-emptors of equal degree, have got a statutory right under s. 17 of the Pre-emption Act to share the land with the appellants, and the appellants, having been substituted in place of the original vendees pendente lite, are hit by the doctrine of lis pendens and therefore, they cannot claim higher rights than those possessed by the original vendees at the time of the filing of the suit. Before attempting to give a satisfactory answered to the question raised, it would be companyvenient at the outset to numberice and define the material incidents of the right of pre-emption. A companycise but lucid statement of the law is given by Plowden J. in Dhani Nath v. Budhu 1 thus A preferential right to acquire land, belonging to another person upon the occasion of a transfer by the latter, does number appear to me to be either a right to or a right in that land. It is,jus ad rem aliens acquirendum and number a jus ?In re aliena A right to the offer of a thing about to be sold is number identical with a right to the thing itself, and that is the primary right of the pre-emptor. The secondary right is to follow the thing sold, when sold without the proper offer to the pre-emptor, and to acquire it, if he thinks fit, in spite of the sale, made in disregard of his preferential right. The aforesaid passage indicates that a pre-emptor has two rights 1 inherent or primary right, i.e., a right 1 136 P. R. 1894 at p. 5ii. to the offer of a thing about to be sold and 2 secondary or remedial right to follow the thing sold. Mahmood J. in his classic judgment in Gobind Dayal v. Inayatullah 1 explained the scope of the secondary right in the following terms It right of pre-emption is simply a right of sub- stitution, entitling the pre-emptor, by means of a legal incident to which sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which lie, derived his title. It is, in effect, as if in a sale deed the vendees name were rubbed out and pre-emptors name inserted in its place. The doctrine adumbrated by the learned Judge, namely, the secondary right of pre-emption is simply a right of substitution in place of the original vendee, has been accepted and followed by subsequent decisions. The general law of pre-emption does number recognize any right to claim a share in the property sold when there are rival claimants. It is well-established that the right of pre- emption is a right to acquire the whole of the property sold in preference to other persons See Mool Chand v. Ganga Jal 2 . The plaintiff is bound to show number only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognized that this superior right must subsist at the time the pre-emptor exercises his right and that that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have number looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendeeire, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre- emptor with preferential or equal right. To summarize 1 The right of pre-emption is number a right to the thing sold but a right to the offer of a thing about to be sold. i 1885 I.L. R. 7 All. 775, 809. 2 1930 I.L.R. 11 Lah. 258, 273. This right is called the primary or inherent right. 2 The pre-emptor has a secondary right or a remedial right to follow the thing sold. 3 It is a right of substitution but number of re-purchase, i. e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. 4 It is a right to acquire the whole of the property sold and number a share of the property sold. 5 Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. 6 The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. The next question is whether this right is modified or otherwise enlarged by the provisions of the Act. Relevant provisions of the Act, material to the present purpose, read thus Section 4 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. Section 13 Whenever according to the provisions of this Act, a right of pre-emption vests in any class or group of persons the right may be exercised by all the members of such class or group joint, and, if number exercised by them all jointly, by any two or more of them jointly, and, if number exercised by any two or more of them jointly, by them severally. Section 17 Where several pre-emptors are found by the Court to be equally entitled to the right of preemption, the said right shall be exercised,- a if they claim as companyshares, in proportion among themselves to the shares they already hold in the land or property b if they claim as heirs, whether companysharers or number, in proportion among themselves to the shares in which but for such sale, they would inherit the land or property in the event of the vendors decease without other heirs c if they claim as owners of the estate or recognised subdivision thereof, in proportion among themselves to the shares which they would take if the land or property were companymon land in the estate or the subdivision, as the case may be d if they claim as occupancy tenants, in proportion among themselves to the areas respectively held by them in occupancy right e in any other case, by such pre-emptors in equal shares. Section 19 When any person proposes to sell any agricultural land or village immovable property or urban immovable property or to foreclose the right to redeem any village immovable property or urban immovable property, in respect of which any persons have a right of preemption, lie may give numberice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage, as the case may be. Such numberice shall be given through any Court within the local limits of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the chaupal or other public place of the village, town or place in which the land or property is situate. Section 20 The right of pre-emption of any person shall be extinguished unless such person shall, within the period of three months from the date on which the numberice tinder section 19 is duly given or within such further period number exceeding one year from such date as the companyrt may allow, present to the Court a numberice for service on the vendor or mortgagee of his intention to enforce his right of -pre-emption. Such numberice shall state whether the preemptor accepts the price or amount due on the footing of the mortgage as companyrect or number, and if number, what sum he is willing to pay. When the Court is satisfied that tile said numberice has been duly served on the vendor or mortgagee the proceedings shall be filed. Section 28 When more suits than one arising out of the same sale or foreclosure are pending the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits the companyrt shall in each -decree state the order in which each claimant is entitled to exercise his right. The Act defines the right and provides a procedure for enforcing that right. It does number enlarge the companytent of that right or introduce any change in the incidents of that right. Section 4 embodies the preexisting law by defining the right as a right of a person to acquire land in preference to other persons in respect of -,ales of agricultural lands. Section 13 cannot be read, as we are asked to do, as a statutory recognition of a right of preemptors of equal degree to exercise their rights piece- meal companyfined to their shares in the land. Section 13 companyfers on a group of persons, in whom the right of preemption vests, to exercise that right either jointly or severally, that is to say, either the group of persons or one of them may enforce the right in respect of the entire sale. Section 17 regulates the distribution of preempted land when the Court finds that several pre-emptors are equally entitled to the right of pre-emption. But this Section applies only where 1 the right is yet to be exercised and 2 the pre-emptors are found by the Court to be equally entitled to exercise the right. The section does number companyfer the right on or against a person, who has already exercised the right and ceased to be a preemptor by his being legitimately substituted in place of the original vendee. See Mool Chand v. ganga Jal 1 at p. 274 and Lokha Singh v. Sermukh Singh 2 . Sections 19 and 20 prescribe the procedure for the exercise of the primary right, while s. 28 companyfers a power on the Court to join together two or more suits arising out of the same sale, so that suitable directions may be given in the decree in regard to the order in which each claimant is entitled to exercise the right. This section is enacted presumably to avoid companyflict of decisions and finally determine the rights of the various claimants. The aforesaid provisions do number materially affect the characteristics of the right of pre- 1 1930 I.L.R. 11 Lah. 258. A.I.R. 1952 Punj. 206, 207. emption as existed before the Act. They provide a companyvenient and effective procedure for disposing of together different suits, arising out of the same transaction, to avoid companyflict of decisions, to fix the order of priority for the exercise of their rights and also to regulate the distribution of the preempted land between rival pre- emptors. The provisions do number in any way enable the preemptor to exercise his right without establishing his superior right over the vendee or the person substituted in his place or to prevent the vendor or the vendee, by legitimate means, to defeat his right by getting substituted in place of the vendee a pre-emptor with a superior right to or an equal right with that of the plaintiff. Nor can we accept the argument of the learned companynsel for the appellants that s. 28 precludes the Court from giving a decree for pre-emption in a case where the two suits were number joined together but one of the suits was decreed separately. Section 28 enacts a companyvenient procedure, but it cannot affect the substantative rights of the parties. We do number see that, if the plaintiffs were entitled to a right of pre-emption, they would have lost it by the appellants obtaining a decree before the plaintiffs instituted the suit, unless it be held that the decree itself had the effect of substituting them in place of the original vendees. We cannot, therefore, hold that the plaintiffs suit is in any way barred under the provisions of the Act. This leads us to the main question in this case, namely, whether the appellants having obtained a companysent decree oil January 23, 1951, in their suit against the vendees and having paid the amount due under the decree and having taken delivery of the property and thus having got themselves substituted in place of the original vendees, can legitimately defeat the rights of the plaintiffs, who, by reason of the aforesaid substitution, were only in the position of pre-emptors of equal degree vis-a-vis the appellants and therefore ceased to have any superior rights. The learned Counsel for the respondents companytends that the appellants are hit by the doctrine of lis pendens and therefore the act of substitution, which was effected on April 23, 1951, companyld number be in derogation of their right of pre-emption, which they have exercised by filing their suit on February 15, 1951. It is number settled law in the Punjab that the rule of lis pendens is as much applicable to a suit to enforce the right of pre-emption as to any other suit. The principle on which the doctrine rests is explained in the leading case of Bellami v. Sabine 1 , where the Lord Chancellor said that pendente lite neither party to the litigation can alienate the property so as to affect his opponent. In other words, the law does number allow litigant parties, pending the litigation, to transfer their rights to the property in dispute so as to prejudice the- other party. As a companyollary to this rule it is laid down that this principle will number affect the right existing before the suit. The rule, with its limitations, was companysidered by a Full Bench of the Lahore High Court in Mool Chand v. Ganga Jal 2 . In that case, during the pendency of a pre-emption suit, the vendee sold the property which was the subject matter of the litigation to a person possessing a right of pre-emption equal to that of the pre-emptor in recognition of that persons right of pre-emption. This re-sale took place before the expiry of the period of limitation for instituting a pre-emption suit with respect to the original sale. The Full Bench held that the doctrine of lis pendens applied to preemption suits but in that case, the resale in question did number companyflict with the doctrine of lis pendens. Bhide J. gave the reason for the said companyclusion at page 272 thus All that the vendee does in such a case is to take the bargain in the assertion of his pre-existing pre-emptive right, and hence the sale does number offend against the doctrine of lis pendens . Another Full Bench of the Lahore High Court accepted and followed the aforesaid doctrine in Mt. Sant Kaur v. Teja Singh 3 . In that case, pending the suit for pre-emption, the vendee sold the land purchased i 1857 1 De G. J. 566 44 E. R. 842. 2 1930 I.L.R. 11 Lah. 258, 273. 3 I.L.R. 1946 Lah. 467, by him to a person in recognition of a superior right of pre-emption. Thereafter, the second purchaser was brought onrecord and was added as a defendant to the suit. At the time of the purchase by the person having a superior right of pre-emption, his right to enforce it was barred by limitation. The High Court held that that circumstance made a difference in the application of the rule of lis pendens. The distinction between the two categories of cases was brought out in bold relief at page 145 thus Where the subsequent vendee has still the means of companyrcing, by means of legal action, the original vendee into surrendering the bargain in his favour, a surrender as a result of a private treaty, and out of Court, in recognition of the right to companypel such surrender by means of a suit cannot properly be regarded as a voluntary transfer so as to attract the application of the rule of lis pendens. The companyrect way to look at the matter, in a case of this kind, is to regard the subsequent transferee as having simply been substituted for the vendee in the original bargain of sale. He can defend the suit on all the pleas which he companyld have taken had the sale been initially in his own favour. However, where the subsequent transferee has lost the means of making use of the companyrcive machinery of the law to companypel the vendee to surrender the original bargain to him, a re-transfer of the property in the formers favour cannot be looked upon as anything more than a voluntary transfer in the formers favour of such title as he had himself acquired under the original sale. Such transfer has number the effect of substituting the subsequent transferee in place of the vendee in the original bargain. Such a transferee takes the property only subject to the result of the suit. Even if lie is impleaded as a defendant in such suit, he cannot be regarded as anything more than a representative-in-interest of the original vendee, having numberright to defend the suit except on the pleas that were open to such vendee himself . This case, therefore, expressly introduces a new element in the applicability of the doctrine of lis pendens to a suit to enforce the pre-emptive right. If the right of the pre-emptor of a superior or equal degree was subsisting and enforceable by companyrcive process or otherwise, his purchase would be companysidered to be in exercise of that pre- existing right and therefore number hit by the doctrine of lis pendens. On the other hand, if he purchased the land from the original vendee after his superior or equal right to enforce the right of preemption was barred by Limitation, he would only be in the position of a representative-in- interest of the vendee, or to put it in other words, if his right is barred by limitation, it would be treated as a number- existing right. Much to the same effect was the decision of another Full Bench of the Lahore High Court in Mohammad Sadiq v. Ghasi Ram 1 . There, before the institution of the suit for pre-emption, an agreement to sell the property had been executed by the vendee in favour of another prospective pre-emptor with an equal degree of right of pre- emption subsequent to the institution of the suit, in pursuance of the agreement, a sale deed had been executed and registered in the latters favour, after the expiry of the limitation for a suit to enforce his own pre-emptive right. The Full Bench held that the doctrine of lis pendens applied to the case. The principle underlying this decision is the same as that in Mt. Sant Kaur v. Te a Singh 2 , where the barred right was treated as a number-existent right. The same view was restated by another Full Bench of the East Punjab High Court in Wazir Ali Khan v. Zahir Ahmad Khan 3 . At p. 195, the learned Judges observed It is settled law that unless a transfer pendente lite can be held to be a transfer in recognition of a subsisting pre- emptive right, the rule of lis pendens applies and the transferee takes the property subject to the result of the suit during the pendency where of it took place. The Allahabad High Court has applied the doctrine of lis pendens to a suit for pre-emption ignoring the limitation implicit in the doctrine that it cannot affect A.I.R. 1946 Lah. 322. 2 I.L.R. 1946 Lah. 467, A.I.R. 1949 East Punj. 93. a pre-existing right. See Kundan Lal v. Amar Singh 1 . We accept the view expressed by the Lahore High Court and East Punjab High Court in preference to that of the Allahabad High Court. In view of the aforesaid four Full Bench decisions three of the Lahore High Court and the fourth of the East Punjab High Court a further companysideration of the case is unnecessary. The settled law in the Punjab may be summarized thus The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-existing right. If the sale is a transfer in recognition of a pre-existing and subsisting right, it would number be affected by the doctrine, as the said transfer did number create number right pendente lite but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite. Even so, it is companytended that the right of the appellants to enforce their right of pre-emption was barred by limitation at the time of the transfer in their favour and therefore the transfer would be hit by the doctrine of lis pendens. This argument ignores the admitted facts of the case. The material facts may be recapitulated Defendants 3 to 7 sold the land in dispute to defendants 1 and 2 on August 26, 1949, and the sale deed was registered on February 15, 1950. The appellants instituted their suit to pre-empt the said sale on August 26, 1950, and obtained a companypromise decree on January 23, 195 1. They deposited the balance of the amount payable on April 23, 1951, and took possession of the land on May 17, 1951. It would be seen from the aforesaid facts that the appellants right of pre-emption was clearly subsisting at the time when the appellants deposited the amount and took possession of the land, for they number only filed the suit but obtained a decree therein and companyplied with the terms of the decree within the time prescribed thereunder. The companyrcive process was still in operation. if so, it follows that the appellants are number hit by the A.I.R. 1927 All. 664. VI doctrine of lis pendens and they acquired an indefeasible right to the suit land, at any rate, when they took possession of the land pursuant to the terms of the decree, after depositing in Court the balance of the amount due to the vendors. We shall briefly touch upon another argument of the learned Counsel for the appellants, namely, that the companypromise decree obtained by them, whereunder their right of pre- emption was recognized, clothed them with the title to the property so as to deprive the plaintiffs of the equal right of pre-emption. The right of pre-emption can be effectively exercised or enforced only when the pre-emptor has been sub- stituted by the vendee in the original bargain of sale. A companyditional decree, such as that with which we are companycerned, whereunder a pre-emptor gets possession only if he pays a specified amount within a prescribed time and which also provides for the dismissal of the suit in case the companydition is number companyplied with, cannot obviously bring about the substitution of the decreeholder in place of the vendee before the companydition is companyplied with. Such a substitution takes effect only when the decree-holder companyplies with the companydition and takes possession of the land. The decision of the Judicial Committee in Deonandan Prashad Singh v. Ramdhari Chowdhri 1 throws companysiderable light on the question whether in similar circumstances the pre-emptor can be deemed to have been substituted in the place of the original vendee. There the Subordinate Judge made a pre- emption decree under which the pre-emptors were in possession from 1900 to 1904, when the decree was reversed by the High Court and the original purchaser regained possession and in 1908, the Privy Council, upon further appeal, declared the pre-emptors right to purchase, but at a higher price than decreed by the Subordinate Judge. In 1909 the pre-eimptors paid the additional price and thereupon again obtained possession. The question arose whether the pre-emptors were number entitled to mesne profits for the period between 1904 to 1909, i.e., during the period the judg- i 1916 L. R. 44 1. A. 80. ment of the first appellate Court was in force. The Privy Council held that during that period the preemptors were number entitled to mesne profits. The reason for that companyclusion was stated at page 84 thus It therefore follows that where a suit is brought it is on payment of the purchase-money on the specified date that the plaintiff obtains possession of the property, and until that time the original purchaser retains possession and is entitled to the rents and profits. This was so held in the case of Deokinandan v. Sri Ram 1 and there Mahmud J. whose authority is well recognized by all, stated that it was only when the terms of the decree were fulfilled and enforced that the persons having the right of pre-emption become owners of the property, that such ownership did number vest from the date of sale, numberwithstanding success in the suit, and that the actual substitution of the owner of the pre- empted property dates with possession under the decree . This judgment is, therefore, a, clear authority for the position that the pre-emptor is number substituted in the place of the original vendee till companyditions laid down in the decree are fulfilled. We cannot, therefore, agree with the learned Counsel that the companypromise decree itself perfected his clients right in derogation to that of the plaintiffs.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 178 of 1957. Appeal by special leave from the order dated May 28, 1956, of the former Nagpur High Court in Criminal Revision No. 150 of 1956 arising out of the order dated February 2, 1956, of Shri K. L. Pandey, Special Magistrate at Nagpur in Criminal Case No. I of 1955. Patnaik, for the appellant. N. Bindra and R. H. Dhebar, for the respondent. 1958. May 22. The Judgment of the Court was delivered by KAPUR J.-This is an appeal against the judgment and order of the High Court of Nagpur companyfirming the decision of the Special Magistrate disallowing the application of the appellant to give evidence as a witness under s. 342A of the Criminal Procedure Code. The Advocate-General of Madhya Pradesh, on January 13, 1953, filed a companyplaint against the appellant and three others under s. 282 of the Indian Companies Act and ss. 465 and 477A of the Indian Penal Code. The proceedings companymenced in 1954 before a Magistrate but on May 18, 1955, they were transferred to a Special Magistrate who companymenced the recording of evidence on July 4, 1955. On August 12, 1955, the Criminal Procedure Code Amendment Act 26 of 1955 received the assent of the President and came into force on January 2, 1956. In this judgment it will be referred to as the Amending Act and the Code of Criminal Procedure as the Code. On January 14, 1956, the appellant made an application to the Magistrate claiming the right to appear as a witness on his own behalf under s. 342A of the amended Code in disproof of the charges made against him . His application was dismissed and so was his revision to the High Court of Nagpur which held While it must be companyceded that the wording of clause c as also the other clauses of section 116 of the amending Act companyld have been put in simpler and more direct language, its ingenuous circumlocution cannot be allowed to cloak. its true meaning or to permit the companystruction which the applicant seeks to put upon it. The language used doe,-, number justify hold ing that when the statute says this Act it means only some of the provisions of this Act Thus the High Court was of the opinion that the proceedings pending before the Special Magistrate would be according to the procedure laid down in the unamended Code and the appellant companyld number therefore appear as a witness under s. 342A of the amended Code. According to the provisions of the unamedded Code an accused person companyld number appear as a witness in his defence although for the purpose of enabling him to explain circumstances appearing in the evidence against him the Court companyld put such questions as it companysidered necessary. Section 118 of the Evidence Act deals with persons who are companypetent to testify as witnesses but in view of s. 342 of the unamended Code numberaccused person companyld appear as a witness and there- fore s. 118 was inapplicable to such persons. Article 20 3 of the Constitution provides that numberperson accused of an offence shall be companypelled to be a witness against himself and s. 342A was inserted into the Code by s. 61 of the amending Act. It provides- S.342A Any person accused of an offence before a Criminal Court shall be a companypetent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial Provided that a he shall number be called as a witness except on his own request in writing or b his failure to give evidence shall number be made the subject of any companyment by any of the parties or the Court to give rise to any presumption against himself or any person charged together with him at the same trial. Thus the law was amended and the accused person has become a companypetent witness for the defence but he cannot be companypelled to be a witness and cannot be called as a witness except at his own request in writing and his failure to give evidence cannot be made the subject matter of companyment by the parties or the Court. The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is numbercontroversy on the general principles applicable to the case. No person has a vested right in any companyrse of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has numberother right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p. 225 The Colonial Sugar Refining Co. Ltd. v. Irving 1 . In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is number only prospective. The amending Act companytains provisions in regard to the procedure to be applied to pending cases in s. 116 which is as follows- S.116 Notwithstanding that all or any of the provisions of this Act have companye into force in any State- a the provisions of section 14 or section 30 or section 145 or section 146 of the principal Act as amended by this Act shall number apply to or affect, any trial or other proceeding which, on the date of such companymencement, is pending before any Magistrate and every such trial or other proceeding shall be companytinued and disposed of as if this Act had number been passed b the provisions of section 406 or section 408 or section 409 of the principal Act as amended by this Act shall number apply to, or affect, any appeal which, on the date of such companymencement, is pending before the District Magistrate or any Magistrate of the First class empowered by the State Government to hear such appeal, and every such appeal shall, numberwithstanding the repeal of the first proviso to section 406 or of section 407 of the principal Act, be heard and disposed of as if this Act had number been passed i 1905 A.C. 369,372. c the provisions of clause w of section 4 or section 207A or section 251A or section 260 of the principal Act as amended by this Act shall number apply to, or affect, any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such companymencement and which is pending on that date, and every such inquiry or trial shall be companytinued and disposed of as if this Act had number been passed d the provisions of Chapter XXIII of the principal Act as amended by this Act shall number apply to, or affect, any trial before a Court of Sessions either by jury or with the aid of assessors in which the Court of Sessions has begun to record evidence prior to the date of such companymencement and which is pending on that date, and every such trial shall be companytinued and disposed of as if this Act had number been passed but save as aforesaid, the provisions of this Act and the amendments made thereby shall apply to all pro- ceedings instituted after the companymencement of this Act and also to all proceedings pending in any Criminal Court on the date of such companymencement. It was companytended on behalf of the respondent that the following words in clause c of s. 116 of the amending Act and every such enquiry or trial shall be companytinued and disposed of as if this Act had number been passed mean that numberprovision of the Act would be applicable to pending trials and particular stress was laid on the words as if this Act had number been passed. If that is the interpretation to be put then it would be in companyflict with the last portion of the section i. e. Save as aforesaid the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the companymencement of this Act and also to all proceedings pending in any Criminal Court on the date of such companymencement. The language used in this portion of the section in regard to the proceedings which are instituted after the companymencement of the amended Code is identical with that dealing with -proceedings pending in a Criminal Court on the date of its companymencement. Therefore if this Act applies to all proceedings which companymenced after the Act came into force they would equally apply to proceedings which had already companymenced except those provisions which have been expressly excluded. If the whole section is companystrued in the manner companytended for by the respondent then there will be a companyflict between the words used in the various clauses and words- used in the main s. 116 and it is one of the principles of interpretation that the words should be companystrued in such a manner as to avoid a companyflict. Thus companystrued the words of cl. c and the words of the rest of the s. 116 would mean this that the pro- visions of ss. 4 w , 207A, 251A or 260 of the Code as amended shall number apply or affect any enquiry or trial before a Magistrate where the recording of evidence has started prior to the date of the companymencement of the amending Act and every such enquiry should be companytinued and disposed of as if these sections had number been enacted. Except as to this and except as to the provisions mentioned in sub-cls. a , b and d the other provisions of the amended Code would be applicable to such proceedings which is also in accordance with the general principles applicable to amendments in procedural law. By s. 34 of the amending Act, s. 251 of the Code was substituted by two sections i. e. 251 and 251A. Section 251 lays down the procedure in warrant cases. It provides- S. 251 In the trial of warrant cases by Magi. strates,the Magistrate shall,- a in any case instituted on a police report, follow the procedure specified in section 215A and b in any other case, follow the procedure specified in the other provisions of this Chapter. Sub-clause a deals with cases instituted on a police report and sub-cl. b with other cases. To the former s. 251A is applicable and to other cases procedure specified in other provisions in Chapter 21 is made applicable. Section 342A is in Chapter 24 and there is numberhing in the amending Act or the amended Code which makes the provision of s. 342A inapplicable to criminal proceeding-, which are pending before a Magistrate and in which the recording of evidence has companymenced. In our opinion on the plain companystruction of the words used in s. 116 of the amending Act, s. 342A available to the appellant. The High Court, it appears, was misled into companystruing the words in clause c of s. 116 i. e. as if this Act had number been passed. The High Court was therefore in error and the appellant is entitled, in our view, as a companypetent witness for the defence to testify in disproof of the charges made against him or any other person charged together with him at the same trial.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 251 of 1954. Appeal from the judgment and decree dated April 22, 1952, of the Punjab High Court in Civil Regular First Appeal No. 1/E of 1947 arising out of the judgment and decree dated July 1, 1947, of the Court of SubJudge, Ambala in Suit No. 239 of 1946. Tarachand Brijmohan Lal, for the appellant. Hardayal Hardy, for respondent No. 1. 1958. May 1. The Judgment of the Court was delivered by DAS C. T.-This is a plaintiffs appeal against the judgment and decree passed on April 22, 1952, by a Division Bench of the Punjab High Court reversing the decree passed on July 1, 1947, by the First Class Subordinate Judge, Ambala in favour of the plaintiff and dismissing the plaintiffs Suit No. 239 of 1946. The appeal has been preferred on the strength of a certificate granted by the Division Bench on December 19, 1952. The facts material for the purpose of this appeal may number be shortly stated One Lala Beni Pershad died in the year 1910 leaving him surviving his widow Mst. Daropadi defendant respondent No. 2 and two sons by her, namely, Gokul Chand defendant respondent No. 1 and Raghunath Das plaintiff appellant who was then a minor. Lala Beni Pershad left companysiderable moveable properties including many G. P. Notes and also various immoveable properties including agricul- tural land, gardens and houses. After his death the family companytinued to be joint until disputes and. differences arose between the two brothers in 1934. Eventually oil November 12, 1934, the two brothers executed an agreement referring their disputes relating to the partition of the family properties to the arbitration of Lala Ramji Das who was a companymon relation. It is alleged that the respondent Gokul Chand had disposed of part of the F. P. Notes and that at the date of the reference to arbitration G. P. Notes of the value of Rs. 26,500 only were held by Gokul Chand, as the Karta of the family. On June 21, 1936, the arbitrator made an award which was signed by both the, brothers statedly ill token of their acceptance thereof. The award was registered on July 28, 1936. By that award the arbitrator divided the imoveable, properties and shops as therein mentioned. As regards the P. Notes the arbitrator directed and awarded that out of the G. P. Notes of the value of Rs. 26,500, which then stood in the name of Gokul Chand, G. P. Notes of the value of Rs. 13,300 should be entered into the names of Gokul Chand and Mst. Daropadi and the remaining Notes of the value of Rs. 13,200 should be endorsed in the names of Raghunatb Das and Mst. Daropadi and that till her death Mst. Daropadi should alone be entitled to the interest on the entire G. P. Notes of the value of Its. 26,500 and that after her death Gokul Chand would be the owner of the X. P. Notes of the value of Rs. 13,300 and Raghunath Das of G. P. Notes of the value of Rs. 13,200. The arbitrator further directed Gokul Chand to pay to Raghunath Das a sum of Rs. 20,000 in four several instalments together with interest thereon as mentioned therein. On August 31, 1936, Gokul Chand applied to the District Judge, Ambala under paragraph 20, of Schedule 11 to the Code of Civil Procedure for filing the award. During the pendency of those Proceedings the two brothers entered into a companypromise modifying certain terms of the award which are number material for the purpose of the present appeal. By an order made on November 18, 1936, the District Judge directed the award as modified by the companypromise to be filed and passed a decree in accordance with the terms of the award thus modified. On November 15, 1939, Raghunath Das made an application to the companyrt of the District judge for execution of the decree. The District Judge transferred the application to the companyrt of the Subordinate Judge who directed numberice of that application to be issued to Gokul Chand. Gokul Chand filed objection to the execution mainly on the ground that the decree had been passed without jurisdiction in that the District Judge had numberpower to pass a decree for partition of agricultural lands. The Subordinate Judge on December 23, 1942, accepted Gokul Chands plea and dismissed the execution application. On appeal by Raghunath Das to the High Court a learned Single Judge on April 5, 1944, accepted the appeal, but on Letters Patent Appeal filed by Gokul Chand the Division Bench on March 15, 1945, reversed the order of the Single Judge and restored the order of dismissal passed by the Subordinate Judge. Having failed to obtain the relief granted to him by the decree passed upon the award on the ground of defect of jurisdiction in the companyrt which passed the decree and companysequently for want of jurisdiction in the executing companyrt, Raghunath Das, on August 21, 1945, instituted Suit No. 80 of 1945 against Gokul Chand for the recovery of Rs. 7,310-11-3 being the balance with interest remaining due to him out of the said sum of Rs. 20,000, awarded in his favour. Gokul Chand raised a number of pleas but eventually all his pleas were negatived and the senior Subordinate Judge, Ambala, by his judgment pronounced on December 22, 1945, decreed the suit in favour of Raghunath Das. Gokul Chand did number file any appeal therefrom and companysequently that decree became final and binding as between the parties thereto. On June 5, 1946, Raghunath Das filed in the companyrt of the Senior Subordinate Judge, Ambala a suit being Suit No. 239 of 1946 out of which the present appeal has arisen. In this suit Raghunath Das claimed that Gokul Chand be ordered to transfer G. P. Notes of the value of Rs. 13,200 out of the P. Notes of the value of Rs. 26,500 to Raghunath Das and Mst. Daropadi by means of endorsement or some other legal way, to get them entered into the Government registers and to make them over to Raghunath Das, the plaintiff. Particulars of the numbers, the year of issue, the face value and the interest payable on all the said G. P. Notes were set out in the prayer. There was an alternative prayer that Gokul Chand be ordered to pay Rs. 13,200 to the plaintiff. Gokul Chand filed his written statement taking a number of pleas in bar to the suit. Not less than 12 issues were raised, out of which only issues Nos. 2 and 3 appear from the judgment of the Subordinate Judge to have been seriously pressed. Those two issues were as follows- 2 Is the suit within time ? and 3 Is the suit barred by Order 2, Rule 2 of the Civil Procedure Code? The Subordinate Judge decided both the issues in favour of the plaintiff. He held that Art. 49 of the Indian Limitation Act had numberapplication to the facts of this case and that there being numberother specific Article applicable, the suit was governed by the residuary Art. 120. The learned Subordinate Judge also took the view that the period from November 15, 1939 to March 15, 1945, spent in the execution proceedings should be excluded under s. 14 of the Indian Limitation Act in companyputing the period of limitation under Art. 120. The learned Subordinate Judge also held that the cause of action in the earlier suit for the recovery of the sum of Rs. 7,310-11-3 was number the same as the cause of action in the present suit and, therefore, the present suit was number barred under 0. 2, r. 2, of the Code of Civil Procedure. The learned Subordinate Judge accordingly decreed the suit in favour of Raghunath Das. Gokul Chand appealed to the High Court. The appeal came up for hearing before a Division Bench of the Punjab High Court. Only two points, were pressed in support of the appeal, namely, 1 whether the suit was barred by time and 2 whether the suit was barred under 0. 2, r. 2, of the Code of Civil Procedure. Learned companynsel appearing for Gokul Chand urged that the suit was one for the recovery of -other specific moveable property that is to say specific moveable property other than those falling within Arta. 48, 48A and 48B of the Indian Limitation Act and was accordingly governed by Art. 49. Article 49. provides three years period of limitation I04 for a suit for other specific moveable property or for companypensation for wrongful taking or injuring or wrongfully detaining the same and this period of three years begins to run from when the property is wrongfully taken or injured or when the detainers possession becomes unlawful . In the opinion of the High Court the suit was for the recovery of specific Government promissory numberes and this, according to the High Court, was plain from the perusal of para. 18 of the plaint which set out the reliefs claimed by the plaintiff in the suit. The reference to the numbers, value and the year of issue of G. P. Notes and the rates of interest carried by them appeared to the High Court to be decisive on this point. The High Court held that the suit was governed by Art. 49 and that, as the plaintiff would be out of time even if the period between November 15, 1939, and March 15, 1945, was excluded, the High Court did number think it necessary to companysider the question of the applicability of s. 14 of the Indian Limitation Act. As its finding on the issue of limitation was sufficient to dispose of the suit, the High Court did number discuss the other issue founded on 0. 2, r. 2, of the Code of Civil Procedure but allowed the appeal and dismissed the suit as barred by limitation. We are unable to accept the decision of the High Court as companyrect. The High Court overlooked the fact that so far as the G. P. Notes were companycerned the decree upon the award only declared the rights of the parties. Under the decree Raghunath Das was entitled to have G. P. Notes of the value of Rs. 13,200 endorsed in the names of himself and Mst. Daropadi out of the G. P. Notes of the value of Rs. 26,500. The award or the decree thereon did number actually divide the P. Notes by specifying which particular G. P. Notes were to be endorsed in the names of Gokul Chand and Mst. Daropadi or which of them were to be endorsed in the names of Raghunath Das and his mother. Until the G. P. Notes were actually divided, either by companysent of parties or by the decree of the companyrt, neither of the brothers companyld claim any particular piece of G. P. Notes as his separate property or ask for delivery of any particular C. P. Notes in specie. Gokul Chand number being agreeable to companye to an amicable division of the G. P. Notes, Raghunath Das had perforce to seek the assistance of the companyrt and pray that the entire lot of C. P. Notes of the value of Rs. 26,500 be divided by or under the directions of the companyrt into two lots and one lot making up the value of Rs. 13,200 be endorsed in favour of him Raghunath Das and his mother by or on behalf of Gokul Chand and then delivered to him, the plaintiff. He companyld number in his plaint claim that particular pieces of G. Notes making up the value of Rs. 13,200 be delivered to him in specie. This being the true position, as we companyceive it, Raghunath Dass suit cannot possibly be regarded as a suit for a specific moveable property . That expression is apt only to companyer a suit wherein the plaintiff can allege that he is entitled to certain specific moveable property and or of which he is presently entitled to possession in specie and which the defendant has wrongfully taken from him and or is illegally withholding from him. That is number the position here. It should be remembered that the two brothers were entitled to the G. P. Notes of the value of Rs. 26,500 originally as joint companyarceners and thereafter, when the decree upon the award had been passed, as tenants- in-common. Until actual partition by companysent of the parties or by companyrt Gokul Chand, who held the custody of the G. P. Notes, companyld number be said to have taken them wrongfully from Raghunath Das and his possession of them companyld number be said to be or to have become unlawful. These companysiderations clearly distinguish this case from the case of Gopal Chandra Bose v. Surendra Nath Dutt 1 on which the High Court relied because in that case the defendant had numberright to or interest in the G. P. Notes in question and had numberright to retain possession thereof. Therefore, to the present situation the terminus a quo specified in the third companyumn of Art. 49 can have numberapplication. It is number well established that a suit by an heir against other heirs to recover his share of the moveable estate of a deceased person is number one for 1 1908 XII C. W. N. 1010 specific moveable property wrongfully taken such as is companytemplated by Art 49, but is governed by Art. 120. See Mohomed Riasat Ali v. Mussumat Hasin Banu 1 . The only difference between the facts of that case and those of the present case is that here the rights of the parties had been declared by the decree upon the award but that circumstance does number appear to us to make any material difference in the application of the principle laid down by the Judicial Committee. The substance of the plaintiffs claims in both cases is for separating his share out of the estate and for allotment and delivery to him of his share so separated. In short such a suit is numberhing but a suit for partition or division of the moveable properties held jointly or as tenants-in-common by the parties and there being numberspecific Article applicable to such a suit it must be governed by Art. 120. The period of limitation fixed by Art. 120 is six years from the date when the right to sue accrues. In order, therefore, to be within the period of limitation the plaintiff claims to exclude the period November 15, 1939, to March 15, 1945, spent in the execution proceedings. Section 14 1 of the Indian Limitation Act runs as follows 14 1 In companyputing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with, due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, for defect of jurisdiction, or other cause of a like nature is unable to entertain it. The respondent companytends that the above section has numberapplication to the facts of his case. We do number think that such companytention is well-founded. The execution proceedings initiated by Raghunath Das were certainly civil proceedings and there can be numberdoubt that he prosecuted such civil proceedings with due diligence and good faith, for lie was obviously i 1893 L. R. 20 I. A. 155. anxious to have his share of the G. P. Notes separately allocated to him. He lost in the execution companyrt but went on appeal to the High Court where he succeeded before a Single Judge, but eventually he failed before the Division Bench which reversed the order the Single Judge had passed in his favour. Therefore, there can be numberquestion of want of due diligence and good faith on the part of Raghunath Das. In the next place the section excludes the time spent both in a companyrt of first instance and in a companyrt of appeal. Therefore, other companyditions being satisfied, the entire period mentioned above would be liable to be excluded. The only questions that remain are 1 whether the proceedings were founded upon the same cause of action and 2 whether he prosecuted the proceedings in good faith in a companyrt which for defect of jurisdiction ,as unable to entertain it. The execution proceedings were founded upon his claim to enforce his rights declared under the decree upon the award. The cause of action in the present suit is also for enforcement of the same right, the only difference being that in the former proceedings Raghunath Das was seeking to enforce his rights in execution and in the present instance he is seeking to enforce the same rights in a regular suit. There is numberhing new that he is asking for in the present suit. That he prosecuted the execution proceedings in the Subordinate Court as well as in the High Court in good faith cannot be denied, for the Single Judge of the High Court actually upheld his companytention that the companyrt had jurisdiction to entertain his application. The execution proceedings failed before the Division Bench on numberother ground than that the executing companyrt had numberjurisdiction to entertain the application, because the decree sought to be executed was a nullity having been passed by a companyrt which had numberjurisdiction to pass it. Therefore, the defect of jurisdiction in the companyrt that passed the decree became, as it were, attached to the decree itself and the executing companyrt companyld number entertain the execution proceeding on account of the same defect. The defect of jurisdiction in the executing companyrt was finally determined when the Division Bench reversed the decision of the Single Judge who had entertained the execution proceeding. In our opinion Raghunath Das is entitled to the benefit of s. 14 1 of the Indian Limitation Act and the period here in before mentioned being excluded, there can be numberdoubt that the suit was filed well within the prescribed period of limitation and the judgment of the Division Bench cannot be sustained. In the view it took on the question of limitation the Division Bench did number companysider it necessary to go into or give any decision on the other issue, namely, as to whether the suit was barred by 0. 2, r. 2. The suit should, therefore, go back to the High Court for determination of that issue. The result, therefore, is that we accept the appeal, set aside the judgment and decree of the High Court and remand the case back to the High Court for a decision on issue No.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 49 of 1956. Appeal by special leave from the judgment and order dated October 13, 1954, of the Madras High Court in Criminal Revision Case No. 267 and 1954 1212 Criminal Revision Petition No. 249 of 1954 arising out of the judgment and order dated January 12, 1954, of the Court of the District and Sessions Judge as Tiruchirapalli in Criminal Revision Petition No. 17 of 1953. Ganapathy Iyer and G. Gopalakrishnan, for the appellant. No one appeared for the respondents. 1958. August 25. The Judgment of the Court was delivered by SINHA J.-The only question for determination in this appeal by special leave, is whether the petition of companyplaint, disclosed a prima facie offence under s. 295 of the Indian Penal Code. The companyrts below have taken the view that it did number, and on that ground, it stood summarily dismissed, before evidence pro and company had been recorded. It appears that the appellant filed a petition of companyplaint in the companyrt of the Additional First-Class Magistrate, Tiruchirappalli, against the respondents, three in number. The petition of companyplaint alleged inter alia that the first accused is the leader of Dravida Kazakam a companymunity of persons who profess to be religious reformers, one of whose creeds is to carry on propaganda against idol worship , and as such, be was out to vilify a certain section of the Hindu companymunity and do propaganda by holding meetings and writing articles. It is further alleged in the petition of companyplaint that recently, the first accused announced his intention of breaking the image of God Ganesa, the God sacred to the Saiva Section of the Hindu Community on 27th May, 1953, in a public meeting at Town Hall. This caused terror-commotion in the mind of the Saivite Section of the -Hindu Community. The companyplainant claims to be a Saivite. The companyplainant further alleged in his petition that on May 27, 1953, at about 5-30 p.m., the accused broke an idol of God Ganesa in public at the Town Hall Maidan, and before breaking the idol, lie made a speech, and expressly stated that he intended to insult the feelings of the Hindu companymunity by breaking the idol of God 1213 Ganesa. The said act of breaking the idol was alleged to have been actively abetted by instigation and aid by the other two accused persons, who also made speeches. The petition of companyplaint also alleged that the said act of breaking the image of God Ganesa was done with the intention of insulting the religious feelings of certain sections of the Hindu companymunity, who hold God Ganesa in veneration, and that the acts companyplained of, amounted to offences under ss. 295 and 295A of the Indian Penal Code. On those allegations, the petition of companyplaint dated June 5, 1953 prayed that processes might issue against the three accused persons. In the list of witnesses appended to the petition, figured the Additional District Magistrate, the Sub- Divisional Magistrate, the Town Sub-Inspector of police, Tiruchi Fort, and Sub-Magistrate, Tiruchy Town. On the same date, the learned magistrate examined the companyplainant on oath. The companyplainant made statements in support of his allegations in the petition of companyplaint. Thereupon, the learned magistrate directed that the petition of companyplaint be sent to the Circle Inspector of police, Trichy, for inquiry and report under s. 202, Criminal Procedure Code. On June 26, 1953, on receipt of the police report which showed that though the occurrence as alleged had taken place it was a point of law if the act of the accused would amount to any offence , the learned magistrate passed his order, dismissing the companyplaint under s. 203 of the Criminal Procedure Code. In the companyrse of his order, the learned magistrate observed as follows- The mud figure of Ganesa alleged to have been broken by accused is number an object held sacred or worshipped by any class of persons. Simply because it resembled the God Ganesa held in veneration by a section it cannot become an object hold sacred. Even Ganesa idol abandoned by the people as unworthy of worship loses its sanctity and it is numberlonger an object held sacred by anybody, since such given up idols are found in several places of defilement. It is number an offence if a person treads union any such abandoned idol. Therefore the breaking of mud figure of Ganesa 1214 does number amount to an offence under Section 295, Indian Penal Code. The speeches delivered by the accused with deliberate and malicious intention of outraging religious feelings of a companymunity, numberdoubt amount to an offence under Section 295- A, Indian Penal Code. But for laying a companyplaint under this section the sanction of the Government is necessary. This section has been clearly mentioned in the companyplaint and it cannot be said it was included by oversight. Without a proper sanction an offence under this section is unsustainable. I therefore see numbersufficient ground for proceeding with the companyplaint and I dismiss the same under section 203, Criminal Procedure Code. The companyplainant moved the learned Sessions Judge of Tiruchirappalli, by his petition in revision, filed on July 9, 1953, under ss. 435 and 436 of the Criminal Procedure Code, for setting aside the order of dismissal of the companyplaint. In the petition filed in the Court of Session, the companyplainant stated that the petition was companyfined to the companyplaint in respect of the alleged offence under s. 295, Indian Penal Code, and that it did number seek to revise the order of dismissal of the companyplaint in respect of an offence tinder s. 295-A of the Indian Penal Code. The learned Sessions Judge dismissed the petition by an order dated January 12, 1954, holding, in agreement with the learned magistrate, that the acts companyplained of did number amount to an offence under s. 295, Indian Penal Code. In the companyrse of his order, the learned Sessions Judge made the following observations- I agree with the learned Magistrate that the acts companyplained of do number amount to an offence. The accused, who profess to be religious reformers in a campaign against idolatory organized a public meeting at which they broke an earthern image of the God Ganesa. The particular image broken was the private property of the accused and was number in itself an object held sacred by any class of persons number do I think that idol breaking by a number-believer can reasonably be regarded by a believer as an insult to his religion and the ingredients of Section 295, Indian Penal Code, are therefore number made out. 1215 The companyplainant then moved the High Court in its revisional jurisdiction under s. 439 of the Code of Criminal Procedure. The matter was heard by a learned single Judge of that Court. The learned single Judge also agreed with the companyrts below in the reasons given by them for dismissing the petition of companyplaint, and refused to order further inquiry. In the companyrse of his judgment, he discussed the question whether a mud image of God Ganesa, came within the scope of the words any object held. sacred by any class of persons in s. 295, and he answered the question in the negative. In this companynection, he referred to the judgment of the Full Bench of the Allahabad High Court in the case of Queen Empress v. Imam Ali 1 , which is directly an authority for this proposition only that the word object in s. 295 of the Indian Penal Code, does number include animate objects. That case dealt with the companyplaint of killing a company. Edge J. in the companyrse of his judgment, made an observation that the word object should be interpreted ejusdem generis with the words place of worship, and by way of an example of such an inanimate object, he mentioned an idol. That observation, if anything, is number against the companyplainant. The learned single Judge also referred to the case of Romesh Chunder Sannyal v. Hiru Mondal 2 , which also is number in point inasmuch as it dealt with the case of a dedicated bull. But the learned Judge seemed to draw from those cases the inference which may be stated in his own words, as follows- Interpreted like that, it would mean that the section would apply only to cases where an idol in a temple is sought to be destroyed, damaged, or defiled. The words any object held sacred by any class of persons even otherwise will apply only to idols in a temple or when they are carried out in processions on festival occasions. The object held sacred will mean only the idols inside the temple and when they are taken out in processions on festival occasions. In such circumstances as in the present case the breaking is numberhing more than a doll taken from the shop. 1 1887 I.L.R. 10 All. 150. 2 1890 I.L.R. 117 Cal. 852. 1216 Though the intention of the respondents may be to decry the feelings and wound the susceptibilities of a large section of the people, still the intention alone is number sufficient unless it is carried out by an act which must fall within the scope of this section. The dolls in the shop, though they may resemble several of the deities in the temple, cannot be held to be objects held sacred by any class of persons. In modern society there are several images of the deities in the drawing rooms of several houses. It cannot for a moment be suggested that these images are objects held sacred. These have got to be distinguished from the objects held sacred, which can only be when they are duly installed in a temple and from which they are subsequently taken out in procession on festival occasions. What was broken therefore by the respondents is numberhing more than a doll taken either from a shop or made for the occasion, and it cannot by any means be called ail object held sacred. The offence is number made out and the dismissal is therefore justified. The petitioner moved the High Court for the necessary certificate of fitness for making an appeal to this Court. The learned Judge, who had heard the case on merits, also dealt with this application, and refused to certify that this was a fit case for appeal to this Court under Art. 134 1 c of the Constitution. The petitioner moved this Court and obtained the necessary special leave to appeal. It is regrettable that the respondents have remained ex parts in this Court. The learned companynsel for the appellant has urged that the companyrts below had unduly restricted the meaning of the words of s. 295, particularly, the words any object held sacred by any class of persons , and that the words have been used in their fullest amplitude by the Legislature, in order to include any object companysecrated or otherwise, which is held sacred by any class of persons, number necessarily belonging to a different religion or creed. In the first place, whether any object is held sacred by any class of persons, must depend upon the evidence in the case, so also the effect of the words with the intention of thereby insulting the religion of any class 1217 of persons or with the knowledge that any class of persons is likely to companysider such destruction, damage or defilement as an insult to their religion. In this case, the facts alleged in the petition, do number appear to have been companytroverted, but the learned magistrate, as also the learned Sessions Judge and the learned Judge in the High Court, have thrown out the petition of companyplaint solely on the ground that the image of God Ganesa, treated by the respondents as alleged by the companyplainant, companyld number be said to be held sacred by any class of persons. In the instant case, the insult alleged was by destruction of the image of God Ganesa. Apart from the question of evidence, which had yet to be adduced, it is a well-knonwn fact that the image of Lord Ganesa or any objective representation of a similar kind, is held sacred by certain classes of Hindus, even though the image may number have been companysecrated. The learned Judge in the Court below, has given much too restricted a meaning to the words any object held sacred by any class of persons , by holding that only idols in temples or idols carried in processions on festival occasions, are meant to be included within those words. There are numbersuch express words of limitation in s. 295 of the Indian Penal companye, and in our opinion, the learned Judge has clearly misdirected himself in importing those words of limitation. Idols are only illustrative of those words. A sacred book, like the Bible, or the Koran, or the Granth Saheb, is clearly within the ambit of those general words. If the companyrts below were right in their interpretation of the crucial words in s. 295, the burning or otherwise destroying or defiling such sacred books, will number companye within the Purview of the penal statute. In our opinion, placing such a restricted interpretation on the words of such general import, is against all established canons of companystruction. Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would companye within the meaning of the penal section. Nor is it absolutely necessary that the object, in order 1218 to be held sacred, should have been actually worshipped. An object may be held sacred by a class of persons without being worshipped by them. It is clear, therefore, that the companyrts below were rather cynical in so lightly brushing aside the religious susceptibilities of that class of persons to which the companyplainant claims to belong. The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the companysideration whether or number they share those beliefs, or whether they are rational or otherwise, in the opinion of the companyrt. As a result of these companysiderations, it must be held that the companyrts below have erred in their interpretation of the crucial words of s. 295 of the Indian Penal Code. But the question still remains whether, even after expressing our strong disagreement with the interpretation of the section by the companyrts below, this Court should direct a further inquiry into the companyplaint, which has stood dismissed for the last about 5 ,ears. The action companyplained of against the accused persons, if true, was foolish, to put it mildly, but as the case has become stale, we do number direct further inquiry into this companyplaint.

Case appeal was rejected by the Supreme Court