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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. M.C. Setalvad Attorney General for India (Porus A. Mehta with him) for the respondents. January 22. The Judgment of the Court was delivered by MUKHERJEA J. These four consolidated appeals which have come before us on a certificate granted by the High Court of Punjab under article 133 (1)(c)of the Constitution are directed against one common judgment of a Division Bench of that court 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 commenced 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 740 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 constituting 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 course started investigation in these cases and the appellants ' complaint is that contrary 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 completed. A petition embodying this complaint was made to the authorised official on the 8th of April 1949 but no order 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 contended that the amendment was neither retrospective in its operation nor 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 no investigation could take place in regard to her as she was already dead;the second with regard to the affairs of Saeeda Begum on the ground that she being a new partner and not having been assessed before was not 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 could not 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 262 741 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 not 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 commenced. 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 contended in the first place that the petitioners being assessees belonging to U.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 not confer 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 could be pursued by the aggrieved parties and article 226 or 227 of the Constitution would not be available to the petitioners. The third ground taken was that the court could not give relief to the petitioners because of sections 5(3) and 9 of Act XXX of 1947. These contentions found favour with the learned Judges who heard the petitions and although they did not 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 court and Dr. Tek Chand who appeared on behalf of the appellants has assailed the 742 propriety of the decision of the High Court both the points. So far as the first point is concerned 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 vs ' Zamindar of Parlakitnedi(1). The question for consideration 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 no jurisdiction under the Charter which created it to correct or control a country court 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 no such power was given by any subsequent legislation to its successor the High Court . A contention seems to have been raised on behalf of the appellants that the jurisdiction to issue writs could 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. 743 and the order complained of was made in that town and reliance was placed in this connection upon the case of Nundo Lal Bose vs 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 contention 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 complained 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 not have been within the competence 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 not otherwise subject to its jurisdiction which it would not 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 not sufficient to confer 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. (1)I.L.R. II Cal. 275 744 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 no jurisdiction in the present case could be vested in the Punjab High Court for that jurisdiction could be avoided simply by removal of the Commission from Delhi to another place. This line of reasoning does not appear to us to be proper and we do not think that the decision in the Parlakimedi 's 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 court in its recent pronouncement in Election Commission vs Venkata Rao(2 ) where the observations of the Judicial Committee in Parlakimedi 's case upon which reliance has been placed by the Punjab High Court have been fully explained. It is to be noted first of all that prior to the commencement of the Constitution the powers of issuing prerogative writs could 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 could be issued only to the extent that the power in that respect was not taken away 'by the Codes of Civil and Criminal Procedure(3) and they could 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 confers on all the High Courts new and very wide powers (1) 70 I.A. 139. (1) ; (3) Vide in this connection Besant vs Tire Advocate General of Madras. 46 I.A. 176. 745 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 court "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 conferred in the State 's 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 country in somewhat the same position as the Court of King 's 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 court 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 conditions 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 Parlakimedi 's case(1) have strictly speaking no direct 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 could be ascertained only with reference to the context of (1) 701. A. 129. 11 95 S.C. 1./59 746 the facts and circumstances of that case. As was pointed out by this court in the case referred to above(1): "Their Lordships considered in the peculiar situation they were dealing with that the mere location of the appellate authority alone in the town of Madras was not 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 court 's 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 contention 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 concerned the High Court relies upon the ordinary rule of construction 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 not less than three Judges of the High Court. We think that it is not 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 (1) A.I.R. z953 S.C. 310 214; ; 747 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 concerned it has been brought to our notice 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 not 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. Dr. Tek Chand argues that the Income tax authorities have not referred all the matters to the High Court which the appellants wanted them to do. But for this there is a remedy provided in the Act itself and in case a proceeding occasions a gross miscarriage of justice there is always the jurisdiction in this court to interfere by way of special leave. In the result we dismiss the appeals but in the circumstances of the case make no order as to costs. ' Appeals dismissed.

The Punjab High Court has jurisdiction to issue a writ under article 226 of the Constitution to the Income tax Investigation Commission located in Delhi and investigating the case of the petitioner under 5 of the Taxation on Income (Investigation Commission) Act 1947 although the petitioners were assessees within the U.P. State and their original assessments were made by the Income tax authorities of that State. Article 226 of the Constitution confers on all the High Courts new and very wide powers in the matter of issuing writs which they never possessed before. There are only two limitations placed upon the exercise of such powers by a High Court; 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 court cannot run beyond the territories subject to its jurisdiction. The other is that the person or authority to whom 739 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. The remedy provided in article 226 of the Constitution is a discretionary one 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. Ryots of Garabandho vs Zamindar of Parlakimedi (70 I.A. 129) and Election Commission v; Saka Venkata Subba Rao ; referred to.

CIVIL APPEAL No. 141 of 1952. Appeal from the Judgment and Order dated the 29th August 1950 of the High Court of Judicature at Bombay (Chagla C.J. and Gajendragadkar J.) in Appeal No. 48 of 1950 arising out of the Judgment and Decree dated the 28th June 1950 of the said High Court (Bhagwati J.) in its Ordinary Original Civil Jurisdiction in Suit No. 438 of 1950. M.P. Amin (M. M. Desai and K.H. Bhabha with him) for the appellant. 679 M.C. Setalvad Attorney General for India and C. K. Daphtary Solicitor General for India (G. N. Joshi with them) for respondents Nos. 1 to 4 and 6 tO 8. M.C. Setalvad Attorney General for India (G. N. Joshi and Porus A. Mehta with him) for respondent No. 9. 1953. December 18. The following Judgments were delivered. PATANJALI SASTRI C.J. I have fully discussed and explained the meaning and effect of articles 19 and 31 in my Judgment just delivered in Civil Appeal No. 107 of 1952 The State of West Bengal vs Subodh Gopal Bose and Others. On that view I agree with my learned brothers that the impugned Ordinance authorises in effect a deprivation of the property of the Company within the meaning of article 31 without compensation and is not covered by the exception in clause (5)(b). (ii) of that article. The Ordinance thus violates the fundamental right of the. Company under article31(2) and the appellant as a preference shareholder who is now called upon to pay the moneys unpaid on his shares is entitled to impugn the constitutionality of the Ordinance. I also agree with my learned brother Mahajan that the previous of this Court in Chiranjit Lal Chowdhuri vs The Union of India and Others(2) is distinguishable and has no application here for the reasons mentioned by him. MAHAJAN J. This is an appeal from the judgment and decree of the High Court of Judicature at Bombay 'passed on the 29th day of August 1950 in Appeal No. 48 of 1950. The appeal concerns the validity of the same piece of legislation that was considered by this court in the case of Chiranjit Lad Chowdhuri (2). There an ordinary shareholder of the defendant company holding one fully paid up share claimed relief under article 32 of the Constitution of India on the ground that the provisions of the Sholapur Spinning & Weaving Company (Emergency Provisions) Act XXVIII of (1) ; (2) ; 680 1950 abridged his fundamental rights conferred under Articles 14 19 and 31 of the Constitution. This Court by a majority of 3 to 2 dismissed the petition holding that the presumption in regard to the constitutionality of the Act had not been displaced by the petitioner and that it had not been proved that the impugned statute was a hostile or a discriminatory piece of legislation as against him or that the State had taken possession of his share. The minority held that the impugned statute was void as it abridged the petitioner 's fundamental rights under article 14 of the Constitution. This decision was delivered on 4th December 1950. The suit out of which this appeal arises was decided by the High Court of Bombay during the pendency of Chiranjit Lal Chowdhuri 's petition in this court. Most of the facts furnishing the cause of action for the suit have been detailed in the judgment of this court in that case but it seems necessary to briefly re state them from a proper appreciation of the contentions that have been raised in the appeal. The Sholapur Spinning and Weaving Company Ltd. was incorporated under the Indian Companies Act with an authorized capital of Rs. 48 lakhs divided into 1 590 fully paid up ordinary shares of Rs. 1 000 each 20 fully paid up ordinary shares of 500 each and 32 000 partly paid up cumulative preference shares of Rs. 100 each the paid up capital of the company being Rs. 32 lakhs comprised of Rs. 16 lakhs fully paid up ordinary shares and Rs. 16 lakhs partly paid up preference shares Rs. 50 being unpaid on each of the 32 000 cumulative preference shares. The company did good business and declared high dividends for some time; but in the year 1949 there was accumulation of stocks and financial difficulties. In order to overcome this situation the directors decided to close the Mills and on the 27th July 1949 they gave notice of this decision to the workers. Pursuant to this notice the Mills were closed on the 27th August 1949. This created a labour problem and to solve it the Government on the 5th October 1949 appointed a 681 Controller to supervise the affairs of the Mills under the Essential Supplies Emergency Powers Act 1946. On the 9th November 1949 the Controller in order to resolve the deadlock decided to call in more capital and he asked the directors of the company to make a call of Rs. 50 per share on the preference shareholders the amount remaining unpaid on each of the preference shares. The directors refused to comply with this requisition as in their judgment that was not in the interest of the company. Thereupon the Governor General on the 9th January 1950 promulgated the impugned Ordinance under which the Mills could be managed and run by directors appointed by the Central Government. On the 9th January 1950 the Central Government acting under section 15 of the Ordinance delegated all its powers to the Government of Bombay. The Government of Bombay then appointed certain directors who took over the assets and management of the Mills. On the 7th February 1950 they passed a resolution making a call of Rs. 50 on each of the preference shares payable at the time stated in the resolution. Pursuant to this resolution a notice was addressed on the 22nd February 1950 to the plaintiff in the suit who held preference shares to pay Rs. 1 62 000 the amount of the said call on or before the 3rd April 1950. The plaintiff instead of meeting the demand filed the present suit on the 28th March 1950 in a representative capacity on behalf of himself and other preference shareholders against the company and the directors appointed by the Government of Bombay challenging the validity of the Ordinance and questioning the right of the directors to make the call. On the 19th April 1950 a notice was given to the Attorney General of India of the said suit and the Union of India was added as defendant No. 9 therein. The principal allegations in the suit were that the Ordinance was illegal ultra vires and invalid as it contravened the provisions of section 299 (2)of the Government of India Act 1935 and all the provisions contained in Part III of the Constitution and that the resolution of the directors dated 7th February 7 95 S.C. India/59. 682 1950 making a call was illegal and ultra vires as the law under which they were appointed was itself invalid. The plaintiff claimed relief in the form of a declaration regarding the invalidity of the Ordinance and prayed for an injunction restraining the directors from giving effect to the resolution. The defendants denied the correctness of the contentions put forward by the plaintiff. Mr. Justice Bhagwati who tried the suit framed the following issues therein : 1. Whether by the Ordinance the plaintiff and holders of preference shares have been deprived of their interest in the Ist defendant company by taking possession of or requisitioning or acquiring the same as alleged in para 6 of the plaint; 2. Whether section 4 (d) or ' the Ordinance is illegal ultra vires and void in law as alleged; and 3. Whether the resolution dated the 7th February 1950 made by defendants 2 to 6 is illegal ultra vires void and inoperative in law for the reasons mentioned in para 6 of the plaint or any of them. By his judgment dated the 28th June 1950 the learned Judges answered all the three issues in the negative and dismissed the suit and this decision was affirmed on appeal. It was held that by force of the Ordinance the State had neither acquired the property of the plaintiff nor of the company nor had it taken possession of it but that the title to the property and its possession were with the respective owners and the State was only supervising the affairs of the company through its nominated directors. It was further held that the Ordinance had not in any manner infringed the rights of the plaintiff under article 14 of the Constitution and there had been to him no denial of equality before the law or equal protection of laws as the Ordinance was based on a classification which rested upon a ground having a fair and substantial relation to the object of the legislation and that it had a reasonable basis for that classification. It was also held that the restrictions 683 imposed on the right of the appellant and the company to hold his or its property were imposed in the interests of the general public. The principal questions for consideration in this appeal are : 1. Whether the provisions of the Ordinance for taking over the management and administration of the company contravene the provisions of article 31 (2) of the Constitution; and 2. Whether the Ordinance as a whole or any of its provisions infringe articles 14 and 19 of the Constitution. In order to decide these issues it is necessary to examine with some strictness the substance of the legislation for the purpose of determining what it is that the legislature has really done; the court when such questions arise is not overpersuaded by the mere appearance of the legislation. In relation to constitutional prohibitions binding a legislature it is clear that the legislature cannot disobey the prohibitions merely by employing indirect method of achieving exactly the same result. Therefore in all such cases the court has to look behind the names forms and appearances to discover the true character and nature of the legislation. The preamble of the ' Ordinance states : "On account of mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning & Weaving Company Ltd. which has prejudicially affected the ' production of an essential commodity and has caused serious unemployment amongst a certain section of the community". Section 3 is the most material section and is in these terms : "The Central Government may at any time by notified order appoint as many persons as it thinks fit to be directors of the company for the purpose of taking over its management and administration and may appoint one of such directors to be the chairman. " 684 The provisions of this section are supplemented by what is subsequently provided for in section 12 which provides that notwithstanding anything contained in the Companies Act or in the memorandum or articles of association of the company it shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company that no resolution passed at any meeting of the shareholders of the company shall be given effect to unless approved by the Central Government and that no proceeding for the winding up of the company or for the appointment of a receiver in respect thereof shall lie in any court unless by or with the sanction of the Central Government and subject to such exceptions restrictions and limitations as the Central Government may by .notified order specify the Companies Act shall continue to apply to the company in the same manner as it applied thereto before the issue of the notified order under section 3. Section .4 states the effect of the order of the Central Government appointing directors. It provides that all the directors of the company who were holding office as such immediately before the issue of the notified order shall be deemed to have vacated their offices. In other words the directors elected and appointed by the shareholders stand automatically dismissed without more. Not only do the directors stand automatically dismissed by legislative action the managing agents also share their fate and their contracts come to an end. Section 4 directs the persons appointed under section 3 to take into custody and under their control all the property effects and actionable claims to which the company is or appears to be entitled and to exercise all the powers of the directors of the company whether those powers are derived from the Companies Act or from the memorandum or articles of association or from any other source. By section 5 these nominated directors are given powers to raise funds in such manner and offer Such security as they may deem fit. They are given the overriding power of cancelling and varying contracts and agreements 685 entered into between the company and ' any other person at any time if they are satisfied that the contract or the agreement is detrimental to the interests the company. Section 10 denies to the managing agents compensation for the ' premature termination of the contract of management entered into by the company and it also says that no person shall be entitled to compensation in respect of a cancelled or varied contract under this. Ordinance entered into with the company. The Ordinance thus confers powers on the directors of overriding all contracts and deprives persons who had entered into contracts with the company of their right under the ordinary law to recover compensation Sections 6 7 and 8 of the Ordinance lay down the method and ' manner how the existing directors were to give charge of the company 's affairs and properties. to the directors nominated by the Central Government under section 3 and any default in the matter of handing over charge is made punishable by imprisonment or other punitive action. The result of these provisions is that all the properties and effects of the company pass into the hands of persons nominated by the Central Government who are not members of the company or its shareholders or in any way connected with it and who are merely the creatures of the Central Government or its dummies. The combined effect of the provisions of sections 3 4 and 12 is that the Central Government becomes vested with the possession control and management of the property and effects of the company and the normal function of the company under its articles and the Indian Companies Act comes to an end. The shareholders ' most valuable right to appoint directors to manage the affairs of the company and be in possession of its property and effect is taken away. Resolutions passed by them lose all vigour and become subject to the veto of the Central Government. Their power of voluntarily winding up the company formed by them or of winding it up through court also becomes subject to the veto of the Central Government. The Central Government by 686 executive action can override if it likes all the provisions of the Indian Companies Act. In substance therefore by the provisions of this Ordinance the company and its shareholders as well as 'its directors and managing agents have been completely deprived of possession of the property and effects of the company and its possession has been taken by the Central Government i.e. by the Union of India. The undertaking purports to have been taken over for a public purpose namely to keep up the production of an essential commodity and to avoid serious unemployment amongst a certain section of the people. The majority of the court in Chiranjitlal Chowdhuri 's case(1) was inclined to take the view that that was the true effect of the provisions of the Ordinance. Mukherjea 1. with whose views Kania C.J. concurred and to whose views to a certain extent Fazl Ali 1. subscribed. on this part of the case said as follows : "Mr. Chaff on the other hand has contended on behalf of the petitioner that after the management is taken over by the statutory directors it cannot be said that the company still retains possession or control over its property and assets. Assuming that this State management was imposed in the interests of the shareholders themselves and that the statutory directors are acting as the agents of the company the possession of the statutory directors could not it is argued be regarded in law as possession of the company so long as they are bound to act in obedience to the dictates of the Central Government and not of the company itself in the administration of its affairs. Possession of an agent it is said cannot juridically be the possession of the principal if the agent is to act not according to the commands or dictates of the principal but under the direction of an exterior authority. There can be no doubt that there is force in this contention." Mr. Justice Patanjali Sastri as he then was held that the effect of the Act was that all the properties and effects of the company passed into the absolute (1) ; 687 power and control of the Central Government and the normal function of the company as a corporate body came to an end. Mr. Justice Das on this part of the case said as follows : "It is however urged by the learned Attorney General that the mills and all other assets now in the possession and custody of the new directors who are only servants or agents of the said company are in the eye of the law in the possession and custody of the company and have not really been taken possession of by the State. This argument however overlooks the fact that in order that the possession of the servant or agent may be juridically regarded as the possession of the master or principal the servant or agent must be obedient to and amenable to the directions of the master or principal. If the master or principal has no hand in the appointment of the servant or agent or has no control over him or has no power to dismiss or discharge him as in this case the possession of such servant or agent can hardly in law be regarded as the possession of the company. In this view of the matter there is great force in the argument that the property of the company has been taken possession of by the State through directors who have been appointed by the State in exercise of the powers conferred by the Ordinance and the Act and who are under the direction and control of the State and this has been done without payment of any compensation . . . . Here therefore it may well be argued that the property of the company having been taken possession of by the State in exercise of powers conferred by a law which does not provide for payment of any compensation the fundamental right of the company has in the eye of the law been infringed. " The learned Attorney General combated this view and strenuously argued that the Ordinance could not be construed in the manner suggested above and on its true construction its effect was that the Government took under its superintendence the affairs of the company without in any way disturbing its title in the property and that the shareholders have still to a certain extent an effective voice in its affairs. Illustratively 688 he said that ' the company was in the same state as a disqualified owner is under the provisions of the Court of Wards Act and that the provisions of the Ordinance should be construed in that light. To emphasize the same point of view reference was also made to the provisions of the Lunacy Act the provisions of sections 52 A and 52 B introduced in the Insurance Act by Act 47 of 1950 the provisions of the Railway Companies Emergency Powers Act (51 of 1951) and also to the provisions of Act 65 of 1951 (Development of Industries Act) and it was contended that the impugned Ordinance was a piece of social control. legislation as were the provisions contained in the statutes referred to above. In my opinion these contentions. are not well founded. Reference to illustrative pieces of legislation designed on the same pattern is neither very happy nor apposite; on the other hand it is apt to mislead because except in the case of the Court of Wards Act all the laws to which reference was made were enacted after the enactment of the Ordinance in question. The different Court of Wards Acts being existing laws have been excepted from the fundamental right guaranteed by article31 (2). That being so they can afford little assistance in judging the validity of the impugned law. In dealing with constitutional matters of this kind it is always well to bear in mind what Bradley J. speaking for the court said in Boyd v United States(1) at page 635 : "Illegitimate and unconstitutional practices get their first footing in that way namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon (1) ; 689 These illustrative pieces of ' legislation to which the learned Attorney General made reference may well have to be judged in the light of these observations when occasion arises. Reference may also be made to the observations of Holmes C.J. in Pennsylvania Cod Co. vs Mahon(1), wherein that learned Judge said as follows : As long recognized some values were enjoyed under an implied limitation and must yield to police power but obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. " In my judgment in the determination of all such cases no abstract standard or general rule can be laid down and the question is really one of degree and hence its determination depends on the facts of each case. In these circumstances what is to be determined here is:whether the provisions of the Ordinance have not overstepped the limits of social legislation and whether they do not come within the ambit of article 31 (2). The Ordinance in question is not a law of a general character and ' applicable to all companies that may fall in a particular category or class. It deals only with a single company and it is difficult to say that mismanagement is a vice peculiar to this company alone and good management 'is a virtue possessed by all other incorporated companies. That being so can it be reasonably held that by promulgating this Ordinance the Government has merely taken over the superintendence of the affairs of the company ? Or has it in effect and substance taken over the under taking itself ? Obviously the field of superintendence has to be ' demarcated from the field of eminent domain. It is one thing to superintend the affairs of a concern and it is quite ' another thing to take over its affairs (1) 690 and then proceed to carry on its trade through agents appointed by the State itself. It seems to me that under the guise of superintendence the State is carrying on the business or trade for which. the company was incorporated with the capital of the company but through its own agents who take orders from it and are appointed by it and in the appointment and dismissal of whom the shareholders have absolutely no voice. The purpose of taking over the company 's undertaking is a public purpose namely to keep the labour going and contended and to maintain the supply of essential commodity. The company is debarred from carrying on its business in the manner and according to the terms of its charter. Its old complexion stands changed by the terms of the Ordinance. The Ordinance overrides the directors deprives the shareholders of their legal rights and privileges and completely puts an end to the contract of the managing agents. Without there being any vacancy in the number of directors new directors step in and old directors and managing agents stand dismissed. Exercise of any power by them under the articles is subject to heavy penalties. In this situation it is not possible to subscribe to the contention of the learned AttorneyGeneral that the effect of the Ordinance is that the Central Government has taken over the superintendence of the affairs of the company and that the impugned legislation is merely regulative in character. In the present case practically all incidents of ownership have been taken over by the State and all that has been left with the company is mere paper ownership. This Ordinance in my judgment is an apposite illustration of what Holmes C. J. had in mind when he made the following observations in the case already referred to : "Where the seemingly absolute protection in respect of private property given by the Constitution is found to be qualified by the police power the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. We are in danger of forgetting that a strong public desire to improve the public 691 condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change and that the general rule is that while property may be regulated to a certain extent but if the regulation goes too far it will be recognized as a taking. " For the reasons given above I am of the opinion that the impugned statute has overstepped the limits of legitimate social control legislation and has infringed the fundamental right of the company guaranteed to it under article 31(2) of the Constitution and is therefore unconstitutional. Next it was contended that the Ordinance in question in any event could not fall within the mischief of article 31 (2) because the State had not acquired title in the property of the company under its provisions and that whatever possession had been taken had been taken for the purpose of managing the company 's property on the company 's behalf and that it had not been requisitioned for any State purpose. It was said that unless the property of the company by the provisions of the Ordinance was vested in the State or was commandeered by the State for State purposes article 31 (2) could not be invoked to judge the constitutionality of the Ordinance that article 31 (2) covered within its ambit only two forms of taking of property by the State namely where the State acquired title in the property or where the State temporarily commandeered it and that all other forms of taking the property were outside the fundamental right guaranteed by article 31 (2). It was suggested that the scope of the protection given to private property by our Constitution was not as large as it was contained in the Fifth Amendment of the Constitution of the United States of America. According to the learned Attorney General the true content of the fundamental right guaranteed by article 31 (1) was that a person could not be deprived of his property except by statutory authority but once a law was made depriving a person of his property then the article afforded no further protection. Support for this 692 contention was sought to be derived from the reasoning employed in Gopalan 's case (1). There 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 no longer be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In like manner it was argued that the freedom relating to property guaranteed by article 19 also vanished as soon as a person was deprived of his property under a law enacted by an appropriate legislature. The learned Attorney General suggested that the two clauses of article 31 were in the nature of two exceptions to the provisions of article 19 (1) (f). The first exception was that the guarantee of freedom given by article 19 (1)(f) could be defeated simply by enacting a statute and the second exception was that it could also be defeated by the State acquiring title ' in the property in exercise of its power of eminent; domain ' within the limited field prescribed by article 31 (2) but that if a certain deprivation of property did not fail within the prescribed ' field of article 31 (2) and fell within article 31 (1) then for such deprivation no compensation was payable. As regards clause (5) which excepted certain laws from the ambit of article 31 (2) it was argued that this clause had been inserted in the article by way of abundant caution. In my judgment none of these ' contentions have any validity. The construction sought to be placed by the learned Attorney General on the language of article 31 is neither borne out by the phraseology employed in that article nor by the scheme of Part III of the Constitution. It seems to me that our Constitution subject to certain exceptions has guaranteed the fullest protection to private property. It has not only provided that no person can be deprived of property by the executive without legislative sanction but it has further provided that even the legislature cannot deprive a person of his property unless there is a public purpose and ' then only on payment of compensation. This article provides as follows : (1) ; 693 "31. (1) No person shall be deprived of his property save by authority of law. (2) No property movable or immovable including any interest in or in any company owning any commercial or industrial undertaking shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation or specifies the principles on which and the manner in which the 'compensation is to be determined and given. (3) No such law as is referred to in clause (2) made by the Legislature of a State shall have effect unless such law having been reserved for the consideration of the President has received his assent. (4) If any Bill pending at the commencement of this Constitution in the legislature of a State has after it has been passed by such Legislature been reserved for the consideration of the President and has received his assent then notwithstanding anything in this Constitution the law so assented to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2). (5) Nothing in clause (2) shall affect (a) the provisions of any existing law other than a law to which the provisions of clause (6) apply or (b) the provisions of any law which the State may hereafter make (i)for the purpose of imposing or levying any tax or penalty or (ii) :for the promotion of public health or the prevention of danger to life or property or (iii) in pursuance of any agreement entered into between the Government of the Dominion of India or the GoVernment of India and the Government of any other country or otherwise with respect to property declared by law to be evacuee property. 694 (6) Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification; and thereupon if the President by public notification so certifies it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of this article or has contravened the provisions of sub section (2) of section 299 of the Government of India Act 1935. " It bears the heading "Right to Property". It is significant that the different articles in Part III have been put in several groups each bearing a heading of its own. These headings briefly indicate the nature and character of the fundamental rights thus grouped. The first group of articles 14 to 18 bears the heading "Right to Equality". The fundamental right of equality in matters of law religion social status etc. is mentioned in the different articles grouped under this heading. Articles 19 to 22 have been grouped under the heading "Right to Freedom". Not only are the protections given against deprecation of personal freedom mentioned in this group but it also mentions cases where personal freedom can be deprived by certain laws. Similarly other articles in this part have been grouped under the headings "Right against exploitation" "Educational rights" and "Constitutional remedies". Under this scheme the fundamental right regarding property apart from personal and property freedoms has been dealt with in this part separately as a self contained provision and as a distinct subject from the various freedoms declared by article 19. In considering article 31 it is significant to note that it deals with private property of persons residing in the Union of India while article 19 only deals with citizens defined in article 5 of the Constitution. It is thus obvious that the scope of these two articles cannot be the same as they cover different fields. It cannot be seriously argued that so far as citizens are concerned freedoms regarding enjoyment of property have been granted in two articles of the Constitution while the protection to property qua all 695 other persons has been dealt with in article 31 alone. If both articles covered the same ground it was unnecessary to have two articles on the same subject. The true approach to this question is that these two articles really deal with two different subjects and one has no direct relation with the other namely article 31 deals with the field of eminent domain and the whole boundary of that field is demarcated by this article. In other words the State 's power to take the property of a person is comprehensively delimited by this article. The article has been split up in six clauses. Moreover by the amendment of the Constitution certain kinds of laws have been exempted from the operation of the article or from the whole of Part III of the Constitution by the addition of articles 31A and 31B. Article 31(1) declares the first requisite for the exercise of the power of eminent domain. It guarantees that a person cannot be deprived of property by an executive fiat and that it is only by the exercise of its legislative powers that the State can deprive a person of his property. In other words all that article 31(1)says is that private property can only be taken pursuant to law and not otherwise. A reference to Cooley 's Constitutional Limitations fully bears out what the true content of article 31(1) is. This is what he has said at page 1119 (8th edn.) : "Legislative authority requisite: The right to appropriate private property to public uses lies dormant in the State until legislative action is had pointing out the occasions the modes conditions and agencies for its appropriations. Private property can only be taken pursuant to law. " Article 31 (2) defines the powers of the legislature in the field of eminent domain. It declares that private property shall not be taken by the State under a law unless the law provides for compensation for the property taken. It is also implicit in the language of the article that such taking can only be for public purposes. Clause (3) of the article places an additional limitation on State laws enacted on this subject while clause (4) limits the justiciability of the quantum of compensation in certain cases. Clause (5) is the saving clause. It saves 696 from the operation of clause (2) laws made on certain subjects. The scope of the first clause being merely to save private property from being taken purely by executive action and the only clause which limits 'legislative action in the field of eminent domain being clause (2) the saving clause therefore concerns itself with clause (2) only. As pointed out in Willis on Constitutional Law at ' page 716 police power power of taxation and eminent domain are all forms of social control and probably include all the forms of social control known to the law: but each differs from the others; though it is possible to distinguish each from the others yet each has characteristics which resemble the characteristics of others and there are times when it is very difficult to draw a line between the one and the others. The saving clause (5) in article 31 has been designed with the express purpose of saving to a certain extent laws made in exercise of the police power of the State which may lead to deprivation property. It has also saved laws relating to tax. It has thus delimited from the field of eminent domain the field of exercise of police power and the exercise of the power of taxation. Not only has it saved from the mischief of clause (2) of article 31 provisions of laws made for the purpose of imposing or levying any tax or penalty and the laws made for promotion of public health or the prevention of danger to life or property but it has also saved from the mischief of the clause the provisions of all existing laws which may be construed as amounting to deprivation of property of a person as well as evacuee property laws under which the State takes possession of properties of persons who have left India for Pakistan. In the result the saving clause comprehensively includes within the ambit all the powers of the State in exercise of which it could deprive a person of property without payment of compensation. In other words all forms of deprivation of property by the State without payment of compensation have 'been included within the ambit of the exception clause while other forms of deprivation of property which are outside the ambit of the exception 697 clause are inevitably within the mischief of clause (2) of the article. From the language employed in the different sub clauses of article 31 it is difficult to escape the conclusion that the words "acquisition" and "taking possession" used in article 31 (2) have the same meaning as the word "deprivation" in article 31(1). The learned Attorney General suggested that much weight could not be attached in construing article 31 to the provisions of clause (5) inasmuch as the saving clause had been introduced by the article merely by way of abundant caution. I am unable to accede to this contention as it seems to me that the Constitution while defining and delimiting fundamental rights would not introduce in the articles dealing with those rights some matter merely by way of abundant caution. To my mind it was essential while delimiting and defining fundamental rights to fully define the field of the right and to say what was not included within that right. As already said the article read as a whole comprehensively defines the State 's power of eminent domain as distinguished from all its other powers the exercise of which may amount to the taking of private property. The argument that these exceptions were incorporated in article 31 by way of abundant caution further stands negatived by the contents of sub clause (5) (b) (ii) of the article. Only laws made for the promotion of public health or for prevention of danger to life or property have been excluded from the mischief of clause (2) of the article while other laws made in exercise of power of social control which deprive a person of property have not been saved from the operation of clause (2). Illustratively laws made by the State dealing with morality and which may lead to deprivation of property are outside the ambit of the exception clause. A fortiori any deprivation of property under a law made for promotion of morality would fail within the mischief of clause (2) of article 31. It is thus clear that only that form of legislation which promotes public health or prevention of danger to life or property is saved from the provisions of article 31(2) while other laws made in exercise of the power of social control if they deprive a person of 8 95 S.C.I./59 698 property are not saved from the operation of clause (2) of article 31. In support of his contention that the content of article 31(1) was larger than that of article 31(2) and that except in cases where the form of taking private property took the shape of acquisition of title or requisition for State uses in all other cases the State could deprive a person of his property by simply making a law the learned Attorney General placed reliance on the following observations of my brother Das in Chiranjit Lal Chowdhuri 's case(1) : "Article 31 (1) formulates the fundamental right in a negative form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31(2) prohibits the acquisition or taking possession of property for a public purpose under any law unless such law provides for payment of compensation. It is suggested that clauses (1)and (2) of article 31 deal with the same topic namely compulsory acquisition or taking possession of propetty clause (2) being only an elaboration of clause (1) There appear to me to be two objections to this suggestion. If that were the correct view then clause (1) must be held to be wholly redundant and clause (2) by itself would have been sufficient. In the next place such a view would excludedeprivation of property otherwise than by acquisitionor taking of possession. One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example in any emergency in order to prevent a fire spreading the authorities may have to demolish an intervening building. This deprivation of property is different from acquisition or taking of possession of property which goes by the name of 'eminent domain ' in the American law. The construction suggested implies that our Constitution has dealt with only the law of 'eminent domain ' but has not provided for deprivation of property in exercise of (1) ; 699 'police power '. I am not prepared to adopt such construction for I do not feel pressed to do so by the language used in article 31. On the contrary the language of clause (1) of article 31 is wider than that of clause (2) for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it. I think clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law which put in a positive form implies that a person may be deprived of his property provided he is so deprived by authority of law. No question of compensation arises under clause (1). The effect of clause (2) is that only certain kinds of deprivation of property namely those brought about by acquisition or taking possession of it will not be permissible under any law unless such law provides for payment of compensation. If 'the deprivation of property is brought about by means other than acquisition or taking possession of it no compensation is required provided that such deprivation is by authority of law. " Similar observations were made by my brother in the Bihar Zamindari case(1). Undoubtedly great weight must be given to the opinion expressed on this question by my learned brother and had I not felt ' convinced that his approach to this question was illiberal and restricted I would have hesitated to differ from his views. After a full consideration of the problem and after giving due weight to the reasoning of my learned brother I am unable for reasons above stated ' to agree with him. The objections envisaged by my brother in Chiranjit Lal Chowdhuri 's case (2) against the suggestion that clauses (1) and (2) of article 31 deal with the same topic of compulsory acquisition or taking of property do not at all oppress me and do not seem to me to be insurmountable or cogent. On the assumption that clauses (1) and (2) of article 31 deal with the same topic it is not clear to me why in that context article 31(1) somehow becomes (1) (2) ; 700 redundant. This is the only clause in the article which gives protection to private property from being taken Under executive orders without legislative sanction behind them. The first requisite for the exercise of the power of eminent domain is that it can only be exercised pursuant to law. It was necessary while delimiting the field of eminent domain to state that in the article. If the State had been entitled by clause (1) to take away private property merely by making a law then no question of paying compensation would arise whether the taking assumed one form or another. Acquisition of property or its requisition on that construction of the article are merely two modes of depriving a person of property and must be held to be included within the ambit of clause (1)of article 31 and clause (2) has not been drafted in the nature of an exception to the provisions of clause (1) of article 31. On this construction of clause (1) of article 31 the logical conclusion is that what has been done by this clause 'is that it has declared a fundamental right in the State as against an individual. Such a construction of the article in Part III in my opinion has to be avoided as the purpose of those articles is to declare the fundamental rights possessed by the citizens or other persons residing within the Union rather than to declare the rights of the State against them. Secondly my learned brother was oppressed with the idea that if a wide construction was not placed on the phraseology employed in clause (1) deprivation of property by the State in cases Of emergency for instance in order to prevent a fire from spreading would also have to be paid for. It seems that in that case pointed attention was not drawn during arguments to the comprehensive provisions of the saving clause of the article which seems fully to cover cases of that kind. The ConstitUtion makers were fully alive to cases of that character and considering that all such cases unless excepted would fall within the mischief of clause (2) they purposely excepted them from the ambit of the clause. 701 The majority of the court in Chiranjit Lal Chowdhuris case(1) refrained from expressing any opinion on the scope of article 31 (1). My brother Mukherjea made a reference to this question but declined to express any opinion on it. There is thus no consensus of opinion on the scope of the provisions of clause (1) of article 31 in this court and no final opinion has been pronounced upon it so far. The result of the above discussion is that in my opinion article 31 is a self contained provision delimiting the field of eminent domain and article 31 clauses (1) and (2) deal with the same topic of compulsory acquisition of property. The contention of the learned Attorney General that on the analogy of the decision of this court in Gopalans case(2) it should be held that when a person is deprived of private property by authority of law that deprivation puts an end to all the freedoms regarding property guaranteed under article 19 does not require any detailed examination in the light of the construction placed by me on the language of article 31(1). It was conceded by the learned counsel that that decision would have had no application once it was held that clauses (1) and (2) of article 31 dealt with the same topic of compulsory acquisition of property. The next contention of the learned counsel that the word "acquisition" in article 31 (2) means the acquisition of title by the State and that unless the State becomes vested with the property there can be no acquisition within the meaning of the clause and that the expression "taking possession" connoted the idea of requisition cannot be sustained and does not to my mind affect the decision of the case. As above pointed both these expressions used in clause (2) convey the same meaning that is conveyed in clause (1) 'by the expression "deprivation". As I read article 31 it gives complete protection to private property as against executive action no matter by what process a (1) ; (2) ; 702 person is deprived of possession of it. In other words the Constitution declares that no person shall be deprived of possession of private property without payment of compensation and that too under the authority of law provided there was a public purpose ' behind that law. It is immaterial to the person who is deprived of property as to what use the State makes of his property or what title it acquires in it. The protection is against loss of property to the owner and there is no protection given to the State by the article. It has no fundamental right as against the individual citizen. Article 31 states the limitations on the power of the State in the field of taking property and those limitations are in the interests of the person sought to be deprived of his property. The question whether acquisition has a larger concept than is conveyed by the expression "taking possession" is really of academic interest in view of the comprehensive phraseology employed by clause (2)of article 3L As the matter was argued at some length I propose to briefly indicate my opinion on that point. For the proposition that the expression "acquisition" has the concept of vesting of title in the State reliance was placed on the opinion of Latham C.J. in Minister of State for the Army vs Dalziel(1 ). By virtue of the provisions of section 51 placitum (xxxi) of the Constitution of Australia the Commonwealth Parliament is empowered to make laws with respect to "the acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws." General regulations styled as the National Security Regulations were made under the national Security Act 1939 1943 section 5 Regulation 54 relates to the taking of possession of land by the Commonwealth and other regulations provide for the ascertainment and payment of compensation for toss or damage suffered by reason of things done in pursuance of the regulation. The Supreme Court of New South Wales ' held that taking possession of land in pursuance of Reg. 54 amounted to acquisition (1) 68 C.W.L.R. 261. 703 of property within the meaning of section 51 (xxxi)of the Constitution On appeal Latham C.J. made the following observations : "The Commonwealth cannot be held to have acquired land unless it has become the owner of land or of some interest in land. If the Commonwealth becomes only a possessor but does not become an owner of land then though the Commonwealth may have rights in respect to land which land may be called property the Commonwealth has not in such a case acquired property . . Accordingly m my opinion the facts that the right to possession n is the most valuable attribute of ownership that possession is prima facie evidence of ownership and that possession may develop into ownership do not justify any identification of possession with ownership but on the contrary emphasize the distinction between the two ideas. The fact that the Commonwealth is in possession of land as a result of action under the Regulations does not show that the Commonwealth has become the owner of the land or of any estate in the land". The majority of the court held otherwise and expressed the opinion that the taking under Regulation 54 of the National Security (General) Regulations by the Commonwealth for an indefinite period of the exclusive possession of property constituted an acquisition of property within the meaning of section 51 (xxxi) of the Constitution. This is what Rich J. said representing the majority opinion : "It would in my opinion be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorizing the acquisition of n citizen 's full title except upon just terms it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely on any terms it chooses or upon no terms at all. In the case now before us the Minister has seized and taken away from Dalziel everything that made his weekly tenancy worth having and has left him with the empty husk of tenancy. In such circumstances he may well say : 704 'You take my house when you do take the prop That doth sustain my house; you take my life When you do take the means whereby I live. '" In the present case nothing has been left with the company but the mere husk of title. In my judgment the true concept of the expression "acquisition" in our Constitution as well as in the Government of India Act is the one enunciated by Rich J. and the majority of the court in Dalzie 's case(1). With great respect I am unable to accept the narrow view that "acquisition" necessarily means acquisition of title in whole or part of the property. It has been tightly said that a close and literal construction of constitutional provisions made for the security of person and property deprives them of half their efficacy and ends in a gradual depreciation of the right as if the right consisted more in sound than in substance. In other words such provisions cannot be construed merely by taking a dictionary in hand. The word "acquisition" has quite a wide concept meaning. the procuring of property or the taking of it 'permanently or temporarily. It does not necessarily imply the acquisition of legal title by the State in the property taken possession of. The learned Attorney General combated this view and contended that such a wide concept of the meaning of the word "acquisition" was contrary to legislative practice in India which practice was in accord with the view enunciated by Latham C.J. in the case above cited. It was said that the decided cases in India supported that con struction of the word. Reference was made to a decision of Bhagwati 1. in Tan Bug Taim vs Collector Bombay(2). That case concerned the requisition by the State of the premises of a leading Bombay Chinese restaurant. On a petition presented to court under section 45 of the Specific Relief Act Bhagwati 1. held that having regard to the principles applicable to British jurisprudence which had been enacted in section 299 (1) and (2) of the Government of India Act (1) 68 C.W.L.R 261. (2) I.L.R. 1946 Born. 705 requisition of land could not be considered as being included either in item 9 or item 21 of List II of the 7th Schedule of the Act that the word "acquisition" implied ownership in the property or rights in or over such property while "requisition" implied deprivation of the owner of the property for the time being of the use and possession thereof and meant control of the property and that there was no warrant for holding that so far as legislative practice in India was concerned "requisition"was included in "acquisition". The learned Judge preferred to follow the view of Latham C.J. and refused to follow the majority judgment in Dalziel 's case(1). Having considered the matter in full and with respect to the learned Judge I prefer to follow the view of the majority of the court because it seems to me that it is more in consonance with juridical principle that possession after all is nine tenths of ownership and once possession is taken away practically everything is taken away and that in construing the Constitution it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect. As already said the correct approach in such cases should be this: what in substance is the loss or injury caused to the owner and not what manner and method has been adopted by the State in taking the property. That the view expressed by Bhagwati J. did not truly represent the intent of Parliament in drafting entry 9 of List II of the 7th Schedule becomes clear from what happened subsequent to this pronouncement. After this judgment was delivered an Act was passed by Parliament amending the Government of India Act nullifying the effect of the judgment as regards requisition of property. The Indian (Proclamation of Emergency) Act 1945 (9 & 10 Geo. 6 Ch. 23) was promulgated on February 14 1946 the judgment of Bhagwati J. having been delivered on August 9 1945 section 102 of the Government of India Act was amended and by it the Central Legislature when a proclamation of emergency was in force (1) 68 C.W.L.R. 261. 706 was empowered to make laws for a province or a part thereof in respect of any matters not enumerated in any of the lists of the 7th Schedule. Reference was also made to certain observations of my brother Das in Chiranjit Lal Chowdhuri 's case(2) 'in which the opinion was expressed that the 'word "acquisition" had implicit in it the idea of vesting of property in property in the State. For the reasons already given with great respect I am unable to subscribe to that view. Reference was also made to a decision of the Punjab High Court in Jupiter General Insurance Co. vs Rajagopalan (2). This case concerned the provisions of sections 52 and 52(a) of the Insurance Amendment Act 1950. It was contended there that those provisions abridged the fundamental rights guaranteed by article 31(2) of the Constitution. In view of the decision of this Court in Chiranjit Lal Chowdhuri 's case(1) the Punjab High Court construed the word "acquisition" in the narrower sense and held that as the beneficial interest in the property remained in the insurer the provisions of the impugned section did not amount to appropriation of the insurer 's property and merely amounted to exercise of police power. It was further held that the pith and sub stance of the impugned legislation was the regulation of insurance companies and winding up such corporations if that was most advantageous to the general interest of policy holders. It is unnecessary for the purpose of this case to say anything about the correctness of that decision. In the light of these different decisions the Constitution employed more comprehensive phraseology in article 31 than had been employed in the entries of the 7th Schedule appended to the Government of India Act 1935 and which became the subject matter of construction in the case decided by Bhagwati J. In the entries of the 7th Schedule appended to the Constitution the word used is "requisition" but the same phraseology has not been employed purposely in clause (2)of article 31 in all (1) ; (2) A.I.R. 1952 Punjab 9 707 probability to avoid any controversy on the scope of the article by giving a limited meaning to these two words. On the finding that the company 's property was in effect taken possession of under the provisions of the Ordinance by the State and that the company was deprived of it there is no escape from the conclusion that the impugned Ordinance and the statute following it are void as both of them encroach on the fundamental right of the company under article 31(2) of the Constitution. It was then argued that even so the plaintiff in the suit was not entitled to the relief claimed by him as it was the company alone that could complain about the abridgement of its fundamental rights by the Ordinance in question. It was also contended that the plaintiff 's fundamental right to property had not been infringed in any manner as his property in the share had not been taken possession of by the State. Finally it was said that on both these questions the majority decision of this court in ChiranJit Lal Chowdhuri 's case(1) was conclusive. I am unable to sustain any one of these contentions. Undoubtedly the majority decision in Chiranjit Lal Chowdhuri 's case (1) has binding force till it is reconsidered or overruled by this court. But this decision in my opinion has no apposite application to the facts and circumstances of this case and is clearly distinguishable. My reasons for saying so are these : 1. The decision in Chiranjit Lal Chowdhuri 's case(1) was given on a petition presented to this court in exercise of its jurisdiction under article 32 of the Constitution. Inter alia Chowdhuri 's grievance was that his fundamental right under article 31(2)of the Constitution had been infringed by the impugned law inasmuch as the State had taken possession of the company 's property and that all the rights and privileges annexed to his share had thereby been lost. The majority of the court took the view that the petitioner was still in possession of his share and that he had power to dispose of that share that he could (1) ; 92 708 receive a dividend on that share and that though he had lost some of the privileges annexed to his share it could not be said that the State had taken possession of his share or was exercising the privileges which he enjoyed as a shareholder. The situation however of the present plaintiff and of all the preference shareholders whom he represents is quite different. Chiranjit Lal was an ordinary shareholder of a fully paid up share. The plaintiff and the other preference shareholders are in a different situation from Chiranjit Lal. All of them hold partly paid up preference shares on which their liability amounts to a sum of Rs. 16 lakhs the plaintiff alone being under a liability of Rs. 1 62 000. In case this liability is not met when it is sought to be enforced the shares are liable to forfeiture. The plaintiff and the other preference shareholders therefore are in imminent danger of losing the shares themselves or losing valuable property in the nature of money which they will have to pay out in order to meet the call. For all practical purposes the plaintiff is in danger of losing valuable property which the State is threatening to take possession of. Not only will these shareholders lose their shares and be deprived of them but they will also be forced to pay large sums of money and all this will be in exercise of the powers conferred on the directors appointed by the State by the Ordinance in question. There can thus be no comparison between the rights and liabilities of Chiranjit Lal with the rights and liabilities of the present plaintiff and the other preference shareholders. The rights and privileges of preference shareholders even in winding up and in earning dividends are somewhat different from the rights and privileges of the ordinary fully paid up shareholders. The court in Chiranjit Lal Chowdhuri 's case(1) did not at all advert to the case of preference shareholders and the effect the Ordinance had on their rights. It is evident that it was the refusal of the directors to obey the mandate of the Controller appointed by the Central Government to make a call on the preference (1) ; 709 shareholders that to a certain extent resulted in the making of the Ordinance. On the 5th October 1949 the Government appointed a Controller to supervise the affairs of this company. On the 9th November 1949 the Controller asked the directors of the company to make a call on the preference shareholders. Soon after the directors passed a resolution refusing to comply with the command. On the 9th January 1950 the Ordinance was promulgated i.e. soon after the refusal and on the same day powers were delegated by the Central Government to the Bombay Government under the Ordinance. Next day on the 10th January 1950 the Bombay Government appointed its nominees as directors of the company. On the 7th February 1950 these directors passed a resolution to call up the uncalled capital and actually on the 22nd February 1950 call was made and the plaintiff was called Upon to pay a sum of Rs. 1 62 000. In these circumstances it cannot be held to be an unreasonable inference that one of the purposes of the Ordinance was to raise further finance for the business of the company so that it may start working. In any case that was clearly the effect of the Ordinance on the property of the preference shareholders. In these circumstances it cannot be said that on the rule of stare decisis the plaintiff is out of court in view of that decision. In the case of Chiranjit Lal Chowdhuri(1) the court was influenced considerably by. the fact that a solitary shareholder was trying to enforce the company 's fundamental right in the exercise of its jurisdiction under article 32 and that he could not do so unless his own fundamental right under article 31 (2) had been infringed. It was said that the complainant could not succeed because somebody else was hurt and that it was an elementary principle of law that in order to justify the grant of extraordinary relief the complainant 's need of it and the absence of an adequate remedy at law must clearly appear. Das J. also pointed out that article 32 can only be invoked for the purpose of enforcement of the fundamental right and that that article does not permit an application merely (1) ; 710 for the purpose of agitating the competence of the appropriate legislature in passing any particular enactment unless the enactment also infringes any of the fundamental rights. The learned Judge concluded by saying "In exceptional cases where the company 's property is injured by outsiders a shareholder may under the English law after making all endeavours to induce the persons in charge of the affairs of the company to take steps file a suit on behalf of himself and other shareholders for redressing the wrong done to the company but that principle does not apply here for this is not a suit nor has it been shown that any attempt was made by the petitioner to induce the old directors to take steps nor do these proceedings purport to have been taken by the petitioner on behalf of himself and the other shareholders of the company. " Here it is quite clear that the present contention has been raised in a suit and not in an application for a writ under article 32. That itself distinguishes Chiranjit Lal Chowdhuri 's case(1) from the present. It is further clear that all the necessary steps visualised by my learned brother have been taken by the preference shareholders. A requisition ' for calling a meeting of the shareholders of the company was made on 3rd August 1950 a meeting was actually held on 28th September 1950 and on subsequent days and on 5th November 1950 resolutions were passed that the call should not be made. The resolutions were however vetoed by the Government. All the preference shareholders are represented in this suit including some of the directors the company has been impleaded as a defendant and the old directors of the company have made an application that they should be allowed tO support the appeal. On these facts the present case is clearly distinguishable from that of Chiranjit Lal Chowdhuri(2). In any case even if it is held that in view of the binding character of this court 's decision in Chiranjit Lal Chowdhuri 's case(1) the point is concluded that the State has not taken possession of the shareholders property I am of the opinion that the plaintiff (1) ; 711 and the other preference shareholders are entitled in this suit to attack the validity of the Ordinance on the basis of the infringement of the fundamental right of the company. The plaintiff has every right to challenge the authority of the directors to make the call and to question their locus standi before they can fix a liability on him. The directors seek to derive authority from the Ordinance. If however the Ordinance is void as against the company obviously they are not to be regarded as the directors of the company and would thus have no authority to make the call. It would indeed 'be a strange thing to hold that the plaintiff in a suit cannot question the authority and the credentials of the person who is seeking to enforce a demand against him. Unless the person making the demand makes out his authority or his credentials to do so he is not entitled to enforce the demand. In all cases where a pecuniary or other similar liability is sought to be enforced by a person it is always open to the person challenging the liability to raise the question of the locus standi and authority of the person making the demand. 'If that person claims in the status of an agent of some other person unless his appointment is validly made he would have no authority. In this case the shareholders under the articles of association were under a contractual liability to meet calls made by the directors of the company appointed by ' them. They never agreed to meet a call made by persons appointed by an external authority and in these circumstances they are entitled to question the authority of the person making the call. The directors appointed by the Government can only invoke in aid the authority given to them by the Ordinance and if the Ordinance is void as against the company they cannot be held to be directors of the company and would therefore have no authority to make the call. In my judgment therefore it is plain that the plaintiff is entitled to succeed on the basis of the infringement of the company 's fundamental right under article 31 (2) because that is the only authority under which the directors have been brought into existence and are exercising powers by virtue of the provisions of the Ordinance. If they are 712 not the validly appointed agents of the company qua the company they cannot function as directors qua the shareholders. The learned Attorney General drew our attention to a number of cases for the proposition that unless there was a direct infringement of the fundamental right of the shareholders it was not open to them to take advantage of the breach of a fundamental right of the company. In these wide terms I am unable to accede ' to this proposition. In my opinion the correct rule on this point has been stated in Willoughby at page 20 on the authority of the decision in chusetts vs Mellon(1) and is in these terms: "We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened presenting a justiciable issue is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an 'unconstitutional enactment which otherwise would stand in the way of the enforcement of a legal right. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement and not merely that he suffers in some indefinite way in common with people generally. If a case for preventive relief be prevented the court enjoins in effect not the execution of the statute but the acts of the official the statute notwithstanding". The rule stated above has apposite application to this case. The plaintiff and the other preference shareholders are in imminent danger of sustaining direct injury as a result of the 'enforcement of this Ordinance the direct injury being the amount of the call that they are called upon to pay and the consequent forfeiture of their shares. Not only would they lose (1) ; 713 their shares if they do not meet the demand but they would also have to pay the amount of the call. My brother Das elaborately dealt with this question in Chiranjit Lal 's case(1) and made reference to all the cases that were cited by the Attorney General on this subject viz. McCabe vs Atchison(2); Jeffrey Manufacturing Co. vs Blagg(3); Hendrick vs Maryland(4); Newark Natural Gas & Fuel Co. vs The City of Newark (5); and in which the rule laid down was that in order to justify the granting of extraordinary relief the complainant 's need of it and the absence of an adequate remedy at law must clearly appear and that the complainant cannot succeed because some one else was hurt. He also made reference to the cases of Truax vs Raich (6) and Buchanan vs Warley (7). There the court allowed the plea to be raised because in both. these cases the person raising it was directly affected. In the first of the two last mentioned cases an Arizona Act of 1914 requiring employers employing more than five workers to employ not less than eighty per cent. native born citizens was challenged by an alien who had been employed as a cook in a restaurant. That statute made a violation of the Act by an employer punishable. The fact that the employment was at will or that the employer and not the employee was subject to prosecution did not prevent the employee from raising the question of constitutionality because the statute if enforced would compel the employer to discharge the employee and therefore the employee was directly affected by the statute. In the second case a city Ordinance prevented the occupation of a plot by a coloured person in a block where a majority of the residences were occupied by white persons. A white man sold his property in such a block to a Negro under a contract which provided that the purchaser should not be required to accept a deed unless he would have a right under the laws of the city to occupy. the same as 'a residence. The vendor sued for (1) ; (5) (2) ; (6) (3) ; (7) 245 'U.S. 60. (4) ; 9 95 S.C.I./59 714 specific performance and contended that the Ordinance was unconstitutional. Although the alleged denial of constitutional rights involved only the rights of coloured persons and the vendor was a white person yet it was held that the vendor was directly affected because the courts below in view of the Ordinance declined to enforce his contract and thereby directly affected his right to sell his property. Reference was also made to the case of Darnell vs The State of Indiana (1). That is the only case in which a shareholder was not heard to complaining Iris own name when the Ordinance infringed the fundamental right of the company his own rights had not been infringed. In view of this decision my brother Das took the view that Chiranjit Lal who was merely a shareholder and did not suffer any direct injury by the result of the law was not entitled to complain. That may very well have been the correct view in the case of a fully paid up shareholder who had no further liability or who was not likely to suffer in any manner by the enforcement of the Ordinance but the situation of a partly paid up preference shareholder as in this case is quite different and distinguishable and in my judgment the apposite rule to apply to the present case is the one laid down in the cases of Truax vs Raich (2) and Buchanan vs WarIcy(3 ). The result is that the plaintiff is entitled to challenge the constitutionality of the Ordinance on the basis that it abridges the company 's fundamental right under article 31 (2). The plaintiff is thus entitled to succeed in this suit which should have been decreed in the terms in which it was laid. I am further of the opinion that the question of the locus standi of the plaintiff to raise the pica that the Ordinance being void against the company the directors had no authority to make the call is really of academic interest in this case because here the company has been impleaded as a defendant. Its old directors have made an application to this court supporting the case of the plaintiff on the ground that the Ordinance (1) (2) ; (3) 245 u.s. 60. 715 is void as it infringes the company 's fundamental right under article 31 (2). The learned Attorney General when asked about this application said that it not having been made in the High Court and having only been made at the last stage of the case should not be entertained. In my view when the question in issue is one concerning constitutional rights the matter cannot be viewed purely from a technical angle and if in the interests of doing substantial justice it is necessary to grant permission to the old directors to have their say technical considerations should not stand in the way of doing so. If the Ordinance qua the company is void I do not see why the old directors should be debarred from saying so and if it is void qua the company it can certainly not be sustained qua the shareholders. Some of the directors who are preference shareholders are also represented in the suit as well. In Chiranjit Lals case(1) the question of his locus standi was left open by the Chief Justice. This is what the learned Chief Justice said : "The first question is whether one individual shareholder can under the circumstances of the case and particularly when one of the respondents is the company which opposes the petition challenge the validity of the Act on the ground that it is a piece of discriminatory legislation . . do not think . it is necessary to pronounce a definite opinion on the first point. " In that case Patanjali Sastri J. as he then was :also did not pronounce any definite opinion on the question so far as the shareholder 's right to question the invasion of the right to property of the company under article 31 was concerned. This is what the learned Judge said : "Whatever validity the argument may have in relation to the petitioner 's claim based on the alleged invasion of his right of property under article 31 were can be little doubt that so far as his claim based on the contravention of article 14 is concerned the petitioner is entitled to relief in his own right." (1) ; 716 The learned Judge did not offer any opinion on the other questions. Mukherjea J. decided the question on grounds somewhat different from that taken by Fazl Ali 1. This what the learned Judge said : "A discussion of the fundamental rights of the company as such would be outside the purview of our enquiry. It is settled law that in order to redress a wrong done to the company the action should prima facie be brought by the company itself. It cannot be said that this course is not possible in the circumstances of the present case. As the law is alleged to be unconstitutional it is open to the old directors of the company who have been ousted from their position by reason of the enactment to maintain that they are directors still in the eye of law and on that footing the majority of shareholders can also assert the rights of the company as such. None of them however have come forward to institute any proceeding on behalf of the company. Neither in form nor in substance does the present application purport to be one made by the company itself. Indeed the company is one of the respondents and opposes the petition. " Even on the basis of this reasoning the situation of the present plaintiff as already explained is quite different and so is that of the company. In these circumstances it cannot be said that the decision given in Chiranjit Lal 's case(1) is binding on this point as even the judgments of the Judges forming the majority did not speak with the same voice. For the reasons given above I would allow this appeal set aside the judgment ' of the High Court and decree the plaintiff 's suit with costs. It is not necessary to give any decision on issue 2 in view of the decision reached above viz. whether the law is void because it infringes the fundamental rights under articles 14 and 19. DAS J. I agree that this appeal should be allowed but I prefer tO rest my decision ' on the grounds and reasonings set forth in detail in my judgment in (1) ; 717 Appeal No. 107 of 1952 [The State of West Bengal vs Subodh Gopal Bose(1)]. This is an appeal by the plaintiff in a suit filed in the Bombay High Court on behalf of himself and other preference shareholders of the respondent company praying for a declaration that the power given to the defendants respondents 2 to 8 who had been appointed directors under the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance II of 1950 (hereinafter referred to as the said Ordinance) to make a call and the resolution passed by the defendants ' respondents 2 to 6 on the 7th February 1950 for making a call of Rs. 50 per each preference share are illegal ultra vires void and inoperative in law. The plaintiff appellant is the registered holder of 3 244 preference shares of the respondent company of the face value of Rs. 100 per share out of which only Rs. 50 had been paid up and consequently if the call has been duly made he will have to pay Rs. 1 62 200 in respect of his holding. The plaintiff appellant. resists the payment of the call on the ground inter alia that the said Ordinance is illegal ultra vires and invalid under the provisions of the Government of India Act 1935 and/or the Constitution of India. No oral evidence was adduced on either side. The matters in issue were argued with questions of law governed by the Constitution. The contention was that the Ordinance was inconsistent with or in derogation of the fundamental rights guaranteed by the Constitution. The suit was dismissed by the trial court and that dismissal was affirmed by the appeal court. The plaintiff has now come up on appeal before us after having obtained a certificate under article 132 (1)of the Constitution ' from the High Court. The material facts leading up to the institution of the suit and the terms of the impugned Ordinance have been set out in detail in the judgments delivered by this court in the case of Chiranjitlal Chowdhuri vs The Union. of India(2) where this very Ordinance and the Act which replaced it were challenged (1) ; (2) [1950] S.G.R. 863. 718 as unconstitutional and also in the judgment just delivered and it is not necessary for me to recapitulate the same. The determination of the ' matters in issue depends on the correct interpretation of article 19 (1) (f)read with article 19 (5) article 31 and article 14 of the Constitution. My view about the correlation between article 19 (1) (f) read with article 19 (5) and article 31 and the true meaning and the respective scope and effect of clauses (1)and (2) of article 31 have been set forth in detail in my judgment in Chiranjitlal 's case (1) and have been more fully explained in my ' judgment in Appeal No. 107 of 1952 [The State of West Bengal vs Subodh Gopal Bose and others(2)] and no reiteration of them is called for. In the light of the conclusions reached and the reasons in support thereof given by me in those judgments I proceed to examine the contentions advanced by the appellant. The appellant seeks to question the validity of the Ordinance on the ground that it infringes the fundamental rights of (a) the company (b) the shareholders (c) the managing agent% (d) the directors elected by the shareholders and (e) persons having contracts with the company. The first thing to consider is whether he can raise the question of constitutionality of the Ordinance rounded on the breach of the fundamental rights of anybody other than himself. The above matter was agitated in Chiranjitlal 's case (1). There Chiranjitlal Chowdhuri who was the holder of one fully paid up ordinary share applied to this court under article 32 challenging the validity of this very Ordinance which is now questioned before ' us and the Act which eventually replaced it. One of the grounds of attack was that the Ordinance had infringed the fundamental rights of the company under article 19 (1) (f) and article 31 in that it dismissed the managing agents and the directors and authorised the State to appoint new directors and authorised the directors so appointed under the Ordinance to take possession of the company 's assets without payment of any compensation. On the point (1) ; (2) ; 719 now under consideration Mukherjea J. expressed himself thus at page 898: "An incorporated company therefore can come up to this court for enforcement of its fundamental rights and so may be individual shareholders to enforce their own; but it would not be open to an individual shareholder to complain of an Act which affects the fundamental rights of the company except to the extent that it constitutes an infraction of his own rights as well. This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities; duties and obligations separate from those of its individual members. As the rights are different and inhere indifferent legal entities it is not competent to one person to seek to enforce the rights of another except where the law permits him to do so. A well known illustration of such exception is furnished by the procedure that is sanctioned in an application for a writ of habeas corpus." And again at page 899 : "The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains of infraction of such rights and approaches the court for relief. This being the position proper subject of our investigation would be what rights if any of the petitioner as a shareholder of the company have been violated by the impugned legislation. A discussion of the fundamental rights of the company as such would be outside the purview of our enquiry. " At pages 904 909 the learned Judge discussed the question whether the impugned law had infringed any fundamental right of the shareholders under article 31 (2) or article 19(1) (f) and answered it in the negative. Kania C.J. agreed with the line of reasoning and the conclusion reached by Mukherjea J. on this point. Fazl Ali J. at page 876 referred to a passage in the judgment of Hughes J. in McCabe vs Atchison(1)and expressly held that no one except those whose rights 720 were directly affected by a law could raise the question of the constitutionality of the law. His Lordship said: "The company and the shareholders are in law separate entities and if the allegation is made that any property belonging to the company has been taken possession of without compensation or the right enjoyed by the company under article 19 (1) (f) has been infringed it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so." As to the question whether the petitioner had succeeded in showing that there had been an infringement of his own rights as a shareholder under articles 31 and 19 (1) (f) his Lordship agreed with and adopted the conclusions arrived at by Mukherjea J. without committing himself to the acceptance of all the reasonings of Mukherjea J. My Lord the present Chief Justice rested his decision on article 14 and came to the conclusion that the petitioner as a shareholder had been discriminated against. Having thus decided the question arising under article 14 he did not think it necessary to express any opinion on the questions raised under articles 19 and 31. .At pages 927 930 I dealt with the question whether the shareholder could impugn the constitutionality of the law on the ground that the fundamental right of the company had been infringed. After referring to several decisions of the Supreme Court of America I came to the following conclusion at page 930: "In my opinion although a shareholder may in a sense be interested to see that the company of which he is a shareholder is not deprived of its property he cannot as held in Darnell vs Indiana(1) be heard to complain in his own name and on his own behalf of the infringement of the fundamental right to property of the company for in law his own right to property has not been infringed as he is not the owner of the company 's properties. " In the premises I think it is quite clear that the majority of the members of the Bench which heard (1) 721 Chiranjitlal 's case(1) held that the petitioner was not entitled to question the constitutionality of the Ordinance and the Act on the ground that the fundamental rights of the company under articles 19 (1) (f) and 31 had been infringed. He had therefore to rely on the plea of infringement of his own fundamental rights. The majority of the court held that there had been no infringement of his rights as a shareholder under article 19(1)(f) or article 31 and that the petitioner consequently had to fail back on article 14 in order to support his plea of the unconstitutionality of the Ordinance and the Act. Even here the majority of the Bench took the view that the petitioner had not discharged the onus that was on him of showing that in fact there had been any discrimination against him and other shareholders of the company. Learned Attorney General submits that in so far as the challenge to the validity of the law is inthe present case rounded on theinfringement of the company 's fundamental rights it is concludedby the decision in Chiranjitlal 's case(1) for the reasons adopted by the majority in that case apply equally to the case now before us and the same conclusion must be drawn namely that the present appellant who is also. a shareholder cannot be permitted to impugn the said Ordinance on the ground that it infringes the fundamental rights of the company or the managing agents or the directors or other persons having contracts with the company. It is on the other hand contended on behalf of the appellant that the present case is distinguishable from Chiranjitlal 's case(1) in that the question here arises in a regular suit and not on an application under article 32 for the enforcement of fundamental rights. I do not think that this by itself is a substantial ground of distinction at all. I cannot see how the mere form of the proceeding can affect the question. The true principle being that only a person who is directly affected by a law can challenge the validity of that law and that a person whose own right or interest has not been violated or threatened cannot impugn the law on the ground that somebody else 's right has been infringed (1) ; 722 the same principle must prevail irrespective of the form of the proceeding in which the question of constitutionality is raised. Learned counsel for the appellant however urges that although on a parity of reasoning there has been no infringement of the fundamental right of the preference shareholders under article 19(1) (f) or article 31 (2) the impugned law if it stands certainly subjects the preference shareholders to the ' risk of being called upon to pay the amount of capital remaining unpaid on their respective shareholding. Indeed the directors appointed under the said Ordinance have made a call for the payment of Rs. 50 on each preference share and the plaintiff appellant alone will have to pay Rs. 1 62 200 on his shares. There was no such liability on the petitioner in Chiranjitlal 's case(1) for the was the holder of only one fully paid up ordinary share. The impugned Ordinance therefore directly affects the preference shareholders by imposing on them this liability or the risk of it and gives them a sufficient interest to challenge the validity of the Ordinance. It is quite true as submitted by the learned Attorney General that the fact of the property of the company or the managing agents or the directors or the other persons having contracts with the company having been taken possession of by the State through the directors appointed by the State under the Ordinance has no relation to or bearing on the imposition 'on the preference shareholders of the liability to pay the call for the directors were not obliged to make the call because they had taken possession of the property of the company or the other persons and that this imposition of liabilityor risk cannot therefore be said to be the direct or even indirect result of the State having through the directors appointed under the Ordinance taken possession of the property of the company or the other persons. It is then urged by him that that being so the preference shareholders cannot be allowed to complain of the infringment of the rights of the company or of the other persons which does not concern or affect them. This argurncnt however overlooks the purpose (1) ; 723 and scope of the suit filed by the appellant for himself and all other preference shareholders. The appellant is disputing his liability to pay the call made by the directors appointed under the Ordinance. He is therefore entitled to show that the directors who have made the call are not competent to do so. It is open to him to allege and prove if he can that the gentlemen who have purported to make the call are not competent to do so because they are not the directors of the company. Take the case of a company which is not governed by this Ordinance. If a call is made on the shareholders of such 'a company it is certainly open to a shareholder to resist the payment of the call by proving if he can that the persons who have purported to make the call are not the directors of the company. This he may do by showing that those persons have not the requisite qualifications or have not been duly elected. Likewise on a parity of reasoning the appellant as a preference shareholder in the respondent company is entitled to show if he can that the persons who have made the call are really not ' the directors of the company. Certainly he can show that the Ordinance under which these persons have been appointed was beyond the legislative competency of the authority which made it or that the Ordinance had not been duly promulgated. If he can with a view to destroy the locus standi of the persons who have made the call raise the question of the invalidity of the Ordinance on the grounds I have just mentioned I can see no valid reason why for the self same purpose he should not be permitted to challenge the validity of the Ordinance on the ground of its unconstitutionality for the breach of the fundamental rights of the company or of other persons. He may not be interested in or concerned with the facts which constitute the unconstitutionality e.g. the taking of possession of the property of the company or of the other persons but he is certainly interested in getting out of the law so as to destroy the very foundation of the status of the persons who have made the call and thereby repel the attack on him and avoid his own liability. In Chiranjitlal 's case(1) the (1) ; 724 petitioner was held to have suffered no loss of his own fundamental right as a shareholder and therefore by raising the question of unconstitutionality of the Ordinance on the ground of the breach of the fundamental rights of the company or of the other persons he was really fighting the battle of the company and the other persons and not of his own. Here the position is different. Here the law has made the imposition of a liability on him and other preference shareholders possible and he is seeking to resist that liability and as in the premises he is directly affected by the statute he has sufficient interest to challenge its validity. If as between the company or the other persons and these persons who purporting to act as directors have made the call the law is unconstitutional for breach of the former 's fundamental rights then it follows that these persons are not in the eve of the law the directors of the company at all and if they are not in law the directors of the company surely they cannot arrogate to themselves the right to exercise any of the powers of the directors of the company and to make any call. If the said Ordinance stands the directors appointed thereunder will have authority to make the call which they have done and the appellant 's liability to pay it will stand good. Therefore the appellant as a preference shareholder is directly affected by the statute and this circumstance in my opinion distinguishes this case from Chiranjitlal 's case(1 ) and it must be held that in the circumstances of this case the appellant who is a preference shareholder and as such liable to pay the call is entitled to challenge the Ordinance which dismissed the directors elected by the shareholders authorised the appointment of directors by the State and made it possible for the directors so appointed to make the call and thereby impose a liability on all preference shareholders including the appellant. On the hypothesis that with a view to resist his own liability to pay the call it is open to the appellant to impugn the Ordinance and the Act which has replaced it and for that purpose to call in aid the infringement of the fundamental right under article 31 (2) of the (1) ; 725 company or of the other persons mentioned above it has yet to be shown that there has in fact been such infringement. Two questions will have to be considered and decided namely (1) whether the impugned law has authorised the taking of possession or acquisition of any property and (2) whether what has been taken possession of or acquired is "property" within the meaning of article 31(2). Taking the second question first there cannot be any doubt that the mills machineries stocks etc. of the respondent company are "property" within the meaning of articles 19 and 31. A contract or agreement which a person may have with the company and which may be cancelled by the directors in exercise of powers under the Ordinance will undoubtedly be "property" within the meaning of the two articles. There may be some argument as to whether the office of managing agents or of the directors though each of such offices carries substantial remuneration can be said to be "property" which by itself can be acquired or taken possession of or disposed of. I need not dilate on this further for the machinery etc. of the company and the benefits of agreements of persons having contracts with the company are certainly "property" within those articles and if those have been taken possession of or acquired that will be quite sufficient for the plaintiff appellant to sustain his challenge to the constitutionality of the impugned law whether or no the office of the managing agents or of the directors is "property" or has been taken possession of or acquired. The next question is whether the impugned law has authorised the taking of possession or acquisition of the property of the shareholders or of the company. It may be mentioned at the outset that the impugned law has not authorised any acquisition of any property in the sense of divesting the shareholders or the company of any property and vesting that property in the State or its nominee. In other words there has been no transfer of title voluntarily or by operation of law. It is therefore necessary to enquire and as certain whether the Ordinance or the Act which replaced it 726 has authorised the taking of possession of any property of the shareholders or of the company. As regards the property of the shareholders the position is the same as in Chiranjitlal 's case(1). The shares still belong to them. They can hold them or dispose. of them. If any dividend is declared they will get them. If there is any winding up and if after payment of all liabilities there remains any surplus then they will participate in that surplus. It is true that from a practical point of view it may be difficult for the shareholders if they desire to sell the shares to find a purchaser who will be willing to buy shares in a company which is governed by an Ordinance of this kind but nevertheless it cannot be said that the State has taken possession of the shares in the sense in which that expression used in article 31(2) has been explained by me in Subodh Gopal Bose 's case(2). It is said as was done in Chiranjitlal 's case(1 ) that certain valuable rights of the shareholders e.g. the right of voting the right to elect directors and the right to apply for the winding up of the company have been taken away. In the first place it is doubtful if any of these right can be called "property" within the meaning of article 31(2) for by itself and apart from the shares none of them can be acquired or disposed In the next place the State has not taken possession of these rights as explained by Mukherjea J. in Chiranjitlal 's case (1 ) at pages 904 906 and by me at pages 923 924. Therefore there has been no infringement of the shareholders right to property under article 31(2). What has happened is that these rights which are only incidents of the ownership of the shares have been suspended or kept in abeyance and if this may be regarded as amounting to imposing restrictions on the exercise of the rights of ownership of the shares it may possibly be justified as an exercise in any emergency of the State 's police power under clause (5) of article 19 by imposing by law reasonable restrictions in the interests of the general public so as to secure the supply of an essential commodity and to prevent unempolyment. (1 ; (2) ; 727 As regards the property of the company also there has been no transfer of title to any such property voluntary or involuntary from the company to the State or its nominee and therefore no question arises of any property of the company having been "acquired". The question remains whether any property of the company has been "taken possession of" by the State within the meaning of article 31 (2) as explained by me in Subodh Gopal Bose 's case(1). In Chranjitlal 's case(2) Mukherjea J. at pages 903 904 said: "Assuming that tiffs State management was imposed in the interests of the shareholders themselves and that the statutory directors are acting as the agents of the company the possession of the statutory directors could not it is argued be regarded in law as possession of the company so long as they are bound to act in obedience to the dictates of the Central Government and not of the company itself in the administration of its affairs. Possession of an agent it is said cannot judicially be the possession of the principal if the agent is to act not according to the commands or dictates of the principal but under the direction of an exterior authority. There can be no doubt that there is force in this contention but as I have indicated at the outset we are not concerned in ' this case with the larger question as to how far the inter position of this statutory management and control amounts to taking possession of the property and assets belonging to the company. It is fairly clear that his Lordship was inclined to the view that the company 's properties had been taken possession of although he did not categorically an explicitly say so. I dealt with the matter at pages 926 927. After pointing out that the possession of directors who Were not obedient to or amenable to the company or its shareholders and are not liable to be dismissed or discharged by the company cannot in the eye of the law be regarded as the possession of the company I said: (1)[1954] S.C.R. 587. (2) ; 728 "In this view of the matter there is great force in the argument that the property of the company has been taken possession of by the State through directors who have been appointed by the State in exercise of the powers conferred by the Ordinance and the Act and who are under the direction and control of the State and this has been done without payment of any compensation ." Then after quoting a passage from the judgment of Holmes 1. in Pennsylvania Coal Company vs Mahon(1) concluded: "Here therefore it may well be argued that the property of the company having been taken possession of by the State in exercise of powers conferred by a law which does not provide for payment of any compensation the fundamental right of the company has in the eye of the law been infringed. " It is quite clear that although I used the words "there is great force in the argument" and "it may well be argued" the then inclination of my mind was definitely that the property of the company had been taken possession of as contemplated by article 31 (2). My observations were much more definite than those of Mukherjea J. Learned Attorney General contends that the taking of possession of the property of the company that has taken place in this case is clearly not an exercise of the power of eminent domain within article 31 (2) but constitutes an exercise of police power under article 31 (1). Here according to him the State has not taken possession of the company 's property on its own account to implement a public purpose such as is contemplated by article 31 (2) but the State has taken possession of the company 's property to prevent the company from using its own property to the detriment of the interests of the public and to do for the company what the company should itself have done. In order to determine to which category this taking of possession falls it is necessary to keep in mind the circumstances in which the Ordinance and the Act were passed and to ascertain from their language their immediate (1) 729 purpose and ultimate aim and to consider their effect on the rights of the company. It should be remembered that the Ordinance of 1950 was promulgated on the 9th January 1950. The preamble to the Ordinance recited as follows: "Whereas on account of mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company Limited which has prejudicially affected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community. " Then came the Act on the 10th April 1950. There is no preamble to the Act. Although the short title of the Act contains a reference to emergency provisions the full title of the Act is as follows: An Act to make special provision for the proper management and administration of the Sholapur Spinning and Weaving Company Limited. There is no suggestion either in this long title or in the body of the Act except in section 12 that the Act is intended only to be a temporary emergency measure. The object of the Ordinance was stated to be to provide employment to a large number of workmen and to keep up the production of an essential commodity. There is no doubt that section 12 of the Act provides that the property of the company and the management and administration of its affairs would be restored to the company or its directors elected by the shareholders but that is left entirely to the unfettered discretion of the Government. The provisions of the Ordinance and the Act are drastic in the extreme. The managing agents and the elected directors have been dismissed and new directors have been appointed by the State. So far as the company is concerned it has been completely denuded of the possession of its property. All that is left to the company is its bare legal title. The carrying on of a business demands many personal qualities and considerable business acumen and is much more complicated than collecting 10 95 S.C. India/59 730 the rents of the estate of a disqualified proprietor. The impugned law has thrust upon the company a board of directors in whose business capacity the Company and its shareholders may have no confidence and over whom the company has certainly no vestige of control or authority and who are not answerable to them at all. Although in outward form the directors are the officers of the company and are bound to act under the articles of association in so far as they are not contrary to or inconsistent with the Ordinance and the Act nevertheless in effect and in substance they are the creatures of the State and are answerable to the State and it is the State that has through these directors of its choice taken possession of the undertaking of the company and has been carrying on an experiment in State management of business at the risk and expense of the company and the shareholders. Indeed we are told that under such State management which is going on for pretty nearly four years the business has been running at a loss. At any rate no profit has been made or distributed as and by way of dividend during this long period a sad commentary on the efficacy of State management And nobody knows how long this state of affairs will continue for the Act does not prescribe any definite time limit to this hazardous experiment. It is in the premises impossible to uphold this law as an instance of the exercise of the State 's police power as an emergency measure. It has far overstepped the limits of police power and is in substance nothing short of expropriation by way of the exercise of the power of eminent domain and as the law has not provided for any compensation it must be held to offend the provisions of article 31 (2). The last contention of the appellant is that the Ordinance is unconstitutional and void in that it infringes the fundamental rights of the shareholders under article 14. In Chiranjitlal 's case(1] my Lord the present Chief Justice and I were of the ' opinion that the Ordinance and the Act did not proceed on any rational basis of classification and that this company and its shareholders had been arbitrarily (1) ; 731 singled out for discriminatory treatment and that as equality before the law was denied to this company and its shareholders the Ordinance and the Act offended the equal protection clause of our Constitution. The majority of the Bench however took the view that there being a presumption in favour of the constitutionality of the law and that the onus of displacing that presumption being on him who impugns the law the petitioner in that case had not discharged that onus and that therefore he could not complain of discrimination. In the present case there is nothing more than what there was before the court in Chiranjitlal 's case(1 ). Indeed the question of discrimination does not appear to have been argued before the trial court and the appeal court has rejected it by saying that the plaintiff had not shown that there were other companies which were guilty of the same conduct but had not been similarly dealt with. Learned Attorney General has submitted that this court is not ' bound by its previous decision and has pressed us to go behind the majority decision. Accepting that this court is not bound by its own decisions and may reverse a previous decision especially on constitutional questions the court will surely be slow to do so unless such previous decision appears to be obviously erroneous. But in view of the conclusion I have already arrived at on the other point I do not feel called upon to pursue this point of discrimination any further. In my judgment therefore this appeal should be allowed and the plaintiff 's suit should be decreed. The Union of India must pay the plaintiff his costs throughout. BOSE J. 1 agree with my brother Mahajan that the impugned Ordinance and Act offend article 31 (2)of the Constitution and so are void. But I prefer to rest my decision on simpler foundations. With the utmost respect I deprecate as I have done in previous cases the use of doubtful words like "police power" "social control" "eminent domain" and the like. I say doubtful not because they are devoid of meaning but because they have different shades of meaning in different countries and because they represent powers (1) ; 732 which spring from widely differing sources. In my opinion it is wrong to assume that these powers are inherent in the State in India and then to see how far the Constitution regulates and fits in with them. We have to interpret the plain provisions of ' the Constitution and it is for jurists and students of law not for judges to see whether our Constitution also provides for these powers and it is for them to determine whether the shape which they take in India resemble any of the varying forms which they assume in other countries. Article 19 (1) (f) confers a certain fundamental certain freedom on all citizens of India namely the freedom to acquire bold and dispose of property. Article 31(1) is a sort of corollary namely that after the property has been acquired it cannot be taken away save by authority of law. Article 31 is wider than article 19 because it applies to everyone and is not restricted to citizens. But what article 19 (1)(f) means is that whereas a law can be passed to prevent persons who are not citizens of India from acquiring and holding property in this country no such restrictions can be placed on citizens. But in the absence of such a law non citizens can also acquire property in India and if they do then they cannot be deprived of it any more than citizens save by authority of law. I have put the matter broadly and ignored for the: moment the restrictions imposed by article 19 (5). The rights conferred by article 19 (1)(f) 'are not unfettered and the State can impose restrictions: provided they are (I) reasonable and (2) are in the ' interests of either the general public or for the protection of the interests of any Scheduled Tribe. But we are not concerned with article 19 in this. case because no one has prevented either the company or the plaintiff from acquiring and holding property. They actually did acquire property and they held it and nobody stopped them. The complaint is that they are now being deprived in a manner not allowed by the Constitution of the property which they were lawfully permitted to acquire and hold. That concerns article 31. 732 Now article 31(1) says that no one shall be deprived of property save by authority of law. That to my mind is straight forward and simple. It means that no one 's property can be taken away arbitrarily or by executive action. There must be legal sanction for every act of deprivation. Now an Act of the legislature is legal sanction therefore it the rest of the article was not there a man could be deprived of his property by legislative enactment though not by executive action. But that brings in article 31(2). Restrictions are there placed even on the legislature. Unless the Act provides for compensation and either fixes the amount or specifies the principles on which and the manner in which it is to 'be determined it cannot be validly enacted. The only exceptions are those set out in clause (5). Therefore 'to my mind the simple question in this case is do the impugned Ordinance and Act fail foul of article 31 (2) read with clause (5) ? All we have to do is to examine these provisions. We start with the word "property". Are the plaintiff 's "interests" in this company "property" within the meaning of this clause ? Property includes any interest" in "any commercial or industrial undertaking. " It also includes any interest in "any 'company owning" any interest in any commercial or industrial undertaking. That is how I read this clumsily drafted clause. The company here certainly has an interest in a commercial and industrial undertaking and the plaintiff has an undoubted interest in the company. He also has a direct interest in the undertaking that the company runs because as a preference shareholder he is a member of the company and would on liquidation be entitled to share in the distribution of its assets. Next have these interests been "taken possession of" or "acquired"? Here again I have no doubt. In my judgment the provisions in the Constitution touching fundamental fights must be construed broadly and liberally in favour of those on whom the rights have been conferred. But in any case in this instance 734 these words have to be read along with the word "deprived" in clause (1). In my opinion the possession and acquisition referred to in clause (2)mean the sort of "possession" and "acquisition" that amounts to "deprivation" within the meaning of clause (1). No hard and fast rule can be laid down. Each case must depend on its own facts. But if there is substantial deprivation then clause (2) is in my judgment attracted. By substantial deprivation I mean the sort of deprivation that substancially robs a man of those attributes of enjoyment which normally accompany rights to or an interest in property. The form is unessential. It is the substance that we must seek. Has that happened here ? Of course it has. The plaintiff and the company have been left with the mere husk of title and not only has every form of enjoyment which normally accompanies an interest in this kind of property been taken away from them but to add insult to injury the plaintiff has also been called upon to pay substantial sums of money; and for what ? not in compliance with any engagement into which he has entered not in fulfilment of any duty or obligation which he has incurred not in furtherance of his interests of which he is the best judge but blankly and unashamedly because the furtherance of his interests affects "the production of an essential commodity" and has caused "serious unemployment amongst a certain section of the community. " If that is not "deprivation" it is difficult to know what is. One of the privileges of a democracy of free men is the right to mismanage one 's own affairs within the confines of the law and if A can mismanage his concerns in a particular way so can B C and D. The production of essential commodities and the employment of labour are matters for the State and statutory bodies to handle. They have the right when the law so permits it to take over this responsibility when the public interests so demand but if by doing so they deprive private individuals and non statutory bodies their interests in property in the sense explained above they 'must pay compensation. They cannot evade their own duties by lathering their obligations 735 on others ' who are not responsible for carrying on the affairs of the State. My brother Mahajan has dealt with this at length and there is no need for me to add to what he has said. The only other point I need consider is the applicability of clause (5)of article 31. The exceptions to clauses (1)and (2)lie there. I am clear that none of the exceptions set out there apply. The impugned Ordinance and Act have not been made for the promotion of public health nor to prevent danger to life ' and property. In my opinion Chiranjit Lal 's case(1) is distinguishable. I do not think it is a bar here. My brother Mahajan has explained this at length and as I agree with him I need say no more. I would therefore also in agreement with my learned brother allow the appeal and decree the plaintiff 's claim with costs. GHULAM HASAN J. I have had the advantage of perusing the judgment of my learned brother Mr. Justice Mahajan and I agree with his conclusion that the appeal should be allowed and the plaintiff 's suit decreed with costs. I would like to add a few words. This appeal raises the question of the constitutional validity of the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance II of 1950 subsequently replaced by Act XXVIII of 1950 which reproduced substantially the same provisions. This question arose originally upon a petition under article 32 of the Constitution filed by one Chiranjit Lal Chowdhuri an ordinary shareholder of the company challenging the Act as being in violation of his fundamental rights under articles 14 19 and 31 of the Constitution. By a majority of 3:2 it was held that the petitioner had failed to displace the presumption of the constitutionality of the Act or that there had been any abridgement of his fundamental rights. The minority declared the impugned Act as void as it violated the fundamental rights of the petitioner under article 14 of the Constitution. (1) ; 736 My learned brother has distinguished and if I may say so respect successfully the decision in Chiranjit Lal 's case(1)and has explained the ratio decidendi of the majority view in that case and I entirely agree with him. That decision does not in my opinion conclude the matter so far as the present case is concerned and no question of invoking the principle of stare decisis arises. The question which we are now invited to consider was raised by the appellant a preference shareholder holding 3 244 preference shares of the face value of Rs. 100 out of which he had paid up Rs. 50 per share. He was called upon by the statutory directors nominated by the Government under the impugned Act to pay Rs. 1 62 000 as the balance of the amount of the call. Thereupon he filed the suit in a representative capacity on behalf of himself and other preference shareholders challenging the validity of the Act. The suit was dismissed by the trial Judge whose decision was affirmed on appeal by the Division Bench of the Bombay High Court. My learned brother has analysed in detail the relevant provisions of the impugned Act and I have no hesitation in agreeing with him that the Act in substance robs the company of every vestige of right except what has been laconically called the husk of title. I agree therefore that the impugned Act oversteps the constitutional limits of the power conferred upon the State and offends against the provisions of article 31 and must therefore be held void. Article 31 finds a place in Part III of the Constitution which deals with fundamental rights. It is headed "Right to Property". Upon a simple and straightforward construction of its language and the context in which it stands and unhampered by the provisions of the American Constitution the article confers upon every person whether a citizen or not a fundamental right of protection of property against encroachment by the executive without the authority of law and against the legislature unless the law passed by it satisfies the two essential conditions ; 737 laid down in (2) that there must be public purpose for taking away private property and that the law must provide for compensation and either fix the amount of such compensation or specify the principles on which and the manner in which the compensation shall be determined and given Article 31 (1) embodies a categorical declaration proclaiming the right of property and equally categorically prohibits the State from depriving the owner of that property by an executive act or without being backed by the authority of law. The intention underlying the article being the protection of property against invasion by the State both parts (1)and (2)of article 31 should be read together so as to harmonize with that intention. Article 31 in my opinion is wider than article 19(1) (f) which confers upon a citizen only the right to acquire hold and dispose of property and is different in scope and content. Article 31 is self contained and (1) refers to deprivation of property general. Acquisition or taking possession in (2) are different modes of deprivation and are comprehensive enough to include all forms of taking away rights of property. Having regard to the setting in which article 31 is placed the word 'property ' used in the article must 'be construed in the widest sense as con:noting a bundle of rights exercisable by the owner in respect thereof and embracing within its purview both corporeal and incorporeal rights. The word 'property ' is not defined in the Constitution and there is no good reason to restrict its meaning. Whether the facts in a given case: amount to deprivation of property within the meaning of article 31 will depend 'upon the circumstances of each case and it is not possible in the nature of things to lay down any inflexible test which may be universally applicable. When it can be shown that the statute substantially interferes with the right of enjoyment of property it will in my opinion be hit by article 31 (2) and declared void unless compensation is provided. I am not prepared to subscribe to the proposition that article 31 (1) stands by itself and should be read separately from (2) and I cannot attribute an intention 738 to our Parliament to deprive a person of his property merely by passing an Act. The two parts of the article form an integral whole and cannot be disassociated from each other. The result is that I agree with the order proposed by my learned brother. Appeal allowed. N. Shroff. Agent for respondents Nos. 1 to 4 and 6 to 8: Rajinder Narain. Agent for respondent No. 9: G.H. Rajadhyaksha.

The Sholapur Spinning and Weaving Co. Ltd. was incorporated under the Indian Companies Act 1913 with an authorised capital of Rs. 48 lakhs divided into 1590 fully paid up ordinary shares of Rs. 1 000 each 20 fully paid up ordinary shares of Rs. 500 each and 32 000 partly paid up cumulative preference shares of Rs. 100 each the paid up capital of the Company being Rs. 32 lakhs comprised of Rs. 16 lakhs fully ' paid up ordinary shares and Rs. 16 lakhs partly paid up preference shares Rs. 50 being unpaid on each of the 32 000 cumulative preference shares. The Company did good business and declared high dividends for some time ; 'but in the year 1949 there was accumulation of stocks and financial difficulties. On the 27th July 1949 the Directors gave notice of 675 their decision to close the Mills to the workers and pursuant to this notice the Mills were closed. This created a labour problem and to solve it the Government on he 5th October 1949 appointed a Controller to supervise the affairs of the Mills under the Essential Supplies Emergency Powers Act 1946. On the 9th November 1949 the Controller in order to resolve the deadlock decided to call in more capital and asked the Directors of the Company to make a call of Rs. 50 per share on the preference shareholders the amount remaining unpaid on each of the preference shares. The Directors refused to comply with this requisition as in their judgment this was not in the interests of the Company. Thereupon the Governor General on the 9th January 1950 promulgated the impugned Ordinance under which the Mills could be managed and run by the Directors appointed by the Central Government. On the 9th January 1950 the Central Government acting under section 15 of the Ordinance delegated all its powers to the Government of Bombay. The Government of Bombay then appointed certain Directors who took over the assets and management of the Mills. On the 7th February 1950 they passed a resolution making a call of Rs. 50 on each of the preference shares payable at the time stated in the resolution. Pursuant to this resolution a notice was addressed on the 22nd February 1950 to the plaintiff in the suit who held preference shares to pay Rs. 1 62 000 the amount of the said call on or before the 3rd April 1950. The plaintiff instead of meeting the demand filed the present suit on the 28th March 1950 in a representative capacity on behalf of himself and other preference shareholders against the Company and the Directors appointed by the Government of Bombay challenging the validity of the Ordinance and questioning the right of the Directors to make the call. It was alleged in the suit that the Ordinance was illegal and ultra vires and invalid as it contravened the provisions of Section 299(2) of the Government of India Act 1935 and the provisions of Part III of the Constitution and that the resolution of the Directors dated 7th February 1950 making a call was illegal and ultra vires as the law under which they were appointed was itself invalid. The suit was dismissed by the Trial Judge and his decision was affirmed on appeal by a Division Bench of the Bombay High Court by the Judgment dated 29th August 1950. The plaintiff preferred the present appeal to the Supreme Court. This appeal concerns the validity of the same Ordinance and the Act replacing it which were considered by the Supreme Court in the case of Chiranjit Lal Chowdhuri ; There an ordinary shareholder of the defendant Company holding one fully paid up share challenged the validity of the Sholapur Spinning and Weaving Co. (Emergency Provisions) Ordinance II of 1950 and Act XXVIII of 1950 seeking relief under Article 32 of the Constitution on the ground that the said. Ordinance and the Act abridged his fundamental rights conferred on him under Articles 14 19 and 31 of the Constitution. The Supreme Court dismissed the petition by a majority of 676 3 to 2 holding that the presumption in regard to the Constitutionality of the Act had not been displaced by the petitioner and that it had not been proved that the impugned statute was a hostile or discriminatory piece of legislation as against him or that the State had taken possession of his share. The minority held that impugned statute was void as it abridged the petitioner 's fundamental rights under Article 14 of the Constitution. This decision was delivered on 4th December 1950. The suit giving rise to the present appeal was decided by the Bombay High Court during the pendency of Chiranjit Lal Chowdhuri 's petition in the Supreme Court: Held (pet ' PATANJALI SASTRI C.J. MAHAJAN BOSE and GHULAM HASAN JJ.) (i) that the impugned Ordinance and the Act replacing it authorise in effect a deprivation of the property of the Company within the meaning of Article 31 without compensation and are not covered by the exception in clause (5)(b)(ii)of that Article. The Ordinance and the Act thus violate the fundamental rights of the Company under Article 31(2) of the Constitution and the appellant as a preference shareholder who is called upon to pay the moneys unpaid on his shares is entitled to impugn their constitutionality. (ii) that the previous decision of the Supreme Court in Charanjit Lal Chowdhuri vs The Union of India and Others(1) is distinguishable and has no application to the present case. Per MAHAJAN J. (i) Constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right as if it consisted more in sound than in substance. It is the duty of Courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon. Boyd vs United States (2) referred to. By promulgating the Ordinance the Government has not merely taken over the superintendence of the affairs of the Company but has in effect and substance taken over the undertaking itself. In the situation ' the contention has no force that the effect of the Ordinance is that the Central Government has taken over the superintendence of the affairs of the Company and that the impugned legislation is merely regulative in character. In the present case 'practically all incidents of ownership have been taken over by the Sate and nothing ' has been left with the Company but the mere husk of title and in the premises the impugned statute has overstepped the limits of legitimate Social Control Legislation and has infringed the fundamental right of the Company guaranteed to it under: Article 31(2) of the Constitution and is therefore unconstitutional. (1) ; (2) 677 (ii) It is significant that Article 31 deals with private property of persons residing in the Union of India while Article 19 only deals with citizens defined in Article 5 of the Constitution. It is obvious that the scope of these two Articles cannot be the same as they cover different fields. The true approach to this question is that these two Articles really deal with two different subjects and one has no direct relation with the other amely. Article 31 deals with the field of eminent domain and the whole boundary of that field is demarcated by this Article. From the language employed in the different sub clauses of Article 31 it is difficult to escape the conclusion that the words "acquisition" and "taking possession" used in Article 31(2) have the same meaning as the word "deprivation" in Article 31(1). (iii) Article 31 is a self contained provision delimiting the field of eminent and clauses (1) and (2) of Article 31 deal with the same topic of compulsory acquisition of property. Article 31 gives complete protection to private property as against executive action no matter by what process a person is deprived of possession of it. It is a narrow view that "acquisition" necessarily means acquisition of title in whole or part of the property and cannot be accepted. The word "acquisition" has quite a wide concept meaning the procuring of property or the taking of it permanently or temporarily. It does not necessarily imply acquisition of legal title by the State in the property taken possession of. Minister of State for the Army vs Dalziel ; referred to. Per Das J. (I) As the appellant as a preference shareholder is directly affected by the impugned statute which circumstance distinguishes this case from Chiranjit Lal 's case it must be held that the appellant is entitled to challenge the Ordinance which dismissed the Directors elected by the shareholders authorised the appointment of Directors by the State and made it possible for the Directors so appointed to make the call and thereby impose a liability on all preference shareholders including the appellant. (II) The provisions of the Ordinance and the Act are drastic in the extreme. The Managing Agents and the elected Directors have been dismissed and new Directors have been appointed by the State. So far as the Company is concerned it has been completely denuded of the possession of its property. All that has been left to the Company is its bare legal title. It is impossible to uphold this law as an instance of the exercise of the State 's police power as an emergency measure. It has far overstepped the limits of police power and is in substance nothing short of expropriation by way of the exercise of the power of eminent domain and as the law has not provided for any compensation it must be held to offend the provisions of Article 31(2). 678 Per Bose J. The words "taken possession of" or "acquired" in Article 31(2) have to be read along with the word "deprived" in clause (1). The possession and acquisition referred to in clause (2) mean the sort of "possession" and "acquisition" that amount to "deprivation" within the meaning of clause (1). No hard and fast rule can be laid down. Each case must depend on its own facts. But if there is substantial deprivation then clause (2) is attracted. Per GHULAM HASAN J. The Act in substance robs the Company of every vestige of right except what has been laconically called the husk of the title. The impugned Act oversteps the constitutional limits of the power conferred upon ' the State and offends against the provisions of Article 31 and must therefore be held to be void. The intention underlying Article 31 being the protection of property against invasion by the State both parts (1) and (2) of Article 31 should be read together so as to harmonize that intention. The two parts of the Article form an integral whole and cannot be dissociated from each other. Article 31 is wider than Article 19(1)(f) which confers upon a citizen only the right to acquire hold and dispose of property and is different in scope and content. Chiranjit Lal Chowdhuri vs The Union of India and Others ([1950] S.C.R. 869) distinguished The State of West Bengal vs Subodh Gopal Bose and Others ([1954] S.C.R. 587) Boyd vs United States ; Pennsylvania Coal Co. vs Mahon A.K. Gopalan vs The State of Madras ([1950] S.C.R. 88) State of Bihar vs Maharajah Kameswar Singh and Others ([1952] S.C.R. 889) Minister of State for the Army vs Dalziel ; Tan Bug Tain vs Collector of Bombay (I.L.R. and Jupiter General Insurance Co. vs Rajagopalan (A.I.R. 1952 Punjab 9) referred to.

ivil Appeals Nos. 4 and 6 of 1953. Appeals under article 132(1) of the Constitution of India from the judgment and Order dated the 4th December 1952 of the High Court of Judicature of the State of Madhya Bharat at Gwalior in Civil Miscellaneous Cases Nos. 614 of 1951 and 1 of 1952. P.R. Das (B. Sen with him) for the appellant in C.A. No. 4 of 1953. 749 Rameshwar Nath for the appellant in C.A. No. 6 of 1953. M.C. Setalvad Attorney General for India and K. A. Chitale Advocate General of Madhya Bharat (Shiv Dayal with them) for the respondent. February 2. The Judgment of the Court was delivered by MAHAJAN C.J. These appeals preferred on behalf of three zamindars of the State of Madhya Bharat against the judgment of the High Court of Judicature of that State dated the 4th December 1952 raise common constitutional questions and can be disposed of by one judgment. The State also preferred cross appeals against the same judgment. During the pendency of these appeals two petitions under article 32 of the Constitution of India were also made to this court to obtain the same relief as was claimed by the appellants in their respective appeals. During the course of the arguments the counsel appearing for the appellant in Civil Appeal No. 5 of 1953 asked leave to withdraw the appeal. This was granted and the appeal was dismissed as having been withdrawn. Petitioner. Nos. 116 and 117 of 1953 preferred under article 3 were also withdrawn and were accordingly dismissed. Civil Appeals Nos. 4 and 6 of 1953 were argued before us and this judgment concerns them alone. The appellant in Civil Appeal No. 4 of 1953 Rajendra Maloji Rao Shitole is the proprietor of extensive landed properties in the State of Madhya Bharat comprising 260 villages under different Sanads granted to his ancestors by the Rulers of Gwalior from time to time. It was alleged by him that his income from these properties was in the sum of Rs. 2 61 637 and that the State of Madhya Bharat under purported exercise of its powers under section 3 of the Madhya Bharat Abolition of Jagirs Act was about to issue a Notification for resumption of all his land. By a petition dated the 7th December 1951 preferred to the High Court he asked for a mandamus to restrain the State from issuing any Notification under section 3(1) of the Act in respect of his properties and from 750 interfering with rights in the said property. The appellant in Civil Appeal No. 6 of 1953 is another Jagirdar of the same State. He preferred a similar petition to the High Court praying for the same relief. These two petitions along with a number of other petitions preferred under article 226 of the Constitution challenging the validity of the Madhya Bharat Abolition of Jagirs Act and praying for the issue of a mandamus restraining the State from issuing the Notification under section 3(1) of the said Act were heard by a Bench of three Judges of the High Court of Madhya Bharat. The court by a majority judgment declared that the Madhya Bharat Abolition of Jagirs Act No. XXVIII of 1951 was valid except as regards section 4(1)(g) and sub clauses (iv) and (v) of clause 4 of Schedule I which were held illegal and inoperative. A writ of mandamus was directed to be issued to the State Government directing it not to give effect to the procisions of the impugned Act stated above. Leave to appeal to the Supreme Court was granted to the paries and in pursuance of the leave the appellants referred the appeal above mentioned and the State referred the two cross appeals. The cross appeals were not pressed by the learned Attorney General and nothing more need be said about them. They are therefore dismissed with costs. As regards Civil Appeals . Nos. 4 and 6 of 1953 the facts are: That in April 1948 after the partition of India and the formation of two Dominions India and Pakistan the Rulers of the States of Gwalior Indore and certain other States in Central India being convinced that the welfare of the people of that region could best be secured by the establishment of a State comprising the territories of ' their respective States with a common Executive Legislature and Judiciary entered into an agreement for the formation of a United State of Gwalior Indore and Malwa (Madhya Bharat). It was resolved by them to entrust to a Constituent Assembly consisting of elected representatives of the people the drawing up of a democratic Constitution for the State within the framework of the Constitution of India to which the Rulers of these 751 States had acceded. The covenant entered into by these Rulers was published on the 7th October 1948. The Rulers agreed under article III of the covenant to elect a Rajpramukh of the United State and by article VI the Ruler of each Covenanting State agreed to make over the administration of the State to the Rajpramukh not later than the first day of July 1948 and it was agreed that thereupon all rights authority and jurisdiction belonging to the Ruler which appertain or are incidental to the Government of the Covenanting States shall vest in the United State and were thereafter to be exercisable only as provided by the covenant or by the Constitution to be framed thereunder. By article X it was agreed that as soon as practicable a Constituent Assembly for the purpose of framing a Constitution for the United State within the framework of the covenant and the Constitution of India was to be formed and clause (2) of the said article provided: "The Rajpramukh shall constitute not later than the first day of August 1948 an interim Legislative Assembly for the United State in the manner indicated in Schedule IV. " Schedule IV laid down the following procedure for the constitution of the Legislative Assembly: "1. The Legislative Assembly shall consist of (a) forty members elected by the members of the Gwalior Legislative Assembly; (b) fifteen members elected by the members of the Indore Legislative Assembly; and (c) twenty members elected by an electoral college to be constituted by the Rajpramukh in consultation with the Government of India to represent Covenanting States other than Gwalior and Indore. The election shall be by proportional representation by means of the single transferable vote. The Rajpramukh may make rules for carrying into effect the foregoing provisions of this Schedule and securing the due constitution of the interim Legislative Assembly. " 752 In pursuance of this covenant the Rajpramukh took the oath of office on the 28th of May 1948. In the meantime 40 members representing the Indore group were elected to the interim legislative assembly on the 8th and 9th of May 1948 respectively. As regards the election of 20 members that had to be elected by an electoral college what happened was this. The Ministry of States Government of India on the 5th July 1948 informed the Rajpramukh that there were many practical difficulties in setting up an electoral college consisting of elected representatives of the various States because in many of the smaller States there were no elected bodies of any kind. After considering the various difficulties it was suggested to the Rajpramukh that the twenty seats may be allocated between the different States in a certain manner mentioned in the latter and out of these fourteen may be allotted to the nominees of the Praja Mandal and the remaining six may be nominated by the Rajpramukh himself. This suggestion was modified by a letter of the 19th of November 1948 and it was finally agreed upon that the Madhya Bharat Provincial Congress Committee may be asked to elect six persons 'to represent the smaller States in the Madhya Bharat interim legislative assembly. This suggestion was not exactly in accord with what had been indicated in clause 1 (c) of Schedule IV. These representatives were elected in the manner suggested in the two letters on the 19th October 1948 and they were declared to be validly elected in terms of the covenant. On the 30th of October 1948 the Rajpramukh promulgated an Ordinance entitled "The Interim Legislative Assembly Ordinance Samvat 2005" Ordinance No. 18 of 1948. In the preamble to the Ordinance it was declared that in accordance with the provisions of the covenant the legislative assembly had already been duly constituted. The various sections of the Ordinance provided for the working of the interim legislative assembly i.e. the manner in which it could be summoned and dissolved or prorogued how its President and Deputy President were to be elected and how it was to exercise the power of 753 voting and what number of members would constitute the quorum. On the 6th of December 1948 the Ordinance was repealed and Act XXIII of 1949 took its place. The legislative assembly thus constituted was actually functioning on the 26th of January 1950 when the Constitution of India: came into force. In the meantime by subsequent covenants the Rulers of the Covenanting States had agreed to accept the Constitution of India as the Constitution of the United State of Madhya Bharat and had abandoned their covenant of forming a separate Constituent Assembly for framing a Constitution for the United State of Madhya Bharat. After the coming into force of the Constitution of India the interim legislative assembly constituted by the Rajpramukh and which was functioning on the 26th of January 1950 continued to function till some time in the year 1952 when new elections took place and a legislative assembly in conformity with the provisions of the Constitution of India was duly constituted. On the 30th of November 1949 the Government of the State of Madhya Bharat introduced a Bill entitled the "Madhya Bharat Abolition of Jagirs Bill ' before the interim legislative assembly and the Bill was passed into an Act on the 28th of August 1951 and having been reserved for the consideration of the President received his assent on the 27th November 1951. It was published in the Madhya Bharat Gazette Extraordinary on the 7th of December 1951. The said Act by section 3 provided for a date to be appointed by the Government by notification for resumption of all jagir lands in the State and by section 4 it provided that as from such a date the right title and interest of every jagirdar and of every other person claiming through him in his jagir lands including forests trees fisheries wells tanks ponds water channels ferries pathways village sites huts bazaars and mela grounds and mines and minerals whether being worked or not 'shall stand resumed to the State free from all encumbrances. The Act also provided a scheme for assessment of compensation m respect of jagirs thus resumed. 754 The appellants contested the validity of this law on a number of grounds and inter alia on the following : (1) That the so called legislature which passed the Act was not a legislature within the meaning of the covenant entered into by the Rulers of Gwalior Indore and certain other States in Central India for the formation of the United State of Gwalior Indore and Malwa (Madhya Bharat) or_within the meaning of Schedule IV of the said covenant. (2) That the legislature of Madhya Bharat was not competent to enact the said Act and the said acquisition or resumption of jagirs was not for a public. purpose and there was no provision for payment of compensation as understood in law the compensation provided for being wholly illusory and the Act was a fraud on the Constitution. Before the High Court Mr. P.R. Das who appeared for most of the petitioners confined his arguments some of the grounds mentioned in clause (2)above. His first contention that the impugned Act was passed by a legislature not validly constituted he reserved for arguing before this court as the Madhya Bharat High Court by a Full Bench decision in Shree Ram Dubey vs The State of Madhya Bharat(1) had already repelled that contention. The two points argued by him before the High Court were: (1) That there was no public purpose behind the acquisition for the resumption of jagir lands and therefore the Act was unconstitutional and illegal. (2) That some of the provisions of the impugned Act were ultra vires in so far as they constituted a fraud on the Constitution. Both these points which were urged before the High Court were not argued before us by the learned counsel. The point that there was no public purpose behind the acquisition was abandoned because it was concluded by the decision of this court in the Orissa Zamindari appeals K.C. Gajapati Narayan Deo and Others vs The State of Orissa(2). A.I.R. 1952 M.B. 57 178. ; ; 755 As regards the second point as already indicated three provisions of the impugned Act had been declared void by the High Court and Mr. Das contented himself by accepting that decision. The 'State Government had impugned the correctness of the decision of the High Court declaring these three provisions of the Act to be void but it also did not press that point. The result of these concessions in this court is that the arguments in the two appeals were limited to the first point urged in the petition namely whether the impugned Act was passed by a Legislature not validly constituted under the covenant entered into by the Rulers of Madhya Bharat. Mr. P.R. Das contended that as the Interim Legislative Assembly was not constituted according to the provisions of Schedule IV of the covenant it was a body of usurpers and therefore any laws made by it were wholly void and of no effect whatsoever. It was urged that the two bodies viz. Praja Mandal and the Provincial Congress Committee who in two separate divisions elected fourteen and six members did not constitute ' an electoral college to fulfil the requirement of clause 1 (c) of Schedule IV and the members elected could not be said to have been elected in the manner prescribed by the Schedule and that the Rajpramukh and the Government of India in the absence of an amending covenant had no power to vary the provisions of the Schedule. It was said that the object of clause 1 (c) of Schedule IV was that the election of 20 members should be by an electoral college constituted by the Rajpramukh in consultation with the Government of India to represent the Covenanting States other than Gwalior and Indore and that the election by the Praja Mandal and the Congress Committee of 14 and 6 members was in clear breach of the terms of the covenant and that in this manner no representation was given to the minorities and full effect was not given to the rule that the election should be by proportional representation by means of single transferable vote. The learned Attorney General met these contentions by urging (1) that the question was not open having regard to the provisions of article 385 of the Constitution of India 756 (2) that the election of 20 members representing the eighteen States took place in literal compliance of the covenant (3) that in any event there was substantial compliance with the covenant and lastly (4) that the declarations made in the Ordinance by the Rajpramukh and the provisions contained in the Ordinance were conclusive and were accepted by all the States concerned and could no longer be challenged. After a careful consideration of the respective arguments addressed by Mr. P.R. Das and the learned Attorney General we have reached the conclusion that it is not necessary to consider in detail all the points discussed by the learned counsel as in our judgment the question seems to be concluded by the provisions of article 385 of the Constitution of India. There is no gainsaying the fact that the election of 20 members to represent the 18 States was not made strictly in the manner indicated in Schedule IV of the covenant but it also cannot be disputed and in fact was not disputed before the High Court that the Legislative Assembly which passed the impugned Act was on the 26th of January 1950 in spite of its defective constitution in fact functioning as the Legislature of the State of Madhya Bharat. It had been declared to have come into existence by an Ordinance promulgated by the Rajpramukh and its factual existence is apparent from the laws that it made subsequent to its formation. Part XXI of the Constitution of India deals with "Temporary and Transitional Provisions". About two dozen articles in this Part concern themselves with the solution of the problems of their interval in between the repeal of the Government of India Act and the coming into being of bodies and authorities formed by the Constitution. Until the House or Houses of Legislature or bodies and authorities formed by the Constitution could be duly formed it was necessary to say with certain definiteness as to what bodies or authorities would exercise and perform the duties conferred by the different provisions of the Constitution in the meantime. When a silent revolution was taking place and Princely kingdoms were fast 757 disappearing and a new democratic Constitution was being set up and a provision had to be made for the interval between the switch over from one Constitution to another there was hardly any time to enquire and consider whether the bodies or authorities or House or Houses of Legislature formed under the old Constitutions which were being scrapped had been formed in strict compliance with the provisions of those Constitutions or whether there were any defects in their formation. The Constitution makers therefore took notice of their factual existence and gave them recognition under the Constitution and invested the bodies that were actually functioning as such whether regularly or irregularly with the authority to exercise the powers and perform the duties conferred by the provisions of the Constitution. That is clearly the scheme of all the articles mentioned in Part XXI of the Constitution. Particular reference may be made to articles 379 382 and to article 385 which specifically governs the present case. Article 379 is in these terms: "(1) Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. Explanation. For the purposes of this clause. the Constituent Assembly of the Dominion of India includes (i) the members chosen to represent any State or other territory for which representation is provided under clause (2) and (ii) the members chosen to fill casual vacancies in the said Assembly. " The provision made in this article in unambiguous terms makes the body. functioning as the Constituent Assembly whether constituted perfectly or 758 imperfectly and whatever its membership on the date immediately before the commencement of the Constitution as the provisional Parliament and vests it with all the functions and duties conferred by the provisions of the Constitution on the Parliament. The President was given power under the provisions of this article to add members to this body to give representation to certain States who were not previously represented and it was specifically prescribed that if there are any vacancies then the vacancies could be filled up and the members returned to fill these vacancies will be considered members of the provisional Parliament. These specific provisions are indicative of the fact that the Constitution makers in enacting this article took notice of the factual existence of certain bodies without concerning themselves with the question whether they had been validly constituted under the Constitution that brought them into being. Article 382 of the Constitution is similarly worded. It provides that until the House or Houses of the Legislature of each State specified in Part A of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution the House or Houses of the Legislature of the corresponding Province functioning immediately before the commencement of this Constitution shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of such State. Article 385 is in exact conformity with the two earlier articles. It provides that "Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified. " 759 The whole intent and purpose of these articles was to give recognition to those bodies or authorities or House or Houses of Legislature which were actually functioning before the 26th of January 1950 and to invest them with the powers conferred by the provisions of this Constitution. The Constitution makers wanted to indicate the arrangements made by them for the interval with certain amount of definiteness in order to avoid any disputes during the interim period as to who the body or authority was to exercise the powers conferred by the provisions of the Constitution. They therefore chose the formula that whichever body or authority or House or Houses of Legislature was actually functioning immediately before the commencement of the Constitution would be the body or authority or the House that would exercise the powers and perform the duties conferred by the provisions of this Constitution on the House body or authority specified in the Constitution. They did not take any risk on this question and the bodies actually functioning were like persona designata invested with powers conferred by the Constitution. That being the scheme of this Part and that being also the clear and unambiguous language of article 385 it follows that the Madhya Bharat . Interim Legislative Assembly that was actually functioning on the 26h January 1950 was invested by the Constitution of India with powers conferred by the provisions of the Constitution irrespective of the fact whether it had been properly constituted in accordance with the terms of the covenant or not. The inquiry into this question thus became barred by adopting this procedure. Such a procedure was fully justified and was rounded upon considerations of policy and necessity for the protection of the public and individuals whose interests may be affected thereby. It is manifest that endless confusion would have resulted if the Constitution had not adopted that formula and had not barred an inquiry into all questions as to the original formation of such bodies by giving validity and recognition to those bodies or authorities as were actually functioning on the 26th of January 1950. Not only did it give 760 validity and recognition to those bodies which were in fact functioning. then but it also invested these designated bodies and authorities with powers conferred by the provisions of the Constitution itself. That being our view as to the true meaning and 'intent of the language employed in article 385 of the Constitution it follows that the contention raised by Mr. P.R. Das as to the defective formation of the Interim Legislative Assembly of Madhya Bharat has no validity. Even if that body was not formed in strict compliance with the provisions indicated in Schedule IV of the covenant its defective formation does not affect the constitutionality of the impugned statute. The impugned statute was passed in the year 1951 after the Constitution of India had given recognition to and conferred powers on the Assembly under article 385 of the Constitution. When it made this law it was exercising its powers under the Constitution of India and not under the covenant which brought it into existence. The result therefore is that the only contention that Mr. P.R. Das argued before us cannot be sustained and it must be held that it is not well founded. For the reasons given above we see no force in these two appeals and they are therefore dismissed with costs. Appeals dismissed. Agent for the appellant in C.A. No. 4: 1. N. Shroff. Agent for the appellant in C.A. No. 6 :Rajinder Narain.

The decision of the Madhya Bharat High Court declaring section 4 (1) (g) and sub cls. (iv) and (v) of cl. 4 of Schedule I of Madhya Bharat Abolition of Jagirs Act (XXVIII of 1951) as illegal and inoperative was not questioned by either of the parties. It was however contended that the impugned Act (XXVIII of 1951) was void as it was not passed by a validly constituted legislature within the meaning of the covenant entered into by the Rulers of Madhya Bharat as the provisions of cl. 1(c) of Schedule IV of the covenant for the election of 20 members were not complied with. Held that as the Madhya Bharat Legislative Assembly actually functioning on the 26th January 1950 the validity of the Acts passed by it could not be questioned in view of article 385 of the Constitution irrespective of the fact whether it had been proPerly constituted in accordance with the terms of the covenant or not Scope of articles 379 382 and 385 discussed.

Appeal No. 239 of 1953. Appeal by special leave from the Order and Judgment dated the 5th September 1953 of the Election Tribunal Cuttack in Election Case No. 5 of 1952. section B. Jathar for the appellant. section P. Sinha (R. Patnaik with him) for the respondent. February 4. The Judgment of Mahajan C.J. Mukherjea Das and Ghulam Hasan JJ. was delivered ' by Das J. Vivian Bose J. delivered a separate judgment. DAS J. The question here is whether an election to a State Legislative Assembly is invalidated when the 118 914 member 's nomination was either proposed or seconded or both by a Government servant or servants. The appellant was a minister in the State of Orissa. He was nominated as a candidate for the Orissa Legislative Assembly and was later declared to have been elected. One of his rivals was the 1st respondent who filed an election petition challenging the election on a number of grounds among them the following. The appellant had filed about two dozen nomination papers. In five of them the proposer was a Government servant and in four the seconder. The 1st respondent stated that this was the first step in a scheme to get the assistance of Government officers in furtherance of the appellant 's election and to "use and utilse" them "for the purposes of the election. " There were also other allegations Which we need not consider here. The appellant made counter allegations against the 1st respondent whom he had defeated but they do not concern us either. The Election Tribunal framed twelve issues and examined 101 witnesses but when it came to make its order it proceeded to decide only two issues instead of deciding the whole case. It held that as the proposers and seconders referred to above were admittedly Government servants that constituted a major corrupt practice and so invalidated the election under section 123 (8) of the Representation of the People Act 1951 (No. XLIII of 1951). The other of the two decided issues does not concern this appeal. The appellant thereupon petitioned the High Court for a writ of certiorari Under article 226 of the Constitution. The High Court refused to interfere. The learned Judges held that there was no want of jurisdiction in the tribunal and that the tribunal 's view of the law was a possible and reasonable one accordingly as the High Court was not a court of appeal from the tribunal they were not called upon to decide the question as a court of appeal. The appellant was granted special leave to appeal by this court against the order Of the Election Tribunal. 915 A question of 'great public importance affecting Government servants is involved and we deem it right to examine the question under our special jurisdiction under article 136. The only sections we are called upon to consider are sections 33 (2) and 123 (8). The former provides that "Any person whose name is registered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act 1950 (XLIII of 1950) may subscribe as proposer or seconder as man nomination papers. as there are vacancies to be filled. According to the latter "The obtaining or procuring or abetting. by a candidate or his agent or by any other person with the 'connivance of a candidate or his agent any assistance for the furtherance of the prospects of the candidate 's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person" shall be deemed to be a major corrupt practice for the purposes of the Act. A corrupt practice of this kind entails disqualification for membership (section 140). Section 33 (2) is general and confers the privilege of proposing or seconding a candidate for election on every person who is registered in the electoral roll provided be is not disqualified under section 16 of the Act of 1950. That section excludes three classes of persons but not Government servants unless of course they happen to fall within those classes. Therefore so far as section 33 (2) is concerned a Government servant is entitled to nominate or second a candidate for election unless he happens to fall in one of the three excluded categories. The question is whether section 123 (8) takes away from Government servants that which section 33 (2) gives to them. We do not think it does. Viewing the question as a plain matter of construetion we find that when section 33(2) was framed those 916 who passed it had in mind the desirability of excluding certain classes of persons from its scope and they chose to limit those classes to three. Therefore in the absence of express provision to the contrary elsewhere or unless it follows by necessary implication the section must be construed to mean that those not. expressly excluded are intended to be included. As Government servants are not in the excluded categories it follows that so far as this section is concerned they are not disqualified from proposing and seconding a candidate 's nomination. Now does section 123 (8) contain express provision to the contrary or can such provision be inferred by necessary implication? It is usual when one section of an Act takes away what another confers to use a non obstante clause and say that "notwithstanding anything contained in section so and so this or that will happen" otherwise if both sections are clear there is a head on clash. It is the duty of courts to avoid that and whenever it is possible to do so to construe provisions which appear to conflict so that they harmonise. What exactly does section 123 (8) forbid? It is the obtaining or procuring etc. of "any assistance. . other than the giving of vote by such person. " Therefore it is permissible for a candidate to canvass Government servants for their votes and if a Government servant chooses to reveal his hand it would be permissible for the candidate to disclose the fact and use it in furtherance of his election for the law imposes no secrecy on the intentions of those who of their own free will choose to say how they intend to vote. They cannot be compelled to disclose the fact and any improper attempt to obtain such information would be a corrupt practice but equally they are not completed to keep the fact secret if they do not wish to do so; nor is the candidate. If therefore the law permits this we find it difficult to see how in the same breath it can be said to have taken away the right expressly conferred by section 33(2). The policy of the law is to keep Government servants aloof from politics and also to protect them from being imposed on by those with 917 influence or in positions of authority and power and to prevent the machinery of Government from being used in furtherance of a candidate 's return. But at the same time it is not the policy of the law to disenfranchise them or to denude them altogether of their rights as ordinary citizens of the land. The balance between the two has in our opinion been struck in the manner indicated above. But though it is permissible for a candidate to go that far he cannot go further and if the procurement of Government servants to propose and second a nomination is part of a plan to procure their assistance for the furtherance of the candidate 's prospects in other ways than by vote then section 123(8) is attracted for in that case the plan and its fulfillment must be viewed as a connected whole and the acts of proposing or seconding which are innocent in themselves cannot be separated from the rest. Our conclusion on the preliminary issue may also be supported on another ground. The major corrupt practice referred to in clause (8) of section 123 consists in obtaining or procuring or abetting or attempt to obtain or procure by a candidate or his agent etc. any assistance for the furtherance of the prospects of the candidate 's election from any person serving under the Government of India or the Government of any State other than the giving of vote by such person. In order therefore to bring a case within the mischief of that clause the assistance must be for the furtherance of the prospects of the candidate 's election. Section 79(b) defines a candidate as meaning " a person who has been or claims to have been nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when with the election in prospect he began to hold himself out as a prospective candidate. " Unless therefore a case falls within the latter half of the definition a person becomes a candidate under the first part of the definition only when he has been duly nominated as a candidate and the furtherance of 918 the prospects of a candidate 's election must therefore in such a case commence from after that stage. Although evidence was adduced on both sides there has been no finding so far on questions of fact which may or may not bring the case within the second part of the definition. In the absence of such a finding the case must be regarded for the purpose of the preliminary issue as governed by the first part of the definition and as such the proposing and seconding by a Government servant cannot be regarded as "assistance for the furtherance of the prospects of the candidate 's election." In this view of the matter also the judgment of the Election Tribunal cannot be sustained. We set aside the order of the tribunal and remit the case to the Election Commission with directions to it to reconstitute the tribunal which tried this case and to direct the tribunal to give its findings on all the issues raised and to make a fresh order. Our power to make such an order was not questioned but it was said that when the legislature states that the orders of a tribunal under an Act like the one here shall be conclusive and final (section 105) then we should not interfere. It is sufficient to say that the powers conferred on us by article 136 of the Constitution and on the High Courts under article 226 cannot be taken away or whittled down by the legislature. So long as these powers remain our discretion and that of the High Courts is unfettered. We wish to record our disapproval of the way in which this tribunal shirked its work and tried to take a short cut. It is essential that these tribunals should do their work in full. They are ad hoc bodies to which remands cannot easily be made as in ordinary courts of law. Their duty under section 99 is " where any charge is made in the petition of any corrupt or illegal practice having been committed at the election" to record " a finding whether any corrupt or illegal practice has or has not been proved to have been committed. and the nature of that corrupt or illegal practice. " 919 Also " to give the names of all persons if any who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice. " Their duty does not end by declaring an election to be void or not because section 99 provides that in addition to that " at the time of making an order under section 98the tribunal shall also make an order etc. . " A number of allegations were made in the petition about corruption and illegal practices undue influence and bribery. It was the duty of the tribunal not only to enquire into those allegations as it did but also to complete the enquiry by recording findings about those allegations and either condemn or clear the candidate of the charges made. We make no order about costs. Bose J. I agree on all but one point. I have some doubt about the reason given by my learned brother which is based on the definition ' of "candidate" in the Act. I prefer not to express any opinion that one point. Case remanded. Agent for respondent No. 1 A. D. Mathur.

(1) The unfettered discretionary powers conferred on the Supreme Court and the High Courts by articles 136 and 226 of the Constitution respectively cannot be taken away or whittled down by the legislature and therefore section 105 of the Representation of the People Act 1951 which provides that every order of the tribunal under the Act shall be final and conclusive did not affect such powers. (2) In view of the provisions of section 16 of the Representation of the People Act 1950 and the provisions of sections 33 (2) and 123 (8) of the Representation of the People Act 1951 an election to a State Legislative Assembly is not invalidated when the elected member is either nominated or seconded or both by a Government servant or servants. (3) The Supreme Court recorded its disapproval of the way in which the Election Tribunal shirked its duty and tried to take a short cut in deciding only two of the twelve issues framed and thus acted against the provisions of section 99 of the Act.

Appeal No. 72 of 1952. Appeal under articles 132 (1) and 133 (1) (b) of the Constitution of India from the Judgment and Order dated the 27th April 1951 of the High Court of Judicature at Madras (Rajamannar C.J. and Satyanarayana Rao J.) in Civil Miscellaneous Petition No. 4697 of 1951. M.K. Nambiyar (U. Sethumadhava Rao with him) for the appellant. M. Seshachalapathi for the respondent. V.K.T. Chari Advocate General of Madras (Porus A. Mehta and V.V. Raghavan with him) for fife Intervener (State of Madras). February 10. The Judgment of the Court was delivered by DAs J. This is an appeal arising out ' of a judgment delivered on the 27th April 1951 by a Bench o15 the Madras High Court in C.M.P. No. 4697 of 1951 filed under article 226015 the Constitution for the issue of a writ of certiorari or other appropriate writ to call 780 for the records and quash the order of the Government passed under section 4(1) of the Madras Act XLIII of 1949 declaring the undertaking of the appellant company to vest in the Government. The appellant company was formed and registered under the Indian Companies Act in 1924 with the object inter alia of generating and supplying electrical energy to the public in Rajahmundry. In 1949 the Madras Legislature passed the Madras Electricity Supply Undertakings (Acquisition) Act 1949. The Act received the assent of the Governor General on the 18th January 1950 and was published in the Official Gazette on the 24th January 1950. Upon the Constitution of India coming into force on the 26th January 1950 the Act was submitted to the President for his certification and on the 12th April 1950 the President certified that the Act should not be called in question m any court on the ground that it contravened the provisions of clause (2) of article 31 or it contravened the provisions of sub section (2) of section 299 of the Government of India Act 1935. By an order in writing made on the 2nd September 1950 the Government of Madras acting under section 4(1) of the Act declared that the undertaking of the appellant company should vest in the Government on the date specified therein. Under the proviso to section 4(1) the Government from time to time postponed the date of vesting and the 2nd April 1951 was the last extended date fixed for such vesting. On the 29th March 1951 the appellant company filed C.M.P. No. 4697 of 1951 under article 226 for quashing the order of the Government. Shortly stated the contentions of the. appellant before the High Court were that the Act was ultra vires in that (1) it was beyond the legislative competency of the Madras Legislature to enact it (2) it was not enacted to subserve any public purpose and (3) the compensation provided for was illusory. The High Court repelled each and all of the aforesaid contentions of the appellant company. It held that the legislation was with respect to electricity under entry 31 of the 781 concurrent list in the seventh Schedule to the Government of India Act 1935 and was not a legislation with respect to corporations under entry 33 in list I as contended by the appellant and that therefore the Madras Legislature was competent to enact it. It further held that the Act having received the certificate of the President the challenge based on an alleged absence of public purpose or the illusory nature of the compensation was shut out and could not be raised. The High Court however held that certain sections and rule 19(2) of the Rules framed under the Act were invalid and subject thereto dismissed the application of the appellant company. The High Court granted leave to the appellant company to appeal before this court. The appeal has now come up for heating before us. Learned counsel appearing in support of the appeal has not pressed before us the contention raised in the High Court as to the absence of public purpose or the illusory nature of the compensation provided by the Act. He has confined his submissions to the question of the legislative competency of the Madras Legislature to enact this piece of legislation. In the High Court the contest centered round the question whether the Act was a law with respect to electricity under entry 31 of the concurrent list or with respect to corporations under entry 33 in list I. The High Court held that the Act was in pith and substance a law with respect to electricity and was therefore within the legislative competency of the Provincial Legislature. In his arguments before us learned counsel contended that the act is in substance and effect one for the acquisition of an electrical undertaking and as such is ultra vires because (a) the acquisition of an electrical undertaking was not a legislative item in any of the three lists in the seventh schedule to the Government of India Act 1935 and (b) in so far as it relates to the acquisition of an electrical undertaking of a corporation it is a law with respect to corporations under entry 33 in list I. 782 In our opinion this appeal can be disposed of on the first of the two grounds mentioned above. Turning to the Act it will be noticed that the long title of the Act is "an Act to make provision for the acquisition of undertakings in the Province of Madras supplying electricity. " The preamble recites the expediency of making Provision "for the acquisition of undertakings in the Province of Madras engaged in supplying electricity. " Section 1 gives the short title extent and commencement of the Act. Section 2 is a definition section. Section 3 provides that the Act shall apply to all undertakings of licensees including certain undertakings therein mentioned. Section 4 empowers the Government to take over any undertaking by making an order in writing declaring that such undertaking shall vest in the Government on a specified date. Section 5 provides for compensation payable to a licensee who is not a local authority. The section gives an option to the licensee to claim compensation on one of three bases therein specified. Section 6 deals with compensation payable where the licensee is a local authority. Section 7 specifies the properties or assets which will vest according aS compensation is claimed under one basis or another. Section 8 provides for the appointment of a sole representative to act as the sole and accredited representative of the licensee in connection with the handing over of the undertaking and performing on behalf of the licensee the functions thereinafter specified. The choice of basis of compensation is to be made within one month under section 9 and such choice once intimated to the Government is not to be open to revision except with the concurrence of the Government. Section 10 authorises the Government in case the licensee has disposed of any of the assets otherwise than in the normal course of events causing loss to the Government as succeeding owners to deduct from the compensation payable to the licensee an amount which they consider to be the loss sustained by them. Section 11 prescribes the various deductions which the Government shall be entitled to make from the compensation payable under the Act. The manner of 783 payment or deposit of compensation is laid down in section 12. Section 13 permits the Government to repay all loans debentures mortgages and the like outstanding on the vesting date at any time before the time fixed for repayment. Section 14 is the arbitration section. Section 15 provides for the termination of the managing agency. Section 16 authorises the Government to terminate the services of any person on the staff of the licensee immediately before the vesting 'date. Section 17 requires all licensees to prepare and hand over to the Government a complete inventory of all the assets. Section 18 gives power of entry to the Government or any officer authorised by the Government upon any land or premises in the possession of the licensee. Section 19 prescribes penalties for various defaults therein specified. Section 20 makes certain officers of a company liable for the offence committed by the company. Section 21 gives protection against suit or prosecution for anything done in good faith under any rule or order made under the Act. Section 22 confers rule making power on the Government. Section 23 provides that the provisions of certain Acts in so far as they are inconsistent with the provisions of this Act shall have no effect. Section 24 gives power to the Government to do anything which appears to them necessary for the purpose of removing any difficulty. From the above summary it will be noticed that the Act does not purport to make any provision for the granting of licenses or maintenance of works for generating or transmitting energy or for supplying electrical energy as one would expect to find in a law dealing with electricity nor does the Act purport to make any provision for the incorporation regulation or winding up of trading corporations. On the contrary it is abundantly clear from the long title the preamble and the sections that it is in pith and substance nothing but an Act to provide for the acquisition of electrical undertakings. Section 299 (2) of the Government of India Act 1935 provided that neither the Federal nor a Provincial Legislature would have power to make any law authorising the compulsory acquisition for public purposes 784 of any land or any commercial or industrial undertaking or any interest in or in any company owning any commercial or industrial undertaking unless the law provided for the payment of compensation for the property acquired. Compulsory acquisition of property is undoubtedly an important sovereign right of the State but this right has to be exercised under a law. The legislative power of the State was distributed by sections 99 and 100 amongst the Federal Legislature and the Provincial Legislatures in the manner provided ' in the several lists set forth in the Seventh Schedule to the Act. Section 100 read with entry 9 in list II authorised the Provincial Legislature to make a law with respect to compulsory acquisition of land. There was no entry in any of the three lists relating to compulsory acquisition of any commercial or industrial undertaking although section 299 (2) clearly contemplated a law authorising compulsory acquisition for public purposes of a commercial or industrial undertaking. The acquisition of a commercial or industrial undertaking not being the subject matter of any entry in any of the three legislative lists neither the Federal Legislature nor the Provincial Legislature could enact a law with respect to compulsory acquisition of a commercial or industrial undertaking. Under section 104 however the Governor General in his individual discretion could by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the lists in the seventh schedule to the Act. It is therefore clear that although Parliament expressly entrusted the Provincial Legislature with power to make a law with respect to compulsory acquisition of land it did not straightaway grant any power either to the Federal Legislature or the Provincial Legislature to make a law with respect to compulsory acquisition of a commercial or industrial undertaking but left it to the discretion of the Governor General to empower either of the Legislatures to enact such a law. There is no suggestion that the Governor General had in exercise of his discretionary powers under section 104 authorised the Madras 785 Legislature to enact the impugned Act and therefore the Act was prima facie beyond the legislative competency of the Madras Legislature. The learned Advocate General of Madras urges that there was implicit in every entry in the legislative lists in the Seventh Schedule to the Government of India Act 1935 an inherent power to make a law with respect to a matter ancillary or incidental to the subject matter of each entry. His argument is that each entry in the list carried with it an inherent power to provide for the compulsory acquisition of any property land or any commercial or industrial undertaking while making a law under such entry. It is quite true that the powers of each Legislature to make laws with respect to the different subjects assigned to it by the appropriate list were to be regarded as wide and plenary and also covering matters incidental or ancillary to such subject matter but it is nevertheless clear from the provision of the Act that the power to make a law for compulsory acquisition was under entry 9 in list II given only to Provincial Legislatures and that such power of the Provincial Legislatures was under that entry limited to making a law for the compulsory acquisition of land only and that unless the Governor General made an .order under section 104 of the Act the Provincial Legislatures had no power to make a law for the compulsory acquisition of any property other than land and that the Federal Legislature had no power to make any law with respect to the compulsory acquisition of any property at all. If the argument of the learned Advocate General were correct then entry 9 in list II 'was wholly unnecessary for under entry 21 in list II the Provincial Legislatures could make a law for the compulsory acquisition of land. A similar argument was repelled by this court in the State of Bihar vs Maharajadhiraja Sir Kameshwar Singh( ). The matter is placed beyond any doubt or dispute by the provisions of section 127 of the Government of India Act 1935 which provided that the Federal might if it deemed it necessary to acquire any land situate in a (1) 786 Province for any purpose connected with a matter with respect to which the Federal Legislature had power to make laws require the Province to acquire the land on behalf and at the expense of the Federation. If power ' inhered in the Federal Legislature to make a law for the acquisition of any property for any purpose connected with a matter with respect to which it had ' power to make laws then section 127 would not have ' been necessary at all. The absence of any entry empowering any Legislature to make laws with respect to compulsory acquisition of a commercial or industrial undertaking and the provisions of section 127 to which reference has just been made make it abundantly clear that the contentions urged by the learned ' Advocate General cannot possibly be sustained. In our opinion therefore it must be held that the Madras Legislature had no legislative competency to enact the impugned law. This is sufficient to dispose of this appeal and it is not necessary to express any opinion on the other points raised in the court below. The result therefore is that this appeal must be ' allowed with costs both in the High Court as well as in this court. Appeal allowed. Agent for the intervener: R.H. Dhebar.

The Madras Electricity Supply Undertakings (Acquisition) Act (Madras Act XLIII of 1949) was beyond the legislative competency of the Madras Legislature because there was no entry in any of the three Lists of the Seventh Schedule of the Government of India Act 1935 relating to compulsory acquisition of any commercial or industrial undertaking although section 299 (2) clearly contemplated a law authorising compulsory acquisition for public purposes of a commercial or industrial undertaking. State of Bihar vs Maharajadhiraja Sir Kameshwar Singh ([1952] S.C.R. 889) referred to.

: 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 (section N. Mukherjee with him) for the appellant. C.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: 769 1. 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) ? 2. 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 consisting 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 court against the High Court 's 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 court to prefer the present appeal. The department has not preferred any appeal against the High Court 's decision on the second question and nothing further need be said about that question. The controversy arose in course of the proceedings for the assessment of Pursa Ltd. to income tax for the assessment year 1945 46 the relevant accounting year covering the period between the 1st October 1943 to 30th September 1944. Pursa Ltd. was a company incorporated in 1905 under the Indian Companies Act but all its shareholders and directors were residents in the United Kingdom. The business of the 770 company was that of growers of sugarcane manufacturers of sugar and dealers in sugar. It is common 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 company but such attempt did not succeed. It appears from the case filed by the respondent in tiffs appeal that in the middle of 1943 the directors of the company commenced negotiations for the sale of the factory and other assets of the company with the ultimate object of winding up the company. From the correspondence 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 communicated 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 concluded 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 company 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 consumption in the ordinary course 771 of business) used in connection 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 company 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 company possessed sugar stock valued at rupees six lacs which was excluded from the sale. This stock of sugar the company continued to sell up to June 1944. It is said that the said stock of sugar was excluded because at the time it was not possible to know at what date such a sale would be concluded and the sugar produced in 1943 had to be sold by and through the exclusive selling agents of the company under a contract entered into with them. It is however not 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 company 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 not used by the company. The company went into voluntary liquidation on the 20th June 1945. The reason for the delay in putting the company into liquidation is said to have been caused by considerable legal difficulties with regard to the transfer of certain mokarari lands belonging to the company. The liquidators appointed by the shareholders of the company represented the company in the matter of proceedings for assessment of the company for the assessment year 1945 46. In the course 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 company 's activities during the previous 772 year might not 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 company had gone into liquidation on the 20th June 1945 and that in view of the date of liquidation the liquidators could not agree that the company was not carrying on business during the year ended 30th September 1944 and they further pointed out that the various debits contained in the sugar factory accounts were those incurred in carrying on the company 's business. By his letter dated the 17th May 1947 the Income tax Officer claimed that large profits which had been made by the company 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 not furnish. The liquidators in their letter in reply dated the 22nd May 1947 did not agree that the profits were taxable for the profits to which reference had been made were not profits arising from a business carried on by the company but were profits arising from the company 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 773 set out. The subsequent history of the matter has already been mentioned and needs no reiteration. 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. (2) Such profits or gains shall be computed after making the following allowances namely : (i) . . . . . . . (ii) . . . . . . . (iii) . . . . . . . (iv) 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; (v) in respect of current repairs to 'such buildings machinery plant or furniture the amount paid on account thereof; (vi) 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 cost thereof to the assessee as may in any case or class of cases be prescribed: (vii) 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; . . . . . . . . . . . . . . . ." 774 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 commerce or manufacture or any adventure or concern in the nature of trade commerce 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 continuous 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 constituent 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 (vii) 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 not 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 words"used for the purposes of the business" obviously [1] L. R 59 I.A. 206 at p. 213. 775 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 not 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 not at all been used at any time during the accounting year no allowance can be claimed under clause (vii) in respect them and the second proviso also does not come 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 considerations. First that as admitted by the applicant company the company 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 company had not 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 company 's carrying on of the business. The second reason for the decision of the tribunal was that the applicant company did not sell its sugar stocks amounting to over Rs.6 00 000 on 7th December 1943. The applicant company s plea that the sugar stocks could not be sold as the applicant company had sole agents for the sale of sugar was not accepted by the tribunal. The ' Income tax Appellate Tribunal found that sugar continued to be sold for more than 6 months 776 after the sale of the machinery and substantial expenses on establishment and general charges continued to be incurred. From this the Income tax Appellate Tribunal concluded that the sugar stocks had not 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 company carried on business even subsequent to the sate of machinery on '7th December 1943." Although the High Court will not disturb or go behind the finding of fact of the tribunal it is now well settled that where it is competent for a tribunal to make findings in fact which are excluded from review the appeal court has always jurisdiction to intervene if it appears either that the tribunal has misunderstood the statutory language because the proper construction of the statutory language is a matter of law or that the tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it. [See Lord Normand in Commissioners of Inland Revenue vs 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 completely overlooked the fact which is plainly in evidence on the record that the machinery and plant which were sold had not at all been used for the purposes of the business carried on in the accounting year and consequently the second proviso to section 10 (2) (vii) could have no application 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 not merely stating something in the nature of a primary fact but was also drawing a conclusion which is to a certain extent contrary to the primary finding. As is stated clearly in the statement of the case the decision of the tribunal was based on (1) at p. 501. 777 two considerations. The first consideration was rounded on an admission by the liquidators that the company 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 consistent with the case that the company was only selling its stock of sugar and not doing any business of manufacture of sugar. Indeed the manufacturing process does not 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 nobody 's case and it has not been found that the company had manufactured any sugar during the whole of the accounting year. Therefore this finding that the company carried on its business up to the 7th December 1943 certainly does not indicate that the company 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 company carried on business even after the sale of the machinery and the plant clearly indicates that that business had nothing to do with the machinery or plant. Both the findings therefore are inconclusive. The matter however does not 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 company 's carrying on of the business" then the sale must be regarded as an ordinary operation of such business and consequently the profits arising out of such ordinary business operation would be assessable under the provisions of section 10 (1) and it would not 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 conceded that these deemed profits were not in reality the profits of the business carried on by the (2) 24 Tax Cases 498 at p. 501. 13 95 section C.I./59 778 company and therefore the sale transaction which brought in these profits was not in fact part of the company 's business which conclusion again will be inconsistent with the finding of fact if the business is not 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 not 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 court. Turning to the facts to be gathered from the records it is quite clear that the intention of the company was to discontinue its business and the sale of the machinery and plant was a step in the process of the winding up of its business. The sale of the machinery and plant was not an operation in furtherance of the business carried on by the company but was a realisation of its assets in the process of gradual winding up of its business which eventually culminated in the voluntary liquidation of the company. Even if the sale of the stock of sugar be regarded as carrying on of business by the company and not a realisation of its assets with a view to winding up the machinery or plant not being used during the accounting year at all and in any event not having had any connection with the carrying on of that limited business during the accounting year section 10 (2) (vii) can have no application to the sale of any such machinery or plant. In this view of the matter the answer to the first question should be in the negative and we answer accordingly. The result is that this appeal is allowed and the respondent shall pay the costs of the appellants both in this court and in the High Court. Appeal allowed. Agent for the appellant:B. N. Ghose.

The fundamental idea underlying the words used in the definition of "business" in section 2(4) of the Income tax Act the continuous exercise of an activity and the same central idea is implicit in the words "carried on by him" occurring in 10(1) and those critical words are an essential constituent that which is to be produce the taxable income and therefore the 768 tax is payable only in respect of the profits or gains of the business which is carried on by the assessee. That under clause (vii) of section 10(2) the machinery and plant must be such as were used at least for a part of the accounting year. As the machinery and plant of the sugar factory which were sold had not at all been used for the purpose of business during the accounting year the second proviso to s.10. (2) (vii) could have no application and the assessees were not liable. Although the High Court will not disturb or go behind a finding of fact of the Tribunal it is well settled that where it is competent for a Tribunal to make findings of fact which are excluded from review the appeal court has always jurisdiction to intervene if it appears either that the Tribunal has misunderstood the statutory language because the proper construction of the statutory language is a matter of law or that the Tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it. Commissioner of Income tax vs Shaw Wallace and Company (L.R. 59 I.A. 206) and Commissioners o/Inland Revenue vs Fraser (24 Tax Cases 498) referred to.

CIVIL APPEALS Nos. 170 to 176 and 178 to 183 of 1953. Appeals from the Judgment and Order dated the 22nd August 1952 of the High Court of Judicature at Madras in Civil Miscellaneous Petitions Nos. 13386 13388 13390 7812 12003 13188 13262 7822 13123 13347 13341 12997 12494 of 1950 and Order dated 8th September 1952 in C.M.P. No. 13936 of 1950. K. section Krishnaswamy lyengar (K. g. Champakesa lyengar with him) for the appellants. V. K.T. Chari Advocate General of Madras (R. Ganapathy lyer and V.V. Raghavan with him) for the respondent (State of Madras) in Civil Appeals Nos. 170 to 176 and 178 to 181. M. Seshachalapathi for the respondent (State of Andhra) in Civil Appeals Nos. 182 and 183. February 5. The Judgment of the Court was delivered by MUKHERJEA J. I2 95 S.C. I./59 762 MUKHERJEA J. These consolidated appeals numbering fourteen in all are directed against a common judgment of a Division Bench of the Madras High Court dated the 23rd of August 1952 by which the learned Judges dismissed the petitions of the different appellants made under article 226 of the Constitution. The appellants are landholders of Madras holding zamindaries within that State and in their applications under article 226 of the Constitution they prayed for writs in the nature of mandamus directing the State of Madras to forbear from notifying and taking over possession of the estates held by them and also to cancel the notifications already issued in exercise of its powers under the Madras Estates (Abolition and Conversion into Ryotwari) Act (Act XXVI of 1948). This Act the constitutional validity of which has been assailed by the appellants was passed by the Provincial Legislature of Madras functioning under the Government of India Act 1935 and it received the assent the Governor General of India on the 2nd of April 1949. The avowed object of the Act is to abolish the zamindary system by repealing the Madras Permanent Settlement Regulation of 1802 to acquire the rights landholders in the permanently settled and other estates and to introduce the Ryotwari system in all such estates. After the advent of the Constitution the Act was reserved for certification of the President and it was certified on the 12th of April 1950. In the petitions presented by the appellants a large number of grounds were put forward by way of attacking the validity of the legislation which was characterised as confiscatory in its character and subversive of the fundamental right of property which the petitioners had in the zamindaries held by them under the Permanent Settlement Regulation. Pending the disposal of these petitions the Constitution (First Amendment) Act of 1951 was passed on 1st of June 1951 and this amendment introduced two new articles namely article 31 A and 31 B in the Constitution apparently with a view to protect the 'various laws enacted for acquisition of estates from being challenged under the relevant articles of Part III of the 763 Constitution. Article 31 B specifically refers to a number of statutes mentioned in the ninth Schedule to the Constitution and it declares expressly that none of them shall be deemed to be void on the ground that they contravened any of the fundamental rights notwithstanding the decision of a court or tribunal to the contrary. It is not disputed that Madras Act XXVI of 1948 is one of the statutes included in this schedule. It may be remembered that an attempt was made to impeach the validity of the Constitution (First Amendment) Act itself before this court in the case of Shankari Prasad Singh Deo vs Union of India (1). The attempt failed and after the pronouncement of this court in Shankari Prasad 's case the grounds upon which the writ petitions of the appellants were sought to be supported became for the most part unavailing. It appears that at the time of the final hearing of the applications the arguments actually advanced on behalf of the petitioners were aimed not at invalidating the enactment as a whole but only some of its provisions firstly on the ground that there was no public purpose behind the acquisition of some of the items of property mentioned therein and secondly that the provisions for compensation in certain aspects were colourable exercise of legislative powers and constituted a fraud upon the Constitution Act of 1935. These arguments were sought to be supported entirely on the authority of the majority decision of this court in the case of The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh (2) to the extent that it pronounced two of the provisions of the Bihar Land Reforms Act. 1950 a legislation similar in type to the Madras Act 1948 to be unconstitutional. These contentions did not find favour with the learned Judges of the High Court who heard the petitions and holding that the principles enunciated by the majority of this court in the Bihar case referred to above were not applicable to the impugned provisions of the Madras Act they dismissed all the petitions. Certificates however were granted by the High Court to the petitioners (1) ; (2) 764 under article 132(1) of the Constitution and it is on the strength of these certificates that the appeals have ' come before us. Mr. Ayyangar appearing in support of these appeals has taken his stand solely upon the doctrine of ' 'colourable legislation ' as enunciated by the majority of this court in the Bihar case referred to above. He has very properly not attempted to make any point as to the absence of a public purpose in regard to any of the items of acquisition since it is clear that according to the majority view of this court as explained in Narayan Deo vs State of Orissa (1) the existence of a public purpose is not a justiciable issue in case of an enactment which having fulfilled the requirements of clause (4) of article 31 of the Constitution enjoys the protection afforded by it. The contentions of Mr. Ayyangar in substance are that the provisions of 'section 27(i) as well as of section 30 of the impugned Act are colourable legislative provisions which have been enacted in fraud of the Constitution Act of 1935. It appears that in determining the amount of compensation that is to be paid under the Act in respect of an acquired estate it is necessary first of all to ascertain what has been described as the 'basic annual sum ' in regard to that estate. The ' basic annual sum comprises several items or parts which have been set out in section 27 and the subsequent sections of the Act and it is upon the amount of the basis annual sum determined in accordance with the provisions of these sections that the total amount of compensation money payable to a proprietor is made to depend. Mr. Ayyangar contends that section 27(i) of the Act which lays down that in computing the basic annual sum only one third of the gross annual Ryotwari demand of specified kinds is to be taken into account is a colourable provision which ignores altogether the actual income derived from the property and introduces an artificial and an arbitrary standard for determining the income or profits which has absolutely no relation to facts. Similarly in computing the net miscellaneous revenue which is an (x) [1945] S.C.R. A.I.R. x953 8. G. 375 at P. 380. 765 element in the computation of the basic annual sum what is to be taken into account under section 30 is not the average of net annual income which the proprietors themselves derived from the sources mentioned in the Act when they were in possession of the estates but which the Government might derive from them in future years after the date of notification. 'Thus if on account of mismanagement or for other reasons the Government does not derive any income from these sources the proprietor would not have any compensation under this head at all. It is argued that these are mere devices or contrivances aimed at confiscation of private property and they neither lay down nor are based upon any principle of compensation. Whatever the merits of these contentions might be it appears to us that there is an initial and an insuperable difficulty in the way of the learned counsel 's invoking the authority of the majority decision of this court in the case of The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh(1) to the circumstances of 'the present case. The Bihar Land Reforms Act 'which was the subject matter of decision in that case was a legislation which was pending at the time when the Constitution came into force. It was reserved for consideration of the President and received his assent in due course and consequently under clause (4)of article 31 of the Constitution it was immune from judicial scrutiny on the ground that the compensation provided by it was inadequate or unjust. With regard 'to two of the provisions of the Act however which were embodied in sections 4 (b) and 23(f) of 'the Act it was held by the majority of this court that they were void as they really did not come within entry 42 of List III of Schedule VII of the Constitution under which they purported to have been enacted. Entry 42 of List III speaks of "principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined and the form and the manner in which such compensation is (1) [1952] s.c. R. 889. 766 to be given. " It was pointed out that entry 42 was undoubtedly the description of a legislative head and in deciding the competency of a legislation under this entry the court was not concerned with the justice or propriety of the principles upon which the determination of the compensation was to be made or the form or manner in which it was to be given. But even then the legislation must rest upon some principle of giving compensation and not of denying or withholding it and a legislation could not be supported which was based upon something which was non existent or was unrelated to facts and consequently could not have a conceivable bearing on any principle of compensation. The initial difficulty in the way of invoking this doctrine in the present case lies in the fact that the legislation which is impugned here was passed by the Madras Provincial Legislature functioning under the Government of India Act 1935 and ' there was no entry in any of the lists attached to the Act of 1935 corresponding to entry 42 in List I1I of the Indian Constitution. The only entry relevant to. this point in the Act of 1935 was entry9 of List I1 which spoke merely of 'compulsory acquisition of land '; and it is clear that a duty to pay compensation or of ' laying down any principle regarding it was not inherent in the language of that entry. The guarantee for payment of compensation so far as the Constitution Act of 1935 is concerned was contained in section 299 clause (2) which was worded as follows: "Neither the Federal Legislature nor a Provincial Legislature shall have power to make any law ' authorising the compulsory acquisition for public purposes of any land or any commercial or industrial ' undertaking . . unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principles on which and the manner in which it is to be determined. " The appellants could have very well relied upon this guarantee if a bar had not been created in their way by the provision of article 31(6) of the Constitution. That clause of article 31 stands of follows: 767 "Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the president for his certification; and thereupon if the President by public notification so certifies it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of this article or has contravened the provisions of sub section (2) of section 299 of the Government of India Act 1935. " It is not disputed that the Madras Act XXVI of 1948 does fulfil all the requirements mentioned above. Consequently it is not possible for us to allow the appellants to raise the contentions which the learned counsel on their behalf wants to raise. The result is that the appeals would stand dismissed but in the circumstances of this case we shall make no order as costs. Appeals dismissed.

The Madras Estates (Abolition and Conversion into Ryotwari) Act (Act XXVI of 1948) was passed by the Provincial Legislature of Madras functioning under the Government of India Act 1935 and it received the assent of the Governor*General of India on the 2nd of April 1949. After the advent of the Constitution the Act was reserved for the certification of the President and it was certified on the 12th of April 1950: Held that in view of the provisions of article 31(6) of the Constitution the validity of the Act could not be challenged on the ground that it contravened the provisions of section 299(2) of the Government of India Act 1935. Shankari Prasad Singh Deo vs Union of India ([1952] S.C.R. 89) The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh ([1952] S.C.R. 889) and Narayan Deo vs The State of Orissa ([1954] S.C.R. 1) referred to.

riminal Appeals Nos. 65 and 66 of 1952 5 and 19 of 1953 and Petitions Nos. 170 of 1952 19 and 57 of 1953. Appeals from Orders dated the 9th April 1952 of the High Court of Judicature at Bombay in Criminal Applications Nos. 707 and 708 of 1951 from the Judgment and Order dated the 15th December 1952 of the High Court of Judicature at Bombay in Criminal Application No. 1310 of 1952; from the Judgment and Order dated the 29th November 1952 of the Judicial Commissioners Court Vindhya Pradesh Rewa in Criminal Miscellaneous No. 49 of 1952; and Petitions under article 32 of the Constitution of India. J.B. Dadachanji and Z. F. Bootwala for the appellants in Criminal Appeals Nos. 65 and 66 of 1952 and 5 of 1953. C.K. Daphtary Solicitor General for India(G. N. Joshi with him) for respondents Nos. I and 2 in 121 934 Criminal Appeals Nos. 65 and 66 of 1952 and respondent No. 1 in Criminal Appeal No. 5 of 1953. K.B.Asthana for the appellant in Criminal Appeal No. 19 of 1953. C.K. Daphtary Solicitor General for India (Porus A. Mehta and G. N. J08hi with him) for the respondent in Criminal Appeal No. 19 of 1953. section P. Sinha (Sri Narain Andley with him) for the petitioners in petition No. 170 of 1952. Gopalji Mehrotra for respondent No. I in petition No. 170 of 1952. C. K. Daphtary Solicitor General for India (Porus A. Mehta with him) for respondent No. 3 in petition No. 170 of 1952. section P. Sinha (section N. Mukherji with him) for petitioner in petition No. 19 of 1953. Gopalji Mehrotra for respondent No. I in petition No. 19 of 1953. G. N. Joshi for respondent No. 3 in petition No. 19 of 1953. H.J. Umrigar amicus curiae for the petitioner in petition No. 57 of 1953. C. K. Daphtary Solicitor General for India (G. N. J08hi with him) for the respondents in petition No. 57 of 1953. February 15. The Judgment of Mahajan C.J. Mukherjea Vivian Bose and Ghulam Hassan JJ. was delivered by Ghulam Hasan J. Das J delivered a seperate judgment. Criminal Appeals Nos. 65 and 66 of 1952. GHULAM HASAN J. This batch of appeals raises a common question of the constitutional validity of section 7 of the Influx from Pakistan (Control) Act (XXIII of 1949). Section 3 of the same Act is also assailed on behalf of some of the appellants but for the purpose of deciding these appeals it will not be necessary to deal with the latter question. Criminal Appeals Nos. 65 and 66 of 1952 which are directed against the judgment and order of the High Court of Judicature at Bombay in two petitions under article 226 of the Constitution praying for the issue of 935 a writ of mandamus requiring the respondent not to remove them from India on the ground that the impugned section 7 is void may be treated as the leading case which will govern the other appeals. The facts of each of these appeals are slightly different but they proceed upon the common assertion that the appellants are citizens of the Indian Republic. This fact was assumed in the leading case but it is not disputed that the status of the appellants as Indian citizens in all the cases has not been investigated and determined by any of the courts below against whose decision the appeals have been brought. Having heard the learned counsel appearing in support of the appeals and the learned Solicitor General we have reached the conclusion that section 7 is void in so far as it infringes the right of a citizen of India under article 19(1) (e) of the Constitution. The Act in question received the assent of the Governor General on April 22 1949 and was published in the Gazette of India Extraordinary on April 23. It is a short Act containing nine sections. It is intituled an Act to " control the admission into and regulate the movements in India of persons from Pakistan ". The preamble opens with the words "Whereas it is expedient to control the admission into and regulate the movements in India of persons from Pakistan. " Section 2 (b) defines " officer of Government " as any officer of the Central Government and 2 (c) defines "permit" as a "Permit issued or renewed or the period whereof has been extended in accordance with the rules made under this Act. " Section 3 says II No person shall enter India from any place in Pakistan whether directly or indirectly unless (a) he is in possession of a permit or (b) being a person not domiciled in India or Pakistan he is in possession of a valid passport as required by the Indian Passport Act 1920 (XXXIV of 1920) or (c) he is exempted from the requirement of bein in possession of a permit by or in accordance with the rules made under this Act. " 936 Section 4 empowers the Central Government by notification in the Official Gazette to make rules: (a) prescribing the authorities by which and the conditions subject to which permits may be issued or renewed or the period thereof extended the condition to be satisfied by the applicants for such permits and the forms and classes of such permits; (b) regulating the movements in India of any person who is in possession of a permit; (c) providing for the exemption either absolutely or on conditions of any person or class of persons from the requirement of being in possession of a permit or from the operation of any rule made under the section ; and (d). . . . . . . . . . . section 5 is the penal section which says " (a) Whoever enters India in contravention ' of the provisions of section 3 or having entered India contravenes the provisions of any rule made under section 4 or commits a breach of any of the conditions of his permit shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. " Section 6 confers power of arrest upon an officer of Government. Section 7 is as follows: " Without prejudice to the provisions contained in section 5 the Central Government may by general or special order direct the removal from India of any person who has committed or against whom a reason able SUSPICION exists that he has committed an offence under this Act and thereupon any officer of Government shall have all reasonable powers necessary to enforce such direction. " Section 8 provides for protection to persons acting in good faith and section 9 repeals the Influx from Pakistan (Control) Ordinance XXXXIV of 1948. The use of the word 'person ' in section 7 read with the title and preamble of the Act leaves no doubt that. the Act applies to citizens and non citizens alike. So 937 far as a non citizen is concerned it is not contended before us3 that the executive Government has no authority to direct his removal from India and the only contention raised before us is whether the Central Government has any power to direct the removal of an Indian citizen on either of the grounds mentioned in section 7. Section 7 it is contended confers upon the Central Government unfettered power to direct the removal from India not only of a person who has committed an offence punishable under section 5 of the Act but also one against whom a reasonable suspicion exists that he has committed such an offence. That an Indian citizen visiting Pakistan for any purpose whatsoever and returning to India may be required to produce D permit or passport as the case may be before he can be allowed to enter the country may well be. regarded as a proper restriction upon entry but to say that if he enters the country without a permit or on an invalid permit or commits a breach of any of the conditions of the permit he may on conviction for such offence be ordered to be removed from the country is tantamount to taking away his fundamental right guaranteed under article 19(1) (e) " to reside and settle in any part of the territory of India. " The order is sought to be supported by the learned Solicitor General on the ground that it falls within exception (5) of article 19. The proposition that the order imposes in the interest of the general public a reasonable restriction on the exercise of the. right conferred upon an Indian citizen to reside and settle in any part of the territory of India is hardly statable. It is possible to conceive of an Indian citizen being guilty of serious prejudicial Acts such as espionage and disloyalty to his country in which case he may render himself liable to the gravest penalty which the Government may think fit by law to impose upon him but it would be repugnant to all notions of democracy and opposed to the fundamental rights guaranteed in Part III of the Constitution to order his expulsion from the country for to hold otherwise would be tantamount to destroying the right of citizenship conferred by Part II of the Constitution. This 938 result is permissible only by recourse to article 11 of the Constitution. Again it will be noticed that section 7 imposes the penalty of removal not only upon a conviction under section 5 but goes further and brings about the same result even where there is a reasonable suspicion entertained by the Central Government that such an offence has been committed. The question whether an offence has been committed is left entirely to the subjective determination of the Government. The inference of a reasonable suspicion rests upon the arbitrary and unrestrained discretion of the Government and before a citizen is condemned all that the Government has to do is to issue an order that a reasonable suspicion exists in their mind that an offence under section 5 has been committed. The section does not provide for the issue of a notice to the person concerned to show cause against the order nor is he afforded any opportunity to clear his conduct of the suspicion entertained against him. This is nothing short of a travesty of the right of citizenship. The learned Solicitor General argued that the provision must be viewed in the back ground of the events which took place at the time of the partition and the unsatisfactory relations existing between India and Pakistan. up to the present day. Even so the penalty imposed upon a citizen by his own Government merely upon a breach of the permit Regulations however serious it may be and more upon a reasonable suspicion only by the executive authority of his having violated the conditions of the permit is utterly disproportionate th the gravity of the offence and is in our opinion indefensible. A law which subjects a citizen to the extreme penalty of a virtual forfeiture of his citizenship upon conviction for a mere breach of the permit Regulations or upon a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country in the interest of the public. The Act purports to control admission into and regulate the movements in India of persons entering from Pakistan but section 7 oversteps the limits of control 939 and regulation when it provides for removal of a citizen from his own country. To use the language of this court in Chintaman Rao vs The State of Madhya Pradesh and Ram Krishna vs The State of Madhya Pradesh(1) " The effect of the provisions of the Act however has no reasonable relation to the subject in view but is so drastic in scope that it goes much in excess of that object. It may be said that the sentry on guard at any of the check posts on the frontier between the two countries can prevent not only unauthorised entry of a citizen by force but can also throw him out if the person has managed to enter surreptitiously. Exactly what the sentrys ' duties are was not argued before us. They would naturally vary according to the circumstances and the orders which be receives but ordinarily we apprehend that the duty of a sentry at the border would be to prevent as far as lay in his power un authorised entry into India. If any person claims to have the right to enter the sentry 's duty would be to hand him over to the Commander of the Guard and normally it would be the duty of that Commander to hand him over to the proper authority empowered to determine the right which he claims. In the case of an unauthorised entry ordinarily the duty of the sentry is to arrest a man and hand him over to the proper authority for punishment and in extreme cases he may have the right to shoot the person who does not halt on his command and explain his presence at the outpost. In normal circumstances we doubt if the sentry would have the right to forcibly expel a man who crosses the border. The learned Chief Justice (Chagla C. J.) took the view that section 7 is consequential to section 3 and held that if section 3 controlling admission by means of a permit is valid section 7 must be held to be equally valid. This argument is fallacious. In the first place section 7 is by no means wholly consequential to section 3. The first part no doubt renders the person concerned liable to removal upon conviction under section 5 but further empowers. the Central Government (1) ; 940 to pass the same order independently of these provisions even where there is no conviction and a reasonable suspicion exists that an offence has been committed. Assuming however that section 7 is consequential to section 3 it gives no opportunity to the aggrieved person to show cause against his removal. There is no forum provided to which the aggrieved party could have recourse in order to vindi cate his character or meet the grounds upon which it is based. Neither the Act nor the rules framed thereunder. indicate what procedure is to be followed by Government in arriving at the conclusion that a breach of section 3 or of the rules under section 4 has taken place In Shabbir Hussain vs The State of Uttar Pradesh and Another(1) the Allahabad High Court held that a law allowing the removal from a territory of India of any citizen is in contravention of article 19 (1) (d) and(e) of the Constitution and is void in view of article 13(1). The order which was challenged before them was one passed under section 7 and was set aside. In Criminal Writ No. 147 of 1951 decided on December 11 1951 a Bench of the Punjab High Court (Weston C. J. and Harnam Singh J.) while setting aside the order under section 7 against a citizen of India who had entered India without a permit and was first convicted and then ordered to be externed observed: "The powers of removal or banishment given by section 7 of the Influx from Pakistan (Control) Act 1949 connot be invoked against citizens of India. No doubt she committed an offence under section 3 of that Act which applied to all persons but that cannot justify her removal even though her entry may have been contrary to the provisions of the Act. " We are not prepared to accede to the contention urged by the Solicitor General that a citizen of India who returns to the country without a permit or without a valid permit commits such a grave offence as to justify his expulsion from the country. The object of the Act is not to deport Indian nationals (1) A.I.R. 1952 All. 941 committing a breach of the permit or passport Regulations but merely to control admission into and regulate movements in India of persons from Pakistan and therefore there is no substance in the argument that section 7 was intended to achieve the objective of expelling Indian citizens by and large if they brought themselves within the mischief of section 3. It was faintly contended that the order of physical removal from India in addition to the punishment imposed under section 5 of the Act amounted to what may be called " double jeopardy " and is in conflict with article 20 (2) of the Constitution. The short answer to this contention is that there is no second prosecution for the same offence and therefore no question of double jeopardy arises. See Maqbool Hussain vs The State of Bombay etc.(1). As a result of the foregoing discussion we declare section 7 to be void under article 13(1) in so far as it conflicts with the fundamental right of a citizen of India under article 19(1) (e) of the Constitution and set it aside. The order will however operate only upon proof of the fact that the appellants are citizens of India. The case will therefore go back to the High Court for a finding upon this question. It will be open to the High Court to determine this question itself or refer it to the court of District Judge for a finding. Parties will be given full opportunity to file affidavits or give other evidence which they may wish to produce. Criminal Appeal No. 5 of 1953. GHULAM HASAN J. The appellant in this case is a resident of Godhra District Panchmahals in the State of Bombay. He went to Pakistan in Marc 1948 and returned to India on May 30 1949 after obtaining a permit for permanent return to India from the High Commissioner for India. In January 1950 he was prosecuted under section 5 of Act XXIII of 1949 for having obtained a permit which was not in accordance with the provisions of the Act. The prosecution was withdrawn after 21 years. Subsequently on December 5 1952 he was served with a notice (1) ; 122 942 ordering him to leave India for Pakistan within 10 days else he would be bodily removed to the Indo Pakistan border. Thereupon the appellant filed a petition under article 226 contending that section 7 was contrary to his fundamental rights under articles 14 and 19 of the Constitution and that the same provided no opportunity to the appellant to put his case before the Government officers nor was any such opportunity afforded to him. He asserted that he was a citizen of India. The application was summarily dismissed on December 15 1952 whereupon leave to appeal to this court was granted under article 132(1) of the constitutional. As this appeal also raises the question of the constitutional validity of section 7 it will be governed by the decision which we have arrived at in appeals Nos. 65 and 66 of 1952. Criminal Appeal No. 19 of 1953. GHULAM HASAN J. The appellant Haji Faqir Ahmad is a resident of Rewa in Vindhya Pradesh and alleges that he is a citizen of India. He was prosecuted under section 5 of Act XXIII of 1949 on the ground that he entered India from Pakistan without a permit and convicted and sentenced. Thereafter he was by an order passed under section 7 bodily removed out of India. His father applied under article 226 of the Constitution and section 491 of the Code of Criminal Procedure for setting aside the order. The learned Judicial Commissioner dismissed the application summarily holding that section 7 was not ultra Vires the Constitution. Mr. Asthana who appeared on behalf of the appellant raised a further question that the order was void under article 14 inasmuch as it discriminated against members of a particular community coming from Pakistan. There is no warrant for this contention. The Act applies to citizens as well as non citizens. It applies to all communities irrespective of caste or creed. It is contended that the Act must be held to be discriminatory not only by virtue of its provisions but because of the discriminatory manner in which those provisions have been applied. This argument is 943 to be mentioned only to be rejected for there is no material whatsoever placed before us to justify the statement. The case in Yick W o vs Peter Hopkins (1) is wholly inapplicable to the facts of the present case. We accordingly reject the contention. This case will also be governed by the decision in Appeals Nos. 65 and 66 of 1952. Petition No. 170 of 1952. AND Petition No. 19 of 1953. GHULAM HASAN J. These petitions under article 32 of the Constitution raise the constitutional validity of section 7 of the Influx from Pakistan (Control) Act XXIII of 1949. Mr. section P. Sinha who appears for the petitioners withdraws these petitions and undertakes to file two petitions under article 226 of the Constitution within a fortnight from this day before the High Court. When these have been filed they will automatically be governed by the decision given in Ap peals Nos. 65 and 66 of 1652. No other order is called for. The petitions are allowed to be withdrawn. Petition No. 57 of 1953. GHULAM HASAN J. This a petition under article 32 of the Constitution by Inamullah Khan alias Qamar Jamali for the issue of a writ in the nature of habeas corpus directing that the petitioner who is illegally arrested and detained be brought before the court and set at liberty and for the issue of a writ of certiorari calling for the said order for arrest and detention and the relevant papers and for setting them aside as being void and in operative. It is further prayed that the State of Bhopal and the Superintendent of Central Jail Bhopal where he was being detained be restrained from putting into effect the said order. The petition was made on March 11 1953. It is stated that the petitioner is a citizen of India having been born in Bhopal in 1922. He was employed in Bhopal for 5 years immediately preceding (1) ; 944 the commencement of the Constitution of India. He also edited a weekly paper "Tarjuman" from Bhopal. His name appears as. a voter in the voters" list of the Bhopal Legislative Assembly (1951 52) as well as in the electoral roll of the Municipal Board Bhopal. The was arrested on November 24 1952 by the Sub Inspector of Police at lbrahimpura Bhopal under section 7 of the Influx from Pakistan (Control) Act XXIII of Pakistan. At the time of the arrest the petitioner was being tried under section 448 Indian Penal Code in the court of 1st Class Magistrate Bhopal and was on bail. The petitioner alleges that he never went to Pakistan nor entered India without a permit and was never tried and convicted under the Influx from Pakistan (Control) Act of 1949. He challenges the order under section 7 as being void under article 19(d) and (e) and articles 21 and 22. The fact that the petitioner is a resident of Bhopal and was employed in the State is not denied on behalf of the State. The affidavit on behalf of the State mentions that the petitioner had gone to Pakistan in may 1952 and returned in August 1952 without a permit. He was arrested on November 24 1952 without any prior notice but was told at the time of the arrest that he was to be removed out of India. The petitioner filed an application through his uncle before the Judicial Commissioner Bhopal under article 226 on November 25 1952 challenging. the order. The Judicial Commissioner granted an interim stay order on the same day. The petition was dismissed on February 23 1953 and the interim order was vacated on March 10 1953. It is admitted that an oral request was made to the Judicial Commissioner for leave to appeal to this court and it was prayed that pending the grant of leave the order of stay should continue. Leave was refused on the same day and the stay order was vacated. There is an affidavit by the Chief Secretary of the State admitting that the petitioner on the same day banded an application to the Superintendent of Jail 945 addressed to this court. The Superintendent of Jail sent it to the Chief Secretary on March 13 1953. It was put up before him on the 14th when he forwarded it to the Law Department for opinion on March 16. The petition was returned to him on the 19th with the remark that it should be forwarded to the Supreme Court. It was sent to this ' court on ;March 22. On the same day a telephonic communication was sent by the Registrar of this court through the States Ministry directing that the petitioner should be detained if he was still in India but it appears that the petitioner had been handed over to the Rajas than Police at Kotah on March 12 1953 and a reply was received by the Inspector General of Police Jaipur that the petitioner had crossed the border on March 18 1953. The Superintendent of Jail has also filed an affidavit supporting the Chief Secretarpand has admitted that it was wrong on his part not to have sent the petition submitted by the prisoner immediately to this court and that he in good faith believed that as the order for stay had been vacated by the Judicial Commissioner he should first send it to the Registrar of that court. It is obvious that the Superintendent was grossly in error and his action in not submitting the petition resulted in the unlawful removal of the petitioner out of the country. He has made amends by tendering an unqualified apology and nothing further need be said about it. In Ebrahim Wazir Mavat vs The State of Bombay and Others and Noor Mohammad Ali Mohammad vs The State of Bombay and Others (Criminal Appeals Nos. 65 and 66 of 1952) in which we have just delivered judgment we have held that section 7 of the Act is void as against a citizen of India being. an encroachment on his fundamental right under article 19 (1) (e) of the Constitution. Following that decision we hold that the order of removal of the petitioner is liable to be set aside. Mr. Umrigar who appeared for the petitioner pointed out that the Judicial Commissioner has already held that the petitioner is a citizen of India and that it will serve no useful purpose by remanding 946 the case to him for an inquiry into the question. The Solicitor General on behalf of the Union of India has read to us the order of the Judicial Commissioner and admits that this is so. It is therefore not necessary to adopt the course that we have taken in the aforesaid a peals involving the validity of section 7. We accordingly hold that the order passed against the petitioner is void and set it aside. Mr. Umrigar requests that the order should be communicated to the petitioner through the High Commissioner for India in Karachi to whom the petitioner sent a representation praying that he should be allowed to return to India. This request is granted. Criminal Appeals Nos. 65 and 66 of 1952 No 5 of 1953 and No. 19 of 1953 and Petitions No. 170 of 1952 No. 19 of 1953 and No. 57 of 1953. DAs J. I regret I am unable to agree with the judgment just delivered. Four Criminal Appeals namely Criminal Appeals Nos. 65 and 66 of 1952 No. 5 of 1953 and No. 19 of 1953 and three Criminal Miscellaneous Petitions namely Petition No. 170 of 1952 No. 19 of 1953 and No. 57 of 1953 were posted for hearing and were heard by us one after another. In each one of those appeals and petitions the appellants or the petitioners as the case may be challenged the constitutional validity of the Influx from Pakistan (Control) Act 1949 (Act XXIII of 1949). Learned advocate appearing in support of petitions No. 170 of 1952 and No. 19 of 1953 asked for leave to withdraw them with liberty to file fresh ' petitions in the High Court. Such leave having been given nothing further need be said about those two petitions. The facts of each of the remaining appeals and the remaining petition have been set out in the judgment just delivered and need not be repeated. Suffice it to say that the appellants in Appeals Nos. 65 and 66 of 1952 first came to India from Pakistan on temporary permits issued by the High Commissioner for India in Pakistan but stayed on after the expiry of the 947 period and were convicted under section 5 of the Act. Later on they returned ' to Pakistan on a temporary permit issued by the High Commissioner for Pakistan in India and eventually came back to India on a permanent permit issued by the High Commissioner for India in Pakistan. That permanent permit was cancelled on the. allegation that it had been obtained on the strength of a "no objection" certificate which had been obtained by them by the suppression of material facts namely that they had previously come. to India on a temporary permit. The appellant in Appeal No. 5 of 1953 came to India from Pakistan on a permanent permit which was subsequently can celled on the allegation that it had been obtained by fraud. The appellant in Appeal No. 19 of 1953 came to India from Pakistan without any permit and was prosecuted and convicted under section 5 of the Act and later on arrested and sent back to Pakistan. The petitioner in Petition No. 57 came to India without any permit at all. On this petitioner as well as on the appellants orders had been made under section 7 of the impugned Act to the effect that unless they left India within the time specified in the respective orders they would be bodily removed from India. These orders were made on the ground that they had entered India in violation of section 3 of the Act and/ or the rules and order made thereunder. Each of these persons claimed that they were citizens of India and complained that the orders made against them violated their fundamental rights under Chapter III of the Constitution of India. It will be recalled that on the 15th August 1947 there was a partition of India and two Dominions were formed under the Indian Independence Act 1947. A grave emergency arose on the partition of India resulting in mass migration of population from one Dominion to the other accompanied by riots arson murder rape and loot. Intense bitterness and hatred were generated in the minds of the people of one Dominion against those of the other Dominion. Even in one Dominion there was suspicion in the 948 minds of the members of one community against those of the other. In those circumstances the uncontrolled and indiscriminate entry of persons Hindu or Muslim from Pakistan into India was naturally regarded as fraught with the possibility of espionage and sabotage the prevention of which was essential for the security of the Dominion of India. Further an uncontrolled entry of large numbers of people was calculated to place and in fact placed a tremendous strain on the economy of India and on the law and order situation in the country. It was in order to prevent such result that it was necessary to exercise some control over such influx of persons from Pakistan into India. Accordingly the Influx from West Pakistan (Control) Ordinance (XVII of 1949) was promulgated on the 19th July 1948 by the Governor General in exercise of the powers conferred on him by section 42 of the Government of India Act 1935. The preamble to that Ordinance recited that an emergency had arisen which made it necessary to control the admission into and regulate the movements in India of persons from Pakistan. Thereafter the Influx from Pakistan (Control) Ordinance (XXXIV of 1948) was issued on the 10th November 1948 replacing the earlier Ordinance. This Ordinance applied to persons entering into India from both West Pakistan and East Pakistan. It substantially reproduced all the sections of the previous Ordinance . Finally on the 22nd April 1949 the Influx from Pakistan (Control) Act (XXIII of 1949) replaced the second Ordinance. Sections 3 and 7 of this Act substantially reproduced the provisions of sections 3 and 7 of the Ordinance. The Permit System Rules of 1948 were replaced on the 20th May 1949 by the Permit System Rules of 1949. This Act however was repealed on the 15th October 1952 by Act LXVI of 1952. Section 3 of this repealing Act however expressly preserved the application of section 6 of the . Although the Influx from Pakistan (Control) Act 1949 has been repealed and the number of persons who like the appellants and the petitioners before us. are affected by that Act is small nevertheless the matter has to 949 be scrutinised closely for our decision may conceivably affect the passport regulations which have replaced the permit system. The contention advanced in these appeals and the petition is that sections 3 and 7 of the Act have since the commencement of the Constitution become void in that they violate the fundamental rights guaranteed by articles 14 and 19(1) (d) and (e) of the Constitution. The provisions of these two sections which have been sufficiently set out in the judgment just delivered will at once show that they applied to all persons coming from Pakistan whether they were citizens or noncitizens and irrespective of the community to which they belonged or the religion which they professed. It will also appear that as regards citizens they did not touch all citizens but affected only such of them as came from Pakistan whether they were Hindus Muslims or Christians. It is therefore quite clear that the Act applied to a small well defined class of persons who were grouped together on an obviously reasonable basis of classification as explained in the previous decisions of this court. In this view of the matter no question of unconstitutional discrimination can arise at all and indeed the plea based on the equal protection clause of the Constitution has not been seriously pressed. The main contest has centred round the question whether these two sections offend against the provisions of article 19(1)(d) and (e) of the Constitution. The learned Solicitor General appearing for the respondents contends that those sections are protected by article 19(5) as being reasonable restrictions on the exercise of the rights guaranteed by sub clauses (d) and (e) of clause (1) of that article. In State of Madras vs V. G. Row (1) Patanjali Sastri C.J. observed: " It is important in this context to bear in mind that the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. (1) at p. 607. 123 950 The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition the prevailing conditions at the time should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable in all the circumstances of a given case it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part and the limit to their interference with legislative judgment I in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all and that the majority of the elected representatives of the people have ' in authorising the imposition of the restrictions considered them to be reasonable." The impugned sections have therefore to be examined in the light of the above observations. I find nothing unconstitutional about section 3 of the impugned Act It does not debar the entry of any person absolutely. It only requires that a person entering India from any place in Pakistan must be in possession of a permit or a valid passport or be exempted from such requirements. Passport regulations obtain in every civilized country including even those the constitutions whereof confer similar fundamental rights on their citizens e.g. Switzerland (articles 43 45) Wiener Germany (article III) Czechoslovakia (article 108) Jugoslavia (article 10) Danzig (article 75) and Albania (section 202). Such regula tions serve to check up the persons who enter the territories of the State and are necessary for the safety of the State. Seeing that such regulations obtain everywhere and have a definite utility for the protection of the general public by securing the safety of the State I have no manner of doubt in my mind that such restrictions as are. contemplated by section 3 must be regarded as reasonable restrictions permissible under 951 clause (5) of article 19 of the Constitution. Indeed the objection of section 3 has not been seriously pressed before us. The main objection urged by learned counsel appearing in support of these appeals and petitions was directed to the question of the validity of section 7. In the ' first place it is clear that no objection can be taken to section 7 in so far as it affected persons who were 'not citizens of India for article 19 guarantees certain fundamental rights to the citizens of India only. In the next place this section did not affect all citizens but touched only a well defined small class of citizens namely those who went to Pakistan and intended to return to India. The question is whether qua these citizens section 7 can also be regarded as a reasonable restriction within the meaning of clause (5) of article 19. The High Court of Bombay has held and in my opinion quite correctly that the provisions of section 7 cannot but be regarded as consequential to the provisions of section 3. Suppose at the check post a person from Pakistan whether a citizen or not tried to cross the border without a permit. Surely the officer at the check post would have been well within the law to prevent a violation of section 3 of the Act and with that end in view to prevent that person who had no permit from crossing the border and entering India. I have no doubt that the officer might also have prevented a person from Pakistan from crossing the border if he suspected that the permit produced by the person was forged or otherwise irregular and left him to take up the matter with the higher authorities from Pakistan. Suppose the man who sought to enter India without a permit or with a permit which was suspected to spurious forcibly crossed the border and took a step or two on our side of the line the Indian officer would certainty have been entitled to throw him back to the other side of the line. Surely such a person could not be permitted to take advantage of his own wrong and could not be heard to say that in such circumstances he had by his wrong doing acquired a better right than the person 952 who had not the temerity to violate the provisions of section 3. If this is so then logically I can see no difference if the man ran into the Indian territory for some distance and the Indian officer ran after him overtook him and took him back to the check post and pushed him out of our side of the line. It is futile in such a situation to expect or to say that the officer should have held a judicial enquiry and come to a judicial decision after hearing an argument as to the validity of the permit or as to the status of the permit holder or the fundamental rights of a citizen Of India to move freely in India and to settle anywhere he liked in India. The truth and substance of the matter are that in acting in the way indicated above the officer simply performed an executive act and prevented a person who held no permit or held a permit which appeared to the officer to be spurious from entering India from Pakistan in violation of section 3 of the Act. To throw out such a person was not. to inflict any punishment on him or to do him any greater injury than what was imposed on or done to a person who not having a permit was stopped at the check post and not allowed to enter India at all. The man thus thrown out was placed under no greater disability than the man who had initially been prevented from entering India at the check post barrier. In both cases such a person might while staying in Pakistan have taken steps to obtain a permanent permit upon proof of his status as an Indian citizen and if such permit was illegally withheld from him he might have through some agent in India taken proceedings in Indian courts ' for appropriate reliefs. To my mind the position of the person who entered India on a temporary permit but who in violation of the rules or order made under the Act stayed on after the period of the permit expired was as from that date logically the same as that of the person who entered India without a permit. To arrest such a person after the expiry of the period of the temporary permit with a view to sending him back back to where he came from and to actually send him back there did not involve or 953 constitute a judicial act at all but Was a rough and ready executive act for enforcing and giving effect to the provisions of section 3 of the Act. To arrest and send such a person back to Pakistan was not to inflict a punishment but was only to restore the status quo and to put him back to the position he would have been in but for his illegal act. In my opinion the act authorized by section 7 was in essence.a purely executive act for implementing the provisions of section 3. Without such a provision it would have been impossible for the State to control the admission into India of persons from Pakistan and to prevent the concomitant dangers referred to above. The act authorised by the section being an executive act discretion had perforce to bib left to the executive Government which by reason of the information available to it" was in a much better position than the courts to know and judge the antecedents of such a person and his ultimate purpose. ' Suppose an Indian citizen no matter whether he was a Hindu or a Muslim had entered India from Pakistan without a permit and suppose he was upon confidential reports which: could not be safely disclosed suspected to be engaged in espionage in the interests of Pakistan would it have been safe enough in those hectic days to have only prosecuted him under section 5 and inflicted on him a fine of rupees one thousand or a term of imprisonment not exceeding a year and then to have left him free after the term of imprisonment was over to surreptitiously carry on his nefarious activities of espionage and sabotage against our State while embarking upon a protracted judicial enquiry to ascertain the truth or* otherwise of his claim to Indian citizenship ? It cannot be overlooked that there are. long common borders between Pakistan and India both on the west and on the east. The Kashmir situation had also aggravated the emergency brought about by the partition of India. Having regard to all the circumstances the tension bitterness and hatred between the two countries that were generated at the time of the partition and all which must enter into the judicial verdict the provisions of section 7 appear to me to have been eminently reasonable restrictions imposed in the interests of the 954 general public upon the exercise by Indian ' citizen coming from Pakistan without a permit of the rights conferred by article 19(1)(d) and (e) of the Constitution. The Indian citizen who was thrown out for not having the proper permit or who was suspected to have violated the provisions of the Act was placed in no worse position than an Indian citizen who not having a permit had not been permitted to enter into India at all. They were by no means without remedy. They could from the other side of the border take steps under the rules to obtain valid permanent permits upon proof of their citizenship of India and if such permits were. illegally withheld from them they could move the appropriate High Court under article 226 or even this court under article 32 while they were outside India and might on proof of their citizenship have got appropriate writs or orders directing the State or its officers to issue suitable permits and to desist from otherwise preventing them from entering India or interfering with their movement while in India. It is said that if such a person would have been entitled to a permit on proof of his status as an Indian citizen then why should he have Been thrown out at all unless and until he failed to establish his claim to Indian citizenship ? There occur to my mind several answers to this question. In the first place it would have been putting a premium on wrong doing. In the second place the person would have been left free to carry on his secret activities if any while judicial proceedings would have been going on for ascertaining his status. In the third place if the person could not be thrown out before his status had been judicially determined there would have been no incentive on his part to take proceedings in court to establish his status and it would have thrown upon the State the duty of initiating proceedings and of discharging the onus of proving the negative fact of his not being a citizen of India. In view of all the circumstances prevailing at the time the law was enacted and remained in force and in view of the considerations herein before alluded to I have no ' doubt in ray mind except What 955 arises out of my respect for the opinions of my Lord and other learned brothers that the provisions of section 7 were necessary and reasonable and fell within clause (5) of article 19. In my judgment the four appeals as well as Petition No. 57 of 1952 should be dismissed. Appeals allowed cases remanded. Agents for the appellants and petitioners: section section Shukla R. A. Govind Sardar Bahadur and P. K. Chatterji. Agents for the respondents: G. H. Rajadhyaksha and C. P.Lal.

Held (Per MEHR CHAND MAHAJAN 0. J. MUKEMRJFA ViviAN BosE and GHULAM HASAN JJ. ; section R. DAs J. dissenting) that section 7 of the Influx from Pakistan (Control) Act 1949 is void under article 13(1) in so far as it conflicts with the fundamental eight of a citizen of India under art.19(1) (a) of the Constitution and the order of physical removal of the citizen from in Is therefore liable to beset aside. Per DAB J. In view of the circumstances the provisions of section 7 of the Act were reasonable restrictions within the meaning of el. 5 of article 19 of the constitution imposed in the interests of the general public upon the exercise by Indian citizen coming from Pakistan without a permit of the rights conferred by article 19(1)(d) and (e) of the Constitution.

iminal Appeal No. 42 of 1953. Appeal by Special Leave from the Judgment and Order dated the 5th February 1953 of the High Court of Judicature at Bombay in Criminal Appeal No. 1149 of 1952 arising out of the Judgment and Order dated the 22nd April 1952 of the Court of the Presidency Magistrate 19th Court Bombay in Case No. 933/P of 1951. B. M. Mistry J. B. Dadachanji Rajinder Narain and R. D. Chadda for the appellant. M. C. Setalvad Attorney General for India (R. Ganapathy Iyer and P. G. Gokhale with him) for the respondent. February 19 April 28 September 23 and September 24. [The present Criminal Appeal (No. 42 of 1953) came up for hearing in the first instance before a Bench of Hon 'ble Judges composed of Bhagwati Jagannadhadas and Venkatarama Ayyar JJ. who delivered the following Judgments dated 19th February 1954]. BHAGWATI J. This is an appeal by special leave from a judgment of the High Court of Judicature at Bombay reversing the order of acquittal passed in favour of the appellant by the Court of the Presidency Court Bombay and convicting him of an offence under section 66(b) of the Bombay Prohibition Act 1949 and sentencing him to one month 's ' rigorous imprisonment and a fine of Rs. 500. The appellant who was the Officiating Regional Transport Officer Bombay Region was on the 29th May 195 1 at about 9.30 P.m. proceeding in his jeep car towards the Colaba Bus Stand when he knocked down three persons Mrs. Savitribai Motwani her husband and Miss Parvatibai Abhichandani. The police arrested the appellant and took him to the police station. From the police station he was taken to St. George 's Hospital in order to be examined by the doctor for alleged consumption of liquor. The doctor found his breath smelling of alcohol. He however found the conjunctiva were congested the pupils were semi dilated and reacting to light. The speech was coherent and he could behave himself and walk along a straight line. The doctor was therefore of opinion that he did not seem to be under the influence of alcohol though he had taken alcohol in some form or the other. The appellant was put up before the Presidency Magistrate for his trial under two offences one under section 338 of the Indian Penal Code on three counts for causing grievous hurt to the three injured persons by doing a rash and negligent act i.e. driving his motor car in a rash and negligent manner and the other under section 66 (b) of the Bombay Prohibition Act. The appellant cross examined the doctor and suggested that he had taken a medicinal preparation B. G. Phos and also stated in answer to the Magistrate on the 20th December 1951 that he had not consumed any liquor but had taken medicinal preparation containing a small percentage of alcohol. He also filed a written statement on the 13th March 1952 setting out in detail the whole history of his case. He stated there that owing to his ill health he had been recommended to take tonics specially those containing vitamin B Complex and Phosphates and had regularly taken tonics such as Wampole 's Phospho Lecitin B. G. Phos and Huxley 's Nerve Vigour. He further stated that on the night in question he had at about 9 or 9.15 P.m. after dinner 616 taken a dose of B. G. Phos and was proceeding in his jeep car for a drive via Cuffee Parade and Marine Drive when the accident took place. He produced his driving licence and registration certificate and a copy of the agenda of the Regional Transport Authority 's meeting to be held next day and a carton of B. G. Phos on which it was stated that it contained 17 per cent alcohol according to its formula. The learned Presidency Magistrate acquitted the appellant of both these offences. In regard to the offence under section 66(b) of the Bombay Prohibition Act he observed that the evidence did not go to show conclusively that the appellant had consumed alcohol without a permit that there were certain medicinal preparations which were allowed to be used by law and there was no satisfactory evidence to show that the appellant had not consumed those tonics but only liquor for which he ought to have a permit. The respondent the State of Bombay took two appeals before the High Court against each of these two cases. The High Court confirmed the acquittal in regard to the charge under section 338 of the Indian Penal Code but reversed the order acquitting him of the charge under section 66(b) of the Bombay Prohibition Act. The High Court followed a decision of its own Division Bench in Rangarao Bala Mane vs State(1) where it had been held that "Once it is proved by the prosecution that a person has drunk or consumed liquor without a permit it is for that person to show that the liquor drunk by him was not prohibited liquor but was alcohol or liquor which he is permitted by law to take e.g. medicated alcohol. The prosecution is not to discharge the burden of the accused and if in answer to a charge of drinking liquor without a permit the accused suggests that the liquor which was drunk by him was not liquor in a prohibited form or was alcohol in a medicated form he must show it. " The High Court observed that the Magistrate had misdirected himself on a point of law and it was therefore open to it to examine the evidence and come to its own conclusion whether the appellant had shown that he had (1) 617 taken B. G. Phos that night after dinner and that the alcoholic smell which was still found in his mouth as late as 11.30 P.m. when he was examined by the doctor" ' was the smell of the alcoholic con tents of B. G. Phos. It came to the conclusion that the appellant had failed to prove the existence of circumstances from which the Court could come to the conclusion that the liquor which was consumed by the appellant was not prohibited liquor but liquor which was excepted by the Bombay Prohibition Act from its operation and set aside the order of acquittal passed by the learned Presidency Magistrate in his favour convicting him of the offence and sentencing him as above. It was contended on behalf of the appellant before us that the Bombay Prohibition Act 1949 was impugned after the advent of the Constitution and this Court by its decision in The State of Bombay and Another vs F.N.Balsara(1) inter alia declared the provisions of clause (b) of section 13 to be invalid so far as it affects the consumption or use of liquid medicinal and toilet preparations containing alcohol that the effect of that declaration was to lift the consumption or use of liquid medicinal and toilet preparations containing alcohol from the prohibition enacted in section 13(b) and that section 66(b) was inoperative and unenforceable so far as such medicinal and toilet preparations containing alcohol were Concerned. It was therefore incumbent on the prosecution if a charge under section 66(b) was framed against an accused to prove that the accused had consumed or used an intoxicant in contravention of the provisions of the Act which provision so far as section 13(b) was concerned was to be read as prohibiting the consumption or use of liquor i.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and non toilet liquid preparations consisting of or containing alcohol which were the only categories of validly prohibited liquor. On this interpretation of the effect of the judgment in The State of Bombay and Another vs P. N. Balsara (supra) there was no question whatever of the applicability of section 105 or of section 106 of the (1) ; 618 Evidence Act as was sought to be done by the High Court. It was further ' urged that even if an onus was cast on the accused to prove that he had consumed a liquid medicinal or toilet preparation containing alcohol that onus was lighter in burden than the onus on the prosecution and the moment the accused indicated his defence the onus again shifted on the prosecution to negative such defence. It was urged on the other hand on behalf of the respondent that the effect of the declaration in The State of Bombay and Another vs F. N. Balsara (supra) was to graft an exception or a proviso to section 13(b) and that the onus and the burden of proving the existence of circumstances bringing his case within the exception or proviso lay on the accused and the Court was to presume the absence of such circumstances. (Vide section 105 of the Evidence Act). It was further urged that the prosecution could not possibly prove that no form of liquid medicinal or toilet preparation containing alcohol was taken by the accused that the fact of the consumption of such medicinal or toilet preparation containing alcohol was especially within the knowledge of the accused and that therefore the burden of proving such fact was upon him and that once the prosecution had discharged the onus which lay upon it to prove that the accused had consumed liquor it would be for the accused to show that the liquor which was taken by him was a liquid medicinal or toilet preparation containing alcohol. (Vide section 106 of the Evidence Act). The relevant provisions of the Bombay Prohibition Act 1949 may be here set out. The Act was passed inter alia to amend and consolidate the law relating to the promotion and enforcement of and carrying into effect the policy of prohibition in the Province of Bombay. Section 2(22) defined 'an "intoxicant" to mean any liquor. . . . Section 2(24) defined "liquor" to include (a) spirits of wine methylated spirits wine beer toddy and all liquids consisting of or containing alcohol. Chapter III enacted the prohibitions and section 13(b) provided: No person shall. . . . (b) consume or use 619 liquor Section 66(b) is the penal section and provided: "Whoever in contravention of the provisions of this Act or of any rule regulation or order made or of any licence permit pass or authorisation issued thereunder (b) consumes uses possesses or transports any intoxicant or hemp shall on conviction be punished. " It may be noted that the Act as it stood before the amendment by Bombay Act XXVI of 1952 which came into operation on the 22nd October 1952 enacted in section 103 the only presumption as to the commission of offences in certain cases which cases had nothing to do with the question before us. This Court in The State of Bombay and Another vs F. N. Balsara (supra) held that the definition of liquor contained in section 2(24) was not ultra vires inasmuch as the word liquor as understood in India at the time of the Government of India Act 1935 covered not only those alcoholic liquids which are generally used as beverages and produce intoxication but also all liquids containing alcohol. It however considered the restrictions imposed by sections 12 and 13 of the Act on the possession sale use and consumption of liquor not reasonable restrictions on the fundamental right guaranteed by article 19(1) (b) of the Constitution to "acquire hold and dispose of property" so far as medicinal and toilet preparations containing alcohol were concerned and declared the said sections invalid so far as they prohibited the possession sale use and consumption of these articles. The sections were however not wholly declared void on this ground as the earlier categories mentioned in the definition of liquor viz. spirits of wine methylated spirits wine beer and toddy were distinctly separable items which were easily severable from the last category viz. all liquids containing alcohol and the restrictions on the possession sale use and consumption of these earlier categories were not unreasonable restrictions. It therefore declared section 13(b) invalid to the extent of the inconsistency i.e. so far as it affected the 620 consumption or use of liquid medicinal and toilet preparations containing alcohol. The question that falls to be determined is what was the effect of this declaration The effect of the declaration of a statute as un constitutional has been thus set out by Cooley on Constitutional Limitations Vol. I page 382. "Where a Statute is adjudged to be unconstitutional it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto is true also as to any part of an Act which is found to be unconstitutional and which consequently has to be regarded as having never at any time been Possessed of any legal force. . See also the dictum of Field J. in Norton vs Shelby County(1): "An unconstitutional Act is not law it confers no rights it imposes no duties it affords no protection it creates no office; it is in legal contemplation as inoperative as though it had never been passed. " To the same effect are the passages from Rottschaefer on Constitutional Law at page 34: "The legal status of a legislative provision in so far as its application involves violation of constitutional provisions must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provision never had legal force as applied to cases within that class. " Willoughby on Constitution of the United States Second Edition Vol. 1 page 10: "The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognise it and determines the rights of the (1) ; 621 parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute but the decision affects the parties only and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases but it does not strike the statute from the statute book; it does not repeal the statute. The parties to that suit are concluded by the judgment but no one else is bound. A new litigant may bring a new suit based on the very same statute and the former decision can be relied on only as a precedent " "It simply refuses to recognise it and determines the rights of the parties just as if such statute had no application " And Willis on Constitutional Law at page 89 " A judicial declaration of the unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so far as the determination of the rights of private parties is concerned. The courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed The declaration was a judicial pronouncement and. even though under article 141 of the Constitution the law declared by this Court is binding on all the Courts within the territory of India and is to be the law of the land the effect of that declaration was not to enact a statutory provision or to alter or amend section 13(b) of the Act. No exception or proviso was also grafted in terms on section 13(b). The only effect of the declaration was that the prohibition enacted in section 13(b) was to be enforceable in regard to the consumption or use of validly prohibited liquor i.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and non toilet liquid preparations consisting of or containing alcohol. The prohibition which was enacted in section 13(b) against the consumption or use of liquor could in the light of the declaration made by this Court only refer to the consumption or use of validly prohibited liquor i.e. spirits of wine methylated spirits wine beer today and all non medicinal and 80 622 non toilet liquid preparations consisting of or containing alcohol and that was the only prohibition which could be enforced under section 13(b) and the penal section 66(b). The consumption or use of liquid medicinal or toilet preparations. containing alcohol could not be validly prohibited and any person consuming or using such medicinal or toilet preparations containing alcohol could not be hauled up for having contravened the provisions of the Act. No offence could be committed by the consumption of liquid medicinal or toilet preparations containing alcohol and the provision enacted in section 13(b) read in the light of the definitions of intoxicant and liquor contained in sections 2 (22) and 2(24) of the Act in so far as it prohibited the consumption or use of liquor including liquid medicinal or toilet preparations containing alcohol was rendered inoperative and unenforceable by the declaration to the extent of the inconsistency and liquid medicinal or toilet preparations containing alcohol were lifted out of the category of validly prohibited liquor. Whatever may be the implications or the consequences of the unconstitutionality of section 13(b) to the extent of the inconsistency in other respects here was the State enforcing the penal provisions of section 66(b) and encroaching upon the liberties of the subject. Penal statutes should be strictly construed and the State could only penals the consumption or use of validly prohibited liquor which only could constitute an offence under section 66(b). The consumption or use of any intoxicant meaning any liquor in contravention of the provisions of this Act was to be punished and unless and until the prosecution proved that the accused had consumed or used liquor in contravention of the enforceable provi sions of the Act the accused could not be held guilty and punished under section 66(b). The accused could be held guilty only if he had contravened the enforceable provisions of the Act and for the purpose of the present enquiry the only provision of the Act which he could be charged with having contravened was section 13(b) the prohibition contained in which was by reason of the declaration made by this Court enforceable only in regard to the consumption or use of Validly prohibited liquor i.e. spirits of wine. methylated spirits 623 wine beer toddy and all non medicinal and non toilet liquid preparations consisting of or containing alcohol. It was strenuously urged before us on behalf of the respondent that the declaration in effect though not in terms enacted an exception or proviso to section 13(b) and that therefore the onus lay upon the appellant to prove the existence of circumstances bringing his case within the exception or proviso. (Vide section 105 of the Evidence Act.) It cannot be disputed that no exception or proviso was in terms enacted by this declaration. It had the effect of rendering the prohibition of consumption or use of liquid medicinal and toilet preparations containing alcohol as having never at any time been possessed of any legal force and so not to be enforceable wherever any accused person was charged with having contravened the provisions of section 13(b) of the Act. The effect of the declaration on the provisions of section 13(b) could be worked out in any of the following modes: No person shall consume or use spirits of wine methylated spirits wine beer toddy and all liquids consisting of or containing alcohol as are not or which are not or other than or save or except or provided they are not or but shall not include liquid medicinal or toilet preparations containing alcohol or all non medicinal and non toilet liquid preparations consisting of or containing alcohol. When these several interpretations were possible in regard to the effect of the declaration on the provisions of section 13(b) where would be the justification for interpreting the effect of the declaration to be that of grafting an exception o r proviso on section 13(b) so as to attract the operation of the provisions of section 105 of the Evidence Act? It is clear that where several interpretations are possible the Court should adopt an interpretation favourable to the accused rather than one which casts an extra or special burden upon him which if at all should be done by clear and unequivocal provision in that behalf rather than in this indirect manner. (See also In re Kanakasabai Pillai(1) ). It would be more in consonance with the principles of (1) A.I.R. 1940 Mad. 1. 624 criminal jurisprudence to interpret the effect of this declaration to be that the prohibition enacted in section 13(b) where it came to be enforced against any accused person after the declaration should be enforceable as regards the consumption or use of validly prohibited liquor ?I.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and non toilet liquid preparations consisting of or containing alcohol as above stated. If this is the effect of the declaration made by this Court there is no room for holding that the only duty of the prosecution was to prove that the accused had taken liquor in some form or the other and that the burden lay on the accused to prove that be had taken a liquid medicinal or toilet preparation containing alcohol. When an accused person is charged with having committed an offence it is for the prosecution to prove all the ingredients of the offence with which he has been charged and the ingredients of the offence under section 13(b) as stated above were that he had consumed or used liquor validly prohibited i.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and non toilet liquid preparations consisting of or containing alcohol. There was no presumption enacted in the Act as it stood which would throw the burden of proof on the accused to show that he had consumed or used liquid medicinal or toilet preparation containing alcohol. There was no exception or proviso enacted either in terms or in effect in section 13(b) which attracted the operation of section 105 of the Evidence Act and cast upon the accused the burden of proving the existence of circumstances bringing his case within such exception or proviso. The mere circumstance that the fact in regard to his consumption or use of liquid medicinal or toilet preparation containing alcohol was specially within the knowledge of the accused also could not shift the burden of proving the ingredients of the offence from the prosecution to the accused because it is a cardinal principle of criminal jurisprudence as administered in this country that it is for the prosecution and prosecution alone to prove all the ingredients of the offence with which the 625 accused has been charged. The accused is not bound to open his lips or to enter upon his defence unless and until the prosecution has discharged the burden which lies upon it and satisfactorily proved the guilt of the accused. Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. (See Attygalle vs The King(1) also In re Kanakasabai Pillai(2)). It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by section 106 of the Evidence Act. The High Court in arriving at its decision in Rangarao Bala Mane vs State (supra) above referred to was impressed with the circumstance that the prosecution could not possibly prove that no form of medicated alcohol was taken by the accused that there were evidently numerous forms of medicated alcohol and that it was impossible for the prosecution on the very face of things to exclude all those forms. The difficulty was illustrated by the High Court in the manner following: "For instance if the prosecution were to lead evidence to show that the accused had not taken medicated alcohol in the form of B. G. Phos the accused would contend that he had taken it in some other form. If the prosecution were to lead evidence that the accused had not taken it in the form of Winedex the accused would say that he had taken it in the form of Waterbury 's Compound or Hall 's Wine. These are only two instances to show how it is impossible for the prosecution to exclude all forms of medicated alcohol. " It therefore came to the conclusion that once the prosecution had discharged the onus which was upon it to prove that the accused person had consumed liquor it would be for the accused to show that the liquor which was taken by him was liquor in the form of medicated alcohol in other words not prohibited liquor. The difficulty thus envisaged by the High Court was in my opinion imaginary. Where an accused (1) A.I.R. 1936 P.C. 169. (2) A.I.R. 1940 Madras 1. 626 person is suspected of having committed the prohibition offence it would be for the police to investigate the offence and while investigating the offence it would be for the police to find out whether the accused has consumed liquor which falls within 'the enforceable prohibition enacted in section 13(b). As there are a number of preparations which come within the category of liquid medicinal and toilet preparations consisting of or containing alcohol there are a number of preparations which come within the category of non medicinal or non toilet liquid preparations consisting of or containing alcohol and it would be really for the police investigating the alleged offence to find out which out of the latter category of preparations the accused had consumed and bring him to book for the same. The circumstance that the accused person was smelling of alcohol and that he had consumed liquor in some form or the other would not be an unequivocal circumstance pointing to the guilt of the accused. The smell of alcohol could as well be the result of his having consumed medicinal or toilet preparations consisting of or containing alcohol as his having consumed validly prohibited liquor i.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and non toilet liquid preparations consisting of or containing alcohol. To hold the accused guilty under these circumstances would be to convict him merely because he was smelling of alcohol and depriving him of the benefit of doubt which an accused person is always entitled to in the event of the facts and circumstances being consistent either with his guilt or his innocence. To adopt the reasoning which appealed to the High Court would further be tantamount to laying down that once an accused person was shown to have consumed liquor in some form or the other the presumption was that he had consumed validly prohibited liquor and the onus would be upon him to rebut that presumption by showing that lie had consumed medicinal or toilet preparation containing alcohol. The difficulty in the way of the prosecution proving its case need not deflect the Court from arriving at a correct conclusion. If these difficulties are genuinely 627 felt it would be for the Legislature to step in and amend the law. It would not be the function of the Court to read something in the provisions of the law ' which is not there or to find out a way of obviating the difficulties in enforcing the law howsoever meritorious the intentions of the Legislature might be. If these difficulties were felt in the matter of enforcing the policy of prohibition by the State of Bombay the only remedy was to effect the necessary amendments when the Bombay Act XXVI of 1952 was enacted on the 22nd October 1952 after this Court made the declara tion in The State of Bombay and Another vs F. N. Balsara (supra). In my opinion it was not enough for the prosecution in the present case merely to prove that the appellant had taken alcohol in some form or the other. The prosecution ought to have proved that the appellant had in contravention of the provisions of the Act med an intoxicant meaning any liquor which consumer regard to the declaration made by this Court having could only be validly prohibited liquor i.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and non toilet liquid preparations con sisting of or containing alcohol. The evidence of the doctor only went to show that the appellant had consumed alcohol in some form or the other. That was not enough and I have therefore come to the conclusion that the prosecution failed to prove that the appellant had committed the offence with which he was charged. In view of the conclusion reached above it is un necessary to go into the interesting question which was canvassed before us at some length as to the burden of proof on the prosecution as well as the defence in a criminal trial having regard to the provisions of section 105 of the Evidence Act as also the applicability in India of the principles enunciated in Woolmington vs The Director of Public Prosecutions(1). I would therefore allow the appeal and quash the conviction and sentence passed upon the appellant by the High Court. (1) ; 628 JAGANNADHADAS J. I have had the benefit of the judgments of both my learned brothers. perusing But with great regret I feel unable to agree with the view taken by my learned brother Justice Bhagwati. Two questions of law have been raised in this case viz. (1) on whom does the burden of proof lie to make out that the "liquor" consumed by the appellant was or was not medicinal or toilet preparations though contain ing alcohol and (2) what is the nature and quantum of proof required if the burden is upon the appellant. The answer to question No. 1 depends upon the effect of the decision of this Court in The State of Bombay and Another vs F. N. Balsara (supra) which while holding that the definition of liquor in sub section (24) of section 2 of the Bombay Prohibition Act 1949 (Act XXV of 1949) is valid has declared that clause (b) of section 13 in so far as it affects the consumption or use of medicinal or toilet preparations containing alcohol is invalid. My learned brother Justice Bhagwati while holding that the effect of the declaration was not to alter and amend section 13(b) of the Act is of the opinion that in the light thereof the prohibition under section 13(b) is to be understood to relate (so far as is relevant for the present purpose) to consumption or use of "non medicinal or non toilet liquid preparation containing alcohol" and that therefore the burden lies on the prosecution to make out all the ingredients of the prohibition so understood with the negative thereof On the other hand my learned brother Justice Venkatarama Ayyar is of the opinion that the effect of the decision in The State of Bombay and Another vs F. N. Balsara (Supra) is not to amend or alter section 13(b) but only to render it partly unenforceable and hence to provide a defence to the accused on the ground of unconstitutionality in so far as that section is sought to be applied to medicinal or toilet preparations containing alcohol and that therefore the burden of making out the facts required for this plea is on the accused. I agree that no legislative function can be attributed to a judicial decision and that the decision in The State of Bombay and Another vs F. N. Balsara (supra) does not 629 proprio vigore amend the Act. The effect of a judicial declaration of the unconstitutionality of a statute has been stated at page 10 of Vol. I of Willoughby on the Constitution of the United States Second Edition as follows: "The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute but the decision affects the parties only and there is no judgment against the statute. The opinion or reasons for the court may operate as a precedent for the determination of other similar cases but it does not strike the statute from the statute book; it does not repeal. . . the statute. The parties to that suit are concluded by the judgment but no one else is bound. A new litigant may bring a new suit based on the very same statute and the former decision. . can be relied on only as a precedent. " This and other similar passages from other treatises relate however to cases where the entire legislation is unconstitutional from the very commencement of the Act a situation which falls within the scope of article 13(2) of our Constitution. They do not directly cover a situation which falls within article 13(1). In the present case though the decision in The State of Bombay and Another vs F. N. Balsara (Supra) does not by itself bring about a change in the Act the declarations made therein are founded on article 13(1) and it is with the effect thereof we are concerned. The question is what is the effect of article 13(1) on a pre existing valid statute which in respect of a severable part there. of violates fundamental rights. Under article 13(1) such part is "void" from the date of the commencement of the Constitution while the other part continues to be valid. Two views of the result brought about by this voidness are possible viz. (1) the said severable part becomes unenforceable while it remains part of the Act or (2) the said part goes out of the Act and the Act stands appropriately amended pro tanto. The first is the view which appears to have been adopted 81 630 by my learned brother Justice Venkatarama Ayyar an the basis of certain American decisions. I feel inclined to agree with it. This aspect however was not fully presented by either side and was only suggested from the Bench in the course of arguments. We have not had the benefit of all the relevant material being placed before us by the learned advocates on either side. The second view was the basis of the arguments before us. It is therefore necessary and desirable to deal with this case on that assumption. The question then for consideration is what is the notional amendment which must be imported into the Act consistently with the decision in The State of Bombay and Another vs F. N. Balsara (supra). The relevant portions thereof are as follows: (1) The definition of "liquor" in the Act to its full extent continues to be valid (2) section 13(b) of the Act in so far as it relates to liquid toilet or medicinal preparations containing alcohol is invalid and (3) this portion of the content of section 13(b) is severable. The argument of the appellant 's learned counsel is that the essence of the valid prohibition under section 13(b) now is the consumption or use of liquor other than liquid medicinal or toilet preparations containing alcohol. Ha urges therefore that section 13(b) must be taken to stand amended accordingly. The argument if I understood it a right was that the word "liquor" stands amended as "prohibited liquor" or that it must be understood with this limited connotation. I am unable to see how this can be done. The definition of the word "liquor" with its inclusive content remaining intact and valid that content has to be imported wholesale into the meaning of the word "liquor" in section 13(b) and it appears to me that it is not permissible to read it or understand it in a different sense. So to read it or understand it would be to import a new definition of "prohibited liquor" into the Act and to make the consumption or use of "prohibited liquor" the offence. What however the Balsara decision has done is not to authorise the importation of a new definition and the rewriting of section 13(b). It keeps section 13(b) intact 631 but treats the consumption or use of liquid toilet or medicinal preparations containing alcohol as severable and takes such consumption or use out of the ambit of the section itself as the prohibition thereof is un constitutional. This can be done and only done in my opinion by grafting an appropriate exception or proviso into section 13(b). My learned brother Justice Bhagwati has in his judgment suggested that if it is a question of treating section 13(b) as amended . the amendment can be made in one of many modes and that there is no reason to choose between them and that it is not fair to an accused person to read it in a manner throwing the burden on him when a more favourable mode is open. The various modes of amendment are indicated in the following suggested reading of section 13(b). "No person shall consume or use spirits of wine methylated spirits wine beer toddy and all liquids consisting of or containing 'A ' alcohol as are not or which are not or other than or save or except or provided they are not or but shall include liquid medicinal or toilet preparations containing alcohol or all non medicinal and non toilet liquid 'B ' preparations consisting of or containing alcohol." (The underlinings and markings are mine). Now if the relevant portion of the section is recast in the manner above indicated in any of the alternative modes in the portion marked 'A ' above I have no doubt that every one of these modes is only an exception or a proviso which falls within the specific terms of section 105 of the Evidence Act i.e. an exception or proviso "in the law defining the offence. " If on the other hand the section is treated as amended by incorporating the portion marked 'B ' omitting the portion marked 'A ' it appears to me with great respect that it is to alter the very content of the word ' "liquor" in the section for which I can find no legal justification. What the decision in The State of Bombay 632 and Another vs F. N. Balsara (supra) authorises is as I have already explained above to keep the word "liquor" intact with its full content and sever from the provision taken as alcohol (not merely from the word "liquor") medicinal or toilet preparations. I feel accordingly confirmed in the view that I have taken viz. that this can only be done by engrafting an exception or a proviso. As regards the other view suggested by my learned brother Justice Bhagwati that without importing any alteration or amendment in the section itself the same is to be understood as having reference to what maybe called "prohibited liquor" understanding that word with reference to the decision in The State of Bombay and Another vs F. N. Balsara (supra) here again with great respect I feel difficulty in imputing into a specific statutory provision a meaning different from what its plain words in the light of the definition indicate. The decision in The State Of Bombay and Another vs F. N. Balsara (supra) if it does not bring about an amendment in the provision does not also provide any mere aid to interpretation. The question is not done of insisting on a merely technical view of the matter. I feel unable to impute to the decision in The State of Bombay and Another vs F. N. Balsara (supra) taken with article 13(1) the effect of rendering section 13(b) unworkable which certainly was not intended. In this view therefore (and on the basis put forward by learned counsel on both sides) the effect of article 13(1) on section 13(b) of the Act in the light of the decision in The State of Bombay and Another vs F. N. Balsara (supra) is that it stands amended pro tanto by means of an appropriate exception or proviso. It follows that section 105 of the Evidence Act would in terms apply to such a situation. Thus in either view of the effect ' of article 13(1) of the Constitution on section 13(b) of the Bombay Act in the light of the judgment in The State of Bombay and Another vs F. N. Balsara (supra) the opinion expressed by the learned Judges of the Bombay High Court that the burden of proof in a case like this lies on the accused is correct. 633 As regards the second question that has been raised namely as to the nature and quantum of the evidence required to discharge this burden of proof considerable arguments have been advanced before us. Our attention has been drawn to the existence of conflicting decisions in the High Courts on this topic. On the one side there is the decision of the Full Bench of the Allahabad High Court in Prabhoo vs Emperor(1) and on the other there is a later Special Bench decision of the Bombay High Court in Government of Bombay vs Sakur(2). In my opinion it is unnecessary for us to resolve that conflict in this case since on either view the finding of the appellate Court that the burden has not been discharged on the available material seems to me to be correct. In particular it is to be noticed that the appellant put forward a specific defence in Paragraph 8 of the written statement filed by him into Court in answer to the charge. In support of this defence he has given no proof of any circumstances which must be within his knowledge to render the defence reasonably probable even if be may not have been able to prove the same strictly to the hilt. I am therefore of the opinion that the conviction of the appellant under section 66(b) of the Bombay Prohibition Act 1949 is correct. But in the circumstances it is not necessary to send him back to jail. I would therefore reduce the sentence of imprisonment to the period already undergone. In the result the appeal has to be dismissed subject to this modification. VENKATARAMA AYYAR J. I regret that I am unable to agree with the view taken by my learned brother Bhagwati J. The facts giving rise to this appeal have been stated in his Judgment which I have had the advantage of reading and it is unnecessary to restate them. The point for decision shortly is whether in a prosecution under section 66(b) of the Bombay Prohibition Act XXV of 1949 for contravention of section 13(b) the prosecution has to establish not merely that liquor had been taken in some form but that further what was taken was not a medicinal preparation. The (1) I.L.R. 1941 All. (2) 48 Bom. L. R. 746; A.I.R. 1947 Bom. 634 learned Judges of the Bombay High Court held following an earlier decision of that Court in Rangrao Bala Mane vs State (supra) that once the prosecution had established that the accused had taken alcohol in some form it was for him to establish that he had taken a medicinal preparation both on the ground that it was in the nature of an exception which it was for the party pleading it to establish under section 105 of the Evidence Act and that it was a matter specially within his knowledge and that therefore the burden of proving it lay on him under section 106 of the Evidence ' Act. The appellant challenges the correctness of this deci sion and contends that it is opposed to the decision of this Court in The State of Bombay and Another vs F. N. Balsara (supra). It will be convenient first to refer to the statutory provisions bearing on the question and ascertain what the position is thereunder and then consider how it is affected by the decision of this Court in The State Of Bombay and Another vs F. N. Balsara (supra). The relevant provisions of the Bombay Prohibition Act are sections 2(24) 13(b) and 66(b). Section 2(24) defines "liquor" as including all liquids consisting of or containing alcohol. Section 13(b) enacts that no person shall use or consume liquor and a contravention of this provision is made punishable under section 66(b). As medicinal preparations containing alcohol are liquor as defined in section 2(24) the consumption thereof will be an offence punishable under the Act and it will be no answer to a prosecution for contravention of section 13(b) that what was consumed was a medicinal preparation and a question of the kind now presented to us therefore could not possibly arise under the Act prior to the Constitution. I may next consider the effect of the decision of this Court in The State of Bombay and Another vs F. N. Balsara (supra) on the legal position under the Act. It was there held inter alia that section 13(b) in so far as it prohibited the consumption of medicinal preparations was an unreasonable restriction on the rights of an owner to hold and enjoy property and was therefore void as being repugnant to article 19 (1) (f) of the 635 Constitution. The appellant contends that the effect of this declaration was to remove medicinal preparations from out of the purview of section 13(b); that ' that section should therefore be read as if it had been amended to the effect that no person shall use or consume liquor other than medicinal preparations or toilets; that in that view no question of the accused having to rely on an exception arose and no question of the burden being thrown on him under section 105; and that as the offence itself consisted in consuming a liquor which was not a medicinal preparation the burden would lie on the prosecution to establish that what was consumed was a prohibited liquor. On the other hand the respondent contends that the definition of liquor in section 2(24) includes not only beverages but also medicinal preparations that the extended definition would apply to section 13(b) as well that the immunity of medicinal preparations containing alcohol from the operation of the section by reason of the decision in The State of Bombay and Another vs F. N. Balsara (supra) must in consequence be treated as an exception to it and that the 'section should be read as containing a saving in favour of those preparations in the nature of an exception or proviso the burden of establishing which under section 105 of the Evidence Act would be on the accused. I agree with the appellant that section 105 has no application. We are not here concerned with any exception general or special under the Penal Code or any other law defining the offence. The exception or proviso if it may be so called arises as a result of the decision of this Court and not under any statute and section 105 cannot therefore in terms apply. At the same time it is difficult to see how the decision in The State of Bombay and Another vs F. N. Balsara (Supra) can be considered to effect an amendment of section 13(b) so as to exclude medicinal preparations from out of its ambit. The rival contentions which have been presented to us on the effect of the decision in The State of Bombay and Another vs F. N. Balsara (supra) proceed both of them on the basis that ' section 13(b) has in some manner been amended by it; according to the appellant the 636 section must be taken to have been amended by excluding medicinal preparations from the word " liquor" according to the respondent by inserting an exception or proviso to the section in favour of such preparations. That however is not the correct position. Decisions of Court do not amend or add to a statute. That is a purely legislative function. They merely interpret the law and declare whether it is valid or not and the result of a declaration that it is not valid is that no effect could be given to it in a Court of law. If therefore section 13(b) cannot be construed as itself amended or modified by reason of the decision in The State of Bombay and Another vs F. N. Balsara (supra) there is no reason to hold that medicinal preparations containing alcohol which fell within its scope before have gone out of it after that decision. This argument therefore does not furnish any ground for throwing the burden on the prosecution under section 13( b) to establish not merely that what was consumed was liquor but that it was not a medicinal preparation. The question of burden of proof must therefore be decided not on the basis of a suppositions amendment of the section or addition of an exception or proviso to it but on the language of the section as it stands and with reference to Well established principles of law. Under that section it is an offence to use or consume liquor and that under the definition in section 2(24) includes medicinal preparations containing alcohol. One of the points raised in The State of Bombay and Another vs F. N. Balsara (supra) was that the State Legislature which was competent to legislate on into xicating liquor could not under that head of legislation enact a law in respect of medicinal preparations containing alcohol because the words "intoxicating liquor" meant beverages and not medicines but this contention was negatived by this Court on the ground that the words "intoxicating liquor" had acquired an extended sense as including medicinal preparations containing alcohol and that the Legislature was competent while enacting a law with reference to intoxicating liquors to legislate on medicinal preparations 637 containing alcohol. The definition of "liquor" in section 2(24) in its extended sense having thus been held to be valid it follows that unless there is something in the particular provision to the contrary the word "liquor" must wherever it occurs in the statute include medicinal preparations and that is the meaning which it must bear in section 13(b). In The State of Bombay and Another vs F. N. Balsara (supra) it is on the footing that medicinal preparations are included in section 13 that the entire discussion on its validity with reference to article 19(1) (f) proceeds. We therefore start with this that under section 13(b) the Legislature has made it an offence to take alcohol in any form whether as beverages or as medicinal preparations. That being the position and it having been decided that the section in so far as it relates to medicinal preparations is void as repugnant to article 19(1) (f) the question as to who should prove whether what was consumed was alcohol or medicinal preparation containing alcohol appears to me to admit of a simple answer. There is a strong presumption in favour of the constitutionality of a statute and it is for those who assail it as unconstitutional to establish it. The contention of the appellant is when analyzed that section 13(b) is bad in so far as it hits medicinal preparations containing alcohol as it contravenes article 19(1) (f) of the Constitution and the decision of this Court in The State of Bombay and Another vs F. N. Balsara (supra) is relied on as supporting it. But before the appellant can bring himself within that decision he must establish that what he consumed was a medicinal preparation. The plea of unconstitutionality is not established unless all the elements necessary to sustain such a plea are established ; and as observed by this Court in Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh(1) "the burden of making out facts requisite for the constitutional invalidity of the convictions" is on the appellant. He has therefore to make out as a fact that what he consumed was a medicinal preparation and as a matter of law that section 13(b) is bad in so far as it prohibits it. The decision of this Court concludes the (1) ; 1202. 82 638 question in his favour so 'far as the second point is concerned. But the burden of establishing the first point that in fact what he consumed was a medicinal preparation still remains on him. It was argued for the appellant that this Court had declared that section 13(b) was void under article 13(1) of the Constitution in so far as it related to medicinal preparations; that that meant that it was to that extent a nullity and that it should in consequence be read as if it did not include medicinal preparations. The question is what is the legal effect of a statute being declared unconstitutional. The answer to it depends on two considerations firstly does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its competence; and secondly if it is merely a check whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature as for example when a State enacts a law which is within the exclusive competence of the Union it would be a nullity. That would also be the position when a limitation is imposed on the legislative power in the interests of the public as for instance the provisions in Chapter XIII of the Constitution relating to inter State trade and commerce. But when the law is within the com petence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well setted. (Vide Cooley on Constitutional Limitations Volume 1 pages 368 to 371; Willis on Constitutional Law at pages 524 531 542 and 558; Rottschaefer on Constitutional Law at pages 28 and 29 30). In Shepard vs Barron(1) it was observed that "provisions of a constitutional nature intended for the protection of the property owner may be waived by him. " In Pierce vs Somerset Railway(2) (1) ; ; (2) I71 U.S. 64I ; ; 639 the position was thus stated: "A person may by his acts or omission to act waive a right which he might otherwise have under the Constitution of the United States as well as under a statute." In Pierce Oil Corporation vs Phoenix Refining Co.(1) where a statute was impugned on the ground that it imposed unreasonable restrictions on the rights of a corporation to carry on business and thereby violated the rights guaranteed under the Fourteenth Amendment the Court observed "There is nothing in the nature of such a constitutional right as is here asserted to prevent its being waived or the right to claim it barred as other rights may be by deliberate election or by conduct inconsistent with the assertion of such a right." The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals. The rights guaranteed under article 19(1) (f) are enacted for the benefit of owners of properties and when a law is found to infringe that provision it is open to. any person whose rights have been infringed to waive it and when there is waiver there is no legal impediment to the enforcement of the law. It would be otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable and can take effect when waived it cannot be treated as non est and as effaced out of the statute book. It is scarcely necessary to add that the question of waiver is relevant to the present controversy not as bearing on any issue of fact arising for determination in this case but as showing the nature of the right declared under article 19(1) (f) and the effect in law of a statute contravening it. Another point of distinction noticed by American jurists between unconstitutionality arising by reason of lack of legislative competence and that arising by reason of a check imposed on a competent Legislature may also be mentioned. While a statute passed by a Legislature which had no competence cannot acquire validity when the Legislature subsequently acquires competence a statute which was within the competence of the Legislature at the time of its enactment but (1) 259 U S 125; ; 640 which infringes a constitutional prohibition could be enforced proprio vigore when once the prohibition is removed. The law is thus stated in Willoughby on the Constitution of the United States Volume 1 at page 11: "The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature and if thus tested it is beyond the legislative power it is not rendered valid without re enactment if later by constitutional amendment the necessary legislative power is granted. However it has been held that where an act is within the general legislative power of the enacting body but is rendered unconstitutional by reason of some adventitious circumstance as for example when a State legislature is prevented from regulating a matter by reason of the fact that the Federal Congress has already legislated upon that matter or by reason of its silence is to be construed as indicating that there should be no regulation the act does not need to be re enacted in order to be enforced if this cause of its unconstitutionality is removed. " The authority cited in support of this observation is the decision in Wilkerson vs Rahrer(1). There the State of Kansas enacted a law in 1889 forbidding the sale of intoxicating liquors in the state. Though it was valid with reference to intra state sales it was unconstitutional in so far as it related to inter State sales. In 1890 the Congress passed a legislation conferring authority on the States to enact prohibition laws with reference to inter State trade. A prosecution having been instituted under the 1889 Act in respect of sales effected after the Congress legislation of 1890 one of the contentions urged was that as the State law was unconstitutional when it was enacted it was void and it could not be enforced even though the bar had been removed by the Congress legislation of 1890. In repelling this contention the Court observed: " This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to Congress but of a law which it was competent for (1) ; ; 35 L. Ed.572. 641 the State to pass but which could not operate upon articles occupying a certain situation until the passage of the Act of Congress. That Act in terms removed the obstacle and we perceive no adequate ground for adjudging that a re enactment of the State law was required before it could have the effect upon imported which it had always had upon domestic property. " The position is thus stated by Cooley in his work on Constitutional Law at page 201 : " A court 's decision merely decides the case that is then under adjudication and a finding of unconstitu tionality does not destroy the statute but. merely involves a refusal to enforce it. " Rottschaefer after referring to the conflict of authorities on the point in the States refers to the decision in Wilkerson V. Rahrer(1) as embodying the better view. This question again it may be noted does not arise as such for determination in this case and is material only as showing that an infringement of a constitutional ' prohibition which does not affect the competence of a Legislature but is merely a check on its exercise does not render the law a nullity. In view of the principles discussed above the use of the word "void" in article 13(1) is not decisive on the question as to the precise effect of a law being repugnant to article 19(1) (f). Reference may be made in this connection to the statement of the law in Corpus Juris Volume 67 page 263 et seq. to which counsel for the respondent invited our attention. It is there pointed out that the word "void" in statutes and decisions might mean either that is "absolutely void" or "relatively void" ; that "that is 'absolutely void which the law or the nature of things forbids to be enforced at all and that is relatively void ' which the law condemns as a wrong to individuals and refuses to enforce as against them"; that what is absolutely void is incapable of confirmation and ratification; and that what is relatively void could be waived. The true scope of article 13(1) was considered by this Court in Kesavan Madhava Menon vs State Of (I) ; ; 642 Bombay(1). There the point for determination was whether the Constitution was retrospective in its operation. In the course of his judgment Das J. observed: "It should further be seen that article 13(1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary 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 not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. . . Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws or to wipe them out altogether from the statute book. . . . 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 commencement of the Constitution. " It is true that the question which the Court was considering there was different from the one which we have now to decide in this appeal. But those observations embody a principle which is applicable to the present case as well. In effect "void" in article 13(1) was construed as meaning in the language of American jurists "relatively void. Therefore both on the ground that a judicial determination does not operate as an amendment of the statute and on the ground that a declaration that the impugned law is void under article 13(1) as repugnant to article 19(1) (f) merely renders it unenforceable I am of the opinion that the decision in The State of Bombay and Another vs F. N. Balsara (supra) cannot be held to remove medicinal preparations from out of the purview of section 13(b). I therefore agree with the learned Judges (1) ; 643 of the Bombay High Court though not for the reasons given by them that the burden of establishing that. what was consumed was a medicinal preparation lies on the appellant. It was next contended that even if the burden lay on the appellant to prove that he had taken a medicinal preparation he must be held on the evidence to have discharged it because the doctor who examined him at 11 30 P.m. on the day of the occurrence stated in his evidence that he was coherent in his speech and could walk along a straight line that the smelling of alcohol could be caused by oxidation and that the condition of the conjunctive in the eyes could result from street dust. It was argued that if the prosecution evidence did not exclude the possibility of the defence being true then notwithstanding section 105 of the Evidence Act the burden which lay on the posecution of establishing the offence had not been discharged and reliance was placed on the decision in Woolmington vs Director of Public Prosecutions(1) and on Indian authorities wherein it was followed: Emperor vs U.Damapala(2); Parbhoo vs Emperor(1). In opposition to these authorities counsel for the respondent relied on the decision in Government of Bombay vs Sakur(4). The question is whether if the burden lay upon the appellant the conclusion of the learned Judges that it had not been discharged is on the evidence a reasonable one. If it is this Court cannot interfere with it in an appeal under article 136. It must be noted that the appellant himself led no evidence in support of the plea. If at least the evidence which the prosecution adduced disclosed facts which would lend support to the defence it might then have been open to the appellant to rely on them without himself having to adduce independent evidence but none such were elicited. The learned Judges in the Court below have approached the case from the correct standpoint and have discussed the entire evidence with a view to find whether on that the (1) ; (2) I.L.R. 14 Rang. (3) I.L.R. 194i All. (4) A.I.R. 1947 Bom. 38; 48 Bom. L.R. 616. 644 defence was reasonably probable. They held that the giving of coherent answers or walking in a straight line would only show that the appellant was not drunk at that time but would not show that he had not consumed liquor. They also remarked that the appellant could have informed both the sub inspector and the doctor who examined him that he had taken medicine in which case the police might have been in a position to find out whether there was a medicine bottle at his residence at that time. If the learned Judges were right in their view that the burden lay on the appellant their finding that it had not been discharged is not one which is open to attack. It was also contended that the trial magistrate having acquitted the appellant the presumption of innocence which the law raises in favour of the accused became reinforced and that there were no compelling reasons for the appellate Court to have reversed the order of acquittal. But the judgment of the trial Court was based on the view that the burden was on the prosecution to establish that the accused had not taken a medicinal preparation and when the learned Judges differed from that view they had to review the evidence afresh and decide whether the appellant had discharged the burden and their finding on the question is not vitiated by any misdirection. In the result the conviction of the appellant under section 66(b) of the Bombay Prohibition Act must be confirmed. As regards the sentence of one month 's imprisonment passed on him it appears that he has already served 22 days out of it. The justice of the case does not require that he should be again sent to jail. I would therefore reduce the sentence of imprisonment to the period already undergone. Subject to this modification I am of the opinion that this appeal should be dismissed. By THE Court Having regard to the judgments of the majority the appeal will be dismissed subject to the modification that the sentence imposed upon the appellant will be reduced to that already undergone. Bail bond will be cancelled. Appeal dismissed and sentence reduced. 645 [There was an application for review of the aforesaid Judgments under article 137 of the Constitution and the Hon 'ble Judges of the original Bench (Bhagwati Jagannadhadas and Venkatarama Ayyar JJ.) passed the following order dated 28th April 1954 referring the case for the opinion of the Constitution Bench.] The Order of the Court was pronounced by BHAGWATI J. We grant the review and reopen the case to enable us to obtain the opinion of a larger Bench on the constitutional question raised in the judgments previously delivered by us. Under proviso to article 145 of the Constitution we refer the following question for the opinion of the Constitution Bench of the Court. "What is the effect of the declaration in The State of Bombay and Another vs F. N. Balsara(1) that clause (b) of section 13 of the Bombay Prohibition Act 1949 is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol on the ground that it infringes article 19(1) (f) of the Constitution?" On receipt of the opinion the case will be taken up for further consideration. [In pursuance of the above reference under the proviso to article 145(3) of the Constitution their Lordships of the Constitution Bench (Mehr Chand Mahajan C. J. Mukherjea section R. Das Vivian Bose and Ghulam Hasan JJ.) gave the following Opinion dated 23rd September 1954.] MEHR CHAND MAHAJAN C.J. (Mukherjea Vivian Bose and Ghulam Hasan JJ. concurring) A Bench of this Court hearing an appeal under the provisions of Chapter IV of the Constitution has referred under article 145(3) of the Constitution for the opinion of the Constitution Bench the following point: "What is the effect of the declaration in The State of Bombay and Another vs F. N. Balsara(1) that clause (b) of section 13 of the Bombay Prohibition Act 1949 is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid (1) 83 646 medicinal or toilet preparations containing alcohol on the ground that it infringes article 19(1) (f) of the Constitution?" The facts giving rise to the reference are these: Shri Pesikaka the appellant in the case was at the relevant period officiating Regional Transport Officer Bombay Region. On the 29th May 1951 at about 9 30 P.m. while proceeding in his jeep towards Colaba Bus Stand he knocked down three persons. He was arrested by the police and taken to the police station and then to St. George 's Hospital. The doctor found his breath smelling of alcohol conjunctiva congested pupils semi dilated and reacting to light and speech coherent. He could behave himself and walk along a straight line. In the opinion of the doctor the appellant did not seem to be under the influence of alcohol though he had taken alcohol in some form or other. On these facts. the appellant was prosecuted for having committed offences under section 338 Indian Penal Code (rash driving) as well as under section 66(b) of the Bombay Prohibition Act. In defence it was suggested that he had taken a medicinal preparation B.G. Phos and had not consumed any liquor and that on the night in q question he had taken at about 9 or 9 15 p.m. after dinner a dose of B. G. Phos which contained 17 per cent. of alcohol according to its formula. The learned Presidency Magistrate acquitted the appellant on the finding that the prosecution had failed to establish his guilt under either of the sections under which he was charged. With regard. to the offence under section 66(b) of the Bombay Prohibition Act it was observed that there were certain medicinal preparations which were allowed to be used by law and there was no satisfactory evidence to show that the appellant had not consumed those tonics but only liquor for which he ought to have a permit. The State of Bombay appealed against the acquittal order to the High Court. The High Court confirmed the acquittal in regard to the charge under section 338 Indian Penal Code but reversed the order acquitting him of the charge under section 66(b) of the Bombay Prohibition Act followed a decision of its own ' Division 647 Bench in Rangrao Bala Mane vs The State (supra) where it had been held that once it was proved by the prosecution that a person had drunk or consumed liquor without a permit it was for that person to show that the liquor drunk by him was not prohibited liquor but was alcohol or liquor which he was permitted by law to take e.g. medicated alcohol. On this view of the law on the merits of the case it was held that the appellant had failed to prove the existence of circum stances from which the Court could come to the conclusion that the liquor which was consumed by the appellant was not prohibited liquor but liquor which was excepted by the Bombay Prohibition Act from its operation. In the result the appellant was sentenced to one month 's rigorous imprisonment and a fine. of Rs. 500. Against this order an appeal was admitted in this Court by special leave and was heard by a Bench of the Court consisting of Bhagwati Jagannadhadas and Venkatarama Ayyar JJ. on the 19th February 1954. The learned Judges could not reach an una nimous decision and expressed different and divergent opinions. Bhagwati J. wanted to allow the appeal and quash the conviction. He was of the opinion that the onus rested on the prosecution to prove that the liquor consumed by the appellant was prohibited liquor under section 13(b) of the Act and that the prosecution had failed to prove this. This in the opinion of the learned Judge was the consequence of the declaration of unconstitutionality of a portion of section 13(b) by this Court in The State of Bombay and Another vs F. N. Balsara (supra). Venkatarama Ayyar dissented from this view. He was of the opinion that the decision in The State of Bombay and Another vs F. N. Balsara (supra) could not be held to have the effect of taking out medicinal preparations from the purview of section 13(b) and that its effect was merely to render that part of the section unenforceable and that the onus rested on the accused to establish the plea of unconstitutionality and it could not be held established unless all the elements necessary to sustain such a plea were proved and the accused had therefore to make out as a fact that what he had 648 consumed was a medicinal 'preparation. On the merits of the case it was held that the accused had failed to discharge the burden that rested on him. In the result the conviction of the appellant by the High Court was upheld. Jagannadhadas J. agreed in the result reached by Venkatarama Ayyar J. but on different grounds. lie was of the opinion that the only way to give full effect to the judgment in The State Bombay and Another vs F. N. Balsara (supra) was to engraft an appropriate exception or proviso upon section 13(b) in the light of that decision. He considered that The State of Bombay and Another vs F. N. Balsara (supra) did not import a new definition or re write section 13(b). It kept the section intact but treated the consumption of liquid or medicinal preparations containing alcohol as beyond its ambit and thus engrafted an exception or proviso on to section 13(b). On this view of the effect of Balsara 's decision it was held that the onus rested on the accused to establish that his case fell within the exception and he had failed to discharge that onus. In accordance with the opinion of the majority the conviction of the appellant under section 66(b) of the Bombay Prohibition Act was confirmed and the appeal was dismissed but the sentence was reduced to that already undergone. On a petition for review being presented the learned Judges granted the review on the 26th April 1954 and reopened the case to enable them to obtain the opinion of the Constitution Bench of this Court on the constitutional question formulated and mentioned above. For a proper appreciation of the question referred to us it is necessary to set out what this Court decided In The State of Bombay and Another vs F. N. Balsara (supra). In that case the constitutional validity of the Bombay Prohibition Act (XXV of 1949) was challenged on different grounds. This attack substantially failed and the Act was maintained as it was passed with the exception of 'a few provisions that were declared invalid. Inter alia clause (b) of section 13 so far as it affected the consumption or use of such medicinal and toilet preparations containing alcohol was held invalid. 640 Section 2(24) of the Act defined a "liquor" to include spirits of wine methylated spirits wine beer toddy and all liquids consisting of or containing alcohol. Section 13(b) prohibits the use or consumption of liquor without a permit. Section 66(b) which is the penal section provides that "whoever in contravention of the provisions of this Act consumes uses any intoxicant shall on conviction be punished. " The appellant was charged under section 66(b) of the Act for having used or consumed liquor the use of which was prohibited by section 13(b). In The State of Bombay and Another vs F. N. Balsara (supra) the part of the section that brought all liquids containing alcohol within its ambit was declared invalid and the section therefore though it stood intact as enacted in respect of prohibited liquor up to the date of the coming into force of the Constitution and qua non citizens subsequently a part of it was declared invalid and so far as it concerned citizens qua them that part of the section ceased to have legal effect. The problem now raised is; what is the effect of this partial declaration of the invalidity of section 13(b) on the case of a citizen prosecuted under section 66(b) for committing a breach of the provisions of the section after the coming into force of the Constitution. Our opinion on this question is that the effect of the declaration in The State of Bombay and Another vs F. N. Balsara (supra) that clause (b) of section 13 of the Bombay Prohibition Act is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol is to render part of section 13(b) of the Bombay Prohibition Act inoperative ineffective and ineffectual and thus unenforceable. The part of the section which has been declared void has no legal force so far as citizens are concerned and it cannot be recognized as valid law for determining the rights of citizens. In other words the ambit of the section stands narrowed down so far as its enforceability against citizens is concerned and no notice can be taken of the part of the section struck down in a prosecution for contravention of the provisions of that section with 650 the consequence that in prosecutions against citizens of India under section 13(b) the offence of contravention of the section can only be proved if it is established that they have used or consumed liquor or an intoxicant which is prohibited by that part of the section which has been declared valid and enforceable and without reference to its unenforceable part. No notice at all should be taken of that other part as it has no relevance in such an enquiry having no legal effect. In a criminal case unless the prosecution proves a contravention of a provision that is legally enforceable and valid it cannot succeed. No onus is cast on the accused to prove that his case falls under that part of the section which has been held unenforceable. The High Court was in error in placing the onus on the accused to prove that he had consumed alcohol that could be consumed without a permit merely on proof that he was smelling of alcohol. In our judgment that was not the correct approach to the question. The bare circumstance that a citizen accused of an offence under section 66(b) is smelling of alcohol is compatible both with his innocence as well as his guilt. It is a neutral circumstance. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13(b) of the Prohibition Act. It may well be due also to the tact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. That being so it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohols and the onus was not discharged or shifted by merely proving a smell of alcohol. The onus thus cast on the prosecution may be light or heavy according to the circumstances of each case. The intensity of the smell itself may be such that it may negative its being of a permissible variety. Export evidence may prove that consumption in small doses of medicinal or other preparations permitted cannot produce the smell or a state of body or mind amounting to drunkenness. Be that as it may the question is one of fact to be decided according to the circumstance of each case. It is open to the accused to prove in defence that what he 651 consumed was not prohibited alcohol but failure of the defence to prove it cannot lead to his conviction unless it is established to the satisfaction of the Judge by the prosecution that the case comes within the enforceable part of section 13(b) contravention of which alone is made an offence under the provisions of section 66 of the Bombay Prohibition Act. Our reasons for this opinion are these. The meaning to be given to the expression "void" in article 13(1) is no longer res integra. It stands concluded by the majority decision in Kesava Madhava Menon vs The State of Bombay( ). The minority view there was that the word "void" had the same meaning as " repeal" and therefore a statute which came into clash with fundamental rights stood obliterated from the statute book altogether and that such a statute was void ab initio. The majority however held that the word "void" in article 13(1) so far as existing laws were concerned could not be held to obliterate them from the statute book and could not make such laws void altogether because in its opinion article 13 had not been given any retrospective effect. The majority however held that after the coming into force of the Constitution the effect of article 13(1) on such repug nant laws was that it nullified them and made them ineffectual and nugatory and devoid of any legal force or binding effect. It was further pointed out in one of the judgments representing the majority view that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth has no application to cases concerning obligations incurred or rights accrued in accordance with an existing law that was constitutional in its inception but that if any law was made after the 26th January 1950 which was repugnant to the Constitution then the same rule shall have to be followed in India as followed in America. The result therefore of this pronouncement is that the part of the section of an existing law which is un constitutional is not law and is null and void. For determining the rights and obligations of citizens the part declared void should be notionally taken to be (I) (1951] S.C.R 228. 652 obliterated. from the section for all intents and purposes though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January 1950 and also for the determination of rights of persons who have not been given fundamental rights by the Constitution. Thus in this situation there is no scope for introducing terms like "relatively void" coined by American Judges in construing a Constitution which is not drawn up in similar language and the implications of which are not quite familiar in this country. We are also not able to endorse the opinion expressed by our learned brother Venkatarama Ayyar that a declaration of unconstitutionality brought about by lack of legislative power stands on a different footing from a declaration of unconstitutionality brought about by reason of abridgement of fundamental rights. We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the lawmaking power of a State is restricted by a written fundamental law then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of Constitution. A mere reference to the provisions of article 13(2) and articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes info clash with Part III of the Constitution after the coming into force of the Constitution. Article 13(2) is in these terms : "The State shall not make any law which takes away or abridges; the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void. " 653 This is a clear and unequivocal mandate of the funda mental law prohibiting the State from making any laws which come into conflict with Part III of the Constitution. The authority thus conferred by articles 245 and 246 to make laws subject wise in the different Legislatures is qualified by the declaration made in article 13(2). That power can only be exercised subject to the prohibition contained in article 13(2). On the construction of article 13(2) there was no divergence of opinion between the majority and the minority in Kesava Madhava Menon vs The State of Bombay (supra). It was only on the construction of article 13(1) that the difference arose because it was felt that that article could not retrospectively invalidate laws which when made were constitutional according to the Constitution then in force. Again we are not able to subscribe to the view that in a criminal prosecution it is open to an accused person to waive his constitutional right and get convicted. A reference. to Cooley 's Constitutional Limitations Vol. I p. 371 makes the proposition clear. Therein the learned professor says that a party may consent to waive rights of property but the trial and punishment for public offences are not within the province of individual consent or agreement. In our opinion the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice social economic and political; 84 654 liberty of thought expression belief faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Reference to some of the articles inter alia articles 15(1) 20 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State "You can discriminate" or get convicted by waiving the protection given under articles 20 and 21. The learned Attorney General contended that the correct approach to the question was that there being a strong Presumption in favour of the constitutionality of a statute it is for those who assail it as unconstitutional to establish it and therefore it was for the appellant to establish that the statute was. unconstitutional and that unless he proved facts requisite for the constitutional invalidity of the conviction he could not succeed. We cannot agree that that is a correct way of judging criminal cases. The constitutional invalidity of a part of section 13(b) of the Bombay Prohibition Act having been declared by this Court that part of the section ceased to have any legal effect in judging cases of citizens and had to be regarded as null and void in determining whether a citizen was guilty of an offence. Article 141 of the Constitution declares that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. In view of this clear enactment there is no scope in India for the application of the American doctrine enunciated by Willoughby ("The Constitution of the United States" Vol. I P. 10) wherein the learned author states "the declaration by a court of unconstitutionality of a statute which is in conflict with the Constitution affects the parties only and there is no judgment against the statute; that the opinion or reasons of the court may operate as a precedent for the determination of other similar cases but it does 655 not strike the statute from the statute book; the parties to that suit are concluded by the judgment but no one else is bound; a new litigant may bring a new suit based on the very same statute and the former decision cannot be pleaded as an estoppel but can be relied on only as a precedent. " Once a statute is declared void under article 13(1) or 13(2) by this Court that declaration has the force of law and the statute so declared void is no longer law qua persons whose fundamental rights are thus infringed. In America there is no similar statutory provision and that being so the doctrine enunciated by the learned author can have no application here. In this country once a law has been struck down as unconstitutional law by a Court no notice can be taken of that law by any Court and in every case an accused person need not start proving that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared as void and therefore there is no onus resting on the accused person to prove that the law that has already been declared unconstitutional is unconstitutional in that particular case as well. The Court has to take notice only of what the law of the land is and convict the accused only if he contravenes the law of the land. Our learned brother Jagannadhadas J. took the view that the only appropriate way of giving effect to the judgment in The State of Bombay and Another vs F. N. Balsara (supra) was by engrafting an exception or proviso to section 13(b) in the light of that decision and that the onus of proving the exception was on the accused person. This in our judgment is again not a true approach to the question. As pointed out by the learned Judge himself the Court has no power to re write the section. It has to be kept intact. The Court therefore has no power to engraft an exception or a proviso on section 13(b) of the Bombay Prohibition Act. Apart from this circumstance it seems plain that unless there is a power to make a law inconsistent with the provisions of Part III of the Constitution there can be no power to engraft an exception of the nature suggested by our brother. An exception or proviso 656 can only be engrafted for the purpose of excluding from the substantive part of the section certain matters which but for the proviso would be within it. But when there is no power to enact at all what is proposed to be embodied in the exception there is no power to enact an exception by enacting a law which the Legislature is not competent to make. The State has no power to make a law abridging fundamental rights and therefore there is no power to engraft an exception by taking something out of a law which cannot be enacted. It is therefore difficult to treat what was declared void in The State of Bombay and Another vs F. N. Balsara (supra) as an exception to section 13(b) of the Bombay Prohibition Act and apply the rule enunciated in sec tion 105 of the Evidence Act to the case of the appellant. The only correct approach to the subject is to ignore the part of the section declared void by this Court in The State of Bombay and Another vs F. N. Balsara (supra) and see if the prosecution has succeeded in bringing the offence home to the accused on the part of the section that remains good law. With the observations made above the opinion in this case is returned to the Bench which originally heard the appeal. DAS J. I respectfully beg to differ from the opinion of the majority of this Court just delivered by my Lord the Chief Justice. It is therefore incumbent on me to formulate my answer to the question referred to this Constitution Bench and state shortly the reasons in support thereof. It is necessary at the outset to refer to the relevant statutory provisions bearing on the question. The appellant before us was prosecuted on a charge under section 13 read with section 66(b) of the Bombay Prohibition Act 1949 (Act XXV of 1949). The relevant part of section 66(b) of the Act which is the penal section reads as follows: "66. Whoever in contravention of the provisions of this Act (a). . . . . (b)consumes uses possesses or transports any intoxicant or hemp 657 (c). . . . . . . (d). . . . . . . shall on conviction be punished. . . " By section 2 (22) "intoxicant" is defined as meaning "any liquor intoxicating drug opium or a any Other substance which the State Government may by notification in the Official Gazette declare to be an intoxicant. " Read in the light of this definition consumption use etc. of "liquor" is within the mischief of this section. Further it will be noticed that what is made punishable is not consumption use etc. of liquor simpliciter but consumption use etc. of liquor "in contravention of the provisions of this Act. " The prosecution as the charge shows relied on section 13 as being the provision of the Act in contravention of which the consumption use etc. was alleged to have been made by the appellant who was the accused person. That section is to be found in Chapter III beaded "Prohibitions". So far as it is material for our purpose it runs thus: "13. No person shall (b) consume or use liquor; or (c) By section 2 (24) "liquor" is defined as including "(a) spirits of wine; denatured spirits wine beer toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the State Government may by notification in the Official Gazette declare to be liquor for the purposes of this Act. " Therefore the prohibition of section 13(b)extends to the consumption or use of each and everyone of the above enumerated items which are included in the definition of "liquor". It follows that whoever consumes or uses any of these enumerated substances contravenes the provisions of section 13(b) and consumption or use of any of these substances in contravention of this provision is an offence punishable under section 66(b). 658 The Bombay Prohibition Act containing the above provisions came into force on the 20th May 1949. It is conceded on all hands that it was a perfectly valid piece of legislation enacted well within its legislative competency by the then Bombay Legislative Assembly. Then came the Constitution of India on the 26th January 1950. Article 19(1)(f) gives to all citizens the fundamental right to acquire hold and dispose of property. By sub article(5) however it is provided that nothing in clause(f) shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing reasonable restrictions on the exercise of the right conferred by sub clause (f) either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. The Bombay Prohibition Act 1949 was an existing law. By virtue of sub article (5) the right conferred by sub clause (f) cannot affect the operation of the Act in so far as it imposes reasonable restrictions of the kind mentioned in that sub article. If however this existing law imposes restrictions which are unreasonable then it becomes inconsistent with the right guaranteed to the citizens by article 19(1)(f) and consequently under article 13(1) "shall to the extent of such inconsistency be void". It is beyond all dispute that it is for the Court to judge whether the restrictions imposed by any existing law or any Part thereof on the fundamental rights of citizens are reasonable or unreasonable in the interest of the general public or for the protection of the interests of any Scheduled Tribe. If the Court holds that the restrictions are unreasonable then the Act or the part thereof which imposes such unreasonable restrictions comes into conflict and becomes inconsistent with the fundamental right con ferred on the citizens by article 19(1)(f) and is by article 13(1). rendered void not in toto or for all purposes or for all persons but "to the extent of such inconsistency" i.e. to the extent it is inconsistent with the exercise of that fundamental right by the citizens. This is plainly the position as I see it. Shortly after the commencement of the Constitution the validity of the Bombay Prohibition Act was 659 challenged in its entirety. One F. N. Balsara claiming to be an Indian citizen prayed to the High Court at Bombay infer alia for a writ of mandamus against the State of Bombay and the Prohibition Commissioner ordering them (i) to forbear from enforcing against him the provisions of the Prohibition Act and (ii) to allow him to exercise his right to possess consume and use certain articles namely whisky brandy wine beer medicated wine eau de cologne lavender water and medicinal preparations containing alcohol. The High Court agreeing with some of the petitioner 's contentions and disagreeing with others declared some of the provisions of the Act to be invalid and the rest to be valid. Both the State of Bombay and the petitioner Balsara appealed to this Court after obtaining a certificate from the High Court under article 132(1) of the Constitution. The judgment of this Court in those appeals was pronounced on the 25th May 1951. See The State of Bombay and Another vs F. N. Balsara (supra). So far as it is material for our present purpose this Court held (1) that under entry 31 of List II of the Seventh Schedule to the Government of India Act 1935 the Provincial Legislatures had the power to make laws with respect to "intoxicating liquors that is to say the 'production manufacture possession transport purchase and sale of intoxicating liquors" and there was therefore no legislative incompetency in the Bombay Legislature to enact the Bombay Prohibition Act 1949; (2) that the word "liquor" as understood in India at the time of the Government of India Act 1935 covered not only those alcoholic liquids which are generally used as beverages and produce intoxication but also liquids containing alcohol and therefore the definition of "liquor" contained in section 2(24) of the Act was not ultra vires and (3) that the restrictions imposed by sections 12 and 13 of the Act on the possession sale use and consumption of liquor were not reasonable restrictions on the fundamental right guaranteed by article 19(1)(f) so far as medicinal and toilet preparations containing 660 alcohol were concerned and that the said sections were invalid so far as they prohibited the possession sale use. and consumption of these articles but that those sections were not wholly void on this ground as the earlier categories mentioned in the definition of liquor namely spirits of wine methylated spirit wine beer and toddy were distinctly separable items which were easily severable from the last category namely all liquors containing alcohol and further that the last category of "all liquids consisting of or containing alcohol" were again capable of being split up in several sub categories e.g. liquid medicinal and toilet preparations containing alcohol and the restrictions on the possession sale use and consumption of the earlier categories and all liquids containing alcohol other than medicinal and toilet preparations were not unreasonable. In the result this Court declared certain provisions of the Act invalid. Amongst the provisions declared invalid was section 13(b) but it was so declared only "so far as it affects the consumption or use of such medicinal and toilet preparations containing alcohol." This declaration no doubt was made pursuant to article 13(1) of the Constitution. The very foundation of this declaration was that the prohibition imposed by this section against the consumption or use of liquid medicinal or toilet preparations was an unreasonable restriction on the exercise of the fundamental right of citizens to acquire hold and dispose of property which in that case was liquid medicinal or toilet preparations containing alcohol ' The law thus declared by this Court is by virtue of article 141 of the Constitution binding on all Courts within the territory of India. The offence with which the appellant was charged was alleged to have been committed on the 29th May 1951 that is to say four days after this Court pronounced its judgment in The State of Bombay and Another vs F. N. Balsara (supra). On the 22nd April 1952 the learned Presidency Magistrate acquitted the appellant of that charge with the following remark: "The evidence also does not go to show conclusively that the accused had consumed alcohol without a permit There are. certain medicinal preparations which are 661 allowed to be used by law and there must be satisfactory evidence to show that the accused has not consumed those tonics but only liquor for which he ought to have a permit. " The State appealed to the High Court against this order of acquittal. The High Court following its own earlier decision in Rangrao Bala Mane vs State (supra) reversed the order of the Presidency Magistrate. The appellant came up to this Court in appeal after having obtained special leave from this Court. The appeal came up for hearing before a Division Bench of this Court consisting of Bhagwati Jagannadhadas and Venkatarama Ayyar JJ. Bhagwati J. clearly and if I may respectfully say so correctly accepted the position that the declaration made by this Court in The State of Bombay and Another vs F. N. Balsara (supra) "was a judicial pronouncement and that even though under article 141 of the Constitution the law declared by this Court was binding on all Courts in India and is to be the law of the land the effect of that declaration was not to enact a statutory provision or to alter or amend section 13(b) of the Act." Having accepted this position the learned Judge logically and again I say with respect correctly repelled the argu ment that the result of the decision in The State of Bombay and Another vs F. N. Balsara (supra) was to introduce not in terms but in effect an exception or proviso to section 13(b) and that consequently the onus lay on the appellant to prove the existence of circumstances bringing his case within the exception or proviso as laid down in section 105 of the Evidence Act. The learned Judge however observed: "The only effect of the declaration was that the prohibition enacted in section 13(b) was to be enforce. able in regard to the consumption or use of validly prohibited liquor i.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and 85 662 non toilet liquid preparations consisting of or containing alcohol. The prohibition which was enacted in section 13(b) against the consumption or use of liquor could in the light of the declaration made by this Court only refer to the consumption or use of validly prohibited liquor i.e. spirits of wine methylated spirits wine beer toddy and all non medicinal and non toilet liquid preparations consisting of or containing alcohol and that was the only prohibition which could be enforced under the section 13(b) and the penal section 66(b). " The learned Judge proceeded to illustrate how the effect of the declaration could be worked out: "The effect of the declaration on the provisions of section 13(b) could be worked out in any of the following modes: No person shall consume or use spirits of wine methylated spirits wine beer toddy and all liquids consisting of or containing alcohol as are not or which are not or other than or save or except or provided they are not or but shall not include liquid medicinal or toilet preparations containing alcohol or all non medicinal and non toilet liquid preparations consisting of or containing alcohol. When these several interpretations were possible in regard to the effect of the declaration on the provisions of section 13(b) where would be the justification for interpreting the effect of the declaration to be that of grafting an exception or proviso on section 13(b) so as to attract the operation of the provisions of section 105 of the Evidence Act9 It is clear that where several interpretations are possible the Court should adopt an interpretation favourable to the accused rather than one which casts an extra or special burden upon him which if at all should be done by clear and unequivocal provision in that behalf rather than in this indirect manner. (See also In re Kanakasabai Pillai)(1). " With the utmost respect to the learned Judge the modes of working out the effect of the declaration indicated by him clearly involve the acceptance of one or other of the different forms of amendment of the section although according to his views expressed (1) A.I. R. 1940 Mad. I. 663 earlier in his judgment the effect of the declaration was not to alter or amend section 13(b) of the Act. Venkatarama Ayyar J. however took the view that as the Court had no legislative function and as judicial decisions did not amend or add to a statute but merely interpreted the law and declared whether it was valid or not the result of a judicial declaration that a statute or any part thereof was not valid was only that no effect could be given to it in a Court of law but that it did not mean that the statute or the part thereof declared void had gone out of the statute book after the Court 's decision. He also held that section 105 of the Evidence Act would not in terms apply as article 19(1)(f) could not be said to form an exception to section 13(b). He rested his decision on the ground that the inclusive definition of "liquor" adopted in section 2(24) of the Act having been held to be within entry 31 in List II of the Seventh Schedule to the Government of India Act 1935 and therefore valid that meaning should be its connotation in section 13(b) as well and that under the section so read the offence would be established as soon as consumption or use of "liquor" so defined was established and that the plea that what was consumed was medicinal preparation containing alcohol was really a plea that the section in so far as it prohibits consumption or use of liquid medicinal or toilet preparations containing alcohol infringed the citizens ' fundamental right under article 19(1)(f) and was therefore unconstitutional as declared by this Court. His view was that it was for those who pleaded unconstitutionality to establish all the elements which would go to establish that plea. Jagannadhadas J. felt inclined to agree with the view of Venkatarama Ayyar J. but as that aspect of the matter had not been fully argued he passed on to the argument canvassed before them namely that the part of the section declared invalid went out of the Act and the Act stood appropriately amended pro tanto. This according to the learned Judge involved that the word "liquor" stood amended as "prohibited liquor" or that it was to be understood with this limited connotation. This argument he could not accept. His view was that what the decision in The State of Bombay and Another vs 664 F. N. Balsara (supra) had done was not to authorise the importation of a new definition or to rewrite the section but leaving the section intact to treat the consumption or use of liquid medicinal or toilet preparations containing alcohol as taken out of the ambit of the section itself as the prohibition thereof was unconstitutional. This according to the learned Judge could only be done by grafting an appropriate exception or proviso into section 13(b). The result of the hearing before that Bench was that Bhagwati J. held that the appeal should be allowed but Jagannadhadas and Venkatarama Ayyar JJ. were for dismissing the appeal. An application for review was however made on the ground that the judgments of the learned Judges involved a decision on constitutional matters which that Bench had no jurisdiction to decide but which could only be dealt with by a Constitution Bench. By an order made on the 26th April 1954 under the proviso to sub article (3) of article 145 that Bench accordingly referred the following question for the opinion of the Constitution Bench namely: "What is the effect of the declaration in The State of Bombay and Another vs F. N. Balsara (supra) that clause (b) of section 13 of the Bombay Prohibition Act 1949 is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol on the ground that it infringes article 19(1)(f) of the Constitution?" The effect of a judicial declaration of a statute as unconstitutional has been stated by Field J. in Norton vs Shelby County(1) to be that the statute is no law and that in legal contemplation it is to be treated as inoperative as though it had never been passed. Cooley in his Constitutional Limitations Volume 1 page 382 has adopted this dictum of Field J. and expressed the view that where a statute is adjudged to be unconstitutional it is as if it had never been. I am unable to accept the proposition so widely stated. Even American text book writers have felt that the statement of (1) ; ; 665 Field J. needs to be somewhat qualified. (See Willoughby on the Constitution of the United States Volume 1 page 11 and Willis on Constitutional Law page 890). The dictum it will be observed related to a statute which was made after the commencement of the Constitution and which was in violation of the provisions of the Constitution. It cannot obviously apply to a case where a statute which was enacted before the commencement of the Constitution is declared to have become unconstitutional and void. In such a situation it cannot be said that the judicial declaration means that such a statute is void for all purposes including past transactions that took place before the commencement of the Constitution. The Bombay Act was an existing law and the declaration in The State of Bombay and Another vs F. N. Balsara (supra) cannot and does not affect anything done under the Act prior to the commencement of the Constitution. It will be further noticed that the decision in The State of Bombay and Another vs F. N. Balsara (supra) does not declare the entire Act or even the entire section 13(b) to be void. It only declares void a part of section 13(b) that is to say only that part of it which prohibits a citizen from consuming or using only liquid medicinal or toilet preparations containing alcohol. The section in its entirety is still enforceable against all noncitizens. Even as against citizens the prohibition of the section with respect to the consumption or use of the earlier categories of liquor namely "spirits of wine denatured spirits wine beer toddy" ' is fully operative. Moreover even the prohibition against consumption or use of the last category of liquor namely "all liquids consisting of or containing alcohol" remains operative even as against citizens except in so far as it prohibits them from consuming or using liquid medicinal or toilet preparations containing alcohol. In such a situation the passages from Cooley on Constitutional Limitations and the dictum of Field J. can have no application. This is put beyond controversy by the decision of this Court in Keshava Madhava Menon vs The State of Bombay (supra). The Bombay Act being an existing law the declaration made by 666 this Court in The State of Bombay and Another vs F. N. Balsara (supra) must be taken to have been made under article 13(1). The article does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. The declaration in The State of Bombay and Another vs F. N. Balsara (supra) as I understand it is that the prohibition contained in section 13(b) against the consumption or use of one particular variety of liquid Consisting of or containing alcohol namely liquid medicinal or toilet preparations containing alcohol imposes an unreasonable restriction on the exercise of a citizen 's fundamental right under article 19(1) (f) and is therefore unconstitutional and as such void to that extent. The result of it is that the prohibi tion of that part of section 13(b) will be ineffective against and inapplicable to a citizen who consumes or uses liquid medicinal or toilet preparations containing alcohol. No part of the section is obliterated or scratched out from the statute book or in any way altered or amended for that is not the function of the Court. The judicial declaration that a art of the section is unconstitutional and void only nullifies that offending Part in the sense that it renders that part ineffective against and inapplicable to a citizen who consumes or uses liquid medicinal or toilet preparations containing alcohol in exercise of his fundamental right. In other words when a citizen is charged with an offence under section 66(b) read with section 13(b) he will be entitled to say "I am a citizen of India. I have consumed or used liquid medicinal or toilet preparations containing alcohol. I am entitled to do so under article 19(1) (f). The Supreme Court has in The State of Bombay and Another vs F. N. Balsara (supra) declared the law namely that in such cir cumstances the prohibition of section 13(b) is void as against me with respect to such consumption or use of liquid medicinal or toilet preparations containing alcohol " This plea if substantiated will be a complete answer to the charge. In short the judicial declaration serves to provide a defence to a citizen who has consumed or used liquid medicinal or toilet preparations 667 containing alcohol. Test the matter in this way. Suppose after the declaration a person is charged with an offence under section 66(b) read with section 13(b) and in such a case the prosecution proves that the accused has taken alcohol in some form or other as is the evidence of the doctor in the present case. What is to happen if nothing further is proved by either party ? Surely in such a situation a conviction must follow. If the accused person desires to avail himself of the benefit of the declaration in The State of Bombay and Another vs F. N. Balsara (supra) surely he must prove first of all that he is a citizen. The onus of this clearly lies on the accused. The next question is whether that is the only onus that lies on the accused. To my mind he has to allege and prove not only that he is a citizen but that he has consumed or used liquid medicinal or toilet preparations containing alcohol and it is only on such proof that he can claim the benefit of the declaration of law made in The State of Bombay and Another vs F. N. Balsara (supra) and establish his defence. The very basis of that declaration is that a citizen has the fundamental right to consume or use liquid medicinal or toilet preparations containing alcohol and section 13(b) in so far as it prohibits such consumption or use imposes an unreasonable restriction on his fundamental right under article 19(1) (f). In other words the on us is on him to establish the situation or circumstances in which that part of the section which has been declared to be void should not be applicable to him. If he establishes the fact that he is a citizen and that he has consumed or used such liquid then the declaration in The State of Bombay and Another vs F. N. Balsara (supra) will establish the law namely that the prohibition of section 13(b) and the penalty under section 66(b) are not applicable to him being inconsistent with his fundamental right. To say that after the judicial pronouncement the section should be read qua a citizen as if liquid medicinal or toilet preparations are not there or that the ambit of the offence has narrowed down to a prohibition against the consumption or use of only the earlier categories of liquor set forth in the definition is to my mind 868 tantamount to saying covertly if not openly that the judicial pronouncement has to that extent amended the section. To say that after the declaration the offence has become limited to the consumption or use of prohibited liquor is to alter or amend the definition of liquor although it has been held to be valid. I repeat that it is not within the competence of a Court to alter or amend a statute and that the effect of the declaration made by this Court in The State of Bombay and Another vs F. N. Balsara (supra) is not to lift or take away or add anything out of or to the section at all. What it does is to declare as a matter of law that in a certain situation namely when liquid medicinal or toilet preparations containing alcohol are consumed or used a certain part of section 13(b) that is to say that part of it which prohibits the consumption or use of liquid medicinal or toilet preparations containing alcohol shall be void qua a particular class of persons namely citizens. In other words the declaration in The State Of Bombay and Another vs F. N. Balsara (supra) serves to provide a defence only to a citizen who has consumed or used liquid medicinal or toilet preparations. It is for the accused person who seeks to ward off the applicability of the section to him by having resort to the declaration made in The State of Bombay and Another vs F. N. Balsara (supra) to establish the situations or circumstances on which that declaration is founded. In short a person who challenges the validity of the section on the ground of its unconstitutionality has the advantage of the declaration as a matter of law but the facts on which that declaration is based have nevertheless to be established in each particular case where the declaration is sought to be availed of. I answer the question referred to us accordingly. It has been strenuously urged before us as before the Division Bench that such a view as to the effect of this Court 's declaration will run counter to the well established principle of criminal jurisprudence that the onus of establishing the charge is always on the prosecution for it will throw the burden of proof on the accused person. This argument has considerably impressed Bhagwati J. and has also weighed with my 669 learned colleagues on the present Bench. It is however not unusual in certain classes of cases or in certain circumstances to throw the onus of proof of a defence on the accused person. Section 105 of the Evidence Act is an instance in point. Section 114 ill. (a) of the same Act is another provision to which reference may be made. Section 103 of this very Bombay Prohibition Act raises a very strong presumption of guilt and throws the burden on the accused to prove his innocence in certain cases. Take section 96 of the Indian Penal Code which says " Nothing is an offence which is done in the exercise of the right of private defence. " Nobody will contend that this section requires the prosecution to prove that the acts constituting the offence charged against the accused were not done in the exercise of the right of private defence. It is obvious that this section serves to provide the accused person with a defence and if the accused person can prove that he did the acts complained of in defence of his person or property and if the acts were reasonable in the circumstances of the case he establishes his defence. It is not necessary to multiply instances. It seems to me that the declaration in The State of Bombay and Another vs F. N. Balsara (supra) gives a citizen who has consumed or used liquid medicinal or toilet preparations containing alcohol a defence to a charge under section 66(b) read with section 13(b) of the Bombay Prohibition Act but it is for the accused person to prove the facts on which that declaration of law is founded. I see no hardship whatever in this for the requisite facts are within his special knowledge. To adopt the contrary view will be to ignore the sound principle well established in law that a judicial declaration of invalidity does not repeal alter or amend a statute. As I hold that the declaration does not operate as an amendment of the section I must logically hold 'with respect to the view of Jagannadhadas J. that the declaration cannot be treated as having grafted an exception or proviso to section 13(b). 86 670 In coming to the conclusion that I have I have in a large measure found myself in agreement with the views of Venkatarama Ayyar J. on that part of the ' case. 1 however desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment particularly those relating to waiver of unconstitutionality the fundamental rights being a mere check on legislative power or the effect of the declaration under article 13(1) being "relatively void. " On those topics prefer to express no opinion on this occasion. BY THE COURT. The reference is answered in accordance with the opinion of the majority. [After the opinion of the Constitution Bench the following Order dated 24th September 1954 was pronounced by a Bench composed of Bhagwati Jagannadhadas and Venkatarama Ayyar JJ. who had originally heard the appeal.] The Order of the Court was pronounced by BHAGWATI J. We have received the opinion expressed by the Constitution Bench. According to that opinion which is expressed in the majority judgment the onus lay on the prosecution to prove that the alcohol of which the accused was smelling was such that it came within the category of prohibited alcohols. We have heard the learned Attorney General on the question whether that onus has been discharged and he has frankly conceded that on the material placed before us it cannot be urged that that onus has been discharged by the prosecution. The result therefore is that the conviction of the appellant will be quashed and the fine if paid will be refunded. Conviction set aside.

Held (Per MEHR CHAND MAHAJAN C. J. MUKHERJEA VIVIAN BOSE and GHULAM HASAN JJ. section R. DAS J. dissenting) that the effect of the declaration in the case of The State of Bombay and Another vs F. N. Balsara(1) that clause (b) of section 13 of the Bombay Prohibition Act (XXV of 1949) is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol is to render part of section 13(b) of the Bombay Prohibition Act inoperative ineffective and ineffectual and thus unenforceable. In view of the constitutional invalidity of a part of section 13(b) of the Bombay Prohibition Act having been declared void by the Supreme Court that part of the section ceased to have legal effect in judging cases of citizens and must be regarded as null and void in determining whether a citizen was guilty of an offence. The clear enactment of article 141 of the Constitution leaves no scope in India for the application of the American doctrine that "the declaration by a court of unconstitutionality of a statute which is in conflict with the Constitution affects the parties only and there is no judgment against the statute and it does not strike the statute from the statute book. " In India on the other hand once a law has been struck down as unconstitutional by the Supreme Court no notice can be taken of it by any Court because after it is declared as unconstitutional it is no longer law and is null and void. The bare circumstance that a citizen accused of an offence under section 66(b) of the Bombay Prohibition Act is smelling of alcohol is compatible both with his innocence as well as his guilt. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13(b) of the Bombay Prohibition Act or it may well be due to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. Therefore the onus was laid on the prosecution to prove that the (I) ; 79 614 alcohol of which he was smelling came under the category of prohibited alcohol within the meaning of the enforceable part of section 13(b). Per section R. DAS J. : The declaration in the case of The State of Bombay and Another vs F. N. Balsara gives a citizen who has consumed or used liquid medicinal or toilet preparations a defence to a charge under section 66(b) read with section 13(b) of the Bombay Prohibition Act and it is for the accused person to prove the facts on which that declaration of law is based. The State of Bombay and Another vs F. N. Balsara ([1951] S.C.R. 682) explained. Kesava Madhava Menon vs The State of Bombay ([1951] S.C.R. 228) followed. rangarao Bala Maize vs The State ([19511 54 Bom. L. R. 325) In re Kanakasabai Pillai (A.I.R. 1940 Mad. 1) and Norton vs Shelby County ; referred to.

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. D.V. Narasinga Rao and M. section K. Sastri for the appellant. section 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 921 what was the District of Ganjam in the Province of Madras and now comprised 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 note 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 consideration only to the extent of Rs. 25 000 and that it had become discharged by the payments made in 1926 and 1927. He also contended that the mortgage bond was not duly attested or validly registered and that it was therefore void and unenforceable. The Subordinate Judge of Berhampur who heard the suit held that no consideration passed for the promissory note 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. section 119 922 No. 10 of 1937 claiming that Exhibit J was supported by consideration and the defendant filed A. section 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 nor properly registered. The High Court concurred 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 note Exhibit J it held differing from the Subordinate Judge that it was also supported by consideration. Against this decision the defendant appeals. and repeats all the contentions urged by him in the courts below. * * * * [The court held on a consideration Of the evidence that the mortgage bond was supported by consideration and that it was duly attested.] The last contention of the appellant was that the deed was not validly registered in accordance with the provisions of sections 32 and 33 of the 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 923 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 not be required to attend at any registration office or court for the purpose of executing any such power of attorney as is mentioned in clauses (a) and (b) of this section namely : (i)persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend ; (ii)persons who are in jail under civil or criminal process and (iii)persons exempt by law from personal appearance in court. (2)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 court aforesaid. (3)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 confined and examine him or issue a commission 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 vs Muhammad Aftar Ali Khan(1) it was observed by the Judicial Committee approving of the decision in Ishri Prasad vs 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 not been duly authorized in accordance with those (1) 42 I.A. 22. (2) I.L.R. 28 All. 924 sections does not 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 not 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 not residing at Cuttack at the time of the execution of Exhibit B and consequently the Registrar at Cuttack had no jurisdiction 'to ' 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 not 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 not suffering from any bodily infirmity at that time and that in consequence the registration of Exhibit A pursuant thereto was void. With reference to the first contention that the defendant was not residing at Cuttack at the date of Exhibit B and that consequently the Registrar of that place had no jurisdiction to register it under section 33 (1) (a) the finding of the courts 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 925 Sharat Chandra Basu vs Bijay Chand Mahtab(1) the Privy Council observed: " The expression 'resides ' as used in section 33 is not defined in the statute; but there is no reason for assuming that it contemplates 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 no house 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 could not be held that there was residence even of a temporary character at Cuttack. The fact that the house did not belong to the appellant is not material for this purpose; because residence only connotes that a person eats drinks and sleeps at that place and not 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 no reason why his words should not 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 vs Bijay Chand Mahtab(1) the endorsement on the power of attorney was as follows (1) 64 I.A. 77 926 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 not 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 not correct to ' say that the defendant came to Cuttack only for the purpose of executing the power Exhibit B. He came there to complete the negotiations for raising a loan from Radha Prasad and the execution of the power was only one and not 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 defendant 's 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 courts below that the appellant was residing at Cuttack at the time of Exhibit B and that must be affirmed. It was next contended that as Exhibit B was preseated for registration by one Sundar am who was neither a party to it nor 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 contention is that section 32 would apply only if a power of attorney is presented for registration and not when 927 it is produced merely for authentication in which case the only requirements that have to be complied 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 no question 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 Registrar 's Office, Cuttack; by P. Sundaram. The contention of the appellant based on this endorsement is that as Exhibit B was presented for registration section 32 applied and as Sundaram was not 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 not 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 not registered but only authenticated. ' It contains only an endorsement of authentication and the charges collected 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 not detract from the validity of the subsequent authentication before the Registrar which was an 928 independent act complete in itself and valid under section 33. In Bharat Indu vs 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 contention 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 not authorised. In overruling this contention 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 contended that the defendant was in fact not 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 not 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 could 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 not remember what reasons were given for SubRegistrar 's private attendance." (1) 47 I.A. 177. 929 No application has been produced in court 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 conclusion that the defendant was suffering from bodily infirmity is not a matter which can be gone into in a court of law. It is a matter exclusively within his jurisdiction and any error which he might have committed would not affect his jurisdiction to register the document. In Ma Pwa May vs 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 no jurisdiction to register as where a person not 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 vs 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 not affecting his jurisdiction and even if erroneous would not 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 no substance in this contention and it must be overruled. In the result the appeals fail and are dismissed. As for costs 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. 120 930 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 court was that it was not binding on the estate. But on appeal the High Court held that the question could not 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. In view of this we direct that the parties do bear their own costs in this court. Appeals dismissed.

The word "resides" in section 33(1)(a) of the Indian is not defined in the statute. It contemplates not only permanent residence but also temporary residence. Residence only connotes that a person eats drinks and sleeps at that place and it is not necessary that he should own it. For purposes of section 32(c) of the Act a power of attorney needs in view of the provisions of section 33 of the Act no registration but is only required to be executed before and authenticated by the Registrar. Hance an endorsement mistakenly made on such power of attorney that it was presented for registration must be ignored and does not affect the validity of subsequent authentication by the Registrar which was an independent act complete initself and valid under section 33. A decision of the Registrar under section 33(1) proviso (1) of the Indian that an applicant is suffering from bodily infirmity and is unable to attend the Registration Office or court without risk or serious inconvenience relates to a matter of more procedure and even if erroneous does not affect his jurisdiction. The finding is on a matter which is within his exclusive jurisdiction and cannot be questioned in a court of law. Jambu Prasad vs Mahammad Aftar Ali Khan (42 I.A. 22) Sharat Chandar Basu v Bijay Chand kahtab (64 I.A. 77) Ma Pwa May vs Chettiar Firm (56 I.A. 379) and Mujiibunnnissa vs Abdul Rahim (28 I.A. 15) referred to.

iminal 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. N. C. Chatterjee (H. J. Umrigar and section P. Varma with him) for the appellant. M. C. Setalvad Attorney General for India (Porus A. Mehta with him) for the respondent. 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 conviction 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 978 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 20. 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 noticed the car bearing no Indian 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 contractors 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 companion 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 come 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 979 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 nothing 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 complaint 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 conveys 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 convicted by the Magistrate and sentenced to a fine of Rs. 100 and the gold was directed to be confiscated 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 no direct evidence to show that the accused had committed 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 not constitute sufficient ground for a reasonable belief that the property was either stolen or was fraudulently obtained. He accordingly set aside the conviction and sentence and ordered the gold to be restored to the appellant. The High Court in appeal by the State did not 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 980 fraudulently obtained. The High Court did not 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 confiscation under section 517 the High Court held that it was not necessary that the property confiscated must be the property in relation to which an offence appears to have been committed but it was enough if the property is produced before the court. 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 not prepared to concede that the appellant 's conviction was right but he proceeded on the assumption that even if it was so section 517 had no application to the case and the court had no jurisdiction to pass the order of confiscation of the gold. He also urged that 'in any view of the matter the order of confiscation was not a proper order in the circumstances of this case. Section 517(1) reads thus: When an inquiry or a trial in any criminal court is concluded the court may make such order as it thinks fit for the disposal (by destruction confiscation 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 committed or which has been used for the commission of any offence. " The section on a plain reading shows that upon the conclusion of an inquiry or trial the court 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 committed or which has been used for the commission of an offence. The section also shows that the power of the court extends to destruction confiscation or delivery to any 981 person claiming to be entitled to possession of such property. Mr. Chatterjee contended that the gold after it was seized by the Police was sent to the Treasury and was never produced before the court. We do not think that the evidence on this point is clear and definite. This point does not appear to have been raised before the courts below. The High Court justified the order on the ground that the property was produced before the court and held that it was not necessary to find before passing the order that " any offence appears to have been committed " in respect of it. It is clear to us that the property was not one regarding which any offence appears to have been committed or which has been used for the commission of any offence. Now the power of the court no doubt extends to confiscation of property in the custody of the court but it is not every case in which the court must necessarily pass an order of confiscation irrespective of the circumstances of the case. It is possible to conceive of cases where the subject matter of the offence may be property which under the law relating to that offence is liable to be confiscated as a punishment on conviction. Assuming therefore that the court had jurisdiction to pass an order regarding the disposal of the gold it seems to us that the order of confiscation was not an appropriate order in the circumstances of this case. Section 517 contains a general provision for disposal of the property in the circumstances mentioned in the latter part of the section. Section 61E by itself does not empower the court to impose the penalty of confiscation and the sentence of imprisonment and fine authorized by the section is a nominal 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 not satisfactorily accounted for. It is an offence under the local Police Act and not under an Act which contains any substantive provision such as the Sea Customs Act imposing the penalty of confiscation. Confiscation is not the only mode of disposal under section 517 and is singularly 127 982 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. It was certainly open to the court 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 court was not called upon to consider any rival claims about its possession. Admittedly there was no evidence 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 court. The High Court thought that the gold was smuggled from Africa into India but assuming this to be so its confiscation under section 517 upon the existence of a mere belief required to sustain a conviction under section 61 E was palpably harsh and unreasonable. We hold therefore that the order of confiscation of gold cannot be supported. We accordingly set aside the order of confiscation and direct that the gold seized from the appellant 's possession shall be restored to him. Appeal allowed.

Under section 517 of the Code of Criminal Procedure the court is empowered on the conclusion of an enquiry or trial to make an 977 order for the disposal of any property or document produced before it or in its custody or regarding which an offence appears to have been committed or which had been used for the commission of any offence. The power of the court extends to the confiscation of the property in the custody of the court but it is not in every case in which the court must necessarily pass an order of confiscation irrespective of the circumstances of the case. Held that the confiscation of gold worth about 3 lakhs of rupees was singularly inappropriate in a case like the present where the prosecution story that the gold in question was smuggled into India from Africa was not accepted by the court and the accused was convicted for an offence under a. 61 E of the Bombay District Police Act 1890 which provides a maximum sentence of three months and a fine of Rs. 100 and which does not contain any substantial provision such as the Sea Customs Act imposing the penalty of confiscation.

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. C.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. February 11. The undisputed facts of the case are:That 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 cowardice and of not preparing search lists and was punished by demotion for ten years. On appeal; the Deputy Inspector General of Police held 788 that the respondent was guilty of cowardice but acquitted him of the other charge. By an order dated the 23rd July 1940 which was communicated to the respondent on the 29th of July 1940 the Deputy Inspector General of Police having found him guilty of cowardice 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 court 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 continuing 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 contested the claim and pleaded that the plaintiff held his service at the pleasure of the Crown and could not 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 no longer 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 no cause of action. As regards the arrears of salary it was held that the claim to it could 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 confirmed 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 no application 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 789 of the Federal Court in Tara Chand Pandit 's case(1) the correctness o15 which was not 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: (1) Whether the High Court correctly held that rule 95 above mentioned had no application to the case ? (2) Whether a suit 15or arrears of salary by a civil servant is competent in a civil court ? 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 not 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 not 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 no application 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 contrary to the (1) (2) 75 I.A. 225. (3) 75 I.A. 343. 790 provisions of section 240 (3) of the Government of India Act 1935 which provides that no person 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 no proceeding in revision or appeal. In these circumstances the enabling provisions of rule 95 had no application whatsoever to the case of the plaintiff. What happened subsequently is a matter wholly outside the contemplation of the rule. After the institution of the suit the Chief Secretary to the Government of Bihar realising the untenability of the Government 's 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 not 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 not 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 no application to the facts and circumstances of this case and that the enabling provisions of this rule did not operate as a bar to the plaintiff 's action. The next contention 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 court is again in our opinion without substance. We think that the matter is covered by the decision of the Federal Court in Tara Chand Pandit 's 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) 791 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 could only be exercised subject to the limitations imposed by the remaining sub sections of that section and that it must follow as a necessary consequence that if any of those limitations was 'contravened the public servant concerned had a right to maintain an action against the Crown for appropriate relief and that there was no warrant for the proposition that that relief must be limited to a declaration and should not 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 could be invoked that no servant of the Crown could 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 not possible to subscribe to the proposition that while a creditor of a servant of the Crown was entitled as of right to compel 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 no such right. Mr. Justice Kania as he then was in a separate but concurring judgment negatived the contention 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 considered having regard particularly to the provisions found in the Civil Procedure Code. In this connection section 60(1) and clauses (i) and (j) of the proviso and explanation (2) should be noted. Under section 60 all property belonging to the judgment debtor is liable to be attached. In stating the 792 particulars of what may not 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 not noticed in Lucas vs Lucas and High Commissioner for India(1 ) as the application was made in England and the Civil Procedure Code of 1908 did not 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 no dispute about that. If the contention 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 continues 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 connection it is not 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 not accepted the principle that the Crown is not liable to pay its servant salary (1) 793 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 Majesty 's pleasure." The learned Solicitor General contended that the decision in Tara Chand Pandit 's case(1) was no longer 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. Lall 's 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 contention. It seems that during the arguments in Lall 's case attention of their Lordships was not drawn to the decision of the Federal Court in Tara Chand Pandit 's case because the point was not directly involved therein. In that case no claim 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 not want to maintain the order of the Federal Court to remit before the (1) (2) 75 I.A. 225. 14 95 S.C.I./59 794 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 not 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 no action in tort could lie against the Crown and that such an action must either be based on contract or conferred by statute. Their Lordships approved of the judgment of Lord Blackburn in the Scottish case of Mulvenna vs 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 conclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy no matter to what service the servant may belong whether it be naval military or civil and no matter 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 no matter 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 no matter whether they have been referred to when the engagement was made or not. If these conclusions 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 not for a contractual debt must equally apply to every public servant. It also follows that this qualification must be read as an implied condition into every contract between the Crown and a public servant with the effect that in terms of their contract they have no right to their remuneration which can be (1) 795 enforced in a civil court of justice and that their only remedy under their contract lies in an appeal of an official or political kind '. " The observations made in Mulvenna vs The Admiralty(1) which is a Scottish case could not have been made if in the law of that country 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 Pandit 's case(2). It was further urged that the same view was taken by Pilcher J. inLucas vs Lucas and the High Commissioner for India(a).There the question for consideration 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 could 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 not 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 vs 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 not apply there the provisions of the Code were not noticed in that case. We are therefore of the opinion that the rule laid down by their Lordships of the Privy Council in 1. M. Lall 's case(4) without a consideration of the provisions of the Code of Civil Procedure relevant to the inquiry and without a consideration of the reasoning of the Federal Court in Tara Chand Pandit 's case(2) cannot be treated particularly because the matter was not directly involved in the suit as the final word on the subject. We are in no way bound by the decision given either in Tara Chand Pandits case(2 ) or by the (1) (3) (2) (4) 75 I.A. 225. 796 decision given by the Privy Council in I. M. Lall 's case (1). But on a consideration 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 not prevail in this country 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 vs 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 not 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 court 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 conferred on the (1) 75 I.A. 225. (2) 797 appellant by section 243 of the Government of India Act 1935 and that the respondent 's 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 respondent 's 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 respondent 's 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 Pandit 's case(1) and it was also noticed 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 now proposed 'humbly to advise His Majesty that the appeal should 'be dismissed and stating that the order as to costs would not 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 appellant 's counsel 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 copy of this letter was sent to the respondent. (1)[1947] F.C.R. 89. 798 An intimation was received by the Privy Council that the appellant did not wish to offer any further arguments on the case. The respondent also did not desire an opportunity of arguing that he should now 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 court. Their Lordships concluded the judgment with the following observations : "Their Lordships must not 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 not arise in this appeal which is from the decision of the Federal Court. If that decision is affirmed the respondent who did not himself enter an appeal cannot now 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 Pandit 's case(1). This decision therefore cannot be said to support the view contended for by the learned Solicitor General. On the other hand it must be assumed that in spite of their decision in 1. M. Lall 's 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 not reaffirm the propositions (1) (2) 75 I.A. 225. 799 laid down in that case but preferred to express no opinion 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 no rules or regulations can alter or modify that; nor can section 60 of the Code of Civil Procedure enacted by a subordinate legislature be used to construe an Act of a superior legislature. It was further suggested that some meaning must be given to the words "holds office during His Majesty 's pleasure" as these words cannot be ignored and that they bear the meaning given to them by the Privy Council in 1. M. Lall 's case (1). In our judgment these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not 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 no relation or connection 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 contract has been made with the civil servant the Crown is not bound thereby. In other words civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal that is that they cannot claim damages for premature termination of their services. [See Fraser 's Constitutional Law page 126; Chalmer 's Constitutional Law page 186; Shenton vs Smith (2); Dunn vs The Queen(3) ]. This rule of English law has not been fully adopted in section 240. Section 240 itself places restrictions (1) 75 I.A. 225. (2) 234. (3) 800 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 court. As pointed out earlier in this judgment there is no warrant 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 commencement of the Act shall continue in force until altered repealed or amended by a competent legislature. Sections 100 to 104 of the Government of India Act. 1935 confer legislative powers on the different legislatures in the country. Item 4 of the concurrent 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 conferred 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 could be granted in such actions. These provisions of the Government of India Act 1935 stand by themselves independently of what is contained in section 240 and therefore no question 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 compensation has its origin in the feudal theory that the Crown cannot be sued by its vassals or subjects in its 801 own courts. From this theory the common law lawyers in England deduced two rules namely (1) that the King can do no wrong and (2) that as a matter of procedure no action can lie in the King 's courts against the Crown. (See Ridge 's Constitutional Law eighth edition page 295 and Fraser 's Constitutional Law page 164). The subject in this situation could 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 not 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 vs 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 Queen 's Bench in Ireland. (Robertson 's 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 country 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 contract or in tort may respect of the claim bring a suit against the (1) [1869] Times News May 29. 802 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 contract. Section 65 of the Government of India Act 1858 conferred 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 could have done against the said company" (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 not 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 could be enforced only by a petition of right. As regards torts of its servants in exercise of sovereign powers the company was not and the Crown in India was not liable unless the act had been ordered or ratified by it. Be that as it may that rule has no application 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 not based on tort but is based on quantum meruit or contract and the court 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 803 hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of a decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant though his creditor can take it can be based or substained. What could be claimed in England by a petition of right can be claimed in this country by ordinary process. For the reasons given above we are of the opinion that this appeal is without force and we accordingly dismiss it with costs. Appeal dismissed.

Held that the rule of English law that a civil servant cannot ' maintain a suit against the State or against the Crown for the 787 recovery of arrears of salary does not prevail in India and it has been negatived by the provisions of the statute law in India. Section 240 of the Government of India Act 1935 places restrictions and limitations on the exercise of the pleasure of the Crown and these restrictions must be given effect to. They are imperative and mandatory. Therefore whenever there is a breach of restrictions imposed by the statute ' by the Government or the Crown the matter is justiciable and the aggrieved party is entitled to suitable relief at the hands of the court. Government servants are entitled to relief like any other person under the ordinary law and that relief must be regulated by the Code of Civil Procedure. Punjab Province vs Pandit Tara Chand ([1947] F.C.R. 89) approved. High Commissioner OF India and Pakistan vs I.M. Lall ([1948] L.R. 75 I.A. 225) distinguished.

Appeals Nos. 130 and 131 of 1951. Appeals from. the Judgment and Decrees dated the 12th August 1948 of the High Court of Judicature at Calcutta in Appeals from Original Decrees Nos. 214 of 1942 and 231 of 1943 arising from the Decrees dated the 16th June 1942 of the Court of the Subordinate Judge Burdwan in Money Suit No. 261 of 1932/ Miscellaneous Case No. 132 of 1941 and Money Suit No. 262 of 1932/Miscellaneous Case No. 131 of 1941. N. C. Chatterjee (A. K. Dutt and Sukumar Ghose with him) for the appellant. Manmohan. Mukherjee and P. K. Chatterjee for respondent No. 1. 989 1954. March 12. The Judgment of the Court was delivered by MUKHERJEA J. These two analogous appeals which are between the same parties and involve the same points in dispute are directed against a common judgment of a Division Bench of the Calcutta High Court dated the 12th of August 1948 by which the learned Judges affirmed in appeal the decision of the Subordinate Judge of Burdwan passed in two analogous proceedings under section 36 of the Bengal MoneyLenders Act. The facts material for our present purpose lie within a narrow compass and may be stated as follows: The principal respondents are certain idols represented by their managing Shebait Ram Govinda Roy. The idols are the family deities of the Roys of Bonpash in the district of Burdwan and the number of Shebaits being very large there is a recognised usage in this family that the seniormost member amongst the descendants of the founder acts as the managing Shebait and it is he who manages the endowed properties and looks after the due performance of the worship of the idols. It is not disputed by the parties that it is within the competence of the managing Shebait to borrow money to meet the necessities of the idols and to execute such documents as may be necessary for that purpose. Admittedly Adwaita Charan Roy was the managing Shebait of the deities from 1926 to 1930 and as Shebait he executed a Hatchita in favour of one Nanitosh Chakraborty some time in April 1928 on the basis of which he received advances of money from time to time from the latter. The last entry in the Hatchita was made in March 1929 and the total amount borrowed up to that date came up to Rs. 3 801. Adwaita died in March 1930 and after his death Satish Chandra Roy became the managing Shebait and continued to act as such till his death in 1940. There was an adjustment of accounts between Nanitosh the creditor in whose favour the Hatchita was executed and Satish Chandra the managing Shebait some time in October 1931 and a sum of Rs. 5 068 having been found due to the 128 990 creditor Satish Chandra gave him a renewed Hatchita for that amount. It appears that while Adwaita was still the managing Shebait a suit was instituted by some of his co Shebaits to remove him from his office and pending the hearing of the suit Ramjanaki Roy another co Shebait was appointed a Receiver of the debutter property by the court. With the permission of the court Ramjanaki borrowed from the same Nanitosh Chakraborty three sums of money on three different promissory notes executed respectively on the 27th September 1929 1st October 1929 and 14th January 1930. The suit was eventually dismissed for non prosecution after Adwaita 's death. Nanitosh died in 193 1 and in 1932) his two sons Aditya and Dhirendra who figure as respondents 14 and 15 in these appeals instituted two money suits against Satish Chnandra the managing Shebait in the Court of the Subordinate Judge Burdwan being Money Suits Nos. 261 and 262 of 1932 for recovery of the moneys due in respect of the Hatchita and the promissory notes mentioned aforesaid. Both the suits were decreed on the basis of a compromise dated the 23rd July 1933 and two consent decrees were passed one for a sum of Rs. 5 800 and the other for Rs. 2 200 both payable in sixteen yearly instalments with a further stipulation that in default of payment of any one of the instalments the whole or balance of the decretal amount would become due and payable in each. The instalments not having been paid in either of the cases both the decrees were put into execution. In Execution Cases Nos. 76 and 77 of 1936 arising out of Money Suits Nos. 261 and 262 of 1932 the properties mentioned in Schedule Ka in each case were put up to sale and they were purchased ostensibly by the two decreeholders Aditya and Dhiren. Three years later Execution Cases Nos. 17 and 18 of 1939 were started again in connection with the said decrees and this time the properties specified in Schedule Kha were attached and put up to sale and they were also purchased by the Chakraborty decreeholders. Finally in Execution Cases Nos. 163 of 1939 and 5 of 1940 the properties described in Schedule GA were sold and 991 they were knocked down to Srimati Oramba Sundari Dasi who figures as the appellant in the appeals before us and who it may be noted is the wife of Aghore Nath Roy a son of Adwaita the former managing Shebait of the debutter estate. Subsequently the decreeholders who purchased Ka and Kha Schedule properties sold them by a registered Kobala to the said Oramba Sundari Dasi on the 26th of July 1940. The result therefore was that the properties described in the three Schedules came to vest in Oramba Sundari the wife of Aghore Nath Roy. On the 28th August 1941 the deities represented by some of the Shebaits filed two applications under section 36 (6) (a) (ii) of the Bengal Money Lenders Act praying for the reopening of the two compromise decrees mentioned aforesaid and the passing of. new installment decrees in accordance with the provisions of the Act. There were prayers also for restoration. to the deities of all the properties mentioned in Schedules Ka Kha and Ga which were purchased in execution of the decrees. The principal opposite parties to these proceedings were the Chakraborty decreeholders Oramba Sundari the ostensible purchaser and Aghore Nath Roy her husband. The allegations in the applications in substance were that the Chakrabortys were mere benamidars for Aghore Nath Roy who was the real lender and the real decreeholder in both these suits. It was alleged that Aghore Nath Roy purchased these properties in the benami of the decreeholders in two out of the three execution proceedings and in the benami of his wife Oramba Sundari in the third. The subsequent Kobala executed by the Chakrabortys in favour of Oramba . Sundari was also asserted to be a fictitious conveyance made in favour of Aghore Nath Roy in the name of his wife. In these circumstances the judgment debtors prayed that they were entitled to have the two compromise decrees reopened and on the passing of new instalment decrees to have the properties which were in possession of the real decreeholder restored to the deities in terms of section 36(2)(c) of the Bengal Money Lenders Act. The trial judge decided 992 in favour of the judgment debtors and granted their prayers in both the applications. Orders were made for reopening of the decrees and making of fresh decrees in their places in accordance with the provisions of the Bengal Money Lenders Act. Direction was also given for restoration of the properties mentioned in Schedules Ka Kha and Ga to the deities under the provision of section 36(2)(c). Against this decision Oramba Sundari took two appeals to the High Court of Calcutta and the learned Judges who heard the appeals affirmed the decision of the court below and dismissed both the appeals. Oramba Sundari has now come up in appeal to this court on the strength of a certificate given by the High Court under sections 109 (a) and 110 of the Civil Procedure Code. Mr. Chatterjee who appeared in support of the appeals has not challenged before us the findings of fact concurrently arrived at by the courts below viz. that the appellant Oramba Sundari was a mere benamidar for her husband Aghore in respect of the purchase of Ga Schedule properties in court sale and also that the Kobala executed by the Chakrabortys in her favour on July 26 1940 was a fictitious transaction. The point which he has pressed for our consideration is that in a proceeding under section 36 of the Bengal Money Lenders Act it is not open to the court to go behind the decree and launch an enquiry as to whether the decreeholders on record were in fact benamidars for another person. In other words the contention is that even if Aghore was proved to have advanced the money upon which the Chakrabortys obtained the decrees in reopening the decrees and in working out the rights of the parties in accordance with the provisions of the Bengal Money Lenders Act the court could treat the Chakrabortys alone as the decreeholders. For a proper determination of this point it is necessary to examine the scope of section 36 of the Bengal Money Lenders Act and the reliefs which the Court is competent to grant in terms of that section. Section 36 of the Bengal Money Lenders Act sets out the various powers which the court can exercise 993 if it has reason to believe that the exercise of one or more of the powers will give relief to the borrower as contemplated by the Act; and one of the powers which is mentioned in clause (a) of sub section (1) of the section is to reopen any transaction and take an account between the parties. The drafting of section 36 is indeed obscure and somewhat clumsy but it is clear as the Privy Council (1) has pointed out that the power of reopening a transaction as contemplated by the section extends to reopening of decrees as well. Sub section (2) of section 36 contains detailed provisions as to what the court may or may not do when a decree is reopened. It cannot be disputed that the court reopens a decree under section 36(2) only for the purpose and so far as it is necessary to give relief to the borrower in the manner provided for in the Act namely to release him from all liability for interest in excess of the limits prescribed by section 30 of the Act. A new decree is passed only for the purpose of substituting the method of accounting sanctioned by the Act for the calculations upon which the original decree was passed and to give an opportunity to the judgment debtor to pay the decretal dues thus ascertained by instalments. But save and except for these the old decree as well as the adjudications made thereunder are not wiped out and the parties are not relegated to their rights and liabilities under the original cause of action (2). How the rights of the parties are to be adjusted and worked out when a decree hat; been reopened has been dealt with exhaustively in the several clauses of section 36 (2) of the Bengal Money Lenders Act and an examination of these clauses makes it clear to our minds that an enquiry as to whether the decree holder was in fact a benamidar for another person in respect of the decree does not come within the purview of these provisions. Clause (a) of section 36(2) empowers the court to pass a new decree in accordance with the provisions of the Act. Obviously this new decree is to be passed in favour of the original decreeholder and only the calculations upon which the old (1) Vide Renula vs Manmatha 72 I.A. 156. (2) Vide Bank of Commerce Ltd. vs Amulya Krishna Babu Roy Chowdhury 994 decree was based would be changed by substituting the statutory method of accounting in place of what rested upon the contract between the parties. Clauses (b) and (C) contemplate cases where properties have been sold in execution of the original decree. If the purchaser is the decreeholder himself and he is in possession of the property when the decree is reopened it is incumbent upon the court to order restoration of these properties to the judgment debtor under clause (c). If on the other hand the properties had been acquired by strangers either by purchase at the execution sale or from the decreeholder purchaser their interests would be protected if they have acquired these rights bona fide as contemplated by clause (b). Under clause (d) the court has to order the payment of the decretal amount in such instalments as it thinks proper and clause (e) further imposes a duty on the court to give a direction in such cases that if there is default in the payment of any one of the instalments the properties restored to the judgment debtor under clause (e) would be put back into the possession of the decreeholder. It is quite true that the object of restoring possession of the properties sold in execution of the decree to the judgment debtor is to enable the latter to pay off the decretal dues but it is to be remembered that the sale itself is not annulled and in case of default in payment of any of the instalments the properties are returned to the decreeholder purchaser. We agree that if the purchaser is a mere benamidar for the decreeholder clause (b) subsection (2) of the section would not afford protection to him in any way. He could not be regarded as a person other than the decreeholder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to clauses (b) and (c) therefore the court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale or the person who purports to have acquired an interest therein under a subsequent transfer from the decreeholder purchaser has bonafide acquired such rights within the meaning of clause (b). But we do not agree with the learned 995 Judges of the High Court that in making a new decree under clause (a) of section 36(2) and giving the judgment debtor consequential relief under clause (c) of the sub section the court can at all enter into the question as to whether the decreeholder on record is himself a benamidar for another person in respect of the decree. Such enquiry it seems to us is altogether outside the purview of the different clauses of section 36(2) of the Bengal Money Lenders Act. These provisions do not recognise any other decreeholder than the one in whose favour the original decree was passed. It is between him and the judgment debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree and he alone would be compelled to restore the properties which he had purchased in execution proceedings. None but the decreeholder on record can give a valid discharge or record satisfaction of the decree. This being the position it is altogether immaterial in our opinion that it was Aghore the husband of the appellant who really advanced the money upon which the decrees were obtained. We must treat the Chakrabortys and the Chakrabortys alone as the decreeholders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Ka and Kha are concerned it is not disputed that they were purchased by the decreeholders themselves. No price was actually paid by the decreeholders but the sale proceeds were set off against the decretal dues. The decreeholders therefore must be deemed to be the purchasers of these properties within the meaning of clause (c) of section 36(2); and as the subsequent conveyance of these properties in favour of Oramba Sundari the appellant has been held by both the courts below to be a fictitious transaction we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under clause (b) of section 36(2). With regard to these properties therefore the order for restoration of possession made by both the courts below should stand. As regards Ga 996 Schedule properties however Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decreeholders and there is no proof of the decreeholders being in possession of the same either by themselves or through Oramba Sundari. In these circumstances clause (e) of section 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We therefore allow the appeal in part and set aside the order for restoration of possession made by the courts below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand. We make no order as to costs of these appeals. Appeal partly allowed.

Held that in a proceeding under section 36 of the Bengal Money Lenders Act 1940 it is not competent to the court to go behind the decree and embark on an enquiry as to whether the decree holders on record were in fact benamidars for another person. Scope of section 36 of the Act discussed. Renula vs Manmatha (72 I.A. 156) and Bank of Commerce Ltd. vs Amulya Krishna Basu Boy Chowdhury ([1944] F.C.R. 126) referred to.

Appeal No. 136 of 1952. Appeal under articles 132(1) and 133(1)(c) of the Constitution of India from the Judgment and Order dated the 19th October 1951 of the High Court of Judicature for Rajasthan at Jodhpur in D. B. Miscellaneous Writ Petition No. 3/1951. K. section Hajela Advocate General of Rajasthan for the appellant. K. N. Aggarwal and P. C. Agarwal for the respondents. M. C. Setalvad Attorney General for India (Porus A. Mehta with him) for the intervener (the Union of India). March 12. The Judgment of the Court was delivered by GHULAM HASAN J. The question involved in this appeal relates to the constitutional validity of clause 25 of the Rajasthan Foodgrains Control Order 1949 hereinafter called the Control Order and arises in the following circumstances : The respondents who are grain merchants at Raniwara in Jodhpur Division Rajasthan State held 984 licences for dealing in foodgrains. They held considerable stocks of bajra in the ordinary course of business but on October 7 1950 their stocks were frozen by the Deputy Commissioner Civil Supplies Jodhpur through the Sub Divisional Officer. It is not disputed that the market price then prevailing was about Rs. 18 per maund. The State however requisitioned the stocks at the rate. of Rs. 9 per maund and sold them at Rs. 13 5 4 per maund. The respondents claimed that they had purchased the bajra at the prevailing market rate of Rs. 17 to Rs. 18 per maund. They filed a petition on January 23 1951 for the issue of a writ under article 226 of the Constitution before the High Court of Rajasthan contending that clause 25 of the Control Order was void under articles 14 19 (1) (g) and 31 (2) of the Constitution. The High Court held that clause 25 was void inasmuch as it is a restriction upon the fundamental right of the respondents to carry on business under article 19 (1)(g) of the Constitution that the restriction is not reasonable and is not saved by clause (6) of article 19. The High Court further held that clause 25 was also hit by article 31 (2) as fair compensation had not been fixed by the law for the acquisition of the foodgrains. As the grains had already been disposed of by the Government the High Court holding that Rs. 17 a maund was fair compensation directed that the State of Rajasthan shall pay compensation at that rate. The State has preferred.the present appeal on a certificate granted by the High Court. The impugned clause 25 is as follows: " 25. Notwithstanding anything contained in this Order the Commissioner the Director the Deputy Commissioner the Nazim the Assistant Commissioner the Sub Divisional Officer the Senior Officer of a jurisdictional Thikana the enforcement officer 'or such other officer as may be authorized by the Commissioner in this behalf may freeze any stocks of foodgrains held by any person whether in his own behalf or not and such person shall not dispose of any foodgrains out of the stock so freezed except with the permission of the said authority. Such stocks shall 985 also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement. " It is not disputed that bajra is an essential commodity within the meaning of the Essential Supplies Act (No. XXIV of 1946). The question that arises for consideration is how far and in what respects clause 25 can be said to be void as violating Part III of the Constitution. The clause authorises the Commissioner and various other authorities mentioned therein and such other officers as may be authorised by the Commissioner to freeze any stock of foodgrains held by a person. It is true that the authority of the Commissioner to delegate his powers to any other officer at his discretion is expressed in somewhat wide terms but we need not decide that per se would be sufficient to invalidate the clause. Admittedly that :power has not been exercised in the. present case. Nor do we think that the power to freeze the stocks of foodgrains is arbitrary or based on no reasonable basis. It is not disputed that the clause does not state in express terms the circumstances in or the grounds on which the stocks may be freezed but it should be read along with section 3 of the Essential Supplies Act which lays down the policy for controlling the production supply and distribution of essential commodities. Section 3 in so far as it is material says: " The Central Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices may by order provide for regulating or prohibiting the production supply and distribution thereof Sub section (2) lays down: " Without prejudice to the generality of the powers conferred by sub section (1) an order made thereunder may provide. . . . (a). . . . . (b). . . . . (c). . . . . 986 (d) for regulating by licences permits or otherwise the storage transport distribution disposal acquisition use or consumption of any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; We are clear therefore that the freezing of stocks of foodgrains is reasonably related to the object which the Act was intended to achieve namely to secure the equitable distribution and availability at fair prices and to regulate transport distribution disposal and acquisition of an essential commodity such as foodgrains. We do not agree with the High Court that the first portion of clause 25 is void under article 19 (1) (g). The last portion of clause 25 to the effect that such stocks shall also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement " however stands on a different footing. The clause as it is worded leaves it entirely to the Government to requisition the stocks at any rate fixed by it and to dispose of such stocks at any rate in its discretion. This obviously vests an unrestrained authority to requisition the stocks of foodgrains at an arbitrary price. In contrast with this provision we may refer to clauses 23 and 24 of the Control Order. They are as follows: " 23. The Commissioner or the Director and the Deputy Commissioner or the Senior Officer of a jurisdictional Thikana with the approval of the Director may fix the ceiling prices at which foodgrains in any area to which this order applies shall be sold and may from time to time vary such prices." "24. The Commissioner the Director the Deputy Commissioner the Nazim the Assistant Commissioner the Sub Divisional Officer or the Senior Officer of the jurisdictional Thikana as the case may be may direct any person or persons in possession whether on his own behalf or not of any foodgrains to sell such foodgrains or part thereof to any person or persons at any 987 specified place and at such price as may be fixed under clause 23. " It appears from these clauses that while the authorities may fix the ceiling price at which foodgrains should be sold in the market by the dealers and may direct any person in possession of foodgrains to sell them to any other person at the price fixed under clause 23 there is no such limitation upon the power of the Government to acquire the stocks. In other words it will be open to the Government to requisi tion the stocks at a price lower than the ceiling price thus causing loss to the persons whose stocks are freezed while at the same time the Government is free to sell the same stocks at a higher price and make a profit. It is obvious that the dealer whose stocks are thus freezed will stand to lose considerably and will be unable to carry on his trade or business at the prevailing market price. No dealer will be prepared to buy foodgrains at the market price when he knows that he is exposed to the risk of his stocks being freezed any moment and the same being requisitioned at the procurement rate. The present is a typical case which illustrates how the business of a grain dealer can be paralyzed for it is admitted that while the Government procurement rate was Rs. 9 a maund the market rate was Rs. 17 or Rs. 18 per maund with the result that the stock holder suffered nearly cent. per cent. lose while the Government made a profit of Rs. 4 5 4 per maund on the stock requisitioned. We hold therefore that the last portion of clause 25 places an unreasonable restriction upon the carrying on of trade or business and is thus an infringement of the respondent 's right under article 19(1)(g) of the Constitution and is therefore to that extent void. The same result follows if the impugned clause is examined in the light of article 31(2). The clause by vesting the power in the authority to acquire the stocks at any price fails to fix the amount of the compensation or specify the principles on which the compensation is to be determined. The clause leaves it entirely to the discretion of the executive authority to fix any compensation it likes. The High Court 988 rightly held that the clause offended against article 31(2). For the foregoing reasons we hold that the last portion of clause 25 is void and dismiss the appeal with costs. Appeal dismissed. Agent for the appellant and for the intervener: R. H. Dhebar.

Held that the first portion of cl. 25 of the Rajasthan Foodgrains Control Order 1949 relating to the freezing of stocks of foodgrains is not void under article 19(1)(f) of the Constitution because such freezing of stocks of foodgrains is reasonably related 983 to the object which the Act was intended to achieve namely to secure the equitable distribution and availability at fair prices and to regulate transport distribution disposal and acquisition of an essential commodity such as foodgrains. Hold that the last portion of cl. 25 to the effect that " such stocks shall also be liable to be requisitioned or disposed of under orders of the said authority at the rate fixed for purposes of Government procurement " is void both under article 19(1)(f) and article 31(2) of the Constitution: (i)because the clause places an unreasonable restriction upon the carrying on of trade or business and is thus an infringement of the respondents ' right under article 19(1)(f) of the Constitution; (ii)because the clause by vesting the power in the authority to acquire the stocks at any price fails to fix the amount of compensation or specify the principles on which it is to be determined and leaves it entirely to the discretion of the executive authority to fix any compensation it likes and is thus hit by article 31(2) of the Constitution.

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 (section 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 contest 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. 819 Thirteen candidates filed nomination papers among them the petitioner. Of these six contested 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 Thaware 's nomination for the reserved seat on the ground that he was not 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 not believe in caste and alternatively that it forms a separate caste in itself The contention was that when Gangaram Thaware joined the Panth he ceased to be a member of the Mahar caste ' The objection succeeded and his nomination was rejected. The nomination 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 nor the general seat. Jasani 's 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 contract for the supply of goods to the Central Government. The Election Tribunal held that the rejection of Gangaram Thaware 's nomination was improper as he continued to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava. Panth. It also held that Chaturbhuj Jasani had a contract with the Central Government so he was disqualified. Accordingly it set aside the whole election. We will deal with Chaturbhuj Jasani 's election first. Section 7(d) is in these terms : "A person shall be disqualified for being chosen as and for being a member etc. * * * * 820 (d)if by himself he has any share or interest in a contract 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 contract 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 contract for the supply of goods within the meaning of the section. It was said that the contract was embodied in four letters. We do not intend to analyse these letters in detail. It is enough to say that in our opinion no binding engagement can be spelt out of them except to this extent : Moolji Sicka & Company undertook to sell to the canteen contractors only through the Canteen Stores and not direct and undertook to pay a commission on all sales. This in our opinion constituted a Continuing arrangement under which the Canteen Stores i.e. the Government would be entitled to the commission 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 continuing one. In our opinion it continued in being even after that and the mere fact that there was no occasion for any claim subsequent to the settlement does not indicate that it was no longer alive. But except for this the; letters merely set out the terms on which the parties were ready to do business with 821 each other if and when orders were placed and executed. As soon as an order was placed and accepted a contract arose. It is true this contract would be governed by the terms set out in the letters but until an order was placed and accepted there was no contract. Also each separate order and acceptance constituted a different and distinct contract: see Rose and Frank Co. vs J. R. Crompton & Bros. Ltd.(1) The crucial dates with which we are concerned are 15th November 1951 the last date for putting in the nominations 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 not be considered 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 nomination 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 contract or a series of contracts for the supply of goods to the Central Government. He had this interest because the contracts 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 contract 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 correct by both sides. The following extracts from this statement show that Moolji Sicka & Company had an interest in a series of contracts for the sale of bidis to the Canteen Stores at and between the relevant dates. (1) ; 822 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 8;195126 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 1951:1 887 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 contracts 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 not 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 not paid for till after 14th February 1952. It was argued that there is nothing to show that. the goods were not 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 823 executed their part of the contracts before the two crucial dates the disqualification would not apply. That raises these questions: (1) Does a person who has fully executed his part of a contract continue to have an interest in it till the goods are paid for ?; and (2) were these contracts fully executed so far as Moolji Sicka & Company 's part was concerned? The parties are not agreed about this so it will now be necessary to examine their letters in detail to determine the terms of the various contracts. The correspondence 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 contractors as and when ordered. The value of the goods so supplied was to be recovered from the contractors direct and the Canteen Stores were to be informed of the sales and were to be paid a certain commission. This led to some friction and in their letter of 30th March 1951 the Canteen Stores complain that information about some of the sales to the contractors had been suppressed with the result that the Canteen Stores lost their commission. 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 no dealings with the contractors direct except to supply them with the goods ordered by the Canteen Stores; then ' they said there would be no complaint 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. 824 The order dated 17th April 1951 to which we have referred above is a sample. This was considered unsatisfactory and it was felt that a change was called for. Moolji Sicka & Company 's letter of 24th April 1951 shows that their complaint was that the Canteen Stores did not 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 now 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 conclusions 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. concerned they said that the system could 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 could 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. 825 These proposals were sent to Moolji Sicka & Company for confirmation. It will be seen that the ' letter makes four proposals: (1)That so far as Moolji Sicka & Company were concerned " The Direct Supply System " should be terminated at once though so far as other manufacturers were concerned it should continue in force for some time longer; (2)That in its place the Calcutta Bombay and Delhi Depots were to be supplied under a new system called the " Consignment System "; (3)That the Pathankot and Srinagar Depots were to be supplied under another new system called the Outright Purchase System "; (4)That during the "transition period" the "Direct Supply System" was to continue 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 confirmed certain modificatioins which Moolji Sicka & Company proposed. They were as follows: (1)Regarding the " Transition Period " they said" "We are pleased to note 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. (2) Regarding the new proposals under the heading Future Business Relations Moolji Sicka & Company said "Goods sent to your depot on consignment 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 consignment basis will be discontinued in about six months ' time. " 107 826 (3) 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 concluded " Upon receiving your confirmation 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 compensation for breach of the agreement under which Moolji Sicka & Company had agreed not to sell to the Canteen Contractors without paying the Canteen Stores a commission. 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 not 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: (1) They accepted Moolji Sicka & Company 's suggestion that when the Direct Supply System was abolished the abolition would apply to all suppliers of bidis. (2) As regards the " Consignment Account System they did not 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 not be necessary to place any of Moolji Sicka & Company 's stocks in their depots. 827 (3) They wanted a six months ' guarantee period in place of three months. The letter concludes "Although under the system of provisioning adopted by us and as explained to you during our discussions it may not be that we shall at any time have any stocks surplus to our requirements or stocks which have not been disposed of within the guarantee period but should there be any solitary occasions will you please confirm that you will replace Such stock with fresh stock without any cost to us? We await your agreement by return. " They also said "We now await your cheque for Rs. 7 500. Moolji Sicka & Company replied on 26th July 1951 and commenced by saying " We agree to all you have said in page one of your letter under reply. " Regarding the guarantee they said they could not 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 concluded "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 could be returned within six months to prevent their deterioration. They explain that this is in the interests of the 'manufacturer because (1) it will not 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 not stay in our depots and in the stalls of our canteens and contractors long enough to sell and hence our depots will always be anxious to 828 return these stocks. The result will be obvious. Your sales will be lower. They continue " We therefore consider 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 not moving will be too short. " They conclude by saying that they hope Moolji Sicka & Company will agree to the six months. Now it will be seen that all this correspondence related to the proposals about the " Consignment System " which were first mooted on 11th July 1951. Moolji Sicka & Company complained on 24th April 1951 that the Canteen Stores were not 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 course 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 consignments for sale on the " pay as we sell " basis. We say "obvious" because the manufacturers could use the stale tobacco by re curing and blending it or could use it for other purposes provided it was not too far gone. The proposal therefore was that the Canteen Stores were to keep stocks of Moolji Sicka & Company 's 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 829 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 no question of the sales being lower could arise. In the case of an outright sale the sale would be complete when the order was executed and except for bidis found to be defective due to manufacture Moolji Sicka & Company would have no further concern with them. The sentences the goods may be taken back by you and replaced and " should we find them not moving " can only refer to these proposals about the "Consignment System " In any case it certainly includes this system. Moolji Sicka & Company 's 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 now 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 "now" and "adequate" relate to the dispute which started on 24th April 1951 when Moolji Sicka & Company complained that the Canteen Stores were not keeping adequate.stocks of their bidis in their depots. The subsequent correspondence 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 continue. That meant that there would be two systems in force for a time in certain depots: the "Consignment 830 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 continued to attach to all contracts for consignment to the Calcutta Bombay and Delhi depots made between 9th August 1951 and 31st October 1951. The tabular statement shows that the following contracts for consignment 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 contained 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 comes to Rs. 28 444 2 3. The obligations under these several contracts continued from 1st April 1952 to 18th April 1952. It was argued that assuming that to be the case then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under the guarantee clause. We are unable to accept such a narrow construction. This term of the contract whatever the parties may have chosen to call it was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each 831 condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations 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 contract for the supply of goods. It is true they are replacements but a contract 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 contract by placing the goods on rails before 15th November 1951 we are of opinion that the contracts were not at an end until the vendors were paid and the contracts were fully discharged. The words of the sections are "if. he has any share or interest in a contract for the supply of goods to. . the appropriate Government. " There can be no doubt that these various transactions were contracts and there can equally be no doubt that they were contracts for the supply of the goods. Whether they were contracts for the supply of goods to the Government is a matter which we shall deal with presently. But we have no doubt that they were contracts for the supply of goods. The question then is does a contract for the supply of goods terminate when the goods are supplied or does it continue in being till payment is made and the contract is fully discharged by performance on both sides 9 We are of opinion that it continues in being till it is fully discharged by performance on both sides. It was contended on the strength. of certain observations in some English cases that the moment a contract is fully executed on one side and all that remains is to receive payment from the other then the contract 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 832 have to bring an action to establish his claim to payment. The existence of the debt depends on the contract and cannot be established without showing that payment was a term of the contract. It is true the contractor might abandon the contract and sue on quantum meruit but if the other side contested and relied on the terms of the contract the decision would have to rest on that basis. In any case as we are not bound by the dicta and authority of those cases even assuming they go that far we prefer to hold that a contract continues in being till it is fully discharged by both sides: see the observations of Gibson J. in O 'Carroll vs Hasting8(1). To use the language of O 'Brien L.C.J. in that case at page 599 these contracts have not been "merged abandoned rescinded extinguished or satisfied; and if any demur was made as to payment before payment was actually made he could have sued upon the contract specially; or if he sued for work done at the request of the defendants the contract 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 contend that a man is not concerned in the contract or security by which he can enforce payment. " The same view was taken by Costello J. in an Indian case in Satyendrakumar Das vs 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 not the same as ours. The leading case appears to be Royse vs Birley(3 ). But the decision turned on the language of the English statute which the learned Judges construed to mean that the contract must be executory on the contractor 's part before the English Act can apply. Tranton vs Astor(4) follows the earlier ruling. The statute with which Darling J. was dealing (1) at 608. (2) I.L.R. from p. 193 onwards. (3) (4) 833 in Cox vs Truscott(1) is nearer the language of our Act. He hesitatingly proceeded on the debtor and creditor basis. We need not 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 contracts 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 contracts 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 contracts. 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 contention was that as these contracts were not 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 not 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 vs Secrtary of State(2) ruled that contracts 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 correspondence or orally. Secretary of State vs Bhagwandas(3) and Devi Prasad Sri Krihhna Prasad Ltd. vs Secretary of State(1) held they could be made by correspondence. Secretary of State V. O.T. Sarin & Company(1) took an intermediate vie * and held that though contracts in the prescribed form could not be enforced by either side (1) (4) A.I.R. 1941 All. 377. (2) A.I.R. 1937 Bom. 449 451. (5) I.L.R. 11 Lah. (3) A.I.R. 1938 Bom. 108 834 a claim for compensation under section 70 of the Indian Contract Act would lie. Province of Bengal vs section L. Puri(1) took a strict view and held that even letters headed "Government of India" did not comply with the rule in section 175 (3) of the Government of India Act 1935. The Federal Court was called upon to construe 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 not mandatory and the same view was taken of article 166 (1) of the present Constitution by this court in Dattatreya Moreshwar Pangarkar vs 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 not be called in question on the ground that it is not 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 not to invalidate orders and instruments otherwise valid. Article 299(1) does not contain a similar clause so we are unable to apply the same reasoning here. In our opinion this is a type of contract 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. vs The King. Emperor (3)and at the same time protects Government. We feel that some reasonable meaning must (1) (2) ; at 632 633. (3) at 156 157 835 be attached to article 299(1). We do not think the provisions were inserted for the sake of mere form. We feel they are there to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded. On the other hand an officer entering into a contract on behalf of Government can always safeguard himself by having recourse to the proper form. In between is a large class of contracts probably by far the greatest in numbers which though authorised are for one reason or other not in proper form. It is only right that an innocent contracting party should not suffer because of this and if there is no other defect or objection we have no doubt Government will always accept the responsibility. If not its interests are safeguarded as we think the Constitution intended that they should be. In the present case there can be no doubt that the Chairman of the Board of Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned. There can equally be no doubt 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 contracts were not in proper form and so because of this purely technical defect the principal could not 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 contracts often of a petty nature and sometimes in an emergency cannot contract orally or through correspondence and that every petty contract must be effect ed by a ponderous legal document couched in a particular form. it may be that Government will not be bound by the contract in that case but that is a very different thing from saying that the contracts as such are void and of no effect. It only means "that the principal cannot be sued ; but we take it there would 836 be nothing 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 vs Cavaly Venkata Narrainapah(1). We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been sued on them by reason of article 299(1). Now section 7(d) of the Representation of the People Act does not require that the contracts at which it strikes should be enforceable against the Government; all it requires. is that the contracts should be for the supply of goods to the Government. The contracts 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 conflict 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 not to ratify the contracts) as when there is none. In our opinion the Election Tribunal was right in disqualifying Chatturbhuj Jasani. We now turn to Gangaram Thaware. He stood as a Scheduled Caste candidate and his nomination was rejected on the ground that he did not 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 controversy and we have been presented with many conflicting 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 none but (1) 8 M.I.A. 529 at 554. 837 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 " now" (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 no serious 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 contacts with their caste people and marry among them. Similar views are expressed by Bal Krishna Mohanubhav Shastri. But we are not really concerned 'with their theology. What we have to determine are the social and political consequences of such conversions and that we feel must be decided in a common sense practical way rather than on theoretical and theocratic grounds. Conversion brings many complexities in its train for it imports a complex composite composed of 'many ingredients. Religious beliefs spiritual experience and emotion and intellectual conviction mingle with more material considerations 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 conversion only nominal. There is no clear out dividing line and it is not a matter which can be viewed from only one angle. 838 Looked at from the secular point of view there are three factors which have to be considered: (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 no reason to outcaste or ex communicate the convert and the individual himself desires and intends to retain his old social and political ties the conversion is only nominal for all practical purposes and when we have to consider 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 convert from its fold if he does not adhere to its tenets but it can hardly claim the right to interfere in matters which concern the political rights of the old body when neither the dld body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion 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 convert to Christianity apply here: not of course the details of the decision but the broad underlying principle. In Abraham vs Abraham(1) their Lordships say: " He " (the convert) " 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 notwithstanding he has renounced the old religion. " The only modification here is that it is not 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. 839 renounced because here the right we are considering is the right of the old body the right conferred 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 convert from the trammels of the Hindu law but it does not of necessity involve any change of the rights or relations of the ' convert in matters with which Christianity has no concern such as his rights and interests in and his powers over property. The convert though not bound as to such matters either by the Hindu law or by any other positive law may by his course of conduct after his conversion 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 nothing 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 no rigid adherence to them among his followers in later years. They have either changed their views or have not been able to keep a tight enough control over converts who join them and yet choose to retain their old caste customs and ties. We need not 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 converts as one of themselves despite the conversion which for all practical purposes is only ideological and involves no change of status. 840 Now no witness has spoken of any outcasting neither outcasting in general nor in this special case. No single instance has been produced in which any person who has joined this sect from the Mahar community 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 no instance has been produced of a Mahanubhava marrying outside his or her old caste whereas there are instances of Mahanubhavas who have married non 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 'convert does not lose his caste on conversion. He is admitted to all caste functions and can marry in the community. Of these Sadasheo (P. W. 3) and Haridas (P. W. 5) are Mahars. There is no evidence to rebut this. The witnesses on the other side take refuge in theory and when confronted with actual facts evade the issue by saying that Mahanubhavas who do these things are not 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 not lead a worldly life he does not know whether converts 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 conversion. Shankar (R. W. 2) says that a convert loses his caste on conversion but gives no instance of ostracism from the old fold. In any case his evidence is confined to the sanyasi order among the Mahanubhavas because he says that every person who becomes a convert 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 not real Mahanubhavas. Chudaman (R. W. 3) evades the issue in the same way. He is a Mahanubhava Pujari and so is 841 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 not arise as a man lost his caste on conversion. On this evidence and after considering the historical material placed before us we conclude that conversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does not alter the convert 's caste status at any rate so far as the householder section of the Panth is concerned. So much for the caste consciousness on both sides. Now considering Gangaram Thaware the individual we find that he was twice married and on both occasions to Mahar girls who were not Mahanubhavas at the time of their respective marriages. His first wife was never converted. His second wife was converted after her marriage. The witnesses say ' he was still regarded as a Mahar after his conversion 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 not then he must have continued 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 contested the election for the Provincial Assembly as a Mahar candidate. No one appears to have questioned his competency. And lastly he declared himself to be a Mahar in the verification to his nomination form in the present election as also in an affidavit filed before the Returning Officer who rejected his nomination. The 'Returning Officer described that as a "cleverly worded document. " We have read it and find nothing tricky or crooked in it. Therefore applying the test in Abraham vs Abraham(1) we hold that despite his (1) 9 M.I.A. 199. 109 842 conversion he continued to be a Mahar and so his nomination form was wrongly rejected. That affects the whole election. The other points argued before the Election Tribunal were not pressed before us. We therefore uphold the decision of the Tribunal and dismiss the appeal with costs. Appeal dismissed.

A contract for the supply of goods does not terminate when the goods are supplied it continues into being till payment is made and the contract is fully discharged by performance on both sides. O 'Carroll vs Hastings ( [1905] 2 I.H. 590) and Satyendrakumar Das vs Chairman of the Municipal Commissioners of Dacca (I.L.R.58 Cal. 180) relied upon. The firm Moolji Sicka and Company of which the candidate was a partner had entered into contracts with the Central 106 818 Government for the supply of goods. The contracts subsisted on ;he crucial dstes November 15 1951 and February 14 1952. November 15 1951 was the last date for putting in nominations and February 14 1952 was the date on which results were declared : Held that the candidate had both a share and an interest in the contracts for the supply of goods to the appropriate Government on the crucial dates and was thus disqualified for being chosen as a member of Parliament by virtue of the disqualification set out in section 7(d) of the Representation of the People Act (XLIII of 1951). Held further that the contention that the contracts in question were void because the Union Government could not be sued by reason of article 299(1) of the Constitution as the contracts were not expressed to be made by the President was without force because this was the type of case to which a. 230(3) of the Indian Contract Act would apply. When a Government officer acts in excess of authority Government is bound if it ratified the excess. The Collector of Masulipatam vs Cavaly Venkata Narrainapah (8 M.I.A. 529) reliecl upon. A member of the Mahar caste which is one of the Scheduled Castes continues to be a member of the Mahar caste despite his conversion to the tenets of the Mahanubhava Panth as such conversion imports little beyond @ an intellectual ' acceptance of certain ideological tenets and does not alter the convert 's caste status. Abraham vs Abraham (9 M.I.A. 199) relied upon.

iminal Appeal No. 7 of 1951. Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 10th March ' 1951 of the judicial Commissioner Vindhya 1099 Pradesh Rewa in Criminal Appeal No. 81 of 1950 arising out of the Judgment and Order dated the 26th July 1950 of the Court of the Special Judge Rewa in ' Criminal Case No. 1 of 1949. Jai Gopal sethi (K. B. Asthana with him) for appellant No.1. S.C. Isaacs (Murtza Fazl Ali with him) for appellant No. 2. Porus A. Mehta for the respondent. March 5. The Judgment of the Court was delivered by BHAGWATI J. The appellant No. 1 was the Minister *of Industries and the appellant No. 2 was the Secretary to the Government of the Commerce and Industries Department of the State of Vindhya Pradesh. The appellant No. 1 was charged with having committed offences under sections 120 B 161 465 and 466 of the Indian Penal Code and the appellant No. 2 under sections 120 B and 161 of the Indian Penal Code as adopted by the Vindhya Pradesh Ordinance No. 48 of 1949. They were tried in the Court of the Special Judge at Rewa under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance No. LVI of 1949 and the Special Judge acquitted both of them. The State of Vindhya Pradesh took an appeal to the Court of the Judicial Commissioner Rewa. The Judicial Commissioner reversed the order of acquittal passed by the Special Judge and convicted both the appellants of the several offences with which they were charged. The Judicial Commissioner awarded to the appellant No. 1 a sentence of 3 years rigorous imprisonment and a fine of Rs. 2 000 in default rigorous imprisonment of 9 months under section 120 B of the Indian Penal Code and a sentence of three years ' rigorous imprisonment under section 161 of the Indian Penal Code both the sentences to run concur rently. He imposed no sentence upon the appellant No. 1 under sections 465 and 466 of the Indian Penal Code. He awarded to the appellant No. 2 a sentence of rigorous imprisonment for one year and a fine of Re. 1 000 and in default rigorous imprisonment for 1100 nine months under section 120 B of the Indian Penal Code. He did not award any separate sentence to appellant No. 2 under section 161 of the Indian Penal Code. On an application made to the Judicial 'Commissioner Rewa for leave to appeal to the Supreme Court the Judicial Commissioner granted the appellants leave to appeal under article 134(1)(c) of the Constitution in regard to the four points of law raised in the case before him. The constitutional points involved in the appeal came up for hearing before the Constitution Bench of this court and were dealt with by the Judgment of this court delivered on the 22nd May 1953. The Constitution Bench held that the appeal to the Judicial Commissioner from the acquittal by the Special Judge was competent and that there was no infringement of the fundamental rights of. the appellants under articles 14 and 20 of the Constitution (Vide ; The appeal was accordingly directed to be posted for consideration whether it was to be heard on the merits. An application wag thereafter made by the appellants to this court for leave to urge additional grounds and this court on the 20th October 1953 made an order that the appeal should be heard on merits. The appeal has accordingly come up for hearing and final disposal before us. The case for the prosecution was as follows. By an agreement executed on the 1st August 1936 between the Panna Durbar of the one part and the Panna Diamond Mining Syndicate represented by Sir Chintubhai Madholal and Hiralal Motilal Shah of the other part the Panna Durbar granted to the syndicate a lease to carry on diamond mining operations for a period of 15 years. The period of the lease was to expire on the 30th October 1951 but there was an option reserved to the lessee to have a renewal of the lease for a further period of 15 years from the date of such expiration. There were disputes between the syndicate on the one hand and the Panna Durbar on the other and by his order dated the 31st October 1946 the Political Minister of Panna stopped the mining operations of the syndicate. The State of 1101 Panna became integrated in the Unit of Vindhya Pradesh in July 1948 and the administration of Panna came under the control and superintendence of the Government of Vindhya Pradesh with its seat at Rewa under His Highness the Maharaja of Rewa as Rajpramukh and the appellant No. I became the Minister in charge of the Industries Department in the Cabinet which was formed by the Rajpramukh. The appellant No. 2 held the post of Secretary Commerce and Industries Department and was working under the appellant No. 1. On the 1st September 1948 the syndicate appointed one Pannalal as Field Manager to get the said order of the Panna Durbar stopping the working of the mines rescinded. Pannalal made several applications for procuring the cancellation of the said order and on the 13th January 1949 and the 26th January 1949 Pannalal made two applications and handed them over personally to the appellant No. I requesting for the resumption of the mining operations and was asked to come in February for the purpose. The appellant No. I consulted the legal advisers of the State and a questionnaire was framed which was to be addressed to the syndicate for its answers. When Pannalal went to Rewa the questionnaire. was handed over to him on the 9th February 1949 for being sent to Sir Chinubbai Sir Chinubhai sent the replies to the said questionnaire along with a covering letter dated the 18th February 1949 where in he expressed a desire to meet the appellant No. 1 for personal discussion in regard to the settlement of the matter of the resumption of the mining operations etc. In reply to the telegrams sent by Sir Chinubhai on the 19th February 1949 the Personal Assistant to appellant No. 1 intimated to Sir Chinubhai that he could go to Rewa and see the appellant No. 1 on the 7th March 1949. As Sir Chinubhai was ill he deputed his Personal Assistant Nagindas Mehta to go to Rewa and see the appellant No. 1 on his behalf Nagindas arrived at Rewa on the evening of the 6th March 1949. The appellant No. 1 had gone out of Rewa and Nagindas had to wait. He saw the appellant No. 1 on the morning. of the 8th March 1949 but was asked 1102 to see the appellant No. 2. The appellant No. 2 saw Nagindas at the Guest House where lie had put up and informed Nagindas that a third party was offering Rs. 50 000 for the mining rights. Nagindas told the appellant No. 2 that the syndicate was a limited concern and could not afford to pay so much money . but if the amount was reduced they would make an effort to pay the sum. The appellant No. 2 then told Nagindas that he would talk over the matter with the appellant No. I and let him know. The same day in the afternoon the appellant No. 2 saw Nagindas at the Guest House and informed him that as the syndicate was working for the last so many years the appellant No. 1 was prepared to reduce the amount to about Rs. 25 000. Nagindas told the appellant No. 2 that he would talk over the matter with Sir Chinubhai in Bombay and would let him know about it. Nagindas then left for Bombay but he reached Bombay on the 29th March 1949 having been detained on the way for some other business of his. He saw Sir Chinubhai in Bombay and reported to him what had happened at Rewa and gave him to understand that resumption orders would not be passed unless a bribe of Rs. 25 000 was paid. Sir Chinubhai did not approve of the idea of giving a bribe and suggested that Nagindas should lay a trap for catching the appellant No. 1. Nagindas sent a telegram on the 29th March 1949 agreeing to go to Rewa in the week thereafter for completion. On receipt of that telegram the appellant No. 2 in the absence of appellant No. 1 who was on tour sent a telegram on the 1st April 1949 to Sir Chinubhai pressing him to come the same week as his presence was essential to complete the matter which had been already delayed. On the 4th April 1949 Pannalal was informed by the appellant No. 2 that the appellant No. 1 was leaving for Delhi that day and that he should go to Bombay and send Sir Chinubhai to Delhi to meet the appellant No. I in the Constitution House where he would be staying. He also gave a letter to Pannalal to the same effect. Appellant No. 1 left for Delhi on the 4th April 1949 with the files of the Panna Diamond Mining 1103 Syndicate and reached Delhi on the 5th April 1949. On the 6th April 1949 the appellant No. 1 sent a telegram through his Personal Assistant Mukherji to Sir Chinubhai at Bombay asking him to meet the appellant No. I on the 7th 8th or 9th April 1949 at 31 Constitution House for final talks regarding the Panna Diamond Mining Syndicate. On receipt of the said telegram Sir Chinubhai sent a telegram in reply stating that his Personal Assistant Nagindas and Pannalal were reaching Delhi on the 9th April 1949. Nagindas reached Delhi on the 8th April 1949 and put up at the Maidens Hotel and Pannalal reached Delhi on the 10th April 1949 and put up at the Regal Hotel. On the 9th April 1949 Nagindas informed the appellant No. I on the telephone about his arrival at Delhi and an appointment was fixed for 10 30 am. on the 10th April 1949 Nagindas contacted Shri. Bambawala the inspector General of Police of the Special Police Establishment on the morning of the 10th April 1949 before coming to meet the appellant No. I and told him how the appellant No. 1 was coercing him to pay a bribe. Shri Bambawala referred Nagindas to Pandit Dhanraj Superintendent Special Police Establishment and Nagindas told him the whole story of his harassment by the appellant No. 1 and it was then decided to lay a trap for appellant No. 1. Nagindas informed Pandit Dhanraj that he would meet the appellant No. 1 at about 11 a.m. and then report their talk to him in the afternoon. Nagindas then saw the appellant No. 1 at the Constitution House at the appointed time and at this meeting the appellant No. 1 demanded from Nagindas a sum of Rs. 25 000 as a bribe for allowing the resumption of the mining operations and made it quite clear that he would not accept anything less than ' Rs. 25 000. As Nagindas had not received the moneys from Bombay the following day ie. the 11th April 1949 at 3 p.m. was fixed for the next meeting. Nagindas thereafter informed Pandit Dhanraj as to what had taken place at the aforesaid meeting between him and the appellant No. 1. Nagindas went to the Constitution House and saw the appellant No. I at about 3 p.m. on the 11th April 1949. Pannalal was already 143 1104 there. Nagindas and the appellant No. 1 went into the bedroom where Nagindas requested the appellant No. I to extend the period of the lease for 10 years so that the syndicate might be compensated for the loss sustained by the stoppage of the mining operations. The appellant No. I thereupon asked Nagindas to submit a written application in Hindi and as Nagindas did not know it he called Pannalal into the bedroom and asked him to write out an application to that effect. The appellant No. I after making sure from Pannalal that Pannalal was present at Rewa on the 1st April 1949 asked Pannalal to put the date on the said application as the 1st April 1949. The appellant No. 1 made an endorsement at the foot of the said application and dated it as of the 1st April 1949. It was arranged that Nagindas should see the appellant No. 1 at 9 p.m. that day that Nagindas should pay Rs. 25 000 to the appellant No. I at that time and the appellant No. I would deliver the resumption order to Nagindas on payment of the said sum of Rs. 25 000. Nagindas then left the Constitution House and reported to Pandit Dhanraj what had transpired between him and appellant No. 1. He further told Pandit Dhanraj that he had not received any moneys upto that time. Pannalal was asked to proceed to the Constitution House in advance and inform the appellant No. 1 that Nagindas would be coming along at 9 p.m. that night. Nagindas and Pandit Dhanraj then proceeded to the house of Shri Shanti Lal Ahuja Additional District Magistrate. Pandit Dhanraj made arrangements for a raiding party. Nagindas 's statement was recorded on oath and a search of his person was made and he was then given three bundles containing 250 Government currency notes of Rs. 100 and a memorandum of the same was also prepared. After these formalities were gone through Pandit Dhanraj Nagindas and the Additional District Magistrate along with the police party left for the Constitution House. It was arranged that Pannalal should be sent out by Nagindas after the completion of the transaction on some pretext or other to the taxi waiting outside and that this would serve as a signal for the raiding party 1105 which would rush into the room No. 31 Constitution House which was occupied by the appellant No. 1. Nagindas then went inside the suit of rooms occupied by the appellant No. 1 and the appellant No. 1 took him to his bedroom and closed the door which connected the bedroom with the sitting room where Pannalal was already waiting. After this the appel lant No. 1 handed over the resumption order to Nagindas and on reading the same Nagindas found that the extension given was only for 4 years and be asked the appellant No. 1 why this was so when the appellant No. 1 had promised before to give an extension for 10 years. On this the appellant No. I told Nagindas that he should put up another application after a few months and then the appellant No. 1 would extend the period. Appellant No. 1 then signed the resumption order and put down the date thereunder as the 2nd April 1949. As soon as the signed order was handed over to him Nagindas handed over to the appellant No. I the Government currency notes of the value of Rs. 25 000 which had been given to him previously by the Additional District Magistrate. Nagindas then asked for an extra copy of the said order and the same was accordingly given to him after being dated and initialled by the appellant No. 1. The appellant No. 1 took the Government currency notes and put them in the upper drawer of the dressing table in the bedroom. After the transaction was thus completed Nagindas shouted to Pannalal to go to the taxi and bring his cigarette case. Pannalal went opt to the taxi and on receipt of this signal the Additional District Magistrate and Pandit Dhanraj rushed into the sitting room along with the other members of the raiding party. The appellant No. 1 met the raiding party at the communicating door between the two rooms. After the Additional District Magistrate and Pandit Dhanraj had disclosed their identity appellant No. I was asked by Pandit Dhanraj whether he had received any money as a bribe to which the appellant No. 1 replied in the negative. Pandit Dhanraj then told appellant. No. 1 that he should produce the money which he had received otherwise he would be 1106 forced to search the room. On this appellant No. I went to the said dressing table opened the top drawer and brought out the three bundles of Government currency notes given to him by Nagindas and handed them over to Pandit Dhanraj. On inquiry by the Additional District Magistrate as to how he had come into possession of the said notes the Appellant No. 1 stated that he had brought Rs. 40 000 from his home out of which Rs. 15 000 had been spent by him in the purchase of a motor car and the remaining sum was with him which was required by him to purchase some ornaments in connection with the marriage of his daughter. In the meanwhile two respectable witnesses Shri Gadkari who was a member of the Central Electricity Authority Ministry of Works; Mines and Power Government of India and Shri Perulakar who was the Minister for Agriculture and Labour Madhya Bharat were brought to the bedroom of the appellant No. 1 by the police. The appellant No. 1 repeated the said statement and gave the same explanation before these two witnesses which he had given and made before the Additional District Magistrate and Pandit Dhanraj a little while before. Nagindas was then searched in the presence of these two witnesses and the two copies of the order which had been given to him by appellant No. I were recovered from his person. Two other copies of the said order and the application and the file of the Panna Diamond Mining syndicate were recovered from the. search of the upper drawer of the dressing table in the bedroom of appellant No. I Appellant No. 1 also produced a receipt in support of his story of the purchase of the car. The relevant memos of the search were prepared and also a list of the numbers of the Government currency notes of Rs. 25 000 which had been produced by the appellant No. 1. This list was compared and checked by the said witnesses Gadkari and Perulgkar with the numbers of notes and also with those appearing in the list which was in the possession of the Aditional District Magis trate and which was shown to the said witnesses. They found that the numbers in the said two lists tallied in all respects. After the completion of the list the Additional 1107 District Magistrate confronted appellant No. 1 with the documents which were produced before him by Nagindas and also the list of notes and asked appellant No. 1 if he had any explanation to offer. The apppllant No. 1 was confused and could give no explanation. On further enquiry whether the appellant No. I had any other money with him he opened an iron confidential box a key of which was in his possession and brought out a sum of Rs. 132 which was not taken charge of as the same had no concern with the case. Thereafter appellant No. I was put under arrest and was subsequently released on bail. * * * * After these documents were forged the next important event was the passing of the sum of Rs. 25 000 as and by way of bribe or illegal gratification by Nagindas to the appellant No. 1. Here also it would have been difficult for the prosecution to establish the guilt of the appellant No. 1 if the matter had rested merely on the evidence of Nagindas or that of the police witnesses supported a % they were by Shanti Lal Ahuja the Additional District Magistrate. Nagindas 's evidence suffering from the infirmity pointed out before could not be enough to carry conviction with the court. He was out to trap the appellant No. 1 and had been clever enough also to have inveigled the police authorities to procure the wherewithal of the bribe for him. It is patent that but for the procurement of these Rs. 25 000 by the police authorities and their handing over the sum to Nagindas Nagindas would not have had the requisite amount with him and the offence under section 161 would never have been committed. The police authorities also exhibited an excessive zeal in the matter of bringing the appellant No. 1 to book and their enthusiasm in the matter of trapping the ' appellant No. I was on a par. with that of Nagindas and both the parties were thus equally to blame in the matter of entrapping the appellant No. 1. The evidence of these witnesses therefore was not such as to inspire confidence in the mind of the court. Shanti Lal Ahuja the Additional District Magistrate also lent himself to the. police authorities and became 1108 almost a limb of the police. His position as the Additional District Magistrate was submerged and he reduced himself to the position of an ordinary witness taking part in the affair as a member of the raiding. party and his evidence could be no better or no worse than that of the police witnesses themselves. If therefore the matter had rested merely upon their evidence it would have been difficult to carry the guilt home to the appellant No. 1. The evidence as to the recovery of this sum of Rs. 25 000 from the top drawer of the dressing table in the bedroom of the appellant No. I and also in regard to the handing over of that sum by the appellant No. I to Shanti Lal Ahuja the Additional District Magistrate was equally tainted and if that evidence stood by itself no court would have been safe in acting upon the same. The statement which was made by the appellant No. I to Shanti Lal Ahuja the Additional District Magistrate was inadmissible in evidence. Section 162 of the Criminal Procedure Code rendered the statement made by the appellant No. I to the police officers inadmissible. The investigation into the offence had already started immediately on the First Information Report being registered by the police authorities and Pandit Dhanraj himself admitted in his evidence that the investigation into the offence had thus started before the raid actually took place. The statement made by the appellant No. 1 to Shanti Lai Ahuja the Additional District Magistrate was therefore made after the investigation had started and during the investigation of the offence and was therefore hit by section 164 of the Criminal Procedure Code. It was urged on behalf of the respondent that this statement was not a confessional statement and was therefore not hit by section 164 and Shanti Lai Ahuja the Additional District Magistrate could therefore depose to such statement even though the same was not recorded as required by the provisions of section 164 of the Criminal Procedure Code. There is authority however for the proposition that once the investigation had started any non confessional statement made by the accused also required to be recorded in the manner indicated in that section and if no such record had 1109 been made by the Magistrate the Magistrate would not be competent to give oral evidence of such statement having been made by the accused. (See A.I.R. 1936 Privy Council 253 and Indian Law Reports 49 Calcutta 167 followed in and A.I.R. 1937 Nagpur 254). The statement made by the appellant No. 1 therefore to Shanti Lal Ahuja the Additional District Magistrate not having been recorded by him in accordance with the provisions of section 164 was inadmissible in evidence and could not be proved orally by him. If therefore the statement was thus eliminated from evidence nothing remained so far as the witnesses Nagindas and Pannalal on the one hand and the police witnesses as well as Shanti Lal Ahuja the Additional District Magistrate on the other hand were concerned which could bring the guilt home to the appellant No. 1. Reliance was therefore placed by the prosecution on the evidence of Gadkari and Perulakar. They occupied responsible positions in life and were absolutely independent witnesses. Two criticisms were levelled against their evidence by the Special Judge. The one criticism was that contrary to the evidence of Pandit Dhanraj they asserted that their statements were not recorded on the night of the 11th April 1949. Pandit Dbanraj had recorded their statements after they had left the bedroom of the appellant No. I at the Constitution House relying upon his memory of the events that had happened that night. These statements however were not read over to them and therefore could not have the value which otherwise they would have had. The other criticism was that they had appended their signatures to the Panchnama of the numbers of the currency notes recovered at that time which Panchnama contained the statement that on being asked the appellant No. I had produced the bundles of currency notes from the top drawer of the dressing table. This statement was not factually correct as both these witnesses were brought into the bedroom of the appellant No. I after the recovery of the Government currency notes by the police from the appellant No. 1. It was certainly indiscreet on their part not to have scrutinised 1110 the contents of the Panchnama before they appended their signatures thereto. That is however a far cry from coming to the conclusion that they acted in a highly irresponsible manner and their testimony was unreliable. The circumstances under which the numbers of the currency notes were recorded in the Panchnama the statement made by the appellant No. 1 to them and the confusion into which the appellant No. 1 fell when he was questioned by the police authorities on the tallying of the numbers contained in the memo prepared when the raid was organised with the numbers of the currency notes actually found in the bedroom of the appellant No. 1 were events which would indelibly print themselves in the memory of these witnesses and even though they were examined in the Court of the Special Judge about 10 months after the occurrence these events and particularly the fact that the appellant No. I claimed these moneys which were thus recovered as his own would certainly not be in any manner whatever forgotten by them. The only suggestion which was made against the credibility of these witnesses on this point was that they must not have exactly remembered what transpired on that night in the bedroom of the appellant No. I and that they might have committed an honest mistake when narrating the events that had happened on that night. An honest lapse of memory would no doubt be a possibility but having regard to the circumstances of the case we are of the opinion that the events that happened that night in the bedroom of the appellant No. I and which were deposed to by these witnesses were not such as to be easily forgotten by them and when these witnesses deposed to the fact that the appellant No. I claimed this sum of Rs. 25 000 as his own and was utterly confused when explanation was sought from him by the police authorities in regard to the tallying of the numbers of these Government currency notes it is not easy 'to surmise that they were suffering from any lapse of memory. The evidence of these witnesses in regard to the statement made by the appellant No. 1 before them was also attacked on the ground that Shanti Lal 1111 Ahuja the Additional District Magistrate 's asking the appellant No. 1 to repeat the statement which he had earlier made before him to these witnesses was a mere camouflage. Shanti Lal Ahuja the Additional District Magistrate knew very well that the statement made by the appellant No. 1 to him was not recorded under the provisions of section 164 of the Criminal Procedure Code and was therefore inadmissible in evidence and he therefore resorted to these tactics of having the appellant No. 1 repeat the very same statement to these witnesses so as to avoid the bar of section 164. Reliance was placed in this behalf on A.I.R. 1940 Lahore 129 (Full Bench) where it wag held that if on the facts of any case it was found that a statement made to a third person was in reality intended to be made to the police and was represented as having been made to a third person merely as a colourable pretence in order to avoid the provisions of section 162 the court would hold it excluded by the section. The same ratio it was submitted applied to the statements made to these two witnesses because they were a colourable pretence to avoid the provisions of section 164 of the Criminal Procedure Code which had certainly not bee n complied with by Shanti Lal Ahuja the Additional District Magistrate. It has however to be observed that every statement made to a person assisting the police durirng an investigation cannot be treated as a statement made to the police or to the Magistrate and as such excluded by section 162 or section 164 of the Criminal Procedure Code. The question is one of fact and has got to be determined having regard to the circumstances of each case. On a scrutiny of the evidence of these two witnesses and the circumstances under which the statements came to be made by the appellant No. 1 to them we are of the opinion that the appellant No. I was asked by Shanti Lal Ahuja the Additional District Magistrate to make the statements to these two witnesses not with a view to avoid the bar of section 164 of the Criminal Procedure Code or by way of colourable pretence but by way of greater caution particularly having regard to the fact that the appellant No. 1 occupied the position .of a Minister of 144 1112 industries in the State of Vindhya Pradesh. The statements .made by the appellant No. 1 to these witnesses therefore did not suffer ' from this disability and were admissible in evidence. The evidence of these witnesses being thus worthy of credit and the statements made by the appellant No. 1 to them being admissible in evidence there is no doubt that the appellant No. 1 claimed these moneys viz. Rs. 25 000 which were recovered from the top drawer of the dressing table in the bedroom of the appellant No. 1 as his own being the balance of Rs. 40 000 which he had brought from his home when he came to Delhi. If this was ' so the very fact that the numbers of these Government currency notes of the value of Rs. 25 000 tallied with the numbers of the notes which had been handed over to Nagindas earlier when the raid was organised and which numbers were also specified in the memo prepared at that time was enough to establish the falsity of the allegation made by the appellant No. 1 that he had brought these moneys from his home These moneys were proved to have been provided by the police authorities and given to Nagindas when the raid was organised and were the instruments of the offence of the taking of the bribe or illegal gratification by the appellant No. 1. If the numbers of these notes tallied with the numbers of the notes which were thus handed over by the police authorities to Nagindas they could not have belonged to the appellant No. 1 and were certainly brought there by Nagindas and handed over by him to the appellant No. 1 as alleged by the prosecution. A suggestion was made that there was oportunity for Nagindas to plant these moneys into the top drawer of the dressing table when the back of the appellant No. 1 was turned upon him. Even assuming that there was that possibility it is sufficiently negatived by the fact that when these moneys were recovered from the top drawer either at the instance Nagindas as alleged by the appellant No. 1 or at the instance of the appellant No. 1 as alleged by the prosecution the appellant No. 1 did not express any surprise at these moneys being thus found there. If the version of the appellant No. 1 1113 was correct he had only brought about Rs. 25 000 from his house. Rs. 15 000 has been already spent by him in the purchase of the car. About Rs. 10 600 were spent by him in the purchase of the ornaments and only a sum of Rs. 100 odd was the balance left with him. According to that version there was not the slightest possibility of the sum of Rs. 25 000 being found in the top drawer of the dressing table. Far from expressing a surprise in this manner the appellant No. 1 claimed these moneys as his own. The appellant No. 1 could not have by any mischance failed to appreciate that these Government currency notes which were thus recovered from the to p drawer of the dressing table exceeded by far the amount which according to him he had left with him by way of balance and the most natural reaction to the recovery of this large sum of money would . have been that he would have certainly denied that these moneys were his and he would have been surprised at finding that such a large sum of money was thus found there. No such reaction was registered on his face. On the contrary if the evidence of the two witnesses Gadkari and Perulakar is to be believed and we see no reason why it should not be believed the appellant No. 1 claimed this sum of Rs. 25 000 as his own being the balance out of the money which he had brought from his home when he came to Delhi. This is sufficient to establish that these moneys which earlier bad been handed over by the police authorities to Nagindas found their way into the top drawer of the dressing table in the bedroom of the appellant No. 1 and were the primary evidence of the offence under section 161 having been committed by the appellant No. 1. The further circumstance that on the num bers of these notes being tallied and his explanation in that behalf being asked for by the 'Police authorities the appellant No. 1 was confused and could furnish no explanation in regard thereto also supports this conclusion and there is no doubt left in our minds that the appellant No. 1 was guilty of the offence. under section 161 of the Indian Penal Code with ;Which he was charged 1114 We cannot however leave this case without expressing our strong disapproval of the part which the police authorities and Shanti Lal Ahuja the Additional District Magistrate took in this affair. As already observed this offence would never have been committed by the appellant No. I but for the fact that the Notice authorities provided Nagindas with the wherewithal of the commission of the offence. Sir Chinubhai as it appears from the evidence was not in a position to provide Nagindas with this sum of Rs. 25 000 or any large sum and in fact in spite of the telephone calls made by Nagindas upon him had not provided any amount beyond Rs. 3 000 which was meant for the other expenses of Nagindas to him. Nagindas was therefore not in a position to provide this sum of Rs. 25 000 for payment of the bribe or the illegal gratification to the appellant No. 1. But for the adventitious aid which he got from the police authorities the matter would not have progressed any further and Nagindas would I have left Delhi empty handed. The police authorities however once they got scent of the intention of Nagindas thought that it was too good an opportunity to miss for entrapping the appellant No. 1 who occupied the position of the Minister of Industries in the State of Vindhya Pradesh. They therefore provided the sum of Rs. 25 000 on their own and handed it over to Nagindas. The police authorities in this step which they took showed greater enthusiasm than Nagindas himself in the matter of trapping the .appellant No. 1. It may be that the detection of corruption may sometimes call for the laying of traps but there is no justification for the police authorities to bring about the taking of a bribe by supplying the bribe money to the giver where he has neither got it nor has the capacity to find it for himself. It is the duty of the police authorities to prevent crimes being committed. It is no part of their business to provide the instruments of the offence. We cannot too strongly disapprove of the step which the police authorities took in this case in the matter of providing the sum of Rs. 25 000 to Nagindas who but for the 1115 police authorities thus coming to his aid would never have been able to bring the whole Affair to its culmination. Not only did the police authorities thus become active parties in the matter of trapping the appellant No. I they also provided a handy and an ostensibly independent witness in the person of Shanti La] Ahuja the Additional District Magistrate. Even though he was a member of the judiciary be lent his services to the police authorities and became a limb of the police as it were. The part which Shanti Lal Ahuja the Additional District Magistrate took in this affair cannot be too strongly condemned. We can only repeat in this connection the observations of the Privy Council in A.I.R. 1936 Privy Council 253 at page 258 in regard to the Magistrates placing themselves in positions where they would have to step into the witness box and depose as ordinary citizens.: "In their Lordships view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers under section 162 of the Code; and to be at the same time freed notwithstanding their position as Magistrates from any obligation to make records under section 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. . " The position was laid down with greater emphasis by Mr. Justice P. B. Mukharji in A.I.R. 1951 Calcutta 524 at page 528 where the learned Judge observed: "Before I conclude I wish to express this court 's great disapprobation of the practice that seems to have become very frequent of sending Magistrates as witnesses of police traps. The Magistrate is made to go under disguise to witness the trap laid by the police. 'In this case it was Presidency Magistrate and in other cases which have come to our notice there have been other Magistrates who became such witnesses. To make the Magistrate a party or a limb of the police during the police investigation seriously 1116 undermines the independence of the Magistrates and perverts their judicial outlook. The Magistrates are the normal custodians of the general administration of criminal justice and it is they who normally decide and pass judgments on the acts and conduct of the police. It is not enough to say therefore that the Magistrate acting as a witness in a particular case does not himself try that case. This practice is all the more indefensible here specially when there is no separation of the executive from the judiciary. The basic merit of the administration of criminal justice in the State lies in the fact that the person arrested by the police is entitled to come before an independent and impartial Magistrate who is expected to deal with the case without the Magistrate himself being in any way a partisan or a witness to police activities. There is another danger and that is the Magistrates are put in the unenviable and embarrassing position of having to give evidence as a witness and then being disbelieved. That is not the Way to secure respect for the Magistracy charged with the administration of justice. In my judgment this is a practice which is unfair to the accused and unfair to the Magistrates. It is also unfair to the police. Because charged with the high responsibility and duty of performing a great and essential public service of this State the police cannot afford to run the risk of opprobrium ' even if unfounded that they have enlisted the Magistrate in their cause. That risk is too great and involves forfeiting public respect and confidence. . . " We perfectly endorse the above observations made 'by Mr. Justice P. B. Mukharji and hope and trust that Magistrates will not be employed by the police authorities in the manner it was done by the Special Police Establishment in this case before us. The independence of the judiciary is a priceless treasure to be cherished and safeguarded at all costs against predatory activities of this character and it is of the essence that public confidence in the independence of the judiciary should not be undermined by any such tactics adopted. by the executive authorities We have therefore eliminated from our consideration the whole of the evidence given by Shanti Lal Ahuja the Additional District Magistrate and come to our conclusion in regard to the guilt of the appellant No. I relying solely on the testimony of the two independent witnesses Gadkari and Perulakar. The result therefore is that the appeal of the appellant No. 1 will be dismissed except with regard to his conviction and sentence under section 120 B of the Indian Penal Code and the convictions and sentences passed upon him by the Judicial Commissioner under section 465 and section 466 as also section 161 of the Indian Penal Code will be confirmed. The appeal of the appellant No. 2 will be allowed and he be acquitted and discharged of the offences with which he was charged and immediately set at liberty. The bail bond of the appellant No. 2 will be cancelled.

After the investigation into an offence has been started on the registration of the First Information Report by the Police no statement made by the accused to the Magiarate can be proved unless the statement has been recorded in accordance with the provisions of section 164 of the Code of Criminal Procedure and therefore if the non confessional statement has not been recorded by the Magistrate in the manner indicated in section 164 the Magistrate would not be competent to give oral evidence of such statement having been made by the accused. Nazir Ahmad vs King Emperor (A.I.R. Legal Bomembrancer vs Lalit Mohan Singh Boy (I.L.R. 49 Cal. 167) Abdul Bahim and Others vs Emperor and Karu Mansukh Gond vs Emperor (A.I.R. referred to. The conduct of the Police and the Additional District Magistrate inactively instigating the accused to commit the off once of which he was charged by furnishing him with the necessary materials (without which he could not have committed the offence) for the purpose of trapping him was strongly disapproved. It is the duty of the police to prevent the crimes being committed. It is no part of their duty to provide the instruments of the offence. The observations of Mr. Justice P. B. Mukherji in the case of M. 0. Mitra vs The State (A.I.R. at p. 528) condemning the practice of sending Magistrates as witnesses of Police trap endorsed because such practice makes a Magistrate a party or a limb of the Police during police investigation and undermines seriously the independence of the Magistrates and perverts their judicial outlook.

Appeal No. 143 of 1952. Appeal under article 132(1) of the Constitution of India from the Judgment and Order dated the 997 11th December 195 1 of the High Court of Judicature Rajasthan at Jodhpur in D. B. Civil Miscellaneous Case No. 1 of 1951. M. C. Setalvad Attorney Genaral for India and K. section Hajela Advocate General of Rajasthan (Porus A. Mehta with them) for the appellant N. C. Chatterjee. and U. M. Trivedi (Jiwan Sinha Chandra and Ganpat Rai with them) for the respondent. 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 collecting rents from the tenants of lands comprising 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 now 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 connection 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 129 998 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 contending 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 constitute 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 not 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 compensation. 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 non heritable and nontransferable and the Jagirs could not 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 not entitled to compensation 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 not deprive the Jagirdars of their property and they were consequently not 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 not void under article 31 (2) or 19 (1) (f ). On the second point they recorded the conclusion that section 8 A which was introduced in Ordinance No. XXVII of 1948 by section 999 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 collecting rents from the tenants of the land comprising 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 collecting the rents even though for a short period. In appeal it is contended 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 contention 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 connection 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 collected by Jagirdars shall 1000 henceforward be collected by and paid to the Government; the Government will after deducting the collection and other expenses pay. it to the Jagirdar concerned. " 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 not 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 could not collect their rents while Jagirdars in other areas which were covered by Jaipur Bikaner Jaisalmer and Jodhpur and Matsya Union were under no such disability. It appears that in the former State of Rajasthan provisions regarding the management by Government of Jagirs and the right to collect rents already existed whereas there was no such 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 not 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 not 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 commencement 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 not 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 now well settled by the decision of this court 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 no classification 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 not 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 consideration, that the Jagirs of the particular area were governed by different laws of tenure and thus constituted 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 not purport to show that the conditions in the former State of Rajasthan were such as to justify the imposition of the disability on the Jagirdars of that State while the conditions prevailing in the other States forbade such a course. 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 no objection but there was no reason for taking away from the Jagirdars by section 8 A the power to collect rents to which they were entitled. We agree with the High Court in holding that there was no real and substantial distinction why the Jagirdars of a particular area should continue to be 1002 treated with inequality as compared with the Jagirdars in another area of Rajasthan. We hold therefore that no rational basis for any classification or differentiation has been made out. Section 8 A of the impugned Ordinance as amended is a clear contravention of the respondent 's right under article 14 of the Constitution and must be declared void. The case of Frank J. Bowman vs 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 counties 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 counties in the easterly portion of the State, as also to those residing in the City of St. Louis. It was contended that this feature of the judicial system of Missouri was in conflict with the 14th Amendment of the Constitution of the United States. Bradley J. held that the equality clause in the 14th Amendment contemplates the protection of persons against unjust discriminations by a State; it has no reference 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 continue unchanged in the one portion and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the 14th Amendment. It would not be based on any respect of persons or classes but on municipal considerations 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 not advance his case (1) 1O1 U.S 22; ; 1003 for in the present cage there is no question of continuing unchanged @the old laws and judicature in one portion and a different law in the other. As we have already said there is nothing 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 comprised in the States which subsequently integrated into the present United State of Rajasthan. After the new State was formed there was no occasion 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 vs Income tax Officer Mohindargarh (1) is distinguishable on the ground that that case proceeded upon the principle that "pending proceedings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceeding commenced was a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause. " Such is however not the case here. Reliance was also placed on the case of The State of Punjab vs Ajaib Singh and Another(1). In that case the Abducted Persons (Recovery and Restoration) Act of 1949 was not 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 court classification could 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 could not be called discriminatory. ; The learned Attorney General referred to two cases decided by the same. Bench of the Rajasthan High Court Thakur Madan Singh vs Collector of Sikar(3) and an unreported judgment delivered on November 10 1953 In re Raja Hari Singh vs Rajasthan and argued (1) (1951] S.C.R. 127. (2) ; (3) Rajasthan Law Weekly 1954 P.1. 1004 that the Bench had not 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 no such 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 continued on the formation of the new State but there were no District 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 conferred by the District Boards Act. Reliance was placed on the observations of Bradley J. in Frank J. Bowman vs Edward A. Lewis(1) in connection 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 contained 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 no such laws existed in the other parts of Rajasthan. The decision of the High Court proceeded on the ground that it was not shown that there were no similar 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 could not be said to constitute any discrimination merely because no such legislation (1) ; ; 1005 existed in the other parts of Rajasthan . This difference between the two parts did not 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. As a result of the foregoing discussion we hold that the view taken by the High Court is correct. We accordingly dismiss the appeal with costs. Appeal dismissed.

Hold that section 8 A inserted in Rajasthan Ordinance XXVII of 1948 by section 4 of Rajasthan Ordinance X of 1949 and as amended by section 3 of Rajasthan Ordinance XV of 1949 is void under article 14 of the Constitution. Frank J. Bowman vs Edward A. Lewis ; ; 25 Law. Ed. 989) Ramjilal vs Income Tax Officer Mohindargarh ([1951] S.C.R. 127) The State of Punjab vs Ajaib Singh ([1953] S.C.R. 254) and Thakur Madan Singh vs Collector of Sikar (Rajasthan Law Weekly 1954 p. 1) referred to.

Appeal No. 103 of 1952. Appeal under article 133(1) (c) of the Constitution of India from the Judgment and Order dated the 10th August 1951 of the High Court of Judicature for Rajasthan at Jodhpur (Wanchoo and Bapna JJ.) in D. B. Civil Miscellaneous Application No. 21 of 1951. K. section Hajela Advocate General of Rajasthan for the appellant. No appearance for the respondents. March 17. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal is brought under a certificate granted by the High Court of Rajasthan under article 133(c) of the Constitution of India against a judgment and order of that High Court in writ petition under article 226 holding the appointment of one Shri Sukhdeo Narain as invalid and directing that all proceedings taken by him as the Industrial Court under section 7 of the Industrial Disputes Act (No. XIV of 1947) are null and void. 1130 We are informed that Shri Sukhdeo Narain has ceased to work as an Industrial Tribunal and the present appeal therefore becomes infructuous but we are invited by the Advocate General on behalf of the State of Rajasthan who is the appellant before us to decide the question as to the validity of the appointment as it is likely to affect other awards made by tribunals under the Industrial Disputes Act. We accordingly proceed to give our decision. The question involved in the case is whether the appointment of Shri Sukhdeo Narain is invalid because he does not fulfil the qualifications laid down for a tribunal under section 7(3) of the Industrial Disputes Act. Section 7(3) hereinafter referred to as the Industrial Act says: " Where a tribunal consists of one member only that member and where it consists of two or more members the chairman of the tribunal shall be a person who (a) is or has been a Judge of a High Court; or (b) is or has been a District Judge . . . . . " The Industrial Act was applied to Rajasthan by the Rajasthan Adaptation of Central Laws Ordinance 1950 (Ordinance IV of 1950) by the Rajpramukh on January 24 1950. By this adaptation section 7 of the Industrial Act came to be applied to Rajasthan. Shri Sukhdeo Narain was appointed on October 9 1950 by a notification which ran as follows: "In exercise of the powers conferred by section 7 of the Industrial Disputes Act 1947.(XIV. of 1947) the Government of Rajasthan is pleased to constitute an Industrial Tribunal consisting of Shri Sukhdeo Narain a retired Judge of the High Court of the erstwhile Jodhpur State for the adjudication of an Industrial dispute in the Mewar Textile Mills Ltd. Bhilwara in Rajasthan. " The appointment of Shri Sukhdeo Narain was objected to by the respondent on the ground that the 1131 words "a Judge of a High Court" in section 7(3) mean " a Judge of the High Court of Judicature for Rajasthan established under the Rajasthan High Court Ordinance 1949" and as Shri Sukhdeo Narain had been a Judge of the High Court of the former State of Jodhpur he could not be held to be Judge of the High Court under section 7(3) of the Industrial Act. This objection was upheld by the High Court. Though the appointment of Shri Sukhdeo Narain in the notification was based upon the fact that he was a retired Judge of the High Court of Jodhpur in arguments it was also contended before the High Court that even if he was not qualified for appointment as a former Judge of a High Court he was certainly qualified for appointment as a former District Judge. The High Court repelled this contention. It appears that the United State of Rajasthan came into existence on April 7 1949 and the United State of Matsya was integrated with it on May 15 1949. Section 5 of Ordinance No. IV of 1950 lays down that: " For the purpose of the application of any Central law to Rajasthan unless there be anything repugnant in the suject or context (ix) references therein to other civil criminal and revenue courts to public offices and to Judges Magistrates officers or authorities shall be deemed to be references to such courts offices and Judges Magistrates officers or authorities of or in Rajasthan. " The High Court held that the word "Rajasthan" as defined in Ordinance I of 1949 means the United State of Rajasthan and "the Judges an d other officers" mentioned in section 5(ix) must be held to be those in the service of the United State of Rajasthan. Accordingly they held that Shri Sukhdeo Narain could not be held to be a District Judge within the meaning of section 7(3) (b) and his appointment as an Industrial Tribunal under that section was therefore invalid. We are of opinion that this appeal can be decided on a short ground. The Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950) came into force on May 20 1950. By section 34 it was provided that the 1132 Industrial Disputes Act XIV of 1947 shall be amended in the manner specified in the Schedule and the Schedule substituted sub section (2) to section (1) of the Industrial Act as follows : "It extends to the whole of India except the State of Jammu and Kashmir. " As we have already stated the appointment of Shri Sukhdeo Narain was made on October 9 1950 i.e. after the Industrial Disputes Act had become applicable to Rajasthan. It is not necessary therefore to invoke the provisions of Ordinance. IV of 1950 in deciding the question of the validity of the appointment. The argument based on section 34 of Act XLVIII of 1950 was put forward before the High Court at the time of the hearing of the application for leave to appeal and it was contended that in view of section 34 the provisions of Rajasthan Adaptation of Central Laws Ordinance 1950 namely section 5 subsections (vii) and (ix) stood amended or repealed but the High Court observed that even if this argument had been raised before them in appeal it would have made no difference. It has been contended before us by Mr. Hajela the learned Advocate General on behalf of the State that after the Industrial Disputes Act of 1947 was extended to Rajasthan by section 34 of the Industrial Disputes (Appellate Tribunal) Act XLVIII of 1950 the provisions of the former stood amended by section 34 and could not be read subject to section 5 of the Rajasthan Adaptation of Central Laws Ordinance IV of 1950. We think there is force in this contention. The effect of section 34 as we have already indicated was to extend the territorial application of the to the whole of India including Rajasthan the exception being the State of Jammu and Kashmir only. This being so the words "A Judge of a High Court and a District Judge" used in section 7(3) (a) and (b) respectively of the must be held now to include "A Judge of the High Court and a District Judge in the former State of Jodhpur". There is now no room for the application of section 5 of Ordinance IV of 1950 according to which a Judge of the High Court 1133 and a District Judge could only. mean a Judge of the High Court for Rajasthan established under the Rajasthan High Court Ordinance 1949 and a District Judge of or in Rajasthan within the meaning of section 5(ix) of Ordinance No. IV of 1950. Accordingly we hold that the appointment of Shri Sukhdeo Narain was perfectly valid. We accordingly set aside the order of the High Court but without costs as the respondent is not represented.

Held that under section 7(3) (a) and (b) of the Industrial Disputes Act (XIV of 1947) as amended by section 34 of the Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950) the phrase "a Judge of a High Court and a District Judge" includes a Judge of the High Court and a District Judge in the former State of Jodhpur.

No. 281 of 1951. Appeal under article 132 of the Constitution of India from the Judgment and Order dated the 1st August 1951 of the High Court of Judicature at Madras in Criminal Miscellaneous Petitions Nos.1261 and 1263 of 1951. K. Rajah Iyer (R. Ganapathy Iyer and M. section K. Aiyangar with him) for the appellant/petitioners 1145 H.J. Umrigar and section Subramaniam for respondent No. 2. 1954. March 18. The Judgment of the Court was delivered by BOSE J. The question in this case is whether an appeal lies to this court under section 476B of the Criminal Procedure Code from an order of a Division Bench of a High Court directing the filing of a complaint for perjury. Two persons Govindan and Damodaran filed petitions under section 491 of the Criminal Procedure Code for release claiming that they had been illegally detained by two Sub Inspectors of Police who are the appellants before us. Govindan said he was being detained by one Sub Inspector and Damodaran said he was being detained by the other. Both the Sub Inspectors said that the petitioners were not in their custody. The first Sub Inspector who was concerned with Govindan said that Govindan had never been arrested by him and had not been in his custody at. any time. The other denied that Damodaran was in his custody. He admitted that he had arrested him at one time but said that he had been released long before the petition. Each swore an affidavit in support of his return. In view of this conflict between the two_ sets of statements the High Court directed the District Judge to make an enquiry. Considerable evidence was recorded and documents were filed and the District Judge reported that in his opinion the statements made by the two Sub Inspectors were correct. The High Court disagreed and after an elaborate examination of the evidence reached the conclusion that the petitioners were telling the truth and not the Sub Inspectors. The petitioners were however regularly arrested after their petitions and before the High Court 's order; one was released on bail and the other was remanded to jail custody by an order of a Magistrate. Accordingly their petitions became infructuous and were dismissed. After this the petitioners applied to the High Court under section 476 of the Criminal Procedure Code and 1146 asked that the Sub InsPectors be prosecuted for perjury under section 193 Indian Penal Code. The applications were granted and the Deputy Registrar of the High Court was directed to make the necessary complaints. The Sub Inspeetors thereupon asked for leave to appeal to this court. Leave was refused on the ground that no appeal lies but leave was granted under article 132 as an interpretation of articles 134 (1) and 372 of the Constitution was involved. The Sub Inspectors have appealed here against that order as also against the order under section 476. In addition as an added precaution they have filed a petition for special leave to appeal under article 136 (1). The first question we have to decide is whether there is a right. of appeal. That turns on the true meaning of section 476B of the Criminal Procedure Code read with section 195 (3). The relevant portion of the former reads thus : "Any person against whom a complaint has been made" [under section 476] "may appeal to the court to which such former court is subordinate within the meaning of section 195 (3). " The latter section reads "For the purpose of this section a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court. . " The rest of the section does not concern us. Two things are evident. First that a right of appeal has been expressly conferred by section 476B provided there is a higher forum to which an appeal can be made; and second that the appellate forum has been designated in an artificial way. The appeal lies to the court to which the former court is subordinate within the meaning of section 195 (3). But "sub. ordinate" does not bear its ordinary meaning. It is used as a term of art and has been given a special meaning by reason of the definition in section 195 (3): a fiction has been imposed by the use of the word "deemed". We have accordingly next to examine the content of the fiction. 1147 The section says that the court making the order under section 476 shall be deemed to be subordinate to the court (a) to which appeals ordinarily lie (b) from the appelable decrees or sentences of such former court. Now the former court in this case is a Division Bench of the High Court. The only court to which an appeal ordinarily lies from the appealable decrees and sentences of a Division Bench of a High Court is this court. Therefore a Division Bench of a High court is a court "subordinate" to this court within the meaning of section 195 (3); accordingly an appeal lies to this court from an order of a Division Bench under section 476. It was contended that there is no ordinary right of appeal to this court and that such rights as there are those expressly conferred by the Constitution in a very limited and circumscribed set of circumstances therefore such appeals as lie to this court cannot be said to lie "ordinarily". We do not agree. Such an argument concentrates attention on the word "ordinarily" and ignored the words "appealable decrees or sentences". Before we can apply the definition we have first to see whether there is a class of decrees or sentences in the court under consideration which are;at all open to appeal. If there are not the matter ends and there is no right of appeal under section 476.B. If there are then we have to see to which court those appeals will "ordinarily" lie. It is evident that the only court to which the appealable decrees and sentences of a Division Bench of a High Court can lie is the Supreme Court. There is no other court to which an appeal can be made. It follows that is the ordinary course in the case of all appealable decrees and sentences and that consequently this is the court to which such appeals will ordinarily lie. As there is a right of appeal we have next to consider the matter on its merits and there the only relevant consideration is whether "it is expedient in the interests of justice" that an enquiry should be 1148 made and a complaint filed. That involves a careful balancing of many factors. The High Court has scrutinised the. evidence minutely and has disclosed ample material on which a judicial mind could reasonably reach the conclusion that there is matter here which requires investigation in a criminal court and that it is expedient in the interests of justice to have it enquired into. We have not examined the evidence for ourselves and we express no opinion on the merits of the respective cases but after a careful reading of the judgment of the High Court and the report of the District Judge we can find no reason for interfering with the High Court 's discretion on that score. We do not intend to say more than this about the merits as we are anxious not to prejudge or prejudice the case of either side. The learned Judges of the High Court have also very rightly observed in their order under section 476 that they were not expressing any opinion on the guilt or innocence of the appellants. We were informed at the hearing that two further sets of proceedings arising out of the same facts are now pending against the appellants. One is two civil suits for damages for wrongful confinement. The other is two criminal prosecutions under section 344 Indian Penal Code for wrongful confinement one against each Sub Inspector. It was said that the simultaneous prosecution of these matters will embarrass the accused. But after the hearing of the appeal we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready as the High Court records were not available on the application of the accused As these prosecutions are not pending at the moment the objection regarding them does not arise but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should 1149 be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule ban. be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other or even relevant except for certain limited purposes such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things glide till memories have grown too dim to trust. This however is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example the civil case or the other criminal proceeding may be so hear its end as to make it inexpedient to stay it in order to give precedence to a prosecution order of under section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished. The result is that the appeal fails and is dismissed but with no order about costs. Civil Suits Nos. 311 of 1951 to 314 of 1951 in the Court of the Subordinate Judge Coimbatore will be stayed till the conclusion of the prosecution under section 193 Indian Penal Code. As the plaintiffs there are parties here there is no difficulty about making such an order. The petition for special leave is dismissed. Appeal dismissed.

Held that an appeal is competent to the Supreme Court under section 476B of the Code of Criminal Procedure from an order of a Division Bench of a High Court directing the filing of a complaint for perjury. Also held that the simultaneous prosecution of civil and criminal proceedings regarding the same matter is likely to embarrass the accused and so ordinarily and in the absence of special circumstances the criminal proceedings should be given precedence and the civil proceedings should be stayed pending the termination of the criminal.

Appeals Nos. 187 and 188 of 1953. Appeals under article 132 of the Constitution of India from the Judgment and Order dated the 29th August 1952 of the High Court of Judicature at Madras in Writ Petitions Nos. 21 and 41 of 1952. K.V. Venkatasubramania Iyer (A. N. Rangaswami and. section K. Aiyangar with him) for the appellant. M. Seshachalapathi for the respondent. V.K. T. Chari Advocate General of Madras (V. V. Raghavan with him) for the intervener (State of Madras). T. R. Balakrishna lyer and Sardar Bahadur for the intervener (State of Travancore Cochin). Nittoor Sreenivasa Rao Advocate General Of Mysore (Porus A. Mehta with him) for the intervener (State of Mysore). Lal Narayan Sinha (B. K. P. Sinha with him) for the intervener (State of Bihar). March 11. The Judgment of the Court was delivered by DAS J. These two appeals arise out of Writ Petitions Nos. 21 'and 41 of 1952 filed in the High Court of Judicature at Madras under article 226 questioning the validity of the Madras General Sales Tax Act (IX of 1939) and of the Turnover and Assessment Rules framed under that Act. 1119 The petitioners are tanners carrying on business in Eluru West Godawari District which is now part of the newly created State of Andhra. They make large purchases of untanned hides and skins and after tanning them in their tanneries they export the tanned hides and skins or sell the same to local purchasers. In the High Court the appellants impugned the Act and the rules on the following grounds : I (a) The Provincial Legislature had no power under the Government of India Act of 1935 to enact a law imposing a tax on purchasers; (b) The liability to pay tax on sales is thrown on the purchaser not by the statute but by the rules. This is an unconstitutional delegation by the legislature of its functions to the executive and the imposition of the tax is accordingly illegal; (c) The Act has become void under article 14 of the Constitution as it singles out for taxation purchasers in some trades and is therefore discriminatory; and (d) The rules framed under the Act are inconsistent with the provisions enacted in the body of the Act and are void. The High Court repelled each of the aforesaid grounds except that under item (d). It held that rule 16(5) was ultra vires in that it offended against section 5 (vi) of the Act and dismissed their applications. Hence the present appeals by the appellants under the certificate granted by the High Court that it was a fit case for appeal to this court. Learned advocate appearing in support of these appeals has not pressed the objection under item (b) but has insisted on the remaining grounds of objection. In our opinion the decisions of the High Court on those grounds are substantially well founded and correct. On the question of legislative competency the learned advocate drew our 'attention to entry 54 in List II of the Seventh Schedule to the Constitution of India and argued that this entry clearly indicated that entry 48 in List II of the Seventh Schedule to the Government of India Act 1935; under which the 145 1120 impugned Act was passed was much narrower in its scope and could not be read as authorise in a the making of a law with respect to taxes on the purchase of goods. This argument appears to us to be fallacious for the intention of the Constituent Assembly as expressed in entry 54 in List II of the Seventh Schedule to the Constitution cannot be a guide for ascertaining the intention of a totally different body namely the British Parliament in enacting entry 48 in List 11 of the Seventh Schedule to the Government of India Act 1935. Further we agree with the High Court that entry 48 in List II of the Seventh Schedule to the Government of India Act on a proper construction was wide enough to cover a law imposing tax on the purchaser of goods as well and that the Constituent Assembly in entry 54 of List II in the Seventh Schedule to the Constitution accepted this liberal construction of the corresponding entry 48 and expressed in clearer language what was implicit in that corresponding entry. The next point urged by the learned advocate was founded on article 14 of the Constitution. The appellants ' grievance is that the impugned Act singles out for taxing purchasers of certain specified commodities only but leaves out purchasers of all other commodities. The principle underlying the equal protection clause of the Constitution has been dealt with and explained in Chiranjitlal Chowdhury vs The Union of India (1) and several subsequent cases and need not be reiterated. It is well settled that the guarantee of equal protection of laws does not require that the same law should be made applicable to all persons. Article 14 it has been said does not forbid classification for legislative purposes provided that such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. As pointed out by the majority of the Bench which decided Chiranjitlal Chowdhury 's case there is a strong presumption in favour of the validity of legislative classification and it is for those who challenge it as (1) [1950] S.C.R. 1121 unconstitutional to allege and prove beyond all doubt that the legislation arbitrarily discriminates between different persons similarly circumstanced. There is no material on the record before us to suggest that the purchasers of other commodities are similarly situated as the purchasers of hides and skins. The majority decision in Chiranjitlal Chowdhury 's case(1) clearly applies to the case before us and there is no getting away from the position that the appellants before us have not discharged the burden of proof that according to the majority decision was upon them to do. Lastly the learned advocate urges that rule 16(5) clearly contravenes the provisions of section 5(vi) of the Act. This sub rule has been held to be ultra vires by the High Court and indeed the learned Advocate General of Madras did not in the High Court as before us dispute that rule 16(5) was repugnant to section 5(vi). That sub rule however affects only unlicensed dealers and the appellants who are admittedly licensed dealers are not affected by that sub rule. Further it has not been suggested before us that the appellants were ever called upon to pay any tax on purchase of hides or skins in respect of Which tax had been previously paid by some prior purchaser. That sub rule is clearly severable and cannot affect the validity of the rules which may otherwise be within the ambit of the Act. Our attention has not been drawn to any other infirmity in the rules. In the premises there is no substance in these appeals which must therefore be dismissed with costs. Appeals dismissed. Agent for the respondent and for the interveners States of Madras Mysore and Bihar: R. H. Dhebar.

Held that the Madras General Sales Tax Act (IX of 1939) is not ultra vires the Government of India Act 1935 as entry 48 in List II of the Seventh Schedule to the Government of India Act 1936 was wide enough to cover a law imposing 'a tax on the purchaser of goods as well as on the seller. Held also that inasmuch as there was nothing to suggest that the purchasers of other commodities were similarly situated as the purchasers of bides and skins in the present case the Act 1118 was not void under article 14 of the Constitution on the ground that the impugned Act singles Out for taxing purchaser of certain specified commodities only but leaves out purchasers of Mother commodities. Article 14 does not forbid classification for legislative purposes provided such classification is based on some differentia having a reasonable relation to the object and purpose of the law in question. Rule 16(5) framed under the Act contravenes the provisions of section 5(vi) of the Act but this sub rule is severable and does not affect the validity of the rules which may otherwise lie within the ambit of the Act. Chiranjit Lal Chowdhury vs The Union of India ([1950] S.C.R. 869)relied upon.

05 of 1953. Under article 32 of the Constitution of India for the enforcement of Fundamental Rights and APPELLATE JURISDICTION: Case No.1 of 1950 1047 Appeal under section 205 of the Government of India Act 1935 from the Judgment and Decree dated the 13th September 1949 of the High Court of Judicature Orion in First Appeal No. 39 of 1949 arising out of the Judgment and Decree dated the 11th September 1945 of the Court of the District Judge Cutback in Original Suit No. 3 of 1943. N. C. Chattanooga (B. K. Saran and B. C. Pratt with him) for the petitioners and appellants Nos. 1 to 13. section P. Sinclair (B. K. Saran and R. C. Pratt with him) for appellants 14 to 16. M. C. Seth (G. N. Jose with him) for respondents in both the matters. Agent R. H. Debar. March 16. delivered by MUKHERJEA J. These two connected matters are taken up together for the sake of convenience and may be disposed of by one and the same judgment. Petition ;No. 405 of 1953 has been presented to this court under article 32 of the Constitution and the petitioners are the Mahants or superiors of two ancient and well known religiousinstitutions of Orissa both of which have endowmentsof considerable value situated within and outside the Orissa State. An Act known as the .Orissa Hindu Religious Endowments Act was passed by the Orissa Legislative Assembly functioning under the Government of India Act 1935. in the vear 1939 and it received the assent of the Governor General on the 31st August 1939. The object of the Act as stated in the preamble is "to provide for the better administration and governance of certain Hindu religious endowments" and ' the expression "religious endowment" has been defined comprehensively in the Act as meaning all property belongto or given orendowed for the support of Maths or temples or for the performance of any service orcharity connected therewith. The whole scheme of the Act is to vest the control and supervision of public temples and Maths in a statutory authority designated as the Commis. sioner of Hindu Religious Endowments and to confer 1048 upon him certain powers with a view to enable him to exercise effective control over the trustees of the Maths and the temples. The Commissioner is required to be a member of the Judicial or Executive Service of the Province and his actions are subject to the general control of the provincial Government. For the purpose of meeting the expenses of the Commissioner and his staff every Math or temple the annual income of which exceeds Rs. 250 is required under section 49 of the Act to pay an annual contribution at certain percentage of the annual income which increases I progressively with the increase in the income. With this contribution as well as loans and grants made by the Government a special fund is to be constituted as provided by section 50 and the expenses of administering the religious endowments are to be met out of this fund. In July 1940 a suit out of "which the Case No. 1 of 1950 arises was instituted in the court of the District Judge of Cuttack by a number. of Mahants including .the two petitioners in the petition under article 32 before us. praying for a declaration that the Orissa Relig ious Endowments Act of 1939 was ultra vires the Orissa Legislature and for other consequential reliefs. The validity of the Act was challenged substantially on three grounds namely (1) that the subject matter of legislation was not covered by Entry 34 of List 11 in Schedule VII of the Government of India Act 1935 ; (ii) that the contribution levied under section 49 was in substance a tax and could not have been imposed by the Provincial Legislature; and (iii) that as the provisions of the Act affected the income of properties situated outside the territorial limits of the Province the Act was extra territorial in its operation and hence inoperative. All these contentions were overruled by the District Judge of Cuttack who by his judgment dated the 11 th September 1945 dismissed the plaintiffs ' suit. Against that decision an appeal was taken by the plaiitiffs to the High Court of Orissa and the appeal was heard by a Division Bench consisting of Jagannedbadas and Narasimham JJ. The learned Judges by two separate but concurring judgments dated the 13th September. 1949 affirmed the decision 1049 of the District Judge and dismissed the appeal. it is against this judgment that Case No. 1 of 1950 has come to this court. During the pendency of the appeal in this court the Constitution came into force on the 26th January 1950 with its chapter on fundamental rights and the Orissa Hindu Religious Endowments Act also has been amended recently by the State Legislature of Orissa by Amending Act II of 1952. In view of these changes the present application under article 32 of the Constitution has been filed by two of the Mahants who figured as plaintiffs in the Declaratory Suit of 1940 and the application has been framed comprehensively so as to include all points that could be urged against the validity of the Orissa Hindu Religious Endowments Act on the basis of the provisions of the Constitution. It is conceded by both the parties that in these circumstances it is not necessary for us to deal separately with the appeal. The decision which we would arrive at in the petition under article 32 will be our pronouncement on the validity or otherwise of the different provisions of the impugned Act. It may be stated at the beginning that the Orissa Hindu Religious Endowments Act of 1939 follows closely the pattern of the Madras Hindu Religious Endowments Act of 1927 which has been now replaced by a later Act passed by the State Legislature of Madras in 1951 and described as the Madras Hindu Religious and Charitable Endowments Act. The grounds upon which the validity of the Orissa Act has been attacked be fore us are substantially the same as were urged in assailing the constitutional validity of the Madras Act in Civil Appeal No. 38 of 1953 (The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar) the judgment in which has just been delivered. The grounds urged can be classified conveniently under two heads. In the first place some of the provisions of the impugned Act have been challenged as invalid on the ground that they invade the fundamental rights of the petitioners guaranteed under articles 19(1) (f) 25 26 and 27 of the Constitution. The other branch of the contention (1) ; 1050 relates to. the provision for levying contribution on religious institutions under section 49 of the Act and this provision has been impeached firstly on the ground that the contribution being in substance a tax it was beyond the competency of the Provincial Legislature to enact any such provision. The other ground raised is that the payment of such tax or imposition is prohibited by article 27 of the Constitution. The general questions relating to the scope and ambit of the fundamental rights embodied in articles 19 (1) (f ) 25 26 and 27 of the Constitution in connection with Maths and temples have been discussed fully in our judgment in the Madras appeal referred to above and it would not be necessary to reiterate these discussions for purposes of the present case. We can straightaway proceed to examine the different provisions of the Act to which objections have been taken by the learned counsel appearing for the petitioners in the light of the principles which this court has laid down in the Madras appeal. It may be said that many of the impugned provisions of the Orissa Act correspond more or less. to similar provisions in the Madras Act. Section 11 of the Act has been objected to on the ground that it vests almost an uncontrolled and arbitrary power upon the Commissioner. This section corresponds to section 20 of the Madras Act and as has been pointed out in our Judgment in the Madras appeal the powers though seemingly wide can be exercised only to ensure that Maths and temples are properly maintained and the endowments are properly administered. As the object and purpose for which these powers could be exercised have been indicated preoisely we do not think that it could be said that the authority vested in the Commissioner is in any way arbitrary.or unrestricted. The explanation attached to the section only makes it clear that the general power conferred upon the Commissioner extends to passing of interim orders as the Commissioner might think fit. Section 14 lays down the duties of the trustee and the care which he should exercise in the management 1051 of the affairs of the religious institutions. The care which he has to exercise is What is demanded normally of every trustee in charge of trust estate and the standard is that of a man of ordinary prudence dealing with his own funds or properties. This is a matter relating to the administration of the estate and and does not interfere with any fundamental rights of the trustee. For the same reason we think no objection could be taken to the provision of section 28 which lays down that the trustee of a temple shall be bound to obey all orders issued under the provisions of the Act by the Commissioner. if the orders are lawful and made in pursuance of authority properly vested in the officer no legitimate ground could be urged for not complying with the orders. The sections of the Act to which serious objections have been taken are sections 38 39 46 47 and 49. Sections 38 and 39 relate to the framing of a scheme. A scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the Act provides for the framing. of a scheme not by a civil Court or under its supervision but by the Commissioner who is a mete administrative or executive officer. There is also no provision for appeal against his order to the court. Under section 58 of the Madras Act although the scheme is to be framed by the Deputy Commissioner an appeal lies against his order to the Commissioner in the first place. A party aggrieved by the order of the Commissioner again has a right of suit in the ordinary civil court with a further right of appeal to the High Court. It seems that sub section (4) of section 39 of the impugned Act as it originally stood allowed the trustee or any person having an interest in the institution to file a suit in a civil court to modify or set aside an order framing a scheme; and under section 40 the order made under section 39 could be final only subject to the result of such suit. Subsection (4) of section 39 however was deleted by the Amending Act of 1952 and under the new sub section (4) the order passed by the Commissioner has been made final and conclusive. Strangely however section 41 of the Act has still been retained in its 1052 original shape and that speaks of an order settling a scheme being set aside or modified by the court. Obviously this is careless drafting and the Legislature did not seem to have adverted to the apparently contradictory provisions that it made. The learned Attorney General appearing for the State of Orissa has also conceded that these sections require redrafting. We think that the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office. Sections 38 and 39 of the Act must therefore be held to be invalid. There is nothing wrong in the provision of section 46 itself but legitimate exception we think can be taken to the proviso appended to the section. Under the law as it stands the Mahant or the superior of a Math has very wide powers of disposal over the surplus income and the only restriction that is recognised is that he cannot spend the income for his own personal use unconnected with the dignity of his office. The purposes specified in section 46 are all conducive to the benefit of the institution and there is no reason why the discretion of the trustee in regard to the spending of surplus for such purposes also should be still further restricted by directions which the Commissioner may choose to issue. Section 47 (1) lays down how the rule of cy pres is to be applied not merely when the orginal purpose of the trust fails or becomes incapable of being carried out either in whole or in part by reason of subsequent events but also where there is a surplus left after meeting the legitimate expenses of the institution. Objection apparently could be raised against the last provision of the sub section but as subsection(4) of section47gives the party aggrieved by any order of the Commissioner in this respect to file a suit in a civil court and the court is empowered to modify or set aside such order of the Commissioner we do not think that there is any reasonable ground for complaint. The only other section that requires consideration is sect ion 49 under which every Math or temple having 1053 an annual income exceeding Rs. 250 has got to make an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him. The first question that arises with regard to this provision is whether the imposition is a tax or a fee; and it is not disputed that if it is a tax the Provincial Legislature would have no authority to enact such a provision. This question has been elaborately discussed in our judgment in the Madras appeal referred to above and it is not necessary to repeat the discussions over again. As has been pointed out in the Madras appeal there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself. Our Constitution however has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the three lists with regard to various forms of taxation there is an entry at the end of each one of these lists as regards fees which could be levied in respect of every one of the matters that are included therein. A tax is undoubtedly in the nature of a complusory exaction of money by a public authority for public purposes the payment of which is enforced by law. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax. The taxes collected are all merged in the general revenue of the State to be applied for general public purposes. Thus tax is a common burden and the only return which the taxpayer gets is the participation in the common benefits of the State. Fees on the other hand are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom payments are demanded. Thus in fees there is always an element of quid pro quo which is absent in a tax. Two elements are thus essential in order that a payment may be regarded as a fee. It the first place it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make 136 1054 the imposition a fee if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State.to be spent for general public purposes. Judged by this test the contribution that is levied by section 49 of the Orissa Act will have to be regarded as a fee and not a tax. The payment is demanded only for the purpose of meeting the expenses of the Commissioner and his office which is the machinery set up for due administration of the affairs of the religious institution. The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute the fund which is contemplated by section 50 of the Act and this fund to which also the Provincial Government contributes both by way of loan and grant is specifically set apart for the render ing of services involved in carrying out the provisions of the Act. We think therefore that according to the Principles which this court has enunciated in the Madras appeal mentioned above the contribution could legitimately be regarded as fees and hence it was within the competence of the Provincial Legislature to enact this provision. The fact that the amount of levy is graded according to the capacity of the payers though it gives it the appearance of an income tax is not by any means a decisive test. We are further of opinion that an imposition like this cannot be said to be hit by article 27 of the Constitution. What is forbidden by article 27 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 object of the contribution under section 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered. It is the secular administration of the religious institutions that the Legislature seeks to control and the object as enunciated in the Act is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist. As there is no question of favouring any particular religion or religious denomination article 27 could not possibly apply. The result is that in our opinion the only sections of the Act which are invalid are sections 38 39 and the proviso to section 46. The application under article 32 is therefore allowed to this extent that a writ in the nature of mandamus would issue restraining the Commisoner and the State Government enforcing against the petitioners the provisions of the sections mentioned above. The other prayers of the petitioners are disallowed. No separate order is necessary in Case No. I of 1950 which will stand dismissed. We make no order as to costs either in the petition or in the appeal.

Held that sections 38 and 39 and the proviso to section 46 of the Orissa Hindu Religious: Endowments Act 1939 as amended by the Amending Act II of 1952 are ultra vires articles 19(1) (f) 25 and 26 of the Constitution. The annual contribution provided in section 49 of the Act is in the nature of a fee and not a tax and therefore it was within the competence of the Provincial Legislature to enact such a provision. Further an imposition like this is not hit by article 27 of the Constitution because the object of the contribution under section 49 is not the fostering or preservation of the Hindu religion or of any denomination within it but the proper administration of religious trusts and institutions wherever they exist. Civil Appeal No. 38 of 1953 referred to.

Appeals Nos. 29 to 33 89 and 90 of 1949. Appeals from the Judgment and Decree dated the 30th October 1945 of the High Court of Judicature at Madras (Lionel Leach C.J. and Rajamannar J.) in Appeals Nos. 230 300 302 355 356 and 413 of 1943. G.S. Pathak (T. section Santhanam with him) for the appellant in Civil Appeals Nos. 28 and 29 of 1949 respondent No. 1 in Civil Appeals Nos. 30 32 and 33 of 1949 and respondent No. 2 in Civil Appeal No. 31 of 1949 for respondent No. 3 in Civil Appeal No. 31 of 1949 and for respondents Nos. 1 and 2 in Civil Appeals Nos. 89 and 90 of 1949. V.V. Raghavan for the appellant in Civil Appeals Nos. 31 to 33 of 1949 respondent No. 1 in Civil Appeals Nos. 28 and 29 of 1949 and respondent No. 2 in Civil Appeal No. 30 of 1949.B. Somayya (K. Subramaniam and Alladi Kuppuswami with him) for the appellant in Civil Appeals Nos. 30 89 and 90 of 1949 respondent No. 1 in Civil Appeal No. 31 of 1949 and respondent No. 2 in Civil Appeals Nos. 28 29 32 and 33 of 1949. December 14. The Judgment of the Court was delivered by MAHAJAN J. 244 MAHAJAN J. These eight appeals arise out of a common judgment of the High Court of Madras dated the 30th October 1945 given in seven appeals preferred to it against the judgment of the District Judge of Madura in four suits O.S. Nos. 2 5 6 and 7 of 1941 all of which related to the zamindari of Bodinaickanur "in the Madura district and the properties connected therewith. The appeals were originally before the Privy Council in England some by leave of the High Court and others by special leave and are now before us for disposal. The zamindari of Bodinaickanur is an ancient impartible estate in the district of Madura owned by a Hindu joint family. The genealogical tree of the family is as follows : 245 Thirumalai Bodi Naicker Faisal Zamindar : : Rajaya Naicker(Died) : : (1) Bangaru Thirumali Bodi Naicker Zamindar 1849 1862(Died) : : : : : : T. B. Kamaraja Pandia Naicker Vadamalai Raja Zamindar1962 1888(Died15 12 1888) Pandia Naicker (Widow) Kamuluammal Zamindarini (Died in 1901) 1888 1921(Died 13 1 1921) : : Meenakshi Ammal (Died) : : : : : : : Peria Thayi Chainnathayi alias Satpur alias Muthumeenakshi Veeralakshmi Ammal Zamindar Veerakamulu Ammal (2nd Deft.) T.V.K. (3rd defendant) Kamaraja pandia Naicker late Zamindar (2) Viswanatha Naicker (Died before 1888) : : Kandasami Naicker plff in O.S. 16 of 1889(Died 20 2 1901) : : : : : : Viswanatha Kamaraja Pandia T.V.K. Kamaraja (No.II) Naicker (Died on 29 7 1918) Pandiaya Naicker (Died 16 2 1941) Zamindar 1921 1941 Widow Chinnathayi alias Veeralakshmi Ammal (2nd Deft.) (3) Sundara Pandia Naicker (Died in 1893) : : : : : : : : : : : : Viswanathaswami Thirumalai Seelaraja Seela Kamaraja Naicker Muthu Vijaya Naicker Bodi pandia (died) Dalapathi Died on Naicker Naicker Pandia 25 9 1931) Naicker (Died) : : : : : : : T.B.S.S. Rajaya Pandiya Chokkalingaswami Naicker (Plaintiff) Naicker (4) Kulasekara pandia Naicker(No.1) (Died after 10 5 1889 but before 1902) : : : : : : Kulasekara pandiya Muthu Bangaruswami Naicker (No. 2) Naicker (Died) (Died before 1902) : : : : V.Kulasekara pandiya Naicker (1st Deft.) : : : : Vadamalai Muthu Thirumalai Bodaya Kulasekara Sundararaja Pandiya Naicker Pandiya Naicker (5) Chokkalingasami Naicker (Died after 10 5 1889 but before 1902) : : : : : : : : : Tirumalai Bodaya Chhokkalingasami T.B. Kamaraja Sundararau Pandiya Naicker (Died) Pandiya Naicker Naicker (Died) : : : : : : T.B.M.S.K. Pandiya Pandiya Raja Naicker Naicker 246 The zamindari was last held by Kamaraja II of the second branch. He died on 16th February 1941 without male issue but leaving him surviving a widow Chinnathayi alias Veeralakshmi Ammal and members of the family belonging to the third fourth and fifth branches. Succession to the zamindari is admittedly governed by the rule of lineal primogeniture modified by a family custom according to which the younger son by the senior wife is preferred to an eider son by junior wife. According to this custom T.B.S.S. Rajaya Pandiya Naicker of the third branch was entitled to the zamindari after the death of Kamaraja II of the second branch. His claim was denied by the widow and by Kulasekara Pandiya Naicker of the fourth branch both of whom claimed the zamindari on different grounds. It was alleged by the widow that the zamindari was the separate and exclusive property of her husband and that being so she was entitled to it under the rule of Mitakshara applicable to devolu tion of separate property. Kulasekara of the fourth branch claimed it on the basis that Sundata Pandiya Naicker of the third branch who died in 1893 had separated from the family and had renounced his and his descendants ' rights of succession to the zamindari and the third 'branch having thus lost all interest in the joint family zamindari he was the next person entitled to it by survivorship. On 28th April 1941 the revenue officer allowed the claim of Kulasekara and held that he was entitled to posses sion of the zamindari and the pannai lands (home farm lands) which were in the possession of Kamaraja II. As regards one of the villages comprised in the zamindari viz. Boothipu ram the title of the widow was recognized. In pursuance of this order Kulasekara got into possession of the zamindari and the pannai lands after the death of Kamaraja II. Boot hipuram village remained in the possession of the widow. Dissatisfied with the order of the revenue officer the parties have instituted the suits out of which these appeals arise. 247 On the 22nd June 1941 the widow (Chinnathayi) brought suit No. 5 of 1941 for possession of the zamindari against Kulasekara of the fourth branch Rajaya and his uncle Seela bodi Naicker of the third branch T.B.M.S.K. Pandiya Naicker and Kamaraja Pandiya Naicker of the fifth branch on the allegations set out above. On the 4th July 1941 she and her sister instituted suit No. 2 of 1941 against the same set of defendants for cancellation of the deed of release that had been executed by her and her sister in favour of Kamaraja II on the 9th June 1934 in respect of the pannai lands that were in the possession of Kulasekara of the fourth branch under the order of the revenue officer. The third suit O.S. No. 6 of 1941 was brought by Rajaya of the third branch on 27th August 1941 for posses sion of the zamindari Boothipuram village and the pannai lands against Kulasekara of the fourth branch and the two plaintiffs in suit No. 2 of 1941 on the allegation that under the rule of lineal promogeniture he was the person next entitled to succeed to the zamindari after the death of Kamaraja II. The last suit O.S. No. 7 of 1941 was instituted by Kulasekara of the fourth branch on 13th October 1941 against the widow and Rajaya his rival claimants to the zamindari for a declaration that he was the rightful heir and successor to the zamindari and was entitled to posses sion of Boothipuram village registered in the name of the widow. The zamindari of Bodinaickanur orginally consisted of fifteen villages mentioned in schedule (A) to the plaint in O.S. No. 6 of 1941 and of certain pannai (home farm)lands and buildings. Tirumalai Bodi Naicker was the holder of this impartible raj. He was succeeded by his son Rajaya Naicker who died in 1849 leaving him surviving five sons Bangaru Tirumalai Bodi Naicker Viswanatha Naicker Sundara Pandiya. Naicker Kulasekara Pandiya Naicker and Chokkalin gaswami Naicker representing the first second third fourth and fifth branches respectively. Rajaya 248 Naicker was succeeded by his eldest 'son Bangaru Thirumalai Bodi Naicker who died on the 27th October 1862 and was succeeded by his son. T.B. Kamaraja Pandiya Naicker (Kamara ja I) who remained as zamindar till his death on 15th Decem ber. He had no son and on his death his widow Kamulu ammal got into possession of the estate. Proceedings for transfer were taken in the revenue court for registry of the zamindari and statements of the male members of the family belonging to the second third fourth and fifth branches and of the widow were recorded by the Deputy Collector. On 18th December 1888 the representatives of these branches stated that they had no objection to Kamuluammal enjoying the zamindari. On the 19th Kamuluammal asserted that her husband by his will had bequeathed the zamindari to her and had given her permission to make an adoption. On the same date the representatives of all branches of the family made a joint statement before the Deputy Collector. The relevant portion of it is in these terms : "We four persons are his heirs to succeed and yet we agree to his widow Kamuluammal taking and enjoying the above said zamin and all other properties save the undermentioned lands set apart for our maintenance. Remission of the tirwah of the said lands allowed to us and of the tirwah of the lands registered in our names and enjoyed till now should be granted to us. " 544 kulies of pannai lands under the Bangaruswami tank and the Marimoor tank were earmarked for the maintenance of the four branches. The widow made a statement on 20th ac cepting this arrangement. The Deputy Collector submitted his report on the 5th of January 1889 to the Collector upholding the will. The Collector in his turn also recorded the statements of the representatives of the several branch es of the family. Persons representing the third fourth and fifth branches adhered to the previous statements made by them but Kandasami of the second branch resiled from his earlier statement and asserted that the 249 family being divided he was the next heir to the zamindari. No notice was taken in these proceedings of Vadamalai the half brother of Kamaraja I Sundara Pandiya 's statement before the Collector on the 9th January 1889 was in these terms : "The wish of the family is that the widow should be in charge of the estate. I know nothing about the execution of the will. After the death of the widow the next heir should succeed. He is Kandaswami son of Viswanathaswami Naicker my eldest brother deceased. ' ' To the same effect were the statements of Kulasekara of the fourth branch and of Chokkalingaswami of the fifth branch. Kandaswami 's statement was recorded on the 14th January 1889 and he said as follows : "I am the next heir to the zamin the family being undivided. I must get it." He repudiated his earlier statement on the ground that at that time he was ill and was drowned in sorrow and "some rogue imitated his signature" and put it on his previous statement. The revenue Officer ordered that the widow 's name be registered as the next person entitled to the zamindari subject to any order that the civil court might make in the case. On the 1st May 1889 Kandasami filed O. S No. 16 of 1889 in the court of the Subordinate Judge of Madura im pleading the widow and the Collector as defendants for recovery of the entire zamindari as it then existed includ ing the villages of Boothipuram and Dombacheri and the pannai lands. He alleged that he as a member of the undivided Hindu family was entitled to succeed to the zamindari by survivor ship and in accordance with the established rule applicable to the devolution of this zamindari. Kamuluammal denied this claim and asserted that the zamindari was the separate property of her husband and she was entitled to it in pref erence to her husband 's collaterals. She also based her claim on the alleged will of her husband. Sundara Pandiya of the third branch laid a claim to the zamindari and the 33 250 pannai lands on the ground that he as senior in age amongst the family members was entitled to them in preference to Rajaya on the rule of simple primogeniture. In view of the pending and threatened litigation the contesting parties thought it fit to end their disputes by a mutual settlement beneficial to all of them. Sundara Pandiya was the first to strike a bargain with the widow. On the 6th May 1890 a deed of release (Exhibit P 17) was executed by him in favour of Kamuluammal incorporating the terms of the agreement. He managed to get from her in consideration of the release the village of Dombacheri absolutely for himself and his heirs. She bound herself to pay the peishkush and road cess of the said village without any concern about that on the part of Sundara Pandiya. He was also allowed to enjoy free of rent from generation to generation with power of alienation by way of gift sale etc. the one fourth share in the pannai lands under the irrigation of the Bangaruswami tank and the Marimoor tank and mentioned in the joint state ment made by the several branches of the family before the Deputy Collector in December 1888. Over and above this he received a cash payment of Rs. 3 000. With the exception of Dombacheri village and of the one fourth share in the said pannai lands all the other properties which belonged to Kamaraja I were to be held and enjoyed with all rights by Kamuluammal and her heirs with the power of alienation thereof by way of gift sale etc. absolutely. The fourth clause of the release is in these terms : "Whatever rights over the said zamin properties and in all the other above mentioned properties the said Sundara Pandiya Naicker Avargal might possess he gives up such rights absolutely in favour of the said Kamuluammal Avargal and her heirs enabling them to enjoy them with the power of alienation thereof by way of gift sale etc. and whatever rights the said Kamuluammal might possess over the Dombach eri village and over the lands lying under the irrigation of the Bangarusami tank and the Marimoor tank and specified in the third column of the schedule hereto 251 which are given up to the aforesaid Sundarn Pandiya Naicker Avargal the said Kamuluammal Avargal hereby gives up such rights absolutely in favour of the said Pandiya Naicker Avargal and his heirs enabling them to enjoy them with the power of alienation thereof by way of gift sale etc. " Clause 5 runs thus : "The said Kamuluammal and her heirs shall have no claim at all to the properties shown as belonging to Sundara Pandiya Naicker Avargal as aforesaid and the said Sundarn Pandiya Naicker Avargal and his heirs shall have no claim at all to the properties shown as belonging to the said Kamu luammal Avargal. " This deed was presented for registration on 10th May 1890. On the same day O.S. No. 16 of 1889 i.e. Kandasami 's suit was also compromised Exhibit P 18 contains the terms of that compromise. The following are its important provi sions : (a) The zamindari shall be enjoyed by Kamuluammal till her lifetime and she shall have no right to mortgage those properties in any way prejudicial to the plaintiff. (b) Kandasami and his heirs shall after the lifetime of Kamuluammal enjoy the zamindari excepting Dombacheri vil lage together with such rights if any as the first defendant Kamuluammal may have acquired under the deed of release executed between her and Sundarn Pandiya. (c) Boothipuram village shall be given to the plaintiff by Kamuluarnmal so that she may enjoy it with absolute rights. The entire peishkush and the road cess for the entire zamindari inclusive of the said village shall be paid by Kamuluammal. (d) The one fourth share in pannai lands situated on the irrigation areas of Bangaruswami tank and Marimoor tank shall be enjoyed by Kandaswami and his heirs with powers of alienation and with absolute rights. (e) Rs. a5 000 shall be paid to Kandasami by Kamuluam mal. 252 (f) All the other pannai lands buildings and movables which belonged to the deceased Kamaraja Pandiya Naicker shall be held and enjoyed by Kamuluammal and her heirs with powers of alienation etc. and with absolute rights free from any future claim on the part of Kandaswami and his heirs. (g) The movable and immovable properties which may be acquired by Kamuluammal from out of the income of the za mindari shall belong to her with power of alienation etc. and shall go to her own heirs after her lifetime. (h) Kamuluammal shall not make an adoption. By the proceedings taken before the Collector and by the arrange ment made under Exhibits P 17 and P 18 the disputes that had then arisen in the family were settled. Kamuluammal however did not with good grace part with the properties which she had agreed to give to others under the arrange ment. The terms of the compromise had to be enforced against her by a number of suits and actions one by one. Be that as it may it is not denied now that the arrangement arrived at was eventually acted upon. Kandasami and his sons enjoyed the Boothipuram village and one fourth of the pannai lands in the two tanks absolutely. Sundara Pandiya and his descendants enjoyed Dombacheri and one fourth pan nailands the fourth and fifth branches obtained possession of one fourth share of the pannai lands under the two tanks. Kamuluammal secured revenue registration and remained in possession of the property down to the date of her death on lath January 1921. On her death the estate became vested in the possession of Kamaraja II the sole male representative of the second branch his father Kandasami and his brother Viswanathaswami having predeceased Kamuluam mal. He had been married to Chinnathayi (Veeralakshmi) one of the grand daughters of Kamuluammal during her lifetime. In the year 1925 the zamindar of Saptur the son of Kamulu 's deceased daughter Meenakshi instituted 253 O.S. No. 7 of 1925 against his sisters Chinnathayi and Periathayi and Kamaraja II for recovery of the pannai lands and buildings which had vested absolutely in Kamulu under the compromise decree on the allegation that these were held by her as a widow 's estate and that he as the daughter 's son was entitled to succeed to them. The suit was resisted by the two sisters on the plea that these lands were stridhanam properties of Kamulu and they as stridhanam heirs were entitled to them in preference to their brother. Kamaraja II contended that he was entitled to these lands and buildings as they formed an integral part of the zamind ari and were treated as such by Kamulu. This suit was dis missed and the plea of the two sisters was upheld. On 9th June 1934 both of them executed a deed of release in favour of Kamaraja II whereby they conceded his claim to the pannai lands and the buildings as being appurtenant to the zamindari in consideration of his agreeing to pay Rs. 300 per mensem for life to each of them. On the death of Kamaraja II on the 16th February 1941 as already stated the second branch of the family became extinct and disputes arose in regard to the succession to the zamindari pannai lands buildings etc. and the village of Boothipuram. As above stated the claimants to the za mindari are three in number Rajaya of the third branch Kulasekara of the fourth branch and Chinnathayi alias Veeralakshmi the widow of the late zamindar. The District Court and on appeal the High Court have concurrently held that Rajaya was the person entitled to the zamindari. The District Court further held that the village of Boothipuram continued to be part of the zamin and decreed the same to the plaintiff Rajaya. As regards the pannai lands it was held that these had been conveyed absolutely to Kamulu under Exhibit P 18 and that her daughter 's daughters Periathayi and Chinnathayi. succeeded to the same as her stridhanam heirs and that the release deed executed by them on the 9th June 1934 was invalid and inoperative to convey a valid title to Kamaraja 11. On appeal the High Court 254 confirmed the findings of the District Court as regards the pannai lands and buildings but reversed its findings as regards succession to Boothipuram. It held that Kandasami obtained Boothipuram village as his selfacquired property and that Chinnathayi was entitled to succeed to the same on the demise of her husband Kamaraja II. The various sets of parties have preferred the above appeals against the deci sion of the High Court to the extent it goes against them. The points for determination in these appeals are the following : 1. Who out of the three claimants is entitled to the zamindari. Whether Boothipuram village is still an integral part of the zamindari or did it become the self acquired property of Kandasami by the compromise Exhibit P 18. 3. Whether the pannai lands and buildings are part of the zamindari or became the stridhanam of Kamuluammal by the compromise decree and did not merge in the zamindari by the release deed of 1934. The question relating to the pannai lands and buildings can be shortly disposed of. Both the courts below have held that under the arrangement arrived at amongst the members of this family in the year 1890 these lands became the stridha nam of Kamuluammal and passed on to her stridhanam heirs i.e. her granddaughters Chinnathayi and Periathayi and that the deed of release executed by the two sisters in favour of Kamaraja II was vitiated by fraud and was not binding on Chinnathayi and the other heirs. This finding could not be seriously disputed by Mr. Somayya appearing for Rajaya or by Mr. Raghavan appearing for Kulasekara. It was faintly argued that the pannai lands were left with the widow in the same status in which she was allowed to retain the zamindari. This contention is contrary to the clear recitals of the compromise deed. Kamuluammal was a forceful personality and it seems clear that she agreed to accept the title of Kandasami as next entitled to the 255 estate and to give up her contention based on the will because she was given the zamindari for her lifetime and these pannai lands and buildings absolutely. Kandasami in whom the inheritance had vested was competent in view of the decision in Sartaj Kuari 's case(1) to alienate these lands in her favour and to vest her with absolute interest in them. It has therefore been rightly held that Kamulu became the absolute owner of the lands which in due course devolved on her grand daughters and ceased to be part of the joint family estate. Moreover it does not lie in the mouth of Sundarn Pandiya 's descendants to challenge Kamuluammal 's absolute title to these lands while retaining absolute title in the village of Dombacheri which under the same arrange ment Sundarn Pandiya got absolutely with rights of aliena tion. It was conceded that to the family arrangement ar rived at in the year 1890 and evidenced by the statements made before the Collector the recitals contained in the release deed Exhibit P 17 and those made in the compromise deed Exhibit P 18 all the members of the family were either parties or they accepted it and acted upon it. The result is that the widow Chinnathayi is entitled to the possession of those lands and no other person has any right to them whatever. As regards Boothipuram village the point is a simple one. Under the compromise Exhibit P 18 this village was left with Kandasami the person next entitled to the zamind ari after the death of Kamaraja I. It was separated from the zamindari estate which remained m possession and enjoyment of Kamuluammal for her lifetime. It was said in the compro mise that Kandasami would be the absolute owner of this village. It was argued by Mr. Somayya and the same was the view taken by the trial Judge that Kandasami being the holder of an impartible estate could not by his own unilat eral act enlarge his estate and take a part of this estate in a different right than the right of a holder of an im partible zamindari and that he could not make it separate property by his own act. (1) (1888) 15 I.A. 51. 256 The High Court did not accept this view but reached the decision that all the branches of the family agreed to Kandasami having this village as his private property and that by common consent it was taken out of the zamindari and given to him absolutely and it was thus impressed with the character of separate property. On Kandasami 's death it devolved on his son by succession and not by survivorship and Chinnathayi has a widow 's estate in it after the death of her husband. In the High Court it was conceded that all the members of the family were aware of the terms of the family arrangement and were bound by them. In view of this concession it seems to us that it is not open to any of the parties to these appeals to deny at this stage the right of the widow to this village as an heir to her husband 's es tate. The main fight in all these appeals centres round the title and heirship to the zamindari. The question four determination is whether the zamindari by some process became the separate property of Kandasami and that of his son Kamaraja II. If it became the separate property of Kamaraja II then Chinnathayi his widow would succeed to it on his death; on the other hand if the zamindari re tained its character of joint family property in the hands of Kamaraja II then the question to decide is whether as a result of the arrangement made in 1890 Sundarn Pandiya relinquished his right to succeed to the family zamindari on the failure of nearest male heirs of Kandasami. If such relinquishment on his part is held satisfactorily estab lished then Kulasekara of the fourth branch would be enti tled to succeed to the zamindari; otherwise Rajaya of Sun darn Pandiya 's branch alone is entitled to it under the rule of succession applicable to the devolution of the zamindari. The claim made by the widow that the zamindari became by the arrangement of 1890 the separate property of Kandasami was disallowed by the High Court on the short ground that the documents Exhibits P 17 and P 18 read along with the various statements made in 1889 cannot be read as changing the character 257 of the estate from that of an impartible estate belonging to the joint family to an estate owned by Kandasami in his individual right. In the view of the High Court the only change effected by the arrangement so far as the estate was concerned was to defer the right of Kandasami to its posses sion as the next in succession until after the death of Kamuluammal. Kandasami could not himself make it his own private property and this was conceded by all. After hear ing Mr. Pathak at considerable length we are in agreement with the High Court on this point. Mr. Pathak argued that on the true construction of Exhibits P 17 and P 18 and on the evidence furnished by these two documents and the statements made antecedent to their execution and also in view of the subsequent conduct of the parties the correct inference to draw was that all the five branches of the family separated in the year 1890 and thus put an end to the joint family character of the zamindari that Kandasami was allotted the zamindary Boot hipuram village and one fourth pannai lands under the two tanks Sundara Pandiya was allotted Dombacheri village and one fourth of the pannai lands and that the fourth and fifth branches in lieu of their share were assigned one fourth of the pannai lands irrigated by the two tanks mentioned above and by these allotments the joint family was completely disrupted and the properties allotted to the different branches became their separate properties. Reference was made to the decisions of the Privy Council in Vadreun Ranganayakamma vs Vadrevu Bulli Ramaiya (1); Sivagnana Tevar vs Periasami(2); Thakurani Tara Kumari vs Chaturbhuj Narayan Singh (3); and it was contended that the present case was analogous to the facts of those cases and should be decided on similar lines. We are of the opinion that the facts of none of those cases bear any close resem blance to the facts of the present case. The decision in (1) (3) (1915) 42 I.A. 192 (2) (1877) 5 I.A. 51. 34 258 each one of those cases was given on their own peculiar set of circumstances. In the first case the owner of an impartible zamindari forming part of family property died leaving four sons and an infant grandson by his eldest son. During the minority of the grandson the four surviving sons executed a sanad which directed that the zamindari should be held by the grandson and that they should take an equal share of the inam lands and also manage the zamindari during the infancy of the grandson which on his attaining majority had to be handed over to him each confining himself to the share of the inam lands allotted to them. Certain family jewellery was also divided in a similar manner. This grandson then died leaving a son who also died without any issue but leaving a widow. Her title to the zamindari was denied by the descendants of the four sons of the zamindar. It was held that the sanad amounted to an agreement by which the joint family was divided and that on the death of the last holder his widow was entitled to the zamindari. It was observed in this case that having partitioned the lands the parties to the sanad proceeded to partition the jewels and this circumstance was inconsistent with the supposition that the document was executed with the intention of merely providing allotments in lieu of maintenance. It is clear from the facts of this case that the family owned other coparcenary properties besides the zamindari and the zamind ari in dispute fell to the lot of the grandson as his sepa rate property. There were other materials in the case indicating that there was complete separation between the members of this family. In the next case an impartible zamindari had devolved on the eldest of three undivided Hindu brothers. He exe cuted an instrument appointing his second brother to be zamindar. The instrument recited that if the widow of the deceased who was pregnant did not give birth to a son but a daughter he and his offspring would have no interest in the zamindari of 259 which his younger brother would be the sole zamindar who would also allow maintenance to the third brother. The widow gave birth to a daughter and the second brother took over the zamindari. The third brother also died without issue. On the death of the second brother his son succeeded and the zamindari devolved on him who died leaving a widow. The son of the eldest brother who had renounced the zamind ari sued to recover the estate against the widow. It was held that the instrument executed by the eldest brother was a renunciation by him for himself and his descendants of all interests in the zamindari either as the head or as a junior member of the joint family and consequently it became the separate property of the second brother and the widow was entitled to succeed to it in preference to the line of the eldest brother. The document on the interpretation of which this decision was given was in these terms : "I and my offspring shall have no interest in the said palayapat but you alone shall be the zamindar and rule and enjoy the same allowing at the same time as per former agreement to the younger brother P. Bodhagurusami Tevar who in the pedigree is called Chinnasami the village that had been assigned to him before. " These words were interpreted as amounting to a renuncia tion of all interest in the palayapat either as the head of or as a junior member of the joint family. The rights of the youngest brother Chinnasami were expressly reserved. It was said that the effect of the transaction was to make the particular estate the property of the two instead of the three brothers with of course all its incidents of im partibility and peculiar course of the descent and to do so as effectually as if in the case of an ordinary partition between the eider brother on the one hand and the two young er brothers on the other a particular property had fallen to the lot of the other two. Other clauses in the deed and the attending circumstances fully corroborated the construc tion placed upon it. 260 In the last case the holder of an impartible estate of a joint Hindu family made a mokurari grant to his younger brother for maintenance. The grantee built a separate house divided from his brother 's by a wall established therein a tulsi pinda and thakurbari and lived there sepa rately from his brother. He derrayed the marriage expenses of his daughter subsequently to the grant. Upon these facts it was held that there was a complete separation between the brothers and that the impartible estate consequently became separate property of the holder whose widow was entitled to succeed and have a widow 's estate in the zamindari. It was observed that the evidence clearly proved that there had been complete separation between Thakur Ranjit Narayan Singh and his brother Bhupat Narayan Singh in worship food and estate. In our opinion the decision in this case must be limited to the facts therein disclosed and can have no general application to cases of impartible estates where the only right left to the junior members of the family is the right to take the estate by survivorship in case of failure of lineal heirs in the line of the last zamindari. The junior members can neither demand partition of the estate nor can they claim maintenance as of right except on the strength of custom nor are they entitled to possession or enjoyment of the estate. In our opinion division amongst the members of this family by allotment of properties was not possible as the only property known to belong to the family was the imparti ble zamindari of which partition could not be made or de manded. To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant 's branch in the estate was determined so that it became the separate property of the last holder 's branch. The test to be applied is whether the 261 facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property. Reference in this connection may be made to the decision of the Privy Council in Konammal vs Annadana (1). In that case on the death of a holder his eider son being feeble in mind his younger son succeeded to the zamindari by an arrangement with the adult members of the family in the year 1922. The estate then descended from father to son till 1914 when the junior branch became ex tinct and possession was taken by a senior member of the branch who claimed it by survivorship; while the mother of the last holder claimed the estate as an heir to separate property and it was held that the setting aside of the eider son in 1822 did not deprive his descendants of their rights as members of the family to succeed on failure of the junior branch. In this case there was complete passing over of one branch of the family to succession vested in the next junior branch; yet when that branch failed the mem bers of the senior branch were held yet to possess their right to succeed to the zamindari by survivorship. In Collector of Gorakhpur vs Ram Sundar Mal(1) the claim of a Hindu to succeed by survivorship to an ancestral impartible estate was in issue in the suit. The family admittedly had been joint. It appeared that the common ancestor of the deceased holder and of the claimant had lived 200 years before the suit that for a long period there had been a complete separation in worship food and social intercourse between the claimant 's branch of the family and that of the deceased holder and that upon the death of the holder the claimant had not disputed that the widow of the deceased was entitled to succeed. It was held that there was not to be implied from the circumstances (1) (1928) 55 I.A. 114. (2) All. 468 (P.C.). 262 stated above a renunuciation of the right to succeed so as to terminate the joint status for the purposes of that right. In Sri Raja Lakshmi Devi Garu vs Sri Raja Surya Nara yana Dhatrazu Bahadur Garu (1) the last zamindar died without any issue in 1888 and when his widow was in posses sion the suit was brought for possession by a male collat eral descended from a great grandfather common to him and to the last zamindar. The plaintiff claimed to establish his right as a member of an undivided family holding joint property against the widow who alleged that her husband had been the sole proprietor. In proof of this she relied on certain arrangements as having constituted partition viz. that in 1816 two brothers then heirs agreed that the eider should hold possession and that the younger should accept a village appropriated to him for maintenance in satisfaction of his claim to inherit; again that in 1866 the fourth zamindar compromised a suit brought against him by his sister for her inheritance on payment of a stipend to her having already in the claim of his brother granted to him two villages of the estate; and by the compromise this was made conditional on the sister 's claim being set tled; again that in 1871 the fourth zamindar having died pending a suit brought against him to establish the fact of an adoption by him an arrangement was made for the mainte nance of his daughter and two widows who survived him the previous grant for maintenance of his brother holding good the adoption being admitted and the suit compromised. It was held that there was nothing in the arrangement which was inconsistent with the zamindari remaining part of the common family property and that the course of the inheritance had not been altered. The facts of this case were much stronger than those of the present one. The mere circumstance that by an arrangement a village out of the zamindari was given to one of the brothers was not inconsistent with the zamindari remaining part of the common family property. (1) (1897)I.L.R. 263 The document executed by the brother in the reported case was in these terms : "I or my heirs shall not at any time make any claims against you or your heirs in respect of property movable or immovable or in respect of any transaction. As our father put you in possession of the Belgam zamindari I or my heirs shall not make any claim against you or your heirs in respect of the said zamindari. " It was observed by their Lordships that they did not find any sufficient evidence in the arrangement made by these documents of an intention to take the estate out of the category of joint or common family property so as to make it decendible otherwise than according to the rules of law applicable to such property that the arrangement was quite consistent with the continuance of that legal charac ter of the property that the eider brother was to enjoy the possession of the family estate and the younger brother accepted the appropriated village for maintenance in satis faction of such rights as he conceived he was entitled to and that it was nothing more in substance than an arrange ment for the mode of enjoyment of the family property which did not alter the course of descent. The evidence in the present case is trivial and incon clusive and from the documents above mentioned no intention can be deduced on the part of the junior members or on the part of any other member of the family of disrupting and dividing the family and renouncing their expectancy of succession. On the other hand the statements made in 1880 and 1800 by the members of the family clearly indicate that none of them had any intention of giving up his rights of heirship to the zamindari. There was no change of this frame of mind at any later stage of the family arrangement. Sundara Pandiya on the 9th January 1889 clearly stated that the wish of the family was that the widow should be in charge of the estate and after her the next heir should succeed and that it was Kandasami. Kandasami said that he was the next 264 heir the family being undivided. In the compromise this statement was reiterated. Their intention was to preserve their rights to take the zamindari if the line of Kandasami became extinct. Mr. Pathak then put his ease from a different point of view. He urged that Kandasami had the power to alienate 'the zamindari or any part of it and by an act of alienation he could defeat the right of survivorship vesting in the other members to claim the zamindari on failure of his line. Similarly he said he could divide the impartible estate amongst the different members of the family and that is what he must be presumed to have done in the present 'case. The argument though plausible is fallacious. The right to bring about a partition of an impartible estate cannot be inferred from the power of alienation that the holder thereof may possess. In the case of an impartible estate the power to divide it amongst the members does not exist though the power in the holder to alienate it is there and from the existence of one power the other cannot be deduced as it is destructive of the very nature and character of the estate and makes it partible property capable of partition. It seems to us that Kandasami instead of intending to separate from the family was by his actions consolidating the family unity. By the family arrangement he no doubt successfully got himself declared as the next person enti tled to hold the joint family zamindari but he evinced no intention of converting it into his own separate property: He preserved the estate for the family by saving it from the attack of the widow who wanted to take it under the will of her husband and antagonistically to the family. By the suit which he brought and which was eventually compromised he successfully avoided that attack on the family estate at the sacrifice of his right of enjoying it during the lifetime of the widow. He also by this arrangement safeguarded himself against the attack of Sundara Pandiya on his title as an heir. By his act the rule of descent of lineal primogeni ture prevailing in the family with regard to the zamindari was firmly 265 established. It would be unjust and uncharitable to conclude from the circumstances that the actions of Kandasami in 1890 were in any way hostile to the interests of the family. As he was throughout acting for the benefit of the family his actions were approved by all the members and they got a provision made for themselves for their maintenance in the arrangement. In the suit that he filed against Kamuluammal he in unambiguous terms alleged that he was claiming the zamindari as a member of the undivided Hindu family and it was in that status that he made the compromise with her and agreed to obtain possession of the estate after her death. After Kandasami 's death ' when the zamindari came by descent to Kamaraja II he also followed in the footsteps of his ancestor. During the period of his stewardship of the estate he tried to implement it by recovering the pannai lands which under the compromise had gone out of the estate to Kamulu absolutely. He was successful in his efforts though as a result of the decision in the present case his labours in this direction have proved futile as the release deed has been held to be vitiated by fraud. For the reasons given above we hold that there exist no satisfactory grounds for holding that the arrangement made in 1890 evidences a partition amongst the members of the joint family or proves an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of male lineal de scendants in the second branch of the family. The question whether there was separation among the members of the family is primarily a question of fact and the courts below having held that it is not proved there are no valid grounds for disturbing that finding. Chinnathayi 's claim therefore to the zamindari must be held to have been rightly disallowed. As regards the claim of Kulasekara to the zamindari it has been disallowed in the two courts below on the ground that the deed of release Exhibit P 17 35 266 does not extinguish the right of survivorship of the third branch to take the estate on the second branch becoming extinct and that the document could not be read as evidenc ing an intention on the part of Sundara Pandiva to surrender the right of succession of his branch. It has been further held that the release was not executed in favour of the head of the family or in "favour of all the members of the family in order to be operative as a valid relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession; but any such relinquish ment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as represent ing all its members. Here the deed was executed in favour of the widow of a deceased copgrcener who as such was a stranger to the coparcenary the family being admittedly joint at the death of Kamaraja I. It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reali ty parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kandasami the head of the family and it extinguished the rights of the third branch in the family zamindari. We think howev er that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village. Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family. In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family. The family as such could not have been prejudiced in any way by the circum stance that succession went to one or the other. Be that as it may we think the decision 267 of this case can be made to rest on a more solid foundation than furnished by the considerations set out above. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in clause 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely his mind being affected by the will. Later on by the compromise made in Kandasami 's suit what had been given absolutely to the widow was converted into a life estate with the excep tion of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed there fore have to be read in the light of the terms and condi tions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his con tingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circum stances which were in the contemplation of the parties when it was executed: vide Directors etc. of L. & S.W. Ry. Co. vs Richard Doddridge Blackmore (1). In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed. This rule is good law in India as in England. The same rule has been stated in Norton on Deeds at page 206 (2nd Ed.) thus : "The general words of a release are limited always to that thing or those things which were specially in con templation of the parties at the time when the release was given though they were not mentioned in the recitals." (1) 268 In Hailsham 's Edition of Halsbury 's Laws of England Vol. 7 at para 345 the rule has been stated in these terms : "General words of release will be construed with refer ence to the surrounding circumstances and as being con trolled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the creditor had no knowledge at the time when it was given." In Chowdhry Chintaman Singh vs Mst. Nowlukho Kunwari(1) where the document was drafted in almost the same terms as Exhibit P 17 it was said that though the words of the petition of compromise were capable of being read as if the executants were giving up all rights whatever in the taluka of Gungore yet in the opinion of their Lord ships the transaction amounted to no more than an agreement to waive the claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend. The parties in the year 1890 were not thinking of their future rights of survivorship at all. What Sundara Pandiya must be taken to have said by this release was "I am giving up my present rights as a senior member in favour of Kandasami whom I recognize as the right ful heir to the zamindari as a member of the joint Hindu family." Kandasami agreed to give him the village of Domb acheri in lieu of recognition of his title by him. It was not within the ken of the parties then as to what was to happen to the zamindari in case Kandasami 's line died out. For the reasons given we are of the opinion that by the release Sundara Pandiya did not renounce his rights or the rights of his branch to succeed to the zamindari by survi vorship in case the line of Kandasami became extinct. We hold therefore that (1) (1874) 2 I.A. 263. 269 Kulasekara 's claim was rightly negatived in the courts below and that of Rajaya was rightly decreed. In the result all these appeals fail and are dismissed with costs. Appeals dismissed. Agent for the appellant in Civil Appeals Nos. 28 & 29 of 1949 respondent No. 1 in Civil Appeals Nos. 30 32 & 33 of 1949 and respondent No. 2 in Civil Appeal No. 31 of 1949 and for Respondent No. 3 m Civil Appeal No. 31 of 1949: M.S.K. Sastri. Agent for the appellant in Civil Appeals Nos. 31 to 33 of 1949 respondent No. 1 in Civil Appeals Nos. 28 29 of 1949 and respondent No. 2 in Civil Appeal No. 30 of 1949: M.S.K. Aiyangar. Agent for the appellant in Civil Appeals Nos. 30 89 and 90 of 1949 respondent No. 1 in Civil Appeal No. 31 of 1949 and respondent No. 2 in Civil Appeals Nos. 28 29 32 & 33 of 1949: section Subrahmanyam. Agent for the respondents Nos. 1 and 2 in Civil Appeals Nos. 89 and 90 of 1949: V.P.K. Nambiyar.

To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant 's branch in the estate was determined so that it became the separate property of the last holder 's branch. The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an inten tion to impress upon the zamindari the character of separate property. The right to bring about a partition of an impartible estate cannot be inferred from the power of alienation that the holder thereof may possess. In the case of an imparti ble estate the power to divide it amongst the members does not exist though the power in the holder to alienate it is there and from the existence of the one power the other cannot be deduced as it is destructive of the very nature and character of the estate and makes it partible property. A member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family as representing all its members. General words of release in a release deed do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contempla tion of the parties when it was executed. 32 242 On the death of the holder of an impartible estate who represented the first branch his widow K got into possession claiming that the estate was the separate property of her husband and also under a will. Disputes arose between her and the members of the 2nd 3rd and 4th branches of the family and these were settled amicably. S who was the senior member of the 3rd branch obtained village D and one fourth of certain pannai lands as absolute owner and exe cuted a release deed on 6th May 1890 in these terms: "Whatever rights over the said zamin properties and in all other above mentioned properties S might possess he gives up such rights absolutely in favour of the said K and her heirs enabling them to enjoy them with the power of alienation thereof by gilt sale etc. . The said S and his heirs shall have no claim at all to the properties shown as belonging to K 'S who represented the 2nd branch and had instituted a suit against K compromised the suit on the 10th May 1890 under a deed which provided inter alia: (i) that the zamindari shall be enjoyed by K till her lifetime and that KS and his heirs shall after the lifetime of K enjoy the zamindari except village D which was given to S; (ii) village B and one fourth of certain pannai lands shall be given to KS absolutely; (iii)all other pannai lands build ings and movables which belonged to K 's husband shall be enjoyed by K and her heirs absolutely." On the death of K the estate became vested in Z the son of KS. On the death of Z without issue the second branch became extinct and disputes arose with regard to the ownership of the pannai lands and buildings village B and the zamindari between the widow of Z (who was the grand daughter of K) and the senior members of the 3rd and 4th branches: Held (i) that as KS was competent to alienate the pannai lands and buildings in favour of K and vest her with absolute title and S had also agreed to give them to her absolutely K became the absolute owner of these lands and buildings and these ceased to be part of the joint estate and devolved on the grand daughters of K as her stridhana heirs. (ii) In view of the arrangement of 1890 it was not open to any of the parties to deny that the village B was separated from the zemindari and given to KS absolutely as his private property. The village consequently devolved on Z as separate property and on his death it devolved on his widow. (iii) The arrangement made in 1890 did not evidence a partition amongst the members of the joint family or prove an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of the male lineal descendants in the branch of KS. (iv) That the recitals in the release deed executed by S had to be read in the light of the compromise in the suit of KS and the 243 proper inference from both the documents read together was that S renounced only his right to succeed to the zemindari immediately as the seniormost member of the family and that he did not renounce his right or the right of his branch to succeed to the zemindari by survivorship if and when occa sion arose; the senior member of the 3rd branch was there fore entitled to succeed to the zemindari in preference to the senior member of the 4th branch and the widow of Z. Vadrevu Ranganayakamma vs Vadrevu Bulli Ramaiya (5 C.L.R.439) Sivagnana Tear vs Periasami (5 I.A. 51) and Thakurani Tara Kumari vs Chaturbhuj Narayan Singh (42 I.A. 192)distinguished. Sartaj Kuari 's case (15 I.A. 51) Konammal vs Annadana (55 I.A. 114) Collector of Gorakhpur vs Ram Sunder Mal (I.L.R. 56 All. 468 P.C.) Sri Raja Lakshmi Devi Garu vs Sri Raja Surya Narayana (I.L.R. P.C.) and Directors etc. of L.& S.W. Ry. Co. vs Richard Doddridge referred to. The Judgment of the Madras High Court affirmed.

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. N.C. Chatterjee (P.K. Chatterjee with him) for the appellant. C. K. Daphtary Solicitor General for India K. L. Misra Advocate General of Uttar Pradesh (C. P. Lal with them) for respondent No. 1. C. 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 compulsory retirement of the appellant who had completed 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 conditions governing the appellant 's terms of appointment promotion leave pension etc. will be found recorded in 28 a letter issued from India Office London on the 13th February 1924. A copy 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 confirming the appellant 's terms of appointment contained 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 confirmation as Superintending Engineer. 'The appellant however was not confirmed but continued 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 communicate 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 not be compulsorily 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 no other reason than to benefit the contractors concerned and (2) that he had spent large ' amounts of public money for his own personal convenience 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 covering letter concluded with the following remarks: "Under the rules Government reserve the right to compulsorily retire any officer whose retention in service they consider not to be in the public interest. This is not 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. 29 to show cause why he should not be compulsorily retired. " A copy of the letter of the 4th January 1950 together with a copy 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 Engineer 's comments thereon were placed before the Union Public Service Commission. The Commission came to the conclusion that five out of the six charges had been proved and submitted their report accordingly. On the 17th April 1953 the President after considering 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 could 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 notes 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: 30 (1). . . . . . . . . . (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty five years ' qualifying service or more. Note I. Government retains an absolute right to retire any officer after he has completed twenty five years ' qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not 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 contentions urged before us are that the President 's 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 not applicable to or binding on the appellant; (ii)that compulsory retirement is nothing but removal from service and the provisions of article 311 of the Constitution apply to the case of compulsory retirement; (iii)that Note I to article 465 A of the Civil Service Regulations in so far as it confers on the Government an absolute right to retire an officer who has completed 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. 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 31 the Civil Service of the Crown in India were duly made in accordance with the powers in that behalf and it confirmed the same. But it is urged that as there is nothing 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 conditions of service pay and allowances and discipline and conduct 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 not empower the Secretary of State in Council to delegate the power to make rules concerning 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 conditions 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 not adversely affect the pension of any member of the service appointed before the date thereof It is urged that not only has article 465 A not been shown to have been in force at the time of the passing of the Government of India Act 1919 it has also not been shown to have been made by the Secretary of State in Council. In the premises it is contended 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 32 supported as a valid rule under sub sections (2) (3) or (4) of section 96B and can have no application to the appellant who was appointed by the Secretary of State in Council and consequently 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 conclusions 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 counsel for the appellant challenges the correctness of the decision of the High Court in so far. as it is founded on a construction 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 counsel that there is some force in his contention that the construction put upon rule 7 may not be quite cogent or convincing we do not consider 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 no application 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 come under their provisions . The appellant was employed in October 1923 and 33 consequently 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 completed twenty five years ' service without necessity to give reasons and without any claim for compensation 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 confirmed by sub section (4) of section 96B of that Act to which reference has already been made. The rules thus confirmed 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 notes appended thereto. Omitting clause (1) and note (2) which are not 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: 5 34 (1) . . . . . . . . . . . (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty five years ' service or more. Note I. Government retains an absolute right to retire any officer after he has completed twenty five years ' service without giving any reasons and no claim to special compensation on this account will be entertained. It will be noticed 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 now except that the last sentence in Note 1 in the present rule was not 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 contended by learned counsel 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 confirmed by section 96B (4) and being a pension rule made after the date of that Act but not 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 consequently 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 not and could not 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 not 35 As suggested by learned counsel 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 not to make any now 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 comparison 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 not to confer on the Government any new right to compulsorily retire an officer on completion 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 conferring 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 not 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 Government 's right to compulsorily retire an officer is not derived from Note 1. Note I only assumes its existence aliunde and indicates when that existing right is to be exercised and what consequences 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 36 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 notifications of the several earlier resolutions referred to above were not made available to the High Court. (ii) and (iii). It will be convenient to deal with these two questions together. Learned counsel 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 coming 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 compulsory retirement of an officer was nothing 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 compulsory 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 now embodied in article 311 and a consideration of the language of that article and the relevant rules will amply confirm the correctness of this conclusion. In England the rule was well established from very early times that public offices were held at the pleasure of the Crown. The English constitutional theory was that the King could do no wrong and accordingly the services of a civil servant could be terminated without assigning any reason and no action could be maintained in the King 's Courts for damages for wrongful 37 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 continued until 1919 when section 96B of the Government of India Act 1910 while maintaining that the tenure was during His Majesty 's 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 Majesty 's pleasure and may be employed in any manner required by a proper authority within the scope of his duty but no person 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 contrary) reinstate any person in that service who has been dismissed. The rest of the sub section need not be quoted. As already stated sub section (4) of this section validated and confirmed 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 conditions of service pay and allowances and discipline and conduct. 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: " 49. The following penalties may for good and sufficient reason and as hereinafter provided be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14 namely: (i) Censure. 38 (ii)Withholding of increments or promotion including stoppage at an efficiency bar. (iii)Reduction to a lower post or time scale or to a lower stage in a time scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown which does not disqualify from future employment. (vii) 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 contract in accordance with rule 5 of the Central Civil Services (Temporary Service) Rules 1949; or (c) of a person engaged under a contract in accordance with the terms his contract does not amount to removal or dismissal within the meaning of this rule or of rule 55]. The relevant portion of rule 55 runs thus " 55. Without prejudice to the provisions of the Public Servants Inquiries Act 1850 no order 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 conviction 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 not be quoted for our present purpose. Under article 353 of the Civil Service Regulations no pension may be granted to an officer dismissed or removed for misconduct insolvency or 39 inefficiency but to officers so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration provided that such allowance shall not exceed two thirds of the pension which would have been admissible to him if he had retired on medical certificate. It will be noticed that the rules just referred to con 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 compassionate 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 not. 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 vs Secretary of State(1) and in Venkatarao vs Secretary of State(2) that those opening words of section 96B(1) did not 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 not 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 Majesty 's pleasure. (2) 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. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable (1) L.R. 64 I.A. 40; A.I.R. 1937 P.C. 27. (2) L.R. 64 I.A. 55; A.1 R. 40 opportunity of showing cause against the action proposed to be taken in regard to him. " The rest of the section is not material for the present discussion. In short sub section (1) reiterated the English constitutional 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 conferred 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 Crown 's plenary power of dismissal. It will however be noticed that in sub section (3) the word " removed " was not used although that word occurred in rule 55 and the other rules quoted above. It was however held in I. M. Lal 's case(1) that removal was within section 240(3) which conclusion implies that removal is comprised within dismissals The position therefore is that both under the rules and according to the last mentioned decision of the Judicial Committee there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not. Finally we have our new Constitution. Article 3 10(1) reiterates the constitutional 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 (1) L.R 75 I A. 225; A.I.R. 1948 P.C. 121. 41 in Satischandra Anand vs 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 no doubt brings about. a termination of service but every termination of service does not 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 not amount to removal or dismissal. Our recent decision in Satishchandra Anand vs The Union of India (supra) fully supports the conclusion that article 311 does not apply to all cases of. termination of service. That was a case of a contract for temporary service being terminated by notice under one of the clauses of the contract itself and fell within clause (c) of the Explanation to rule 49 and article 311 was held by this Court not to have any application to the case. The question then is whether a termination of service brought about by compulsory 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 compulsory retirement. There can be no doubt 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 conceivably be controverted or explained by the officer. There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty five years ' service and that it is in the public interest to dispense with his further services It is true that (1) ; at p. 659. 42 this power of compulsory 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 note 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 not in terms made a condition for the exercise of the power. In other words a compulsory retirement has no stigma or implication of misbebaviour or incapacity. in the present case there was no doubt 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 not holding any formal enquiry under rule 55 of the Civil Services (Classification Control and Appeal) Rules and that before taking action for his compulsory retirement the Government desired to give him an opportunity to show cause why that action should not 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 compulsory 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 not get pension which he has earned. He may be granted a compassionate 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 compulsorily retired does not lose any part of the benefit that he has earned. On compulsory retirement he will be entitled to the pension etc. that he has actually earned. There is no diminution of the accrued benefit It is said that compulsory retirement like dismissal or removal deprives the officer of the chance of serving 43 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 consider 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 compulsory 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 compulsory retirement. The foregoing discussion necessarily leads us. to the conclusion that a compulsory retirement does not amount to dismissal or removal and therefore does not 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 not been afforded full opportunity of 'showing cause against the action sought to be taken in regard to him ' Both the questions under consideration must also be answered against the appellant. The result therefore. is that this appeal fails and must stand dismissed. In the circumstances of this case we make no order as to costs. Appeal dismissed.

Held that Article 465 A and Note I thereto of the Civil Service Regulations relating to the retiring pensions of officers was applicable to the appellant who was employed in 1923 as a member of the Indian Service of Engineers because Rule 4 of the new Rules published by the Government of India on 15th November 1919 providing for compulsory retirement of any officer after the completion of 26 years ' service was validated and confirmed by section 96 B of the Government of India Act 1919 which came into force on 23rd December 1919 and the language of Note 1 to Article 466 A published in 1920 clearly indicates that the Government 's right to compulsorily retire an officer was not derived from Note 1 as Note 1 assumed its existence aliunde and the Government 's right was derived from new Rule 4 published on 15th November 1919. Held also that a compulsory retirement under the Civil Services (Classification Control and Appeal) Rules does not amount to dismissal or removal within the meaning of Article 311 of the Constitution and therefore does not fall within the provisions of the said Article. The word "removal" used synonymously with the term "dis missal" generally implies that the Officer is regarded as in some manner blameworthy or deficient. The action of removal is founded on some ground personal to the officer and there is a levelling of some imputation or charge against him. But there is no such element of charge or imputation in the case of compulsory retirement. In other words a compulsory retirement does not involve any stigma or implication of misbehaviour or incapacity. Dismissal or removal is a punishment and involves loss of benefit already earned. The Officer dismissed or removed does not got pension which he has earned. On compulsory retirement the Officer will be entitled to the pension that he has actually earned and there is no diminution of the accrued benefit. Rangachari vs Secretary of State (L.R. 64 I.A. 40; A.I.R. ; Vankata Rao vs Secretary of State L.R. 64 I.A. 55; A.I.R 1937 P.O. 37); I.M Lal 's case (L.R. 76 I.A. 225 A.I.R. 1948 27 P.C. 121); Satischandra Anand vs The Union of India at p. 659) referred to.

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 (section K. Kapur and Ganpat Rai with him) for the appellant. M. C. Setalvad Attorney General for India (Porus A. Mehta with him) for the respondent. 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 company at Bombay on 395 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 conditions 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 notice 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 contended that the remuneration received by them from the Mills Company was not taxable on the ground that it is was not income profits or gains from business and was outside the pale of the Excess Profits Tax Regulation. This contention 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 compel 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: (1) Whether the Petitioner Company is a partnership firm or a registered firm ? (2) Whether under the terms of the agreement the petitioner is an employee of the Mills Company or is carrying on business ? 396 (3)Whether the remuneration received from the MILLs is on account of service or is the remuneration for business ? (4)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 considerable 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 considered 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 now come 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 not been seriously pressed before us. Whether the appellants are a partnership firm or a registered company 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 not apply because the income could not be said to be income from profession and neither a partnership firm nor a registered company as such could 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. 397 The appellants were registered as a private limited company having their registered office in Bombay and the objects for which they were incorporated were the following: (1)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. (2)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 conditions set out in the Agreement referred to in clause 6 of the Company 's Memorandum of Association. Article 116 provided that the general management of the business of the Company subject to the control 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 control and supervision to enter into all contracts 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 Company 's Memorandum of Association including the rights and liberties contained 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 398 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 continue to act as such agents until they of their own will resigned. The remuneration of the appellants as such Agents was to be a commission of per cent on the amount of sale proceeds of all yarn cloth and other produce of the Company (including cotton grown) which commission 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 conducting 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 connection with the business if the Company. Clauses 3 and 4 of the agency agreement are important and may be set out in extenso : 3. Subject to the control and supervision of the Directors the said Lachminaravan Ramgopal and Son Limited shall have the general conduct and management of the business and affairs of the company and shall have on behalf of the company 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 cotton waste jute wool and 399 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 contracts 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 conduct defend compromise refer to arbitration and abandon legal and other proceedings claims and disputes in which the Company is concerned and to appoint and employ discharge re employ or replace engineers. managers retain commission 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 company and to draw cheques against the moneys of the company 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 not specifically reserved to be done by the Directors. 4.The said Lachminarayan Ramgopal & Son Ltd. shall be at liberty to deal with the Company by way of sale to the Company of cotton 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 concerned 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 400 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 constitution 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 construction of these documents we arrive at the conclusion that the position of the appellants was not 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 not the servants of the Company the remuneration which they received would certainly not 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 Powell 's Law of Agency at page 16 : (a)Generally a master can tell his servant what to do and how to do it. (b) Generally a principal cannot tell his agent how to carryout his instructions. (c) A servant is under more complete control than an agent and also at page 20: (a)Generally a servant is a person who not only receives instructions from his master but is subject to his master 's right to control the manner in which he carries out those infructions. An agent receives his principal 's instructions but is generally free to carry out those instructions according to his own discretion 401 (B) Generally a servant qua servant has no authority to make contracts on behalf of his master ' Generally the purpose of employing an agent is to authorise him to make contracts on behalf of his principal. (c) Generally an agent is paid by commission 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 contained in Halsbury 's Laws of England Hailsham Edition Volume 22 page 113 paragraph 192 may be referred to in this connection : "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 Halsbury 's Laws of England Hailsham Edition Volume 1 at page. 193 article 345 where the positions of an agent a a servant and independent contractor are thus distinguished : " An agent is to be distinguished on the one hand from a servant and on the other from an independent contractor. A servant acts under the direct control and supervision of his master and is bound to conform to all reasonable orders given him in the course of his work; an independent contractor on the other hand is entirely independent of any control 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 not subject in its exercise to the direct control or supervision of the principal. An agent as such is not a servant but a servant is generally for some purposes his master 's 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 no doubt true that the 52 402 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 control and supervision of the Directors. That does not however mean that they acted under the direct control 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 considered 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 not conferred upon them the further right to direct how that work of the general management was to be done. The control and supervision of the directors was a general control 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 contracts 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 not specifically reserved to be done by the Directors. These powers did not spell a direct control and supervision of the Directors as of a master over his servant but constituted the appellants the agents of the Company who were to exercise their authority subject to the control and supervision of the Directors but were not subject in such exercise to the direct control or supervision of the principals. The liberty given to the appellants under clause 4 of the Agency 403 Agreement to deal with the Company by way of sale and purchase of commodities therein mentioned also did not 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 could be vested in a servant. There was further the right to continue 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 consistent with the employment of the appellants as mere servants of the Company. The remuneration by way of commission 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 not normally. 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 not 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 not 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 constitute the remuneration which they received thereunder income profits or gains from business. The contention which was urged before us that the appellants only worked as the agents of the Mills Company and no others and therefore what they did did not constitute a business does not avail the appellants. The activities in order to constitute a business need not necessarily be concerned with several. individuals or concerns. They would constitute 404 business in spite of their being restricted to only one individual or concern. What is relevant to consider 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 concern. It is the nature and scope of these activities and not the extent of the operations which are relevant for this purpose. The activities of the appellants certainly did not come 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 commerce or manufacture or any adventure in the 'nature of a trade commerce or manufacture or any profession or vocation but not 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 consists wholly or mainly in the making of contracts on behalf of other persons or giving to other persons of advice of a commercial nature in connection with the making of contracts. The work which the appellants did under the terms of the Agency Agreement constituted neither trade commerce or manufacture or any adventure: in the nature of trade commerce or manufacture nor was it a profession or vocation. The activities which constitute carrying on business need not necessarily consist of activities by way of trade commerce or manufacture or activities in the exercise of a profession or vocation. They may even consist of rendering services to others which services may be of a variegated character. The considerations which apply in the case of individuals in the matter of determining whether the activities constitute a business within the meaning of the inclusive definition thereof set out above may not apply in the case of incorporated companies. Even though the activities if carried on by individuals might constitute business in that sense they might not constitute such business when carried on by incorporated companies and resort must be had to the general position in law in order to determine whether the incorporated company was carrying on business ad 405 as to constitute the income earned by it income ' profits or gains from business. Reference may be made in this context to William Esplen Son and Swainston Limited vs Commissioners of Inland Revenue (1). In that case a private limited company was incorporated for carrying on business as naval architects and consulting engineers. : Before the formation of the company a partnership had existed for many year between three persons who on incorporation became the sole shareholders and directors of the company. The partnership had carried on the profession. of naval architects and consulting engineers and the work done by the company was identical in character with that formerly done by the partnership which it succeeded. The work done by the company was identical in all respects with the work of a professional naval architect and consulting engineer and was performed by the said three shareholders and directors of the company personally. A question arose whether the company was carrying on a profession within the meaning of section 39 paragraph C of the Finance (No. It was contended that it carried on a profession of naval architects and consulting engineers because the members composing it were three naval architects. That contention 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 company it was not 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 could only bean individual. A company such as that could only do a naval architect 's work by sending a naval architect to its customers to do what they wanted to be done and it was held that the company was not carrying on a profession but was carrying on a trade or business in the ordinary sense of the term. When a partnership firm comes 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. 406 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 company is incorporated it may not necessarily come 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 company to be formed will be a private company any two or more persons) associated for any lawful purpose may by subscribing their names to a memorandum of association. . . . . form an incorporated company and the lawful purpose for which the persons become associated might not necessarily be the carrying on of business. When a company 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 company spending exactly on the same basis then there would be no difference between them at all. But the fact that the limited company comes into existence in a different way is a matter to be considered. An individual comes into existence for many purposes or per. haps sometimes for none whereas a limited company comes into existence for some particular purpose and if it comes into existence for the particular purpose of concessions and turning them to account then that is a matter to be considered when you come to decide whether doing that is carrying on a business or not." Justice Rowlatt followed the above view of Lord Sterndale M.R. in Commissioners of Inland Revenue vs Birmingham Theatre Royal Estate Co. Limited(1) and held that " when you are considering whether a certain form of enterprise is carrying on business or not it is material to look and see whether it is a company that it; doing it. " The objects of an incorporated company as laid down in the Memorandum of Association are (1) (2) at P. 202. (3) (1923) I2 Tax Cas. 580 at P. 584. 407 certainly not conclusive of the question whether the activities of the company amount to carrying on of business. (See Indian Law Reports 55 Calcutta 1059 and (1951] 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 comprise within its ambit the activities of the appellants as the agents of the Company and constitute the work which they did by way of general management of the business of the company 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 cotton 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 continuity of operations which constituted 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 conferred upon them under Article 116 of the Articles of Association and clause 3 of the Agency Agreement consisted of numerous and continuous operations and comprised 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 commodities. There was nothing in the Agency Agreement to prevent the appellants from acting as the agents of other manufacturers Joint Stock Companies etc. and the appel lants could have as well acted as the agents of other 408 concerns besides the Company. All these factors taken into consideration alongwith the fixity of tenure the nature of remuneration and the assignability of their rights are sufficient to enable us to 'come to the conclusion that the activities of the appellants as the agents of the Company constituted 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. The appellants were therefore rightly assessed for excess profits tax and these appeals must stand dismissed with costs. Appeal dismissed.

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 positions of an agent a servant and independent contractor are distinguished as under: An agent is to be distinguished on the one hand from a servant and on the other from an independent contractor. A servant acts under the direct control and supervision of his master and is bound to conform to all reasonable orders given to him in the course of his work; an independent contractor on the other hand is entirely independent of any control or interference and merely undertakes to produce a specified result employing his own means to produce that result. An agent 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 not subject in its exercise to the direct control or supervision of the principal. An agent as such is not 9 servant but a servant is generally for some purposes his master 's implied agent the extent of the agency depending upon the duties or position of the servant. Held that the position of the appellants in the light of the principles stated above and the terms of the Agency Agreement was that of the agents of the Dewan Bahadur Ram Gopal Mills Ltd. and they carried on the general management of the business of the company subject to the control and supervision of the Directors. 394 The control and supervision of the Directors was however a general control 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 clone both in regard to the method and the manner of such work and therefore the circumstances of the case together with the of power of sub delegation reserved under the Articles of Association established beyond doubt that the appellants were the agents of the company and not merely the servants of the company remu nerated by wages or salary. Held further that various factors along with the fixity of tenure the nature of remuneration and the assignability of their rights were sufficient to prove that the activities of the appellants as the agents of the company constituted a business and the remuneration which the appellants received from the company under the terms of the Agency Agreement was income profits or gains from business and the appellants were rightly assessed under the provisions of Hyderabad Excess Profits Tax Regulation.

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. J. B. Dadachanjiand Naunit Lal for the appellant. section B. Jathar and Ratnaparkhi Anant Govind for the respondents. March 23. The Judgment of the Court was delivered by VENICATARAMA AYYAR J. 3 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 section No. 138 and a half share in section Nos. 133 and 136 in the village of Ukamnal and a half share in section Nos. 163 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao who was entitled for his half share 4 of the Watan lands to the whole of section No. 137 and to a half share in S.Nos. 133 and 136 in the village of Ukamnal and to a half share in section 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 constructed 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 consisting of houses and house sites and B Schedule of lands. It is the plaintiff 's 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 plaintiff 's adoption. They further contended 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 not entitled to a share therein. With reference to the properties in Schedule C they pleaded that the. plaintiff could not 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 no longer 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 5 plaintiff was entitled to a half share in section 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 not 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) vs Shankar Ramchandra Patil(1) the High Court held following a Full Bench decision of that Court in Jivaji Annaji vs Hanmant Ramchandra(2) that they belonged exclusively to Devji and that the plaintiff could lay no claim to them. Both the Courts a reed in negativing the contention 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 contention 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 constructed 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 contention is well founded it is necessary to see (1)70 I.A. 232. (2) I.L.R. 6 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 constructions 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 no satisfactory evidence about the income which these lands were yielding at the material period. Rukminibai P.W. 6 and Akkubai D.W. 1 gave conflicting evidence on the point. But neither of them could 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 consideration 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 could not have been considerable. 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 concluded that the income from the lands could not 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 section No. 23 Ukamnal village for a sum of Rs. 475. On 23rd July 1890 he purchased under Exhibit D 64 lands bearing section Nos. 2025 and 2140 for Rs. 2 400. In this suit we are concerned 7 only with section No. 2025. Apart from these purchases he constructed two houses one on section Nos. 639 640 and 641 and another on S.Nos. 634 and 635. 2 and 3 have deposed that these constructions would have cost 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 no first hand knowledge of the constructions and that their evidence could not 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 section Nos. 642 644 and 645 at a cost 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 construction of the houses. Where did this money come 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 no precise evidence as to what salary he was drawing it could not have been negligible and salary is the least of the income which Tahsildars generally make. The lower Courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made the former could not be held to be the Foundation for the latter and on the authority of the decision of the Privy Council in Appalaswami vs 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 not 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 not 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 (1) I.L.R. at 447 448 8 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 vs Ujamlal Hargovandas (1) Venkataramayya vs Seshamma(2) Vythianatha vs 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 could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions ' could be made even though it might be of considerable value. On the other hand a running business in which the capital invested is comparatively small might conceivably product substantial income which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law but questions of fact to be determined on the evidence in the case. In Appalaswami vs 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 (1) I.L.R. (2) I.L.R. (3) I.L.R. (4) I.L.R. 9 16 years it was possible that the joint family income might have contributed therefor. But in the present case the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members and on that they were right in holding that the plaintiff had not discharged the initial burden which lay on 'him. But even if we are to accept the contention 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 vs 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 no evidence 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 contention of the appellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous must fail. (1) I.L.R. 10 It was next contended 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 not 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 commence and were rejected. On appeal dealing with the complaint 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 could have been admitted in evidence only if they could 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 not 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 contended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded that no question of title to the properties was directly involved and that section 13 was inapplicable. We are unable to accept this contention. 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 now in. dispute belonged to the joint family. 11 But there is another difficulty in the way of the reception of this evidence. It was contended 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 not 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 no grounds for now 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 constructed. ' The contention 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 section Nos. 639 and 640. The High Court reversed this decision observing generally that the evidence relating to the house sites was not 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 not 12 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 not 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 no title deeds have been produced. section Nos. 634 and 635 form one block on which one of the houses has been constructed. 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 confirmed. There is reference in them to a previous patta granted by the Government. Exhibits 52 to 55 are pattas showing that the properties comprised therein had been acquired from the Government. If the identity of section Nos. 634 and 635 with the properties comprised in these documents had been established the plea that they are not ancestral would have been made out. But that has not 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. section Nos. 639 640 and 641 form one block on which there is another house standing. There is no title deed for section No. 639. Exhibit D 47 is the sanad for section No. 640 and it merely recognises the previous occupation by the grantee and that is consistent with its character as ancestray property. Exhibit D 48 is the sanad for section 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 section Nos. 642 644 and 645 on which Devji constructed a house. The relative sanads are respectively Exhibits D 49 D 50 and D 51. Their contents 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 section 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 13 section 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 section Nos. 634 and 635 section Nos. 639 640 and 641 and section 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 consequently entitled to divest Devji and his successors of these properties. The contention of the appellant based on the decision of the Privy Council in Anant Bhikappa Patil (Minor) vs 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 consequence his right to share in the joint family properties and to inherit from the collaterals should both be worked out as from that date. The contention of the respondents based on Jivaji Annaji vs Hanmant Ramchandra (2) is that the doctrine of relation back does not extend to properties which are inherited from a collateral. The question thus raised is one of considerable importance and involves a decision as to the correctness of the law as laid down in Anant Bhikappa Patil (Minor) vs 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 vs Agarsingji Raisingji (3) (1) 70 I.A. 232. (2) I.L.R. (3) 46 I.A. 97 at 107. 14 Again it is to be remembered that an adopted son is the continuator of his adoptive father 's line exactly as an aurasa son and that an adoption so far as the continuity of the line is concerned has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact as West and Buhler point out in their learned treatise on Hindu Law the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible. " It is on this principle that when a widow succeeds to her husband 's 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 vs Venkatarama(1) and Verabhai vs Bhai Hiraba(2). The application of this principle when the adoption was made to a deceased coparcener raised questions of some difficulty. If a joint family consisted 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 could 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 no son but a widow C and the estate devolves on her can W thereafter make an adoption so as to confer any rights on X to the estate in the hands of C ? It was held in Chandra vs Gojarabai(3) that the power to make an adoption so as to confer a right on the adopted son could be exercised only so long as the coparcenary of which the adoptive father was a member subsisted and that when the last of the coparceners died and the properties thereafter devolved on his (1) 4 I.A. Bom. (2) 30 I.A. 234. 15 heir the coparcenary had ceased to exist and that therefore W could not adopt so as to divest the estate which had vested in the heir of the last coparcener. In view of the pronouncements of the Judicial Committee in Pratapsing Shivsing vs Agarsingji Raisingji(1) and Amarendra Mansingh vs Sanatan Singh(2) that the validity of an adoption did not depend on whether the adopted son could divest an estate which had devolved by inheritance or not a Fall Bench of the Bombay High Court held in Balu Sakharam vs Lahoo Sambhaji(3) that in such cases the adoption would be valid but that the estate which had devolved upon the heir could not be divested. In Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(4) the Privy Council dissented from this view and held that the coparcenary must be held to subsist so long as there was in existence a widow of a coparcerier 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 coparcener would prevail as against the title of any person claiming as heir of the last coparcener. In substance the estate in the hands of such heir was treated as impressed with the character of coparcenary property so long as there was a widow alive who could make an adoption. This principle was re affirmed in Neelangouda Limbangouda vs 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 coparceners 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) (3) I.L.R. 16 determination now is whether this doctrine of relation back can be applied when the claim made by the adopted son relates not to the estate of his adoptive father but of a collateral. The theory on which this doctrine is based is that there should be no hiatus in the continuity of the line of the adoptive father. That by its very nature can apply only to him and not to his collaterals. In the Oxford Dictionary the word "collateral" is defined as meaning "descended from the same stock but not in the same line. " The reason behind the rule that there should be continuity in line does not warrant its extension to collaterals. Nor is there any authority until we come to the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1) which applied the theory of relation back to the properties inherited from collaterals. 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 not liable to be divested. The law is thus stated in Mulla 's 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 not conceived at the time of the owner 's 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 conceived at the time of his death or by adoption in certain cases of a son to the deceased." ' In Bhubaneswari Debi vs 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. 17 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 could 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 contention Sir Barnes Peacock observed: "According to the law as laid down in the decided cases an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. It is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of Chandmoni ; but that however would make no difference 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 vs Gocool Chunder Mitter(1) which was relied on in the High Court. Vide Nilkomul Lahuri vs Jotendro Mohan Lahuri(2). There it was hold that an adopted son could not claim the estate of his adoptive father 's 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 collateral 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 collateral 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 not the rule of relation back but the rule that inheritance once vested could not be divested. Before examining the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(3) it is (1) I.I. R. (2) I.L.R. (3) 70 I.A. 232. 3 18 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 vs 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 condition 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 not a descendant contemplated 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 contention the Judicial Committee observed that under the Hindu Law an adopted son was as much a descendant as an aurasa son. On the second contention they held that the principles laid down in Raghunandha vs 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 could be treated as a posthumous son. It will be noticed that the thakur did not 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 no question of relation back of title with reference to the succession of a collateral 's estate was involved. In Amarendra Mansingh vs 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 collateral 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 19 was whether by his adoption Amarendra could divest BanamaIai of the estate. It was held by the Privy Council that the validity of an adoption did not depend on whether an estate could be divested or not and that the point to be considered was whether the power to adopt had come to an end by there having come into existence a son who had attained the full legal capacity to continue 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 no claim of the adopted son to succeed to a collateral was involved and no question arose as to how far the theory of relation back could 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 Brajendra 's 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 come to an end. It may be noted 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 vs Venkatarama(1) and Verabhai vs Bhai Hiraba(2). The only difference between these cases and Amarendra Mansingh vs Sanatan Singh(3) was that on the death of Bibhudendra his heir was not 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 not merely when it has vested in his widow who makes the adoption but also in any other heir of his. It is no authority for the contention that he is entitled to recover the estate of B which had vested in his heir prior to his adoption to A. Vijaysingji Chhatrasingji vs Shipsangji Bhim sangji(4) is a case similar to the one in Amarendra Mansingh vs Sanatan Singh(3). The property concerned was (1) 4 I. A. T. (3) 60 I.A. 242. (2) 30 I.A. 234. (4) 62 I.A. 161 20 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 Bhimsa@gji 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 could divest the estate in the bands of Bhimsangji. It was held that he could. Here again there was no question of collateral succession the point for decision being precisely the same as in Amarendra Mansingh vs Sanatan Singh(1). We next come to the decision in Anant Bhikappa Patil (Minor) vs 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 collateral 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 could not divest him of those properties. The Privy Council held that the coparcenary must be taken to continue so long as there was alive a widow of the deceased coparcener and that GaDgabai 's 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 no comment. When once it is held that the coparcenary subsists so long as there is a widow of a coparcener alive the conclusion 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 21 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 collateral of his who is more remote than a natural brother would have been and to constitute the adopted person the next heir of the last male owner no distinction can in this respect be drawn between pro perty which had come 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) vs Shankar Ram Chandra Patil(1) must in our opinion be taken to decide that the doctrine of relation back will apply not only as regards what was joint family estate but also properties which had devolved by inheritance from a collateral. Otherwise it is impossible to justify the conclusion 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 vs Nilkomul Lahiri (2) that an adoption made subsequent to the death of a collateral do es not divest the inheritance which had vested prior to that date. That that principle was not intended to be departed from is clear from the following observations of Sir George Raiikin: " Neither the present case nor Amarendra 's case(3) brings into 'question the rule of law considered in Bhuba neswari Debi vs Nilkomul Lahiri(3) (of Kalidas Das vs Krishnachandra Das(4)). . Their Lordships say nothing as to these decisions which appear to apply only to cases of inheritance ' " Nor does the discussion in Anant Bhikappa Patil (Minor) vs 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. 22 interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning however is wholly inapplicable to property which is not held in coparcenary such as the estate of a collateral devolving by inheritance. The judgment then refers to the decisions of the Board in Amarendra Mansingh vs Sanatan Singh(1) and Vijaysingji Chhatrasingji vs Shivsangji Bhimsangji(2) and it is observed that the impartible estates which were concerned therein were treated as separate property and not as joint family property a conclusion which does not settle the question because even on the footing that the estates were separate properties no question of collateral succession was involved in them the claim under litigation being ' in respect of the estate of the adoptive father and covered by the principle already established in Vellanki Venkata vs Venkatarama (3) and Verabhai vs Bhai Hiraba (4). Then follows the conclusion already quoted that no distinction can be drawn between properties which come from the father and properties which come from others. This is to ignore the principle that the doctrine of relation back based on the notion of continuity of line can apply and had been applied only to the estate of the adoptive father and not of collaterals. We may now turn to Jivaji Annaji vs Hanmant Ram. Chandra (5) wherein the scope of the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (6) came up for consideration. 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 collateral 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 not. It will be noticed that (1)60 I.A. 242. (4) 30 I.A. 234. (2) 62 I.A. Bom. (3) 4 I.A. 1. (6) 70 I.A. 232. 23 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 coparcener had therefore no application. It was a case in which the adopted son laid a claim to properties not on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a collateral 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) vs Shankar Ramchandra Patil (1) The contention was that if Anant could as adopted son divest the personal properties of Keshav which had devolved on Shankar as his preferential heir Jivaji could also divest the properties which had devolved on Hanmant as the preferential heir of Vishnu. The learned Judges made no secret of the fact that this contention received support from the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1); but they were impressed by the fact that the statement of the law in Bhubaneswari Debi vs Nilkomul Lahiri (2) as to the rights of an adopted son quoad the estate of a collateral had been reaffirmed and they accordingly held that the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) did not intend to alter the previous law that an adopted son could not divest properties which had been inherited from a collateral 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 collaterals the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will (1) 70 I.A. 232. (2) 12 1 A. 137. 24 be analogous to that of a coparcener who has also self acquisitions in which case the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. The fact is as frankly conceded by the learned Judges they were puzzled by the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) and as it was an authority binding on the Indian Courts they could not refuse to follow it and were obliged to discover a distinction. This Court however is not hampered by any such limitation and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral which had devolved by inheritance prior to his adoption Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) went far beyond what had been previously understood to be the law. It is not in consonance with the principle well established in Indian jurisprudence that an inheritance could not 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 coparcener 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 coparceners in a joint family are amply protected. But no such safeguard exists in respect of property inherited from a collateral 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 no protection as there could be no question of supporting the alienations on the ground of necessity (1) 70 I.A. 232. 25 or benefit. And if the adoption takes place long after the succession to the collateral 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 consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction and legal fictions should not be extended so as to lead to unjust results. We are of opinion that the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1) in so far as it relates to properties inherited from collaterals is not sound and that in respect of such properties the adopted son can lay no claim 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 contended 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 concurrently found against the appellant and there are no grounds 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 section Nos. 634 and 635 section Nos. 639 640 and 641 'and section Nos. 642 644 and 645 as on the date of the suit. Subject to this modification the decree of the lower Court is confirmed and; the appeal is dismissed. In the circumstances the parties will bear their own costs in this appeal. Appeal dismissed. (1) 70 I.A. 232.

It is well settled that proof of the existence of a Hindu joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without. the aid of the joint family property. Held that on the facts the nucleus was not sufficient to discharge the initial burden which lay on the plaintiff of proving that the acquisitions were made with the aid of joint family properties. Held further that even if the burden shifted on the defendants of establishing self acquisitions that had been discharged by proof and the ancestral lands were intact and the income derived therefrom must have been utilized for the maintenance of the members of the family. While it is not unusual for a family to hold properties for generations without a title deed an acquisition by a member would ordinarily be evidenced by a dead. When therefore a property is found to have been in the possession of a family from time immemorial it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self acquisition to establish it. On adoption by the Hindu widow the adopted son acquires all the rights of an aurasa son and those rights relate back to the date of the death of the adoptive father. 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 2 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. These principles however apply only when the claim of the adopted son relates to the estate of the adoptive father. But where succession to the properties of a person other than an adoptive father is involved the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested. The decision to the contrary in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (70 I.A. 232) dissented from. Appalaswami vs Suryanarayanamurti (I.L.R. at 447 448); Babubhai Girdharal vs Ujamlal Hargovandas (I.L.R. ; Venka taramayya vs Seshamma (I.L.R. 1937 Madras 1012); Vythianatha vs Varadaraja (I.L.R 1938 Madras 696); Pratapsing Shivsing vs Agarsingii Raisingji (46 I.A. 97 at 107); Vellanki Venkata vs Venkatarama (4 I.A. 1); Verabhai vs Bhai Hiraba (30 I.A. 234) Chandra vs Goiarbai (I.L.R. ; Amarendra Mansingh vs Sanatan Singh (60 I.A. 242) ; Balu Sakharam vs Lehoo Sambhaji (I.L. R. ; Neelangouda Limbangouda vs Ujjan Gowda (A.I.R. 1948 P.C. 165; ; Bhubaneswari Debi vs Nilkomul Lahiri (12 I.A. 137): Kally Prosonno Ghose vs Gocool Chunder Mitter (I.L.R. ; Nilkomul Lahuri vs Jotendro Mohan Lahuri (I.L.R. ; Raghunandha vs Brozo Kishoro. (3 I. A. 154); Bachoo Hurkisondas vs Mankorebai (34 I.A. 107); Vijaysingji Chhatrasingji vs Shivasangji Bhimasangji (62 I.A. 161); Kalidas vs Krishnachandra Das (2 B.L.R. 103 F.B.) referred to. Tivaji Annaji vs Hanmant Ramchandra (I.L.R. 1950 Bombay 510) approved.

No. 55 of 1954. Under article 32 of the Constitution for the enforcement of fundamental rights. N. C. Chatterjee (J. B. Dadachanji and Rajinder Narain with him) for the petitioners. K. V. Tambe and I. N. Shroff for the respondent. 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 commit cheating criminal breach of trust 22 170 and criminal conspiracy (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 committed 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 now 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 confer upon any person all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first second or third class in respect of particular cases and thereby to constitute a Special Magistrate for the trial of an individual case violates the guarantee under article 14 of the Constitution; (2) 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 not disclose that all the facts constituting the offences to be charged were placed before the sanctioning authority ; nor 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 committed. This contention is raised relying on the Privy Council case in Gokulchand Dwarkadas Morarka vs 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 (1) A.I.R. 1948 P.C. 82. 171 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 now 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 Sarkar 's case (1). That decision however applies only to a case where on the allotment of an. individual case to a special Court authorised to conduct the trial by a procedure substantially different from the normal procedure discrimination arises as between persons who have committed similar offences by one or more out of them being subjected to a procedure which is materially different from the normal 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 normal procedure and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's 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 not hit by article 14 of the Constitution. There is therefore no substance in this contention. As regards the second ground which is put forward on the authority of the Privy Council case of Gokulchand Dwarkadas Morarka vs The King(2) it is admitted that the trial has not yet commenced. The Privy Council itself in the case mentioned above has recognised that the lacunas if any in the sanction of the kind contemplated by that decision can be remedied in the course of the trial by the specific evidence in that behalf. Learned counsel for the State without conceding 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 not the sanction as it is and without such evidence is invalid. (1) ; (2) A.I.R. 1948 P.C. 82. 172 It is the third point that has been somewhat seriously pressed before us. The contention of learned counsel 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 conducted 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 no other and that consequently 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 concerned is discretionary and optional but if in an individual case that power is not exercised it must be taken that the appropriate Government did not 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 contrary to the policy underlying section 197 which is for the protection of the public ser vant concerned 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 no reason to think that section 197(2) is inspired by any policy of protection of the concerned public servant as section 197(1) is. There can be no question 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 convenience or the complexity or gravity of the case or other relevant considerations. The argument as to 173 the implication of non 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 no such implication as is contended for arising from the non 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 not bound to do so. When it does not 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 not 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 counsel 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 no warrant. There is accordingly no substance in this contention. In addition to the above three points learned counsel 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 notification 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 counsel for the State informs us without conceding the point so taken that he is prepared to advise the Government 174 to issue the necessary notification 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. Nothing that we have said is intended to be a pronouncement as to the correctness or otherwise of those orders nor to encourage the practice of direct approach to this Court (except for good reasons) in matters which have been taken to the High Court and found against without obtaining leave to appeal therefrom. Petition dismissed.

The petitioner an officer of the Madras Government was employed in Central Provinces and Berar for the purchase of grains on behalf of the Madras Government. He along with many others was under prosecution before a Special Magistrate Nagpur (Mad by a Pradesh) on charges for offences under section 420 of the Indian Penal Code etc. for causing loss to the Madras Government. The Special Magistrate trying the case was appointed by the Madhya Pradesh Government under section 14 of the Code of Criminal Procedure and as the petitioner was a servant of the Government of Madras the prosecution against him was initiated with the sanction given by the Government of Madras under section 197 of the Code of Criminal Procedure. Held (i) that section 14 of the Criminal Procedure Code in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on Magistrates of the first second or third class in 169 respect of particular oases and thereby to constitute a Special Magistrate for the trial of an individual case does not violate the guarantee under article 14 of the Constitution as the Special Magistrate in the present case had to try the case entirely under the normal procedure and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's Case ([1952] S.C.R. 284) arose in the present case. A law vesting discretion in an authority under such circumstances cannot be discriminatory and is therefore not hit by article 14 of the Constitution. (ii) It is not for the very Government which accords sanction under section 197(1) to specify also the Court before which the trial is to be held under section 197(2) and therefore in a case to which section 197(1) applies the exercise of any power under section 14 is not excluded. The word "Court" in sub section (2) of section 197 is not the same thing as a "person" in sub section (1) of section 14. The practice of direct approach to the Supreme Court under article 32 (except for good reasons) in matters which have been taken to the High Court and found against without obtaining leave to appeal therefrom is not be encouraged. Gokulchand Dwarkadas Morarka vs The King (A.I.R. 1948 P. C. 82) referred to; and Anwar Ali Sarkar 's case ([1952] S.C.R. 284) distinguished.

riminal Appeal No. 33 of 1952. Appeal under Article 134(1)(c) from the Judgment and Order dated the 19th February 1952 of the 93 High Court of Orissa at Cuttack in Criminal Appeal No. 66 of 1950 arising out of the Judgment and Order dated the 19th September 1950 of the Court of the Additional Sessions Judge Cuttack Dhenkanal Cuttack in Sessions Trial No. 9 C of 1950. Nur ud Din Ahmed R. Patnaik and R. C. Prasad for the appellant. R. Ganapathy lyer for the respondent. April 7. The Judgment of the Court was delivered by BOSE J. The appellant was an Inspector of Factories under the Government of Orissa. 'It was a part of his duty to inspect factories and mills in the State of Orissa. He toured the districts of Koraput and Balasore from 18th August 1948 to 27th August 1948 and from 29th September 1948 to 30th October 1948 respectively. The prosecution case is that he collected bribes from persons connected with some of the mills he inspected in those districts. It is said that he used to threaten to close their mills and impose other penalties for alleged defects unless they paid him a bribe. On 3rd October 1948 he was camping at the Dak Bungalow at Basta in the Balasore district. Because of information received against him his person and belongings were searched on that day and a sum of Rs. 3 148 was recovered from him consisting of Rs. 450 paid at the time as a trap and Rs. 2 698 already in his possession. He was arrested on the spot but was later released on bail. Departmental and other proceedings were taken against him and he was eventually brought to trial on 29th March 1950 and charged under section 5(2) of the Prevention of Corruption Act (II of 1947) for criminal misconduct in the shape of habitually accepting illegal gratification. He was also separately charged and separately prosecuted under section 161 of the Indian Penal Code for three specific offences of bribe taking but we are not concerned here with that as he was acquitted on all three counts. His conviction here is under section 5(2) alone. The trial Court 94 sentenced him to rigorous imprisonment for four years and a fine of Rs. 5 000. The High Court upheld the conviction on appeal but reduced the sentence to two years and a fine of Rs. 3 000. The accused applied for a certificate to appeal under article 134(1)(c) on three points. The High Court held that two of them were not of sufficient importance to justify the issue of a certificate particullarly as one of the two was covered by the principle laid down by this Court. But it granted leave on all three as it considered that the first point was of importance. The points were formulated as follows: "(i) whether the view of this Court as to the requirement of sanction in a case of this kind and the interpretation of Morarka 's case in A.I.R. 1948 P.C. p. 82 adopted by this Court in its judgment are correct; (ii)whether the interpretation of this Court relating to the requirements as to the corroboration of an accomplice witness in a bribery case with reference to the latest unreported case of the Supreme Court which has been referred to in the judgment and which has since been reported in 1952 S.C.J. p. 46 is correct; and (iii)whether the law as propounded by the decision now ' sought to be appealed against with reference to the considerations that arise in judging the presumptions under section 5(3) of the Prevention of Corruption Act is correct. " The first point arises in this way. Four kinds of criminal misconduct are set out in section 5 of the Prevention of Corruption Act. They are enumerated in clauses (a) (b) (c) and (d) of sub section (1). The sanction is general and does not specify which of these four offences was meant. It runs as follows: " Government of Orissa. Commerce and Labour Department. Order No. 4561/Com. dated 3 11 1948. In pursuance of section 6 of the Prevention of Corruption Act 1947 (II of 1947) the Governor of 95 Orissa is hereby pleased to accord sanction for prosecution of Sri B. B. Nayak Inspector of Factories. Orissa employed in connection with the affairs of the Province under sub section (2) of section 5 of the said Act. Nature of offence committed: Criminal misconduct in discharge of official duty. By order of the governor Sd./ V. Ramanathan Secretary to Government. It was contended that the Privy Council held in Gokutchand Dwarkadas Morarka vs The King(1) that such a sanction is invalid. The High Court rejected this argument. We agree with the High Court. The passage of the Privy Council judgment on which reliance is placed is as follows "In their Lordships ' view in order to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be ' referred to on th; face of the sanction but this is not essential since clause 23 does not require the sanction to be in an particular form nor even to be in writing. But if the facts constituting the offence charged are not known on the face of the sanction the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. " The Judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control). Order 1943 but the principles apply here. It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering. The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given (1) A.I.R. 1948 P.C. 82. 96 aliunde that sanction was given in respect of the facts constituting the offence charged but an omission to do so is not fatal so long as the facts can be and are proved in some other way. The High Court finds that the facts to which the sanction relates were duly placed before the proper sanctioning authority. We need not consider the evidence about telephone calls and the like because the letter of the District Magistrate asking for sanction (Exhibit 26) is enough to show the facts on which the sanction is based. 'It is in these terms: "I have the honour to report that Sri B.B. Nayak Inspector of Factories Orissa in the course of his visit to this district had been visiting certain mills and on information received by me that he had been collecting heavy sums as illegal gratification from the Manager or Proprietor of Mills under threat of mischief to the mill owners it was arranged to verify the truth of this information by handing over 3 hundred rupee notes marked with my initials in presence of the Superintendent of Police and two other respectable gentlemen and millowners on the evening of the 2nd October 1948. On the 3rd October the Factory Inspector having actually received the illegal gratification of Rs. 45o which sum included the three marked hundred rupee notes the Prosecuting Inspector seized the marked notes along with a further heavy sum of Rs. 2 698 from his possession. Under section 6 of the Prevention of Corruption Act 1947 the accused being a public servant in the employ of the Provincial Government the sanction of the Provincial Government is necessary prior to taking cognisance of an offence under section 161 Indian Penal Code or subsection (2) of section 5 of the Act." A sanction based on the facts set out in this letter . namely the information received about the collection of heavy sums as bribes and the finding of Rs. 2 698 in his possession would be sufficient to validate the present prosecution. It is evident from this letter and from the other evidence that the facts placed before the 97 Government could only relate to offences under section 161 of the Indian Penal Code and clause (a) of section 5(1) of the Prevention of Corruption Act. They could not relate to clauses (b) or (c). Therefore when the sanction was confined to section 5 (2) it could not in the circumstances of the case have related to anything but clause (a) of sub section (1) of section 5. Therefore the omission to mention clause (a) in the sanction does not invalidate it. The present prosecution is confined to section 5(1)(a) which runs as follows: "(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code. " Then comes sub section (3) which sets out a new rule of evidence in these terms: "In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf is in possession for which the accused person cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income may be proved and on such proof the Court shall presume unless the contrary is proved that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption." Therefore all that the prosecution has to do is to show that the accused or some person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account. Once that is established then the Court has to presume unless the contrary is proved that the accused is guilty of the new offence created by section 5 namely criminal misconduct in the discharge of his official duty. 13 98 Now the accused was found in possession of Rs. 3 148. He accounted for Rs. 450 of that sum by showing that it was paid to him at the time as a trap. He has been acquitted of that offence so all he had to account for was the balance Rs. 2 698. This is a large sum for a touring officer to carry with him in cash while on tour. His explanation was not considered satisfactory and that is a question of fact with which we are not concerned in this Court. Therefore all that remains to be seen is whether this was disproportionate to his known sources of income. The accused is a Government Factory Inspector and we were told that his salary is only Rs. 450 a month. The High Court finds that the total sums drawn by him during his entire period of service of thirteen months was Rs. 6 045 as salary and Rs. 2 155 as travelling allowance. It also finds that he owns 0.648 acres of land which brings in no income worth the name. On the expenditure side of the accused 's account the High Court finds that he has a substantial family establishment which would not leave him enough margin for saving such a large sum of money. No other source of income has been disclosed. It is evident that no touring officer of his status and in his position would require such a large sum of money for his touring purposes even if he was away from headquarters for a month. His explanation was considered unsatisfactory by both Courts and was disbelieved. These are all questions of fact. Once the facts set out above were found to exist and the explanation of the accused rejected as unsatisfactory section 5(3) was at once attracted and the Court was bound to presume (the word used in the section is "shall" and not "may") that the accused was guilty under section 5(2) especially as this part of the section goes on to say "and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption. " These facts alone are enough to sustain the conviction and we need not consider the other matters. The High Court was right in holding that the sanction was sufficient and in convicting the accused. 99 The third point set out in the certificate of the High Court relates to the absence of particulars in the charge and we gathered from the arguments in the sanction. But no particulars need be set out in the charge in such a case because the offence under section 5(1)(a) does not consist of individual acts of bribe taking as in section 161 of the Indian Penal Code but is of a general character. Individual instances may be useful to prove the general averment in particular cases but it is by no means necessary because of the presumption which section 5(3) requires the Court to draw. There was therefore no illegality either in the sanction or in the charge; nor has the accused been prejudiced because he knew everything that was being urged against him and led evidence to refute the facts on which the prosecution relied. He was also questioned about the material facts set out above in his examination under section 342 of the Criminal Procedure Code and was given a chance then as well to give such explanation as he wished. The appeal fails and is dismissed. Appeal dismissed.

Held that it is not necessary for the sanction for an offence punishable under section 5(2) of the Prevention of Corruption Act 1947 (Act II of 1947) to be in any Particular form or in writing or for it to set out the facts in respect of which it is given. It is however desirable to state the facts on the face of sanction because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged but an omission to set out the facts in the sanction is not fatal so long as the facts can be and are proved in some other way. Where the sanction was confined to section 5(2) of the Act it could not under the circumstances of the case have related to anything but clause (a) of sub section (1) of section 5 and therefore an omission to mention clause (a) in the sanction did not invalidate it. under section 5(3) of the Act all that the prosecution has to do is to show that the accused or some person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income and for which the accused cannot satisfactorily account. Once that is established then the Court is bound to presume unless the contrary is proved that the accused is guilty of the new offence created by section 5 namely criminal misconduct in the discharge of his official duty. Held also that there was no illegality either in the sanction or in the charge on the ground that no particulars were given because the offence under section 5(1)(a) of the Prevention of Corruption Act does not consist of individual acts of bribe taking as in section 161 I.P. C. but is of a general character and individual instances are not necessary because of the presumption which section 5(3) requires the Court to draw. Gokulchand Dwarkadas Morarka vs The King (A.I.R. 1948 P.C. 82) referred to.

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. G. section Vohra and Harbans Singh for the appellants. Achhru Ram (J. B. Dadachanji and R. N. Sachthey with him) for respondents. 45 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 confirming the dismissal of the appellants ' suit cone currently by the trial Court and the Court of the District Judge Gurdaspur. The two appellants are admittedly the first cousins of the respondent Harnam Singh and belong to village Gillanwali Tahsil Batala District Gurdaspur. Gurmej Singh respondent No. 2 is a collateral 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 could not affect the reversionary rights of the appellants after the death of Harnam Singh. The appellant 's case was that under the Customary Law of Gurdaspur District applicable to the Gill Jats of village Gillanwali Harnam Singh could only adopt a is near collateral" and Gurmej Singh being a distant collateral 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 conduct of Harnam Singh. They held that all that was necessary under the custom to constitute an adoption was the expression of a clear intention on the part of the adoptive father to adopt the boy concerned as his son and this intention was clearly manifested here by the execution and registration of the deed of adoption coupled 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 collaterals only " was recognised was not mandatory. The High Court relied in support of their 46 conclusion on a decision of Tek Chand J. in Jowala vs Diwan Singh (1) and the Privy Council decision in Basant Singh vs Brij Raj Saran Singh (2). The first question regarding the factum of adoption need not detain us long. The deed of adoption Exhibit D. 1 recites that Harnam Singh had no male issue who could 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 continues 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 considered is whether under the terms of the Riwaj i am applicable to the parties Gurmej Singh being a collateral of Harnam Singh in the 8th degree could 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 daughter 's 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 not agriculturists by occupation recognize such adoption. The Muhamadan Jats of the (1) (2) I.L.R. 57 All 494. 47 Gurdaspur. Tahsil could not come to an agreement on this point. The remaining tribes recognise the adoption of War collaterals 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 collaterals cannot be sperseded and selection should always be made from among them" It is contended for the appellants that the expression " near collaterals only " must be construed to mean a collateral up to the third degree and does not cover the case of a remote collateral 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 collaterals " is not defined by the custom. The relevant answer which we have underlined above gives no indication as to the precise import of the words " near collaterals. " 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 no warrant for limiting the expression to signify collateral relationship only up to a certain degree and no further. We are also of opinion that the language used amounts to no more than an expression of a wish on the part of the narrators of the custom and is not 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 conflicting 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 collaterals only" was recognized by the community of Jats the right of selection was left to the discretion of the adopter. There is no meaning in conferring a discretion upon the adopter if he is not allowed to exercise the right of selection as between collaterals inter se. We are unable to read into the answer a restriction upon the choice of the adopter of any particular collateral however near in degree he may be 48 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 no restriction 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 confer a personal benefit upon a kinsman from the secular point of view 'unlike the adoption under the Hindu Law where the primary consideration in the mind of the adopter if a male is to derive spiritual benefit and if a female to confer such benefit upon her husband. That is why no emphasis 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 completed is not 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 no reason why a declaration in a Riwaj i am should be treated differently and the text of the answer should not 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 confer a temporal benefit upon one 's kinsmen should not 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 49 the declarations were merely directory and non compliance with those declarations did not invalidate the custom. In Jiwan Singh and Another vs 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 collateral in the 9th degree who is of 16 years of age is valid in the presence of nearer collaterals. " The adoption was objected to on the ground that the adoptee was a remote collateral and that he was not 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 not of a mandatory character. In Sant Singh vs Mula and Others ) Robertson and Beadon Jj. held "that among Jats and kindred tribes in the Punjab the general though not 'the universal custom is that a man may appoint an heir from amongst the descendants of his ancestor and that he need not necessarily appoint the nearest collateral. " This was a case where a distant collateral was preferred to a nearer collateral. The learned Judges expressed the opinion that the clause which points to the advisability of adopting from amongst near collaterals was nothing more than advisory. In Chanan ' Singh vs Buta Singh and Others(3) a case from Jullundur District the question and answer were as follows : "Q. No. 71: Are any formalities necessary to constitute 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. (2) 44 P.R. (3) A.I.R. 1935 Lah. 7 50 these formalities are not observed the adoption is not considered valid. " The adoption was challenged on the ground that there was no gathering of the brotherhood. The learned Judges (Addison and Beckett JJ.) held that it was immaterial whether there was or was not 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 not necessarily mandatory but might be merely indicatory. In Jowala vs Dewan Singh(1) Tek Chand J. held "that an adoption of a collateral in the fourth degree among Jats of Mauza Hussanpur Tahsil Nakodar District Jullundur is valid although nearer collaterals 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 vs 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 conceded that he could cite no case 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 confer spiritual benefit on the adopter and some of the rules have therefore been held to be mandatory and compliance with them regarded as a condition of the validity of the adoption. On the other hand under the (1) (2) 57 All 494. 51 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 not invalid. There is no substance in the appeal and we dismiss it with costs. Appeal dismissed.

Held that under the Customary Law of Gurdaspur District (Punjab) applicable to the Gill Jats of village Gillanwali the adoption of a collateral of the 8th decree is not invalid. The answer to question 9 in Customary Law of the Gurdaspur District that "the adoption of near collateral only" should be recognised is not mandatory but directory. Under the 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 not invalid. Jiwan Singh and Another vs Pal Singh and Another (22 P.R. 1913 at p. 84); Sant Singh vs Mula and Others (44 P.R. 1913 at p. 173); Charan Singh vs Butta Singh and Others (A.I.R. ; Jowala vs Dewan Singh ; and Basant Singh and Others vs Brij Raj Saran Singh (I.L.R. 57 All. 494) referred to:

Civil Appeal No. 1 of 1954 and Civil Appeal No. 7 of 1954. Appeals under article 132(1) of the Constitution of India from the Judgment and Order dated the 12th September 1952 of the High Court of Judicature at Bombay in Civil Application No. 880 of 1952 and Miscellaneous Application No. 212 of 1952 respectively. N.C. Chatterjee and U. M. Trivedi (H. H. Dalal and I. N. Shroff with them) for the appellants in Appeal No. I of 1954. Rajinder Narain for the appellants in Civil Appeal. No. 7 of 1954. M. C. Setalvad and C.K. Daphtary (G. N. Joshi and Porus A. Mehta with them) for the respondents in both the appeals. Mach 18. The Judgment of the Court was delivered by MUKHERJEA J. These two connected appeals are directed against a common judgment of a division Bench of the Bombay High Court dated the 12th of September 1952 by which the learned Judges dismissed two petitions under article 226 of the Constitution presented respectively by the appellants in the two appeals. 1057 The petitioners in both the cases assailed the consti tutional validity of the Act known as the Bombay Public Trusts Act 1950 (Act XXIX of 1950) which was passed by the Bombay Legislature with a view to regulate and make better provisions for the administration of the public and religious trusts in the State of Bombay. By a notification dated the 30th of January 1951 the Act was brought into force on and from the 1st of March 1951 and its provisions were made applicable to temples maths and all other trusts express or constructive for either a public religious or charitable purpose or both. The State of Bombay figures as the first respondent in both the appeals and the second respondent is the Charity Commissioner appointed by the first respondent under section 3 of the impugned Act to carry out the provisions of the Act throughout the State of Bombay. In one of the appeals namely Appeal No. 1 of 1954 the Assistant Charity Commissioner for the region of Baroda has been impleaded as the third respondent. The appellant in Appeal No. I of 1954 is a Swetamber Murtipujak Jain and a resident of Vejalpar in the district of Punchmahals within the State of Bombay. He is a Vahivatdar or manager of a Jain public temple or Derasar situated in the same village and the endowed properties appertaining to the temple are said to be of the value of Rs. 5 lakhs. The petition out of which this appeal arises was filed by the appellant on the 29th of May 1952 before the High Court of Bombay in its Appellate Side against the three respondents mentioned above praying for the issue of a writ in the nature of mandamus or direction ordering and directing the respondents to forbear from enforcing or taking any steps for the enforcement of the Bombay Public Trusts Act 1950 or of any of its provisions and parti cularly the provisions relating to registration of public and religious trusts managed by the appellant and payment of contributions levied in respect the same. The grounds urged in support of the petition were that a number of provisions of the Act convicted with the fundamental rights of the petitioner guaranteed under articles 25 and 26 of the Constitution and that the 1058 contribution levied on the trust was a tax which it was beyond the competence of the State Legislature to impose. A similar application under article 226 of the Consti tution and Praying for almost the identical relief was filed by the appellants in the other appeal namely Appeal No. 7 of 1954 before the High Court in its Original Side on the 4th of August 1952. The petitioners in this case purport to be the present trustees of the Parsi Punchayet Funds and Properties in Bombay registered under the Parsi Public Trusts Registration Act of 1936. These properties constitute one consolidated fund and they are administered by the trustees for the benefit of the entire Parsi community and the income is spent for specified religious and charitable purposes of a public character as indicated by the various donors. The petitioners challenged the validity of the Bombay Public Trusts Act 1950 substantially on the grounds that they interfered with the freedom of conscience of the petitioners and with their right freely to profess practise and propagate religion and also with their right to manage their own affairs in matters of religion and thereby contravened the provisions of articles 25 and 26 of the Constitution. The levy of contribution under section 58 of the Act was also alleged in substance and effect to be a tax on public religious and charitable trusts a legislation upon which it was beyond the competency of the State Legislature to enact. As practically the same questions were involved in both the petitions the learned Chief Justice of Bombay directed the transfer of the later petition from the Original Side to the Appellate Side of the High Court and both of them were heard together by a Division Bench consisting of the Chief Justice himself and Shah J. Both the petitions were disposed of by one and the same judgment delivered on the 12th of September 1952 and the learned Judges rejected all the contentions put forward on behalf of the respective applicants and dismissed the petitions. The petitioners in both the cases have now come before us in appeal on the strength of certificates granted 1059 by the High Court under article 132(1) of the Constitution. To appreciate the points that have been canvassed before us by the parties to these appeals it may be convenient to refer briefly to the scheme and salient features of the impugned Act. The object of the Act as stated in the preamble is to regulate and make better provisions for the administration of public religious and charitable trusts within the State of Bombay. It includes within its scope all public trusts created not merely for religious but for purely charitable purposes as well and extends to people of all classes and denominations in the State. The power of superintendence and administration of public trusts is vested under the Act in the Charity Commissioner who is to be appointed by the State Government in the manner laid down in Chapter II. The State Government may also appoint such number of Deputy and Assistant Charity Commissioners as. it thinks fit and these officers would be placed in charge of particular regions or particular trusts or classes of trusts as may be considered necessary. Section 9 with which Chapter III of the Act beigins defines what 'charitable purposes ' are and sections 10 and 11 lay down that a public trust shall not be void on the ground of uncertainty nor shall it fail so far as a religious and charitable purpose is concerned even if a non charitable or non religious purpose which is includ ed in it . cannot be given effect to. Chapter IV provides for registration of public trusts. Section 18 makes it obligatory upon the trustee of every public trust to which the Act applies to make an application for the registration of the trust of which he is the trustee. In case of omission on the part of a trustee to comply with this provision he is debarred under section 31 of the Act from instituting a suit to enforce any right on behalf of such trust in a court of law. Chapter V deals with accounts and audit. Section 32 imposes a duty upon every trustee of a public trust which has been registered under the Act to keep regular accounts. Under section 33 these accounts are to be audited annually in such manner as may be prescribed. 1060 Section 34 proscribes it to be the duty of the auditor to prepare balance sheets and to report all irregularities in the accounts. Section 35 lays down how trust money has to be invested and section 36 prohibits alienation of immovable trust property except by way of leases for specified periods Without the previous sanction of the Charity Commissioner. Section 37 authorises the Charity Commissioner and his subordinate officers to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust. A proviso is added to the section laying down that in entering upon any such property the officers making the entry shall give reasonable notice to the trustee and shall have due regard to the religious practices and usages of the trust. Among other powers and functions of the Charity Commissioner which are detailed in Chapter VII section 44 enables a Charity Commissioner to be appointed to act as a trustee of a public trust by a court of competent jurisdiction or by the author of the trust. Section 47 deals with the powers of the court to appoint new trustee or trustees and under clause (3) of this section the court after making enquiry may appoint the Charity Commissioner or any other person as a trustee to fill up the vacancy. Section 48 provides for the levy of administrative charges in cases where the Charity Commissioner is appointed a trustee. Section 50 appears to be a substitute for section 92 of the Civil Procedure Code and contains provisions of almost the same character in respect to suits regarding public trusts. One of the reliefs that can be claimed in such a suit is a declaration as to what proportion of the trust property or interest therein shall be allocated to any particular object of the trust. Section 55 purports to lay down the rule of cy pres in relation to the administration of religious and charitable trusts; but it extends that doctrine much further than is warranted by the principles laid down by the Chancery Courts in England or recognised by judicial pronouncements in this country. Section 56 deals with the powers of the courts in relation to the application of the cy pres doctrine. Section 57 provides for the establishment of a fund to be called "The 1061 Public Trusts Administration Fund which shall vest in the Charity Commissioner and clause (2) lays down what sums shall be credited to this fund. Section 58 makes it obligatory on every public trust to pay to this fund a contribution at such time and in such manner as may be Prescribed. Under the rules prescribed by the Government on this subject the contribution has been fixed at the rate of 2 per cent. per annum upon the gross annual income of every public trust. Failure .to pay this contribution will make the trustee liable to the penalties provided for in section 66 of the Act. Section 60 provides that the Public Trusts Administration Fund shall subject to the provisions of the Act and subject to the general and special orders of the State Government be applicable to the. payment of charges for expenses incidental to the regulation of public trusts and generally for carrying out the provisions of the Act. Sections 62 to 66 which are comprised in Chapter IX of the Act deal with the appointment and qualifications of assessors. The function of the assessors is to assist and advise the Charity Commissioner or his subordinate officers in the matter of making enquiries which may be necessary under the provisions of the Act. Chapter X prescribes the penalties that will be inflicted on trustees in case of their violating any of the pro visions of the Act. Chapter XI deals with procedural matters in connection with jurisdiction of courts and rights of appeal and the twelfth or the last chapter deals with certain miscellaneous matters. These in brief are the provisions of the Act which are material for our present purpose. The contentions that have been raised by the learned counsel who appeared in support of the appeals may be considered under two heads. In the first place a number of provisions of the Act have been challenged as invalid on the ground that they conflict with freedom of religion and the right of the religious denominations or sects represented by the appellants in each case to manage their own affairs in matter of religion guaranteed under articles 25 and 26 of the Constitution. The sections of the Act the validity of which has been challenged on this ground are sections 18 31 to 37 44 1062 47 48 50 clauses (e) and (g) 55 58 and 66. The second head of the appellants argument relates to the levy of contribution as laid down in sections 57 and 58 of the Act and the argument is that this being in substance the levy of a tax it was beyond the competence of the State Legislature to enact such a provision. As regards the first branch of the contention a good deal of argument has been advanced before us relating to the measure and extent of the fundamental rights guaranteed under articles 25 and 26 of the Constitution. It will be necessary to address ourselves to this question at the outset because without a clear appreciation of the scope and am bit of the fundamental rights embodied in the two articles of the Constitution it would not be possible to decide whether there has been a transgression of these rights by any of the provisions of the Act. This identical question came up for consideration before this court in Civil Appeal No. 38 of 1953 (The commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Tirtha Swamiar(1) and it was discussed at some length in our judgment in that case. It will be sufficient for our present purpose to refer succinctly to the main principles that this court enunciated in that judgment. Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess practise and propagate religion. This is subject in every case to public order health and morality. Further exceptions are engrafted upon this right by clause (2) of the article. Sub clause (a) of clause (2) saves the power of the State to make laws regulating or restricting any economic financial political or other secular activity which may be associated with religious practice; and sub clause (b) reserves the State 's power to make laws providing for social reform and social welfare even though they might interfere with religious practices. Thus subject to the restrictions which this article imposes every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such (1) ; 1063 overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief is as stated above subject to State regulation imposed to secure order public health and morals of the people. What sub clause (a) of clause (2) of article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic commercial or political character though they are associated with religious practices. So far as article 26 is concerned it deals with a particular aspect of the subject of religious freedom. Under this article any religious denomination or a section of it has the guaranteed right to establish and maintain institutions for religious and charitable purposes and to manage in its own way all affairs in matters of religion. Rights are also given to such denomination or a section of it to acquire and own movable and immovable properties and to administer such properties in accordance with law. The language of the two clauses (b) and (d) of article 26 would at once bring out the difference between the two. In regard to affairs in matters of religion the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. On the other hand as regards administration of property which a religious denomination is entitled to own and acquire it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted but here again it should be remembered that under article 26 (d) it is the religious denomination itself which has been given the right to administer its pro perty in accordance with any law which the State may validly impose. A law which takes away the right of 138 1064 administration altogether from the religious denomination and vests it in any other or secular authority would amount to violation of the right which is guaranteed by article 26 (d) of the Constitution. The moot point for consideration therefore is where is the line to be drawn between what are matters of religion and what are not ? Our Constitution makers have made no attempt to define what 'religion ' is and it is certainly not possible to frame an exhaustive definition of the word 'religion ' which would be applicable to all classes of persons. As has been indicated in the Madras case referred to above the definition of religion given by Fields J. in the American case of Davis vs Beason(1) does not seem to us adequate or precise. "The term 'religion" ' thus observed the learned Judge in the case mentioned above "has refer ence to one 's views of his relations 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 confounded with cultus or form of worship of a particular sect but is distinguishable from the latter". it may be noted that 'religion ' is not necessarily theistic and in fact there are well known religions in India like Buddhism and Jainism which do nor believe in the existence of God or of any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs and doctrines which are regarded by those who profess that religion to be conducive to their spiritual well being but it would not be correct to say as seems to have been suggested by one of the learned Judges of the Bombay High Court that matters of religion are nothing but matters of religious faith and religious belief. A religion is not merely an opinion doctrine or belief. It has its outward expression in acts as well. We may quote in this connection the observations of Latham C. J. of the High Court of Australia in the case of Adelaide Company vs The Commonwealth(2) where the extent of protection given to religious freedom by section 116 of the Australian Constitution came up for consideration. (1)133 U.S. 33 (2) ; 124. 1065 "It is sometimes suggested in discussions on the subject of freedom of religion. that though the civil Government should not interfere with religious opinions 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. In our opinion as we have already said in the Madras case these observations apply fully to the provision regarding religious freedom that is embodied in our Constitution. Religious practices or performances of acts in pursuance of religious belief are as much apart of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner it cannot be said that these are secular activities partaking of commercial or economic character simply because the involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it. is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of 1066 Davar J. in the case of Jamshedji vs Soonabai(1) and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj Vyezashni etc. which are sanctioned by the Zoroastrian religion were valid charitable gifts the observations we think are quite appropriate for our present purpose. "If this is the belief of the community" thus observed the learned Judge "and it is proved undoubtedly to be the belief of the Zoroastrian community a secular Judge is bound to accept that belief it is not for him to sit in judument on that belief he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of his religion and the Welfare of his community or mankind". These observations do in our opinion afford an indication of the measure of protection that is given by article 26(b) of our Constitution. The distinction between matters of religion and those of secular administration of religious properties may at times appear to be a thin one. But in cases of doubt as Chief Justice Latham pointed out in the case(2) referred to above the court should take a common sense view and be actuated by considerations of practical necessity. It is in the light of these principles that we will proceed to examine the different provisions of the Bombay Public Trusts Act the validity of which has been challenged on behalf of the appellants. We will first turn to the provisions of the Act which relate to registration of trusts. Under section 18 it is incumbent on the trustee of every public religious or charitable trust to get the same registered. Section 66 of the Act makes it an offence for a trustee not to comply with this provision and prescribes punishment for such offence. Section 31 provides for further compulsion by laying down that no suit shall lie on behalf of a public trust to enforce its right in any court of law unless the trust is registered. A compulsory payment (1) (2) Vide Adelaide Company vs The commonwealth 67 C.L.R. 116 i29. 1067 of a fee of Rs. 25 has also been prescribed by the rules framed by the Government for registration of a trust. The provisions of registration undoubtedly have been made with a view to ensure due supervision of the trust properties and the exercise of proper control over them. These are matters relating to administration of trust property as contemplated by article 26(d) of the Constitution and cannot by any stretch of imagination be held to be an attempt at interference with the rights of religious institutions to manage their religious affairs. The fees leviable under section 18 are credited to the Public Trust Administration Fund constituted under section 57 and are to be spent for meeting the charges incurred in the regulation of public trusts and for carrying into effect the provisions of the Act. The penalties provided are mere consequential provisions and involve no infraction of any fundamental right. It has been argued by the learned counsel for the appellants that according to the tenets of the Jain religion the property of the temple and its income exist for one purpose only viz. the religious purpose and a direction to spend money for purposes other than those which are considered sacred in the Jain scriptures would constitute interference with the freedom of religion. This contention does not appear to us to be sound. These expenses are incidental to proper management and administration of the trust estate like payment of municipal rates and taxes etc. and cannot amount to diversion of trust property for purposes other than those which are prescribed by any religion. The next group of sections to which objections have been taken comprises sections 32 to 37. Section 32 compels a trustee of a public trust to keep accounts in such form as may be prescribed by the Charity Commissioner. Section 33 provides for the auditing of such accounts and section 34 makes it the duty of the auditor to prepare balance sheets and to report irregularities if any that are found in the accounts. These are certainly not matters of religion and the objection raised with regard to the validity of these provisions seem to be altogether baseless Section 35 relates to investment of money belonging to trusts. It is a well 1068 settled principle of law that trustees in charge of trust properties should not keep cash money in their hands which are not necessary for immediate expenses; and a list of approved securities upon which trust money could be invested is invariably laid down in every legislation on the subject of trust. There is nothing wrong in section 36 of the Act. Immovable trust properties are inalienable by their very nature and a provision that they could be alienated only with the previous sanction of the Charity Commissioner seems to us to be a perfectly salutary provision. Section 37 has been objected to on the ground that an unrestricted right of entry in any religious premises might offend the sentiments of the followers of that religion; but the section has expressly provided that the officers making the entry shall give reasonable notice of their intended entry to the trustees and shall have due regard to the religious practice and usages of the trust. Objection has next been taken to sections 44 and 47 of the Act. Section 44 lays down that the Charity Commissioner can be appointed to act as trustee of a public trust by a court of competent jurisdiction or by the author of the trust. If the author of the trust chooses to appoint the Charity Commissioner a trustee no objection can possibly be taken to such action; but if the court is authorised to make such appointment the provisions of this section in the general form as it stands appear to us to be open to serious objection. If we take for example the case of a religious institution like a Math at the head of which stands the Mathadhipati or spiritual superior. The Mathadhipati is a trustee according to the provisions of the. Act and if the court is competent to appoint the Charity Commissioner as a superior of a Math . the result would be disastrous and it would amount to a flagrant violation of the constitutional guarantee which religions institutions have under the@ Constitution in regard to the management of its religious affairs. This is not a secular affair at all relating to the administration of the trust property. The very object of a Math is to maintain a competent line of religious teachers for propagating and strengthening the religious 1069 doctrines of a particular order or sect and as there could be no Math without a Mathadhipati as its spiritual head the substitution of the Charity Commissioner for the superior would mean a destruction of the institution altogether. The evil is further aggravated by the provision of clause (4) of the section which says that the Charity Commissioner shall be the sole trustee and it shall not be lawful to appoint him as a truste along with other persons. In our opinion the provision of section 44 relating to the appointment of the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and Maths is unconstitutional and must be held to be void. The very same objections will apply to the provisions of clauses (3) to (6) of section 47. The court can certainly be empowered to appoint a trustee to fill up a vacancy caused by any of the reasons mentioned in section 47(1) and it is quite a salutary principle that in making the appointment the court should have regard to matters specified in clause (4) of section 47 ; but the provision of clause (3) to the extent that it authorises the court to appoint .the Charity Commissioner as the trustee and who according to the provisions of clause (5) is to be the sole trustee cannot be regarded as valid in regard to religious institutions of the type we have just indicated. To allow the Charity Commissioner to function as the Shebait of a temple or the superior of a Math would certainly amount to interference with the religious affairs of this institution. We hold accordingly that the provisions of clauses (3) to (6) of section 47 to the extent that they relate to the appointment of the Charity Commissioner as a trustee of a religious trust like temple and Math are invalid. If these provisions of section 47 are eliminated no objection can be taken to the provision of section 48 as it stands. This section will in that event be confined only to cases where the Charity Commissioner has been appointed a trustee by the author of the trust himself and the administrative charges provided by this section can certainly be levied on the trust. 1070 We now come to section 50 and exception has been taken to clauses (e) and (g) of that section. It is difficult to see how these provisions can at all be objected to. Section 50 as has been said above is really a substitute for section 92 of the Civil Procedure Code and relates to suits in connection with public trusts Clause (e) of section 50 is an exact reproduction of clause (e) of section 92 of the Civil Procedure Code and clause (g) also reproduces substantially the provision of clause (g) of section 92 of the Civil Procedure Code. There is no question of infraction of any fundamental right by reason of these provisions. A more serious objection has been taken by the learned counsel for the appellants to the provisions of sections 55 and 56 of the impugned Act and it appears to us that the objections are to a great extent well founded. These sections purport to lay down how the doctrine of cy pres is to be applied in regard to the administration of public trust of a religious or charitable character. The doctrine of cy pres as developed by the Equity Courts in England has been adopted by out Indian courts since a long time past. The provisions of sections 55 and 56 however have extended the doctrine much beyond its recognised limits and have further introduced certain principles which run counter to well established rules of law regarding the administration of charitable trusts. When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part or where there is a surplus left after exhausting the purposes specified by the settlor the court would not when there is a general charitable intention expressed by the settlor allow the trust to fail but would execute it cy pres that is to say in some way as nearly as possible to that which the author of the trust intended. In such cases it cannot be disputed that the court can frame a scheme and give suitable directions regarding the objects upon which the trust money can be spent. It is we 11 established however that where the donors intention can be given effect to the court has no authority to sanction any deviation from the intentions expressed 1071 by the settlor on the grounds of expediency and the court cannot exercise the power of applying the trust property or its income to other purposes simply because it considers them to be more expedient or more beneficial than what the settlor had directed(1). But this is exactly what has been done by the provision of section 55(c) read with section 56 of the Act. These provisions allow a diversion of property belonging to a public trust or the income thereof to objects other than those intended by the donors if the Charity Commissioner is of opinion and the court confirms its opinion and decides that carrying out wholly or partially the original intentions of the author of the trust or the object for which the trust was created is not wholly or partially expedient practicable desirable or necessary; and that the property or income of the public trust or any portion thereof should be applied to any other charitable or religious object. Whether a provision like this is reasonable or not is not pertinent to our enquiry and we may assume that the legislature which is competent to legislate on the subject of charitable and religious trust is at liberty to make any provision which may not be in consonance with the existing law; but the question before us is whether such provision invades any fundamental right guaranteed by our Constitution and we have no hesitation in holding that it does so in the case of religious trusts. A religious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for the religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular institution. To divert the trust property or funds for purposes which the Charity Commissioner or the court considers expedient or proper although the original objects of the founder can still be carried out is to our minds an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs. It is perfectly true as has been stated (1) Vide Halsbury 2nd Edn. VOl. IV P. 228 139 1072 by the learned counsel for the appellants that it is an established maxim of the Jain religion that Divadraya or religious property cannot be diverted to purposes other than those which are considered sacred in the Jain scriptures. But apart from the tenets of the Jain religion we consider it to be a violation of the freedom of religion and of the right which a religious denomination has under our Constitution to manage its own affairs in matters of religion to allow any secular authority to divert the trust money for purposes other than those for which the trust was created. The State can step in only when the trust fails or is incapable of being carried out either in whole or in part. We hold therefore that clause (3) of section 55 which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of section 56(1) must be held to be void. The only other section of the Act to which objection has been taken is section 58 and it deals with the levy of contribution upon each public trust at certain rates to be fixed by the rules in proportion to the gross annual income of such trust. This together with the other sums specified in clause (2) of section 57 makes up the Public Trusts Administration Fund which is to be applied for payment of charges incidental to the regulation of public trusts and for carrying into effect the provisions of this Act. As this contribution is levied purely for purposes of due administration of the trust property and for defraying the expenses incurred in connection with the same no objection could be taken to the provision of the section on the ground of its infringing any fundamental rights of the appellants. The substantial contention that has been raised in regard to the validity of this provision comes however under the second head of the appellants ' arguments indicated above. The contention is that the contribution which is made payable under this section is in substance a tax and the Bombay State Legislature was not competent to enact such provision within the limits of the authority exercisable by it under the Constitution. This raises a point of some importance which requires to be examined carefully. 1073 It is not disputed before us that if the contribution that is levied under section 58 is a tax a legislation regarding it would be beyond the competence of the State Legislature. Entries 46 to 62 of List II in Schedule VII of the Constitution specify the different kinds of taxes and duties in regard to which the State Legislature is empowered to legislate and a tax of the particular type that we have here is not covered by any one of them. It does not come also under any specific entry in List III or even of List I. The position therefore is that if the imposition is held to be a tax it could come either under entry 97 of List I which includes taxes not mentioned in Lists II and III or under article 248 (1) of the Constitution and in either case it is Parliament alone that has the competency to legislate upon the subject. If on the other hand the imposition could be regarded as "fees" it can be brought under entry 47 of the Concurrent List the Act itself being a legislation under entries 10 and 28 of that List. The whole controversy thus centers round a point as to whether the contribution leviable under section 50 is a fee or tax and what in fact are the indicia and characteristics of a fee which distinguish it from a tax. This identical question came up for consideration before this court in Civil Appeal No. 38 of 1953 referred to above in connection with the provision of section 76 of the Madras Religious and Charitable Endowments Act and the view which we have taken in that case regarding the proper criterion for determining whether an imposition is a fee or tax is in substantial agreement with the view taken by the Bombay High Court in the present case. As the matter has been discussed at some length in the Madras case it will not be necessary to repeat the same discussions 'over again. It will be enough if we indicate the salient principles that were enunciated by this court in its judgment in the Madras case mentioned above. We may start by saying that although there is no generic difference between a tax and a fee and in fact they are only different forms in which the taxing power of a State manifests itself our Constitution has in fact made a distinction between a tax and a fee for 1074 legislative purposes. While there are various entries in the three legislative lists with regard to various forms of taxation there is an entry at the end of each one of these lists as regards fees ' which could be levied in respect of every one of the matters that are included therein .This distinction is further evidenced by the provisions of the Constitution relating to Money Bills which areembodied in articles 110 and 199. Both these articles provide that a bill should not 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 relating to imposition abolition or regulation of a tax would always be recckoned as a Money Bill. There is no doubt that a fee resembles a tax in many respects and the question which presents difficulty is what is the proper test by which the one could be distinguished from the other? A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes the payment of which is enforced by law. But the other and equally important characteristic of a tax is that the imposition is made for public purpose to meet the general expenses of the State without reference to any special advantage to be conferred upon the payers of the tax. It follows therefore that although a tax may be levied upon particular classes of persons or particular kinds of property it is imposed not to confer any special benefit upon individual persons and the collections are all merged in the general revenue of the State to be applied for general public purposes. Tax is a common burden and the only return which the taxpayer gets is participation in the common benefits of the State. Feees on the other hand are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus in fees there is always an element of quid pro quo which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in 1075 performing any particular work for the benefit of certain individuals. But in order that the collections made by the Government can rank as fees there must be co relation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by showing that on the face of the legislative provision itself the collections are not merged in the general revenue but are set apart and appropriated for rendering these services. Thus two elements are essential in order that a payment may be regarded as a fee. In the first place it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and in the second place the amount collected must be ear marked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. As has been pointed out in the Madras case mentioned above too much stress should not be laid on the presence or absence of what has been called the Coercive element. It is not correct to say that as distinguished from taxation which is compuslory payment the payment of fees is always voluntary it being a matter of choice with individuals either to accept the service or not for which fees are to be paid. We may cite for example the case of a licence fee for a motor car. It is argued that this would be a fee and not a tax as it is optional with a person either to own a motor car or not and in case be does not choose to have a motor car he need not pay any fees at all. But the same argument can be applied in the case of a house tax or land tax. Such taxes are levied only on those people who own lands or houses and it could be said with equal propriety that a man need not own any house or land and in that event he could avoid the payment of these taxes. In the second place even if the payment of a motor licence fee is a voluntary payment it can still be regarded as a tax if the fees that are realised on motor licences have no relation to the expenses that the Government incurs in keeping an office or bureau for the granting of licences and the collections are not appropriated for that purpose but 1076 go to the general revenue. Judging by this test it appears to us that the High Court was perfectly right in holding that the contributions imposed under section 58 of the Bombay Public Trusts Act are really feEs and not taxes. In the first place the contributions which are collected under section 58 are to be credited to the Public Trusts Administration Fund as constituted under section 57. This is a special fund which is to be applied exclusively for payment of charges for expenses incidental to the regulation of public trusts and for carrying into effect the provisions of the Act. It vests in the Charity Commissioner and the custody and investments of the moneY belonging to the funD and the disbursement and pAyment therefrom are to be effected not in the manner in which general revenues are disbursed but in the way prescribed by the rules made under the Act. The collections therefore are not merged in the general revenue but they axe earmarked and set apart for this particular purpose. it is true that under section 6A of the Act the officers and servants appointed under the Act are to draw their pay and allowances from the Consolidated Fund of the State but we agree with what has been said by Mr. Justice Shah of the Bombay High Court that this provision is made only for the purpose of facilitating the administration and not with a view to mix up the fund with the general revenue collected for Government purposes. This would be clear from the provision of section 6B which provides that out of. the Public Trusts Administration Fund all the costs which the State Government may determine on account of pay pension leave and other allowances of all. the officers appointed under this Act shall ' be paid. It is the Public Trusts Administration Fund therefore which meets all the expenses of the administration of trust property within the scheme of the Act and it is to meet the expenses of this administration that these collections are levied. As has been said by the learned Judges of the High Court according to the concept of a modern State it is not necessary that services should be rendered only at the request of particular people it is enough that payments are demanded for 1077 rendering services which the State considers beneficial in the public interests and which the people have to accept whether they are willing or not. Our conclusion therefore is that section 58 is not ultra vires of the State Legislature by reason of the fact that it is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule VII of the Constitution. The result therefore is that in our opinion the appeals are allowed only in part and a mandamus will issue in each of these cases restraining the State Government and the Charity Commissioner from enforcing against the appellants the following provisions of the Act to wit : (i) Section 44 of the Act to the extent that it relates to the appointment of the Charity Commissioner as a trustee of religious public trust by the court (ii) the provisions of clauses (3) to (6) of section 47 and (iii) clause (c) of section 55 and the part of clause (1) of section 56 corresponding thereto. The other prayers of the appellants stand dismissed. Each party will bear hi own costs in both the appeals.

Held that the provision of a. 44 of the Bombay Public Trust Act 1950 relating to the appointment of the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and Maths is unconstitutional and must be held to be void. The provisions of el. (3) to (6) of a. 47 of the Act to the extent that they relate to the appointment of the Charity Commissioner as a trustee of a religious trust like temple and Math are unconstitutional and must be held to be void. A religious sect or denomination has. the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for religion and for religious purposes and objects indicated by the founder of the trust or established by ussage 137 1056 obtaining in a particular institution. To divert the trust property or funds for purposes which the Charity commissioner or the court considers expedient or proper although the original objectes of the founder can still be carried out is an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs. Therefore cl. (3) of section 55 which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of section 56(1) must be held to be void. Section 58 of the Act is not ultra vires of the State Legislature because the contribution imposed under the section is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule VII of the Constitution. Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar ( ; Davis vs Beason ; Adelaide Company vs The Commonwealth ; 124) and Tamshed Ji vs Soonabai [1919] (I.L.R referred to.

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 52 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. D.M. Bhandari (K. N. Aggarwala and R. N. Sachthey with him) for the respondent. 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 concerning 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 contains 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 53 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 not in appropriate language express the directions of the two widows and his ideas of the legal situation were somewhat confused but there can be no manner of doubt that the two executants were not conferring 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 no title themselves is evident from the fact that Mst. Sheokori also joined in executing the gift deed. Admittedly Ramchandra 's estate could not devolve on her. Bhuri the second daughter died in the year 1907 while Mst. Badni the widow. died in the year 1927. 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 defendant 's 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 54 was contended by him that Balabux had no right either to mortgage or sell the house and that Laxmi was not 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 no title 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 continued 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 no proof that it conferred upon her an absolute interest in the property and that in the absence of any evidence indicating that the donor intended to convey an absolute interest to her the gift being in favour of a female could only confer upon her a limited life estate and on her death revert to the donor 's heirs and the plaintiff being such an heir was entitled to succeed. In the result the appeal was allowed and the plaintiff 's suit was decreed with costs 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 55 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 not be entitled to possession of the house except on payment of Rs. 4 000 to the defendant as costs of improvements and repairs. It is against this judgment and decree passed after the coming 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 counsel for the respondent raised a preliminary objection as to the maintainability of the appeal. He contended that according to the Code of Civil Procedure of the Jaipur State the decision of the Jaipur High Court had become final as no appeal lay from it and hence this appeal was incompetent. It was argued that the proceedings in the suit decided in 1945 had concluded by the decision of the High Court given in 1949 and the review judgment which modified the decree in regard to improvements could not entitle the appellant to reopen the decision of the High Court of Jaipur given in 1949. In our opinion this objection is not well founded. The only operative decree in the suit which finally and conclusively 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 coming 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 could not determine the jurisdiction of this Court and has no relevancy to the maintainability of the appeal. The requirements of article 133 having been fulfilled this appeal is clearly competent. The learned counsel then contended 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 56 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 conferred on her only a limited estate in the absence of evidence that he intended to confer 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 conferred by article 136(1) of the Constitution if such a certificate had not been given in the case. For the reasons given above we see no force in either of these two preliminary objections which we overrule. Dr. Bakshi Tek Chand for the appellant contended that the Courts below were in error in holding that the plaintiff 's 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 not been made good by him and as there was no evidence that he looked the house it should be held that plaintiff 's possession discontinued with effect from the 24th August 1933 and hence his suit brought more than twelve years from that date was not 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 continued in possession thereafter. Even if the tenant vacated the house on the 24th August 1933 and the plaintiff did not lock it his possession would be presumed to continue till he was dispossessed by some one. The law presumes in favour of continuity of possession. The three Courts below have unanimously held that on the evidence it was established that after the death of Laxmi plaintiff continued in possession of the house and the suit was within limitation. There are no valid grounds for reviewing this finding in the fourth Court and the contention is therefore negatived. 57 Dr. Bakshi Tek Chand next contended that Laxmi acquired an absolute title in the suit property under the will of her father and that the High Court was in error in@holding that unless there were express words indicating that the donor who had absolute interest in the gifted property intended to convey an absolute interest to her the gift in favour of an heir who would ordinarily inherit a limited interest could not be construed as conferring an absolute interest. The learned counsel for the respondent on the other hand raised two contentions. 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 widow 's gift and under it she could not 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 no evidence 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 contrary was that the donee got only a limited life interest in the bequeathed property. In our judgment there is force in the contention of Dr. Tek Chand and none of the contentions raised by the respondent 's 'counsel have any validity. That Ramchandra bequeathed the suit property and did not 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 connection 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 8 58 she got the rent notes executed in my name." ' What is admitted by a party to be true must be presumed to be true unless the contrary is shown. There is no evidence to the contrary 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 confer 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 confer 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 no heir to the property which under the law devolved on Laxmi 's 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 convey absolute ownership a gift in favour of an heir who inherits only a limited interest cannot be construed as conferring 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 Shumsool 's case was construed by the High Courts in India to mean that a gift of immovable property to a woman could not be deemed to confer upon her an absolute estate of inheritance which she could 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. 59 conferring absolute ownership upon the wife the wife enjoyed the rights of ownership without their being con ferred by express and additional terms. Shumsool 's 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 no presumption one way or the other and there is no difference between the case of a male and the case of a female and the fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male (see Nagammal vs Subbalakshmi Ammal(2). The matter has now been set at rest by the decision of this Court in Ram Gopal vs Nand Lal(3). In this case it was observed as follows: " It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female she does not get an absolute or alienable interest in such property unless such power is expressly conferred upon her. The reasoning adopted by Mitter J. of the Calcutta High Court in Mst. Kollani Kuar vs 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 conflicting context 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 "widow 's estate ' there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same. " The position therefore is that to convey an absolute estate to a Hindu female no express power (1) 21 A. 7. (4) (2) (1947) I M.L.J. 64. (5) P.C. (3) ; 60 of alienation need be given; it is enough if words are used of such amplitude as would convey 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 plaintiff 's suit and restore the decree of the trial Court dismissing the plaintiff 's suit. In the circumstances of this case we will make no order as to costs. Appeal allowed.

It may be taken as well settled that there is no warrant for the proposition of law that when a grant of immoveable property is made to a Hindu female she does not get an absolute or alienable interest in such property unless such power is expressly conferred upon her. The law is that there is no presumption one way or the other and there is no difference between the case of a male and the case of a female and the fact that the donee is a woman does not make the gift any the less absolute where the words would be sufficient to convey an absolute estate to a male. Mohamed Shumsool vs Shewakram (2 I.A. 7) Nagammal vs Subbalakshmi 1(1947) I.M.L.J. 641 and Ram Gopal vs Nand Lal (A.I.R. referred to.

vil 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. K. section Krishnaswamy lyengar (J. B. Dadachanji V.B. Rege and Ganpat Rai with him) for the appellants. section 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 common ground that up to 1944 the brothers were living and messing together and the income from 101 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 compromised on March 7 1946. By this compromise it was declared that prior to 1942 all the accounts of the various businesses had been correctly 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 compromise 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 compromise. One of the brothers was a minor and the Court finding the compromise to be for the benefit of the minor accepted it and passed a pre liminary decree in terms of the compromise on July 25 1947. If nothing else had happened to disturb the natural course of events the proceedings would have ended in a final decree for partition. The plaintiff however commenced a fresh suit on February 23 1949 confining 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 compromise was made in a hurry that the parties omitted to provide in the compromise about the future conduct 102 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 compromise 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 compromise 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 not. barred by reason of the decision in the previous suit No. 39 of 1945 that the decision in that suit was not obtained by fraud and misrepresentation and that the compromise in the previous suit was not 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 not 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 not barred 103 by res judicata or by Order II rule 2 of the Code of Civil Procedure. After delivering themselves of some conflicting observations to which reference will in detail be made hereafter they held that the consent decree did not expressly negative the right for accounts of the motor transport business. Finally the learned Judges recorded the conclusion 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 co owners and as contemplated 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 counsel for the appellants has contested the view of the High Court upon all the points decided against them. He has contended 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 not 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 counsel 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 compromise arrived at between the parties in the circumstances then existing the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts upto March 31 1946 and had closed the door to reopening them beyond that date. If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud misrepresentation mistake or misunderstanding as held by the trial Court a finding which was not interfered with by the High Court it follows that a matter once concluded between the parties who were dealing with each other at arms length cannot now be reopened. What led the parties to confine the period of account to March 31 1946 and stop further accounting which would have normally extended to the passing of the final decree will appear from the following circumstances. The plaintiff knew that the licence for the liquor shops 104 carried on by him was expiring on the 1st April 1946 and he was anxious to run the liquor business exclusively and not jointly or in partnership with his brothers after the expiry of the licence. He gave a notice 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 no desire to conduct 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 not allow the said moneys to have the least connection 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 notice 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 notice furnishes a true guide as to the intention of the plaintiff which was none 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 105 against the Rs. 3 000 his brothers had. The notice explains the significance of the provision in the compromise that accounts are to be taken only up to March 31 1946. Since the plaintiff did not 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 connection with other businesses run by his brothers. This arrangement was apparently acceptable to all the brothers as being fair and reasonable and as not giving undue advantage to any party over the other. This being our construction of the compromise it follows that the plaintiff 's conduct 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 no manner of doubt that the plaintiffs in that suit sought a complete 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 compromise the plaintiff (Balkrishna) filed an application before the Civil Judge in which he alleged that when he agreed in the compromise 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 not 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 14 106 it is not 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 not 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 come to an end on the 31st of March 1946; but there was also another business; that Was a kirana shop which was not a very big business. But all the same it was there and there is force therefore in the contention which has been advanced on behalf of the appellants that it was not 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 not particularly care for providing by the compromise decree for accounts of those businesses being taken after the 1st of April 1946. " Having said all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiff 's case about mistake or misunderstanding in regard to the true effect of the compromise 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 common. 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 no point in mentioning the 31st March 1946. The normal course 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 compromise which limited the period of the account the plaintiff would have obtained the relief he is now 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 107 course of events and for forbidding the accounts to be taken after the 31st March 1946. The plaintiff on the other hand has no real grievance in the matter for although the defendants Nos. 1 and 2 who continued 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 notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive 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 compromise closed once for all the controversy 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 compromise and the consent 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 consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not 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 plaintiff 's claim is barred by the provisions of Order II rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 3 1946 only implicitly of not 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 not afterwards sue for any relief so omitted. We do not 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 compromised the plaintiff having abandoned his claim to account in respect of 108 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 no further question as to the applicability of section 90 of the Indian Trusts Act can possibly arise under the circumstances. The result is that we allow the appeal and dismiss the suit with costs throughout. Appeal allowed.

It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. Where a compromise is found not to be vitiated by fraud Misrepresentation 100 misunderstanding or mistake the decree passed thereon has the binding force of res judicata. Where the plaintiff confines his claim to account for a period up to a certain date only he relinquishes his claim implicitly if not explicitly to the account for the subsequent period because Order II rule 2 (3) of the Code of Civil Procedure lays down that if a person omits except with the leave of the Court to he sue for all reliefs to which he is entitled he shall not afterwards sue for any reliefs so omitted.

ivil 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 section 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. S.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 construction 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 consisting of defendants Nos. 1 to 11 trespassed on them and carried away the crops. The suit was 119 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 contested 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 no right to settle them on the plaintiffs and that the latter acquired ' no rights 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 conferred no rights 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 correct valuation of the suit was Rs. 9 980. The plaintiffs paid the additional Court fees required of them and then raised the contention that on the revised valuation the appeal from the decree of the Subordinater Judge would lie not to the District Court but to the High Court and that accordingly section 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 120 of a Full Bench of that Court in Ramdeo Singh vs Raj Narain (1) that the appeal to the District Court was competent and that its decision could be reversed only if the appellants could establish prejudice on the merits and holding that on a consideration of the evidence no such prejudice had been shown they dismissed the second appeal. The matter now comes before us on special leave. It will be noticed 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 competent to entertain the appeal. The contention of the appellants is that as on the valuation of the suit as ultimately determined the District Court was not competent 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 not 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 contended that even if the decree and judgment of the District Court on appeal are not 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 not 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. (1) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278 121 The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction 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 could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral 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 consent of parties. If the question now under consideration fell to be ' determined only on the application of general principles governing the matter there can be no doubt that the District Court of Monghyr was coram non 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 notwithstanding anything in section 578 of the Code of Civil Procedure an objection that a Court which had 'no jurisdiction over a suit or appeal had exercised it by reason of over valuation or under valuation should not be entertained by an appellate Court. except as provided in the section. Then follow provisions as to when the objections could be entertained and how they are to be dealt with. The drafting of the section has come in and deservedlyfor considerable criticism; but amidst much that is obscure and confused there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court which would have had no jurisdiction to hear a suit or appeal but for over valuation or under valuation is not 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 not otherwise. The reference to section 578 now section 99 of the Civil Procedure Code in the opening words of the section is significant. That section while providing that no decree shall be reversed or varied in 16 122 appeal on account of the defects mentioned therein when they do not affect the merits of the case excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection 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 complete in itself and no objection 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 no objection to the place of suing should be allowed by an appellate or revisional Court unless there was a consequent 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 not 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 not open to consideration by an appellate Court unless there has been a prejudice on the merits The contention 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 vs Rachappa Subrao(2) which was affirmed by the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav(3) were relied on as supporting the contention (1) I.L.R. (2) I.L.R. 36 Bom 628. (3) 46 I.A. 24. 123 that if the appellate Court would have had no jurisdiction to entertain the appeal if the suit had been correctly valued a decree passed by it must be treated as a nullity. In Rajlakshmi Dasee vs 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 compromised the matter and a consent 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 consent decree to which her mother was a party was not 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 correctly valued it was the High Court that would have had the competence to entertain the appeal and that the con sent decree passed by the District Judge was accordingly a nullity. In agreeing with this contention the High Court observed that a decree passed by a Court which had no jurisdiction was a nullity and that even consent of the partes could not cure the defect. In that case the question was raised by a person who was not a party to the action and in a collateral proceeding and the Court observed: " We are not now called upon to consider what the effect of such lack of jurisdiction would be upon the decree in so far as the parties thereto were concerned. It is manifest that so fir as a stranger to the decree is concerned 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 no jurisdiction over the subject matter of the litigation" On the facts the question of the effect of section 11 of the Suits Valuation Act did not arise for determination and was not considered. (1) I.L.R. 124 In Shidappa Venkatrao vs 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 pleader 's 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 contended 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 contention 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 no decision 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 vs Shidappa Venkatrao Jadhav(2) and there his contention 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 not taken in the Court of first instance and that the Court would not be justified " in assisting an objection of that type and that it was also untenable. Before concluding, it observed: The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his (1) I.L.R. 36 Bom. (2) 46 I.A. 24. 125 opponent but to secure revenue for the benefit of the State. .The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State but to obstruct the plaintiff ; he does not contend 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 contention 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 now put forward being highly technical in character should not be entertained if not 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 contended 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 constitute prejudice. This argument proceeds on a misconception. The right of appeal is no doubt a substantive right and its deprivation is a serious prejudice; but the appellants have not 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 correctly 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 complaint of the 126 appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court which they have not been but that an appeal on the facts against that judgment was heard by the District Court and not 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 not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches and have come to the conclusion that mere change of forum is not a prejudice within the meaning of section 11 of the Suits Valuation Act. Vide Kelu Achan vs Cheriya Parvathi Nethiar (1) Mool Chand vs Ram Kishan (2) and Ramdeo Singh y. Baj Narain (3). In our judgment the opinion expressed in these decisions is correct. Indeed it is impossible on the language of the section to come to a different conclusion. 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 correct 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 not in all cases and as a matter of course 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 contrary conclusion will lead to the surprising result that the section was enacted with the object of curing (1) I.L.R. 46 Mad. (2) I.L.R. 55 All. (3) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278. 127 defects of jurisdiction arising by reason of over valuation or under valuation but that in fact this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct 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 contention on the observations of two of the learned Judges in Ramdeo Singh vs Rai Narain (1). There Sinha J. observed that though the second appeal could not be treated as a first appeal prejudice could be established by going into the merits of the decision both on questions of fact and of law and that that could be done under section 103 of the Civil Procedure Code. Meredith J. agreed that for determining whether there was prejudice or not there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that could 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 not arise at that stage. The complaint of the appellants is that the learned Judges who heard the second appeal though they purported to follow the decision in Ramdeo Singh vs A. Narain (1) did not in fact do so and that there was no consideration 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 (1) I.L.R. 27 Patna tog; A.I. R 1949 Patna 278. 128 conclusions reached by the lower appellate Court are right. If it agrees with those findings then it will affirm the judgment; if it does not 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 consideration of the evidence cannot possibly be said to have been caused by over valution or under valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be noted that there is no provision 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 vs Raj Narain (1) as conferring 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 conditions exist the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal without resort to section 11 of the Suits Valuation Act. If they do not exist there is no other 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 no power under section 1 1 of the Suits Valuation Act to consider whether 'the findings of fact recorded by the lower appellate Court are correct 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 (1) I.L.R. 27 Patna 109. 129 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 no proper 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 no provisions for discovery or inspection; evidence is not recorded in extenso and there is no right 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 come under section II of the Suits Valuation Act. The jurisdiction that is conferred 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 consequential failure of justice. It is neither possible nor even desirable to define such a risdiction. closely or confine 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 not is accordingly a matter to be determined on the facts of each case. We have now 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 no objection to the jurisdiction of the Court at any time. When the plaintiffs lost the suit after an elaborate 17 130 trial it is they who appealed to the District Court as they were bound to on their valuation. Even there the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the deci sion went on the merits against the plaintiffs they preferred section A. No. 1152 of 1946 to the High Court of Patna and if the Stamp Reporter had not raised the objection to the valuation and to the Court fee paid the plaintiffs would not 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 could 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 no jurisdiction over the suit or appeal but for the over valuation or undervaluation should be treated as a nullity then of course they would not be estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it. That however is not 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 considerable authority in the Indian Courts that clausts (a) and (b) of section I 1 of the Suits Valuation Act should be read conjunctively notwithstanding the use of the word "or." If that is the correct 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 construed 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 complain of any prejudice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one 's own act. Courts cannot recognise that as prejudice which flows from the action of the 131 very party who complains about it. Even apart from this we are satisfied that no prejudice 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 consideration of the entire evidence in the case and no injustice is shown to have resulted in its disposal of the matter. The decision of the learned Judges that there were no grounds for interference under section 11 of the Suits Valuation Act is correct. In the result the appeal fails and is dismissed with costs. Appeal dismissed.

The policy underlying section 11 of the Suits Valuation Act as also of sections 21 and 99 of the Code of Civil Procedure is that when a case has been tried by a Court on the merits and judgment rendered it should not be liable to be reversed purely on technical grounds unless a failure of justice has resulted. The policy of the Legislature has been to treat objections as to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court unless there has been prejudice on the merits. Mere change of form is not prejudice within the meaning of section 11 of the Suits Valuation Act; nor a mere error in the decision on the merits of the case. It must be one directly attributable to over valuation or under valuation. Whether there has been prejudice or not is a matter to be determined on the facts of each case. The jurisdiction under section 11 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 consequential failure of justice. It is neither possible nor desirable to define such jurisdiction closely or confine it within stated bounds. 118 A party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice. Ramdeo Singh vs Baj Narain (I.L.R. 27 Patna 109); Bajlakshmi Dasee vs Katyayani Dasee (I.L.R. ; Shidappa Venkatrao vs Rachappa Subrao (I L.R. 36 Bom. 628) ; Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav (46 I.A. 24) ; Kelu Achan vs Cheriya Parvathi Nethiar (I.L.R. 46 Mad. 631) Mool Chand vs Bam Kishan (I.L.R. 55 All. 315) referred to.

Civil Appeal No. 89 of 1953. 132 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. K. section Krishnaswami Iyengar (K. R. Chowdhury D. Gundu Rao A. Rama Rao and Rajinder Narain with him) for the appellant. B.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 commenced 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 now come 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 contentions 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 133 in absolute right. Hampamma subsequently took away her one third share in these lands and we are not concerned with her any further in this litigation. Paramma and Pompamma continued to enjoy the remaining two thirds share of the property and it is this two thirds share comprising 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 not disputed that her share in the lands mentioned above devolved upon these two sons. After Pompamma 's 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 mother 's 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 conveyed 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 mother 's sister Paramma. Shortly after this gift was made Siddalingana the elder son of Pompamma died in the year 1924 and the plaintiff 's 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 continued 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 counter 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. 134 It appears that in 1934 Nagana instituted a suit as guardian of his infant son Chenabasavana in the Munsif 's 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 contains 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 considered as fully paid. It is in evidence and not disputed that near about this time Nagana became financially involved and on the 27th of August 1935 he executed a deed of mortgage by conditional 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 consideration of Rs. 3 000 which was the principal sum due under the mortgage. It is admitted that the purchaser did not and could not 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 conveyance 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 contested 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 contended 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 135 Siddalingana his interest devolved upon defendant No. 1 and not on his father. The other and the more material defence raised was that the plaintiff 's 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 conferred no right 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 plaintiff 's 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 co tenant but it was held that the ordinary rule of one co owner being presumed to hold on behalf of the others could not apply to the present case. as Nagana disclaimed his rights as a co owner 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 plaintiff 's 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 consisting 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 mother 's 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 common and not as joint tenants and consequently on the death of Siddalingana his interest vested in his father Nagana and not in his brother the defendant No. I. On the other question the High Court held that though. Nagana by his acts and conduct in connection 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 not last beyond 1935 when he 136 asserted his own right as a co sharer 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 not acquire title by adverse possession and the plaintiff was entitled to succeed. The defendant No. 1 has now come up on appeal to this Court. Mr. Ayyangar appearing in support of the appeal has not pressed before us the contention that was raised on behalf of his client in the Courts below that as the two brothers took the property as joint tenants and not as tenants in common the interest of Siddalingana passed on his death to his brother the defendant No. 1 and not to Nagana. We must take it therefore that after the death of Siddalingana Nagana became a co owner 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 co owner with defendant No. I and this being the position the presumption of law would be that the possession of one co owner 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 co owner 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 could not act in law except through the guardian. It is conceded on behalf of the appellant that the mere fact that the father did not participate in the profits of the property which was left to the management of Paramrna on behalf of the infant could not by itself make the possession of the son adverse to his father. But the acts and conduct of the father in connection with the lease deed of 1926 and the subsequent granting of receipts in terms thereof undoubtedly point to something more than mere non 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 137 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 co owner thereto. In law the possession of the lessee is the possession of the lessor and consequently 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 consented to such exclusion is immaterial. There can be in law under certain circumstances adverse possession with the consent of the true owner. A common 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 not acquire a legal title to it by the transfer yet if he gets possession of the property though with the consent of the transferor that possession becomes adverse to the owner and if continued for the statutory period creates a title in him. We are not 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 consent of the father who openly acknowledged the title of his son such possession could not 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 could 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 common 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 co sharer has become adverse to the other co sharer as a result of ouster the mere assertion of his joint title by the 138 dispossessed co sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co sharer 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 co sharer who is in exclusive possession acknowledges the title of his coowner or discontinues his exclusive possession of the property. On the materials on the record none 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 noted 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 conclusion 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 nor 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 no act or conduct 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 co owner. 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 continuity 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 139 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 not the sole property of the son but belonged to him as well; and this subsequent act would annul the consequences of his previous act. This reasoning does not appear to us to be sound. The father 's acts in connection 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 not the act of the father on behalf of his son it was the personal act of the father himself qua co proprietor of the son and the interest of one being adverse to the other such acts could not be held to be acts of the son performed through the father. It is extremely doubtful whether qua guardian the father could 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 could assert any right of his own against his ward; but it is not necessary for us to go into that question as the mortgage in this case was made by the father no I t as guardian of the minor at all. It was no more than a declaration by a person who was dispossessed by his co sharer of his joint title to the property and as has been already pointed out as it did not involve any change of possession it did not affect the adverse possession of the deseizor. In our opinion therefore the view taken by the learned Judges of the High Court is not 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. The appellant will have his costs in all the Courts. Appeal allowed.

Once it is hold that a possession of a co sharer has become adverse to the other co sharer as a result of ouster the mere assertion of his joint title by the dispossessed co sharer would not interrupt the running of adverse possession. He must actually and effectively break up the exclusive possession of his co sharer 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 co sharer who is in exclusive possession acknowledges the title of his co owner or discontinues his exclusive possession of the property. The fact that one co sharer who bad allowed himself to be dispossessed by another co sharer as a result of ouster exhibited later on his animus to treat the property as the joint property of himself and his co sharer cannot arrest the running of adverse possession in favour of the co sharer. A mere mental act on the part of the person dispossessed unaccompanied by any change of possession cannot affect the continuity of adverse possession of the deseizor.

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 V.K.T. Chari Advocate General of Madras (B. Ganapathy Iyer with him) for the appellant. B. Somayya and C.R. Pattabhi Raman (T. Krishna Rao and M.S. K. Sastri with them) for the respondent. T. N. Subramania Iyer Advocate General of Travancore Cochin (T. R. Balakrishna Iyer and Sardar Bahadur with him) for the Intervener (State of Travancor Cochin). 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 connection 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 constituted 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 notifications orders and acts under the Earlier Act are to be treated as notifications orders and acts issued made or done by the appropriate authority under the corresponding 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 concerned 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 contain an image of God Krishna originally made by Arjun and miraculously obtained from a vessel wrecked at the coast of Tulava. There is no Mathadhipati 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 concourse 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 comes 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 coming 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 commodities 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 competent 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 control 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 no regard whatsoever to the wishes of the Mahant. He did not 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 notice 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 complying 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 colour of the 1010 authority conferred 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 complaining against the cancellation of the Power of Attorney and his management of the Math. The Board on the 4th October 1950 issued a notice 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 court in the original suit filed by him and as the matter was sub judice the enquiry should be put off. A copy 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 notice 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 notice 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 counsel 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 not 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 not ready with his objections even on that date as his lawyer had no t 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 not accede to this request and as no explanation 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 notice 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 notice 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 not a bona fide act at all. The main contention 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 conflicted 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 now directed against the constitutional 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 constitutional 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 not be allowed to proceed in regard to the settlement of the scheme. On the constitutional 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 conflict 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 petitioner 's Math. The Commisioner has now come 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 confined his arguments exclusively to the constitutional points involved in this case. Although he had put in an application to. urge grounds other than the constitutional grounds that application was not pressed and he did not 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 constitutional points raised before us. It is not disputed that a State Legislature is competent to enact laws on the subject of religious and charitable endowments which is covered 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 contribution contained in section 76 of the impugned Act. The argument that has been advanced is that the contribution is in reality a tax and not a fee and consequently the State Legislature had no authority 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 constitutional 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 conflict with the fundamental rights guaranteed under articles 19(1) (f) 25 26 and 27 of the Constitution. In order to appreciate the contentions that have been advanced on these heads by the learned counsel on both sides it may be convenient 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 consolidate the law relating to the administration and governance of Hindu religious and charitable institutions and endowments in the State of Madras. As compared with the Earlier Act its scope is wider and it can be made applicable to purely charitable endowments by proper notification 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 not being the trustee 131 1014 of a Math in respect of any proceeding under the Act to satisfy himself as to the regularity correctness or propriety of any decision or order. Chapter III contains the general provisions relating to all religious institutions. Under section 20 the administration of religious endowments is placed under the general superintendence and control 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 conferred 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 not 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 comfort 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 connected 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 connected 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 competent 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 contain 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 comprises sections 63 to 69 deals with the notification of religious institutions. A religious institution may be notified in accordance with the provisions laid down in this chapter. Such notification 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 compulsory for all religious institutions to pay annually to the Government a contribution not 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 not 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 comply with the provisions of the Act. Section 92 lays down that nothing contained in the Act shall be deemed to confer any power or. impose any duty in contravention of the rights conferred 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 could 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 not reasonable restrictions within the meaning of article 19(5) and must consequently 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 constitutes 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 compulsory contribution made in section 76 of the Act comes 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 concerned we will have to examine first of all the general contentions that have been raised by the learned Attorney General who appeared for the Union of India as an intervener in this and other connected 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 complains. As regards article 19(1)(f) of the Constitution the question that requires consideration 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 concrete rights of property at all ? So far as article 25 of the Constitution is concerned the point raised is whether this 1018 article which it is said is intended to protect religious freedom only so far as individuals are concerned can be invoked in favour of an institution or Organisation ? With regard to article 26 the contention is that a Math does not come 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 nothing 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 connected in some way with religion on but does not form an essential part of it. Reference is made in this connection to clause (2)(a) of article 25 and clause (d) of article 26. We will take up these points for consideration one after another. As regards the property rights of a Mathadhipati it may not be possible to say in view of the pronouncements of the Judicial Committee which have been accepted as good law in this country 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 husband 's estate or of an English BishoP holding a benefice. He is certainly not 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 not a mere manager and it would not be right to describe Mahantship as a mere office. " A superior of a Math has not only duties to discharge in connection 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 vs Ashalata(4). (1) Vide Vidya Varuthi vs Balusami 48 I. A. 302 (2) Vide Monahai vs Bhupendra (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 court in Angurbala vs Debabrata (1) and what was said in that case in respect to Shebaiti right could with equal propriety be applied to the office of a Mahant. Thus in the conception of Mahantship as in Shebaitship both the elements of office and property of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with .the character of proprietary right which though anomalous to some extent is still a genuine legal right. It is true that the Mahantship is not 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 connection with his natural family being completely cut of the ordinary rules of succession do not apply. There is no reason why the word "property" as used in article 19(1) (f) of the Constitution should not be given a liberal and wide connotation and should not 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) 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 Mahant 's duty is not 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 competent line of teachers who could 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 no real assistance to the respondent in the present case and article 3l of the Constitution which deals with deprivation of property has no application here. In the case of The State of West Bengal vs Subodh Gopal Bose(II) (Civil Appeal No. 107 of 1952 decided by this court on the 17th December 1953) an opinion was expressed by Patanjali Sastri C. J. that article 19(1) (f) of the Constitution is concerned only with the abstract right and capacity to acquire hold and dispose of property and that it has no relation to concrete property rights. This it may be noted was an expression of opinion by the learned Chief Justice alone and it was not the decision of the court ; for out of the other four learned Judges who together with the Chief Justice constituted the Bench two did not definitely agree with this view while the remaining two did not express any opinion one way or the other. This point was not raised before us by the Advocate General for Madras who appeared in support of the appeal nor by any of the other (1) (1954] S.C.R. 587 1021 counsel appearing in this case. The learned Attorney. General himself stated candidly that he was not 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 court. In our opinion it would not be proper to express any final opinion upon the point in the present case when we had not the advantage of any arguments addressed to us upon it. We would prefer to proceed as this court has proceeded all along in dealing with similar cases in the past on the footing that article 19(1) (f) applies equally to concrete as well as abstract rights of property. We now come to article 25 which as its language indicates secures to every person subject to public order health and morality a freedom not only to entertain such religious belief as may be approved of by his judgment and conscience 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 corporate bodies as well. The question in our opinion is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate 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 no matter 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 connotation of the expression 132 1022 "religious denomination" and whether a Math could come within this expression. The word "denomination" has been defined in the Oxford Dictionary to mean 'Ca collection of individuals classed together under the same name: a religious sect or body having a common 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 common faith and common spiritual organization. The followers of Ramanuja who are known by the name of Shri Vaishnabas undoubtedly constitute 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 constitute a section of the followers of Madhwacharya. As article 26 contemplates not merely a religious denomination but also a section thereof the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article. The other thing that remains to be considered 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 could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is whereas the line to be drawn between what are matters of religion and what are not 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 no legislature 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 not matters of religion to which clause (b) of the article applies. What then are matters of religion ? The word "religion " has not 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 one 's 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 confounded with cultus of form or worship of a particular sect but is distinguishable from the latter. " We do not 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 could have been in the minds of our Constitution makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not 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 conducive to their spiritual well being but it would not be correct to say that religion is nothing else but a (1) Vide Davie vs Benson ; at 342. 1024 doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept it might prescribe rituals and observances ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress. The guarantee under our Constitution not 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 not 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 (1) 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 contention is that all secular activities which may be associated with religion but do not really constitute an essential part of it are amenable to State regulation. The contention formulated in such broad terms cannot we think be supported. In the first place what constitutes 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 commodities would not make them secular activities partaking of a commercial 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) contemplates is not regulation by the State of religious practices as such the freedom of which is guaranteed by the Constitution except when they run counter to public order health and morality but regulation of activities which are economic commercial or political in their character though they are associated with religious practices. We may refer in this connection to a few American and Australian cases all of which arose out of the activities of persons connected with the religious association known as "Jehova 's Witnesses." This association of persons loosely organised throughout Australia U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme Authority of the Bible colours 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 company of " Jehova 's Witnesses " incorporated in Australia commenced 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 not 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 community. In such cases as Chief Justice Latham pointed out the provision for protection of religion was not 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 constitutional guarantee of civil liberty would be a mockery. The courts 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 compulsion 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. vs 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 "Jehova 's Witnesses" and had been (1) Vide Adelaide Company vs The Commonwealth ; 127. (2) ; 1027 brought up conscientiously 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 court held by a majority that it did not 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 vs Barnette(1). There it was held overruling the earlier decision referred to above that the action of a State in making it compulsory for children in public schools to salute the flag and pledge allegiance constituted a violation of the First and the Fourteenth Amendments. This difference in judicial opinion brings out forcibly the difficult task which a court has to perform in cases of this type where the freedom or religious convictions genuinely entertained by men come into conflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization. As regards commercial activities which are prompted by religious beliefs we can cite the case of Murdock vs Pennsylvania(2). Here also the petitioners were "Jehova 's 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 colporteurs to pay a licence tax as a condition to the pursuit of their activities. The petitioners were convicted and fined for violation of the ordinance. It was held that the ordinance in question was invalid under the Federal Constitution as constituting a denial of freedom of speech press and religion; (1) ; (2) ; 1028 and it was held further that upon the facts of the case it could not be said that "Jehova 's Witnesses" were engaged in a commercial rather than in a religious venture. Here again it may be pointed out that a contrary view was taken only a few years before in the case of Jones vs 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 complied with the provisions of the ordinance. It is to be noted 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 courts of law in these countries on grounds of morality order and social protection. An adjustment of the competing demands of the interests of Government and constitutional 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 courts 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 come within the purview of religion and what do not. As we have already indicated freedom of religion in our Constitution is not confined 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 complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to (1) ; 1029 interfere with their decision in such matters. Of course the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed 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 contentions that were raised in this appeal we will proceed now 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 conflicting with the fundamental rights of the respondent. The concluding 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 courts have ample powers to meet these contingencies) section 54 clause (2) of section 55 section 56 clause (3) 133 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 complete control over the Matadhipati and Maths). It may be pointed out at the outset that the learned Judges were not right in including sections 18 39(2) and 42 in this list as these sections are not applicable to Maths under the Act itself This position has not 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 control 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 not think that the provision of this section by itself offends any fundamental right of the Mahant. We do not 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 not 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 contained in section 91 of the Act makes the position quite clear. An apprehension that the powers conferred by this section may be abused in individual cases does not 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 conferred or any duty imposed by or under the Act. It is well known that there could be no such thing as an unregulated and unrestricted right of entry in a public temple or other religious institution for persons who are not connected with the spiritual functions thereof. It is a traditional custom universally observed not 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 no disturbance by any member of the public is allowed. Section 21 it is to be noted does not confine the right of entry to the outer portion of the premises; it does not even exclude the inner sanctuary the Holy of Holies" as it is said the sanctity of which is zealously preserved. It does not say that the entry may be made after due notice to the head. the institution and at such hours which would not 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 connection 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 contention. 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 not say anything about custom or usage obtaining in an institution and it does not 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 fund&mental 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 not been specifically mentioned in the concluding portion of the judgment of the High Court set out above though they have been attacked by the learned Judges in course 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 not wrong and does not 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) contemplates 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 contemplated 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 no ground 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 considered bad. In our opinion the provision of clause (2) of section 29 which enables the Commissioner to impose conditions when he grants sanction to alienation of endowed property is perfectly reasonable and to that no exception 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 convenience 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 connection. If the trustee is to be guided but not fettered by such directions possibly no objection can be taken to this clause; but if he is bound to carry out such instructions we do think that it constitutes 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 no reason 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 compelled to act in such matters under the instructions of the Government officers. We think that this is an unreasonable restriction on the Mahant 's 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 not 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 not applicable to Maths and hence can be left out of consideration . Section 53 has . been condemned by the High Court merely on the ground that the court has ample jurisdiction to provide for the contingencies that this section is intended to meet. But that surely cannot prevent a competent 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 nothing 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 consider to be quite a reasonable and salutary provision. Section 55 deals with a Mahant 's 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 not 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 constitute the property of a Mahant there is no justification for compelling 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 no reason 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 nominally a servant of the trustee has practically to do everything according to the directions of .the Commissioner and his subordinates. It is to be noted that this power can be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no pre 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 contemplates the appointment of a manager for administration of the secular affairs of this institution. But no rigid demarcation could 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 no negligence 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 nothing 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 not the court 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 not appear to us to be of The executive officer mentioned in much substance that clause could be nothing 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 complaint that is raised is that such order could be made by the Deputy Commissioner. We think that this objection has not much substance. In the first place the various objects on which the trust funds could 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 contains sections 63 to 69 relates to notification of religious institutions The provisions are extremely drastic in their character and the worst feature of it is that no access is allowed to the court to set aside an order of notification. The Advocate General for Madras frankly stated that he could not 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 not 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 noted 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 comply 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 consideration is the constitutional 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 134 1038 Government annually such contribution not exceeding five per centum of its income as may be prescribed. (2)Every religious institution the annual income of which for the fasli year immediately preceding as calculated for the purposes of the levy of contribution under sub section (1) is hot less than one thousand rupees shall pay to the Government annually for meeting the cost of auditing its accounts such further sum not exceeding one and a half per centum of its income as the Commissioner may determine. (3)The annual payments referred to in sub sections (1) and (2) shall be made notwithstanding anything to the contrary contained in any scheme settled or deemed to be settled under this Act for the religious institution concerned. (4)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 cost of auditing the accounts of religious institutions. " Thus the section authorises the levy of an annual contribution 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 contribution is really a tax and as such it was beyond the legislative competence of the State Legislature to enact such provision. The other is that the contribution being a tax or imposition the proceeds of which are specifically appropriated for the maintenance of a particular religion or religious denomination it comes within the mischief of article 27 of the Constitution and is hence void. 1039 So far as the first ground is concerned it is not disputed that the legislation in the present case is covered by entries 10 and 28 of List III in Schedule VII of the Constitution. If the contribution payable under section 76 of the Act is a "fee" it may come 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 not been provided for in any specific entry in any of the three lists it could come only under entry 97 of List I or article 248(1) of the Constitution and in either view the Union Legislature alone would be competent to legislate upon it. On behalf of the appellant the contention raised is that the contribution levied is a fee and not a tax and the learned Attorney General who appeared for the Union of India as intervener in this as well as in the other connected appeals made a strenuous attempt to support this position. The point is certainly not free from doubt and requires careful consideration. 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 not 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 not clear how ever whether the word "tax" as used in article 265 has not 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 consideration 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 counsel 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 vs Chicory Marketing Board(1). A tax" according to the learned Chief Justice "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not 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 compulsion that is to say it is imposed under statutory power without the taxpayer 's consent 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 conferred 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 collected revenues of the State. As the (1) ; 276. (2) Vide Lower Mainland Dairy vs Crystal Dairy Ltd. 1041 object of a tax is not to confer any special benefit upon any particular individual there is as it is said no element 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 common burden the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. Coming now 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 costs are arbitrarily assessed. Ordinarily the fees are uniform and no account 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 not 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 no obligation on his part to seek such services and if he does not 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 not otherwise. We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition. though in different degrees and that it is not 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 conceive 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. (2) Vide Lutz on "Public Finance" p. 215. 1042 municipality. Persons who do not have houses land or Properties within municipalities would not have to pay these taxes but nevertheless these impositions come within the category of taxes and nobody can say that it is a choice of these people to own lands or houses or specified kinds of properties so that there is no compulsion 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 consent ; and this element is present in taxes as well as in fees. Of course in some cases whether a man would come. within the category Of a service receiver may be a matter of his choice but that by itself would not constitute 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 common burden while a fee is a payment for a special benefit or privilege. Fees confer 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 consideration for services rendered it is absolutely necessary that the levy of fees should on the face of the legislative provision be co related 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 not be competent to do and extracts fees either (1) Vide Findlay Shirras on "Science of Public Finance" Vol. (2) Vide Seligman 's Essays on Taxation P. 408. 1043 heavy or moderate from that person in return for the privilege that is conferred. ; A most common illustration of this type of cases is furnished. by the licence fees for motor vehicles. Here the costs 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 not upon the costs 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 not merged in the public revenues for the benefit of the general public it could be counted as fees and not a tax. There is really no generic 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 could 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 contribution being levied in respect rendered by the Government; so far it has the appearance of fees. It is true that religious institutions do not want these services to be rendered to them and it (1) Vide Spligman 's Essays on Taxation p. 409 (2) lbid P. 406 1044 may be that they do not consider the State interference to be a benefit at all. We agree however with the learned Attorney General that in the present day concept of a State it cannot be said that services could 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 considers it desirable that some special service should be done for certain people the people must accept these services whether willing or not(1) It may be noticed however that the contribution that has been levied under section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions which come 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 contribution is not ear marked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated fund of the State and all the expenses have to be met not out of these collections 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 not be conclusive but in this case there is total absences of any co relation between the expenses incurred by the Government and the amount raised by contribution under the provision of section 76 and in these circumstances the theory of a return or counter 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 contribution levied under section 76 is a tax and not a fee and consequently it was beyond the power of the State Legislature to enact this provision. (1) Vide Findlay Shirras on "Science of Public Finance" Vol. 1045 In view of our decision on this point the other ground hardly requires consideration. We will indicate however very briefly our opinion on the second point raised. The first contention which has been raised by Mr. Nambiar in reference to article 27 of the Constitution is that the word "taxes" as used therein is not confined to taxes proper but is inclusive of all other impositions like cesses fees etc. We do not 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 not come 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 contribution under section 76 of the Madras Act is not 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 control 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 no qustion of favouring any particular religion or religious denomination in such cases . In our opinion article 27 of the Constitution is not 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 conflicting with the fundamental rights of the respondent as Mathadhipati of the Math in question and 135 1046 section 76(1) is void as beyond the legislative competence of the Madras State Legislature. The rest of the Act is to be regarded as valid. The decision of the High Court will be modified to this extent but as the judgment of the High Court is affirmed on its merits the appeal will stand dismissed with costs to the respondent. Appeal dismissed.

Held that sections 21 30(2) 31 55 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act 1951 (Madras Act XIX of 1951) are ultra vires articles 19(1)(f) 25 and 26 of the Constitution of India. Section 76(1) of the Act is void as the provision relating to the payment of annual contribution contained in it is a tax and not a fee and so it was beyond the legislative competence of the Madras State Legislature to enact such a provision. That on the facts of the present case the imposition under a. 76(1) of the Act although it is a tax does not come within the latter part of article 27 because the object of the contribution under the section is not the fostering or preservation of the Hindu religion or any denomination under it but the proper administration of religious trusts and institutions wherever they exist. 130 1006 The word " property " as used in article 19(1)(f) of the Constitution should be given a liberal and wide connotation and should be extended to all well recognized types of interest which have the insignia or characteristics of proprietary right. 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. Therefore he is entitled to claim the protection of article 19(1)(f). A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered. It is not possible to formulate a definition of fee that can apply to all cases as there are various kinds of fees. But a fee may generally be defined as 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 such expenses are arbitrarily assessed. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden while a fee is a payment for a special benefit or privilege. " Scope of articles 25 and 26 discussed. Meaning of the term " Mathadhipati " and religion explained. Vidya Varuthi vs Balusami (48 I.A. 302) Monahar vs Bhupendra Ganesh vs Lal Behary (63 I.A. 448) Bhabatarini vs Ashdlata (70 I.A. 57) Angurbala vs Debabrata ([1951] S.C.R. 1125) Davis vs Benson; The State of West Bengal vs Subodh Gopal Bose (civil Appeal No. 107 of 1952 decided by the Supreme Court on the 17th December 1953) Adelaide Company vs The Commonwealth ; 127) Minersville School District Board of Education etc. vs Gobitis ; West Virginia State Board of Education vs Barnette ; Murdock vs Penissyl vania ; Tones vs Opelika (316 U.S. 584) Matthew 's V. Chicory Marketing Board ; 276) Lower Mainland Dairy vs Crystal Dairy Ltd. ([1933] A.C. 168) referred to. (Findlay Shirras on Science of Public Finance Vol. I. p. 203).

iminal Appeal No. 48 of 1952. Appeal under article 134(1) (c) of the Constitution of India from the Judgment and Order dated the 21st March 1952 of the High Court of Judicature at Calcutta (Das Gupta and Lahiri JJ.) in Criminal Appeal No. 77 of 1950 arising out of the Judgment and Order dated the 29th April 1950 of the Court of the Additional Sessions Judge Burdwan in Session Trial No. I of 1950. N.C. Chakravarti and Sukumar Ghose for the appellant. B. Sen and I. N. Shroff for the respondent. G. N. Joshi and P. G. Gokhale for the Intervener (The Union of India). April 20. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. This is an appeal under article 134(1) (c) of the Constitution of India from the judgment of the High Court at Calcutta dated the 21 st of March 1952 whereby the High Court upheld the conviction of the appellant under section 467 of the Indian Penal Code but reduced the sentence passed upon him by the Additional Sessions Judge of Burdwan. The appeal concerns one of a series of cases known generally as " The Burdwan Test Relief Fraud Cases " which had their origin in the test relief operations held in the District of Burdwan in 1943 during the Bengal famine of that year. The acute scarcity and the prevailing distress of the famine stricken people in the district called for immediate relief and test relief operations were undertaken by the District Board in pursuance of the advice of the District Magistrate. The Government of Bengal sanctioned four lakhs of rupees as advance to the District Board for such test relief operations. The District Board however instead of 227 conducting the relief work directly appointed several agents on commission basis through whom the test relief operations were carried out. This was in 'Clear violation of the Bengal Famine Code and the Famine Manual 1941 and as exceedingly large sums were being spent the suspicions of the Government were aroused about the bona fides of the test relief work carried out through their agent&. This led to an inquiry and as a result of this several cases were started against various persons and the appellant 's case is one of them. The Government reached the decision that these cases were not fit for trial by jury and accordingly on 24th February 1947 a notification was issued for trial of these cases by the Court of Sessions with the aid of assessors. The notification is in these terms: "No. 4591 17th February 1947. Whereas by a notification dated the 27th March 1893 published in the Calcutta Gazette of the same date it was ordered that on and after the 1st day of April 1893 the trial of certain offences under the Indian Penal Code before any Court of Session in certain districts including the District of Burdwan shall be by jury; "And whereas by notification No. 3347 1 dated the 22nd September 1939 published at page 2505 of Part I of the Calcutta Gazette of the 28th September 1939 it was ordered that on and from the 1st day of January 1940 the trial of certain other offences under the Indian Penal Code before any Court of Session shall be by jury; "And whereas certain persons 'are alleged to have committed offences under sections 120 B 420 467 468 471 and 477 A of the Indian Penal Code in a set of cases known as the Burdwan Test Relief Fraud Cases ' of whom the accused persons in two cases namely Emperor vs Dhirendra Nath Chatterjee and Others and (2) Emperor vs Golam Rahman and Others have been committed to the Court of Session at Burdwan for trial and the accused persons in the remaining cases may hereafter be committed to the said Court for trial; "Now therefore the Governor in exercise of the power conferred by subsection (1) of section 269 of the 228 Code of Criminal Procedure 1898 is pleased to revoke the said notifications in so far as they apply to the trial of the offences with which the accused in the said cases are charged in the Court of Session. " In pursuance of this notification the appellant along with six others was sent up for trial before the Additional Sessions Judge of Burdwan. The charge against him was under section 420 read with section 120 B Indian Penal Code for conspiracy to cheat the District Board of Burdwan and some of its officers in charge of the test relief operations between the 21st May and the 21st July 1943. The appellant was also charged on 24 counts of forgery under section 467 Indian Penal Code and the case for the prosecution against the appellant on these counts was that he committed forgery by putting his own thumb impressions on pay sheets on which the thumb impressions of persons who received payment for work done on a road which was constructed as part of a scheme for the relief of the people in Burdwan ought to have been taken. He was one 'of the persons appointed by Jnanendra Nath Choudhuri an agent and it was his duty to disburse the money to the mates in charge of the gangs and to take thumb impressions on pay sheets in token of receipt of payment. It was alleged that the appellant put his own thumb impressions in several cases mentioned in the charges with full knowledge that no payment had been made and put names of imaginary persons against the thumb impressions to make it appear that payments had been made to real persons and by this process had obtained wrongful gain for himself and for his employers. The appellant 's plea in defence was that the thumb impressions were not his and alternatively if the thumb impressions were his he put them on the authority of persons. whose names were shown against the thumb impressions and that in putting these thumb impressions he did not act dishonestly or fraudulently. The learned Additional Sessions Judge acquitted the appellant and all other accused persons on the charge of conspiracy to cheat under section 420 read with 229 section 120 B Indian Penal Code. He however convicted the appellant under eleven specific charges of forgery under section 467 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of one year. On appeal the conviction of the appellant was affirmed in regard to nine counts only and 'the sentence was reduced. The main point urged by the appellant in the High Court was that the trial was vitiated inasmuch as he was denied the equal protection of laws under article 14 of the Constitution. The High Court rejected this contention and held that the appellant 's trial before the Additional Sessions Judge with the aid of assessors was a valid trial in accordance with law. Das Gupta J. who delivered the judgment of the Court observed as follows : "By this notification the Government acting in .the exercise of powers under section 269 of the Code of Criminal Procedure formed one class of all the cases known as the Burdwan Test Relief Cases in which some persons had prior to the date of the notification alleged to have committed some specified offences and withdrew from these trial by jury so that these became triable by the aid of assessors. The question is whether this classification satisfied the test that has been laid down mentioned above. In my judgment these cases which are put in one class have the common feature that a mass of evidence regarding the genuineness of thumb impressions and regarding the existence or otherwise of persons required consideration. This was bound to take such a long time that it would be very difficult if not impossible for a juror to keep proper measure of the evidence. This common feature distinguished this class from other cases involving offences under the same sections of the Indian Penal Code. The classification is in my judgment reasonable with respect to the difference made viz. the withdrawal of jury trial and is not arbitrary or evasive. " The appellant made an application to the High Court for leave to appeal to this Court and the leave was allowed. It was contended at the time of the leave 230 that by a notice of revocation the State Government could not deprive particular persons of the right of trial 'by jury leaving other persons charged of the same class or classes of offences with a right to be tried by a jury. The Bench thought that this was a point of considerable difficulty and was a fit one to be decided by this Court. The learned counsel for the appellant urged two points :before us. In the first instance he contended that the notification was in excess of the powers conferred on the State Government under section 269(1) of the Code of Criminal Procedure and that it travelled beyond that section. Secondly it was urged that the notification denied the appellant equal protection of the laws and was thus an abridgement of his fundamental right under article 14 of the Constitution and the view of the High Court that the classification was not arbitrary or evasive was incorrect. At this stage it may be mentioned that the Union Government at its request was allowed to intervene in this appeal in view of the contention raised by the appellant that section 269(1) of the Code of Criminal Procedure was void by reason of its being inconsistent with the provisions of Part III of the Constitution. The intervention however became unnecessary because the learned counsel for the appellant abandoned this point at the hearing and did not argue it before us. As regards the two points urged by the learned counsel it seems to us that both the contentions raised are well founded. The notification in our opinion travels beyond the ambit of section 269(1) of the Code of Criminal Procedure. This section is in these terms : "The State Government may by order in the Official Gazette direct that the trial of all offences or of any particular class of offences before any Court of Session shall be by jury in any district and may revoke or alter such order." Though the trial by jury is undoubtedly one of the most valuable rights which the accused can have it has not been guaranteed by the Constitution. Section 269(1) of the Code of Criminal Procedure is an enabling 231 section and empowers the State Government to direct that the trial of all offences or of any particular class of offences before any Court of Session shall be by jury. It has the further power to revoke or alter such an order. There is nothing wrong if the State discontinues trial by jury in any district with regard to all or any particular class of offences but the question is whether it can direct that the trial of a particular case or of a ' particular accused shall be in the Court of Session by jury while in respect of other cases involving the same offence the trial shall be by means of assessors. It appears to us that the section does not empower the State Government to direct that the trial of a particular case or of a particular accused person shall be by jury while the trial of other persons accused of the same offence shall not be by jury. On a plain construction of the language employed in the section it is clear that the State Government has been empowered to direct that the trial of all offences or of any Particular class of offences before any Court of Session shall be by jury in any district. The section does not take notice of individual accused or of individual cases. It only speaks of offences or of a particular class of offences and does not direct its attention to particular cases on classes of cases and it does not envisage that persons accused of the same offence but involved in different cases can be tried by the Court of Session by a different procedure namely some of them by jury and some of them with the help of assessors. The ambit of the power of revocation or alteration is co extensive with the power conferred by the opening words of the section and cannot go beyond those words. In exercise of the power of revocation also the State Government cannot pick out a particular case or set of cases and revoke the notification qua these cases only and leave cases of other persons charged with the same offence triable by the Court of Session by jury. This was the construction plated on the section by Mr. Justice Chakravarti and was endorsed by some of us in this Court in The State of West Bengal vs Anwar Ali Sarkar(1). it was there pointed out that a jury trial could (1) 326 232 not be revoked in respect of a particular case or a particular accused while in respect of other cases involving the same offences that order still remained in force. The notification in this case clearly refers to accused persons involved in the " Burdwan Test Relief Fraud cases and does not remove from the category of offences made triable by jury offences under sections 120 B 467 468 477 etc. no matter by whom committed or even committed within a particular area. The cases of persons other than the accused and involved in offences under sections 120 B 420 467 468 477 are still triable by a Court of Session by jury. The language of the earlier notification of 1893 and of the second notification of 1939 by which it was directed that the trial in Court of Session of certain offences in certain districts shall be by jury is significant and is in sharp contrast to the language used in the operative portion of the impugned notification. By the notification of the 27th March 1893 it was ordered that on or after the last day of April 1893 the trial of certain offences under the Indian Penal Code before any Court of Session in certain districts including the District of Burdwan shall be by jury. It will be noticed that this notification has no reference to cases of any individuals or particular accused persons; it is general in its terms. By the notification dated the 22nd September 1939 it was ordered that on and from the 1st day of January 1940 the trial of certain other offences under the Indian Penal Code before any Court of Session shall be by jury. This notification is also in general terms. In other words the first notification made out a schedule of offences and directed that those offences irrespective of the fact by whom they were committed be tried by a Court of Session by jury. The second notification added a number of other offences to that list. The revocation order does not subtract any offences from the list; it leaves them intact. What it does is that it denies to certain individuals the right to be tried by jury while retaining that right in the case of other individuals who have committed the same or similar offences and in this respect it travels beyond 233 the power conferred on the State Government by section 269(1) of the Code of Criminal Procedure and is thus void and inoperative. We are further of the opinion that the notification is also bad as it contravenes the provisions of article 14 of the Constitution. The High Court negatived this contention on the ground that the classification made for withdrawal of jury trial in these cases was reasonable and was neither arbitrary nor evasive. It was said that these cases formed one class of cases and that they had the common feature that a mass 'of evidence regarding the genuineness of thumb impressions and regarding the existence or otherwise of persons required consideration and that this was bound to take such a long time that it would be very difficult if not impossible for a juror to keep proper measure of the evidence and that these common features distinguished this class of cases from other cases involving offences under the same sections of the Indian Penal Code. Now it is well settled that though article 14 is designed to prevent any person or class of persons from being singled out as a special subject for discriminatory legislation it is not implied that every law must have universal application to all persons who are not by nature attainment or circumstance in the same position and that by process of classification the State has power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject; but the classification however must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis. The notification in express terms has not indicated the grounds on which this set of cases has been segregated from other set of cases falling under the same sections of the Indian Penal Code. The learned Judges of the High Court however thought that this set of cases was put into one class because of their having the "common features that a mask; of evidence regarding the genuineness 234 of thumb impressions and regarding the existence or otherwise of persons required consideration and this was bound to take such a long time that it would be very difficult if not impossible for a juror to keep proper measure of the evidence. " In our opinion this classification has no relation to the object in view that is the withdrawal of jury trial in these cases. There can be mass of evidence in the case of persons accused of the same offence in other cases or sets of cases. The mere circumstance of a mass of evidence and the suggestion that owing to the length of time the jurors might forget what evidence was led before them furnishes no reasonable basis for denying these persons the right of trial by jury. It is difficult to see how assessors can be expected to have better memory than jurors in regard to cases in which a mass of evidence has to be recorded and which may take a long time. It is a matter of daily experience that jury trials take place in a number of cases of dacoity conspiracy murder etc. where the trial goes on for months and months and there is a mass of evidence. On that ground alone a jury trial is not denied as that is not a reasonable basis for denying it. The memory of jurors assessors judges and of other persons who have to form their judgment on the facts of any case can afford no reasonable basis for a. classification and for denial of equal protection of the laws. Similarly the quantum of evidence in a particular case can form no reasonable basis for classification and thus can have no just relation to the object in view. The features mentioned by the High Court can be common to all cases of forgery conspiracy dacoity etc. Mr. Sen for the respondent State contended in the first instance that the defect in the trial if any was cured by the provisions of section 536 of the Code of Criminal Procedure as this objection was not taken in the trial Court. In our opinion this contention is without force. Section 536 postulates irregularities at the trial after the commencement of the proceedings but it does not concern itself with a notification made under section 269 (1) which travels beyond the limits of that 235 section or which contravenes article 14 of the Constitution. The chapter of the Code of Criminal Procedure in which this section is included deals with mere procedural irregularities in the procedure committed by a Court and envisages that when an objection is taken the Court is then enabled to cure the irregularity. This argument cannot apply to a case like the present. The Court had no power to direct a trial by jury when the Government had revoked its notification with reference to these cases. Moreover the nature of the objection is such that it goes to the very root of the jurisdiction of the Court and such an objection can be taken notice of at any stage. Mr. Sen placed reliance on a Bench decision of the Madras High Court in Queen Empress vs Ganapathi Vannianar and Others(1). The matter there was not considered from the point of view mentioned above and we do not think that that case was correctly decided. Mr. Sen further argued that in any case the notification in this case was issued in February 1947 three years before the Constitution came into force and that though the trial had not concluded before the coming into force of the Constitution the trial that had started by the Court of Session with the help of assessors was a good trial and it cannot be said that it was vitiated in any manner. Now it is obvious that if the assessors here were in the status of jurors and gave the verdict of "not guilty" as they did in this case the accused would have been acquitted unless there were reasons for the Sessions Judge to make a reference to the High Court to quash the trial. Clearly therefore the accused was prejudiced by a trial that continued after the inauguration of the Constitution and under a procedure which was inconsistent with the provisions of article 14 of the Constitution. It was also vitiated because the notification which authorised it also travelled beyond the powers conferred on the State Government by section 269 (1) of the Code of Criminal Procedure. Mr. Sen for the contention that the continuation of the trial after the inauguration of the Constitution (1) I.L.R. 236 under the notification of 1947 even if that notification was discriminatory in character was not invalid placed reliance on two decisions of this Court (1) Syed Kasim Razvi vs The State of Hyderabad(1) and (2) Habeeb Mahomed vs The State of Hyderabad(2). In our opinion these decisions instead of helping his contention completely negative it so far as the facts of this case are concerned. In both these decisions it was pointed out that for the purpose of determining whether the accused was deprived of the protection under article 14 the Court has to see first of all whether after eliminating the discriminatory provisions it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so whether that was actually done in the particular case. Now it is obvious that it is impossible to convert a trial held by means of assessors into a trial by jury and a trial by jury could not be introduced at the stage when the procedure prescribed by the notification became discriminatory in character It is not a case where the discriminatory provision of the law can be separated from the rest. Again a fair measure of equality in the matter of procedure cannot be secured to the accused in this kind of cases. As pointed out in Syed Kasim Razvi 's case(1) if the normal procedure is trial by jury or with the aid of assessors and as a matter of fact there was no jury or assessor trial at the beginning it would not be possible to introduce it at any ' subsequent stage ' and that having once adopted the summary procedure it is not possible to pass on to a different procedure at a later date. In such cases the whole trial would have to be condemned as bad. The same was the view taken by this Court in Lachmandas Kewalram Ahuja vs The State of Bombay (1). That case proceeded on the assumption that it was not possible for the Special Court to avoid the discriminatory procedure after the 26th January 1950. Therefore the trial was bad. In view of these observations it is not possible to accept this part of Mr. Sen 's contention. (1) [I953] S.C.R. 589. (3) [1952]S.C.R. 710. (2) ; 237 Mr. Sen in his quiet manner faintly suggested that in view of the decisions of this Court in Kathi Ranig Rawat vs The State of Saurashtra(1) and Kedar Nath Bajoria vs The State of West Benga(2)the decision of this Court in Anwar Ali Sarkar 's case (3) in which it was pointed out that the State Government could not pick out a particular case and send it to Special Court for trial had lost much of its force. It seems to us that this suggestion is based on a wrong assumption that there is any real conflict between the decision in Anwar Ali Sarkar 's case(3) and the decision in the Saurashtra case(1) or in the case of Kedar Nath Bajoria(2). It has been clearly pointed out by this Court in Kedar Nath Bajoria 's case that whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violates article 14 of the Constitution must be determined in each case as it arises and no general rule applicable to all cases can be laid down. Different views have been expressed on the question of application of article 14 to the facts and circumstances of each case but there is no difference on any principle as to the construction or scope of article 14 of the Constitution. The majority judgment in Kedar Nath Bajoria vs The State of West Bengal(2) distinguished Anwar Ali Sarkar 's Case(3) on the ground that the law in Bajoria 's case(2) was based on a classification which in the context of the abnormal post war economic and social conditions was readily intelligible and obviously calculated to subserve the legislative purpose but did not throw any doubt whatsoever on the correctness of that decision. The present notification is more on the lines of the Ordinance that was in question in Anwar Ali Sarkar 's case(3) and has no affinity to the Ordinance and the attending circumstances that were considered in the Saurashtra case(1) or in the case of Kedar Nath Bajoria(2) and in the light of that deci sion it must be held that the notification issued in 1947 became discriminatory in character on coming into force of the Constitution and was hit by article 14 of the Constitution. (1) ; (2) ; (3) [1952) S.C.R. 284. 238 The result therefore is that the trial of the appellant after the 26th January 1950 by the Sessions Judge with the aid of assessors was bad and must therefore be quashed and the conviction set aside. In our opinion it would not advance the ends of justice if at this stage a fresh trial by jury is ordered in this case. We therefore allow the appeal set aside the conviction of the appellant and direct that he be set free. Appeal allowed.

Trial by jury is undoubtedly one of the most valuable rights which an accused can have but it has not been guaranteed by the Constitution. Section 269(1) of the Code of Criminal Procedure is an enabling section and empowers the State Government to direct (1) 75 I.A. 41 (2) 76 1 A. 10 225 that the trial of all offences or of any particular class of offences before any Court of Session shall be by jury. It has the further power to revoke or alter such an order. There is nothing wrong if the State discontinues trial by jury in any district with regard to all or any particular class of offences. The section does not empower the State Government to direct that the trial of a particular case or of a particular accused person shall be by jury while the trial of other persons accused of the same offence shall not be by jury. The section does not envisage that persons accused of the same offence but involved in different cases can be tried by the Court of Session by a different procedure namely some of them by jury and some of them with the help of assessors. The ambit of the power of revocation or alteration is co extensive with the power conferred by the opening words of the section and cannot go beyond those words. The impugned notification of the year 1947 revoking the pre vious two notifications had denied to certain individuals the right to be tried by jury while retaining that right in the case of other individuals who had committed the same or similar offences and thus it had travelled beyond the powers conferred on the State Government by section 269(1) of the Code of Criminal Procedure and was thus void and inoperative. The impugned notification also contravened the provisions of article 14 of the Constitution inasmuch as the classification was not based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained but was made arbitrary and without any substantial basis. The impugned notification did not in express terms indicate the grounds on which this set of cases had been segregated from other sets of cases falling under the same sections of the Indian Penal Code. The classification as formulated by the High Court had no relation to the object in view that is the withdrawal of jury trial in these cases. The contention that the defect in the trial if any was cured by section 536 of the Code of Criminal Procedure as this objection was not taken in the trial Court was without force as section 536 postulates irregularities at the trial after the commencement of the proceedings but it does not concern itself with a notification made under section 269(1) which travels beyond the limits of that section or which contravenes article 14 of the Constitution. This objection which goes to the very root of the jurisdiction of the Court can be taken notice of at any stage. The impugned notification issued in 1947 was on the lines of the Ordinance that was in question in Anwar Ali Sarkar 's case ; The State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284) Queen Empress vs Ganapathi Vannianar and Others (I.L.R. Syed Kasim Razvi vs The State of Hyderabad ([1953] 29 226 S.C.R. 589) Habeeb Mahomed vs The State of Hyderabad ( ; Lachmandas Kewalram Ahuja vs The State of Bombay ([1952] S.C.R. 710) Kathi Raning Rawat vs The State of Saurashtra ([19521 S.C.R. 435) Kedar Nath Bajoria vs The State of West Bengal ( (1954] S.C.R. 30) referred to.

ppeal No. 23 of 1954. Appeal under article 133(1) of the Constitution of India from the Judgment and Decree dated the 28th February 1952 of the High Court of Judicature at Allahabad in Writ Application No. 7297 of 1951. C. P. Lal for the appellant. N. C. Chatterjee (Radhey Lal Aggarwal with him) for the respondent. May 3. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This is an appeal by the Sales Tax Officer Pilibhit against the judgment of the High Court of Allahabad granting firstly a writ of certiorari quashing certain assessment orders made against the respondent and secondly a writ of prohibition in respect of certain other proceedings for 244 assessment of tax under the provisions of the Uttar Pradesh Sales Tax Act (Act XV of 1948). The respondent is a firm doing business in forward contracts and was assessed in respect of such contracts to a tax of Rs. 1 082 8 0 for the year 1948 1949 by an order dated 27th February 1950 Exhibit A and to a tax of Rs. 7 369 for the year 1949 1950 by an order dated 23rd May 1950 Exhibit B. For the period 1st April 1950 to 31st January 1951 the respondent paid a sum of Rs. 845 4 0 as tax. Assessment proceedings were also started by the appellant in respect of certain forward contracts relating to gur and peas. The respondent challenged the legality of these proceedings and of the assessment orders on the ground that the Act in so far as it imposed a tax on forward contracts was ultra vires the powers of the Provincial Legislature. The learned Judges agreed with this contention and issued a writ of certiorari quashing the orders of assessment Exhibits A and B and a writ of prohibition in respect of the proceedings for assessment of tax on forward contracts in gur and peas. The matter now comes before us in appeal under a certificate of the ' High Court under article 133(1) of the Constitution. Under the Government of India Act 1935 the Pro vincial Legislature derived its power to impose a tax on the sale of goods under entry 48 in List 11 of the Seventh Schedule and the Uttar Pradesh Sales Tax Act XV of 1948 was enacted in exercise of this power. Section 2(h) of the Act defines "sale" as follows : "Sale" means within its grammatical variations and cognate expressions any transfer of property in goods for cash or deferred payment or other valuable consideration and includes forward contracts but does not include a mortgage hypothecation charge or pledge. " It is the extended definition of sale as including forward contracts in this section that is relied on as conferring authority on the appellant to make the orders in Exhibits A and B. The point for decision in this appeal is whether the power to impose a tax on the sale of goods under entry 48 includes a power to impose a tax on forward contracts. 245 Under the statute law of India which is based on English law on the subject a sale of goods and an agreement for the sale of goods are treated as two distinct and separate matters. Section 4 of the Indian Sale of Goods Act (Act III of 1930) runs as follows: (1) "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part owner and another. (2) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. " It will be noticed that though the section groups both sales and agreements to sell under the single generic name of "contracts of sale" following in this respect the scheme of the English Sale of Goods Act 1893 it treats them as separate categories the vital point of distinction between them being that whereas in a sale there is a transfer of property in the goods from the seller to the buyer there is none in an agreement to sell. When the contract is to sell future goods and under section 6(3)of the Sale of Goods Act even if "the seller purports to effect a present sale of future goods the contract operates as an agreement to sell the goods" there can be no transfer 'of title to the goods until they actually ' come into existence ; and even then the conditions laid down in section 23 of the Act should be satisfied before the property in the goods can pass. That was also the law under the repealed provisions in Chapter VII of the Indian Contract. Act 1872. Section 77 of the Contract Act defined "sale" as follows: "Sale" is the exchange of property for a price. It involves the transfer of the ownership of the thing sold from the seller to the buyer. " 246 Section 79 enacted that "Where there is a contract for the sale of a thing which has yet to be ascertained made or finished the ownership of the thing is not transferred to the buyer until it is ascertained made or finished. " The corresponding provisions of the English Act are sections 1 16 and rule 5 of section 18. Section I is as follows: (1)"A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price. There may be a contract of sale between one part owner and another. (2)A contract of sale may be absolute or conditional. (3)Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4)An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. " Section 16 enacts that "Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained. " Section 18 rule 5 provides for the passing of property is future goods after they are ascertained. The distinction between a sale and an agreement to sell under section 1 of the English Act is thus stated by Benjamin on Sale Eighth Edition 1950: "In order to constitute a sale there must be (1)An agreement to sell by which alone the property does not pass; and (2) an actual sale by which the property passes. It will be observed that the definition of a contract of sale above cited includes a mere agreement to sell as well as an actual sale. " 247 This distinction between sales and agreements to sell based upon the passing of the property in the goods is of great importance in determining the rights of parties under a contract. The position is thus stated in Halsbury 's Laws of England Volume 29 page 15 paragraph 13: "An agreement to sell or as it is often stated an executory contract of sale is a contract pure and simple whereas a sale or as it is called for distinction an executed contract of sale is a contract plus a conveyance. Thus by an agreement to sell a mere jus in personam is created by a sale a jus in rem is transferred. Where goods have been sold and the buyer makes default in payment the seller may sue for the contract price but where an agreement to buy is broken usually the seller 's only remedy is an action for unliquidated damages. Similarly if an agreement to sell be broken by the seller the buyer has only a personal remedy against the seller. The goods are the property of the seller and he can dispose of them. They may be taken in execution for his debts and if he becomes bankrupt they pass to his trustee in bankruptcy. But if there has been a sale and the seller breaks his engagement to deliver the goods the buyer has not only a personal remedy against the seller but also the usual proprietary remedies in respect of the goods them selves such as the actions for conversion and detinue. Again if there be an agreement for sale and the goods perish the loss as a rule falls on the seller while if there has been a sale the loss as a rule falls upon the buyer. " Thus there having existed at the time of the enactment of the Government of India Act 1935 a welldefined and well established distinction between a sale and an agreement to sell it would be proper to interpret the expression sale of goods" in entry 48 in the sense in which it was used in legislation both in England and India and to hold that it authorises the imposition of a tax only when there is a completed sale involving transfer of title. This conclusion is further strengthened when regard is hood to the nature of the levy Section 3 of the Act 248 provides for a tax being imposed at three pies in the rupee on the turnover of the assessee and "turnover" is defined in section 2 (i) as "the aggregate of the proceeds of sale by a dealer" and that would consist of the price and any charges paid at the time of the delivery of the goods as provided in Explanation I. The substance of the matter is that the sales tax is a levy on the price of the goods and the reason of the thing requires that such a levy should not be made unless the stage has been reached when the seller can recover the price under the contract. It is well settled that an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser. Where there is only an agreement to sell then the remedy of the seller is to sue for damages for breach of contract and not for the price of the goods. The law was thus stated in Colley vs Overseas Exporters(1): In former days an action for the price of goods would only lie upon one or other of two counts. First upon the indebitatus count for goods sold and delivered which was pleaded as follows: 'Money payable by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendants ': Bullen and Leake Precedents of Pleading 3rd ed. p. 38. This count would not lie before delivery: Boulter vs Arnott(2). The count was applicable when upon a sale of goods the property has passed and the goods had been delivered to the purchaser and the price was payable at the time of the action brought. Secondly upon the indebitatus count for goods bargained and sold which was pleaded as follows: Money payable by the defendant to the plaintiff for goods bargained and sold by the plaintiff to the defendant ': Bullen and Leake p. 39. This count was applicable where upon a sale of 'goods the property had passed to the purchaser and the contract had been completed in all respects except delivery and the delivery was not a part of the consideration for the price or a condition precedent to its payment. If the property had not passed the count would not lie: Atkinson vs Bell(3). In my view the law as to the (1) at 309 310 (2) (1833) 1 Cr & M. 333. (3) ; 249 circumstances under which an action will lie for the price of goods has not been changed by the Sale of Goods Act 1893. " That is also the law in this country under section 55 of the Sale of Goods Act. The only exception to this rule is when under an agreement between the parties the price is payable on a day certain irrespective of delivery and that is not material for the purpose of the present discussion. The position therefore is that a liability to be assessed to sales tax can arise only if there is a completed sale under which price is paid or is payable and not when there is only an agreement to sell which can only result in a claim for damages. It would be contrary to all principles to hold that damages for breach of contract are liable to be assessed to sales tax on the ground that they are in the same position as sale price. The power conferred under entry 48 to impose a tax on the sale of goods can therefore be exercised only when there is a sale under which there is a transfer of property in the goods and not when there is a mere agreement to sell. The State Legislature cannot by enlarging the definition of " sale " as including forward contracts arrogate to itself a power which is not conferred upon it by the Constitution Act and the definition of "sale" in section 2(h) of Act XV of 1948 must to that extent be declared ultra vires. For the same reason Explanation III to section 2(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon for delivery" and section 3 B which enacts that "Notwithstanding anything contained in section 3 the turnover of any dealer in respect of transactions of forward contracts in which goods are not actually delivered shall be taxed at a rate not exceeding rupees two per unit as may be prescribed " must also be held to be ultra vires. In the result the decision of the High Court must be affirmed and this appeal dismissed with costs.

Held that there is a well defined and well established distinction between a sale and an agreement to sell. The words "Taxes on the sale of goods" in entry No. 48 List II Schedule VII of the Government of India Act 1935 confer power on the Provincial Legislature to impose a tax only when there has been a completed sale and not when there is only an agreement to sell. Accordingly section 2(b) of the Uttar Pradesh Sales Tax Act XV of 1948 enlarging the definition of "sale" so as to include forward contracts must to that extent be declared ultra vires. For the same reason Explanation III to section 2(h) which provides that forward contracts "shall be deemed to have been completed on the date originally agreed upon for delivery" and section 3B of the Act must also be held to be ultra vires. Colley vs Overseas Exporters ([1921] 3 K. B. 302 at 309 310 referred to.

Appeals Nos. 129 and 130 of 1952. 409 Appeals by Special Leave from the Judgment and Order dated the 26th December 1951 of the Court of the Judicial Commissioner for the State of Himachal Pradesh at Simla in Civil Misc. Petitions Nos. 12 and 16 of 1951. Achhru Ram (P. section Safeer and Harbans Singh with him) for the appellants. C. K. Daphtary Solicitor General for India (R. Ganapathy Iyer with him) for respondent No. 1. 1954. April 22. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. These are two connected appeals by special leave against an order of the Judicial Commissioner. Himachal Pradesh dated the 26th December 1951 rejecting two applications for the issue of writs of mandamus and certiorari under article 226 of the Constitution. The facts giving rise to the two petitions out of which these two connected appeals arise are these: One Trilok Nath was running a business in Himachal Pradesh under the name and style of "Himachal Drug Nurseries" for the extraction collection and export of medicinal herbs in the year 1949. He was a partner of Messrs. Prabhu Dayal and Gowri Shanker of Jammu and Kashmir State in timber business carried on in that State under the name and style of "The Kashmir Woods". It was alleged by him that the business in Chamba was his exclusive business with which the partnership firm "The Kashmir Woods" had no concern whatsoever. Prabhu Dayal 's case was that the firm "The Kashmir Woods" was started by him in 1943 as his sole proprietary concern that later on he took Trilok Nath Mahajan as a partner in this concern that in the year 1949 Sardar Bhagwan Singh induced the partners of this firm to take up the line of crude drugs and herbs which was his line that a new firm "Himachal Drug Nurseries" was started as a child concern of "The Kashmir Woods" with Bhagwan Singh as one of the partners that after preliminary investigation it was decided to take up this work at Chamba and in pursuance of this decision two leases 53 410 of two forest divisions were taken on behalf of the Jammu firm one in the name of Bhagwan Singh and another in the name of Trilok Nath but the finance for this undertaking was supplied by the parent firm at Jammu. It was alleged that subsequently Trilok Nath manipulated the Jammu books showing a bogus investment of his elder brother Wazir Chand amount ing to Rs. 30 000 in the firm "Kashmir Woods" and that fraudulently and by manipulating the books and by entering into certain agreements Trilok Nath made Wazir Chand the sole owner of "Himachal Drug Nurseries" and transferred the Chamba concern to him without the knowledge of the other partners. These assertions were not accepted by Wazir Chand or Trilok Nath. Their case was that Trilok Nath was the sole owner of the Chamba concern that he obtained the leases in his own name and not for the Jammu firm from the Chamba forest department first in the year 1949 and then in the year 1950 that as he had no capital of his own he borrowed a sum of Rs. 30 000 from his brother and made him a partner with him in this business and that as later on he was unable to contribute his share of the capital the part nership was dissolved on 31st August 1950 and in consideration of a sum of Rs. 20 000 he Trilok Nath relinquished and transferred by means of a stamped deed of dissolution made on 10th December 1950 all his rights in the Chamba concern to Wazir Chand who thus became the sole owner of all the goods belonging to this concern in Chamba and came into possession. of the same. On the 3rd April 1951 Prabhu Dayal lodged a report with the police at Jammu that Trilok Nath had prepared duplicate accounts for production before the income tax authorities and that he had committed an offence of embezzlement under section 406 of the Indian Penal Code. The Jammu and Kashmir State police took cognizance of the case and appointed Amar Nath sub inspector of police to make investigation. During the investigation the Jammu police came to Chamba on 25th and 26th April 1951 and with the assistance of the Chamba police seized 269 411 bags of medicinal herbs worth about Rs. 35 000 and in actual physical possession of Wazir Chand or his men without reporting to or obtaining orders from any magistrate or any other competent authority. The goods were handed over to different superduper at different stations in the State of Himachal Pradesh. Wazir Chand vehemently protested against these seizures alleging that the action taken was illegal and without jurisdiction and that the goods should be released but his representations had no effect. In the first week.of July 1951 the Chamba police again at the instance of the Jammu police seized 25 bags of dhup from and in the possession of Wazir Chand and these were also handed over to the some superdars. On the 19th July 1951 the District Magistrate of Jammu wrote to the District Magistrate of Chamba asking that the goods seized from the "Himachal Drug Nurseries" be handed over to. the Jammu and Kashmir State police. This request has so far not been complied with. On the 21st August 1951 Wazir Chand made an application under article 226 of the Constitution of India to the Judicial Commissioner of the State of Himachal Pradesh at Simla praying for the issue of one or more writs in the nature of mandamus directing the :respondents to order the release of the seized goods and to refrain from passing any orders about the extradition of these goods. During the pendency of this petition another 45 maunds of medicinal herbs were seized by the Chamba police at the instance of the Jammu police. This seizure was challenged by a second petition on 20th September 1951 under article 226 of the Constitution. The Judicial Commissioner disposed of both these petitions by a single judgment. He declined to grant any of the reliefs asked for by the appellant. The ground of the decision appears from the following quotation from his judgment: "In order to find whether the entries in those books of account were genuine or forged or what the effect of those entries on the alleged right of Wazir 412 Chand was or whether the agreements set up by Wazir Chand were genuine or for consideration it would be necessary that all these persons and such witnesses as they might deem it necessary to produce in support of their respective allegations should appear in the witness box. A number of affidavits have been filed on behalf of either party those of Wazir Chand and certain alleged employees of the Himachal Drug Nurseries on behalf of the petitioners and of Prabhu Dayal Gauri Shankar Bhagwan Singh and a head constable of the Jammu and Kashmir police on behalf of the respondents; but the truth or falsity of the contents of those affidavits cannot be ascertained without the deponents being subjected to cross examination. I would not go so far as to hold that the petitioners have failed to prove that they have any right title or interest in the goods seized. It will not be fair to do so in the present summary proceedings. But this much must certainly be said that it is not possible for this Court on the material placed before it or which could possibly be placed in these summary proceedings to come to a finding whether the petitioners have the right to claim the reliefs prayed for by them The proper remedy for them therefore is not by way of a petition under article 226 of the Constitution of India but by any other action e.g. a civil suit which may be open to them. " It was contended before us that the learned Judicial Commissioner was in error in thinking that in order to determine the legality of the seizures and to determine the point whether there had been any infringement of the petitioner 's fundamental rights it was necessary to determine the true nature of the title in the goods seized and that the petitioner could not be granted any relief till he was able to establish this. It was argued that the good shaving been seized from the actual possession of the petitioner or his :servants the Chamba concern being admittedly under the exclusive control of Trilok Nath or Wazir Chand the determination of the question whether Wazir Chand had obtained possession fraudulently was not relevant to this inquiry and that the only point that needed consideration was 413 whether the seizures were under authority of law or otherwise and if they were not supported under any provisions of law a writ of mandamus should have issued directing the restoration of the goods so seized. It seems to us that these contentions are well founded. The Solicitor General appearing for the respondents was unable to draw our attention to any provision of the Code of Criminal Procedure or any other law under the authority of which these goods could have been seized by the Chamba police at the instance of the Jammu police. Admittedly these seizures were not made under the orders of any magistrate. The provisions of the Code of Criminal procedure authorizing the Chamba police to make a search and seize the goods are contained in sections 51 96 98 and 165. None of these sections however has any application to the facts and circumstances of this case. Section 51 authorizes in certain circumstances the search of arrested persons. In this case no report of the commission of a cognizable offence had been made to the Chamba police and no complaint had been lodged before any magistrate there and no warrant had been issued by a Chamba magistrate for making the search or for the ;arrest of any person. That being so sections 51 96 and 98 had no application to the case '. Section 165 again is not attracted to the circumstances of this case because it provides that if an officer in charge of a police station has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the police station of which he is in charge or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay such officer may after recording in writing the grounds of his belief and specifying in such writing so far as possible the thing for which search is to be made search or cause search to be made for such thing in any place within the limits of such station. The Chamba police was not authorized to investigate the offence regarding which a report had been made to the Jammu and Kashmir police. It is doubtful whether in view of the provisions of article 370 of the Constitution any offence committed in Jammu and Kashmir could be investigated by 414 an officer in charge of a police station in the Himachal Pradesh. The procedure prescribed by the section was not followed. the Jammu and Kashmir police had no jurisdiction or authority whatsoever to carry out investigation of an offence committed in Jammu and Kashmir in Himachal territory without the authority of any law or under the orders of any magistrate passed under authority of any law. No such authority was cited before us. The whole affair was a hole and corner affair between the officers of the Kashmir police and of the Chamba police without any reference to any magistrate. It is obvious that the procedure adopted by the Kashmir and the Chamba police was in utter violation of the provisions of law and could not be defended under cover of any legal authority. That being so the seizure of these goods from the possession of the petitioner or his servants amounted to an infringement of his fundamental rights both under article 19 and article 31 of the Constitution and relief should have been granted to him under article 226 of the Constitution. All that the Solicitor General could urge in the case was that on the allegation of Prabhu Dayal the goods seized in Chamba concerned an offence that had been committed in Jammu and being articles regarding which an offence had been committed the police was entitled to seize them and that Wazir Chand had no legal title in them. Assuming that that was so goods in the possession of a person who is not lawfully in possession of them cannot be seized except under authority of law and in absence of such authority Wazir Chand could not be deprived of them. On the materials placed on this record it seems clear that unless and until Prabhu Dayal proved his allegations that the Chamba concern was part and parcel of the Jammu partnership firm (which fact has been denied) and that Trilok Nath who was admittedly one of the partners had no right to put Wazir Chand in possession of the property no offence even under section 406 could be said to have been committed about this property. The Jammu police without having challenged any of the accused before a magistrate in Jammu and without having obtained any orders of extradition from a magistrate (if the offence was extraditable) could not proceed to Chamba 415 and with the help of the Chamba police seize the goods and attempt to take them to Jammu by a letter of request written by the District Magistrate of Jammu to the District Magistrate of Chamba. Lastly it was argued that the petitioner made an application under section 523 Criminal Procedure Code to the magistrate and that application was dismissed and that a petition for revision against that order was still pending a and that when another remedy had been taken article 226 could not be availed of. 'This contention cannot be sustained firstly in view of the fact that section 523 has no application to the facts and circumstances of this case and the magistrate had no jurisdiction to return these goods to the petitioner. Secondly the revision application has been dismissed on the ground that there was no jurisdiction in this case to grant relief to the petitioner under section 523. For the reasons given above we allow this appeal set aside the order of the Judicial Commissioner and direct an appropriate writ to issue directing the restoration to the petitioner of the goods seized by the police. The appellant will have his costs of the appeals and those incurred by him in the Court of Judicial Commissioner. Appeal allowed.

The provisions regarding search and seizure by the Indian police are contained in sections 51 96 98 and 165 of the Code of Criminal Procedure 1898. None of these sections had any application to the facts and circumstances of the case. Any seizure by the Indian police of any property of a citizen not sanctioned under the law stated above or under any other law infringes the fundamental rights of the citizen guaranteed under article 19 and article 31 of the Constitution of India. This position is not affected even if the citizen whose goods are so seized files an application under section 623 of the Code and his application is dismissed by the Magistrate. In view of the provisions of article 370 it is doubtful if an offence committed in Jammu and Kashmir could be investigated by the police in India.

7 of 1953. Under article 32 of the Constitution of India praying that the Order of the Governor of Uttar Pradesh dated the 29th August 1952 revoking the grants made by the Rulers of Charkhari and Sarila in favour of the petitioners be declared void. K. section Krishna Swamy Iyengar and section P. Sinha (Bishan Singh and section section Shukla with them) for the petitioners. Gopalji Mehrotra and C. P. Lal for the respondent. C. K. Daphtary Solicitor General for India (G. N. Joshi Porus A. Mehta and P. G. Gokhale with him) for the Intervener. April 29. The Order of the Court was pronounced by BosE J. This is a petition under article 32 of the the Constitution. It raises an important question about the post Constitutional rights to property situate in 418 Indian States that were not part of British India before the Constitution but which acceded to the Dominion of India shortly before the Constitution and became an integral part of the Indian Republic after it. The States in question here are Charkhari and Sarila. In British days they were independent States under the paramountcy of the British Crown. They acknowledged the British Crown as the suzerain power and owed a modified allegiance to it but none to the Government of India. In 1947 India obtained Independence and became a Dominion by reason of the Indian Independence Act of 1947. The suzerainty of the British Crown over the Indian States lapsed at the same time because of section 7 of that Act. Immediately after all but three of the Indian States acceded to the new Dominion by executing Instruments of Accession. Among them were the two States with which we are concerned. The new Dominion of India was empowered to accept these accessions by a suitable amendment in the Government of India Act 1935. The sovereignty of the acceding States was expressly recognised and safeguarded. The operative words of the Instrument of Accession which each Ruler signed were " Now Therefore I. . Ruler of. . . in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession. " And clause 8 provided that "Nothing in this Instrument affects the continuance of my sovereignty in and over this State or save as provided by or under this Instrument the exercise of any powers authority and rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State." Broadly speaking the effect of the accession was to retain to the Rulers their full autonomy and sovereignty except on three subjects: Defence External Affairs and Communications. These were transferred to the Central Government of the new Dominion. 419 One other clause is important clause 6 which provided that "Nothing in this Instrument shall empower the Dominion Legislature to make any law for the State authorising the compulsory acquisition of land for any ' purpose. . . About the same time each acceding Ruler entered into a standstill agreement with the Dominion of India. The following clause is relevant: "Nothing in this agreement includes the exercise of any paramountcy functions. " The alienations now in question were made in January 1948. On 5th January 1948 the Ruler of Sarila granted the village Rigwara to the petitioners and on 28th January 1948 the Ruler of Charkhari granted the villages Patha Kua and Aichana also to the petitioners. After this on 13th March 1948 thirty five States in Bundelkhand and Baghelkhand (including Charkhari and Sarila) agreed to unite themselves into one State which was to be called the United State of Vindhya Pradesh. In pursuance of this agreement each of the thirty five Rulers signed a covenant on 18th March 1948 which brought the new State into being. It is important to note that this was a purely domestic arrangement between themselves and not a treaty with the Dominion of India. Each Ruler necessarily surrendered a fraction of his sovereignty to the whole but there was no further surrender of sovereign powers to the Dominion of India beyond those already surrendered in 1947 namely Defence External Affairs and Communications. Despite the readjustment the sum total of the sovereignties which had resided in each before the covenant now resided in the whole and its component parts: none of it was lost to the Dominion of India. Soon after this the Revenue Officers of the newly formed Vindhya Pradesh Union tried to interfere with the grants made by certain Rulers of the integrating States before the integration; among them were the grants in question here. This occasioned complaints to the Vindhya Pradesh Government and that 420 Government decided on 7th December 1948 to respect the impugned grants. The Revenue Minister 's order of that date runs "After considering over the whole question it has been decided that such grants made by the Rulers before signing the covenant should be respected because constitutionally the V.P. Government should not refuse recognition to such grants unless they are directed otherwise by the State Ministry. " Orders were accordingly issued to the Revenue Officers concerned to "abstain from interfering in such grants." This decision was communicated to the Rulers of Charkhari and Sarila on 13th March 1949. They were told that their grants would be respected. The integration did not work satisfactorily so on 26th December 1949 the same thirty five Rulers entered into another agreement abrogating their covenant and dissolving the newly created State as from 1ST January 1950. By the same instrument each Ruler ceded to the Government of the Indian Dominion as from the same date "full and exclusive authority jurisdiction and powers for and in relation to the governance of that State." Article II provided that "As from the aforesaid day the United State of Vindhya Pradesh shall cease to exist and all the property assets and liabilities of that State as well as its rights duties and obligations shall be those of the Government of India." This Instrument was called the Vindhya Pradesh Merger Agreement. The Government of the Indian Dominion was also a party and its Secretary in the Ministry of States appended his signature to the document. Each Ruler was guaranteed a privy parse and all the personal privileges dignities and titles enjoyed by him at the date of the Agreement. Imme diately after the clause guaranteeing the privy purse comes the following Article IV (2) The said amount is intended to cover all the expenses of the Ruler and his family. . and shall 421 neither be increased nor reduced for any reason what soever. " The following clauses are also relevant: Article VI "The Government of India guarantees the succession according to law and custom to the gaddi of each Covenanting State and to the personal rights privileges dignities and titles of the Ruler thereof. Article VII (1)The Ruler of each Covenanting State shall be entitled to the full ownership use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh in pursuance of the Covenant. (2)If any dispute arises as to whether any item of property is the private property of the Ruler or State property it shall be referred to a judicial officer to be nominated by the Government of India and the decision of that officer shall be final and binding on all parties concerned. Article VIII No enquiry shall be made by or under the authority of the Government of India and no proceeding shall lie in any Court against the Ruler of any Covenanting State whether in a personal capacity or otherwise in respect of anything done or omitted to be done by him or under his authority during the period of his administration of that State. " The Dominion Government took over the administration of the States which formed Vindhya Pradesh on 1st January 1950 and decided to form them into a Chief Commissioner 's Province. It did this by a Notification of the Governor General dated 22nd January 1950 and brought the new Province into being on 23rd January 1950. But the four villages we are concerned with (called enclaves) were taken out of this Province on 25th January 1950 and absorbed into the United Provinces (now Uttar Pradesh) by an Order of the Governor General entitled 422 the Provinces and States (Absorption of Enclaves) Order 1950. This Order was made under sections 290 290 A and 290 B of the Government of India Act 1935. The portions of that Order relevant for the present purpose are these: " 3 (1) As from the appointed day every enclave specified in the First Schedule. shall cease to form part of the surrendering unit and shall be included in and form part of the absorbing unit. . . . "6. All property and assets within an enclave which immediately before the appointed day vested in the Government of the surrendering unit shall as from that day vest in the Government of the absorbing unit. 7.All rights liabilities and obligations whether arising out of contract or otherwise of the Government of a surrending unit in relation to an enclave shall as from the appointed day be the rights liabilities and obligations respectively of the Government of the absorbing unit. 8.All laws in force in an enclave immediately before the appointed day shall as from that day cease to be in force in that enclave and all laws in force in the absorbing unit shall as from that day extend to and be in force in that enclave. " The Constitution came into force on 26th January decided to reopen the question of revocation which the Vindhya Pradesh Government had settled on 7th December 1948 and on 29th August 1952 more than two and a half years after the Constitution and four and a half years after the grants the Uttar Pradesh Government in consultation with the Government of India revoked the grants with which we are concerned. The Governor of Uttar Pradesh issued the following order on 29th August 1952 : " Subject : Voidable grants of Jagirs and Muafis made by the Rulers of Charkhari and Sarila before the integration. 423 With reference to your endorsement No. 3885/XV 110 1950 dated September 30 1950 on the above subject I am directed to say that in consultation with the Government of India the Governor has decided to revoke the grants made by the rulers of Charkhari and Sarila on or after January.1 1948 to the members of their families relations and others Copies of this order were forwarded to the Rulers of Charkhari and Sarila on 29th January 1953. This occasioned the present petition under article 32 of the Constitution against the State of Uttar Pradesh. The Union Government was allowed to intervene. The State of Uttar Pradesh made the following affidavit in reply: "(3) That immediately before or after the signing of the agreement some Rulers of the Indian States constituting the Vindhya Pradesh Union whose territories were subsequently absorbed in the Uttar Pradesh had granted jagirs and muafis of land to their near relations mala fide and thereby indirectly increased their privy purse. (4) That it appears that Vindhya Pradesh Government opened the case of mala fide grants made by the rulers of integrating States and at their instance the Government of India issued instructions to the Uttar Pradesh Government to do the same. The effect of these grants is to increase the privy purse of the ruler. whose responsibility it was to support the grantees. " The operative order of revocation was made by the Governor of Uttar Pradesh and under the Constitution it is clear that no State Government has the right to do anything in the nature of an act of State but in view of the fact that the revocation was made in consultation with the Government of India we were I asked to treat the Uttar Pradesh Governor as a delegate of the sovereign authority whose act has been approved and ratified by that authority along the 424 lines of Buron vs Denman(1) The Secretary of State in Council of India vs Kamachee Boye Sahaba(2) and Johnstone vs Pedlar(3) and to decide on that basis whether the Union Government had the right and power to revoke these grants as an act of State. Jurists hold divergent views on this matter. Atone extreme is the view of the Privy Council in a series of cases. Their effect was summarised in Vajesingji Joravarsingji vs Secretary of State for India in Council(1) and again in Secretary of State vs Sardar Rustam Khan(5) in the following words: "A summary of the matter is this : when a territory is acquired by a sovereign State for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest it may be by cession following on treaty it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign ' has through his officers recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties;" also in the Secretary of State in Council of India vs Kamachee Boye Sahaba (2) and in Johnstone vs Pedlar(6 ) as follows: " Of the propriety or justice of that act neither the Court below nor the Judicial Committee have the means of forming or the right of expressing if they had formed any opinion. It may have been just or unjust politic or impolitic beneficial or injurious taken as a whole to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that; even if a wrong has (1) (2) 7 M. I. A. 476 at 540. (3) ; at 279. (4)51 1. A. 357 at 36o. (5)68 I. A. 1o9 at 124. (6)[1921] 2 A.C. 262 at 280 425 been done it is a wrong for which no Municipal Court of justice can afford a remedy.". According to the Privy Council in Secretary of State for India in Council vs Bai Rajbai (1) and also in Vajesingji Joravarsingji vs Secretary of State for India in Council (9) the burden of proving that the new sovereign has recognised the old rights lies on the party asserting it. The learned Solicitor General relies on these cases. At the other extreme is the view of Chief Justice John Marshall of the United States Supreme Court. He said in the United States vs Percheman (3) in the year 1833: "It may not be unworthy of remark that it is very unusual even in cases of conquest for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations which has become law would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to 'each other and their rights of property remain undisturbed. If this be the modern rule even in cases of con ' quest who can doubt its application to the case of an amicable cession of territory ?. . A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could so understand the cession. Neither party could consider itself as attempting a wrong to individuals condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another; conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass (1)42 I.A. 229 at 239. (2)51 I.A. 357 at 361. (3) ; at 86 87 55 426 the sovereignty only and not to interfere with private property. " This view was followed by Cardozo J. in 1937 in Shapleigh vs Mier (1). He said : "Sovereignty was thus transferred but private ownership remained the same To find the the title to the land today we must know where title stood while the land was yet in Mexico. " We gather from Hyde 's International Law Volume I second edition page 433 that the came principle was laid down by the Permanent Court of International Justice. The learned author quotes the Court as saying in its Sixth Advisory Opinion of September 10 1923 on certain questions relating to settlers of German origin in the territory ceded by Germany to Poland " Private rights acquired under existing law do not cease on a change of sovereignty. No one denies that the German Civil Law both substantive and adjective has continued without interruption to operate in the territory in question. It can hardly be maintained that although the law survives private rights acquired under it have perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice It suffices for the purposes of the present opinion to say that even those who contest the existence in international law of a general principle of State succession do not go so far as to maintain that private rights including those acquired from the State as the owner of the property are invalid as against a successor in sovereignty." The learned counsel for the petitioners relies on this class of case and derives this much support for it from the Privy Council in Mayor of Lyons vs East India Company (2) where Lord Brougham said: " It is agreed on all hands that (when) a foreign settlement (is) obtained in an inhabited country by conquest or by cession the law of the country continues until the Crown or the Legislature change it." (1) ; at 470. (2) I M.I.A 175 at 270 271 427 It is right however to point out that Hyde places limitations on the doctrine at page 432 and that the learned authors of Corpus Juris: International Law Volume 33 page 415 place the limitation that in the absence of express understanding a conqueror assumes no obligations of the conquered state. This distinction was also drawn by Lord Alverstone C.J. in West Rand Central Gold Mining Company vs Rex (1) where commenting on the American cases he said that there is a difference between the private rights of individuals in private property and contractual rights which are sought to be enforced against the new sovereign. He said : " It must not be forgotten that the obligations of conquering States with regard to private property of private individuals particularly land as to which the title had already been perfected before the conquest or annexation are altogether different from the obligations which arise in respect of personal rights by contract. As is said in more cases than one cession of territory does not mean the confiscation of the property of individuals in that territory. If a particular piece of property has been conveyed to a private owner or has been pledged or a lien has been created upon it considerations arise which are different from those which have to be considered when the question is whether the contractual obligation of the conquered State towards individuals is to be undertaken by the conquering State." Lord Alverstone also pointed out that in the American cases on which the international jurists have based their views the treaties of cession as well as the subsequent legislation of the United States protected the rights of owners of private property as they existed at the time of cession and so the only question for decision in each of those cases was whether any private rights of property actually existed at the relevant date. Now that is also the English law for the Privy Council and the House of Lords have also held that the new sovereign can choose to waive his rights and recognise titles and rights as they existed at the date of cession. (1) [T905] 2 K.B. 391 at 411. 428 This recognition can be given either by legislation or by proclamation and it can even be inferred from the mode of dealing with the property after the cession: Forester vs Secretary of State for India in Council ( ) (legislation); Secretary of State vs Bai Rajbai (2) (agreement legislation and mode of dealing); Mayor of Lyons vs East India Company (3) (waiver) and at page 285 (relinquishment) ; also Vajesinghji Joravarsinghji vs Secretary of State for India(1) and Secretary of State vs Sardar Rustam Khan (5). In dealing with the views of international jurists Lord Halsbury insisted that they were only enunciations of what in their opinion the law ought to be and had no binding force. He said in the House of Lords in Cook vs Sorigg (6): " It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory. All that can be properly meant by such a proposition is that according to the well understood rules of international law a change of sovereignty by cession ought not to affect private property but no municipal tribunal has authority to enforce such an obligation. And if there is either an express or a well understood bargain between the ceding potentate and the Government to which the cession is made that private property shall be respected that is only a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure. " His view was endorsed by the Privy Council in Secretary of State vs Sardar Rustam Khan(5) and again in the House of Lords in Johnstone vs Pedlar(7). Lord Alverstone C. J. analysed in detail how far international law can be accepted and applied in municipal (1) 1872 73 I.A. Supplt. Io at 17. (2) 42 I.A. 229 at 237. (3) I M.I.A. 175 at 281. (4) 51 I.A. 357 at 361. (5)681 I.A. 109 at 123. (6) at 578. (7) ; at 281. 429 Courts of justice in West Rand Central Gold Mining Company vs Rex(1) and set out reasons for the above conclusion. The learned counsel for the petitioners also relies on another limitation which the English Courts have placed on an act of State. He says that even if the right to con fiscate be conceded it must be taken to have been waived if either the Crown or its officers purport to act under colour of a legal title and not arbitrarily. He contended that arbitrariness was of the essence in a ' act of State. He relied on Secretary of State in Council of India vs Kamachee Boye Sehaba(2) Forester vs Secretary of State for India in Council (3) and Johnstone vs Pedlar(4). He pointed out that the affidavit of the respondent shows that Government decided to confirm all grants except those which were mala fide. Therefore this was no arbitrary act of annexation but an attempt to exercise what was thought to be a legal right. We do not intend to discuss any of this because in our opinion none of these decisions has any bearing on the problem which confronts us namely the impact of the Constitution on the peoples and territories which joined the Indian Union and brought the Constitution into being. The flow of events up to the date of final accession 1st January 1950 are only of historical interest in the present matter. The Rulers of Charkhari and Sarila retained at the moment of final cession whatever measure of sovereignty they had when paramountly lapsed less the portion given to the Indian Dominion by their Instruments of Accession in 1947; they lost none of it during the interlude when they toyed with the experiment of integration. There was then redistribution of some of its aspects but the whole of whatever they possessed before the integration returned to each when the United State of Vindhya Pradesh was brought to an end and ceased to exist. Thereafter each acceded to the Dominion of India in his own right. Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were (1)[19O5] 2 K B 391 at 401 408. (3) 1872 73 I.A. Supplt. 10 at 17. (2) 7 M.I.A. 476 at 53I. (4) ; at 281. 430 acts of State into whose competency no municipal Court could enquire; nor can any Court in India after the Constitution accept jurisdiction to settle any dispute arising out of them because of article 363 and the proviso to article 131; all they can do is to register the fact of accession; see section 6 of the Government of India Act 1935 relating to the Accession of States. But what then? Whether the Privy Council view is correct or that put forward by Chief Justice Marshall its broadest outlines is more proper all authoritiesd re agreed that it is within the competence of the new sovereign to accord recognition to existing rights in the conquered or ceded territories and by legislation or otherwise to apply its own laws to them; and these laws can and indeed when the occasion arises must be examined and interpreted by the municipal Courts of the absorbing State. Now in the present case what happened after the final accession? There was already in existence in 1949 section 290 A of the Government of India Act 1935 which provided as follows: "Administration of certain Acceding States as a Chief Commissioner 's Province. . (1)Where full and exclusive authority jurisdiction and powers for and in relation to the Government of any Indian State or of any group of such States are for the time being exercisable by the Dominion Government the Governor General may by Order direct (a)that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioner 's Province. . (2) Upon the issue of an Order under clause (a) of sub section (1) of this section all the provisions of this Act applicable to the Chief Commissioner 's Province of Delhi shall apply to the State or the group of States in respect of which the Order is made. The final Instrument of Accession complies with sub section (1) above. The necessary Order was made and the Chief Commissioner 's Province of Vindhya 431 Pradesh which at that date included the property in dispute came into being on 23rd January. Now it is beyond dispute that there neither can nor could be confiscation of property as an act of State in the Chief Commissioner 's Province of Delhi. It is difficult to see how there could be in an area which was being administered by the Dominion Government in all respects as a Chief Commissioner 's Province even if the person in possession was not at the time a national of the country an assumption which is by no means indisputable; indeed that is the effect of the decision of the Privy Council in Mayor of Lyons vs East India Company(1). There would appear to have been a clear election by the sovereign authority expressed in its own legislation to waive its rights of confiscation even if they were there (a point we do not decide); and the same consequences followed when the properties in dispute were incorporated into the State of Uttar Pradesh two days later on 25th January 1950. The Privy Council go even further in Mayor of Lyons vs East India Company at page 285 and say that the waiver or relinquishment can be established from the treaty itself. ". it cannot be denied that the Crown may relinquish its prerogative; indeed whenever the inhabitants of conquered provinces are held to obtain the rights of subjects by treaty (and even Sir F. Norton has no doubt of this being possible) those who hold the doctrine the most vigorously must say that the treaty is a voluntary abandonment of a right of the Crown. It evidences the will of the sovereign to exempt the conquered territory from this branch of his prerogative. But the same will of the sovereign may be collected from other circumstances and the like abandonment of the prerogative be thus evidenced. " But however that may be the fact remains that the titles of these petitioners to the disputed lands had not been repudiated tip to the 26th of January 1950. It is immaterial whether or not the right of the Dominion Government to do so remained in abeyance till exercised despite the agreement embodied in the (1) I M. I.A. 175 at 274 275 432 Instruments of Accession and the legislation and notification quoted above because in fact it was not exercised. Now what was the effect of the non exercise of those rights ? Even on the English view the person in de facto possession is not without rights in the land nor is he altogether without remedy. It is just a question of the means of redress. In Johnstone vs Pedlar(1) Lord Atkinson speaking in the House of Lords said: "It is on the authorities quite clear that the injury inflicted upon an individual by the act of State of a sovereign authority does not by reason of the nature of the act by which the injury is inflicted cease to be a wrong. What these authorities do establish is that a remedy for the wrong cannot be sought for in the Courts of the sovereign authority which inflicts the injury and that the aggrieved party must depend for redress upon the diplomatic action of the State of which he is a subject. " So also in Forester vs Secretary of State for India(9) the Begum whose estate Government sought to confiscate as an act of State was only in de facto possession: see page 16. The Privy Council held that the Government had purported to act under colour of a legal title so its attempt at resumption was not an act of State and consequently could be reviewed in the Courts. Their Lordships thereupon proceeded to investigate the Begum 's title not under the British Government but as derived from the sovereign power which preceded it (page 18). So also in Mayor of Lyons vs East India Company(3) the title of a foreign alien to land was upheld not under the English law (because if that had applied there would have been an escheat) but under the law in India derived from non British sources that is to say under the laws of the land before cession. It was held that those laws continued until changed and for that reason a title which would have been bad under the English law was upheld. At page 274 their Lordships say: (1) ; at at 274 275. (2) 1872 73 I.A. Supplt. 433 "It follows from what has been observed not only that Calcutta was a district acquired in a country peopled and having a Government of its own but that for a long course of time no such law as that which incapacitates aliens could be introduced any more than it could now be introduced into such part of the Asiatic. or Portuguese territory. " and at page 271 they had already said "In the former case it is allowed that the law of the country continues until the Crown or the Legislature change it." Lord Atkinson 's view in Johnstone vs Pedlar(1) at page 281 appears to point to the same conclusion. He said: "And even where the person aggrieved was an independent rajah against WhOM the East India Company made war and having made him prisoner seized his property it was apparently considered by Sir John Romilly M. R. in Ex Rajah of Coorg vs East India Company(2) that the company notwithstanding that this act was an act of State ' could have been sued in respect of any property seized by them which belonged to the rajah in his private capacity as his personal property and not in his character of rajah. " We think it is clear on a review of these authorities that whichever view be taken that of the Privy Council and the House of Lords or that of Chief Justice Marshall these petitioners who were in de facto possession of the disputed lands had rights in them which they could have enforced up to 26th January 1950 in the Dominion Courts against all persons except possibly the Rulers who granted the land and except possibly the State. We do not by 'any means intend to suggest that they could not have enforced them against the Rulers and the Dominion of India as well but for reasons which we shall presently disclose it is not necessary to enter into that particular controversy. It is enough for the purposes of this case to hold that the petitioners had at any rate the rights defined above. (1) ; (2) ; 56 434 Now what was the extent of the petitioners ' rights? These properties were not State properties in the sense of public buildings and so forth. They were indisputably properties over which the Rulers bad absolute rights of disposition at the date of the grants. The grants are absolute in character and would under any civilised system of law pass an absolute and indefeasible title to the grantee. Let it be conceded as was argued (though we do not so decide) that they were defensible at the mere will of a sovereign who held absolute and despotic sway over his subjects in all domestic concerns. The fact remains that up till that time they were neither resumed by the former rulers nor confiscated by the Dominion of India as an act of State. Therefore up to the 25th of January 1950 the right and title of the petitioners to continue in possession was good at any rate against all but the Rulers and the Dominion of India. Now what effect did the Constitution have on that? In our opinion the Constitution by reason of the authority derived from and conferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold. Let it be conceded (without admitting or deciding the point) that the Dominion of India once had the powers for which the Union Government now contends. The self same authorities which appear to concede that power also admit that it can be waived or relinquished. What then was the attitude of the Dominion towards those States which it sought to draw into the Republic of India which was yet to be free sovereign democratic as its Constitution later proclaimed it to be? We quote from the mouthpiece of that Government as disclosed in the White Paper on Indian States published by official authority. Sardar Vallabhbhai Patel 's statement (he was then in charge of the States Department) 5th July 1947 is reproduced at page 157. He said at page 158: "This country with its institutions is the proud heritage of the people who inhabit it It is an accident 435 that some live in the States and some in British India but all alike partake of its culture and character. Weare all knit together by bonds of blood and feeling. no less than of self interest ' None can segregate us into segments; no impassable barriers can be set up between us. I suggest that it is therefore better for us to make laws sitting together as friends than to make treaties as aliens. I invite my friends the Rulers of States and their people to the Councils of Constituent Assembly in this spirit of friendliness and co operation in a joint endeavour inspired by common allegiance to our motherland for the common good of us all." This invitation was accepted on 19th May of the White Paper says "As the States came closer to the Centre it became clear that the idea of separate Constitutions being framed for different constituent units of the Indian Union was a legacy from the Rulers ' polity which could have no place in a democratic set up. The matter was therefore further discussed by the Ministry of States with the Premiers of Unions and States on May 19 1949 and it was decided with their concurrence that the Constitution of the States should also be framed by the Constituent Assembly of India and should form part of the Constitution of India. " It is impossible to think of those who sat down together in the Constituent Assembly and of those who sent representatives there as conqueror and conquered as those who ceded and as those who absorbed as sovereigns or their plenipotentiaries contracting alliances and entering into treaties as high contracting parties to an act of State. They were not there as sovereign and subject as citizen and alien but as the sovereign peoples of India free democratic equals forging the pattern of a new life for the common weal. Every vestige of sovereignty was abandoned by the Dominion of India and by the States and surrendered to the peoples of the land who through their representatives in the Constituent Assembly hammered out for themselves a new Constitution in which all were citizens in a new order having but one 436 ie and owing but one allegiance: devotion loyalty idelity to the Sovereign Democratic Republic that is India. At one stroke all other territorial allegiances were wiped out and the past was obliterated except where expressly preserved; at one moment of time the new order was born with its new allegiance springing from the same source for all grounded on the same basis: the sovereign will of the peoples of India with no class no caste no race no creed no distinction no reservation. The Preamble to the Constitution recites in its magnificient prelude "We The People of India having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens: Justice Liberty Equality Fraternity; In our Constituent Assembly this 26th day of November 1949 do hereby Adopt Enact and Give to Ourselves This Constitution." Article 1(1) sets out that India shall be a Union of States and clauses (2) and (3) define the territories of which India shall be composed. They include the territories in which the disputed lands are situate. Article 5 defines Indian citizens. They include in their wide embrace the Rulers of Charkhari and Sarila who made the grants the petitioners who received them and those who now seek as an act of State to make the confiscation. It is impossible for a sovereign to exercise an act of State against its own subjects. However disputable the proposition may be. that an act of State can be exercised against a citizen who was once an alien the right being only in abeyance till exercised there has never been any doubt that it can never be exercised against one who has always been a citizen from the beginning in territory which has from its inception belonged to the State seeking to exercise the right. This is so even on the English authorities which claim 437 far higher rights for the State than other laws seem to allow. Lord Atkinson said in Johnstone vs Pedlar(1) at page 281 : The last words of Lord Halsburv 's judgment clearly suggest that the Government of this country cannot assert as a defence against one of their own subjects that an act done to the latter 's injury was an act of State since such a subject clearly could not rely on his own sovereign bringing diplomatic pressure against himself to right the subject 's wrong. In conformity with this Principle it was held in Walker vs Baird (2) that where the plaintiffs are British subjects in an action for trespass committed within British territory in time of peace it is no answer that the trespass was an act of State and that thereby the jurisdiction of the municipal Courts was ousted. " And so Lord Phillimore said at page 295: " Because between Her Majesty and one of her subjects there can be no such thing as an act of State." Lord Brougham went further in Mayor of Lyon8 vs East India Company(3) and extended the principle to aliens who later became citizens. He said at pages 284 and 285: " But this position seems wholly untenable for all the authorities lay it down that upon a conquest the inhabitants ante nati as well as post nati of the conquered country become denizens of the conqueror 's country; and to maintain that the conquered people become aliens to their new sovereignty upon his accession to the dominion over them seems extremely absurd. . The Court below it must be observed distinctly admit that conquest operates what they term a virtual naturalization." But however that may be there is no question of conquest or cession here. The new Republic was born on 26th January 1950 and all derived their rights of citizenship from the same source and from the same moment of time; so also at the same instant and for the same reason all territory within its boundaries (1) [19211 2 A.C. 262. (3) 1 M.I.A. 175. (2) [1892]A A.C. 491. 438 became the territory of India. There is as it were from the point of view of the new State Unity of Possession Unity of Interest Unity of Title and Unity of Time. This was also quite clearly the will of the Union Government as expressed in its White Paper so even if the case was still one of cession there is clear evidence of relinquishment and waiver. At page 115 it is said : " With the inauguration of the new Constitution the merged States have lost all vestiges of existence as separate entities "; and at page 130: The new Constitution of India gives expression to the changed conception of Indian unity brought about by the 'unionisation ' of states and at page 131 " Unlike the scheme of 1935 the new Constitution is not an alliance between democracies and dynasties but a real union of the Indian people built on the concept of the sovereignty of the people All the citizens of India whether residing in States or Provinces will enjoy the same fundamental rights and the same legal remedies to enforce them. In the matter of their constitutional relationship with the Centre and in their internal set up the States will be on a par with the Provinces. The new Constitution therefore finally eradicates all artificial barriers which separated the States from Provinces and achieves for the first time the objective of a strong united and democratic India built on the true foundations of a co operative enter prise on the part of the peoples of the Provinces and the States alike. " But we do not found on the will of the Government. We are no longer concerned with principalities and powers. "We have upon us the whole armour of the Constitution and walk from henceforth in its enlightened ways wearing the breastplate of its protecting provisions and flashing the flaming sword of its inspiration. 439 It was not denied that if the present action of the State cannot be defended as an act of State it cannot be saved under any provision of law. Whether the State would have the right to set aside these grants in the ordinary Courts of the land or whether it can deprive the petitioners of these properties by legislative process is a matter on which we express no opinion. It is enough to say that its present action cannot be defended. Article 31(1) of the Constitution is attracted as also article 19(f). The petitioners are accordingly entitled to a writ under article 32(2). A writ will accordingly issue restraining the State of Uttar Pradesh from giving effect to the orders complained of and directing it to restore possession to the petitioners if possession has been taken The petitioners will be paid their costs by the State of Uttar Pradesh. The intervener will bear its own. Writ allowed.

The petitioners were granted in January 1948 Jagirs and Muafis by the Ruler of Sarila State in one village and by the Ruler of Charkhari State in three villages. In March 1948 a Union of 35 States including the States of Sarila and Charkhari was formed into the United State of Vindhya Pradesh. The Vindhya Pradesh Government confirmed these grants in December 1948 when its Revenue Officers interfered with them questioning their validity. The integration of States however did not work well and the same 35 Rulers entered into an agreement in December 1949 and dissolved the newly created State as from 1st January 1950 each Ruler acceding to the Government of India all authority and jurisdiction in relation to the Government of that State the Instrument being called the Vindhya Pradesh Merger agreement. Article VIII of the Instrument stated: "No enquiry shall be made by or under the authority of the Government of India and no proceeding shall be taken in ' any Court against the Ruler of any covenanting State whether in a personal capacity or otherwise in respect of anything done or omitted to be done by him or under his authority during the period of his administration of that State." The States which formed Vindhya Pradesh were transformed into a Chief Commissioner 's Province on 23rd January 1950. The four villages (called enclaves) were taken out of this Province on 25th January 1950 and absorbed into the United Provinces (now Uttar Pradesh) by an Order of the Governor General under the provisions of the Government of India Act 1935. The grant of the four villages made in favour of the petitioners in January 1948 was revoked in August 1952 by the Government of Uttar Pradesh in consultation with the Government of India the operative part of the revocation order being made by the Governor of Uttar Pradesh. Held (i) that the petitioners were entitled to a writ under article 32(2) of the Constitution inasmuch as the order revoking the grant of Jagirs and Muafis in the four villages violated article 31(1) and article 19(f) of the Constitution. (ii) No State Government has the right to do anything in the nature of an act of State. (iii) The accessions by the Rulers of States and their acceptance by the Dominion of India were acts of State and no Municipal Court could question their competency. Article 363 and the proviso to article 131 of the Constitution bars the jurisdiction of Courts in India after the Constitutional to settle any dispute arising out of the accessions and their acceptance. All that the Courts can do is to register the factum of such accessions. (iv)The properties in question were properties over which the Rulers had absolute right of disposition at the date of the grants. The grants were absolute in character and would under any civilised system of law pass an absolute and indefeasible title to the grantees. Assuming (but not deciding) that they were defeasible at the were will of the sovereign the fact remained that 417 they were neither resumed by the Former Rulers nor confiscated by the Dominion of India as an act of State and up to the 26th of January 1950 the right and title of the petitioners to continue in possession was good. The Constitution by reason of the authority derived from and conferred by the people of India destroyed all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State in the present case was seeking to uphold. The Dominion of India and all those who were invited there sat in the Constituent Assembly not as conquerors and conquered not as those who ceded and as those who absorbed but as the sovereign peoples of India free democratic equals. Every vestige of sovereignty was abandoned by the Dominion of India and the States and surrendered to the peoples of the land who framed the new Constitution of India. (v) Under article 5 of the Constitution all the residents of the then Indian States including the Rulers and people of Sarila and Charkhari viz. those who made the grants and those who received them and those who were seeking to make the confiscation as an act of State became citizens of India. (vi) No sovereign can exercise an act of State against its own subjects and an act of State can never be exercised against one who has always been a citizen from the beginning in territory which has from its inception belonged to the State seeking to exercise that right. Case law reviewed.

98 of 1956. Petition under Article 32 of the Constitution of India for enforcement of fundamental rights. N. C. Chatterjee and section C. Majumdar for the petitioner. P. 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 article 32 of the Constitution raises the question of the constitutionality of section 178 A inserted in the Sea Customs Act (VIII of 1878) by section 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 article 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 none 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 not remember the names and address of the parties from whom the local purchases were made nor did he have in his possession any documents covering 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 not 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 notice 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 control licence. It is also stated that if the goods were not 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. section 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 committed in contravention of section 86 of the Sea Customs Act attracting a punishment under section 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 petitioner 's 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 containing 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 correspondence 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 comprehensive letter containing 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 not 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 notice; On July 1 1955 Messrs. section K. Sawday & Company wrote a further letter on behalf of the petitioner reiterating their objections and showing why action should not 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 143 1114 dated July 22 1955. It is unnecessary for the present to elaborate the contents of these letters or to refer to the statement enclosed therewith from M/s. Ratilal Amritlal Bombay. The Collector of Customs thereupon after considering the entire matter placed before him passed an order dated September 12 1955 which was dispatched on November 5 1955 containing an elaborate discussion of the various facts and circumstances and finally concluding that since the petitioner had failed to discharge the onus under section 178 A of the Sea Customs Act in respect of the diamonds seized on May 4 1955 orders had been passed confiscating the same under sections 167 (8) and 167 (39) of the Sea Customs Act and that the confiscation would be absolute in terms of the provisions of sections 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 contrary 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 not supported by facts. On account of these and other reasons the Collector was of the opinion that the presumption under section 178 A had not 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 contained information as to the court fee stamps etc. which would have to be affixed. Without availing himself of that remedy the petitioner has come up to this Court by way of an application for a writ under article 32 of the Constitution. Though Mr. Chatterjee faintly argued that the provisions of article 19(1)(f) and (g) and article 31 of the Constitution had been violated he did not seriously press those contentions. The main point of the attack was centered on the contention that section 178 A was violative of the principles of equal protection of the laws guaranteed under article 14 of the Constitution. Before we discuss the validity of section 178 A it would be useful to consider 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 enables the Central Government by notification in the official Gazette to prohibit or restrict importation or exportation of goods into or out of India and section 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 consumption or warehousing by delivering to the Customs collector a bill of entry containing particulars which shall correspond with the particulars given of the same goods in the manifest of the ship (section 86). This is intended to give an idea to the Customs collector 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 (section 87). Clearance of the goods after the payment of such duty is provided in section 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 section 167 of the same Chapter contains three columns in a schedule the first of which mentions the offence the second which does not 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 column 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 court 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 conviction before a Magistrate whereas most of the others concern penalties imposed by the Customs authorities. This distinction will be important when referring to section 182. We are in this 1116 case concerned with entries Nos. 8 and 39. The penalty of confiscation is provided in the third column of entry No. 8 if any goods the importation or exportation of which is prohibited or restricted are imported contrary to such prohibition or restriction. It lays down that in addition to the confiscation of the goods the persons concerned shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees. This Court has held that the minimum is the alternative: see Maqbool Hussain vs The State of Bombay(1). Entry No. 39 also provides for a penalty not 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 come under this category. Though the word 'smuggling ' is not defined in the Act it must be understood as having the ordinary dictionary meaning namely carrying of goods clandestinely into a country. 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 section 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 collector. 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 section 172 which is to the following effect: (1) ; 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 noticed 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 confiscation 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 section 178 A comes 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 not smuggled goods shall be on the person from whose possession the goods were seized. (2)This section shall apply to gold gold manufactures diamonds and other precious stones cigarettes and cosmetics and any other goods which the Central Government may by notification in the Official Gazette specify in this behalf. " The presumption under section 178 A is equally applicable to seizure as a result of a search warrant under section 172 or seizure made under section 178. How the things seized are to be dealt with can be seen from section 179 and section 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 sections 172 and 178 except in cases falling under entries Nos. 26 72 and 74 to 76 of section 167 the confiscation 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 confiscation 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 confiscation is still made under section 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 confiscation 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 no appeal 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 confiscated and the Act is a complete Code in itself affording redress and relief in case of illegal or unjustified orders. The genesis of section 178 A may now be considered. The Central Government had appointed a commission known as the Taxation Enquiry Commission which by its report recommended the adoption of the principles underlying section 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 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 concerned. 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 section 178 A has been enacted. Section 178 A applies to diamonds and other precious stones and there has been no dispute 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 not smuggled goods has been cast by this section on the persons from whose possession the goods are seized. No doubt the content and import of the section are very wide. It applies not 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 not smuggled articles. This is no doubt a very heavy and onerous duty cast on an innocent possessor who for aught one knows may have bona fide paid adequate consideration 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 contents of the somewhat lengthy petition under article 32 of the Constitution does not show how the impugned section offends article 14 and no distinct 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 norm 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 come 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 article 14 of the Constitution. A large number of cases have been cited at the Bar in support of the respective contentions of the parties. The true nature scope and effect of article 14 of the Constitution have been explained by different constitutional Benches of this Court in a number of cases namely Chiranjit Lal Chowdhury vs The Union of India and Others(1) The State of Bombay and Another vs F. N. Balsara(2) The State of West Bengal vs Anwar Ali Sarkar(3) Kathi Raning Rawat vs The State of Saurashtra(4) Lachmandas Kewalram Ahua and another vs The State of Bombay (5) Syed Qasim Razvi vs The State of Hyderabad and Others(6) Habeeb Mohammad vs The State of Hyderabad(6) and V. M. Syed Mohammed and Company vs The State of Andhra(7) but it will not 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 vs The State of Bihar(9) in the following terms: "It is now well established that while article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order however to pass the test of per omissible classification two conditions must be fulfilled namely (1) that the classification must be founded on an intelligible differential which distinguishes persons or things that (1) ; (2) ; (3) ; (4) ; (5) ; (6) (7) ; (8) ; (9) ; at p. 1048 1049. 1121 are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved 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 consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not 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 vs Shri B. M. Desai (1) and in A. Thangal Kunju Musaliar vs 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 N. McFerland vs American Sugar Refining Co. (3) W. D. Manley vs State of Georgia (4) and Tot vs 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 construction of the equal protection clause of our Constitution. The contentions urged by Mr. Chatterjee as to the unconstitutionality of section 178 A of the will therefore have to be tested in the light of the principles laid down by this Court in Budhan Chowdhury 's case (supra). A cursory perusal of section 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 section (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) 898 899. (2) [1955] 2 S C.R. 1996 1229. (3) ; ; (4) (1929) 279 U.S.I; ; (5) ; 144 1122 smuggled goods. It is only those goods which answer the threefold description that come 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 not hit by article 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 no doubt whatever that section 178 A does not offend article 14 of the Constitution and this petition is therefore to be dismissed with costs. Petition dismissed.

Section 178 A of the Sea Customs Act which places the burden of proving that any of the goods mentioned in the section and reasonably believed to be smuggled are not really so on the person from whose possession they are seized is not discriminative in character and does not violate equal protection of law guaranteed by article 14 Of the Constitution. Budhan Chaudhury and Others vs The State of Bihar (1955) I S.C.R. 1045 applied. Purshottam Govindji Halai vs Shri B. M. Desai and A. Thangal Kunju Musaliar vs M. Venkitachalam Potti and another (1955) 2 S.C.R. ii96 referred to. 1111 William N. McFeyland vs American Sugar Refining Co. ; W. D. Manley vs State of Georgia (1929) 279 U.S. I and Tot vs United States held inapplicable. Consequently in a case where the Collector of Customs on the failure of a person from whose possession certain diamond pieces were seized to prove that they were not smuggled goods but were legally imported into India confiscated the diamonds under sections 167(8) and 167(39) Of the Sea Customs Act no violation of the fundamental right conferred by article 14 Of the Constitution occurred.

Civil Appeal No. 69 of 1952. Appeal from the Judgment and Decree dated the 27th April 1950 of the High Court of Judicature at Calcutta (Sen & Chunder JJ.) in Appeal from Original Decree No. 19 of 1948 arising out of the Judgment and Decree dated the 27th September 1947 of the Court of the Subordinate Judge Third Court of Zillah 24Parganas at Alipore in Miscellaneous Judicial Case No. 31 of 1947. Sukumar Ghose for the appellants. Bankim Chandra Banerji and R. R. Biswas for respondents Nos. 1 2 8 & 9. 1954. April 26. The Judgment of the Court was delivered by BAAGWATI J. This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta reversing the order of the Third Subordinate Judge Alipore dismissing the respondents applications for re restoration of certain immovable properties. One Romesh Chandra Acharji Choudhury (deceased) predecessor in interest of the appellants borrowed on the 16th August 1918 Rs. 1 60 000 and Rs 73 000 from the predecessors in interest of the respondents under two deeds of mortgage. There being default in payment of the mortgage amounts a suit to realise the mortgage securities was filed on the 10th March 1926 152 in the Third Subordinate Judge 's Court Alipore. A preliminary mortgage decree for Rs. 4 21 851.1 6 was passed on the 4th April 1929 and a decree absolute for sale was passed on the 13th September 1929. The mortgaged properties were put up for sale in execution proceedings in 1930 and the decree holders purchased the properties at auction sales on the 29th February 1932 and the 23rd April 1935 for an aggregate amount of Rs. 2 35 200. These sales were duly confirmed and the auction purchasers took delivery of possession of different items of property on different dates between the 25th June 1933 and the 9th March 1936. The aecree holders obtained on the 13th December 1937 a personal decree under Order XXXIV rule 6 of the Civil Procedure Code for the balance due to them viz. Rs 3 30 903. This personal decree was also executed and some properties of the mortgagors were purchased by the decree holders on the 8th August 1939 for Rs. 3 899 and delivery of possession of these properties was duly given to them on the 6th July 1940. Kshitish Chandra Acharji Choudhury since deceased the predecessor in interest of the appellants Nos. 1 to 3 and Jyotish Chandra Acharya Choudhury the appellant No. 4 sons of the mortgagor filed on the 9th December 1940 a petition under section 36 of the Bengal Money Lenders Act (Act X of 1940) for reopening the mortgage decree and the personal decree. By an order dated the 25th August 1941 the learned Subordinate Judge reopened the decrees and on the 10th May 1943 passed a new decree for a sum of Rs. 3 76 324 12 4. The said sum was directed to be paid by the judgment debtors to the decree holders in fifteen equal annual instalments. He also directed the restoration of the properties purchased by the decree holders. The present respondents preferred on the 19th June 1943 an appeal to the High Court of Judicature at Calcutta and cross objections were filed by the said Kshitish Chandra Acharji Choudhury and appellant No. 4. By their judgment and decree dated the 29th June 1944 the High Court affirmed the decree of the Court below with some substantial variations and 153 passed a new decree in favour of the mortgagors. The mortgagees were ordered to put the mortgagors in possession of all the properties they had purchased in ' execution of the reopened decrees and render to them an account of the mesne profits of those properties from the 15th September 1941 till they restored or relinquished possession to the mortgagors of the collection papers of those properties. The sum of Rs. 3 76 324 12 6 was declared to be due by the mortgagors to the mortgagees and the mortgagors were to pay the same in twenty equal annual instalments the first of such instalments to be paid on or before the first anniversary of the date on which the mortgagees restored or relinquished possession of all the properties purchased by them in execution to the mortgagors or of the date on which they delivered to the mortgagors the collection papers as therein mentioned whichever date was later. The mortgagors were to pay to the mortgagees the successive annual instalments on or before the same date of the succeeding years on which the first instalment became payable and they were also to pay the annual revenue of the aforesaid properties that would become payable after they were restored to possession kist by kist as they fell due at least three days before the kist dates and file the challans in the Court below in proof of payment within ten days of the payments. The road public works and education cesses and rent due to the superior landlords were also to be paid similarly by the mortgagors and in default of payment of any one instalment or cesses or rent within the time prescribed the mortgagors were entitled to get back possession of the said properties from the mortgagors and in that event the sum of Rs. 2 39 099 at which the mortgagees had purchased those properties would be balanced against the amount then due to them under the decree. If thereafter any amount still remained due to the mortgagees under the decree they were entitled to apply in the Court below for a decree for the balance under Order XXXIV rule 6 of the Civil Procedure Code. An enquiry was ordered into the mesne profits for the period between the 15th September 1941 till the restoration of possession to the mortgagors and 20 154 the mortgagors were at liberty to set off the amount that might be decreed in their favour for mesne profits towards the instalment that fell due in the year in which the amount was declared by the Court below and the next succeeding years till the said amount was wiped off. Possession was delivered to the mortgagors on the 5th October 1944. The delivery of the collection papers was however given on the 28th March 1945. The mortgagors were alleged to have committed default in the payment of the second instalment which was due in any event on the 28th March 1947 and also in the payment of the revenue kist and the cesses which were due on or about that date. The mortgagees therefore made applications in the Court of the Third Subordinate Judge at Alipore on the 6th September 1946 and the 18th April 1947 asking for re restoration of the properties. Several defaults were alleged but only two defaults were pressed one in regard to the payment of the second instalment which was due on the 28th March 1947 and the other in regard to the payment of the revenue and the cesses of the Noakhali properties due also on the same date. The learned Subordinate Judge rejected these applications by his order dated the 27th September 1947 holding that there was no default in the payment of revenue and cess and that the default in payment of the second instalment though it had accrued was due to the wrongful acts of the decree holders themselves and that the decree holders were not entitled to take advantage of their own wrong. An appeal was preferred to the High Court of Judicature at Calcutta. The appeal was allowed on the 27th April 1950. The High Court held that a default had been committed by the mortgagors and ordered rerestoration of the properties. This appeal has been filed against that order of the High Court with certificate under article 133(1)(a) of the Constitution. Shri section Ghosh appearing for the appellants before us urged that the bulk of the properties which were the subject matter of the new decree had gone to Pakistan after the 26th January 1950 being situated in East Pakistan and the High Court at Calcutta had 155 after the 26th January. 1950 no jurisdiction and power to determine the appeal and to pass an order relating to the immovable properties situated in foreign territories. He further urged that the order of rerestoration of the properties was not appealable and that in any event no default had been committed by the mortgagors. In support of his first contention reliance was placed on paragraph 4(2) of the Indian Independence (Legal Proceedings) Order 1947 which ran as under: "4. Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act 1947. . . . (2) Any appeal or application for revision in respect of any proceedings so pending in any such Court shall lie in the Court which would have appellate or as the case may be revisional jurisdiction over that Court if the proceedings were instituted in that Court after the appointed day;. . " The applications for re restoration of the properties were pending before the Third Subordinate Judge at Alipore on the 15th August. 1947 and they were saved by the provisions of paragraph 4(1) which provided for the continuance in the same Court of these proceedings as if the said Act that is Indian Independence Act 1947 had not been passed. But he contended that paragraph 4(2) did not save the appeal which had been filed by the mortgagees after the 15th August 1947. We cannot accept this contention of the appellant. Paragraph 4(2) provided for appeals or applications for revision in respect of proceedings which were pending in the Courts after the 15th August 1947 and laid down that these proceedings by way of appeal or applications for revision could lie in the Courts which would have appellate or revisional jurisdiction over that Court if the proceedings were instituted in that Court after the 15th August 1947. It was contended that for the purpose of this provision the words "if the proceedings were instituted in that Court" should be read as meaning "if the proceedings could have been 156 instituted in that Court. " This certainly could not be the meaning because by reason of the transfer of the territories no proceedings in respect of the properties which had gone to Pakistan ' could ever have been maintained after the 15th August 1947 in the Courts concerned. The only construction which could be put upon this provision was that the Court having appellate or revisional jurisdiction over that Court would have such jurisdiction as if the proceedings had been instituted in that Court after the 15th August 1947. For the purpose of the appellate or the revisional jurisdiction that Court had to be treated as the Court in which the proceedings could and should have been instituted and it goes without saying that if the pro ceedings could be treated as having been properly instituted in that Court the only Court to which the appeal or the application for revision could lie was the Court which then had appellate or revisional jurisdiction over that Court. In the case before us no proceedings could have been instituted in the Third Subordinate Judge 's Court at Alipore in respect of the properties which had gone to East Pakistan after the 15th August 1947. But by reason of the fact that these proceedings were pending in that Court on the 15th August 1947 the High Court of Calcutta which had appellate or revisional jurisdiction over that Court was prescribed to be the Court in which the appeal or the application for revision in respect of such procedings would lie because that Court that is the Third Subordinate Judge 's Court at Alipore was treated as the Court in which such proceedings could and should have been instituted after the 15th August 1947. Learned counsel for the respondents drew our attention to the case of Tirlok Nath vs Moti Ram and Others(1). In that case a suit for possession of land at place X was filed in Court at B in 1943. On the 15th August 1947 the suit was pending before the Court at B which dismissed the suit in 1948. An appeal from the decision was filed in the East Punjab High Court as the place B was included in the East Punjab. On (1) A.I.R. 1050 East Punjab I49. 157 objection regarding jurisdiction of the High Court being taken on the around that the land in suit was at A now included in Pakistan the High Court held that the suit being pending at place B on 15th August 1947 appeal from the decision of that Court lay to the East Punjab High Court and not to Lahore High Court under paragraph 4(2) of the Indian Independence (Legal Proceedings) Order 1947. This decision is on all fours with the case before us and we are of the opinion that the contention urged on behalf of the appellants is untenable. The next contention of the appellants is equally untenable. The Calcutta High Court considered these applications as applications in the suit for a special remedy given under a special law and held that the rules of the Code of Civil Procedure applied and an appeal lay against the orders because they were decrees within the definition of section 2(2) of the Civil Procedure Code. We cannot accept this reasoning. These applications were in truth and in substance applications for execution of the new decrees which had been passed in favour of the mortgagors by the High Court on the 29th June 1944. The only thing competent to the mortgagees under the terms of the new decree was to apply for execution of the decrees on default committed by the mortgagors and the applications made by the mortgagees in the Court of the Third Subordinate Judge at Alipore were really applications for execution of the decree though not couched in the proper form and could be treated as such. If they were treated as such it is clear that the orders passed on such applications for execution were appealable and no objection could be sustained on the ground that no appeals law against these orders. Treating these applications therefore as applications for execution we see no substance in this contention of the appellants. if the matter is approached in this way no objection could be urged by the appellants against the decision of the High Court. The executing Court could not go behind the decree and it is clear on the facts that default was committed by the mortgagors both in 158 regard to the payment of the revenue and the cess as also the second instalment under the new decree. The contention which was therefore urged on behalf of the appellants that there was no default committed by the mortgagors also could not be sustained. The High Court of Judicature at Calcutta was therefore rightly seized of the appeal and it had jurisdiction to decide whether the mortgagors had committed default in carrying out the terms of the new decree. The appeal being a mere rehearing the appellate Court was entitled to review the judgment of the trial Judge and declare that it was wrong and that the decree holder was entitled to re restoration. The question whether he would be able to obtain possession of the immovable properties in fact was foreign to such an enquiry. By appropriate proceedings in another jurisdiction he may be able to do so; but this difficulty could not be a deterrent to the High Court passing the necessary orders for re restoration of the properties. The appeal therefore fails and must stand dismissed. There will be no order as to costs.

4(2) of the Indian Independence (Legal Proceedings) Order 1947 runs as under: " 4. Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act 1947. . . (2)Any appeal or application for revision in respect of any proceedings so pending in any such Court shall lie in the Court which would have appellate or as the case may be revisional jurisdiction over. that Court if the proceedings were instituted in that Court after the appointed day. . . An application by the decree holder for re restoration of properties by reason of the default made by the judgment debtor after a new decree had been passed under section 36 of the Bengal Money Lenders Act 1940 was pending in the Court of the Subordinate Judge Alipore on 15th August 1947 when the bulk of the properties which were the subject matter of the new decree went to East Pakistan as being situated there. The application was saved by the provisions of para. 4(1) which provided for the continuance in the same Court of these proceedings as if the said Act (Indian Independence Act) had not been passed. It was con tended that the appeal to the High Court filed by the decreebolder was not saved by para. 4(2) as it was filed after 15th August 1947 as the words "if the proceedings were instituted in this Court" in the said para. should mean "if the proceedings could have been instituted in that Court. " Held that the appeal from the Court of the Subordinate Judge was competent to the Calcutta. High Court because the only construction that could be put upon this provision was that the Court having appellate or revisional jurisdiction over that Court would 151 have such jurisdiction as if the proceedings had been instituted in that Court after the 15th August 1947. An application by the decree holder was in substance an application for the execution of the new decree which had been passed under section 36 of the Bengal Money Lenders Act 1940. Orders passed on such applications for execution would be clearly appealable. The reasoning of the High Court that such an application was an application in the suit for a special remedy given under a special law and that the rules of Civil Procedure Code applied and an appeal lay against such orders because they were deerees within the definition of section 2(2) of the Civil Procedure Code was not sustainable and could not be accepted. Tirlok Nath vs Moti Ram and Others (A.I.R. 1950 East Punjab 149) referred to.

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. K. section Krishnaswami Iyengar (K. section Venkataranga Iyengar and M. section K. Iyengar with him) for the appellant. Dr. Bakshi Tek Chand (R. Ganapathy Iyer and M. section K. Sastri with him) for respondent No. 1. C. 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 nominated 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 nominated candidates withdrew their candidature within the prescribed period and the actual contest 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 counted on the 26th of January following. As a result of the counting 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 notice 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 corrupt 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 253 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 could not 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 : (1) Has there been infringement of the rules relating to the time of commencement 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 not really commence until about half an hour later as alleged in paragraph 4 of the petition ? (5) 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 commit the corrupt practice referred to in it ? (6) 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 ? (11) 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 connection 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 254 (12) Has the election of the 1st respondent been procured and induced by the said corrupt practices with the result that the election has been materially affected ? (14) Would the petitioner have obtained a majority of votes had it not been for the aforesaid corrupt 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 nounced by the Tribunal as mentioned above. This application was heard by a Division Bench consisting 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 come 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 contention 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 not act either without jurisdiction or in excess of its authority nor was there any error apparent on the face of the proceedings which could justify the issuing of a writ to quash the same. It is argued by the learned counsel 255 that what the High Court has chosen to describe as errors of jurisdiction are really not matters which affect the competency of the Tribunal to enter or adjudicate upon the matter in controversy 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 consideration upon the contentions raised in this appeal. The first is on what grounds could 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 Court 's findings on that point proper findings which should not 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 now said an order of certiorari could issue but such differences of opinion are unavoidable in judge made law which has developed through a long course of years. As is well known the issue of the prerogative writs within which certiorari is included had their origin in England in the King 's 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 King 's dominions. In India during the British days ' the three chartered High Courts of Calcutta Bombay and Madras were alone competent to issue (1) Vide Ryots of Garbandho v Zemindar of Parlkime 70 I A. 129 at page 140 256 writs and that too within specified limits and the power was not exercisable by the other High Courts at all. " In that situation " as this Court observed in Election Commission India vs 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 conferred 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 country in somewhat the same position as the Court of King 's 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 corpus mandamus quo warranto prohibition and certiorari as may be 'considered 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 not now look back to the early history or the procedural technicalities of these writs in English law nor 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 at 1150 257 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 contrast with what are purely ministerial acts. Atkin L. J. thus summed up the law on this point in Rex vs 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 controlling Jurisdiction of the King 's Bench Division exercised in these writs." The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi judicial Tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior Court does not exercise the powers of an appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not 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 not 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 vs Nat.Bell Liquors Limited (3). One is the area of inferior jurisdiction and the qualifications and conditions of its exercise ; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could 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. (2) Vide Per Lord Cairns in Walshall 's Overseers vs London and North Western Railway Co. 4 A.C. 30 39. (3) [1922) 2 A.C. 128 156 33 258 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 not be legally constituted or suffer from certain disability by reason of extraneous circumstances(1). When the jurisdiction of the Court depends upon the existence of some collateral fact it is well settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess (2). A Tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular 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 corrected by certiorari but not 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 vs Northumberland Compensation Appellate Tribunal(3). The Lord Justice says: It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re hearing of the issue raised in the proceedings. It exists to correct 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 (I) Vide Halsbury 2nd edition Vol.IX page 88o (2) Vide Banbury vs Fuller 9 Exch.III ; R. vs Income Tax Special Purposes Commissioners (3) [19521 1 K.B. 338 at 357.(4) Vide Veerappa Pillai v Ramon & Raman Ltd. [1952] S.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 not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness 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 now 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 connection that the Tribunal had no jurisdiction to extend the period of limitation for the presentation of the election petition and it had no authority also to allow the petitioner 's 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 not definitely pleaded and put in issue and not only did it set aside the election of respondent No. 1 but declared the petitioner to have been duly elected although there was no definite finding and no proper materials for arriving at 260 a finding that the petitioner could secure more votes than respondent No. 1 but for the corrupt 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 commencement of polling at one of the polling booths much later than the scheduled time the respondent No. 1 's 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 consideration 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 petitioner 's 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 condone the delay if an election petition is presented after the period prescribed by the rules nor is it competent 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 corrupt practices set out in the list annexed to the petition as contemplated by section 83(3) of the Act. Assuming though not admitting that the propositions of law enunciated by the learned Judges are correct we do not think that they at all arise for consideration 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 261 could 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 not later than 14 days from the date of publication of the notice 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 not disputed that this notice 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 not later than 14 days from that date. The High Court seems to think that in computing 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 construction. Dr. Tek Chand appearing for the respondent No. 1 plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's entertaining the election petition after the prescribed period in the present case. Coming now to the question of amendment the High Court after an elaborate discussion of the various provisions of the Act came to the conclusion that the Election Tribunal which is a special Court endowed with special jurisdiction has no general 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 contemplated 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 262 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 not 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 petitioner 's application for amendment becomes altogether immaterial and has absolutely no bearing 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 not covered by the pleadings of the parties and not specifically put in issue. The other act in excess of its authority committed 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 not find and had no materials to find that the petitioner could secure more votes than the respondent No. 1. On the first point the learned Judges have referred only to the allegation of corrupt 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 commit the corrupt practice referred to in it?" The Tribunal found that the hiring of the bus by respondent No. 1 was not proved but it was proved that the first respondent did procure the service bus of Ahmed Jan who was acting as his agent for conveying his voters. The Tribunal further found that even if Ahmed Jan was not an agent of the first respondent as he was actually carrying the voters of the latter 263 from Gowrapur to Sollapur in a bus which bore the first respondent 's election symbol with his knowledge and connivance the first respondent must be held guilty of the corrupt practice in question. The High Court says that as it was nowhere alleged in the petition that Ahmed Jan was an agent of respondent No. I or that he was carrving the voters with his connivance the Tribunal must be held to have acted 'in excess of its jurisdiction in going into matters which were not definitely pleaded. We do not 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 committed major corrupt practices one of which was the hiring or procuring of Ahmed Jan 's motor bus. The Tribunal found on a consideration of the evidence adduced in the case that the motor bus was procured by the first respondent and his conduct in this respect as disclosed by the evidence showed that his voters were being carried by Ahmed Jan with his knowledge and connivance. It may be pointed out that in paragraph 9 of the petition the petitioner clearly stated that the corrupt practices were committed by respondent No. 1 or his agents or by several persons with his knowledge and connivance. 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 not 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 no materials to come to the conclusion that he could have secured more votes than respondent No. 1 but for the corrupt practices committed by the latter seems to us to be without substance. It appears that the learned Judges did not properly advert to the findings arrived at on this point by the Election Tribunal. The petitioner it may be noted 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 could 264 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 corrupt practice of the first respondent the latter 's majority by 34 votes would be completely 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 not been for the aforesaid corrupt 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 now come 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 commenced on the date of election. The Tribunal has held that the time fixed by notification was 8 A.M. in the morning but the polling did not commence 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 not commence at the scheduled time; but the exact number of these persons is not known and there could not 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 265 that he could have secured more votes than respondent No. 1 obviously this would have been an error apparent on the face of the record as such conclusion would rest merely on a surmise and nothing else. The Tribunal however discussed this matter only in connection 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 competent to do under the provisions of the Act and in doing so it could take into consideration 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 corrupt ' 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 not 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 not amount to respondent No. 1 's taking assistance from him. This does not seem to us to be a proper view to take. There was allegation by the appellant of the respondent No. 1 's 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 conclusion that there )lad been an assistance taken from a Government 266 servant which would come 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 no evidence and rests on mere speculation. We do not think that we can accept this view as correct. 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 not less than the sum of Rs. 1 250 on this account which was not included in the list of expenses. We are unable to say that this finding rests on no evidence. As regards the omission to include hiring charges the High Court has observed that the Tribunal did not 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 Tribunal 's 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 connection to paragraph 29(f) of the 267 Tribunal 's 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 nor do they appear on the face of the record. An appellate Court might have on a review of this evidence come to a different conclusion but these are not 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. We make no order as to costs of this appeal. Appeal allowed.

The issue of prerogative writs in the nature of habeas corpus mandamus quo warrantto prohibition and certiorari had their origin in England in the King 's prerogative power of superintendence over the due observance of law by his officials and Tribunals. The powers of the Supreme Court as well as of all the High Courts in India under articles 32 and 226 of the Constitution respectively are very wide. The Supreme Court as well as the High Courts in India can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as the broad and fundamental principles of English law regulating the exercise of jurisdiction in the matter of granting such writs are adhered to. A writ of certiorari can be availed of only to remove or adjudicate upon the validity of judicial acts which expression includes the exercise of quasi judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions but does not include purely ministerial acts. In granting a writ of certiorari the superior Court does not exercise the power of an appellate Tribunal the control exercised through it being merely in a supervisory and not appellate capacity. It does not review or reweigh the evidence upon which the determination of the inferior Court is based nor does it substitute its own views for those of the inferior Tribunal. A writ of certiorari is generally granted when a Court has acted without or in excess of its jurisdiction. The want of jurisdiction may &rise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or may suffer from a certain disability by reason of extraneous circumstances. If the jurisdiction of the Court depends upon the existence of some collateral fact the Court cannot by a wrong decision of the fact assume jurisdiction which it would not otherwise possess. A writ of certiorari is available in those cases where a Tribunal though competent to enter upon an enquiry acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. 251 A mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceeding based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction when shown can be so corrected. Held that in view of the facts and circumstances of the case the High Court was not right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case. Ryots of Garabandho vs Zemindar of Parlakimedi (70 I.A. 129 140); Election Commission India vs Saka Venkata Subba Rao ([1953] S.C.R. 1144 1150). Rex vs Electricity Commissioners ([1924] 1 K.B. 171 205); Walshall 's Overseers vs London and Northern Western Railway Co. (4 A.C. 30 39); King vs Nat Bell Liquors Limited ([19221 2 A.C. 128 156); Banbury vs Fuller ; ; Queen vs Commissioners for Special Purposes of the Income Tax ; Rex vs Northumberland Compensation Appellate Tribunal ([1952] 1 K.B. 338 357); Veerappa Pillai vs Raman & Raman Ltd. ([19521 S.C.R. 583 594); and Halsbury Vol. IX 2nd edition page 880 referred to.

l Appeal No. 61 of 1951. Appeal from the Judgment and Decree dated the 10th November 1944. of the High Court of Judicature at Lahore in Civil Regular First Appeal No. 259 of 1942 arising out of the Judgment and Decree dated the 29th July 1942 of the Court of the Extra Assistant Settlement Officer and Assistant Collector of the 61 First Grade as Senior Sub Judge Gurgaon in Suit No. 35 of 1940 41. Dr. Bakshi Tek Chand (Ram Nath Chadha and Ganpat Rai with him) for the appellants. Naunit Lal for respondents Nos. 1 3 7 to 11 and 13 to 19. April 21. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal is brought against the judgment and decree dated November 10 1944 of the Lahore High Court (Sir Trevor Harries C. J. and Mr. Justice Mahajan the present Chief Justice of this Court) reversing the judgment and decree of the Assist ant Collector First Grade Gurgaon as Senior Subordinate Judge and dismissing the plaintiffs appellants ' suit. Dalmir Dilmor and Chhinga were three brothers and Amir Khan and Sharif Khan were the two collaterals. Alif Khan was the son of Amir Khan. The present dispute is between the descendants of the five branches of the family. The suit was brought by the descendants of Dalmir against the descendants of Dilmor Cbhinga Alif Khan and Sharif Khan. To this suit were also impleaded as defendants some of the descendants of Dalmir. The plaintiffs claimed a declaration that they along with defendants Nos. 17 to 19 are full owners in possession of 819 Bighas 19 Biswas land situate in village Manota Tehsil Ferozepore Jhirka. in the Gurgaon District that the defendants Nos. I to 16 had no right to claim partition of that land and that they were entitled only to the produce of land measuring 140 Bighas 19 Biswas possessed by them without payment of land revenue. The aforesaid defendants it was alleged were bound by the terms embodied in the agreement dated September II 1861 in the Wajib ul arz of that Settlement and repeated in subsequent Settlements which debarred them from any right to. claim partition. Defendants Nos. I to 16 who are the contesting defendants pleaded in defence that the plaintiffs along with the pro forma defendants Nos. 17 to 19 were recorded in revenue 62 papers as owners of 1/5th share in the land in dispute while the contesting defendants were recorded as owners of the remaining 4/5th share and as such they were entitled to claim partition. The defendants denied that any agreement or condition in the Wajib ul arz restricting their right to partition was binding after the expiry of the term of the Settlement and contended that it could not operate as a bar to their claim to partition. The Assistant Collector trying the suit as a Civil Court under section 117 of the Punjab Land Revenue Act (Act XVII of 1887) decreed the claim. He held that the contesting defendants were entitled only to get produce of 140 Bighas and 19 Biswas of land in their possession without payment of land revenue and had no interest in the remaining land. This decree was reversed on appeal the High Court holding that the defendants are entitled to 4/5th share as proprietors that the original agreement repeated in subsequent Settlements was binding on the parties so long as the Settlements were in force that it ceased to have any effect after the expiry of the Settlements and that the renewal of its terms in the Settlement of 1938 39 was not binding as they were not agreed to by the contesting defendants. The learned Judges held that the judgment (D. 4) dated June 15 1893 of the Chief Court of Punjab inter parties which held that the prohibition of partition contained in the Wajib ul arz did not survive the expiry of the period of the Settlement was binding upon them. They took the view that the contesting defendants being. proprietors the right of partition was inherent in their right of ownership. As a result of these findings the suit was dismissed. We have heard Dr. Tek Chand learned counsel for the appellants in support of the appeal at length but we are of opinion that there is no force in the appeal. The parties are Meos and the land in dispute is situate in village Manota in Tehsil Ferozepore Jhirka in Gurgaon District. According to the Gazetteer of Gurgaon District (1910) the Meos owned nearly the whole of the Ferozepore Tehsil and various other villages in Gurgaon. They are divided into several sub tribes and these sub tribes possess a strong feeling of unity and the 63 power of corporate action. It was stated that " in the mutiny the members of each sub division generally acted together; and district officers are advised to keep themselves informed of the names and characters of the men who from time to time possess considerable influence over their fellow tribesmen." (P. 60). The documentary evidence regarding the title to the property in dispute ranges over a period of four Settlements each Settlement being for a period of thirty years. The first Settlement was made in 1839 42 the second in 1872 1879 the third in 1903 08 and the last in 1938 39 which is the current Settlement. The village was assessed to annual revenue of Rs. 323 for the period of 30 years from 1246 to 1275 Fasli (corresponding to 1839 1862 A.D.) which was made payable by Dalmir Lamberdar who is described as sole owner. The Settlement papers were however lost during the mutiny and after taking fresh measurements the settle : ment papers were completed. Alif Khan Dalmir and Dilmor signed what is called an agreement binding them by all conditions provisions and declarations made at the time of the Settlement (P. 12). It is common ground that the property was originally granted in 1822 A. D. to Dalmir by Nawab Ahmad Bakhsh Khan Rais of Ferozepore Jhirka. The grant is not in writing and there is no contemporaneous record which could throw any light on its terms. Dalmir claimed to be the sole grantee with full proprietary rights. A number of documents are attached to the Settlement record of 1863. They are important as showing how the property was dealt with by the Settlement authorities from time to time and the state of the revenue records. The earliest document on record appe ars to be an agreement dated September 28 186 1 which is incorporated in paragraph 18 of the Wajib ul arz of village Manota. It says that the tenure of the village is zamindari. Dalmir is entitled to profit and liable for loss in respect of the entire village. The other biswadars are owners of the produce of the land cultivated by them but they pay no revenue. This it is stated is the benefit they enjoy (P. 35 = D. II). This document is signed in token of verification by Dalmir Lamberdar 64 Dilmor Alif Khan Biswadar and Phusa Biswadar who ire described as proprietors. Phusa we are told is the alias of Chhinga. There is a report of Mr. John Lawrence (later Lord Lawrence) Settlement Officer referred to in the Gazetteer which says that the arrange ment then in vogue was that a few owners shared the profit and loss of the land revenue and the others were exempted from responsibility. Manota was one of the few villages which continued to follow the system (P. 179). Paragraph 2 of the Wajib ul arz which relates to the mode of partition after stating the area of the village as 837 Bighas and 9 Biswas says "When we the co sharers want to partition it we ourselves will do so of our accord in accordance with our shares shown in the Khewat papers or through the village Patwari in the presence of Panchayat of the brotherhood. The new abadi (cultivation of new land) will be made with the consent of all the biswadars. One biswdar is not competent to make a new abadi". D. 10). P. 4 is a statement showing apportionment of Jama (i.e. Khewat money) in the village. After stating that the Settlement of the village was made in the name of Dalmir sole owner and that he alone was entitled to profit and liable for loss it goes on to say that Alif Khan son of Amir and Phusa son of Chhinga and Dilmor having cultivated a specified area of land be. came owners of the produce of the land without payment of rent and also became entitled to profit and liable for loss. Paragraph 10 of the Wajibul arz contains an agreement about trees. It shows that the trees standing in the house or field of the owner belong to him and he is competent to plant and cut them. So far as the occupancy tenants are concerned the trees standing in their houses also belong to them as they cultivate land but Dalmir alone had the right to cut or sell them. These are all the material documents pertaining to the Settlement record of 1863. We now come to the Settlement record of is an important document. Paragraph I which deals with the history of the village is reproduced below: ' "Fifty two years ago in Sambat 1880 Dalmir Caste Meo Got Sogan along with Dilmor and Chhinga his real brothers took possession of the area of this village with the permission of Nawab Ahmed Bakhshi Khan Sahib. Rais of Ferozepore who granted him a Biswadari estate without payment of any Nazrana in lieu of the services rendered by him and made this desolate tract abad. He along with his brothers jointly remained in possession thereof and enjoyed profit and bore loss. After him Amir Khan became abad in the village and along with us proprietors remained in possession. Accordingly we the proprietors got his name entered as a Biswadar at the time of the Revised Settlement. After him Sharif Khan son of Ghariba who was also a collateral came to this village in Sambat 1916 and remained in possession along with us proprietors. Accordingly we got his name also recorded along with ours on the 14th September 1863. We have up to this day been joint owners. This village has never been partitioned. Shares are given in the Khewat papers. This document shows that although the name of Dalmir is mentioned as being the sole grantee by virtue of the services rendered by him to the Nawab, his two brothers also were in joint possession with him. Not only this but Amir Khan and Sharif Khan, who are both collaterals, also had joint possession of the village. They are all described as proprietors and their names are recorded as joint owners. The authenticity of this documentisbeyondquestion. It out sat the root of the theory of Dalmir being the sole owner. It is true that Dalmir was mentioned as the sole owner in D. 4 but the grant was treated by Dalmir himself as being the joint property of his two brothers and the two couaterals whether or not it was originally intended for the benefit of the family as understood in its widest sense. Paragraph 5 of the Wajib ul arz relating to the tenure of the village and the mode of payment of revenue 9 66 says that the village is bilijmal (joint) and that the sons of Dalmir shall continue to pay the Government revenue in respect of their own shares as well as the shares of the sons of his two brothers and the shares of the collaterals. The reason given is that no money is taken from the said co sharers on account of relationship. (P. 15). This statement is consistent only with joint ownership. Paragraph 7 of the Wajib ul arz also describes the tenure as Zamindari bilijmal and Repeats the statement that the other co sharers of Dalmir do not pay any rent or Jama in respect of the land cultivated by them on account of their relationship. No single sharer has the right to reclaim the Banjar area without the consent of all the proprietors (P. 19). This Wajib ul arz is verified by the proprietors, tenants, Bhandadars (a village servant to whom cultivation is allotted rent free), Kamins (menials) and the inhabitants of the village. It is admittedly signed by the ancestors of the parties (P. 22). The Khewat and the Khatauni (P. 31) prepared during the Settlement both record the five branches of the family as being in possession of a 1/5th share each. A similar entry is to be found in the Khatauni (D. 18). It appears that during the currency of this Settlement two suits for partition were filed in the Revenue Court but the partition was not allowed (P. 5). Coming to the Settlement of 1903 08 we find a Statement in clause 3 of the Wajib ul arz (D. 13) that the descendants of Dalmir alone could get the land partitioned in five equal shares but the descendants of the other four co sharers, who were, cultivating land without payment of revenue, owing to non rendition of account in respect of profit and loss of their respective shares, could not have the land partitioned. , Lastly we come to the Jamabandi of 1937 38 (P. 1). This shows that all the five branches were entered as being in possession of equal shares. Mehrab, grandson of Dalmir and one of the plaintiffs, who gave evidence as P. W. 5 admitted that defendants 67 Nos. I to 16 were shown as proprietors in the Jamabandi but he never raised any objection to it. He also admitted that Mehar Singh, grandson of Sharif Khan, sold his half share to Chhote Khan and Bhola, his coplaintiffs and that they did not challenge the same. We may now refer to the civil litigation which started in 1891. It arose upon the rejection of the applications for partition made by Alif Khan and Sharif Khan on September 24, 1890, by the Assistant Collector. Alif Khan filed a suit against the descendants of the three brothers and the descendants of Sharif Khan. In the plaint (D. 1) he claimed a declaration of 1/5th share of the entire village. The sons of Dalmir denied the claim. In their written statement (B. 2) they alleged that in previous proceedings they had deniedthe plaintiffs ' right to partition and that the defendants had been in adverse possession of the land and that the plaintiffs and others had been cultivating land as Bhandadars (village servants). The Subordinate Judge decreed the claim (D. 3). This decree was upheld by the Divisional Judge, but the judgment is not on record. In second appeal the Chief Court amended the decree by declaring that the plaintiff was entitled to 1/5th share in the village to be enjoyed subject to the qualifications and restrictions set forth in the Khewat and the Wajib ul arz which do not permit of his obtaining partition while the present Wajib ul arz was in force. This decree was made upon the admission made by the defendants in the course of the arguments. Paragraph 8 of the Wajib ul arz of 1877 (D. 12=p. 16) which was the subject of conflicting interpretation by the parties was interpreted by the Chief Court to mean that its effect was to prohibit general division among the co sharers while the Wajibul arz was still in force. They held that the five sons of Dalmir could separate their shares inter se but not the other co sharers. We are of opinion that this judgment which is inter partes finally set at rest the controversy between them by declaring that the parties were joint owners holding equal shares and constitutes res judicata. The judgment is also in conformity with the true effect of the documentary evidence on the 68 record. No doubt the name of Dalmir was entered. in some documents as the sole owner but that entry by itself is not conclusive and must be read in conjunction with the other entries in the Settlement record. Dalmir may have been the original grantee but his own conduct shows that he did not regard himself as absolute owner to the exclusion of his own brothers. Indeed according to the entry he even treated his collaterals on an equal footing. His description as sole owner in the circumstances carries no value. Whatever may have been the position at the time of the original grant, the subsequent conduct of the parties unmistakably shows that all the five branches were treated as owners in equal shares. Dalmir as the lamberdar was made responsible for the payment of the entire landrevenue. He was entitled to profit and was responsible for loss. The others were given less land and were exempted from payment of rent or revenue on account of relationship. This arrangement appears to have been fairly general in those days as appears from the report of Mr. (later Lord) Lawrence, Settlement Officer, re ferred to above. The arrangement was that ' a few owners shared the profit and loss of the land revenue assessment while the others were exempted. The Government was primarily interested in the payment of the revenue and they apparently found it more convenient to hold the head or the most influential member of the family as responsible for payment of the entire revenue leaving it to him to make such arrangement among his co sharers as he thought fit. In later Settlements the owners accepting responsibility for the payment of the land revenue did not find it profitable and the system gradually disappeared. Lord Lawrence remarks that at the third Settlement the number of villages which still continued the system was reduced to three and one of these was Manota in Ferozepore Tehsil (page 179). This accounts for Dalmir being called the sole owner and being made responsible for payment of Government revenue. By section 44 of the Punjab Land Revenue Act an entry made in the record of rights or in an annual record shall be presumed to be, true until the contrary 69 is proved. That entries in the Jamabandies fall within the purview of the record of rights under section 31 of the Act admits of no doubt. Section, 16 of the old Act (XXIII of 1871) laid down that entries in the record of rights made or authenticated at a regular Settlement shall be presumed to be true. We are satisfied that the materials on the record taken as a whole justify the view which has been taken by the High Court that the contesting defendants are joint owners and not mere cultivators who are not entitled to claim partition of the property. The judgment of the Chief Court also recognized the proprietary right of the defendants but qualified it by the declaration that so long as the Settlement was in force, they were not entitled to partition by reason of their agreement recorded in the Settlement papers. The Settlements of 1877 and 1908 09 have ceased to operate and the entry in the current Settlement of 1938 39 having been made under the orders of the Collector has no value when the contesting defendants did not agree to its being incorporated. The previous agreement was not one for perpetuity but for a limited period only and there is no reason in law why the prohibition against partition should be now enforced against the contesting defend. It has been held in a number of cases that the entry regarding agreement in a Wajib ul arz holds good during the period of the Settlement in which it is made and becomes inoperative when the Settlement has come to an end: Hira and others vs Muhamadi and Other8 (1); Allah Bakhsh and Others. Mirza Bashir uddin and Others (2) and Lieut. Chaudhri Chattar Singh vs Mt. Shugni and Another (3). We agree with the High Court in holding that partition is a right incident to the ownership of property and once the defendants are held. as co owners, their right to partition cannot be resisted. It was contended by Dr. Tek Chand that the appellants had acquired title by adverse possession over the defendants ' share for more than 56 years. This plea was raised in the plaint but evidently it w as not pressed (1)16 P.R. 1915 (P. 89). (2)1932 LIT.Rn. (3) A.I.R. 194 Lah. 70 for no issue was framed, nor any finding recorded by the trial Court. This point is not taken even in the grounds of appeal to this Court. The plea has no substance and was rightly rejected by the High Court on the ground that possession was under an arrangement between the co sharers. and no question of adverse possession could arise under the circumstances. We hold that there is no force in this appeal and dismiss it with costs. Appeal dismissed. 1905 ivil Appeal No. 195 of 1963. Appeal from the judgment and decree dated March 24, 1959 the Allahabad High Court in First Appeal No. 76/47. C.B. Agarwala and J.P. Goyal, for the. appellant. S.T. Desai, M.V. Goswami and B.C. Misra, for the respondent No. 1. M.V. Goswami and B.C. Misra, for respondents Nos. 2, 7. and 8. R.S. Gupta, S.S. Khanduja and Ganpat Rai, for respondent No. 9. The Judgment of the Court was delivered by Hidayatullah, J. This appeal arises from a suit filed by respondents 1 and 2 for declaration of their rights to the Phulpur Estate, for possession of properties belonging to the Estate and for mesne profits. The Phulpur Estate is situated in Allahabad District. One Rai Bahadur Rai Pratap Chand who died on January 23, 1901, was the Zamindar of this Estate. After his death, his widow Rani Gomti Bibi succeeded to the Estate. Rani Gomti Bibi was considerably influenced by her brother Gaya Prasad and priests belonging to some temples. In the years following the death of her husband, Rani Gomti Bibi made many endowments involving vast properties and in July 1920, the Court of Wards assumed charge of the Estate which the Rani was mismanaging. On February 21, 1923, the Rani adopted one Bindeshwari Prasad and then applied to the Court of Wards under section 37 of the U.P. Court of Wards Act for permission to make the adoption. The Collector (Mr. Knox) made an enquiry and on April 3, 1923. made a report exhibit 79 stating that the evidence tendered before him was so conflicting and unreliable that he had come to the conclusion that the authority of Rai Pratap Chand to adoption by his widow was not proved. He, therefore, recommended that Rani Gomti Bibi be declined permission to make the adoption and the Board of Revenue accordingly refused permission. Rani Gomti Bibi, however, executed a deed of adoption on November 6, 1924 in favour of Bindeshwari Prasad. A suit was filed by Parmeshwar Dayal (who was the first plaintiff in the persent suit) in 1925 against Rani Gomti Bibi, Bindeshwari Prasad and the Court of Wards challenging the adoption made by the Rani. On August 21, .1926, the suit was decreed, and it was held that the adoption was contrary to section 37 of the U.P. Court of Wards Act, 1912 and was thus 29 invalid inasmuch as permission to take the adoption was not obtained from the Court of Wards. Rani Gomti Bibi then applied to the Court of Wards for permission to adopt Bindeshwari Prasad 's brother 's son Dwarka Nath who is the present appellant. Fresh enquiries about the authority of the husband were made by the then Collector Mr. Thompson. He examined witnesses from a list filed by Gaya Prasad in the earlier suit of 1925. After considering the evidence, the Collector recommended grant of permission under section 37 of the U.P. Court of Wards Act and permission was accordingly granted by the Board of Revenue. On November 28, i929, the Rani adopted Dwarka Nath at Phulpur. Immediately after this adoption the Court of Wards released the Estate and assumed charge of it again on behalf of Dwarka Nath who was a minor. On january 5, 1943, Rani Gomti Bibi died and the present suit was filed by Parmeshwar Dayal and one Amarnath Agarwal to whom Parmeshwar Dayal had assigned 6/16th share in the Estate. This suit was decreed by the Civil Judge of Allahabad who held inter alia that Parmeshwar Dayal was the nearest reversioner of Rai Partap Chand and was entitled to succeed him, and further that the adoption was invalid as there was no proof of authority given by Rai Pratap Chand to Rani Gomti Bibi to make the adoption. The suit for declaration and possession was decreed with mesne profits amounting to Rs. 88,000 against Dwarka Nath and the Collector and the Court of Wards who was also made a party to the suit. Three appeals were filed against the judgment and by a common judgment dated March 24, 1959, the High Court affirmed the decree except in respect of mesne profits. The High Court certified the case as fit for appeal to his Court and the present appeal results. At the hearing, Mr. C.B. Agarwala stated on behalf of the appellant that he did not challenge that Parmeshwar Dayal was the nearest reversioner of Rai Pratap Chand. We are also not now concerned with the endowments. Mr. Agarwala contended that the findings about authority by Rai Pratap Chand to the adoption were erroneous an required to be reconsidered. In seeking reconsideration of this finding. Mr. Agarwala relied both on facts and law. In so far as his claim is to have the evidence reconsidered, it may be stated at once that it is not the practice of this Court to examine the evidence at large specially when the High Court and the Court below have drawn identical conclusion from it. In this case, the evidence about the authority, such as it was, was considered both by the Trial Judge and the High Court and they could not persuade themselves to accept it. Following the settled practice of this Court we declined to look into the evidence for the third time, but we permitted Mr. Agarwala to raise arguments of law and we shall deal with those arguments now. 30 Mr. Agarwala relies upon ss 37 and 53 of the U.P. Court of Wards Act, 1912 and contends that inasmuch as the Court of Wards made an enquiry into the truth of the allegations that Rai Pratap Chand had given express authority to Rani Gomti Bibi to make an adoption after his death and found in favour of authority, the conclusion of the Court of Wards to grant permission and the reasons for the decision cannot be questioned by a civil suit. This argument, in our judgment, cannot be accepted. Section 37, of the U.P. Court of Wards Act, in so far as it is material. reads as follows: 37. Disabilities of wards A ward shall not be competent (a). . . . . (b) to adopt without the consent in writing of the Court of Wards; (c) . . . . Provided first that the Court of Wards shall not withhold its consent under clause (b) . . if the adoption . . . is not contrary to the personal or special law applicable to the ward . . . ". lm0 The section obviously places a hurdle in the way of adoptions by the wards which must be removed before the adoption can be valid. The section affects the competence of the Wards to make the adoption and as the consent is a pre requisite any adoption made without such consent must be ineffective. The section however does not make the sanction of the Court of Wards to cure illegalities or breaches of the personal law. Nor does the sanction make up for incompetence arising under the personal law. It is obvious that if the adoption is void by reason of the personal law of the person adopting the consent of the Court of Wards cannot cure it. Nor would ' the consent take the place of the essential ceremonies or the religious observances where necessary. Those matters would have to be determined according to the personal law in civil court of competent jurisdiction. Mr. Agarwala argues that section 53 is a bar to any suit questioning the adoption made after the consent of the Court of Wards to the adoption has been given. That section cannot be used in this manner. It reads: "53. (i) The exercise of any discretion conferred on the State Government or the Court of Wards bythis Act shall not be questioned in any Civil Court. (2) . . . . The section merely puts the exercise of discretion by officers acting under the Court of Wards Act beyond question. Thus if the Court of Wards gave or refused its consent to a proposed adoption a suit would not He either to cancel the consent or to compel it. This section however does not go to the length that after the consent of the Court of Wards the adoption itself cannot be question 31 ed at all. There are no words in the section to this effect nor can such a result be implied. If the Court of Wards gave its concurrence to a proposed adoption the bar created by section 37 of the Act would be removed. but it would not make the adoption immune from attacks in a Civil Court on any ground on which adoptions are usually questioned there. Mr. Agarwala claims that the reasons for the consent of the Court of Wards are a part of the consent and are within section 53(1). This cannot be accepted. No doubt the Court of Wards reached its own conclusion for purpose of section 37 that Raj Pratap Chand had accorded authority to Rani Gomti Bibi to adopt a son. but if the adoption was questioned in a civil court. the civil court would not be ousted of its jurisdiction to decide the question. All that the civil court would be compelled hold would be that the requirements of the Court of Wards Act ds to the consent of the Court of Wards were fulfilled. In our judgment the legal argument that after the consent of the Court of Wards the Civil Court was incompetent to reconsider the question of the authority given by the husband cannot be accepted. In deciding the question of authority the High Court rejected the oral evidence led before it and affirmed the conclusions of the trial Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and found it unacceptable. The trial Judge pointed out that as lawyers were present when Rai Pratap Chand 'is alleged to have given authority to his widow and as it was also suggested that that fact should be recorded it was unbelievable if the statements were true that written authority would not have been prepared then and there. The High Court did not content itself with accepting the opinion of the trial Judge but discussed the evidence de novo and rejected it. The High Court pointed out that Rai Pratap Chand was only 30 years old at the time of his death and his wife was 25 years old and he could not have abandoned the hope of having an issue. Evidence shows that the writing was put off because it was not thought that Rai Pratap Chand was dying. The High Court also pointed out that Rani Gomti Bibi executed between November 24 1901 and August 19 1904 4 documents making different endowments. In none of these documents she mentioned that she had been asked by her husband to make them. The High Court pertinently pointed out that the oral evidence showed that the declaration of the authority to his wife and the oral will to make the endowments were made by Rai Pratap Chand at the same time and these facts would have figured as the reason for the endowments in these documents. Mr. Agarwala contends that even if the reasons for the endowments might be expected to be expressed. it is not logical to say that the deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not 32 recited in the documents one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue. Mr. Agarwala then seeks to use the statements made by Gaya Prasad and the witnesses before Mr. Thompson. In the High Court this claim was based upon sections 11 32 and 157 of the Indian Evidence Act. The High Court rejected these statements and declined to attach any value to them. Section 11 was not relied upon before us; but the other two sections were referred to in an effort to have that evidence read. Section 157 of the Indian Evidence Act lays down: "157. Former statements of witness may be proved to corroborate later testimony as to same fact: In order to corroborate the testimony of a w:mess any former statement made by such witness relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved. " Two circumstances which are alternative are conditions precedent to the proof of earlier statements trader this section. The first is that the statements must have been made at or about the time when a fact took place. The fact here is the authority said to have been given by the husband in 1901. The statements were made on December 18 1928 27 years after the event. They cannot be said to have been made "at or about the time when the fact took place". Further as rightly pointed 'out by i;he High Court the Court of Wards was making an enquiry for the purpose of according its consent. It was not enquiring into the fact of the giving of authority as an 'authority legally competent '. That authority as we have pointed out already is the civil court for the civil court alone can finally decide such a question. It can do so even after the Court of Wards had reached a conclusion and contrary to that conclusion. Section 157 therefore cannot make the statements provable. Mr. Agarwala next relies on section 32(7) of the Indian Evidence Act to introduce the earlier statements. That sub section reads: "32. Statements. written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable are them selves relevant facts in the following cases: * * * * (7) When the statement is contained in any deed will or other document which relates to any such transaction as is mentioned in section 13 clause (a). * * * * 33 Clause (7) makes relevant statements made in deeds wills and such other documents which relate to transactions by which a right or custom in question "was created claimed modified recognised asserted or denied" (to add the words of cl. (a)of section 13). The clause does not allow introduction of parole evidence see Field on the Law of Evidence 8th Edn. p. 202. Such parole evidence may be relevant under cl. (5) of section 32 but that is not relied upon. We questioned Mr. Agarwala whether he wished to rely upon clause (5) but he did not wish to put his case under that clause and we need not therefore consider the application of that clause. We think Mr. Agarwala is right in taking this course be cause cl. (5) requires that such a statement should have been made before the quest ion in dispute was raised. The statements in question were definitely made after the question in dispute in the suit had already arisen because one enquiry had already been made by Mi '. Knox and the statements now relied upon were made in the second enquiry before Mr. Thompson. Mr. Agarwala next wishes to use the statements made by Gaya Prasad on March 14 1926 "exhibit 72"; but that clearly is not admissible because when it was made in the suit Gaya Prasad was being examined as a party before issues were framed. In fairness to Mr. Agarwala it may be mentioned that he did not press the point after noticing the above fact. Mr. Agarwala` contends lastly that as Dwarka Nath was adopted on November 28 1929 and the present suit was filed on May 21 1945 after more than 15 years and as during this time. Dwarka Nath had been considered by everyone to be legally and validly adopted the suit ought to have been dismissed. It may be pointed out that Parmeshwar Dayal never accepted the adoption of Dwarka Nath. He had filed an earlier suit and questioned the competence of Rani Gomti Bibi to make the adoption of Bindeshwari Prasad. In that suit he had denied that Rai Pratap Chand had given authority to his wife to make the adoption of a son after his death. He consistently denied the validity of the second adoption and in these circumstances it cannot be said that he was concluded by any rule of law from questioning the adoption of Dwarka Nath after Rani Gomti Bibi 's death. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the question of fact are concerned we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion. We accordingly dismiss the appeal but order that the parties shall bear their own costs throughout. Appeal dismissed.

Held that an entry regarding agreement in a Wajib ul arz holds good during the currency of the Settlement and does not survive the expiry of the period of Settlement. Hira and Others vs Muhamadi and Others (16 P.R. 1915 at P. 89) Allah Bakhsh and Others vs Mirza Bashir ud Din and Others and Lieut. Chaudhri Chattar Singh vs Mt. Shugni and Another (A.I.R. referred to.

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. M. C. Setalvad Attorney General for India (P. P. Naik and I. N. Shroff with him) for the appellant. M. K. Nambiar (Rajinder Narain with him) for the respondent. B. Sen and P. K. Bose for the Intervener (State of West Bengal). May 13. 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 commodities 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 not uniform. On 10th May 1946 the Central Government appointed a Central Pay Commission hereinafter referred to as the Commission to enquire into and 601 report on the conditions 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 section 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 control are concerned." 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 not unnaturally caused considerable dissatisfaction among the employees concerned 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 not 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 77 602 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 contested the petition on the grounds firstly that the claim for dearness allowance was not justiciable and secondly that the difference in the scales of dearness allowance adopted by the Commission and by the Committee did not 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 "no intelligible 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 concerned. 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 not justiciable, and that neither a writ of mandamus nor any direction could be issued with reference thereto, and secondly, that the Resolution dated 16th September, 1948, is not hit by article 14 of the Constitution. In our opinion, both these contention are well founded 603 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 compensatory allowance should be so regulated that the allowance is not on the whole a source of profit to the recipient a Local Government may grant such allowance to any Government servant under its control and may make rules prescribing their amounts and the conditions 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 could be granted only when there is in the applicant a right to compel the performance of some duty cast on the opponent. Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance; it imposes no duty on the State to grant it. It merely confers a power on the State to grant compassionate allowance at its own discretion and no mandamus can issue to compel the exercise of such a power. Nor indeed could any other writ or direction be issued in respect of it as there is no right 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 vs pandit Tara Chand(1) that the present claim was justiciable. But The Punjab Province vs Pandit Tara Chand was an action for recovery of arrears of salary land it was held that under the law of this country which differed in this respect from that of England arrears of salary were a debt due by the Government that they could 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) 604 maintainable. This decision was quite recently approved by this Court in State of Bihar vs Abdul Majid(1) wherein it was pointed out that salary was not in the nature of a bounty and that whatever was recoverable by a Petition of Rights in England could be recovered by action in this country. This question may therefore now be taken to be settled beyond controversy. But we are not concerned in the present proceedings with any debt payable by the Government. The claim is not to recover arrears of dearness allowance which had accrued due under the rules in force relating thereto. The claim now put forward its to compel 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 not a matter of right. In England no petition of right will lie in respect of such a claim. The position is thus stated in Halsbury 's 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 not of right. [De Bode (Baron) vs R.(2).]" That is also the law in this country 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 not justiciable. Mr. Nambiar the learned counsel for the respondent did not dispute the correctness 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 could be declared void. That is a contention 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) ; (2) 13 Q. B 364 exhibit Ch. at P 387 605 of the rate from the lowest to the highest category. No contention is raised that fixing different rates of dearness allowance for different slabs of pay is obnoxious to article 14. 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 not been attacked as discriminatory. These being the features of the scheme there can be no room for the contention that it has made any discrimination. Mr. Nambiar does not contend 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 contention 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 not infringing article 14 becomes void under that provision when it is taken in conjunction with the report of the Commission. We do not find anything in article 14 which supports this somewhat startling contention. 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 not make any laws taking away or abridging the rights conferred by Part III and article 14 enacts that "The State shall not 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 606 decide is whether that law contravenes 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 not 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 conceivable 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 conjunction they result in discrimination. But such a course is not open where as here the two laws sought to be read in conjunction are by different Governments and by different Legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different article 14 can have no application. The result therefore is that the scale of dearness allowance recommended by the Commission and sanctioned by the Central Government can furnish no ground for holding that the scale of dearness allowance recommended by the Committee and adopted by the appellant is repugnant to article 14. It may no doubt 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 considerations 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 no practical importance; but as 607 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 cost 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 cost 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 not including it in fixing the dearness allowance. In paragraph 31 they observed that unlike the Commission they were taking into consideration 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 coincidence and not 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 no bearing 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 not adopt the Report of the Commission though they derived considerable assistance from it. In the result this appeal must be allowed and the petition of the respondent dismissed; but in the circumstances there will be no order as to costs either here or in the Court below. Appeal allowed.

The Government of Central Provinces and Berar (Now State of Madhya Pradesh) fixed in 1948 a scale of dearness allowance for its servants which though practically identical with the scale of dearness allowance fixed by Central Government in respect of salaries over Rs. 400 per mensem was less than it in respect of salaries for Rs. 400 per mensem or less. The petitioner State government servant challenged the validity of the order of the State Government on the ground that his fundamental right under article 14 of the Constitution had been violated inasmuch as he had a right to be equally treated with the Central Government Servants similarly situated. Held that under the provisions of Rule 44 of the Fundamental Rules it is a matter of discretion with the local Government whether it will grant dearness allowance to any Government servant and if so how much. It imposes no duty on the State to grant it and therefore no mandamus can issue to compel the State to grant it nor can any other writ or direction be issued in respect of it as there is no right in the Government servant which is capable of being protected or enforced. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The sources of authority for the two statutes being different Article 14 can have no application. Therefore 'the scale of dearness allowance sanctioned by the Central Government can furnish no ground for holding that the allowance sanctioned by the Government of Central Provinces and Berar is repugnant to Article 14. The State Government was entitled to fix the Government of India rates for one slab and Ali; different rates for another slab 600 The Punjab Province vs Pandit Tara Chand ([1947] F.C.R. 89) and State of Bihar V. Abdul Majid ([1954] S.C.R. 786) distinguished.

ivil Appeal No. 88 of 1953. Appeal under article 132(1) of the Constitution of India from the Judgment and Order dated the II th September 1951 of the High Court of Judicature for the State of Rajasthan at Jodhpur in D. B. Civil Appeal (Ijlas i Kbas) No. 6 of 1950. H. J. Umrigar Narain Andley and Rajinder Narain for the appellants. Radhey Lal Aggarwal and B. P. Maheswari for the respondent. May 12. The Judgment of the Court was delivered by MUKHERJEA J. This appeal is on behalf of the plaintiffs and has come before us on a certificate granted by the High Court of Rajasthan under article 132(1) of the Constitution on the ground that the case involves a substantial question of law as to the interpretation of the Constitution. The appellant has also put in a petition praying for leave to urge other grounds on the merits of the case. The suit out of which this appeal arises was brought by the appellants as plaintiffs on the 16th August 1946 in the District Court I at Jodhpur in Rajasthan against the defendant respondent claiming to recover from the latter a sum of Rs. 10 342 annas odd together with interest and costs. The plaintiffs at all material times carried on the business of commission agents both at Indore and Jodhpur under the name and style 441 of " Kanmal Kishenmal " and I" Kanmal Surajmal " respectively and their case is that between September and December 1945 the defendant entered into several forward contracts for the purchase and sale of bullion through the plaintiffs ' firm at Indore. These transactions proved unprofitable to the defendant and except a small profit of Rs. 103 annas odd which one of these transactions fetched every one of the rest ended in loss and the loss aggregated to a sum of Rs. 21 423 1 6 pies. It is averred in the plaint that this entire amount was paid to third parties at Indore by the plaintiffs on behalf of the defendant and that the plaintiffs received in all a sum of Rs. 11 457 8 0 which the defendant paid from time to time towards these losses to the plaintiffs ' firm at Jodhpur. The plaintiffs were therefore entitled to the balance of Rs. 9 861 which together with interest came up to Rs. 10 342 and this was the claim laid in the plaint. The suit was transferred from the District Court to the Original Side of the High Court of jodhpur and the defendant filed his written statement in the High Court on the 27th October 1947. The defence was a complete denial of the plaintiffs ' claim and it was contended inter alia that the transactions in suit amounted to wagering contracts and according to the law prevalent in Marwar as contained in the notification of the Marwar Government dated the 3rd June 1943 all forward business contracts in bullion in which the date fixed for delivery exceeded 12 days were illegal and were punishable as criminal offences. No suit was therefore maintainable on the basis of these transactions. On these pleadings a number of issues were raised of which issue No. 5 stood thus: " Are the transactions in dispute in the suit illegal and the present suit in respect of these transactions is not maintainable on account of the notification dated 3rd June 1943 ? " The suit came up for hearing before a single Judge of the Jodhpur High Court sitting on the Original Side. No evidence was adduced by the parties and the case 57 442 was heard only on issue No. 5 which was treated as an issue on a pure question of law. It was held by the learned Judge that as it was admitted by the plaintiffs that the contracts to which the suit related covered a period exceeding 12 days they came within the prohibition of the notification referred to above and a suit based upon them was not maintainable in law. The judgment shows that a contention was raised on behalf of the plaintiffs that the notification was confined only to contracts made in Marwar or intended to be performed in that place and as the contracts in suit were all entered into at Indore they could not be hit by the notification. This argument was repelled by the learned trial judge on a two fold ground. It was said in the first place that as the suit was actually brought in the Jodhpur Court the plaintiffs could not avoid facing the notification and the Jodhpur Court could not give them a relief in violation of its own laws. The other reason assigned was based upon section 13 of the Civil Pro cedure Code and it was said that if the plaintiffs could and did get a decree on the basis of these transactions in the Indore Court and wanted to enforce the same as a foreign judgment in the Court of Jodhpur the latter would be justified in refusing to give effect to such judgment under section 13 of the Marwar Civil Procedure Code on the ground that such judgment was founded on a breach of law in force in Marwar. In this view the learned Judge by his judgment dated the 2nd March 1948 dismissed the plaintiffs ' suit. The plaintiffs thereupon took an appeal against this judgment to the Appeal Bench of the Jodhpur High Court and the appeal was heard by a Division Bench consisting of Nawal Kishore C. J. and Kanwar Amar Singh J. The learned Judges accepted the legal position taken up by the plaintiffs that the contracts could be void only if they were entered into at Marwar or were intended to be performed either wholly or partly at Marwar. Admittedly they were entered into at Indore outside Marwar but the learned Judges held that from the fact that certain payments were made by the defendant and accepted by the plaintiffs towards these contracts at Marwar it could be inferred that it 443 was a term of the contracts that they would be performed at Marwar. Another point raised on behalf of the plaintiffs that as the notification of 3rd June 1943 itself came to an end by efflux of time on the 30th September 1946 there was no obstacle in the way of the plaintiffs ' obtaining a decree at any time after that was repelled by the learned Judges on the ground that as the contracts themselves were illegal at the time when they were entered into by reason of their violating the provisions of the notification the fact that the notification subsequently ceased to be operative could not make the illegal contracts lawful. The result was that by its judgment dated the 24th September 1948 the appellate bench of the High Court dismissed the appeal. The plaintiffs thereupon with the leave of the Court took an appeal against this decision to the Ijlas i Khas of the State of Jodhpur as it then existed. While the appeal of the plaintiffs was pending before the Ijlas i Khas of the Jodhpur State the integration of the various States of Rajasthan took place and the United States of Rajasthan was formed on the 7th of April 1949. The Rajasthan High Court Ordinance was promulgated by the Rajpramukh of Rajasthan on the 21st June 1949 and on the 29th of August following the High Court of Rajasthan was constituted. Another Ordinance known as the 'Rajasthan Appeals and Petitions (Discontinuance) Ordinance 1949 ' provided by section 4 that pending appeals before the Ijlas i Khas of any of the covenanting States if they related to judicial matters were to be heard by a special Court to be constituted by the Rajpramukh. This section was amended by an amending Ordinance dated the 24th of January 1950 and all these pending appeals were directed to be heard and disposed of by the Rajasthan High Court established under ' the Rajasthan High Court Ordinance of 1949. In accordance with this provision the appeal of the plaintiffs was transferred to the High Court of Rajasthan for disposal. The Constitution of India came into force on the 26th of January 1950 and when the appeal came up for hearing before the Rajasthan High Court a preliminary point was raised as to whether the 444 appeal should not be transferred to the Supreme Court for disposal under article 374(4) of the Constitution. The matter was referred for consideration by a Full Bench and the Full Bench decided that article 374(4) of the Constitution had no application to the present case and the appeal was to be heard by the High Court of Rajasthan. The appeal was then placed for hearing before a Division Bench of the Rajasthan High Court and by their judgment dated the 11th of September 1951 the learned Judges dismissed the appeal and affirmed the decision of the Courts below. Against this judgment the plaintiffs got leave to file an appeal to this Court under article 132(1) of the Constitution and that is how the matter has come before us. The only constitutional point involved in the appeal is whether article 374(4) of the Constitution is attracted to the facts of the present case and whether the appeal should therefore have been transferred to this Court for disposal instead of being heard and disposed of by the Rajasthan High Court. In view of the fact that we have ' acceded to the prayer of the appellants and have granted them leave to urge other grounds relating to the merits of the case in support of the appeal this constitutional point has nothing but an academic importance and is not pressed by the appellants. We would therefore proceed to consider the points upon which the learned counsel for the appellants has attempted to assail the propriety of the decision of Rajasthan High Court on its merits. The learned Judges of the Rajasthan High Court took the view and it seems to us quite properly that the Courts below were not right in treating issue No. 5 as raising a pure question of law where no investigation of facts was necessary. The High Court has pointed out that the defendant while raising the plea of illegality of the contracts in his written statement nowhere alleged that the contracts were entered into at Marwar or were intended to be performed there. On the other hand the plaintiffs expressly averred that the contracts were made at Indore. The one fact from which the appeal bench of the Jodhpur High Court drew the conclusion that the contracts were intended to be 445 performed partly at least at Marwar was that certain payments towards the losses resulting from the transactions were made by the defendant to the plaintiffs ' firm at Marwar. This as the Rajasthan High Court points out does not necessarily lead to the inference that it was a ' part of the original agreement entered into by the parties that the performance was to be made at Marwar. The payments might have been made as a matter of convenience upon express instructions from the Indore firm. It is also pointed out that if the general principle of law is that it is the debtor who has to seek the creditor as the defendant ranked here as a debtor by reason of the losses suffered in the business it was for him to seek the plaintiffs at Indore and not for the plaintiffs to seek him at Jodhpur. The suit it is to be further noted was brought at Jodhpur only on the allegation that the defendant resided within its jurisdiction. There was no averment in the plaint that any part of the cause of action arose within its jurisdiction. On all these grounds the Rajasthan High Court was of opinion that the Courts below should have either framed a specific issue on facts or if they thought that issue No. 5 was sufficiently wide to cover the question of fact as well they should have given an opportunity to the parties to lead evidence for arriving at a finding whether the contracts were to be performed in whole or in part in Marwar. The learned Judges themselves were inclined to send the case back on remand in order that evidence might be adduced on this point. But they did not take this step as they were told that the contracts were entered into by telegrams and no terms of any sort were settled between the parties it being understood that the business was to be conducted according to the custom and usage of the market. The learned Judges further discussed a question of Private International Law apparently raised on behalf of the defendant that even if the contract was made outside Marwar and not intended to be performed there. still the Court of Marwar should refuse to enforce the contract as it was illegal according to the lex fori that is to say the law of the place where the suit was brought. 446 This contention of the defendant was not accepted and it was held that if the contract was enforceable by the law of the place where it was made or where it was to be performed it could not be held unenforceable in Jodhpur on the ground of its being opposed to public policy as the prohibition in the notification was not general in its nature and the contract in question cannot be said to be opposed to any basic ideas of morality or public policy. After saying all these however the learned Judges of the Rajasthan High Court dismissed the suit on the short point that even if the sale or purchase under the contracts might have taken place outside Marwar Yet the notification not only hit the contracts of sale and purchase but the contract of agency itself relating to such transactions. It is said then that in the case of Pakki Adat primarily the place of payment of profit is the place where the constituent resides and in the present case the plaintiffs had alleged themselves to be Pakka Adatias. Consequently the agency contract would be hit by the notification as it was to be performed at Jodhpur where the defendant lives. We do not think that the learned Judges ' approach to the case has been a proper one or that the reasoning adopted by them can be accepted as sound. By the notice of 3rd June 1943 an additional rule namely rule No. 90(c) was added to the Defence of India Rules as applied to Marwar. Sub rule (2) of rule 90(c) laid down that no person shall enter into forward contract or option in bullion. In sub rule (1) " forward contract " was defined to mean 'a contract for delivery of bullion. at a future date such date being later than 12 days from the date of the contract '; and a " contract " was defined to mean ' a contract made or to be made or to be performed in whole or in part in Marwar relating to the sale or purchase of bullion. ' The present suit is really not one to enforce any contract relating to purchase or sale of bullion which comes within the prohibition of this notification. It is a suit by an agent claiming indemnity against the principal for the loss which the agent had suffered in carrying out the directions of the principal. The right to such indemnity is founded on the statutory provision 447 contained in section 222 of the Indian Contract Act which stands as follows: The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by such agent in exercise of the authority conferred upon him." Here the plaintiffs paid the losses resulting from the transactions to third parties on behalf of the defend. ant in exercise of the authority conferred upon them by the latter. These acts of payment were certainly lawful acts if we assume as indeed we must that all these transactions took place and the payments were made outside Marwar. It is the statutory right which flows from the contract of agency that the plaintiffs are seeking to enforce against the defendant and the suit has been brought in the Jodhpur Court as the defendant resides within that jurisdiction. The fact that in case of Pakki Adat the place of payment is normally where the constituent resides is immaterial for our present purpose. A contract for sale or purchase of bullion may be entered into by and between the parties directly or it may be made through agents. In either case if such contract is not entered into at Marwar nor is it agreed to be performed wholly or in part in Marwar it would be outside the notification and cannot be held to be illegal. The fallacy in the reasoning of the learned Judges lies in the fact that the contract between principal and agent which is entirely collateral to the contract of purchase and sale has been held by them as coming within the prohibition of the notification merely on the ground that payment by the agent to the principal of the profits of the transaction could be made or demanded at the place where the principal resides. In our opinion the right to indemnity which is an incident of the contract of agency is not hit by the notification at all and is a matter which is entirely collateral to a forward contract of purchase and sale of bullion which the notification aims at prohibiting. We hold therefore that the Courts were not right in dismissing the plaintiffs ' suit on the ground that the contracts upon which the suit was based were illegal by reason of their contravening the provisions 448 of the notification. The result is that we set aside the judgments of the Courts below and send the case back to the Original Court of Jodhpur in order that it may be tried 'on all the other issues raised in the suit after giving opportunity to the parties to adduce such evidence as they want to adduce. The plaintiffs appellants will have their costs up to this stage. Further costs will abide the result. Order accordingly.

The respondent as principal entered into several forward contracts for the purchase and sale of bullion through the appellant 's firm at Indore who worked as commission agents for the respondent. The transactions resulted in a loss and the appellants who had to pay the amount of loss to third parties on behalf of the respondent as the agents brought the suit for recovery of the amount in the Court in Jodhpur where the respondent resided. It was pleaded by the respondent that according to. the law prevalent there as contained in the notification of the Marwar Government dated the 3rd June 1943 all forward business contract in bullion in which the date fixed for delivery exceeded 12 days were 440 illegal and therefore a suit on the basis of these transactions was not maintainable. Held that the suit was really not one to enforce any contract relating to the purchase or sale of bullion which comes within the prohibition of the notification but was one by an agent claiming indemnity against the principal for the loss which the agent had suffered in carrying out the directions of the principal. The right to such indemnity was founded on the statutory provision contained in section 222 of the Indian Contract Act and the acts of payment made by the plaintiffs on behalf of the defendant were lawful acts as all the transactions took place and the payments were made outside Marwar and therefore the suit was not hit by the notification.

: Criminal Appeal No. 18 of 1953. Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 18th February 1953 of the High Court of Judicature at Bombay in Criminal Appeal No. 592 of 1952 arising out of the Judgment and Order dated the 21st May 1952 of the Court of the Presidency Magistrate 19th Court Bombay in Case No. 147/P/ 1951. B. H. Lulla and Rajinder Narain for the appellants. Porus A. Mehta for the respondent. May 13. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. The appellants were charged under section 18(1) of the Bombay Rent I Restriction Act 1947 for receiving from Shankar Das Gupta through Mathra Das accused No. 3 on 23rd November 1950 a sum of Rs. 2 400 as premium or 160 pugree in respect of the grant of lease of Block No. 15 in a building under construction. The magistrate found 'the appellants guilty of the charge and sentenced each of them to two months ' R.I. and a fine of Rs. 1 200. Mathra Das was convicted and sentenced to one day 's S.I. and a fine of Rs. 100. The fourth accused Roshanlal Kanjilal was acquitted. Mathra Das preferred no appeal against his conviction and sentence. The appellants preferred an appeal to the High Court against their conviction. This was heard by Gajendragadkar and Chainani JJ. on the 8th of October 1952. It was contended inter alia that even if it were held that the appellants had accepted the sum of Rs. 2 400 they could not be said to have committed an offence under section 18(1) of the Act inasmuch as the amount could not in law be held to be a premium in respect of the grant of a lease. On this point the learned Judged said as follows : " In the present case the work regarding the building which still remained to be done was so important that both the parties agreed that the complainant should get into possession after the said work was completed. In such a case unless the building is completed the tenant has no right which can be enforced in a Court of law. If the landlord finds it impossible for any reason to complete the building what is the right which an intending tenant can enforce against him. Therefore in our opinion there is considerable force in the contention urged by Mr. Lulla that in the present case even if it be held that the accused had received Rs. 2 400 in the circumstances to which we have already referred that would not bring them within the mischief of section 18(1) because there has been no grant of a lease at all. There is only an agreement that the landlord would lease to the complainant a particular flat after the building has been fully and properly completed. It does appear that section 18 1 does not bring within its mischief executory agreements of this kind." A contrary view had been expressed in Criminal Revision No. 1178 of 1949 by another Bench of the High Court on the construction of section 18(1). The 161 matter was therefore referred to the Full Bench. The question framed for the consideration of the Full Bench was in these terms: If as owners of an in complete building the appellants accepted Rs. 2 400 from the complainant in respect of an agreement between them that the appellants were bound to give and the complainant was entitled to take possession of flat No. 15 in the said building as soon as the said building was completed on the agreed rent of Rs. 75 per month did the acceptance of Rs. 2 400 by the appellants fall within the mischief of section 18 of Bombay Act LVII of 1947 This question if answered in the negative by the Full Bench would have concluded the case. The Full Bench answered the question referred in the affirmative. It held that the oral agreement did not constitute a lease but it amounted to an agreement to grant a lease in future and that the receipt of consideration for an executory agreement was within the mischief of section 18(1) of the Act. The Full Bench Expressed its opinion in these terms: " What the Legislature has penalized is the receipt of a premium by the landlord and the Legislature has also required a nexus between the receipt by the landlord of a premium and the grant of a lease of any premises. Therefore a receipt alone by a landlord would not constitute an offence but that receipt must be connected with the grant of the lease of any premises. Unless that connection is established no offence would be committed. The contention of Mr. Lulla on behalf of the accused is that the receipt of the premium must be simultaneous with the grant of the lease. If the lease comes into existence at a future date then the receipt of a premium according to him is not "in respect of " the grant of a lease. Therefore the key words according to us in this section are " in respect of. " It is relevant to observe that the Legislature has advisedly not used the expression "for" or "in consideration of" or " as a condition of " the grant of a lease. It has used an expression which has the widest connotation and 21 162 means in its plain meaning " connected with or attributable to and therefore it is not necessary that there must be simultaneous receipt by the landlord with the grant of the lease. So long as so 'me connection is established between the grant of the lease and the receipt of the premium by the landlord, the provisions of the section would be satisfied. In our opinion it is impossible to contend that in the present case there was no connection whatever between the landlord receiving the premium and his granting the lease of the premises. It is true that when he received the premium he did not grant a lease. It is true that all that he did when he received the premium was to enter into a contract with his tenant to grant a lease in future. But the object of the landlord in receiving the premium and the object of the tenant in paying the premium was undoubtedly on the part of the landlord the letting of the premises and oh the part of the tenant the securing of the premises. Therefore the object of both the landlord and the tenant was the grant of the lease of the premises concerned and that object was achieved partly and to start with by an oral agreement being arrived at between the landlord and the tenant with regard to the granting of this lease, the lease being completed when delivery of possession of the premises would be given. Therefore, in our opinion, on the facts of this case it is not possible to contend that the payment of the premium received by the landlord was unconnected with the grant of a lease of any premises. The fact that no grant was made at the time when the premium was received, the fact that there was merely an agreement to grant a lease, the fact that the lease would come into existence only at a future date, are irrelevant facts so long as the connection between the receiving of the premium and the granting of the lease is established. On return from the Full Bench the Division Bench considered the other contentions raised on behalf of the appellants and held that there were no merits in any one of those points and in the result the appeal was dismissed. It was certified that the case involved a substantial question of law and was a fit one for appeal to this Court. This appeal is before us on that certificate 163 The principal question to decide in the appeal is whether the answer given by the Full Bench to the question referred to it is right and whether receipt of a sum of money by a person who enters into an executory contract to grant a lease of a building under construction falls within the mischief of section 18(1) of the Act Section 18(1) provides: " If any landlord either himself or through any person acting or purporting to act on his behalf receives any fine premium or other like sum or deposit or any consideration other than the standard rent. " in respect of the grant renewal or continuance of a lease of any premises such landlord or person shall be punished " in the manner indicated by the section Under the section the money must be received by the landlord in respect of the grant of a lease. The section refers to the " grant renewal or continuance of a lease. " Prima facie it would not cover an executory agreement to grant a lease. The words " renewal or continuance of a lease " clearly suggest that there must be a renewal or continuance of a subsisting lease. In the context grant of tenancy means the grant of new or initial tenancy; renewal of tenancy means the grant of tenancy after its termination; and continuance seems to contemplate continuance of a tenancy which is existing. Whether or not an executory agreement for grant of a lease comes within the ambit of the section by reason of the use of the words " in respect of " would be examined hereinafter. Before doing so it may be stated that an instrument is usually construed as a lease if it contains words of present demise. It is construed as an executory agreement notwithstanding that it contains words of present demise where certain things have to be done by the lessor before the lease is granted such as the completion or repair or improvement of the premises or by the lessee such as the obtaining of sureties. (Vide Halsbury 's Laws of England Second Edition Vol. 20 pp. 37 39). On the facts of this case therefore the Full Bench very rightly held that the 164 oral agreement made between the parties did not constitute a lease but it amounted to an agreement to grant a lease in future. It may further be pointed out that in fact in this case the lease never came into existence. Moreover in view of the provisions contained in the Bombay Land Requisition Act XXXIII of 1948 as amended the appellants could not let out the building even after its completion unless on a proper notice being given the Controller of Accommodation did not exercise his powers under that Act. It so happened that as soon as the building was completed the Controller of Accom modation requisitioned it and thus no occasion arose for giving effect to the executory contract. The question that needs our determination in such a situation is Whether section 18(1) makes punishable receipt of money at a moment of time when the lease had not come into existence and when there was a possibility that the contemplated lease might never come into existence. It may be here observed that the provisions of section 18(1) are penal in nature and it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It if; not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. As pointed out by Lord Macmillan in London and North Eastern Railway Co. vs Berriman(1) " where penalties for infringement are imposed it is not legitimate to stretch the language of a rule however beneficent its intention beyond the fair and ordinary meaning of its language. " The High Court took the view that without stretching the language of section 18(1) beyond its fair and ordinary meaning the very comprehensive expression " in respect of " used by the Legislature could lead to only one conclusion that the Legislature wanted the (1) 295 165 penal consequences of section 18(1) to apply to any nexus between the receipt by a landlord of a premium and the grant of the lease. In our judgment the High Court laid undue emphasis on the words "in respect of" in the context of the section. Giving the words " in respect of " their widest meaning viz. " relating to " or " with reference to" it is plain that this relationship must be predicated of the grant renewal or continuance of a lease and unless a lease comes into existence simultaneously or near about the time that the money is received it cannot be said that the receipt was " in respect of " the grant of a lease. The relationship of landlord and tenant does not come into existence till a lease comes into existence; in other words there is no relationship of landlord and tenant until there is a demise of the property which is capable of being taken possession of If the Legislature intended to make receipts of money on executory agreements punishable the section would have read as follows: " receives any fine premium or other like sum or deposit or any consideration other than the standard rent in respect of the lease or an agreement of lease of the premises such landlord or person shall be punished " in the manner indicated in the section. The section does not make the intention punishable; it makes an act punishable which act is related to the existence of a lease. It does not make receipt of money on an executory contract punishable; on the other hand it only makes receipt of money on the grant renewal or continuance of the lease of any premises punishable and unless the lease come into existence no offence can be said to have been committed by the person receiving the money. It is difficult to hold that any relationship of 'landlord and tenant comes into existence on the execution of at agreement executory in nature or that the expression " premium " can be appositely used in connection with the receipt of money on the occasion of the executor of such an agreement It may well be that if a leas( actually comes into existence then any receipt of money which has a nexus with that lease may fall within the mischief of section 18(1) but it is unnecessary to ex press any final opinion on the question as in the present 166 case admittedly no lease ever came into existence and the relationship of landlord and tenant was never created between the parties. The landlord never became entitled to receive the rent from the tenant and the tenant never became liable to pay the rent. There was no transfer of interest in the premises from the landlord to the tenant. On its plain natural grammatic meaning the language of the section does not warrant the construction placed upon it by the Full Bench merely by laying emphasis on the words " in respect of. " In our opinion the language of the section ; 'in respect of the grant renewal or continuance of a lease " envisages the existence of a lease and the payment of an amount in respect of that lease or with reference to that lease. Without the existence of a lease there can be no reference to it. If the Legislature intended to punish persons receiving pugree on merely executory contracts it should have made its intention clear by use of clear and unambiguous language. The construction we are placing on the section is borne out by the circumstance that it occurs in Part I of the Act. Section 6 of this Part provides that " in areas specified in Schedule I this Part shall apply to premises let for residence education business trade or storage. " This Part relates to premises let in other words premises demised or given on lease and not to premises that are promised to be given on lease and of which the lease may or may not come into being. The definition of the expression " landlord" also suggests the same construction. Landlord " as defined in section 5 of the Act means any person who is for the time being receiving or entitled to receive rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person or as a trustee guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant. . It is obvious that on the basis of an executory agreement the appellants would not be entitled to receive any rent. They would only be entitled to receive rent after the lease is executed and actual 167 demise of the premises or their transfer is made in favour of the complainant. The definition of the expression tenant" also suggests the same construction. Mr. Mehta for the State besides supporting the emphasis placed by the High Court on the words " in respect of contended that that construction could be supported in view of the provisions of sub section (3) of section 18 which is in these terms: 18(3) Nothing in this section shall apply to any payment made under any agreement entered into before the first day of September 1940 or to any payment made by any person to a landlord by way of a loan for the purpose of financing the erection of the whole or part of a residential building or a residential section of a building on the land held by him as an owner a lessee or in any other capacity entitling him to build on such land under an agreement which shall be in writing and shall notwithstanding anything contained in the Indian be registered. Such agreement shall inter alia include the following conditions namely (1) that the landlord is to let to 'such person the whole or part of the building when completed for the use of such person or any member of his family. . It was suggested that but for this exception the executory agreement would be included within the mischief of section 18(1) and that unless such agreements were within the mischief of the section there would have been no point in exempting them from its provisions. In our view this contention is not sound. In the first place the exception was added to the section by Act 42 of 1951 subsequent to the agreement in question and for the purposes of this case section 18(1) should ordinarily be read as it stood in the Act at the time the offence is alleged to have been commit ted. Be that as it may it appears that sub section (3) was added to the section by reason of the fact that some Courts construed section 18(1) in the manner in which it has been construed by the Full Bench in this case and the Legislature by enacting clause (3) made it clear that agreements of the nature indicated in the 168 subjection were never intended to be included therein. In our opinion the language of that section is not of much assistance in construing the main provisions of section 18(1). The result therefore is that in our view the receipt of money by the appellants from the complainant at the time of the oral executory agreement of lease was not made punishable under section 18(1) of the Act and is outside its mischief and the Presidency Magistrate was in error in convicting the appellants and the High Court was also in error in upholding their conviction. We accordingly allow this appeal set aside the conviction of the appellants and order that they be acquitted. Appeal allowed.

Section 18(1) of the Bombay Rents . . . Control Act 1947 provides; " If any landlord either himself or through any person acting or Purporting to act on his behalf. . receives any fine premium or other like sum or deposit or any consideration other than 159 the standard rent in respect of the grant renewal or continuance of a lease of any premises such landlord or in the manner indicated by the section. Held that the words " renewal or continuance of a lease clearly suggest that there must be a renewal or continuance of a subsisting lease. They would not cover an executory contract to grant a lease. Giving the words " in respect of " their widest meaning viz. relating to " or " with reference to " it is plain that this relationship must be predicated of the grant renewal or continuance of a lease and unless a lease comes into existence simultaneously or near about the time that the money is received it cannot be said that the receipt was " in respect of " the grant of a lease. The relationship of landlord and tenant does not come into existence till a lease comes into existence in other words there is no relationship of landlord and tenant until there is a demise of the property which is capable of being taken possession of. The section does not make the intention punishable it makes an act punishable which is related to the existence of a lease. It does not make receipt of money on an executory contract punishable. London and North EasterN Railway Co. vs Berriman (1946 A.C.278 295) referred to.

Appeal No. 25 of 1952. Appeals from the Judgment and Order dated the 10th day of January 1952 of the High Court of Judicature of Travancore Cochin at Ernakulam (Kunhiraman C.J. and Subra mania Iyer J.) in Original Petitions Nos. 4 23and 24 of 1951 respectively. T.N. Subramania Iyer Advocate General of Travancore Cochin (T.R. Balakrishna lyer and M.R. Krishna Pillai with him) for the State of Travancore Cochin. N.C. Chatterjee (C.R. Pattabhirarnan with him) for the respondent in Civil Appeal No. 25 of 1952. C. R. Pattabhiraman for the respondent in Civil Appeal No. 28 of 1952. N.C. Chatterjee '(Thomas Vellappally with him) for the respondent in Civil Appeal No. 29 of 1952. M. C. Setalvad Attorney General for India and C.K. Daphtary Solicitor General of India (G.N. Joshi with them) for the Union of India. October 16. The Judgment of the Court was delivered by PATANJALI SASTRI C.J. These are connected appeals from the judgment and order of the High Court of Travancore Cochin quashing the assessments under the United State of Travancore and Cochin Sales Tax Act (No. 11 of 1125 M.E.) (hereinafter referred to as "the Act") on the respond ents on the turnover of the sales of the commodities (coif products in C.A. 25 lemon grass oil in C.A. 28 and tea in C.A. 29) in which they respectively deal. The dealings followed more or less the same pattern in all the cases and consisted of export sales of the respec tive commodities to foreign buyers on c.i.f. or f.o.b. terms as the case may be. The respondents in each case claimed exemption from assessment in respect of the sales effected by them on the ground inter alia that such sales took place "in the 'course of the export of the goods out of the territory of India" within the meaning of article 1115 286(1) (b) of the Constitution. The Sales Tax Authorities rejected the contention as in their view the sales were completed before the goods were shipped and could not therefore be considered to have taken place in the course of the export. Thereupon the respondents by separate petitions applied to the High Court of the United State of Travancore and Cochin (hereinafter referred to as the State) under article 226 of the Constitution for issue of writs of certiorari and prohibition quashing the assessments made On them and pro hibiting such assessment in future. The applications were heard along with nine other applications for similar re liefs by dealers in cashew nuts by a Division Bench (Kunhi raman C.J. and Subramania Iyer J.) who upheld the claim of exemption and quashed the assessment orders in respect of the transactions subsequent to the commencement of the Constitution. From that decision the State has preferred appeals in all the cases on a certificate granted by the High Court under article 132 (1) of the Constitution. As the appeals involved important questions of law which may have a bearing on the sales tax legislation of the various States in India this Court directed notice of these proceedings to the Attorney General for India and the Advo cates General of those States and they have intervened and participated in the debate at the hearing of these appeals. When the argument had proceeded for some time it was discovered that the material facts relating to the course of dealings in cashew nuts which were more complex in charac ter had not been clearly ascertained and consequently the relative appeals were remitted to the High Court for find ings on certain points agreed upon by the parties. These three appeals were however fully heard as they were found to admit of disposal on the materials on record. Article 286(1) on which the respondents found their claim to exemption runs thus: 1116 No law of a State shall impose or authorise the imposi tion of a tax on the sale or purchase of goods where such sale or purchase takes place. (a) outside the State; or (b) in the course of the import of the goods into or export of the goods out of the territory of India. Explanation. For the purposes of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consump tion in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. On the scope and meaning of clause (b) the learned Judges expressed their view as follows : "The words 'in the course of ' make the scope of this clause very wide. It is not restricted to the point of time at which goods are imported into or exported from India. The series of transactions which necessarily precede export or import of goods will come within the purview of this clause. Therefore while in the course of that series of transactions the sale has taken place such a sale is exempted from the levy of sales tax. The sale may have taken place within the boundaries of the State. Even then sales tax cannot be levied if the sale had taken place while the goods were in the course of import into India or in the course of export out of India. We are stressing this point because both parties in what we may describe as the cashew nut cases entered into a lengthy discussion as to the exact point of time when the sale became completed and as to the exact place where the goods were when the sale became a completed transaction. " On this interpretation local purchases "made for the purpose of export" were held by the learned Judges to be "integral parts of the process of exporting". In support of this construction the learned Judges referred 1117 to the debates in the Constituent Assembly on clause 264 A of the draft Constitution which corresponded to article 286 and quoted from the speech of one of the members who unsuc cessfully moved an amendment defining export as meaning the last transaction and import as meaning the first transac tion. In view of the wide construction thus placed upon clause (b) of article 286 (1) the arguments before us ranged over a large field and as many as four different views as to its scope and meaning were pressed upon us for our acceptance : (1) The exemption is limited to sales by export and purchases by import that is to say those sales and pur chases which occasion the export or import as the case may be and extends to no other transactions however directly or immediately connected in intention or purpose with such sales or purchases and wheresoever the property in the goods may pass to the buyer. This is the view put forward on behalf of the State of Madras. The Advocate General thought that a State could not impose sales tax though title passed within State limits while the goods were still under trans port on the high seas and no question of exemption could therefore arise. He said however that no such ease had actually arisen. (2) In addition to the sales and purchases of the kind described above the exemption covers the last purchase by the exporter and the first sale by the importer if any so directly and proximately connected with the export sale or import purchase as to form part of the same transaction. This view was sponsored ' by the Attorney General who was also inclined to think as advised at the moment that sales or purchases made while the goods were on the high seas would be exempt but he would prefer not to go into the wider question because whatever view was taken sales such as those involved in the present cases must in any event be exempt. (3) The exemption covers only those sales and purchases under which the property in the goods 1118 concerned is transferred from the seller to the buyer during the course of the transit that is after the goods begin to move and before they reach their foreign destination. This view is supported by the State of Bombay and certain other States. (4) The view which found favour with the learned Judges of the High Court in the passage already extracted. It will be seen that the construction first mentioned is the narrowest and the last mentioned the widest. We are clearly of opinion that the sales here in ques tion which occasioned the export in each case fall within the scope of the exemption under article 286(1)(b). Such sales must of necessity be put through by transporting the goods by rail or ship or both out of the territory of India that is to say by employing the machinery of export. A sale by export thus involves a series of integrated activi ties commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated and the sale and resultant export form parts of a single transaction of these two integrated activities which together constitute an export sale whichever first occurs can well be regarded as taking place in the course of the other. Assuming without deciding that the property in 'the goods in the present cases passed to the foreign buyers and the sales were thus completed within the State before the goods commenced their journey as found by the Sales Tax Authorities the sales must never theless be regarded as having taken place in the course of the export and are therefore exempt under article 286(1)(b). That clause indeed assumes that the sale had taken place within the limits of the State and exempts it if it took place in the course of the export of the goods concerned. In the foregoing discussion we have assumed that the word "sale" used in the Constitution has the same 1119 meaning as in the law relating to the sale of goods but it has been suggested in the course of the argument that it imports a wider concept than the passing of title from the seller to the buyer which under that law is determined by highly technical rules based upon the presumed intention of the parties and liable to be displaced by their expressed intention. We leave the point open as it is unnecessary for the purpose of these appeals to pronounce any opinion upon it. It was said that on the construction we have indicated above a "sale in the course of export" would become practi cally synonymous with "export" and would reduce clause (b) to a mere redundancy because article 246 (1) read with entry 83 of List I of the Seventh Schedule vests legisla tive power with respect to "duties of customs including export duties" exclusively in Parliament and that would be sufficient to preclude State taxation of such transactions. We see no force in this suggestion. It might well be argued in the absence of a provision like clause (b) prohibiting in terms the levy of tax on the sale or purchase of goods where such sales and purchases are effected through the machinery of export and import that both the powers of taxation though exclusively vested in the Union and the States re spectively could be exercised in respect of the same sale by export or purchase by import the sales tax and the export duty being regarded as essentially of a different character. A similar argument induced the Federal Court to hold in Province of Madras vs Boddu Paidanna and Sons(1) that both central excise duty and provincial sales tax could be validly imposed on the first sale of groundnut oil and cake by the manufacturer or producer as "the two taxes are economically two separate and distinct imposts". Lest similar reasoning should lead to the imposition of such cumulative burden on the export import trade of this country which is of great importance to the nation 's economy the Constituent Assembly may well have thought it necessary to exempt (1) 1120 in terms sales by export and purchases by import from sales tax by inserting article 286 (1) (b) in the Constitution. We are not much impressed with the contention that no sale or purchase can be said to take place "in the course of" export or import unless the property in the goods is transferred to the buyer during their actual movement as for instance where the shipping documents are indorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped or where such documents are cleared on payment or on acceptance by the Indian buyer 'before the arrival of the goods within the State. This view which lays undue stress on the etymology of the word "course" and formulates a mechanical test for the application of clause(b) places in our opinion too narrow a construction upon that clause in so far as it seeks to limit its operation only to sales and purchases effected during the transit of the goods and would if accepted rob the exemption of much of its useful ness. We accordingly hold that whatever else may or may not fall within article 286 (1) (b) sales and purchases which themselves occasion the export or the import of the goods as the case may be out of or into the territory of India come within the exemption and that is enough to dispose of these appeals. Our attention was called in the course of the debate to various American decisions which hold that the power "to regulate" inter State commerce vested exclusively in the Congress by article 1 section 8(3) of the American Constitu tion (the Commerce clause) excludes by implication the States ' power of taxation only when the goods enter "the export. stream" and until then such goods form part of "the general mass of property in the State" subject as such to its jurisdiction to tax and that this principle was also applicable to cases arising under article 1 section 9(5) and section 10(2) (the Import Export clause) [see e.g. Empresa Siderurgica vs Merced Co.(1)]. These clauses (1) ; 1121 are widely different in language scope and purpose and a varying body of doctrines and tests have grown around them interpreting extending or restricting from time to time their operation and application in the context of the ex panding American commerce and industry and we are of opin ion that not much help can be derived from them in the solution oil the problems arising under article 286 of the Indian Constitution. It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of ex trinsic aid to the interpretation of statutes is not admis sible has been generally accepted in England and the same rule has been observed in the construction of Indian stat utes see Administrator General of Bengal vs Prem Nath Mallick(1). The reason behind the rule was explained by one of us in Gopalan 's case(2) thus : "A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord or, as it is more tersely put in an American case Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other United States vs Trans Missouri Freight Association(3). ' ' This rule of exclusion has not always been adhered to in America and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia see Craies on Statute Law 5th Ed. p. 122. (1) (895) 22 I.A. Io7 118. (2)[1950] S.C.R.88. (3) 169 U.S.290 318. 144 1122 In the result agreeing with the conclusion of the High Court though on different grounds we dismiss the appeals with costs. Appeals dismissed. Agent for the respondent in C.A. No. 25 of 52: M.S.K. Sastri. Agent for the respondent in C.A. No. 28 of 52: Sardar Bahadur. Agent for the respondent in C.A. No. 29 of 52: V.P.K. Nambiyar. Agent for the Interveners (Union of India State of Bombay State of Madras State of Hyderabad State of Punjab State of MysOre and State of Orissa): P.A. Mehta. Agent for the State of Uttar Pradesh: C.P. Lal.

Whatever else may or may not fall within article 286 (1) (b) of the Constitution sales and purchases which themselves occasion the export or the import of the goods as the case may be out of or into the territory of India come within the exemption. The view that no sale or purchase can be said to take place in the course of export or import unless the property in the goods is transferred to the buyer during their actual move ment as instance where the shipping documents are in dorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped or where such documents are cleared on payment or on acceptance by the Indian buyer before the arrival of the goods within the State puts too narrow a construction upon article 286 (1)(b) and is not correct. A sale by export involves a series of integrated activi ties commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the country by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated and the sale and 'the result ant export form parts of a single transaction. Of these two integrated activities which together constitute an export sale whichever first occurs can well be regarded as taking place in the course of the other. Even in cases where the property in the goods passed to the foreign buyers and the sales were thus completed within the State before the goods commenced their journey from the State the sales must be regarded as having taken place in the course of the export and therefore exempt under article 286 (1) (b). The Commerce clause (article 1 section 8 (3)) and the Import Export clauses [article I sections9 (5) and 10 (2)] of the American Constitution are widely different in lan guage scope and purpose and a varying body of doctrines and tests have grown around them interpreting extending or restricting from time to time their operation and applica tion in the context of the expanding American commerce and industry and much help cannot be derived from them in the solution of the problems arising under article 286 of the Indian Constitution. Speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution cannot be used 'as aids for interpreting the Constitution. Administrator General of Bengal vs Prem Nath Mullick [22 I.A. 107 at 118] A.K. Gopalan vs The State [(1950) S.C.R. 88] United States vs Trans Missouri Freight Association at 318] referred to. 143 1114

iminal 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. H.J. Umrigar Rameshwarnath and Rajinder Narain for the appellants. T. L. Shevde Advocate General of Madhya Pradesh (T. P. Naik and I. N. Shroff with him) for the respondent. 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 contravention of section 7 of the Essential Supplies (Temporary Powers) Act 1946 read with clause (3) of the Cotton Textiles (Control of Movement) 383 Order. 1948 having been found in possession of new cotton 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 constitutional 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 constitutional. It also upheld the constitutionality 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 not 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 connected appeal No. 6 of 1953 is before us on the basis of the said certificates. Mr. Umrigar who appeared in this and the connected appeal urged the following points for our consideration and decision: (1) That sections 3 and 4 of the Essential Supplies (Temporary Powers) Act 1946 and the provisions of the Cotton Cloth Control Order contravened the fundamental right of the appellants guaranteed by article 19(1)(f) and (g) of the Constitution; (2) 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; (3) That section 6 having been found ultra vires section 3 was inextricably connected with it and that both the sections should have been declared ultra vires on that ground; and (4) That the impugned Control Order contravened existing laws viz. the provisions of section 27 28 and 384 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 none 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 commodity 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 commerce therein (2) Without prejudice to the generality of the powers conferred 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 com modity;. . (d) for regulating by licences permits or otherwise the storage transport distribution disposal acquisition use or consumption of any essential commodity; 4. The Central Government may by notified order direct that the power to make orders under section 3 shall in relation to such matters and subject to such conditions if any as may be specified in the direction be exercisable also by (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: "6. Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith 385 contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act." Under powers conferred by section 3 the Central Government promulgated on 10th September 1948 Cotton Textiles (Control of Movement) Order 1948. Section '2 of this order defines the expressions "apparel carrier hosiery cloth " and " textile commissioner. " Section 3 of the order runs as follows: "3. 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 (i) a general permit notified in the Gazette of India by the Textile Commissioner or (ii) a special transport permit issued by the Textile Commissioner. " Section 8 provides that the Textile Commissioner may by notification 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 conditions 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 cotton 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 cotton 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 control on the production supply and distribution of commodities essential to the life of the community. It was for this reason that the Legislature passed the Essential Supplies (Temporary Powers) Act 50 386 authorising the Central Government to make orders from time to time controlling the production supply and distribution of essential commodities. Clause 3 of the Control Order does not deprive a citizen of the right to dispose of or transport cotton 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 citizen 's right under sub clauses (f) and (g) of article 19(1). If transport of essential commodities by rail or other means of conveyance was left uncontrolled it might well have seriously hampered the supply of these commodities to the public. Act XXIV of 1946 was an emergency measure and as stated in its preamble was intended to provide for the continuance during a limited period of powers to control the production supply and distribution of and trade and commerce in certain commodities. The number of commodities held essential are mentioned in section 2 of the Act and the requirement of a permit to transport such commodities 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 citizen 's rights mentioned in clauses (f) and (g) of article 19(1). The High Court was therefore right in negativing the contention 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 vs 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 not tenable. In the first place the appellants never applied for a permit and made no efforts 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 (1) A.T.R. ; 387 the ground that it vested arbitrary and unregulated power in the textile commissioner. The appellants were not hurt in any way by any act of the textile commissioner 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 commodities. It may also be pointed out that reference to the decision of this Court in Dwarka Prasad 's case(1) is not very opposite and has no bearing on the present case. Section 4(3) of the Uttar Pradesh Coal Control Order was declared void on the ground that it committed to the unrestrained will of a single individual to grant withhold or cancel licences in any way he chose and there was nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. 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 no such provision as existed in the Uttar Pradesh Coal Control Order. Provisions of that Control Order bear no analogy to the provisions of the present Control Order. The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be 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 conferment of such a discretion (i) ; A.I.R. 1954 S.C. 225; 388 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 contention 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 conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities 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 vs The Queen (2) Hodge vs The Queen (3) and Shannon vs Lower Mainland Dairy Products Board (4)and since the coming 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) ; (2) 7 A.C. 829. (3) 9 A.C. II7. (4) [I938] A.C. 708. 389 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 could not very seriously press the question of ' the invalidity of section 3 of the Act and it is unnecessary therefore to consider 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 contended that it was for the Legislature itself to specify the particular authorities or officers who could exercise power under section 3 and it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise the power. Reference in this connection was made to two decisions of the Supreme Court of the United States of America Panama Refining Co. vs Ryan (1) and Schechter vs 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 no unconstitutional 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 not help the contention of Mr. Umrigar as we think that section 4 enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. The decision of their Lordships of the Privy Council in Shannon 's case (3) completely negatives the contention raised regarding the invalidity of section 4. (1) ; (3) (2) ; 390 In that case the Lt.Governor in Council was given power to vest in a marketing board the powers conferred by section 4A(d) of the Natural Products Marketing (British Columbia) Act 1936. The attack on the Act was that without constitutional authority it delegated legislative power to the Lt.Governor in Council. This contention was answered by their Lordships in these terms: " The third objection is that it is not 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 contained in this Act. " The next contention 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 not 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 not in direct conflict with sections 27 28 and 41 of the Railways Act. The Railways Act does not 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 not 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 nothing 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. 391 The last contention 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 not valid because apart from the grounds given by the High Court for holding that the two sections were not 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 notwithstanding anything inconsistent therewith contained 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 notwithstanding 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 could not 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 conferment of power of the widest amplitude to make an order inconsistent with the pre existing laws is nothing short of a power to repeal. In our opinion the construction placed on section 6 by the High Court is not right. Section 6 does not 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 concerned. 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 not 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. or the orders made thereunder. In other words the orders made under section 3 would be operative in regard to the essential commodity covered 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 commodities will not operate. By passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under section 3 it does not 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 not 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 notwithstanding any inconsistency in this order with any enactment other than this Act. This is not 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 contained in section 6 and is not 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 comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act. Parliament being supreme it certainly could make a law abrogating or repealing by implication provisions of any pre existing law and no exception could be taken on the ground of excessive delegation to the Act of the Parliament itself. There is no delegation involved in the provisions of section 6 at all and that section could not be held to be unconstitutional on that ground 393 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 constitutional and. the impugned order is also constitutional. Accordingly ' this appeal is dismissed and the trial Court is directed to proceed expeditiously with the case in accordance with law. Appeal dismissed.

Clause 3 of the Cotton Textile (Control of Movement) Order 1948 promulgated by the Central Government under section 3 of the Essential Supplies (Temporary Powers) Act 1946 does not deprive a citizen of the right to dispose of or transport cotton tex B tiles 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 respect cannot be regarded as an A unreasonable restriction on the citizen 's right under sub clauses (f) and (g) of article 19(1) of the Constitution. The policy underlying the Control Order is to regulate the transport of cotton textiles in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or a refusal of a permit is to be governed by the policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of power there is ample power in Courts to undo the mischief. Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (([1954] S.C.R. 803) distinguished. It was settled by the majority judgment in the Delhi Laws Act case ([1951] 'S.C.R. 747) that the essential powers of legislation cannot be delegated. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The Legislature has laid down such a principle in the Act and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at given prices. The preamble and the body of the sections in the Essential Supplies (Temporary Powers) Act 1946 sufficiently formulate the legislative policy and the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy. Therefore section 3 of the Act is not ultra vires the Legislature on the ground of delegation of legislative power. Section 4 of the Act enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. Accordingly section 4 of the Act is not ultra vires on the ground of excessive delegation of legislative powers. Shannon vs Lower Maintand Dairy Products Board ([1938] A.C. 708) applied. 382 The requirements of a permit by clause 3 and the provisions of clause 4 of the Central Order which empower the Textile Commissioner to direct a carrier to close booking or transport of cloth apparel etc. are not in conflict with sections 27 28 and 41 of the Railways Act. These clauses merely supplement the relevant provisions of the Railways Act and do not supersede them. ' Section 6 of the Act does not either expressly or by implication repeal any of the provisions of the preexisting laws ; nor does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means that the repealed statute must be regarded as if it had never been on the statute book. The effect of section 6 is not to repeal those laws or abrogate them but simply to by pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act 1946 or the orders made thereunder. Even assuming that the existing law stands repealed by implication such abrogation or repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3. Accordingly there is no delegation involved in the provision of section 6 and it cannot be held uncon stitutional on that ground.

iminal Appeal No. 33 of 1953. Appeal under article 132(1) of the Constitution of India from the Judgment and Order dated the 20th February 1953 of the High Court of Judicature at Madras in Criminal Revision Case No. 1034 of 1953 (Criminal Reference No. 51 of 1953). C. Daphtary Solicitor General for India V. K. T. C Chari Advocate General for Madras (Porus A. Mehta and P. G. Gokhale with them) for the appellant. M. K. Nambiar (section Subramanian with him) for the respondent. C.K. Daphtary Solicitor General for India (Porus A. Mehta and P. G. Gokhale with him) for the Intervener (Union of India). 281 1954. May 19. The Judgment of the Court was delivered by MEHAR CHAND MAHAJAN C. J. This is an appeal on a certificate under article 132(1) of the Constitution against the judgment of the High Court of Judicature at Madras dated the 20th February 1953 holding that section 14 of the Fugitive Offenders Act 1881 is void as it offends against the provisions of the Constitution being discriminatory in its effect. The respondents husband and wife were apprehended and produced before the Chief Presidency Magis trate Egmore Madras pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act 1881. Mr. Menon is a barrister at law and was practising as an advocate and solicitor in the Colony of Singapore. Mrs. Menon is an advocate of the Madras High Court and was until recently a member of the Legislative Council of the Colony of Singapore. Both of them came to India some time after July 1952. On the 22nd August 1952 the Government of Madras forwarded to the Chief Presidency Magistrate Madras copies of communications that passed between the Government of India and the Colonial Secretary of Singapore requesting the assistance of the Government ' of India to arrest and return to the Colony of Singapore the Menons under warrants issued by the Third Police Magistrate of Singapore. Mr. Menon was charged on several counts of having committed criminal breach of trust and Mrs. Menon was charged with the abetment of these offences. The Menons when produced before the Presidency Magistrate questioned the validity of their arrest. They pleaded their innocence and contended that being citizens of India they could not be surrendered as. the warrants related to matters of a civil nature and had been given the colour of criminal offences merely for the purpose of harassing them out of political animosity and with a view to prejudice the Court against them and were issued in bad faith. It was further urged that the provisions of the Fugitive Offenders Act under which action was sought to be taker against them were 282 repu gnant to the Constitution of India and were void and unenforceable. The Presidency Magistrate expressed the view that by retaining the and with it Chapter IV the President of India may have intended to give effect to the Fugitive Offenders Act 1881 but by the omission to adapt or modify it suitably it had become impossible to give effect to that intention the provisions of the Act as they are being inconsistent with and repugnant to the sovereign status of the Indian Republic. In view however of the provisions of section 432 Criminal Procedure Code as amended by Act XXIV of 1951 he referred to the decision of the High Court the following questions of law: (1) Whether the Fugitive Offenders Act 1881 applies to India after 26th January 1950 when India became a Sovereign Democratic Republic; and (2) Whether even if it applied it or any of its pro visions particularly Part II thereof is repugnant to the Constitution of India and is therefore void and or inoperative. The High Court held that section 14 of the Fugitive Offenders Act was inconsistent with the fundamental right of equal protection of the laws guaranteed by article 14 of the Constitution and was void to that extent and unenforceable against the petitioner. The second question referred having thus been answered in favour of the respondents it was not thought necessary to return any answer to the first question. As above stated a certificate under article 132(1) of the Constitution for leave to appeal to the Supreme Court against this decision was granted to the State of Madras. The Union of India was allowed to intervene at their request. The learned Solicitor General who argued the case on behalf of the Intervener as well as on behalf of the State of Madras conceded that the Fugitive Offenders Act 1881 was not adapted by any specific order of the President and that the Parliament in India had not enacted any Legislation on its lines. He however contended that the omission to adapt the impugned Act 283 in no way affected the question whether it was in force as the law in the territory of India after the commencement of the Constitution. Reliance was placed on article 372 (1) of the Constitution which is in these terms: Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. " And it was said that the impugned Act was the law in force in the territory of India immediately before the commencement of the Constitution and continued in force under the provisions of this article after its commencement. It was also said that the adaptations made in the by implication kept alive the Fugitive Offenders Act 1881 and its different provisions. In order to decide whether Part 11 of the Fugitive Offenders Act 188 1 comprising sections 12 and 14 under the provisions of which the Menons are under arrest has force after the coming into force of the Constitution it is necessary to appreciate the relevant provisions of the Act. The Fugitive Offenders Act 188 1 as enacted by the British Parliament is sub divided into four parts and is comprised. of 41 sections. Part I of the Act concerns itself with offences mentioned in section 9. Section 5 of this part provides that a fugitive when apprehended shall be brought before a Magistrate who shall hear the case in the same manner and have the same jurisdiction and powers as near as may be as if the fugitive was charged with an offence committed within his jurisdiction and that if the endorsed warrant for the apprehension of the fugitive is duly authen ticated and such evidence is produced as according to the law ordinarily administered by the magistrate raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant and that the offence is one to which this part of this Act 284 applies the magistrate shall commit the fugitive to prison to await his return and shall forthwith send a certificate of the committal and such report of the case as he may think fit if in the United Kingdom to a Secretary of State and if in a British Possession to the Governor of that possession. Section 12 which is the first section in Part II of the Act is in these terms : "This part of this Act shall apply only to those groups of British Possessions to which by reason of their contiguity or otherwise it may seem expedient to Her Majesty to apply the same. It shall be lawful for Her Majesty from time to time by Order in Council to direct that this part of this Act shall apply to the group of British possessions mentioned in the Order and by the same or any subsequent Order to except certain offences from the application of this part of this Act and to limit the application of this part of this Act by such conditions exceptions and qualifications as may be deemed expedient. " Section 14 which is directly in point so far as the respondents are concerned provides as follows : "The magistrate before whom a person so apprehended is brought if he is satisfied that the warrant is duly authenticated as directed by this Act and was issued by a person having lawful authority to issue the same and is satisfied on oath that the prisoner is the person named or otherwise described in the Warrant may order such prisoner to be returned to the British Possession in which the warrant was issued and for that purpose to be delivered into the custody of the person to whom the warrant is addressed or any or more of them and to be held in custody and conveyed by sea or otherwise into the British Possession in which the warrant was issued there to be dealt with according to law as if he had been there apprehended. Such order for return may be made by warrant under the hand of the magistrate making it and may be executed according to the tenor thereof" A comparison between the provisions of Part I and Part II of the Act makes it clear that with regard to 285 offences relating to which Part I has application a fugitive when apprehended could not be committed to prison and surrendered unless the magistrate was satisfied that on the evidence produced before him there was a strong or probable case against him while in regard to a fugitive governed by Part II of the Act it was not necessary to arrive at such a finding before surrendering him. There is thus a substantial and material difference in the procedure of surrendering fugitive offenders prescribed by the two parts of the Act. The scheme of the Fugitive Offenders Act is that it classifies fugitive offenders in different categories and then prescribes a procedure for dealing with each class. Regarding persons committing offences in the United Kingdom and British Dominions and foreign countries in which the Crown exercises foreign jurisdiction the procedure prescribed by Part I of the Act has to be followed before surrendering them and unless a prima facie case is established against them they cannot be extradited. Extradition with foreign States is except in exceptional cases governed by treaties or arrangements made inter se. Extradition of offenders between the United Kingdom and the Native States in India is governed by the . Under the provisions of that Act no person apprehended could be surrendered unless prima facie case was made out against him. Extraditions inter se between British possessions however were dealt with differently by the Act. They were grouped together according to their contiguity etc. by an Order in Council and treated as one territory and this grouping was subject to alterations and modifications by Order in Council and conditions of extradition. could also be prescribed by such an Order. An Order in Council dated the 2nd January 1918 .grouped together the following British Possessions and Protected States with British India for the purposes of Part II of the Act : Ceylon Hongkong the Straits Settlements the Federated Malay States Johore Kedah and Perlis Kelantan Trengannu Brunei North Borneo and Sarawak. The Order is these terms: 286 " Whereas by an order of Her Majesty Queen Victoria in Council bearing date the 12th day of December 1885 it was ordered that Part 11 of the Fugitive Offenders Act 1881 should apply to the group of British Possessions therein mentioned that is to say Her Majesty 's East Indian Territories Ceylon and the Straits Settlements; And whereas by the Straits Settlements and Protected States Fugitive Offenders Order in Council 1916 as amended by the Straits Settlements and Protected States Fugitive Offenders Order in Council 1917 it is ordered that the Fugitive Offenders Act 1881 shall apply as if the Protected States named in the schedule to the first mentioned order were British Possessions ; And whereas by reason of their contiguity or the frequent intercommunication between them it seems expedient to His Majesty and conducive to the better administration of justice therein to apply Part II of the Fugitive Offenders Act 1881 to the above named British Possessions and Protected States and such application has been requested by the Rulers of the said States ; Now therefore His Majesty by virtue of the powers in this behalf by the Fugitive Offenders Acts 1881 and 1915 and otherwise in His Majesty vested is pleased by and with the advice of His Privy Council to order and it is hereby ordered as follows : On and after the first day of February 1918 the herein before recited Order in Council of the 12th day of December 1885 shall be revoked without prejudice to anything lawfully done thereunder or to any proceedings commenced before the said date and Part II of the Fugitive Offenders Act 1881 shall apply to the group of British Possessions and Protected States hereunder mentioned that is to say British India Ceylon Hongkong Straits Settlements the Federated Malay States Johore Kedah and Perlis Kelantan Trengannu Brunei North Borneo and Sarawak. " 287 By another Order in Council dated the 29th July 1937 Burma which ceased to be part of British India was also included in the group of British Possessions and Protected States mentioned in the earlier Order in Council. It is plain from the above provisions of the Act as well as from the Order in Council that British Possessions which were contiguous to one another and between whom there was frequent inter communication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who had committed offences in these integrated territories. As the laws prevailing in those possessions were substantially the same the requirement that no fugitive will be surrendered unless a prima facie case was made against him was dispensed with. Under the also a similar requirement is insisted upon before a person can be extradited. The situation completely changed when India became a Sovereign Democratic Republic. After the achievement of independence and the coming into force of the new Constitution by no stretch of imagination could India be described as a British Possession and it could not be grouped by an Order in Council amongst those Possessions. Truly speaking it became a foreign territory so far as other British Possessions are concerned and the extradition of persons taking asylum in India having committed offences in British Possessions could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British 'Government and given effect to by appropriate legislation. The Union Parliament has not so far enacted any law on the subject and it was not suggested that any arrangement has been arrived at between these two Governments. The has been adapted but the Fugitive Offenders Act 1881 which was an Act of the British Parliament has been left severely alone. The provisions of that Act could only be made applicable to 288 India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act. In the absence of any legislation on those lines it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 372 of the Constitution. The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone; India is no longer a British Possession and no Order in Council can be made to group it with other British Possessions. Those of the countries which still form part of British Possessions and which along with British India were put into a group may legitimately decline to reciprocate with India in the matter of surrender of fugitive offenders on the ground that notwithstanding article 372 of our Constitution India was no longer a British Possession and therefore the Fuogitive Offenders Act 1881 did not apply to India and they were not bound in the absence of a new treaty to surrender their nationals who may have committed extraditable offences in the territories of India. Indeed some of the other members of this group have also achieved independence. Under section 12 of the Act it is not possible for His Majesty from time to time by Order in Council to alter the character of this group or its composition or to take any action as prescribed by that section. Article 372 of the Constitution cannot save this law because the grouping is repugnant to the conception of a sovereign democratic republic. The political background and shape of things when Part II of the Fugitive Offenders Act 1881 was enacted and envisaged by that Act having completely changed it is not possible without radical legislative changes to adapt that Act to the changed conditions. That being so in our opinion the tentative view expressed by the Presidency Magistrate was right and though the High Court did not return the answer to the first question referred to it in our judgment the case can be shortly disposed of on that ground. The contention of the learned Solicitor General that by reason of the adaptations made in the Indian and references wade therein to Extradition Act 1903 the Fugitive Offenders Act it should be held that the whole of the Fugitive Offenders Act including PartII had been adapted by the President does not seem to be well founded. The scheme of the which was founded on the English Act is quite different. It does not specifically keep alive any of the provisions of Part II of the Fugitive Offenders Act 1881 and thefere is no adaptation of the Fugitive Offenders Act 1881 within the four corners of the . In these circumstances it is not possible to work out the sections of the Fugitive Offenders Act and apply them to the situation that has arisen after the coming into force of the Constitution of India. Moreover clause 28 of the Adaptation of Laws Order 1950 can have no application to such a case. We do not think that it is necessary in the present case to enter into a discussion of the question whether British Possessions with which India was grouped under Part 11 of the Fugitive Offenders Act 1881 should now be treated as foreign States qua India and that offenders apprehended can be surrendered under the or any other law provided a prima facie case is made against them as the proceedings taken against the respondents were specifically taken Under section 14 of the Fugitive Offenders Act 1881 and it is not the practice of this Court to decide questions which are not properly raised before it or which do not arise directly for decision. For the reasons given above we uphold the decision of the High Court though on a ground different from that on which that Court decided in favour of the respondents. The appeal therefore fails and is dismissed. Appeal dismiesed.

After the achievement of independence and the coming into force of the new Constitution India became a Sovereign Demo cratio Republic and could not be described as a British Possession or grouped by an Order in Council amongst those Possessions within the meaning of section 12 of the Fugitive Offenders Act 1881. It became a foreign country so far as other British Possessions &re concerned and the extradition of persons taking asylum in India having committed offences in British Possessions could only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate Legislation. The (Act XV of 1903) has been adapted under the provisions of article 372 of the Constitution but this Act has not kept &live any of the provisions of the Fugitive Offenders Act 1881 which was an act of the British Parliament and which has not been adopted and therefore section 12 and section 14 of the Fugitive Offenders Act 1881 have no application to India.

Appeal No. 150 of 1953. Appeal by Special Leave from the Judgment and Order dated the 30th April 1953 of the Election Tribunal Jabalpur at Nagpur in Election Petition No. I of 1952. B. Sen T. P. Naik and I. N. Shroff for the appellant. R. M. Hajarnavis J. B. Dadachanji and Rajinder Narain for respondent No. 1. 269 1954. May 19. The Judgment of the Court was delivered by MUKERJEA J. This appeal which has come before us on special leave is directed against the judgment and order of the Election Tribunal Jabalpur at Nagpur dated the 30th April 1953 whereby the Tribunal declared the election held on the 29th December 1951 for the double member Lakhnadon Legislative Assembly Constituency to be wholly void under section 100(1)(c) of the Representation of the People Act (hereinafter called "the Act"). To appreciate the contentions that have been raised by the parties to this appeal it would be necessary to state briefly the material facts. The Lakhnadon Legistive Assembly Constituency in Madhya Pradesh is a double member constituency one of the seats in which is reserved for Scheduled Tribes. The appellant and respondents Nos. 1 3 5 and 7 were duly nominated candidates for the general seat in the said constituency while respondents Nos. 2 4 and 6 were nominated for the reserved seat. No objection was taken before the Returning Officer in respect of the nomination of either the appellant or respondent No. 2 Vasant Rao. Out of these eight candidates respondents Nos. 5 6 and 7 withdrew their candidature within the prescribed period under section 37 of the Act and the actual contest at the election was between the remaining five candidates namely the appellant and respondents Nos. I to 4. The votes secured by these five candidates at the polling were found to be as follows : (1) The Appellant (General). 18 627 (2) Respondent No. I (General)7 811 (3) Respondent No. 2 (Reserved)14 442 (4) Respondent No. 3 (Reserved)7 877 (5) Respondent No. 4 (General)6 604 Accordingly the appellant and respondentNo. 2 were declared elected to the general and reserved seat respectively under section 66 of the Act and the results were duly published in the Madhya Pradesh Gazette on 8th of February 1952. On the 14th of May 1952 the 270 respondent No. 1 Raghuraj Singh filed an election petition against the appellant and the other respondents under section 81 of the Act praying that the said election to the Lakhnadon Legislative Assembly Constituency be declared wholly void or in the alternative the election of Vasant Rao and/or that of the appellant Durga Shankar Mehta be declared void. There was a string of allegations made in the petition accusing the appellant of various corrupt practices in the matter of securing votes but none of these are material for our present purpose as the Tribunal by a majority held these allegations to be unfounded and not supported by proper evidence. The substantial ground upon which the petitioner sought to assail the validity of the election was that the respondent No. 2 Vasant Rao who was declared duly elected to the reserved seat in the said constituency was at all material times under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under article 173 of the Constitution. This allegation was found to be true by the majority of the Tribunal and by its judgment dated the 30th of April 1953 the Tribunal came to the conclusion that the act of the Returning Officer in accepting the nomination of Vasant Rao who was disqualified to be elected a member of the State Legislature under the Constitution amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act and as the result of the election was materially affected thereby the whole election must be pronounced to be void. It is the propriety of this decision that has been challenged before us in this appeal. Mr. Hazarnavis appearing for the respondent No. I before us took a preliminary point challenging the competency of the appeal. It is contended by the learned counsel that article 329(b) of the Constitution ousts the jurisdiction of all ordinary Courts in election disputes and provides expressly that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question except by and an election petition presented to such authority a in such manner as may be provided for by or 271 under any law made by the appropriate Legislature. It is urged that there can be no challenge to the validity of an election except by way of an election petition and the authority to which and the manner in which such petition is to be presented have been embodied in the Representation of the People Act which has been enacted by the Parliament under article 327 of the Constitution. Section 80 of the Act which is worded almost in the same manner as article 329(b) provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part"; and section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive. " It is contended by the learned counsel that the jurisdiction that is created in the Election Tribunal is a special jurisdiction which can be invoked by an aggrieved party only by means of an election petition and the decision of the Tribunal is final and conclusive. These arguments though apparently attractive appear to us on closer examination to be untenable. We agree with the learned counsel that the right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right no other remedy by ordinary action in a Court of law is available to a person in regard to election disputes. The jurisdiction with which the Election Tribunal is endowed is undoubtedly a special jurisdiction ; but once it is held that it is a judicial Tribunal empowered and obliged to deal judicially with disputes arising out of or in connection with election the overriding power of this Court to grant special leave in proper cases would certainly be attracted and this power cannot be excluded by any Parliamentary legislation. The non obstante clause with which article 329 of the Constitution begins and upon which the respondent 's counsel lays so much stress debars us as it debars any other Court 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 272 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. It is now well settled by the majority decision of this Court in the case of Bharat Bank Ltd. vs Employees of the Bharat Bank Ltd. (1) that the expression "Tribunal" as used in article 136 does not mean the same thing as "Court" but includes within its ambit all adjudicating bodies provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. The only Courts or Tribunals which are expressly exempted from the purview of article 136 are those which are established by or under any law relating to the Armed Forces as laid down in clause (2) of the article. It is well known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself. The powers given by article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting of special leave against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way. Section 105 of the Representation of the People Act certainly gives finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this Court can exercise in the matter of granting special leave under article of the Constitution. (i) [195o] S.C.R. 459 273 This overriding power which has been vested in the Supreme Court under article 136 of the Constitution is in a sense wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England. The prerogative of the Crown can be taken away or curtailed by express legislation and even when there are no clear words in a particular statute expressly taking away the Crown 's prerogative of entertaining an appeal but the scheme and purpose of the Act show unmistakably that there was never any ' intention of creating a Tribunal with the ordinary incident of an appeal to the Crown annexed to it the Privy Council would not admit an appeal from the decision of such Tribunal. This is illustrated by the decision of the Privy Council in The berge vs Laudry(1) upon which Mr. Hozarnavis places considerable reliance. In that case the petitioner having been declared duly elected a member to represent the electoral district of Montmanier in the Legislative Assembly of the Province of Quebec his election was afterwards on petition declared null and void by judgment of the superior Court under the Quebec Controverted Elections Act 1875 and he himself was declared guilty of corrupt practices. He applied for special leave to appeal to His Majesty in Council. The application was refused and Lord Cairns in delivering the judgment of the Board held that although the prerogative of the Crown could not be take in away or limited except by express words and the relevant section of the Quebec Controverted Elections Act of 1875 providing that "such judgment shall not be susceptible of appeal" did not mention either the Crown or its prerogative yet the fair construction of the above Act as also of the previous Act of/1872 was that it was the intention of the Legislature to create a Tribunal for the purpose of trying election petitions in a manner which would make its decision final for all purposes and should not annex to it the incident of its judgment being reviewed by the Grown under its prerogative. This decision in our opinion does not assist Mr. Hazamavis. In the first place article 136 is a (I) 274 constitutional provision which no Parliamentary legislation can limit or take away. In the second place the provision being one which overrides ordinary laws no presumption can arise from words and expressions declaring an adjudication of a particular Tribunal to be final and conclusive that there was an intention to exclude the exercise of the special powers. As has been said already the non obstante clause in article 329 prohibits challenge to an election either to Parliament or any State Legislature except in the manner laid down in clause (2) of the article. But there is no pro hibition of the exercise of its powers by the Supreme Court in proper cases under article 136 of the Constitution against the decision or determination of an Election Tribunal which like all other judicial tribunals comes within the purview of the article. It is certainly desirable that the decisions on matters of disputed election should as soon as possible become final and conclusive so that the constitution of the Legislature may be distinctly and speedily known. But the powers under article 136 are exercisable only under exceptional circumstances. The article does not create any general right of appeal from decisions of all Tribunals. As regards the decision of this Court in Ponnuswami vs Returning Officer Namakkal Consistituency and Others (1) to which reference has been made by the learned counsel we would only desire to point out that all that this case decided was that the High Court bad no jurisdiction under article 226 of the Constitution to interfere by a writ of certiorari with the order of a Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate. It was held that the word "election" in article 329(b) of the Constitution had been used in the wide sense to connote the entire process culminating in a candidate 's being declared elected and that the scheme of Part XV of the Constitution was that all matters which had the effect of vitiating election should be brought up only after the election was over and by. way of an election petition. The particular point which arises for considers. tion here was not decided in that case and was expressly (I) ; 275 left open. In our opinion therefore the preliminary point raised by Mr. Hazarnavis cannot succeed. Coming now to the appellant 's case Mr. Sen who appeared in support of the appeal has pressed only one point for our consideration. He plainly stated that he could not challenge the propriety of the finding arrived at by the majority of the Tribunal that respondent Vasant Rao was below 25 years of age at all material times. This he concedes is a finding of fact and being based on evidence is not open to challenge before us in an appeal by special leave. His contention in substance is that there has been no improper acceptance of nomination in the present case as has been held by the Tribunal and consequently the provision of section 100(1)(c) of the Act would not be attracted to it and the entire election could not have been declared void. It is true says the learned counsel that on the finding of the Tribunal there has been a violation of or non compliance with the provision of article 173 of the Constitution and as respondent No. 2 suffers from a constitutional disability by reason of his under age and is not qualified to be chosen to fill a seat in the Legislative Assembly of a State his election can undoubtedly be declared void under section 100(2)(c) of the Act but there was no justification for pronouncing the whole election including that of the appellant to be void. The whole controversy thus centres round the point as to whether upon the facts admitted and proved the present case comes within the purview of sub section (1)(c) of section 100 of the Act or of sub section (2)(c) of the same section. The relevant portions of section 100 of the Act so far as are material for our present purpose may be set out as follows: "100. Grounds for declaring election to be void (1) If the Tribunal is of opinion (a) . . . . . . . . . (b) . . . . . . . . (c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination the Tribunal shall declare the election to be wholly void. 276 (2) Subject to the provisions of subsection (3) if the Tribunal is of opinion (a). . . . . (b). . . . . (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void or by any non compliance with the provisions of the Constitution or of this Act or of any or orders made under this Act or of any other Act or rules relating to the election or by any mistake in the use of any prescribed form the Tribunal shall declare the election of the returned candidate to be void. " The first point for our consideration is whether the nomination of Vasant Rao was improperly accepted by the Returning Officer and that has materially affected the result of the election. It is not suggested on behalf of the respondent that the nomination paper filed by Vasant Rao was in any manner defective. It is admitted that the names and electoral numbers of the candidate and his proposer and seconder as entered there were the same as those entered in the electoral rolls. It is also not disputed that the nomination paper was received within proper time as is laid down in section 33 sub section (4) of the Act. Section 36 of the Act provides for scrutiny of nominations and under subsection (2) the Returning Officer has got to examine the nomination papers and decide all objections that may be made to any nomination and he may either on such objection or oh his own motion after such summary enquiry if any as he thinks necessary refuse any nomination on any of the grounds which are specified in the different clauses of the sub section. The ground mentioned in clause (a) of the sub section is that the candidate is not qualified to be chosen to fill the seat under the Constitution or the Act. The contention of the respondent No. 1 is that the nomination of Vasant Rao should have been rejected on this ground and as the Returning Officer did not do that his act 277 amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act. We do not think that this contention is sound. If the want of qualification.of a candidate does not appear on the face of the nomination paper or of the electoral roll but is a matter which could be established only by evidence an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the 'result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination the Returning Officer has no other alternative but to accept the nomination. This would be apparent from section 36 subsection (7) of the Act which runs as follows: "(7) For the purposes of this section (a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe a nomination paper as the case may be. unless it is proved that the candidate is disqualified under the Constitution or this Act or that the proposer or seconder as the case may be is disqualified under sub section (2) of section 33. " In other words the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. The electoral roll in the case of Vasant Rao did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of the State Legislative Assembly. As no objection was taken to his nomination before the Returning Officer at the. time of scrutiny the latter was bound to take the entry in the electoral roll as conclusive ; and if in these circumstances he did not reject the nomination of Vasant Rao it cannot be said that this was an improper acceptance of nomination on his part which 278 section 100(1)(c) of the Act contemplates. It would have been an improper acceptance if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him. When neither of these things happened the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may on evidence placed before it come to a finding that * the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer. In our opinion Mr. Sen is right that a case of this description comes under sub section (2)(c) of section 100 and not under sub section (1)(c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution and that is one of the grounds specified in clause (c) of subsection (2). The expression " non cgmpliance with the provisions of the Constitution " is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer but there is a fundamental disability in the candidate to stand for election at all. The English law after the passing of the Ballot Act of 1872 is substantially the same as has been explained in the case of Stowe vs Jolliffe(1). The register which corresponds to our electoral roll is regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of Parliament. It is argued on behalf of the respondent that the expression" non compliance as used in subsection (2)(c) would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of (1) 279 qualification. This we think would be a narrow way of looking at the thing. When a person is incapable of being chosen as a member of a State Assembly under the provisions of the Constitution itself but has never. theless been returned as such at an election it can be said without impropriety that there has been noncompliance with the provisions of the Constitution materially affecting the result of the election. There is no material difference between " non compliance " and " non observance " or " breach" and this item in clause (c) of sub section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member there can be no doubt that the Election Tribunal has got to declare his election to be void. Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non compliance with the provisions of the Constitution in the holding of the election and as such sub section (2)(c) of section 100 of the Act applies. The result therefore is that in our opinion the contention of the appellant succeeds. We allow the appeal in part and modify the order of the Election Tribunal to this extent that the election of respondent No. 2 Vasant Rao only is declared to be void; the election of the appellant however will stand. We make no order as to costs of this appeal. Order accordingly.

Article 136 of the Constitution is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by a Court or ' Tribunal in any cause or matter and the powers can be exercised in spite of the specific provisions for appeal contained in the Consti tution 'or other laws. The powers given by the article are however in the nature of special or residuary powers which are exercisable outside the purview of ordinary law in cases where the needs of justice demand interference by the Supreme Court. The non obstante clause in article 329 of the Constitution which debars the Supreme Court as well as any other Court in India from entertaining a suit or a proceeding calling in question any election to Parliament or the State Legislature and section 105 of the Representation of the People Act which gives finality to the decision of the Election Tribunal so far as that Act is 268 concerned and does not provide for any further appeal do not cut down or affect the overriding powers which the Supreme Court can exercise in the matter of granting special leave under article 136 of the Constitution. The overriding power vested in the Supreme Court under article 136 of the Constitution is wider than the prerogative right of entertaining an appeal exercised by the Judicial Committee of the Privy Council in England because the prerogative right of the Grown can be taken away or curtailed by express legislation but the Constitutional provision in article 136 cannot be limited or taken away by any Parliamentary legislation and this Constitutional provision overrides ordinary laws and no presumption can arise from words and expressions declaring an adjudication of a particular Tribunal to be final and conclusive that there was an intention to exclude the exercise of the special power. Where on the finding of the Tribunal there has been a viola tion of or non compliance with the provision of article 173 of the Constitution because the candidate suffers from a Constitutional disability by reason of his under age the case falls under sub section (2) (c) of section 100 of the Representation of the People Act and not under sub section (1) (c) of section 100 of the Act and election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer and therefore the 'election of that candidate only should be declared void and not the whole election. The expression " non compliance with the provisions of the Constitution " in clause (c) of sub section (2) of section 100 of the Act is sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer but there is a fundamental disability in the candidate to stand for election at all. Bharat Bank Ltd. vs Employees of the Bharat Bank Ltd. ([1950] S.C.R. 459) Theberge vs Laudry ( [1876 771 2 A.C. 102) Stowe vs Jolliffe and Ponnuswami vs Returning Officer Namakkal Constituency and Others ( ; referred to.

Appeal No. 151 of 1953. Appeal by Special Leave granted by the Supreme Court of India by its Order dated the 29th May 1953 from the Judgment and Order dated the 4th May 1953 of the Election Tribunal Allahabad in Election Petition No. 270 of 1952. I C. K. Daphtary Solicitor General for India (G. C. Mathur and C. P. Lal with him) for the appellant. Naunit Lal for respondents Nos. I to 4. 1954. May 20. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal preferred under article 136 of the Constitution against the order dated May 4 1951 of the Election Tribunal Allahabad setting aside the election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly raises two questions for consideration. The first question is whether the nomination of one of the rival candidates Dudh Nath was improperly accepted by the Returning Officer and the second whether the result of the election was thereby materially affected. Eight candidates filed nominations to the Uttar Pradesh Legislative Assembly from Ghazipur (South East) Constituency No. 345 three withdrew their 511 candidature and the contest was confined to the remaining five. The votes secured by these candidates were as follows 1. Vashist Narain Sharma 12868 2. Vireshwar Nath Rai 10996 3. Mahadeo 3950 4. Dudh Nath 1983 5. Gulab Chand 1768 They were arrayed in the election petition as respondents Nos. I to 5 respectively. The first respondent having secured the highest number of votes was declared duly elected. Three electors filed a petition under section 81 of the Representation of the People Act (Act XLIII of 1951) "praying that the election of the returned candidate be declared void and that respondent No. 2 be declared to have been duly elected; in the alternative that the election be declared wholly void. The election was sought to be set aside on the grounds inter alia that the nomination of respondent No. 4 was improperly accepted by the Election Officer and that the result of the election was thereby materially affected. The Tribunal found that respondent No. 4 whose name was entered on the electoral roll of Gahmar Constituency Ghazipur (South East) 'personated ' (meaning passed himself off as) Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency ghazipur (South West) that the Returning Officer had improperly accepted his nomination and that the result of the election was thereby materially affected. Allegations of major and minor corrupt practices and non compliance with certain statutory rules were made but the Tribunal found in favour of the returned candidate on those points. Dudh Nath respondent No. 4 is Rajput by caste. His permanent or ancestral home is Gahmar but since 1943 he had been employed as a teacher in the Hindu Higher Secondary School at Zamania a town 10 or 12 miles away and he had been actually residing at village Baruin which is quite close to Zamania. The person for whom Dudh Nath 'personated ' is Dudh Nath Kahar whose permanent house is at Jamuan 512 but his father lives at Baruin. Dudh Nath Kahar used to visit Baruin off and on but he was employed at Calcutta. The nomination paper filed by Dudh Nath gave his parentage and age which more properly applied to Dudh Nath Kahar. He gave his father 's name as Shiv Deni alias Ram Krit. Ram Krit is the name of Dudh Nath Kahar 's father. The electoral roll (Exhibit K) of Gahmar gives Dudh Nath 's father 's name as Shio Deni with no alias and his age as 39 while the electoral roll of Pargana Zamania Monza Baruin (Exhibit C) gives Dudh Nath 's father 's name as Ram Krit and his age as 31. In the electoral roll of Jamuan Dudh Nath 's age is entered as 34 but in the supplementary list it is mentioned as 30. When the nomination paper was filed on November 24 1951 at 2 20 P.m. it was challenged by Vireshwar Nath Rai on the ground that Dudh Nath 's father 's name was Shivadeni and not Ram Krit but no proof was given in support of the objection and it was overruled on November 27. This order was passed at 1 P.m. One of the candidates who later withdrew filed an application at 3 25 P.m. before the Returning Officer offering to substantiate the objection which the objector had not pressed. This application was rejected on the ground that the nomination had already been declared as valid. In point of fact no evidence was adduced. This acceptance of the nomination on the part of the Returning Officer is challenged as being improper under section 36(6) of the Representation of the People Act and as the result of the election according to the objector has been materially affected by the improper acceptance of this nomination the Tribunal is bound to declare the election to be wholly void under section 100(1) (c) of the Act. Mr. Daphtary on behalf of the. appellant has argued before us with reference to the provisions of sections 33 and 36 that this is not a case of improper acceptance of the nomination paper because prima facie the nomination paper was valid and an objection having been raised but not pressed or substantiated the Returning Officer had no option but to accept it. There was as he says nothing improper in the action of the Returning Officer On the contrary 513 it may according to him be more appropriately described as a case of an acceptance of an improper nomination paper by the Returning Officer inasmuch as the nomination paper contained an inherent defect which was not discernible ex facie and could be disclosed only upon an enquiry and upon the taking of evidence as to the identity which was not then forthcoming. Such a case it is argued is not covered by section (1)(c) but by section 100(2)(c) in which case the election of the returned candidate is alone to be declared void whereas in the former case the election is wholly void. We do not propose to express any opinion upon this aspect of the matter as in our view the appeal can be disposed of on the second question. Section 33 of the Representation of the People Act 1951 deals ' with the presentation of nomination paper and lays down the requirements for a valid nomination On the date fixed for scrutiny of the nominations the Returning Officer is required to examine the nomination paper and decide all objections which may be made to any nomination and after a summary enquiry. if any as he thinks necessary he is entitled to refuse nomination on certain grounds mentioned in sub section (2) of section 36. Sub section (6) lays down that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. This sub section shows that where the nomination paper is accepted. no reasons are required to be given. Section 100 gives the grounds for declaring an election to be void. The material portion is as follows: (1) If the Tribunal is of opinion (a). . . . . . . . (b). . . . . . . . (c)that the result of the election has been materially affected by the improper acceptance or rejection of any nomination the Tribunal shall declare the election to be wholly void. It is under this sub section that the election was sought to be set aside 66 514 Before an election can be declared to be wholly void under section 100(1) (c) the Tribunal must find that "the result of the election has been materially affected. " These words have been the subject of much controversy before the Election Tribunals and it is agreed that the opinions expressed have not always been uniform or consistent. These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. The next question that arises is whether the burden of proving this lies upon the petitioner who objects to the validity of the election. It appears to us that the volume of opinion preponderates in favour of the view that the burden lies upon the objector. It would be useful to refer to the corresponding provision in the English Ballot Act 1872 section 13 of which is as follows: " No election shall be declared invalid by reason of a non compliance with the rules contained in the first schedule to this Act or any mistake in the use of the forms in the second schedule to this Act if it appears to the Tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act and that such non compliance or mistake did not affect the result of the election." This section indicates that an election is not to be declared invalid if it appears to the Tribunal that non compliance with statutory rules or any mistake in the use of such forms did not affect the result of the election. This throws the onus on the person who seeks to uphold the election. The language of section 100(1)(c) however clearly places a burden upon the objector to substantiate the objection that the result of the election has been materially affected. On the contrary under the English Act the burden is placed upon the respondent to show the negative viz. that the result of the decision has not been affected. This view was expressed 515 in Rai Bahadur Surendra Narayan Sinha vs Amulyadhone Roy & others (1) by a Tribunal presided over by Mr. (later Mr. Justice) Roxburgh. The contention advanced in that case was that the petitioner having established an irregularity it was the duty of the respondent to show that the result of the election had not been materially affected thereby. The Tribunal referred to the provisions of section 13 of the Ballot Act and drew a distinction between that section and the provisions of paragraph 7(1) (c) of Corrupt Practices Order which was more or lesson the same lines as section 100(1) (c). They held that the onus is differently placed by the two provisions. While under the English Act the Tribunal hearing an election petition is enjoined not to interfere with an election if it appears to it that non compliance with the rules or mistake in the use of forms did not affect the result of the election the provision of paragraph 7(1) (e) placed the burden on the petitioner. The Tribunal recognized the difficulty of offering positive proof in such circumstances but expressed the view that they had to interpret and follow the rule as it stood. In C. M. Karale vs Mr. B. K. Dalvi etc. (2) the Tribunal held that the onus of proving that the result had been materially affected rests heavily on the petitioner of proving by affirmative evidence that all or a large number of votes would have come to the returned candidate if the person whose nomination had been improperly accepted had not been in the field. In Babu Basu Sinha vs Babu Rajandhari Sinha etc. it was emphasized that it is not enough for the petitioner to show that the result of the election might have been affected but he must show that it was actually affected thereby. The case of Jagdish Singh vs Shri Rudra Deolal etc. was one under section 100(1) (c) of the Representation of the People Act. It was held that the question should always be decided on the basis of the material on the (1) Indian Election Cases by Sen and Poddar page 188. (2) Doabia 's Election Cases Vol. 1 (P. I78). (3) Indian Election Petitions (Vol. III) by Shri jagat Narain page So. (4) Gazette of India (Extraordinary) October 13 1953. 516 record and not on mere probabilities. The Tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected in the latter case the petitioner must prove by affirmative evidence though it is difficult that the result had been materially affected. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways: (1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes (2) where the person referred to above secured more votes and (3) where the person whose nomination has been improperly accepted is the returned candidate himself. It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion. But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any 517 one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation it is not possible to relieve him of the duty imposed upon him by section 100(1) (c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the ' Court to find in his favour on this point the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand. In two cases [Lakhan Lal Mishra vs Tribeni Kumar etc. (1) and Mandal Sumitra Devi vs Sri Surajnarain Singh etc. (2) ] the Election Tribunal Bhagalpur had to consider the question of improper acceptance of the nomination paper. They agreed that the question whether the result of election had been materially affected must be proved by affirmative evidence. They laid down the following test: "If the number of votes secured by the candidate whose nomination paper has been improperly accepted is lower than the difference between the number of votes secured by the successful candidate and the candidate who has secured the next highest number of votes it is easy to find that the result has not been materially affected. If however the number of votes secured by such a candidate is higher than the difference just mentioned it is impossible to foresee what the result would have been if that candidate had not been in the field. It will neither be possible to say that the result would actually have been the same or different nor that it would have been in all probability the same or different." In both the cases the margin of votes between the successful candidates and the next highest candidate was less than the number of votes secured by the candidate whose nomination was improperly accepted. They held that the result was materially affected. We are unable to accept the ' soundness of this view. It seems to us that where the margin of votes is greater (1) Gazette of India (Extry.) Feby. 2 1953. (2) Gazette of India (Extry.) Feby. 26 1953. 518 than the votes secured by the candidate whose nomination paper had been improperly accepted the result is not only materially not affected but not affected at all; but where it is not possible to anticipate the result as in the above mentioned cases we think that the petitioner must discharge the burden of proving that fact and on his failure to do so the election must be allowed to stand. The Tribunal in the present case rightly took the view that they were not impressed with the oral evidence about the probable fate of votes wasted on Dudh Nath Singh but they went on to observe : "Considering that Dudh Nath respondent No. 4 received more votes than the margin of votes by which respondent No. 1 was returned we are constrained to hold that there was reasonable possibility of respondent No. 2 being elected in place of respondent No. 1 had Dudh Nath not been in the field. " We are of opinion that the language of section 100(1)(c) is too clear too any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has seen materially affected. The number of wasted votes was 111. It is impossible to accept the ipse dixit. of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper but neither the Tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the Legislature to consider. The English Act to which we have referred presents no such conundrum and lays down a. perfectly sensible 519 criterion upon which the Tribunal can proceed to declare its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result. Mr. Nauinit Lal argued that the finding that the result of the election has been materially affected is a finding of fact which this Court should not interfere with in special appeal but there is no foundation for the so called finding of fact. If the Tribunal could not be sure that the respondent No. I would get only 56 out of the wasted votes to give him an absolute majority how could the Tribunal conjecture that all the wasted votes would go to the second best candidate. The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon a mere possibility. Their finding upon the matter is speculative and conjectural. Mr. Naunit Lal also attempted to argue that he could support the decision of the Tribunal on other grounds which had been found against him and referred to the analogy of the Code of Civil Procedure which permits a respondent to take that course. That provision has no application to an appeal granted by special leave under article 136. We have no appeal before us on behalf of the respondents and we are unable to allow that question to be reagitated. The result is that we set aside the order of the Tribunal and hold that it is not proved that the result of the election has been materially affected by an improper acceptance of the nomination assuming that the case falls within the purview of section 36(6) and that finding is correct. We accordingly set aside the order of the Tribunal and uphold the election of the appellant. The appellant will get his costs from :the respondents incurred here and in the proceedings before the Tribunal. Order accordingly.

The words "the result of the election has been materially affected" in section 100 (1) (c) of the Representation of the People indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. Section 100 (1) (c) clearly places a burden on the objector to substantiate the objection that the result of the election has been materially affected by the improper acceptance or rejection of the nomination paper. The said section is too clear for any. speculation about possibilities and it lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. If an Election Tribunal misdirects itself in not comprehending the real question before it and proceeds merely on possibilities speculation and conjecture its order must be set aside.

Civil Appeal No. 98 of 1953. Appeal by Special Leave from the Judgment and Decree dated the 27th day of January 1949 of the High Court of Judicature at Patna in Appeal from Appellate Decree No. 690 of 1947 against the Decree dated the 13th January 1947 of the Court of the District Judge Bbagalpur in Title Appeal No. 161 of 1946 arising out of the Judgment and Decree dated the 25th July 1946 of the Court of the 1st Additional Subordinate Judge Bhagalpur in Title Suit No. 80 of 1945. N.C. Chatterjee (A. N. Sinha and section P. Verma with him) for the appellant. Murtaza Fazl Ali and Rajinder Narain for respondent No. I. 1954. April 14. The Judgment of the Court was delivered by BOSE J. This is a plaintiff 's appeal in a suit for re demption of what the plaintiff calls a mortgage dated 15th April 1930. The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase. If the former the plaintiff succeeds. If the latter he is out of Court. The property covered by the disputed deed belonged to one Bijai Tanti who died leaving a widow Mst. Phaguni and two sons Siban Tanti and Chander Tanti. On 25th May 1922 Siban Tanti alone executed a 176 simple mortgage in favour of the second defendant for Rs. 25. Then on 6th May 1927 Siban Tanti Chander Tanti and Mst. Phaguni mortgaged the same property to the first defendant for Rs. 250. This was also a simple mortgage. After this came the transaction in suit dated 15th April 1930. The same three persons executed the disputed deed. This was in favour of the first defendant. The consideration mentioned in the deed is Rs. 634 10 0 due on the second mortgage and Rs. 65 6 0 taken in cash to enable the executants to meet the expenses of certain commutation proceedings under section 40 of the Bihar Tenancy Act in respect of this very land. The second defendant sued on his mortgage of 1922 but did: not join the subsequent mortgagee the first defendant. He obtained a decree against the mortgagors alone and executed it in 1940. He himself purchased the property in dispute and took possession on 20th March 1943. Shortly after on 19th August 1943 he sold this land to the plaintiff for Rs. 400. The plaintiff 's title is derived from the second defendant who stepped into the shoes of the mortgagors because of his suit against the mortgagors in 1940. The plaintiff 's case is that the transaction of 15th April 1930 is a mortgage and as the subsequent mortgagee was not joined as a party to the earlier suit the plaintiff is entitled to redeem. The first defendant 's case is that the transaction of 15th April 1930 was not a mortgage but an out and out sale with a covenant for repurchase which became infructuous because no attempt was made to act on the covenant within the time specified. The learned trial Judge and the lower appellate Court both held that the document was a mortgage and so decreed the plaintiff 's claim. The High Court on second appeal reversed these findings and held it was a sale. Consequently the learned Judges dismissed the plaintiff 's suit. The plaintiff appeals here. The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation. There are numerous 177 decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them. We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts. But certain broad principles remain. The first is that the intention of the parties is the determining factor: see Balkishen Das V. Legge (1). But there is nothing special about that in this class of cases and here as in every other case where a document has to be construed the intention must be gathered in the first place from the document itself. If the words are express and clear. effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. the real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If however there is ambiguity in the language employed then it is permissible to look to the surrounding circumstances to determine what was intended. As Lord Cranworth said in A Aderson vs White (2) : "The rule of law on this subject is one dictated by commonsense; that prima facie an absolute conveyance containing nothing to show that the relation of debtor and creditor is to exist between the parties does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. . . In every such case the question is what upon a fair construction is the meaning of the instruments? Their Lord ships of the Privy Council applied this rule to India in Bhagwan Sahai vs Bhagwan Din (3) and in Jhanda Singh vs Wahid ud din (4). The converse also holds good and if on the face of it an instrument clearly purports to be a mortgage it cannot be turned into a sale by reference to a host of (1) 27 I.A. 58. (3) 17 I.A. 98 at 102. (2) ; at 928. (4) 43 I.A. 284 at 293. 23 178 extraneous and irrelevant considerations. Difficulty only arises in the border line cases where there is ambiguity. Unfortunately they form the bulk of this kind of transaction. Because of the welter of confusion caused by a multitude of conflicting decisions the Legislature stepped in and amended section 58(c) of the Transfer of Property Act. Unfortunately that brought in its train a further conflict of authority. But this much is now clear. If the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But the converse does not hold good that is to say the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale then it is a matter for construction which was meant. The Legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages therefore it is reasonable to suppose that persons who after the amendment choose not to use two documents do not intend the transaction to be a sale unless they displace that presumption by clear and express words; and if the conditions of section 58(c) are fulfilled then we are of opinion that the deed should be construed as a mortgage. The document with which we are concerned Exhibit A is in the following terms and our first duty is to construe the language used and see whether it is ambiguous. (We have paragraphed the document for convenience of construction and have omitted unnecessary words). (1)" Rs. 634 principal with interest under a registered rehan bond " (simple mortgage) " dated the 6th May 1927 is justly due. . by us the executants. Now we further require Rs. 65 6 0 more to meet costs of the suit under section 40." (Bihar Tenancy Act). (2)(I; and at present there is no other way in view rather it seems impossible and difficult to arrange for 179 the money without selling the property let out in rehan " (simple mortgage) " under the above mentioned bond." (3) " Therefore we the executants declare. that we sold and vended the properties detailed below on condition (given below) for a fair and just price of Rs. 700 " (4) "That we set off Rs. 634 10 0 against the consideration money " (torn) " payable under the aforesaid bond in favour of the said vendee and received Rs. 65 6 0 in cash from the said vendee. In this way the entire consideration money was realised from the said vendee." (5) " and we put the said vendee in possession and occupation of the vended property detailed below and made him an absolute proprietor in our places." (6) " If we the executants shall repay the consideration money to the said vendee within two years. . the property vended under this deed of conditional sale attached shall come in exclusive possession and occupation of us the executants." (7) " If we do not pay the same the said vendee shall remain in possession and occupation thereof generation after generation and he shall appropriate the produce thereof." (8) " We the executants neither have nor shall have any objection whatsoever in respect of the vended property and the consideration money. Perchance if we do so it shall be deemed null and void in Court." "and we declare also that the vended property is flawless in every way and that if in future any kind of defect whatsoever be found on account of which the said vendee be dispossessed of a portion or the entire property vended under this deed of conditional sale and will have to pay the loss or damage in that event we the executants (a) shall be liable to be prosecuted under the criminal procedure and (b) we shall pay the entire consideration money together with loss and damage and interest at the rate of Rs. 2 per mensem per hundred rupees from the date 180 of the execution of this deed till the date of realisation from our person and other properties (c)and we shall not claim the produce of the vended property for the period of vendee 's possession against the said vendee or his heirs and representatives. " (10) " Therefore we the executants. . have executed this deed of conditional sale so that it may be of use in future. " In our opinion this language is not free from difficulty and is ambiguous. The deed purports to be a sale and has the outward form of one but at the same time it calls itself a"conditional sale. " It has however no clause for retransfer and instead says (clause 6) that if the executants pay the money within two yeas the property " shall come in exclusive possession and occupation of us the executants. " That is clear about the possession but is silent about the title. In the context we can only take these words to mean that if there is payment within the specified time then the title will continue to reside in the executants; for what else can a right of exclusive possession import in these circumstances ? It is relevant to note in passing that this silence about title would be proper in a mortgage for there the owner 's title remains in him all the while and so a reconveyance is unnecessary. But if there is an out and out sale the title could not revert to the original owner without a proper reconveyance. Clause (7) appears to underline this because it couples the transferee 's; right to remain in possession and occupation and to appropriate the produce " generation after generation " with the non payment of the money within the time set out. It is true the words of conveyance in the earlier part Of the deed (clause 5) would pass an absolute title if they stood alone but the document must be read as a whole and it must also be remembered that it was executed by ignorant justice and scribed by a man whose knowledge of conveyancing was on the face of it rudimentary and defective. The deed lacks the precision of a practised hand and that probably accounts. for its ambiguities: that there is ambiguity is patent from what we have said. 181 The next step is to see whether the document is covered by section 58(c) of the Transfer of Property Act for if it is not then it cannot be a mortgage by conditional sale. The first point there is to see whether there is an " ostensible sale. " That means a transaction which takes the outward form of a sale for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached. The executable clearly purported to sell the property in clause (5) because they say so therefore if the transaction is not in substance a mortgage it is unquestionably a sale: an actual sale and not merely an ostensible one. But if it is a mortgage then the condition about an " ostensible sale " is fulfilled. We next turn to the conditions. The ones relevant to the present purpose are contained in clauses (6) and (7). Both are ambiguous but we have already said that on a fair construction clause (6) means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in them will continue to reside there. The necessary consequence of that is that the ostensible sale becomes void. Similarly clause (7) though clumsily worded can only mean that if the money is not paid then the sale shall become absolute. Those are not the actual words used but in our opinion that is a fair construction of their meaning when the document is read as a whole. If that is what they mean as we hold they do then the matter falls squarely within the ambit of section 58(c). Now as we have already said once a transaction is embodied in One document and not two and once its terms are covered by section 58(c) then it must be taken to be a mortgage by conditional sale unless there are express words to indicate the contrary or in a case of ambiguity the attendant circumstances necessarily lead to the opposite conclusion. There are no express words here which say that this is not a mortgage but there is ambiguity so we must probe further. The respondents who claim that this 182 is a sale and not a mortgage rely on the following circumstances. They are all culled from the deed itself First they point to clause (5) which says that the transferee has been made the absolute proprietor in place of the executants. Those they say are the operative words and point to an out and out transfer of title. Next they point to clause (2) where the executants say that they have no other Means of raising the money they want except by selling the property. The respondents argue that the word " sale " could not have been used inadvertently because it is contrasted with a mortgage in the very same sentence. The word " mortgage "is also used in clause (1) therefore it is clear that when a mortgage is intended the word " mortgage is used. It must follow that when the word " sale is used a sale must have been meant. The only weakness in this argument is that when a mortgage is by conditional sale this is the form it has to take because section 58(c) postulates that there must be an " ostensible sale " and if a sale is ostensible it must necessarily contain all the outward indicate of a real sale. The question we are considering can only arise when the word " sale " is used and of course a sale imports a transfer of title. The use of the words It absolute proprietor in our places " carries the matter no further because the essence of every sale is to make the vendee the absolute proprietor of what is sold. The question here is not whether the words purport to make the transferee an absolute proprietor for of course they must under section 58(c) but whether that is done " ostensibly " and whether conditions of a certain kind are attached. The learned counsel for the respondents next relied on the fact that clause (3) says that the price paid was a "fair and just? ' one and that the Courts below have found that the consideration was not inadequate. He also relies on the fact that no interest was charged that the transferee was placed in possession of the property and was Dot to account for the usufruct also on the fact that a short term namely two years was fixed for repayment. 183 But on the other side there is the very significant fact that Rs. 65 6 0 was borrowed to enable the executants to carry on commutation proceedings under section 40 of the Bihar Tenancy Act (that is for substitution of a cash rent instead of one in kind) in respect of this very property: (clause 1). It was admitted before us and the lower Courts so find that the commutation proceedings related to this very land. The learned High Court Judges discount this by saying that there is no evidence to show that the proceedings which were started in 1929 continued after the deed. But that is a mistake apparently due to the fact that the copy of the entry in the Rent Schedule produced before the learned Judges inadvertently omitted the date. Mr. N. C. Chatterjee produced a certified copy of the revenue record here and that gives the missing date. From that it is clear that the proceedings continued till 18th February 1931 that is to say for some ten months after the deed. This we think is crucial. Persons who are selling their property would hardly take the trouble to borrow money in order to continue revenue proceedings which could no longer benefit them and could only enure for the good of their transferees. There is another point in favour of the appellant and that is that the surrounding circumstances show that there was a relationship of debtor and creditor between the. parties existing at the date of the suit transaction. The bulk of the consideration went in satisfaction of the mortgage of 6th May 1927. In those circumstances seeing that the deed takes the form of a mortgage by conditional sale under section 58(c) of the Transfer of Property Act it is legitimate to infer in the absence of clear indications to the contrary that the relationship of debtor and creditor was intended to continue. The point made on behalf of the respondents about the adequacy of the consideration and the absence of interest can be explained. The transferee was to take possession of the property and would thus get the produce and it is evident to us from the tenor of the document that he was not to be accountable for it. 184 We say this because the indemnity clause (clause 9) says in sub clause (b) that in the event of the transferee 's possession being disturbed the executants would among other things pay him in addition to damages the entire consideration together with interest at 2 per cent. per month from the date of the deed and would not require the transferee to account for the usufruct. It is true this can also be read the other way but considering these very drastic provisions as also the threat of a criminal prosecution in sub clause (a) we think the transferee was out to exact more than his pound of flesh from the unfortunate rustics with whom he was dealing and that he would not have agreed to account for the profits: indeed that is his own case for he says that this was a sale out and out. In these circumstances there would be no need to keep a reasonable margin between the debt and the value of the property as is ordinarily done in the case of a mortgage. Taking everything into consideration we are of opinion that the deed is a mortgage by conditional sale under section 58(c) of the Transfer of Property Act. The appeal is allowed. The decree of the High Court is set aside and that of the lower appellate Court is restored except as to costs. The original owners of the property have lost it. The value of the property was put at over Rs. 10 000 in the special leave petition. The second defendant oust . the original owners by getting a mortgage decree for Rs. 130 in his favour on a mortgage of only Rs. 25 and purchasing it at the auction himself. He is no longer in the picture as he sold it to the plaintiff for Rs. 400. The plaintiff has accordingly obtained property which on his own showing is worth more than Rs. 10 000 for only Rs. 400. The first defendant spent only Rs. 250 plus Rs. 65 6 0 on it: Rs. 315 6 0 and the consideration of the disputed deed is only Rs. 700. it is evident that both sides are speculators. In the circumstances we direct that each party bear its own costs.

There is no hard and fast rule for determining whether a given transaction is a mortgage by conditional sale or sale outright with a condition for repurchase. Each case must be decided on its own facts. The numerous decisions of the High Courts on the point are of no help because two documents are seldom expressed in identical terms. The intention of the parties is the determining factor but the intention must be gathered from the document itself which has to be construed to find out the legal effect of the words used by the parties. If the words are express and clear effect must 'be given to them and any extraneous enquiry into what was thought or in. tended is ruled out. If however there is ambiguity in the language employed then it is permissible to look to the surrounding circumstances to determine what was intended. 175 In view of the provisions of the amended section 58(c) of the Transfer of Property Act if the sale and agreement to repurchase are embodied in separate documents then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to affect the sale then it is a matter for construction which was meant. Balkishen Das vs Legge (27 I.A. 58) Alderson vs White ; at 928) Bhagwan Sahai vs Bhagwan Din (17 I.A. 98 at 102) and Thanda Singh vs Wahid ud din (43 I.A. 284 at 293) referred to.

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. N. P. Engineer (P. N. Bhagwati M. Abraham and M. section K. Sastri with him) for the appellants. M.C. Setalvad Attorney General for India C. K. Daphtary Solicitor General for India and K. P. Abraham (T. R. 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 convenient 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 note of the changed conditions that bad been brought about in the 524 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 notice 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 not 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 not less than five thousand rupees and the amount or value of the matter in appeal is not 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 confirmed by Our Sign Manual. (2)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 confirmed by Our Sign Manual. Explanation I. . . . (a) . . . . . (b) . . . . . . (e) . . . . . . Explanation II 12.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 525 shall have to be submitted to the Maharaja for confirmation by his Sign Manual and the judgment so confirmed shall have to be declared in open Court after such confirmation. 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 concurrence 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 common 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 covenanting 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 conditions and for the period therein specified. Article XXI preserved the power of the Rulers to suspend remit or commute death sentences. In exercise of the powers conferred 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 continued 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 continuance 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: "8. All proceedings commenced prior to the coming into force of this Ordinance in either of the 526 High Courts of Travancore and Cochin hereinafter in this Ordinance referred to as the existing High Courts shall be continued and depend in the High Court as if they had commenced in the High Court after such date. . " The jurisdiction and powers of the High Court were defined thus: "18. 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 come 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 coming into force of this Ordinance. Clause 25 leaving out the two Explanations which are not material for our present purpose and clause 26 ran as follows: "25. 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 not less than five thousand rupees and the amount or value of the matter in appeal is not less than that sum. Explanation I. . . . . . Explanation 11. . . . . . 26. 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. 527 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 continued the jurisdiction of and the laws administered in the then existing High Court. The contention of the learned Attorney General is that in view of the changes referred to above which had the effect of setting up a common 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 no authority 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 not decided by a Full Bench under section 25 of the Act and therefore no review 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 complied with namely the fresh judgment will under section 11 have to be submitted to the Maharaja to be confirmed 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 confirmation. It is pointed out that the Maharaja of Travancore no longer possesses the power to consider and to confirm 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 contention is not 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 528 the application for review did not require under any provision of law to which our attention has been drawn to be confirmed by the Maharaja or any other authority. It was a proceeding properly instituted and was pending on the 1st July 1949 and consequently under section 8 of Ordinance No. II of 1124 had to be continued in the High Court of the United State as if it had commenced in the said High Court after the coming 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 commenced prior to the coming into force of Ordinance No. II of 1124 would under section 8 of that Ordinance have had to be continued in the High Court of the United State as if it had commenced in that High Court after such date. The position will be the same if on this appeal this Court now admits the review for upon such admission the appeal filed in the Travancore High Court will be revived and then having been 'commenced in the Travancore High Court and continued 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 continued in that High Court as if it had commenced in that High Court after the coming into force of that Act. In other words the old appeal if restored by this Court on this appeal will by the combined 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 529 disposed of under section 25 of the last mentioned Act. That section does not require any confirmation 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 confirmation 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 not within the applicant 's knowledge or could not 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 vs Neki(1). This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi vs Parath Nath(2) and was adopted by our Federal Court in Hari Shankar Pal vs Anath Nath Mitter(3). Learned counsel appearing in support of this appeal recognises the aforesaid (1) L.R. 49 I.A. 144. (2) L.R 61 I.A. 378. (3) (1949] F.C.R. 36 pp. 47 48 68 530 limitations and submits that his case comes 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 counsel for the appellants he mainly stressed three of them before us. We now 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 co trustees 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 ' contention being that that meeting was not convened by competent persons nor after due notice 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 contend that that meeting was not convened by competent persons nor 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 convened properly and upon notice 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 531 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 noticed that the defendants ' objection to the Karingasserai meeting was two fold (i) that the meeting had not been convened by competent persons and (ii) that notice had not 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 not been convened by competent persons and in paragraph 165 he found that notice of the said meeting had not been given to all the churches. It having been conceded by the plaintiffs ' advocate at the time of the final argument before the District Judge that there is no evidence on the plaintiffs ' side to prove that all the churches in existence prior to 1086 had been issued notices the position was taken up that in the view of the plaintiffs ' party the defendants and their partisans by adopting the new constitution exhibit AM had become aliens to the Church and as such were not 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 no notice to them was necessary. This argument clearly amounted to an admission that no notice was sent to the churches on the defendants ' side. The District Judge having held contrary to the submission of the plaintiffs that the defendants and their partisans had not gone out of the Church it followed according to him that they were entitled to notice and as it was not proved that notices were sent to them but on the contrary as it was contended that no notice was necessary to be sent to them the District Judge felt it to be quite clear that the said meeting was not duly convened. In this view of the matter it was not necessary for the learned District Judge to go further into the matter and enquire whether notices had been given to churches which had not adopted the new constitution exhibit AM. Coming to the judgment of the High Court it appears that the majority of the Judges dealt with the question 532 of the validity of the meeting in a superficial and summary manner. Nokes J. said: "The lower Court held that the meeting was not duly convened mainly because notice was not given to the defendants ' party (judgment paragraphs 166 167). The want of notice was not disputed but was justified in accordance with the Patriarchal monition (Exhibit Z). In view of the conclusion stated above that the adoption of the new constitution 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 notice was justifiable apart from the monition. The lower Court 's conclusion that the meeting formed only a minority of the church is thus erroneous as is the conclusion (judgment paragraphs 164 167) that the meeting was not convened by competent persons." Mr. Justice Sathyanesan simply observed: "The only defect pointed out was that no invitation of the meeting was given to the churches under the control of 1st defendant. The short answer to this is that having already become members of a new Church they were not entitled to any invitation and were rightly ignored. " It thus appears that the question as to the competency of the persons who convened 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 not appear to have seriously applied his mind at all to the question of the competency of the conveners 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 notice was given to the churches under the control 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 533 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 competency of the persons who had convened the Karingasserai meeting. As to service of the notice 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 constitution exhibit AM. and that consequently no notice 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 not 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 constitution exhibit AM. it became incumbent on them to enquire whether all churches not on the plaintiff 's side had adopted exhibit AM. and if not whether such of them who had not adopted exhibit AM. had been summoned to the meeting. It may be noted in this context that the learned Judges of the High Court in their judgment seem to indicate that the churches which adopted 'exhibit 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 not clear how many out of 310 churches claimed by the defendants to have been completely on their side according to exhibit 272 had attended the M. D. Seminary meeting and formally adopted the new constitution the exhibit AM. If adoption of the exhibit AM. is the test for determining whether notice 'is due or not then it becomes important to consider whether all the churches which were not with the plaintiffs but who had not adopted exhibit AM. had been served. Apart from the question of the service of the notice there was also the question as to the competency of the persons who had convened the Karingasserai meeting where the plaintiffs are said to have been elected. While Mar Geeverghese Dionysius was alive he as President 534 of the Malankara Association used to convene the meetings of the Association. Who after his death was competent to issue notice of meeting? There appear to be no rules 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 notice does not matter. But did all members attend even if the defendants ' party who had adopted exhibit AM be left out ? It does not appear that either of the two majority Judges of the High Court adverted to either of these aspects of the matter namely service of notice to all churches and competency of the persons who issued the notice of the Karingasseri meeting and in any case did not come to a definite finding on that question. The majority judgments therefore are defective on the face of them in that they did not 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 counsel appearing for the appellants is that the majority decision proceeds on a misconception as to a concession 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 committed acts of heresy or having voluntarily given up their allegiance to the ancient Jacobite Syrian Church and establishing a new church and framing a constitution 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 535 carries the plaintiffs nowhere. It is to be remembered that this is a suit by the plaintiffs as the validly constituted trustees and not 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 not amount to heresy and did not make the defendants or their partisans heretics or aliens to the faith and that such acts and conduct ' mentioned in issue 15 even if proved would not amount to heresy and would not 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 course of conduct amounting to persistent schism. He held that nevertheless the plaintiffs and their parti sans had not become aliens to the Church or created or formed themselves into a separate church as they had not been found guilty and punished with the removal from the Church or excommunication from the Church by a proper ecclesiastical authority. It will be noticed that the learned District Judge found the facts imputed to the defendants not proved but the facts imputed to the plaintiffs to have been proved. He made no difference 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 co trustees had not become aliens to the faith. Finally in the judgment on rehearing of the appeal reported in from which passages have been quoted above the acts imputed to the defendants in that case which are similar to those imputed 'to the 536 defendants in the present case with the exception of the adoption of exhibit AM were held not to amount to a voluntary separation from church by the establishment of a new church and that the Free Church case (1) had no application to the facts of that case. Likewise in the present case the District Judge dealt with issues 15 16 19 and 20 together which covered 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 not make any distinction between acts of heresy and voluntary separation from the Church and held that there was "no case 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 competent authority. " Indeed the evidence of P.W. 17 the Pope 's delegate is claimed as supporting this view. It is in the light of this situation that the question as to the misconception of the concession has to be considered. Sathyanesan J. in paragraph 4 of his judgment referred to the concession 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 con. ceding that plaintiffs had not 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 not 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 could 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 concession made by the learned advocate for the (I)L.R. 537 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 concessions. It tends to mean (i) that the Patriarch is not 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 (ii) 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 consecrate Morone (c) that Exhibit BP is the true Canon of the Jacobite Church and (d) that the Catholicate was not properly established cannot on these grounds be considered 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 concession as follows: ". . In this court the defendants ' advocate did not seek to disturb the finding that the plaintiffs had not 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 ' contention in the lower court was no doubt due to the fact that the written statement involved an admission of the plaintiff ' 69 538 case; for the plaintiffs in effect said 'we are the trustees of the Patriarch 's 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 not become altered; for any contention to the contrary provided no defence 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 Patriarch 's 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 not 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 conduct imputed to them it was not 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 concession made by the defendants ' advocate namely that the plaintiffs had not gone out of the church. They how. ever felt bound notwithstanding the contention of the defendants that they were also for similar reasons. 539 within the church to consider whether the defendants had voluntarily gone out of the church by setting up a new church as evidenced by their aforesaid acts. Learned counsel for the appellants contends and we think there is a good deal of force in such contention that the majority Judges do not appear to have examined the question or considered whether voluntarily going out of the church was a concept separate and distinct from acts of heresy and if so whether the acts and conduct 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 considered whether the Canon law requiring verdict of an ecclesiastical authority was required in both cases. There can be no doubt therefore on the face of the judgment that the decision of the learned Judges in this behalf proceeds on what they considered was a concession made by the defend ants ' advocate that the plaintiffs had not gone out of the church. Learned counsel for the defendants appellants contends 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 conditions of the Royal Courts ' judgment and said that while the conduct of each party is open to examination neither could 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 concession and in the other case as my submission. Deciding one part of it as a concession not 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 consistently ' set at naught the 540 fundamental principles of the charity as settled in the judgments of the Royal Court and the Cochin Court. As between the charge and counter charge of violation of the foundation rules I expressed it as my view that while their views may be corrected 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 not to be treated as a concession of the one case and a submission as to the other. If my view of the law was not acceptable the learned Judges must decide and not treat one part of a connected statement as a concession not requiring to be considered 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 conceded that the plaintiffs have not 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 constitution 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 no such 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 not 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 not sustainable in law so far as the defendants are concerned. If it should be treated as an admission at all it must have been accepted or rejected as a whole. It must not have been torn piecemeal and part used and part rejected. 541 The reasons as signed for concluding 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 note that the basic constitution 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 court 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 note 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 not even a whisper of it as having been complied with in this case. Their Lordships also failed to note that there can be no such thing as an entire body of persons against whom nothing was alleged or proved being held to have gone out of the Church. Their Lordships failed to note that the so called admission did not 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 contained 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. vs Jawahar Mills Ltd.(1) and the cases therein referred to and to the case of Reg. vs Pestanji Dinsha and Another(1). It will however be noticed that what was deprecated in that case was the fact that no affidavit had been filed before the trial Court for the rectification of what in the appeal Court (1) ; at P. 366. (2) 542 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 concession made by the learned Advocate appearing before it by what procedure unless it be by way of review could 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 vs section Varadappa Chettiar(2) that a misconception by the Court of a concession 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 cogent ground for review. The learned AttorneyGeneral contends 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 no reason to construe the word " record " in the very restricted sense as was done by Denning L.J. in Rex vs 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 complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it it will not generally appear on the (1) (2) A.I.R. 194o mad 17. (3) at PP 351 352. 543 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 not given up their contention upheld by the District Judge that the plaintiffs had been guilty of the acts and conduct 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 nobody goes out of the church without the verdict of an ecclesiastical authority whether the acts complained 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 conduct aliens to the faith. If the majority Judges took the view that such was not the Canon law and that the same acts and conduct 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 not an ecclesiastical offence and does not 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 consider whether the acts and conduct of which the plaintiffs had been found guilty had actually been committed by them and whether such acts and conduct also had the dual aspect namely amounted to an ecclesiastical offence requiring excommunication and also to a voluntary separation which not being an ecclesiastical offence did not 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 544 (1) The Patriarch has Temporal powers over the properties of the Malankara Church; (2) The Patriarch has got the power acting by himself to excommunicate and ordain a Bishop; (3) Only the Patriarch may consecrate Morone (4) The Canon of the Church is exhibit XVIII in O.S. No. 94 of 1088; and (5) The Catholicate has not 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 no prejudice ' has been caused. He however cannot dispute that the Judges have failed to consider and come to any definite finding on some of them. We do not consider that the contention of the learned Attorney General is entirely well founded. Issue20(1) contains 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 not. 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 no temporal authority or jurisdiction or control over the Malankara Jacobite Syrian Church and its temporalities and that the power of general supervision over spiritual Government conceded to the Patriarch in exhibit DY did not 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 contrary 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 not appear that the majority Judges considered whether the plaintiffs imputed full temporal powers to the Patriarch or the limited one as conceded to him in exhibit DY and if they did impute to him full temporal powers whether they had departed from a fundamental tenet of the Church. They do not also appear to have considered 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 545 become aliens any subsequent change in their attitude by limiting it as in exhibit DY would make a difference. Further as to the power of consecrating Metropolitans Nokes J. found that a validly appointed Catholicos had the power under both versions of the Canon to consecrate Metropolitans without a Synod and that by so claiming the defendants had not become aliens to the faith. The learned Judge however did not consider the implication of this finding so far as the plaintiffs were concerned. This finding may lead to the implication that the claim that the Patriarch alone has got the power of ordination and the Catholicos has not that power cannot but be regarded as a departure from the Canon. Issue 20(1)(a)(1) which relates to the consecration of Morone has been found in favour of the defendants. If the defendants have not gone out of the Church by making the claim that Morone may be consecrated by the Catholicos or the Metropolitan in Malankara then the learned Judge should have considered whether a denial of such right by the plaintiffs constituted 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 not been established at all. The District Judge held that Abdul Messiah by his Kalpana exhibit 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 not been revived. Sathyanesan J. however held that the establishment of the Catholicate in Malankara was dubious surreptitious and uncanonical and that no Catholicate had been established. The two judgments appear to be somewhat at variance in this respect. In any case Nokes J. has not considered whether the stand taken by the plaintiffs that no Catholicate had been establisbed at all amounts to a departure by them from the injunctions of the Canon law On a fair reading of 70 546 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 concession 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 considered whether the acts imputed to the plaintiffs likewise amounted to a voluntary separation. If the defendants had not gone out of the Church by asserting that a Catholicate had been established that the Catholicos can ordain Metropolitans and consecrate Morone then they should have considered whether by denying these assertions the plaintiffs had not gone out of the Church. This they failed to do. They could not 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 conce ssion made by the defendants ' advocate requiring an ecclesiastical verdict as a condition precedent to voluntary separation also was obviously wrong and an erroneous concession of law made by the defendants ' advocate could not be relied upon for saving the plaintiffs. 'The fact therefore that cross objection No. 11 filed in the High Court by the defendants does not appear to have been pressed makes no difference. 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 connection 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 547 issue is vague and is expressed in very general terms. Paragraph 60 of the District Judges judgment is as follows: "60. 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 comprehensive 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 not within the province or competency of this court 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 considered 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 courts custom practice and precedent so far as Malankara is concerned and these findings it is conceded on both sides will suffice. " It will be noticed that after this agreement issue No. 11 related only to certain specific powers of the Patriarch. The findings on these issues by themselves do not 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 not (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 not averred in pleadings and no specific issues have been raised and in the circumstances should not have been gone into. The suggestion is that these points are covered by other issues. It is said that the learned Judges held that the new constitution exhibit AM amounted to a 548 repudiation of the authority of the Patriarch on the following grounds: (1) Installation of Catholicos ignoring the Patriarch; (2) Absence of a provision for the approval by the Patriarch or Malankara Metropolitan; (3) Ordination of Metropolitan and the issuing of Staticons by the Catholicos and (4) the right to collect Ressissa. These points are said to be covered 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 not 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 not come 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 comparison 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 not 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 costs must follow the event and we order that the appellants must get the costs of this appeal before us and of the application for review before the High Court. We need hardly add that the observations that we have made in this judgment are only for the purpose of this application for review and should not be taken or read as observations on the merits 'of the appeal now restored and to be reheard by the High Court. Appeal allowed.

The provisions of the Travancore Code of Civil Procedure are similar in terms to Order 47 rule 1 of the Code of Civil Procedure 1908 and an application for review is circumscribed by the definitive limits fixed by the language used therein. The words "any other sufficient reason" mean a reason sufficient on grounds at least analogous to those specified in the rule. It is well settled that in an ejectment suit the plaintiff must succeed on the strength of his own title and not on the weakness of the defendant 's case. It is an error apparent on the face of the record if the judgment does not deal effectively and determine an important issue in the case on which depends the title of the plaintiff and the maintainability of the suit. To decide against a party on matters which do not come with in the issues on which parties went to trial clearly amounts to an error apparent on the face of the record. Where the error complained of is that the Court assumed that a concession had been made when in fact none had been made or that the Court misconceived the terms of the concession or the scope and extent of it or the attitude taken up by the party and has been misled by a misconception of such alleged concession such error must be regarded as a sufficient reason analogous to an error on the face of the record within the meaning of Order 47 rule I of the Code of Civil Procedure. Such error will not generally appear on the record and will have to be brought before the Court by means of an affidavit. A suit filed in 1938 in the Court of the District Judge at Kottayam (Travancore) was dismissed The plaintiff 's appeal 521 against the decree was allowed by a Full Bench of the High Court of Travancore. A review application filed by the defendants against the judgment on the ground that it contained several mistakes or errors apparent on the face of the record was dismissed by the High Court. The High Court declined to grant a certificate under article 133. The defendants were granted special leave to appeal by the Supreme Court. Consequent upon political changes in India culminating in the adoption of the new Constitution of India there were changes in the judicial administration in the State of Travancore. Up to the end of June 1949 the Travancore High Court Act (Regulation IV of 1099) was in force in the State of Travancore. Section 11 of the Regulation provided that the judgments of a Full Bench from the decrees of District Courts involving certain amount or value of subject matter in suits as well as in appeals shall be submitted to the Maharaja for confirmation by his Sign Manual. Section 12 of the Regulation applied as far as may be the provisions of section 11 to the judgments after review. In May 1949 came the Covenant of Merger between the rulers of Travancore and Cochin which inter alia provided for a Rajpramukh. In July 1949 came Ordinance II of 1124 repealing Regulation IV of 1099. Clause 25 of the Ordinance provided that a Full Bench shall hear and decide the appeals inter alia from the decrees of the District Courts etc. involving certain amount or value of subject matter. Clause 26 related to a review of the judgment by a Full Bench. The provisions relating to the jurisdiction and powers of High Court were substantially reproduced in a later Act (V of 11 25) and were Continued by articles 214 and 225 of the Constitution of India. The advocate for the respondents contended in the Supreme Court that the review application in view of the changes referred to above had become infructuous and should have been dismissed in limine because even if the review application were allowed there would be no authority with jurisdiction and power to pronounce an effective judgment after hearing the appeal. Again this case was not decided by a Full Bench under section 25 of the Act and therefore Do review was maintainable under section 26. And even if the appeal be considered to have been filed under section 1 1 of Regulation IV of 1099 the application for review must be dealt with under section 12 of the Regulation and a fresh judgment after the review would have to be submitted under section 11 to the Maharaja for confirmation by his Sign Manual; and the present Maharaja of Travancore did not possess the power to consider and to confirm or reject the same. Hold (repelling the contention) that in view of the change of the laws if the appeal were revived after the admission of review it must be disposed of under section 25 of Act V of 1125 and that section did not require any confirmation of the judgment passed on the rehearing of the appeal by the Maharaja or Rajpramukh or Any other authority. Assuming that the appeal if restored 67 522 would be governed by section 12 of Regulation IV of 1099 even then section 11 would have to be applied only "as far as may be" and the portion of the section 11 requiring confirmation by the Maharaja would be inapplicable in view of the events that had happened. Chhajju Ram vs Neki (49 I.A. 144) Bisheshwar Pratap Sahi vs Parath Nath (61 I. A. 3 78) Hari Shankar Pal vs Anath Nath Mitter ([1949] F.C.R. 36) Sha Mulchand & Co. Ltd. vs Tawahar Mills Ltd. ([1953] S.C.R. 351)) Beg vs Pestan ji Dingha and Another Madhu Sudan Chowdhri vs Musammat Chandrabati Chowdhraizi ( ) Bekhanti Chinna Govinda Chettiyar vs section Varadappa Chettiyar and Rex vs Northumberland Compensation Appeal Tribunal Ex Parte Shaw ( ) referred to. The facts leading up to the appeal as summarized from the Judgment are as follows. There were two rival sections of the Malankara Jacobite Syrian Christian community in Malabar who came to be represented by the appellants and respondents respectively. Certain disputes had arisen between the two sections ; and each claimed the right to possess and administer the Church properties to the exclusion of the other. In 1938 a suit was filed in the District Court of Kottayam by the first and second respondents against the first and second appellants. The plaintiff s contended that the defendants had committed acts of heresy and became ipso facto alien to the Malankara Jacobite Syrian Church. They were therefore " 'disqualified and unfit to be the trustees of or to hold any other position in or enjoy any benefit from the Jacobite Syrian Church" (para 26 of the plaint). The District Judge who heard the suit held by his judgment delivered on the 18th January 1943 amongst other things that the acts and conduct imputed to the defendants did not amount to heresy or schism or to voluntary separation from the Church and that in any event according to Canon Law there could be no ipso facto going out of the Church in the absence of a decision of an ecclesiastical authority properly arrived at. The conclusion arrived at by the District Judge was that the plaintiffs were not entitled to maintain the suit which was therefore dismissed. Being aggrieved by the trial Court 's dismissal of the suit the plaintiffs appealed to the High Court of Travancore. The appeal was heard by a Full Bench of the High Court consisting of three Judges one of whom expressed a dissenting view. On the 8th of August 1946 the High Court held by a majority that the defendants had repudiated the fundamental principles and tenets of the Malankara Jacobite Syrian Church and had established a new Church and had thereby voluntarily separated from and ceased to be members of the Malankara Jacobite Syrian Church. The majority hold that the plaintiffs and been validly elected as trustees and as such were entitled to possession of the Church 523 properties. The appeal *as accordingly allowed and a decree was passed for possession and other reliefs in favour of the plaintiffs. On the 22nd August 1946 the defendants filed a petition for review of the High Court 's judgment on the ground that it contained several mistakes or errors apparent on the face of the record and that in any event there were sufficient reasons for the rehearing of the appeal. The application for review was ultimately dealt with by the High Court on merits on the 21st of December 1951. The Court hearing the review rejected all the points urged in favour of review and dismissed the application holding that there was no error apparent on the face of the record and that there were not sufficient reasons for the rehearing of the appeal. The High Court declined to grant leave to appeal to the Supreme Court under article 133 of the Constitution; whereupon the defendants applied for and on the 14th April 1952 obtained special leave of the Supreme Court to prefer an appeal against the High Court 's decision.

il Appeals Nos. 213A and 213B of 1953. Appeals by Special Leave against the Judgment and Order dated the 24th June 1953 of the Election Tribunal Ludhiana in Election Petition No. 153 of 1952. C. K. Daphtary Solicitor General for India (Harbans Singh Doabia and Rajinder Narain with him) for the appellant in Civil Appeal No. 213A. Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in Civil Appeal No. 213A and the appellant in Civil Appeal No. 213B. Naunit Lal for respondents Nos. 3 and 19 in both the appeals. May 21. The Judgment of the Court was delivered by BOSE J. These are two appeals against the decision of the Election Tribunal at Ludhiana. The contest was for two seats in the Pun jab Legislative Assembly. The constituency is a double member constituency one seat being general and the other reserved for a Scheduled Caste. The first respondent is Atma Ram. He was a candidate for the reserved seat but his nomination was rejected by the Returning Officer at the scrutiny stage and so he was unable to contest the election. The successful candidates were Rattan Anmol Singh the appellant in Civil Appeal No. 213 A of 1953 for the general seat and Ram Prakash the appellant in Civil Appeal No. 213 B of 1953 for there served. Atma Ram filed the present election petition. The Election :Tribunal decided in 483 his favour by a majority of two to one and declared the whole election void. Rattan Anmol Singh and Ram Prakash appeal here. The main question we have to decide is whether the Returning Officer was right in rejecting the petitioner 's nomination papers. The facts which led him to do so are as follows. The Rules require that each nomination paper should be "subscribed" by a proposer and a seconder. The petitioner put in four papers. In each case the proposer and seconder were illiterate and so placed a thumb mark instead of a signature. But these thumb marks were not "attested". The Returning Officer held that without "attestation" they are invalid and so rejected them. The main question is whether he was right in so holding. A subsidiary question also arises namely whether assuming attestation to be necessary under the Rules an omission to obtain the required attestation ' amounts to a technical defect of an unsubstantial character which the Returning Officer was bound to disregard under section 36(4) of the Representation of the People Act 1951 (XLIII of 1951). Section 33(1) of the Act requires each candidate to "deliver to the Returning Officer. a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two persons referred to in sub section (2) as proposer and seconder. " Sub section (2) says that "any person whose name is registered etc. may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled. . The controversy centers on the word "subscribed" which has not been defined in the Act. The prescribed nomination form referred to in subsection (1) of section 33 is to be found in Schedule II. In this form we have the following: "9. Name of the proposer 12. Signature of the proposer 484 13. Name of the seconder. . . . . . 16. Signature of the seconder. " The Oxford English Dictionary sets out thirteen shades of meaning to the word ' subscribe" most of them either obsolete or now rarely used. The only two which can have any real relation to the present matter are the following: 1. "To write (one 's name or mark) on originally at the bottom of a document especially as a witness or contesting party; to sign one 's name to. " This meaning is described as "rare." 2. "To sign one 's name to; to signify assent or adhesion to by signing one 's name; to attest by signing." This appears to be its modern meaning and is also one of the meanings given to the word "sign" namely "to attest or confirm by adding one 's signature; to affix one 's name to (a document) late." One also finds the following in Stroud 's Judicial Dictionary 3rd edition: "Subscribe. (1) 'Subscribe ' means to write under something in accordance with prescribed regulations where any such exist But though this is the strict primary meaning of the word it may sometimes e.g. in the attestation of a will be construed as 'to give assent to or to attest ' or 'written upon "(3) 'Subscription is a method of signing; it is not the only method '; a stamped or other mechanical impression of a signature is good in the case of electioneering papers. " It is clear that the word can be used in various senses to indicate different modes of signing and that it includes the placing of a mark. The General Clauses Act also says that " 'sign ' with reference to a person who is unable to write his name includes 'mark ' But this is subject to there being nothing repugnant in the subject or context of the Act. In our opinion the crux of the matter lies there. We have to see 485 from the Act itself whether "sign" and "subscribe" mean the same thing and whether they can be taken to include the placing of a mark. The majority decision of the Tribunal holds that "sign" and "subscribe" are not used in the same sense in the Act because a special meaning has been given to the word I sign" and none to the word "subscribe" therefore we must use "subscribe" in its ordinary meaning; and its ordinary meaning is to "sign" but not to "sign" in the special way prescribed by the Act but in the ordinary way; therefore we must look to the General Clauses Act for its ordinary meaning and that shows that when it is used in its ordinary sense it includes the making of a mark. We agree with the learned Chairman of the Tribunal that this is fallacious reasoning. The General Clauses Act does not define the word "subscribe" any more than the Representation of the People Act and if it is improper to exclude the special meaning given to " sign " in the Representation of the People Act because the word "sign " is defined and not " subscribe it is equally improper to import the special definition of sign " in the General Clauses Act because that also defines only "sign" and not "subscribe" and also because the " subject " and " context " of the Representation of the People Act show that the writing of a signature and the making of a mark are to be treated differently. The learned counsel for the respondent analysed the Act for us and pointed out that the word " subscribe " is only used in Chapter I of Part V dealing with the Nomination of Candidates while in every other place the word " sign " is used. We do not know why this should be unless as was suggested by the learned Solicitor General the Legislature wished to underline the fact that the proposer and seconder are not merely signing by way of attesting the candidate 's signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and as a person for whom they are prepared to vouch also that the candidate 's signature imports more than a mere vouching for the accuracy of the 486 facts entered in the form. It imports assent to his nomination. We think the learned Solicitor General is probably right because section 33 speaks of "a nomination paper completed in the prescribed form and subscribed by the. candidate himself as assenting to the nomination." But however that may be it.is evident from the form that " signatures are required. It is also evident from the definition of sign " that the Legislature attached special importance to the fact that in the case of illiterate persons unable to write their names it is necessary to guard against misrepresentation and fraud by requiring that their signatures should be formally authenticated in a particular way. A special statutory cloak of protection is thrown around them just as the ordinary law clothes pardanish in women and illiterate and ignorant persons and others likely to be imposed on with special protective covering. Now it is to be observed that section 2 calls itself an interpretation " section. It says " (1) In this Act unless the context otherwise requires. . . . . . . . . (k) 'sign ' in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed. " It is evident then that wherever the element of signing " has to be incorporated into any provision of the Act it must be construed in the sense set out above. Therefore whether " subscribe " is a synonym for " sign " or whether it means " sign " plus something else namely a particular assent the element of " signing " has to be present: the schedule places that beyond doubt because it requires certain " signature*. " We are consequently of opinion that the " signing whenever a signature " is necessary must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Whether this attaches exaggerated importance to the authorisation is not for us to decide. What is beyond 487 dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases. We are therefore bound to give full affect to this policy. Now if " subscribe " can mean both signing so called and the placing of a mark (and it is clear the word can be used in both senses) then we feel that we must give effect to the general policy of the Act by drawing the same distinction between signing and the making of a mark as the Act itself does in the definition of "sign. " it is true the word "subscribe" is not defined but it is equally clear when the Act is read as ' a whole along with the form in the second schedule that "subscribe" can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of " signature " are to be made we are bound to give effect to ft. In the case of a person who is unable to write his name his " signature " must be authenticated in " such manner as may be pres cribed. " The prescribed manner is to be found in rule 2(2)of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951. It runs as follows : " For the purposes of the Act or these rules a person who is unable to write his name shall unless otherwise expressly provided in these rules be deemed to have signed an instrument or other paper if he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer on being satisfied as to his identity has attested the mark as being the mark of such person. " In view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names. The four nomination papers we are concerned with were not " signed " by the proposers and seconders in the usual way by writing their names and as their marks are not attested it is evident that they have not been " signed " in the special way which the Act 488 requires in such cases. If they are not " signed " either in one way or the other then it is clear that they have not been " subscribed " because " subscribing " imports a "signature" and as the Act sets out the only kinds of "signatures" which it will recognise as II signing" for the purposes of the Act we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was therefore bound to reject them under section 36(2)(d) of the Act because there was a failure to comply with section 33 unless he could and should have had resort to section 36(4). That sub section is as follows. The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character. " The question therefore is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making _a mark in place of writing a signature. If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time the matter might be different because the element of his satisfaction at the proper time which is of the substance would be there and the omission formally to record the satisfaction could probably in a case like that be regarded as an unsubstantial technicality. But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the II subscribing " required in the case of the candidate himself If there is no signature and no mark the form would have to be rejected and their 489 absence could not be dismissed as technical and unsubs tantial. The "satisfaction " of the Returning Officer which the rules require is not in our opinion any the less important and imperative. The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage. It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage. The Returning Officer denies this but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been. Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been " any failure to comply with any of the provisions of section 33. . . The only jurisdiction the Return ing Officer has at the scrutiny stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical and unsubstantial it will not matter. If it is not it cannot be set right. We agree with the Chairman of the Election Tribunal that the Returning Officer rightly rejected these nomination papers. The appeals are allowed with costs and the order of the Election Tribunal declaring the elections of the two successful candidates to be wholly void is set aside. The election petition is dismissed also with costs.

Under section 33(1) of the Representation of the People Act 1951 each nomination paper should be "subscribed" by a proposer and a seconder. Where the proposer and the seconder of a nomination paper (as in the present case) are illiterate and so place thumb marks instead of signatures and those thumb marks are not attested the nomination paper is invalid as attestation in the prescribed manner in such a case is necessary because of rule 2(2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951 which requires it. Signing whenever signature is necessary must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules. 62 482 Attestation is not a more technical or unsubstantial requirement within the meaning of section 36(4) of the Act and cannot be dispensed with. The attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated at the scrutiny stage any more than the omission of a candidate to sign at all could have been. Section 36 of the Act is mandatory and enjoins the Returning officer to refuse any nomination when there has been "any failure to comply with any of the provisions of section 33."

Appeal No. 108 of 1952. Appeal from the Judgment and Decree dated the 29th March 1950 of the High Court of Judicature at 468 Calcutta in Appeal from Original Decree No. 121 of 1945 arising from the Decree dated the 22nd December 1944 of the Court of Subordinate Judge at Alipore in Title Suit No. 70 of 1941. N. C. Chatterjee (C. N. Laik D. N. Mukherjee and Sukumar Ghose with him) for the appellants. section P. Sinha (B.B. Haldar and section C. Bannerji with him) for respondents Nos. I to 3. 1954. May 21. The Judgment of the Court was delivered by MUKHERJEA J. This appeal which has come before us on a certificate granted by the High Court of Calcutta under article 133(1) of the Constitution is directed against a judgment and decree of a Division Bench of that Court dated the 29th March 1950 affirming on appeal those of the Subordinate Judge Fourth Court Alipore passed in Title Suit. No. 70 of 1941. The appellants before us are the heirs and legal representatives of the original defendant No. 3 in the suit which was commenced by the plaintiffs respondents to recover possession of the property in dispute on establishment of their title as reversionary heirs of one Haripada Patra after the death of his mother Rashmoni who got the property in the restricted rights of a Hindu female heir on Haripada 's death. To appreciate the contentions that have been raised by the parties to this appeal it would be necessary to narrate the material facts in chronological order. The property in suit which is premises No. 6 Dwarik Ghose 's Lane situated in the suburb of Calcutta admittedly formed part of the estate of one Mahendra Narayan Patra a Hindu inhabitant of Bengal owning considerable properties who died on the 17th April 1903 leaving him surviving his widow Rashmoni two infant sons by her Mohini Mohan and Haripada and a grandson Ram Narayan by a predeceased son Shyama Charan. Shyama Charan was the son of Mahendra by his first wife who died during his lifetime. On the 17th February 1901 Mahendra executed a will by which he made certain religious and charitable dispositions and 469 subject. to them directed his properties to be divided amongst his infant sons Mohini and Haripada and his grandson Ram Narayan. Ram Narayan was appointed ' executor under the will. After the death of Mahendra Ram Narayan applied for probate of the will and probate was obtained by him on the 6th of October 1904 Ram Narayan entered upon the management of the estate. He developed extravagant and immoral habits and soon ran into debts. The bulk of the properties were mortgaged to one Kironsashi who having obtained a decree on the mortgage applied for sale of the mortgaged properties. Thereupon Rashmoni on behalf of her infant sons instituted a suit against the mortgagee and the mortgagor and got a declaration that the mortgage decree could not bind the infants ' shares in the properties left by their father. This judgment was given on the 31st March 1909. On the 13th August 1909 the two infant sons of Mahendra to wit Mohini and Haripada by their mother and next friend Rashmoni instituted a suit in the Court of the Subordinate Judge at Alipore being Title Suit No. 45 of 1909 claiming administration of the estate left by Mahendra as well as partition and accounts on the basis of the will left by him. On the 14th of August 1909 one Baroda Kanta Sarkar Sheristadar of the Court of the District Judge Alipore was appointed with the consent of both parties receiver of the estate forming the subject matter of the litigation. The receiver took possession of the properties immediately after this order was made. The management by the receiver as it appears was not at all proper or beneficial to the interest of the two sons of Mahendra. Mahendra himself left no debts and whatever debts were contracted were contracted by Ram Narayan to meet his own immoral and extravagant expenses. The receiver however went on borrowing large gums of money upon ex parte orders received from the Court the ostensible object of which was to pay off the debts due by Ram Narayan which were not at all binding on the plaintiffs. Fearing that the longer the suit continued and the properties remained in the hands of the receiver the more harmful it would be to the interests of the 470 minors Rashmoni on behalf of the minors compromised the suit. with Ram Narayan and a Solenama was filed on the 13th June 1910. The terms of the compromise in substance were that the properties in suit were to be held in divided shares between the three parties and specific allotments were made in favour of each the properties allotted to the share of Haripada being specified in schedules Gha and Chha attached to the compromise petition. It was further provided that the receiver would be discharged on submitting his final accounts. It may be mentioned here that the property which is the subject matter of the present suit was under the Solenama allotted to the share of Haripada. On the very day that the compromise was filed Rashmoni applied for discharge of the receiver. The Court made an order directing the receiver to submit his final accounts within one month or as early as possible when the necessary order for discharge would be made. It was further directed that as the suit was disposed of on compromise the receiver should discontinue collecting rents and profits due to the estate from that day. This order however was modified by a subsequent order made on 23rd June 19 10 which directed that the receiver was to continue in possession of the estate until he was paid whatever was due to him for his ordinary commission and allowances and until the parties deposited in Court the amounts borrowed by the receiver under orders of the Court or in the alternative gave sufficient indemnity for the same. After this Rashmoni on behalf of her minor sons filed two successive applications before the Subordinate Judge praying for permission to raise by mortgage of a part of the estate the moneys necessary for releasing the estate from the hands of the receiver. The first application was rejected and the second was granted after it was brought to the notice of the Subordinate Judge that the receiver was attempting to dissuade prospective lenders who were approached on behalf of Rashmoni to lend any money to her. On the 16th of January 191 1 Haripada the younger son of Rashmoni died and his interest devolved upon his mother as his heir under the Hindu law. On the 28th January 1911 the following order was recorded by the Suborainate Judge: 471 "The receiver has filed a statement showing the amount as due to him up to the end of the. current month. This claim amounts to Rs. 20 950 2 6 pies only. The parties may deposit the sum on or before the 1st February next in Court and on such deposit the receiver will be discharged and the possession of the estate of late Mahendr Narayan Patra will be made over to the parties. " On the very same day Mohini exectued a mortgage (exhibit M 1) in favour of one Suhasini Dasi by which he hypothecated the properties allotted to his share and also his future interest as reversions to the share of Haripada to secure an advance of Rs. 30 000. The loan was to carry interest at the rate of 18% per annum. One thing may be mentioned in connection with this mortgage and that is that amongst the properties included in the mortgage were two properties namely premises No. 15/1 and 16 Chetlahat Road which had already been sold and to which the mortgagor bad no title at the date of the mortgage. On the 1st February 1911 Mohini deposited in Court the sum of Rs. 2 0 950 2 6 pies being the amount alleged to. be due to the receiver and the Court by an order passed on that date directed the release of the estate from the hands of the receiver. After the estate was released a petition was filed on behalf of the plaintiffs on the 15th February 1911 praying that the loans said to be contracted by the receiver should not be paid out of the money deposited in Court as these borrowings were made not for the protection of the estate but only for the personal benefit of the defendant Ram Narayan and to pay off his creditors. It was contended that the loans raised by the receiver were not raised in good faith after proper notice to the plaintiffs but on the strength of orders which he obtained ex parte from the Subordinate Judge without disclosing the material facts. This application. was rejected by the Court on the 23rd February 1911. After this order was made the plaintiffs put in a petition praying that payment of the moneys due to the creditor with the exception of what was necessary to pay off one of the creditors named Rakhal Das Adhya be stayed till the following Monday 472 as the plaintiffs wanted to move the High Court against the order of the Subordinate Judge mentioned above. The Court granted this prayer and on the 2nd of March following orders were received from the High Court directing that the moneys were to be detained in Court pending further orders. The High Court made order on the plaintiff 's petition on the 29th May 1911. The learned Judges were very critical of the appointment of the Sheristadar of the Court as receiver of the estate and in no measured terms blamed the Subordinate Judge for passing ex parte orders for raising loans on the applications of the receiver without any investigation at all and the receiver also for borrowing money not for the benefit of the estate but for the personal benefit of Ram Narayan the defendant. The High Court directed a full and proper investigation of the accounts of the receiver by a Commissioner and a Vakil of the High Court was appointed for that purpose. The Commissioner after a protracted enquiry submitted his report which was accepted by the High Court. Under the final orders passed by the High Court not only were the plaintiffs held not liable to pay any money to the receiver but the receiver was directed to pay a sum of Rs. 6 708 to the plaintiffs. The plaintiffs were also to receive Rs. 4 084 from the defendant Ram Narayan. The defendant was to pay Rs. 19 124 to the receiver and the receiver wag made personally liable for the loans that he had incurred. This order was made on the 23rd July 1913. In the meantime while the investigation of accounts were going on under orders of the High Court Rashmoni together with her son Mohini executed a security bond (exhibit E 1) on the 1st August 1911 and it is upon the legal effect of this document that the decision of this case practically depends. By this security bond which was executed in favour of Suhasini Dasi the mortgagee in the mortgage bond of Mohini Rashmoni purported to hypothecate all the properties that she got as heir of Haripada as additional security for the loan of Rs. 30 000 already advanced to Mohini under the mortgage. As is stated already two properties situated at Chetla were included in the mortgage of 473 Mohini although they were already sold. The security bond recites that the mortgagee having discovered this fact was about to Institute legal proceedings against the mortgagor and it was primarily to ward off these threatened proceedings and remove any apprehension from the minds of the mortgagee about the sufficiency of the security that this bond was executed. It is further stated in the bond that the estate of Haripada in the hands of his mother was benefited by the deposit of Rs. 20 950 in Court by Mohini Mohan out of the sum of Rs. 30 000 borrowed on the mortgage and that Mohini had spent the remaining amount of the loan towards clearing certain debts of Rashmoni herself and to meet the litigation and other expenses of both of them. Mohini died soon after on the 8th of November 1911. On October 13 1917 Suhasini instituted a suit for enforcing the mortgage and the security bond against Rashmoni and the heirs of Mohini. preliminary decree was passed on compromise in that suit on the 24th September 1918 and on the 25th July 1919 the decree was made final. The decree was put into execution and on the 15th September 1919 along with other properties the property in dispute was put up to sale and it was purchased by Annada Prasad Ghose for Rs. 13 500. On the 14th November 1919 Bhubaneswari wife of Ram Narayan as guardian of her infant sons filed a suit being Title Suit No. 254 of 1919 against Suhasini Rashmoni and Annada attacking the validity of the mortgage decree obtained by Suhasini as well as the sale in execution thereof. The suit ended on the 6th July 1921 and the plaintiff gave up her claim. On September 5 1922 Annada Ghose borrowed a sum of Rs. 10 000 from Sarat Kumar Das the original defendant No. 3 in the suit and the father of the present appellants and by way of equitable mortgage deposited with the lender the title deeds of the property No. 6 Dwarik Ghose Lane. On the 14th September 1925 Annada sold the property by executing a conveyance in favour of the mortgagee Sarat Kumar Das for a consideration of Rs. 15 500. On the 8th June 1939 Rashmoni died. About a year later on July 15 1940 the three sons of Ram Narayan who 61 474 are the reversionary heirs of Haripada after the death of Rashmoni commenced the present suit in the Court of the Subordinate Judge at Alipore claiming to recover possession of the property on the allegation that the security bond executed by Rashmoni not being supported by legal necessity the sale in execution of the mortgage as well as the subsequent conveyance in favour of Sarat Kumar Das could pass only the right title and interest of Rashmoni and could not affect the reversionary rights of the plaintiffs. Several other persons were impleaded as parties defendants and a number of issues were raised with which we are not concerned in this appeal. What concerns us in this appeal is the dispute between the plaintiffs on the one hand and defendant No. 3 on the other and this dispute centered. round three points namely (1)Whether the security bond (exhibit E 1) executed by Rashmoni along with Mohini was executed for legal necessity and was therefore binding on the reversioners of Haripada after the death of Rashmoni ? (2)Whether the fact that Mohini who was the presumptive reversioner at that time joined with his mother in executing the security bond would make it binding on the actual reversioner after the death of Rashmomi? In ' any event if such consent on the part of the presumptive reversioner raised a presumption of legal necessity was that presumption rebutted in the present case by the evidence adduced by the parties ? (3)Whether the title of defendant No. I was protected he being a stranger purchaser who had purchased the property from the purchaser at an execution sale after making proper enquiries and obtaining legal advice ? The trial Judge by his judgment dated the 22nd December 1944 decided all these points in favour of the plaintiffs and decreed the suit. On appeal by the defendant to the High Court the decision of the trial Judge was affirmed. The heirs of defendant No.3 have now come up to this Court and Mr. Chatterjee appearing in support of the appeal has reiterated all the three points which were urged on behalf of his clients in the Courts below. 475 On the first point both the Courts below have held concurrently that there was absolutely no legal necessity which justified the execution of the security bond by Rashmoni in favour of Suhasini. Mr. Chatterjee lays stress on the fact that it was a matter of imperative necessity for both the plaintiffs to get back the estate of their father from the hands of the receiver as the debts contracted by the receiver were mounting Up day after day. It is pointed out that on the 28th January 1911 the Court had made a peremptory order to the effect that the properties could be released only if the plaintiffs deposited Rs. 20 950 annas odd on or before the 1st February next. In order to comply with this order Mohini had no other alternative but to borrow money on the mortgage of his properties and this he had to do before the 1st February 1911. It is true that because of the unfortunate death of Haripada only a few days before Rashmoni could not join in executing the mortgage but she as heir of Haripada was really answerable for half of the money that was required to be deposited in Court. It is said that this was not a mere moral obligation but a legal liability on the part of the lady as Mohini could have claimed contribution from her to the extent that Haripada 's estate was benefited by the deposit. The execution of the security bond therefore was an act beneficial to the estate of Haripada. The contentions though somewhat plausible at first sight seem to us to be wholly without substance. In the first place the money borrowed by Mohini or deposited by him in Court did not and could not benefit Haripada 's estate at all. As was found on investigation of accounts under orders of the High Court later on nothing at all was due to the receiver by the estate of Haripada or Mohini. On the other hand both the brothers were entitled to get a fairly large sum of money from the receiver. The trial Judge found that there was no urgent necessity to borrow money for releasing the estate and in fact it was Mohini who acted in hot haste to execute the mortgage his only object being to get the properties in his own hands. It may be that it was not possible to know the actual state 476 of affairs with regard to the ' receiver 's accounts and consequently it might well have been thought prudent to borrow money to ward off what was considered to be a danger to the estate. This might furnish some excuse or explanation for Mohini 's borrowing money on the 28th January 191 1 but that could not make the act of Rashmoni in executing the security bond seven months after that event an act of prudent management on her part dictated either by legal necessity or considerations of benefit to the estate of her deceased son ' In the first place it is to be noted that the total amount borrowed by Mohini was Rs. 30 000 out of which Rs. 20 950 only were required to be deposited in Court. The recital in the security bond that the rest of the money was spent by Mohini to pay off certain debts of Rashmoni herself and also to meet the litigation and household expenses of both of them has been held by the Subordinate Judge to be false. It has been found on facts that Rashmoni had no occasion to incur any debts either for litigation expenses or for any other purpose. But the most important thing that would require consideration is the state of things actually existing at the time when the security bond was executed. Even if the release of the estate was considered to be desirable that had been already accomplished by Mohini who borrowed money on his own responsibility. The utmost that could be said was that Rashmoni was bound to reimburse Mohini to the extent that the deposit of money by Mohini had benefited the estate of Haripada. The High Court has rightly pointed out that Rashmoni did not execute the bond to raise any money to pay off her share of the deposit and in fact no necessity for raising money for that purpose at all existed at that time. As has been mentioned already by an order passed by the High Court on the revision petition of Mohini and his mother against the order of the Subordinate Judge dated the 23rd February 191 1 the whole amount of money deposited in Court on the 1st February 191 1 with the exception of a small sum that was paid to a creditor with the consent of both parties was detained in Court. The High Court dispos ed of the revision case on 29th May 1611 and directed 477 investigation into the accounts of the receiver by a Commissioner appointed by it. As said already the Court passed severe strictures on the conduct of the receiver as well as of the Subordinate Judge and plainly indicated that the moneys borrowed by the receiver were borrowed not for the benefit of the plaintiffs at all. Undoubtedly the accounts were still to be investigated but what necessity there possibly could be for Rashmoni to execute after the High Court had made the order as stated above a security bond by which she mortgaged all the properties that were allotted to Haripada in his share as an additional security for the entire loan of Rs. 30 000 no portion of which be defied the estate of Haripada at all? In our opinion the only object of executing the security bond was to protect Mohini who was threatened with legal proceedings by his creditor for having included a nonexistent property in the mortgage bond. Rashmoni certainly acted at the instance of and for the benefit of Mohini and she might have been actuated by a feeling of Maternal affection to save her son from a real or imaginary danger. But by no stretch of imagination could it be regarded as a prudent act on the part of a Hindu female heir which was necessary for the protection of the estate of the last male holder. In our opinion the view taken by the Courts below is quite proper and as a concurrent finding of fact it should not be disturbed by this Court. The second point urged by Mr. Chatterjee raises the question as to whether the fact of Mohini 's joining his mother in executing the security bond would make the transaction binding on the actual reversioner Mohini being admittedly the presumptive reversioner of Haripada at the date of the transaction. We do not think that there could be any serious controversy about the law on this point. The alienation here was by way of mortgage and so no question of surrender could possibly arise. Mohini being the immediate reversioner who joined in the execution of the security bond must be deemed to have consented to the transaction. Such consent may raise a presumption that the transaction was for legal necessity or that the mortgagee had acted therein after proper and bona flde enquiry and has 478 satisfied himself as to the existence of such necessity(1). But this. presumption is rebuttable and it is open to the actual reversioner to establish that there was in fact no legal necessity and there has been no proper and bonafide enquiry by the mortgagee. There is no doubt that both the Courts below have proceeded on a correct view of law and both have come to the conclusion upon a consideration of the evidence in the case that the presumption that arose by reason of the then reversioner 's giving consent to the transaction was rebutted by the facts transpiring in evidence. Mr. Chatterjee placed considerable reliance upon another document which purports to be a deed of declaration and was executed by Ram Narayan on the 5th of October 1918. At this time Mohini was dead 'and Ram Narayan was the immediate reversioner to the estate of Haripada and by this deed he declared inter alia that the debts contracted by Rashmoni were for proper and legal necessity. This deed purports to be addressed to Bangshidari Ghosh and Keshav Dutt two other alienees of the properties of Mohini and Haripada and does not amount to a representation made to the auction purchaser Annada Prasad Ghose or to the father of the present appellants. In fact they had not come in the picture at all at that time. At the most it can be regarded only as an admission by a presumptive reversioner and cannot have any higher value than the consent expressed by Mohini who figured as a co execuitant of the security bond. It cannot bind the actual reversioner in any way. Mr. Chatterjee attempted to put forward an argument on the authority of certain observations in the case of Bajrangi vs Monokarnika(2) that as the present appellants are the sons of Ram Narayan the admissions made by their father would bind them as well. It is true that there is a passage at the end of the judgment in Monokarnika 's case(1) which lends some apparent support to the contention of the learned counsel. The concluding words in the judgment stand as follows: (1)Vide Debi Prosad Chowdhury vs Golap Bhagat I.L.R. at 78I. Approved of by the judicial Committee in Gounden vs Gounden 46 I.A. 72 84. (2) 35 I.A. 1. 479 "The appellants who claim through Matadin Singh and Baijnath Singh must be held bound by the consent of their fathers. " But the true import of this passage was discussed by the Privy Council in their later pronouncement in Rangasami Gounden vs Nachippa Gounden(1) and it was held that the words referred to above should I not be construed to lay down the proposition that such consent on the part of the father would operate proprio vigore and would be binding on the sons. This proposition Their Lordships observed was opposed both to principle and authority it being a settled doctrine of Hindu law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through anyone who went before him. As the sons of Ram Narayan claim as heirs of Haripada and not of their father the admissions if any made by the latter could not in any way bind them. This contention of the appellant must therefore fail. The third and the last contention raised by Mr. Chatterjee is that in any event his client is a stranger who has bona fide purchased the property for good consideration after making due enquiries and on proper legal advice and be cannot therefore be affected by any infirmity of title by reason of the absence of legal necessity. In our opinion the contention formulated in this form really involves a misconception of the legal position of an alienee of a Hindu widow 's property. The interest of a Hindu widow in the pro perties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bonafide purchaser for value without notice. From very early times the Hindu widow 's estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity and the restrictions on the powers of alienation are inseparable from her estate (2). For legal necessity she can convey to another an absolute title to the property vested in her. If there is no legal 'necessity the transferee gets only the widow 's estate which is not even an (1) 46 I.A. 72 at 83 84. (2) Vide The Collector of Masaulipatam vs Cavaly Venkata S.M.I.A. 529 480 indefeasible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re marriage adoption etc. If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer he is completely protected and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself. Even if there is no necessity in fact but it is proved that there was representation of necessity and the alienee after making bona fide enquiries satisfied himself as best as he could that such necessity existed then as the Privy Council pointed out in Hunooman Persaud Panday 's case (1) the actual existence of a legal necessity is not a condition precedent to the validity of the sale. The position therefore is that if there is no necessity in fact or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence the transfer is undoubtedly not void but the transferee would get only the widow 's estate in the property which does not affect in any way the interest of the reversioner. In this case the alienation was by way of mortgage. The finding of both the Courts below is that there was no legal necessity which justified the execution of the security bond. The mortgagee also could not prove that there was representation of the legal necessity and that she satisfied herself by bona fide enquiries that such necessity did exist. On 'this point the finding recorded by the High Court is as follows : " In the present case there is no scope for an argument that there was such representation of legal necessity or that on bona fide enquiry the alienee satisfied herself 'that there was such a necessity for as I have already pointed out the security bond itself states that it was in consideration of benefits already received and with a view to induce Suhasini to forbear from proceeding against Mohini that the bond was being executed. There is no representation in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger to the estate or for the purpose of any other legal necessity. Whatever enquiries the appellants may have made (1) would be of no avail to them when the alienation is not binding on the whole estate but only on the woman 's estate of Rashmoni. " In our opinion the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widow 's estate of Rashmoni and it was that interest alone which passed to the purchase. at the mortgage sale. The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice. The result is that in our opinion the decision of the High Court is right and this appeal must stand dismissed with costs. Appeal dismissed.

It is a well settled doctrine of Hindu law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through any one who went before him. The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchaser for value without notice. A Hindu widow has got only qualified proprietorship in her estate which she can alienate only when there is justifying necessity and the restrictions on her powers of alienation are inseparable from her estate. For legal necessity she can convey to another an absolute title to the property vested in her. If there is no legal necessity the transferee gets only the widow 's estate which is not even an indefeasible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re marriage adoption etc. If an alienee from a Hindu widow succeeds in establishing that there was legal necessity for transfer he is completely protected and it is immaterial that the necessity was brought about by the mismanagement of the limited owner herself. Even if there is no necessity in fact but it is proved that there was representation of necessity and the alienee after making bona fide enquiries satisfied himself as best as he could that such necessity existed the actual existence of a legal necessity is not a condition precedent to the validity of the sale. Therefore if there is no necessity in fact or if the alienee could not prove that he made bona fide enquiries and was satisfied about its existence the transfer is not void but the transferee would get only the widow 's estate in the property which does not in any way affect the interest of the reversioner. Debi Prasad Chowdhury vs Golap Bhagat (I.L.R. 40 Cal. 721) Rangasami Gounden vs Nachiappa Gounden (46 I.A. 72) Bajrangi vs Manokarnika (35 I.A. 1) The Collector of Masulipatam vs Cavaly Venkata (8 M. I.A. 529) and Hunoomanpersaud Pandey vs Musammat Babooee Munraj Koonweree referred to.

254 of 1954. Under article 32 of the Constitution for the enforcement of fundamental rights. The petitioner in Person. M. C. Setalvad Attorney General for India (G. N. Joshi and P.G. Gokhale with him) for the respondents. The Judgment of the Court was delivered by BOSE J. This is a petition under article 32 of Constitution and raises the same question on the merits as in the connected 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 no question 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. G 's first objection is that the proceedings before the Tribunal were ultra vires because there was no proper order. of appointment. At a very early stage he applied to the Registrar and also to the Prothonotary for a copy of the order of the Chief Justice constituting 502 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 not challenge this statement of fact in either. He contented himself with saying that the 'order was not "judicial" and so was not 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 notice 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 not challenge this statement of fact but again confined 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 not challenged. We cannot allow Mr. 'G ' to go behind that. The next question is whether an oral order is enough: Bar Councils Act does not 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 consist of not 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 not 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 copies of which were retained on the files) are a sufficient record of the making of the order. Mr. 'G ' was supplied with copies 503 of those letters and so was aware of the fact that orders had been issued. As a matter of fact we have seen the originals of the High Court 's office files and find that the names of the three members of the Tribunal are in the Chief Justice 's 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 sections 10(2) and 11(2) of the Bar Councils Act and hold that the Tribunal was validly appointed. Mr. G 's next point is that there was no "complaint" to the High Court and so it had no jurisdiction 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 connected case. This petition is dismissed but here again we make no order about costs. Petition dismissed.

The order under section 10(2) of the given to a proper officer of the Court may be an oral order and need not be a written one. The High Court can under section 10(2) refer a case on its own motion.

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. M. C. Setalvad Attorney General for India and C. K. Daphtary Solicitor General for India (Porus A. Mehta with them) for the appellants. N.A. Palkhivala and section P. Varma for respondent No. 1. 1954. May 14. The Judgment of the Court was delivered by BHAGWATI J. 207 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 construction of clause 3 of the Requisitioned. Land (Continuance of Powers) Ordinance 1946. The suit out of which this appeal arises was commenced 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 conferred 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 conditions: (1)The property shall be continued 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 advocate 's letter dated the 27th August 1946 208 offering the tenancy to the Department on certain terms. These terms were not accepted but the occupation of the premises continued even after the 30th September 1946 and the first respondent complained about such occupation after the period of requisition of the said shops had come to anend and also complained that it was contemplated to transfer the said shops to a private party or concern without any reference to her in the matter. By her advocate 's letter dated the 29th August 1947 she gave to the Collector of Bombay a notice 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 consent to the electric connection to be carried out in the said shops by the second respondent. The first respondent refused to giver her consent and protested against the contemplated 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 continued 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 could not be given to the first respondent. Further correspondence ensued between the first respondent 's attorneys and the Collector of Bombay in the course of which the Collector of Bombay admitted that the said shops had been sublet to the second respondent but contended that the maintenance of essential supplies was the purpose for which the premises in question were requisitioned and that as the second respondent continued to serve the same purpose the first respondent was not 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 209 of the premises as also compensation 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 contested by the appellants. The second respondent did not file any written statement nor did he contest the suit. The first respondent contended that the requisitioning order had expired that the property was no longer under requisition and therefore the possession by the Government was wrongful. She next contended that the order was made for a specific purpose and as that purpose no longer obtained the order was no longer operative. She further contended that after August 1947 the user of the property was not by the appropriate Government viz. the Dominion of India but was by the State Government. She also contended 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 contentions of the first respondent and decreed the suit. The appellants preferred an appeal against that decision and the Court of Appeal confirmed 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 continuing the requisitioning order. It affirmed the conclusion of the trial Court that there was no further 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 not 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 common ground that the Defence of India Act 1939 (XXXV of 1939) and the rules made thereunder 27 210 were to expire on the 30th September 1946. Various immoveable properties had been requisitioned in exercise of the powers conferred by sub rule I of rule 75A of Defence of India Rules and all these requisitioning orders would have come 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 continued and an emergency arose which made it necessary to provide for the continuation of certain powers theretofore exercisable under the said Act and the said rules and the Governor General in exercise of the powers conferred 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 continuance 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 continuance 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:. . . . 2. DEFINITIONS. . . . (3) " 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. 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 continue 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 211 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 come 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 continuance of the powers exercisable under the Act and the rules and to continue 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 come to an end with the expiration of the Act and the rules were the only orders which were intended to be continued by virtue of clause 3 of the Ordinance and clause 3 would accordingly cover only such requisition orders as would have. ceased to be operative and come to an end with the expiration of the Act and the rules and not 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 come 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 not have depended upon the expiration of the Act and the rules and were therefore not touched by clause 3 of the Ordinance. That this was the true construction of clause 3 of the Ordinance was further sought to be supported by the non obstante clause appearing therein, viz., Notwithstanding the expiration of the Defence of India Act 1939 (XXXV of 1939) and the rules made thereunder. " The non obstante clause was invoked in support of the submission that those orders which would have ceased to be operative and come to an end with the expiration of the Act and the rules were the only orders which were intended to be continued under clause 3 of the Ordinance. 212 There is considerable 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 non obstante clause the plain wording of the Ordinance was capable of covering the order in dispute. The preamble in so far as it could be drawn upon for the purpose showed that the Ordinance was being enacted to provide for the continuation 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 contained in clause 2(3) also covered 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 covered all requisitioned lands which having regard to the definition above mentioned covered 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 continue to be subject to requisition until the expiry of the Ordinance. On a plain and grammatical construction 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 continued to be subject to requisition until the expiry of the Ordinance no matter 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 construction was sought to be negatived by having resort to the non 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 come 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 come to an end by reason of the fact that it was limited in duration and 213 was to expire on the 30th September 1946 the non obstante clause saved that from the operation of clause 3 of the Ordinance and such requisition order could not continue in operation until the expiry of the Ordinance as therein provided. Such orders could not have been in the contemplation of the legislative authority because they would cease to be operative and come to an end by reason of the inherent weakness of the orders and not by reason of the fact that the Act and the rules were to expire on the 30th September 1946 and it would not be at all necessary to make any provision for the continuance of such requisitions because they could never have been intended to be continued. While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non obstante clause and the operative part of the section the non obstante clause need not necessarily and always be co extensive 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 construction of the words thereof a non obstante clause cannot out down that construction and restrict the scope of its operation. In such cases the non 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 not 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 contained in clause 2(3) of the Ordinance are quite clear and it would not be within the province of the Courts to speculate as to what was intended to be covered by clause 3 of the Ordinance when the only interpretation which could 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 continue 214 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 construed. But in spite of such strict construc 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 covered 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 come to an end not only because the fixed term expired but also because the Act and the Rules expired on that date and were therefore covered by_ clause 3 read along with the definition in clause 2(3) of the Ordinance and were by the clear terms thereof continued until the expiry of the Ordinance. We are not here concerned 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 could be granted by the appropriate Government by releasing the immoveable property from requisition. But the Courts would be helpless in the matter. Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering 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 come to the conclusion that both the trial Court and the Court of appeal were in error when they reached the conclusion that clause 3 of the Ordinance had not the effect of continuing 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 costs. He pointed out to us that he had particularly requested the Court of appeal not to decide the appeal merely on the short 215 point in regard to the construction 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 not respond to Mr. Palkhivala 's request but we have not had the benefit of the judgment of the Court of appeal on those points which found favour with the trial Court and which were not considered 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 considered 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 considerable as alleged by Mr. Seervai before the trial Court. We are not concerned 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 costs in her favour. But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of appeal. We therefore allow the appeal set aside the decree passed by the Court of appeal and remand the Appeal No. 117 of 1952 for hearing and final disposal by the Court of appeal on the other points which have been raised in the matter after hearing both the parties. There will be no order as to costs here as well as in the Court of appeal. Appeal allowed.

Three shoprooms were requisitioned on April 15 1943 under the Defence of India Rules and the requisition order inter alia stated that is the said requisitioned property shall be continued in requisition during the period of present war and six months thereafter or for such shorter period as may be specified by the Food Controller Bombay. . Held that on a plain and grammatical construction of cls. 2(3) and 3 of Ordinance XIX of 1946 the immoveable property which when the Defence of India Act expired on the 30th September 1946 was subject to any requisition order effected under the Act and the rules thereunder continued to be subject to requisition until the expiry of Ordinance no matter whether the requisition order to which the immoveable property was subject was of a limited duration or an indefinite period. The ordinary rule is that there should be a close approxima tion between the non obstante clause and the operative portion of the section but the non obstante clause need not necessarily and always be co extensive with the operative part if it has the effect of cutting down the clear terms of an enactment.

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. C.K. Daphtary Solicitor General for India (J. B. Dadachanji and Rajinder Narain with him) for the appellant. S.C. Isaacs (section section Shukla with him) for the respondent. 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 505 in his favour by Haji Jethabhai Gokuil and Co. Of Basra on the respondents who are merchants and commission 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 contracts through Vrajlal as his commission agent and was actually residing at his Pedhi. On 12th January 1948 the appellant sent a notice 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 not 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 not disclose a cause of action against them as there was no averment therein that the hundi had been accepted by them. At the trial the appellant gave evidence that Vrajlal had received the registered cover containing the hundi in his absence and collected the amount due thereunder without his knowledge or authority. The learned City Civil Judge accepted this evidence and held that Vrajlal had not 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 65 506 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 not allege that it had been. accepted by them there was no cause 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 no serious attempt before us to challenge the correctness of the legal position on which the judgment of the High Court is based that the drawee of a negotiable instrument is not liable on it to the payee unless he has accepted it. On the provisions of the no other conclusion impossible. Chapter III of that Act defines the obligations of parties to negotiable instruments. Section 32 provides that " In the absence of a contract to the contrary the maker of a promissory note 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 note 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 no provision 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 not the payee. This is elementary law and was laid down by West J. in Seth Khandas Narandas vs Dahibai(1) in the following terms: " Where there is no acceptance no cause of action can have arisen to the payee against the drawee. " Nor is there any substance in the contention that section 61 of the Act provides for presentment for acceptance only when the bill is payable after sight and not when it is payable on demand. as is the suit (1) I.L.R 3 Bo. 182 at P. 183. 507 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 vs 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 not paid it is really. dishonoured for non 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 no action on the bill is maintainable by the payee against the drawees. The main contention 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 contention is firstly that there was no valid presentment of the hundi for acceptance; and secondly that there was no acceptance 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 no authority to act in the matter it is difficult to see how he could 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 no authority to receive the payment he had no authority to present the bill for acceptance. It was argued that there was no provision (1) I.L.R. at P 141. 508 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 no authority to receive the amount on behalf of the plaintiff there was no valid presentment of the hundi by him for acceptance either. It has next to be considered 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 constitute acceptance. Under the common law of England even a verbal acceptance was valid. Vide the observations of Baron Parke in Bank of England vs Archer(1). It was accordingly held that such acceptance could be implied when there was undue retention of the bill by the drawee. (Vide Note to Harvey vs 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 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 conduct where at least no question of estoppel arises. But then it was argued that the possession of the hundi was not the only circumstance from which acceptance could 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 509 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 not an acknowledgment of liability. As the law prescribes no particular form for acceptance there should be no difficulty in construing 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; nor is it signed by the defendants. It is a matter of implication arising from the discharge of the instrument. That is not sufficient to fix a liability on the defendants under section 32. In conclusion we must hold that there was neither a valid presentment of the hundi for acceptance nor a valid acceptance thereof. In the result the appeal fails and is dismissed with costs. Appeal dismissed.

Under section 32 of the the liability of the drawee arises only when he accepts the bill. There is no provision 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 hands; and even then the liability is only towards the drawer and not the payee. There is no substance in the contention that section 61 of the Act provides for presentment for acceptance only when the bill is payable after sight and not when it is payable on demand. In a bill payable after sight there are two distinct stages 504 firstly when it is presented for acceptance and later when it is presented for payment. Section 61 deals with the former and section 64 with the latter. 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 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. Section 7 of the following the English Law provides that the drawee becomes an acceptor when he has signed his assent on the bill. Accordingly there cannot be apart from any mercantile usage an oral acceptance of the hundi much lose an acceptance by conduct where at least no question of estoppel arises. What is requisite for fixing the drawees with liability under section 32 is the acceptance by them of the instrument and not an acknowledgment of liability. As the law prescribes no particular form for acceptance there should be no difficulty in construing 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 drawee. Seth Khandas Narandas vs Dahibai (I.L.R. Ram Raviji Jambhekar vs Prahladdas Subhakaran (I.L.R. 20 Bom.1 33) Bank of England vs Archer ((1843) ; and Harvey vs Martin ( referred to.

Appeal No. 156 of 1954. Appeals by Special Leave against the Judgment and Order dated the 24th December 1953 of the Election Tribunal Gwalior Madhya Bharat in Election Petition No. 263 of 1952. N.C. Chatterjee (section K. Kapur and Ganpat Rai with him) for the appellants. C.K. Daphtary Solicitor General for India (section P. Varma with him) for the respondents Nos. I and 5. C.K. Daphtary Solicitor General for India (C. P. Lal with him) for respondent No. 4. 1954. September 28. The Judgment of the Court was delivered by BOSE J. This is an appeal from a decision of the Election Tribunal of Gwalior in which the petitioner an elector sought to set aside the elections of the appellants (respondents 1 and 2 to the petition) who were the successful candidates. The constituency is Bhilsa a double member constituency in Madhya Bharat. The petitioner seems to have been fighting on behalf of the 6th and 7th respondents to the petition because one of his prayers is that they be declared to have been duly elected in place 'of the appellants (respondents 1 and 2). The petitioner succeeded and the Tribunal declared the elections of the two appellants to be void and further declared that the 6th and 7th respondents had boon duly elected 609 We will first consider that part of the decision which declares the election of the two appellants to be void. The Tribunal finds among other things that the ' appellant No. 1 (1st respondent) published certain pamphlets which contain statements listed as (a) (b) (c) (e) (f) and (g) by the Tribunal. The Tribunal holds that these statements are false and that the 1st appellant (1st respondent) did not believe them to be true. It also holds that these statements reflect on the personal character and conduct of the 6th respondent and are reasonably calculated to prejudice his prospects in the election. These findings were contested and the learned counsel for the appellants contended that the attack was on the public and political character of the 6th respondent and was a legitimate attack. We do not intend to examine this as a Court of appeal because this is a special appeal and all we are concerned to see is whether a Tribunal of reasonable and unbiased men could judicially reach such a conclusion. We have had some of these pamphlets read out to us and we are of opinion that the conclusion of the Tribunal is one which judicial minds could reasonably reach. We decline to examine the matter further in special appeal. Under the law the decision of the Tribunal is meant to be final. That does not take away our jurisdiction but we will only interfere when there is some glaring error which has resulted in a substantial miscarriage of justice. On those findings a major corrupt practice on the part of the 1st respondent (1st appellant here) under section 123(5) of the Representation of the People Act 1951 is established. The next finding concerns the 2nd respondent (appellant No. 2). The Tribunal finds that he made a systematic appeal to Chamhar voters to vote for him on the basis of his caste. There is evidence to support this finding. The leaflets marked N and 0 place that beyond doubt. This constitutes a minor corrupt practice under section 124(5) of the Act. Both these provisions namely sections 123(5) and 124(5) were challenged as ultra vires article 19(1)(a) of the Constitution It was contended that article 245(1) 78 610 prohibits the making of laws which violate the Constitution and that the impugned sections interfere with a citizen 's fundamental right to freedom of speech. There is nothing in this contention. These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules the impugned sections do not stop them. We hold that these sections are intra vires. In addition to these findings the Tribunal found that both the appellants committed an illegal practice within the meaning of section 125(3) in that they issued a leaflet and a poster which did not have the name of the printer on them. This is a pure question of fact. The result of committing any corrupt practice is that the election of the candidate is void under section 100(2)(b). It is not necessary to prove that the result of the election was materially affected thereby because clause (b) is an alternative that stands by itself. All that need be proved is that a corrupt practice has been committed and that the Tribunal finds to be the fact. The Tribunal was accordingly justified in declaring the election of the first appellant to be void. In addition to this the Tribunal found that the corrupt practice committed by the second appellant respondent No. 2) also materially affected the result of the election. This was challenged but we need not go into that because the finding that the second appellant committed a minor corrupt practice and also an illegal practice is clear and so his case falls under clause (a) of sub section (2) of section 100. Sub section (2)(a) so far as it is material here runs. . . . if the Tribunal is of opinion 611 (a)that the election of a returned candidate has been procured or induced or the result of the election has been materially affected by any corrupt or illegal practice the Tribunal shall declare the election of the returned candidate to be void. " The Tribunal finds as a fact that the second appellant 's election was procured by a corrupt practice. His case therefore falls within the first of the three alternatives envisaged by clause (a) so it is not necessary to enquire whether it also falls under the third. We hold that this election was also rightly declared to be void. That disposes of the first and second appellants (respondents 1 and 2). We now turn to respondents 6 and 7 to the petition. They are the 4th and 5th respondents before us Ramsahai and Sunnu La]. The Tribunal acting under section 101 (b) declared them to be duly elected. Here we are of opinion that the Tribunal was wrong. Before this can be done it must be proved that " but for the votes obtained by the returned candidate by corrupt or illegal practices. such other candidate would have obtained a majority of the valid votes. " The Constituency was a double member constituency. The following stood for the General Constituency and obtained the votes shown against them: Jamuna Prasad Mukhariya (Respt. No. 1) 13 669 Keshav Shastri (Respt. No. 3) 1 999 V. N. Sheode (Respt. No. 4) 1 350 Ram Sabai (Respt. No. 6) 12 750 The Tribunal says that the difference invotes between respondents I and 6 is 919. We presume that this is meant to show that the voting between them was close. From that the Tribunal jumps to the following conclusion: " Considering the scandalous nature of the false statement regarding respondent No. 6 and the mode 612 of systematic appeal on the basis of caste made by respondent No. 2 we have no doubt in our minds that. respondent No. 1 got more votes simply because of corrupt practices and if these. corrupt practices had not been there respondent No. 6 undoubtedly would have obtained a majority of valid votes. " This in our opinion is pure speculation and is not a conclusion which any reasonable mind could judicially reach on the data set out above. There is nothing to show why the majority of the 1st respondent 's voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents. An exactly similar process of reasoning was followed in the case of the 7th respondent. He was a Scheduled Caste candidate and the voting there was as follows: Chaturbhuj Jatav (Respt. No. 2) 12 452 Hira Khusla Chamar (Respt. 5) 601 Sunnulal (Respt. 7) 10 889 Here again there is no basis for concluding that those who voted for the 2nd respondent would if they had not done so have preferred the 7th respondent to the 5th. We set aside this part of the order. The result is that the appeal fails in so far as it attacks the Tribunal 's declaration voiding the election of the two appellants but succeeds against that part of the order which declares the 6th and 7th respondents to have been elected. In the circumstances there will be no order about costs in either Court. Order accordingly.

Held that sections 123(5) and 124(5) of the Representation of the People Act (XLIII of 1951) are not ultra vires article 19(1) (a) of the Constitution.

tter of the Contempt of Court proceedings relating to the printing publishing and circulation of a pamphlet over the name of Hira Lal Dixit (General Secretary Praja Socialist Party Mainpur) entitled "HAMARA VAHAN VIBRAG" arising out of (Civil) Petition No. 379 of 1953. (Hira Lal Dixit vs The State of Uttar Pradesh). The Attorney General for India (P. A. Mehta with him) to assist the Court. S.C. Issacs (R. Patnaik and section section Shukla with him) for respondent No. I (Hira Lal Dixit). Mohan Lal Saxena and section section Shukla for respondent No. 2 (Kishore Dutt Paliwal). S.S. Shukla for respondent No. 3 (Printer Sainik Press). 679 1954. October 1. The Judgment of the Court was delivered by DAS J. This Rule was issued by this Court on the 16th September 1954 calling upon the respondents to appear and show cause why they should not be proceeded against for contempt of this Court. It is desirable to mention at the outset the cir cumstances in which it became necessary for this Court to issue this Rule. On the 14th September 1954 there were on that day 's cause list for hearing and final disposal two appeals being 'Appeal No. 182 of 1954 (Saghir Ahmad vs The State of Uttar Pradesh and Others) and Appeal No. 183 of 1954 (Mirza Hasan Agha vs The State of Uttar Pradesh and Others). A large number of writ petitions 224 in number under article 32 of the Constitution raising the same questions were also on the cause list for that day. Both the appellants and all the petitioners were engaged in carrying on businesses as carriers of passengers and goods by motor buses or lorries on different routes under licenses issued by the State of Uttar Pradesh and in cases where the route passed into or through the State of Delhi countersigned by that State. Some of these persons had originally been granted permanent permits by the Regional Transport Authority. Pursuant to the policy of nationalisation of road transport business the State of Uttar Pradesh made declarations under section 3 of the Uttar Pradesh State Road Transport Act 1950 to the effect that road transport services on certain routes should be run and operated by the State Government in the manner mentioned in the relevant declarations and it also published schemes of road transport services under section 4 of that Act. In furtherance of its object the State Government began to serve notices on the licensees to stop plying buses on specified routes. The appellant thereupon applied to the Allahabad High Court for a writ of mandamus directing the State Government and its Minister of Transport to withdraw the declaration made under section 3 of the Uttar Pradesh Road Transport Act 1950 in respect of their respective routes and directing them and their officers to refrain from proceeding further under sections 4 and 680 5 of that Act and not to interfere with the operation of their respective stage carriages and for other ancillary reliefs. By an order made on the 17th November 1953 the Allahabad High Court dismissed those applications. The two petitioners thereupon filed these two appeals in this Court after having obtained a certificate from the Allahabad High Court under article 132(1) of the Constitution. The appellants obtained orders for stay of proceedings until the determination of their appeals. In view of the decision of the Allahabad High Court many other persons holding licenses for plying motor stage carriages or contract carriages came direct to this Court with applications under article 32 for appropriate writs and obtained interim stay. As already stated the two appeals and all those numerous applications were posted on the cause list for the 14th September 1954 for final disposal. The respondent Hira Lal Dixit was the petitioner in one of those writ applications. The two appeals were called on for hearing on that day and were part heard. The hearing continued for the whole of the 15th and 16th September 1954 and was concluded on the 17th September 1954 when the Court took time for considering its decision. The Court has not 'yet delivered its judgment. A large number of persons presumably the petitioners in the writ petitions or otherwise interested therein attended the Court on all those dates for the result of the decision of the appeals would also conclude the writ petitions. It appears that on the 15th September 1954 a leaflet printed in the Hindi language and characters consisting of 18 pages intituled "Hamara Vahan Vibhag" meaning "Our Transport Department" purporting to be written by the respondent Hira Lal Dixit and containing a foreword purporting to be written by Sri Krishna Dutt Paliwal and a block photograph of the respondent Hira Lal Dixit on the front page was distributed in the Court premises. The leaflet contained a graphic account of the harassment and indignity said to have been meted out to the writer by the State officers and the then State Minister of Transport in connection with the cancellation and eventual restoration of his license 681 in respect of a passenger bus. The second paragraph on page 15 of that leaflet contained a passage of which the following is an English translation prepared by an advocate of this Court duly authorised in that behalf" The public has full and firm faith in the Supreme Court but sources that are in the know say that the Government acts with partiality in the matter of appointment of those Hon 'ble Judges as Ambassadors Governors High Commissioners etc. who give judgments against Government but this has so far not made any difference in the firmness and justice of the Hon 'ble Judges. " The leaflet containing the above offending paragraph having been brought to its notice the Court on the 16th September 1954 issued the present rule and sent a copy of the rule to the Attorney General for India. All the respondents have been duly served. They have filed affidavits and have appeared before us by their respective advocates. The respondent Sri Krishna Dutt Paliwal the writer of the foreword who was present in Court made the following statement to the Court through his advocate Sri Mohan Lal Saksena: " When I wrote the foreword I did not go through the whole manuscript. I was only told that it dealt with the working of the Transport Control. Now that my attention has been drawn to the passage objected to I am sorry that I wrote a foreword to the pamphlet and I offer my apology to the Court. I never knew that the pamphlet was intended for circulation and I was not a party to its circulation. " One. Devendra Sharma the General Manager of the Sainik Press Agra where the offending leaflet was printed filed an affidavit on behalf of the respondent Press stating that at the time when the leaflet had been given to the Press for being printed he did not notice the paragraph in question that his attention was drawn to it only after the service of the present Rule that he was sorry that it had been printed in the Press and that he never had the slightest intention of committing any contempt of this Court. In his affidavit as well as through his advocate Sri section Sukla the 682 respondent Press represented by Devendra Sharma who was present in Court tendered an unqualified apology to the Court. In view of the statements made in Court by the advocates of these two respondents this Court accepts their apology and discharges the rule as against them and nothing further need be said about them. Learned counsel appearing for the respondent Hira Lal Dixit strongly urged that the passage complained of could not possibly be capable of any derogatory meaning or implication and could not be regarded as constituting a contempt of Court. There are innumerable ways by which attempts can be made to hinder or obstruct the due course of administration of justice in Courts. One type of such interference is to be found in cases where there is an act or publication which scandalises the Court itself. A situation of that type was considered by this Court in the case of Brahma Prakash Sharma and Others vs The State of Uttar Pradesh(1) and the principles governing a case of that type were discussed and laid down in the judgment of the Court. The present case does not fall within that category for here there has been no scandalising of the Court itself. The question here is whether the offending passage is of such character and import or made in such circumstances as would tend to hinder or obstruct or interfere with the due course of administration of justice by the Court. To begin with the leaflet was written by a person who was himself the petitioner in one of the writ petitions which were on the cause list for hearing. The actual timing of the publication of the leaflet is significant. It was circulated at a time when the appeal and the writ petitions including that of the respondent Hira Lal Dixit himself were posted on the cause list and the appeals on the decision of which depended the fate of those numerous petitions were being actually heard. The place of publication was also not without significance. It was distributed in the Court premises where a very large number of licensees had fore gathered. The fact of distribution of the leaflet in the Court premises was denied in the affidavit of this respondent but when a (1) 683 suggestion was made that evidence be recorded on this point the learned counsel appearing for him did not press for it and accepted the position that the leaflet was in fact distributed in the Court premises. In the circumstances the only other question that remains is as to what was the meaning and purpose of the offending passage in the leaflet. Learned counsel for the respondent Hira Lal Dixit maintained that the passage in question was perfectly innocuous and only expressed a laudatory sentiment towards the Court and that such flattery could not possibly have the slightest effect on the minds of the Judges of this august tribunal. We do not think flattery was the sole or even the main object with which this passage was written or with which it was published at the time when the hearing of the appeals was in progress. It no doubt begins with a declaration of public faith in this Court but this is immediately followed by other words connected with the earlier words by the significant conjunction "but. " The words that follow are to the effect that sources that are in the know say that the Government acts with partiality in the matter of appointment of those Judges as Ambassadors Governors High Commissioners etc. who give judgments against the Government. The plain meaning of these words is that the Judges who decide against the Government do not get these high appointments. The necessary implication of these words is that the Judges who decide in favour of the Government are rewarded by the Government with these appointments. The attitude of the Government is thus depicted surely with a purpose and that purpose cannot but be to raise in the minds of the reader a feeling that the Government by holding out high hopes of future employment encourages the Judges to give decisions in its favour. This insinuation is made manifest by the words that follow namely "this has so far not made any difference in the firmness and justice of the Hon 'ble Judges. " The linking up of these words with the preceding words by the conjunction "but" brings into relief the real significance and true meaning of the earlier words. The passage read as a 684 whole clearly amounts to this: "Government disfavours Judges who give decisions against it but favours those Judges with high appointments who decide in its favour: that although this is calculated to tempt Judges to give judgments in favour of the Government it has so far not made any difference in the firmness and justice of the Judges. " The words "so far" are significant. What we ask was the purpose of writing this passage and what was the object of the distribution of the leaflet in the Court premises at a time when the Court was in the midst of hearing the appeals ? Surely there was hidden in the offending passage a warning that although the Judges have "so far" remained firm and resisted the temptation of deciding cases in favour of Government in expectation of getting high appointments nevertheless if they decide in favour of the Government on this occasion knowledgeable people will know that they had succumbed to the temptation and had given judgment in favour of the Government in expectation of future reward in the shape of high appointments of the kind mentioned in the passage. The object of writing this paragraph and particularly of publishing it at the time it was actually done was quite clearly to affect the minds of the Judges and to deflect them from the strict performance of their duties. The offending passage and the time and place of its publication certainly tended to hinder or obstruct the due administration of justice and is a contempt of Court. These is another aspect of the matter. Even if the passage about the Judges were not in the leaflet the rest would still amount to a serious contempt of Court. There is in ' it a strong denunciation of the State of Uttar Pradesh a party to the appeal and the petitions ' regarding the very matters then under the consideration of this Court. It was not fair comment on the proceedings but an attempt to prejudice the Court against the State and to stir up public feeling on the very question then pending for decision. The manner in which the leaflets were distributed the language used in them and the timing of their publication could only have had one object namely to try and influence 685 the Judges in favour of the petitioner and the others who were in the same position as himself. This again is a clear contempt of this Court. It is well established as was said by this Court in Brahma Prakash Sharma and Others vs The State of Uttar Pradesh (supra) that it is not necessary that there should in fact be an actual interference with the course of administration of justice but that it is enough if the offending publication is likely or if it tends in any way to interfere with the proper administration of law. Such insinuations as are implicit in the passage in question are derogatory to the dignity of the Court and are calculated to undermine the confidence of the people in the integrity of the Judges. Whether the passage is read as fulsome flattery of the Judges of this Court or is read as containing the insinuations mentioned above or the rest of the leaflet which contains an attack on a party to the pending proceed ings is taken separately it is equally contemptuous of the Court in that the object of writing it and the time and place of its publication were or were calculated to deflect the Court from performing its strict duty either by flattery or by a veiled threat or warning or by creating prejudice in its mind against the State. We are therefore clearly of opinion and we hold that the respondent Hira Lal Dixit by writing the leaflet and in particular the passage in question and by publishing it at the time and place he did has committed a gross contempt of this Court and the qualified apology contained in his affidavit and repeated by him through his counsel cannot be taken as sufficient amends for his misconduct. It should no doubt be constantly borne in mind that the summary jurisdiction exercised by superior Courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the Court and thereby affording protection to public interest in the purity of the administration of justice. This is certainly an extraordinary power which must be sparingly exercised but where the public interest demands it the Court will 88 686 not shrink from exercising it and imposing punishment even by way of imprisonment in cases where a mere fine may not be adequate. After anxious consideration we have come to the conclusion that in all the circumstances of this case it is a fit case where the power of the Court should be exercised and that it is necessary to impose the punishment of imprisonment. People must know that they cannot with impunity hinder or obstruct or attempt to hinder or obstruct the due course of administration of justice. We therefore find respondent Hira Lal Dixit guilty of contempt of Court make the Rule absolute as against him and direct that he be arrested and committed to civil prison to undergo simple imprisonment for a fortnight. He must also pay the costs if any incurred by the Union of India. Order accordingly.

The petitioner was an applicant in one of the writ petitions which had been filed in the Supreme Court challenging the validity of U. P. Road Transport Act 1951. During the hearing of the writ petitions a leaflet printed in the Hindi language and intituled "Our Transport Department" purporting to be written by the petitioner was distributed in the Court premises. The leaflet contained a graphic account of the harassment and indignity said to have been meted out to the writer by the State officers and the then State Minister of Transport in connection with the cancellation and eventual restoration of his license in respect of a passenger bus. 87 678 The second paragraph at page 15 of that leaflet contains a passage of which the following is the English translation : " The public has full and firm faith in the Supreme Court but sources that are in the know say that the Government acts with partiality in the matter of appointment of those Hon 'ble Judges as Ambassadors Governors High Commissioners etc. who give judgments against Government but this has so far not made any difference in the firmness and justice of the Hon 'ble Judges. " Held (1) that the offending passage and the time and place of its distribution tended to hinder or obstruct the due administration of justice and was a contempt of Court. (2)It was not fair comment on the proceedings but an attempt to prejudice the Court against the State and to stir up public feeling on the very question then pending for decision. The manner in which the leaflets were distributed the language used in them and the timing of their publication could only have had one object namely to try and influence the Judges in favour of the petitioner and the others who were in the same position as himself. This again was clear contempt of the Supreme Court. (3)It is not necessary that there should in fact be an actual interference with the course of administration of justice but it is enough if the offending publication is likely or if it tends in any way to interfere with the proper administration of law. Such insinuations as were implicit in the passage in question were derogatory to the dignity of the Court and were calculated to undermine the confidence of the people in the integrity of the Judges. Brahma Prakash Sharma and Others vs The State of Uttar Pradesh ([1953] S.C.R. 1 169) referred to.

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. C. K. Daphtary Solicitor General for India (R. Ganapathy Iyer and P. G. Gokhale with him) for the respondent. C. K. Daphtary Solicitor General for India (P.A. Mehta and P. G. Gokhale with him) for the Intervener (Union of India). 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 conditions in the licence imposed by the District Magistrate Tanjore in pursuance of 2 notifications (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 conferred by section 8 of the Cinematograph Act of 1918. The impugned conditions may conveniently 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 688 Government or the Central Government may by general or special order direct. (b) The licensee shall comply 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 course of any performance." Explanation: " Approved Films" means a cinematograph film approved for the purpose of this condition by the Provincial Government or the Central Government. Special condition 3. The licensee should exhibit at the commencement of each performance not 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 conditions from his licence and to the State of Madras to rescind the notifications issued by it. His contention was that the conditions imposed by the said notifications are ultra vires and beyond the powers of the licensing authority and that they are void inasmuch as they contravened 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 contentions were rejected the High Court holding that the conditions 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 contentions. He argued firstly that the notifications and conditions are beyond the competence of the Government of Madras and the District Magistrate and secondly that in any event the conditions do not 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 notification G. O. Mis. 1054 Home dated 689 March 28 1948 in exercise of the powers conferred by section 8 of the (Central Act II of 1918) and in place of condition 4 of the licence in Form A the impugned conditions 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 . Without going into the question whether it is within the ' contemplation of the Act that educational and instructional films should be shown and whether the holder of a cinema licence may be compelled to exhibit such films as falling within the scope of the Act the question which still arises for consideration is whether the impugned conditions 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 not 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) compels 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 nor the period of time for which it may be shown is specified in the condition and the Government is vested with an unregulated discretion to compel a licensee to exhibit a film of any length at its discretion which may consume 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 nothing 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 conclusion in other 690 words the Government may compel a licensee to exhibit an approved film say for an hour and a half or even 2 hours. As the condition stands there can be no doubt that there is no principle to guide the licensing authority and a condition such as the above may lead to the loss or total extinction of the business itself. A condition couched 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 condition does not 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 condition 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 conditions condition No. 3 which requires the licensee to exhibit at the commencement of each performance not less than 2 000 feet of one or more of the approved films is open to similar objection. This condition lays down the minimum length of the film to be shown as 2 000 feet and gives no indication 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 not consider but as this is mentioned as the minimum it is obvious that the Government may compel 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 no maximum 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 condition is equally obnoxious and must be deleted. We accordingly allow the appeal and hold 691 that condition 4(a) and special condition 3 expressed as they are at present are void and have no legal effect as against the fundamental right of the appellant under article 19(1)(g) of the Constitution. We express no opinion upon the first contention advanced by the appellant. The appellant will get his costs from the respondent in this Court and in the Court below. Appeal allowed.

The appellant the owner of a permanent cinema theatre in the Tanjore District was granted a license by the District Magistrate Tanjore subject to certain conditions imposed by him in pursuance of 2 notifications (G. 0. 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 conferred by section 8 of the Cinematograph Act (II of 1918). The impugned conditions inter alia were as follows: " 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. 687 special condition 3. The licensee should exhibit at the commencement of each performance not less than 2 000 feet of one or more approved films. " Held that condition No. 4(a) and special condition No. 3 imposed unreasonable restrictions on the right of the licensee to carry on his business and were void as they infringed the fundamental right of the appellant guaranteed to him under article 19(1) (g) of the Constitution.

il 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. 692 C.O. Shastri and Naunit Lal for the appellant in Civil Appeal No. 188 of 1952. N.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. M. C. Setalvad Attorney General for India and C. K. Daphtary Solicitor General for India (Porus A. Mehta and P. G. Gokhale with them) for the respondents in all the appeals. 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 common 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 come 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 comprised 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 compensation 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 compensation. Section 14 provides for compensation with reference to the provisions of the Land Acquisition Act being payable in respect of any of the rights extinguished but not covered by the provisions of section 7 or any other section of the Act. These broadly are the 693 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 not for any public purpose and that the compensation which it provides is illusory. Now so far as the requirement of a public purpose is concerned it is too late in the day to maintain the contention that the abolition of the kind affected by the Act is not for a public purpose. The only serious argument therefore is as to the alleged illusory character of the compensations provided by the Act. The Act it may be noticed 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: "(I) No person shall be deprived of his property in British India save by authority of law. (2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land or any commercial or industrial undertaking or any interest in or in any company owning any commercial or industrial undertaking unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principles on which and the manner in which it is to be determined. " It was contended before the High Court that this was an Act in respect of which a certificate could 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 not 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 not under any of the 89 694 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 compensation provided was neither illusory nor unfair and that accordingly there was no violation of the provisions of section 299 of the Government of India Act. It is true that this is an Act which could have been submitted to the President for his certification under clause (6) of article 31 and that no such course 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 contained in article 31 A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part and notwithstanding any judgment decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall subject to the power of any competent Legislature to repeal or amend it continue 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 counsel for the appellants however strenuously contends before us to the contrary. 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 695 challenge was allowed and given effect to notwithstanding 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 competency 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 vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Other8(1)). Learned counsel accordingly urges that the protection under article 31 B is confined 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 contravention 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 not a mere "contravention 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 conferred 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 compensation 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 now 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) 696 restricts the power of the Legislature an operates as a restraint on its competency. What under the Government of India Act was a provision relating to the competency 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 369. But it is urged that even so article 31 B protects only the violation of the fundamental right in so far as "it was conferred by Part III of the Constitution" and that this right cannot be said to have been "conferred" by the Constitution. We cannot agree with this contention. This is clearly a case where the concerned right which was secured under section 299 of the Government of India Act in the form of a fetter on the competency 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 nothing 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 "conferred" by the Constitution What is important to notice in the phraseology of article 31`B is that the protection is not merely against the contravention of certain provisions but an attack on the ground of unconstitutional abridgement of certain rights. It will be illogical to construe 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 not 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 697 which declares that none 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 "notwithstanding any judgment decree or order of any court 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 competent Legislature to repeal or amend it continue 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 not open. The appeals must therefore be dismissed with costs. Costs one set. Appeals dismissed.

Held that the validity of the Bombay Taluqdari Tenure Abolition Act 1949 (Bombay Act LXII of 1949) cannot be questioned on the ground that it takes away or abridges the fundamental rights conferred by the Constitution of India in view of enactment of article 31 B which has been inserted in the Constitution by the First Amendment thereof in 1951 and in view of the Act having been specifticaIly enumerated as item No. 4 in the Ninth Schedule. On the language used in article 31 B of the Constitution of India the validity of Bombay Act LXII of 1949 cannot also be challenged under section 299 of the Government of India Act 1935. The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others ([1952] S.C.R. 889) distinguished.

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. 672 N.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) constituency 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 father 's servants and other dependents and agents committed various corrupt practices of bribery exercise of undue influence publication of false and defamatory statements and concealment 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 contested the petition. In his written statement he denied each and every one of the charges of corrupt practices levelled against him and he also filed a petition of recrimination challenging the conduct 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 constituted for hearing of the election petition against the appellant and the petition of recrimination was dismissed. The appellant has not 673 contested the correctness of those findings before us and nothing 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 follows:3 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 concealed 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 containing several items. The first head referred to persons alleged to have been employed on payment far in excess of the prescribed number and not shown in the return of election expenses. The second bead of particulars contained other alleged concealed expenditures. The election tribunal held in favour of the appellant on all items of charges under both heads in Part III except items (ii) 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) complained that the Manager and the Assistant Manager of that estate also worked for him. The tribunal held that the number of all these persons coming within these two categories far exceeded the prescribed number of persons who could be employed in an election and their salary for the period they worked for the appellant in connection with the election if added to the admitted election expenses would exceed the maximum expenditure permissible for contesting a single member constituency. The tribunal therefore held that the appellant was guilty under both these heads of corrupt practice as defined in section 123(7) of the Representation of the People Act 1951 and was consequently liable to be dealt with under section 100(2) (b) and section 145 of that Act. 674 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 not been shown in the appellant 's return of election expenses the appellant was also guilty of a minor corrupt 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 connection with election shall be as may be prescribed. As regards the maximum expense rule 117 lays down that no expense shall be incurred or authorised by a candidate or his election agent on account of or in respect of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V. The maximum amount specified in that schedule in respect of a singl emember constituency in the Uttar Pradesh is only Rs. 8 000. Rule 118 prescribes that no person other than or in addition to those specified in Schedule VI shall be employed for payment by a candidate or his election agent in connection with an election. Schedule VI allows I election agent 1 counting 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 contravention of the provisions of section 77 read with rules 117 and. 118 and Schedules V and VI is made a corrupt practice by section 123(7) Section 123(7) clearly shows that in order to amount to a corrupt practice the excess expenditure must be incurred or authorised by a candidate or his agent and 675 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 connection 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 could properly be regarded as having been employed for payment by the appellant. The Learned advocate appear ing for the respondent frankly and properly conceded that he could not support this part of the finding of the tribunal. He however contended relying on the language used in section 77 that if the number of persons who worked for payment in connection with the election exceeded the maximum number specified in Schedule VI the case fell within the mischief of the relevant sections and the rules no matter 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 corrupt 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 corrupt 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 consonant 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 676 Another vs Sir Christopher Furness(1) relied on by the appellant and referred to in the judgment of the tribunal are quite apposite. There can be no doubt 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 nor paid by the appellant. The case therefore does not fall within section 123(7) at all and if that be so it cannot come 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 connection with the election which strictly speaking they were not 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 connection with his election? We think not. It is clear to us that qua the appellant these persons were neither employed nor paid by him. So far as the appellant was concerned they were mere volunteers and the learned advocate for the respondent admits that employment of volunteers does not bring the candidate within the mischief of the definition of corrupt practice as given in in section 123(7). The learned advocate however contended that such a construction 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 not 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 construed 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 not to this Court. (1) 6 O 'Mally and Hardcastle 's Report of Election Cases page I at page 6 677 On a consideration 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 corrupt practice under section 123(7) as alleged against him. It follows from this that not having incurred any expenditure over and above what was shown by him in his return of election expenses he cannot be said to have concealed such expenditure and therefore he cannot be held to have been guilty of any minor corrupt practice under section 124(4) of the Act. In the view we have taken namely that these extra men were not employed or paid by the appellant it is unnecessary for the purpose of this appeal to discuss the question whether if one 's own servants are also utilised or employed in the conduct 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 not to express any opinion on this occasion. No other point having been raised we allow this appeal with costs. Appeal allowed.

Section 123(7) of the Representation of the People Act 1951 shows clearly that in order to amount to a corrupt 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 and their peons and orderlies had worked for the appellant in connection with the election. The view taken by the Election Tribunal that though 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 could properly be regarded as having been employed for payment by the appellant was untenable because though section 77 of the Act uses the words SC who may be employed for payment" without indicating by whom employed or paid the gist of a corrupt practice as defined in B. 123 (7) of the Act is that the employment of extra persons and the incurring or authorising of extra expenditure must be by the candidate or his agent. The appellant accordingly could not in the circumstances of the present case be held to be guilty of any corrupt practice under section 123(7) as alleged against him and therefore could not be held to have been guilty of any minor practice under section 124(4) of the Act. Joseph Forster Wilson and Another vs Sir Christopher Furness (6 O 'Mally & Hardocastle 's Report of Election Cases p. 1) referred to.

s Nos. 188 and 189 of 1954. Under article 32 of the Constitution of India for the enforcement of Fundamental Rights. H. M. Seervai J. B. Dadgchanji and Rajinder Narain for petitioners. C. K. Daphtary Solicitor General for India (M.M. Kaul and P. G. Gokhale with him) for respondent. October 14. The Judgment of the Court was delivered by MUKHERJEA J. We now take up the two connected petitions under article 32 of the Constitution. In one of these petitions to wit Petition No. 188 Shri Bijay Cotton Mills Ltd. (hereinafter called 'the company ') the appellant in Civil Appeal No. 139 of 1954 figures as the petitioner while the other petition to wit 755 Petition No. 189 has been filed by a number of employee working under it. To appreciate the contentions of Mr. Seervai who appears in support of both these petitions it will be necessary to narrate a few antecedent facts : It appears that sometime in 1950 there was an industrial dispute between the company and its labourers regarding enhancement of wages and the dispute was referred by the Government of Ajmer to an. Industrial Tribunal by a notification dated the 1st December 1950. The tribunal made its award on the 27th November 195 1 and held that "the present earning capacity of the mill precludes the award of higher rates of wages and higher dearness allowance. " The employees took an appeal against this award to the Appellate Tribunal. While this appeal was pending the Chief Commissioner Ajmer took steps for the fixation of minimum wages of labourers in the textile industry within the State under the provisions of the Minimum Wages Act. A committee was formed as has already been stated on the 17th of January 1952 which submitted its report on the 4th of October following and on the 7th of October 1952 the notification was issued fixing the minimum rates of wages against which writ petitions were filed by several textile companies including the petitioner company. In the meantime however the appeal filed by the labourers of the company proceeded in the usual way before the Appellate Tribunal. The Appellate Tribunal sent the case back to the Industrial Tribunal for further investigation and the latter made its final award on the 8th of September 1953 by which it rejected the basis upon which minimum wages of Rs. 56 were fixed by the Chief Commissioner and fixed the minimum wages including the dearness allowance at Rs. 35 only. The company states in its petition that the minimum wages fixed by the State Government of Ajmer is altogether prohibitory and it is not at all possible for the company to carry on its business on payment of such wages. Accordingly the company closed its mills on and from the 1st April 1953. There were about 1500 labourers working in the mills of the company and since January 1954 several hundreds of 754 them it is said approached the managing authorities and requested them to open the mills expressing their willingness to work at Rs. 35 as wages as fixed by the Industrial Tribunal. Though the majority of workers were agreeable to work on the wages fixed by the Industrial Tribunal the company is unable to open the mills by reason of the fact that the Minimum Wages Act makes it a criminal offence not to pay the wages fixed under the Act. This being the position and as the Minimum Wages Act stands in the way of the company 's carrying on its business on terms agreed to between itself and its workers Petition No. 188 of 1954 has been filed by the company challenging the constitutional validity of the material provisions of the Minimum Wages Act itself. The workmen who are willing to work at less than the minimum wages fixed by the State Government have filed the other petition supporting all the allegations of the company. Mr. Seervai who appears in support of both these petitions has invited us to hold that the material provisions of the Minimum Wages Act are illegal and ultra vires by reason of their conflicting with the fundamental rights of the employers and the employed guaranteed under article 19(1) (g) of the Constitution and that they are not protected by clause (6) of that article. It is contended by the learned counsel that the Minimum Wages Act puts unreasonable restrictions upon the rights of the employer in the sense that he is prevented from carrying on trade or business unless he is prepared to pay minimum wages. The rights of the employees are also restricted inasmuch as they are disabled from working in any trade or industry on the terms agreed to between them and their employers. It is pointed out that the provisions relating to the fixation of minimum wages are unreasonable and arbitrary. The whole thing has been left to the unfettered discretion of the "appropriate Government" and even when a committee is appointed the report or advice of such committee is not binding on the Government. The decision of the committee is final and is not open to further review or challenge in any Court of law. The learned counsel further says that the restrictions put by the Act are altogether unreasonable 755 and even oppressive with regard to one class of employers who for purely economic reasons are not able to pay the minimum wages but who have no intention to exploit labour at all. In such cases the provisions of the Act have no reasonable relation to the object which it has in view. We will examine these contentions in their proper order. It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical subsistence but also the maintenance of health and decency is conducive to the general interest of the public. This is one of the Directive Principles of State Policy embodied in article 43 of our Constitution. It is well known that in 1928 there was a Minimum Wages Fixing Machinery Convention held at Geneva and the resolutions passed in that convention were embodied in the International Labour Code. The Minimum Wages Act is said to have been passed with a view to give effect to these resolutions (vide section I. Est. etc. vs The State of Madras)(1). If the labourers are to be secured in the enjoyment of minimum wages and they are to be protected against exploitation by their employers it is absolutely necessary that restraints should be imposed upon their freedom of contract and such restrictions cannot in any sense be said to be unreasonable. On the other hand the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers on account of their poverty and helplessness are willing to work on lesser wages. We could not really appreciate the argument of Mr. Seervai that the provisions of the Act are bound to affect harshly and even oppressively a particular class of employers who for purely economic reasons are unable to 'pay the minimum wages fixed by the authorities but have absolutely no dishonest intention of exploiting their labourers. If it is in the interest of the general public that the labourers should be secured adequate living wages the intentions of the employers whether good or bad are really irrelevant. Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the (1) 521. 756 Act but this must be due entirely to the economic conditions of these particular employers. That cannot be a reason for the striking ' down the law itself as unreasonable. As regards the procedure for the fixing of minimum wages the "appropriate Government" has undoubtedly been given very large powers. But it has to take into consideration before fixing wages the advice of the committee if one is appointed or the representations on his proposals made by persons who are likely to be affected thereby. Consultation with advisory bodies has been made obligatory on all occasions of revision of minimum wages and section 8 of the Act provides for the appointment of a Central Advisory Board for the purpose of advising the Central as well as the State Government both in the matter of fixing and revision of minimum wages. Such Central Advisory body is to act also as a coordinating agent for coordinating the work of the different advisory bodies. In the committees or the advisory bodies the employers and the employees have an equal number of representatives and there are certain independent members besides them who are expected to take a fair and impartial view of the matter. These provisions in our opinion constitute an adequate safeguard against any hasty or capricious decision by the "appropriate Government. " In suitable cases the "appropriate Government" has also been given the power of granting exemptions from the operation of the provisions of this Act. There is no provision undoubtedly for a further review of the decision of the "appropriate Government" but we do not think that by itself would make the provisions of the Act unreasonable. In our opinion the restrictions though they interfere to some extent with the freedom of trade or business guaranteed under article 19(1) (g) of the Constitution are reasonable and being imposed in the interest of the general public are protected by the terms of clause (6) of article 19. The result is that the petitions are dismissed. We make no order as to costs. Petitions dismissed.

The provisions of sections 3 4 and 5 of the Minimum Wages Act (XI of 1948) empower the appropriate Government to fix the minimum rate of wages in an industrial dispute between the employer and the employed and it is a criminal offence not to pay the wages thus fixed under the Act. Held that the restrictions imposed upon the freedom of contract by the fixation of minimum rates of wages though they interfere to some extent with the freedom of trade or business guaranteed under article 19(1)(g) of the Constitution are not unreasonable and being imposed in the interest of general public and with a view to carry out one of the Directive Principles of State Policy as embodied in article 43 of the Constitution are protected by the terms of el. (6) of article 19. section 1. vs The State of Madras (1954) 1 M.L.J. 518 referred to.

309 of 1953. Under article 32 of the Constitution of India for the enforcement of Fundamental Rights. K. C. Jain and B. P. Maheshwari for the petitioners. K. B. Asthana and C. P. Lal for the respondents. October 18. The Judgment of the Court was delivered by DAS J. This is a petition made under article 32 of the Constitution by the Chamber of Commerce Hapur and three individual persons praying for a writ in the nature of mandamus directing the State of Uttar Pradesh and two of its officers in the Food Department to abstain from enforcing the Uttar Pradesh Food Grains (Futures and Options Prohibition) Order 1945 or any orders or directions contained in the letters issued by the respondents copies whereof are annexed to the petition and marked B and D. The facts and circumstances leading up to this application may be shortly stated at the outset. The Chamber of Commerce Hapur is a company incorporated under the Indian Companies Act with its registered office at Hapur. There are about 200 members of this Chamber of Commerce including petitioners Nos. 2 to 4. Petitioner No. 3 is also its ?resident and Petitioner No. 2 is also a member of its Executive Committee. The members of the Chamber carry on business in foodgrains including pulses both on ready and forward basis. The Chamber acts as a clearing agent for a commission and guarantees the performance of forward contracts by its members upon payment of margin money according to the rules. 841 On or about the 1st September 1945 the U. P. Government in exercise of powers conferred on it by rule 81 (2) of the Defence of India Rules issued Notification No. 8071/c.s. promulgating the United Provinces Food Grains (Futures and Options Prohibition) Order 1945 (hereinafter called "the 1945 Order"). Section 2 (a) of that Order defined " foodgrains" as meaning any of the foodgrains mentioned in the schedule thereto. Arhar peas urd and moong were mentioned as items 6 7 8 and 9 of that schedule. Section 3 provided as follows " 3. No person shall (a)enter into any futures in foodgrains or pay or receive or agree to pay or receive any margin relating to any such futures; (b) enter into any options in foodgrains. The Defence of India Rules expired on the 30th September 1946 and consequently all orders made thereunder were also due to expire on the same date. On the 1st October 1946 however there came into force the Essential Supplies (Temporary Powers) Ordinance 1946 (hereinafter referred to as "the 1946 Ordinance") promulgated by the Governor General and published in the Gazette of India on the 25th September 1946. Section 3 of that Ordinance conferred on the Central Government extensive powers to control production supply distribution of and trade and commerce in essential commodities as defined in section 2(a) thereof. Section 4 authorised the Central Government to direct by notified order that the power to make orders under section 3 should in relation to such matters and subject to such conditions as might be specified in the direction be excercisable also by such officer subordinate to it or by such Provincial Government or such officer thereof as might be specified in the direction. Section 5 of that Ordinance ran as follows : " 5. Continuance in force of existing orders. Until other provisions are made under this Ordinance any order whether notified or not made by whatever authority under rule 80 B or sub rule (2) or sub rule (3) of rule 81 of the Defence of India Rules in respect 842 of any matter specified in section 3 which was in force immediately before the commencement of this Ordinance shall notwithstanding the expiration of the said rules continue in force so far as consistent with this Ordinance and be deemed to be an order made under section 3; and all appointments made licenses or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made granted or issued in pursuance of this Ordinance. " The 1945 Order therefore continued in force until other provisions were made under the 1946 Ordinance. In exercise of powers conferred on it by section 4 of the 1946 Ordinance the Government of India on the 21st October 1946 made the notified order No. C.G.603(2) IIl(1) directing that the powers conferred on it by section 3(1) of that Ordinance should in relation to foodstuffs be exercisable also by any Provincial Government subject to certain conditions therein set out. In November 1946 was passed the Essential Supplies (Temporary Powers) Act 1946 (hereinafter called "the Act"). Section 3 of the Act reproduced section 3 of the 1946 Ordinance with certain modifications not material for our present purpose. Section 4 of the Act corresponds to section 4 of the 1946 Ordinance. The relevant portions of section 17 of the Act provide as follows : " 17. Repeal and savings. (1) The Essential Supplies (Temporary Powers) Ordinance 1946 (XVIII of 1946) is hereby repealed. (2)Any order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act; and all appointments made licences or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made granted or issued in pursuance of this Act. 843 (3). . . . . . . . . (4). . . " In exercise of powers conferred on it by section 4 of the Act the Central Government by Notification No. C. G. 603(2) III(1) dated the 5th March 1947 amended the abovementioned notified order No. PY 603(2) I dated the 21st October 1946 by inserting after the word "foodstuff" the words "including cocoanut oil but excluding other edible oils and oilseeds. " The net result of this notification was that "edible oils and oilseeds" were excluded from the scope or operation of the delegated power. In other words the power delegated to the Provincial Government was withdrawn in respect of "edible oils and oilseeds" so that the Provincial Government could not thenceforth make any order controlling the production supply and distribution of or trade and commerce in "edible oils and oilseeds". On the same day another Notification being Notification No. C. G. 603(2) III(2) was issued by the Central Government in exercise of powers conferred on it under section 3 of the Act directing that no order made or deemed to be made by a Provincial Government under the Act should have effect from that date so as to prohibit or restrict the movement of edible oilseeds or oils other than cocoanut oil from any place in a Province to any other place within or outside the Province or so as to regulate or control the price production or distribution thereof in any way. Therefore the 1945 Order ceased to have effect so as to prohibit or restrict the movement of edible oilseeds or oils other than cocoanut oil or so to regulate or control the price production or distribution thereof in any way. On the 15th November 1947 two Notifications were issued by the Central Government. By Notification No. PY. 603(2) VI(1) made under section 4 of the Act the Central Government made a further amendment in Notification No. PY. 603(2) 1 dated the 21st October 1946. by inserting after the word "oil seeds" the words "and pulses other than gram". The effect of this amendment was that "pulses other than gram" were 844 also excluded from the operation of the power delegated to the Provincial Governments. In other words the power delegated to the Provincial Governments was withdrawn in respect also of "pulses other than gram" so that the Provincial Governments could not thenceforth make any order controlling the production supply and distribution of or trade or commerce in edible oils and oilseeds and pulses other than gram. Simultaneously by Notification No. PY. 603 (2) VI(2) made on the 15th November 1947 under section 3 of the Act the Central Government directed that no order made or deemed to be made under the Act by a Provincial Government should have effect from that date so as to prohibit or restrict the movement of pulses other than gram from any place in a Province to any other place within or outside the Province or so as to regulate or control the price production or distribution thereof in any way. As a result of this Notification the 1945 Order also ceased to have effect so as to prohibit or restrict the movement of pulses other than gram or so as to regulate or control the price production or distribution thereof in any way. Then came the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order ' 1951. It was promulgated by the State of Uttar Pradesh on the 20th September 1951. By section 2(a) this Order defined "foodgrains" as meaning any of the foodgrains specified in the schedule thereto. Arhar peas urd and moong were items Nos. 6 7 8 and 9 of that schedule. Section 3 of the Order ran as follows " No person shall (a)enter into any "futures in foodgrains" or pay or receive any margin relating to any such futures; (b) enter into any options in foodgrains. " Section 8 made a contravention of any provision of the. Order or any order issued thereunder punishable under sections 7 and 7 A of the Act of 1946. By section 9 of this Order the 1945 Order was withdrawn. As the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order 1951 directly made it illegal and a punishable offence for any person to enter into any futures in amongst others arhar peas urd and moong or to pay or receive or to agree to pay or receive any margin relating to any such futures. IO members of the Chamber of Commerce Hapur including the ' present petitioners Nos. 2 to 4 on the 29th October 1951 made an application to this Court under article 32 of the Constitution for enforcement of their fundamental right under article 19(1)(g) to carry on their business and prayed for the issue of a mandamus restraining the State of Uttar Pradesh from enforcing the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order 195 1 in so far as it related to pulses other than gram and from exercising any power there. under and for a declaration that section 2(a) read 'with items 6 7 8 and 9 of the schedule thereto was illegal and ultra vires the powers of the State Government. That application succeeded and the offending Notification to the extent it dealt with arhar peas urd and moong was declared invalid and the State of Uttar Pradesh was directed to abstain from giving effect to it. As will appear from the judgment pronounced by this Court on the 15th May 1952 on that application it was not seriously disputed that the effect of the amendments referred to above was that the power to control and regulate trade originally delegated to the Provincial Government by Notification No. PY. 603(1) I dated the 21st October 1946 was modified so as to exclude from the scope of such delegation pulses other than gram". On the 10th June 1953 a letter (exhibit B to the petition) was addressed by the Deputy Commissioner Food Uttar Pradesh to all Regional Food Controllers and Deputy Regional Food Controllers and all District Magistrates in Uttar Pradesh instructing them to regard all futures in foodgrains mentioned in the schedule to the 1945 Order including pulses other than gram as punishable. The reasoning advanced was that the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order 1951 having been declared ultra vires by the judgment pronounced by this Court on the 15th May 1952 that Order became unenforceable and 108 846 consequently the 1945 Order continued in force. A copy of this letter was forwarded amongst others to the Chamber of Commerce Hapur for information and guidance. By its letter dated the 25th June 1953 the Chamber pointed out that the earlier Order of 1945 had been withdrawn by section 9 of the Order of 1951 and as the last mentioned section had not been declared ultra vires by the Supreme Court the 1945 Order could not be regarded as continuing in force. On the 17th September 1953 the Regional Food Controller of Uttar Pradesh wrote a letter (exhibit D to the petition) to the President Chamber of Commerce Hapur asking the latter to immediately stop all future transactions pertaining to the foodgrains mentioned in the schedule to the 1945 Order in which delivery was contemplated within the State of Uttar Pradesh and threatening action to be taken against the Chamber. This threat of action necessitated the present petition for the reliefs mentioned above. Learned advocate appearing for the State seeks to justify the attitude of the State on two grounds. It is urged that section 3 of the 1946 Act which reproduced with certain modifications section 3 of the 1946 Ordinance conferred on the Central Government extensive powers to control production supply distribution of and trade and commerce in essential commodities. This power was delegated by the Central Government to the Provincial Governments by Notifi cation No. PY. 603(2) 1 issued on the 21st October 1946 under section 4 of the 1946 Ordinance. The subsequent amendments made by Notification No. C.G. 603(2) III(1) dated the 5th March 1947 and Notification No. PY. 603(2) VI(1) dated the 15th November 1947 withdrew the power so delegated only with respect to "edible oils and oilseeds and pulses other than gram" and such withdrawal was only with regard to the production supply and distribution of those commodities but not with regard to trade and commerce therein. The second ground advanced is that the Order of 1951 having been declared ultra vires the Order of 1945 which was continued first by section 5 of the 1946 Ordinance and then by section 17 of the Act remained 847 in full force. In our judgment there is no substance in either of the two arguments. As we have already pointed out two Notifications were published on the 5th March 1947 and two Notifications were issued on the 15th November 1947. By Notification No. C. G. 603(2) III(1) dated the 5th March 1947 and Notification No. PY. 603 (2) VI (1) dated the 15th November 1947 the earlier Notification No. 603(2) I dated the 21st October 1946 was amended by inserting therein the words "edible oils and oilseeds" and "pulses other than gram" and thereby excluding those commodities from the scope of the delegation. As a result of these amendments the Provincial Governments could not from and after the respective dates of those amending Notifications make any order controlling production supply distribution of or trade and commerce in those commodities. These Notifications did not puport to affect Notifications that had been previously made. But simultaneously with these amending Notifications two more Notifications were issued namely Notification No. C.G. 603(2) III(2) dated the 5th March 1947 and Notification No. PY. 603(2) VI(2) dated the 15th November 1947. By these Notifications the Central Government directed that no order made or deemed to be made under the Act by a Provincial Government should have effect so as to prohibit or restrict the movement of edible oils and oilseeds and pulses other than gram or to regulate or control the price production or distribution of those commodities in any way. As a result of the joint operation of these Notifications the 1945 Order ceased to have effect so as to prohibit or restrict the movement of edible oils and oilseeds and pulses other than gram or to regulate or control the price production or distribution of those commodities. As that Order of 1945 ceased to have effect with regard to the price production distribution and movement of those commodities it is not easy to comprehend how that Order could continue to regulate or control trade or commerce in those commodities. Trade or commerce in any commodity cannot be controlled unless the price production distribution and movement of that commodity can also be controlled. 848 It follows therefore contrary to the contentions of the State that these two Notifications of 1947 quite effectively superseded the 1945 Order so far as it purported to regulate or control the price production distribution and movement of or trade and commerce in edible oils and oilseeds and pulses other than gram. The second branch of the argument is equally fallacious. It is wholly incorrect to say that the judgment pronounced by this Court on the 15th May 1952 declared the Uttar Pradesh Foodgrains (Futures and Options Prohibition) Order 1951 ultra vires and invalid in its entirety. That judgment only declared it invalid to the extent of the restrictions complained of by the then petitioners namely in so far as it purported to restrict dealings in edible oils and oilseeds and pulses other than gram. The rest of that Order of 1951 and in particular section 9 by which the 1945 Order had been withdrawn remained unaffected by that judgment of this Court. It is quite difficult to appreciate how in the circumstances the Order of 1945 can be regarded as having been revived by the judgment in respect of edible oils and oilseeds and pulses other than gram in spite of the express withdrawal of that Order by section 9 of the Order of 1951 which otherwise remains operative. In our judgment there is no substance whatever in either of the two branches of argument advanced before us and this application must succeed. Accordingly we grant prayers (a) (b) (c) and (d) of the petition. Before concluding we desire to express our strong disapproval of the wholly unwarranted attitude adopted by the officers of the State of Uttar Pradesh. Assuming there was any substance in their contentions the same should have been advanced before this Court on the previous occasion for the contentions if wellfounded would have been a complete answer to that application. If the contentions were subsequently discovered then the same should have been brought before the Court by way of review if any review lay. 849 Instead of adopting that straightforward course the officers of the State have sought to circumvent the decision of this Court on a flimsy pretext and covertly to challenge its correctness on an obviously untenable plea which has not even the merit of a seeming plausibility. This conduct verges dangerously on a contempt of this Court. We desire to make it quite clear that we view with great disfavour such unworthy attempt to get round the decision of this Court.

Uttar Pradesh Food grains (Futures and Options Prohibition) Order 1951 made it illegal and a punishable offence for any person to enter into any futures in pulses other than gram or to pay or receive or to agree to pay or receive any margin relating to such futures. By section 9 of that Order the Order of 1945 containing similar provisions was repealed. An application under article 32 of 839 the Constitution presented by several persons (including the present petitioners) for the enforcement of their fundamental right under article 19(1)(g) of the Constitution to carry on their business and restraining the State from enforcing the Order of 1951 in so far as it related to pulses other than gram and for a declaration that section 2(a) of the Order read with items 6 7 8 and 9 of the schedule thereto was illegal and ultra vires the State Government ' succeeded in the Supreme Court and the State of Uttar Pradesh was directed by the Supreme Court by its judgment dated the 15th 'day 1952 to abstain from giving effect to it. On the 10th June 1953 a letter (Exhibit B to the petition) was addressed by the Deputy Commissioner Food Uttar Pradesh to all Regional Food Controllers and Deputy Food Controllers and all District Magistrates in Uttar Pradesh instructing them to regard all futures in foodgrains mentioned in the Schedule to the 1945 Order including pulses other than gram as punishable. It was contended on behalf of the State (1) that section 3 of 1946 Act which reproduced section 3 of the 1946 Ordinance conferred on the Central Government extensive powers to control production supply distribution of and trade and commerce in essential commodities and this power was delegated by the Central Government to the Provincial Government by notification dated 21st October 1946 under section 4 of the 1946 Ordinance. The subsequent amendments made by two Notifications dated 5th March 1947 and dated 15th November 1947 withdrew the power so delegated only with respect to "edible oils and oil seeds and pulses other than gram" and such withdrawal was only with regard to production supply and distribution of those commodities but was not with regard to trade and commerce therein; (ii) that the Order of 1951 having been declared ultra vires the Order of 1945 which was continued by section 5 of the Ordinance of 1946 and then by section 17 of the Act of 1946 was still in force. Held (repelling the contentions) (i) that as the Order of 1945 ceased to have effect with regard to the price production distribution and movements of those commodities that Order could not in any way continue to regulate or control trade or commerce in those commodities and the two Notifications of 1947 quite effectively superseded the Order of 1946 so far as it purported to regulate or control the price production distribution and movement of or trade and commerce in edible oils and oil seeds and pulses other than gram; (ii) that the Order of 1951 was not declared ultra vires and invalid in its entirety by the judgment of the Supreme Court dated 15th May 1952. The Order was declared invalid in so far as it purported to restrict the dealings in edible oils and oil seeds and pulses other than gram. The rest of the Order of 1951 and in particular section 9 thereof by which the Order of 1945 had been withdrawn remained unaffected by the judgment of the Supreme Court. 840 Strong disapproval was expressed by the Supreme Court of the wholly unwarranted attitude adopted by the officers of the State of Uttar Pradesh in circumventing the decision of the Supreme Court on a flimsy pretext. The contentions advanced on behalf of the State Government should have been advanced before the Supreme Court on the previous occasion when it delivered its judgment dated 15th May 1952 or the matter should have been brought before the Supreme Court by way of review if any review was competent.

iminal Appeal No. 90 of 1952. Appeal under article 134(1) (c) of the Constitution of India from the Judgment and Order dated 28th November 1954 of the Punjab High Court in Criminal Revision No. 865 of 1951 arising out of the Judgment dated 2nd August 1951 of the Court of Additional Sessions Judge Rohtak Gurgaon in Criminal Revision No. 4 of 1951. M. C. Setalvad Attorney General for India (Tek Chand and Rajinder Narain with him) for the appellant. Gopal Singh and K. L. Mehta for the respondent. section M. Sikri Advocate General for the State of Punjab (Jinder Lal and P. G. Gokhale with him) for the Intervener (The State of Punjab). October 12. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. This appeal by leave of the High Court of Judicature at Simla raises a novel and interesting question of law viz. whether a person accused of an offence under the Indian Penal Code and committed in a district which after the partition of India became Pakistan could be tried for that offence by a Criminal Court in India after his migration to that country and thereafter acquiring the status of a citizen. The material facts relevant to this enquiry are these: The respondent Ram Narain acting on behalf of his firm Ram Narain Joginder Nath carrying on business at Mailsi in Multan District was allowed a cash credit limit of rupees three lakhs by the Mailsi branch of the Central Bank of India Ltd. (the appellant) on the 23rd 699 December 1946 shortly before the partition of British India. The account was secured against stocks which were to remain in possession of the borrowers as trustees on behalf of the bank. On 15th August 1947 when British India was split into two Dominions the amount due to the bank from Ram Narain was over Rs. 1 40 000 exclusive of interest while the value of the goods pledged under the cash credit agreement was approximately in the sum of Rs. 1 90 000. On account of the disturbances that followed in the wake of the partition of the country the bank 's godown keeper at Mailsi left Mailsi some time in September 1947 and the cashier who was left in charge also was forced to leave that place in October 1947 and thus no one was in Mailsi to safeguard the bank 's godowns after that date. It is alleged that in January 1948 when Mr. D. P. Patel Agent of the Multan branch of the appellant bank visited Mailsi he discovered that stocks pledged by Messrs. Ram Narain Joginder Nath against the cash credit agreement had disappeared. On inquiry he found that 801 cotton bales pledged with the bank had been stolen and booked by Ram Narain to Karachi on the 9th November 1947 and that he had recovered a sum of Rs. 1 98 702 12 9 as price of these bales from one Durgadas D. Punjabi. The bank claimed this amount from Ram Narain but with no result. It then applied under section 188 Criminal Procedure Code to the East Punjab Government for sanction for the prosecution of Ram Narain for the offences committed in Pakistan in November 1947 when he was there in respect of these bales. The East Punjab Government by its order dated 23rd February 1950 accorded sanction for the prosecution of Ram Narain under sections 380 and 454 Indian Penal Code. Ram Narain at this time was residing in Hodel District Gurgaon and was carrying on business under the name and style of Ram Narain Bhola Nath Hodel. In pursuance of this sanction on 18th April 1950 the bank filed a complaint against Ram Narain under sections 380 and 454 Indian Penal Code and also under section 412 of the Code before the District Magistrate of Gurgaon. 700 Ram Narain when he appeared in Court raised a preliminary objection that at the time of the alleged occurrence he was a national of Pakistan and therefore the East Punjab Government was not competent to grant sanction for his prosecution under section 188 Criminal Procedure Code read with section 4 Indian Penal Code. This objection was not decided at that moment but after evidence in the case had been taken at the request of both sides the Court heard arguments on the preliminary point and overruled it on the finding that Ram Narain could not be said to have acquired Pakistan nationality by merely staying on there from 15th August till 10th November 1947 and that all this time be had the desire and intention to revert to Indian nationality because he sent his family out to India in October 1947 wound up his business there and after his migration to India in November 1947 he did not return to Pakistan. It was also said that in those days Hindus and Sikhs were not safe in Pakistan and they were bound to come to India under the inevitable pressure of circumstances over which they had no control. Ram Narain applied to the Sessions Judge Gurgaon under sections 435 and 439 Criminal Procedure Code for setting aside this order and for quashing the charges framed against him. The Additional Sessions Judge dismissed this petition and affirmed the decision of the trial magistrate. Ram Narain then preferred an application in revision to the High Court Punjab at Simla and with success. The High Court allowed the revision and quashed the charges and held that the trial of respondent Ram Narain by a Magistrate in India was without jurisdiction. It was held that until Ram Narain actually left Pakistan and came to India he could not possibly be said to have become a citizen of India though undoubtedly he never intended to remain in Pakistan for any length of time and wound up his business as quickly as he could and came to India in November 1947 and settled in Hodel. It was further held that the Punjab Government had no power in February 1950 to sanction his prosecution under section 188 Criminal Procedure Code for acts 701 committed in Pakistan in November 1947. The High Court also repelled the further contention of the appellant bank that in any case Ram Narain could be tried at Gurgaon for the possession or retention by him at Hodel of the sale proceeds of the stolen cotton which themselves constitute stolen property. Leave to appeal to this Court was granted under article 134(1) (c) of the Constitution. The sole question for determination in the appeal is whether on a true construction of section 188 Criminal Procedure Code and section 4 of the Indian Penal Code the East Punjab Government had power to grant sanction for the prosecution of Ram Narain for offences committed in Pakistan before his migration to India. The relevant portion of section 4 Indian Penal Code before its amendment read thus: "The provisions of this Code apply also to any offence committed by (1) any Native Indian subject of Her Majesty in any place without and beyond British India; Since 1950 the wording is: "Any citizen of India in any place without and beyond India Section 188 Criminal Procedure Code formerly read thus : " When a Native Indian subject of Her Majesty commits an offence at any place without and beyond the limits of British India he may be dealt with in respect of such offence as if it had been committed at any place within British India at which he may be found. " These wordings were subsequently adapted after the formation of two Dominions and read as follows: When a British subject domiciled in India commits an offence at any place without and beyond all the limits of the provinces he may be dealt with in respect of such offence as if it had been committed at any place within the Provinces at which he may be found." After 1950 the adapted section reads as follows " When an offence is committed by 90 702 (a)any citizen of India in any place without and beyond India. he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. " The learned Attorney General contended that Ram Narain was at the time when sanction for his prosecution was given by the East Punjab Government a citizen of India residing in Hodel and that being so he could be tried in India being a citizen of India at that moment and having committed offences outside India and that the provisions of section 4 Indian Penal Code and section 188 Criminal Procedure Code were fully attracted to the case. In our opinion this contention is not well founded. The language of the sections plainly means that if at the time of the commission of the offence the person committing it is a citizen of India then even if the offence is committed outside India he is subject to the jurisdiction of the Courts in India. The rule enunciated in the section is based on the principle that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the offence. If however at the time of the commission of the offence the accused person is not a citizen of India then the provisions of these sections have no application whatsoever. A foreigner was not liable to be dealt with in British India for an offence committed and completed outside British India under the provisions of the sections as they stood before the adaptations made in them after the partition of India. Illustration (a) to section 4 Indian Penal Code delimits the scope of the section. It indicates the extent and the ambit of this section. I runs as follows: "(a) A a coolie who is a Native lndian subject commits a murder in Uganda. He can be tried and convicted of murder in any place in British India in which he may be found. " In the illustration if (A) was not a Native Indian subject at the time of the commission of the murder the provisions of section 4 Indian Penal Code could not apply to his case. The circumstance that after the commission of the offence a person becomes domiciled in another country or acquires citizenship of that 703 State ' cannot confer jurisdiction on the Courts of that territory retrospectively for trying offences committed and completed at a time when that person was neither the national of that country nor was he domiciled there. The question of nationality of Ram Narain really does not arise in the case. The real question to be determined here is whether Ram Narain had Indian domicile at the time of the commission of the offence. Persons domiciled in India at the time of coming into force of our Constitution were given the status of citizens and they thus acquired Indian nationality. If Ram Narain had Indian domicile at the time of the commission of the offence he would certainly come within the ambit of section 4 Indian Penal Code and section 188 Criminal Procedure Code. If on the other hand he was not domiciled in India at the relevant moment those sections would have no application to his case. Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of 'domicile ' The simplest definition of this expression has been given by Chitty J. in Craignish vs Craignish(1) wherein the learned Judge said: " That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom. " But even this definition is not an absolute one. The truth is that the term domicil ' lends itself to illustra tions but not to definition. Be that as it may two constituent elements that are necessary by English Law for the existence of domicil are: (1) a residence of a particular kind and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicil and the law may attribute to him a domicil in a country where in reality he has not. A person may be a vagrant (1) 192. 704 as when he lives in a yacht or wanderer from one European hotel to another but nevertheless the law will arbitrarily ascribe to him a domicil in one particular territory. In order to make the rule that nobody can be without a domicil effective the law assigns what is called a domicil of origin to every person at his birth. This prevails until a new domicil has been acquired so that if a person leaves the country of his origin with an undoubted intention of never returning to it again nevetheless his domicil of origin adheres to him until he actually settles with the requisite intention in some other country. It has been held by the High Court that Ram Narain remained in Multan District of the West Punjab where he and his ancestors had lived till his migration to India. The contention that as no Hindu or Sikh could possibly remain in Pakistan and therefore every such person must have been bound upon making his way to India as quickly as possible and that merely by forming an intention to come to India be became an Indian subject and was never even for a moment a subject of Pakistan was negatived and it was said that "though there is no doubt that so far as Punjab is concerned the vast majority of Hindus and Sikhs came to India but even in the Punjab the exodus has not been complete and in the East Bengal there are a considerable number of non Muslims who no doubt by now have become full citizens of Pakistan. " In view of these findings it was concluded that the only possible way by which a resident of the territories which became Pakistan could become an Indian subject was by actually coming to India and unless and until any such person did come to India he retained Pakistan domicil and was not covered by the words "Native Indian subject of Her Majesty" in the meaning which they automatically acquired as from the 15th August 1947 and he certainly could not be described as a citizen of India in November 1947 The learned Attorney General combated this view of the learned Judge and laid considerable emphasis on his following observations: 705 " There does not seem to be any doubt in the evidence produced that Ram Narain never intended to remain in Pakistan for any length of time. In fact he wound up his business as quickly as he could and came to India later in November 1947 and settled in Hodel" and he further emphasized the circumstance relied upon by the trial magistrate and Sessions Judge that Ram Narain had sent his family to India in October 1947. In our opinion none of these circumstances conclu sively indicate an intention in Ram Narain of permanently removing himself from Pakistan and taking up residence in India. It has to be remembered that in October or November 1947 men 's minds were in a state of flux. The partition of India and the events that followed in its wake in both Pakistan and India were unprecedented and it is difficult to cite any historical precedent for the situation that arose. Minds of people affected by this partition and who were living in those parts were completely unhinged and unbalanced and there was hardly any occasion to form intentions requisite for acquiring domicil in one place or another. People vacillated and altered their programmes from day to day as events happened. They went backward and forward; families were sent from one place to another for the sake of safety. Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode. They overnight became refugees living in camps in Pakistan or in India. No one as a matter of fact at the moment thought that when he was leaving Pakistan for India or vice versa that he was doing so for ever or that be was for ever abandoning the place of his ancestors. Later policies of the Pakistan Government that prevented people from going back to their homes cannot be taken into consideration in determining the intention of the people who migrated at the relevant moment. Ram Narain may well have sent his family to India for safety. As pointed out by the learned Judge below he and his ancestors lived in the Multan District. He had considerable business there. 706 The bank had given him a cash credit of rupees three lakhs on the security of goods. He had no doubt some business in Hodel also but that was comparatively small. There is no evidence that he had any home in India and there is no reason to go behind the finding of the learned Judge below that he and his ancestors had been living in Mailsi. In these circumstances if one may use the expression Ram Narain 's domicil of origin was in the district of Multan and when the district of Multan fell by the partition of India in Pakistan Ram Narain had to be assigned Pakistan domicil till the time he expressed his unequivocal intention of giving up that domicil and acquiring Indian domicil and also took up his residence in India. His domicil cannot be determined by his family coming to India and without any finding that he had established a home for himself. Even if the animus can be ascribed to him the factum of residence is wanting in his case; and in the absence of that fact an Indian domicil cannot be ascribed to Ram Narain. The subsequent acquisition by Ram Narain of Indian domicil cannot affect the question of jurisdiction of Courts for trying him for crimes committed by him while he did not possess an Indian domicile The question in this case can be posed thus: Can it be said that Ram Narain at the time of the commission of the offence was domiciled in India ? That question can only be answered in one way viz. that he was not domiciled in India. Admittedly then he was not a citizen of India because that status was given by the Constitution that came into force in January 1950. He had no residence or home in the Dominion of India. He may have had the animus to come to India but that animus was also indefinite and uncertain. There is no evidence at all that at the moment he committed the offence he had finally made up his mind to take up his permanent residence in India and a matter of this kind cannot be decided on conjectural grounds. It is impossible to read a man 's mind but it is even more than impossible to say how the minds of people worked during the great upheaval of 1947. 707 The learned Attorney General argued that Ram Narain was a native Indian subject of Her Majesty before the 15th August 1947 and that description continued to apply to him after the 15th August 1947 whether he was in India or in Pakistan but we think that the description 'Native subject of Her Majesty ' after the 15th of August 1947 became applicable in the territory now constituted India only to residents of provinces within the boundaries of India and in Pakistan to residents of provinces within the boundaries of Pakistan and till the time that Ram Narain actually landed on the soil of India and took up permanent residence therein he cannot be described to be domiciled in India or even a Native Indian subject of His Majesty domiciled in India. For the reasons given above we are of the opinion that the decision of the High Court that Ram Narain could not be tried in any Court in India for offences committed in Mailsi in November 1947 is right and that the Provincial Government had no power under section 188 Criminal Procedure Code to accord sanction to his prosecution. The result is that the appeal fails and is dismissed. Appeal dismissed.

A person accused of an offence under the Indian Penal Code and committed in a district which after the partition of India became part of Pakistan cannot be tried for that offence by a Criminal Court in India after his migration to India and acquiring thereafter the status of a citizen of India. The fact that after the commission of an offence a person becomes domiciled in another country or acquires citizenship of that State does not confer jurisdiction on the Court of that country retrospectively for trying offences committed and completed at a time when that person was neither the national of that country nor was he domiciled there. According to section 4 'of the Indian Penal Code and section 188 of the Code of Criminal Procedure if at the time of the commission of the offence the person committing it is a citizen of India then even if the offence is committed outside India he is subject to 698 the jurisdiction of the Courts in India as qua citizens the jurisdiction of Courts is not lost by reason of the Venue of an offence. If of however at the time of the commission of the offence the accused person is not a citizen of India these sections have no application at all. The term "domicil" does not admit of an absolute definition. The simplest. definition of domicil is: That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom. The fact is that the term domicil can be illustrated but cannot be defined. Craignish vs Craignish ([1892] 3 Ch. 180 192) referred to.

cellaneous Petition No 641 of 1954 72 562 Application for review of the Judgment of this Court in Civil Appeal No. 152 of 1954. N. C. Chatterjee (G. C. Mathur with him) for the petitioner. Veda Vyas (section K. Kapoor and Naunit Lal with him) for the respondent. October 18. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This is an application for review of the judgment of this Court in Civil Appeal No. 52 of 1954. That was an appeal against an order of the Election Tribunal Himachal Pradesh (Simla) dismissing a petition to set aside the election of the respondent to the Legislative Assembly Himachal Pradesh from the Rohru Constituency. Two points were raised at the hearing of the appeal before us: One was that the respondent was disqualified for election to the Assembly under section 17 of Act No. XLIX of 1951 read with section 7(d) of Act No. XLIII of 195 1 by reason of the fact that he was interested in contracts for the supply of Ayurvedic Medicines to the Himachal Pradesh Government and the other that he had appointed Government servants as polling agents and had thereby contravened section 123(8) of Act No. XLIII of 1951. On the first question we held that on a true construction of section 17 what would be a disqualification for election to either House of Parliament under article 102 would under that section be disqualification for election to the Legislatures of States and that the disqualification under section 7 (d) of Act No. XLIII of 1951 would accordingly be a disqualification under section 17 of Act No. XLIX of 195 1. A further contention was then raised on behalf of the respondent that even if section 7(d) were to be imported into section 17 that would not disqualify him because under that section the disqualification must be to being elected to either House of Parliament and that under sections 7 and 9 of Act No. XLIII of 1951 a contract to operate as a disqualification to the election to either House of Parliament must be with the Central Government whereas 563 the contracts of the respondent were with the Government of Himachal Pradesh. The answer of the petitioner to this contention was that under article 239 the administration of States was vested in the President acting through the Chief Commissioner or the Lieutenant Governor and that the contracts of the respondent with the Chief Commissioner Himachal Pradesh must be held to be contracts with the Central Government. We however disagreed with this con tention and held that article 239 had not the effect of merging States with the Central Government and converting contracts with the States into those with the Central Government. In this application Mr. Chatterjee appearing for the petitioner invites our attention to the definition of " Central Government " in section 3(8)(b)(ii) of the . It is as follows: "Central Governmnet" shall in relation to anything done or to be done after the commencement of the Constitution mean the President; and shall include in relation to the administration of a Part C State the Chief Commissioner or Lieutenant Governor or Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the Constitution as the case may be." He argues that by force of this definition contracts with the Chief Commissioner of Himachal Pradesh must be treated as contracts with the Central Government and that in consequence the respondent was disqualified for election under section 17 of Act No. XLIX of 1951 read along with section 7(d) of Act No. XLIII of 1951. As against this Mr. Veda Vyas for the respondent relies on the definition of " State " in section 3(60)(b) of the which runs as follows: " State Government " as respects anything done or to be done after the commencement of the Constitution shall mean in a Part A State the Governor in a Part B State the Rajpramukh and in a Part C State the Central Government. " 564 His contention is that there being in the Constitution a fundamental distinction between the Government of the Union and Government of the States section 3(8) of the should be so construed as not to destroy that distinction and that having regard to the definition of " State " in section 3(60) it must be held that to the extent the Central Government administers States under article 239 its character is that of the State Governments. We are unable to agree that section 3(8) has the effect of putting an end to the status of States as independent units distinct from the Union Government under the Constitution. It merely recognies that those States are centrally administered through the President under article 239 and enacts that the expression " Central Government " should include the Chief Commissioner administering a Part C State under the authority given to him under article 239. Section 3(8) does not affect the status of Part C States as distinct entities having their own Legislature and judiciary as provided in articles 239 and 240. Its true scope will be clear if adapting it we substitute for the words " Central Government" in section 9 of Act No. XLIII of 195 1 the words " the Chief commissioner acting within the scope of the authority given to him under article 239. " A contract with the Chief Commissioner would therefore under section 9 read with section 3(8) of the be a contract with the Central Government and would operate as a disqualification for election to either House of Parliament under sections 7(d) and 9 of Act No. XLIII of 1951 'and it would be a disqualification under section 17 of Act No. XLIX of 1951 for election to the Legislative Assembly of the State. It is argued for the respondent that this construction would lead to this anomaly that whereas in the States in Part A or Part B a contract with the State would operate as disqualification only for election to the State Legislatures such a contract would in States operate as a disqualification to be chosen both to the State Legislature and to either House of Parliament. That anomaly is undoubtedly 565 there. But the contrary conclusion also involves the anomaly already pointed out that in States a contract with the State Government is not a disqualification for election even to the State Legislature as it is in Parts A and B States. Whatever the anomaly in our view the proper course is to give effect to the plain language of the statute. We must accordingly hold that in view of section 3(8) of the a contract with the Chief Commissioner in a State is a contract with the Central Government and that would be a disqualification for election to the Legislative Assembly under section 17 of Act No. XLIX of 1951 read with section 7(8) of Act No. XLIII of 1951. This conclusion however can result in no advantage to the petitioner as the further finding of the Election Tribunal is that no contracts of the respondent with the Himachal Pradesh Government were proved to have been subsisting at the material period. That finding is for the reasons already given not open to attack in this appeal and is sufficient answer to the objection that the respondent was disqualified under section 17. The second point that was argued before us in appeal was that the respondent had appointed certain Government servants to act as polling agents and had thereby committed a major corrupt practice under section 123(8) of Act No. XLIII of 1951. In rejecting this contention we observed that "as an abstract proposition of law the mere appointment of a Government servant as a polling agent in itself and without more" is not an infringement of section 123(8). The correctness of this conclusion is now challenged by Mr. Chatterjee. His contention is that having regard to the nature of the duties of a polling agent as laid down by the Rules and furtfier elucidated by the instructions contained in the Election Manual issued by the Government the polling agent must be held to be interested in the candidate for whom he acts as polling agent and that his employment would therefore be hit by section 123(8). Examining closely the duties of a polling agent under the Rules and under the Election Manual they 566 can be grouped under three categories. The first category relates to the period of time antecedent to the recording of votes. The duties of the polling agent at this stage are to see that the ballot boxes are to start with empty that the names of the candidates and their symbols are correctly set out thereon that the slits in the boxes are in an open position that the knobs of the slits are properly secured and that the boxes are properly bolted and sealed. These are duties which are cast on the presiding officer and the polling officers as well and as these are matters to be attended to before any recording or votes begins it is difficult to see how they can be said to assist in the furtherance of the election prospects of any one candidate more than of any other. The second stage is when the polling is actually in progress. The duty of the polling agent at this stage is to identify the voters. Rule 27 provides that when there is a doubt as to the identity of a voter the presiding officer may interrogate the voter and that be should do so if so required by a polling agent. Under rule 30 it is open to the polling agent to challenge any voter on the ground that he is not the person whose name is entered in the voters ' list and when such objection is taken it is the duty of the presiding officer to hold an enquiry and pass an order. The object of these Rules is to prevent personation and that is a matter in which the duty is cast equally on the presiding officer. Rule 24 provides that "The presiding officer may employ at the polling station such persons as he thinks fit to assist him or any polling officer in identifying the electors. The work of the polling agent under rules 27 and 30 is of the same character and it cannot in itself be said to further the election prospects of any particular candidate. The third stage is reached after the polling is over '. Then the boxes are to be examined with. a view to find out whether the slits are open and the seals intact the object of these provisions being to ensure that the ballot boxes had not been tampered with during the time of actual polling. Then the unused ballot papers the tendered ballot papers and other material documents are required to be put in separate 567 packages and the polling agents have the right to seal all of them. It cannot be said that in carrying out these duties the polling agent advances the election prospects of the candidate as they admittedly relate to a stage after the completion of the polling. Indeed the work of the polling agent both in the first stage and in the last stage is similar in character and neither can be said to contravene section 123(8). As regards the second stage as already stated in our judgment the duty of polling agent is merely to identify a voter and that could not by itself and without more be said to further the election prospects of the candidate. Reliance was placed by Mr. Chatterjee on the following passage in Parker 's Election Agent and Returning Officer Fifth Edition at page 20: "The polling agents appointed for the same candidate to attend the several polling stations at any election are engaged on the same duty and in the same interest and it is generally very desirable that they should meet under the presidency of the candidate or his election agent before the opening of the poll for the purpose of mutual discussion and co operation. " What that passage means is that as the duty to be performed by the polling agents at the several booths is of the same character it would be desirable that they should all be assembled and their duties explained to them. This has no bearing on the question whether those duties are such as must inherently promote the election prospects of the candidate. A passage which is more in point is the one at page 18 mentioning who could be appointed as polling agents. It is as follows: "Any competent person whether an elector or not may be appointed as polling agent provided he be not the returning officer the acting or deputy acting returning officer or an officer or clerk appointed under P.E.R. r. 27 or a partner or clerk of any of them. " In this connection it must be noted that while section 41 of Act No. XLIII of 1951 contains a prohibition against the appointment of certain persons as election agents there is none such with reference to the appointment of polling agents under section 46 of the 568 Act. To hold that Government servants are as such and as a class disqualified to act as polling agents would be to engraft an exception to the statute which is not there. Accordingly we reaffirm the view taken by us that the appointment of a Government servant as polling agent does not without more contravene section 123(8). It is scarcely necessary to repeat our observation in the original judgment that "if it is made out that the 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). " In the result this petition is dismissed; but under the circumstances without costs. Petition dismissed.

Held (modifying the view of law taken in Civil Appeal No. 52 of 1954) that in view of section 3(8) of the a contract with the Chief Commissioner in a State (in this case Himachal Pradesh Chief Commissioner) is a contract with the Central Government and that would be a disqualification for election to the Legislative Assembly of the State under section 17 of Act XLIX of 1951 read with section 7(d) of Act XLIII of 1951.

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 connected 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. G. section Pathak (V. D. Bhargava and Naunit Lal with him) for the appellants. K. 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. 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 control 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 connection Path the business of an Indian State Railway. It appears that some time after 1947 the Government of U. P. conceived the idea of running their own buses on the public thoroughfares. They first started running buses only as competitors with the private operators but later on they decided to exclude all private bus owners from the field and establish a complete State monopoly in respect to the road transport business. They sought to achieve this object by 711 calling in aid the provisions of the Motor Vehicles Act itself. Under section 42(3) of the Act as mentioned above the Government had not to obtain permits for their own vehicles and they could 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 could not '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 conflicts with article 14 of the Constitution. All the judges concurred in holding that nationalisation of an industry was not 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 consideration 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 712 became law on and from the 10th of February 1951. It is the constitutional validity of this enactment which is the subject matter of contest 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 common 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 conjunction 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 consequences follow which are detailed in section 7. So long as the scheme continues 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 condition 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 contravention of the provisions of section 7. It is not necessary to refer to the provisions of the remaining sections as they are not material for our present purpose. By a notification dated the 25th of March 1953 the U. P. 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 notification 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 not 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 constitutional validity of the Act was challenged on a number of grounds the principal contentions being: (1)that the Act was discriminatory in its character and contravened the provisions of article 14 of the Constitution; (2)that it conflicted 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 commercial undertaking without making any provision for compensation as is required under article 31(2) 714 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 consisting of Mukherji and Chaturvedi JJ. By two separate but concurring judgments dated the 17th of November 1953 the learned Judges repelled all the contentions of the petitioners and dismissed the writ petitions. It is against this decision that these two appeals have come 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 convenient first of all to address ourselves to the two allied questions viz. whether the appellants could 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 now and the Act which prevents them from pursuing that trade or business conflicts 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 commercial undertaking is 'property ' within the meaning of article 31(2) of the Constitution and as the Act does not conform to the requirements of that article it must be held to be void. Mr. Pathak put forward another and a somewhat novel 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 715 in law; consequently there has been a deprivation of property by the impugned legislation in this sense also. This contention seems to us to be untenable and it was rightly abandoned by the learned counsel. The Advocate General appearing for the State of 'U. P. did not and could not dispute that a right to pursue any trade business or occupation of one 's choice is guaranteed by the Constitution. He says however that this does not 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 constitutional guarantee. His argument in substance is that the bus owners as members of the public have no legal 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 no inherent 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 could be deprived of the same. There is no question of any conflict with the fundamental right guaranteed under article 19(1)(g) of the Constitution in such cases. The argument requires careful consideration. It is not 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 (1) Vide Pratt & Mackenzie on Law of Highways 19th edn.p. 13.716 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 not 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 not mean however that all highways could 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 Halsbury 's 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 not impose a substantially greater burden on the owner of the soil. " There can be no dispute 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 not known when the road came into existence but the use of motor vehicles in modern times as means of locomotion and transport could not 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 likes and to that no objection 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 controls 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 not 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 contention has referred us to a few American cases on the point. In the case of Packard vs 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 conditioned as the Legislature deems proper. " This decision was approved in Frost vs Railroad Commission(1) and again in Stephenson vs 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 condition as it sees fit. We do not think that this is the law of India under our Constitution. The cases referred to above were noticed by the Allahabad High Court in the Full Bench decision of Motilal vs Uttar Pradesh Government(1) and two of the learned Judges constituting 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 not embody the English or the Indian law on the subject. This identical point was investigated with considerable thoroughness in a recent decision of the Madras High Court in C. section section Motor Service vs 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 country. 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 continued 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 companies is regarded there as a 'franchise ' or 'Privilege ' differing from the ordinary liberties of a citizen. The carrying on of transport buses by common carriers on the public road in America is a 'franchise ' and not a common law right which could be claimed by all citizens and a distinction is made as the cases cited above will show between contract carriers who carry passengers or goods under particular contracts and common carriers whose business is affected with public interest. Over the latter the State claims and exercises a plenary power of control. Ayyar J. has in our opinion rightly pointed out that this doctrine of 'franchise ' has no place in our Constitution. Under the Indian Constitution the contract (i) I.L.R. 1951 All. 257.(2) 719 carries as well as the common carriers would occupy the same position so far as the guaranteed right under article 19(1) (g) is concerned and both are liable to be controlled 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 complain 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 consideration 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. 720 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 corporation owned or controlled by the State to the exclusion of private citizens wholly or in part. It is not disputed that the third provision which was introduced by the amendment of the Constitution in 1951 was not in existence when the impugned Act was passed and the High Court rightly held that the validity of the Act is not 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 could 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 considered. 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" connotes a 'limitation ' imposed upon a person or a thing a 'condition or regulation ' of this nature though the use of the word in the sense of suppression is not 721 altogether unknown. In the case of Municipal Corporation of the City of Toronto vs Virgo(1) Lord Davey while discussing a statutory power conferred 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 continued 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 vs The State (2). The question for consideration in that case was the constitutional validity of the Preventive Detention Act and one of the contentions raised by the learned counsel 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 could not 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 not fall within the purview of article 19 and its validity was not to be judge d by the criteria indicated in that article but depended on its compliance 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 comprehensive 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 connection reference was made to (1) 93.(2) ; 722 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 context 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 consideration 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 could go to the length of total deprivation of these liberties was neither raised nor 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 normally pre suppose the continued 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 contention 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 not 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 723 Misra vs 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 vs Virgo (supra) referred to above could be distinguished on the ground that the expression used in that article was not '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 not intended to convey the same meaning. On behalf of the respondents much reliance has also been placed on a decision of this Court in Cooverjee vs The Excise COMMISSIONER etc. (2) where the point for consideration was the validity of the Excise Regulation I of 1915. It was contended 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 contention 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 conditions 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 not disputed that in order to determine the reasonableness (1) A.I.R. 1952 Orissa 42 (2) ; 724 of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade. . It can also not 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 noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. " It is contended 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 not 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 normal use of the word "restriction" seems to be in the sense of "limitation" and not "extinction" we would on this occasion prefer not to express any final opinion on this matter. If the word "restriction" does not 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 consideration 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 vs The Excise Commissioner etc.(1) whether (I) ; 725 the restrictions are reasonable or not would depend to a large extent on the nature of the trade and the conditions prevalent in it. There in nothing 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 not 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 community and it is conducive 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 not proved by the petitioners that the monopoly which was contemplated in favour of the State in regard to this particular business was not conducive to the common welfare. As a proposition of law the first ground may not admit of any dispute but we think that the observations of Lord Porter in the Privy Council case of Commonwealth of Australia and Others vs Bank of New South Wales and Others (1) upon which considerable reliance has been placed by the High Court would indicate the proper way of approach to this question ' "Their Lordships do not intend to lay it down" thus observed Lord Porter "that in no circumstances could the exclusion of competition 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) 311.93 726 manner of regulation". In order to judge whether State monopoly is reasonable or not regard therefore must be had to the facts of each particular case in its own setting of time and circumstances. It is not enough to say that as an efficient transport service is conducive 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 conditions and circumstances under which the legislation was passed. It is not enough that the restrictions are for the benefit of the public they must be reasonable as well and the reasonableness could be decided only on a conspectus of all the relevant facts and circumstances. With regard to the second point also we do not think that the learned Judges have approached the question from the proper stand point. There is undoubtedly a presumption in favour of the constitutionality 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 not place any materials before the Court to establish that the legislation comes within the permis sible limits of clause (6) it is surely not for the appel lants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community. In the present case we have absolutely no materials before us to say in which way the establishment of State monopoly in regard to road transport service in the particular areas would be conducive to the general welfare of the public. We do not know the conditions of the bus service at the present moment or the conveniences or inconveniences of the public in regard to the same; nor 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 727 that these are relevant facts which might help the Court in coming to a decision as to the reasonableness or otherwise of the prohibition but unfortunately there are no materials 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 no compensation 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 no further use to them and which they may not be able to dispose of easily or at a reasonable price. It may be pointed out in this connection 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 no doubt 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 not 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 not have to justify such action as reasonable at all in a Court of law and no objection could 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 coming into force of the new clause in article 19(6) of the Constitution the question of reasonableness would not have arisen at all and the appellants ' case on this point at any rate would have been inarguable. These are however 728 considerations 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 u`constitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re enacted". We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under article 19(1)(g) of the Constitution and is not 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 now come to the second point which is in a manner connected 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 commercial undertaking within the meaning of article 31(2) of the Constitution does not the legislation offend against the provision of that clause inasmuch as no provision for compensation has been made in the Act ? It is not 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 commercial undertaking. There is no doubt 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 no scope 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 could not be said that there was by the State any acquisition of the right which was formerly of the petitioners whether such right was (1) VOl.729 property or an interest in a commercial or industrial undertaking. The vehicles which were being operated by the private operators have not been acquired by the State nor 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 no way 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 commercial undertaking is not 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) could 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 not stand on the rights of the petitioners. This argument we think is not tenable having regard to the majority decision of this Court in the case of State of West Bengal vs Subodh Gopal Bose and Others (1) and Dwarkadas Shrinivas vs The Sholapur Spinning and Weaving Co. Ltd. (2). In view of that majority decision it must be taken to be settled now that clauses (1) and (2) of article 31 are not 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 State 's powers the deprivation contemplated in clause (1) being no other than acquisition or taking possession of the property referred to in clause (2). The learned Advocate General co n. 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) ; (2) ; 730 not been acquired by the Government is also not material. The property of a business may be both tangible and intangible. Under the statute the Government may not 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 conflict with the provision of article 31(2) of the Constitution and as the requirements of that clause have not been complied with it should be held to be invalid on that ground. The next point that requires consideration is whether the Act or any of its provisions are discriminatory in their character and conflict with the rule of equal protection embodied in article 14 of the Constitution ? Mr. Pathak has raised a two fold contention on this point. He has argued in the first place that no discrimination could 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 conceded comes under a different class or category from private citizens; but the contention 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 counsel in sup port of this view on the judgment of Sir Barnes Peacock in P. and O. Steam Navigation Co. vs The Secretary of State(1). The other objection taken by the learned counsel 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 concerned it is well settled that mere differentiation does not 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 not be arbitrary but must bear a reasonable (1) (1861) 5 B.H.C.R.Appendix 1. 731 relation to the object which the legislation has in view. There is no doubt that classification is inherent in the concept 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 concerned 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 constitutional provisions the statute would be invalid for those reasons and the question of discrimination would not 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 considered to be maintenance of law and order and all other activities were left to private competitors. That conception is now changed and in place of the 'police State ' of old we are now 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 could not have been considered as State functions when the case of P. and 0. Steam Navigation Co. vs The Secretary of State (Supra) was decided would certainly come within the legitimate scope of State duties Vide in this connection Lokanath Misra vs State of Orissa(supra). The other contention 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 conjunction with railway or partly by the State Government and partly by others in accordance with the provisions of 732 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 no rules 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 not appear to us to be an unreasonable construction 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 construction 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 not offend against article 14 of the Constitution. The last point that remains to be considered is whether the Act conflicts with the guarantee of freedom of inter State and intrastate trade commerce and intercourse provided for by article 301 of the Constitution ? Article 301 runs as follows: " Subject to the other provisions of this Part trade ' commerce and intercourse throughout the territory of India shall be free. " Article 302 authorises the Parliament to impose such restrictions on the freedom of trade commerce 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 competent even for the Legislature of a State to impose reasonable restrictions upon the freedom of trade commerce 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 301 733 corresponds 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 contention of the appellants on this point primarily on the ground that article 301 of the Constitution has no application 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 concerned with the passage of commodities or persons either within or outside the State frontiers but not directly with individuals carrying on the commerce 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 not 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 not consider it necessary to record our decision on this point. We would only desire 'to indicate the contentions that have been or could 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 consideration 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 concerned 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 vs The Bank of New South Wales (supra) that the rights of individuals do come within the purview of the section. It is true as Lord Porter observed that section 92 does not 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 94 734 the application of section 92 does not 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 contravening the terms of the article. The question of reasonable restrictions could not also arise in this case as the bill was not introduced with the previous sanction of the President as required by the proviso to section 304(b). It is true that the consent 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 not as Lord Porter observed in the Australian Bank case referred to above mean unrestricted or unrestrained freedom and that regulation of trade is quite compatible 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 could be imposed upon freedom of trade and commerce and it would not 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 not 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 consider in this connection 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 no such addition was made in article 301 or article 304 of the Constitution and article 301 as it stands guarantees freedom of trade commerce and intercourse subject only to Part XIII of the Constitution and not the other parts of the Constitution including that dealing with fundamental rights. 735 The Australian Constitution indeed has no provision 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 commerce 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 could be raised and the possible views that could be taken but as we have said already we do not 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. There will be no order as to costs. Appeals allowed.

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 thereof by the public. Dedication is presumed by long and uninterrupted user of a way by the public. The presumption in such cases is so strong as to dispense with all enquiry into the actual ownership of the land or the intention of the owner about its user. All public streets and roads vest in the State but 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 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. G. section section Motor Service vs State of Madras ([19521 referred to with approval. 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 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 complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article. Article 19(6) as the result of the Constitution (First Amendment) Act 1951 enables the State to carry on any trade or business either by itself or through corporations owned or controlled by the State to the exclusion of private citizens wholly or in part. This provision of article 19(6) which was introduced by the amendment of the Constitution in 1951 was not in existence when the U. P. Road Transport Act 1951 (U. P. Act II of 1951) was passed and therefore the validity of the impugned Act is not to be decided by applying the provisions of the now clause. 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 because a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the Constitutional objection but must be reenacted. Although the normal use of the word "restriction" seems to be in the sense of limitation and not extinction but (without expressing any final opinion on the matter) if the word " I restriction" does not include total prohibition then the impugned Act cannot be justified under article 19(6) of the Constitution and it would 709 be void unless supported by article 31. If however the word Is restriction" in article 19(6) be taken in certain circumstances to include prohibition as well then 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 impugned Act cannot be justified as reasonable restrictions imposed in the interests of the general public. Whether the restrictions are reasonable or not would depend to a large extent on the nature of the trade and the conditions prevalent in it. There is nothing wrong in the nature of the motor transport trade in the present case which is perfectly innocuous. The U. P. Road Transport Act (II of 1951) which violates the fundamental rights of the private citizens guaranteed under article 19(1) (g) of the Constitution and is not protected by clause (6) of article 19 as it stood at the time of enactment must be held to be void under article 13(2) of the Constitution. The effect of the prohibition of the trade or business of the citizens by the impugned legislation amounts to deprivation of their property or interest in a commercial undertaking within the meaning of article 31(2) of the Constitution and therefore U. P. Road Transport Act 1951 offends against the provision of that clause inasmuch as no provision for compensation has been made in the Act. The impugned Act is not void on the ground that it offends against the equal protection rule embodied in article 14 of the Constitution. The contention whether the impugned Act conflicts with the guarantee of freedom of inter State and intra state trade commerce and intercourse provided for by article 301 of the Constitution discussed and the points that could be raised and the possible views that could be taken indicated without expressing any final opinion thereupon. Cooverjee vs The Excise Commissioner etc. ([1954] S.C.R. 873) distinguished. West Bengal vs Subodh Go pal Bose and Others ([1954] S.C.R. 587) and Dwarkadas Shrinivas vs The Sholapur Spinning and Weaving Co. Ltd. ([1954] S.C.R. 674) followed. Packard vs Banton (68 L.E. 596; ; Frost vs Railroad Commission (70 L.E. 1101) Stephenson vs Binford (77 L.E. 288) Motilal vs Uttar Pradesh Government (I.L.R. 1951 All. 257) Municipal Corporation of the City of Toronto vs Virgo ([1896] A.C. 88) A. K. Gopalan vs The State ([1950] S.C.R. 88) Lokanath Misra vs The State of Orissa (A.I.R. 1952 Orissa 42) Commonwealth of Australia and Others vs Bank of New South Wales and Others ([1950] A.C. 235) and P. and 0. Steam Navigation Co. vs The Secretary of State (1861 5 B.H.C.R. Appendix 1) referred to. 91 710

315 of 1954. Petition under article 32 of the Constitution for enforcement of Fundamental Rights. H.J. Umrigar Narain Andley J. B. Dadachanji and Rajinder Narain for the petitioner. M. 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. 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 commencing 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 concealed 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: 775 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 not 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 vs 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 not 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 contravene the provisions of articles 14 19(1) (f) and 31 of the Constitution and that under the Act (1) ; 776 there was no reasonable 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 concealed 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 concluding 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 no assessment 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 consent was improperly procured and that he is not bound thereby he cannot complain that any of his fundamental rights has been contravened for which he can claim relief under article 32 of the Constitution. Article 32 of the Constitution is not intended for relief against the I voluntary actions of a person. His remedy if any lies in other appropriate proceedings. The learned counsel for the petitioner contended that apparently the application for a settlement seems to have been made under the pressure of circumstances and in view of the coercive machinery of Act XXX of 1947 and the settlement arrived in such circumstances 777 was not binding and could not be enforced. Whatever be the merits of such a contention 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. The result is that this petition fails and is dismissed with costs. Petition dismissed.

The petitioner a business man was alleged to have made huge profits during the years of War and the Central Government acting under section 5(1) of the Taxation on Income (Investigation Commission) Act 1947 (XXX of 1947) referred his case to the Investigation Commission for investigation and report. During the pendency of the investigation the petitioner 's application for settlement under the provisions of section 8 A of Act XXX of 1947 was accepted by the Central Government and in pursuance thereof the tax was made payable by installments and the claim for evaded income tax was thus finally settled be mutual agreement. When the installments in the sum of Rs. 4 lacs odd still remained due the petitioner preferred the present petition under article 32 of the Constitution alleging that the entire proceedings under Act XXX of 1947 were illegal ultra vires void and unconstitutional that the Income tax authorities were not competent to recover the amount. due from him and that sections 5 6 7 and 8 of the Act were ultra vires as they infringed articles 14 19(1) (f) and 31 of the Constitution. Held that the petition under article 32 was not competent as whatever had already been paid or whatever was still recoverable from the petitioner was being recovered. on the basis of the 99 774 settlement between him and the Government. Article 32 is not intended for relief against the voluntary actions of a person. Suraj Mall Mohta Co. vs A. V. Visvanatha Sastri (A.I.R. referred to.

iminal 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 B. D. Kathalay Ganpat Rai and K. L. Arora with him) for the appellant. C. K. Daphtary Solicitor General for India (T. P. Naik and I. N. Shroff with him) for respondent No. 1. T. L. Shevde Advocate General for the State of Madhya Pradesh (T. P. Naik and I. N. Shroff with him) for respondent No. 2. B. 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 contempt 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 notices for contempt took a protracted course 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 contempt 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 complained. At the hearing of the case on 11th August 759 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 counsel for Zikar combated this contention and further submitted that the preliminary objection could not 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 copies 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 contents which are in English adding that he might change in the Supreme Court and say that he had not understood them. Shri Shareef then said that he has explained the contents 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 non 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 continued 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 760 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 applicant 's 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 no doubt in the applicant 's mind that he would not receive justice at the hands of the Hon 'ble Judges. Prayer: In the interest of dispensation of impartial justice the case be transferred to another Civil Division Bench for disposal. " This application was not only signed by Zikar but also by the two appellants as counsel for the applicant and was rejected in due course and with that matter we are no longer concerned. The preliminary objection raised by the State was upheld and the petition under article 226 was dismissed. The learned Judges then ordered notices to issue to the applicant and his two counsel to show cause why they should not all be committed for contempt for scandalizing the Court with a view to perverting the due course 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 notice on the 4th October 1950. He averred that he could not honestly admit that he scandalized the Court and committed contempt either in fact or in law and contended 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 no animus against the Judges of the Division Bench. He asserted that by signing the application he did not scandalize or intend to scandalize the Court and that he bona fide thought that an application could be made for transferring a case in the High Court from one Bench to another and that the question did not concern him alone but 761 the Bench and Bar generally and a question of great principle emerged viz. whether a counsel was guilty of contempt 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 Hon 'ble 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 not know or believe the law to be that it could not be made and rightly or wrongly he was always under the impression that an application could 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 Zikar 's brief in connection 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 construed as aggravating the contempt as hinted by the Hon 'ble Court during my counsel 's arguments though remotely. But even as I am making my defence it is I admit quite likely that I committed an error of judgment in acting as I did causing pain to the Hon 'ble Judges which I deeply regret as I have already done before and so has my counsel on my behalf in the course 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 considered and 762 discussed held that the application for transfer constituted contempt because the Judges were scandalized with a view to diverting the due course of justice. The two advocates who signed and prosecuted the application were found guilty of contempt. 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 consider any mistake on their part renders it difficult for the court to accept the belated plea of an error of judgment. Even the expression 'error of judgment ' was not 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 contrary 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 consideration must be genuine contriteness for what the contemners 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 not 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 court into play considering the misconceptions about the advocate8 ' responsibility that seem to have so far prevailed at any rate in a section of the Bar." 763 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 court and to the High Court and they are prepared to purge the contempt for which they have been convicted. In our opinion the apology is a sincere expression of their regret for what happened in court 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 contempt is said to have been committed. We are sending it to the High Court with the full confidence that the learned Judges will consider the apology in the spirit in which it has been tendered and they will pass appropriate orders and send an intimation to this court 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 consider in this form " The question is whether remission of the punishment awarded is called for in view of the statement now filed by the contemners and it was answered thus: We are constrained to observe that the spirit in which the apology was tendered here is not much different from that originally shown. The idea of the contemners is that because they have filed the apology as directed they have a right to expect the acceptance of it by the court. How else can the absence of any prayer or what the contemners 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 nor did we give the maximum of the lesser penalty. But for the manner of justification and the contumacy there might not have been a sentence of fine at all." 764 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 not entitle a contemner 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 not accepted and the report concluded with the following observations : " If in the circumstances of this case the apology were to be accepted we would be encouraging the notion that it is the contemners 's 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 court the consequence 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 now 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 consideration in the appeal now is whether the two appellants have purged the contempt 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 counsel 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 not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea but it is intended to be evidence of real contriteness. The appellants having tendered an 765 unqualified apology no exception can be taken to the decision of the High Court that the application for transfer did constitute contempt because the judges were scandalized with a view to diverting the due course of justice and that in signing this application the two advocates were guilty of contempt. That decision therefore stands. The fact however remains as found by the High Court that there was at the time these events happened considerable misconception amongst a section of the Nagpur Bar about advocates ' responsibilities in matters of signing transfer applications containing allegations of this character. It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel 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 contains matter scandalizing the Court. They think that when there is conflict 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 counsel who sign applications or pleadings containing 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 course of justice are themselves guilty of contempt of Court and that it is no duty of a counsel 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 not fully realized the implications of their signing such applications and are firmly under the belief that their conduct 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 considered by a Court. In border 98 766 line cases where a question of principle about the rights of counsel and their duties has to be settled an alternative plea of apology merits consideration; for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless because that would amount to the admission of the commission 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 could hold that the act of the appellants constituted contempt and thus it could not be said that the matter was so patent that on the face of it their act amounted to contempt. Moreover it appears from the proceedings that the counsel 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 course 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 counsel 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 not have done so. In these circumstances it cannot be said that what they did was wailful and their conduct in getting the law settled in this matter by raising the defence that they did was contumacious. The authorities relied upon by the High Court have no application 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 counsel 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 contempt case cannot be regarded as an act of contumacy. It depends on the circumstances of each case and on the general impression about a particular rule of ethics amongst the members 767 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 counsel to have that point settled cannot be regarded as contumacy or a circumstance which aggravates the contempt. We think that the expression of regret in the alternative in this case should not have been ignored but should have been given due consideration. It was made in the earliest written statement submitted by the counsel and cited above. Once however the High Court found that they were guilty of contempt 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 coming to this Court they might be able to have the q uestion of principle settled as they contended. As soon as we indicated to the learned counsel that they were in error they and their counsel immediately tendered an unqualified apology which as already indicated was repeated again in absolute terms at the second hearing. We have not been able to appreciate why the learned Judges of the High Court should have doubted the genuineness of this apology. It certainly was not the object and could not be the object of the learned Judges of the High Court to humiliate senior counsel and to expect something more from them than what they had already done in this Court. While unhesitatingly deprecating very strongly the conduct 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 no doubt 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 course of justice 768 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 conduct will not be repeated by counsel in any High Court in this country and no more 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 not have been a sentence of fine at all if there was no plea of justification and there was no contumacy we are of the opinion that the unqualified apology was sufficient to purge the contempt committed by the two appellants as we have reached the conclusion contrary to that arrived at by the High Court that the plea of justification in this case did not amount to contumacy. It has also to be kept in view that condemnation for contempt 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 nothing said in the lengthy judgment of the High Court that these counsel 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 not 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 not 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 consideration 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 contempt. The matter has become very stale and the ends of justice do not call for maintaining the punishment of fine on two senior 769 counsel 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 counsel for their conduct. There will be no order as to costs in these proceedings throughout. Appeal allowed.

A section of the Bar seems to be labouring under an erroneous impression that when an advocate is acting in the interests of his client or in accordance with his instructions he is discharging his legitimate duty towards him even when he signs an application or a pleading which contains matter scandalizing the Court and that when there is conflict between his obligations to the Court and his duty to the client the later prevails. It should be widely made known that an advocate who signs an application or pleading containing matter scandalizing the Court which tends to prevent or delay the course of justice is himself guilty of contempt of Court unless he reasonably satisfies himself about the prima facie existence of adequate grounds there for and that it is no duty of an advocate 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. It is well settled that in a matter relating to the contempt of Court there cannot be both justification and an apology. The two things are incompatible. An apology is not a weapon of defence to purge the guilty of their offence nor is it intended to operate as a universal panacea but it is intended to be evidence of real contri teness. In border line cases where a question of principle about the rights of an advocate and his duties has to be settled an alternative plea merits consideration for it is possible for a judge who hears the case to hold that there is no contempt in which case a defence of unqualified apology is meaningless because that would amount to the admission of the commission of an offence. Every form of defence in a contempt case cannot be regarded as an act of contumacy. 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. 97 758

on No. 492 of 1954. Petition under article 32 of the Constitution for the enforcement of Fundamental Rights. B. Sen I. N. Shroff and B. P. Singh for the petitioner. M. C. Setalvad Attorney General for India and C. K. Daphtary Solicitor General for India (G. N. Joshi 770 P.A. Mehta and P. G. Gokhale with them) for the respondents. October 21. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. This is a petition under article 32 of the Constitution of India for the enforcement of fundamental rights under articles 31(1) and 19(1)(f) of the Constitution and for the issue of writs in the nature of mandamus and/or certiorari and for suitable directions restraining the respondents from interfering with the petitioner 's properties in violation of his fundamental rights. The petition arises in these circumstances. The petitioner along with his brothers used to carry on the business of toddy and liquor vendors. In addition to this one of the brothers used to run a bus service and dealt in cotton and money lending also. All the brothers owned extensive properties both agricultural and non agricultural. Though prior to the assessment year 1926 27 all the brothers were assessed to income tax as a Hindu undivided family since then up to the year 1946 they were assessed separately on account of a partition alleged to have been made between them. In December 1946 the Income tax Officer commenced proceedings against them under section 34 on the ground that the case of partition set up by them was not correct and as a matter of fact there had been no partition between them and they were carrying on business jointly. As a result of these proceedings an assessment under section 34 was made on the four brothers jointly treating them as an association of persons for the year 1942 43. Similar assessment proceedings were taken against them in respect of the years 1940 41 1941 42 and 1943 44. In December 1947 the Central Government under the bona fide belief that the petitioner 's brothers had made huge profits during the war and had evaded tax made five references to the Income tax Investigation Commission under section 5(1) of the Taxation on Income (Investigation Commission) Act 1947. Reference No. 175 concerned all the brothers as an association of persons while the other four references related 771 to the brothers individually. As a result of the pro ceedings before the Investigation Commission the Commission made a report to the Central Government on the 26th of September 1952 estimating the amount of escaped income at Rs. 16 79 203 between the year % 1940 41 and 1948 49. In pursuance of this report the Central Government passed an order under section 8(2) of the Taxation on Income (Investigation Commission) Act directing that the assessment proceedings be taken under the Indian Income tax Act and Excess Profits Tax Act 1940 as well as under the Business Profits Tax Act 1947 against Messrs Jamkhandi Bros. as an association of persons with a view to assess or reassess the income that had escaped assessment according to the report of the Investigation Commission. In accordance with these orders the Income tax Officer commenced proceedings against Messrs Jamkhandi Bros. as an association of persons. On the 30th November 1953 various assessment orders were passed by the Income tax Officer assessing the petitioner under the Income tax Act and the Excess Profits Tax Act. Proceedings were then taken against the petitioner for recovery of the tax assessed by the Income tax Officer and in those proceedings the properties of the petitioner in the District of Belgaum were attached for payment of the dues and one of his properties comprising of about 12 plots of land was sold by public auction under the provisions of the Bombay Land Revenue Code. On the 20th September 1954 the present application was preferred under the provisions of article 32 of the Constitution. It has perhaps been made under the impression that the decision of this Court in Suraj Mal Mohta vs A. V. Visvanatha Sastri and Another (1) has application to the facts and circumstances of this case as well and that relief can be obtained against the assessment orders which have become final by taking proceedings under article 32 of the Constitution. In the petition it was alleged that the attachment and sale of the petitioner 's properties was illegal and violates the petitioner 's fundamental rights under articles 31(1) and 19(1)(f) of the Constitution. It was also alleged (1) ; 772 that the proceedings before the Income tax Investigation Commission after the coming into force of the Constitution were illegal as being in contravention of articles 14 and 20(3) of the Constitution and that in view of the decision of this Court in Suraj Mal Mohta vs A. V. Visvanatha Sastri and Another (supra) proceedings under the Taxation on Income (Investigation Commission) Act 1947 were discriminatory and that the references made by the Central Government under section 5(1) are not based on a proper classification. It was prayed that this Court may be pleased to issue a writ in the nature of mandamus and/or certiorari or such other directions as may be appropriate to quash the assessment orders made in pursuance of the order of the Central Govern ment under section 8(2) of the Taxation on Income (Investigation Commission) Act 1947 and to restrain the respondents from attaching and selling or interfering in any manner with the properties of the petitioner. From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952 more than two years before this petition was presented in this Court. The assessment orders under the Income tax Act itself were made a against the petitioner in November 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of article 32 of the Constitution. It was held by this Court in Ramjilal vs Income tax Officer Mohindergarh (1) that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected except by authority of law clause (1) of article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax and inasmuch as the right conferred by article 265 is not a right conferred by Part III of the Constitution it could not be enforced under article 32. In view of this decision it has to be held that the petition under article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circum stances that have arisen it would not be just and proper (1) 773 to direct the issue of any of the writs the issue of which is discretionary with this Court. When this position was put to Mr. Sen the learned counsel for the petitioner he very fairly and in our opinion rightly conceded that it was not possible for him to combat this position. For the reasons given above this petition is bound to fail and it is accordingly dismissed with costs.

Held that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected except by authority of law clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax and as the right conferred by article 265 is not a fundamental right conferred by Part III of the Constitution it cannot be enforced under article 32. Ramjilal vs Income tax Officer Mohindergarh ([1951] S.C.R. 127) followed. Suraj Mal Mohta and Co. vs A. V. Visvanatha Sastri (A.i.R. referred to.

Appeals Nos. 138 and 139 of 1954. Appeals under articles 132 and 133 of the Constitution of India from the Judgment and Order dated the 16th February 1953 of the Court of Judicial Commissioner Ajmer in Civil Miscellaneous Petitions Nos. 260 and 263 of 1952. N.C. Chatterjee (B. D. Sharma and Naunit Lal with him) for appellants Nos. 1 and 2 in C. A. No. 138 of 1954 (Edward Mills and Krishna Mills). Achhru Ram (B. D. Sharma and Naunit Lal with him) for appellant No. 3 in C. A. No. 138 of 1954 (Mahalaxmi Mills). H.N. Seervai J. B. Dadachanji and Rajinder Narain for the appellant in C. A. No. 139 of 1954. C. K. Daphtary Solicitor General of India (M. M. Kaul and P. G. Gokhale with him) for respondent No. 2 (Union of India). October 14. The Judgment of the Court was delivered by MUKHERJEA J. These two appeals are directed against a common judgment dated the 16th of February 1953 passed by the Judicial Commissioner of Ajmer on two analogous petitions under article 226 of the Constitution in one of which the appellants in Appeal No. 138 of 1954 were the petitioners while the other was filed by the appellant in Appeal No. 139 of 1954. The petitioners in both the cases prayed for a declaration that the notification dated the 7th of October 1952 issued by the State Government of 738 Ajmer fixing the minimum rates of wages in respect of employment in the textile industry within that State under the provisions of the (Act XI of 1948) was illegal and ultra vires and for issue of writs in the nature of mandamus directing the respondents not to enforce the same against the petitioners. To appreciate the points that have been canvassed before us it will be convenient to narrate briefly the material facts in chronological order. On the 15th of March 1948 the Central Legislature of India passed an Act called The the object of which as stated in the preamble is to provide for fixing minimum rates of wages in certain employments. The schedule attached to the Act specifies under two parts the employments in respect of which the minimum wages of the employees can be fixed; and section 27 authorises the "appropriate Government" after giving three months ' notice of its intention to do so to add to either part of the schedule any other employment in respect of which it is of the opinion that minimum rates of wages should be fixed under the Act. The expression "appropriate Government" as defined in section 2(b) means in relation to a scheduled employment other than one carried by or under the authority of the Central Government the State Government ' Under section 3 the "appropriate Government" is to fix minimum wages payable to employees employed in any employment specified in the schedule at the commencement of the Act or added to it subseq uently in accordance with the provisions of section 27. Sub section (1) (a) of this section provides inter alia that the "appropriate Government" may refrain from fixing the minimum rates of wages in respect of any scheduled employment in which there are in the whole State less than 1 000 employees engaged in such employment. Section 5 lays down the procedure for fixing minimum wages. The appropriate Government can appoint a committee to hold enquiries to advise it in the matter of fixing minimum wages; in the alternative it can by notification in the official public gazette publish its proposals for the information of persons likely to be affected thereby. After 739 considering the advice of the committee or the representations on the proposals as the case may be the 'appropriate Government ' shall fix the minimum rates of wages in respect to any scheduled employment by notification in the official gazette and such rates would come into force on the expiry of three months from the date of issue unless the notification directs otherwise. Section 9 provides inter alia that an advisory committee constituted under section 5 shall consist of persons nominated by the appropriate Government. There shall be in the committee an equal number of representatives of the employers and the employed in any scheduled employment and there shall be independent persons as well not exceeding one third of the total number one of whom shall be appointed Chairman. Section 30 confers on the appropriate Government the power to make rules for carrying out the purposes of the Act. It may be mentioned at the outset that Part I of the schedule to the Act mentioned only 12 items of employment at the time when the Act was passed and employment in the textile industry was not included in Chem. On the 16th of March 1949 the Central Government issued a notification in exercise of its powers under section 94(3) of the Government of India Act 1935 directing that the functions of the "appropriate Government" tinder the would in respect of every Chief Commissioner 's Province be exercised by the Chief Commissioner. On the 17th March 1950 the Chief Commissioner of Ajmer purport ing to act as the "appropriate Government" of the State published a notification in terms of section 27 of the Act giving three months ' notice of his intention to include employment in the textile mills as an additional item in Part I of the schedule. On the 10th of October 1950 the final notification was issued stating that the Chief Commissioner had directed "that the employment in textile industry" should be added in Part I of the schedule. On the 23rd November 1950 another notification was published under the signature of the Secretary to 740 the Chief Commissioner containing the rules purporting to have been framed by the Chief Commissioner in exercise of his powers under section 30 of the Act. Out of these only rules 3 8 and 9 are material for our present purpose. Rule 3 provides that the term of office of the members of an advisory committee shall be such as in the opinion of the State Government is necessary for completing the enquiry into the scheduled employment concerned and the State Government may at the time of the constitution of the committees fix a term and may from time to time extend it as circumstances may require. Rule 8 provides for filling up the vacancies occurring or likely to occur in the member ship of the committee by resignation of any of its members. Rule 9 lays down that if a member of the committee fails to attend three consecutive meetings he would cease to be a member thereof. The rule further states that such member could if he so desires apply within a certain time for restoration of his membership and restoration could be made if the majority of the members are satisfied that there were adequate reasons for his failure to attend the meetings. On the 17th January 1952 a committee was appointed to hold enquiries and advise the Chief Commissioner in regard to the fixation of minimum wages relating to the textile industry within the State. Ten members were nominated consisting of four represeiitatives of the employers four of the employees and two independent members one of whom Shri Annigeri was to act as an expert member of the committee and the other Dr. Bagchi as its Chairman. The term of office of the members was fixed at six months from the date of the notification ending on the 16th of July 1952. The first meeting of the committee was held on the 29th February 1952. The expert member was present at that meeting and it was resolved that the minimum wages must not merely provide for the bare subsistence of life but should be adequate for the maintenance of the efficiency of the worker. The second meeting was held on the 29th March 1952 and the third on the 14th of June 1952. The expert member was not present at any other meeting except the first and on the 27th of 741 May 1952 he wrote a letter to the Chief Commissioner stating that he was proceeding to Europe on the 3rdd June 1952 for a period of three months. He expressed ' his willingness to assist the Chairman in the preparation of the report after he came back from Europe by the first week of September next provided the term of the committee was extended. If however that was not possible he requested that his letter might be treated as a letter of resignation from the membership of the Committee. No action appears to have been taken on receipt of the letter. The fourth and the fifth meetings of the committee were held respectively on the 8th and the 15th of July 1952. On the 20th August 1952 the the Chairman of the Committee informed the Chief Commissioner that Shri Annigeri had ceased to be a member of the committee by reason of his failing to attend three consecutive meetings. He had also desired that his letter to the Chief Commissioner dated the 27th May 1952 should be treated as a letter of resignation. In the circumstances the Chief Commissioner was requested to fill up this vacancy in the membership. On the very next day that is to say on the 21st August 1952 a notification was issued by which the Chief Commissioner ordered the extension of the term of the committee up to the 20th of September 1952 and on the 28th of August following another notification was made appointing Shri Annigeri as a member of the committee. The term of the committee was extended by a further notification till the 5th of October 1952. In the meantime a meeting of the committee was held on the 10th September 1952 in which Shri Annigeri was not present. The only resolution passed was that all relevant papers might besent to Shri Annigeri as desired by him. It appears that some time after the 14th of September 1952 the Chairman himself took the papers to Nagpur where Shri Annigeri was staying and a draft final report was prepared by the Chairman in consultation with the expert member and both of them signed the report at Nagpur. The report was placed before the other members on the 4th October 1952 and on the 7th of October following a notification was issued fixing 95 742 minimum rates of wages for the employees in the textile industry in the State of Ajmer under the signature of the Secretary to the Chief Commissioner and stating that these rates should be deemed to be in force from the 1st of September 1952. Feeling aggrieved by this notification the three appellants in Appeal No. 138 of 1954 presented an application under article 226 of the Constitution before the Judicial Commissioner of Ajmer on the 31st October 1952 praying for a writ in the nature of mandamus ordering the State of Ajmer not to enforce the same. A similar application was filed by the Bijay Cotton Mills the appellant in the other appeal on the 6th of November 1952. Both the petitions were heard together and a common judgment was passed by the Judicial Commissioner on the 16th of February 1953. The applications were dismissed except that the Chief Commissioner was held to have exceeded his legal authority in giving retrospective effect to the notification of the 7th of October 1952 and the State of Ajmer was restrained from enforcing the notification from any date earlier than the 8th of January 1953. It is against this judgment that these two appeals have come up to this Court on the strength of certificates granted by the Judicial Commissioner Ajmer. Mr. Chatterjee appearing for the appellants in Appeal No. 138 has put forward a three fold argument on behalf of his clients. He has contended in the first place that without a delegation of authority by the President under article 239 of the Constitution the Chief Commissioner of Ajmer was not competent to function as the "appropriate Government" for purposes of the . All the steps therefore that were taken by the Chief Commissioner under the provisions of the Act including the issuing of the final notification on the 7th of October 1952 were illegal and ultra vires. The second contention raised is that the provision of section 27 of the Act is illegal and ultra vires inasmuch as it amounts to an illegal and unconstitutional delegation of legislative powers by the Legislature in favour of the "appropriate Government" as defined in the 743 Act. The third and the last contention is that the Chief Commissioner had no authority to extend retrospectively the term of the Advisory Committee after it expired on the 16th of July 1952. Mr. Seervai who appeared in support of the other appeal adopted all these arguments on behalf of his client. He however raised some additional points impeaching the constitutional validity of the itself on the ground that its provisions conflicted with the fundamental rights of the appellants and its employees guaranteed under article 19(1) (g) of the Constitution. These points were argued elaborately by the learned counsel in connection with the two petitions filed on behalf of the Bijay Cotton Mills Ltd. and a number of employees under them under article 32 of the Constitution and we will take them up for consideration when dealing with these petitions. We will now proceed to consider the three points mentioned above which have been raised in support of the appeals. So far as the first ground is concerned the argument of Mr. Chatterjee in substance is that the expression "appropriate Government" has been defined in section 2(b) (ii) of the to mean in relation to any scheduled employment not carried on by or under the authority of the Central Government the State Government. "State Government" has been defined in section 3(60) of the General Clauses Act as meaning in regard to anything done or to be done after the commencement of the Constitution in a Part C State the Central Government. Prior to the commencement of the Constitution under section 94(3) of the Government of India Act 1935 a chief commissioner 's Province could be administered by the GovernorGeneral acting to such extent as he thought fit through a Chief Commissioner to be appointed by him in his discretion; and under section 3(8) of the General Clauses Act as it stood before the 26th of January 1950 the expression "Central Government" included in the case of a Chief Commissioner 's Province the Chief Commissioner acting within the scope of authority given to him under section 94(3) of the Government of 744 India Act 1935. Article 239 of the Constitution which corresponds to section 94(3) of the Government of India Act though it is much wider in scope provides that a State specified in Part C of the First Schedule shall be administered by the President acting to such extent as he thinks fit through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. Agreed to this constitutional provision section 3(8 ) (b) (ii) Of the General Clauses Act as amended by the Adaptation Laws Order 1950 lays down that the expression "Central Government" shall include inter alia the Chief Commissioner of a Part C State acting within the scope of the authority given to him under article 239 of the Constitution. Ajmer was admittedly a Chief Commis sioner 's Province under section 94(1) of the Government of India Act 1935. It has become a Part C State after the coming into force of the Constitution. As has been stated already the Central Government issued a notification on the 16th of March 1949 under section 94(3) of the Government of India Act directing that the function of the "appropriate Government" under the would in respect of any Chief Commissioner 's Province be exercised by the Chief Commissioner. There was no such delegation of authority however under article 239 of the Constitution after the Constitution came into force. Mr. Chatterjee contends that in the absence of such delegation under article 239 the Chief Commissioner of Ajmer cannot be regarded as "Central Government" as defined in section 3(8) (b) (ii) of the General Clauses Act as it stands at present and consequently he could not be held to be the "appropriate Government" within the meaning of section 2(b) (ii) of the . The Government of India Act it is said stands repealed by article 395 of the Constitution. An order issued under section 94(3) of the Government of India Act cannot possibly be operative after the inauguration of the Constitution nor could it be regarded as an order made under article 239 of the Constitution. The contention does not appear to us to be sound. A complete reply to this argument is furnished in our 745 opinion by the provisions of clauses (1) and (2) of article 372 of the Constitution. Article 372 runs as follows: "372. (1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. (2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution the President may by order make such adaptations and modifications of such law whether by way of repeal or amendment as may be necessary or expedient and provide that the law shall as from such date as may be specified in the order have effect subject to the adaptations and modifications so made and any such adaptation or modification shall not be questioned in any court of law." Thus clause (1) of the article provides for continuance in force of the existing laws notwithstanding the repeal by the Constitution of the enactments mentioned in article 395 and clause (2) provides for their adaptation with a view to bring them into accord with the provisions of the Constitution. The Government of India Act 1935 undoubtedly stands repealed by article 395 of the Constitution but laws made thereunder which were in existence immediately before the commencement of the Constitution would continue under article 372(1) and could be adapted :under the second clause of that article. Mr. Chatterjee argues that article 372 has no application to the present case inasmuch as the order made by the Central Government under section 94(3) of the Government of India Act could not be regarded as "a law in force" within the meaning of article 372. A distinction is sought to be made by the learned counsel between an "existing law" as defined in article 366(10) and a "law in force" and it is argued that though an "order" can come within the definition 746 of "existing law" it cannot be included within the expression "law in force" as used in article 372. It is argued next that even if the word "law" is wide enough to include an order that order must be a legislative and not a mere executive order promulgated by an administrative authority and in support of this contention the learned counsel has relied on a number of cases decided by the Privy Council and the different High Courts in India. The first point does not impress us much and we do not think that there is any material difference between " an existing law" and "a law in force". Quite apart from article 366(10) of the Constitution the expression "Indian law" has itself been defined in section 3(29) of the General Clauses Act as meaning any Act ordinance regulation rule order or bye law which before the commencement of the Constitution had the force of law in any province of India or part thereof. In out opinion the words "law in force" as used in article 372 are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law. We agree with Mr. Chatterjee that an order must be a legislative and not an executive order before it can come within the definition of law. We do not agree with him however to ' at the order made by the Governor General in the present case under section 943) of the Government of India Act is a mere executive order. Part IV of the Government of India Act 1935 which begins with section 94 deals with Chief Commissioners ' Provinces and sub section (3) lays down how a Chief Commissioner 's Province shall be administered. It provides that it shall be administered by the Governor General acting through a Chief Commissioner to such extent as he thinks fit. An order made by the Governor General under section 94(3) investing the Chief Commissioner with the authority to administer a province is really in the nature of a legis lative provision which defines the rights and powers of the Chief Commissioner in respect to that province. In our opinion such order comes within the purview of article 372 of the Constitution and being "a law in force" immediately before the commencement of the 747 Constitution would continue to be in force under clause (1) of the article. Agreeably to this view it must also be held that such order is capable of adaptation to bring it in accord with the Constitutional provisions under clause (2) of article 372 and this is precisely what has been done by the Adaptation of Laws Order 1950. Paragraph 26 of the Order runs as follows: "Where any rule order or other instrument was in force under any provision of the Government of India Act 1935 or under any Act amending or supplementing that act immediately before the appointed day and such provision is re enacted with or without modifications in the Constitution the said rule order or instrument shall so far as applicable remain in force with the necessary modifications as from the appointed day as if it were a rule order or instrument of the appropriate kind duly made by the appropriate authority under the said provision of the Constitution and may be varied or revoked accordingly. " Thus the order made under section 94(3) of the Government of India Act should be reckoned now as an order made under article 239 of the Constitution and we are unable to agree with Mr. Chatterjee that it was beyond the competence of the President under clause (2) of article 372 to make the adaptation order mentioned above. The first contention of Mr. Chatterjee therefore fails. Coming now to the second point. Mr. Chatterjee points out that the preamble to the as well as its title indicate clearly that the intention of the Legislature was to provide for fixing minimum wages in certain employments only and that the Legislature did not intend that all employments should be brought within the purview of the Act. The schedule attached to the Act gives a list of the employments and it is in respect to the scheduled employments that the minimum wages are to be fixed. Under section 27 of the Act however ' power has been given to the "appropriate Government" to add to either part of the schedule any employment in respect to which it is of opinion that minimum wages shall be fixed by giving notification in a particular manner and 748 thereupon the schedule shall in its application to the State be deemed to be amended accordingly. It is argued that the Act nowhere formulates a legislative policy according to which an employment shall be chosen for being included in the schedule. There are no principles prescribed and no standard laid down which could furnish an intelligent guidance to the administrative authority in making the selection. The matter is left entirely to the discretion of the "appropriate Government" which can amend the schedule in any way it likes and such delegation of power virtually amounts to a surrender by the Legislature of its essential legislative function and cannot be held valid. There is undoubtedly an element of delegation implied in the provision of section 27 of the Act for the Legislature in a sense authorises another body specified by it to do something which it might do itself But such delegation if it can be so called at all does not in the circumstances of the present case appear to us to be unwarranted and unconstitutional. It was said by O 'Connor J. of the High Court of Australia in the case of Baxter vs Ah Way (1): "The aim of all legislatures is to project their minds as far as possible into the future and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore legislation from the very earliest times and particularly in modern times has taken the form of conditional legislation leaving it to some specified authority to determine the circumstances in which the law shall be applied or to what its operation shall be extended or the particular class of persons or goods to which it shall be applied. " The facts of this Australian case in material features bear a striking resemblance to those of the present one. The question raised in that case related to the validity of certain provisions of the Customs Act of 1901. The Act prohibited the importation of certain goods which were specifically mentioned and then gave power to the Governor General in Council to include by (1) ; at 637. 749 proclamation other goods also within the prohibited list. The validity of the provision was challenged on the ground of its being an improper delegation of legislative powers. This contention was repelled and it was held that this was not a case of delegation of legislative power but of conditional legislation Of the type which was held valid by the Privy Council in the case of Reg vs Burah (1). It can indeed be pointed out that in Burah 's case what was left to the Lieutenant Governor was the power to apply the provisions of an Act to certain territories at his option and these territories to which the Act could be extended were also specified in the Act. The Legislature could be said therefore to have applied its mind to the question of the application of the law to particular places and it was left to the executive only to determine when the laws would be made operative in those places. According to the High Court of Australia the same principle would apply even when the executive is given power to determine to what other persons or goods the law shall be extended besides those specifically mentioned therein. Whether a provision like this strictly comes within the description of what is called "conditional legislation" is not very material. The question is whether it exceeds the limits of permissible delegation. As was said by O 'Connor J. himself in the above case when a Legislature is given plenary power to legislate on a particular subject there must also be an implied power to make laws incidental to the exercise of such power. It is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power. A Legislature cannot certainly strip itself of its essential functions and vest the same on an extraneous authority. The primary duty of law making has to be discharged by the Legislature itself but delegation may be resorted to as a subsidiary or an ancillary measure. Mr. Chatterjee contends that the essential legislative function is to lay down a policy and to make it a binding rule of conduct. This legislative policy he says is not discernible anywhere in the (1) 3 App. 96 750 provisions of this Act and consequently there is no standard or criterion to guide the administrative authority in the exercise of the subsidiary legislative powers. We do not think that this is the correct view to take. The legislative policy is apparent on the face of the present enactment. What it aims at is the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour. The Legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganized labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the Legislature not to lay down at once and for all time to which industries the Act should be applied. Conditions of labour vary under different circumstances and from State to State and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by the person who is placed in charge of the administration of a particular State. It is to carry out effectively the purpose of this enactment that power has been given to the "appropriate Government" to decide with reference to local conditions whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. We do not think that in enacting section 27 the Legislature has in anyway stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The second contention of Mr. Chatterjee cannot therefore succeed. The third and the last point raised by Mr. Chatterjee is directed against the notification of the Chief Com missioner by which he extended the term of the Advisory Committee till the 20th of September 1952. It is argued that the term of the committee as originally 751 fixed expired on the 16th of July 1952 and on and from the 17th of July all the members of the committee became functus officio. The Commissioner therefore was not competent to give a fresh lease of life to the committee which was already dead. We do not think that there is much substance in this contention. Rule 3 of the rules framed under section 30 of the Act expressly lays down that the State Government may fix the term of the committee when it is constituted and may from time to time extend it as circumstances require. The State Government had therefore a right to extend the term of the committee in such way as it liked. The only question is whether it could do so after the period originally fixed had come to an end. Mr. Chatterjee relied in this connection . upon certain cases which held that the Court could not grant extension of time in an arbitration proceeding after the award was filed and an award made after the prescribed period is a nullity. In our opinion this analogy is not at all helpful to the appellants in the present case. It is not disputed that the committee did not function at all and did no work after the 16th of July 1952 and before the 21st of August next when its term was extended. No report was submitted during this period and there was no extension of time granted after the submission of the report. Assuming that the order of the 21st August 1952 could not revive a committee which was already dead it could certainly be held that a new committee was constituted on that date and even then the report submitted by it would be a perfectly good report. Quite apart from this it is to be noted that a committee appointed under section 5 of the Act is only an advisory body and that the Government is not bound to accept any of its recommendations. Consequently procedural irregularities of this character could not vitiate the final report which fixed the minimum wages. In our opinion neither of the contentions raised in support of these appeals can succeed and both the appeals therefore should fail and stand dismissed with costs. Appeals dismissed.

The words 'law in force ' as used in article 372 of the Consti tution are wide enough to include not merely a legislative enactment but also any regulation or order which has the force of law. An order made by the Governor General under section 94(3) of the Government of India Act 1935 investing the Chief Commissioner with the authority to administer a province is really in the nature of a legislative provision which defines the rights and powers of the Chief Commissioner in respect of that province. Such an order comes within the purview of article 372 of the Constitution and being a 'law in force ' immediately before the commencement of the Constitution would continue to be inforce under clause (1) of the article. Such an order is capa ble of adaptation to bring it in accord with the constitutional provisions and this is precisely what has been done by the Adaptation of Laws Order 1950. Therefore an order made under section 94(3) of the Government of India Act 1935 should be reckoned now as an order made under article 239 of the Constitution and it was within the competence of the President under clause (2) of article 372 to make the adaptation order. Under section 27 of the power has been given to the "appropriate Government" to add to either part of the schedule any employment in respect of which it is of opinion that minimum wages shall be fixed by giving notification in a particular manner and thereupon the scheme shall in its application to the State be deemed to be amended accordingly. There is an element of delegation implied in the provisions of section 27 of the Act for the Legislature in a sense authorises another body specified by it to do something which it might do itself. But such delegation if it can be so called at all is not unwarranted and unconstitutional and it does not exceed the limits of permissible delegation. The legislative policy is apparent on the face of the present enactment. What it aims at is the statutory fixation of minimum wages with a view to obviate the chances of exploitation of labour. It is to carry out effectively the purposes of the enactment that power has been given to the appropriate Government to decide with reference to local conditions whether it is desirable that minimum wages should be fixed in regard to a particular trade or industry which is not already included in the list. Therefore in enacting section 27 the legislature has not stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. Rule 3 of the rules framed under section 30 of the Act empowers the State Government to fix the term of the committee appointed under section 5 of the Act and to extend it from time to time as circumstances require. The period originally fixed had expired and its term was extended subsequently. It did not function and submitted no 737 report during the period. Assuming that the subsequent order could not revive a committee which was already dead a new committee could be held to have been constituted and the report submitted by it would be a perfectly good report. Apart from this a committee is only an advisory body and procedural irregularities of this character could not vitiate the final report which fixed the minimum wages. Baxter vs Ah Way ; and Reg. vs Burah (3 App. Cas. 889) referred to.

minal Appeals Nos. 4 23 and 28 of 1954. Appeal by Special Leave granted by the Supreme Court by its Order dated the 2nd April 1953 from the Order dated the 12th January 1953 of the High Court of Judicature at Bombay in Criminal Appeal No. 22 of 1953 arising out of the Judgment and Order dated the 6th October 1952 of the Court of Sessions Judge Greater Bombay in Case No. 20 of 1952. A. K. Basu (J. B. Dadachanji and Naunit Lal with him) for the appellant in Criminal Appeal No. 4 of 1954. T. Godiwala and B. P. Maheswhari for the appellant in Criminal Appeal No. 23 of 1954. Jai Gopal Sethi (B. P. Maheshwari and T. Godiwala with him) for the appellant in Criminal Appeal No. 28. M. C. Setalvad Attorney General for India (Porus A. Mehta and P. G. Gokhale with him) for the respondent. 1954.October 22. The Judgment of Bhagwati and Venkatarama Ayyar JJ. was delivered by Bhagwati J. Jagannadhadas J. delivered a separate Judgment. 907 BHAGWATI J. Anokhelal Ranjit Singh original accused I and appellant in Criminal Appeal No. 28 of 1954 Harnarain Nanakchand original accused 2 and appellant in Criminal Appeal No. 23 of 1954 and Ramkishan Mithanlal Sharma original accused 4 and appellant in Criminal Appeal No. 4 of 1954 along with one Rubidas Radhelal original accused 3 since deceased and one Bankelal Devisingh still absconding were charged under section 397 read with section 395 of the Indian Penal Code with having committed dacoity and used deadly weapons at the time of committing the same and were also charged under section 396 of the Indian Penal Code with having committed the murder of Lawrence Quadros at the same time and place and in the course of the same transaction while committing the said dacoity. The trial was held before the Sessions Joe for Greater Bombay with the aid of a special jury. The jury returned unanimous verdicts of guilty against each of the accused and the learned Sessions Judge convicted them and sentenced each of them to transportation for life. An appeal filed by them to the High Court of Judicature at Bombay was summarily dismissed. Special leave was granted to them to appeal to this Court and these three special leave appeals have now come on for hearing and final disposal before us. The prosecution alleged that the Lloyds Bank Ltd. had a branch situated at Hornby Road and had three entrances the main one on Hornby Road and two others on Outram Road and Bastion Road. It was customary for the Bank to send cash from time to time to the Reserve Bank whenever the Head Cashier thought that there was a surplus. On a day previous to the day when cash was to be sent the Head Cashier would give the currency notes to the Assistant Cashiers. As a token of having checked up the notes each of the Assistant: Cashiers would put their signatures on the top and the bottom notes in a bundle containing 100 notes of Rs. 100 each and would affix thereon the rubber stamp of the Bank. These notes then would be tied up in what are known as "thappis" each "thappi" consisting of 10 bundles of 100 notes each. On the day that the cash was to be sent an escort party would go to the 908 Reserve Bank with the cash consisting of two Assistant Cashiers one European Officer and a peon. The Assistant Cashiers would then put the cash into a leather bag which bag would be attached by an iron chain to the person of the peon. The Lloyds Bank it appears had received a large deposit from the Bank of Iran a few days prior to the day in question and it was decided that an amount of Rs. 12 lakhs should be sent to the Reserve Bank of India on the 20th April 1951. In the morning of the 20th April the escort party consisted of Brightling Sarkari and Doctor and the peon Rama Madura and taxi No. BMT 1829 was summoned to carry the party to the Reserve Bank. The escort party emerged from the rear door of the Bank and went up to the taxi. Bala Gopal Kadam a watchman was on duty on Bastion Road. When the escort party came out the taxi 's bonnet was in the direction of the Empire Cinema and the driver Lawrence Quardros was at the driver 's seat. Brightling got into the taxi first and took his seat on the rear seat and was followed by Rama Madura. Sarkari went round in front and took his seat next to the taxi driver. Rama Madura after entering the taxi placed the bag on the taxi 's floor and was about to take his seat. Doctor was standing with his left hand on the rear door of the taxi on the Bank side waiting for Rama Madura to take his seat. It was at this juncture that accused 1 2 and 4 Rubidas and Bankelal attacked the taxi and the escort party. One of these persons first wrenched open the door to the taxi driver 's seat leaned inside and fired twice with a revolver. One of these shots caused an injury to Lawrence Quadros near the collar bone which almost instantaneously caused his death and his body came out with the head first. The man who so shot after leaning into the taxi went round the front of the taxi and took his seat next to the driver 's seat. There was another man behind this one when the driver was shot and he pulled out Lawrence Quadros from the taxi and took his seat at the steering wheel. That man was Rubidas one time a motor driver in the employ of the Pan American Airways at Delhi. Accused I also Armed with a revolver stood on the road side of the 909 taxi and fired twice at the taxi from that side and accused 2 and 4 were either at the back or on the Bank side and were also armed with revolvers. Sarkari first thought that these shots were tyre bursts and naturally got out of his seat to inspect the tyres but hearing further shots he realised that an attempt was being made to loot the cash. He got frightened and went in the direction of Outram Road. Brightling got out of the taxi first went a little towards the back of the taxi and then seeing that the taxi was surrounded zigzagged and went towards the junction of Outram and Bastion Roads where he tried unsuccessfully to stop a passing car. Accused 1 who was firing at the taxi came near it opened the back door of the taxi on the road side with his shoulder and got into the taxi. Accused 2 came towards the rear door of the taxi on the Bank side and fired at Doctor injuring him on the dorsum of his left palm. Kadam at about this time raised his baton realising that Doctor was in danger whereupon accused 2 shouted "Khabardar chhod do chale jao bhago" or words to that effect and shot at him injuring him in his right eye. That injury resulted in the total loss of his right eye. Both the accused 2 and 4 were armed with revolvers. A driver by name Sarvarkhan was sitting on the foot path near the taxi and seeing :the body of Lawrence Quadros falling out of the taxi 'he tried to go up to him but the accused 4 prevented him from doing so shouting at him "khabardar" and threatened him with his revolver. " During the course of the attack someone of these men shot at Rama Madura. Rama Madura became unconscious and accused 2 and another dragged him out from the taxi. The taxi was then started whereupon Brightling who was still. on Bastion Road after making signals to the Cash Department to show as to what was taking place picked up a motor cycle parked near the corner of the Parsi Lying in Hospital and threw it in the way of the taxi but Rubidas who was driving that taxi managed to drive it away. The taxi however had to be first driven at a slow speed and one Major Casey who was standing at the corner of the foot path saw the whole of the incident and also those inside the taxi when it was 910 driven past him. The prosecution alleged that accused 1 2 and 4 Rubidas and Bankelal surrounded and attacked the taxi and its inmates and after snatching away the bag tied to Rama Madura 's belt with the cash containing Rs. 12 lakhs drove away in that taxi. Brightling and some other employees of the Bank after some time secured a car which was parked nearby and went round in search of the taxi but to no purpose. Brightling then reported the matter to the Esplanade Police Station but before that the telephone operator of the Bank Mrs. Paterson who with Miss Vida Palmer a clerk had seen the incident from the window on the mezzanine floor had telephoned to the police and several police officers arrived at the Bank soon after. Lawrence Quadros was already dead and his body was sent to the 'morgue. Doctor Kadam and Rama Madura who had all been injured were sent to St. George 's Hospital. The taxi which was driven away by Rubidas with the accused and Bankelal seated therein was found abandoned at about 1 30 P.m. on that very day by the police not far from the Kashmir Hotel. The police made various efforts to trace accused 4 and Bankelal but were unable to find them and they therefore charge sheeted accused 1 2 and Rubidas (who was original accused 3) and they were all committed to stand their trial in the Sessions Court. After those proceedings were over the accused 4 was arrested on the 25th December at Bareli Station and he too was charge sheeted and was committed to Sessions. Rubidas the original accused 3 died on the 3rd August 1952 with the result that accused 1 2 and 4 stood their trial on the charges under section 395 397 and 396 of the Indian Penal Code. The defence of the accused 1 2 and 4 was that they had nothing to do with the incident in question which took place in the morning of the 20th April 1951. Though conceding that they had been in Bombay accused 1 and 4 contended that accused I had left Bombay on the night of the 18th April and accused 4 had left Bombay either on the 16th or 17th April for Allahabad that they were not in Bombay 'on the day in question but were in Allahabad where they had filed 911 two affidavits before one Tondon the first class Magistrate at Allahabad. Accused 2 also conceded that he had stayed in Astoria Hotel with the accused 4 but he had left that hotel on the 18th April and had gone to stay in Kashmir Hotel on that day and had stayed there until the night of the 20th April when he left Bombay for Delhi. His case was that he had come to Bombay to make purchases for his wedding and his business and that he had nothing to do with the incident in question. Before the learned Sessions Judge the prosecution led the evidence of various witnesses. That evidence may be grouped into three heads. One part of the evidence related to the movements and the activities of the accused before the 20th April 1951 the other part of the evidence related to the actual participation of the accused in the occurrence which took place at Bastion Road on the morning of the 20th April between 10 30 and 10 45 A.M. and the last part of the evidence related to the subsequent events including the arrest and the identification of the accused the recoveries of the tin box containing the revolvers and the live cartridges the steel trunk containing six 'thappis ' and five bundles of 100 rupee notes and disbursements of cash by the accused towards the end of April or the beginning of May. The accused were represented by counsel and searching and vigorous cross examination was addressed to all the prosecution witnesses. The trial took considerable time. The counsel addressed the special jury at considerable length and the learned Sessions Judge summed up the whole case to the special jury in a charge which took well nigh three days. It was a very exhaustive and a fair charge and in several respects was favorable to the accused. The learned Judge summed up the evidence which had been led by the prosecution pointed out the defects as also the contradictions in. the evidence of the several witnesses administered the necessary warning in regard to the evidence of the identification parades considered the cases of each of the accused separately and marshaled the evidence which had been led by the prosecution against each of them and fairly put to the jury the 912 questions which they had to determine before they could arrive at their verdict. The jury took time to consider their verdict and returned as stated above unanimous verdicts of guilty against all the accused in respect of both the charges. This being a trial by jury the appellants in order to succeed would have to establish that there were serious misdirections or non directions in the learned Judge 's charge to the jury such as would vitiate the verdict. The main contentions which were urged before us by the learned counsel for the appellants were (1)That evidence inadmissible under section 162 of the Criminal Procedure Code and under section 27 of the Indian Evidence Act had been admitted and that therefore there was an error of law which amounted to a misdirection to the jury; and (2)That there were misdirections in the learned Judge 's charge to the jury which had the effect of misleading the jury or were in any event such as to render the charge unfair and prejudicial to the accused thus causing a failure of justice. The admission of inadmissible evidence was attacked on two counts: (1)That the evidence in regard to the test identification parades held at the instance of the police and under their active supervision was hit by section 162 of the Criminal Procedure Code; and (2)That the statement of the police officer that it was 'tat the instance of" or "in consequence of certain statement by" the accused that certain discoveries were made was hit by section 27 of the Indian Evidence Act. The investigation in this case was started on the 20th April 1951 and the Bombay City Police were then governed in the matter of investigation by the provisions of the City of Bombay Police Act (Bombay Act IV of 1902). Section 63 of that Act provided : "(1) No statement made by any person to a police officer in the course of an investigation under this Act shall if taken down in writing be signed by the person making it nor shall such writing be used as evidence. 913 There was a proviso to that section which enabled such statements to be used by the accused to impeach the credit of such witness in the manner provided by the . It may be noted that under section 1(2) (a) of the Criminal Procedure Code the Code did not apply to the police in the towns of Calcutta and Bombay and therefore section 162 of the Criminal Procedure Code was not applicable to the investigations made by the Bombay City Police. On the 11th June 1951 the State Legislature passed the Bombay Police Act (Bombay Act XXII of 1951). Section 167(3) of that Act repealed section 1(2) (a) of the Criminal Procedure Code so far as the police in the town of Bombay were concerned with the result that when this Act came into operation with effect from the 1st August 1951 the Bombay City Police were also governed by the provisions of Criminal Procedure Code thus bringing into operation the provisions of section 162 thereof in the investigations conducted by the Bombay City Police. Section 162(1) of the Criminal Procedure Code provides: "No statement made by any person to a police officer in the course of an investigation under this Chapter shall if reduced into writing be signed by the person making it; nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of 'any offence under investigation at the time when such statement was made. " There is a proviso to this sub section which enables the accused to use such statements to contradict such witnesses in the manner provided by section 145 of the . The investigations conducted by the Bombay City Police were after the 1st August 1951 assimilated to the investigations conducted by the police under the Criminal Procedure Code and oral statements made by persons to police officers in the course of the investigation also came within the ban of ' section 162 and could not be used for any purpose save that specified in the proviso to section 162(1). 914 The provisions of section 162 applied to investigations conducted by the Bombay City Police from and after the 1st August 1951. They applied to investigations "under this chapter" i.e. investigations conducted under the Criminal Procedure Code and therefore prima focie did not apply to the investigations conducted by the Bombay City Police prior to the 1st August 1951 in which case section 63 of the City of Bombay Police Act IV of 1902 was applicable. It was however contended on behalf of the appellants that this section was a procedural one that nobody had a vested right in any course of procedure that alterations in procedure were to be retrospective unless there was some good reason against it or unless that construction be textually 'inadmissible [vide Banwars ' Gope vs Emperor(1) and Delhi Cloth Mills vs Incometax Commissioner Delhi(1)] that the ban under section 162 was operative when evidence in regard to the test identification parades was led before the learned Sessions Judge and that therefore all evidence in regard to these test identification parades whether they had been held before or after the 1 st August 195 1 was inadmissible. It was contended on the other hand by the learned Attorney General for the respondents that section 167(2) of the Bombay Police Act XXII of 1951 saved by clause (b) thereof any right privilege obligation or liability already acquired accrued or incurred before such date and by clause (d) thereof any investigation legal proceeding or remedy in respect of such right privilege obligation liability penalty forfeiture or punishment and that therefore the investigation which had been made by the police under the provisions of the City of Bombay Police Act IV of 1902 was saved and did not come within the ban of section 162 of the Criminal Procedure Code. Both these contentions are untenable. Section 167(2)could only apply to those rights privileges obligations or ' liabilities already acquired accrued or incurred under the City of Bombay Police Act IV of 1902 before the date of its repeal. An investigation conducted by the police under the provisions of that Act would not (1) A.I.R. 1943 Pat. (2) 915 create or impose any right privilege obligation or liability which could be saved by the provisions of section 167 (2) of the Bombay Police Act XXII of 1951. The investigation which bad been conducted up to the 1st August 1951 would be governed by the provisions of City of Bombay Police Act IV of 1902 and unless there was something in the Bombay Police Act XXII of 1951 which referred to those investigations all. the incidents of those investigations would be governed by the provisions of the repealed Act and the question as to the admissibility in evidence of the results of such investigations would also have to be considered 'With reference to the provisions of that Act. Section 162 of the Criminal Procedure Code in terms applied to the investigations conducted "under this Chapter" i.e. Chapter XIV which relates to information to the police and their powers to investigate whereas section 63 of the City of Bombay Police Act IV of 1902 specifically referred to the investigations conducted "under this Act" i.e. the City of Bombay Police Act IV of 1902. Section 162 of the Criminal Procedure Code therefore applied by reason of the context and the terms of that very section to investigations which had been conducted by the Bombay City Police after the 1st August 195 1 and would not have a retrospective operation because the investigations conducted up to the 1st August 1951 by the Bombay City Police would certainly not be investigations conducted "under this Chapter" i.e. Chapter XIV of the Criminal Procedure Code. There is no substance therefore in either of these contentions and the question as to admissibility in evidence of the statements made in the course of investigation under the City of Bombay Police Act IV of 1902 would have to be considered in the light of the provisions of section 63 of that Act and not section 162 of the Criminal Procedure Code. It may be noted that the test identification parades in regard to the accused I and 2 were all held prior to the 1st August 1951 and no question could therefore arise as to the provisions of section 162 of the Criminal Procedure Code being applicable to the evidence in 916 I regard to those parades. The test identification parades in regard to accused 4 however were held after the 1st August 1951 between the 16th January and the 22nd January 1952 and it remains to be considered how far the evidence in regard to those parades was admissible in evidence having regard to the provisions of section 162 of the Criminal Procedure Code. There has been a conflict of opinion between various High Courts in regard to the admissibility of evidence in regard to these test identification parades. The Calcutta High Court and the Allahabad High Court have taken the view that identification of a person amounts to a statement within section 162 and that therefore the fact of such identification is not admissible in evidence. *The High Court of Madras and the Judicial Commissioner 's Court at Nagpur have taken the contrary view. In Khabiruddin vs Emperor(1) the question arose as to the admissibility of identification of stolen property during investigation in the presence of police officers and it was held that section 162 embraced all kinds of statements made to a police officer in the course of an investigation that the evidence of the fact of identification is nothing but evidence of the statements which constitute the identification in a compendious and concise form and that therefore any identification of stolen property in the presence of a police officer during investigation was a statement made to a police officer during investigation and was therefore within the scope of section 162. Pointing out by finger or nod of assent in answer to a question was held as much a verbal statement as a statement by word of mouth and no distinction was made between the mental act of the identifier on the one hand and the communication of that identification by him to another on the other. Even the fact of identification by the identifier himself apart from the communication thereof to another was considered to be within the ban of section 162. This decision was commented upon in Surendra Dinda vs Emperor(2). There also the question arose as to the admissibility of the evidence of the sub inspector (1) A.I.R. 1943 Cal. (2) A.I.R. 1949 Cal. 917 of police that the witnesses told him that the articles produced by him were identified by them as their property and the statements by the witnesses themselves A. that they had identified the articles to the sub inspector. It was held that the word "identified" had a ' double meaning. It meant the fact of actual recognition as well as the communication of that fact to a third person. There was distinction between on the one hand the actual fact of identification which is a mental act on the part of the person identifying seeing an object or person and recognizing that the object or person seen was identical with some particular object or person and on the other hand the communication to a third person of this mental act. The communication was of course a statement but the identification by the identifier could not possibly be a statement. The Court however proceeded to observe that no distinction could be legitimately made between an actual verbal statement and some action on the part of the identifier disclosing the fact of his identification. Both were hit by section. The communication of his own mental act of recognition and identification to the police was what was hit but evidence in the Court subsequently by the actual identifier himself was not inadmissible under section 162. The Court further observed that it was not the actual act or process of seeing or recognising the accused in the presence of the officer which was affected by the provisions of the section it was the communication of that fact to the police officer of which proof could not be given. It therefore held that the accused was entitled to ' object to the evidence of the sub inspector that the witnesses "identified" the articles to him or the evidence of the witnesses when they said they "identified" the articles in the presence of the sub inspector in so far as the latter expression was taken to mean and include not only that they recognised the articles as theirs but conveyed the fact of that recognition to the sub inspector. The Allahabad High Court in Daryao Singh vs State(1) followed this decision of the Calcutta High Court in terms without adding any comments of its own. (1) A.I.R. 1952 All. 117 918 These decisions of the Calcutta and the Allahabad High Courts seek to make a distinction between the mental act of identification and the communication of that fact to another person. The mental act of identification is not hit by section 162 but the communication thereof to another person either by an oral statement or even by signs or gestures including the pointing out by finger or nod of assent in answer to a question put to the identifier in that behalf would come within the ban of section 162. Anything which amounts to a communication of the fact of such identification by the identifier to another person is banned and no evidence in respect thereof can be given in a Court of law under section 162. The High Court of Madras on the other hand in In re Kshatri Ram Singh (1) took the view that any evidence about the statements made by witnesses at the identification parades held by the police in the course of investigation was excluded by section 162 but the fact that witnesses had identified persons at parades held by the police might be proved. In coming to this conclusion the High Court followed an earlier decision of a Division Bench reported in Guruswami Thevan vs Emperor (2). In that case an objection had been taken to the admission of a note of an identification parade held by the police Sub inspector. It was contended that the document embodied a record of statements made by identifying witnesses to the sub inspector and as such was inadmissible under section 162. Mr. Justice Wadsworth who delivered the judgment of the Court observed that the question was not without difficulty for in the nature of things it was probable that when a witness identifies a person in a parade he does make some statement or other as to the purpose for which he identifies him and anything said by a witness at an identification parade held by the investigating officer might well be considered to come within the purview of section 162. On the other hand the mere act of a witness in picking out one individual from a parade was a revelant circumstance concerning which evidence is admissible and if the investigating officer made a note of that circumstance which he himself had observed there was no (1) A.I.R. 1941 Mad. 675 (2) 919 apparent reason why that note should not be used in evidence. If in the course of that note he appends an inadmissible record of the statement of the identifying witnesses presumably any such portion of the note ' would have to be excluded from evidence. He applied that criterion to the document in question and the bare note of the personnel of the parade the names of the witnesses the way in which the parade was arranged and the numbers of the persons in the parade identified by each witness were held unobjectionable. 'What was excluded was the statement in regard to the identification of witnesses of the persons as having been concerned in the murder cases which were the subjectmatter of investigation. A distinction was thus made between the physical fact of identification and the statement made by the identifier as regards the persons identified having been concerned in the offence. The Judicial Commissioner 's Court at Nagpur in Ramadhin Brahmin vs Emperor (1) expressed a similar Opinion that evidence of police officers who give evidence with regard to the identification parades which were held and who depose to certain of the accused having been identified by prosecution witnesses in an identification parade was not inadmissible under section 162 as their evidence does not relate to any statement made to the police but is a simple exposition of a fact or circumstances witnessed by themselves. Here also a distinction appears to have been made between the physical fact of identification sought to be proved by the evidence of the police officers and the statements made by the identifier to the police. In order to resolve this conflict of opinion one has to examine the purpose of test identification parades. These parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject matter of the offence or to identify the persons who are concerned in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence. Whether the police (1) A.I.R. 1929 Nag. 920 officers interrogate the identifying witnesses or the Panch witnesses who are procured by the police do so the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject matter of the offence or the persons who are concerned in the offence. If this background is kept in view it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. The identifier may point out by his finger or touch the property or the person. identified may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. The distinction therefore which has been made by the Calcutta and the Allahabad High Courts between the mental act of identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the ban of section 162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of section 162 and would be inadmissible in evidence the only exception being the evidence sought to be given by the identifier him self in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. We therefore approve of the view taken by the Calcutta and Allahabad High Courts in preference to the view taken 921 by the Madras High Court and the Judicial Commissioner 's Court at Nagpur. The learned Attorney General however sought to make a distinction between the statements made to the police officers and the statements made to the Panch witnesses called by the police officers when conducting the test identification parades. He urged that a statement made to the police officers would be within the ban of section 162. But if in spite of the test identification parades having been arranged by the police Panch witnesses were called by the police and they explained to the identifying witnesses the purpose of the parades and the identification was made by the witnesses before them though in the presence of the police officers the Panch witnesses could certainly depose to the fact of identification as also the statement made by the identifying witnesses to them without attracting the operation of section 162. He further urged that in such a case the identification would amount to a statement to the Panch witnesses even though the police officers were present at the time and it would be a question of fact whether the statement was made to the Panch witnesses or to the police officers which question would have to be determined having regard to the circumstances of each case. [Vide Abdul Kader vs Emperor(1) and Rao Shiv Bahadur Singh vs State of Vindhya Pradesh(2)]. He contended that the test identification parades were held in the present case in the presence of the Panch witnesses who were called by the police for witnessing the same that the Panh witnesses explained to each identifying witness the purpose of holding the parade that the identification took place in the presence of the Panch witnesses who noted down the result of the identification that Panchnamas were prepared by the police after the identification was held and were signed by the Panch witnesses and that therefore the identification of the accused by the identifying witnesses amounted to statements made by the identifiers to the Panch witnesses and not to the police and evidence in that behalf given by the Panch witnesses was therefore admissible in evidence. (1) A.I.R. 1946 Cal. (2) 922 This argument would have availed the learned Attorney General if after arranging the test identification parade the police had completely obliterated themselves and the Panch witnesses were left solely in charge of the parade. The police officers would certainly arrange the parade would call the persons who were going to be mixed up with the accused in the course of the parade and would also call the Panch witnesses who were to conduct the parade. But once the Panch witnesses were called for the purpose the whole of the process of identification should be under the exclusive direction and supervision of the Panch witnesses. If the Panch witnesses thereafter explained the purpose of the parade to the identifying witnesses and the process of identification was carried out under their exclusive direction and supervision the statements involved in the process of identification would be statements made by the identifiers to the Panch witnesses and would be outside the purview of section 162. In the case of the identification parades in the present case however the police officers were present all throughout the process of identification and the Panch witnesses appear only to have been brought in there for the purpose of proving that the requirements of law in the matter of holding the identification parades were fully satisfied. Not only were the police officers present when the identifying witnesses were brought into the room one after the other and identified the accused they also prepared 'the Panchnama read out and explained the contents thereof to the Panch witnesses and also attested the signatures of the Panch witnesses which were appended by them at the foot of the Panchnama. The whole of the identification parades were thus directed and supervised by the police officers and the Panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to the holding of the identification parades were satisfied. We feel very great reluctance in holding under these circumstances that the statements if a any involved in the process of identification were statements made by the indentifiers to the Panch witnesses and not to the police officers as 923 otherwise it will be easy for the police officers to circumvent the provisions of section 162 by formally asking the Panch witnesses to be present and contending that the statements if any made by the identifiers ' were to the Panch witnesses and not to themselves. We are therefore of the opinion that the test identification parades in regard to the accused 4 which were held between the 16th January and the 22nd January 1952 attracted the operation of section 162 and the evidence of identification at those parades was inadmissible against accused 4. The question as to the admission of evidence inadmissible under section 27 of the really lies within a narrow compass. The contention in this behalf was based on the evidence of the Investigating Officer Hujur Ahmed Khan that on the 16th May 1951 the accused I made a certain statement in consequence of which he took accused I and 2 to Itawa and leaving the accused 2 there the party proceeded to Bhagwasi with the accused I and his further evidence that the accused 1 there pointed out Baliram who at the instance of accused 1 dug out from a mud house a tin box containing three revolvers and two tins containing live cartridges. Exception was taken to the expressions "in consequence of a certain statement made by accused 1" and "at the instance of accused 1" which it was argued came within the ban of section 27. Section 27 of the runs as under : "Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved. " Section 27 is an exception to the rules enacted in sections 25 and 26 of the Act which provide that no confession made to a police officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate shall be proved as 924 against such person. Where however any fact is discovered in consequence of information received from a person accused of any offence in the custody of a police officer that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not. The expression "whether it amounts to a confession or not" has been used in order to emphasise the position that even though it may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the accused. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact. discovered to which such information is required to relate. [Kottaya vs Emperor(1)]. On a bare reading of the terms of the section it appears that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered. The information would consist of a statement made by the accused to the police officer and the police officer is obviously precluded from proving the information or part thereof unless it comes within the four corners of the section. If the police officer wants to prove the information or a part thereof the Court would have to consider whether it relates distinctly to the fact thereby discovered and allow the proof thereof only if that condition was satisfied. If however the police officer does not want to prove the information or any part thereof section 27 does not come into operation at all. What was stated by the Investigation Officer Hujur Ahmed Khan in the present case was that certain information was supplied to him by the accused 1 in consequence of which he took certain steps. He did not seek to prove that information or any part thereof in the evidence which he gave before the Court. Even when he said that Baliram dug out the tin box from the mud floor of a house at (1) A.I.R. 1947 P.C. 67. 925 the instance of the accused I he did not seek to prove what that information was. The operation of section 27 was therefore not attracted and _prima facie there was nothing to prevent that evidence being admitted against the accused 1. Reliance was however placed on an unreported judgment of Chagla C.J. and Gajendragadkar J. delivered on the 11 th January 1950. in Criminal Appeals No. 454 of 1949 and No. 464 oil 1949 with revisional application No. 952 of 1949 in the case of Rex vs Gokulchand Dwarkadas Morarka No. 1. An exception was there taken to the statement of the police officer that in consequence of certain statements made by the accused I and 2 in that case he discovered the missing pages of the Bombay Samachar of the 23rd April 1948 and it was contended that statement was inadmissible in evidence. The question that really arose for the consideration of the Court there was whether the joint statement attributed to the accused I and 2 in that case was admissible without specifying what statement was made by a particular accessed which led to the discovery of the relevant fact and it was rightly held that a joint statement by more than one accused was not contemplated by section 27 and the evidence of Mistry the police officer in that behalf should therefore have been excluded. An argument was however addressed by the learned Advocate General who appeared for the State there that Mistry had not attempted to prove what statement the accused had made and all that he said was that in consequence of statements made by them a discovery was made. The learned Judges dealt with that argument as under: "In our opinion this is a roundabout and objectionable way of attempting to prove the statements made by the accused without actually proving them. When the police officer speaks of "in consequence of a statement made by an accused a discovery was made" he involves the accused in the discovery. Whether he gives evidence as to the actual words used by the accused or not the connection between the statement made by the accused and the discovery of the relevant fact is clearly hinted at. In our opinion 118 926 therefore evidence cannot be given of any statement made by accused which results in the discovery of a fact unless it satisfies the conditions laid down under section 27 and this would be so even if the actual statement is not attempted to be proved by the prosecution. Even if the statement is not proved the statement must be such as can be proved under section 27." The learned Judges then proceeded to consider the following observations of Rankin C.J. in Durlav Namasudra vs Emperor(1) : "There seems to me to be nothing in section 24 or 25 to prevent evidence being given: 'In consequence of something said by the accused I went to such and such a place and the re found the body of the deceased. ' In cases under section 27 the witness may go further and give the relevant part of the confession." The learned Judges expressed their inability to agree with this view of the law observing that Ran kin C.J. was really dealing academically with the various sections of the and he was not called upon to decide this point. With the utmost respect the learned Judges of the Bombay High Court committed the same error which they thought Rankin C.J. had committed because immediately thereafter they observed: "We would also like to add that in the circumstances of this case this discussion is somewhat academic because even if we accept the contention of the Advocate General and hold that the statement of the investigating officer is admissible it cannot possibly help the prosecution case very much. " What they were considering was the case of a joint statement made by the accused 1 and 2 in that case and these observations made by them expressing their inability to agree with Rankin C.J. 's view of the law were clearly obiter. The evidence of the police officer would no doubt go to show that the accused knew of the existence of the fact discovered in consequence of information given by (1) Cal. 1040 1045. 927 him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith. This circumstance would therefore be quite innocuous and evidence could certainly be given of that circumstance without attracting the operation of section 27. If it were necessary to do so we would prefer to accept the view of Rankin C.J. to the one expressed by the learned Judges of the Bombay High Court. This question as regards the inadmissibility of evidence under section 27 of the must therefore be answered against accused 1. Turning now to the misdirections and non directions such as to vitiate the verdict of the jury the main misdirection which was pointed out by the learned counsel for all the accused before us was in regard to the question whether four or five persons were concerned in the commission of the offence. Particular exception was taken to paragraph 59 of the learned Judge 's charge to the jury: "Brightling Baburao Raje Miss Vida Palmer Mrs. Paterson and witness Sarkari if you were to accept his evidence here on this part of the case were all definite that there were five or more men surrounding the taxi and concerned in the attack while Holmes said that there were at least four if not more which means that he was not certain about the number. If you were to find from the statement of Casey that he saw some men trying to pile into the taxi from the rear door. of the taxi on the Bank side that would suggest that there were at least five men concerned even according to Casey. Consider this question carefully and then if you find after scrutiny of this evidence that there were at least five men conjointly concerned then only section 395 would apply. That briefly was the evidence so far as the question as to the number of men is concerned. " Our attention was drawn to the evidence of these several witnesses and it was pointed out that far from 928 their being definite that there were five or more men concerned in the commission of the offence there was evidence to show that only two persons were occupying the front seats and two persons were occupying the rear seats in the taxi which brought the number of persons to four and not five as contended by the prosecution. Exception was also taken to the manner in which the expression "piling into the taxi from the rear door of the taxi on the Bank side" was sought to be interpreted by the learned Judge thus belittling the significance of the evidence of Major Casey that when the taxi went past him he saw two persons in the front seats and two persons in the rear seats of the taxi. It was further pointed out that according to the evidence of Miss Vida Palmer and Mrs. Paterson there were only five or six persons there in all. Their evidence did not definitely say that these five persons were the persons concerned in the commission of the offence and that some of them might as well have been passersby or Baburao Raje or Sarvarkhan who happened to be present there at the scene of the occurrence and were certainly not concerned in the commission of the offence. It was also pointed out that Holmes the sub manager of the Bank who witnessed the occurrence from behind the double glasses of the windows was not in a position to know how many persons actually took part in the affair and was also not in a position to see how many persons had got into the taxi. We have carefully considered these criticisms of the evidence of the several witnesses but are unable to come to the conclusion that there was any misdirection on the part of the learned Judge in his summing up to the jury. The evidence of each of these witnesses was discussed by the learned Judge and the main defects and con tradictions in their evidence were clearly pointed out by him to the jury. The actual words used by him in the paragraph in question were that the several witnesses were all definite that there were five or more men surrounding the taxi and concerned in the attack and on the evidence as a whole we do not see any exception to the correctness of that statement. The explanation which was given of the expression 929 "piling into the taxi from the rear door of the taxi on the Bank side" was also unobjectionable. The words " piling into the taxi" could certainly be appropriate when describing the getting into the taxi of "some other persons" and. that expression certainly was capable of being understood to mean that more than one person was trying to get into the taxi from its rear door on the Bank side. All these points were clearly put by the learned Judge to the jury and we are of the opinion that there was no misdirection at all in that part of the learned Judge 's summing up to the jury. It was strictly within the province of the jury on the evidence as it was summed up by the learned Judge to them on this aspect of the question to come to the conclusion whether four or five persons were concerned in the commission of the offence and they brought in a unanimous verdict of guilty under section 395 of the Indian Penal Code. The other misdirections which were sought to be pointed out by the learned counsel for the accused I and 2 were minor misdirections if any and need not detain us as we are clearly of the opinion that even though those misdirections were there they were not such as to vitiate the verdict of the jury. We must however advert to the serious misdirection which it was contended was apparent on the face of the learned Judge 's charge to the jury and which was the result of the learned Judge 's not bringing into prominence the various points which could be urged in favour of the accused. It was contended that the learned Judge merely reiterated in various places the story of the prosecution and did not point out the weaknesses or the defects in that story that he did not advert to the various criticisms which were leveled against the story of the prosecution by the counsel for the defence that he did not point out to the jury the improbabilities of the prosecution story or the incredibility of the prosecution witnesses in regard to the salient features of the prosecution case that he did not draw the pointed attention of the jury to the infirmities attaching to the prosecution evidence in regard to the test identification parades and that the learned Judge 's summing up to 930 the jury was on the whole unfair and prejudicial to the accused. Section 297 of the Criminal Procedure Code lays down that in cases tried by jury when the case for the defence and the prosecutor 's reply (if any) are concluded the Court shall proceed to charge the jury summing up the evidence for the prosecution and defence and laying down the law by which the jury are to be guided. The Judge lays down the law and directs the jury on questions of law. So far as the facts are concerned however they are within the exclusive province of the jury. But even there the Judge has to sum up the evidence for the prosecution and defence. Summing up does not mean that the Judge should give merely a summary of the evidence. He must marshall the evidence so as to bring out the lights and the shades the probabilities and the improbabilities so as to give proper assistance to the jury who are required to decide which view of the facts is true. Vide Ilu vs Emperor(1). The Judge should give the jurv the help and guidance which they are entitled to expect from the Judge and which it is his duty to give. The charge should not consist of a long rambling repetition of the evidence without any attempt to marshall the facts under appropriate heads or to assist the jury to sift and weigh the evidence so that they will be in a position to understand which are the really important parts of ' the evidence and which are of secondary importance. It is necessary in every criminal case for the Judge carefully properly and efficiently to charge the jury and he should not go into unnecessary details with regard to such aspects of the case which are really of very little importance. Vide Nabi Khan vs Emperor(2) It has been observed by the Privy Council however in Arnold vs King Emperor(6) that " A charge to a jury must be read as a whole. there are salient propositions of law in it these will of course be the subject of separate analysis. But in a protracted narrative of fact the determination of which is ultimately left to the jury it must needs be that the (1) A.I.R. 1934 Cal. (2) A.I.R. '1936 Cal. (3) Cal. 931 view of the Judge may not coincide with the view of others who look upon the whole proceedings in black type. It would however not be in accordance with usual or good practice to treat such cases as cases of misdirection if upon the general view taken the case has been fairly left within the jury 's province. But in any case in the region of fact their Lordships of the Judicial Committee would not interfere unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred. '? Bearing these principles in mind we have got to scrutinise how far these criticisms levelled against the learned Judge 's charge to the jury are of any avail. We have been taken into the evidence of the several witnesses in great detail by the learned counsel for the accused but we are unable to come to the conclusion that there is any serious misdirection such as to vitiate the verdict of the jury or that there has been a failure of justice. The learned Judge 's charge to the jury has been scrupulously fair and he has in several places brought out the points which militate against the story of the prosecution and support the defence version. He has been at pains to point out the various defects and contradictions in the evidence of the prosecution witnesses and has fairly put it to the jury to consider whether in view of the same they would accept the testimony of the several witnesses. He has marshalled the evidence against each of the accused separately and has also pointed out in their proper places the criticisms which have been levelled against the evidence of the prosecution witnesses in regard to each of the accused Apart from the general observations which he made in regard to the scrutiny of the evidence of the test identification parades he has also in appropriate places reiterated the warning in regard to that evidence and has put the jury wise to the whole position in regard to such evidence. On reading the charge as a whole we are of the opinion that there is nothing in the learned Judge 's charge to the jury which would to use the words of their Lordships of the Privy Council " amount to a complete misdescription of the whole bearing of the evidence" or that "there is any failure of justice 932 We are unable to agree with the submission made by the learned counsel for the accused before us that the charge was grossly unfair or contained any serious misdirection or non direction such as to vitiate the verdict of the jury. The result therefore is that so far as the verdict of the jury against accused I and 2 is concerned the same was not vitiated either by the admission of inadmissible evidence or by any misdirection or non direction. The convictions of these accused and the sentences passed upon them by the learned Sessions Judge will therefore be confirmed. As regards accused 4 however there has been an error of law in admitting evidence of the test identification parades in regard to him which we have held was inadmissible under section 162 of the Criminal Procedure Code. The admission of such inadmissible evidence would amount to a misdirection in the learned Judge 's charge to the jury in regard to that accused and it is necessary therefore to consider what would be the effect of the admission of such inadmissible evidence so far as that accused is concerned. Learned counsel for the accused relied upon the observations in Kabiruddin vs Emperor(1) that it was impossible to ascertain what was the effect of this evidence on the minds of the jury and that it was also impossible to say that this inadmissible evidence did not have considerable effect on the jury and their verdict. He therefore urged that the verdict should be set aside and the case remanded for retrial. A later decision of the Calcutta High Court reported in Surendra Dinda vs Emperor(1) however took the view that every breach of section 162 would not vitiate a trial. Reception of evidence inadmissible under section 162 was not necessarily fatal and in an appeal the Court had to see whether the reception influenced the mind of the jury so seriously as to lead them to a conclusion which might have been different but for its reception. It must always be a question whether prejudice had been caused in such cases and if not whether the materials (1) A.I.R. 1943 Cal. 644 646 (2) A.I. R. 933 left were sufficient within the meaning of section 167 of the . The position in this behalf has got to be considered with reference to the provisions of section 537 of the Criminal Procedure Code and section 167 of the . Section 537 of the Criminal Procedure Code provides: " Subject to the provisions hereinbefore contained no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account. . (d) of any misdirection in any charge to a jury unless such. . . misdirection has in fact . occasioned a failure of justice. " Section 167 of the provides: "The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted there was sufficient evidence to justify the decision or that if the rejected evidence had been received it ought not to have varied the decision. " The latest pronouncement on this question was the decision of the Privy Council in Abdul Rahim vs KingEmperor(1) where it was laid down that where inadmissible evidence had been admitted in a criminal case tried with a jury the High Court on appeal may in view of section 167 of the after excluding such inadmissible evidence maintain 'a conviction provided that the admissible evidence remaining was in the opinion of the Court sufficient clearly to establish the guilt of the accused. It was observed that Misdirection is not in itself a sufficient ground to justify interference with the verdict. The High Court must under the provisions of section 423 subsection 2 and section 537 of the Criminal Procedure Code proceed respectively to consider whether the (1) (1946) L.R. 73 I.A. 77. 119 934 verdict is erroneous owing to the misdirection or whether the misdirection has in fact occasioned a failure of justice. If the Court so finds then its duty is to interfere. In deciding whether there has been in fact a failure of justice in consequence of a misdirection the High Court is entitled to take the whole case into consideration and determine for itself whether there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent one convicted. " This decision was followed by our Court in Mushtaq Husain vs State of Bombay(1) and the Court held that where a jury has been misdirected and has based its verdict on assumptions and conjectures the Supreme Court may order a retrial or remit the case to the High Court with a direction that it should consider the merits of the case in the light of the decision of the Supreme Court and say whether there has been a failure of justice as a result of the misdirections or it may examine the merits of the case and decide for itself whether there has been a failure of justice in the case and that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the Court would be entitled to take the whole case into consideration. This Court discussed the statute law in India which in certain circumstances permitted an appeal against a jury verdict and authorised the appellate Court to substitute its own verdict on its own consideration of the evidence and came to the conclusion that unless it was established in a case that there had been a serious misdirection by the Judge in charging the jury which had occasioned a failure of justice and had misled the jury in giving its verdict the verdict of the jury could not be set aside. What has therefore got to be done in cases where inadmissible evidence has been admitted and has been incorporated in the learned Judge 's charge to the jury is to exclude the inadmissible evidence from the record and consider whether the balance of evidence remaining thereafter is sufficient to maintain the conviction. A question was raised in this connection by the learned Attorney General whether having regard to (1) ; 935 the observations of their Lordships of the Privy Council in Abdul Rahim vs King Emperor (supra) and of this Court in Mushtaq Husain vs State of Bombay (supra) the Court was justified in considering the balance of evidence for itself and substituting its own verdict for the verdict of the jury. He relied upon the observations of the Privy Council approving the decision in Mathews vs Emperor(1) to the effect that the appellate Court was entitled to examine the evidence to see whether it justified the verdict pronounced or whether there had in fact been a failure of justice and also upon the observations of Mr. Justice Mahajan as he then was to the effect that on the materials on record no reasonable body of men could have arrived at the verdict. There is no doubt that these observations occur in the judgments above referred to. But if these judgments are read as a whole they go to show that it is for the Court of Appeal to take the whole case into consideration and determine for itself whether the verdict pronounced by the jury was justified or whether there had been in fact a failure of justice. The merits of the case had to be examined by the Court. of Appeal and the Court had to decide for itself whether the conviction could be maintained. As a matter of fact this very question was mooted before the Privy Council in Abdul Rahim vs KingEmperor(2 ) as under: "The controversy which as the reported cases show has long existed in the High Courts of India has centered round the question whether the appellate court in deciding whether there is sufficient ground for interfering with the verdict of a jury particularly where there has been a misdirection by the judge has the right and duty to go into the merits of the case for itself and on its own consideration of the evidence to make up its mind whether the verdict was justified or not. On the one hand it has been said that the accused is entitled to have his guilt or innocence decided by the verdict of a jury and that the appellate court has no right to substitute its own judgment in place of a verdict by a jury. On the other hand it (1) A.I.R. 1940 Lah. 87. (2) (1946) L.R. 73 I.A. 77 93. 936 is argued that it is impossible for the court to perform the duty laid on it by the Code without applying its own mind to the soundness of the verdict. " Section 537 of the Criminal Procedure Code was then referred to as also the two distinct lines of cases supporting these divergent points of view. The Privy Council then came to the conclusion that the ratio of cases beginning with Elahee Buksh(1) and ending with Mathews vs Emperor(1) was correct and held that the Court was entitled to examine the evidence for itself and see whether it justified the verdict pronounced or whether there had in fact been a failure of justice. The Court of Appeal is thus entitled to substitute its own verdict for the verdict of the jury if on examining the record for itself it comes to the conclusion that the verdict of the jury was erroneous or that there has been a failure of justice in the sense that a guilty man has been acquitted or an innocent man has been convicted. It is therefore necessary to consider whether the balance of evidence on the record after excluding the evidence of test identification parades in regard to accused 4 is sufficient to maintain his conviction. We have been taken through the evidence which wag led on behalf of the prosecution seeking to prove that accused 4 was concerned in the commission of the offence. Baburao Raje was no doubt characterised as an unreliable witness. But even apart from his evidence there was evidence of Sarvarkhan which was sufficient to establish the participation of accused 4 in the offence. His presence at the scene of the occurrence and his participation in the offence was clearly deposed to by Sarvarkhan and we see no reason in spite of the criticisms levelled against his evidence by learned counsel to discard his testimony in that behalf. There is also sufficient evidence of his previous conduct his association with the accused I and 2 his activities in Bombay after he arrived there from Delhi in the beginning of April 1951 in regard to the renting of rooms and garage from Tayabali Vaid and attempting to acquire the Vauxhall and the Chevrolet cars from ' Haribhau and Ramdas respectively his (1) (2) A.I.R. 1940 Lah. 87. 937 conversations with Lalchand and in particular (1) the conversation outside the Sandhurst Road Branch of the Central Bank of India Ltd. and (2) the conversation at Apollo Bunder near the Sea Wall where he accused 1 and Lalchand had gone after having the hair cut at the Taj Mahal Hotel and survey of the site of the Lloyds Bank by him along with the other accused as deposed to by Chinoy and Ramesh Chandra Mehta which make it highly probable that he must have been present at the scene of the occurrence and must have participated in the commission of the offence as deposed to by Sarvarkhan. His subsequent conduct also in leaving Bombay by the Calcutta Mail bound for Allahabad on the night of the 20th April 1951 and the expression of relief at his finding accused 1 at the last moment entering his compartment proved as it is by the evidence of Gogte contrary to his own assertion and the assertion of accused 1 that they had left Delhi for Kanpur on the 18th April 1951 and had sworn an affidavit there before the Magistrate Mr. Tandon also support the same conclusion. All this evidence in our ' opinion is sufficient to establish the case of the prosecution against him and we are satisfied that even excluding the evidence of the test identification parades in regard to him the balance of evidence remaining on record is enough to maintain his conviction. The result therefore is that the appeals of all the accused fail and must stand dismissed. JAGANNADHADAS J. I agree that the appeals should be dismissed. But I consider it necessary to make a few observations as regards the questions debated before us in these cases with reference to section 162 of the Criminal Procedure Code and section 27 of the . I agree that the objection under section 162 of the Criminal Procedure Code to the admissibility of evidence relating to identification parades does not apply to those held prior to the 1st August 1951. The only identification parade therefore objection to the admis. sibility of which requires consideration is that which relates to the fourth accused held in January 1952. 938 The evidence in this behalf has been given by (1) the Police Inspector P.W. 80 Huzur Ahmed Mahomedali Khan (2) the Panch witness P.W. 113 Damodar Dayaram and (3) the two eye witnesses P.Ws. 13 and 15 Baburao Parshram Raje and Sarwarkhan. An attempt has been made to argue before us that while the evidence of the police officer may be inadmissible the evidence of the Panch witness as well as of the identifying witnesses themselves relating to the fact of the prior identification as an item of corroborative evidence is admissible. I agree that on the evidence given in this case there is no scope for such differentiation and that the entire evidence relating to the prior identification parades concerning the 4th accused is in Substance evidence only of the prior statements of the identifying witnesses to the police officer and is hence inadmissible. But I wish to guard myself against being understood as having assented to the suggestion that in law a differentiation can be made in such cases between the three classes of evidence viz. (1) of the police officer (2) of the Panch witness and (3) of the identifying witness himself in so far as they speak to a prior identification at a parade held by the police officer. I am inclined to think that such differentiation is unsound and inadmissible. The legal permissibility thereof is a matter of importance because though the evidence of prior identification is only corroborative evidence still such corroboration is of considerable value in cases of this kind. Next as regards the objection to the admissibility of evidence raised with reference to section 27 of the the main items of evidence are (1) the recovery on the 16th May 1951 of a tin box containing three revolvers and two tins containing live cartridges and (2) the find on the 19th May 1951 of a steel trunk containing Government currency notes of the value of Rs. 6 47 400 on the production thereof by Kamalabai the wife of the first accused at a village Bhagwasi which is her native place. So far as the first is concerned it is not of much consequence because the expert evidence did not show that any of the three bullets which were found at the scene of offence were 939 in fact fired from the three revolvers above recovered and this has been sufficiently indicated in the charge to the jury. It is the second item that is of importance. This arises from the fact that some of the currency notes had identification marks showing that they were part of the bundle of notes which formed the object of the offence. The evidence in this behalf is that of the Police Inspector P.W. 80 which is as follows: "We started from Delhi at about 6 'A.M. and reached Bagwasi at about 2 or 3 P.m. on the 19th of May. The 1st accused took us to a certain house where he pointed out witness Kamala (wife of the first accused). At the instance of the 1st accused witness Kamala brought from somewhere outside that house a steel box. . . When it was opened I found therein six big bundles and five smaller bundles of hundred rupee G. C. Notes. " The portion in this evidence which is objected to is that this production was "at the instance of the first accused" seeking thereby to establish the direct connection of the first accused with the find of this very large sum of money which bears indications that it was out of that lost to the Bank by the offence. It may be that when a police officer speaks to a recovery being "on the information of" or "at the instance of" an accused section 27 of the is not in terms attracted. But what is objected to on behalf of the appellants is that when a police officer speaks to a recovery of this kind as having been "at the instance of an accused" or "in consequence of information given by an accused" he is being allowed to place on record not merely the fact of his having received some information but also the implication thereof viz. that the information is of a character which directly con nects the accused with the objects recovered. It is urged that the prosecution cannot be permitted to rely on such evidence without placing the admissible portion of the information on the record. I am inclined to think that there is considerable force in this objection. The information given by ;in accused in such a situation may be such which if scrutinised shows only his 940 remote connection and not direct connection. In such a situation evidence of the bare fact of information having been given may be inadmissible and such evidence may cause serious prejudice. I am not therefore prepared to say that the view expressed by Chief Justice Chagla in the unreported judgment(1) placed before us is erroneous. I would reserve my opinion in this behalf for fuller consideration. In the present case however even if the evidence of the police officer that the recovery was at the instance of or in consequence of information furnished by the first accused is ruled out there is still the fact spoken to by him that the trunk containing the currency notes was produced by Kamalabai wife of the first accused at her native place. This item of evidence is clearly admissible against the first accused as indicating his connection. Therefore no prejudice can be said to have been caused. It is also to be noticed that no objection under sect ion 27 of the appears to have been taken at the trial nor is there any indication of it in the grounds of appeal to the High Court. In view of our opinion that the evidence of identification parades relating to. the fourth accused was inadmissible we were 'taken through the rest of the evidence as against this accused. I agree on a consideration of that evidence that this is not a case in which interference with the verdict even as against the fourth accused is called for. Appeals dismissed. (i) judgment of the Bombay High Court in Criminal Appeals Nos. 454 and 464 Of 1949 in the case of Rex vs Gobutchand Dwarkadas Morarka No. I delivered on the 11th January 1950.

Investigation in this case was started on the 20th April 1951 under the City of Bombay Police Act (Bombay Act IV of 1902) the provisions of the Code of Criminal Procedure being then inapplicable to Bombay City Police by virtue of section I (2)(a) of the Code. In 1951 the Bombay Police Act (Bombay Act XXII of 1951) was passed by 'which both the Bombay Act IV of 1902 and the provision in section 1(2)(a) of the Code of Criminal Procedure in so far as it made the Code inapplicable to Bombay City Police. were repealed. This Act came into force on 1st August 1951 and after that date the provisions of the Code of Criminal Procedure became applicable to investigations by the Bombay City Police. Under section 63 of the City of Bombay Police Act (Bombay Act IV of 1902) no statement made by a person to a Police Officer during investigation reduced to writing may be need in evidence while under section 162 of the Code of Criminal Procedure the ban applies also to oral statements made to a Police Officer during investigation not reduced to writing. Held that section 162 of the Code of Criminal Procedure by its very context and terms applied to investigations conducted under Chapter XIV of the Code and could not operate retrospectively and apply to investigations conducted prior to 1st August 1951 by the Bombay City Police as they were not investigations conducted under Chapter XIV of the Code. The test identification parades in regard to accused I and 2 having been held prior to the 1st August 1951 section 162 of the Code did not apply to the evidence 904 received in regard to these parades but the section applied to the evidence relating to the test identification parades in regard to accused 4 as these were held after 1st August 1951. Banwari Gope vs Emperor (A.I.R. 1943 Patna 18) and Delhi Cloth Mills vs Income tax Commissioner Delhi (A.I.R. referred to. The purpose of identification parades being to enable witnesses to identify the properties involved or the persons concerned in the offence under investigation the very process of identification involves a statement by the identifying witness that the particular property or person identified was concerned in the offence. This statement may be express or implied. Such a statement whether express or implied including signs and gestures would amount to a communication of the fact of identification by the identifier to another person and where the identifications are held in the presence of the Police such communications are tantamount to statements made by the identifiers to a Police Officer in the course of investigation and come within the ban of section 162 of the Code. The physical fact of identification has no separate existence apart from the statement involved in the very process of identification and in so far as a Police Officer seeks to prove the fact of such identification such evidence would be inadmissible under section 162 of the Code the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identifi cation of the accused at the trial. Where the Police Officers arrange the parade produce the parsons who are to be mixed up with the accused and withdraw leaving the actual parade solely and exclusively in charge of Panch witnesses and the process of identification is carried out under the exclusive direction and supervision of the Panch witnesses the statements involved in the process of identification would be state ments made by the identifiers to the Panch witnesses and would be outside the purview of section 162 of the Code. Khabiruddin vs Emperor (A.I.R. ; Surendra Dinda vs Emperor (A.I.R. ; and Daryoo Singh vs State (A.I.R. 1952 All. 59) approved. In re Kshatri Ram Singh (A.I.R. 1941 Mad. 675); Guruswami Thevan vs Emperor and Bamdhin Brahmin vs Emperor (A.I.R. disapproved. Rao Shiv Bahadur Singh vs State of Vindhya Pradesh ([1954] S.C.R. 1098) and Abdul Kader vs Emperor (A.I.R. 1946 Cal. 452) referred to. Per JAGANNADHADASJ. Differentiation between the evidence of a Police Officer and that of Panch witnesses and identifying witnesses relating to the fact of prior identification in a parade held by a Police Officer on the ground of the latter being corroborative evidence is unsound and inadmissible and the evidence of the 905 Panch witnesses and identifying witnesses relating to the fact of prior identification would be inadmissible even as corroborative evidence. Section 27 of the Indian Evidence Act is based on the view that if a fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Kottaya vs Emperor (A.I.R. 1947 P.O. 67) referred to. Where evidence was given by a Police Officer that "in conse quence of a certain statement made by the accused" and "at the instance of the accused" a tin box was dug out of a mud house and the nature of the statement made or information given by the accused was not sought to be proved section 27 was not attracted and prima facie there was nothing to prevent the evidence being admitted against the accused concerned. Durlav Namasudra vs Emperor ([1931] I.L.R. referred to. Per JAGANNADHADAS J. There is considerable force in the objection that when a Police Officer speaks to a discovery being made "at the instance of the accused" or "in consequence of information given by the accused" the prosecution cannot be permitted to rely on such evidence without placing the admissible portion of the information on record. The information given by the accused in such a situation may be such as on scrutiny might show only his remote connection and not direct connection with the objects recovered. In such a situation evidence of the bare fact of information having been given may cause serious prejudice. Summing up to the Jury does not mean merely giving a summary of the evidence. The Judge should marshall the evidence so as to bring out the lights and the shades the probabilities and improbabilities so as to give proper assistance to the Jury who are to decide which view of the facts is true. The charge should not consist of along rambling repetition of the evidence without any attempt to marshall the facts under appropriate heads or to assist the Jury to sift and weigh the evidence so that they may be in A. position to understand which are the really important parts of the evidence and which are of secondary importance. Ilu vs Emperor (A.I.R. and Nabi Khan vs King Emperor (A.I.R. referred to. Held that as regards accused 4 there had been an error of law in admitting evidence of the test identification parades relating to him. The admission of such inadmissible evidence would amount to a misdirection; but misdirection by itself would not be a ground for reversal under a. 537 of the Code unless such misdirection had in fact occasioned a failure of justice nor is reception 906 of evidence inadmissible under section 162 of the 'Code necessarily fatal. The Appellate Court has to see whether the reception of inadmissible evidence influenced the mind of the Jury so seriously as to lead them to a conclusion which might have been different but for its reception. What the Appellate Court should do is to exclude the inadmissible evidence from the record and consider whether the balance of evidence is sufficient to maintain the conviction. The Court of Appeal should take the whole case into consideration and determine for itself whether the verdict of the Jury was justified or whether there had in fact been a failure of justice. The Court of Appeal is entitled to substitute its own verdict for the verdict of the Jury if on examining the record for itself it comes to the conclusion that the verdict of the Jury was erroneous or that there had been a failure of justice in the sense that a guilty man has been acquitted or an innocent man his been convicted. Abdul Rahim vs King Emperor ((1946) L.R. 73 I.A. 77 Mushtaq Hussain vs State of Bombay ([19531 S.C.R. 809) Ilu vs Emperor (A.I.R. 1934 Cal 847); Nabi Khan vs Emperor (A.I.R. ; Khabiruddin vs Emperor (A.I.R. 1943 Cal. 644) ; Surendra Dinda vs Emperor (A.I.R. and Mathews vs Emperor (A.I.R. 1940 Lahore 87) referred to.

Appeal No. 145 of 1953. Appeal by Special Leave from the Judgment and Order dated the 8th day of September 1950 of the High Court of Judicature for the State of Punjab at Simla in Civil Reference No. 3 of 1949. Achhru Ram (R. section Narula and Naunit Lal with him) for the appellants. M. C. Setalvad Attorney General for India (G. N. Joshi and P. G. Gokhale with him) for the respondent. October 25. The Judgment of the Court was delivered by DAS J. This appeal by special leave arises out of a consolidated reference made on the 19th April 1949 under section 66(1) of the Indian Income tax Act read with section 21 of the Excess Profits Tax Act by the Income tax Appellate Tribunal Madras Bench. The reference arose out of four several proceedings for assessment to excess profits tax of the appellant the chargeable accounting periods being periods ending with 31st March of each of the years 1942 1943 1944 and 1945. The relevant facts appearing from the consolidated statement of the case are as follows: Narain Swadeshi Weaving Mills the appellant before us (hereinafter referred to as the assessee firm) is a firm constituted in 1935 upon terms and conditions set forth in a deed of partnership dated the 6th November 1935. The partners were Narain Singh and two of his sons Ram Singh and Gurdayal Singh their respective shares in the partnership being 6 annas 5 annas and 5 annas. The business of the firm which was carried on 954 at Chheharta Amritsar in the Punjab was the manufacture of ribbons and laces and for this purpose it owned buildings plant machinery etc. On the 7th April 1940 a public limited liability company was incorporated under the name of Hindus tan Embroidery Mills Ltd. The objects for which the company was established were to purchase acquire and take over from the assessee firm the buildings and leasehold rights plant machinery etc. on terms and conditions mentioned in a draft agreement and the other objects set forth in the Memorandum of Association of the said company. Out of the total subscribed capital represented by 41 000 shares 23 000 shares were allotted to the assessee firm. Of these 23 000 shares so allotted 20 000 shares were not paid for in cash but the remaining 3 000 shares were paid for in cash. The directors of the company were Narain Singh and his three sons Ram Singh Gurdayal Singh and Dr. Surmukh Singh and one N. D. Nanda a brother in law of Gurdayal Singh. Dr. Surmukh Singh was at all material times residing in South Africa. These 4 directors between themselves hold 33 340 shares including the said 23 000 shares. The company was accordingly a director controlled company. The funds available to the company were not sufficient to enable it to take over all the assets of the assessee firm. The company therefore purchased only the buildings and the leasehold rights therein but took over the plant machinery etc. on lease at an annual rent of Rs. 40 000. On the 28th July 1940 the company executed a managing agency agreement in favour of Uppal & Co. a firm constituted on the same day with Ram Singh and Gurdayal Singh two of the sons of Narain Singh as partners with equal shares. Under the managing agency agreement dated the 28th July 1940 Uppal & Co. was to be paid 10% of the net profits of the company besides salary and other allowances mentioned therein. On the 25th January 1941 the company appointed as its selling agent Ram Singh & Co. a firm which 955 came into existence on the same day with Ram Singh Gurdayal Singh and Dr. Surmukh Singh the three sons of Narain Singh as partners each having an one third share. The terms of this partnership were recorded in writing on the 17th March 1941. Ram Singh & Co. was to get a commission of 3% on the net sales and 6% on the gross income of the company. In the two new firms so constituted Narain Singh had no share and eventually with a view to make up for his loss the shares of the partners in the assessee firm were modified by an agreement made by them on the 21st April 1941. Under this agreement Narain Singh was to get a 12 annas share and the two sons Ram Singh and Gurdayal Singh 2 annas share each. All the three firms mentioned above namely the assessee firm Uppal & Co. and Ram Singh & Co. were registered as firms under section 26A of the Indian Income tax Act. On the facts summarised above the Excess Profits Tax Officer came to the conclusion that the main purpose of the formation of the company and the two firms of Uppal & Co. and Ram Singh & Co. was the avoidance of liability to excess profits tax. Accordingly on the 16th November 1944 the Excess Profits Tax Officer issued notices under section 10A of the Excess Profits Tax Act to the company and the three firms. Eventually however the proceedings against the company were dropped and the Excess Profits Tax Officer considered the case of the three firms only. He held that the three firms were really one and he therefore amalgamated the income of all three and proceeded to assess the assessee firm to excess profits tax on that basis for the four several chargeable accounting periods mentioned above. Under sub section (3) of section 10 A the assessee company preferred four several appeals to the Appellate Tribunal. In their order the Appellate Tribunal considered the four following issues: (1)Whether the income of the firms styled as "Uppal & Co. and Ram Singh & Co. could be amalgamated with the income of the assessee firm 956 under the provisions of section 10 A of the Excess Profits Tax Act ? (2) Whether the share of income of Dr. Surmukh Singh, a partner in the selling agency of Ram Singh & ,Co., could be included under section 10 A in the excess profits tax assessment of the assessee firm ? (3) Whether the lease money obtained by the assessee firm could be legally treated as business profits liable to excess profits tax ? (4) Whether proper opportunity under section 10 A had been given to the assessee firm? Before the Appellate Tribunal as before the Excess Profits Tax Officer the assessee firm objected to the application of the provisions of section 10 A of the Excess Profits Tax Act. The contention was. that as the assessee firm did not during the relevant chargeable accounting periods carry on any business within the meaning of section 2(5) of the Excess Profits Tax Act section 10 A had no application and therefore the profits of Uppal & Co. and Ram Singh & Co. could not be amalgamated with its own income. In other words the argument was that there must be an existing business of an assesses during the relevant period before section 10 A could be applied in respect of transactions concerning that business. The Appellate Tribunal took the view that instead of using the plant machinery etc. for its own manufacture the assessee firm turned that revenue yielding asset into another use by lettinh it out on an annual rent of Rs. 40 000 and that this was certainly an adventure in the nature of trade as contemplated by section 2(5) of the Excess Profits Tax Act read with rule 4 of Schedule I thereto. Accordingly it decided issue No. 3 against the assessee firm holding that the assessee firm carried on business in the letting out of the plant machinery etc. on hire and the lease money obtained thereby could be legally treated as business profits liable to excess profits tax. On issue No. I the Appellate Tribunal agreed with the Excess Profits Tax Officer that it was evident beyond doubt that a definite scheme was adopted creating separate charges in order to avoid excess profits tax 957 by the three firms namely the assessee firm Uppal & Co. and Ram Singh & Co. taken together. Thefirst step in the scheme was the formation of the company. The second step was the appointment of Uppal & Co. as managing agents instead of appointing the assessee Tfirm itself. The third step was the creation of the firm Ram Singh & Co. for taking up the selling agency of the company and the final step was to adjust the shares of the partners of the assessee firm so as to equalise as far as possible the share of Narain Singh with the shares which his sons got in the several firms. The Appellate Tribunal held that all the various steps noted above need not necessarily have been fictitious or artificial but they were certainly transactions so as to attract the operation of section 10 A. The Appellate Tribunal decided issues Nos. 2 and 4 against the assessee. All the four appeals were accordingly dis missed by the Appellate Tribunal. The assessee firm thereupon preferred four several applications under section 66(1) of the Income tax Act read with section 21 of the Excess Profits Tax Act praying that the following questions arising out of the order of the Appellate Tribunal be referred to the High Court : (1) Whether under the facts and circumstances of the case the application of section 10 A with a view to amalgamating the income of the firms "Uppal & Co." and "Ram Singh & Co." with the income of the appellant firms was correct and valid in law ? (2) Whether in view of the facts admitted on record the share of income of Dr. Surmukh Singh a partner in the selling agency and not a partner in the appellant firm could be legally included along with the share of income of section Ram Singh and section Gurdial Singh and is this inclusion at all within the purview of section 10 A ? (3) Whether in view of the facts circumstances and observations on record the lease money obtained by the appellant firm could be legally treated as business profits or profits from an adventure in trade liable to excess profits tax ? 122 958 (4) Whether the type of a notice served on the appellant under the facts and the circumstances of the case legally amounts to a proper opportunity under section 10 A of the Excess Profits Tax Act and if not what is the legal effect of such opportunity being not afforded ? (5) Whether the proceedings under section 1O A were not null and void ab initio for want of necessary previous sanction from the Inspecting Assistant Commissioner of Excess Profits Tax the fact of such previous sanction having been obtained being neither mentioned in the order nor proved before the Appellate Tribunal at the time of hearing although expressly required by the Court. The Appellate Tribunal declined to refer questions (4) and (5) sought to be raised by the assessee firm and no grievance has been made before us on that score. The Appellate Tribunal referred the earlier three questions after reframing the same so as to read as follows : (1) Whether there is any evidence before the Tribunal to support the conclusion that the main purpose of the transactions was the avoidance of excess profits tax ? (2) Whether on the facts admitted or proved the share of income of Dr. Surmukh Singh in the firm of Ram Singh & Co. can be legally included along with the share of income of Ram Singh and Gurdayal Singh ? (3) Whether on the facts and circumstances of the case the leasing of machinery etc. by the assessee firm to the company was a business within the meaning of section 2(5) of the Excess Profits Tax Act ? The learned counsel appearing for the assessee firm submitted before the High Court that the third of the referred questions should be discussed and decided first but the High Court took the view that the decision of the first question was a necessary preliminary to the consideration of the third question. Taking up then the first question first the High Court referred to the several facts found by the Appellate Tribunal and 959 described as steps and regarding them as circumstantial evidence came to the conclusion that it could not be said that there was no evidence upon which the Tribunal was justified in coming to the conclusion that the formation of the firms Uppal & Co. and Ram Singh & Co. was mainly for the purpose of avoidance or reduction of liability to excess profits tax. In the result the High Court held that the three firms the assessee firm Uppal & Co. and Ram Singh & Co. were in fact one and the same and on that basis proceeded next to take up the third question. After referring to section 2(5) and certain judicial decisions the High Court concluded as follows: " The argument of Mr. Pathak when applied to the present case would have force were it a fact that the sole concern of the assessee firm was the receipt of hire of machinery from a company or firm in which the assessee firm had Do interest. But this is not the state of affairs. On the finding under the first question referred the assessee firm the firm of managing agents and the firm of selling agents are really one and the same firm. This firm and its partners held the majority of shares in the company. The agreement for payment of Rs. 40 000 as rent of machinery is an agreement between the assessee firm and the company which the assessee firm controls. The business of the assessee firm was and in effect still is the manufacture of ribbons and laces and the receipt of Rs. 40 000 is a profit from that business diverted into the pockets of the assessee firm. " The High Court accordingly answered the third question in the affirmative and against the assessee firm. The necessary certificate of fitness for appeal to this Court having been refused by the High Court the assessee firm obtained special leave of this Court to prefer the present appeal. The learned counsel appearing for the assessee firm has submitted before us and we think rightly that the approach of the High Court was erroneous in that they took up the discussion of question No. I first. That question as framed proceeded on the assumption 960 that section 1O A applied to the case and only raised the question as to whether there was any evidence to support the finding of the Appellate Tribunal arrived at as a result of the enquiry under that section namely that the main purpose of the transaction was the avoidance of excess profits tax. The long title and the preamble of the Excess Profits Tax Act refer to the imposition of tax on excess profits arising out of certain businesses. Section 4 which is the charging section and section 5 which lays down the application of the Act to certain business clearly postulate the existence of a business carried on by the assessee on the profits of which the excess profits tax can be imposed. Therefore if there is such a business during the relevant period then and then alone can arise the question of the applicability of section 10 A. If there is no such business as is contemplated by the Act then the Act does not apply and section 10 A cannot come into operation at all. Before the Excess Profits Tax Officer can embark upon an enquiry as to whether a transaction was effected for the avoidance or reduction of liability to excess profits tax and to make such adjustments as he considers appropriate_ there must be proof that the assessee was during the chargeable accounting period carrying on any business of the kind referred to in section 5 of the Act. Logically therefore the Appellate Tribunal as well as the High Court should have taken up question No. 3 first for on a decision of that question would depend the applicability of section 1O A and if that question were answered in favour of the assessee firm the further question of law as raised in question No. I would not in such event arise. The approach of the High Court was therefore logically misconceived on the facts of this case. What then are the facts found by the Appellate Tribunal apart from its findings under section 10 A ? The findings are that after the formation of the company the assessee firm was left with no business at all. The company purchased the leasehold rights in the lands and buildings where the plant machinery etc. were installed. The firm as such ceased to manufacture any ribbons and laces. It was left with the plant 961 machinery etc. which it did not require and which ceased to be a commercial asset in its hands for it had no longer any manufacturing business at all. Further the assessee firm had put it out of its power to use the plant machinery etc. for it had no right in the lands and buildings where the plant machinery etc. had been installed. In these circumstances the assessee firm let out the plant machinery etc. to the company. It was thenceforth the company which was carrying on the business of manufacturing ribbons and laces and for that purpose hired the plant machinery etc. from the assesee firm. Prima facie it was the company which appointed the managing agents and the selling agents. Ex facie and apart from the alleged result of any enquiry under section 10 or section 1O A of the Excess Profits Tax Act those were not transactions of the assessee firm. The assessee firm was therefore left only with some property which at one time was a commercial asset but had ceased to be so. The assessee firm thereupon let out that property on rent. The question is whether such letting out in such circumstances amounted to carrying on of a business. "Business" as defined in section 2(5) of the Excess Profits Tax Act includes amongst others any trade commerce or manufacture or any adventure in the nature of trade commerce or manufacture. The first part of this definition of "a business" in the Excess Profits Tax Act is the same as the definition of a business in section 2(4) of the Indian Income tax Act. Whether a particular activity amount to any trade commerce or manufacture or any adventure in the nature of trade commerce or manufacture is always a difficult question to answer. On the one hand it has been pointed out by the Judicial Committee in Commissioner of Income tax vs Shaw Wallace & Co.(1) that the words used in that definition are no doubt wide but underlying each of them is the fundamental idea of the continuous exercise of an activity. The word "business" connotes some real substantial and systematic or organised course of activity or conduct with a set purpose. On the other hand a single and (1) Cal. 962 isolated transaction has been held to be conceivably capable of falling within the definition of business as 'being an adventure in the nature of trade provided the transaction bears clear indicia of trade. The question therefore whether a particular source of income is business or not must be decided according to our am ordinary notions as to what a business is. The case of Commissioner of Excess Profits Tax Bombay City vs Shri Lakshmi Silk Mills Ltd.(1) decided by this Court is clearly distinguishable. There the respondent company which was formed for the purpose of manufacturing silk cloth installed a plant for dying silk yarn as a part of its business. During the relevant chargeable accounting period owing to difficulty in obtaining silk yarn on account of the war it could not make any use of this plant and it remained idle for some time. In August 1943 the plant was let out to another company on a monthly rent. The question arose whether the income received by the respondent company in the chargeable accounting period by way of rent was income from business and assessable to excess profits tax. It should be noted that in that case the respondent company was continuing its business of manufacturing silk cloth. Only a part of its business namely that of dying silk yarn had to be temporarily stopped owing to the difficulty in obtaining silk yarn on account of the war. In such a situation this Court held that part of the assets did not cease to be commercial assets of that business since it was temporarily put to different use or let out to another and accordingly the income from the assets would be profits of the business irrespective of the manner in which that asset was exploited by the company. This Court clearly indicated that no general principle could be laid down which would be applicable to all cases and that each case must be decided on its own circumstances according to ordinary common sense principles. In the case before us the assessee firm 's business had entirely closed. It no longer 'manufactured any ribbons and laces. It had accordingly no further trading or commercial activity. It could not in fact use the plant machinery etc. (1) ; 963 after the land and the buildings where they were installed had been sold to the company. In these circumstances the assessee firm let out the plant machinery etc. on an annual rent of Rs. 40 000. These facts are very similar to those found in Inland. Revenue Commissioners vs Broadway Car Co. Ltd.(1). There the war conditions bad reduced the company 's business to very small proportions. In that situation it was observed that in that case the company dealt with part of its property which bad become redundant and was sublet purely to produce incomes transaction quite apart from the ordinary business activities of the company. The ratio decides in that case which was noticed in the judgment of this Court appears to us to apply to the facts found in the present case apart from the findings Under section 10 A. Applying also the common sense principle to the fact so found it is impossible to hold that the letting out of the plant machinery etc. was at all a business operation when its normal business activity had come to a close. It is interesting to note that sub sections (3) and (4) of section 12 of the Indian Income tax Act recognise that letting out of plant machinery etc. may be a source of income falling under the head "other sources" within that section and not necessarily under the head "business" dealt with in section 10 of that Act. In the facts and circumstances of this case therefore the letting out of the plant machinery etc. cannot be held to fall within the body of the definition of "business" under section 2(5) of the Excess Profits Tax Act. In this view of the matter it is not necessary for us to express an opinion as to the meaning or implication of the proviso to that definition or rule 4(4) of Schedule I to the Act. In our opinion in the facts and circumstances of this case question No. 3 should have been answered in the negative. The question of law raised in the third question being answered in favour of the assessee firm the question of the applicability of section 1O A of the Excess Profits Tax Act could not arise for the assessee firm having during the relevant period no business to which that (1) 964 Act applied section 1O A could not be invoked by the revenue and therefore the question whether there was "evidence to support the finding of the Tribunal under that section could not arise. On the contrary the further question of law which would really arise out of the order of the Appellate Tribunal consequent upon the aforesaid answer to question No. 3 would be whether under the facts and circumstances of the case the application of section 1O A with a view to amalgamating the income of the firms Uppal & Co. and Ram Singh & Co. with the income of the assessee firm was correct and valid in law and that was precisely the first question which the assessee firm sought to raise by its application. In our view the High Court should not only have answered question No. 3 in the negative but should also have raised as a corollary to that answer to question No. 3 the further question of law on the lines indicated in question No. I of the assessee 's petition. In other words the High Court should have after answering question No. 3 in the negative reframed the referred question No. I by restoring question No. 1 as suggested by the assessee firm in its petition and should have answered the question so restored in the negative and in favour of the assessee. For the reasons stated above we allow this appeal reframe question No. I by restoring the first question suggested by the assessee firm namely " Whether under the facts and circumstances of the case the application of section 1O A with a view to amalgamating the income of the firms Uppal & Co. and Ram Singh & Co. with the income of the appellant firm was correct and valid in law?" and we answer the question so reframed in the negative. Question No. 2 must be answered in the negative and in favour of the assessee by way of necessary corollary. We also answer question No. 3 in the negative. The appellant will be entitled to the costs of this appeal and we order accordingly.

As condition precedent to the applicability of section 10 A of the Excess Profits Tax Act 1940 it must be proved that during the chargeable accounting period the assessee was carrying on the kind of business to which the Act applies by virtue of section 5 of the Act. Section 2(5) of the Act states what is included in the word "business". It is not possible to lay down a general definition which would cover all cases of business. Business involves the fundamental idea of a continuous activity. It connotes some real substantial and systematic or organised course of activity with a set purpose. Single isolated transaction may also bear the clear indicia of trade or an adventure in the nature of trade which is included in the word "buisiness" mentioned in section 2(5) of the Act. Hence whether a particular source of income is business or not must be decided on the facts and circumstances of each case according to our ordinary conception of business. Since 1935 the assessee firm carried on the business of manufacturing ribbons and laces and for this purpose owned buildings leasehold rights plant machinery etc. On April 7 1940 a public limited liability company was incorporated with the object of acquiring and taking over the buildings leasehold rights plant machinery etc. from the assessee firm. The company purchased leasehold rights in the lands and buildings where plant machinery etc. were installed. The assesses firm as such ceased to manufacture ribbons and laces and was left with plant and machinery etc. which it did not require and which ceased to be commercial asset in the hands of the firm. The land and the buildings having been sold the assessee firm put it out of its power to use the plant machinery etc. In these circumstances the company took and the assessee firm granted a lease of the plant machinery etc. at an annual rent of Rs. 40 000. Held that this lease of the plant machinery etc. given by the assesses firm could not be "business" within the meaning of section 2(5) of the Excess Profits Tax Act 1940. 953 Commissioner of Excess Profits Tax Bombay City vs Shri Lakshmi Silk Mills Ltd. ([1952] S.C.R. 1) distinguished. Inland Revenue Commissioner vs Broadway Car Co. Ltd. ([1946] 2 A.E.R. 609) relied upon. Commissioner of Income tax vs Shaw Wallace & Co. ([1932] I.L.R. referred to.

iminal Appeal No. 61 of 1953. Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 7th August 1952 of the High Court of Judicature for the State of Punjab at Simla in Criminal Revision No. 78 of 1952 arising out of the case reported by the District Magistrate Jullundur with his No. 301 M.D. Reader dated the 9th January 1952 for revision of the Order dated the 20th July 1951 of Magistrate 1st Class. section M. Sikri Advocate General for the State Of Punjab (Porus A. Mehta and P. G. Gokhale with him) for the appellant. N. section Bindra for the respondent. October 20. The Judgment of the Court was delivered by MUKHERJEA J. This appeal which has come before us on a certificate granted by the High Court of the State of Punjab at Simla under article 134 (1)(c) of the Constitution raises a short point of law. On the 3rd of March 1948 an Ordinance (being Ordinance No. VII of 1948) was promulgated by the Governor of East Punjab under section 88 of the Government of India Act 1935 making provisions for the registration of land claims of the East Punjab refugees. On the 17th March 1948 the respondent Mohar Singh who pur ports to be a refugee from West Pakistan filed a claim in accordance with the provisions of this Ordinance stating therein that he had lands measuring 104 kanals situated within the district of Mianwali in West Punjab. On the 1st of April 1948 this Ordinance was repealed and Act XII of 1948 (hereinafter called 'the Act ') was passed by the East Punjab Legislature re enacting all the provisions of the repealed Ordinance. The claim filed by the respondent was investigated in due course and it was found after enquiry that the statement made by him was absolutely false and that as a matter of fact there was no land belonging to him in West Pakistan. Upon this a prosecution was started against him on the 13th of May 1950 under section 7 of the 895 Act which makes it an offence for any person to submit with regard to his claim under the Act any information which is false. The accused was tried by section Jaspal Singh Magistrate First Class Jullandur before whom he confessed his guilt and pleaded for mercy. The trying Magistrate by his order dated the 20th of July 1951 convicted the respondent under section 7 of the Act and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 120 in default of which he was to suffer rigorous imprison ment for one month. The District Magistrate of Jullundur considered the sentence to be inadequate and referred the case to the High Court at Simla under section 438 of the Criminal Procedure Code with a recommendation that a deterrent sentence might be imposed upon the accused. The matter first came up before a single Judge of that Court and a preliminary point was raised on behalf of the respondent that it was not within the competence of the trying Magistrate to convict him at all under the provisions of the Act as the offence was committed against the Ordinance before the Act came into force and the prosecution was started long after the Ordinance had come to an end. Having regard to the diversity of judicial opinion on the point the single Judge referred the case for decision by a Division Bench. The learned Judges constituting the Division Bench accepted the contention raised on behalf of the respondent and by their judgment dated the 7th of August 1952 set aside the conviction of the respondent and the sentence imposed upon him under section 7 of the Act. It is against this judgment that the present appeal has been taken to this Court by the State of Punjab. It is not disputed that the respondent did submit with regard to the claim filed by him under the provisions of the Ordinance an information which was false and that such act was punishable as an offence under section 7 of the Ordinance. The Ordinance however was repealed soon after the filing of the claim and was substituted by the Act which incorporated all the provisions of the Ordinance. The High Court in deciding the case in favour of the respondent proceeded on the 896 ground that as Act XII of 1948 was not in existence at the date when the claim was filed by the respondent he could not possibly be convicted of an offence under a law which was not in force at the time of the commission of the offence. The State Government attempted to meet this argument by invoking the provisions of section 6 of the which is in the same terms as section 4 of the Punjab . Section 6 of the lays down the effect of the repeal of an enactment. The section runs thus "6. Where this Act or any Central Act or regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall not (c)affect any right privilege obligation or liability acquired accrued or incurred under any enactment so repealed ; or (d)affect any penalty forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid. " On the strength of this provision in the it was contended on behalf of the State that the repeal of the Ordinance could not in any way affect the liability already incurred by the respondent in respect of an offence committed against the provisions of the Ordinance and any penalty or punishment consequent thereon. The learned Judges of the High Court negatived this contention by holding that section 6 of the could be attracted only when an Act or regulation is repealed simpliciter but not when as in the present case the repeal is followed by re enactment. The Repealing Act it is pointed out reproduces the provisions of the Ordinance in their entirety but it 897 nowhere provides that offences committed when the Ordinance was in force could be punished after its repeal. The language of section 11 of the Act which contains its saving provisions does not it is said indicate that a criminal liability incurred when the Ordinance was in force would continue after it came to an end. It is the propriety of this view that has been challenged before us in this appeal. It is not disputed that in the present case the prose caution was started against the respondent under section 7 of the Act and not under the corresponding provision of the Ordinance. The offence was committed at a time when the Act was not in force and obviously no man could be prosecuted or punished under a law which came into existence subsequent to the commission of the offence. But this by itself 'Might not raise any serious difficulty for the Court would have ample authority to alter the conviction of the accused under the Act to one under the Ordinance which contained the identical provision provided he could be prosecuted and punished under the Ordinance after it was repealed and this is the material point that requires consideration in this case. Under the law of England as it stood prior to the Interpretation Act of 1889 the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed except for the purpose of those actions which were commenced prosecuted and concluded while it was an existing law(1). A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right(1). To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on to dispense with the necessity of having to insert a saving clause on each occasion (1) Vide Craies on Statute Law 5th edn page 323. (2) Vide Crawford on Statutory Construction page 599 600. i 898 section 38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation legal proceeding or remedy may be instituted continued or enforced in respect of any right liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the as is well known is on the same lines as section 38(2) of the Interpretation Act of England. Under section 30 of the which corresponds to section 27 of the Punjab Act the provisions of the Act are applicable to Ordinances as well. Of course the consequences laid down in section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute which is of a temporary nature automatically expires by efflux of time. The Ordinance in the present case was undoubtedly a temporary statute but it is admitted that the period during which it was to continue had not expired when the Repealing Act was passed. The repeal therefore was an effective one which would normally attract the operation of section 6 of the . The controversy thus narrows down to the short point as to whether the fact of the repeal of the Ordinance being followed by reenactment would make the provision of section 6 of the inapplicable to the present case. The High Court in support of the view that it took placed great reliance upon certain observations of Sulaiman C.J. in Danmal Parshotamdas vs Baburam(1). The question raised in that case was whether a suit by an unregistered firm against a third party after coming into force of section 69 of the Partnership Act would be barred by that section in spite of the saving clause contained in section 74(b) of the Act. The Chief Justice felt some doubts on the point and was inclined to hold that section 74(b) would operate to save the suit although the right sought to be enforced by it had (1) All. 899 accrued prior to the commencement of the Act; but eventually he agreed with his colleague and held that section 69 would bar the suit. While discussing the provision of section 74(2) of the Partnership Act in course of his judgment the learned Chief Justice referred by way of analogy to section 6(e) of the and observed as follows at page 504: It seems that section 6(e) would apply to those cases only where a previous law has been simply repealed and there is no fresh legislation to take its place. Where an old law has been merely repealed then the repeal would not affect any previous right acquired nor would it even affect a suit instituted subsequently in respect of a right previously so acquired. But where there is a new law which not only repeals the old law but is substituted in place of the old law section 6(e) of the is not applicable and we would have to fall back on the provisions of the new Act itself. These observations could not undoubtedly rank higher than mere obiter dictum for they were not at all necessary for purposes of the case though undoubtedly they are entitled to great respect. In agreement with this dictum of Sulaiman C.J. the High Court of Punjab in its judgment in the present case has observed that where there is a simple repeal and the Legislature has either not given its thought to the matter of prosecuting old offenders or a provision dealing with that question has been inadvertently omitted section 6 of the will undoubtedly be attracted. But no such inadvertence can be presumed where there has been a fresh legislation on the subject and if the new Act does not deal with the matter it may be presumed that the Legislature did not deem it fit to keep alive the liability incurred under the old Act. In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment the consequences laid down in section 6 of the will follow unless as the section itself says a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the 900 repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case. The offence committed by the respondent consisted in filing a false claim. The claim was filed in accordance with the provision of section 4 of the Ordinance and under section 7 of the Ordinance any false information in regard to a claim was a punishable offence. The High Court is certainly right in holding that section 11 of the Act does not make the claim filed under the Ordinance a claim under the Act so as to attract the operation of section 7. Section 11 of the Act is in the following terms: " The East Punjab Refugees (Registration of Land Claims) Ordinance No. VII of 1948 is hereby repealed and any rules made notifications issued anything done any action taken in exercise of the powers conferred by or under the said Ordinance shall be deemed to have been made issued done or taken in exercise of the powers conferred by or under this Act as if this Act had come into force on 3rd day of March 1948. " We agree with the High Court that the expression "anything done" occurring in the section does not mean or include an act done by a person in contravention of the provisions of the Ordinance. What the section contemplates and keeps alive are rules notifications or 901 other official acts done in exercise of the powers conferred by or under the Ordinance and these powers are mentioned in several sections of the Act. But although the lodging of the claim does not come within the purview of section 11 of the Act we are of opinion that the proviso to section 4 of the Act clearly shows that a claim filed under the Ordinance would be treated as one filed under the Act with all the consequences attached thereto. Section 4 of the Act provides for the registration of land claims. The first subsection lays down how the claim is to be filed. The proviso attached to it then says that "a refugee who has previously submitted a claim under Ordinance VII of 1948 to any other authority competent to register such claim shall not submit another claim in respect of the same land to the Registering Officer. " Such claim would be reckoned and registered as a claim under the Act and once it is so treated the incidents and corollaries attached to the filing of a claim as laid down in the Act must necessarily follow. The truth or falsity of the claim has to be investigated in the usual way and if it is found that the information given by the claimant is false he can certainly be punished in the manner laid down in sections 7 and 8 of the Act. If we are to hold that the penal provisions contained in the Act cannot be attracted in case of a claim filed under the Ordinance the results will be anomalous and even if on the strength of a false claim a refugee has succeeded in getting an allotment in his favour such allotment could not be cancelled under section 8 of the Act. We think that the provisions of sections 4 7 and 8 make it apparent that it was not the intention of the Legislature that the rights and liabilities in respect of claims filed under the Ordinance shall be extinguished on the passing of the Act and this is sufficient for holding that the present case would attract the operation of section 6 of the . It may be pointed out that section 1 1 of the Act is somewhat clumsily worded and it does not make use of expressions which are generally used in saving clauses appended to repealing statutes; but as has been said above the point for our 902 consideration is whether the Act evinces an intention which is inconsistent with the continuance of rights and liabilities accrued or incurred under the Ordinance and in our opinion this question has to be answered in the negative. The Advocate General of Punjab has drawn our attention to certain American authorities which hold that in case of simultaneous repeal and re enactment the re enactment is to be considered as reaffirmation of the old law and the provisions of the repealed Act which are thus re enacted continue in force uninterruptedly. It appears that judicial opinion in America on this point is not quite uniform and we do not consider it necessary to express any opinion upon it. The provisions of section 6 of the will in our opinion apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. The result is that the appeal is allowed and the judgment of the High Court set aside. The Advocate General does not press for enhancement of sentence passed on the respondent. Consequently it is unnecessary for the High Court to hear the reference made to it by the District Magistrate Jullundur any further. The sentence already passed upon the respondent by the trying Magistrate shall stand and if the fine of Rs. 120 has not already been paid it shall be paid now. In default the respondent shall suffer rigorous imprisonment for one month. Appeal allowed.

The provisions of a. 6(c) (d) and (e) of the (same as section 4 of the Punjab General Clauses Act 1898) relating to the consequences of the repeal of a law are applicable not only when an Act Regulation is repealed simpliciter but also to a case of repeal and simultaneous enactment re enacting all the provisions of the repealed law. On the repeal of a law the consequences mentioned in a. 6(c)(d) and (e) of the Act follow unless a different or contrary intention appears from the repealing statute. For ascertaining the above contrary intention one has to look to the provisions of the new enactment in order to see whether the rights and liabilities under the repealed law have been put an end to by the now enactment. It is an erroneous and incorrect approach to enquire if the new enactment has by its provisions positively kept alive the rights and liabilities under the repealed law. The absence of a saving clause in the new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive on the question. Section 6 of the has no application to a temporary law which automatically expires by efflux of time but the section would apply if the temporary law is repealed before it so expires. The Punjab Ordinance VII of 1948 was a temporary law and the same having been repealed before it expired by efflux of time a prosecution for an offence committed under section 7 of the Ordinance prior to its repeal could be validly started even after the repeal. The term "anything done '. ' occurring in section 11 of the Punjab Act XII of 1948 does not mean any act done by a person in contravention of the provisions of the East Punjab Refugees (Registration of Land Claims) Ordinance VII of 1948. The term "anything clone" refers to official acts done in the exercise of the powers conferred by or under the Ordinance. Danmal Parshotamdas vs Baburam ((1935) I.L.R. 58 All. 495) distinguished. 114 894

Appeal No. 104 of 1953. Appeal from the Judgment and Order dated the 28th day of March 1952 of the High Court of Judicature at Bombay in Income tax Reference No. 39 of 1951 arising out of the Order dated the 23rd day of April 1951 of the Income tax Appellate Tribunal in Income tax Appeal No. 5228 of 1950 51. 112 878 Jamshedji Kanga (R. J. Kolah M. M. Jhaveri and Rajinder Narain with him) for the appellant. M.C. Setalvad Attorney General. for India (G. N. Joshi with him) for the respondent. October 28. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal raises an interesting point of law under the Indian Income tax Act. The question referred by the Tribunal to the High Court of Judicature at Bombay was stated thus: " Whether 60% of the dividend amounting to Rs. 2 750 received by the assessee from the two Tea companies is agricultural income and as such exempt under section 4(3) (viii) of the Act." Chagla C.J. and Tendolkar J. who heard the reference answered the question in the negative by two separate but concurring judgments dated March 28 1952. The facts lie within a narrow compass. The appellant Mrs. Bacha F. Guzdar was in the accounting year 1949 50 a shareholder in two Tea:companies Patrakola Tea Company Ltd. and Bishnath Tea Company Ltd. and received from the aforesaid companies dividends aggregating to Rs. 2 750. The two companies carried on business of growing and manu facturing tea. By rule 21 of the Indian Income tax Rules 1922 made in exercise of the powers conferred by section 59 of the Indian Income tax Act it is provided that "income derived from the sale of tea grown and manufactured by the seller in the taxable territories shall be computed as if it were income derived from business and 40% of such income shall be deemed to be income profits and gains liable to tax. " It is common ground that 40% of the income of the Tea companies was taxed as income from the manufacture and sale of tea and 60% of such income was exempt from tax as agricultural income. According to the appellant the dividend income received by her in respect of the shares held by her in the said Tea companies is to the extent of 60% agricultural income in her hands and therefore pro tanto exempt from tax while the Revenue contends that dividend income is 879 not agricultural income and therefore the whole of the income is liable to tax. The Income tax Officer and on appeal the Appellate Assistant Commissioner both concurred in holding the whole of the said income to be liable to tax. The Income tax Appellate Tribunal confirmed the view that the dividend income could not be treated as agricultural income in the hands of the shareholder and decided in favour of the Revenue but ' agreed that its order gave rise to a question of law and formulated the same as set out above and referred it to the High Court. The High Court upheld the order of the Tribunal but granted leave to appeal to this Court. The question we comprehend is capable of an easy solution and can best be answered by reference to the material provisions of the Income tax Act. Under section 2(1) 'agricultural income ' means: (a) any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such; (b) (i). . . (ii). . . . . . (iii). . . . . . (c). . . . . . " Sub section (15) of section 2 defines " total income" as total amount of income profits and gains referred to in sub section (1) of section 4 computed in the manner laid down in this Act Section 3 authorises income tax to be charged upon a person in respect of the total income of the previous year. Section 4 lays down that the total income of any previous year of any person to be charged must include all income profits and gains from whatever source derived and defines the scope of its application for purposes of tax. Sub section (3) of the same section enacts certain exemptions upon the chargeability of the income and clause (iii) includes agricultural income in the category of exemptions. Section 6 mentions the various heads of income profits and gains chargeable. to income tax 880 including in that category clause (v) 'income from other sources. ' It is common ground that dividend falls under this category. In order however that dividend may be held to be Agricultural income it will be incumbent upon the appellant to show that within the terms of the definition it is rent or revenue derived from land which is used for agricultural 'purposes. Mr. Kolah for the appellant contends that it is revenue derived from land because 60% of the profits of the company out of which dividends are payable are referable to the pursuit of agricultural operations on the part of the company. It is true that the agricultural process renders 60% of the profits exempt from tax in the hands of the company from land which is used for agricultural purposes but can it be said that when such company decides to distribute its profits to the shareholders and declares the dividends to be allocated to them such dividends in the hands of the shareholders also partake of the character of revenue derived from land which is used for agricultural purposes ? Such a position if accepted would extend the scope of the vital words I revenue derived from land ' beyond its legitimate limits. Agricultural income as defined in the Act is obviously intended to refer to the revenue received by direct association with the land which is used for agricultural purposes and not by indirectly extending it to cases where that revenue or part thereof changes hands either by way of distribution of dividends or otherwise. In fact and truth dividend is derived from the investment made in the shares of the company and the foundation of it rests on the contractual relations between the company and the shareholder. Dividend is not derived by a shareholder by his direct relationship with the land. There can be no doubt that the I initial source which has produced the revenue is land used for agricultural purposes but to give to the words 'revenue derived from land the unrestricted meaning apart from its direct association or relation with the land would be quite unwarranted. For example the proposition that a creditor advancing money on interest to an agriculturist 881 and receiving interest out of the produce of the lands in the hands of the agriculturist can claim exemption of tax upon the ground that it is agricultural income within the meaning of section 4 sub section (3) (viii) is hardly statable. The policy of the Act as gathered from the various sub clauses of section 2(1) appears to be to exempt agricultural income from the purview of Income tax Act. The object appears to be not to subject to tax either the actual tiller of the soil or any other person getting land cultivated by others for deriving benefit therefrom but to say that the benefit intended to be conferred upon this class of persons should extend to those into whosoever hands that revenue falls however remote the receiver of such revenue may be is hardly warranted. It was argued by Mr. Kolah on the strength of an observation made by Lord Anderson in Commissioners of Inland Revenue vs Forrest(1) that an investor buys in the first place a share of the assets of the industrial concern proportionate to the number of shares he has purchased and also buys the right to participate in any profits which the company may make in the future. That a shareholder acquires a right to participate in the profits of the company may be readily conceded but it is not possible to accept the contention that the shareholder acquires any interest in the assets of the company. The use of the word 'assets ' in the passage quoted above cannot be exploited to warrant the inference that a shareholder on investing money in the purchase of shares becomes entitled to the assets of the company and has any share in the property of the company. A shareholder has got no interest in the property of the company though he has undoubtedly a right to participate in the profits if and when the company decides to divide them. The interest of a shareholder vis a vis the company was explained in the case of Chiranjitlal Chowdhuri vs The Union of India and Others(1). That judgment negatives the position taken up on behalf of the appellant that a shareholder has got a right in the property of the company. It is true that the shareholders of the company have (1) 710. (2) ; 904. 882 the sole determining voice in administering the affairs of the company and are entitled as provided by the Articles of Association to declare that dividends should be distributed out of the profits of the company to the shareholders but the interest of the shareholder either individually or collectively does not amount to more than a right to participate in the profits of the company. The company is a juristic person and is distinct from the shareholders. It is the company which owns the property and not the shareholders. The dividend is a share of the profits declared by the company as liable to be distributed among the shareholders. Reliance is placed on behalf of the appellant on a passage in Buckley 's Companies Act 12th Ed. page 894 where the etymological meaning of dividend is given as dividendum the total divisible sum but in its ordinary sense it means the sum paid and received as the quotient forming the share of the divisible sum payable to the recipient. This statement does not justify the contention that shareholders are owners of a divisible sum or that they are owners of the property of the company. The proper approach to the solution of the question is to concentrate on the plain words of the definition of agricultural income which connects in no uncertain language revenue with the land from which it directly springs and a stray observation in a case which has no bearing upon the present question does not advance the solution of the question. There is nothing in the Indian law to warrant the assumption that a shareholder who buys shares buys any interest in the property of the company which is a juristic person entirely distinct from the shareholders. The true position of a shareholder is that on buying shares an investor becomes entitled to participate in the profits of the company in which he holds the shares if and when the company declares subject to the Articles of Association that the profits or any portion thereof should be distributed by way of dividends among the shareholders. He has undoubtedly a further right to participate in the assets of the company which would be left over after winding up but not in the assets as a whole as Lord Anderson puts it. 883 The High Court expressed the view that until a dividend is declared there is no right in a shareholder to participate in the profits and according to them the declaration of dividend by the company is the effective source of the dividend which is subject to tax. This statement of the law we are unable to accept. Indeed the learned Attorney General conceded that he was not prepared to subscribe to that proposition. The ' declaration of dividend is certainly not the source of the profit. The right to participation in the profits exists independently of any declaration by the company with the only difference that the enjoyment of profits is postponed until dividends are declared. It was argued that the position of shareholders in a company is analogous to that of partners inter se. This analogy is wholly inaccurate. Partnership is merely an association of persons for carrying on the business of partnership and in law the firm name is a compendious method of describing the partners. Such is however not the case of a company which stands as a separate juristic entity distinct from the shareholders. In Halsbury 's Laws of England Volume 6 (3rd Ed.) page 234 the law regarding the attributes of shares is thus stated : " A share is a right to a specified amount of the share capital of a company carrying with it certain rights and liabilities while the company is a going concern and in its winding up. The shares or other interest of any member in a company are personal estate transferable in the manner provided by its articles and are not of the nature of real estate. " In Borland 's Trustee vs Steel Brothers & Co. Ltd.(1) Farwell J. held that "a share in a company cannot properly be likened to a sum of money settled upon and subject to executory limitations to arise in the future ; it is rather to be regarded as the interest of the shareholder in the company measured for the purposes of liability and dividend by a sum of money . . . . . ." It was suggested that the dividend arises out of the profits accruing from land and is impressed with the same character as the profits (1) 884 and that it does not change its character merely because of the incident that it reaches the hands of the shareholder. This argument runs counter to. the definition of agricultural income which emphasizes the necessity of the recipient of income having a direct and an immediate rather than an indirect and remote relation with land. To accept this argument will be tantamount to saying that the creditor recovering interest on money debt due from the agriculturist who pays out of the produce of the land is equally entitled to the exemption. In fairness to Mr. Kolah it must however be stated that the contention was not so broadly put but there is no reason why one should stop at a particular stage and not pursue the analogy to its logical limits. English decisions resting upon the peculiarities of the English Income tax law can hardly be a safe guide in determining upon the language of the Indian Income tax Act the true meaning of the words 'agricultural income. ' A few cases of the Privy Council decided with reference to the provisions of the Indian Income tax Act however deserve notice. The first case viz. Commissioner of Income tax Bihar and Orissa vs Raja Bahadur Kamakshya Narayan Singh and Others(1) dealt with the question whether interest on arrears of rent payable in respect of land used for agricultural purposes is agricultural income and therefore exempt from income tax. It was held that it was neither rent nor revenue derived from land within the meaning of section 2(1) of the Income tax Act. Lord Uthwatt who delivered the judgment of the Privy Council used the following piquant language in coming to that conclusion : "The word derived ' is not a term of article Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest land indeed appears in the second degree but the immediate and effective source is rent which has suffered the accident of (1) 885 non payment. And rent is not land within the meaning of the definition. " The second case viz. Premier Construction Co. Ltd. V. Commissioner of Income tax Bombay City(1) dealt with the nature of the commission of a managing agent of the company a part of whose income was agricultural income. The assessee claimed exemption from tax on the ground that his remuneration at 10 per cent. of the profits was calculated with reference to the income of the company part of which was agricultural income. It was held that the assessee received no agricultural income as defined by the Act but that he received a remuneration under a contract for personal service calculated on the amount of profits earned by the employer payable not in specie out of any item of such profits but out of any moneys of the employer avail Able for the purpose and that the remuneration therefore was not agricultural income and was not exempt from tax. Sir John Beaumont in the above case observed : " In their Lordships ' view the principle to be derived from a consideration of the terms of the Income tax Act and the authorities referred to is that where an assessee receives income not itself of a character to fall within the definition of agricultural income contained in the Act such income does not assume the character of agricultural income by reason of the source from which it is derived or the method by which it is calculated. " In the third case viz. Maharajkumar Gopal Saran Narain Singh vs Commissioner of Income tax Bihar and Orissa(1) an annual payment for life to the assessee was not held to be agricultural income and therefore not exempt from tax where the annuity arose out of a transfer made by the assessee of a portion of his estate for discharging his debts and for obtaining an adequate income for his life it being held that it was not rent or revenue derived from land but. money paid under a contract imposing personal liability on the covenantor the discharge of which was secured by a charge on (1) (2) 886 land. But reliance was placed uponanother judgment of the Privy Council in the same volume at page 305 'in Commissioner of Income tax Bihar and Orissa vs Sir Kameshwar Singh(1). That was a case of a usufructuary mortgagee the profits received by whom were exempt from income tax on the ground that they were agricultural income in his hands. Lord Macmillan after referring to certain sections of the Act observed that "the result of those sections is to exclude agricultural income altogether from the scope of the Act howsoever or by whomsoever it may be received. " These observations must be held to be confined to the facts of that particular case which was a case of usufructuary mortgagee who had received profits directly from the land. The obvious implication of the words used by Lord Macmillan was that whosoever receives profit from the land directly is entitled to the exemption. Reference was also made to some English decisions but they have no bearing upon the present case as they were founded on the English Income tax law and the provisions of the particular statute. The learned Attorney General also contended that the conclusion that dividend is not agricultural income also follows from the provisions of section 16 subsection (2) and the proviso to the Act. According to him this section compels the assessee to show in his return the whole dividend including the portion which is excluded on the ground of agricultural income. We do not consider it necessary to express any opinion upon this contention as our conclusion reached as a result of the foregoing discussion is sufficient to dispose of the appeal. We accordingly dismiss the appeal with costs. Appeal dismissed.

Agricultural income as defined in a. 2(1) of the Indian Income. tat Act 1922 signifies income proximately derived from direct association with land by a person who actually tills the land or 877 gets it cultivated by others. Agricultural income does not mean income which can be ultimately or indirectly traced to have connection with agricultural operations. Even though a tea company growing and manufacturing top gets an exemption of 60 per cent. of the profits as agricultural income in accordance with rule 24 framed under section 59 of the Act it must be held that the dividend of such company is not derived by the shareholder owing to his direct connection with the land in which be% is grown and such dividend is not agricultural income within the meaning of section 2(1) of the Act and hence is not exempted from income tax under section 4(3)(viii) of the Act. The dividend of a shareholder is the outcome of his right to participate in the profits of the company arising out of the contractual relation between the company and the shareholder and this right exists independently of any declaration of the dividend though until such declaration the enjoyment of the profits is postponed. The shareholder by purchase of the share does not acquire any interst in the assets 'of the company till after the company is wound up. The position of a shareholder of a company is altogether different from that of a partner of a firm. A company is a juristic entity distinct from the shareholders but the firm is a collective name or an alias for all the partners. Decisions based on the peculiarities of Income tax law of England are hardly safe guides for determining the true meaning of the term "agricultural income" Under the Indian Income tax Act 1922. Chiranjit Lal Chowdhuri vs The Union of India [1950] S.C.R. 869) followed. Commissioners of Inland Revenue vs Forrest (1924) 8 T.C. 704 Borland 's Trustee vs Steel Brothers & Co. Ltd. L.R. Commissioner of Income tax Bihar and Orissa vs Baia Bahadur Kamakshya Narayan Singh and Others Premier Construction Co. Ltd. vs Commissioner of lncome tax Bombay City and Maharaj kumar Gopal Saran Narain Singh vs Commissioner of Income tax Bihar and Orissa referred to.

iminal 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 800 1. C. Dalal and P. K. Chatterjee for the appellant. M. C. Setalvad Attorney General of India (P. A. Mehta and P. G. Gokhale with him) for the respondent. 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 conviction 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 contravened 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 conviction 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 no jurisdiction 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 contention 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. 801 The revision petition was heard by a Bench consisting 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 not trench on the field covered 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 contravention 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 conviction of the appellant by that Magistrate would be perfectly legal. It is now 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 conferred on it by 9 and 10 George VI Chapter 39. It applied to the whole of British India. Section 3 of the Act conferred power on the Central Government to issue orders for regulating the production supply and distribution of essential commodities and under section 4 this power could be 802 delegated to the Provincial Government. Section 7(1) provided for punishment for contravention of orders issued under the Act and ran as follows: "If any person contravenes 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 contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty: Provided that where the contravention is of an order relating to foodstuffs which contains 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 not be made in respect of the whole or as the case may be a part of the property. " The State of Bombay considered that the maximum punishment of three years ' imprisonment provided in the above section was not 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 not material for the present purpose) that "Notwithstanding anything contained in the Essential Supplies (Temporary Powers) Act 1946 whoever contravenes 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 not 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 contains 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 consideration of the Governor General has received the assent of the Governor General 803 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 contention 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 contravention is of an order relating to foodstuffs which contains an express provision in this behalf the Court shall direct that any property in respect of which the order has been contravened shall be forfeited to His Majesty unless for reasons to be recorded in writing it is of opinion that the direction should be made not 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: " (b) Where the contravention is of an order relating to foodstuffs the Court shall (i) sentence any person convicted of such contravention to imprisonment for a term which may extend to three years and may in addition impose a sentence of fine unless for 804 reasons to be recorded it is of opinion that a sentence of fine only will meet the ends of justice; and (ii)direct that any property in respect of which the order has been contravened or a part thereof shall be forfeited to His Majesty unless for reasons to be recorded it is of opinion that such direction is not 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: " (1) If any person contravenes any order under section 3 relating to cotton 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 contravened or such part thereof as to the Court may seem fit shall be forfeited to the Government. (2)If any person contravenes 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 contravened 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 not necessary to direct forfeiture in respect of the whole or as the case may be any part of the property: Provided that where the contravention 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 contravening 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 not less than 805 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 not exceed by more than five maunds the maximum quantity so prescribed shall not be deemed to be guilty of an offence punishable under the proviso to this sub section. (3)If any person contravenes any order under section 3 relating to any essential commodity other than cotton 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 contravened may be forfeited to the Government. (4)If any person to whom a direction is given under sub section (4) of section 3 fails to comply 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 come 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 contains 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 consideration of the President and has received his assent prevail in that State : Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with 806 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 concluding 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 vs Attornery General for the Dominion(1) that though a law enacted by the Parliament of Canada and within its competence would override Provincial legislation covering the same field the Dominion Parliament bad no authority conferred 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 could not 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 not expressly do so even then the State law will be void under that provision if it conflicts with a later "law with respect to the same matter" that may be enacted by Parliament. In the present case there was no express 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) 807 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 consider with reference to this provision is whether the legislation is "in respect of the same matter. " If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character then article 254(2) will have no application. The principle embodied in section 107(2) and article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province both of them being competent 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 contravention 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 convicted was committed on 6th April 1951 it would be sufficient for the purpose of the present appeal to consider 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 cotton textiles those relating to foodstuffs and those relating to essential commodities other than textiles or foodstuffs. The punishments ' to be imposed in the several categories are separately specified. With reference to foodstuffs the punishment that could be awarded when the offence consists in possession of foodgrains exceeding twice the maximum prescribed is imprisonment for a term 808 which may extend to seven years with further provisions for fine and forfeiture of the commodities. In other cases there is the lesser punishment of imprisonment which may extend to three years. Section 7 is thus a comprehensive code covering the entire field of punishment for offences under the Act graded according to the commodities and to the character of the offence. The subject of enhanced punishment that is dealt with in Act No. XXXVI of 1947 is also comprised 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 C.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 contrary conclusion observed a .id quite correctly that to establish repugnancy under section 107(2) of the Government of India Act it was not necessary that one legislation should say "do" what the other legislation says "don 't" and that repugnancy might result when both the legislations covered 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 considered 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 contravention of orders under the Essential Supplies (Temporary Powers) Act both under Act No. XXXVI of 1947 and under Act No. LII of 1950 constitutes a single subject. matter and cannot be split up in the manner suggested by the learned Judge. On this principle rests the rule 809 of construction relating to statutes that "when the punishment or penalty is altered in degree but not in kind the later provision would be considered as superseding the earlier one." (Maxwell on Interpretation of Statutes 10th Edition pages 187 and 188). "It is a well settled rule of construction" observed Goddard J. in Smith vs 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 vs 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 no question 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 no application. 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) [1937]1 K.B. 5I8. (2) 1 El. and El. 267 274. 810 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. In the result the appeal fails and is dismissed. Appeal dismissed.

Article 254(2) of the Constitution is in substance a reproduction of section 107(2) of the Government of India Act 1935 the concluding portion whereof is incorporated in a proviso with further additions. The principle embodied therein is that when there is legislation covering the same ground both by the Centre and by the State both of them being competent to enact the same the law of the Centre should prevail over that of the State. Section 7 of the Essential Supplies (Temporary Powers) Act 1946 was amended in 1948 and 1949 and thereafter by Act LII of 1950. Held that Act LII of 1950 is a legislation in respect of the same matter as Bombay Act (XXX VI of 1947) within the meaning of article 254(2) of the Constitution and therefore section 2 of Bombay Act XXXVI of 1947 cannot prevail as against section 7 of the Essential Supplies (Temporary Powers) Act as amended by Act LII of 1950. It is a well settled rule of construction that if a later statute again describes an off once created by a previous one and imposes a different punishment or varies the procedure the earlier statute is repealed by the later statute. Attorniey Geneeral for Ontario vs Attorney General for the Dominion Smith vs Benabo [1937] 1. K.B. 518 and Michell vs Brown (I El. & El. 267 274) referred to.

iminal Appeal No. 39 of 1954. Appeal by Special Leave from the Judgment and Order dated the 5th May 1953 of the Lucknow Bench of Allahabad High Court in Criminal Revision No. 200 of 1952 arising out of the Judgment and Order dated the 17th May 1952 of the Special Magistrate AntiCorruption for Uttar Pradesh at Lucknow in Case No. 40 of 1951. Hardyal Hardy (K. L. Arora and section D. Sekhri with him) for the appellant. 123 966 C. P. Lal for the respondent. October 29. The Judgment of the Court was delivered by JAGANNADHADAS J. The appellant in this case was a clerk in the office of the Running Shed Foreman of the East Indian Railway at Kanpur. He was convicted under section 161 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and nine months and also to a fine of Rs. 200. The conviction and sentence have been upheld by the Sessions Judge on appeal and by the High Court in revision. The charge against the appellant was that on the 6th of January 1951 he accepted illegal gratification of Rs. 150 from the complainant Gurphekan a retrenched cleaner in the Locomotive Department of the Railway examined as P.W. 2 as a motive for getting him re employed in the Railway (by arranging with some superior officer). There was an alternative charge under section 162 of the Indian Penal Code but it is no longer necessary to notice it since the conviction is for the main charge under section 161 of the Indian Penal Code. The Special Police Establishment having received information of the demand of the bribe arranged for a trap and caught the appellant just at the time when he received the sum of Rs. 150 from the complainant and seized the amount. The appellant admitted the receipt of the money but denied that he demanded or accepted it as a bribe. His case was that the complainant had previously borrowed money from him and that this money was paid in discharge of the debt. The Courts below have rejected the defence and accepted the prosecution case and conviction followed thereupon. Learned counsel for the appellant has tried to persuade us with reference to the evidence in the case that the view taken by the Courts below is unsustainable. It is unnecessary to notice this argument in any detail because this is an appeal on special leave and nothing so seriously wrong with the findings of fact have been shown which call for interference by this 967 Court. It is sufficient to notice the main legal arguments that have been advanced. It is pointed out that the appellant though employed in the Railway was not himself a person who was in a position to give a job to the complainant nor is it shown that he had any intimacy or influence with any particular official who could give a job. It is urged therefore that the offence if any committed by the appellant could only be one of cheating and not the receiving of a bribe. This argument is without any substance. By the terms of section 161 of the Indian Penal Code a person who is a public servant and accepts illegal gratification as a motive for rendering service with any public servant as such is guilty of the offence thereunder. To constitute an offence under this section it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver "with any other public servant" and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. None the less he is guilty of the offence under section 161 of the Indian Penal Code. This is clear from the fourth explanation to section 161 of the Indian Penal Code which is as follows : "A motive or reward for doing. ' A person who receives a gratification as a motive for doing what he does not intend to do (or as a reward for doing what he has not done) comes within these words. " Illustration (c) to section 161 of the Indian Penal Code which runs as follows also elucidates this: A a public servant induces Z erroneously to believe that A 's influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section. " Thus where a public servant who receives illegal gratification as a motive for doing or procuring an 968 official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of section 161 of the Indian Penal Code. The next contention that has been raised is that the charge does not specify the particular public servant who was intended to be influenced by the appellant in consideration of his receiving the money. It is urged that section 161 of the Indian Penal Code would not apply to such a case. It is suggested that the phrase "with any public servant" in section 161 of the Indian Penal Code must relate to a specified public servant. In the present case the evidence of the complainant and the finding of the High Court is that the appellant "purported to attempt rendering of a service to the complainant with another public servant viz. the Head clerk at Allahabad." But even apart from such a finding there is nothing in the terms of section 161 of the Indian Penal Code requiring that the public servant contemplated therein must be a specified public servant. The material portion of the section is as follows: " for rendering or attempting to render any service or disservice to any person with the Central or Provincial Government or Legislature or with any public servant as such. " The phrase "Central or any Provincial Government or Legislature" does not contemplate any specified individual or individuals. There is no reason why the phrase "any public servant" used in the same context should be taken to mean any specified public servant. The gist of the offence under section 161 of the Indian Penal Code (in so far as it is relevant here) is the receipt by a public servant of illegal gratification as a motive or reward for the abuse of official position or function by the receiver himself or by some other public servant at his instance. There is therefore no substance in this argument. The only serious argument that has been advanced and which requires a little closer examination is that there was no valid sanction for the prosecution. There is no doubt that this is a case to which the Prevention 969 of Corruption Act 1947 would apply and that by virtue of section 6(c) thereof the prosecution requires the sanction of the authority "competent to remove the appellant from his office. " It is urged that this requirement was not satisfied on the facts of this case. It has been pointed out that the appellant is a civil servant of the Indian Union and that by virtue of article 311 (1) of the Constitution he cannot be removed by an authority subordinate to that by which he was appointed. This appears also to be the position under rule 1705(c) of the Indian Railway Establishment Code Volume 1 (1951 Edition) which is as follows: "No railway servant shall be removed (or dismissed) by an authority lower than that by which he was appointed to the post held by him substantively". The sanction for the prosecution in this case was granted under exhibit 10 by one Shri L. R. Gosain Superintendent Power East Indian Railway Allahabad. The order of appointment of the appellant Ex F shows the Divisional Personnel Officer East Indian Railways Allahabad as the appointing authority. It may be mentioned that in the appeal before the Sessions Judge a contention was raised that the appointment of the appellant was in fact made by the Divisional Superintendent and that exhibit F was only signed by the Divisional Personnel Officer on his behalf The Sessions Judge found against this contention and the same has not been challenged before us. What however is urged is that the Superintendent Power who gave the sanction for prosecution is not shown to be an officer not lower in rank than the Divisional Personnel Officer who made the appointment. The question as to the validity of the sanction has been raised both before the Sessions Judge as well as before the High Court. The High Court in considering the question appears to have merely satisfied itself that under the Railway Regulations Shri L. R. Gosain Superintendent Power was a person competent to remove the appellant from his office within the terms of section 6 of the Prevention of Corruption Act. The High Court does not appear to have considered the further question whether or not the requirements of article 31 1 (1) of the Constitution and 970 rule 1705(c) of the Railway Establishment Code have been satisfied with reference to the inter se position as between the authority who appointed the appellant and the authority who sanctioned the prosecution. The learned Sessions Judge however has recorded a categorical finding that the Divisional Personnel Officer is in the same grade as the Superintendent Power. His finding is in the following terms: "I therefore hold that the accused could be and was actually appointed by the Divisional Personnel Officer who is in the same grade as the Superintendent Power. It cannot therefore be said that the Superintendent Power Mr. L. R. Gosain was not authorised to remove the accused from service by virtue of rule 1705 and this argument advanced against the validity of sanction exhibit 10 falls to the ground". Learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code contemplates that the authority competent to remove must be either the very authority who appointed or any other authority directly superior to the appointing authority in the same department We do not think that this contention is tenable. What the Constitution requires is that a person should not be removed by an authority subordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same viz. "the authority competent to remove should not be lower than the one who made the appointment". These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It appears to us to be enough that the removing authority is of the same rank or grade. In the present case it does not appear into which particular branch of the department the appellant was taken in the first instance in 1944 under exhibit F. But it is in the evidence of P.W. 4 the Head clerk of the office of the Divisional Superintendent that the office of the Running Shed Foreman in which the appellant was a clerk in 1951 was directly under the Superintendent Power. He was obviously the most appropriate officer to grant the sanction 971 provided he was of a rank not less than the Divisional Personnel Officer. Counsel for the appellant urges that the evidence does not support the finding of the learned Sessions Judge that Shri L. R. Gosain Superintendent Power was of the same grade as the Divisional Personnel Officer who made the appointment. P. W. 4 in his evidence however quite clearly speaks to this as follows: "Divisional Superintendent is the head of the entire administrative division. The Divisional Personnel Officer is under him. The Superintendent Power and Superintendent Transport are also under him and also such other officers of the same rank. . . Divisional Personnel Officer and the various Superintendents are officers of the same rank. They are not subordinate to each other". It has been commented that this should have been substantiated by the official records and not by oral evidence. That no doubt would have been more satisfactory. The learned Sessions Judge on appeal in order to satisfy himself has referred to the Classified List of Establishment of Indian Railways and the same has also been produced before us for our information. This shows that both the Divisional Personnel Officer as well as Superintendent Power are officers in the senior scale drawing equal scales of pay Rs. 625 50 1375. This is an indication that they are officers of the same rank and confirms the oral evidence of P.W. 4 who being the Head clerk of the Divisional Superintendent 's office must be competent to speak about these matters. It certainly cannot be said that the Superintendent Power who has granted the sanction for prosecution of the appellant at the time working under him is of a rank or a grade lower than the Divisional Personnel Officer who appointed the appellant. This matter would probably have been more satisfactorily clarified in the trial court if the question as to the validity of the sanction had been raised not merely with reference to the wording of section 6 of the Prevention of Corruption Act but also as read with article 311(1) of the Constitution and rule 1705(c) of the Railway Establishment 972 Code. On the material we are not satisfied that there is any reason to reverse the findings of the courts below that the sanction is valid. All the contentions raised before us are untenable. This appeal must accordingly fail. It has been represented to us that the appellant who has been refused bail by this court when leave to appeal was granted but has been granted bail subsequently has already served nearly six months of imprisonment in the intervening period that he is a young man and has lost his job. In the circumstances we consider that it is not necessary to send him back to jail. The result therefore is that the appeal is dismissed subject to the modification of sentence of imprisonment. We reduce the sentence of imprisonment to the period already undergone. The sentence of fine stands.

When a public servant is charged under section 161 of the Indian Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act it is not necessary for the Court to consider whether or not the accused as public servant was capable of doing or intended to do such an act. In a case where the illegal gratification is alleged to have been received by the accused as a public servant for influencing some superior officer to do an act the charge framed against such accused under section 161 of the Code need not specify the particular superior officer sought to be so influenced. It view of article 311(1) of the Constitution of India and rule 1705(c) of the Indian Railway Establishment Code Volume 1 (1951 Edition) a sanction under section 6(c) of the Prevention of Corruption Act 1947 (as it existed prior to August 12 1952) may be given either by the very authority who appointed the public servant or by an authority who is directly superior to such appointing authority in the same department. But such sanction is also legal if it is given by an authority who is equal in rank or grade with the appointing authority. Sanction is invalid if it is given by one who is subordinate to or lower than the appointing authority.

iminal Appeal No. 80 of 1953. Appeal by Special Leave granted by the Supreme Court by its order dated the 9th February 1953 from the Judgment and Order dated the 23rd September 1952 of the High Court of Judicature at Bombay in Criminal Appeal No. 828 of 1952 arising out of the Judgment and Order dated the 27th March 1952 of the Court of Stipendiary Magistrate Ahmedabad in Summary Case No. 3029 of 1954. Rajni Patel and M. section K. Sastri for the appellant. M. C. Setalvad Attorney General of India and (Porus A. Mehta and P. G.Gokhale with him) for the respondent. October 29. The Judgment of the Court was delivered by BOSE J. This case is unimportant in itself for a small fine of Rs. 50 (Rs. 25 on each of two counts) has been imposed for a couple of breaches under section 52 (f) of the Bombay Shops and Establishments Act 1948 read with rule 18(5) and (6) of the Rules framed under 888 the Act. But the question involved is of general importance in the State of Bombay and affects a large number of similar establishments so in order to obtain a clarification of the law this has been selected as a test case. The appellant is the owner of a small establishbment called the Honesty Engineering Works situate in Ahmedabad in the State of Bombay. He employs three workers. He does business in a very small way by going to certain local mills collecting orders from them for spare parts manufacturing the parts so ordered in his workshop delivering them to the mills when ready and collecting the money therefor. No buying or selling is done on the premises. The question is whether a concern of this nature is a "shop" within the meaning of section 2(27) of the Act. The learned trying Magistrate held that it was not and so acquitted. The High Court on an appeal against the acquittal held it was and convicted. It is admitted that the appellant maintains no "leave registers" and gives his workers no "leave books" and it is admitted that the Government Inspector of Establishments discovered this on 12th January 1951 when he inspected the appellant 's works. If his establishment is a "shop" within the meaning of section 2(27) he is guilty under the Act; if it is not he is not guilty. "Shop" is defined as follows in section 2(27): " 'Shop ' means any premises where goods are sold either by retail or wholesale or where services are rendered to customers and includes an office a store room godown warehouse or work place whether in the same premises or otherwise mainly used in connection with such trade or business but does not include a factory a commercial establishment 'residential hotel restaurant eating house theatre or other place of public amusement or entertainment". As we have said it is admitted that no goods are sold on the premises and it is also admitted that no services are rendered to customers there for the manufacture of spare parts for sale elsewhere cannot be regarded as "services rendered. " 889 The learned Attorney General contends that the definition should be read as follows: Shop includes a work place mainly used in connection with such trade or business. " He says that the word "such" in the phrase "such trade or business" relates back to the opening words of the definition which read " any premises where goods are sold. " He argues that the emphasis is on the words "goods are sold" and not on the word "premises" because a trade or business relates to the buying and selling of goods and is not confined to the premises where that occurs. He admits that the main portion of the definition which relates to "premises where goods are sold" cannot exclude the "Premises" element and that unless there are premises on which goods are sold the main portion of the definition cannot apply e.g. in the case of a street hawker or of a man who totes his goods from house to house and sells them at the door. But he contends that the main definition is extended by including in it matter which would not be there without the words of extension and in that portion the em phasis ceases to be on the "premises" and shifts to the nature of the business; provided there is a business of selling any work place wherever situate "mainly used in connection with it" will fall within the definition. The other side relies on the ejusdem generis rule. The argument runs that the trade or business contemplated by the main portion of the definition is not any business of selling wherever and however conducted but only those trades where the selling is conducted on defined premises. The learned counsel contends that the very idea of a shop in that connotation betokens a room or a place or a building where goods are sold. The rest of the definition merely links on the main definition ancillary places such as store rooms godowns work places etc. which are mainly used in connection with the "business" and "business" means the kind of business defined in the earlier part of the definition that is to say not business in general nor even the business of selling in general but that portion of the business Of Selling which is confined to selling on some defined premises. To illustrate this graphically the 890 business of selling in general may be regarded as a big circle and the business of selling on defined premises as a small portion which is carved out of the larger whole. The second part of the definition is linked on to the carved out area and not to the circle as a whole. The word "such" confines what follows to what has gone before and what has gone before is not the trade of selling in general but only that part of the trade of selling which is carried on defined premises. Counsel argues that there is no justification for ignoring the limitation which the Legislature has placed on the main portion of the definition and holding that "such" relates to a much wider classification of "selling" which the main portion of the definition not only does not envisage but has deliberately excluded. We think that as a matter of plain construction this is logical and right. The learned Attorney General went on to contend that even if this is a possible view his view is also tenable and therefore when we have two possible interpretations we must choose the one which best accords with the policy of the Act. Taking us through the Act he pointed out that this is a piece of social legislation designed partly to prevent sweated labour and the undesirable employment of women and young children and partly to safeguard the health and provide for the safety of workmen and employees. He con tended that this object would be partly frustrated if small establishments of this kind are placed outside the purview of the Act for their number is very large and the persons employed in them are entitled to and require just as much protection as those more happily placed in larger concerns. We have considered this carefully and are of the opinion that the fear is groundless because there is express provision in the Act for such contingencies. Under section 5 the State Government can by mere notification in the Official Gazette extend the Act to any establishment or class of establishments or any person or class of persons to which or whom the Act or any of its provisions does not for the time being apply In our opinion the Legislature did not intend to rope 891 in small establishments of this kind in the first place but reserved power to the State Government to do that when desirable by the very simple process of notification in the Official Gazette. In reaching this conclusion we are influenced by the policy of the Central Legislature on an allied topic. We do not intend to break the general rule that points to the undesirability of interpreting the provisions of one Act by those of another passed by a different Legislature but as we have already decided the question of construction and interpretation and are now considering only the general policy of the State Legislature we deem it right to view the matter in its larger aspect for the special reasons we shall now enumerate. Now the Central Act the Factories Act of 1948 was passed on the 23rd of September 1948. The Bombay Act though entitled Act LXXIX of 1948 was not passed till the following year namely on 11th January 1949. The Bombay Legislature had the Central Act in mind when it passed its own legislation because section 2(27) says that a "shop" shall not include a "factory" and section 2(9) defines a " factory " as any premises which is a factory within the meaning of section 2 of the Central Act or which is deemed to be a factory under section 85 of that Act. Under the Central Act (section 2(m) no establishment can be a factory unless it employs more than ten workmen or unless it is artificially converted into a " factory " within the meaning of this definition by a notification in the Official Gazette. Had it not been for the fact that the appellant employs less than ten workmen his concern would have been classed as a factory under the Central Act and would then have been excluded from the definition of "shop" in the Bombay Act for the appellant carries on a manufacturing process in his workshop with the aid of power: that is not disputed. The Central Legislature undoubtedly had the intention of excluding small concerns like this from the purview of the Central Act except where Government decided otherwise and as there is this reference to the Central Act. on this very point in section.2(27) we think. in view of the way that section 2(27) is worded that Was also the intention of the Bombay Legislature 892 Therefore even on the assumption of the learned Attorney General that two interpretations of section 2(27) are possible we prefer the one which in our opinion better accords with the logical construction of the words used. The learned High Court Judges were influenced by matters which we consider inconclusive. The appellant applied for registration under the Bombay Act and in the statement made under section 7 he called his establishment a "workshop" and described the nature of his business as a " factory ". The learned Judges considered that this imported an admission that his establishment was a " shop " because of the use of the word "shop" in "workshop". This might have raised an inference of fact against the appellant had nothing else been known but when the facts are fully set out as above and admitted the appellant 's opinion about the legal effect of those facts is of no consequence in construing the section. No estopped arises. The appellant explained that the matter seemed doubtful so to be on the safe side and avoid incurring penalties for non registration should it turn out that his concern was hit by the Act he applied for registration. It is to be observed that though he applied on 12th April 1949 he was not registered till 4th May 1950 and the certificate was not given to him till 8th January 1951. The present prosecution was launched on 4th April 1951. Government itself seems to have been in doubt. However that is neither here nor there. What we think was wrong was placing of the burden of proof on the appellant in a criminal case because of a so called admission. The learned High Court Judges also advert to the fact that though the appellant 's concern was registered as a "shop" he made no protest and did not have recourse to section 7(3) of the Act. We do not think section 7(3) has any application. The appeal is allowed. The conviction and sentence are set aside and the judgment of the learned trying Magistrate acquitting the appellant is restored. The fines if paid will be refunded.

The appellant the owner of a small establishment in Ahmedabad employs three workers does business in a very small way by going to certain local mills collecting orders from them for spare parts manufacturing the parts so ordered in his workshop delivering them to the mills when ready and collecting the money therefor. No buying or selling is done on the premises. Hold that a concern of this nature is not a shop within the meaning of section 2(27) of the Bombay Shops and Establishments Act 1948

Appeal No. 194 of 1952. Appeal from the Judgment and Order dated the 7th day of September 1951 of the High Court of Judicature at Bombay in Income tax Reference No. 46 of 1950. S.Mitra (R. J. Kolah and 1. N. Shroff with him) for the appellant. M.C. Setalvad Attorney General for India (G. N. Joshi with him) for the respondent. November 1. The Judgment of the Court was delivered by DAS J. 831 DAS J. This appeal is directed against the judgment pronounced on the 7th September 1951 by the High Court of Judicature at Bombay on a reference made at the instance of the appellant under section 66(1) of the Indian Income tax Act 1922. By an assessment order dated the 31st March 1948 the appellant was assessed by the Income tax Officer Bombay for the assessment year 1947 1948 on a total income of Rs. 19 66 782 including a sum of Rs. 9 38 011 representing capital gains assessed in the hands of the appellant under section 12 B of the Act. The said amount of capital gains was earned by the appellant in the following circumstances. The assessee had a half share in certain immovable properties situate in Bombay which were sold by the assessee and his coowners during the relevant accounting year which was the calendar year ending on the 31st December 1946 to a private limited company known as Mafatlal Gagalbhai & Company Ltd. The profits on the sale of the said properties amounted to Rs. 18 76 023 and the appellants half share therein came to the sum of Rs. 9 38 011 which was included in the assessment under section 12 B. In April 1948 the appellant appealed from the said order to the Appellate Assistant Commissioner contending that section 12 B of the Act authorising the levy of tax on capital gains was ultra vires the Central Legislature. The Appellate Assistant Commissioner by his order dated the 5th April 1949 dismissed the appeal. A further appeal to the Income tax Appellate Tribunal was dismissed by its order dated the 30th June 1950. Being aggrieved by the order of the Appellate Tribunal the appellant applied to it under section 66(1) of the Act for raising certain questions of law. The Appellate Tribunal agreeing that certain questions of law did arise out of its order drew up a statement of the case which was agreed to by the parties and referred to the High Court the following questions: (1) Whether the imposition of a tax under the head " capital gains " by the Central Legislature was ultra vires 832 (2) Whether the imposition was in any way invalid on the ground that it was done by amending the Indian Income tax Act ? After hearing the reference the High Court following its judgment in Income tax Reference No. 18 of 1950 Sir J. N. Duggan and Lady Jeena J. Duggan vs The Commissioner of Income tax Bombay City answered the first question in the negative and expressed the opinion that it was not necessary to answer the second question. In that reference the two learned Judges gave the same answer to the first question but on different grounds as elaborated in their respective judgments. The principal question that was discussed before the High Court as before us was whether section 12 B which authorised the imposition of a tax on capital gains was invalid being ultra vires the Central Legislature. Section 12 B was inserted in the Act by the Indian Income tax and Excess Profits Tax (Amendment) Act 1947 (XXII of 1947) which was a Central Act. Under section 100 of the Government of India Act 1935 the Central Legislature was empowered to make laws with respect to matters enumerated in List I in the Seventh Schedule to that Act. The only entries in List I on which reliance could be placed to uphold the impugned Act were entries 54 and 55 which were as follows: " 54. Taxes on income other than agricultural income. Taxes on the capital value of the assets exclusive of agricultural land of individuals and companies and taxes on the capital of companies. " Chagla C. J. held that the enactment of Act XXII of 1947 which inserted section 12 B was well within the scope of the legislative powers of the Central Legislature as it fell within entry 55 and was valid either as a whole or in any case to the extent that it applied to individuals and companies. Although it was unnecessary for the learned Chief Justice to decide whether the Act could be supported as a valid piece of legislation falling within the scope of entry 54 yet in deference to the arguments advanced before the Court 833 the learned Chief Justice expressed the view that it could not be so supported. Tendolkar J. on the other hand held that Act XXII of 1947 was wholly intra vires the Central Legislature as it fell within entry 54 and in this view of the matter he did not consider it necessary to discuss whether the legislation was covered by entry 55 in List I of the Seventh Schedule. In our opinion the view taken by Tendolkar J. with respect to entry 54 is correct and well founded. In the course of a lucid argument advanced with his usual ability and skill Mr. Kolah submitted that entry 54 which deals with "taxes on income" does not embrace within its scope tax on capital gains. "Income" according to him does not signify capital gains either according to its natural import or common usage or according to judicial interpretation of relevant legislation both in England and in India. He submitted that the learned Chief Justice was entirely right in the view that there was a clear line of demarcation that had always been observed by English lawyers and English jurists between income and capital that the English legislative practice had always recognised this difference and that as the word had come to acquire a certain meaning and a certain connotation by reason of such legislative practice in England the British Parliament which enacted the Government of India Act 1935 must be regarded as having understood and used that word " income " in entry 54 in that sense. Our attention has not however been drawn to any enactment other than fiscal statutes like the Finance Act and the Income tax Act where the word "income" has been used and therefore it is not possible to say that the critical word had acquired any particular meaning by reason of any legislative practice. Reference has been made to several cases where the word "income" has been construed by the Court. What is therefore described as legislative practice is nothing but judicial interpretations of the word " income " as appearing in the fiscal statutes mentioned above. A perusal of the those cases however will reveal at once that those decisions were concerned with ascertaining the meaning of that word in the context of the Income tax 834 legislation. Thus the observation of their Lordships of the Privy Council in Commissioner of Income tax vs Shaw Wallace & Co.(1) laid down the connotation of the word "income" as used "in this Act. " The passage in the judgment of Rowlatt J. in Ryall vs Hoare and Ryall vs Honeywill(2) quoted by the learned Chief Justice in his judgment and strongly relied on by Mr. Kolah refers to profits or gains "as used in these Acts. " In Californian Copper Syndicate (Limited and Reduced) vs Harris(3) Lord Justice Clerk refers to the enhanced price realised on sale of certain things over the cost price thereof as not being profits "in the sense of Schedule D of the Income Tax Act of 1842." These guarded observations quite clearly indicate that they relate to the term "income" or "Profit" as used in the Income tax Act. There is no warrant for saying that these observations out down the natural meaning of the ordinary English word "income" in any way. The truth of the matter is that while Income tax legislation adopts an inclusive definition of the word "income" the scheme of such legislation is to bring to charge only such income as falls under certain specified heads (e.g. the 5 Schedules of the English Act of 1918 and our section 6 read with the following sections) and as arises or accrues or is received or is deemed to arise or accrue or to be received as mentioned in the statute. The Courts have striven to ascertain the meaning of the word "income" in the context of this scheme. There is no reason to suppose that the interpretation placed by the Courts on the word in question was intended to be exhaustive of the connotation of the word "income" outside the particular statute. If we hold as we are asked to do that the meaning of the word "income" has become rigidly crystallized by reason of the judicial interpretation of that word appearing in the Income tax Act then logically no enlargement of the scope of the Income tax Act by amendment or otherwise will be permissible in future. A conclusion so extravagant and astounding can scarcely be contemplated or (1) (1932) L.R. 59 I.A. 206 at page 212. (2) at page 525. (3) at page 165. 835 countenanced. We are satisfied that the cases relied on by Mr. Kolah and referred to in the judgment of the learned Chief Justice do not as we read them establish the broad proposition that the ordinary English word "income" has acquired a particularly restricted. meaning. The case of Wallace Brothers & Co. Ltd. vs Commissioner of Income tax(1) was not concerned with ascertaining the meaning of the word "income" at all. The problem there was whether the foreign income of an English company which was a partner in a firm carrying on business in Bombay and whose Indian income was greater than its foreign income could be treated as a resident within the meaning of section 4 A. It was in that context said in that case that in determining the scope and meaning of the legislative power regard was to be had to what was ordinarily treated as embraced within that topic in the legislative practice of the United Kingdom. The problem there was not to ascertain the meaning of the word "income" so much as to ascertain the extent of the application of the Act to the foreign income. That case clearly does not establish that the word "income" had acquired any special or narrow meaning. The same remarks apply to the case of Croft vs Dunphy(1) referred to by Lord Uthwatt in delivering the judgment of the Privy Council in Wallace Brothers case (supra). In Kamakshya Narain Singh vs Commissioner of Income tax( ) Lord Wright observed : " Income it is true is a word difficult and perhaps impossible to define in any precise general formula. It is a word of the broadest connotation. " After making the above observation his Lordship referred to the observations of Sir George Lowndes in Commissioner of Income tax Bengal vs Shaw Wallace & Co. (supra) where an attempt was made to indicate the connotation of the word "income" as used "in this Act. " It is therefore clear that none of the authorities relied on by Mr. Kolah establish what may be called a legislative practice indicating the connotation of the (1) (1948) L.R. 75 I.A. 86; ; 16 I.T.R. 240. (2) (3) (1943) L.R. 70 I.A. 180; 836 term "income" apart from the Income tax statute. In our view it will be wrong to interpret the word "income" in entry 54 in the light of any supposed English legislative practice as contended for by Mr. Kolah. It is interesting to note that in the English Income Tax Act of 1945 (8 and 9 Geo. VI C. 32 sections 37 and 38) capital gains have been included as taxable income. In should be remembered that the question before us relates to the correct interpretation of a word appearing in a Constitution Act which as has been said must not be construed in any narrow and pedantic sense. Gwyer C.J. in In re The Central Provinces and Berar Act No. XIV of 1938(1) observed at pages 36 37 that the rules which apply to the interpretation of other statutes apply equally to the interpretation of a constitutional enactment subject to this reservation that their application is of necessity conditioned by the subject matter of the enactment itself It should be remembered that the problem before us is to construe a word appearing in entry 54 which is a head of legislative power. As pointed out by Gwyer C.J. in The United Provinces vs Atiqa Begum(2) at page 134 none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. Itis therefore clear anditisacknowledged by Chief Justice Chagla that in construing an entry in a List conferring legislative powers the widest possible construction according to their ordinary meaning must be put upon the words used therein. Reference to legislative practice may be admissible for cutting down the meaning of a word in order to reconcile two conflicting provisions in two legislative Lists as was done in The C. P. and Berar Act case (supra) or to enlarge their ordinary meaning as in The State of Bombay and Another vs F. N. Balsara(3). The cardinal rule of interpretation however is that words should be read in their ordinary natural and grammatical meaning subject to this rider that in (I) (2) (3) ; 837 construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude. What then is the ordinary. natural and grammati : cal meaning of the word "income" ? According to the dictionary it means "a thing that comes in". (See Oxford Dictionary Vol. 11 page 162; Stroud Vol. 11 pages 14 16). In the United States of America and in Australia both of which also are English speaking countries the word "income" is understood in a wide sense so as to include a capital gain. Reference may be made to Eisner vs Macomber(1) Merchants ' Loan & Trust Co. vs Smietanka(2) and United States vs Stewart(3) and Resch vs Federal Commissioner of Taxation( 4). In each of these cases very wide meaning was ascribed to the word "income" as its natural meaning. The relevant observations of learned Judges deciding those cases which have been quoted in the judgment of Tendolkar J. quite clearly indicate that such wide meaning was put upon the word "income" not because of any particular legislative practice either in the United States or in the Commonwealth of Australia but because such was the normal concept and connotation of the ordinary English word "income." Its natural meaning embraces any profit or gain which is actually received. This is in consonance with the observations of Lord Wright to which reference has already been made. Mr. Kolah concedes that the word "income" is understood in the United States and Australia in the wide sense contended for by the learned Attorney General but he maintains that the law in England is different and therefore entry 54 which occurs in a Parliamentary statute should be construed according to the law of England. We are again brought back to the same argument as to the word having acquired a restricted meaning by reason of what has been called the legislative practice (1) ; ; (2) ; ; 1 (3) ; ; (4) ; 107 838 in England an argument which we have already discarded. The argument founded on an assumed legislative practice being thus out of the way there can be no difficulty in applying its natural and grammatical meaning to the ordinary English word "income. " As already observed the word should be given it widest connotation in view of the fact that it occurs in a legislative head conferring legislative power. For reasons stated above we are of opinion that Act XXII of 1947 which amended the Indian Income tax Act by enlarging the definition of the term income in section 2(6 C) and introducing a new head of income in section 6 and inserting the new section 12 B is intra vires the powers of the Central Legislature acting under entry 54 in List I of the Seventh Schedule of the Government of India Act 1935. In this view of the matter it is unnecessary for us to consider or express any opinion as to the meaning scope and ambit of entry 55 in that List. The appeal is accordingly dismissed with costs. Appeal dismissed.

Section 12 B of the Indian Income tax Act 1922 (inserted by Act XXII of 1947) which imposed tax on 'Capital gains ' is not ultra vires the Government of India Act 1935. The term 'Capital 106 830 gains ' comes well within the meaning of the word 'income ' used in item No. 54 of List I of the Seventh Schedule to the Government of India Act 1935. It is incorrect to say that income cannot signify 'Capital gains ' and it is equally an incorrect approach to hold that there is a legislative practice which recognises a clear line of demarcation between income and capital. What is relied on here as a legislative practice is nothing but the judicial interpretation given to the word 'income ' as used in the income tax and fiscal statutes. Such interpretation does not necessarily cut down the ordinary natural meaning of the word 'income ' as used in item No. 54 of List I of the Seventh Schedule to the Government of India Act 1935. Cardinal rule of interpretation is that the words should be read in their ordinary natural and grammatical meaning. But the words in a constitutional enactment conferring legislative powers should however be construed most liberally and in their widest amplitude Commissioner of Income tax vs Shaw Wallace & Co. (L.R. 59 I.A. 206); Ryall vs Hoare and Ryall vs Honeywill ; Californian Copper Syndicate (Limited and Reduced) vs Harris ; Wallace Brothers & Co. Ltd. vs Commissioner of Income tax [L.R. 75 I.A. ; : ; Croft vs Dunphy ; Kamakshya Narain Singh vs Commissioner of Income tax [L.R. 70 I.A. 180: ; In re The Central Provinces and Berar Act No. XIV of ; United Provinces vs Atiqa Begum ; State of Bombay and Another vs F. N. Balsara ; ; Eisner vs Macomber ; : ; Merchant 's Loan & Trust Co. vs Smietanka ; ; United States vs Stewart ; and Resch vs Federal Commissioner of Taxation ; referred to.

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 N. C. Chatterjee for the appellant. Porus A. Mehta for the respondent. 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 company 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 commencing 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 covenants contained 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 not to grant any lease permit or prospecting licence regarding the limestone to any other party 976 therein without a condition that no limestone should be used for the manufacture of cement in consideration 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 consideration 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 company paid its lessor sums of Rs. 40 000 in accordance with these two covenants and claimed to deduct the sums in the computation 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 contention of the company and the following question as ultimately reframed was at the instance of the company 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 not 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 : 4. 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 consideration of that protection fee the lessor undertakes not to allow any person or company 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 coloured blue called the Durgasil area without a condition in such 977 lease permit or prospecting licence that no limestone shall be used for the manufacture of cement. 5.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 not 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 converted into cement at the lessee 's 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 not converted into cement at the lessee 's factory in Sylhet district will not entitle the lessee to any abatement in the protection fee. The lessor in consideration of the said payment undertakes not to allow any person or company any lease permit or prospecting licence for limestone in the whole of Khasi and Jaintia Hills district without a condition in such lease permit or prospecting licence that no limestone 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 % ' notice in writing by registered letter addressed to 11 Clive Street Calcutta but the lessee will not be entitled to terminate this agreement during the currency of the lease except with the consent of the lessor. It is not clear as to what was meant by the last provision contained in clause 5 the lessee in the event of his having paid the sum of Rs. 35 000 for the 5 years having nothing else to do but enjoy the benefit of the covenant on the part of the lessor during the subsequent period of the lease. This provision is however immaterial for our purposes. 978 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 vs Cory(1) administered the following warning: I do not 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 conduct 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. vs 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 cover all or even a great number of possible cases and I shall not 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 course of the argument in City of London Contract Corporation vs Styles (3) : " You do not use it 'for the purpose of ' your concern which means for the purpose of carrying on your concern but you use it to acquire the concern. " The expenditure in the acquisition of the concern would be capital expenditure; the expenditure in carrying on the concern would be revenue expenditure. Lord Dunedin in Vallambrosa Rubber Co. Ltd. vs Farmer ( 4) suggested another criterion at page 536 : Now I don 't say that this consideration is absolutely final or determinative but in a rough way I think it is not a bad criterion of what is capital (1) 488. (2) [1924] 2 K.B. 292 298. (3)(1887) 243. (4)(1910) 536. 979 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) vs 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 continuous demand for ex. penditure as opposed to an expenditure which was made once for all. He however suggested in the course of his judgment another view point and that was whether the particular expenditure could 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 Atherton 's case (2). Atherton vs 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 Usher 's case(3) ) a proper debit item to be charged against incomings of the trade when computing 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 no express 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 vs Farmer (4). Lord Dunedin as Lord President of the Court of Session expressed the opinion that "in a rough way" it was (1)(1915) (2)(1925) (3)(19I4) (4)(19IO) 536 980 "not 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 no doubt this is often a material consideration. But the criterion suggested is not and was obviously not 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 not 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 conclusion) for treating such an expenditure as properly attributable not to revenue but to capital." Viscount Haldane however in John Smith & Son vs Moore (H. M. 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 not necessary to draw an exact line of demarcation between the fixed and circulating capital. The line of demarcation between fixed and circulating capital could not 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. vs 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 comes as near to accuracy as can be suggested. Lord Cave 's 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) 282. (2) 138. 981 It seems rather that the cases of Hancock (1) and of Mitchell vs B. W. Noble Ltd. (2) and of Mallet vs 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 company 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. vs 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 vs 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 ' vs Farmer(1) was not true in all cases and he found authority for that statement in Smith vs 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 contrasted 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 not always easy to determine whether a particular asset belongs to the one category or the other. It depends in no way upon what may be the nature of the asset in fact or in law. Land may in certain circumstances be circulating (2) (2) (1927] 1 K.B. 719. (3) (1928] 2 K.B. 405. (4) 298. 125 (5) 192. (6) (7) (8) 982 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 coal that a coal merchant buys and sells in the course of his trade. So too is the coal that a manufacturer of gas buys and from which he extracts his gas. " In Van Den Berghs Limited vs Clark (H. M. Inspector of Taxes)(1) Lord Macmillan however veered round to Viscount Cave 's 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 consistency with Lord Cave 's principle of discrimination. " As regards the test of fixed and circulating capital he observed at page 432 : " I have not overlooked the criterion afforded by the economists ' differentiation between fixed and circulating capital which Lord Haldane invoked in John Smith & Son vs Moore(1) and on which the Court of Appeal relied in the present case but I confess that I have not found it very helpful. " The Privy Council in Tata Hydro Electric Agencies Limited Bombay vs 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 commercial trading. It is necessary accordingly to attend (1) ; (2) (3) (1937) L.R 64 I.A. 215. 983 to the true nature of the expenditure and to ask oneself the question is it a part of the company 's working expenses; is it expenditure laid out as part of the process of profit earning ?" In the case before them they came to the conclusion that the obligation to make the payments was undertaken By the appellants in consideration of their acquisition of the right and opportunity to earn profits i.e. of the right to conduct the business and not for the purpose of producing profits in the conduct of the business. 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. vs Style8(1). Dixon J. expressed a similar opinion in Sun Newspapers Limited and the Associated Newspapers Limited vs 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 contain or consist in what has been called a 'profit yielding subject the phrase of Lord Blackburn in United Collieries Ltd. vs Inland Revenue Commissioners(3). As general conceptions it may not 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 continual flow of working expenses which are or ought to be supplied continually out of the returns of revenue. The latter can be considered, estimated and determined only in relation to a period ,or interval of time, the former as at a point of time. For the one concerns the instrument for earning profits (1) (2) (1038) ; (3) , 220. 984 and the other the continuous 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 Cave 's test as laid down in Atherton 's case(1). Viscount Cave 's 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 vs Century Spinning, Weaving & Manufacturing Co. Ltd.(1), Jagat Bus Service, Saharanpur vs Commissioner of Income tax, U. P. & Ajmer Merwara(4), and Commissioner of Income tax, Bombay vs Finlay Mills Ltd.(5). In Commissioner of Income tax, Bombay vs 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 Atherton 's case(1). . Romer L.J. felt that this definition had placed the matter beyond all controversy see remarks in Anglo Persian Oil Co. 's case(6). But Lord Macmillan in Van Den Bergh 's 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 vs 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) [1945]14 I.T.R. 66.(6) (3) ; (4) [1942] 10 I.T.R. Suppl. 1 6. 985 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 not 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 : 1. 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 vs Granite City Steamship Company(1). In City of London Contract Corporation vs Styles(1) at page 243 Bowen L.J. observed as to the capital expenditure as follows : " You do not use it 'for the purpose of ' your concern which means for the purpose of carrying on your concern but you use it to acquire the concern. Expenditure may be treated as properly attributable to capital when it is made not only once and for all but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade: vide Viscount Cave L.C. in Atherton vs 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 cost of such acquisition cannot be (1) (3) (2) 14. (4) 986 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. 3.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 not 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 no doubt 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 concern is certainly in the nature of capital expenditure. The question however arises for consideration where expenditure is incurred while the business is going on and is not 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 987 business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not 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 concern 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 no consequence. It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider 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 complicated 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 come to the conclusion 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 considered 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 courts of law would not ordinarily interfere with such findings of fact if they have 988 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 contended that where the payment is not 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 concern 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 vs 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 not 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) vs Grafton Hotel Ltd.(2): "The thing that is paid for is of a permanent quality although its permanence being conditioned 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 not deductible". The case of Tata Hydro Electric Agencies Ltd. Bombay vs 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 not 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. (3) (193 7) L. R. 64 1 A 215. (2) 989 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 vs 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 not 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 course of trade at a comparatively early date". Latham C. J. observed in Sun Newspapers Ltd. & Associated Newspapers Ltd. vs Federal Commissioner of Taxation(2): "When the words 'permanent ' or 'enduring ' are used in this connection it is not 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 company permanent improvement in the material or immaterial assets of the concern". To the same effect are the observations of Lord Greene M. R. in Henriksen (H.M. Inspector of Taxes) vs 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 company was capital expenditure or revenue expenditure. Under clause 4 of the deed the lessors undertook not 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 condition therein that no limestone shall be used for the manufacture of (1) (1932] 1 K.B. 124 146. (2) ; 355. 126 (3) 990 cement. The consideration of Rs. 5 000 per annum was to be paid by the company 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 company and came well within the test laid down by Viscount Cave. It was not a lump sum payment but was spread over the whole period of the lease and it could 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 company had acquired. The asset which the company had acquired in consideration of this recurring payment was in the nature of a capital asset the right to carry on its business unfettered by any competition from outsiders within the area. It was a protection acquired by the company for its business as a whole. It was not 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 company in acquiring this advantage which was certainly an enduring advantage was thus of the nature of capital expenditure and was not an allowable deduction under section 10(2)(xv) of the Income tax Act. The further protection fee which was paid by the company to the lessor under clause 5 of the deed was also of a similar nature. It was no doubt spread over a period of 5 years but the advantage which the company 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 company against all competitors in the whole of the Khasi and Jaintia Hills District and the capital asset which the company acquired under the lease was thereby appreciated to a considerable extent. The sum of Rs. 35 000 agreed to be paid by the company to the lessor for the period of 5 years was not a revenue expenditure which was made by the company for working the capital asset which it had acquired. It was no 991 part of the working or operational expenses of the company. It was an expenditure made for the purpose of acquiring an appreciated capital asset which would no doubt 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 not make any difference to the nature of the acquisition. It was none 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 notice 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 not an allowable deduction under section 10(2)(xv) of the Act. We are therefore of the opinion that the conclusion reached by the Income tax authorities as well as the High Court in regard to the nature of the payments was correct and the sums of Rs. 40 000 paid by the company to the lessors during the accounting years 1944 45 and 1945 46 were not allowable deductions under section 10(2)(xv) of the Act. The appeal therefore fails and must be dismissed with costs. Appeal dismissed.

Section 10(2)(xv) of the Indian Income tax Act 1922 uses the term 'capital expenditure ' for which no allowance is given to the assessee. The term 'capital expenditure ' is used as contrasted with the term 'revenue expenditure in respect of which the assessee is entitled to allowance under section 10(2) (xv) of the Act. As pointed out by the Full Bench of the Lahore High Court in Benarsidas Jagannath In re [(1946) it is not 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. Though it is not easy to reconcile all the decided cases on the subject as each case had been decided on its peculiar facts some broad principles could be 973 deduced from what the learned judges have laid down from time to time: (1)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 vs Granite City Steamship Company ( and City of London Contract Corporation vs Styles ( (2)Expenditure may be treated as properly attributable to capital when it is made not only once and for all but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade: vide Viscount Cave L.C. in Atherton vs British Insulated and Helsby Cables Ltd. ([1926] 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 cost of such acquisition cannot be deducted out of the profits by claiming that it relieves the annual labour bill the business has acquired a now 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. (3)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 not involved directly in that process and remains unaffected by it. One has got to apply these criteria one after the other from the business point of view and come to the conclusion 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 Indian Income tax Act 1922. The question has all along been considered 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 Courts of law would not ordinarily interfere with such findings of 124 974 fact if they have been arrived at on a proper application of those principles. The assessee acquired from the Government of Assam a lease for 20 years (with a clause for renewal) in respect of certain limestone quarries situated in Khasi and Jaintia Hills. In addition to the rents and royalties for lease the assessee as the lessee had to pay two further sums as protection fees ' under the covenants contained in clauses 4 and 5 of the lease. Under clause 4 the portection was in respect of another group of quarries called the Durgasil area and the lessor undertook not to grant for this area any lease permit or prospecting licence regarding limestone to any other party except with a condition that no limestone should be used for the manufacture of cement. This protection was given in consideration of a sum of Rs. 5 000 annually payable by the assessee during the whole period of the lease. Under clause 5 a further protection was given by the lessor to the lessee in respect of the whole of the Khasi and Jaintia Hills District for which lessee was to pay annually Rs. 35 000 to the lessor for 5 years. According to these covenants the assessee in his capacity as the lessee paid the lessor a sum of Rs. 40 000 for the accounting years 1944 45 and 1945 46. Held that the sum of Rs. 40 000 was a capital expenditure inasmuch as it was incurred for the acquisition of an asset or advantage of an enduring nature for the whole of the business and Was no part of the working or operational expenses for carrying on the business of the assesses. Accordingly the payment of Rs. 40 000 was not an allowable deduction under section 10(2)(xv) of the Indian Income tax Act 1922. Countess Warwick Steamship Co. Ltd. vs Ogg [1924] 2 K.B. 292) City of London Contract Corporation vs Styles [18871 Vallambrosa Rubber Co. Ltd. vs Farmer ( Ounsworth (Surveyor of Taxes) vs Vickers Limited ( [19151 Atherton vs British Insulated and Helsby Cables Ltd. ([1925] Usher 's case ( John Smith & Son vs Moore (H. M. Inspector of Taxes) ( [19211 Anglo Persian Oil Co. vs Dale ( Golden Horse Shoe (New) Ltd. vs Thurgood (H. M. Inspector of Taxes) ( [1933]18 T.C. 280). Van Den Berghs Limited vs Clark (H. M. Inspector of Taxes) (I 19341 ; Tata Hydro Electric Agencies Limited Bombay vs Commissioner of Income tax Bombay Presidency and Aden ([19371 L.R. 64 I.A. 215) Sun Newspapers Ltd. and the Associated Newspapers Ltd. vs The Federal Commissioner of Taxation ([1938] 61 C.L.R. 337) Munshi Gulab Singh and Sons. vs Commissioner of Income tax ([1945] Commissioner of Income tax Bombay vs Century Spinning Weaving and Manufacturing Co. Ltd. ([1946] Jagat Bus Service Saharanpur vs Commissioner Of Income tax U.P. & Ajmer Merwara ([1949] Commissioner of Income tax Bombay vs Finlay Mills Ltd. ([1952] S.C.R. 11) Commissioner of Income tax vs Piggot Chapman. & Co. 975 ( and Henriksen (Inspector of Taxes) vs Grafton Hotel Ltd. ( referred to. Benarsidas Jagannath In re ( approved.

of 1951. Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated November 15 1950 of the High Court of Judicature at Madras (Menon and Sayeed JJ.) in Criminal Miscellaneous Petition No. 1278 of 1950. V. K. T. Chari (Advocate General of Madras) (Ganapathy Iyer with him) for the appellant. K. section Krishnaswamy Iyengar (K. Venkataramani with him) for respondent No. 1. 1952. December 5. The Judgment of Patanjali Sastri C.J. Mukherjea Chandrasekhara Aiyar and Ghulam Hagan JJ. was delivered by Patanjali Sastri C.J. Vivian Bose J. delivered a separate judgment. PATANJALI SASTRI C. J. This is an appeal from an order of the High Court of Judicature at Madras quashing certain criminal proceedings instituted in 337 the Court of the Third Presidency Magistrate Madras against the first respondent who is the managing director of a cinema company carrying on business in Madras under the name of "Prabhat Talkies. " The proceeding arose out of a charge sheet filed by the police against the first respondent for an offence under section 29 of the (hereinafter referred to as the Act). The charge was that the first respondent failed to implement certain terms of an award dated 15th December 1947 made by the Industrial Tribunal Madras appointed under the Act and thereby committed a breach of those terms which were binding on him. The first respondent raised a preliminary objection before the Magistrate that the latter had no jurisdiction to proceed with the enquiry because the award on which the prosecution was based was ultra vires and void on the ground that the reference to the Industral Tribunal which resulted in the award was not made by the Government in accordance with the requirements of section 10 'of the Act. As the Magistrate refused to deal with the abjection as a preliminary point the first respondent applied to the High Court under article 226 of the Constitution for a writ of certiorari to quash the proceeding pending before the Magistrate. The application was heard in the first instance by a single Judge who referred the matter to a Division Bench in view of the important questions involved and it was accordingly heard and decided by Govinda Menon and Basheer Ahmed Sayeed JJ. who upheld the objection and quashed the proceeding by their order dated 15th November 1950. From that order the State of Madras has preferred this appeal. The second respondent the South Indian Cinema Employees ' Association (hereinafter referred to as the Association) is a registered trade union whose members are employees of various cinema companies carrying on business in the State of Madras. Among these are the 24 cinema houses operating in the City of Madras including the " Prabhat Talkies". On 8th 338 November 1946 the Association submitted to the Labour Commissioner of Madras who had also been appointed as the Conciliation 'Officer under the Act a memorandum setting forth certain demands against the employers for increased wages and dearness allowance annual bonus of three months ' wages increased leave facilities provident fund and adoption of proper procedure in imposing punishment and requesting the Officer to settle the disputes as the employers were unwilling to concede the demands. After meeting the representatives of the employees and the employers the Labour Commissioner suggested on 28th April 1947 certain " minimum terms " which he invited the employers and the union officials to accept. The managers of six cinema companies in the City including " Prabhat Talkies " agreed to accept the terms but the managements of other companies did not intimate acceptance or non acceptance. It would appear that in the meantime a meeting was convened on 22nd February 1947 of the employees of four cinema companies including "Prabhat Talkies." Ninety four out of 139 workers attended the meeting and resolutions were passed to the effect that no action need be taken about the demands of the Association as the managements of those companies agreed to some improvement in the matter of wages and leave facilities and promised to look into the workers ' grievances if they were real. But as the terms suggested by the Labour Commissioner were not accepted by all the employers the representatives of the Association met that Officer on 13th May 1947 and reported that the Association had decided to go on strike on any day after 20th May 1947 if their demands were not conceded. As the conciliation proceedings of the Labour Commissioner thus failed to bring about a settlement of the dispute he made a report on 13th May 1947 to the State Government as requited by section 12 (4) of the Act stating the steps taken by him to effect a settlement and why they proved unsuccessful. In that report after mentioning the minimum terms suggested by him and 339 enumerating the ten demands put forward by the employee ; the Labour Commissioner stated as follows: "As the employers have not accepted even the minimum terms suggested by me and as the employees are restive I apprehend that they may strike work at ' anytime. I therefore suggest that the above demands made by the workers may be referred to an Industrial Tribunal for adjudication. I have advised the workers to defer further action on their notice pending the orders of Government and he concluded by suggesting the appointment of a retired District and Sessions Judge as the sole member of the Special Industrial Tribunal to adjudicate on this dispute. " Thereupon the Government issued the G. O. M. section No. 2227 dated 20th May 1947 in the following terms: " Whereas an industrial dispute has arisen between the workers and managements of the cinema talkies in the Madras City in respect of certain matters ; And whereas in the opinion of His Excellency the Governor of Madras it is necessary to refer the said industrial dispute for adjudication; Now therefore in exercise of the powers conferred by section 7 (1) and (2) read with section 10 (1) (c) of the " His Excellency the Governor of Madras hereby constitutes an Industrial Tribunal consisting of one person namely Sri Diwan Bahadur K. section Ramaswami Sastri Retired District and Sessions Judge and directs that the said industrial dispute be referred to that tribunal for adjudication. The Industrial Tribunal may in its discretion settle the issues in the light of a preliminary enquiry which it may hold for the purpose and thereafter adjudicate on the said industrial dispute. The Commissioner of Labour is requested to send copies of the order to the managements of cinema talkies concerned 44 340 The Tribunal sent notices to all the cinema companies in the City and to the Association calling upon them to file statements of their respective cases and to appear before it on 7th July, 1947. Pleadings were accordingly filed on both sides and the Tribunal framed as many as 22 issues of which issue (3) is ,material here and runs thus: Is there a dispute between the managements of the City theatres and their respective employees justifying the reference by the Government to the Industrial Tribunal for adjudication ? Whether such an objection is tenable in law ?" It appears to have been claimed on behalf of some of these companies including " Prabhat Talkies " that so far as they ware concerned there was no dispute between the management and their employees and therefore they should not be included in the reference or the award. The Tribunal repelled this argument observing: "That even if some of the theatres have got a staff contented with their lot there is a substantial dispute in the industry taken as a whole. After I arrive at my decision about the basic wages increments dearness allowance etc. the same will bind the industry as a whole in the City of Madras if the Government accepts and implements my award. " The Tribunal accordingly held that none of the cinema companies should be "removed from the ambit of this industrial dispute and adjudication ". It also found as a matter of fact that " the idyllic picture of industrial peace and contentment " put forward by the first respondent company was not justified by the evidence. 'Issue No. 3 was thus found for the Association. The Tribunal finally passed its award on 15th December 1947 which was confirmed by the Government on 13th February 1948 and was declared binding on the workers and the managements with effect from 25th February 1948 the date of its publication in the Fort St. George Gazette for a period of one year from that date. It is alleged that 341 the first respondent failed to implement certain provisions of the award when their implementation was due and thereby committed an offence punishable under section 29 of the Act. No prosecution however was instituted till 24th April 1950 as in the meanwhile certain decisions of the Madras High Court tended to throw doubt on the validity of references made in general terms without specifying the particular disputes or the groups of workers and managements between whom such disputes existed and legislation was considered necessary to validate awards passed on such references. Accordingly the Industrial Disputes (Madras Amendment) Act 1949 was passed on 10th April 1949 purporting to provide inter alia that all awards made by any Industrial Tribunal constituted before the commencement of that Act shall be deemed to be valid and shall not be called in question in any court of law on the ground that the dispute to which the award relates was not referred to the Tribunal in accordance with the provisions of the (section 5). It also purported to validate certain specified awards including " the award in the disputes between the managements of cinema theatres and workers " (section 6) which obviously refers to the award under consideration in these proceedings. In support of his application to the High Court the first respondent herein raised three contentions. First the Government had no jurisdiction to make the reference in question as there was no dispute between the management and workers of " Prabhat Talkies " and therefore the reference and the award in so far as they related to the first respondent were ultra vires and void; secondly in any case the notification by the Government purporting to refer an industrial dispute to the Tribunal was not competent under the Act inasmuch as it did not refer to any specific disputes as &rising for adjudication and did not mention the companies or firms in which the disputes are said to have existed or were apprehended; and thirdly the Madras Amendment Act was 342 unconstitutional and void under section 107 of the Government of India Act 1935 being repugnant 10the provisions of the Central and also void under article 13 (1) read with article 14 of the Constitution as being discriminatory in character. The learned Judges by separate but concurring judgments upheld these contentions and issued a certificate under article 132 (1) of the Constitution as the case raised substantial questions of law regarding the interpretation of the Constitution. As we considered that the contentions of the appellant on the first two points must prevail we did not hear arguments on the constitutional issue. Before dealing with the main contentions of the parties we may dispose of a minor point raised by Mr. Krishnaswami Aiyangar for the first time before us namely that the prosecution of the first respondent for the alleged breach of some of the terms of the Tribunal 's award is unsustainable inasmuch as it was instituted after the expiry of the award. In support of this argument learned counsel invoked the analogy of the cases where it has been held that a prosecution for an offence under a temporary statute could not be commenced or having been commenced when the statute was in force could not be continued after its expiry. Those decisions have no application here. The first respondent is prosecuted for an offence made punishable under section 29 of the Act which is a permanent statute and when he committed the alleged breach of some of the terms of the award which was in force at the time he incurred the liability to be prosecuted under the Act. The fact that the award subsequently expired cannot affect that liability. On behalf of the appellant the Advocate General of Madras urged that the question whether there existed an industrial dispute when the Government made the reference now under consideration was an issue of fact which the High Court ought not to have found in the negative at this preliminary stage 343 before evidence was recorded by the trial court. He submitted however that on the facts already appearing on the record there could be no reasonable doubt that an industrial dispute did exist at the relevant time. We are. inclined to agree. The ten demands set forth in the Labour Commissioner 's letter of the 13th May 1947 which were not agreed to by the managements of the 24 cinema theatres in Madras clearly constituted industrial disputes within the meaning of the Act. Basheer Ahmed Sayeed J. with whom the other ' learned Judge concurred says: "There is nothing in the letter of the Commissioner which would indicate that these demands made by the South Indian Cinema Employees ' Association were referred to the respective owners of the cinema houses in the City of Madras as a body or to any of them individually. " This we think is based on a misapprehension of the true facts. Thedemandswereidenticalwiththose mentioned in the Association 's memorandum originally submitted on the 8th November 1946 and they formed the subject of discussion with the representatives of the cinema companies in the City in the course of the conciliation proceedings. That memorandum which was not made part of the I record in the court below was produced here and Mr. Krishnaswami Aiyangar was satisfied that the demands referred to in that memorandum were the same as those mentioned in the Labour Commissioner 's letter of 13th May 1947 of which all the employers were thus fully aware. Nor is it correct to say " that the disputes if any ' which might have existed between the workmen of the petitioner 's cinema and the petitioner him self had been settled by the petitioner 's ready and willing acceptance of the terms suggested. by the Commissioner ". The terms accepted by the first respondent were what the Commissioner called "the minimum terms " and were by no means the same as the demands put for ward by the Association which were never accepted 344 by the Association. The Commissioner 's letter of the 13th May 1947 made this clear. But in truth it was not material to consider whether there was any dispute outstanding between the first respondent and his employees when the Government made the reference on 20th May 1947. The learned Judges appear to have assumed that the disputes reference to a Tribunal under section 10 (1) (c) of the Act must in order that the resulting award may be binding on any particular industrial establishment and its. employees have actually arisen between them. " Analysing the order of reference of the Madras Government now under consideration the learned Judges observe, it is obvious that there is no mention of the existence of any dispute between the petitioner (the first respondent herein) and his workmen . . . In fact there was no dispute to be referred to a Tribunal so far as this petitioner is concerned. If therefore there was no jurisdiction to make any reference it follows that the whole reference and the award are both invalid and not binding on the petitioner. " This view gives no effect to the words "or is apprehended " in section 10 (1). In the present case the Government referred " and industrial dispute between the workers and managements of cinema talkies in Madras City in respect of certain matters." As pointed out in the Labour Commissioner 's letter to the Government there were 24 cinema companies in Madras and the Association which as a duly registered trade union represented their employees put forward the demands on behalf of the employees of all the cinema houses in the City. Fifteen out of 43 workers of the " Prabhat Talkies " were admittedly members of the Association which thus figured as one of the parties to the dispute. In that situation the Government may have thought without a close examination of the conditions in each individual establishment that disputes which affected the workmen collectively existed in the cinema industry in the City and that even if such disputes had not actually arisen in any particular establishment they could 345 having regard to their collective nature well be appre hended as imminent in respect of that establishment also. It is not denied that notices were sent by the Tribunal to all the 24 companies and they all filed written statements of their case in answer to the demands made by the Association on behalf of the employees. In these circumstances it is idle to claim that the Government had no jurisdiction to make the reference and that the award was not binding on the respondent 's Organisation. The latter was clearly bound by the award under section 18 of the Act. It was next contended that the reference was not competent as it was too vague and general in its terms containing no specification of the disputes or of the parties between whom the disputes arose. Stress was laid on the definite article in clause (c) and it was said that the Government should crystallise the disputes before referring them to a Tribunal under section 1 0 (1) of the Act. Failure to do so vitiated the proceedings and the resulting award. In upholding this objection Govinda Menon J. who dealt with it in greater detail in his judgment said " Secondly it is contended that the reference does not specify the dispute at all. What is stated in the reference is that an industrial dispute has arisen between the workers and the management of the cinema talkies in the City of Madras in respect of certain matters. Awards based on similar references have been the subject of consideration in this Court recently. In Bamayya Pantulu vs Kutty and Rao (Engineers) Ltd.(1) Horwill and Rajagopalan JJ. had to consider an award based on similar references without specifying what the dispute was. " After referring to the decision of the Federal Court in India Paper Pulp Co. Ltd. vs India 'Paper Pulp Workers ' Union(2) and pointing out that though the judgment of the Federal Court was delivered on 30th March 1949 it was not referred to by the High Court in Kandan Textile Ltd. vs Industrial Tribunal Mad ras(3) which was decided on 26th August 1949 the learned Judge expressed the view that the trend of (1) (3) (2) 346 decisions of this Court exemplified in the cases referred to by me above has not been overruled by their Lordships of the Federal Court. " Basheer Ahmed Sayeed J. I however sought to distinguish the decision of the Federal Court on the facts of that case remarking "that a reading of the order of reference that was the subject matter of the Federal Court decision conveys a clear idea as to a definite dispute its nature and existence and the parties between whom the dispute existed. " It is however clear from the order of reference which is fully extracted in the judgment that it did not mention what the particular dispute was and it was in repelling the objection based on that omission that Kania C.J. said: "The section does not require that the particular dispute should be mentioned in the order; it is sufficient if the existence of a dispute and the fact that the dispute is referred to the Tribunal are clear from the order. To that extent the order does not appear to be defective. Section 10 of the Act however requires a reference of the dispute to the Tribunal. The Court has to read the order as a whole and determine whether in effect the order makes such a reference. " This is however not to say that the Government 'will be justified in making a reference under section 10 (1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry and it is also desirable that the Government should wherever possible indicate the nature of the dispute in the order of reference. But it must be remembered that in making a reference under section 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. ' The Court cannot therefore canvass the order of reference closely to see if there was any 347 material before the Government to support its conclusion as if it was a judicial or quasi judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act and that therefore the Tribunal had no jurisdiction to make the award. But if the dispute was an industrial dispute as defined in the Act its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was in its opinion no material before the Government on which it could have come to an affirmative conclusion on those matters. The observations in some of the decisions in Madras do not appear to have kept this distinction in view. Moreover it may not always be possible for the Government on the material placed before it to particularise the dispute in its order of reference for situations might conceivably arise where public interest requires that a strike or a look out either existing or imminent should be ended or averted without delay which under the scheme of the Act could be done only after the dispute giving rise to it has been referred to a Board or a Tribunal (vide sections 10(3) and 23). In such cases the Government must have the power in order to maintain industrial peace and production to set in motion the machinery of settlement with its sanctions and prohibitions without stopping to enquire what specific points the contending parties are quarrelling about and it would seriously detract from the usefulness of the statutory machinery to construe section 10 (1) as denying such power to the Government. We find nothing in the language of that provision to compel such construction. The Government must of course have sufficient knowledge of the nature of the dispute to be 45 348 satisfied that it is an industrial dispute within the meaning of the Act as for instance that it relates to retrenchment or reinstatement. But beyond this no obligation can be held to lie on the Government to ascertain particulars of the disputes before making a reference under section 10 (1) or to specify them in the order. This conclusion derives further support from clause (a) of section 10 (1) which provides in the same language for a reference of the dispute to a Board for promoting a settlement. A Board is part of the conciliation machinery provided by the Act and it cannot be said that it is necessary to specify the dispute in referring it to such a body which only mediates between the parties who must of course know what they are disputing about. If a reference without particularising the disputes is beyond cavil under clause (a) why should it be incompetent under clause (c) ? No doubt the Tribunal adjudicates; whereas the Board only mediates. But the adjudication by the Tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has; to do in determining ordinary civil disputes according to the legal rights of the parties. Indeed this notion that a reference to a Tribunal under the Act must specify the particular disputes appears appears to have been derived from the analogy of an ordinary arbitration. For instance in Ramayya Pantulu vs Kutty & Rao (Engineers) Ltd.(1) it is observed "that if a dispute is to be referred to: a Tribunal the nature of the dispute must be set out just as it Would if a reference were made to an arbitrator in a civil dispute. The Tribunal like any other arbitrator can give an award on a reference only if the points of reference are clearly placed before it. " The analogy is somewhat misleading. The scope of adjudication by a Tribunal under the Act is much wider as pointed out in the Western India (1) 349 Automobile Association 's case (1) and it would involve no hardship if the reference also is made in wider terms provided of course the dispute is one of the kind described in section 2(k) and the parties between whom such dispute has actually arisen or is apprehended in the view of the Government are indicated either individually or collectively with reasonable clearness. The rules framed under the Act provide for the Tribunal calling for statements of their respective cases from the parties and the disputes would thus get crystallised before the Tribunal proceeds to make its award. On the other hand it is significant that there is no procedure provided in the Act or in the rules for the Government ascertaining the particulars of the disputes from the parties before referring them to a Tribunal under section 10(1). In view of the increasing complexity of modern life and the interdependence of the various sectors of a planned national economy it is obviously in the interest of the public that labour disputes should be peacefully and quickly settled within the frame work of the Act rather than by resort to methods of direct action which are only too well calculated to disturb the public peace and order and diminish production in the country and courts should not be astute to discover formal defects and technical flaws to overthrow such settlements. In the result we set aside the order of the High Court and dismiss the first respondent 's petition. BOSE J. I agree but would have preferred to rest my decision on the ground that in this case there was sufficient compliance with the terms of section 10(1) (C) of the Act even on the first respondent 's interpretation of it namely that the words " the dispute " require Government to indicate the nature of the dispute which the Tribunal is required to settle. I say this because in my judgment we must read the order of the 20th May 1947 along with the documentS which accompanied it. I also agree that one (1) 350 must not be over technical but had it not been for the /of act that the point is now settled by the decision in the India Paper ' Pulp Company 's case(1) I would have been inclined to consider that an indication of the nature of the dispute either in the order itself or in the papers accompanying it was necessary. However that is now settled and I have no desire to go behind the decision but I would like to say that even if it is not legally necessary to indicate the nature of the dispute it is in my opinion desirable that that should be done. Appeal allowed. Agent for respondent No. 1: section Subramanian.

The South Indian Cinema Employees ' Association a regis tered trade union whose members were the employees of the 24 cinema houses operating in the Madras City including some of the employees of the Prabhat Talkies submitted to the Labour Commissioner a memorandum setting forth certain demands against their employers for increased wages etc. and requesting him to settle the disputes. The Labour Commissioner suggested certain " minimum terms " which were accepted by some of the companies including the Prabhat Talkies and at a meeting of the employees of the Prabhat Talkies a resolution was passed to the effect that no action be taken about the demands of the Association. The Association decided to go on strike. The Labour Com missioner reported to the Government and the Government made a reference to an Industrial Tribunal the material portion of which " 'Whereas an industrial dispute has arisen between the workers was: and management of the Cinema Talkies in the Madras City in respect of certain matters and whereas in the opinion of His Excellency the Governor of Madras it is necessary to refer the said industrial dispute for adjudication: now therefore etc. " The Prabhat 335 Talkies contended before the tribunal that as there was no dispute between them and their employees they should not be included in the reference or award but the Tribunal did not exclude them and an award was passed and the managing director of the Prabhat Talkies was prosecuted for non compliance with the award: Held by the Full Court (i) that the Labour Commissioner 's report clearly showed that an industrial dispute existed between the management and the employees of the cinema houses; (ii) that as some of the workers of the Prabhat Talkies were members of the Union and a reference could be made even when a dispute was apprehended the Government had jurisdiction to make a reference even in respect of the Prabhat Talkies and the reference and the award were binding on the Prabhat Talkies. Held Per PATANJALI SASTRI C.J. MUKHERJEA CHANDRA SEKHARA AIYAR and GHULAM HASAN JJ. (BosE J. dubitante) that the reference to the Tribunal under section 10 (1) of the cannot be held to be invalid merely because it did not specify the disputes or the parties between whom the disputes arose. Per BOSE J. The order of reference must be read with the documents which accompanied it and there was sufficient compliance with section 10 (1) (c) of the even if the words " the dispute " in the said clause require the Government to indicate the nature of the dispute which the Tribunal is required to settle. Even if it is not legally necessary to indicate the nature of the dispute in a reference it is desirable that that should be done. Per PATANJALI SASTRI C. T. MUKHERJEA CHANDRASEKHARA AIYAR and GHULAM HASAN JJ. Though the Government will not be justified in making a reference under section 10 (1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry and it is also desirable that the Government should wherever possible indicate the nature of the dispute in the order of reference it must be remembered that in making a reference under section 10 (1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot therefore canvass the order of reference closely to see if there was any material before the Government to support its conclusion as if it was a judicial or quasi judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act and that therefore the Tri bunal had no jurisdiction to make the award But if the dispute 336 was an industrial dispute as defined in the Act its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was in its opinion no material before the Government on which it could have come to an affirmative conclusion on those matters. The Government must have sufficient knowledge of the nature of the dispute to be satisfied that it is an industrial dispute within the meaning of the Act as for instance that it relates to retrenchment or reinstatement. But beyond this no obligation can be held to lie on the Government to ascertain particulars of the disputes before making a reference under section 10 (1) or to specify them in the order. The adjudication by the Tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has to do in determining ordinary civil disputes according to the legal rights of the parties. Ramayya Pantulu vs Kuttti and Rao (Engineers) Ltd. [(1949) India Paper Pulp Co. Ltd. vs India Paper Pulp Workers ' Union ([1949 50] F.C.R. 348) Kandan Textiles Ltd. vs Industrial Tribunal Madras [(1949) and Western India Automobile Association 's case ([1949 50] 1 F.C.R. 321) referred to. Judgment of the High Court of Madras reversed.

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. C.K. Daphtary Solicitor General of India (J. B. Dadachanji Rajinder Narain and Devinder Swarup with him) for the appellant. S.C. Isaacs (0. P. Lal with him) for the res. pondent. M.C. Setalvad Attorney General for India (Rajin der Narain and Devinder Swarup with him) for the Intervener (All India Organisation of Industrial Employers). S.C. Isaacs (Mohan Lal Saxena and C. P. Lal with him) for the Intervener (State of U.P.). 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 could 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 controlled 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 994 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 cotton 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 notification 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 not related to or connected with any contract 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 no reason 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 contention of the appellant and awarded the payment of bonus at annas 4 per rupee. On an appeal taken by the appellant to the 995 Industrial Court (Textiles and Hosiery) Kanpur the Industrial Court accepted the contention 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 considerations 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 not 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 consideration 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 nominally 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). Webster 's 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". (1) L. R. (I894) W. N. 30. 996 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 not be paid depending on varying circumstances and under particular conditions has been said to imply a benefit accruing to him who offers it and an inducement to the offeree. " This imports the conception 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 contractual 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 common 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 vs City of Woburn(1) : "The word 'bonus ' is commonly used to denote an increase in salary or wages in contracts of employment. The offer of a bonus is the means frequently adopted to secure continuous service from an employee to enhance his efficiency and to augment his loyalty to his employer and the employee 's 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 compensation for services already (1) 997 rendered gratuitously or for a prescribed compensation where there is neither express or implied understanding that additional compensation may be granted. " This imports the conception that even though the payment be not strictly due to the recipient nor legally enforceable by him a claim to the same may be laid by the employee under certain conditions and if such claim is entertained either by an agreement with the employer or by adjudication before a properly constituted Tribunal as on an industrial dispute arising the same would ripen into a legally enforceable claim. This position was recognised in Sutton vs Attorney General (1) where the Earl of Birkenhead observed "The term 'bonus ' may of course be properly used to describe payments made of grace and not as of right. But it nevertheless may also include as here payments made because legally due but which the parties contemplate will not continue indefinitely" and in National Association of Local Government Officers vs 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 not see why this does not 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 vs Supervisors of Wayne County (1): "But second the meaning of the word 'bonus ' is not 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 company; as the bank paid a bonus for its charter; a sum paid in addition to a stated compensation '. It is not a gift or gratuity but a sum paid for services or upon a consideration in addition to or in excess of that which would ordinarily be given" (1) 297 (3) ; (2) I87. 127 998 and also in Great Western Garment Co. Ltd. vs Minister of National Revenue (1): "A bonus may be a mere gift or gratuity as a gesture of goodwill and not enforceable or it may be something which an employee is entitled to on the happening of a condition precedent and is enforceable when the condition 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 conditionally on certain standards of attendance and efficiency being attained. " There are however two conditions 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 contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions 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 vs Rashtreeya Mill Mazdoor Sangh Bombay (2) "As both labour and capital contribute to the earnings of the industrial concern 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. (1) Provision for depreciation (2) Reserves for rehabilitation (3) A return at 6 per cent. on the paid up capital. (4) 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) 233. (2) 999 It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not 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 no occasion or question can also arise for distribution of any sum as bonus amongst the employees. If the industrial concern has resulted in a trading loss there would be no profits of the particular year available for distribution of dividends much less could 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 vs Their Workmen(1) Textile Mills Madhya Pradesh vs Their Workmen (2) and Famous Cine Laboratory vs 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 concurrence 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) (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 not ordinarily be awarded. It however observed: " But in our opinion that should not 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 consider 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 not only a. reasonable return but much in excess of that. " The Labour Appellate Tribunal did not accept the contention of the respondent that bonus should be linked to dividends nor 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 company would not 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 not be entitled to claim anything as and by way of bonus. The workers not being members of the company would also not have any right title and interest in the reserves or the undistributed profits which would form part of the assets of the company. Even on a winding up of a company the property of the company would be applied in satisfaction of its liabilities pari passu and unless the articles of association of the company otherwise provided in distribution amongst the members according to their rights and interest in the company. The employees would in no event be entitled to any share or interest in the assets and the capital of the company. A transfer of moneys from these reserves or the undistributed profits would therefore not 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 not entitle the workers to demand bonus when in fact the working of the industrial concern during the particular year had showed a loss. It has also got to be remembered that the labour force employed in an industrial concern 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 concern 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 collaborating with the employers is distinct from the one which contributed to the profits of the previous years and there is no continuity between the labour forces which are employed in the industrial concern 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 not 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 not entitle the workers to demand bonus out of those funds if the working of the industrial concern during the particular year has resulted in a trading loss. The considerations of social justice imported by the Labour Appellate Tribunal in arriving at the decision in favour of the respondent were not only irrelevant but untenable. Social justice is a very vague and indeterminate expression and no clear cut definition can be laid down which will cover all the situations. 1002 Mr. Isaacs the learned counsel for the respondent . attempted to give a definition in the following terms : "social justice connotes the balance of adjustments of the various interests concerned 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 concerned here viz. the employers the labour and the State itself and the conception of social justice had to be worked out in this context. Without embarking upon a discussion as to the exact connotation of the expression "social justice" we may only observe that the concept of social justice does not emanate from the fanciful notions 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 concerned. 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 contented 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 vs Their Workmen( 2 ) and in the latter case it deprecated the idea of adjudicators importing considerations of social justice which were not comprised in that formula : " And what is social justice ? Social 'justice is not 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 considered the question of social justice in relation (1) (2) 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 computation of bonus. That Full Bench decision stands and this tribunal and all other tribunals are bound by it. " Without committing ourselves to the acceptance of the above formula in its entirety we may point out that the Labour Appellate Tribunal did not apply its own formula to the facts of the present case. It is also significant to note that even while importing considerations 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 company themselves contributed to the trading losses incurred by the appellant and it hardly lay in their mouth then to contend that they were none the less entitled to a payment of bonus commensurate 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 could have been distributed after paying the workers bonus in that year of four annas in the rupee. We may before concluding refer to an argument which was addressed to us by Mr. Isaacs the learned counsel for the respondent that this Court under article 136 should not interfere with the decisions of the tribunals set up by the . This contention can be shortly answered by referring to our decision in Bharat Bank Ltd. Delhi vs 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 conclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal to a litigant. (Vide (1) (1950] S.C.R. 459. 1004 Dhakeswari Cotton Mills Ltd. vs 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. The appeal will accordingly be allowed with costs. Appeal allowed.

The term bonus is applied to a cash payment made in addition to wages. it generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. 992 There are two conditions 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 contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions are satisfied. The formula for the grant of bonus is as follows: As both labour and capital contribute to the earnings of the industrial concern it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges The first charges on gross profits are (1) provision for depreciation. (2) reserves for rehabilitation (3) a return at 6 per cent. on the paid up capital and (4) 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. The claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage. 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 no occasion or question can arise for distribution of any sum as bonus amongst the employees. Social justice is a very vague and indeterminate expression and no clear cut definition can be laid down which will cover all the situations. The concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. Industrial Tribunals are Tribunals within the meaning of article 136 and article 136 has vested in the Supreme Court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a Court or Tribunal within the territory of India has not given a fair deal to a litigant. In re Eddystone Marine Insurance Co. Sutton vs Attorney General ([19231 National Association of Local Government Officers vs Bolton Corporation Kenicott vs Supervisor of Wayne County ([1873] ; Great 'Western Garment Co. Ltd. vs Minister of National Revenue ([1948] 1 D.L.R. 225) Millowners ' Association Bombay vs Bashtreya Mills Mazdoor Sangh Bombay '[1950] 2 L.L.J. 1247) Nizam Sugar Factory Ltd. Hyderabad vs Their Workmen ([1952] Textile Mills Madhya Pradesh vs Their Workmen ([1952] Famous Cine Laboratory vs Their Workmen ([1953] and Bharat Bank Ltd. Delhi 993 vs Employees of the Bharat Bank Ltd. Delhi ([1960] S.C.R. 469) referred to.

Appeal No. 133 of 1951. Appeal by special leave granted by the Supreme Court on the 1st December 1950 from the Judgment dated the 24th April 1950 of the Central Government Industrial Tribunal Dhanbad in Appeal No. 1 of 1950 arising out of Order dated the 2nd February 1950 of the Regional Labour Commissioner (Central) Dhanbad. N. C. Chatterjee (section L. Chhibber with him) for the appellants. section P. Sinha (section N. Mukherjee with him) for the res pondent. December 12. The Judgment of the Court was delivered by DAS J. This appeal by special leave is directed against the decision dated April 24 1950 of the Central Government Industrial Tribunal at Dhanbad confirming the decision dated February 2 1950 of 430 the Regional Labour Commissioner (Central) Dhanbad which had declared the one day strike by the appellants that took place on November 7 1949 to be an illegal strike. The relevant facts are as follows: On October 13 1949 the appellants through the Secretary of their Union gave a notice to the respondents under section 22(1) of the that they proposed to call a one day strike on the expiry of November 6 1949 for the fulfilment of demands 16 in number noted therein. This strike notice was in accordance with rule 85 of the rules framed under the sent to (1) the Conciliation Officer (Central) Dhanbad (2) the Regional Labour Commissioner (Central) Dhanbad (3) the Chief Labour Commissioner Department of Labour Government of India New Delhi (4) Secretary Ministry of Labour Government of India New Delhi and (5) A.D.C. Dhanbad. This notice was received at the office of the Regional Labour Commissioner (Central) Dhanbad on October 15 1949. 'The Regional Labour Commissioner (Central) held conciliation proceedings at Dhanbad on October 22 1949 but the appellants by their letter of the same date declined to participate in the proceedings alleging that they were convinced that nothing would come out of the same and that the proceedings should therefore be considered "to be ceased. " On the same day the Regional Labour Commissioner (Central) Dhanbad addressed letter No. RLC/CON 5 (Token) 7910 to the Chief Labour Commissioner New Delhi stating that after receipt of the notice of strike he had issued notice to the parties for conciliation that the employers ' representatives were ready to discuss the demands but the Union 's representative filed a petition in writing saying that they did not want to participate in the proceedings and that no fresh material had been placed before him to change his view and that he was not in favour of recommending a reference of the demand to the Industrial Tribunal. The letter ended with a request that the Government 431 may be informed of the situation. It appears that this report was received in the office of the Chief Labour Commissioner New Delhi on October 25 1949. Although the Chief Labour Commissioner in his letter ' of November 17 1949 to the Regional Labour Commissioner ( Central) Dhanbad states that the contents of the latter 's report had already been communicated to the Ministry of Labour a copy of the report was actually sent to and received by the Ministry of Labour only on that day. In the meantime on November 7 1949 the appellants about 700 in number went on one day strike as per their strike notice. Apparently the respondents contended that the strike was illegal and they made an application under section 8 (2) of the Coal Mines Provident Fund and Bonus Scheme Act 1948 to the Regional Labour Commissioner (Central) Dhanbad for a deci sion on the question whether the strike was legal or illegal. By his order dated February 2 1950 the Regional Labour Commissioner (Central) Dhanbad declared that the strike was illegal. Being aggrieved by the aforesaid decision the appellants under section 8 (4) of the last mentioned Act preferred an appeal to the Central Government Industrial Tribunal at Dhanbad which however also held that the strike was illegal and that the conclusions arrived at by the Regional Labour Commissioner (Central) were correct and accordingly dismissed the appear The appellants thereafter applied for and obtained special leave to appeal to this Court. The only question raised on this appeal is whether the strike was illegal. Section 24 (1) of the Act provides inter alia that a strike shall be illegal if it is commenced or declared in contravention of section 22 or section 23 of the Act. Section 22 (1) provides as follows: " 22. (1) No person employed in a public utility service shall go on strike in breach of 'contract(a) without giving to the employer notice of strike as hereinafter provided within six weeks before striking; or 56 432 (b) within fourteen days of giving such notice; or (c) before the expiry of the date of strike specified in any such notice as aforesaid; or (d) during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. " Notice of strike having been given in terms of clause (a) and 14 days having elapsed after the giving of such notice as required by clause (b) and the actual strike having taken place after November 6 1949 being the date specified in the strike notice the only other question for consideration is whether the strike took place during the pendency of any conciliation proceedings before a Conciliation Officer and seven days after the conclusion of such proceedings. Under section 20(1) a conciliation proceeding shall be deemed to have commenced on the date on which a notice of strike under section 22 is received by the Conciliation Officer. In this case the strike notice was received by the Regional Labour Commissioner (Central) who is the Conciliation Officer 'on October 15 1949 and the conciliation proceedings therefore commenced on that date under section 20(1). The relevant portion of sub section (2) of that section runs as follows: A conciliation proceeding shall be deemed to have concluded (a). . . . . . . (b) where no settlement is arrived at when the report of the Conciliation Officer is received by the appropriate Government or when the report of the Board is published under section 17 as the case may be or (c). . . . . . . The Regional Labour Commissioner (Central) who is the Conciliation Officer in this dispute is required by section 12 to hold conciliation proceedings in the prescribed manner and without delay investigate the dispute and to do all such things as 433 he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute. In this case the Regional Labour Commissioner (Central) held conciliation proceedings on October 22 1949 but no settlement could be arrived at as the appellants declined to take part in the proceedings on the ground that they were convinced that nothing would come out of it. That being the position under section 12 (4) it became the duty of the Regional Labour Commissioner (Central) to "as soon ' as practicable after the close of the investigation send to the appropriate Government a full report setting forth the steps taken by him.for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances. and the reasons on account of which in this case a settlement could not be arrived at ". Subsection (6) of this section. requires that the report shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government. As already stated the conciliation proceedings commenced on October 15 1949. The report therefore was to be submitted within fourteen days from that date. In point of fact the report was sent by the Regional Labour Commissioner (Central) to the Chief Labour Commissioner New Delhi on October 22 1949 (which was well within 14 days from the commencement of the conciliation proceedings) with the request that the Government may ' be informed of the situation. Under sub section (4) the report has to be sent to the " appropriate Government " which according to the definition under section 2 (a) means in relation to an industrial dispute concerning a mine the Central Government. The Regional Labour Commissioner (Central) did not send the report direct to Central Government but sent it to the Chief Labour Commissioner New Delhi in accordance with what has been called the usual course and routine of 434 official business. Therefore however was received by the Central Government on or about November 17 1949 and it is only on such receipt that the conciliation proceedings are to be deemed to have concluded according to the provisions of section 20(2)(b). Prima facie therefore the strike which took place .on November 7 1949 was during the pendency of the conciliation proceedings as held by the authorities below. Shri N. C. Chattanooga however argues that in point of fact the conciliation proceedings came to an end when the appellants had withdrawn from the proceedings and the Regional Labour Commissioner (Central) had Bent his report. It is by a legal fiction introduced by section 20 (2) (b) that the conciliation proceedings are prolonged until the actual receipt of the report by the appropriate Government. According to Shri N. C. Chatterjee the conciliation pro ceedings should be held to ' terminate when the Regional Labour Commissioner (Central) sent his report within fourteen days of the commencement of the conciliation proceedings. The difficulty in accepting this ' argument is that while the word "send is used in section 12 (4) and the word " submitted in section 12(6) the word used in section 20 (2) (b)is " received ". That word obviously implies the actual receipt of the report. To say that the conciliation proceedings shall be deemed to have concluded when the report should in the ordinary course of business have been received by the appropriate Government would introduce an element of uncertainty for the provisions of section 22 (1) (d) clearly contemplate that the appropriate Government should have a clear seven days ' time after the conclusion of the conciliation proceedings to make ' up its mind as to the further steps it should take. It is therefore necessary that the beginning of the seven days ' time should be fixed so that there would be certainty as to when the seven days ' time would expire. It is therefore provided in section 20 (2) (b) that the proceedings shall be deemed to have 435 concluded where no settlement is arrived at when the report is actually received by the appropriate Government. Shri N. C. Chatterjee on the other hand strongly urges and not without some force that on that construction it may be possible for the Government or its officers to withhold the report ' designedly or the report may be lost in course of transit or may be actually received after the expiry of the date fixed for the strike in the notice under section 22 (I). Shri N. C. Chatterjee also points out that it will not be possible for the workers to know when the report is actually received and their right to strike may thus be taken away from them ' Shri N. C. Chatterjee contends that the Government cannot take advantage of its own wrong. While we feel considerable force in Shri N. C. Chatterjee 's argument based on hardship we are bound to assume that the. public officers concerned would act fairly and properly. Further it is not a case of the Government taking advantage of its own wrong as suggested by Shri N. C. Chatterjee for here we are concerned with a dispute between the employers and the employees and there is no material before us to justify our attributing the misdeeds if any of the Regional Labour Commissioner (Central) or of the Chief Labour Commissioner to the respondents the employers who are entitled to take their stand on the language of the law. The Court can only construe the statute as it finds it and if there is any defect in the law it is for other authority than this Court to rectify the same. Shri N. C. Chatterjee also urges that the Regional Labour Commissioner (Central) should have under section 12 sent his report to the appropriate Government which in this cage means the Central Government and he should not have sent the report to the Chief Labour Commissioner. Assuming that that is the position then. the fact will still remain that the Central Government did not receive the report and therefore the conciliation proceedings did not come to an end when the strike took place. Shri 436 N. C. Chatterjee also suggests that the Chief Labour Commissioner should have returned the report to the Regional Labour Commissioner (Central) because under the law the report should not have been made to him. He however did not return the same to the Regional Commissioner but took upon himself to.for ward the same to the Labour Ministry. In the circumstances Shri N. C. Chatterjee urges on the authority of Chaturbhuj Ram Lal vs Secretary of State for India (1) that the Chief Labour Commissioner must be deemed to be the agent of the Central Government for the purpose of receiving the report. We adjourned this case in order to enable Shri N. C. Chatterjee to ascertain whether there was any delegation of authority in this behalf by the Central Government to the Chief Labour Commissioner. Shri N. C. Chatterjee has not been able to discover any such delegation of authority. It seems obvious to us that the Chief Labour Commissioner cannot possibly be regarded for this purpose as the Central Government. In point of fact by a notification in the Gazette of India dated April 5 1947$ the Chief Labour Commissioner has been appointed as a Conciliation Officer. and therefore in conciliation proceedings conducted by him he has to submit his report to the Central Government. It follows therefore that the Chief Labour Commissioner must be an authority separate from the Central Government. According to rule 85 to which reference has been made the strike notice has to be sent amongst others to the Chief Labour Commissioner as well as to the Department of Labour of the Government of India which again. indicates that the two are different entities. The Chief Labour Commissioner is therefore only the channel or post office through which correspondence between the Regional Labour Commissioner (Central) and the Central Government is to pass and he cannot possibly be regarded as an agent of the 'Central Government for the purpose of receiving the report. The Chief Labour Commissioner (1) A.I.R. 1927 All 2i5. 437 being the official channel the ruling relied upon by Shri N. C. Chatterjee can have no application to the facts of this case. For reasons stated above we are of opinion that the conclusions arrived at by the authorities below on this point are correct and that this appeal must be dismissed. In the peculiar circumstances of the case however we think that there should be no order as to costs and the parties should bear their own costs. Before concluding we must draw the attention of the authorities concerned to the slack and unbusinesslike manner in which the matter was dealt with in the office of the Chief Labour Commissioner. The Act requires that the Conciliation Officer must submit his report within 14 days from the commencement of conciliation proceedings and then on receipt of the report by the appropriate Government the conciliation proceedings are to be deemed to have concluded. Although factually the conciliation proceedings terminate when a settlement is arrived at before the Conciliation Officer or when it is found that no settlement can be arrived at the Act by a legal fiction prolongs the conciliation proceedings until the actual receipt of the report by the appropriate Government and goes on to provide that the appropriate Government must have seven days ' time to consider what further steps it would take under the Act. Up 'to the expiry of this period of 7 days the Act permits no strike but after that period is over the employees are left free to resort to collective action by way of a strike. Indeed it is on the basis of these provisions that the date of strike has to be carefully selected and specified in the notice of strike to be given by the employees under section 22 (1) of the Act. Thus even a cursory perusal of the Act makes it clear that time is of the essence of the Act and that the requirements of its relevant provisions must be punctually obeyed and carried out if the Act is to operate harmoniously at all. In this case the conciliation officer submitted his report on October 438 22 1949 i.e. well within 14 days from the commencement of the conciliation proceedings as required by section 12 (6) of the Act. The report was sent through what has been called the routine official channel. Admittedly it was received in the office of the Chief Labour Commissioner at New Delhi on October 25 1949 but surprisingly it was not passed on to the Ministry of Labour which is also in New Delhi until about November 17 1949. The employees had no means of knowing when the report was actually received by the Central Government which is the appropriate Government in this case or when the period of 7 days after such receipt expired. But in the belief entertained we think quite legitimately that the official business had been conducted regularly and promptly the employees went on strike on November 7 1949 as previously notified. ' It now transpires that the report had not been actually received by the Central Government and therefore on the letter of the law the strike must be hold to be illegal and the employees must face and bear the consequences of an illegal strike and may even be deprived ' of benefits to which they would otherwise have been entitled. This hardship has been thrown upon the employees for no fault of their own but simply because of the callous indifference or utter inefficiency and slackness apparently prevailing in the office of the Chief Labour Commissioner which cannot be too strongly deprecated. It is to be hoped that public officers would in the discharge of their official duties in future show a greater sense of responsibility than what they have done in the case before us. Appeal dismissed.

A conciliation proceeding cannot be deemed to have concluded under section 20 (2) (b) of the in a case where no settlement has been arrived at as soon as the Conciliation Officer sends his report. It can be deemed to have concluded only when the report is actually received by the appropriate Government. (1) ; 429 The Chief Labour Commissioner New Delhi is not in the absence of any express delegation of powers by the Central Government the agent of the latter for the purpose of receiving the report of a Conciliation Officer. The appellants who had sent notice of their intention to strike declined to participate in conciliation proceedings which were initiated by the Regional Labour Commissioner and the latter sent his report to the Chief Labour Commissioner New Delhi on October 22 1949. The report was received by the Chief Labour Commissioner on October 25 but a copy of the report was sent by the Chief Labour Commissioner and received by the Ministry of Labour only on November 17. Meanwhile the appellants went on strike on November 7: Held confirming the decision of the Industrial Tribunal that under section 20 (2) (b) of the Act the conciliation proceeding held by the Regional Labour Commissioner concluded only on November 17 when his report was received by the Central Government and as the appellants went on strike before that date it was a strike during the pendency of conciliation proceedings and therefore illegal under section 22 (1) (d) of the Act. The provisions of several sections of the show that time is of the essence of the Act and the requirements of its relevant provisions must be punctually obeyed and carried out if the Act is to operate harmoniously.

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. K.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. 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 court 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 complaints about the conduct and dealings of some of their senior officers and allegations of corruption communalism 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 complied with this order and handed over charge as directed. On the 21st March 1950 the following notification 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 commit 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 nominate Sri T. R. Balakrishna Ayyar Government Pleader High Court to prosecute the inquiries on their behalf. The inquiries shall be conducted as early as possible. The officers referred to in para. 1 supra are: I. . . . . . . 2. Sri P. Joseph John". The petitioner was informed by notice of the 24th April 1950 about this inquiry. The notification was signed by Shri K. G. 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 notice regarding the commencement of the enquiry to Shri K. section Raghavan Secre 1015 tary to Government for service on the petitioner. A few days before the date fixed for the commencement 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 counsel 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 commenced the petitioner pleaded not 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 Tribunal 's jurisdiction on the basis of Article 20 of the Covenant entered into between the rulers of Tra vancore and Cochin and it was contended that the proceedings before the Commissioner were criminal in nature and could not be commenced without the sanction of the Rajpramukh and that its absence was fatal to the enquiry. This objection was not 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 concluded 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 not established. On the 5th July 1951 the following communication was sent to the petitioner by the Chief Secretary to Government: "I am to enclose here with a copy 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 not tenable. As against the 26 charges framed 1016 against you the nine charges noted in the margin have not been established and they are accordingly dropped. As regards Charge No. IX in view of the extenuating circumstances the irregularity is condoned. 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 companies 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 connection 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 notice with enclosures why action should not be taken against you as proposed in paragraph 4 above". The petitioner on receipt of this notice 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 not 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 no explanation and did not show any cause against the notice 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 consideration. 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 court 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 contended in the application 1018 that the applicant had no reasonable 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 contended that the consultation with the Public Services Commission was not 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 contentions 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 contended that the enquiry conducted into the charges made against him was wholly illegal and void. In our judgment none of the points urged by the learned counsel was of a substantial character and all of them concerned matters of mere form and no valid 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: " (1) 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. (2) 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 not said that the petitioner was removed by an authority subordinate to that by which he was appointed. There was no occasion 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 vs I. M. Lall(1) and it was held that when a stage is reached when definite conclusions have been come 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 corresponds to Article 311) makes provision and that at that stage a reasonable opportunity has to be afforded to the civil servant concerned. It was also held that there was no anomaly in the view that the statute contemplates 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 not open to him now to say that the requirements of clause (2) of Article 311 have not been satisfied. It was not 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 counsel were afforded facility to inspect the (1) 131 1020 various files concerning 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 not established; but he failed to satisfy the Commissioner as regards the rest and the Enquiry Commissioner held them proved. After the enquiry was concluded the petitioner was furnished with a copy 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 not 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 notice. 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 not 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 notice was not in accordance with the provisions of Article 166 of the Constitution inasmuch as it was not expressed to have been made in the name of the Rajpramukh. As above mentioned this notice was issued on behalf of the Government and was signed by the Chief Secretary of the united State of Travan core 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 compliance with the directory provisions of Article 166 of the Constitution. It was held by this court in Dattatreya Moreshwar Pangarkar vs The State of Bombay(1) that clauses (1) and (2) of Article 166 are directory only and non compliance with them does not result in the order being invalid and that in order to determine whether there is compliance with these provisions all that is necessary to be seen is whether there has been substantial compliance with those requirements. In the present case there can be no manner of doubt that the notice 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 compliance with the provisions of the article. The petitioner accepted this notice and in pursuance of it applied for further time to put in his defence. He was twice granted this time. In these circumstances the contention of Mr. Thomas that as the notice was not expressed as required under Article 166 it was invalid and therefore the requirements of Article 311 were not 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 complied 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 contended that the enquiry at the first stage also was invalid and irregular. He argued that the order appointing the Enquiry Commissioner was not expressed in proper form and that the Commissioner did not conduct the enquiry in accordance with the provisions of the Act. 'The notification 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) ; 1022 the normal course. of business that resolution was communicated to the Rajpramukh. The order thus substantially complies with the requirements of law and in any case the effect of its not being expressed as directed by Article 166 does not vitiate the notification. The appellant as already stated took part in the enquiry defended himself and fought every inch of the ground. That being so it is not possible to hold that he was not given reasonable opportunity at the first stage to defend himself. It was contended that under the Travancore Public Servants (Inquiries) Act 1122) it was only the Maharaja who could make an order under the provisions of that Act and that the Ministers could not 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 contention. The expression "Our Government" means the Maharaja 's 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 construed according to the new set up of Government and when the Council of Ministers had come 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 constitutional 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 could not be started against the petitioner and reliance for this contention 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 no proceedings 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 contention 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 courts. The said two kinds of proceedings do not 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 not contended on behalf of the petitioner that the proceedings before the Commissioner are criminal proceedings. The only contention is that they partake of the nature of criminal proceedings. In our judgment Article 20 of the Covenant does not apply to proceedings which are not criminal but merely partake of that character". In these observations we fully concur. In our view departmental proceedings do not come within the ambit of the Article. Lastly it was urged that there was non 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 consulted. In this case the Public Service Commission was in fact consulted in the matter of the action proposed against the petitioner by removing him. The Public Service Commission agreed to the proposed action. This consultation and the agreement was before the petitioner was asked to show cause why he should not be removed from service. The complaint of the petitioner is that the 1024 consultation with the Public Service Commission sould have been after he was asked to show cause but the petitioner did not show cause and that being so no question arose of consulting the Public Service Commission over again. It was contended that the Public Service Commission should have been consulted on the review petition. To accede to this argument will mean that the State will have to consult the Public Service Commission as many times as he may choose to file review petitions. In our opinion the consultation envisaged by Article 320 does not 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 not avail himself of that opportunity or submit any explanation or show any cause on which the Public Service Commission could be consulted. The order of dismissal having been made there was in the circumstances no further necessity to consult the Public Service Commission. in our opinion therefore there is no force in this contention 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 not provided for under the rules and in our opinion it was not necessary to consult the Public Service Commission at that stage. Such petitions are not within the contemplation of the Constitution. For the reasons given above this appeal fails and is dismissed. In the circumstances of the case we make no order as to costs. Appeal dismissed.

An enquiry under the provisions of the Travancore Public Servants (Inquiries) Act (Act XI of 1132) was held against the petitioner in pursuance of a resolution passed by the Council of Ministers. The petitioner took part in the proceedings denied the charges and raised legal objection to the competence of the Enquiry Commission to hold the enquiry. Some of the charges were held proved. The petitioner was asked by the Chief Secretary to show cause why be should not be removed from service. The petitioner 's request for extension of time to show cause was granted twice but refused a third time. On his failure to avail himself of the opportunity to show cause against the action proposed to be taken against him the report of the Enquiry Commissioner was submitted to the Public Services Commission and the latter approved of the action proposed to be taken against the petitioner. The proceedings relating to the enquiry were submitted to the Rajpramukh and thereupon an order in proper form for the removal of the petitioner from service was made by the Rajpramukh and authenticated by the Chief Secretary to Government. Held (i) that under the provisions of article 311 of the Constitution a civil servant is entitled to have a reasonable opportunity to defend himself and show cause both at the time of enquiry into the charges brought against him and at the stage when definite conclusions have been come to on the charges and the actual punishment to follow is provisionally determined upon. The position cannot be characterised as anomalous if the statute contemplates a reasonable opportunity at more than one stage. In the present case the petitioner had reasonable opportunity to enter upon his defence at both the stages. He fully availed himself of the first opportunity but refused to avail himself of the second opportunity which was offered to him. All the rules of natural justice were observed in the case. (ii) The provisions of article 166(1) and (2) are directory not mandatory; and in order to determine whether there has been compliance with the said provisions all that is necessary to see is that the requirements of the sub sections are met in substance. (iii) After the integration of the two States of Travancore and Cochin the expression " Our Government" means "The Council of Ministers" under the new set up of democratic Government in the United State. The Rajpramukh as the head of the State is merely at constitutional head and is bound to accept the advice of his Ministers. (iv) The consultation envisaged by article 320(3) does not extend to review petitions which the petitioner may choose to file as many times as he likes. (v) The sanction of the Rajpramukli under article 20 of the Covenant of the United State of Travancore Cochin is necessary only before the institution of civil or criminal proceedings. Departmental proceedings do not fall within the ambit of the said Article. 1013 Dattatreya Moreshwar Pangarkar vs The State of Bombay ([1952] S.C.R. 612) referred to.

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. H. J. Umrigar Sri Narain Andlay and Rajinder Narain for the appellant. Porus A. Mehta and P. g. Gokhale for the respondent. 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 nomination paper for election as a Councillor of the Municipality on the 15th March 1951. That nomination 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 (1) This Act may be called the Orissa Municipal Act 1950. (2) It shall extend to the whole of the State of Orissa. (3) It shall come into force in such area or areas on such date or dates as the State Government may appoint from time to time (5) Any notification 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 coming into force. Section 16 of the Act prescribes the disqualifications of candidates for election and provides (1) 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 conferred 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 nominations and the 25th March 1951 for scrutiny of nomination 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 notification under section 1 (3) of the Act. The appellant contended (1) that the Act had not come into operation in the Kendrapara Municipality till the 15th April 1951 that the disqualification prescribed by section 16(1) (ix) could not consequently have been incurred by him on the 15th March 1951 when he filed his nomination paper that the rejection of his nomination paper therefore on that ground by the Election Officer on the 25th March 1951 was illegal and no election could 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 contentions 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 could be held under the Act but were only to take effect on the Act coming into force which means the coming 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 contemplated 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 not come into force in a particular area. Ordinarily the statute enacted by a State Legislature comes into force as soon as it receives 1008 the assent of the Governor. Section 1 (3) of the Act however postpones the commencement 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 nothing but a proviso to section 1 (3) and must be regarded also to have come into operation simultaneously with section 1 (3). Section 1 (5) having thus come 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 contemplated to be taken and those steps which would be thus taken in anticipation of the Act coming into force in a particular area were certainly authorised by the terms of section 1(5) by necessary implication because no elections could 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 nominations the scrutiny of the nomination 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 contemplated the taking of these steps in authorising elections to be held under the Act. No doubt the Act was not to be in force in a particular area until the relevant notification was issued by the State Government and until the Act came into force the disqualifications prescribed in section 16(1) of the Act would not normally 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 not come into force much less could the election rules come into operation and bind the candidates. This argument could have availed the appellant if the State Legislature had not enacted section 1(5) of the Act and the defect could not 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 coming into force which rules bye laws or orders however would not come into effect till the commencement 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 not to take effect till the Act came into force in the particular area. This contention of the appellant therefore fails. The contention 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 not 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 conflict between interest and duty. The possibility of such a conflict 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 129 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 conflict 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 conflict between interest and duty and that in so far as they were not covered 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 not 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 could be justified on ground of avoidance of conflict between interest and duty. The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not 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 covered by the legislation are left out would not 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 not 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 not either be employed as a paid legal practitioner on behalf of the municipality or act as a legal practitioner against the Municipality. There is no fundamental 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 no violation 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 no bar 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 no substance in this contention of the appellant also. The appeal accordingly fails and stands dismissed with costs. Appeal dismissed.

The provisions of section 16(1)(x) of the Orissa Municipal Act 1950 by which a paid legal practitioner on behalf of or against the Municipality is disqualified for election to a seat in such Municipality do not violate the fundamental rights guaranteed to such legal practitioner under article 14 or under article 19(1)(g) of the Constitution of India. The Orissa Municipal Act 1950 having received the Gover nor 's assent on November 7 1950 all preliminary steps specified in section 1(5) of the Act which were taken for the purpose of a Municipal election after such assent are valid even though the Act itself had not then come into force in terms of section 1(3). Accordingly a nomination filed on March 15 1951 was validly subjected to the test of disqualification contained in section 16(1) (x) of the Act and the rejection of such nomination on March 25 1951 was not defective though the Act came into force on April 15 1951 in the area to which the rejected nomination relates. Section 23 of the Orissa General Clauses Act 1937 does not authorise the making of rules or bye laws which are to come into (1) ; 1005 operation before the commencement of the Act but they will be valid under the express provision of section 1(5).

iminal Appeal No. 83 of 1954. Appeal by Special Leave granted by the Supreme Court by its Order dated the 14th September 1953 from the Judgment and Order dated the 5th June 1953 of the High Court of Judicature for the State of West Bengal at Calcutta in Criminal Revisions Nos. 1205 and 1204 of 1952. Ajit Kumar Dutta (A. K. Dutt and section Ghose with him) for the appellants. C. K. Daphtary Solicitor General of India (P. A. Mehta P. G. Gokhale and N. C. Chakravarty with him) for the respondent. 1027 1954. November 30. The Judgment of the Court was delivered by MUKHERJEA J. This appeal which has come before us on special leave is directed against a judgment of Chunder J. of the Calcutta High Court dated the 5th of June 1952 rejecting the appellants application for quashing of certain criminal proceedings started against them and pending before a special court constituted under a notification of the Government of West Bengal issued under West Bengal Act XII of 1952. To appreciate the contentions raised on behalf of the appellants it would be necessary to narrate a few antecedent facts. The two appellants along with four other persons one of whom as died since then were placed on trial before the First Special Tribunal Calcutta which was one of the Tribunals constituted under the Criminal Law Amendment Ordinance XXIX of 1943 passed by the Governor General of India under section 72 of the Government of India Act 1935 on charges of bribery as also of conspiracy under section 120 B of the Indian Penal Code read with section 420 of the Code which was later on replaced by section 409. The trial ended in conviction of all the accused though not on all the charges brought against them and by its judgment dated the 26th May 1952 the Tribunal sentenced them to various terms of imprisonment and fine. It may be convenient to refer here to two of the provisions of Ordinance XXIX of 1943 under which the trial was held and which are material for our present purpose. One of these relates to the composition of the special tribunal and section 4(1) of the Ordinance lays down that "a special tribunal constituted under this Ordinance shall consist of three members". This provision was modified by section 3 of Ordinance I of 1950 which lays down that so far as the First Special Tribunal at Calcutta is concerned for the words "three members" occurring in section 4(1) the words "two members" shall be substituted. The other material provision is contained in section 5(1) of the Ordinance as it stood after the amendment of 1946 132 1028 read with sub section (2) of the same section. Section 5 (1) provides that "the Central Government may from time to time by notification in the official Gazette allot cases for trial to each special tribunal" and section 5(2) lays down that "the special tribunal shall have jurisdiction to try the cases for the time being respectively allotted to them under sub section (1) in respect of such of the charges for offenses specified in the schedule as may be preferred against the several accused". The result therefore is that although a number of offenses are specified in the schedule it is not all cases of these offenses which are to be tried by the special tribunal but only such of them as the Central Government may in its discretion allot to the tribunal. To proceed with the narrative of facts there were separate appeals taken by all the five accused against the judgment of the special tribunal mentioned above to the High Court of Calcutta under the provisions of the Ordinance itself. The appeals were heard by a Division Bench consisting of Chakravartti C. J. and Sinha J. The learned Judges did not enter into the merits of the cases but allowed the appeals on two points of law which according to them vitiated the entire trial. It was held in the first place that the special tribunal which consisted of three members to wit Mr. Barucha Mr. Joshi and Mr. Bose at the material time legally ceased to exist on and from the 16th of December 1949 when Mr. Bose one of the members resigned. It is true that the Amending Ordinance I of 1950 was passed on the llth of January 1950 but as the tribunal was not reconstituted as a fresh tribunal by means of a fresh notification in the gazette as required by section 3 of the new Ordinance the two remaining members could not be regarded as a legally constituted tribunal within the meaning of the Ordinance and all the proceedings before it after the resignation of the third member including the judgment delivered by it were void. It was held in the second place that as section 5(1) of the Ordinance XXIX of 1943 as it stood after the amendment of 1946 read with section 5(2) autho 1029 rises a special court to try not all cases of offences specified in the schedule but only those which the State Government may in its discretion direct it became repugnant to Article 14 of the Constitution as soon as the Constitution came into force. The trial held after the 26th of January 1950 was therefore bad and although no evidence was taken after that date the discriminations in the shape of departures from normal procedure were involved even in the stage of arguments and pronouncement of judgment against the accused and the conviction and sentence must consequently be set aside. After holding the trial to be bad by reason of the illegalities mentioned above the learned Judges proceeded to consider what should be the final order passed in the appeals. Having regard to the voluminous evidence on the record they did not consider it proper to make an order of acquittal in these cases. They indeed felt distressed by the fact that the accused had already undergone the strain of a protracted and harassing trial for nearly four years but held that such considerations could not weigh with a court so as to restrain it from making an order which the law requires. The order passed by the High Court was that the accused should be retried in accordance with law by a court of competent jurisdiction it being left to the State Government to decide whether actually the trial should be proceeded with or not. This order was pronounced on the 29th of April 1952. On the 30th of July 1952 the West Bengal Act XII of 1952 came into force following an ordinance laying down similar provisions which amended in certain respects the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act of 1949. On the 22nd August 1952 three special courts were constituted by a notification of the Government of West Bengal under section 4(2) of this Act of 1949 one of them being described as the West Bengal Second Special Court; and by a notification dated the 19th of September 1952 Mr. N.L. Some was appointed Special Judge to preside over this Court. On the 8th of October 1952 a notification was issued allotting the case against the 1030 Appellants and their co accused to this second court for trial and on the 12th of November 1952 a fresh petition of complaint was filed by one Kalidas Burman Inspector of Police Delhi Special Establishment against the accused under section 120 B read with section 409 and sections 409 and 109 of the Indian Penal Code. On the 21st of November following summonses were issued in pursuance of the complaint and within 6 days from that date all the five accused moved the High Court of Calcutta and rules were issued in their favour calling upon the State Government to show cause why the process issued on the basis of the petition of complaint filed by Kalidas Burman should not be quashed. All these rules came up for hearing before Chunder J. sitting singly and the rules were discharged on the 5th of June 1953. The appellants who were the petitioners in Revision Cases Nos. 1204 and 1205 of 1952 prayed for leave to appeal to this court against this order of the single Judge which was rejected. They subsequently obtained special leave from this court on the strength of which the case has come before us. The substantial point raised by Mr. Dutt who appeared in support of the appeal is that section 12 of the West Bengal Act XII of 1952 operates as a bar to the trial of this case under the Act. It is argued that under orders of the High Court passed in the appeals it is the original case which was commenced before the First Special Tribunal Calcutta under the Central Ordinance XXIX of 1943 which is being retried by the special court constituted under the West Bengal Act XII of 1952. This case it is pointed out was pending before the High Court on the 9th April 1952 which was the date of the commencement of the West Bengal Ordinance preceding the Act and to such cases the provisions of the Act have been expressly made inapplicable by section 12. It is to be noted that the West Bengal Criminal Law Amendment (Special Courts) Act (Act XXI of 1939) was amended by the West Bengal Ordinance VIII of 1952 which came into force on the 9th of April 1952 and this Ordinance was subsequently replaced by 1031 West Bengal Act XII of 1952. Section 12 of the Act provides as follows: "Nothing in this Act shall apply to any proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than a special court". Mr. Dutt contends that the present case is nothing but a continuation of the original case which was tried by the First Special Tribunal of Calcutta under the Central Government Ordinance XXIX of 1943 and against the decision of which Tribunal appeals were taken to the High Court. The appeals were pending before the High Court when Ordinance VIII of 1952 was passed and consequently section 12 of Act XII of 1952 would exclude the application of the provisions of the Act to the present case. For a proper determination of the question it would be necessary first of all to examine the precise scope and object of section 12 of the West Bengal Act XII of 1952. This as said above has only amended certain provisions of the earlier Act XXI of 1949. Act XXI of.1949 provides for the establishment of special courts presided over by special Judges and they are to follow a particular procedure in the trial of cases assigned to them which differs in certain respects from the procedure laid down in the Code of Criminal Procedure and to that extent is prejudicial to the accused. Section 4(1) of Act XXI of 1949 as it stood before the amendment of 1952 provided that "the Provincial Government may from time to time by notification in the official gazette allot cases for trial to a special Judge"; and subsection(2) of the section laid down that "the special Judge shall have jurisdiction to try cases for the time being allotted to him under sub section (1) in respect of such of the charges for the offences specified in the schedule as may be preferred against the several accused and any such case which is at the commencement of this Act or at the time of such allotment pending before any court or any other special Judge shall be deemed to be transferred to the special Judge to whom it is allotted". The result of 1032 the combined operation of the two sub sections therefore was that all the cases of offences specified in the schedule were not to be tried by a special court but those only could be tried which the Provincial Government in its discretion might allot to it. Further there was nothing to prevent the Provincial Government from allotting a case already pending before an ordinary court to a special court constituted under this Act. A provision which allows the Government an unfettered discretion to choose from amongst the cases of offences specified in the schedule to the Act which of them it would allot to the special tribunal for trial according to the special procedure the rest being left to be tried in the ordinary way became after the coming into force of the Constitution open to the charge of being obnoxious to the equal protection clause embodied in Article 14 of the Constitution. This defect was removed and the chance of discrimination eliminated by the Amending Ordinance VIII of 1952 which was afterwards enacted into Act XII of 1952. Section 4 of the Ordinance replaced section 4 of the Act and sub section (1) of this section laid down that "notwithstanding anything contained in the Code of Criminal Procedure 1898 or in any other law the offences specified in the schedule shall be triable by special courts only". There was no provision in this new section of the Ordinance corresponding to section 4(2) of the Act under which cases of offences specified in the schedule pending before ordinary courts could be transferred to special courts. This in sense was anomalous and as the position created by section 4(1) of the Ordinance was that offences specified in the schedule were compulsorily triable by special courts a difficulty could legitimately arise with regard to cases pending before ordinary courts and the question could be raised whether the ordinary courts would have jurisdiction at all to proceed with trial of these cases after the enactment of section 4(1) of the Ordinance. It seems clear that in order to obviate this difficulty section 12 was introduced in Act XII of 1950 which replaced Ordinance 1033 VIII of 1952 and the section expressly provides that the Act would not apply to proceedings pending before any court other than a special court on the date that Ordinance VIII of 1952 came into force. All these pending cases therefore could not be allotted to or tried by a special court under the Act. The question for our consideration is whether the prohibition created by section 12 is attracted to the facts of the present case. Now what was pending before the High Court on the 9th April 1952 were the appeals taken by the appellants and their co accused against the judgment of the First Special Tribunal Calcutta constituted under the Central Ordinance XXIX of 1943. We may agree with the learned counsel for the appel lants that the High Court not being a special court the provisions of section 12 of the Act could not apply to these proceedings but this by itself would be of no assistance to the appellants . To attract the operation of section 12 it is necessary to show that the proceedings which are now before the Special Court under West Bengal Act XII of 1952 were pending before a court other than a special court on the 9th April 1952. In our opinion the expression "proceedings in a court other than a special court" occurring in section 12 means and refers to proceedings relating to trial of a case in the original court and not to proceedings in appeal. If we look to the provisions of Act XII of 1952 we would find that all of them relate to matters concerning constitution jurisdiction and powers of the special courts and the special rules of procedure which they are to apply in the trial of cases and not one of them has any reference to an appeal. The object of the legislature in enacting section 12 as stated above was that cases pending before an ordinary or a non special court at the date when the Ordinance came into existence and which were being tried in the ordinary way should not be brought on to or tried by the special courts in spite of the provi sion of the new section 4(1) introduced by the Ordinance into the Act. This reason manifestly could have no application to appellate proceedings for there 1034 could be no question of cases pending in appeals being allotted to special courts for trial. How the case is to proceed further if the appellate court directs a rehearing would depend entirely on the order which the appellate court passes and is competent in law to pass. If the appeal court directs retrial by an ordinary court as the court competent to try the case or that is the implication of the order the jurisdiction of the special court would be barred not by reason of section 12 of the Special Act but by reason of the order made by the appeal court. In our opinion the pendency of the appeals before the High Court on the relevant date could not attract the operation of section 12 but as the appeals were taken to the High Court from the decision of a court other than a special court as contemplated by Act XII of 1952 whether the retrial directed by the High Court could be held by a court under Act XII of 1952 would depend on the nature and effect of the order which the High Court has made. The High Court did not acquit the accused nor make any order of discharge in their favour. They set aside the conviction and sentence and directed the retrial of the accused by a competent court in accordance with law if the Government chose to proceed against them. We agree with Mr. Dutt that ordinarily an order of retrial means a further trial by the same Tribunal which took cognizance of the case and before which the case must be deemed to be pending until it is finally disposed of in one way or other recognized by law. In this case the accused were neither acquitted nor discharged but the High Court set aside the proceedings of the special court on the ground that the trial held by it became void on and from the 26th January 1950 as section 5(1) of the Ordinance under which the allotment of the case was made and the Tribunal acquired jurisdiction to try it became void and inoperative as soon as the Constitution came into force by reason of its being in conflict with Article 14 of the Constitution. The Special Tribunal therefore from which the appeals came to the High Court must be held according to the decision of 1035 the High Court itself to have lost seisin of these cases after the 26th January 1950 and they had no jurisdiction to proceed with the trial. As the High Court directed these cases to be tried by a competent court they could not possibly be sent back for trial to the Special Tribunal assuming that any such Tribunal existed or could be constituted by the Central Government. The only court which was competent to try these cases would be the special court under Act XII of 1952 and its jurisdiction could not be ousted as the order of the High Court itself proceeded on the footing that no trial could be held by the Tribunal con stituted under Ordinance XXIX of 1943. The jurisdiction of the special court not being ousted by section 12 of the Act or by the order of the High Court we are unable to hold that the proceedings before it should be quashed. The result is that the appeal is dismissed.

Section 12 of the West Bengal Act XII of 1952 provides: " Nothing in this Act shall apply to any proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than a Special Court". On appeal taken by the appellants to the High Court of Cal cutta against their conviction by the First Special Tribunal Calcutta constituted under the Criminal Law Amendment Ordinance of 1943 the High Court set aside the conviction on the ground inter alia that the Special Tribunal was not properly constituted. The High Court directed that the accused should be retried in accordance with law by a court of competent jurisdiction it being left to the State Government to decide whether actually the trial should be proceeded with or not. On the 30th July 1952 the West Bengal Act XII of 1952 came into force following an Ordinance laying down similar provisions which amended in certain respects the provisions of the West Bengal Criminal Law Amendments (Special Courts) Act of 1949. In August 1952 three Special Courts were constituted by a notification of the Government of West Bengal one of them being described as West Bengal Second Special Court. The case against the appellants was allotted to this second court for trial. It was contended on behalf of the appellants that section 12 of the West Bengal Act XII of 1952 was a bar to the trial of the pre sent case under the Act and that under the orders of the High Court passed in the appeals it was the original case which was commenced before the First Special Tribunal Calcutta under Central Ordinance XXIX of 1943 which was being retried by the Special Court constituted under West Bengal Act of 1952. The present case was pending before the High Court on the 9th April 1952 which was the date of the commencement of the West Bengal Ordinance preceding the Act and to such cases the provisions of the Act had been made expressly inapplicable by section 12 and that the present case was nothing but a continuation of the original case which was tried by the First Spe 1026 cial Tribunal Calcutta under the Ordinance of 1943 and against the decisions of which appeals were taken to the High Court. Held (repelling the contention) that what was pending before the High Court on the 9th April 1952 were the appeals taken by the appellants (and their co accused) against the judgment of the First Special Tribunal Calcutta constituted under the Central Ordinance XXIX of 1943 and in order to attract the operation of section 12 it was necessary to show that the proceedings which were pending before the Special Court under West Bengal Act XII of 1952 were pending before a Court other than a Special Court on 9th April 1952. The expression "proceedings in a court other than a Special Court" occurring in section 12 means and refers to proceedings relating to The trial of a case in the original court and not to proceedings in appeal. The object of the legislature in enacting section 12 was that cases pending before an ordinary or a non special court at the date when the Ordinance came into existence and which were being tried in the ordinary way should not be brought to trial or tried by the Special court in spite of the provisions of the new section 4 (1) introduced by the Ordinance into the Act. This reason manifestly could have no application to appellate proceedings for there could be no question of cases pending in appeals being allotted to special courts for trial. How the case was to proceed further if the appellate court directed a rehearing would depend entirely on the order which the appollate court passed and was competent in law to pass. Accordingly as the High Court did not acquit the accused or make an order of discharge but simply set aside the conviction and sentence directing the retrial of the cases by a competent court the only court which was competent to try these cases would be the Special Court under Act XII of 1952 and its jurisdiction could not be ousted as the order of the High Court itself proceeded on the footing that no trial could be held by the Tribunal constituted under Ordi nance XXIX of 1943.

Appeal No. 217 of 1953. Appeal from the Judgment and Order dated the. 16th day of January 1950 of the Income tax Appellate 120 942 Tribunal Calcutta in Income tax Appeal No. 4658 of 1948 49 and E.P.T.A. No. 1137 of 1948 49. N. C. Chatterjee and Veda Vyas (section K. Kapoor and Ganpat Rai with them) for the appellant. C. K. Daphtary Solicitor General for India (G. N. Joshi with him) for the respondent. October 29. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. The appellant is a public limited joint stock company incorporated under the Indian Companies Act 1915 with its registered office at Calcutta. It carries on the business of manufacture and sale of cotton yarn and piece goods. On the 28th of July 1944 the Income tax Officer issued a notice to it under section 22(2) of the Indian Income tax Act calling upon it to file the return of its income for the assessment year 1944 45 (account year being 1943 44). Before the expiry of the due date for filing the return the account books of the appellant company together with the documents relevant to the accounts were taken into custody by the Sub Divisional Officer Narayanganj and it is alleged that these remained in the custody of the court of the Sub Divisional Magistrate till January 1950 when they were handed back to the appellant. In this situation the assessee pleaded for extension of time to furnish the return. This request was refused and a show cause notice was issued under section 28(3) of the Act calling upon the appellant company why penalty should not be imposed upon it for its failure to file the return. An officer of the company appeared before the Income tax Officer and explained the cause for this default. In order to ascertain whether the explanation furnished by the assessee was genuine the Income tax Officer made inquiries from the court concerned about this matter. He also made a request to the court to allow him access to the books of account. The court however neither acceded to the demand that books of account be made available to the assesse nor did it permit the Income tax Officer to have access to them. The 943 Income tax Officer having thus satisfied himself about the genuineness of the assessee 's explanation condoned the default in filing the return and dropped the proceedings taken against the company under section 28(3) of the Act. It seems that no further action in the matter was taken by the department till the year 1947. During that year the company requested the department toreador the proceedings. The proceedings having been revived the appellant company furnished the return of its income for the assessment year 1944 45 on the 16th March 1948. This return however was not a complete document as without the assistance of the books the profits could not be computed according to the provisions of law. On receipt of the return the Income tax Officer issued a notice under section 23(2) of the Act calling upon the company to supply further information on a number of points and to prepare certain statements indicated in the notice. This requisition had to be complied with by the 19th March 1948. On that date the Chief Accounts Officer of the company appeared before the Income tax Officer and asked for further time till the middle of the following week for furnishing the requisite particulars. This request was however refused and assessment was completed on the 20th March 1948. The excess profits assessment was also made final on the 23rd March 1948. The relevant part of the assessment order is in these terms: "From the point of view of profits 1943 was a very good year if not the best for all cotton mills. Expenses on cotton and fuel shows that production was undoubtedly higher whereas it is found that the gross profit disclosed by this company is low. I conclude that full amount of sales have not been accounted for. It is expected that actually the rate of gross profit should have been higher this year. In view of the higher costs of establishment I take it that the rate of about 40% i.e. near about the rate disclosed in 1942 accounts should have been maintained. I add back the Rs. 36 lakhs for unaccounted sales". It may be mentioned that in the return the company had disclosed a gross :profit of 28 per cent . on 944 sales amounting to Rs. 1 78 96 122. The total amount of sales in the year 1942 was of the amount of Rs. 1 15 69 582 disclosing a gross profit of 41 percent. The establishment expenses however during that year were in the sum of Rs. 15 94 101 while during the accounting year relevant to the year under assessment these had gone up to Rs. 34 74 735 on account of labour troubles. A number of other causes were mentioned by the assessee for the low rate of profit during the relevant period; but the Income tax Officer took no notice of them. On appeal this order was upheld by the Appellate Assistant Commissioner. The assessee then appealed to the Tribunal against these decisions. What happened before the Tribunal may well be stated in terms of the Tribunal 's order itself. 'this is what is mentioned in the judgment of the Tribunal: "At the end of the hearing of this appeal on 25th of November 1949 the Income tax Appellate Tribunal requested the departmental representative to produce for the examination of the Income tax Appellate Tribunal the gross profit rates shown or assessed in the cases of other similar cotton mills. The departmental representative wanted 3/4 days ' time to collect information on this point. On this the appellant also wanted to be allowed to produce information regarding the gross profit rates shown or assessed by other similar cotton mills and he was also allowed to produce information on the point. On or about the 29th November the counsel for the appellant requested that he should be allowed time till Saturday the 3rd of December to file the above information and time for this purpose was allowed to him. On the 3rd December Mr. Banerjee the appellant 's counsel saw the Account. ant Member in his chamber and wanted to produce written arguments and a trunk full of books and papers in support of his case. Mr. Banerjee was told that the arguments in the case had finished on the 25th and he was allowed time only to supply to the court the gross profit rates shown or assessed in the cases of other similar cotton mills. He was told that it was pot fair to the other side to take notice of any 945 additional evidence or record at that stage and his trunk of books and papers was returned to him. During the discussion of Mr. Banerjee with the Accountant Member Mr. Banerjee produced a report ' showing that the gross profit rates of some mills in Bengal on the average amounted to 23 per cent. In the statement showing 23 per cent. gross profit rates there was another item called 'Pool profit ' which was bigger than the gross profits rate. Mr. Banerjee was asked to explain what this word 'Pool profit ' meant but he had no information on this point. . For want of this information we are afraid it is not possible for us to attach a great deal of importance to the gross profit percentage of 23 per cent. mentioned in the books produced by Mr. Banerjee. Mr. Banerjee during this discussion further produced a book showing the wastage expected. In that book certain quality of cotton had been mentioned and it was said that wastage of 34 per cent. was normal. In the case of the assessee he has shown a wastage of 9 per cent. in 1942 26 per cent. in 1943 and 19 per cent. ' in 1944. The figure of 34 per cent. shown in that book would therefore seem to refer to a particular quality of cotton very much inferior to the cotton generally used by the appellant. The department 's main case on the question of wastage is based on the appellant 's own books according to which his wastage in the year under review amounted to three times the wastage in the year previous. In the light of all this information it appears to us that the Income tax Officer was justified in making a substantial addition to the gross profit shown by the appellant. Coming to the question of what the amount of addition should be the departmental representative has on our request filed a number of cases of other cotton mills which show a gross profit rates varying between 49 per cent. and 22 per cent. and in one case even 13 per cent. has been shown. . In the face of all the above facts it appears to us that the Income tax Officer was justified in coming to the conclusion that all sales had not been brought into 946 the books. We have however considered all facts relevant to this case and are of the opinion that the addition to the sales should be reduced from Rs. 36 lakhs made by the Income tax Officer to Rs. 16 lakhs Which would reduce the gross profit rate to about 35 per cent. The sum and substance of these decisions is that the Income tax Officer estimated the gross profit on sales at 40 per cent. by a pure guess while the Tribunal reduced it to 35 per cent. by applying some other rule of thumb. It is not clear from either of these judgments on what material these estimates were based. Dissatisfied with the decision of the Tribunal the assessee wanted the Tribunal to state a case and refer to the High Court for its decision ten questions of law. It seems that Dr. Pal who represented the assessee before the Tribunal had only argued one question namely whether the estimate of profit made by the Income tax Officer was excessive or whether it was justified on the material on the record. The other points raised in the memorandum of appeal regarding the validity or the correctness of the procedure of assess ment had been abandoned. The questions which were submitted to the Tribunal. and which it was asked to refer to the High Court concerned all the points including those abandoned before the Tribunal. The Tribunal came to the conclusion that no question of law arose on its order and it therefore dismissed the application made by the assessee. It appears that the assessee then applied to the High Court under section 66(2) of the Act for the issue of a mandamus to the Tribunal directing it to refer to the High Court the very same questions of law which it had refused to refer. This application was summarily rejected. The High Court also refused an application for leave to appeal to this Court. Having exhausted all the remedies that were available to him under the Income tax Act the assessee then made an application to this Court for special leave against the order of the Income tax Tribunal under the provisions of article 136 of the Constitution. Leave was allowed and this appeal is now before us by virtue of that leave. 947 Mr. Chatterjee the learned counsel for the appellant contended inter alia that the assessment order made under section 23(3) of the Income tax Act had been made in violation of the principles of natural justice inasmuch as it was not based on any material whatsoever and that the evidence tendered by the appellant had been improperly rejected. It was further said that the Tribunal acted without jurisdiction in relying on the data supplied by the Income tax department behind the back of the appellant company and without giving it an opportunity to rebut or explain the same. Reliance was placed on the decision of a Full Bench of the Lahore High Court in Seth Gurmukh Singh vs Commissioner of Income tax Punjab(1) for the proposition that while proceeding under sub section (3) of section 23 the Income tax Officer though not bound to rely on evidence produced by the assessee as he considers to be false yet if he proposes to make an estimate in disregard of that evidence he should in fairness disclose to the assessee the material on which he is going to found that estimate; and that in case he proposes to use against the assessee the result of any private inquiries made by him he must communicate to the assessee the substance of the information so proposed to be utilized to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and that he should further give him ample opportunity to meet it. It was said that the Tribunal failed to disclose to the assessee the material that the departmental representative had given to it regarding the rates of gross profit of cotton mills varying between 49 per cent. and 13 per cent. and that if that disclosure had been made the assessee would have satisfied the Tribunal that the mills which had shown gross profits at rates mentioned above had no similarity of any kind with the appellant company 's mill or to other mills in Bengal and therefore those rates had no relevancy in the enquiry as to gross profits of the assessee company 's mill. It was also argued that both the Income tax Officer and the Tribunal acted arbitrarily and on suspicion in estimating the rate of (1) 948 gross profit. In conclusion the learned counsel urged that now that the books of account of the company were available it was only just and fair that the 'Income tax Officer and the Tribunal should examine these book % in order to determine the correctness of the return furnished by the assessee. The learned Solicitor General who appeared for the Commissioner of Income tax West Bengal combated the contentions raised by 'Mr. Chatterjee on a two fold ground: (1) In the first instance without questioning the jurisdiction of this Court to grant special leave against an order of an Income tax Tribunal he argued that such leave should not be granted when remedies provided by the Income tax Act itself were available for correcting errors of the Tribunal and had been taken but without success. It was said that the power conferred on this Court by article 136 of the Constitution being an extraordinary power its exercise should be limited to cases of patent and glaring errors of procedure or where there has been a failure of justice because of the violation of the rules of natural justice or like causes but that this discretionary power should not be exercised for the purpose of reviewing findings of fact when the law dealing with the subject has declared those findings as final and conclusive. (2) That the finding given by the Income tax Officer and affirmed by the Appellate Assistant Commissioner and the Tribunal was based on material and it could not be said that these bodies had acted arbitrarily in this matter. It was contended that the Income tax Officer has very wide powers and is not fettered by technical rules of evidence and pleadings and that the only restriction on his judgment is that he must act honestly on the material however inadequate before him but not capriciously or arbitrarily. It was suggested that owing to the disparity of the rate of wastage the Income tax Officer was entitled to reach the conclusion that the assessee had not disclosed the full sales made by him during the accounting year and that on that basis he was entitled on his own information to make an estimate of the rate of gross profit. 949 As regards the first contention of the learned Solicitor General we are unable to accede to it. It is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in this Court by the constitutional provision made in article 136. The limitations whatever they be are implicit in the nature and character of the power itself. It being an exceptional and overriding power naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula or rule. All that can be said is that the Constitution having trusted the wisdom and good sense of the Judges of this Court in this matter that itself is a sufficient safeguard and guarantee that the power will only be used to advance the cause of justice and that its exercise will be governed by well established principles which govern the exercise of overriding constitutional powers. It is however plain that when the Court reaches the conclusion that a person has been dealt with arbitrarily or that a Court or tribunal within the territory of India has not given a fair deal to a litigant then no technical hurdles of any kind like the finality of finding of facts or otherwise can stand in the way of the exercise of this power because the whole intent and purpose of this article is that it is the duty of this Court to see that injustice is not perpetuated or perpetrated by decisions of Courts and tribunals because certain laws have made the decisions of these Courts or tribunals final and conclusive. What we have said above sufficiently disposes of the first contention raised by the learned Solicitor General. As regards the second contention we are in entire agreement with the learned Solicitor General when he says that the Income tax Officer is not fettered by technical rules of evidence and pleadings and that he is entitled to act on material which may not be accepted as evidence in a Court of law but there the agreement ends; because it is equally clear that in making the assessment under sub section (3) of section 23 of the Act the Income tax Officer is not entitled to 950 make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under section 23(3). The rule of law on this subject has in our opinion been fairly and rightly stated by the Lahore High Court in the case of Seth Gurmukh Singh vs Commissioner of Income tax Punjab (Supra). In this case we are of the opinion that the Tribunal violated certain fundamental rules of justice in reaching its conclusions. Firstly it did not disclose to the assessee what information had been supplied to it by the departmental representative. Next it did not give any opportunity to the company to rebut the material furnished to it by him and lastly it declined to take all the material that the assessee wanted to produce in support of its case. The result is that the assessee had not had a fair hearing. The estimate of the gross rate of profit on sales both by the Income tax Officer and the Tribunal seems to be based on surmises suspicions and conjectures. It is somewhat surprising that the Tribunal took from the representative of the department a statement of gross profit rates of other cotton mills without showing that statement to the assessee and without giving him an opportunity to show that statement had no relevancy whatsoever to the case of the mill in question. It is not known whether the mills which had disclosed these rates were situate in Bengal or elsewhere and whether these mills were similarly situated and circumstances. Not only did the Tribunal not show the information given by the representative of the department to the appellant but it refused even to look at the trunk load of books and papers which Mr. Banerjee produced before the Accountant Member in his chamber. No harm would have been done if after notice to the department the trunk had been opened and some time devoted to see what it contained. The assessment in this case and in the connected appeal * we are told was above the figure of Rs. 55 lakhs and it was meet and proper when dealing with a matter of this magnitude not to employ *civil Appeal NO 218 Of 1953 not reported 951 unnecessary haste and show impatience particularly when it was known to the department that the books of the assessee were in the custody of the Sub Divisional Officer Narayanganj. We think that both the Income tax Officer and the Tribunal in estimating the gross profit rate on sales did not act on any material but acted on pure guess and suspicion. It is thus a fit case for the exercise of our power under article 136. In the result we allow this appeal set aside the order of the Tribunal and remand the case to it with directions that in arriving at its estimate of gross profits and sales it should give full opportunity to the assessee to place any relevant material on the point that it has before the Tribunal whether it is found in the books of account or elsewhere and it should also disclose to the assessee the material on which the Tribunal is going to found its estimate and then afford him full opportunity to meet the substance of any private inquiries made by the Income tax Officer if it is intended to make the estimate on the foot of those enquiries. It will also be open to the department to place any evidence or material on the record to support the estimate made by the Income tax Officer or by the Tribunal in its judgment. The Tribunal if it thinks fit may remit the case to the Income tax Officer for making a fresh assessment after taking such further evidence as is furnished by the assessee or by the department. The coats; of these proceedings will abide the result. Case remitted.

It is not possible to define with any precision the limitations of the powers conferred on the Supreme Court by article 136 of the Constitution. This is an overriding and exceptional power and should be exercised sparingly and with caution and only in special and extraordinary situation. Beyond this no set formula or rule can stand in the way of or fetter the exercise of the power conferred on the Supreme Court under article 136 of the Constitution. Sufficient safeguard and guarantee for the exercise of this power lie in the trust reposed by the Constitution in the wisdom and good sense of judges of the Supreme Court. This power is not hedged in by technical hurdles of any kind when it is called in aid against any arbitrary adjudication or for advancing the cause of justice or for giving a fair deal to a litigant so that in justice may not be perpetrated or perpetuated. Conclusiveness or finality given to any decision by any domestic law cannot dater the Supreme Court from exercising the power conferred under article 136 of the Constitution. The powers given to the Income tax Officer under section 23(3) of the Indian Income tax Act 1922 however wide do not entitle him to base the assessment on pure guess without reference to any evidence or material. An assessment under 9. 23(3) of the Act cannot be made only on bare suspcion. An assessment so made without disclosing to the assessee the information supplied by the departmental representative and without giving any opportunity to the assessee to rebut the information so supplied and declining to take into consideration all materials which the assesses wanted to produce in support of his case constitutes a violation of the fundamental rules of justice and calls for the powers under article 136 of the Constitution. Seth Gurmukh Singh vs Commissioner of Income tax Punjab (1944 I.T.R. 393) approved.

ons Nos. 330 to 333 of 1954. Under article 132 of the Constitution of India for the enforcement of Fundamental Rights. P.B. Das (B. Sen Balaprasad Singh and Ganpat Rai with him) for the petitioner. M. C. Setalvad Attorney General for India and C. A. Daphtary Solicitor General for India (O. N. Joshi Porus A. Mehta and P. G. Gokhale with them) for the respondents. October 21. The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J. Writ Petitions Nos. 330 to 333 of 1954 though presented by different persons raise identical questions for consideration and decision and can be conveniently disposed of by one judgment. 789 In April 1947 Taxation on Income (Investigation Commission) (Act 1947 Act XXX of 1947) was passed by the Central Legislature. By section 3 of the Act the Central Government was empowered to constitute an Income tax Investigation Commission for investigating matters relating to taxation on income with particular reference to the question whether the existing law was adequate for preventing the evasion thereof. Section 5(1) of the Act further empowered the Central Government to make a reference by the 30th June 1948 to the Commission for investigation and report of any cases wherein it had prima facie reason for believing that a person had to a substantial extent evaded payment of taxation on income. The date for making the reference was subsequently extended to 1st of September 1948. By an Amendment Act passed in 1948 it was provided that the life of the Commission in the first instance would be up to the 31st of March 1950 but that it could be further extended to 31st of March 1951. By subsequent legislations the life of the Commission has been extended to December 1955. The procedure prescribed by the Act for making the investigation under its provisions is of a summary and drastic nature. It constitutes a departure from the ordinary law of procedure and in certain important aspects is detrimental to the persons subjected to it and as such is discriminatory. The substantial differences in the normal procedure of the Income tax Act for catching escaped income and in the procedure prescribed by Act XXX of 1947 were fully discussed by this Court in Suraj Mal Mohta vs Sri A. V. Visvanatha Sastri(1) and require no further discussion here. Sub section (4) of section 5 of the Act provided that the Central Government could refer to the Commission cases of persons other than those whose cases had been referred to it by the 1st of September 1948 under section 5(1) if after investigation the Commission made a report to that effect. Thus two categories of oases under Act XXX of 1947 could be referred to the Investigation Commission by the Central Government (1) (1955] 1 S.C.R. 448. 101 790 namely those falling under section 5(1) and those falling under section 5(4) of the Act. In accordance with the provisions of section 5(1) of the Act the Central Government on the 31st of December 1947 referred to the Investigation Commission the cases of the four petitioners for investigation and report. It is alleged by each of these petitioners that no action was taken by the Commission on these references during the original period of its life or even during the extended period provided by the Amendment Act of 1948. If a report had been submitted in these cases during the original period of the life of the Commission the problems that now arise would not have arisen because the Act being a pre Constitution Act was good law before the Constitution and acts done thereunder before the commencement of the Constitution could not be impugned on the basis of the provisions of Part III of the Constitution which came into force on the 26th January 1950. Those provisions had no retrospective operation and could not affect the validity of this law or the completed proceedings taken thereunder. Be that as it may it appears that nothing happened in these cases till January 1952 when it is alleged an official of the Commission summoned the petitioners for a preliminary discussion which took place in February 1952 and since then the petitioners have from time to time been called upon to produce a number of statements and books of account but the investigation has not proceeded beyond the preliminary stages and the Commission itself has admittedly not commenced any proceedings in these cases though a period of nearly seven years has elapsed since the references were made with the result that subsequent events have intervened and in our opinion have made these references to the Commission abortive. As already stated the Constitution of India came into force on the 26th January 1950 and the pre Constitution laws had then to stand the test for their validity on the provisions of Part III of the Constitution. Article 14 of this Part guarantees to all persons the right of equality before the law and equal protection of the laws within the territory of India. This article not 791 only guarantees equal protection as regards substantive laws but procedural laws also come within its ambit. The implication of the article is that all litigants similarly situated are entitled to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination. The procedural provisions of Act XXX of 1947 had therefore to stand the challenge of article 14 and could only be upheld provided they withstood that challenge. The question was canvassed in this Court in April 1954 in Suraj Mal Mohta vs Sri A. V. Visvanatha Sastri (supra). What happened in that case was that the Investigation Commission while dealing with the case of another assessee referred to it under section 5(1) of the Act reported to the Central Government that Suraj Mal Mohta and other members of the family had evaded income tax and their cases should be referred to it under the provisions of sub section (4) of section 5. The reference was accordingly made with the result that Suraj Mal Mohta applied to this Court under article 32 for an appropriate writ restraining the Commission from taking any action against him under the provisions of Act XXX of 1947. It was there contended that the provisions of sections 5(1) 5(4) 6 7 and 8 of the Act had become void after the coming into force of the Constitution being discriminatory in character and that these provisions contravened the guarantee of article 14 of the Constitution. This Court upheld this contention and granted an appropriate writ to Suraj Mal Mohta. It there expressed the opinion that sub section (4) of section 5 on its plain reading was not limited to cases of persons who to a substantial extent had evaded taxation but that it dealt with all those persons whose cases fell within the ambit of section 34 of the Indian Income tax Act and that being so there was no justification for discriminating them in matters of procedure from those dealt with under the Indian Income tax Act and thus sub section (4) of section 5 was hit by article 14 of the Constitution and was void and unenforceable. The result of this decision was that the Commission was restrained from dealing with Mohta 's case. The provisions of section 5(1) 792 of the Act were also attacked in that case as contravening article 14 of the Constitution but the Court refrained from expressing any opinion about their constitutionality as that question had no relevancy then. The consequence of that decision was that a certain provision of Act XXX of 1947 was declared void and unenforceable to the extent of its repugnancy to the provisions of Part III of the Constitution under article 13(1) thereof Its validity however during the pre Constitution period was beyond question. What this Court said in its judgment in Suraj Mal Mohta vs Sri A. V. Visvanatha Sastri (supra) has perhaps resulted in the filing of these petitions which were presented to this Court on the 16th of July 1954 after the decision in that case had been pronounced. In the petitions as originally drafted the provisions of section 5(1) of Act XXX of 1947 were impugned on the ground that they contravened the guarantee of equal protection of the laws enacted in article 14 of the Constitution and for that reason the Commission had no jurisdiction to deal with the cases of the petitioners by applying the discriminatory and drastic procedure of the impugned Act. It was alleged that the petitioners belonged to the same class of persons as were dealt with under the ordinary law enacted in section 34 of the Indian Income tax Act. Before these petitions could come to a hearing and a day after they were presented to this Court the Indian Income tax (Amendment) Ordinance VIII of 1954 was promulgated by the President and this was subsequently made into an Act on the 25th of September 1954. The Indian Income tax (Amendment) Act XXXIII of 1954 though assented to by the President on the 25th of September 1954 came into force with effect from the 17th of July 1954. The provisions of this Act furnished an additional ground of attack to the petitioners on the continuance of proceedings by the Commission in these cases under the provisions of Act XXX of 1947. An application was therefore made seeking permission to urge additional grounds. This was not opposed by the learned Attorney General and was allowed. In the additional grounds it was urged that the relevant 793 sections of Act XXX of 1947 which affected the petitioners had been impliedly repealed by the amended Act of 1954 and ceased to have any legal force and that the Commission could no longer proceed under those provisions against the petitioners. It was further contended that the amended section 34 of the Indian Income tax Act was comprehensive in its scope and all persons that were dealt with under section 5(1) of Act XXX of 1947 had been brought within its ambit and that being so there was no basis left for giving them discriminatory or special treatment different from those similarly situated and who were to be dealt with under section 34 of the Indian Income tax Act as amended. It was said that assuming but without admitting that section 5(1) of Act XXX of 1947 was based on a rational classification and was not hit by article 14 of the Constitution because of that circumstance it had now because of the amendment in section 34 of the Income tax Act become void as the classification which saved it from the mischief of article 14 if at all had become ineffective its distinctive characteristics having disappeared and that the persons falling within the class defined in section 5(1) now belong to the same class as is dealt with by section 34 as amended. Two questions were thus canvassed before us: (1) Whether section 5(1) of Act XXX of 1947 infringes article 14 of the Constitution inasmuch as it is not based on a rational classification ? (2)Whether after the coming into force of the Indian Income tax (Amendment) Act 1954 which operates on the same field as section 5.(1) of Act XXX of 1947 the provisions of section 5(1) of Act XXX of 1947 assuming they were based on a rational classification have not become void and unenforceable as being discriminatory in character.? In our opinion for the purpose of deciding these petitions it is not necessary to express any opinion on the first question because we think the second contention is well founded and is sufficient to determine the case in favour of the petitioners. The provisions of section 15(1) of Act XXX of 1947 could only be supported if at all for a differential 794 treatment of persons dealt with in that section in matters of procedure on the ground that these persons constituted a separate class and the classification was rational. Parliament has however by amending section 34 of the Indian Income tax Act now provided that cases of those very persons who originally fell within the ambit of section 5(1) of Act XXX of 1947 and who it was alleged formed a distinct class can be dealt with under the amended section 34 and under the procedure provided in the Income tax Act. Both categories of persons namely those who came within the scope of section 5(1) as well as those who came within the ambit of section 34 now form one class. In other words substantial tax dodgers or war profiteers who were alleged to have formed a definite class according to the contention of the learned AttorneyGeneral under section 5(1) and whose cases needed special treatment at the hands of the Investigation Commission now clearly fall within the ambit of amended section 34 of the Indian Income tax Act. That being so the only basis for giving them differential treatment namely that they formed a distinct class by themselves has completely disappeared with the result that continuance of discriminatory treatment to them comes within the mischief of article 14 of the Constitution and has thus to be relieved against. All these persons can now well ask the question why are we now being dealt with by the discriminatory and drastic procedure of Act XXX of 1947 when those similarly situated as ourselves can be dealt with by the Income tax Officer under the amended provisions of section 34 of the Act. Even if we once bore a distinctive label that distinction no longer subsists and the label now borne by us is the same as is borne by persons who can be dealt with under section 34 of the Act as amended; in other words there is nothing uncommon either in properties or in characteristics between us and those evaders of income tax who are to be discovered by the Income tax Officer under the provisions of amended section 34. In our judgment no satisfactory answer can be returned to this query because the field on which amended section 34 operates 795 now includes the strip of territory which previously was occupied by section 5(1) of Act XXX of 1947 and two substantially different laws of procedure one being more prejudicial to the assessee than the other cannot be allowed to operate on the same field in view of the guarantee of article 14 of the Constitution. The learned Attorney General attempted to combat this contention on a two fold ground: (1) That the class of persons dealt with under section 5(1) of Act XXX of 1947 was not only the class of substantial taxdodgers but it was a class of persons whose cases the Central Government by 1st of September 1948 had referred to the Commission and that class had thus become determined finally on that date and that that class of persons could be dealt with by the Investigation Commission under the drastic procedure of Act XXX of 1947 while section 34 of the Indian Income tax Act as amended empowered the Incometax Officer to deal with cases other than those whose cases had been referred under section 5(1) to the Investigation Commission : (2) That in any case the proceedings having started before the Commission in pursuance of the reference under section 5(1) of Act XXX of 1947 those proceedings cannot be affected by the amendment it having no retrospective operation. Both these contentions in our opinion are not well founded. As regards the first contention canvassed by the learned Attorney General it seems to us that it cannot stand scrutiny. The class of persons alleged to have been dealt with by section 5(1) of the impugned Act was comprised of those unsocial elements in society who during recent years prior to the passing of the Act had madesubstantial profits and had evaded payment of tax on those profits those cases were referred to the Investigation Commission before 1st September 1948. Assuming that evasion of tax to a substantial amount "could form a basis of classification at all for imposing a drastic procedure on that class the inclusion of only such of them whose cases had been referred before 1st September 1948 into a class for being dealt with by the drastic procedure leaving other tax evaders 796 to be dealt with under the ordinary law will be a clear discrimination for the reference of the case within a particular time has no special or rational nexus with the necessity for drastic procedure. Further it seems that this very class of persons is now included within the ambit of the amended section 34 of Act XXXIII of 1954. The draftsman of this section has apparently attempted to remedy whatever defects in the classification made under section 5(1) of Act XXX of 1947 had been pointed out during the discussion in Suraj Mal Mohta 's case in this Court. The preamble of the Act states that the Act is intended to provide for assessment or reassessment of persons who to a substantial extent had evaded payment of tax during a certain period and for matters connected therewith. The language employed here bears close likeness to that employed in section 5(1) of the impugned Act. The Act has inserted the following sub section in section 34 of the Indian Income tax Act : " (I A) If in the case of any assessee the Income. tax Officer has reason to believe (i)that income profits or gains chargeable to income tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September 1939 and ending on the 31st day of March 1946; and (ii)that the income profits or gain which have so escaped assessment for any such year or years amount or are likely to amount to one lakh of rupees or more; he may notwithstanding that the period of eight years or as the case may be four years specified in subsection (1) has expired in respect thereof serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22 and may proceed to assess or reassess the income profits or gains of the assessee for all or any of the years referred to in clause (1) and thereupon the provisions of this Act shall so far as may be apply accordingly It was argued in Mohta 's case as well as in these petitions that the classification made in section 5(1) of 797 the impugned Act was bad because the word "substantial" used therein was a word which had no fixed meaning and was an unsatisfactory medium for carrying the idea of some ascertainable proportion of the whole and thus the classification being vague and uncertain did not save the enactment from the mischief of article 14 of the Constitution. This alleged defect stands cured in the amended section 34 inasmuch as the Legislature has clearly indicated in the statute what it means when it says that the object of the Act is to catch persons who to a substantial extent had evaded payment of tax in other words what was seemingly indefinite within the meaning of the word "substantial" has been made definite and clear by enacting that no evasion below a sum of one lakh is within the meaning of that expression. Again the classification of section 5(1) was criticized on the ground that it did not necessarily deal with persons who during the period of war had made huge profits and evaded payment of tax on them. The amendment made in section 34 has remedied this defect also. The amended section clearly states that the amended section will operate on income made between the 1st September 1939 and the 31st March 1946 and tax on which has been evaded. It is thus clear that the new sub section inserted in section 34 by the provisions of Act XXXIII of 1954 is intended to deal with the class of persons who were said to have been classified for special treatment by section 5(1) of Act XXX of 1947. The learned Attorney General frankly conceded that to a certain extent the two sections overlapped but he urged that the overlapping was not complete and that those remained still outside it whose cases had already been referred to the Investigation Commission. We are unable to uphold this contention in view of the clear language employed in the amended Act and this contention is therefore negatives. The second contention raised by the learned Attorney General is in our opinion concluded by a number of earlier decisions of this Court wherein it has been held that when an Act is valid in its entirety before the date of the Constitution the part of the proceedings regulated by the special procedure and 102 798 taken during pre Constitution period cannot be questioned however discriminatory it may have been but that if the discriminatory procedure is continued after the date of the Constitution then a person pre judicially affected by it can legitimately ask why he is now being differently treated from others similarly situate vide Kesava Madhaya Menon vs The State of Bombay(1) and Lachmandas Kewalram Ahuja and Another vs The State of Bombay(2). The same propositions were re stated by this Court in Syed Qasim Razvi vs State of Hyderabad(1) and in Habeeb Mohammad vs State of Hyderabad(1). In the cases of these petitioners as already pointed out the proceedings taken by the Investigation Commission against them under the discriminatory procedure of the impugned Act against them have not been com. pleted and are pending and that being so no justification remains for continuing these proceedings against them under the procedure of the impugned Act when other persons of their class and having the same common characteristics can be dealt with by the Income tax Officer under the provisions of the amended Act and the procedure of the ordinary law of the land. For the reasons given above we are of the opinion that assuming the provisions of section 5(1) of Act XXX of 1947 could be saved from the mischief of Article 14 of the Constitution on the basis of a valid classification that defence is no longer available in support of it after the introduction of the new sub section in section 34 of the Income tax Act which sub section is intended to deal with the same class of persons dealt with by section 5(1) of the impugned Act. The result is that proceedings before the Investigation Commission can no longer be continued under the procedure prescribed by the impugned Act. We 'therefore direct that an appropriate writ be issued against the Commission prohibiting it from proceeding further with the cases of these petitioners under the provisions of Act XXX of 1947. In the peculiar circumstances of this case we make no order as to costs in these petitions. Writ issued.

Parliament by amending section 34 of the Indian Income tax Act 1922 by passing the Indian Income tax (Amendment) Act (XXXIII of 1954) has now provided that oases of those very persons who originally fell within the ambit of section 5(1) of Taxation on Income (Investigation Commission) Act 1947 (XXX of 1947) and who it 788 was alleged formed a distinct class can be dealt with under the amended section 34 and under the procedure provided in the Indian Income tax Act. Both categories of persons namely those who came within the scope of section 5(1) as well as those who came within the ambit of section 34 now form one class. Held that after the coming into force of the Indian Income tax (Amendment) Act 1954 (XXXIII of 1954) which operates on the same field as section 5(1) of Act XXX of 1947 the provisions of section 5(1) of Taxation on Income (Investigation Commission) Act 1947 (XXX of 1947) assuming they were based on a rational classification have become void and unenforceable as being discriminatory in character. Article 14 of the Constitution not only guarantees equal protection as regards substantive laws but procedural laws as well. When an Act is valid in its entire by before the date of the Constitution the part of the proceedings regulated by the special procedure and taken during the pre Constitution period cannot be questioned however discriminatory it may have been but the discriminatory procedure after the coming into force of the Constitution cannot be continued. Suraj Mal Mohta vs Sri A. V. Viavanatha Sastri (A.I.R. Keshava Madhava Menon vs The State of Bombay ; Lachmandas Kewalram Ahuja and Another vs The State of Bombay ([1962] S.C.R. 710) Syed Qasim Razvi vs State of Hyderabad ([1953] S.C.R. 589) and Habeeb Mohammad vs State of Hyderabad ([1953] S.C.R. 661) referred to.

iminal 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. B. K. Saran and M. M. Sinha for the appellants. M. 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.0 's order sheet. Withdrawn and transferred to the file of Mr. section F. Azam Magte. with powers u/s 30 Cr. P. C. for favour of disposal". The appellants were then tried by Mr. section 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 convicted under both the sections and sentenced to rigorous imprison ment for five years under section 366 Indian Penal Code no separate 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 consisting of section K. Das and C. P. Sinha JJ. There was a difference of opinion between the two learned Judges as to the constitutionality of section 30 of the Code of Criminal Procedure. section K. Das J. took the view that the impugned section did not bring about any discrimination or inequality between persons similarly circumstanced and consequently did not 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 section K. Das J. held that section 30 did not violate the inhibition of article 14. The learned Chief Justice upheld the conviction 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 contends 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 complaint is that the appellants had been tried by a section 30 Magistrate and not 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 commitment proceedings before a Magistrate and then a trial before the Sessions Judge with the aid of the jury or assessors. It has not 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 come up for discussion before this Court in a number of cases. namely Chiranjit Lal Chowdhuri vs The Union of India(1) The State of Bombay vs F. N. Balsara(2) The State of West Bengal vs Anwar Ali Sarkar(3) Kathi Raning Rawat vs The State of Sau (1) ; (2) ; (3) ; 1049 rashtra(1) Lachmandas Kewalram Ahuja vs The State of Bombay(2) and Qasim Razvi vs The State of Hyderabad(3) and Habeeb Mohamad vs The State of Hyderabad(4). It is therefore not necessary to enter upon any lengthy discussion as to the meaning scope and effect of the article in question. It is now well established that while article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order however to pass the test of permissible classification two conditions 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 consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure. The contention now 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 no less 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 (iv) 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: "28. Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried (1) ; (3) ; (2) [1952] S C R. 710. (4) ; 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 column of the second schedule to be triable". Section 30 as it now stands provides: "30. 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 not withstanding anything contained 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 not punishable with death". Section 34 puts a limit to the power of punishment of a section 30 Magistrate in terms following: "34. 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 noticed 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 controlled 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 "notwithstanding anything contained 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 not 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 competent to try all offences not punishable with death to the exclusion of all other Courts mentioned in the 8th column of the second schedule. 1051 If that had been the position then there could be no question of discrimination for in that situation section 30 Magistrate 's Court would be the only Court in which all offences not punishable with death would become triable. As already stated this extreme claim is not 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 court in which all offences not 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 column of the second schedule the Magistrate so em powered as a Court before whom all offences not 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 not punishable with death. There is an obvious classification on which this section is based namely that such power may be conferred 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 correctly 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 considerations. An instance of such territorial classification is to be found in the which came up for discussion before this Court and was upheld as valid in The State of Punjab vs Ajaib Singh(1). section 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) ; 135 1052 the Court of Session functions at considerable 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 not bring about any discrimination whatever. The section only authorises the State Government to invest certain 'Magistrates with power to try all offences not 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 commits any offence not 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 committing such an offence. Therefore there is no discrimination in the section itself. The learned counsel for the appellants however contends on the strength of the decision of the Supreme Court of America in Yick Wo vs 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 contention is that although the section itself may not 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 commit the accused to the Court of Session. It is necessary to examine this contention 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 not 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 not meet the ends of justice he may instead of disposing of the case himself act under section 347 and commit 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 not 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 not 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 consider that in the facts and circumstances of the case disclosed in the evidence the ends of justice require that the accused person should be committed 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 competent 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 not 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 concerned. 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 vs Hughes(1) "the Constitution does not 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 not 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 vs Hughes (supra). It may be mentioned at once that in the present case there is no suggestion 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 not arbitrary and the law provides for revision by (1) ; ; 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 section K. Das J. and Reuben C. J. and hold that no case of infringement of fundamental right under Article 14 has been made out. In the circumstances we dismiss this appeal. Appeal dismissed.

It is well settled that while Article 14 of the Constitution forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order however to pass the test of permissible classification two conditions must be fulfilled namely (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together 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 nexus between the basis of classification and the object of the Act under consideration. Further Article 14 condemn ; discrimination not only by a substantive law but also by a law of procedure. The Constitution does not assure unanimity of decisions or immunity from merely erroneous action whether by the courts or the executive agencies of a State. Section 30 of the Code of Criminal Procedure does not infringe the fundamental right guaranteed by Article 14 of the Constitution. Chiranjit Lal Chowdhuri vs The Union of India ( ; The State of Bombay vs F.N. Balsara ([1951] S.C.R. 682) The State of West Bengal vs Anwar Ali Sarkar ([1952] S.C.R. 284) Kathi Raning Rawat vs The State of Saurashtra ([1952] S.C.R. 435) Lachmandas Kewalram Ahuja vs The State of Bombay ([1952] S.C.R. 710) Qasim Razvi vs The State of Hyderabad ([1953] S.C.R. 581) Habeeb Mohamad vs The State of Hyderabad ([1953] S.C.R. 661) The State of Punjab vs Ajaib Singh ([1953] S.C.R. 254) Yick Wo vs Peter Hopkins ([1886] ; 29 L. Ed. 220) and Snowden vs Hughes ([1944] ; ; referred to.

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. M.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. 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 consisted 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 course 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: (1)"Was the Will in question lawfully and validly executed and attested? (2)Had the testator testamentary capacity at the time of the execution of the Will? (3)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 section C. Lahiri JJ. Before them the appellant did not contest the correctness of the finding of the Additional District Judge that the testator had testamentary capacity when he executed the will. The two contentions 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 not 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 contends 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 vs Rossborough(1) "that a will has been executed with due solemnities by a person of competent 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 vs Lamoureux(2). In the present case it is not 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 now 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: ; (2) 1039 intercaste marriage and did his best to stop it but without success. The correspondence 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 could not 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 consent 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 not 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 Naresh 's wife Sreemati Santi of inheritance from me and from all my movable and immovable properties ancestral as well as self acquired. They shall not get any share or interest or possession in any of my aforesaid properties". It is not disputed that these recitals accord with what the testator had expressed in the correspondence 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 not correctly reflect the then mind of the testator. We have been taken through the entire correspondence 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 connected 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 could not 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 correspondence which has been read to us there is nothing 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 considered that he was under no sort of obligation to come 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 continued to correspond 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 course of the one had no effect on the direction of the other. The testator it is clear from the correspondence was a man of strong will determined and unshakable in his resolutions. He wrote of himself in exhibit C(34) that "I am one third conservative 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 community with disfavour. In exhibit 6(c) he wrote "You broke our hearts for a woman who has no right 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 come 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 not 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 considerable. 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 not unnatural for the testator so to order the distribution of his estate as to secure the continuance of the existing state of affairs. The terms of the will therefore cannot be relied on as intrinsic evidence of undue influence as contended for by the appellant. Then there is the evidence of Indira the daughter of the testator which was taken on commission. 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 not 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 no change in the conduct of the appellant that he was extravagant in his habits and incurred debts and that he had taken away some articles. We do not consider 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 complication" though it may be noted that they insisted on their rights under the will. Stripped of all its embellishments the evidence of Indira if true comes only to this that the first respondent told his father that he could not live under the same roof with his brother and that in view of that attitude the testator gave no share 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 no question of undue influence. It is elementary law that it is not 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 no element of fraud or coercion 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 vs Hall(1): "But all influences are not 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 convincing the judgment is a species of restraint under which no valid will can be made. Importunity or threats such as the testator has the courage to resist moral command 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 testator 's judgment discretion or wishes is overborne will constitute undue influence though no force is either used or threatened. In a word a testator may be led but not driven; and his will must be the offspring of his own volition and not the record of some one else 's". 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 coercion 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 consequence 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 not rendered invalid by the intercession and persuasion of B". (1) (1868) L.R. 1 P. & D. 481 & 482. 134 1044 Even if we accept the evidence of Indira the case would on the facts fall within this Illustration It is not disputed that the testator was in full possession of his mental faculties. There is no proof 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 no act 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 not 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 conclusion that the will is not open to question on the ground of undue influence. It was also argued for the appellant that there was no proof 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. 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 not add that they signed the will in the presence of the testator. Now the contention is that in the absence of such evidence it must be held that there was no due attestation. Both the Courts below have 1045 held against the appellant on this contention. 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 not cross examined on the question of attestation it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination in chief that they signed the will in the presence of the testator there was no due 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 consideration 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 not challenged on behalf of the caveator at the time of the hearing of the suit". This contention of the appellant must also be rejected. In the result the decision of the High Court is confirmed and this appeal is dismissed but in the circumstances without costs. Appeal dismissed.

When once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent the burden of proving that it was executed under undue influence is on the person who alleges it. It is well settled that it is not 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 cause before the testator and to persuade him to make a disposition in his favour. And if the testator 133 1036 retains his mental capacity and there is no element of fraud or coercion the will cannot be attacked on the ground of undue influence. All influences are not unlawful. Persuasion appeals to the affections or ties of mankind 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 convincing the judgment is a species of restraint under which no valid will can be made. It cannot be laid down as a matter of law that because the attesting witnesses did not state in examination in chief that they signed the will in the presence of the testator there was no due attestation as required by section 63 of the Indian Succession Act. It is a pure question of fact depending on the appreciation of evidence and the circumstances of each case whether the attesting witnesses signed in the presence of the testator. Boyse vs Rossborough ([1857] ; ; Craig vs Lamoureux and Hall vs Hall ([1868] L.R. I P. & D. 481) referred to.

Appeal No. 144 of 1953. Appeal from the Judgment and Order dated the 28th November 1951 of the High Court of Judicature at Calcutta in Reference No. 40 of 1950. Sukumar Mitra (section N. Mukherjee with him) for the appellant. C. K. Daphtary Solicitor General of India (G. N. Joshi with him) for the respondent. November 1. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. This is an appeal from the judgment of the High Court of Calcutta on a reference under section 66(1) of the Income tax Act. The appellant is a Company which came into existence in 1870 as an unregistered association and in 1906 it was registered under the provisions of the Indian Companies Act. Its business consists exclusively in granting terminable pensions or annuities dependent on human life in favour of the subscribers or their nominees. The dispute in this appeal relates to the assessment of the profits of the Company for income tax for the periods 1943 1944 1944 1945 1945 1946 and 1946 1947. To follow the points in issue it will be useful to refer to the statutory provisions bearing on the matter. Section 2(11) of the defines "life insurance business" as meaning "the business of effecting contracts of insurance upon human life" and as including "the granting of annuities upon human life. " The business of the appellant Company would therefore be life insurance business as defined in section 2(11) of the . Under section 10(7) of the Indian Income tax Act the profits and gains of any business of insurance are to be computed in accordance with the Rules in the Schedule to the Act. Rule 2 in the Schedule is as follows: " The profits and gains of life insurance business shall be taken to be either 824 (a)the gross external incomings of the preceding year from that business less the management expenses of that year or (b)the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the actuarial valuation for the last intervaluation period ending before the year for which the assessment is to be made ' so as to exclude from it any surplus or deficit included therein which was made in any earlier intervaluation period and any expenditure which may under section 10 of this Act be allowed for in computing the profits and gains of a business whichever is the greater. "Rule 5(ii) defines "gross external incomings" as including profits on the sale or the granting of annuities. These Rules came into force in 1939. In 1945 the assessment of the profits of the appellant Company for the years 1943 1944 1944 1945 and 19451946 was taken up by the Income tax Officer. Under Rule 2 what the Income tax Officer had to do was to compute the profits of the Company under the two heads (a) and (b) in that Rule and to adopt whichever was higher as assessable profits. What he actually did however is uncertain because the orders of assessment themselves have not been exhibited as part of the record. From the order of the Tribunal dated 5th March 1949 it appears that the Income tax Officer firstly determined the profits under Rule 2(b) on the basis of actuarial valuation after making certain adjustments; and secondly on the basis of the figure arrived at under Rule 2(b) he worked out the profits under Rule 2(a) by making further adjustments. These orders were made on 14th July 1945. The company preferred appeals against them to the Appellate Assistant Commissioner who held by his order dated 30th November 1945 that the annuity business contemplated by Rule 5(ii) was "purely annuity business" that the business carried on by the Company was "an admixture between an annuity and life insurance" and that there had been no adequate investigation by the Income tax Officer of the nature of the business of the Company. He 825 accordingly remanded the case for further enquiry and for passing fresh orders of assessment. By the time the matters came up for further enquiry before the Income tax Officer in pursuance of the order of remand the assessment of the profits of the Company for the year 1946 1947 had also to be made. By order dated 23rd December 1946 the Income tax Officer determined the assessable profits of the Company for all the four years. He held that there was no element of insurance in the business of the Company and that the computation should be made under Rule 2(a). Then he proceeded to assess the profits under that Rule precisely in the manner adopted by him in his order dated 14th July 1945. He first took the annual adjusted surplus calculated according to the actuarial valuation under Rule 2(b) and after making certain adjustments adopted it as the figure under Rule 2(a). These orders were clearly erroneous. The statement that there was no element of life insurance in the policies was rightly hold to be erroneous by the Tribunal and has not been sought to be supported. If the annuity business of the Company was not life insurance business then even Rule 2(a) would have no application. The Income tax Officer was likewise in error in adopting the figures reached under Rule 2(b) as the basis for computing the profits under Rule 2(a) without an independent enquiry into the materials requisite under that Rule. The Company took up the matter in appeal to the Appellate Assistant Commissioner who by his order dated 26th September 1947 held that the annuity business of the appellant was life insurance business and that the profits should be computed under Rule 2. He further held that in the absence of a profit and loss statement for the previous year the Income tax Officer could only act on the materials furnished by the actuarial valuation as a guide for computation under Rule 2(a). He therefore confirmed the orders of assessment. The Company then appealed to the Tribunal. By its order dated 5th March 1949 the Tribunal held that the business of the Company was "in a way" insurance 826 and that computation of the profits should be made in accordance with Rule 2 after determining the profits both under Rule 2(a) and Rule 2(b). It took exception to the modus adopted by the Income tax Officer in computing the profits under Rule 2(a) and observed that he should have made independent enquiry under Rule 2(a) and determined the profits and not merely adopted the figures computed under Rule 2(b) as the basis for computing the profits under Rule 2(a). The Tribunal accordingly remanded the matter to the Income tax Officer for further enquiry for determining the profits in terms of Rule 2(a). Dissatisfied with this order the respondent applied for reference under section 66(1) of the Income tax Act and on that application the following questions were referred to the decision of the High Court: 1. " Whether in the facts and circumstances of the case the business of the assessee Company consisted wholly of annuity business or whether it contained some elements of ordinary life insurance business as distinct from annuity business. Whether the Income tax Officer was justified in making an estimate for calculations under Rule 2(a) of the Schedule attached to section 10(7) of the Income tax Act. " The reference was heard by Chakravarti and section R. Das Gupta JJ. They held that the first question did not arise on the order of the Tribunal but all the same expressed their opinion thereon in the following terms : " Its business is *holly a business of granting annuities on human life and no part of its business is ordinary life insurance business. " As we are not concerned with this matter in this appeal there is no need to further refer to it. On the second question they observed that business in annuities dependent on life as contrasted with "annuities certain" would be insurance business as defined in section 2(11) of the Act and that the profits of that business being "gross external incomings" as defined in Rule 5(ii) must be determined under Rule 2(a). Dealing next with the objection of the appellant that there had been no proper determination of the 827 profits under Rule 2(a) they held that in the absence of profit and loss statements for the previous years and other materials the Income tax Officer had no course open to him except to adopt the figures computed under Rule 2(b) as a basis for computation under Rule 2(a). The second question was accordingly answered in the affirmative. It is against this decision that the present appeal has been preferred on a certificate granted under section 66A (2). Mr. Mitra for the appellant does not dispute the position that the business of the Company on annuity policies dependent on human life is insurance business as defined in section 2(11) and that the profits of the business should therefore be computed in accordance with Rule 2 in the Schedule to the Income tax Act. His contention is that the Income tax Officer had failed to make the computation in accordance with Rule 2(a) and that the Tribunal was right in remanding the matter for a correct computation of the profits in accordance with that Rule. This contention must in our opinion succeed. Under Rule 2 the Income tax Officer has to determine under clause (a) what the gross external incomings of the previous year were and deduct out of them the managing expenses for that year. He has also to find out in terms of clause (b) the annual average surplus on the basis of actuarial valuation in the manner prescribed therein. He has then to adopt whichever is higher as the assessable profits of the year. Now the complaint of the appellant is that while a computation was made under clause (b) no independent computation was made under clause (a) and that therefore the profits had not been determined as required by the Rules. It is a fact that no independent computation has been made under Rule 2(a) and therefore there has been no compliance with the Rule. The learned Judges declined to uphold this objection on the ground that the Company did not place any materials before the Income tax Officer so as to enable him to make a determination under Rule 2(a) and that in the absence of any materials the Income tax Officer was justified in acting on the actuarial report for computing the profits even under Rule 2(a). 828 The argument of the appellant is that having regard to the stand taken by either side at the stage of investigation and to the opinion expressed by the Income tax Officer that there was no element of insurance in the annuity business of the Company the true position under the Rules had been missed by all of them with the result that there was no attempt made to compute the profits in terms of the provisions of Rule 2(a) that the appellant had not wilfully failed to produce any evidence and that the observation of the learned Judges that no profit and loss statement had been produced was based on a misapprehension as no such statement had to be prepared by an Insurance Company. We must now turn to the statement of the case by the Tribunal to see what had really happened before the Income tax Officer for the last word on questions of fact is with it and that is binding on the Courts. Neither in the statement of the case by the Tribunal nor in its order of remand is there any finding that the requisite materials had been withheld by the appellant. The only statement bearing on this question in the order of the Tribunal is as follows: " . the Departmental Representative admitted before us that the calculations purported to have been made under Rule 2(a) were not in accordance with the requirements of Rule 2(a) but it was explained that as the information necessary for determining income under Rule 2(a) was not available an estimate was made and the income determined under Rule 2(b) was adopted for determining the income under Rule 2(a). " What is referred to in this passage is only a statement of the Departmental Representative and not a finding. On the other hand the whole tenor of the judgment of the Tribunal is that there had been no determination of the profits under Rule 2(a) by reason of the erroneous view taken by the Income tax Officer as to the true nature of the business of the Company. If there had been a finding by the Tribunal that the requisite materials had been called for and withheld by the appellant the decision of the High Court would be unassailable and indeed that was the only one that 829 could have been reached. But in the absence of such a finding we are unable to see any ground on which the order of the Tribunal could be upset in a reference under section 66(1). When once it is found that there was no proper determination of the profits as required: under Rule 2(a) and that was indeed conceded and there was no justification for it such as the High Court thought there was the only order that could properly be made was to remand the case for further enquiry and fresh disposal in accordance with law. That was the order which was passed by the Tribunal and that in our opinion was right. This appeal will accordingly be allowed and the second question referred by the Tribunal answered in the negative. The result of this will be that the Income tax Officer will proceed to enquire into the profits of the appellant Company for the years in question in accordance with the requirements of Rule 2. Under the circumstances we direct that the parties do bear their respective costs both here and in the High Court. Appeal allowed.

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. M. C. Setalvad Attorney General for India (P. Mandaland section P. Varma with him) for the appellant. N. C. Chatterjee (A. N. Sinha and P. C. Dutta with him) for the respondent. 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 costs 1073 The appellant entered into three contracts 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 conditions contained in the relative contract forms of the Indian Jute Mills Association. In September 1949 the respondent expressed its inability to deliver the goods under the said contracts and requested the appellant to settle the same by selling back the goods under the said contracts to the respondent at the price of Rs. 161 8 0 per 100 bags. Three settlement contracts were accordingly entered into between the parties on the 28th September 1949 whereby the appellant agreed to sell the goods under the original contracts to the respondent at the rate of Rs. 161 8 0 per 100 bags on the terms and conditions contained in the relative contract 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 contracts 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 costs. The respondent filed its written statement contesting the appellant 's claim on the main around that the three settlement contracts above mentioned were illegal and prohibited by the West Bengal Jute Goods Future Ordinance 1949. The respondent contended that it never dealt in the sale and/or purchase of jute goods involving actual delivery of possession thereof nor did it possess or have control over any godown and other means or equipments necessary for the storage and supply of jute goods and that therefore the said settlement contracts were void and not binding upon it and that the appellant was not entitled to any relief as prayed. The Trial Court negatived the contention of the respon 1074 dent and decreed the appellant 's claim. The learned Judges of the Appeal Court however came to the conclusion that the said settlement contracts were contracts relating to the purchase of jute goods made on a forward basis by the respondent not 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 contracts settled on the basis of the last closing rate in a notified market which was Rs. 146/14/ per 100 bags. No such claim was however made by the appellant. A further contention 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 appellant 's suit with costs. 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 context: (1) 'Contract relating to jute goods futures ' means a contract 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 contract or (b) by or with any person not being a person who (i)habitually deals in the sale or purchase of jute goods involving the actual delivery of possession thereof or (ii)possesses or has control 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 notification in the Official Gazette prohibit the making of contracts relating to jute goods futures and may by like notification withdraw such prohibition . . . . . . . 1075 (2)When the making of contracts relating to jute goods futures is prohibited by a notification under sub section (I) (a)no person shall make any such contract or pay or receive any margin except in the case of any such contract made prior to the date of the notification 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 notified market:. . . (c)notwithstanding anything contained in any other law for the time being in force (i)every such contract made and every claim in respect of margin in contravention of the provisions of clause (a) shall be void and unenforceable and (ii) every such contract made prior to the date of publication of the notification shall be varied and settled on the basis of the last closing rate in a notified market. Explanation In this sub section (a)"last closing rate" means the rate fixed by the Directors of a notified market to be the closing rate of such market immediately preceding the date of publication of the notification under sub section (1) prohibiting the making of contracts relating to jute goods futures: and (b)"notified market" means a jute goods futures market recognised by the Provincial Government by notification in the Official Gazette. The Ordinance came into force on. the 22nd September 1949. In pursuance of the power conferred under section 3(1) of the Ordinance the Government of West Bengal issued a notification being notification No. 4665 Com. dated the 23rd September 1949 prohibiting the making of contracts relating to jute goods futures on and from the date of publication of the notification in the Official Gazette and by another notification 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 notified markets. These notifications were published in the 138 1076 Calcutta Gazette on the same day the 23rd September 1949. The relevant terms and conditions of the standard form of the Indian Jute Mills Association contracts may be conveniently set out here: (1)Buyers to give 7 Clear Working days ' notice to place goods alongside. . . . . . . . (3)Payment to be made in cash in exchange for Delivery Orders on Sellers or for Railway Receipts or for Dock 's Receipts or for Mate 's Receipts (which Dock 's Receipt or Mate 's Receipts are to be handed by a Ship 's or Dock 's officers to the Sellers ' representatives). (4)The Buyers hereby acknowledge that so long as such Railway Receipts or Mate 's or Dock 's 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 Dock 's or Mate 's Receipts and the goods they represent until payment is made in full. There were other terms and conditions appertaining to the delivery of goods under the contracts including inspection by the buyers insurance tender etc. The settlement contracts were also practically in the same form except that in the body of the contracts it was mentioned that the particular contract represented settlement of an original contract which had been already entered into between the parties and that the buyers in the settlement contract would pay to the sellers the difference at the particular rate on due date. In respect of the goods deliverable under the contracts 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 mate 's receipts in respect of the same and such mate 's 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 contracts 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 mate 's 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 course 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 contract. 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 contracts mentioned above could be called contracts between the appellant and the respondent involving the actual delivery of possession of the goods. It was common ground that the contracts did not provide for the payment or receipt of margin. It was also common ground that the respondent did not possess or have control 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 contention 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 not represent the goods and the transfer thereof did not 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 contended 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 not 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 contention 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 course of business authorising the endorsee to receive the goods which they represent. The learned Trial Judge further observed: "Now visualize the long chain of contracts in which the defendant 's contract is one of the connecting 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 contract betweenthe mills and their immediate buyer. But eo instanti it is also in implement of each of the chain contracts including the contract between the defendant and its immediate buyer and the contract 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 vs Ramjiban(1) in regard to the standard form of the Indian Jute Mills Association contract: "This is a form under which the entire export business in gunnies in Calcutta is conducted. . 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 contracts 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 no actual physical delivery of the goods by the defendant himself. The Legislature however does not say that the dealer must himself give actual delivery of the goods. I cannot read in the statute words which are not there and say that the dealer must himself give delivery of the goods in order to come 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 not see why the sales and purchases do not involve actual delivery if such actual delivery is given not 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 counter rarely takes and gives manual delivery of the goods. Very often such manual delivery is given and taken not by the buyer and (1) [1938] L. R. 65 1. A. 263. 1080 seller but by their respective servants and agents. I do not 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 not actual delivery of possession of the goods". The learned Judges of the Appeal Court however did not accept this view and misdirected themselves both in regard to the facts and the position in law. They took it that none of the parties in the chain contracts 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 concluded that nobody was concerned 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 contrasted actual delivery with symbolical or constructive 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 as meaning voluntary transfer of possession from one person to another and if nothing more was said delivery would not only include actual delivery but also symbolic or constructive delivery within the meaning of the term. The use of the word "actual" in section 2 (1) (b) (i) of the Ordinance was considered 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 contrasted with symbolical or constructive delivery. This construction 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 not to be included in the ban. This could be the only intendment of the Ordinance because otherwise having regard to the ordinary course of business in jute goods would become absolutely impossible. The manufacturer of jute goods does not come normally into direct contact with the shipper. It is only through a chain of contracting parties that the shipper obtains the goods from the manufacturer and if only actual delivery of possession as contrasted with symbolical or constructive delivery were contemplated it would be impossible to carry on the business. If the narrow construction 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 could never have been contemplated by the Government and the only reasonable interpretation of the expression "actual delivery of possession" can be that actual delivery as contrasted 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 constructive delivery of possession. Once this conclusion is reached it is easy to visualise the course of events. The mate 's 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 constructive 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 connection that the words used in section 2(1) (b) (i) are "involving the actual delivery of possession thereof". The word "involving" in the context means resulting in and this condition would be satisfied if the chain contracts 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 construction on the expression "actual delivery of possession" and held that the transactions were purely speculative and the parties in no event. contemplated actual delivery of possession of the goods. The learned Trial Judge was in our opinion correct in his appreciation of the whole position on facts as well as in law and in negativing the contention of the respondent. In view of this conclusion it is unnecessary to consider 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 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 contention that the Ordinance was ultra vires was not 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 commerce within the Province; markets and fair; money lending and money lenders" and that the Provincial Legislature was competent to legislate on that topic. The result therefore is that the appeal will be allowed the decision of the Appeal Court will be reversed and the decree passed by the Trial Court in favour of the Appellant will be restored with costs throughout. Appeal allowed.

Delivery has been defined in section 2 (2) of Indian as meaning voluntary transfer of Possession from one per 1072 son to another and it includes not only actual delivery but also symbolical or constructive delivery within the meaning of the term. The expression "actual delivery of possession" in section 2(1)(b)(i) of the West Bengal Jute Goods Future Ordinance 1949 means actual delivery as contrasted with mere dealings in differences within the intendment of the Ordinance and such actual delivery of possession included within its scope symbolical as well as constructive delivery of possession. The word "involving" in the expression "involving the actual delivery of possession thereof" in section 2(1)(b)(i) of the Ordinance means in the context resulting in and this condition would be satisfied if the chain contracts in the present case as entered into in the market resulted in actual delivery of possession of goods in the ultimate analysis. The Ordinance came within Head 27 of List 2 of the Seventh Schedule of the Government of India Act 1935: "Trade and commerce within the Province; markets and fair; money lending and money lenders" and the Provincial Legislature was competent to legislate on that topic. Nippon Yussen Kaisha vs Ramjiban ([1938] L.R. 65 I.A. 263) referred to.

Appeal No. 91 of 1953. Appeal from the Judgment and Decree dated the 12th day of June 1951 of the High Court of Judicature at Calcutta in Appeal from Original Decree No. 56 of 1951 arising out of the Decree dated the 8th day of March 1951 of the said High Court exercising its Ordinary Original Civil Jurisdiction in Suit No. 3993 of 1950. H.J. Umrigar Rameshwar Nath and Rajinder Narain for the appellant. A.N. Sinha and P. C. Dutta for the respondent. December 6. The judgment of the Court was delivered by JAGANNADHADAS J. This is an appeal by leave of the High Court of Calcutta under article 133 (1) (c) For these two sections 45 B and 45 G (inserted by Act XX of 1950) two now sections 45 B and 45 U wore inserted by section 10 of Act LII of 1953. 1099 of the Constitution from its judgment in its appellate jurisdiction confirming that of a Single Judge of the Court. The point involved is a short one and arises on the following facts. The respondent before us Associated Bank of Tripura Ltd. went into liquidation on the 19th December 1949. A month prior to the liquidation i.e. on the 19th November 1949 the appellant before us and the Bank entered into an agreement whereby the appellant became a tenant of the Bank in respect of a certain parcel of land. One of the terms of the tenancy agreement was that the appellant should vacate the land demised on 24 hours ' notice. After the Bank went into liquidation the Liquidator served on the appellant on the 18th April 1950 a notice terminating his tenancy and calling upon him to vacate the land and to hand over possession by the end of April 1950. This not having been done the Liquidator filed an application on the original side of the High Court under section 45 B of the Banking Companies Act for ejectment of the appellant and obtained an ex parte decree against him on the 10th July 1950. On the 28th August 1950 the appellant applied for setting aside the ex parte decree but the application was dismissed on the 7th September 1950. Consequently the appellant filed the present suit on the 12th September 1950 in the original side of the High Court asking for a declaration that the ex parte decree against him was made without jurisdiction and was a nullity and that he continued to be a tenant notwithstanding the said ex parte decree. The plaint does not specifically mention the reason for claiming the decree to be without jurisdiction or nullity. But the point taken at the trial was that the Court had no power to deal with a question relating to the ejectment of the appellant from the demised land in a summary proceeding initiated on an application but could pass the decree only on a suit regularly instituted. This contention was raised on the basis of a judgment of the Calcutta High Court given on the 24th August 1950 that in respect of such a relief under section 45 B a summary proceed 141 1100 ing is not maintainable but that a suit has to be filed. This decision has since been reported in Sree Bank vs Mukherjee(1). The learned trial Judge before whom the present suit came up was of the opinion that though the ex parte decree for ejectment was obtained on a wrong proceeding there was no inherent lack of jurisdiction in the Court and that the fact of the decree having been obtained in a wrong proceeding did not render it a nullity. This view of the learned Judge was affirmed by the Appellate Bench. It has not been disputed before us that the relief by way of ejectment. of the appellant from the land demised is one which would fall within the scope of section 45 B of the Banking Companies Act and that the Liquidator could obtain the said relief by an appropriate proceeding in the High Court. Indeed the learned appellate Judges specifically held that the Court had by virtue of section 45 B jurisdiction over the subject matter of the dispute and this view has not been challenged having regard to the wide and comprehensive language of the section. But what is urged is that the Court having followed the view taken in the Sree Bank Case (supra) (whose correctness was not challenged before it) that the appropriate proceeding to obtain such a relief was only a suit it should have consistently therewith held the decree obtained on a mere application to be invalid. In the Court below the question as to whether the decree obtained on a wrong proceeding was one so wholly without jurisdiction as to be a nullity or whether it was vitiated only by a mere irregularity in the mode of obtaining the relief and hence not open to attack in collateral proceedings was the subject matter of elaborate consideration. It appears to us however that it would be more satisfactory to consider and decide whether the basic assumption which gave rise to this argument viz. that the appropriate proceeding under section 45 B was only a suit and not an application is correct. It is necessary for this purpose to notice the relevant sections. Section 45 A of the Banking Companies Act 1949 as amended by Act XX of 1950 (1) 1101 defines 'Court ' for the purposes of Part III and Part III A of the Act as "the High Court exercising jurisdiction in the place where the registered office of the Banking Company concerned which is being wound up is situated". The said section also provides that "notwithstanding anything to the contrary contained in the Indian Companies Act 1913 or in any notification order or direction issued thereunder or in any other law for the time being in force no other court (i.e. a court other than the one as above defined) shall have jurisdiction to entertain any matter relating to or arising out of the winding up of a banking company". Next is section 45 B (1) which is in the following terms: "Notwithstanding anything to the contrary contained in the Indian Companies Act 1913 or in any other law for the time being in force the Court shall have full power to decide all claims made by or Against any banking company and all questions of properties and all other questions whatsoever whether of law or fact which may relate to or arise in the course of the winding up of the banking company coming within the cognizance of the Court". Section 45 G authorises the Court to make rules consistent with the Act concerning the mode of proceedings for the decision of claims and other proceedings under the Act. This group of sections in Part III A constitute a wide departure from the corresponding provisions of the Indian Companies Act. Under various sections thereof the liquidator after an order for winding up of a company is made can approach a Company Court for exercising certain powers in aid of and to expedite the process of liquidation. The procedure normally adopted for the purpose is by way of application. But the scope of matters in respect of which the liquidator can obtain the help of the Company Court by summary procedure is rather limited. In respect of other matters and particularly in the matter of collecting assets or recovering properties from third parties (not covered by sections 185 and 186) the liquidator has to invoke the help of the 1102 appropriate Court in the ordinary way. This as is wellknown leads to a great deal of inevitable delay and expense. When in 1949 special legislation in respect of Banking Companies was taken up it was one of the stated objects to provide a machinery by which proceedings in liquidation of Banking Companies could be expedited and speedily terminated. It was found however that the Act of 1949 as originally enacted was inadequate to achieve that purpose. It is in this situation that the Amending Act of 1950 introduced into the Act of 1949 an entire Chapter Part III A consisting of sections 45 A to 45 H under the heading "Special provisions for speedy disposal of winding up proceedings". It appears to us that consistently with this policy and with the scheme of the Amending Act where the liquidator has to approach the Court under section 45 B for relief in respect of matters legitimately falling within the scope thereof elaborate proceedings by way of a suit involving time and expense to the detriment of the ultimate interests of the company under liquidation were not contemplated. In the absence of any specific provision in this behalf in the Act itself and in the absence of any rules framed by the High Court concerned under section 45 G the procedure must be taken to be one left to the judgment and discretion of the Court having regard to the nature of the claim and of the questions therein involved. In the Sree Bank Case (supra) the question that arose for direct consideration was one of limitation. But in considering it and when pressed with the argument that if the appropriate proceeding was by way of an application and not a suit difficulties might arise as to the question of limitation the learned Judges felt it unnecessary to consider whether or not the Limitation Act applies to the applications under section 45 B and if so what would be the period which would govern such applications. They proceeded to decide the particular case before them viz. a case relating to a debt due to the Bank on the view that "there is nothing in the Companies Act or the Banking Companies Act which permits a 1103 liquidator to recover debts from debtors of a Banking Company by a summary proceeding such as an application to the Company Judge" and therefore held that no application for recovery would lie and that only a suit should have been brought for which the period of limitation was the ordinary period provided in the Limitation Act. It appears to us with great respect to the learned Judges that this approach as to the nature of the proceeding required or permitted under section 45 B of the Banking Companies Act was not correct. The question is not whether section 45 B permitted summary proceedings but the question is whether the section prescribed definitely a particular method of proceeding and whether consistently with the policy of the Act it was not to be presumed that a speedy and cheap remedy was to be available to the Liquidator unless the Court in its discretion thought fit to direct or the rules of the High Court provided that a claim of a particular nature had to be pursued by a suit. It is to be remembered that section 45 B is not confined to claims for recovery of money or recovery of property moveable or immoveable but comprehends all sorts of claims which relate to or arise in the course of winding up. Obviously the normal proceeding that the section contemplated must be taken to be a summary proceeding by way of application. We are clearly of the opinion that in the present case the Court which passed the ex parte decree was fully competent to decide the matter raised before it on summary application and to pass the ex parte decree which has been challenged by the suit and that the decree of the Courts below dismissing the suit is correct. We are not to be supposed to have expressed any opinion on the question of limitation which was raised before the High Court in the Sree Bank Case (supra). That is a question which may have to be decided in an appropriate case when it is raised directly. The appeal is accordingly dismissed with costs.

The object of the Banking Companies Act 1949 is to provide a machinery for expeditious and speedy termination of proceedings in liquidation and in the absence of any specific provisions of the Act to the contrary or any rules framed by the High Court under section 45 G of the Act (inserted by Act XX of 1950) the normal procedure for deciding all claims under section 45 B of the Act (inserted by Act XX of 1950) should be a summary proceeding originating with an applica tion. But the court in its discretion may think fit to direct or the rules of the High Court may provide that a suit is the proper remedy in view of the nature of claim made and the questions involved in such claim. Sree Bank vs Mukherjee ([1950] referred to.

Appeal No. 105 of 1953. Appeal by Special Leave granted by this Court 's 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. K. R. Bengeri and Sardar Bahadur for the appellant. section B. Jathar and I. N. Shroff for respondents Nos. 3 4 and 5. 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 conferred 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 come 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 I I I Kalasappa I I Krishtarao Radhabai=Gangabai (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 father 's properties comprised in the suit. He also claimed a declaration regarding the amount of compensation money payable to the plaintiff 's family for the land acquired by Hubli Municipality. The defendants who are the sons and grandsons of the first cousin of Krishtarao disputed the plaintiff 's adoption on the ground that Gangabai 's power to adopt was extinguished when Dattatraya died in 1913 leaving behind him a widow Sundarabai and a son Jagannath who could continue the family line. Gangabai in her written statement supported the plaintiff 's claim and asserted that the senior widow Radhabai had given consent to her adopting the plain tiff. The trial judge upheld the defendants ' contention and dismissed the plaintiff 's suit. The factum of the plaintiff 's adoption was however upheld and it was further held that Radhabai did not give her consent to the adoption. On appeal this decision was affirmed by the High Court and it was held that Gangabai 's power to adopt came to an end at the time when her son died leaving a son and a widow to continue the family line. No finding was given on the question whether Radhabai had given her consent 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 now before us by special leave. The only question canvassed in the appeal is in respect to the validity of the plaintiff 's adoption. It was contended that Hindu Shastric Law itself sets no limit to the exercise of the widow 's 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 continuing the line of her husband. On the other hand it was argued that though Hindu Shastric Law itself sets no limit to the exercise of the power yet it has long been judicially recognised that the power is not an unlimited and absolute one and that it comes to an end when another heir has come on the scene and he has passed on to another the duty of continuing the line. The question at what point of time the widow 's duty of continuing the line of the husband comes 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 consideration is whether the limits laid down in these decisions have been arbitrarily fixed and are not 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 vs 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 son 's 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 could not 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 could 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 no male issue of his body. He could 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 could take from his widow the whole of his property when a natural born brother could have taken no part. 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 not 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 husband 's 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 not have taken. 1141 This seems contrary to all reason and to all the principles of Hindoo law as far as we can collect 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 no estate but her own and this would have brought the case within the ordinary rule; but no case has been produced no decision has been cited from the Text books and no principle 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 Kishore 's adoption was good he was undoubtedly the next heir to the property. A distant collateral 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 no title. This was the decision in Padma Coomari vs 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 Coomari 's case(1) remarked that the decision in Bhoobun Moyee vs Ram Kishore(2) did not decide that Chundrabullee could not 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 nothing in the judgment of the Privy Council and nothing 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 construction 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 could perform for a father. There is really no time at which the performance of these services is finally completed or at which the necessity for them comes 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 no doubt 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 not think that this was intended. They consider 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 come 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 not 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 vs Venkatarama Aiyan(1) decided in 1887 and in Tarachurn vs Suresh Chunder(2) decided in 1889. In the year 1902 this question came up for consideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra vs 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 no son but his own widow to continue 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 vs 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 conferred on Adikonda 's widow to an end when Brojo the son she originally adopted died after attaining full legal capacity to continue 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 vs 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) Bom. (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 father 's 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 not go to his mother but became vested in a distant collateral. A week after the son 's death she made an adoption. It was held that the adoption was valid and it divested the estate vested by inheritance in the collateral. 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 continuance 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 continuance the father 's 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 now cast and the burden of the "debt" is now 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 consideration. . that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing and the consequent 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 no limit 1145 to the exercise of the power during the lifetime of the widow and the validity of successive adoptions in continuance of the line is now well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property. But that there must be some limit to its exercise or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance 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 son 's widow brings the mother 's power of adoption to an end but that the mere birth of a son does not do so and that this is not 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 continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother has been assumed by the son and by him passed on to a grandson or to the son 's widow the mother 's 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 son 's lifetime will revive". The learned counsel for the appellant placed reliance upon the last sentence in the passage in the Privy Council judgment quoted above and contended that if the power of the widow which remained suspended during the lifetime of the son could 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 consequent devolution of property a mere accessory to it and it was contended that the grounds on which an outside limit was laid on the exercise of the widow 's power in the Chundrabullee series of decisions no longer survived in view of the ratio in Amarendra 's decision and that it having been held that the power of adoption did not depend on and was not linked with the devolution of property or with the question of vesting or divesting of property and could be exercised whenever necessity for continuing 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 continuing 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 not 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 continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother has been assumed by the son and by him passed on to the grandson or to the son 's widow the mother 's power is gone". In the words of Chandavarkar J. affirmed by the Judicial Committee in Madana Mohana vs 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 competence and does not 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 no longer take it". The contention of the learned counsel therefore that even if the second generation dies without taking steps to continue the line the grandmother still (1) [1918] L R. 45 I.A. 156. 1147 retains her authority and is still under a duty to continue the line cannot be sustained. The three propositions that the Privy Council laid down in Amarendra 's case therefore cannot now be questioned. These propositions may be summed up in these terms: (1) That the interposition of a grandson or the son 's widow competent to continue the line by adoption brings the mother 's power of adoption to an end; (2) that the power to adopt does not depend upon any question of vesting or divesting of property; and (3) that a mother 's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence. The rule enunciated in Amarendra 's case was subsequently applied in Vijaysingji vs Shivsangji(1) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widow 's power to adopt in Anant Bhikappa Patil vs Shankar Ramchandra Patil(2). One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango vs Narayan Devji Kango(3) but that apart no doubt was cast in this decision on the above rule. The result of these series of decisions is that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the son 's widow competent to adopt" has become a part of Hindu Law. though the reasons for limiting the power may not 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 courts have authority to decide cases on principles of justice equity and good conscience and it is not possible to bold that the reasons stated in support of the rule are not consistent with these principles. During the arguments no substantial grounds have (1) [1935] L.R 62 I.A. 161. (2) [1943] L.R. 70 I.A. 232. (3) ; 147 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 no limitations of any kind on the widow 's 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 nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above we are unable to depart from the rule that a widow 's power to make an adoption comes to an end by the interposition of a grandson or the son 's widow competent to continue the line by adoption. The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendra 's case had no application to the situation that has arisen in the present case and that on the death of the grandson the widow 's power to adopt which was in abeyance during his life revived. Reference in this connection was made to the decision of the Nagpur High Court in Bapuji vs 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 son 's widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendra 's case as appears from the following quotation from that judgment: "If the observation quoted from Amarendra Mansingh vs 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) Pat. 642 658. 1149 words "and can never be revived" quoted from Ramkrishna vs Shamrao(1). Strictly the above is the true meaning of their Lordships ' words. That amounts to nothing more than this: that while D or E is alive and competent 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 C 's power revives so the death of D removes her interposition and so C 's power revives". In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendra 's case. The reason for the rule in Amarendra 's case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother has been assumed by the son and by him passed on to a grandson or to the son 's widow the mother 's power is gone". If that is the true reason obviously the duty having come to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji vs Gangaram(2) was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer vs 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 not the decision above referred to. The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case. (1) Bom. (2) (3) Luck. 1. 1150 For the reasons given above this appeal fails and is dismissed but in the circumstances of the case we will make no order as to costs. Appeal dismissed.

It is well settled according to Hindu Law that a widow 's power to adopt comes to an end by the interposition of a grandson or the son 's widow competent to continue the line by adoption. The mother 's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence. The power to adopt does not depend upon any question of vesting or divesting of property. The decision of the Judicial Committee of the Privy Council in Anant Bhikappa Patil vs Shankar Ramchandra Patil (L.R. 70 I.A. 232) is not sound in so far as it relates to the properties inherited from collaterals prior to adoption. In respect of such properties the adopted son can lay no claim on the ground of relation back. Shrinivas Krishnarao Kango vs Narayan Devji Kango ([1955] 1 S.C.R. 1) followed. Amarendra Mansing vs Sanatan ([1933] L. R. 60 I. A. 242) explained. Anant Bhikappa Patil vs Shankar Ramchandra `Patil ([1943] L.R. 70 I.A. 232) not relied on in part. Bhoobun Moyee vs Ram Kishore ([1865] 10 M.I.A. 279); Pudma Coomari vs Court of Wards ([1881] L.R. 8 I.A. 229); Thayammal and Kuttisami Aiyan vs Venkatarama Aiyan ([1887] L.R. 14 I.A. 67); Tarachurn vs Suresh Chunder ([1889] L.R. 16 I.A. 166); Ramkrishna 1136 Ramchandra vs Shamrao ([1902] I.L.R. ; Madana Mohana vs Purushothama Deo ([1918] L.R. 45 I.A. 156); Vijaysingji vs Shivsangji ([1935] L.R. 62 I.A. 161); Bapuji v Gangaram ([1941] I.L.R. Nagpur 178); and Prem Jagat Kuer vs Harihar Bakhsh Singh ([1945] I.L.R. 21 Lucknow 1) referred to.

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. N. C. Chatterjee Bakshi Tek Chand and Veda Vyas (section K. Kapur and Ganpat Rai with them) for the appellant. G. section 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 nominated 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 contest 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 counted 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 not 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 contain 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 142 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 contained 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 contended that in accordance with this provision the ballot papers received at the Sobhapur polling stations not 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 contested the petition. He pleaded that the Returning Officer at Sobbapur had rightly accepted the 301 votes because Rule 47 was directory and not 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 counted 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 not have been counted; 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 not 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 contended that having regard to article 329(b) the High Court was not competent to entertain the petition as in substance it called in question the validity of an election. The petition was heard by a Bench consisting of Sinha C. J. Mudholkar and Bhutt JJ. who differed in their conclusions. Sinha C. J. and Bhutt J. held that no writ could 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 no Tribunal to which directions could be issued under that article. Mudholkar J. agreed with this conclusion but rested it on the second ground aforesaid. As regards article 227 while Sinha C. J. and Bhutt J. held that it had no application 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) no relief could be granted either setting aside the election of the first respondent or declaring the appellant elected and that the only 1110 order that could 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 not been materially affected by the erroneous reception of votes was one within its jurisdiction and that it could not 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 consideration 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 cordingly 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 comes 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 confers 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 contention 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 no election 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 vs 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 comprehensive sense as including the entire process of election commencing with the issue of a notification 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 course 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 no dispute that they are subject to the supervisory jurisdiction of the High Courts under article 226 a writ of certiorari under that article will be competent 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 not to the further stages following on the decision of the Tribunal is considerably reinforced when the question is considered with reference to a candidate whose election has been set aside (1) ; 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 could not therefore be barred by article 329(b). And if the contention of the first respondent is well founded the result will be that proceedings under article 226 will be competent in one event and not in another and at the instance of one party and not the other. Learned counsel for the first respondent was unable to give any reason why this differentiation should be made. We cannot accept a construction which leads to results so anomalous. This question may be said to be almost concluded by authority. In Durga Shankar vs Raghuraj Singh(1) the contention was raised that this Court could not 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 could be done only before a Tribunal as provided in article 329(b). In overruling this contention Mukherjea J. observed: "The 'non obstante ' clause with which article 329 of the Constitution begins and upon which the respondent 's counsel lays so much stress debars us as it debars any other court 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 contended 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 no authority in existence to which the writ could be issued. The question thus raised is of considerable importance on which there is little by way of direct authority; and it has to be answered primarily on a consideration of the nature of a writ of certiorari to quash. At the outset it is necessary to mention that in England certiorari is issued not only for quashing decisions but also for various other purposes. It is issued to remove actions and indictment pending in an inferior court for trial to the High Court; to transfer orders of civil courts and sentences of criminal courts for execution to the superior court; to bring up depositions on an application for bail when the prisoner has been committed to the High Court for trial; and to remove the record of an inferior court when it is required for evidence in the High Court. These are set out in Halsbury 's 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 now 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 common 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 court. In the United States it is now the general rule that the writ will be refused where there has been no final determination and the proceedings in the lower tribunal are still pending". As we are concerned 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 common law of England certiorari is a high prerogative writ issued by the Court of the King 's Bench or Chancery to inferior courts 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 commanded to transmit the records of a cause or matter pending with them to the superior court to be dealt with there and if the order was found to be without juirsdiction it was quashed. The court issuing certiorari to quash however could not substitute its own decision on the merits or give directions to be complied with by the court 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 vs T. Nagappa(1) Mukherjea J. dealing with this question observed: "In granting a writ of 'certiorari ' the superior court does not exercise the power of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not 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 not be used to the deteriment of any person. Vide per Lord Cairns in Walsall 's Overseers vs L. and N. 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 not a proceeding against the tribunal or an individual composing it; it acts on the cause or proceeding in the lower court and removes it to the superior court for reinvestigation". The writ for quashing is thus directed against a record and as a record can be brought up only (1) ; (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 could have no effect on the jurisdiction of the court to remove the record. If it is a question of issuing directions it is conceivable that there should be in existence a person or authority to whom they could 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 court though proper is not necessary for the exercise of the jurisdiction or to render its determination effective. Learned counsel for the first respondent invites our attention to the form of the order nisi in a writ of certiorari and contends that as it requires the court or tribunal whose proceedings are to be reviewed to transmit the records to the superior court there is if the tribunal has ceased to exist none to whom the writ could be issued and none who could be compelled to produce the record. But then if the writ is in reality directed against the record there is no reason why it should not 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 no legal 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 143 1116 writ under article 226 to a person as distinct from an authority is sufficiently comprehensive 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 could be issued and that in consequence they cannot be issued where no such authority exists. We are of opinion that this is not the true import of the language of the article. The scope of article 226 is firstly that it confers 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 could 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 co extensive with the territorial jurisdiction of the court. The reference is not to the nature and composition of the court or tribunal but to the area within which the power could be exercised. The first respondent relied on the decision in Clifford O 'Sullivan(1) as authority for the position that no writ could 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 convicted 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 contended 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 vs Electricity Com missioners; London Electricity Joint Committee Co. (1920) Exparte(2) as establishing that there was no (1) (1921] 2 A.C. 570. (2) 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 courts from exceeding their jurisdiction and they could be issued not merely to courts 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 court takes up for hearing a matter over which it has no jurisdiction the person against whom the proceedings are taken can move the superior court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings. On the other band if the court hears that cause or matter and gives a decision the party aggrieved would have to move the superior court 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 court a decision might have been passed which does not completely 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 continuance 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 no prayer for certiorari it would be open to the Court to stop further proceedings which are consequential 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 could be issued only if there are proceedings pending in a court it must follow that it is incapable of being granted when the 1118 court has ceased to exist because there could be then no proceeding on which it could 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 court or tribunal and the continued existence of that court or tribunal is not a condition of its decision being annulled. In this context 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 court and not to the court itself while prohibition is a pre ventive remedy issuing to restrain future action and is directed to the court itself". The decision in Clifford O 'Sullivan(1) which was concerned with a writ of prohibition is therefore inapplicable to a writ of certiorari to quash. It has also to be noted 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 not 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 constituting the so called military Court have long since completed their investigation and reported to the commanding officer so that nothing remains to be done by them and a writ of prohibition directed to them would be of no avail. [See In re Pope(2) and Chabot vs Lord Morpeth(3)]". In this connection reference must be made to the decision in B. vs Wormwood Scrubbs (Governor)(4). There. the applicant was condemned by a court martial sitting in Germany and in execution of its sentence he was imprisoned in England. He applied for a writ of habeas corpus and contended that the military Court had no jurisdiction over him. The Court (1) (3) 118481 15 Q. B. 446. (2) (1833] ; (4) 1119 agreed with this contention and held that the conviction was without jurisdiction and accordingly issued a writ of habeas corpus. But as he was in the custody of the Governor of the Prison under a warrant of conviction unless the conviction itself was quashed no writ of habeas corpus could issue. In these circumstances the Court issued a writ of certiorari quashing the conviction by the court martial. It is to be noted that the military Court was an ad hoc body and was not 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 court martial was dissolved was not considered a bar to the grant of certiorari. Our attention has also been invited to a decision of this Court in The Lloyds Bank Ltd. vs The Lloyds Bank Indian Staff Association and others(1). In that case following the decision in Clifford O 'Sullivan(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 contended for the appellant that on a proper construction of section 7 of the Industrial Disputes Act the Tribunal must be deemed to be not an ad hoc body established for adjudication of a particular dispute but a permanent Tribunal continuing "in a sort of suspended animation" and "functioning intermittently". This Court agreeing with the High Court rejected this contention. But the point was not argued that certiorari could issue even if the Tribunal had become functus officio and no decision was given on the question which is now under consideration. 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 (1) Civil Appeal No. 42 of 1952. (2) (1921] 2A. C. 570. 1120 defeated by technical considerations of form and procedure. In P. C. Basappa vs T. Nagappa(1) this Court observed: "In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law nor 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 consonance 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 notwithstanding 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 vs 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 noted 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) ; 1121 There was considerable argument before us as to the character and scope of the writ of certiorari and the conditions under which it could be issued. The question has been considered by this Court in Parry & Co. vs Commercial Employees ' Association Madras(1) Veerappa Pillai vs Raman and Raman Ltd. and Others(2) Ibrahim Aboobaker vs Custodian General(3) and quite recently in T. C. Basappa vs T. Nagappa(4). On these authorities the following propositions may be taken as established: (1) Certiorari will be issued for correcting 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 not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal even if they be erroneous. 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 not choose to confer 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 not in dispute. (4) The further question on which there has been some controversy 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 consideration in Rex vs 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) ; (2) ; (3) ; (4) (1955] S.C.R. 250. (5) 1122 were bad in law certiorari could 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 vs London and North Western Ry. Co.(1) and Rex vs Nat Bell Liquors Ld. (2) were quoted in support of this view. In Walsall Overseers vs 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 court of quarter sessions anything which showed that order was erroneous the Court of Queen 's 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 court found error upon the face of it to put an end to its existence by quashing it". In Rex vs 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 conditions of its exercise; the other is the observance of the law in the course of its exercise". The decision in Rex vs Northumberland Compensation Appeal Tribunal; Ex parte Shaw(3) was taken in appeal and was affirmed by the Court of Appeal in Rex vs 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 not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision (1) (3) (2) (4) ; 1123 or irregularity or absence of or excess of jurisdiction where shown". In Veerappa Pillai vs Raman & Raman Ltd. and Others(1) it was observed by this court 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 vs 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 corrected by 'certiorari ' but not a mere wrong decision". It may therefore be taken as settled that a writ of certiorari could be issued to correct 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 not 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 could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla C. J. in Batuk K. Vyas vs Surat Municipality(3) that no error could be said to be apparent on the face of the record if it was not self evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in (1) ; (2) ; (3) A.I.R. 1953 Bom. 144 1124 which even this test might break down because judicial opinions also differ and an error that might be considered by one Judge as self evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. These being the principles governing the grant of certiorari we may now proceed to consider 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 not 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 not been materially affected by the failure of the Returning Officer to comply with Rule 47(1)(c). It accordingly dismissed the petition. Now the contention of Mr. N. C. Chatterjee for the appellant is that in reaching this conclusion 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 construction of section 100(2) (c) apparent on the face of the record. The first respondent on the other hand contended 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 not mandatory and because the Election Commission had validated them and that its decision was final. He also contended 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 correctness of these contentions falls now to be determined. On the question whether Rule 47(1) (c) is mandatory the argument of Mr. Pathak is that notwithstanding 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 construction his discretion in the matter of accepting them is not liable to be questioned. He relies on certain well recognised rules of construction such as that a statute should be construed as directory if it relates to the performance of public duties or if the conditions prescribed therein have to be performed by persons other than those on whom the right is conferred. 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 not 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 conclusion too unreasonable for acceptance". He contended that to reject the votes of the electors for the failure of the polling officer to deliver the correct ballot papers under Rule 23 would be to disfranchise them and that a construction which involved such a consequence should not 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 not conclude the matter. The question was examined at length in Julius vs Bishop of Oxford(1) and various rules were (1) 1126 laid down for determining when a statute might be construed as mandatory and when as directory. They are well known and there is no need 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 context. What we have to see is whether in Rule 47 the word "shall" could be construed 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 vs Sarsons(1) on a construction of section 2 of the Ballot Act 1872. That section had also a provision corresponding 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 construed as meaning "may" because there can be no question of the Returning Officer being authorized to accept a spurious or unidentifiable vote. If the word "shall" is thus to be construed in a mandatory sense in Rule 47(1) (a) (b) and (d) it would be proper to construe 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 complied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected? There can be no degrees (1) 1127 of compliance so far as rejection is concerned and that is conclusive to show that the provision is mandatory. It was next contended that the Election Commission had validated the votes in question and that in consequence the acceptance of the ballot papers by the Returning Officer under Rule 47 (1) (c) was not 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 counted. 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 counted. It is contended 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 counted as valid by the Returning Officer. There is no dispute 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 not decide in terms of Rule 28 that the ballot paper for election to the House of the People should bear a brown bar and not a green bar. The green bar continued 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 condone the defects in a specified number of ballot papers issued in the 1128 Hoshangabad polling stations. That is not prescribing a distinguishing mark as contemplated by Rule 28 as that must relate to the election as a whole. There can be no question 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 contention of the first respondent. The approval of the Election Commission was subsequent to the actual polling though it was before the votes were counted. 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 commencement of the poll and the ballot paper should contain the new distinguishing mark. The approval by the Election Commission ' subsequent to the polling therefore cannot render valid the 301 ballot papers which did not bear the distinguishing mark prescribed for the election and they are liable to be rejected under Rule 47 (1) (c). The conclusion of the majority of the Tribunal that in accepting the ballot papers in question the Returning Officer had contravened that rule must therefore be accepted. It remains to deal with the contention of the appellant that the decision of the Election Tribunal under section 100(2)(c) that the result of the election bad not been materially affected is bad as it is based on considerations 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 could be made two conditions 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 noncompliance 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 consequence thereof the result of the election had been materially affected. The two conditions 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 vs 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 not the requisite distinguishing marks the Returning Officer had contravened that rule. So the first condition 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 contravention of Rule 47(1)(c). The contention of Mr. Chatterjee is that when once he has established that the Returning Officer had contravened 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 counted under Rule 47 (1) (c) had been excluded and the valid votes alone counted it was be and not 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 contends that this argument though it might have proved decisive if no other factor had intervened could not prevail in view of the other facts found in this case. He argued that Rule 47 was not 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 not also been properly complied 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) ; 1130 in judging whether the result of the election had been affected these were matters relevant to be taken into consideration. The object of the election be contended 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 not; 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 contends that the enquiry under that section must be limited to the matters raised in the election petition and that as there was no complaint about the breach of Rule 23 in that petition it was outside the scope of the enquiry. It is unnecessary to consider 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 conclusion is not open to attack in these proceedings and has not in fact been challenged. The real controversy 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 could be put forward as grounds for setting aside the election of the petitioner if be had been returned under Rule 48 could 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 could 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 not 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 not 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 not 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 not warranted by the scheme of the Act. We think that this contention is well founded. Section 46 of the Act provides that "when the counting of the votes has been completed 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 contemplated by this section is Rule 48. That provides that the Returning Officer should after counting 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 no candidate 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 context compelling a different interpretation be construed in the same sense as in section 66 and there it clearly means the result on the basis of the valid votes. This conclusion 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 not being in conformity 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 conditions 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 could be identified; under Rule 47 (1) (d) 145 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 paper. .shall be final subject to any decision to the contrary given by a Tribunal on the trial of an election petition calling in question the election". Under this provision the Tribunal is constituted a Court of appeal against the decision of the Returning Officer and as such its jurisdiction must be co extensive with that of the Returning Officer and cannot extend further. If the Returning Officer had no power under Rule 47 to accept a vote which had not 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 not contended that he has any such power and clearly he has not the Tribunal reviewing this decision under Rule 47(4) can have no such 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 non compliance 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 not duly expressed is in a Court of law in the same position as an intention not expressed at all. The decision in Woodward vs Sarsons(1) was cited in support of the contention 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) 1133 1872 which provided that no election should be declared invalid by reason of non compliance with the rules if it appeared to the Tribunal "that the election was conducted in accordance with the principles laid down in the body of this Act and that such noncompliance or mistake did not 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 con. 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 contention the Court observed at page 750: "Inasmuch therefore as no voter was prevented from voting it follows that the errors of the presiding officers at the polling stations No. 130 and No. 125 did not affect the result of the election and did not 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 common 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 not so fundamental as to render the election not one "conducted 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 not 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 no assistance to the respondent; but the Court observed in the course of its judgment: (1) (1948] 2 All E.R 503. 1134 "We think that in a case where the voter is in no sense 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 concerned 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 conducted special consideration should (and no doubt would) be given in order that the voter should not be disfranchised". These observations are no authority for the proposition that if there was no mark at all on the ballot paper it could 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 no mark 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 construction of section 100 (2) (c) it could go into the fact of breach of Rule 23 and if it committed an error it was an error in the exercise of its jurisdiction and not 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 not bear the correct marks declared the appellant elected his election also would have to be declared void. The combined effect of section 97 and section 100(2)(c) is that there is no valid 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 conferred by article 1135 227. As a result of our decision the Election Commis sion will now 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. The parties will bear their own costs throughout. Appeal allowed.

Article 226 of the Constitution confers 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. The power of the High Court under article 226 to issue writ of certiorari against decisions of Election Tribunals remains unaffected by article 329(b) of the Constitution. The High Courts have power under article 226 of the Constitu tion to issue writs of certiorari for quashing the decisions of Election Tribunals notwithstanding that they become functus officio after pronouncing the decisions. The writ of certiorari for quashing the offending order or proceeding is directed against a record and as a record can be brought up only through human agency it is ordinarily 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 funtus officio subsequent to the decision could have no effect on the jurisdiction of Court to remove the record. As the true scope of the writ of certiorari to quash is that it merely demolishes the offending order the presence of the offender before the court though proper is not necessary for the exercise of the jurisdiction or to render its determination effective. The writ of certiorari being in reality directed against the record there is no reason why it should not be issued to whosoever has the custody thereof. The writ of certiorari 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 certified. 1105 The scope of article 226 of the Constitution is firstly that it confers 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 could 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 writs is coextensive with the territorial jurisdiction of the court. The reference is not to the nature and composition of the court or tribunal but to the area within which the power could be exercised. There is one fundamental distinction between a writ of prohibition and a writ of certiorari. A writ of prohibition will lie when the proceedings are to any extent pending and a writ of certiorari for quashing will lie after the proceedings have terminated in a final decision. If a writ of prohibition could be issued only if there are proceedings pending in a court it must follow that it is incapable of being granted when the court has ceased to exist because there could be then no proceeding on which it could 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 Court or tribunal and the continued existence of that court or tribunal is not a condition of its decision being annulled. 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. While in a certiorari under article 226 the High Court can only annul the decision of the Tribunals it can under article 227 do that and also issue further directions in the matter. As respects the character and scope of the writs of certiorari the following propositions may be taken as well established: (1) Certiorari will be issued for correcting 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 not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior Court or Tribunal even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of "certiorari" if it is 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 corrected by "certiorari" but not a mere wrong decision. What is an error apparent on the face of the record cannot be defined precisely or exhaustively there being an element 1106 of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. It is well established that an enactment in form mandatory might in substance be directory and that the use of the word "shall" does not conclude the matter. There are well known rules for determining when a statute should be construed as mandatory and when directory. All of them are only aids for ascertaining the true intention of the legislature which is the determining factor and that must ultimately depend on the context. The word "shall" in Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules 1951 which enacts that "a ballot paper contained 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" cannot be construed as meaning "may". The provisions of Rule 47(1)(c) are mandatory like the provisions of Rule 47(1)(a) Rule 47(1)(b) and Rule 47(1)(d). Held that in maintaining the election of the first respondent in the present case on the basis of the 301 votes which were liable to be rejected under Rule 47(1)(c) the Tribunal was plainly in error. As the error was manifest on the face of the record it called for interference in certiorari. Held further that the prayer of the appellant to be declared elected must be refused under section 97 as the respondent had pleaded in his recrimination petition that there had been violation of Rule 23 and that by reason thereof the election of the appellant was liable to be set aside if he had been declared elected and that plea had been established. In the result the entire election was set aside. N. P. Ponnuswami vs Returning Officer Namakkal Constituency and Others ([1952] S.C.R. 218) Durga Shankar vs Raghuraj Singh ([1955] S.C.R. 267) T. C. Basappa vs T. Nagappa ([1955] S.C.R. 250) Clifford O 'Sullivan ([1921) 2 A.C. 570) Rex vs Electricity Commissioners ([1924] 1 K.B. 171) B. vs Wormwood Scrubbs (Governor) ([1948] 1 All E.R. 438) Waryam Singh and another vs Amarnath and another ([ ; Parry & Co. vs Commercial Employees ' Association Madras ([1952] S.C.R. 519) Veerappa Pillai vs Raman and Raman Ltd. and Others ([1952] S.C.R. 583) Ibrahim Aboobaker vs Custodian General ([1952] S.C.R. 696) Rex vs Northumberland Compensation Appeal Tribunal; Ex parte Show ([1951] ; 1 K.B. 711; Rex vs Nat Bell Liquors Ltd. ([1922] 2 A.C. 128) Batuk K. Vyas vs Surat Municipality (A.I.R. Julius vs Bishop of Oxford ([1880] L.R. 5 A.C. 214) Woodward vs Sarsons ([1875) Vashist Narain v Dev Chandra ([1955] S.C.R. 509) and In Be South Newington Election Petition ([1948] 2 A.E.R. 503) referred to.

AppealS Nos. 101 102 and 103 of 1951. Civil Appeal No. 101 of 1951 was an appeal from the Judgment and decree dated the 13th March 1946 of the Chief Court of Avadh at Lucknow in First Civil Appeal No. 132 of 1943 arising out of the Judgment dated the 25th September 1943 of the Court of Special Judge 1st Grade Sitapur in E. E. Act Suit No. 27/1 of 1938. Civil Appeals Nos. 102 and 103 of 1951 were appeals from the Judgment and Decree dated the 13th March 1946 of the Chief Court of Avadh at Lucknow in Execution of Decree Appeals Nos. 103 of 1944 and 23 of 1945 arising out of the Judgment dated the 16th November 1944 of the Court of Additional Civil Judge Lucknow in Miscellaneous Case No. 70 of 1944. B. I. Bishan Singh for the appellant. M. C. Setalvad (Nazimuddin Siddique with him) for the respondent. January 21. The Judgment of the Court was delivered by MAHAJAN J 561 MAHAJAN J. Shortly stated the factS giving rise to these three appeals are these On the 4th July 1933 Rai Bahadtir Lala Hari Kishen Das obtained from the court of The civil judge Sitapur a final compromise decree in the sum Of Rs. 3 88 300 2 6 with pendente lite and future interests ' and costs on the foot of two simple mortgages executed in his favour in 1928 and 1931 by Thakur Raghuraj Singh. The Judgment of the Court was delivered by MAHAJAN J. 561 MAHAJAN J. Shortly stated the factS giving rise to these three appeals are these On the 4th July 1933 Rai Bahadtir Lala Hari Kishen Das obtained from the court of The civil judge Sitapur a final compromise decree in the sum Of Rs. 3 88 300 2 6 with pendente lite and future interests ' and costs on the foot of two simple mortgages executed in his favour in 1928 and 1931 by Thakur Raghuraj Singh. It was provided in the compromise that Raghtiraj Singh mould within a week sell to Hari Kishen Das at agreed prices some villages out of the mortgaged property selected by him and sufficient to satisfy the decree. He reserved to himself the right to get back the sold villages after five years and before the expiry of fifteen years on payment of the stipulated prices. The computation of the price of the sold lands was to be made in the manner laid down in clause (6). Hari Kishen Das made a selection of eight villages and deeds of sale and relinquishment in respect of them were duly prepared and executed on 4th July 1933 Before they could be presented for registration the parties received information that a notification for assumption by the Court of Wards of the management of the talukdar 's estate had been issued and that it was likely to render the conveyances ineffectual. In view of the impending notification the sale transaction felt through and a refund was obtained of the amount spent on the stamp papers On the 20th January 1934 the Court of Wards decided that it would not take the estate under its supervision. Hari Kishen Das then revived his demand against the judgment debtor for the completion of the sale deeds but the judgment debtor did not pay any heed to his request with the result that on 26th May 1934 he made an application for execution of the compromise decree. To the execution of this decree a number of objections were raised by Raghuraj Singh. Before the disposal of these objections the U.P. Agriculturists ' Relief Act (XXVII of 1934) and the U.P. Encumbered Estates Act (XXV 562 of 1934) came into operation. Under the provisions of Act XXVII of 1934 the judgment debtor became entitled to the amendment of the decree by reduction of interest and for payment of the decretal sum in instalments. Under the other Act a landlord debtor whose property was encumbered could apply to the court for the administration of his estate for liquidation of his debts. Raghuraj Singh was not slow in seeking the aid of these laws to reduce the amount of his indebtedess and to save his property. He made applications under both the Acts. In the application under the Relief Act he prayed for the scaring down of the amount of the decree and for instalments. In the application under section 4 of the Encumbered Estates Act he asked for liquidation of his debts by the civil judge. On the 11th January 1936 the civil judge of Sitapur altered the decretal amount of Rs. 3 88 300 2 6 to Rs. 3 76 790 4 3 exclusive of costs and future interest and directed Raghuraj Singh to pay the money in twelve equal annual instalments payable in the month of December of each year the first instalment being payable in December 1936 and also provided that in the case of default in payment of three instalments the whole amount then due would become immediately payable. Against this order Hari Kishen Das filed an application in revision to the Chief Court and was successful in having the amended decree set aside on 15th February 1938. In the proceedings commenced under the Encumbered Estates Act on 29th October 1936 Raghuraj Singh obtained an order under section 6 of the Act but this order was eventually quashed by the Board of Revenue on 13th August 1938 and the debtor 's application under section 4 was dismissed. Having succeeded in his application in revision in the Chief Court Hari Kishen Das revived the proceedings in execution of the compromise decree and called upon Raghuraj Singh to execute a sale deed in respect of the selected villages in his favour. On his failure to comply with this demand the court 563 executed a deed of sale in his favour on 24th February 1939 and in due course delivered to him possession of the property covered by the deed. Thakur Raghuraj Singh died in the year 1941 leaving him surviving the present appellant as his successor in interest. An appeal had been taken by him against the decision of the Chief Court dated 15th February 1938 setting aside the amended decree to His Majesty in Council. By an order of His Majesty in Council passed on 20th January 1944 the decision of the Chief Court dated 15th February 1938 was reversed and the amended decree passed by the Civil Judge of Sitapur on 11th January 1936 was restored. Liberty was given to the appellant to apply to the court of the civil judge Sitapur for such relief as he might be entitled to with reference to the recovery of possession of the property. In view of the decision of the Privy Council Bhagwant Singh (appellant) made an application for restoration of possession and for recovery of profit: wrongfully realized by Hari Kishen Das and after his death by his adopted son Sri Kishen Das. This application was strenuously resisted by the creditor and it was pleaded by him that even under the amended decree a sum of Rs. 4 31 148 9 9 including interest and costs had become due to the decreeholder on the date of the sale since three instalments which had till then fallen due had remained unpaid and the default clause had come into operation and the sale in execution could not be set aside as it has not caused any injury to the judgment debtor and had not in any way caused loss to him in the absence of proof that he had the money to pay the instalments. The subordinate judge allowed the application for restitution conditional on Bhagwant Singh paying within two months the accumulated sum that had fallen due to the decreeholder under the unpaid instalments up to the date of the order. He held that the arrears up to December 1943 came to Rs. 3 58 914 8 9 and deducting from this amount the net profits 73 564 realized during the period of his possession amounting to Rs. 73 294 8 5 and the costs of appeal allowed by the Privy Council a. sum of Rs. 2 85 620 074 was due and directed that if this amount was not deposited in court within two months the application would stand dismissed. Bhagwant Singh applied for extension of time but this application was summarily dismissed. Rai Sabib Sri Kishen Das and Bhagwant Singh both appealed to the Chief Court against this decision. The appeal of Sri Kishen Das was numbered as 103 of 1944. His contention was that the judgment debtor was not entitled to restitution at all. The appeal of Bhagwant Singh was numbered as 23 of 1945. His grievance was that he wag entitled to restitution without any condition. The Chief Court allowed the decreeholder 's appeal (103 of 1944) with costs and dismissed the judgment debtor 's appeal (23 of 1945) but without costs and dismissed the application of the judgment debtor for restitution on the 13th March 1946. Appeals 102 and 103 of 1951 arise out of this decision. Appeal No. 101 of 1951 arises out of another decision of the Chief Court dated 13 th March 1946 which confirmed the decree dated 26th September 1943 of the special judge of Sitapur under the Encumbered Estates Act. The facts about this matter are these : As already stated on 28th October 1936 Thakur Ragburaj Singh applied under section 4 of the U.P. Encumbered Estates Act (XXV of 1934) for administration of his estate so as to liquidate his debts amounting to about 14 lakhs. on 13th August 1938 the Board of Revenue quashed the proceedings under the Encumbered Estates Act initiated by Thakur Raghuraj Singh. As no order for stay of execution proceedings was obtained by Raghuraj Singh from the Chief Court or the Privy Council the civil judge to whom the exe cution proceedings had been transferred on 13th 565 February 1939 ordered the judgment debtor to execute a sale deed and on his making a default the civil judge on 24th February 1939 executed a sale deed on behalf of the judgment debtor in favour of Rai Bahadur Hari Kishen Das. The U.P. Encumbered Estates Amendment Act (XI of 1939) came into operation after this sale. It allowed the applicants to amend their applications proceedings in respect of which had been quashed previously. On the 10th October 1939 Raghuraj Singh applied for amendment of his application. This application was allowed by the sub divisional officer who passed an order under section 6 of the U.P. Encumbered Estates Act on 18th October 1939 and forwarded the amended application to the special judge first grade Sitapur. On 31st July 1940 the special judge passed an order to the effect that the proceedings would start afresh. Raghuraj Singh went up in revision to the Chief Court against this order contending that the proceedings should not be deemed as fresh proceedings. The Chief Court dismissed the revision on 9th December 1940. On a notification issued under section 11 of the Encumbered Estates Act Hari Kishen Das filed objection on 14th August 1942 under section 11 claiming that the villages sold to him were his property and were not liable to be attached and sold for the debts of Raghuraj Singh. This objection was contested by the debtor. The special judge by his decree dated 25th September 1943 declared Rai Bahadur Hari Kishen Das to be the proprietor of all the eight villages included in the sale deed of 24th February 1939. Against the decree of the special judge an appeal was filed in the Chief Court which confirmed that decree on 13th March 1946. Appeal No. 101 of 1951 now before us is directed against that decree. This appeal can be shortly disposed of. The proceedings under the Encumbered Estates Act having been quashed by the Board of Revenue in August 1938 the sale held in February 1939 was unaffected by the bar imposed by section 7 of the Act. In 566 view of the decision of the Chief Court dated 9th December 1940 the appellant could not be allowed to agitate the point that the proceedings should have been deemed to be pending in February .1939 because of the provisions of the amending Act. This point was stressed before us by the learned counsel for the appellant and he contended that the provisions of the amending Act XI of 1939 should have been given retrospective operation and the date of his original application should have been treated as the date of the start of the proceedings under the Encumbered Estates Act. This contention in our opinion was rightly negatived in the courts below and it was rightly held that the order made under section 6 on 18th October 1939 was made on a fresh application under section 4. of the U.P. Encumbered Estates Act preferred on 10th October 1939 and this could not affect the validity of the sale deed executed at a time when no application under section 4 was pending. It was argued in the courts below that the sale deed was a nullity because it was executed while execution proceedings were pending before the collector under schedule III of the Code of Civil Procedure. The point was not argued before us in this appeal. This appeal therefore fails and is dismissed with costs. As regards appeals Nos. 102 and 103 the main point for decision is whether in the circumstances of this case the appellant was entitled to restitution by way of restoration of possession and grant of mesne profits after the reversal of the compromise decree by the Privy Council and the restoration of the amended decree as passed by the civil judge under the Relief Act. Having regard to the provisions of section 144 of the Code of Civil Procedure the Chief Court was of the opinion that the sale in 1939 was inevitable and could not have been avoided if the amended decree had been then in force and that if it was set aside it would confer on the appellant an advantage to which his predecessor was not entitled he having defaulted 567 in the payment of three instalments before the sale took place. The following passage from the judgment of the Chief Court expresses the view that it took on this point : "For purposes of section 144 we have in the words of the section 'to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. ' So placing them the issue which falls for determination is whether the judgment debtor would have paid the accumulated amount of three instalments namely Rs. 1 37 839 1 11 in December 1939. On the evidence the lower court has come to the conclusion with which we agree that Thakur Raghuraj Singh owed no less than rupees fourteen lakhs to other creditors and computing the value of the entire landed property at the rate specified in the compromise of 1133 it was only rupees nine lakhs. Lal Bhagwant Singh produced no evidence to establish that his father was otherwise in a position to pay the amount of three instalments in December 1938. We may mention that no objection has been taken at the bar to the estimate of indebtedness or to the evaluation of the estate. Taking them therefore to be correct it is impossible to believe that the judgment debtor could have prevented the sale on 24th February 1939 if the parties were then governed by the decree of 1936. The result which followed was inevitable and cannot be attributed solely to the erroneous order passed by this court in February 1938. " In our opinion no exception can be taken to the judgment of the Chief Court in the facts and circumstances of this case and both these appeals would therefore have to be dismissed. On account of the order of His Majesty in Council the amended decree passed by the civil judge Sitapur on 11th January 1936 must be deemed to have been subsisting all along. All the terms of the compromise were embodied in the amended decree and there was no difference in the two decrees except for the reduction of 568 the sum due from Rs. 3 88 300 2 6 to Rs. 3 76 790 4 3 and the reduction of pendente lite and future interest and for provision for instalments. The compromise decree with the necessary adaptations and amendments became the amended decree and was enforceable as such. It gave the judgment debtor an opportunity to satisfy the decree by instalments if he committed no default and to save the property from being sold in satisfaction of it but in case the whole amount of the decree became due according to its terms or if any portion of it remained unpaid it yet had to be satisfied in the same manner as the original compromise decree. During the pendency of the decreeholder 's appeal before the Chief Court the judgment debtor did not obtain any order staying the operation of the amended decree. He was thus bound to carry out the terms of that decree but he failed to pay any of the instalments that fell due in 1936 or 1937. The third instalment it is true fell due in December 1938 after the amended decree had been set aside by the Chief Court but the judgment debtor had appealed for its restoration to the Privy Council. He should therefore have taken steps to protect himself against being in default with payment of three instalments. In order therefore to avoid the default which he would otherwise commit by nonpayment of the third instalment it was obligatory on him to pay or offer to pay to the decree holder an amount equal to the amount of one instalment so that three instalments will not be in arrears or to obtain an order from the Privy Council absolving him from complying with the terms of the amended decree set aside by the Chief Court even if it was eventually restored. Failing that he should have obtained a fresh order from the Privy Council fixing the instalments and time for the payment. He however did nothing and adopted the attitude that he need make no payment and considered himself absolved from satisfying either the original decree or the amended decree. The result of this attitude was that the whole of the decretal amount became due on his 569 failure to pay the third instalment provided for under the amended decree in December 1938 and he thus lost the benefit of paying the decretal amount by instalments. The amount due from him in February 1939 under the decree was the same sum for which the property was sold in execution of the original decree. In this situation it cannot be said that there was any alteration in the position of the parties by thePrivy Council setting aside the compromise decree and restoring the decree passed by the civil judge Sitapur in 1936. The position would have been the same if that decree was a subsisting one and was in execution. If the judgment debtor could have shown that he was in a position to pay the aggregate amount of the instalments in December 1938 or at least one instalment so that he could not be said to have defaulted in the payment of three instalments then the sale made in February 1939 could not possibly be regarded as one under the amended decree but could only have been made in consequence of the original compromise decree and that compromise decree having been superseded and the amended decree having been restored the sale held under the reversed decree would surely have to be set a side. On the other hand if the sale could not have been avoided even if the amended decree which was eventually restored had been in operation at the time of the sale by reason of default of payment of three instalments and the sale was also a necessary consequence under the decree of the civil judge and was inevitable then it cannot be said that the sale held in February 1939 was the result and consequence of the reversed decree. It is true that it is one of the first and the highest duty of a court to take care that its acts do not injure any of the suitors and if any injury was caused to the judgmentdebtor by the sale held in February 1931 it was our duty to undo the wrong caused to him. It however cannot be said that in this case any wrong has been done to the judgment debtor which we are called upon to redress. It is not possible to hold that he 570 was under no obligation to satisfy either one or the other of the two decrees and that he was absolved from satisfying the instalment decree because it had been set aside by the Chief Court and he was also absolved from satisfying the original decree because it was later on set aside by the Privy Council. Having himself appealed to the Privy Council for the restoration of the instalment decree it was obligatory on him to carry out the terms of that decree if he wanted to take advantage of its provisions. Having defaulted in this he must take its consequences which are now different from the consequences of the original decree. Indeed if in this case the prayer of the judgment debtor for restitution was granted it would result in doing not only an injustice but a wrong to the decreeholder and the court would not be acting fairly and rightly towards him. As already said in February 1939 both under the original decree and the amended decree a sum of over rupees four lakhs became due to him and he was entitled to got a sale of the villages selected by him in his favour towards satisfaction of this decretal debt. If this sale is set aside and possession of eight villages is restored to the judgment debtor and mesne profits are decreed in his favour the decreeholder would be deprived of the fruits of his decree which is certainly not the purpose of restitution in law or equity; it would place the judgment debtor in a position of advantage to which he is not entitled. The executing court decreed restoration of possession of the eight villages in favour of the appellant conditional on his paying the amount due to the decreeholder under the amended decree till the date of that order. This obviously favourable order passed in his favour by the trial judge was not availed of by the judgment debtor as he has no means whatsoever to make any payment. An order of restitution in the manner asked for in the circumstances of this case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment the law raises an obligation on the party to the record who received the 571 benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the court to enforce that obligation unless it is shown that restitution would be clearly contrary to the real justice of the case. The decreeholder in the present case has derived no advantage* to which he was not entitled and the judgment debtor has lost nothing. In either event he had to discharge and satisfy the decretal debt due from him whether under the first decree or under the second and that debt could only be discharged by sale of the villages selected by the decreeholder. In the words of Rankin C. J. in Dayal. Sardar vs Tari Deshi(1) the judgmentdebtor is not entitled to recover the properties except upon showing that the sale was in substance and truth a consequence of the error in the reversed decree. The sale being inevitable under the amended decree the 'judgment debtor was clearly not entitled to restitution. It was held in Gansu Ram vs Parvati Kuer (2) that where a judgment debtor could not have paid even the reduced decretal amount and the sum realized at the sale was less than the decretal amount the situation could not have been altered in any way had the decree been modified before instead of after the sale and the judgment debtor could not invoke the provisions of section 144 except by showing that the sale was in substance and truth a consequence of the error in the original decree. The observations made in this case have apposite application to the facts and circumstances of this case. For the reasons given above we are of the opinion that there is no merit in either of these appeals and we dismiss both of them with costs. Appeals dismissed. (1)(1932) I.L.R. (2) A.I.R. 1941 Pat.

Under a compromise decree the amount due to the plaintiff was fixed by mutual consent and it was further agreed that the defendant should within one week of the date of the decree convey to the plaintiff immoveable properties sufficient to satisfy the decree. The U. P. Agriculturists Relief Act of 1934 having come into force the decree was subsequently amended by the Civil Judge by reducing the amount and directing that the amount may be paid in 12 annual instalments with the condition that if three instalments were in default the whole amount was to become immediately payable. The amended decree was set aside by the Chief Court in 1938. The decree holder applied for execution and a sale deed was executed by the Civil Judge in 1939 for the entire decree amount. The Privy Council reversed the decree of the Chief Court and restored the amended decree of the Civil Judge in 1944. The judgment debtor applied for restoration of the properties with mesne profits by way of restitution: Held confirming the decree of the Chief Court that as the judgment debtor bad not obtained any order staying the operation of the amended decree pending the dereeholder 's appeal to the Chief Court he was bound to carry out the terms of the amended decree and as the Privy Council had merely restored the amended decree without altering the provisions as to payment by instalments or extending the time for payment by instalments and its decree did not in any way alter the position of the parties as it stood under the amended decree and the sale was not in consequence of any error in a decree which was reversed on appeal by the Privy Council the judgment debtor was not entitled to restitution. Dayal Sardar vs Tari Deshi (I.L.R. and Gansu Ram vs Parvati Kuer (A.I.R. 1941 Pat. 130) approved. 560 The judgment debtor in the above mentioned case applied tinder section 4 of the U. P. Encumbered Estates 'Act 1934 for administration of his estate in 1936 but the proceedings were quashed by the Board of Revenue in 1938. As no order for stay of execution was obtained a sale was effected in execution of the decree in February 1939. The U. P. Encumbered Estates (Amendment) Act 1939 came into force after the date of the sale and the judgment debtor applied on the 10th October 1939 foe amending his former application but it was ultimately decided by the Chief Court that the amendment application of 1939 must be treated as fresh proceedings: Held confirming the decision of the Chief Court that as the proceedings which were started in 1936 were quashed by the Board of Revenue in 1938 the sale held in February 1939 was unaffected by the bar imposed by section 11 of the Act. The order made on the application of the 10th October was an order on a fresh application under section 4 and it had no retrospective effect and could not affect the validity of the sale effected when no application under section 4 was pending.

iminal Appeals Nos. 89 and 90 of. Appeals by Special Leave from the Judgment and Order dated the 23rd November 1953 of the High Court of Judicature 'at Bombay in Criminal Appeal No. 1213 of 1953 and from the Judgment and Order dated the 25th August 1953 of the High Court of Judicature at Bombay in Criminal Appeal No. 1121 of 1953 arising out of the judgment and decree dated the 6th August 1953 of the Court of Sessions Case No. 36 of 1952. section Narayanaiah and Dr. C. V.L. Narayan for the appellant in Criminal Appeal No. 89 of 1954. C. Sanjeevarow Nayadu and R. Ganapathy Ayyar for the appellant in Criminal Appeal No. 90 of 1954. M.C. Setalvad Attorney General of India (G. N. Joshi and Porus A. Mehta with him) for the respondent. 151 1180 1954. December 22. The Judgment of the Court was delivered by BOSE J. These two appeals arise out of the same trial. The two appellants Shreekantiah (the first accused in the trial Court and the appellant in Appeal No. 89 of 1954) and Parasuram (the second accused and the appellant in Appeal No. 90 of 1954) were tried with a third accused Dawson on a number of different charges centering round section 409 of the Indian Penal Code: criminal breach of trust by a public servant. The trial was by jury and all three were found guilty of an offence under section 409 read with section 34. They were convicted and sentenced as under: Accused No. 1. Shreekantiah to one year and a fine of Rs. 500 with four months in default; Accused No. 2. Parasuram to two years and a fine of Rs. 500 with six months in default; and Accused No. 3. Dawson to six months and a fine of Rs. 200 with two months in default. The appeal of the second accused to the High Court was dismissed summarily on 25 8 1953 with the one word "dismissed". The first and third accused appealed separately. Their appeal was heard by another Bench and was admitted and a reasoned judgment followed on 23 11 1953. This to. say the least was in the circumstances of this case anomalous. The ap.peals arise out of the same trial and are from one judgment and relate to the same charge to the jury and what is more they raise substantially the same points. This Court was constrained to express its disapproval of the summary rejections of appeals which raise issues of substance and importance. We draw attention to the remarks in Mushtak Hussein vs The State of Bombay(1). Those observations apply with even greater force in the present case. The three accused are Government servants. At all material times the first was the Officer Commanding the Military Engineering Stores Depot at Dehu Road near Poona. He was in over all charge. The (1) ; 820. 1181 second was under him as the officer in charge of the Receipts and Issue control section. The third worked directly under the second as the Assistant Stores Officer. The depot is maintained by the Central Government and covers an area of some 150 acres. Government stores worth several lacs of rupees are kept there. On 11 9 1948 iron stores worth about Rs. 4 000 were illegally passed out of the depot and were handed over to one Ibrahim Fida Hussain an agent of the approver Mohsinbhai (P.W. 1). The case for the prosecution is that the three accused who were in charge of these stores and to whom they had been entrusted in various capacities entered into a conspiracy to defraud Government of these properties and that in pursuance of this conspiracy they arranged to sell them to the approver (P.W. 1) for a sum of Rs. 4 000. The money is said to have been paid and then the stores were passed out of the depot. The money is said to have been pocketed by the three accused and not credited to Government. On these facts a number of charges were framed. The first set was drawn up on 9 7 1953. All three accused were jointly charged with an offence punishable under section 5(2) of the Prevention of Corruption Act 1947 and all three were further jointly charged with having committed criminal breach of trust in furtherance of the common intention of all under section 409 of the Indian Penal Code read with section 34. Then followed a number of alternative charges in which each was separately charged with having committed criminal breach of trust personally under section 409. As a further alternative. all three were jointly charged under section 409 Indian Penal Code read with section 109 for having abetted each other in the commission of a criminal breach of trust under section 409. Objection was at once taken to these charges and the one which concerns us now was couched in the following terms; 1182 "It is further submitted that the trial under section 5(2) Corruption Act 1947 with Indian Penal Code section 409 is likely to embarrass the accused in their defence as it would be difficult to efface the evidence (if any) of the accused persons given on oath from the minds of the Jurors when considering the charge under section 409 Indian Penal Code. It is therefore prayed that the charges under sec409 Indian Penal Code and section 5(2) of the Corruption Act may not be tried together in one trial". The Assistant Public Prosecutor said he had no objection to separating the charges and leaving the one under section 5(2) for another trial. The Court then made the following order on 10 7 1953: "Thus though a joint trial for offence under section 5(2) of the Prevention of Corruption Act and the offences under the Indian Penal Code is legal and valid I think in view of the circumstances mentioned above it would be in the interest of justice and also in the interests of the accused themselves if the trial for the offence under section 5(2) of the Prevention of Corruption Act is separated. I therefore grant the application to this extent and order that the charge should be amended accordingly". In view of this the charges were re framed on 11 7 1953. The only difference of substance is that the charge under section 5(2) was dropped. The others remained. Now it will be observed that the accused are all public servants and they contend that as according to the prosecution they purported to act in the discharge of their official duties sanction was necessary under section 197 of the Criminal Procedure Code. There is sanction so far as the first accused is concerned but the second accused contends that there is none in his case to justify the present trial so his trial conviction and sentence are bad. The position about this is as follows: On 27 10 1949 the Governor General acting under section 197 of the Code of Criminal Procedure sanctioned the prosecution of the first accused for offences tinder sections 1183 120 B 409 109 and so forth for having conspired with the other two to commit criminal breach of trust in respect of the properties with which this case is concerned and thus for having abetted the commission of that offence and also for having committed it. Similar sanction could easily have been given against the other two accused but it was not. The sanction for these offences was limited to the first accused. On the same date sanction was also given for the prosecution of the first accused under section 5(2) of the Prevention of Corruption Act and a similar sanction was given against the second accused. The question is whether this sanction against the second accused can be extended to cover his prosecution under section 409 of the Indian Penal Code. In our opinion it cannot. At the date of the sanction the unamended Prevention of Corruption Act (II of 1947) was in force. Criminal breach of trust under section 409 of the Indian Penal Code was included in the definition of "criminal misconduct" under section 5(1)(c) of the Act of 1947. Therefore an offence under section 409 could be tried under the Act of 1947 and the question arose whether it would have to be tried under that Act or whether it could also be tried in the ordinary way by the ordinary Courts. The Punjab High Court held in The State vs Gurucharan Sinah(1) that it could not. Because of this the Act of 1947 was amended in 1952 by Act LIX of 1952 and section 4 of the amending Act makes it clear that the trial can be under either law. But in the same year the Criminal Law Amendment Act 1952 (Act XLVI of 1952) was passed and because of this Act trials under section 5(2) of the Prevention of Corruption Act must be before a Special Court and a special procedure must be followed. Therefore the position which these various Acts created was this. First a choice was conferred on some authority to choose whether any given accused should be tried in a special Court with a special procedure and be subject to a lesser punishment under section 5(2) or whether he should be tried in the ordi (1) A.I.R. 1952 Punjab 89 1184 nary way under section 409 of the Indian Penal Code with the risk of a higher punishment. The question then is who is to do the choosing. Under section 197 of the Code of Criminal Procedure the Governor General was at that date the sanctioning authority though the words "exercising his individual judgment" had by that time been deleted. Under the Prevention of Corruption Act the sanctioning authority was the "Central Government". Now it may well be that the two mean the same thing because of section 8(a) of the General Clauses Act but that makes no difference at the moment. The fact remains that either one or two Government authorities were given the right and invested with the duty of making an election. They had the right to say whether a certain class of public servant who had committed criminal breach of trust should be tried for that offence under section 409 of the Indian Penal Code in the ordinary courts of the land according to the normal procedure obtaining there and be subject to a maximum penalty of ten years plus an unlimited fine or be tried for the same offence under another name in a special court by a special procedure and be subject to no more than seven years plus a fine which is also unlimited. At this stage of the arguments we asked the learned counsel for the appellants whether they intended to challenge the vires of this law under article 14 of the Constitution because if they did the matter would have to go to a Constitution Bench as we being only three Judges would have no power to decide it. The learned Attorney General at once objected because the point had not been raised at any stage and was not to be found even in the grounds of appeal to this Court. The learned counsel for the appellants replied that they did not wish to take the point. Accordingly we have to proceed in this case on the assumption that the amending Act of 1952 (Act LIX of 1952) is valid. That results in the position we have outlined above. There is a choice not only of forum but also of procedure and the extent of the maximum penalty. If two separate authorities are given the right to 1185 choose and neither can encroach upon the preserve of the other then the Governor General has not sanctioned the present prosecution against the second accused and no other authority has the power to do so. Therefore in that event the sanction given to prosecute under section 5(2) cannot be used to cover the present trial because it is given by another authority not competent to give it. On the other hand if the two authorities are really one then the election has been made clearly and unequivocally. The sanction is to proceed in the special courts with the special procedure and the second accused is not to be exposed to the risk of the higher penalty. In that event the present trial against the second accused is incompetent. That a defect of this kind is fatal and cannot be cured is well settled. See the Privy Council in Gokulchand Dwarkadas vs The King(1) the observations of Varadachariar J. in Hori Ram Singh vs The Crown(1) and the decision of this Court in Madan Mohan vs The State of Uttar Pradesh(1). But the learned Attorney General argued that no sanction was necessary because according to him despite what the second accused says by no stretch of imagination can he be said to have been acting or even purporting to act in the discharge of his official duty. The argument ran as follows: The act complained of here is the breach of trust and the prior abetment of it: the breach occurred as soon as the goods were loaded on Mohsinbhai 's lorries: it was no part of this accused 's official duties to permit an unauthorised removal of the goods: therefore. when he allowed that he neither acted. nor purported to act in the discharge of his official duties. Reference was made to the decision of the Federal Court in Lieutenant Hector Thomas Huntley vs The King Emperor(1) where Zafrullah Khan J. held that "it must be established that the act complained of was an official act" and to the observations of Varadachariar J. in Hori Ram Singh vs The Crown(1) (1) A.I.R. 1948 P.C. 82. (3) A.I.R. 1954 S.C. 637 641. (2) 184. (4) 269. (5) 186. 1186 where dealing with section 409 of the Indian Penal Code he says "Though a reference to the capacity of the accused as a public servant is involved both in the charge under section 409 and in the charge under section 477 A there is an important difference between the two cases when one comes to deal with the act complained of. In the first the official capacity is material only in connection with the 'entrustment ' and does not necessarily enter into the later act of misappropriation or conversion which is the act com plained of". What this argument overlooks is that the stress in the passage quoted is on the word "necessarily" which we have underlined. A later passage at page 187 explains this: "I would observe at the outset that the question is substantially one of fact to be determined with reference to the act complained of and the attendant circumstances; it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests". With that we respectfully agree. There are cases and cases and each must be decided on its own facts. Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied for of course it is no part of an official 's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is " when any public servant. . is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. We have therefore first to concentrate on the word "offence". Now an offence seldom consists of a single act. It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be 1187 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 could in this case be no disposal lawful or otherwise save by an act done or purporting to be done in an official capacity. Therefore the act complained of namely the disposal could not have been done in any other way. If it was innocent it was an official act; if dishonest it was the dishonest doing of an official act but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity and apart from the fact that he did not pretend to act privately there was no other way in which he could have done it. Therefore whatever the intention or motive behind the act may have been the physical part of it remained unaltered so if it was official in the one case it was equally official in the other and the only difference would lie in the intention with which it was done: in the one event it would be done in the discharge of an official duty and in the other in the purported discharge of it. The act of abetment alleged against him stands on the same footing for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus "wilfully suffer" another person to use them dishonestly: section 405 of the Indian Penal Code. In both cases the 'offence" in his case would be incomplete without proving the official act. We therefore hold that section 197 of the Code of Criminal Procedure applies and that sanction was necessary and as there was none the trial is vitiated from the start. We therefore quash the proceedings 152 1188 against the second accused as also his conviction and sentence. We now turn to the appeal of the first accused. He has been convicted under section 409 of the Indian Penal Code read with section 34. The main point here concerns a vital misdirection in the charge to the jury about section 34. The learned Additional Sessions Judge misunderstood the scope and content of this section and so misdirected the jury about the law. The section was expounded at length in paragraphs 15 and 16 of the charge and though some of the illustrations given are on the right lines there is much there that is wrong and which if acted on would cause a miscarriage of justice. The essence of the misdirection consists in his direction to the jury that even though a person "may not be present when the offence is actually committed" and even if he remains "behind the screen" he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention. This is wrong for it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can for instance stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. The antithesis is between the preliminary stages the agreement the preparation the planning which is covered by section 109 and the stage of commission when the plans are put into effect and carried out. Section 34 is concerned with the latter. It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which of 1189 course can be of a passive character such as standing by a door provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre arranged plan when the time comes for him to act. The emphasis in section 34 is on the word "done": "When a criminal act is done by several persons. . It is essential that they join in the actual doing of the act and not merely in planning its perpetration. The section has been elaborately explained by Lord Sumner in Barendra Kumar Ghosh vs The King Emperor(1). At page 52 he explains that "participation in action" is the leading feature of section 34. And at page 53 in explaining section 114 of the Indian Penal Code he says "Because participation de facto (as this case shows) may sometimes be obscure in detail it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by section 114 brings the case within the ambit of section 34". At page 55 he says about section 34 that "participation and joint action in the actual commission of crime are in substance matters which stand in antithesis to abetments or attempts". The misdirection is plain and it goes to the root of the matter because the jury returned a verdict of guilty under section 409 of the Indian Penal Code read with section 34 alone and not under section 409 read with section 109. It is part of the defence of the first accused that he was not present when the goods were loaded nor was be present when they were allowed to pass out of the gates that is to say that he was not present when the offence was committed. It is true there is evidence to show that he was there when the lorries left but apart from the fact that there is a small discrepancy on the point there is nothing to indicate that this evidence was believed. If he was not present he (1) [1924) L.R. 52 I.A. 40. 1190 cannot be convicted with the aid of section 34. He could have been convicted of the abetment had the jury returned a verdict to that effect because there is evidence of abetment and the charge about abetment is right in law. But the jury ignored the abetment part of the charge and we have no means of knowing whether they believed this part of the evidence or not. There is also non direction on an important point which may have caused a miscarriage of justice. The case for the prosecution is that the accused disposed of the goods to Mohsinbhai for a sum of Rs. 4 000 which was duly paid to the second accused on the 10th. The learned trial Judge told the jury that "the evidence led by the prosecution about the payment of the Rs. 4 000 is proved to be utterly useless" and in telling them why he gave them a number of reasons. But he omitted to follow this up by telling them that if they rejected this part of the prosecution case as he invited them to do then the strongest part of the case against the accused collapsed because officers. in the position of the accused do not commit illegal acts like this and expose themselves to a prosecution and possible disgrace unless they are prompted by some strong motive usually self interest; and though a conviction can be based on evidence which does not disclose a motive if the facts proved justify such a course yet it would ordinarily be unsafe to convict in a case like the present in the absence of proof indicating an adequate reason for criminal behavior on the part of the accused. Had the jury been told this as they should have been it is possible they would not have returned a verdict of guilty. In the circumstances we have no alternative but to quash this conviction also. We have now to consider whether there should be a retrial. As the present trial cannot proceed against the second accused and as all the accused are said to have acted in concert each playing an appointed part in a common plan we do not think it would be right 1191 to direct a retrial though this is the normal course when a jury trial is set aside on the grounds of misdirection and non direction. We therefore discharge (not acquit) both the appellants leaving it to Government either to drop the entire matter or to proceed in such manner as it may be advised. We do this because the accused expressly asked that the charge under the Prevention of Corruption Act should be left over for a separate trial. The two convictions are therefore quashed and also the sentences. We are told that the first accused has already served out his sentence. The fine if paid will be refunded. The bail bond of the second accused will be cancelled.

The three accused Government servants were jointly charged with an offence punishable under section 5(2) of the Prevention of Corruption Act 1947 and all three were further jointly charged with having committed breach of trust in furtherance of the common intention of all under section 409 of the Indian Penal Code read with section 34. Then followed a number of alternative charges in which each was separately charged with having committed criminal breach of trust personally under section 409. As a further alternative all three were 1178 jointly charged under section 409 read with section 109 for having abetted each other in the commission of a criminal breach of trust under section 409. On objection taken to these charges the trial for the offence under section 5(2) of the Prevention of Corruption Act was separated from the trial under section 409 of the Indian Penal Code. The charges were reframed. One under section 5(2) was dropped while others remained. On 27 10 1949 the Governor General acting under section 197 of the Code of Criminal Procedure sanctioned the prosecution of the first accused (appellant No. 1) for offences under sections 120 B 409 109 for having conspired with the other two to commit criminal breach of trust in respect of properties belonging to Government and for having thus abetted the commission of that offence and also for having committed it. Similar sanction was not given against the other two accused and was limited only to the first accused. On the same date sanction was given for the prosecution of the first accused under section 5(2) of the Prevention of Corruption Act 1947 and a similar sanction was given against the second accused. The question was whether this sanction against the second accused could be extended to cover his prosecution under section 409 and whether his trial was valid. Held (answering the question in the negative) that under section 197 of the Code of Criminal Procedure the sanctioning authority was the Governor General. Under the Prevention of Corruption Act 1947 the sanctioning authority was the Central Government. Either one or two Government authorities were given the right and invested with the duty of making an election. If two Government authorities are given the right to choose and neither can encroach upon the preserve of the other then the Governor General has not sanctioned the present prosecution against the second accused (appellant No. 2) and no other authority has the power to do so. Therefore the sanction given to prosecute under section 5(2) of Act II of 1947 could not be used to cover the present trial because it was given by an authority not competent to give it. If on the other hand the two authorities are really one then the election has been made clearly. The sanction under section 5(2) of the Prevention of Corruption Act 1947 as amended by Act LIX of 1952 and Act XLVI of 1952 is to proceed in special courts with a special procedure so the present trial against the second accused was incompetent. It is well settled that a defect of this nature is fatal and cannot be cured when section 197 applies and as it did sanction was necessary so the trial was vitiated from the start. The proceeding ; were accordingly quashed. If section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied for it is no part of an official 's duty to commit an offence and never can be. But it is not the duty of an official which has to be examined so much as his act because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. 1179 In the case of the first accused there was misdirection in the charge to the Jury under section 34. The essence of the misdirection consisted in the Sessions Judge 's direction to the jury that even though a person may not be present when the offence is actually committed and even if he remains "behind the screen" he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention. This is wrong because the essence of the section is that the person must be physically present at the actual commission of the crime. The misdirection is plain and goes to the root of the case because the jury returned a verdict of guilty under section 409 read with section 34 alone and not under section 409 read with section 109 I.P.C. Held that in cases which raise questions of substance and importance the High Courts should not pass summary orders of rejection without giving some indication of their views on the points raised before them. Mushtak Hussein vs The State of Bombay ([1953] S.C.R. 809) The State vs Gurucharan Singh (A.I.R. [1952] Punjab 89) Gokulchand Dwarkadas vs The King (A.I.R. Hori Ram Singh vs The Crown ([1939] F.C.R. 159) Madan Mohan vs The State of Uttar Pradesh (A.I.R. Lieutenant Hector Thomas Huntley vs The King Emperor ([1944] F.C.R. 262) and Barendra Kumar Ghosh vs The King Emperor ([1924] L.R. 52 I A. 40) referred to.

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. P. K. Chatterjee for the appellant. section 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. 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 comprised 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 contested the suits and pleaded that the lands were not Mal lands comprised within Mouza Nala that they did not 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 nor the plaintiff claiming under him had any title to them and that the entry in the record of rights in 1931 was correct. 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 comprised 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 not 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 not 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 no determination of tenancy no decree in ejectment could be passed but that the plaintiff was entitled to fair rent and that the claim was not 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 could 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 continuously 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 containing assertions by them that they held under a Lakheraj grant were not 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 connected 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 not lead anywhere and cannot be taken as a finding on the question. No attempt was made before us on behalf of the respondents to connect 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 not been attacked before us that there was no proof of the contents of these documents and that they must therefore be excluded. The position thus is that there is no proof 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 no finding as to the precise length of time during which they held possession. The question is whether in this situation a presumption of lost grant could be made. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable 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 could not be sustained it was held that a presumption could 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 continued possession which could not otherwise be reasonably accounted for. But it was not a presumption juris et de jure and the Courts were not 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 non existence of which he is convinced" observed Farwell J. in Attorney General vs Simpson(1). So also the presumption was not made if there was any legal impediment to the making of it. Thus it has been held that it could not be made if there was no person competent 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 vs Moni Behara and others(1). There will likewise be no scope for this (1) 698. (2) ; 416. 1173 presumption if there is no person capable of making a grant: (Vide Halsbury 's 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 vs Richardson(1) and The Rochdale Canal Company vs Radcliffe(1)]. In the light of these principles it has now to be seen whether on the facts found a lost grant could be presumed in favour of the defendants. The finding is as already stated that they were in possession without payment of rent for a considerable length of time but it has not 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 contains 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 could not 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 could have been held on an anterior Lakheraj grant. It was for this (1) (2) [18521 18 Q. B. 287. 1174 reason that the defendants pleaded that the suit lands were not comprised 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 no scope for the presumption of a lost grant. Learned counsel for the respondents relied strongly on the record of rights made in 1931 with reference to the suit lands as supporting his contention. 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 collusion with one of his agents. The Courts below however have held that had not been established and therefore the entry must be taken as properly made. The respondents contended that a strong presumption should be made in favour of the correctness of the entry because it was made in the ordinary course 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 not actually paying rent for it should be described as "Niskar" and if no sanad 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 could not 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 compliance with that Rule and that what it imports is not that there was a rent free grant but that the person in possession was not actually paying rent. Whatever weight might attach to the word "Niskar" in a 1175 record of rights in other context where the question is whether a presumption of a lost pre settlement Lakheraj grant could be made the inference to be drawn from that word cannot outweigh the effect of the non 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 not 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 could 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 compelling necessity or benefit therefor. Vide Palaniappa Chetty vs Sreenath Devasikamony(1). And what is pleaded in the present case is not even so much as a permanent lease because there is neither premium paid nor rent reserved but a Lakheraj grant unsupported by any consideration. That would clearly be beyond the powers of a Mahant and no presumption of a lost grant could be made in respect thereto. In Barker vs Richardson(2) an easement was claimed (1) [1917] L.R. 44 I.A. 147. (2) 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 could not be presumed because the rector had no right to bind his successor by it and it would therefore be invalid. In The Rochdale Canal Company vs Radcliffe(1) where the Court was asked to presume that a company 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 no presumption of a lost grant could 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 counsel 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 not suggested before them that the decision on the question of limitation was erroneous. The contention that is now pressed before us is that in the view that there was no rent 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 not made the subject of an issue and there is no discussion of it in the judgments of the Courts below. We have already held that the documents relied on by the defendants as containing assertions that they held under a Lakheraj grant are not shown to relate to the suit lands. We (1) ; 1177 have also held that there is no proof 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 non payment of rent for a considerable but unascertained period of time. That in itself is not sufficient to make their possession adverse. It was only in 1931 that the defendants could be said clearly to have asserted a hostile title and the suits are within time from that date. There is no substance 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 costs in this Court and in the two Courts below. The decrees of the District Munsif will stand as regards costs in that Court. Appeals allowed.

A presumption of a lost grant arises in favour of a person who does not claim adversely to the owner but who on the other hand proves ancient and continued possession in assertion of a title derived from the owner without any challenge and such possession and assertion cannot be accounted for except by referring to a legal origin of the grant claimed. But the presumption of a lost grant is not an irrebuttable presumption of law and the court cannot presume a grant where it is convinced of its non existence by reason of a legal impediment as where the presumption of a lost grant is claimed by a fluctuating body of persons. Similarly a presumption of a lost grant cannot arise when there is no person capable of making such a grant or if the grant pleaded is illegal or beyond the powers of the grantor. A presumption of a lost grant by way of Niskar cannot be im puted to the Mohunt of an Asthal inasmuch as he is legally incompetent to make any Niskar grant. When a defendant who denies the title of the plaintiff in respect of any land fails in that plea he cannot fall back on the presumption of a lost grant from the very person whose title he has denied. Findings of fact arrived at by courts should not be vague. Attorney General vs Simpson ([1901] Raja Braja Sunder Deb vs Moni Behara and others ( [1951] S.C.R. 431) Barker vs Richardson ( The Rochdale Canal Com 1169 pany vs Radcliffe ([1852] IS Q.B. 287) and Palaniappa Chetty vs Sreenath Devasikamony ( [1917] L.R. 44 I.A. 147) referred to.

Appeal No. 118 of 1953. Appeal from the Judgment and Decree dated the 28th July 1949 of the High Court of Judicature for the State of Punjab at Simla in Civil Regular First Appeal No. 365 of 1946 arising out of the Decree dated the 31st day of October 1946 of the Court of the SubJudge 1st Class Pathankot in Suit No. 110 of 1945. Rajinder Narain for the appellant. K. L. Gosain (R. section Narula and Naunit Lal with him) for the respondent. January 21. The Judgment of the Court was delivered by DAS J. This is an appeal by the plaintiff in a suit for a declaration of his title as collateral within ' four degrees of Gurdial who was a Sarswat Brahmin resident of Pathankot in the district of Gurdaspur and the last male holder of the properties in suit. Gurdial died many years ago leaving certain lands in villages Bhadroya Kingarian and Pathankot Tehsil Pathankot in the district of Gurdaspur and leaving him surviving his widow Musammat Melo and a daughter Musammat Maya Devi the respondent before us. Some time in the year 1926 a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs. 1 539 7 0 was awarded to Musammat Melo. On ail objection by the appellant this amount was deposited in the Court of the Senior Subordinate Judge Gurdaspur with a direction to pay the interest on this amount to Musammat Melo. On the 28th September 1944 Musammat Melo died and the Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent as the daughter of Gurdial. On the 10th March 1945 the appellant filed the suit out of which this appeal arises against the respondent for a declaration that he was entitled to the lands mentioned in the plaint as well as to the sum of 1194 Rs. 1 539 7 0 in preference to the respondent under the custom governing the parties *hereunder the collaterals of the last male holder excluded the daughter. The respondent contested the suit mainly on the grounds (i) that the suit for a mere declaration was not maintainable (ii)that the parties were governed by Hindu Law and not by custom (iii)that the appellant was not a collateral of Gurdial at all (iv)that the properties in suit were not ancestral and (v) that there was no custom whereunder the collaterals of the father who was the last male holder excluded the daughter from succession to the selfacquired property of her father. The Subordinate Judge in his judgment pronounced on the 31st October 1946 held (i) that the lands in suit being in possession of tenants the suit for a declaration of title thereto was maintainable but the suit for a declaration in respect of the sum of Rs. 1 539 7 0 was not maintainable in view of the provisions of the Indian Succession Act relating to succession certificates (ii)that the parties were governed by custom and not by Hindu Law (iii)that the appellant was a collateral of Gurdial within four degrees (iv)that the land in Khata No. 2 of village Kingarian was ancestral while the rest of the lands in suit were non ancestral and (v) that there was a custom according to which daughter was excluded from inheritance by the collaterals up to the fourth degree with respect to ancestral as well as self acquired property of the last male holder as laid down in the case of Buta Singh vs Mt. Harnamon(1). In the result the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their own costs. (1) A.I.R. 1946 Lah. 306. 1195 Against this judgment and decree the respondent preferred an appeal to the Lahore High Court. The appellant preferred cross objections against the order as to costs and against the finding that the lands in the three villages except the land in Khata No. 2 of village Kingarian were non ancestral. After the partition of India the appeal was transferred to the High Court of East Punjab. By its judgment dated the 28th July 1949 the East Punjab High Court allowed the appeal and dismissed the cross objections on the following findings: (i) that the suit for declaration of title to the lands was maintainable as all the lands in suit were in the possession of tenants (ii) that the lands in suit except the land in Khata No. 2 of village Kingarian were non ancestral and (iii) that according to the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to non ancestral property in preference to collaterals even though they were within the fourth degree. The High Court accordingly modified the decree of the Subordinate Judge to the extent that the declaration in the appellant 's favour was made to relate only to the land in Khata No. 2 of village Kingarian which was held to be ancestral. On an application made by the appellant on the 26th August 1949 the High Court by its order dated the 5th June 1950 granted him a certificate of fitness to appeal to the Federal Court. After the commencement of the Con stitution of India the appeal has come before this Court for final disposal. The first question raised before us but not very seriously pressed is as to whether the lands in suit other than those in Khata No. 2 in village Kingarian were ancestral or self acquired. Our attention has not been drawn to any material on the record which induces us to take a view different from the view concurrently taken by the Courts below. We therefore see no force or substance in this contention 153 1196 The main fight before us has been on the question as to whether there is a custom in the Gurdaspur district governing the parties under which a collateral within the fourth degree excludes the daughter of the last male holder from succession to the self acquired property of her father. The customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 of Rattigan 's Digest of Customary Law. It is categorically stated in subparagraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree. Rattigan 's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab". Indeed the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singh(1). The general custom of the Punjab being that a daughter excludes the collaterals from succession to the selfacquired property of her father the initial onus there fore must on principle be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties. Indeed it has been so held by the Judicial Committee in Mst. Subhani vs Nawab(2) and the matter is now well settled. The appellant claims to have discharged this initial onus in two ways namely (1) by producing the Riwaj i am of the Gurdaspur district prepared by Mr. Kennaway in 1913 and (2) by adducing evidence showing that the collaterals of one Harnam Singh who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this very family of Gurdial succeeded in preference to his daughter. It is pointed out that no instance has been proved on the part of the respondent showing that the daughter ever excluded the collaterals from succession to the self acquired property of the father. The trial Court (1) ; (2) I.L.R. 1197 as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy that it did not appear whether the properties left by Harnam Singh were ancestral or self acquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime. Further the fact that the daughter did not contest the succession of the collaterals to the properties left by Harnam Singh even if they were self acquired might well have been the result as held by the High Court of some family arrangement. We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23(2) of Rattigan 's Digest of Customary Law. The appellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj i am recording the custom of the district of Gurdaspur which was compiled by Mr. Kennaway in 1913. Reference is also made to the earlier Riwaj i ams of the Gurdaspur District prepared in 1865 and 1893. Answer to question 16 as recorded in the Riwaj i am of 1913 shows that subject to certain exceptions which are not material for our purpose the general rule is that the daughters are excluded by the widow and male kindred of the deceased. however remote. This answer goes much beyond the answers to the same question as recorded in the Riwaj i ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees. The answer to question 17 of the 1913 Riwai i am like those to question 17 of the 1865 and 1893 Riwaj i ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or 1198 ancestral and (ii) the movable or self acquired property of their respective fathers. It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj i ams by citing instances of succession contrary to these answers. In support of this contention reference is made to the observations of the Privy Council in Beg vs Allah Ditta(1) that the statements contained in a Riwaj i am form a strong piece of evidence in support of the custom therein entered subject to rebuttal. Reliance is also placed on the observations of the Privy Council in Mt. Vaishno Ditti vs Mt. Rameshri(2) to the effect that the statements in the Riwaj i am might be accepted even if unsupported by instances. The contention is that on production by the appellant of the Riwaj i am of the Gurdaspur district the onus shifted to the respondent to prove instances rebutting the statements contained therein. This it is urged the respondent has failed to do. " There is no doubt or dispute as to the value of the entries in the Riwaj i am. It is well_settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom as recorded is in accord with the general custom the quantum of evidence necessary to rebut that presumption will however vary with the facts and. circumstances of each case. Where for instance the Riwaj i am lays down a custom in consonance with the general agricultural custom of the province very strong proof would be required to displace that presumption; but where on the other hand the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent the presumption will be considerably weakened. Likewise where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities the presumption will be weaker still and only a few instances would be sufficient to rebut it. [See Khan Beg vs Mt. (1) [1916] L.R. 44 I.A. 89. (2) Lah. 186; L.R. 55 I.A. 407 1199 Fateh Khatun (1) Jagat Singh vs Mst. Jiwan The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhani 's case supra. Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj i am be weak the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the selfacquired property of her father and has therefore failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj i am of 1913 and consequently the appellant must succeed. This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigan 's work and to shift the onus to the respondent the appellant must produce a Riwaj i am which is a reliable and trustworthy document. It has been held in Qamar ud Din vs Mt. Fateh Bano(3) that if the Riwaj i am produced is a reliable and a trustworthy document has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be it would be a presumptive piece of evidence in proof of the special custom set up which if left unrebutted by the daughters would lead to a result favourable to the collaterals. If on the other hand it is not a document of the kind indicated above then such a Riwaj i am will have no value at all as a presumptive piece of evidence. This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil vs Mohammad Bakhsh (4). This being the position in law we have to scrutinise and ascertain whether the Riwaj i ams of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents. (1) Lah. 276 296 297. (2) A.I.R. 1935 Lah. (3) Lah. (4) A.I.R. 1949 E.P. 252. 1200 Twenty two tribes including Brahmins were consulted by Mr. Kennaway who prepared the Riwaj i am of 1913. In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was. In Appendix 'C ' are collected 56 instances of mutuations in which the daughter inherited. In these there are four instances relating to Brahmins. Answer to question 16 as recorded in this Riwaj i am has been discredited and shown to be incorrect in at least three cases namely Gurdit Singh vs Mt. Malan(1) Kesar Singh vs Achhar Singh(1) and Buta Singh vs Mt. Harnamon(3). The answer to question 16 as recorded in the 1913 Riwaj i am it was pointed out went much beyond the answer given to the same question in the Riwaj i ams of 1865 and 1893. The answer to question 17 of the 1913 Riwaj i am that no distinction is to be made between ancestral and self acquired property has not been accepted as correct in not less than six cases namely Bawa Singh vs Mt. Partap(4) Jagat Singh vs Mt. Jiwan(5) Kesar Singh vs Gurnam Singh(1) Najju vs Mt. Aimna Bibi (7) Gurdit Singh vs Mt. Man Kaur(8) and Labh vs Mt. Fateh Bibi(9). The statements in a Riwaj i am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix 'C ' of the same Riwaj i am and which have been discredited in judicial proceedings and held to be incorrect cannot in our opinion be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigan 's book so as to shift the onus to the daughter who is the res pondent. The appellant relies on the cases of Ramzan Shah vs Sohna Shah(") Nanak Chand vs Basheshar Nath(11) Mt. Massan vs Sawan Mal(" ') and Kesar Singh vs (1) Lah. 364.(2) A.I.R. 1936 Lah. 68. (3) A.I.R. 1946 Lah. 306.(4) A.I.R. 1935 Lah. (5) Ibid 617. (6) Ibid 696. (7) A.I.R. 1936 Lah. 493.(8) A.I.R. 1937 Lah. (9) A.I.R. 1940 Lah. 436.(10) [1889] 24 P.R 191. (11) [19O8]43 P.R. 15. (12) A.I.R. 1935 Lah. 453 1201 Achhar Singh(1). The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur for the properties in dispute ' in those cases were ancestral and the respondent does not now dispute the appellant 's right to succeed to her father 's ancestral propertie 'section These cases therefore do not throw any light on the present case which is concerned with the question of succession to selfacquired property. Further in the last case the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the collaterals in that case could not succeed. It is also to be noted that the earlier decisions werenot cited or considered in that case. In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances. In these circumstances the general custom recorded in Rattigan 's book must prevail and the decision of the High Court must be upheld. We accordingly dismiss this appeal with costs. Applal dismissed.

It is now well settled that the general custom of the Punjab being that a daughter excludes the collaterals from succession to the self acquired property of her father the initial onus therefore must on principle be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties. It is also well settled that though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom as recorded is in accord with the general custom the quantum of evidence necessary to rebut that presumption will however vary with the facts and circumstances of each case. Where for instance the Riwaj iam lays down a custom in consonance with the general agricultural custom of the province very strong proof would be required to displace that presumption; but where on the other hand the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent the presumption will be considerably weakened Likewise 1192 where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities the presumption will be weaker still and only a few instances would be sufficient to rebut it. If the Riwaj i am produced is a reliable and a trustworthy document has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be it would be a presumptive piece of evidence in proof of the special custom setup which if left unrebutted by the daughters would lead to a result favourable to the collaterals. If on the other hand it is not a document of the kind indicated above then such a Riwaj i am will have no value at all as a presumptive piece of evidence. The Riwaj i ams of the Gurdaspur district prepared by Mr. Kennaway in 1913 in so far as they purport to record the local custom as to the right of the daughter to succeed to the self acquired property of her father are not reliable and trustworthy documents. The answer to question 16 and the answer to question 17 re corded therein do not contain the correct record of custom. Held that the appellants collateral within fourth degreea Saraswat Brahmin of Pathankot in the district of Gurdaspur had failed to discharge the onus that initially rested on him that the respondent (the daughter) was excluded by him in respect of the nonancestral property of her father and that therefore no burden was cast on her of adducing evidence of particular instances. The general custom laid down in para 23 of Rattigan 's Digest of Customary Law that "a daughter is preferred to collaterals in regard to the self acquired property of tier father" was approved by the Supreme Court. Butta Singh vs Mt. Harnamon (A.I.R. 1946 Lab. 306) Gopal Singh vs Ujagar Singh ( ; Mst. Subhani vs Nawab (I.L.R. [1940] Lab. 154) Beg vs Allah Ditta ( [1916] L.R. 44 I.A. 89) Mt. Vaishno Ditti vs Mt. Rameshri ( Lab. 186; L.R. 55 I.A. 407) Khan Beg vs Mt. Fateh Khatun ( Lab. 276) Jagat Singh vs Mst. Jiwan (A.I.R. 1935 Lab. 617) Qamar ud din vs Mt. Fateh Bano ([1943] I.L.R. 26 Lab. 110) Mohammad Khalil vs Mohammad Bakhsh (A.I.R. 1949 E.P. 252) Gurdit Singh vs Mt. Malan ([1924] I.L.R. 5 Lab. 364) Kesar Singh vs Achhar Singh (A.I.R. 1936 Lab. 68) Bawa Singh vs Mt. Partap (A.I.R. 1935 Lab. 288) Kesar Singh vs Gurnam Singh (A.I.R. 1935 Lab. 696) Najju vs Mt. Aimna Bibi (A.I.R. 1936 Lab. 493) Gurdit Singh vs Mt. Man Kaur (A.I.R. 1937 Lab. 90) Labh vs Mt. Fateh Bibi (A.I.R. 1910 Lab. 436) Ramzan Shah vs Sohna Shah ([1889] 24 P.R. 191) Nanak Chand vs Basheshar Nath ( [1908] 43 P.R. 15) and Mt. Massan vs Sawan Mal (A I R. 1935 Lab. 453) referred to 1193

minal Appeal No. 132 of 1954. Appeal by Special Leave granted by the Supreme Court by its Order dated the 3rd September 1954 from the Judgment and Order dated the 15th June ' 1954 of the High Court of Judicature for the State of Punjab at Simla in Criminal in Appeal No. 287 of 1954 arising out of the Judgment and Order dated the 14th April 1954 of the Court of Additional Sessions Judge in Session Case No. 4 of 1954. J.G. Sethi (Naunit Lal with him) for the appellant. 1204 Gopal Singh and P. G. Gokhale for the respondent. January 25. The Judgment of the Court was delivered by IMAM J. This appeal by Nanak Chand comes by special leave against the judgment of the Punjab (1) High Court. The appellant was convicted by the High Court under section 302 of the Indian Penal Code and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was con firmed. On the facts alleged by the prosecution there can be no doubt that Sadhu Ram was killed on the 5th of November 1953 at about 6 45 P.m. at the shop of Vas Dev P. W. 2. It is alleged that the appellant along with others assaulted Sadhu Ram. The appellant was armed with a takwa. Numerous injuries were found on the person of Sadhu Ram. According to the doctor who held the postmortem examination injuries 1 3 and 4 were due to a heavy sharp edged weapon and could be caused by a takwa. It was denied by the prosecution that the deceased was assaulted by any other person with a takwa. According to the Medical evidence injuries 1 3 and 4 individually as well as collectively were enough to cause: death in the ordinary course of nature. In the Court of Sessions the appellant along with others was charged under section 148 and section 302 read with section 149 of the Indian Penal Code. The Additional Sessions Judge however held that the charge of rioting was not proved. He accordingly found the appellant and three others guilty under section 302 read with section 34 of the Indian Penal Code. He acquitted the other three accussed There was an appeal by three convicted persons to the High Court and the high court convicted the appellant alone under section 302 of the Indian Penal Code confirming the sentence of death but altered the conviction of the other accused 'from section 302/34 to section 323 Indian Penal Code. it held that the provisions of section 34 of the Indian Penal Code did not apply. 1205 On behalf of the appellant questions of law and questions of fact were urged. It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted. The principal question of law to be considered is as to whether the appellant could legally be convicted for murder and sentenced under section 302 Indian Penal Code when he was not charged with that offence. It was urged that as the appellant had been acquitted of the charge of rioting and the offence under section 302/149 of the Indian Penal Code he could not be convicted for the substantive offence of murder under section 302 Indian Penal Code without a charge having been framed against him under that section. Reliance has been placed on the provisions of the Code of Criminal Procedure relating to the framing of charges the observations of the Privy Council in Barendra Kumar Ghosh vs Emperor(1) and certain decisions of the Calcutta High Court to which reference will be made later on. It was urged that for every distinct offence of which a person is accused there shall be a separate charge and every such charge shall be tried separately except in cases mentioned under sections 234 235 236) 237 and 239 of the Code of Criminal Procedure. Section 149 of the Indian Penal Code creates a specific offence and it is a separate offence from the offence of murder punishable under section 302 of the Indian Penal Code. The provisions of sections 236 237 and 238 of the Code of Criminal Procedure did not apply to the facts and circumstances of the present case. Off behalf of the Prosecution however it was urged that section 149 did not create any offence at all and therefore no separate charge was obligatory under section 233 of the Code of Criminal Procedure and that in any event the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply and the appellant could have been convicted and sentenced under section 302 of the Indian Penal Code although no charge for the substantive offence of murder had been framed against him. (1) Cal 197 1206 It is necessary therefore to examine the provisions of section 149 of the Indian Penal Code and consider as to whether this section creates a specific offence. Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which deals with offences against the public tranquillity. Section 149 of the Indian Penal Code reads: "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence". This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person who was a member of the same assembly at the time of the commission of the offence was guilty of that offence. Under this section a person who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the section although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails there can be no conviction of any one of them for an offence which he had not himself committed. Similarly under section 150 of the Indian Penal Code a specific offence is created. Under this section a person need not be a member of an unlawful assembly and yet he would be guilty of being a member of an unlawful assembly and guilty of an offence which may be committed by 1207 a member of the unlawful assembly in the circumstances mentioned in the section. Sections 149 and 150 of the Indian Penal Code are not the only sections in that Code which create a specific offence. Section 471 of the Indian Penal Code makes it an offence to fraudulently or dishonestly use as genuine any document which a person knows or has reason to believe to be a forged document and it provides that such a person shall be punished in the same manner as if he had forged such document. Abetment is an offence under the Indian Penal Code and is a separate crime to the principal offence. The sentence to be inflicted may be the same as for the principal offence. In Chapter XI of the Indian Penal Code offences of false evidence and against public justice are mentioned. Section 193 prescribes the punishment for giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose of being used in any stage of a judicial proceeding. Section 195 creates an offence and the person convicted of this offence is liable in certain circumstances to be punished in the same manner as a person convicted of the principal offence. Sections 196 and 197 to 200 of the Indian Penal Code also create offences and a person convicted under any one of them would be liable to be punished in the same manner as if he had given false evidence. It was however urged on behalf of the Prosecution that section 149 merely provides for constructive guilt similar to section 34 of the Indian Penal Code. Section 34 reads: "When a criminal act is done by several persons in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone". This section is merely explanatory. Several persons must be actuated by a common intention and when in furtherance of that common intention a criminal act is done by them each of them is liable for that act as if the act bad been done by him alone. This section does not create any specific offence. As was pointed out by Lord Sumner in Barendra Kumar Ghosh vs Emperor(1) " 'a criminal act ' means that (1) Cal. 197 1208 unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone that is in a criminal offence". There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. ' There is no question of common intention in section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object every member of the unlawful assembly would be guilty of that offence although there may have been no common intention and no participation by the other members in the actual commission of that offence. In Barendra Kumar Ghosh vs Emperor(1) Lord Sumner dealt with the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court then sections 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner however section 149 is certainly not otiose for in any case it created a specific offence. It postulated an assembly of five or more persons having a common object as named in section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object and he referred to Queen vs Sabid Ali and (1) Cal 197 1209 Others(1). He pointed out that there was a difference between object and intention for although the object may be common the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful while the element of participation in action which is the leading feature of section 34 was replaced in section 149 by membership of the assembly at the time of the committing of the offence. It was argued however that these observations of Lord Sumner were obiter dicta. Assuming though not conceding that may be so the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code. It is however to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council the Privy Council reviewing as a whole the provisions of sections 34 114 and 149 of the Indian Penal Code. On behalf of the appellant certain decisions of the Calcutta High Court were relied upon in support of the submission made viz. Panchu Das vs Emperor(2) Reazuddi and Others vs King Emperor(3) and Emperor vs Madan Mandal and Others( ' ). These decisions support the contention that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code. On the other hand the prosecution relied upon a decision of the. Full Bench of the Madras High Court in Theetkumalai Gounder and Others vs King Emperor(5) and the case Queen Empress vs Bisheshar and Others(6). The decision of the Madras High Court was given in April 1924 and reliance was placed upon the decision of the Allahabad High Court. The decision of the Privy Council in Barendra Kumar Ghosh 's case was in October 1924. The Madras High Court therefore did not have before it the decision of the Privy Council. It is impossible to say what view might have been expressed (1) [1873] 20 W.R. (Cr.) 5.(2) Cal. (3) [1961] 6 O.W.N 98.(4) Cal. (5) Mad. 746.(6) All. 1210 by that court if the Privy Council 's judgment in the aforesaid case had been available to the court. The view of the Calcutta High Court had been noticed and it appears that a decision of the Madras High Court in Taikkottathil Kunheen(1) was to the effect that section 149 of the Indian Penal Code is a distinct offence from section 325 of the Indian Penal Code. Because of this it was thought advisable to refer the matter. to a Full Bench. Two questions were referred to the Full Bench: (1) When a charge omits section 149 Indian Penal Code and the conviction is based on the provisions of that section is that conviction necessarily bad or does it depend on whether the accused has or has not been materially rejudiced by the omission? (2) When a charge has been framed under sections 326 and 149 Indian Penal Code is a conviction under section 326 Indian Penal Code necessarily bad or does this also depend on whether the accused has or has not been materially prejudiced by the form of the charge? The Full Bench agreed with the view expressed by Sir John Edge in the Allahabad case that section 149 created no offence but was like section 34 merely declaratory of a principle of the common law and its object was to make it clear that an accused who comes within that section cannot put forward as a defence that it was not his hand which inflicted the grievous hurt. It was observed by Spencer J. that a person could not be tried and sentenced under section 149 alone as no punishment is provided by the section. Therefore the omission of section 149 from a charge does not create an illegality by reason of section 233 of the Code of Criminal Procedure which provides that for every distinct offence of which any person is accused there shall be a separate charge. They did not agree with the general statement in Reazuddi 's case(2) that it is settled law that when a person is charged by implication under section 149 he cannot be convicted of the substantive offence. A charge for a substantive offence under section 302 or section 325 of the Indian Penal Code etc. is for a distinct and separate offence from that under section (1) [1928] 18 L.W. 946. (2) (1901] 1211 302 read with section 149 or section 325 read with section 149 etc. and to that extent the Madras view is incorrect. It was urged by reference to section 40 of the Indian Penal Code that section 149 cannot be regarded as creating an 'offence ' because it does not itself provide for a punishment. Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore the appropriate punishment section must be read with it. It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it. The finding that all the members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence. Reliance was also placed upon the decision of the Patna High Court in Ramasray Ahir vs King Emperor(1) as well as the decision of the Allahabad High Court in Sheo Ram and Others vs Emperor(1). In the former case the decision of the Privy Council in Barendra Kumar Ghosh 's case was not considered and the decision followed the Full Bench of the Madras High Court and the opinion of Sir John Edge. In the latter case the Allahabad High Court definitely declined to answer the question as to whether the accused charged with an offence read with section 149 Indian Penal Code or with an offence read with section 34 Indian Penal Code could be convicted of the substantive offence only. After an examination of the cases referred to on behalf of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta High Court is the correct view namely that a person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed 'as required by section 233 of the Code of Criminal Procedure. It was urged that in view of the decision of this Court in Karnail Singh and another vs State of Punjab(1) a conviction under section 302 read with see (1) Patna 484. (2) A.I.R. 1948 All. 162 (3) 155 1212 tion 149 could be converted into a conviction under section 302/34 which the trial Court did. There could be no valid objection therefore to converting a conviction under section 302/34 into one under section 302 which the High Court did. ' This argument is unacceptable. The High Court clearly found that section 34 was not applicable to the facts of the case and acquitted the other accused under section 302/34 that is to say the other accused were wrongly convicted by the trial court in that way but the appellant should have been convicted under section 302. The High Court could not do what the trial court itself could not do namely convict under section 302 as no separate charge had been framed under that section. It was urged by the Prosecution that under the provisions of section 236 and section 237 of the Code of Criminal Procedure a person could be convicted of an offence which he is shown to have committed although he was not charged with it. Section 237 of the Code of Criminal Procedure is entirely dependent on the provisions of section 236 of that Code. The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed. In these circumstances if there had been an omission to frame a charge then under section 237 a conviction could be arrived at on the evidence although no charge had been framed. In the present case there is no doubt about the facts and if the allegations against the ap pellant that he bad caused the injuries to the deceased with takwa was established by evidence then there could be no doubt that the offence of murder bad been committed. There was no room for the application of section 236 of the Code of Criminal Procedure. It had been argued on behalf of the prosecution that no finding or sentence pronounced shall be deemed invalid merely on the ground that no charge was framed. Reliance was placed on the provisions of section 535 of the code of criminal procedure 1213 Reference was also made to the provisions of section 537 of that Code. Section 535 does permit. a court of appeal or revision to set aside the finding or sentence if in its opinion the non framing of a charge has resulted in a failure of justice. Section 537 also permits a court of appeal or revision to set aside a finding or sentence if any error omission or irregularity in the charge has in fact occasioned a failure of justice. The explanation to the section no doubt directs that the court shall have regard to the fact that the objection could and should have been raised at an earlier stage in the proceedings. In the present case however there is no question of any error omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was in fact framed. Section 232 of the Code of Criminal Proce. dure permits an appellate court or a court of revision if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming however for a moment that there was merely an irregularity which was curable we are satisfied that in the circum stances of the present case the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code. By framing a charge under section 302 read with section 149 of the Indian Penal Code against the appellant the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease Attention has been 1214 drawn to the Medical evidence. With reference to injury No. I the doctor stated that the wounds were not very clean cut. It is further pointed out that the other incised injuries on the head were bone deep. The bone however had not been out. Injuries on the head although inflicted by a blunt weapon may sometimes assume the characteristics of an incised wound. Reference was made to Glasgow on Medical Jurisprudence 9th Ed. at page 241 where it is stated that under certain circumstances and in certain situations on the body wounds produced by a blunt instrument may stimulate the appearance of an incised wound. These wounds are usually found over the bone which is thinly covered with tissue in the regions of the head forehead eyebrow cheek and lower jaw among others. It is also pointed that Vas Dev P.W. 2 bad admitted that Mitu took away the takwa from the appellant after Sadhu Ram had been dragged out of the shop but no takwa blow was given outside the shop. Prakash Chand P.W. 4 another eye witness also admitted that Mitu had taken the takwa from the appellant when they had come out of the shop. It was urged that if a specific charge for murder had been framed against the appellant he would have questioned the doctor more closely about the incised injuries on the head of the deceased as well as the prosecution witnesses. It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non framing of a charge under section 302 Indian Penal Code. Having regard to the view expressed on the question of law it is unnecessary to refer to the arguments on the facts. The appeal is accordingly allowed and the conviction and the sentence of the appellant is set aside and the case of the appellant is remanded to the court of Sessions at Jullundur for retrial after framing a charge under section 302 of the Indian Penal Code and in accordance with law. Appeal allowed.

Section 34 of the Indian Penal Code is merely explanatory. It does not create any specific offence. Under this section several persons must be actuated by a common intention and when in further (1) A.I.R. 1936 Lah. 1202 ance of that common intention a criminal act is done by them each of them is liable for that act as if the act had been done by him alone. There is a clear distinction between the provisions of section 34 and section 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and the other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object every member of the unlawful assembly would be guilty of that offence although there may have been no common intention and no participation by the other members in the actual commission of that offence. There is a difference between object and intention for although the object may be common the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in one respect namely that they are all unlawful while the element of participation in action which is the leading feature of section 34 is replaced in section 149 by membership of the assembly at the time of the committing of the offence. A charge for a substantive offence under section 302 or section 325 of the Indian Penal Code etc. is for a distinct and separate offence from that under section 302 read with section 149 or section 325 read with section 149 etc. A person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by section 233 of the Code of Criminal Procedure. There was no room for the application of section 236 of the Code of Criminal Procedure to the facts of the present case. The provisions of section 236 of the Code of Criminal Procedure can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed. In the present case there was no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceeased with takwa was established by evidence then there could be no doubt that the offence of murder had been committed 1203 In the present case there was no question of any error omission or irregularity in the charge within the meaning of section 537 of the Code of Criminal Procedure because no charge under section 302 of the Indian Penal Code was in fact framed. There was an illegality in the present case and not an irregularity which was curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming however that there was merely an irregularity which was curable the irregularity in the circumstances of the case was not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code. By framing a charge under section 302 read with section 149 Indian Penal Code against the appellant the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease. Barendra Kumar Ghosh vs Emperor ( (1925] I.L.R. 52 Cal. 197) Queen vs Sabid Ali and others ( [1873] 20 W.R. (Cr.) 5) Panchu Das vs Emperor ( Cal. 698) Beazuddi and Others vs King Emperor ([1901] Emperor vs Madan Mandal and Others ( Cal. 662) Theethumalai Gounder and Others vs King Emperor ([1924] I.L.R. Queen Empress vs Bisheshar and Others ( All. 645) Taikkottathil Kunheen ( [1923] 18 L.W. 946) Bamasray Ahir vs King Emperor ( Patna 484) Sheo Ram and Others vs Emperor (A.I.R. 1948 All. 162) and Karnail Singh and another vs State of Punjab ( referred to.