April 2z.

702 SUPREME COURT REPORTS [1959] Supp.

THE COMMISSIONER OF SALES-TAX,

EASTERN DIVISION, NAGPUR

HUSEN ALI ADAMJI AND CO.

(S. R. DAS, C. J., N. H. BHAGWATI and M. liIDAYATULLAH, JJ.)

Sales Tax-Contract of sale-Construction-Unascertained goods-Levy of tax on goods sent by rail-Place where property in goods passes-Place of appropriation on delivery-Indian Sale of Goods Act, I930 (III of I930), ss. 4, I8, 23, 33, 39-Central Provinces and Berar Sales Tax Act, I947 (C. P. & Bcrar XXI of I947), s. 2(g), Explanation II.

The respondent company was a dealer in matchwood called "sawar" and his place of business was situate in Chanda in the erst, vhile Central Provinces. Pursuant to an agreement between the respondent and a match factory, the former loaded diverse quantities of "sawar" logs on railway wagons and despatched the same by rail from Chanda and other railway stations in the Central Provinces to Ambernath, a town in the erstwhile Province of Bombay. Under cl. 4 of the agreement the goods to be supplied under the contract shall be despatched by the contractor from certain railway stations within the Central Provinces, while cl. 2 reserved the right of the consignee to examine the goods on arrival at Ambernath and to reject the same if they were found, in the opiniqn of the factory manager, not to conform with the specifications. Clause 6 provided that the goods shall be measured under the supervision of the factory's representative, the decision of the factory manager at Ambernath being binding on the contractor, and by cl. 7 the prices of the goods shall be" F. 0. R. Ambernath ". The course of dealings between the parties was that on arrival of the logs at Ambernath the logs were inspected and measured by the factory manager and the prices, calculated at the agreed rates, were paid to the respondent's agent at Bombay. The question was as to when and where the property in the logs passed from the respondent to the consignee and whether the respondent was liable to pay sales tax under the provisions of the.Central Provinces and Berar Sales Tax Act, 1947 At the date when the agreement was entered into, the logs were unascertained goods. There was also no evidence that at that date the particular logs delivered thereunder were in the Central Provinces in the shape of logs at all.

The sales tax department levied the tax on the respondent on the grounds, inter alia, that (1) the property in the logs passed from the respondent to the factory consignee under s. 23 of the Indian Sale of Goods Act, 1930, when the logs were loaded in the wagons at railway stations within the Centra 1 Provinces and the railway

receipts taken in the name of the factory were forwarded to the x959 latter, and that (2) in any case, as the logs were in the Central Provinces at the date when the contract for sale was made, the Commissioner of transfer in them must be deemed to have taken place there Sales Tax under Explanation II to s. 2(g) of the Central Provinces and v.

Berar Sales Tax Act, 1947 Husenali Held : (1) that on a proper construction of the contract as a Adamji 0- Co. whole the intention of the parties was that the respondent would send the logs by rail from the different stations in the Central Provinces to Ambernath where the factory manager would inspect, measure and accept the same if in his opinion they were of the description and quality agreed upon. Consequently, as the respondent sent the logs and left it to the factory to appropriate to the contract such of them as they accepted as of contract quality and description, the property in the logs did not pass to the buyer by the mere delivery to the railway for carriage but passed only at Ambernath when the logs were appropriated by the factory with the assent of the seller within the meaning of s. 23 of the Indian Sale of Goods Act, 1930.

(2) that Explanation II to s. 2(g) of the Central Provinces & Berar Sales Tax Act, 1947, was not applicable to the case, ' because under the Explanation the goods, in respect of which the contract of sale is made, must, at the date of the contract be in existence in the Central Provinces, that is to say, that the goods must at the date of the contract be there in the form in which they are agreed to be sold and there was no evidence, in the present case, for this.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13 of 1958.

Appeal by special leave from the judgment and order dated June 29, 1954, of the former Nagpur High Court in Misc. Civil Case No. 219 of 1952.

R. Ganapathy Iyer and D. Gupta, for the appellant.

M. 0. Setalvad, Attorney-General for India, K. G.

Chondke, J.B. Dadachanji and K. K. Raizada, for the respondents.

I. N. Shroff, for the Intervener (State of Madhya Pradesh). 1959.

April 21.

The Judgment of the Court was delivered by

DAS, C. J.-This is an appeal by special leave Das c. J. against the order of the High Court of Judicature at Nagpur dated June 2!J, 1954, answering against the

appellant certain questions rferred to it by the Board of Revenue under s. 23(1) of the Central Provinces & Cpmmissioner of Berar Sales Tax Act, 1947 (hereinafter referred to as Sales Tax

r959

Husenali Adaniji & Co.

Das' C. ].

"the Act"). The reference arose out of an order of assessment made on the respondent for payment of sales tax for the period June 1, 1947, to November 12, 1947, on a taxable turnover of Rs. 30,067-9·0.

The facts leading up to the present appeal may shortly be stated as follows.

The respondent deals in matchwood called "sawn, r" (Bombay Malabaricum).

His place of business is situate at Chanda in the erstwhile Central Provinces. In January 1948 the respondent entered into an agreement with the Western India Match Co. Ltd., which is popula.rly known and will hereinafter be referred to as " WIMCO" for the supply of a minimum quantity of 2,500 tons of sawar logs during the season 1947-48.

This agreement is evidenced by WIMCO's letter dated January 7, 1948, accepting and confi, rming it. Unfortunately that letter, although a part of the record, has not been printed in the Paper Book. It is common ground, however, that the agreement of sale was subject to the conditions appearing in a formal contract in writing dated March 2, 1945, which is said to have been renewed from year to year. It appears that prior to the execution of the last mentioned contract there was another contract between the respondent and WIMCO which was dated October 18, 1940. Evidently that contract was superseded by the later one of March 2, 1945, the terms and conditions whereof were renewed year after year. It is, therefore, not easily intelligible why both the contracts were filed before the Sales Tax authorities and actually mentioned in the first question that was referred to the Hight Court.

Both the contracts have been printed in the Paper Book and reference has been made to some of the terms of both of them in the course of the arguments before us.

The reason for referring to the terms of the earlier eontract is presumably to emphasise the variation in the language used in the corresponding provisions of the later contract as indicative of a definite change in .the intention of the parties. It is, therefore,

as well that the relevant clauses of both the contracts should be set out here for properly following the arguments advanced on both sides.

Reference may first be made to the earlier contract dated October 18, 1940.

Clause 1 sets out the specifications, that is to say, the dimensions and quality of the logs to be delivered under the contract which need not be reproduced here.

The other material clauses, omitting the unnecessary portions thereof, may now be set out :-

" 2.

The Contractor agrees that any logs supplied by him which do not conform with the specification herein shall not be accepted or paid for by the company and he the contractor undertakes to remove all logs so rejected at his own expense from the Company's premises within fifteen days after date of notice to him or his representative from the Company so to remove such fogs.

Should the Contractor fail to remove such logs from the Company's premises within the period stipulated it is hereby mutually agreed that such failure shall be construed as being the Contractor's consent to relinquish all claims whatsoever to such rejected logs, and the Contractor agrees to such logs thereupon becoming the property of the company and that the contractor shall have no claim whatsoever upon the company for payment either in respect of the supply by him of such rejected logs or arising out of the disposal by the Company of such logs."

"3. The said goods shall be delivered at Ambernath in the quantities and at the times hereinafter mentioned, i.e.,

" " 4.

The goods to be supplied under this Contract shall be despatched by the Contractor from Railway Stations on the B.N.R. and G.I.P.R. Sections between the following Stations :

" "5. Measurements :-The goods under this contract shall be measured under the supervision of the 89

r959

Commissioner of Sales Tax

Husena.Ii Adamji & Co.

Das C. ].

I959 Company's Factory Manager at Ambernath on arrival

Commissioner of of the goods at the Factory in accordance with the Sales Tax following stipulations :-

I-lusenali Adamji &- Co.

Das C. j.

The Conti:actor agrees to accept the decision of the Company's Factory Manager at Ambernath as final and binding." The prices of the logs to be supplied are set out in

cl. 6 of the contract as "F.O.R. Ambernath ".

We now pass on to the later contract of March 2,

1945. Clause 1 sets out the specifications of the logs to be supplied under the contract in exactly the same language as in cl. I of the earlier contract. The other material clauses, again omitting the unnecessary portions, are as follows :-

" 2. The contractor agrees that any logs supplied by him. which, on arrival at Ambernath, are found in the opinion of the Company's Factory Manager not to conform with the specifications herein shall not be accepted or paid for by the Company, notwithstanding the fact that such logs may have been accepted by the Company's representatives before being railed to Ambernatb."

It may be mentioned here that Ambernath is a place situate in the erstwhile province of Bombay and outside the Central Provinces.

"4. The goods to be supplied under this contract shall be despatched by the Contractor from railway stations on the B. N. Railway, N. S. Railway and G. I. P. Railway sections between the following stations . . . . . . . . . . . . . . . . . . . . . . i ............................................. ·,;

It is unnecessary to set out the names of the stations which, it may, however, be stated, are all in the erstwhile Central Provinces. Clause 6 provides:

" 6.

Measurements :- The goods under this contract shall be measured under the supervision of the Company's representative in accordance with the following stipulations:-

The contractor agrees to accept the decision of the Company's Factory Manager at Ambernath• as final and binding." The prices of the logs to be supplied under the contract are specified as" F.0.R. Ambernath" in cl. 7 which concludes with the following sentence:

"The money so due and payable shall be paid by the Company to the Contractor when the measurements of the goods have been completed under the supervision of the Company's representative."

Pursuant to the agreement between the respondent and WIMCO, the former loaded diverse quantities of Sawar logs on railway wagons and despatched the same by railway from Chanda or other railway stations in the Central Provinces to Ambernath in the erstwhile province of Bombay and outside the Central Provinces. It is not disputed that on many occasions the representative of WIMCO was present at the railway station when the logs were sorted out and loaded into the wagons. The statement of the case submitted along with the r-eference under s. 23(1) of the Act is silent on the point as to whether the railway receipts were made out with WIMCO as the consignee; but it is abundantly clear from the order of the Assistant Commissioner, Sales Tax, which is.part of the record -and it has not been disputed before us-that " the railway receipt which is a document of title according to s. 2(4) of the Indian Sale of Goods Act is taken in the name of the consignee." The course of dealings between the parties also appears to be that, on arrival of the logs at Ambernath, tb.e consignee buyer WIMCO, paid the railway freight and the logs were inspected and measured by WIMCO's Factory Manager and the prices, calculated at the agreed rates, were paid to the respondent's agent at Bombay. There is no doubt that the price of the logs supplied by the respondent , to WIMCO under the agreement and accepted by the latter during the period in question_ amounted to Rs. 30,067-9-0. The question for our

I959

Commissioner of Sales Tax

Husenali Adamji & Co.

Das C. J.

I959 decision is Whether the respondent is liable to pay any

C -. -. sales tax under the Act. oinmissioner of • . • Sales Tax It will be convement at this stage to refer to the v. rekivant provisions of law applicable to the facts of Husenali this case. Section 4 of that Act is the charging section.

Adamji & Co. According to this section sales tax is payable " on all

Das C. ]. sales effected after the commencement of the Act." "Sale" is defined by s. 2(g) of the Act. At the relevant period, that section, omitting Explanation I, which is not material for our purpose, ran as follows:-

" ' Sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Explanation II :-Notwithstanding anything to the contrary . in the Indian Sale of Goods Act, 1930, the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract o/ sale as defined in that Act in respect thereof is made, shall, wherever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar ."

The Act being a. piece of legislation enacted by the legislature of the erstwhile Province of Central Provinces and Berar, its operation is limited to the territories of that province. Therefore, the question arises: Does the sum of Hs. 30,067 .9.0 represent the prices of logs sold by the re&pondent within the Central Provinces ? Sale being the transfer of property in the goods agreed to be sold, we have to enquire if the property in the goods which fetched the sale proceeds on which the sales tax is sought to be levied was transferred in the Central Provinces as contemplated in the main definition or if those goods were actually in the Central Provinces at the time when the contract for sale as defined in the Sale of Goods Act in respect thereof was made as required by Explanation II set

out above. This takes us to the Sale of Goods Act, 1930.

Section 4 of the Sale of Goods Act is expressed in the words following:-

" 4. Sale and agreement to sell :-(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to trnsfer 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 bec9m.es a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred." There can be no doubt that the agreement pursuant to which the logs were supplied by the respondent to WIMCO was an agreement to sell within the meaning of the above section. There is also no controversy between the parties that at the date when this agreement was entered into, the logs were unascertained goods.

The question is : When did that agreement to sell unascertained goods become a sale and where did such sale take place? In other words, when and where did the property in those goods pass from the respondent to WIMBO ?

The transfer of property in the goods as between the seller and buyer is dealt with in Oh. III of the Sale of Goods Act. Section 18 of the Sale of Goods Act runs thus:

"18. Goods must be ascertained :-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." Passing over ss. 19 to 22which (except as to sub-s. (3) of s. 19) apparently apply to contracts for the sale of

I959

Commissioner of Sales Tax

Husenali Adamji & Co.

Das C. ].

r959

Conimissioncr of

Sales Tax

Husenali Adamji & Co.

Das C. J.

specific or ascertained goods, we come to s. 23 which provides :- . "23. Sale of unascertained goods and appropriation :-( 1) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.

(2) Delivery to carrier :-Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the' goods to the con tract." Reference may next be made to s. 33 ands. 39(1). Section 33 says:-

" 33.

Delivery :-Delivery of goods sold may be made by doing anything which the parties agreed shall be treated as deli very or which has the effect of putting the goods in the possession of the buyer or of any person authorised to hold them on his behalf." Section 39(1) runs as follows:-

" 39. Delivery to carrier or wharfinger :-

(1) Where, in pursuance of a contract of sale, the seller is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to wharfinger, for safe custody, is prima facie deemed to be delivery of the goods to the buyer." Keeping the provisions of the above quoted sections of the two Acts in view, we have to decide when and where the property in the logs passed from the respondent to WIMCO.

The Assistant Commissioner of Sales Tax assessed the respondent to a tax of Rs. 939-10-0 and imposed on the respondent a penalty of Rs. 100 under s. 25 of

the Act for not having submitted its return in contravention of r. 19 of the Central Provinces and Berar Sales Tax Rules. The Assistant Commissioner took the view that the loading of the logs into the wagons at railway stations within the Central Provinces and the taking out of the railway receipts in the name of the consignee, WIMCO, and the delivery of the same to WIMCO, had the effect of putting the latter in possession of.the goods as laid down in s. 39(1) of the Indian Sale of Goods Act and he accordingly held that the sale of the goods took place at Chanda and other railway stations in the Central Provinces and that the assessee was, consequently, liable to pa.y the sales tax under the Act.

The respondent preferred an appeal to the Sales Tax Commissioner who upheld the Assistant Commissioner's order of assessment as well as of the penalty.

He laid greater emphasis on Explanation II to s. 2(g) of the Act as over-riding the provisions of the Indian Sale of Goods Act in respect of the transfer of property in the logs and held that as the logs were in the Central Provinces at the date when the contract for sale was made, the transfer in them must be deemed to have taken place there under that Explanation. He also agreed with the Assistant Commissioner that the delivery of the logs to the railway company and the sending of the documents of title to WIMCO had, under s. 39(1) of the Sale ofGoods Act, the effect of putting WIMCO in possession of the logs.

The respondent preferred what in form appeared to be a second appeal to the Board of Revenue.

As, however, there could be no second appeal under s. 22(4) of the Act, the Board treated the memorandum of appeal as an application for revision under sub-s. 5 of s. 22 of the Act read with r. 57.

Both the members of the Board of Revenue came to the same conclusion, namely, that the sales were liable to assessment under the Act, but the reasonings adopted by them were somewhat different. Shri Shrivastava, a member of the Board of Revenue, took the view that as soon as logs answering the description agreed upon were brought to the railhead, at Chanda and sorted out and

r959

Commissioner of Sales Tax

Husenali Adamji & Co.

Das C. }.

loaded in the wagons in the presence of WIMCO's re-

Commissioner of presentatives, there was an implied contract of sale of

safos Tax specific and ascertained goods, as evidenced by the

'959

v, I-Jusenali Adamji 0- Co.

Das C. ],

conduct of parties and the property in each consignment passed immediately from the respondent to WIMCO at the railway station in the Central Provinces where such implied contracts were made. 'The Chairman of the Board of Revenue, however, took the view that the contract of sale was made outside the Central Provinces, namely, in Bombay and that, under thp, Sale of Goods Act, the property in the logs passed to WIMCO in Ambernath outside the province but that as the logs were in the Central Provinces, either in the form of logs or in the form immediately preceding, namely, trees standing on the laud which had been impliedly agreed to be severed from the land before actual sale, Explanation II to s. 2(g) of the Act applied and the sale must, accordingly, be deemed to have taken place within the Central Provinces and, must, therefore, be liable to sales tax under the Act.

The Board rejected the application but remitted the penahy.

On the application of the respondent under s. 23(1) of the Act, the Board of Revenue submitted to the High Court a statement of case raising the following questions :-

" (1) Did the agreements of the kind on recordthe one dated 18-10-40 and the other dated 2-3-45constitute contracts of sale-either express or implied -in respect of sawar wood supplied by the assessee to

WIMCO?

(2) If the answer to question No. 1 be in the affirmative, did the contracts relate to specific or ascertained goods or to unascertained or future goods?

(3) Did the property in the goods pass to WIMCO by consignment simpliciter at different railway stations within this province, or did it pass at Ambernath when the goods were approved as provided in the contract? ( 4) Was reliance on the definition of 'goods' contained in s. 2(7) of the Sale of Goods Act in order in applying Explanation II to s. ?(g) of the Sales Tax

r959 Act in cases, where the goods sold were in the form of trees standing on the land in this province at the time Commissioner of of the contract of sale?" sales Tax

Husenali In its judgment dated June 29, 1954, the High Court took the view that the sales in question did not take place in the Central Provinces and Berar and conse- Adamji "" co. quently were not "sales" within the meaning of the Das c. ].

Act and, therefore, not liable to tax. It gave the following answers to the above questions:-

"Our answers to the questions referred for decision are:-

(1) The agreement in question we.s an express agreement to sell sawar logs to WIMCO.

There was neither an express nor an implied contract each time goods were railed.

(2) The contract was not for delivery of specific goods but of unascertained or future goods by description.

(3) The property in the goods did not pass to the buyer by the delivery to the railway for carriage. It passed at Ambernath where the goods were appropriated by the buyer to the contract with the assent of the seller.

(4) The word 'goods' in the definition of 'sale' in the Sales Tax Act must be inter.ereted according to _ its definition in s. 2(d) of the Act and not according to the definition in s. 2(7) of the Sale of Goods Act. The standing sawar trees are not goods within the meaning of the former Act." The effect of the answers being to nullify the assessment order, the Commissioner of Sales Tax has come up on appeal before us after obtaining special leave of this Court.

The answers to the first two questions have not been questioned before us.

The main arguments have centred round the answers to questions 3 and 4.

The answer to question 3 turned on the construction placed by the High Court on s. 23 of the Sale of Goods Act. After quoting s. 23, the High Court observed as follows:-

" After sorting the logs with the assent of the buyer's representative, the applicant appropriated the

logs to the contract by railing them to the buyer's

Commissioner 1 destination at Ambernath. The statement of the case

501,, Tax

0 is silent on the point whether the railway receipts

I959

Husenali Adamji & Co.

Das C. ].

were made out with the Company as the consiguee.

The assent of the representative was provisional and was not binding on the Company. Under the agreement it did not agree to nnconditionally appropriate the logs to the contract as soon as they were delivered to the railway with the assent of its representative for carriage to Ambernath. It had expressly reserved its right to reject the goods on examination at Ambernath. The agyeement therefore was that the buyer should, with the assent of the seller, appropriate the goods to the contract at Ambernath. The appropriation under s. 23 was not complete till the goods reached Ambernath and were appropriated by the Company to the contract. The appropriation of the goods by the applicant at the railheads was conditional on their acceptance by the buyer at Ambernath. There is nothing in the statement of the case to show that the logs were not so appropriated. Therefore, the property in the logs passed to the buyer at Ambernath." The learned counsel for the department appearing in support of this appeal contends that property in the logs passed from the respondents to WIMCO under s. 23 when sawar logs were brought to the railway station and loaded in the wagon and the railway receipts taken in the name of WIMCO were forwarded to the latter. There was an. unconditional appropriation of the goods to the contract by the respondent.

There was, according to learned counsel, assent on the part of WIMCO to this appropriation in two ways, namely, (a) expressly given by its representative who was present at the railway station, and (b) impliedly given by WIMCO by having agreed in advance that the goods should be despatched by rail from the stations mentioned in cl. 4 of the agreement, all of which were situate in the Central Provinces.

There is no doubt--and indeed it has been categorically conceded by learned counsel for the department -that the contract was for sale of unascertained goods and consequently the property in them could

not, under s. 18, pass unless and until the goods were z959 ascertained. His contention is that logs of the con- Commissioner of tract quality and description having been unconditio- Sales Tax nally appropriated by the respondent to the contract v. without reserving to itself any right of disposal and Husenali WIMCO having expressly through its representative Adamji"" Co. or impliedly by the very terms of the contract assentc Das . ]. ed to such appropriation, property in them passed under s. 23 from the respondent to WIMCO at the railway stations within the Central Provinces as soon as the sawar logs were loaded on the wagons and the railway receipts were taken out in the name of WIMCO. It is said that so far as the respondent is concerned it unconditionally appropriated the logs to the contract. Seeing that they were actually accepted by WIMCO on their arrival at Ambernath it is quite clear that the logs were of the contract qu.ality and description. The only question, according to learned counsel for the department, therefore, is whether there was assent of WIMCO to such appropriation. It has been found as a fact that WIMCO's representative was not present on all occasions when sawar logs used to be loaded on the railway wagons. There is no evidence that he was actually present when these particular sawar logs, with the sale proceeds of which we are concerned, were put into the wagons. Nor is there an iota of evidence that the representative of WIMCO had any authority to bind WIMCO by any assent. In view of these .difficulties, learned counsel for the department did not press the case of express assent of the representative of WIMCO and concentrated on the case of implied assent. It is quite clear from the language of s. 23 itself, that the appropriation may be by the seller with the assent of the buyer or by the buyer with the assent of_ the seller, that assent to appropriation may be express or implied and that it may be given after the appropriation or in advance before such appropriation. Learned counsel for the department lays strong emphasis on the provision of cl. 4 in the contract that the sawar logs should be despatched by rail from certain stations within the Central Provinces and contends that deiivery by the seller of sawar logs of the contract quality and

I959 description to the rail ways in terms of the contract without the reservation of any right of disposat bas

Coni~~1::i 0 ;:: of the effect of passing the property therein to WIMCO

at the railway stations in the Central Provinces under s. 23 as well as of constituting delivery of them at the railway stations under ss. 33 and 39(1). The argument is prima facie sound unless there be some other provision in the contract to negative this conclusion, e. g.,

Husenali Ada1nji 6- Co.

Das C. j. that the logs must be carried to Ambernath and delivered there (See The Badische Anilin und Soda Fabrik v. The Basle Chemical Works, Bindschedler (1) ).

Learned counsel for the department does not urge that if the matter bad to be decided on the terms of the earlier contract dated October 18, 1940, be could properly say that there was nothing in the contract negativing the idea of the passing of property in the logs within the Central Provinces. The cumulative effect of the provisions of cl. 2 that the property in the rejected logs would pass to WIMCO upon the failure of the respondent to remove the same after rejection, of cl. 3 that the goods shall be delivered at Ambernath in the presence of WIMCO's Factory Manager and of cl. 6 providing tba t the prices will be "F.O.R. Ambernatb" clearly militate against the theory of passing of property immediately on the goods being loaded into the wagons.

While not contesting this, learned counsel for the department urges that there is no such contrary intention indicated in the later contract of March 2, 1945, which really governs the case. We are unable to accept this distinction as of any substance. It is true that in this later contract cl. 2 is differently worded and there is no express provision that the goo, ds should be delivered at Ambernath. There are, nevertheless, several other provisions in the later contract indicating that property in the logs loaded in the wagon will not pass to WIMCO until after the goods arrive at Ambernath and are inspected, measured and accepted by WIMCO's Factory Manager. Clause 2 of the later contract quite clearly reserves the right of \VIMCO to examine the goods on arrival and to reject the same if they are found, in the opinion of its Factory Manager, not to

(1) [1898) A, C. 200,

conform with the specifications. This reservation, z959 which is made notwithstanding the fact that the logs c .-. 01 . . om1nissioner may have been accepted by its representative before Sales Tax they were railed to Ambernath, clearly indicates that v. the so called acceptance by the representative was not Husenali final but WMI entirely tentative and sabject to Adamji & Co. approval of the logs by WIMCO's Factory Manager at Am bernath after their arrival. This circumstance certainly militates against the property in them having already passed to WIMCO at the railway stations in the Central Provinces. The provisions of cl. 6 1 that the goods shall be measured under the supervision of WIMCO's representative, the decision of its ]'actory Manager at Ambernath being binding on the respondent a:qd of cl. 7 that the prices shall be" ]'.O.R.

Ambernath " and shall be payable after such measurement of the logs by WIMCO's repqisentative further reinforce the conclusion that the intention of the parties was that property in the goods shall not pass until the logs arrive at Ambernath and are there inspected, measured and accepted by WIMCO. In our judgment the prima facie case of what might have been the appropriation of the logs by the respondent by loading on the wagons logs of the contract quality and description with the .assent of WIMCO given in advance by the terms of cl. 4 is effectively displaced by the provisions of els. 2, 6 and 7 of the later contract which clearly indicate a contrary intention. On a proper construction of the contract as a whole the intention of the parties clearly was that the respondent would send the logs by rail from the different stations in the Central Provinces to Ambernath where WIMCO's Factory Manager would inspect, measure and accept the same if in his opinion they were of the description and quality agreed upon. In other words the respondent sent the logs and left it to WIMCO to appropriate to the contract such of them as they accepted as of contract quality and description. The respondent, therefore, gave in advance its assent to WIMCO's appropriation of the goods at Ambernath. Therefore, the decision of the High Court cannot be assailed but must be accepted as well-founded in fact and in law.

Learned counsel for the department then falls back

Das C. ].

upon the argument founded on Explanation II to Commissioner of s. 2(g) and argues, somewhat half.heartedly, that Sales Tax notwithstanding the provisions of the Sale of Goods v.

Ilusenali Adamji & Co.

Das C . ./.

Act regarding the passing of property in the goods the sale under consideration must be deemed, in the light of that Explanation, to have taken place within the Central Provinces. The question of the constitutional validity of that Explanation was not raised in the High Court and indeed, in view of the decision of this Court in Poppatlal Shah v. State of Madras (1) and other cases, cannot now be raised and we must proceed on the footing that Explanation II did not transgress the legislative competency of the Legislature which enacted the same. It will be noticed that Explanation II can apply only if the goods "in respect of" which the contract of sale is entered into are, at the date of such contract, actually.in the Central Provinces. Learned counsel for the department urges that the logs delivered must have been in existence in the Central Provinces either in the shape of :Jogs or in the shape of standing timber. There. is no evidence that at the date when the agreement for sale was made, the particular logs delivered thereunder were in the Central Provinces in the shape of logs at all. Learned counsel says that, at any rate, they must have been in existence there in the shape of standing timber. Apart from anything else, the agreement here was not " in respect of" any standing timber and there was no provision in the agreement as between the respondent and WIMCO for severance of the standing timber before sale under that agreement. In order to attract Explanation II the goods, in respect of which the contract of sale is. made, must, at the date of the contract be in existence in the Central Provinces, that is to say, that the goods must at the date of the contract be there in the form in which they are agreed to be sold. There is not an iota of evidence on that point. In our judgment, there. is no force in this alternative argument.

The result, therefore, is that this appeal is dismissed with costs.

Appeal dismissed.

(1) [1953) S.C.R. 677.

HUSEN ALI ADAMJI AND CO

S. R. DAS

N. H. BHAGWATI

Sale of Goods Act

ss. 4

s. 2(g)

cl. 4

cl. 2

Clause 6

cl. 7

s. 23

Indian Sale of Goods Act, 1930

s. 2(g)

Berar Sales Tax Act, 1947

s. 23

Indian Sale of Goods Act, 1930

s. 2(g)

Berar Sales Tax Act, 1947

s. 23(1)

Clause 1

cl. 6

Clause 1

Clause 6

cl. 7

s. 23(1)

s. 2(4)

Sale of Goods Act

Section 4

s. 2(g)

Indian Sale of Goods Act, 1930

Sale of Goods Act

Section 4

Sale of Goods Act

III of the Sale of Goods Act

Section 18

Sale of Goods Act

ss. 19 to 22

s. 19

s. 23

s. 33

Section 33

Section 39(1)

s. 25

s. 39(1)

Sale of Goods Act

s. 2(g)

Sale of Goods Act

s. 39(1)

s. 22(4)

s. 5

s. 22

Sale of Goods Act

s. 2(g)

s. 23(1)

s. 2(7)

Sale of Goods Act

s. 2(d)

s. 2(7)

Sale of Goods Act

s. 23

Sale of Goods Act

s. 23

s. 23

s. 23

cl. 4

s. 18

s. 23

s. 23

cl. 4

s. 23

ss. 33 and 39(1)

cl. 2

cl. 3

cl. 6

cl. 2

Clause 2

cl. 6

cl. 7

cl. 4

s. 2(g)


(2) S.C.R.

SUPREME COURT REPOR'.rS 719

THE MANAGEMENT OF RANIPUR COLLIERY

BHUBAN SINGH AND OTHERS

(B. P. SINHA, P. B. GAJEN.DRAGADKAR and

K. N. WANCHOO, JJ.)

Industrial Dispute-Standing Orders - Interpretation of- Enquiry-Whether includes proceedings bfore Industrial Tribunal -Industrial Disputes Aet, z947 (z4 of z947)ss. 3, 33A.

The Company after regular enquiry and pending permission of the Industrial Tribunal under s. 33 of the Industrial Disputes Act, 1947, suspended some workmen without pay, whereupon the workmen filed applications under s. 33A of the Act before the Industrial Tribunal on the ground that their suspension without pay beyond ten days was against the provisions of the Standing Orders governing their conditions of service to the effect that an employee might be suspended provided the suspension without pay, whether as punishmo:nt or pending enquiry, did not exceed ten days. Th, e Tribunal dismissed the workmen's applications under s. 33A and granted permission to the Company to dismiss the workmen concerned. The workmen appealed. The Appellate Tribunal upheld the order granting permission to dismiss the workmen but came to the conclusion that the words "pending enquiry " in cl. 27 of the Standing Orders included proceedings before the Industrial Tribunal and that there was breach of the Standing Orders.

Held, that the employer could apply under s. 33 of the Industrial Disputes Act, 1947, for permission to dismiss an employee when after a regular enquiry he had come to the finding that the case against the employee was proved and that the punishment of dismissal was the proper punishment. The Industrial Tribunal had not to enquire into the conduct of the employee or the merits of dismissal but see whether a prima faeie case had been made out and a fair enquiry made by the employer. The time taken before the Tribunal in such proceedings was beyond the control of the employer.

Standing Orders were concerned with employers and employees and not with Tribunals. In the instant case, the words "pending enquiry" in cl. 27 of the Standing Orders, referred only to the enquiry by the employer and not to the proceedings before the Tribunal..

The principle laid down in Lakshmi Devi Sugar Mill's case that workmen would not be entitled to payment of wages during the whole period of suspension if the Tribunal gave permission to dismiss them, would apply only to cases where there was a ban under s. 33 and the employer had to apply under that section for lifting the ban after completing the enquiry.

'959

April 2I.

'959 Rampalat Chamar v. The Assam, Oil Co. Ltd., (r954) L.A.C. 78, dissented from. ' The Management The A"tomobile Products of India Ltd. v. Rukamji Bala, [r955] of Ranipur I S.C.R. r241, referred to. _ ,

Colliery Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup, [r95(i] v.

S.C.R. 916, followed and explained.

Bhuban Singh

&- Others

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 768 of I957.

Appeal by special leave from the judgme11t and order dated September 2I, 1956, of the Labour Appellate Tribunal of India at Calcutta in Appeal No. Cal.

IOI of 1956.

M. 0. Setalvad, Attorney-General for India, 8. N.

Mukherjee and B. N. Ghosh, for the appellants.

Dipak Dutta Choudhri, for the respondents. , I959. April 2_1.

The Judgment of the Court was delivered by , ' , ,

wanchoo J. 'V ANCHOO, J.-This is an appeal by special le:J.ve

against the decision of the Labour Appellate Tribunal of India in an industrial matter. The appellant is the Ranipur Colliery (herein:J.fter called the company) which carries on the business of coal mining in Dishergarh (\Vest Bengal). The respondents are six workmen employed by the company. They along with, another person were working as tub-checkers. It was found that they were making false reports both as to quality and quantity of coal, which it was their duty to check, with the result that the company suffered loss. Consequently, the company served charge-sheets on them and a regular enquiry was held on April I3, I955, at which they were present and had full opportunity to give their explanation, cross-examine witnesses and generally contest the charge. The company came to the conclusion after the enquiry that the workmen were guilty of the misconduct with which they were charged and should be dismissed. As, however, an industrial dispute between the company and its workmen was, pending before the Industrial Tribunal, the company applied under s. 33 of the Industrial , Disputes' Act (hereinafter called the Act) for permission to dismiss the workmen. It appears that five out

of seven workmen filed two applications under s. 33-A of the Act before the Industrial Tribunal on the ground that they had been suspended without pay from May 4, 1955, and that this was against the provision of the Standing Orders governing their conditions of service. These three applications were heard together by the Industrial Tribunal, which came to the conclusion that the permission should be granted to the company to dismiss the seven workmen and accordingly did so.

Having granted this permission, the Industrial Tribunal, in consequence, dismissed the applications under s. 33-A.

Six of the workmen then went up in appeal to the Labour Appellate Tribunal against the grant of permission to dismiss and the dismissal of their a pplications under s. 33-A. Their case was (i) that no permission to dismiss should have been granted, and (ii) that five of them had been placed under suspension without wages for an indefinite period in violation of the express provision of the Standing Orders and therefore they were entitled to relief. The Appellate Tribunal dismissed the appeal with respect to the grant of permission to dismiss. It, however, came to the conclusion that there was a breach of cl. 27 of the Standing Orders, and therefore allowed the appeal of five workmen (other than Akhey Roy), who had applied under s. 33-A and ordered that they should be paid their wages from the date of suspension without pay to the date of the Industrial Tribunal's order, less ten days as provided in cl. 27 of the Standing Orders. Thereupon the company applied to this Court for special leave which was granted; and that is how the matter has come before us.

It appears that Akhey Roy has been unnecessarily joinedas a respondent, for the order of the Appellate Tribunal does not show that any relief was granted to him and his appeal to the Appellate Tribunal must therefore be taken to have been dismissed.

Thus the only point that falls for consideration is whether suspension without pay pending permission of the Industrial Tribunal under s. 33 of the Act is a

r959

The Management of Ranipur

Colliery

Bhuban Singh

6' Others

Wanchoo ].

I959

The Managenient

of Ranipur Colliery v.

Bhuban Singh

G Others

Wanchoo ].

breach of cl. 27 of the Standing Orders.

The brief facts necessary in this connection are these : Seven workmen were served with charge-sheets on April 1,

1955. After their replies had been received, an enquiry was held on April 13, 1955, and they were found guilty of misconduct. It was decided thereupon to apply for permission for their dismissal under s. 33 of . the Act. The application was made to the Tribunal on April 29, 1955.

Thereafter the workmen were suspended on May 4, 1955, without pay pending orders of the Industrial Tribunal.

Clause 27 of the Standing Orders, on which reliance has been placed, reads thus-

" An employee may be suspended, fined or dismissed without notice or any compensation in lieu of notice if he is found to be guilty of misconduct, provided suspension without pay, whether as a punishment or pending enquiry, shall not exceed ten days".

The contention on behalf of the workmen is that the words "pending enquiry" appearing in cl. 27 include enquiry under s. 33 of the Act before the Industrial Tribunal also.

Therefore, if the Industrial Tribunal takes longer than ten days to decide the application under s. 33 and the workman is suspended without pay, there would be a breach of cl. 27 of the fftanding Orders after ten days are over. On the other hand, it is contended on behalf of the company that the words "pending enquiry" in cl. 27 refer only to the enquiry by the employer and not to the proceedings before the Industrial Tribunal under s. 33. The Appellate Tribunal bas come to the conclusion that the words "pending enquiry" in cl. 27 include proceedings before the Industrial Tribunal under s. 33 and therefore if suspension without pay is for more than ten days, even though it may be pending orders of the Industrial Tribunal under s., 33, there is a breach of cl. 27 of the Standing Orders. In this connection it has relied on an earlier decision of its own in Rampalat Ghamar v. The Assam Oil Go., Ltd. (1), where the words were" pending full enquiry". It was of opinion that there was no difference between "pending

(1) [1954) L.A.C. 78.

enquiry" and "pending full enquiry " and that the proceedings before the Industrial Tribunal under s. 33 are also included in these words.

We agree that there is no real difference between "pending enquiry" which appears in cl. 27 of the Standing Orders and "pending full enquiry" which appeared in the Standing Orders in The Assam Oil Company case (1).

But we are of opinion that the view taken by the Labour Appellate Tribunal both in The Assam Oil Company case (1), and in this case is incorrect.

This Court has held in The A utomdbifo Products of India Ltd. v. Rukamji Bala (2) that s. 33 imposes a ban on the employer to dismiss a workman and it gives power to the Industrial Tribunal, on an application made to it, to grant or withhold the permission to dismiss, i.e., to lift o.r maintain the ban. So far, however, as the employer is concerned, his enquiry is (or, at any rate, should be) over when he comes to the finding that the case against the employee is proved and that the punishment of dismissal is the proper punishment.

It is only then that the employer applies under s. 33 for permission to dismiss the employee. Further, the proceedings under s. 33 are not an enquiry by the Industrial Tribunal into the rights or wrongs of the dismissal; all that it has to see is whether a primafacie case has been made out or not for lifting the ban imposed by the section and whether a fair enquiry has been made by the employer in which he came to the bona fide conclusion that the employee was guilty of misconduct. Once it found these conditions in favour of the employer, it was bound to grant the permission sought for by him. It is thus clear that proceedings under s. 33 are not in the nature of an enquiry into the conduct of the employee by the Industrial Tribunal: (see Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup (3)). The proceedings therefore before the Industrial Tribunal cannot be called an enquiry into the conduct of the employee. On the other hand, the enquiry which is contemplated by cl. 27 is an enquiry into the conduct of the employee. That enquiry could

(r) [r954] L.A.C. 78.

(2) [r955] I S.C.R. 1241.

(3) [r956] S.C.R. 916.

x959

The Management of Ranipur Colliery v.

Bhuban Singh

& Others

Wanchoo ].

I959

The l\[ anagement of Ranipu-r

Colliery

Bhuban Singh

6- Others

Want:hoo ].

only be by the employer. Therefore, when cl. 27 uses the words " pending enquiry ", these words can only refer to the enquiry by the employer into the conduct of the emploJee. It is, in our opinion, entirely unnecessary that the words " pending enquiry " should have been qualified by the words " by the employer '', before they can be interpreted as referring to the enquiry by the employer. Standing Orders are concerned with employers and employees and not with tribunals. Therefore, when an enquiry is mentioned in

cl. 27 it can in the context only refer to the enquiry by the employer and not to a proceeding under s. 33 before the tribunal. We are therefore of opinion that in the context in which these words have been used in

cl. 27 they mean an enquiry by the employer and are not referable to the proceedings under: s. 33 of the Act before the Tribunal.

The scheme and object of s. 33 also show that this conclusion is reasonable. Section 33 of the Act, as already stated, imposes a ban on the employer, thus preventing him from dismissing an employee till the permission of the tribunal is obtained. But for this ban the employer would have been entitled to dismiss the employee immediately after the completion of his enquiry on coming to the conclusion that the employee was guilty of misconduct. Thus ifs. 33 had not been there, the contract of service with the employee would have come to an end by the dismissal immediately after the conclusion of the enquiry and the employee would not have been entitled to any further wages.

But s. 33 steps in and stops the employer from dismissing the employee immediately on the conclusion of his enquiry and compels him to seek permission of the Tribunal, in case some industrial dispute is pending between the employer and his employees. It stands to reason therefore that so far as the employer is concerned he has done all that he could do in order to bring the contract of service to an end. To expect him to continue paying the employee after he had come to the conclusion that the employee was guilty of misconduct and should be dismissed, is, in our opinion, unfair, simply because of the accidental

circumstance that an industrial dispute being pending he has to apply to the tribunal for permission. It seems to us therefore that in such a case the employer would be justified in suspending the employee without pay after he has made up his mind on a proper enquiry to dismiss him and to apply to the tribunal for that purpose. If this were not so, he would have to go on paying the employee for not doing any work, and the period for which this will go on will depend upon an accidental circumstance, viz., how long the tribunal takes in concluding the proceedings under s. 33. In the present case th<:J' application for permission was made on April 29, 1955, and the Tribunal's award was given on March 10, 1956, more than ten months later.

So if the view taken by the Appellate Tribunal is correct, the employer has to pay the employee for this period of more than ten months, even though the employer had completed his enquiry and made up his mind to dismiss the employee long before and would have done so but for the ban imposed by s. 33. . The purpose of providing ten days as the maximum period of suspension without pay pending enquiry in cl. 27 obviously is that the employer should not abuse the provision of suspension pending enquiry and delay the enquiry inordinately, thus keeping the employee hanging about without pay for a long period. The object further seems to be to see that the employer finishes his enquiry promptly within ten days if the suspension of the employee is without pay. But it could not have been. intended that the Industrial Tribunal should also conclude the proceedings under s. 33 within ten days, and if that was not done there would be a breach of cl. 27. In any -0ase the time taken by the proceedings before the tribunal under s. 33 is beyond the control of the employer and as the provisions of

cl. 27 would be inappropriate and inapplicable to the said proceedings. We are therefore of opinion that the words " pending enquiry " in cl. 27 both in the context and in justice and reason refer only to the enquiry by the employer and not to the proceedings before the tribunal under s. 33.

This interpretation would not cause any serious

I959

The M anagenienl

of Ranipur Colliery v.

Bhuban Singh

& Others

Wanchoo ].

r959 hardship to the employee, for if the tribunal grants

Th M- , permission to tbe employer to dismiss the employee he e anagemen . . of Ran; pur will not get anythmg from the date of his suspension Colli"Y without pay; on the other hand, if the tribunal refuses v. to grant the permission sought fo:r, he would be entitl-

Bh><ban Singh ed to his back wages from the date of his suspension

& Others h W h wit out pay. e may int is connection refer to the

wanchoo J. case of Lakshmi Devi Sugar Mills Ltd. (1) where a similar point arose for decision. In that case the Standing Orders provided suspension without pay only for four days. It was there held that suspension without pay pending enquiry as also pending permission of the tribunal could not be considered a punishment, as such suspension without pay would only be an interim measure and would last only till the application for permission to punish the workman was made and the tribunal had passed orders thereon. It was also held that if the permission was accorded the workman would not be entitled to payment during the period of s.uspension but if the permission was refused he would have to be paid for the whole period of suspension. The principle laid down in that case applies to this case also.

We would only like to add that that principle will apply only to those cases where there is a b[l, n under s. 33 and the employer has to apply under that section for lifting the ban after completing the enquiry. The matter will be different if there is no question of applying under s. 33 and under the relevant Standing Orders the employer is competent to dismiss the employee immediately after his enquiry is complete. In such a case if the Standing Orders provide that suspension without pay will not be for more than a certain number of days, the enquiry must either be completed within that period or if it goes beyond that period and suspension for any reason is considered necessary, pay cannot be withheld for more than the period prescribed under the Standing Orders. In the present case, the suspension without pay took place even after the application under s. 33 had been made and was pending permission under that section.

As the Industrial Tribunal has accorded permission to dismiss the employees 'in this case and

(r) [1956] S.C.R. 916.

as that part of the award has been upheld by the Appellate Tribunal, there is no question of the employees being paid during the period of suspension without pay.

We, therefore, allow the appeal, set aside the order of the Labour Appellate Tribunal and restore the order of the Industrial Tribunal dismissing the two applications under s. 33-A. In the circumstances, we pass no order as to costs.

Appeal allowed. ·.

RANJIT SINGH v.

THE STATE OF PUNJAB

(JAFER IMAM and J. L. KAPUR, JJ.)

Criminal Trial-Perjury-False statement in affidavit-Affidavit affi"Ymed to the best of knowledge and belief-N v obligation to file affidavit-Offence, if made out-Indian Penal Code, I86o (XLV of I86o), SS. I9I and I93

A habeas corpus application was made to the High Court al)eging that one S had been illegally arrested and kept in unlawful custody without any charge being made against him and without obtaining remand from a Magistrate. By way of a return the appellant, a sub-Inspector of Police, filed a false affidavit controverting the allegations made in the application.

He was prosecuted and convicted under s. 193 Indian Penal Code. The appellant challenged his conviction on the grounds that: (i) as he was not bound under the law to file an affidavit, the case did not fall under s. 191 of the Indian Penal Code and he could not be convicted under s. 193 ; and (ii) the affidavit having been affirmed as true to the best of the knowledge and belief of the appellant it could not be said which part was true to his knowledge and which to his belief.

Held that, the appellant was rightly convicted. It was not necessary for the application of s. 191 of the Indian Penal Code that the accused should be bound under the law to make an affidavit. If he chose to make one and bound himself on oath to state the truth he was liable under s. 193 of the Code if he made a false statement and it was no defence to say that he was not bound to enter the witness-box or make an affidavit.

In the present case it was necessary for the appellant to file an affidavit as he was bound to place the facts and circumstances justifying

I959

The l\fanag,•ment

of Ranij>ur

Colliery v.

Bhuban Singh

.J;. Others

Wanchoo J.

r959

April 2I,

719

THE MANAGEMENT OF RANIPUR COLLIERY

BHUBAN SINGH AND OTHERS

B. P. SINHA

K. N. WANCHOO, JJ.

ss. 3, 33A

s. 33

Industrial Disputes Act, 1947

s. 33A

s. 33A

cl. 27

s. 33

Industrial Disputes Act, 1947

cl. 27

s. 33

s. 33

s. 33

s. 33

s. 33

cl. 27

s. 33

cl. 27

s. 33

cl. 27

s. 33

Clause 27

cl. 27

s. 33

s. 33

cl. 27

cl. 27

s. 33

cl. 27

s. 33

cl. 27

s. 33

cl. 27

s. 33

s. 33

s. 33

s. 33

cl. 27

cl. 27

cl. 27

s. 33

cl. 27

s. 33

s. 33

Section 33

s. 33

s. 33

s. 33

cl. 27

s. 33

cl. 27

s. 33

cl. 27

cl. 27

s. 33

s. 33

s. 33

s. 33

s. 33

Indian Penal Code

s. 193

Indian Penal Code

s. 191

Indian Penal Code

s. 193

s. 191

Indian Penal Code

s. 193


(2) S.C.R. SUPREME COURT REPORTS 71

may be that the appellant may in some future procex959 eding adduce evidence to establish that there are other Th w t 1 a cinema houses similarly situate and that the .imposieThe;;,;; t;, '" tion of a higher tax on the appellant is discriminatory v. as to which we say nothing; but all we need say is The Cantonment that in this suit the appellant bas not discharged the Board, Poona, onus that was on him and, on the material on record, Cantonment it is impossible for us to hold in this case that there 1 Das C .• has been any discrimination in fact.

For reasons stated abve this appeal must be dismissed with costs.

Appeal dismissed

THE WESTERN INDIA THEATRES LTD. v.

MUNICIPAL CORPORATION OF THE CITY OF

POONA {S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR.

K. N. WANCHOO and M. HIDAYATULLAH, JJ.)

Municipality, Power of-Imposition of tax on cinema show- Constitutional validity of enactment-Enhancement of such tax- Validity-Bombay District Municipal Act, I90I (Bom. III of

IgoI), s. 59(I) (XI)-Bombay Municipal Boroughs Act, I925 (Bom. XVIII of Ig25), s. 60.

The appellant, a public limited company, was a lessee of four cinema houses situated within the municipal limits of Poona City where it used to exhibit cinematograph films.

The respondent, the Municipal Corporation of Poona, in exercise of its power under s. 59(1) (XI) of the Bombay District Municipal Act,

1901, levied with effect from October l, 1920, a tax of Rs. 2 per day as license fee on the-owners and lessees of cinema houses.

That Act governed the Municipality till 1926 and thereafter it was governed bythe Bombay Municipal Boroughs Act, 1925. The tax was enhanced to Re. l per show on June 3, 1941, and to Rs. 5 per show on June 9, 1948. By the suit, out of which the present appeal arose, the appellant sought for a declaration that the levy of the said tax, the rules framed in connection therewith and the enhancement of the tax as aforesaid were iIIegal and ultra vires.

The trial court decreed the suit in part but the High Court in appeal reversed the decision of the trial court

I959

January z6.

I958 and dismissed the suit. It was contended on behalf of the appellant that (r) the tax was not. one covered by Entry 50 The Western India in List 11 of Seventh Schedule to the Government of India

Theatres Ltd.

Act, 1935, but was one on trade or calling covered by Entry 46 v. thereof, and, was as such governed by s. l42A of the said Act and Municipal that (2) s. 59(1)(XI) of the Bombay District Municipal Act, 1901, Corporation of !he was unconstitutional in that the legislature had thereby delegat- City of Poona ed essential legislative power to the Municipality to determine the nature of the tax to be imposed on the rate-payers and completely abdicated its function, leaving such power wholly unguided.

Held, that both the contentions must fail.

The first point was covered by the decision given in the appellant's other appeal, Civil Appeal No. 145 of 1955, which must also govern this case.

It was not correct to contend that the power delegated to the Municipality under s. 59(1)(XI) of the Bombay District Municipal Act, 1901, was unguided. That section authorised the imposition of such taxes alone as were necessary for the purposes of the Act.

The obligations and functions cast upon the Municipalities by ch. VII of the Act showed that taxes could be levied only for implementing those purposes and none others.

Nor could it be said that the provincial Legislature had abdicated its function in favour of the Municipality. The taxing power of the Municipality was made subject to the approval of the Governor-in-Council by the section itself.

The marginal note to a section could not affect the construction of the section if its language was otherwise clear and unambiguous and the word 'modify' connoted not merely reduction hut also other kinds of alteration including enlargement.

The substitution of the word 'reduce' by the word 'modify' in the body of s. bo of the Bombay Municipal Boroughs Act, 1925, notwithstanding the omission to do so in the marginal note, therefore, clearly indicated the intention of the Legislature to widen the scope of that section and, consequently, it could not be said that the enhancement of the tax was not sustainable thereunder.

Commissioner of Income Tax, Bombay v. Ahmedbhai Umarbhai & Co., Bombay, [1950] S.C.R. 335 and Stevens v. The General Steam Navigation Company, Ltd., L.R. (1903) l K.B. 890, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 146 of 1955.

Appeal from the judgment and decree dated February 10, 1953, of the Bombay High Court in Appeal No. 953 of 1951, arising out of the judgment and decree dated November 30, 1951, of the Court of

Joint Civil Judge, Senior Division, Poona, in Specia.l x959 Suit No. 76 of 1950.

Th • • e Western India H. D. BanaJi, R. A. Gagrat and G. Gopalakrishnan, Theatrs Ltd. for the appellant. v.

M. 0. Setalvad, Attorney-General for India, S. N.

Municipa1 1 h.

A dz d J B d h " c h d Corporation o t e n ey an . . Da ac anJi, 1or t erespon ent.

City of Poona

1959. January 16.

The Judgment of the Court was delivered by Das c. J.

DAS, C. J.-The appellant is a public limited company registered under the Indian Companies Act, 1913.

It is a lessee of four cinema houses situate within the municipal limits of Poona City known respectively as "Minerva'', "The Globe ", "Sri Krishna " and "The Nishat ". It exhibits cinematograph films, both foreign and Indian, in the said four houses. The respondent, a body corporate, was governed by the Bombay District Municipal Act, 1901 (Born. III of 1901) up to June 8, 1926, and from then by the Bombay Municipal Boroughs Act, 1925 (Born. XVIII of 1925) up to December 29, 1949, and, thereafter, by the Bombay Provincial Municipal Corporation Act, 1949 (Born.

LTX of 1949). With effect from October 1, 1920, the respondent, with the sanction of the Government of Bombay levied on the owners and lessees of cinema houses within the limits of the erstwhile province of Bombay a tax of Rs. 2 per day as license fee.

Rules for the levy and collection of the said tax were framed by the respondent. Those rules were amended on or about June 3, 1941, enhancing the tax from Rs. 2 per day to Re. l per show. The rules were again revised on or about June 9, 1948, under which the tax was enhanced from Re. 1 per show to Rs. 5 per show. At all material times the tax wa, s being collected at the last mentioned rate.

Section 59 of the Bombay District Municipal Act 1901 provided that subject to any general or special orders which the State Government might make in that behalf any municipality (a) after observing the preliminary procedure required bys. 60, and (b) with the sanction of the authority therein mentioned, might

'959 impose for the purposes of that Act any of the taxes

The we:;; n India menioned in that section.. After en1;1era:ting ten

Theatres Ltd. specific heads of taxes, which a mumc1pahty could v. • levy, a residuary category was set forth in cl. (xi) in .

Mnnicipal the words following:- Corporation of the "Any other tax to the nature and object of which City of Poona the approval of the Governor in Council shall have

Das c. J. been obtained prior to the selection contemplated in sub-clause (il of clause (a) of section 60 ".

Ever since the appellant became a lessee of the said cinema houses, the appellant has be!ln making payments of the said tax under protest.

After giving the necessary statutory notice to the respondent, the appellant, on or about March 31, 1950, filed a suit in the Court of the Civil Judge, Senior Division, Poona, being Suit No. 76 of 1950, against the respondent for a declaration that the levy and imposition of the said tax with effect from October 1, 1920, were invalid and illegal; that the enhancement ,. in the rates of the tax with effect first from June 3, 1941, and then June 9, 1948, was invalid and illegal and that the resolutions passed and rules framed in connection with the levy, imposition, enhancement and collection of the said impugned tax were invalid, illegal and ultra vires, for a permanent injunction restraining the defendants from levying or recovering and or increasing and enhancing the said tax and for refund to the appellant of the amounts of the tax collected from it and for costs of the suit and interest. By its judgment dated November 30, 1951, the rial court held that the said tax was validly levied and imposed, but that the increase and enhancement thereof in 1941 and 1948 were illegal and ultra vires and that the suit was not barred under the Acts governing the respondent. The trial court decreed the suit in part by issuing an injunction restraining the respondent from levying, recovering or collecting the tax at the enhanced rate and passing a decree against the respondent for refund of a sum of Rs. 27,072 with interest and costs. The respondent preferred an appeal and the appellant filed cross objections. But the HighCourt by its judgment and decree dated February 10, 1953,

reversed the judgment of the trial court and dismissed

I959 the suit of the appellant with costs throughout. The Th w - . 11 , b' . l d' . d O e estern India appe ants cross o Ject10ns were a so 1smisse . n Theatres Ltd December 10, 1953, theHigh Court granted leave to the v. appellant to appeal to this Court from the said judg- Municipal ment.

Hence this final appeal questioning the vali- Corporation of the dity of the impugned tax.

City 0f. Poona The first point urged in this appeal is that the law imposing this tax is not covered by entry 50 in List II of the Seventh Schedule to the Government of India Act, 1935, but is really a tax on the appellant's trade or calling referred to in entry 46 and that, therefore, the amount of tax cannot under s. 142-A of the Government of India Act, 1935 exceed Rs. 100 per annum.

This point need not detain us long, for it is covered by us in the appellant's other appeal No. 145 of 1955.

The second point urged before us in support of this appeal is thats. 59(1) (xi) is unconstitutional in that the legislature had completely abdicated its functions and had delegated essential legislative power to the Municipality to determine the nature of the tax to be imposed on the rate payers. Learned counsel for the appellant urges that the power thus delegated to the municipality is unguided, uncanalised and vagrant, for there is nothing in the Act to prevent the municipality from imposing any tax it likes, even, say, income tax. Such omnibus delegation, be contends, cannot on the authorities be supported as constitutional. We find ourselves in agreement with the High Court in rejecting this contention.

In the first place, the power of the municipality cannot exceed the power of the provincial legislature itself and the municipality cannot impose any tax, e.g., income tax which the provincial legislature could not itself impose. In the next place, s. 59 authorises the municipality to impose the taxes therein mentioned "for the purposes of this Act". The obligations and functions cast upon the municipalities are set forth in ch. VII of the Act. Taxes, therefore, can be levied by the municipality only for implementing those purposes and for no other purpose. In other words it will be open to the municipality to levy a tax for giving any of the amenities therein mentioned.

Das C. ].

I959 The matter may be illustrated by reference to - . s. 54 which enumerates the duties of municipa- Th•T:estern L~; dia lities.

The first duty mentioned in that section is

eats that the Municipality should make provision for

Munfripal lighting public streets and nobody can object if it Co, po, otion of the imposes a lighting tax, which, indeed, is item (ix) in City of Poona s. 59(1).

Take another example: It is the duty of the Municipality to arrange for supply of drinking water Dos c. J. and it may legitimately charge a water rate which, again, is item (viii) in s. 59(1).

We do not for a moment suggest that the municipalities may only impose a tax directly in connection with the heads of duties cast upon it. what we say is that the tax to be imposed must have some reasonable relation to the duties cast on it by the Act. In the third place, although the rule of construction based on the principle of ejusdem generis cannot be invoked in this case, for items (i) to (x) do not, strictly speaking, belong to the same genus, but they do indicate, to our mind the kind and nature of tax which the municipalities are authorised to impose. Finally, the provincial legislature had certainly not abdicated in favour of the municipality, for the taxing power of the municipality was quite definitely made subject to the approval of the Governor-in-Council. Under the Indian Council Act, 1861 (24 & 25 Vic. c. 67) the Governor-in-Council might mean the Governor in Executive Council or the Governor in Legislative Council. If the reference in s. 59(l)(xi) is to the Governor's Legislative Council, then there was no improper delegation at all, for it was subject to the legislative control of the Governor in Legislative Council.

Tho Governor's Legislative Council was composed of all the members of the • Governor's Executive Council besides a few other persons.

Therefore if the reference was to the Governor in his Executive Council even then, from a practical point of view, the ultimate control was left with the Governor's Legislative Council. We need not labour this point any further, for on the first three grounds the delegation of legislative authority, if any, is not excessive so as to make the exercise of it unconstitutional. In our opinion the impugned section did lay down a principle and fix a standard

which the municipalities had to follow in imposing a r959 tax and the legislature cannot, in the circumstances, Tl w- 1 a • • ie estetn n 1a be said to have had abdicated itself and, therefore, Theatres Ltd. the delegation of power to impose any other tax canv. not be struck down as being in excess of the permis- Municipal sible limits of delegation of legislative functions.

Corporation of the The last point urged by learned counsel for the City of Poona appellant is that, under cl. (xi) of s. 59(1), the enhance- Das c. J. ments of the rates of the tax in 1941 and again in 1948 were illegal in that the municipality had no power to do so under the Bombay Municipal Boroughs Act, 1925.

According to learned counsel for the appellant the judgment under appeal upholding the validity of such enhancements cannot be supported under s. 60 of that Act. That section runs as follows :-

"Power to 60(1) Subject to the requirements suspend, reof clause (a) of the proviso to secduce or abotion 58 a municipality may, except as lish any exotherwise provided in clause (b) of the isting tax proviso to section 103 at any time for any sufficient reason, suspend, modify or abolish any existing tax by suspending, altering or rescinding any rule prescribing such tax.

(2) The provisions of Chapter VII relating to the imposition of taxes shall apply so far as may be to the suspension, modification or abolition of any tax and to the suspension, alteration or rescission of any rule prescribing a tax."

Reference is made to the marginal note where the words used are "power to suspend, reduce or abolish any existing tax". It is suggested that the word " modify " in the body of the section in between the words " suspend" and "abolish " should be construed in the sense of reduction.

The marginal note, according to him, shows that the several words were used in the section to indicate a progressive diminution in the quantum of tax until it was completely gone ..

Reference is made to the root meaning of the word "modify " w hie h is to reduce or make less but does not cover the .idea of enhancement. In the first place, the marginal note cannot affect the construction of the language used in the body of the section if it is otherwise clear and unambiguous (see Commissioner of

I9S9 Income Tax, Bombay v. Ahmedbhai Umarbhai & Co.,

The Western India Bombay) (1).

In the next place, it should be borne in Theatres Ltd. mind that s. 67 of the Bombay District Municipal v.

Act (Born. III of 1901) which was formerly applicable Munfripal to municipalities used the word "reduce" in between Corporation of the the words " suspend " and " abolish " and that that City of Poo1ta "h d b d d f h B b section a een re pro uce 1s s. 60 o t e om a y Das c. J.

Municipal Boroughs Act, 1925, but that in the process of such reproduction the word "reduce" was dropped and the word " modify " was introduced. In the marginal note, however, the word "reduce" was not substituted by the word "modify", apparently through inadvertence. If the word "modify" is to be read as "reduce'', then there could be no point in the provincial legislature substituting the word "reduce " by the word "modify". This change must have been made with some purpose and the purpose could only have been to use an expression of wider connotation so as to include not only reduction but also other kinds of alteration. Section 76 of this very Act also refers to "modification not involving an increase in the amount to be imposed" which makes the sense in which the word "modify" has been used in this Act perfectly clear, namely, that there may be a modification involving an increase. Reference may also be made to the decision of the Court of Appeal in England in the case of Stevens v. The General Steam Naviga. tion Company, Ltd. (2). " Modification ", acc, ording to Collins M. R. in his judgment at p. 893, implied an alteration and the word was equally applicable whether the effect of the alteration was to narrow or to enlarge the provisions. In our opinion the dropping of the word ".reduce" and the introduction of the word "modify" in the body of s. 60 of the Act under consideration clearly indicate an intention on the part of legislature to widen the scope of this section and the High Court was right in so construing the same.

No other point was urged in this appeal and for reas'ons stated above this appeal must be dismissed with costs.

Appeal dismissed.

(1) [1950] S.C.R. 335 at p. 353

(2) L.R. (1903) I K.B. 890.

THE WESTERN INDIA THEATRES LTD

P. B. GAJENDRAGADKAR

K. N. WANCHOO

M. HIDAYATULLAH, JJ.

s. 59(I)

Bombay Municipal Boroughs Act

s. 60

s. 59(1)

Bombay District Municipal Act

Bombay Municipal Boroughs Act, 1925

Seventh Schedule

s. 59(1)(XI)

Bombay District Municipal Act, 1901

s. 59(1)(XI)

Bombay District Municipal Act, 1901

Bombay Municipal Boroughs Act, 1925

Bombay District Municipal Act, 1901

Bombay Municipal Boroughs Act, 1925

Section 59

Bombay District Municipal Act 1901

section 60

s. 142

Government of India Act, 1935

s. 59

s. 54

s. 59(1)

s. 59(1)

Indian Council Act, 1861

s. 59(l)(xi)

s. 59(1)

Bombay Municipal Boroughs Act, 1925

s. 60

section 103

s. 67

s. 60

Municipal Boroughs Act, 1925

Section 76

s. 60


(2) S.C.R.

SUPREME COURT REPORTS 727

as that part of the award has been upheld by the Appellate Tribunal, there is no question of the employees being paid during the period of suspension without pay.

We, therefore, allow the appeal, set aside the order of the Labour Appellate Tribunal and restore the order of the Industrial Tribunal dismissing the two applications under s. 33-A. In the circumstances, we pass no order as to costs.

Appeal allowed. ·.

RANJIT SINGH v.

THE STATE OF PUNJAB

(JAFER IMAM and J. L. KAPUR, JJ.)

Criminal Trial-Perjury-False statement in affidavit-Affidavit affi"Ymed to the best of knowledge and belief-N v obligation to file affidavit-Offence, if made out-Indian Penal Code, I86o (XLV of I86o), SS. I9I and I93

A habeas corpus application was made to the High Court al)eging that one S had been illegally arrested and kept in unlawful custody without any charge being made against him and without obtaining remand from a Magistrate. By way of a return the appellant, a sub-Inspector of Police, filed a false affidavit controverting the allegations made in the application.

He was prosecuted and convicted under s. 193 Indian Penal Code. The appellant challenged his conviction on the grounds that: (i) as he was not bound under the law to file an affidavit, the case did not fall under s. 191 of the Indian Penal Code and he could not be convicted under s. 193 ; and (ii) the affidavit having been affirmed as true to the best of the knowledge and belief of the appellant it could not be said which part was true to his knowledge and which to his belief.

Held that, the appellant was rightly convicted. It was not necessary for the application of s. 191 of the Indian Penal Code that the accused should be bound under the law to make an affidavit. If he chose to make one and bound himself on oath to state the truth he was liable under s. 193 of the Code if he made a false statement and it was no defence to say that he was not bound to enter the witness-box or make an affidavit.

In the present case it was necessary for the appellant to file an affidavit as he was bound to place the facts and circumstances justifying

I959

The l\fanag,•ment

of Ranij>ur

Colliery v.

Bhuban Singh

.J;. Others

Wanchoo J.

r959

April 2I,

<959

Ranjit Singh v.

The State of

Pun} ab

the detention which could only he done by an affidavit. Ordinarily, where the detentionis under orders of the detaining authority in exercise of his plenary powers or of a Court an affidavit may not be necessary in making the return but where it becomes necessary for the detaining authority to justify its action by disclosing facts it has to file an affidavit.

Held, further, that explanation 2 to s. 191 of the Code brings a false statement affirmed to the belief of the accused also within the mischief of s. l9I and thus makes it punish3:ble under s. 193 of the Code.

Emperor v. Lachmi Narain, I. L. R. 1947 All. 155, disapproved.

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeal No. 19 of 1957.

Appeal by special leave from the judgment and order dated March 7, 1956, of the former PEPSU High Court in Criminal Revision No. 45 of 1956, arising out of the judgment and order dated February 22, 1956, of the Additional Sessions Judge, Patiala, in Criminal Appeal No. 175/36of1955-56.

Pritam Singh Safeer, for the appellant.

N. S. Bindra and T. M. Sen, for the respondent. 1959.

April 21. The Judgment of the Court was_ delivered by

Kapur J.

KAPUR, J.-This is an appeal by special leave against the judgment and order of the High Court of PEPSU passed in revision. The appellant was a sub- Inspector of Police who at the relevant time was the Station House Officer in-charge Shehna police station in the erstwhile PEPSU State. He was convicted under s. 193, Indian Penal Code, by a First Class Magistrate and his appeal to the Sessions Judge, Patiala, was dismissed except as to sentence. He took a revision to the PEPSU High Court but that was also dismissed.

This appeal has arisen in the following circumstances : One Surjit Singh, s/o Risaldar W aryam Singh, was arrested on September 25, 1953, at Barnala in l'EPSU State by the Police Inspector Jaswant Singh. He was kept in the lock-up at Barnala and on the following day his custody was handed over to the appellant and he was taken to Shehna and was kept in custody-it

is not clear under what section-in the police station lock-up at Shehna. Surjit Singh was there kept in custody from September 26, 1953, till October 10, 1953, when at about 10 p.m., he was surreptitiously removed to Police Station Dialpur and then to Police Post Hamirgarh and from there was taken to Police Station Baga Purana in Ferozepur District, of the then Punjab.

An application under s. 491 of the Criminal Procedure Code and under Art. 226 of the Constitution was made for a writ of Habeas Corpus and Mandamus in the High Court of PEPSU. In that petition it was alleged that Surjit Singh was being kept in unlawful custody 1 without any charge being made and without obtaining a remand by a Magistrate. In reply to this, an affidavit dated October 13, 1953, was filed by the appellant in which he stated that Surjit Singh had association with notorious dacoits; that he, the appellant, had never taken him into custody at any time ; that the said Surjit Singh was absconding and had not been arrested in spite of the best efforts of the police; that at the time of the making of the affidavit he was not in the appellant's custody and that it was incorrect that Inspector Jaswant Singh had ever entrusted l:lurjit Singh to his (appellant's) custody. He also stated that no petition had been brought to him nor had he received any telegram in connection with the custody of Surjit Singh. This affidavit was affirmed as follows:-

" I solemnly affirm that the facts stated from paras Nos. 1 to 7 are true to the best of my know ledge and belief and nothing which is relevant to this case has been kept back from this Hon'ble Court".

As both the parties admitted before the High Court that Surjit Singh was not in the custody of the appellant the petition was dismissed. On November 9, 1953, the brother of Surjit-Singh made an application under s. 476, Criminal Procedure Code, for the prosecution of Inspector Jaswant Singh and the appellant for perjury under s. 193, Indian Penal Code, in that they had filed false affidavits. This matter was heard by another learned Judge of that Court who ordered the 92

I959

Ranjit Singh v, The Stat; of Punjab

J(apur .f,

I959

Ranjit Singh

The State of

Punjab

Kapur]. ,

prosecution of the appellant and directed the Registrar of the High Court to file a complaint which was filed.

The complaint was taken cognizance of by the First Class Magistrate at Patiala who convicted the appellant and sentenced him to nine months' imprisonment and a fine of Rs. 300/- and in default to undergo simple imprisonment for two months. The appellant took an appeal to the Sessions Judge, Patiala, who confirmed the order of conviction but reduced the sentence to one of three months' simple imprisonment and a fine of Rs. 50 and in default one month's simple imprisonment, a revision against this order was dismissed in limine by the Chief Justice although he gave reasons for dismissing it. The appellant .then obtained special leave from this Court.

On behalf of the appellant the first contention raised was that the appellant was not bound to file an affidavit and therefore he could not be convicted under s. 193, Indian Penal Code, because his case did not fall under s. 191, Indian Penal Code. In support of his contention he relied upon the Rules of the PEPSU High Court framed for the purpose of proceedings under Art. 226 and s. 491(2), Criminal Procedure Code, for the issuing of writs of Habeas Corpus. He also referred to the Rules made by that Court for the issuing of writs of Mandamus, Prohibition, Quo Warranto and Certiorari under Art. 226 and submitted that there was no Rule in the former, i.e., for writ of Habeas Corpus requiring a return to be made on behalf of the respondent to be supported by an affidavit whereas in the latter, i.e., issuing of writs of Mandamus etc. an affidavit was necessary and therefore it was submitted that s. 191 was inapplicable. Rule 2 of the Rules of the Court required that when a Judge was of the opinion that prima facie case had been made out for granting the application a rule nisi was to issue calling upon the person G>r persons against w horn the order was sought, to appear before the Court and to show .cause why such an order should not be made. As has been pointed out in Greene v. Home Secretary (1) which was a case under Reg. 18-B of the Defence of the

(z) [1942] A.C. 284, 302.

Realm Act the whole object of proceedings for a writ of Habeas Corpus is to make them expeditious, to keep them as free from technicality as possible and to keep them as simple as possible. "The incalculable value of Habeas Corpus is that it enables the immediate determination of the right to the appellant's freedom" (Lord Wright). When there is no question of fact to be examined or determined no affidavit is needed.

As soon as there emerges a fact into which the Court feels it should enquire the necessity for an affidavit arises. Ordinarily an affidavit may not be necessary in making the return if the detention is under orders of the detaining authority in exercise of its plenary discretion as in Liversidge v.

Anderson (1) and in Greene's case (2) or a person is detained under the orders of a Court. But where the detention is, as it was in the present case, it becomes necessary for the detaining authority to justify its action by disclosing facts which would show to the si; ttisfaction of the Court that the custody is not improper. Where the prisoner says" I do not know why I have been detained, I have done no wrong", it is for the detaining authority to justify the custody.

When issues of fact are raised and the actions of the police officers, as in the present case, are expressly challenged and facts are set out which if unrebutted and unexplained would be sufficient for the writ to issue, an affidavit becomes necessary. It cannot be said therefore that in the present case the appellant was not legally bound to place facts and circumstances before the Court to justify the detention of Surjit Singh and this could be done by an affidavit.

Section 4 of the Oaths Act lays down the authority to administer oaths and affirmations and it prescribes the courts and persons authorised to administer by themselves or by their officers empowered in that behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed upon them and they are, all courts and persons having by law the authority to receive evidence. Section 5 prescribes the persons by whom oaths or affirmations must be

(1) (1942] A.C. 206.

(2) [1942] A.C. 284, 302.

I959

Ranjit Singh

The State of Punjab

Kapur].

I959

IVuijit Singh

The State of

i:iunjab

Hapur j.

made and they include all witnesses, i.e., all persons who may lawfully be required to give evidence by or before any court. These two sections show that the High Court or its officers were authorised to administer the oath and as the appellant was stating facts as evidence before the High Court he had to make the oath or affirmation and was bound to state the truth.

Sectiop 14 of that Act is in the following words:

S. 14. "Every person giving evidence on any subject before any Court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject".

As the appellant was giving evidence on his own behalf in that he was denying the allegation made in the affidavit of the brother of Surjit Singh he was bound to state the truth on the subject on which he was making the statement. The contention therefore that under s. 191 of the Indian Penal Code the relevant portion of which is:

S. 191. "Whoever being legally bound by an oath or by an express provision of law to state the truth ......... makes any statement which is false and which he either knows or believes to be false or does not believe to be true, is said to give false evidence " the appellant was not legally bound by oath to state the truth cannot be supported. On the other hand at the stage of the proceedings in the High Court where it was being alleged that . Surjit Singh was being detained by the appellant illegally it was necessary for the appellant to make an affidavit ir\. making a return and therefore if the statement is false, as it has been found to be, then he has committed an offence under s. 193.

The opening words of s. 191 "whoever being legally bound by an oath or by an express provision of law to state the truth ......... " do not support the submission that a man, who is not bound under the law to make an affidavit, can, if he does make one, deliberately refrain from stating truthfully the facts which are within his knowledge. The meaning of these words is that whenever in a court oflaw a person binds himself on oath to state the truth he is bound to state the

(2) S.O.R. SUPREME COURT REPOHTS 733

truth and he cannot be heard to say that he should not have gone into the witness-box or should not have made an affidavit and therefore the submission that any false statement which he had made after taking the oath is not covered by the words of s. 191, Indian Penal Code, is not supportable. Whenever a man makes a statement in court on oath he is bound to state the truth and if he does not, he makes himself liable under the provisions of s. 193. It is no defence to say that he was not bound to enter the witness-box.

A defendant or even a plaintiff is not bound to go into the witness-box but if either of them chooses to do so he cannot, after he has taken the oath to make a truthful statement, state anything which is false.

Indeed the very sanctity of the oath requires that a person put on oath must state the truth. In our opinion this contention is wholly devoid of force and must be repelled. It was then contended that the officer before whom the appellant swore the affidavit, i. e., the Deputy Registrar of the High Court of PEPSU was not authorised to administer oaths. That officer as a witness for the prosecution has stated that he could administer an oath and therefore this contention of the appellant is also without any force and must be repelled.

It was also argued that the affidavit filed by the appellant was affirmed as being true to the best of know ledge and belief and therefore it could not be said as to which part was true to the appellant's knowledge and which to his belief. We have read the affidavit which consists of 7 paragraphs and each paragraph relates to affirmation of a fact which, if true, could only be so to the appellant's knowledge. But even belief would fall under Explanation 2 to s. 191 which is as under: Explanation 2 to s. 191. "A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which ho does not believe, as well as by stating that he knows a thing which he does not know".

Ranjit Singh

The State of Punjab

Kapur].

I959

Ranjit Singh v.

Tlic State of Punjab

J; apur j.

I959

April 21.

The appellant relied upon a judgment of the Allahabad High Court in Emperor v. Lachmi Narain (1). But unless there was something peculiar in the facts of that case it cannot be considered to be good law. It does not even take into consideration Explanation 2 of s. 191.

Lastly it was urged that the procedure adopted by the Magistrate was erroneous in that he did not hold an enquiry as requiredunder ss. 200 and 202, Criminal Procedure Code, the former of which is expressly mentioned in sub-section 2 of s. 476, Criminal Procedure Code. That contention is equally untenable because under s. 200, proviso (aa) it is not necessary for a Magistrate when a complaint is made by a court io examine the complainant and neither s. 200 nor s. 202 requires a preliminary enquiry before the Magistrate can assume jurisdiction to issue process against the person complained against.

In our opinion the appellant has been rightly convicted and we would therefore dismiss this appeal.

Appeal dismissed .

ANDHERI MAROL KURLA BUS SERVICE

& ANOTHER v.

THE STATE OF BOMBAY

(JAFER IMAM and J. L. KAPUR, JJ.)

Industrial Dispute-Conciliation proceedings-Pendency of- Whether terminate on expiry of I4 days-Industrial Disputes Act, I947 (XIV of r947) SS. I2(6), 20(2), JI(I) and 33(I).

Conciliation proceedings were started in January r952 with respect to some disputes between appellant l and its workmen. On May g, 1952, the Union and on June 2, 1952, the appellant l indicated to the Conciliation Officer that the negotiations had failed.

In the meantime on March 18, 1952, the appellant 1 dismissed

(1) I.L.R. 1947 All. 155

s. 33

RANJIT SINGH

THE STATE OF PUNJAB

JAFER IMAM

L. KAPUR, JJ.

Indian Penal Code

s. 193

Indian Penal Code

s. 191

Indian Penal Code

s. 193

s. 191

Indian Penal Code

s. 193

s. 191

s. 193

s. 193

Indian Penal Code

s. 491

Art. 226

s. 476

Criminal Procedure Code

s. 193

Indian Penal Code

s. 193

Indian Penal Code

s. 191

Indian Penal Code

Art. 226

s. 491(2)

Criminal Procedure Code

Art. 226

s. 191

Section 4

Oaths Act

Section 5

S. 14

s. 191

Indian Penal Code

S. 191

s. 193

s. 191

s. 191

Indian Penal Code

s. 193

s. 191

s. 191

s. 191

ss. 200 and 202

Criminal Procedure Code

section 2

s. 476

Criminal Procedure Code

s. 200

s. 200

s. 202

Industrial Disputes Act