1'U

l'tJ 'f1 l'r•l.P BU.th

•• Dtoli H•"" Na/A

SU., A

sui. J.

686 SUPREME COURT REPORTS [1962) SUPP.

Court had ordered that the hearing of the appeals be expedited and heard on cyclostyled record but the record was not made ready for a long time. We also .find that a large number of documents were included in the books prepared for ueo of tJrn court to \vhich no reference was ma.de at the Bar during the course of the hearing. Wo trust that the oaee will bo taken up for hearing with the least practicable delay a.nd disposed of according to law.

The appellants in the two appeals will be entitled to their costs both in this Court and the High Court. The costs of tho trial court will be the cost in the cause.

Appeals allowed. Cases remitted.

THE LODNA COLLIERY CO. LTD. v.

BHOLA.NATH ROY (B. P. SINH.4, c. J., P. B. GAJENDRA.GA.D.KA.R

and RAGilUJIAR DAYAL, JJ.) Lalthraj lan&--Permanently selt/., J,-Owmra' rigll lo ,<Ub-soil mintrai..

The question arising for decision was whether a pcnon with whom a re1umed invalid Lakhraj (revenue free) land was permanently 11ttfled had rights in the sub-soil minerals or not.

Held, that the right of property of the persons with whom resumed invalid Lakhraj land had been settled, being the same as of the Zamindars, extended to the sub-soil min era ls of the land held by them.

Ranjit Singlo v. Kali DMi Dt.bi (1917) L.R.44 I.A. 117, referred to.

Bari Narain Singh v. Sri Ram Chakrabarli (1910) L. R. 37 I.A. 136, DurgaPrasad Singh v. Braja Nath Boae (1912) L.R. 39 I.A. 133. Sashi Bhuaan Mwa v. Jyoti Prasad Singlo Deo, (1916)L.R.44 I.A.46 and Raghtmath Roy Marwari v. Raja of Jhms, (1919) L.R. 46 I.A. 158, held not applicable.

CrvIL APPELLATE JURISDICTION: Civil Appeal No. 405 of 1966.

Appeal· from the judgment and decree dated September 11, 1952, of the Calcutta High Court in Appeal from Original Decree No. 162 of 1949.

M.C. Setalvad, Attorney General for India, B.

Sen, S. N. Mitkherji and B. N. Ghosh, for the appellant.

N. C. Chatterjet, J.C. Gho8e, S. P. Ghose, and P.K. Chatterjee, for the respondents.

196,2. January 19 The judgment of the Court was delivered by

RAGHUllAR DAYAL J.-Tbis appeal on a certificate granted by the High Court at Calcutta, raises the question whether the person with whom a

resumed invalid Lakhraj (revenue free) land was permanently settled has rights in the sub-soil minerals or not. The necessary facts are briefly these:-

The plaintiffs are the proprietors of the land in suit in C. S. Khatian No. 6II and Sub-Khatians Nos. 612 and 613 of village Sripur in Touzi No. 2597 of the Burdwan Collectorate.

The Maharaja of Burdwan is the proprietor of the lands in village Sripur appertaining to Touzi No. 12 of Burdwan Collectorate. He let out those lands to the Pals and Goswamis of Sripur in Putni right. The Putnidars also took coal mining lease of those lands from the Maharaja and, thereafter, both the Maharaja and the Putnidars granted the coal mining lease of those lands to one P. K.

Chatterji of Ikrah who, in his tur.n, granted a sublease of the same to Messrs. Lodna Colliery Co. Ltd., th!' predecessor-in-interest of the defendant company, the Lodna Colliery Co. (1920) Ltd.

A portion of the lands in suit subsided and on enquiry the plainti.1Fs found that the defendant company had cut away a large quantity of the

Tl.. Lotln• Colliery

Co. Ltd.

v. 11""4 Nath Roy

RaghularDayal J,

lie n. IMN C.11;,.y

C.. LU.

•• ..,.11' ... lioy

~ .. -- Dl!JWI J.

688 SUPREME COURT &EPORTS [1962) SUPP.

underground coal from the lands in 1111it. It ie on account of IU.ch unjustified conduct of the defen dant company that the plaintilfs, on the buia of their proprietary right, uaed for the recovery of damages for coal wrongfully taken away by the defendant from the land in suit and for other wrongs. The defendant company oonteeted the suit and denied the plaintiffs alle>ged ri{lhte on the ground, inter a&, that the plaintiffs had no ti, le to the subsoil of the land in suit and consequently to the ooal. The oontention really is that the land in suit had been permanently settled with the plaintilra after it had been resumed ae invalid Lakhraj land and that such settlement conferred no better right.II than what they originally p<l188118Cd on acoount of the land in suit being grq, nted to their predelie88Ql'llin interest under Brahmottar and Debutter grant&, the grantees under which had no rights in the sub">il

of the land granted.

The Trial Court held that the invalid Lakhraj tenure in the land in suit in favour of the predeoees<>rsininterest of the plaintiffs waa resumed by the Government under the provisions of Regulation II of 1819 and, therea.ftn, was permanently aettled with them at t4e fixed revenue and that therefote the plaintiffs had right to the mineral& under the soil of the land settled with them. It .aooordingly decreed the suit in part and the deoree wa1 confirmed by te High Court.

It is contended for the appellant that the person with whom reBUmed invalid !Akbraj land bad been settled hu no right.a in the &11b10il.

The respondents rely on the proviaion1 of the Regulation enacted by overnorGeneral . Council in support of thell' olaun to the eubIOil m such land held by them, The GovemorGenerai in Council pUled a number of Regulation on May 1, 1793. We eball first consider Regulation XIX of 1793, ·

• • . ,

Reg11lation XIX of 1793 was made for reenacing with modifbations the Rules p<issed by the Governor-General in Council on December 1, 1790, for tryingthe validity of the titles of persons holding, or claiming a right to hold, lands exempted from the payment of revenue to Government, under grants and for determining the amount of the annual assessment to be imposed on lands so held which might be adjude:ed or become liable to the payment of public revenue. The preamble makes it clear

that the Regulation was creating an ae:ency for determining the title of the proprietors of land who claimed to hold it free from the liability to pay revenue on account of certain grants, that from time to time the British Government has declared all grants for holding land exempt from the payment ofrevenue without their sanction since the date of the accession of the East India Company to the Diwani on August, 12, 1765, illegal and void and that no such exempted land was to be made subject to the payment of revenue until the titles of the proprietors had been adjudged invalid by a final judicial decrPc.

It is to be :Q.oticed that the persons who laid claims to hold the land exempt from the payment of revenue were referred to as proprietors. ,

Section II, Clause First, deals with the grants of alienated land made previous to the 12th A11gust 1765, the date of the accession of the East India Company to the Diwani, and lays down that such grants would he deemed valid provided the grantee actually and bonafi.de obtained possession of the land or ranted and the land bad not been subsequently rendered subject to the payme:ut of revenue.

Section III, Clause First, declares invalid all grants for holding land exempt from the payment of revenue ma.de'between the 12th Aug11st, 1765 and 1st D<1cember, 1790 j by ll.ny authority other than that of G.ivernmJnt anrl which had not been

19'>2

The Lodna r.olliery

Co. Lid.

Y, Blwla /"th R<!)

Ragh"bar Dayal J.

19 2

Thi Loi., C, Jlit>:f

Co. Lu.

Bllll/a N•t~ ROJ

Ba1Awhr D9•l J.

confirmed by Government or by a.ny Officer empowered to confirm them.

Section IV is eignifica.nt for our purpose a.nd rea.ds :

"This Regulation, a.s far as rega.rds lands alienated previous to the 1st December 1790, respects only the question whether thPy are liable to the payment of revenue or othenr'..se.

E \"'ery dispute or claim regarding the proprie tary right in lands alienated previous to that date! and which, in conformity to this Reirula t.ion, may become subject to the payment of revenue, i~ to be conaid1>red as a matter of a private nature to be determined by the Courts of Diwa.ni Adala.t in the event of any dispute or cla.im a.rising respecting it between the grantee and the grantor or their respective heirs or successors. The grantel's, or the present

possessors, until dispossessed by a. decree nf the Diwani Adala.t, a.re to be considerl'd a.a the proprietors of the lands with the same right of property therein as is declared to bo vested in proprietors of <'Sta.tee or depen. dent ta.Iuka, (according 1\8 the la.nd ma.y exceed or be leas than one hundred bighas, specified in sections 6, 7 and 21,) subject to the pa.yme11t

of revenue, and they a.re to execute engag!lments for the revenue, with which their lands may be declared chargeable, eitht•r to Government or to the proprietor or fa.rmer of the estate in which the lands mav Le situated, or to the officer of Government, {according as the revenne. of the estate in which the land mny be situated may Le payable by the proprietor or a farmer, or collected kha.a) under the rules for the decennial aettlPment.

If bv the decision of the Diwani Ada.lat the pru,:.rietary right in the land shall be transfrrrcd, the person succeeding thereto is in

like manner to be responsible for the payment of the revenue assessed or chargeable thereon." It is clear from this section that the Regulation simply dealt with the question about the liability of certain lands to the payment of revenue and provided that any dispute about proprietary right between the grantees and the grantors would be a matter of a private nature 'to be decided by the Court& of Diwani Ada.lat. It, however, definitel:r provides that the grantees or the then pcssJssors oi land, until dispossessed by a decree of the Diwani

Ada.lat, are to be considered as the proprietors of the lands with the same right of property therein as is declared to be vested in proprietors of estates or dependent taluks according as the land may exceed or be less than one hundred bighas subject to the payment of revenue. Such proprii>tors of laud were to execute engagement for reve11ue with whieh their lands may be declared ohargeaHe, either to the Government or to the proprietor or farmer of estates in which the lands be situated.

The grantees cf invalid La.khraj lands therefore had the same right of property in that land subject to the payment of revenue, as had been declared to be vested in the proprietors of estates. If he zamindars •. the proprietors of estates, have rights not only over the surface of the land but in the subsoil as well, the persons whose grants had been held to be invalid and who were held to be liable to pay land revenue also possessed right in the sub soil of the land settled with them.

Now, Regulation VIII of 1793, also passed on ay I, 1793, re-enacted with modifications and amendents the J; tules for the Decennial Settlement of the public revenue payable from the lands of the zemindars, independent talukdars, and other actual proprietors of land in Bengal, Bihar and

The Lodna r allitf:"

Co. Ltd.

Bhola Ndl~ Roy

196% n, LxJ .. Colli"]

Co. LJd.

•• Bltal• N•lla Roy

R"l4ubor D•)<ll J.

Orissa., passed for those Provinces respectively on

September 18, 1789, November 25, 1789 and Febru. a.ry I 0, 1790, a.nd subsequent dates. Section IV pro . vided that the settlement, under certain restrictions a.nd exceptions specified in the Regulation, shall be concluded with the actu'li proprietors of the soil, of whatever denomination, whether zcmindars, talukdars or chaudhris. It follows that the zemindars with whom settlement took place, were recognized a.s the a.ctua.1 proprietors of the soil. Tlie settlement of revenue so made wa.s made permanent by s. IV of Regulation I of 1793.

Regulation I of 1793 enacted into a Regulation certain Articles of a Proclamation dated March 22, 1793. Section I of this Regulation states that the various articles of the Proclamation wert> enacted into a Regulation and that those articles related to the limitation of public demand upon the fonds, addreBSed by the Governor-General in Council to the zemindars, independent talukdars and other actual proprietors of land paying revenue to Government in the Provi.uoes of Bengal, Bihar and Orissa.

By Section IV it wa.s declared to the zemindars, independent ta.lukdars and other actual propietors of land, with or on behalf of whom a settlement had been concluded under the Regulations mentioned earlier, that at the epiration of the term of settlement no alt.!3ration would ho made in the assessment which they had respectively engaged to pay, but that they and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever.

The preamble to Regulation II of 1793, which abolished the Court£ of Mal Ada.lat or Revenue C(nirtS and transferred the trial of suits cognizable in those Courts to tho Courts of Diwani Ada.lat, stated, in connection with the proposed improvmcnts in agriculture :

"As being the two fundamental measures essential to the attainment of it, the property in the soil has been declared to be vested in the landholders, and the revenue payable to Government from each estate has been fixed for ever ...••. The property in the soil was never before formally declared to be vested in the landholders, nor were they allowed to transfer such rights as they .did poMsess, or raise money upon the credit of their tenures, without the previous sanction, of Government." ', It is thus clear from the above declarations that the zemindars, the proprietors of estates, were recognized to be the proprietor~ of the soil. Such a view was expressed , by the Privy Council also in Ranjit Singh v, KaU Dilsi Debi(').

It was said at page 122: ', '', " "Passing to the settlement of 1793, it appears to their Lordships to be beyond controversy that whatever doubts be entertained as to whether before the British occupation the za.mindars had any proprietary interest in the lands comprised within 'their respective di&- tricts, the settlement itself recognizes and proceeds on the footing that they are the actua.l proprietors of the land for which they undertake to pay the Government revenue. The settlement is expressly made with the 'zemindars, independent talukdars and other actual proprietors of the soil': see Regulation I, s.3, and Regulation VIII., s.4. It is clear that since the settlement the zamindars have had at least a prima facie title to aU la.nds for which they pay revenue, such lands being commonly referred to as malguzari lands.'' The right of the zemindars to the sub-soil minerals under their land follows from their' being

(I) (1917) L. R.44 I, A. 117.

The Wna Collier.I

Oo. Ltd.

Bhola Nath R'/)'

Raghubor Dayal J,

1Nt

694 SUPREMr; OOURT REPORTS [1962] Su'PP.

proprietors of the soil and has been recognized in a number of 08803 brL1veen the zemindars and persons holding land undr.r a tenure from them. It has been held in those c&11es that, in the absence of the right to sub-soil minerals being conferred on the tenure holder under the torms of the tenure held by him, he docs not get any right to them.

'!'he first such ()&Ile is Hari Narayan Singh v. 81-iram Ghakrararti(' ). The same view was expressed

in Durga Prasad Singh v. Braja Nath &se (').

In Sashi Bhuahan Misra v. Jyoti Prashad Singh Dw (•) Lord Buckmaster said at page 53, with regard to the above two cases :

"These decisions, therefore, have laid clown a principle which applies to and concludes the present dispute. They establish that when a irrant is made by a zamindar of a tenure at a fixed rent, although the tenure may be permanent, heritable and transferable, minerals will not be held to have formed part

of the grant in the absence of express evidence to that efftct." The fact that the tenure was rent free, makes no difference to this principle, as held in Raghuna.fh Roy Maru; ari v. Raja of Jheria (').

We are therefore of opinion that the right of property of the person with whom resumPd invalid Lakhraj land bad been settled, being the same as of the zemindars, extends to the sub-soil minerals of the land held by them.

Further, the plaintiff~ trace their rights to the documents Exhibits 10, 2 and 6(a).

Before <lea.ling with them, we may refer to two other Regulations

not so far mentioned.

Regulation II of 1819 modified the then exi~ ting Regulations regarding tho rcuumption of reYe-

(1) (1910) L. R. 371. A.136.

(2) 11912) L. R. 321. A. 113.

(3) (1916) L. R. +11 A 46.

(4) (1919) L. R. 461. A. 1!'>8,

nue of lands held free of assessment under illegal or invalid tenures. Its Section III declared that lands specified therein were liable to assessment in the ssme manner as other unsettled mahals and that the revenue assessed on all such lands would belong to Government. It laid down the procedure for enquiry claim of Government to assess such land and for assessment of revenue. Regulation III of 1828 made certain changes in the procedure, but contains nothing particular which would affect the determination of the question before us.

Exhibit 10 is the Robakari of the Deputy Collector of Burdwan, dated April 15, 1841, with respect to Touzi No. 2597 .. It is in pursuance of this order that permanent settlement was made with Madhusudan Roy and Sitaram Roy, predecessors-ininterest of the plaintiffs with respect to the land in suit. It appears from this Robakari that in proceedings between the Government as plaintiff and Manik Chandra Roy, Madhusudan Roy, 3itaram Roy and others as defendants, the claim of the Government, in accordance with the provisions of Regulation II of 1819 and Regulation III of 1828, in respect of the invalid revenue free land consisting of llrahmottar land measuring 156 bighas IO cattahs and the Debutter land measuring 18 bighas 20 cattahs, in all 175 bighas, situated in village Pariharpur and other villages within Pergana Shergarh, was decreed in April 1837, with the result that that land was resumed and assessod to land revenue. Madhusudhan Hoy and Sita.ram Roy and other defendants claimed right to get settlement because it was the Lakhraj property obtained by their ancestors. The settlement was huwever made with Manik Chandra Roy on April 19, 1838, as the other defendants did not turn up. Subsequently, Madhusudan Roy applied for settlement jointly with l\Ianik Chandra Roy and others. As a result of the enquiry made, permanent settlement was separately made with Manik

Chandra Roy and others with respect to certain area a:ad with Madhusudhan Roy and Sitaram Roy

The Lodna Colliery

Co. Ltd. v, Bhola N arh Roy

RaglwlJar D a;>al J.

71' Lt>iM Collw7

C,. Ltd

with respect to tho rest.

On April 15, 1841, .A, malnama, Exhil!it 2, was issued by the Deputy Collector, Burdwan, to Mukhyas and others. It directed them tc, pay their respective rents to the persons with whom settlement was made.

Exhibit G(a) is certified r.opy of S<'ttlement khatian No. 61 t in respect of village Sripur, relating to Touzi No. 25~7, R.8. No. 2416. It describes the interest in the land in suit to be Bajeapti (resumed) Lakheraj Pariharpur and others.

It mentions five persons including the son of Madhusudh&n Roy and the sons of Sitanath Roy, to be the proprietors in posaession of that interest. It also shows the King Emperor of India as p081e811ing the entire superior interest. It ia thus clear thas the pOS8688ors of the Bajeapti (resumed) Lakheraj land in suit held it as proprietors under the King Emperor of India. They must consequently have the same rights which other proprietors like zamindars had.

It is however urged for the appellants that the records prior to the resumption proceedings showed the lands in suit to be the Brahmottar and Debutter Janda of the prodecesaors of the plaintiiis and that therefore, in view of the principle of law laid down by the Privy Council in Hriri Nurayan Singh'a Ca.!e(')and the later decisions, thAy cannot lie

held to p088ess rights in the sub-soil in the abeence of definite evidence that such rights were conveyed under those grants. We do not agree with this contention. The predecessors-in-interest of the plaintiffd held the land from the Government and not on a subordinate tenure from tho zamindars and therefore the principle of law aa stated in Hari Narayan Singh' s Ciise. (') and later confirmed in aeveral deciaions by the Privy Counoil, doee not apply to the present case.

We are therefore of opinion 'hat the plaintiffd had rightly been held to own and po88e88 the right.~

(I) (1910\ L. R. 37 I. A. 136.

the minerals under the land in suit and that tho decree in their favour is correct. We therefore dismiss the appeal with costs.

Appeal dismissed.

THE BAGALKOT CEMENT CO. LTD.

R. K. PATHAN & ORS. (P. B. GAJENDRAGADKAR, A. IC SARKAl{ and

K. N. WANCHOO, JJ.)

Standing Orders-Certification of draft aubrnitted by emp loyer-Power of Certifying Officer an_d Appell, ate A_uthority-lf can fix quantum OJ !<ave and /<Ol•day-1 nduatria! Empwyment (Standing Orders) Act, 1946 \20 of 1946), as mnended by Amending Act of 1956, ••· 4,10, Schedule, cl. 5.

The appellant company submitted draft Standing Orders as required by s. 3 of the Industrial Employment (Standing Orders) Act, 1946, to the Certifying Officer.

The Certifying Officer in certifying the said draft added a clause to paragraph 11 of the said draft which provided, inter alia, for certain festival holidays and causal and annual leave for a numt>er of days.

On appeal the Appellate Authority in substance !'gree with the additions made by the Certifying Officer. The question raised in the appeal was whether the Certifying Officer or the Appellate. Authority had the jurisdiction under the Act to make the additions in the draft Standing Orders. Section 4 of the Act provides, inter alia, that the draft standing orders could be certified if they provided for every matter mentioned in the Schedule to the Act and cl. 5 of the Schedule provided as follows : ''conditions of, procedure in applying for, and the authority which may grant, leave and holidays."

Held, that the Certifying Officer and the Appellate Authority had the jurisdiction in making the addition that they did.

The word "conditions" in cl. 5 should be construed not in a narrow way . but in a broad and liberal sense consistently with the object of the Act and, so construed, there could be no doubt that cl. 5 was not merely procedural but covered the substantive provision for fixing the quantun1 of

Hl62

Tlie Lod11a Colliery

Oo. Lid.

Bhola Nath Rn_1.

Roghubar Da;•al J.

THE LODNA COLLIERY CO. LTD

BHOLA.NATH ROY

RAGilUJIAR DAYAL, JJ.

(1910) L. R. 37 I.A. 136

(1912) L.R. 39 I.A. 133

(1919) L.R. 46 I.A. 158

sections 6, 7 and 21

Section I of this Regulation

L. R. 37 I. A. 136

cl. 5

s. 3

Section 4

cl. 5

cl. 5

cl. 5


2 s.c.R.

SUPREME COURT REPORTS li97

the minerals under the land in suit and that tho decree in their favour is correct. We therefore dismiss the appeal with costs.

Appeal dismissed.

THE BAGALKOT CEMENT CO. LTD.

R. K. PATHAN & ORS. (P. B. GAJENDRAGADKAR, A. IC SARKAl{ and

K. N. WANCHOO, JJ.)

Standing Orders-Certification of draft aubrnitted by emp loyer-Power of Certifying Officer an_d Appell, ate A_uthority-lf can fix quantum OJ !<ave and /<Ol•day-1 nduatria! Empwyment (Standing Orders) Act, 1946 \20 of 1946), as mnended by Amending Act of 1956, ••· 4,10, Schedule, cl. 5.

The appellant company submitted draft Standing Orders as required by s. 3 of the Industrial Employment (Standing Orders) Act, 1946, to the Certifying Officer.

The Certifying Officer in certifying the said draft added a clause to paragraph 11 of the said draft which provided, inter alia, for certain festival holidays and causal and annual leave for a numt>er of days.

On appeal the Appellate Authority in substance !'gree with the additions made by the Certifying Officer. The question raised in the appeal was whether the Certifying Officer or the Appellate. Authority had the jurisdiction under the Act to make the additions in the draft Standing Orders. Section 4 of the Act provides, inter alia, that the draft standing orders could be certified if they provided for every matter mentioned in the Schedule to the Act and cl. 5 of the Schedule provided as follows : ''conditions of, procedure in applying for, and the authority which may grant, leave and holidays."

Held, that the Certifying Officer and the Appellate Authority had the jurisdiction in making the addition that they did.

The word "conditions" in cl. 5 should be construed not in a narrow way . but in a broad and liberal sense consistently with the object of the Act and, so construed, there could be no doubt that cl. 5 was not merely procedural but covered the substantive provision for fixing the quantun1 of

Hl62

Tlie Lod11a Colliery

Oo. Lid.

Bhola Nath Rn_1.

Roghubar Da;•al J.

J9Gt

1 A1 Botalkol Calillfl c •. tul. ..

R. K. Potll.n

698 SOPRIDIB COURT REPORTS (lll62] SUl'P.

holidays and leave so that the conditions of emplo}ment might be made prrcise and definite and prescribed in the form of Standing Orders having statuto1 y efTccu.

lleld, further, that the Certifying Officer as well a• the Appellate Authority were in substance industrial authority, and having regard to the power given to them under the Schedule there could be no inc.nsistency in holding that they had also the power of fixing the quantum of holidays and leave as well. Anv hardship that might be cau•cd by their orders could be rectified under s. I 0 of the Act.

C1nL APPELLATE Juruso1CTION : Civil Appeal No. 5i7 of 1960.

Appeal by special leave from the judgment and order dated October 15, 1959, of the Appellate Authority (Chief Labour Commissioner, Central, New Delhi), in Appeal under e. 6 of the Industrial Employment (Standing Orders) Act, 1946.

B. Narayanasuamy, 8. N.

Andley and RamA?shu:ar Nath, for the appellant.

Jf. K. Ra11wmurthi, for the respondent.

1962. January 2!:..-The Judgment of the Court was delivered by

Oojmd,..1a<ik"'J.

GAJENDRAGADKAII, J.-This a.pp al h, v special kave raises a short qneation about the srope and effect of cl3.•1se 5 in the 8che<lule to the Industrial Employment (Standing Orders) Act, 1946 (20 of I !l46) (hereinafter caIIPd the Act ). 'J bat question arisrs in this w.1y.

The appellant Bagalkot Cement. <'o. Lt<l. is a Limited Company rcgiRtcrecl under the fnclian Companie.a Act, 1930; it carrie8 on the business of manufacturing rcmnnt and for that purpose, it owrrn a factory a8 wdl M a limestone Quarry at 13aalkot in the Sta.to of Mysore.

As required bys. :~ uf the Act, the appellant suLmitti>d draft Standing Orders on the 3rcl March, 1!)58, to the Certifying (Jfficer and the Htgional Labour Commissioner (C0ntmll, :\hi!· a'. in order that they sbC>u Id be e"rtifi"d. Tlw C. rt ify ing Offic:cr cunsid"rrd

2 S.C.R.

SUPREME C0Ult1' REl'OltTS 6\19

the draft submitted by the appellant, heard the appellant and its employees, the respondents and passed an order of eertilication on the 16th June, l 959. While considering the draft for the purpose of certificatiou, the Certifying Officer, however, made certain amendments in, and additions to, the said draft. Amongst the additions made, clause

(7) in paragraph 11 was one and it is with this addition made by the Certifying Officer that we are concerned in the presem appeal.

Paragraph 11 of the draft Standing Orders submitted by the appellant dealt with the question ofleave. Paragraph 11 (1) of the draft provided that holidays with pay will be allowed as provided for in the l!'actories Act, 1948, and other holidays in accordance with law and contract.

Clauses (2) to (6) dealt with allied matters. In the Standing Orders as they were finally certified, clause ( J ) of paragraph 11 was slightly changed and it provided that holidays with pay will be allowed as provided for in the Mines Act.

No grievance is made of this alteration. Clause (7) has been added to paragraph 11. It reads thus: "7. The workmen shPll be allowed during the course of a year :- (a) Ten festival holidays with pay for the celebration of important festivals (which will be fixed before the commencement of every cala.ndar year in consultation with the workmen) including the Republic Day (26th January) and the Independence Day (15th August) and/or any other paid holidays as may be declared and notified by the Government from time to time. Those workmen that are required to work on festivals and National Holidays shall be given an equal number of compensatory holidays on day convenient to the company, and

ThiBagalkot Ctm111t

Oo. Ltd. v.

R. K. Pathan

196•

TM Bagolkot C:..u•I

Co. Ud,

R. K. Patha•

fJoj1ndrog.di:ar J.

700 SUl'REMB UOlTk1' REPORTS [1962] SUFP.

(b) Fifteen days' casual leave with wages.

This will include all kinds of leave due to sickness or any other cause.

(c) Casual leave "Ifill not be allowlld for morl,'l -than 3 days at a time except in the case of sickness and emergencies at the discretion of the company.

(d) Wages shall be allowed for thaoe days remaining un-a.va.iled by th: workers at

the end of the year.

(o) Fourtet-n days annual leave to all classes of workers who have put in 265 attendances in a year as de1ined in the Mines Act.

This includes statutory leave.

AU leave &hould be applied for only in the preacribed form.

The workmen after filling the particula.i:s of the leave required by them aha.II hand over the ea.me to the head of the section in which they a.re working." The appellant apparently oontended before the Certifying Officer that it was outside his jurisdi<>- tion t-0 deal with the topics oovered by clause (7) which he wanted to add but its objection was over ruled.

Against the order pased by the Certifying Officer certifying the Standi'.Jg Orders with the Midi

tione and amendments made by him, the a.ppcl Ian t preferred an appeal under section 6 of the Act to the appellate authority, viz., the Chief Labour Commissioner (Central), New Delhi, on the 5th July

1959. The appellate authority, in substance, agreed with the view taken by tho certifying Officer and retained the addition made by him by the insertion

of clause (7) to paragraph 11. He, however, made slight modification• by directing that in clause (a) there will bo Reven festival holirlayR inRtt>ad of ten festiv1Ll holidays am! in danw (b) there will ho ten days' casua.l lea.ve instead of fifteen days.

Clauso

(d) was amended by the appellate authority by substituting a' new claus~ in its place.

The substituted clause reads thus:

"Casual leave will not be allowed to be accumulated. Unavailed casual leave shall lapse at the close of the calendar year."

Then in regard to cl. ( e), the appellafo authoritv held that the said clause amounted to a repetition of statutor.v provision.

Therefore, the said clause was amended to read thus :

"Annual leave with wages will be allowed as per provisions of the ilfines Act."

The appellate authority made certain other amendments in the Standing Orders as they were certified by the Certifying Officer and ultimatdv, the StanJing Orders were certified with the modifications and alterations suggested by the order of the appellate authority. The order of the appellate authority was passed on October 15, 1959.

Against this order, the appellant applied for special leave to this Court and special leave was granted to it on the lst February, 1!!60. It is with the special leave thus granted that the appelhnt has come to this Court and on its behalf Mr. Narayanaswami has urged that the addition made by cl. (7.) in paragraph 11 of the Standing Orders is outside the jurisdiction of the certifying authority.

He contends that the jurisdiction conferred on the certifying authority by clause 5 in the Schedule does not empow<Jr the certifying authority to deal with the substantive question of the extent and quantum of leave and holidays. It only requires the Stand ing Orders to provide for conditions subject to whi0h leave and holidays can be granted and the procedure in respect thereof and the autho.ity which may grant such leave and holidaya. The quantum of leave and holidays which should be granted to the workmen is outside the purview of the Schedule

19 2

Tht Bdgalkot Cement

Co. Ltd. v.

R. K. Pathan

G.'ljendraga1kar J.

19l2

T~ Bogaikol Ctmnt

Co. Ltd.

' R. K. l'otf.an

70..:

SUPREME COURT REPORTS [1962] SUPP.

and as such, cannot be included in the Standing Orders. That is how the narrow question which arises for our decisit'n in the present appeal is to det('rmine the scope and effect of cl. 5 in the Schedule.

Bfore draling with this question, it would be conv<>nif'nt to consider broadly the scheme of the Act. 'l'he Act was passed in 1946 because tho Legislature thougbt that it was "expedient to require employer~ in indiddunl f'Stablishments to definf' with sufficient precision the conditions of employmPnt under thf'm and to make the said con: ditions known to workmen employed by them." Prior to the passing of the Act, conditions of employmPnt obtaining in Sf'veral industrial eetablihmcnts werf' governPd Ly contracts between the employer and tbl'ir employees. Sometimes the said oonditions were reduced to writinl! and in many

cues they were not reduced to writing but were p:overne<l by oral ap:ri•f'm<>nts.

Inevitably, in many cases, the conditirns nf crvice were not well-defined and thero was ambiguity or doubt in regard to their nature and soope. That is why the Lep:iehture took the view that in regard to indutrial etablish m<'ntJ! to which the Act applied, the conditions of employment subjert to whirh indutrial labour was employe<l, hould bP well-defined and should be preoisdy known to both the parties. With that object, the Act has mado relc, ant provisions for making Standing Orders whirh, after they are certified, com.tituto the statutory terms of employment between the industrial establihments in question and their ernploye•s. 'That is the principal object of the .\ct..

The Art applit>s to every industrial establishment wh<'rcin r>ne hundred 01 more workmen are employed nr were cmploytd on any Jay of the preceding twdvr months. It can be 1:xtended e, en to estab- JiRhments whose complement of labour is less thun

2 S.C.R.

SUPREME OOURT REPORTS 703

one hundred and it does not appl.Y to any industry to which Chapter VII of the Bombay Industrial Relations Act, I 940, applies or to any industrial establishment to which the provisions of the Madhya Pradesh Industrial Workmen (Standing Orders) Act,

1959, apply. In other wordP, normally, Standing Orders have to be drafted by the employer and their certification obtained under the Act wherever the employer employs more than one hundred indus trial workmen: R. 113).

The certifying authority under the Act means a Labour Commissioner or a Regional Lahour Commissioner and includes any officer appointed . by the appropriate Government by notification in the Official Gazette to perform all or any of the functions of a Certifying Officer under the Act: s. 2(c\. The Act provides for an appeal Rgainst the order passed by the Certifying Officer and the "appellate authority" means an Industrial Court, wherevn it exists or in i1 s absence an authority appointed by the appropriate Government uy notification in the Official Gazette to exercise in such arm as may be specified in the notification tht1 functions of an appellate authority under the Act : sec. 2( a). "Standing Orders" are defined to mean rules relating to matters set out in the Schedule : s. 2(gl.

Thus, the matters which have to be covend by the Standing Orders an<l in reHpect of which the employer has to make a draft for submission to the Certifying Officer are matters specified in the Schedule. Section 3 requires the submission of the draft of Standing Orders within six months from the date on which the Act becomes applicable to an industrial establishment.

Under s. 4, the Standing OrdMs become certifiable if provisions are made therein for every matter et out in the Schedule ar.d they are found to be otherwise in confirmity with the provisions of the Act. After the amendment of this section made in 1956, the Legislature has imposed upon the Certifying Officer and the appellate authority the duty to adjudicate

The Bagalko• 01mtnl

Co. Ltd.

v. i R. K. Pathan

a ajendra :adkar J.

T~ Ba,(<dkot Cemml

Co. l.; d. v.

R. K. Pathtm

Gafendrogadka, .J.

70! ePRElE OOURT REPORTS (1962) SUPP.

uprm the fairness or reasonableness of the provisions of any standing orders. Prior to the amendment, it was not open to the said authorities to examine the fairness of the Standing Orders submitted by the employer. The result of e. 4, therefore, is th!l.t the Standing Orders have to provide for a.II the topics specified in the Schedule and they have to be in

cr, nformity with the Act.

Their reasonableness can be examined by the appropriate authorities and suitable modifications can be mado by them in accordance with their decision.

Section ;> provides for the proeeduro which has to be followed by the Ce1tifying Officer befo:e certifying the Standing Orders. The procedure is intended to give an oppor tunity to both thP, parties tn be heard before the final order is passeJ. eetion 6 provides for an appeal and s. i lays down that the Standing Orders shall come into operation on the expiry of 30 days from the da~~ on which authenticated copies thereof

:ue sent a~ rpquirPd by s. 5. sub-s. (3), or where a.n appeal i> pre fern d, on the expiry of seven days frt•m the date on whicb the copies of the applla.te order are sent under s. 6 (2).

Section 8 requires the Certifying Officer to keep a register of standing c rdcre and under s. 9, the ea.id Standing Orders have to be prominently posted by the employer in Enizlish and in the language understood by the majority of the workmen on special boards. Section 10 cleals wiih the duration and modification of of standinf.( orders.

It provides that except by agreem1nt, the sta11ding orders, after they are certified, shall not be liable to modification until the expiry of six months from the date on which they came into operation.

Section 10 (2) empowers both the omplJycr or.the workman to ap(Jly for a modification in tho said standing orders. It would thus be

clear that after they are certified, tht> standing orders h;>ve t-0 remain in force for six months un!Pss,

of cour~P, they are modified in the meanwhile by, consent. After six months a.re over, an application

2 S.C.R: t:lUPREME COURT REPOR1S 705

for modification in the standing orders can be made either by t.he employer or the emplo• yees and the problem would be considered after following the procedure prescribed by the Act for certifying the original standing orders. Section 11 confers the necessary powers of a Civil Court on the Certifying Officer and the appellate authority and s. 12 prohibits the admission of oral evidence which has the effect of adding or otherwise varying or contradicting standing orders as finally certified under the Act, in any Court. Section 13 provides for penalties and the procedure to enforce them.

Section 13A deals with the problem of interpretation of the standing orders and s. 13B provides for exemption of industrial establishments therein specified.

Section 14 confers on the appropriate Government power to exempt, conditionally or unconditionally, any industrial establishment, and s. 15 confers on the appropriate Government the power to make rules to carry out the purposes of the Act, and, in particular, to provide for the matters covered by cls.(a) to (e) of sub-cl. (2).

Section 15(3) contains the salutary provision that every rule made by the Central Government under s.15 has to be placed before the House in the manner prescribed by it. The Schedule t.o the Act contains 11 clauses, clauses l to

10 deal with the several topics in res11ect of which ntanding orders have to make a provision and cl. 11 refers to any other matter which may be prescribed.

This last clause shows that an addition may be mii, de

by the appropriate Government if it is thought necessary to do so. That, in brief, is the scheme of the Act.

Mr. Narayanaswami contends that having regard the nature and scope of the several clauses Ill the Schedule, it would be appropriate to construe cl.5 as not including a provision for the quantum and extent of leave and holidays. His argument is \hat cl, 5 is really intended to provide merely for

IHI

The ll11allwt c.,,,.uJ c •. Lttl.

"· R. K. P11rit'6n

IHI

1"'- B.,.U.. C-

C., LU.

11. K.I'.-

SUPREME OOURT REPORTS (1962] SUPP.

the oonditions and the procedure to be adopted in applying for leave and holidays, Clause 5 reads thus:

"Conditions of, procedure in applying for, and the authority whloh may grant, leave and holidays." How many holidays the employee will have and how much leave, either caaual or on medical grounds, he would be entitled to get, are matters outside the scope of the Schedule ; they would be governedby the relevant provisiolll! of any other law or by contract between the parties; they cannot be the sub ject-matter of standing orders. The standing orders wonld provide for the conditions subject to whioh leave and holidays can be applied for, for the procedure in applying for the same and for the authority which may grant the same. That being so, the Certi fying Offioer and the appellate authority exceeded their jurisdiction in making substantive provisions in that behalf by paragraph11(7). That is the C8.8e for the appellant aa presented by Mr. Narayanaawami.

In support of this contention, relian0t1 has been pl&ced on cl.3 in the Schedule which refers to shift

working. It is urged that since the clause refers to shift working, the u betantive provision in reepeot of shift working as well as the oondi tiona subject to which it should be allowed wonld legitimately fa.II within its purview. If the Legislature had intended that the eubeta.ntive provision as to leave and holidays should be the .11ubject-matter of standing orders, it may well have referred to leave and holidays only in

cl. 5 without :.ny further addition. The additional words introduced in cl. 5 are words of limitation and they show that e sutantive pro:vision IUI to leave and holidays 18 out.111de the purview of that olauae. It may be conceded that there is some loroe in this contention.

There are, however, other considerations which have to be borne in mind in construing cl. 5.

The <Jbject of the Act, as we have already seen, was to require the employers to make the conditions of employment prPcise and definite and the act ultimately intended to prescribe these conditions in the from of standing orders so that what used to be governed by a contract heretobefore would now be governed' by the statutory standing orders and it wou Id not be reasonable to hold that conditions of employment to which the preamble of the Act specifically refors would not include a provision for the quantum of leave and the quantum of holidays to which the employee would be entitled. Therefore, the word "conditions" in cl. 5. of the Schedule has to be reasonably construed in a broad and liberal sense. The dictionary meaning of the word "condition" is a provision or a stipulation. Now a provision or a stipulation as to leave and holidays would necessarily include a provision for the quantum of holidays and leave and this construction would be consistent with the meaning of the word "condition" as employed lu the preamble to the Act. fr. Ramamurthi who appeared amicus curiae for the respondents at our request contended that to adopt the narrow cQIJstruction of the word "conditions" in cl. 5 would defeat the very purpose of cl. 5.

He argued that merely providing for the procedure of application and for the authority who would grant leave and holidays without stipulating as to the quantum of leave and holidays would be almost meaningless.

In our opinion, there is force in this contention and so, we are inclined to adopt the broad and liberal construction of the word "condition" in cl. 5.

Besides, the first three clauses dealing with the conditions, the procedure and the authority would apply both to leave and holidays and it is not easy to appreciate what conditions could be

1'11 n, ,.,_.., Collllllfl c •. lill.

:v. ' R. K. l'cih••

JH2

f'/w B., a/al C'"""' c..w.

R.X. Po11flo;.,.i<o,.tJJ. ... I,

708 SUPREME CXIURT REPORTS (1962] SUPP.

prescribed. by the standing orders for the purpose of holido.ys. No doubt Mr. Na.raysnaswami suggested that the conditions in the cont>l'xt of holidays may mean conditions as to holidays with pay, or without pay or with half pay B!ld that iB what is contemplated by the first clause in relation to holidayH.

Theoretically, it may be conceivable that the word "conditions" may have that meaning in respect of holidays; but it seems to us that it would serve no useful purpose merely to provide lor such conditions and to prescribe the procedure to be adopted in applying for leave and holidays unless the quantum of leave and the quantum of holidays are also intended to be pree cribed by the standing orders. Ou the broad construction of cl. 5, it becomes a eelfsuffici ent and reasonable provision. The sta.nrling orderB will provide for the leave to which the employeea are entitled and will prescribe the number of holi day8 which thtly will be ablo to enjoy. Having provided for the quantum of leave and holidays, the standing orders will also provide for the condi

tions in respeot of them, for the prooodure in appl ying for them and for the authority which may grant them. It is true that it is not easy to under stand why an application has to be made for holidays, but it may be that if there are sectional holi days, employees belonging to a particular section entitled to them may have to apply for them. Therefore, in our opinion, it cannot he said that the authorities \x>low have adopted an unreasonable construction of cl. 5 in the Soht>dule when they held that they wt>ro entitled to make the additional provisions in respect of leave and holidays whioh they have purported to make by adding cl. 7 in

paragraph 11 of the standing orders.

In this oonnection reference, may be made to the Model Standing Orders framed by the Central Government in 1946. Clause 9 of tho Model Orders provides that holidays with pay will be allowed as

. .

provided for in Chapter VI of the Factories Act, 1948, and other holidays in acaorda.noe with law contract, custom and usage. In fact, it is significant that paragraph 11 (l) of the draft-submitted by the appellant has also provided that holidays with pay will be allowed as provided for in the Faatories Act and other holidays in accordance with law and con, tract. If this provision is legitimately included in the Standing Orders and that too under clause 5 of the Schedule, it is difficult to understand why a more specific provision cannot be made under the said c1ausc by clearly stating the number of holidays to which the employees would be entitled and that is preci8ely what paragraph ll (7) purports to do.

Then cl. 10 of the Model Standini:; Orders provides for casual leave. It lays down that a workman may be granted casual leave of absence with or without pay not exceeding 10 days in the aggregate in a calend:u year. 'fhen it lays down further conditions in respect of the grant of the said casual leave. lt would be noticed that the quantum of casual leave to which the employee is entitled is thus specifically provided by. cl. 10 of the Model Standing Orders. It is perfectly true that if clause Ii of the Schedule is read in tho narrow sense for which Mr. Narayanaswamy contends, cl.

10 of the Model Standing Orders would be invalid and from that point of view the existence of clause 10 in the Model Standing Orders cannot be of any assistance in interpreting cl. 5 of the Schedule.

But if clause 5 is construed in the broad sense for which Mr. Ramamurtbi contends, it would follow that clause 10 of the Model Standing Orders is consistent with the aim and object of the Scht>dule and that, incidentally, may support the agreement for the broad construction.

That is about all.

In regard to the argument based on the scope of the 10 clauses in the Schedule, it is certainly

1g62

Th1c.n.in Cd.UL

R.ll'. , ...

Gl1}1714r•ga41'of J.

tHJ - - ~"· .. ,.

710 SUPREME OOUHT REPORTS [1962) SUPP.

not correct to say that the scope of the Schedule is intended to be verv narrow. Take for instance, clause 8 which deafa with the termination of employment or clause 9 which deals with the suspension or dismissal for misconduct, and acts or omissions which constitute misconduct. TheAe are mattem of general importance and it is conceded that all relevant and material provisions in respect of these matters have to be included in the Stand

ing Orders. Therefore, it would not he inconsis tant with the scheme of the Schedule if we were to hold that the subst'lntive provisions for the grant

ing of leave and holidays along with the conditions in respect of them have to be made by the Standing Orders under cl. 5 of the schrdule.

It would be recalled that s. I 0 of the Act provides for the duration of the standing orders and if any l!tanding orders are found by experi

ence to be unrnasonable or inconvenient either by the employer, or the employees, 'l.n application can

be mado for the modification of the said standing orders after tho ">xpiration of six months from the tlate on which they came into operation. Therefor!'. there would lw no hardship in requiring the stand

ing orders to inclucli> a proviion as to leave and holidays. The provisions made in that behalf can

bA modified after followinp; the procedure pres cribed by R. IO It is not disputed that the claim for lea.ve and holidays can become the subject

matter of an industrial dispute and if such a dispute is referred for adjudic11.tion to an Industri.'.l Tribunal, the Tribunal can fix the qu&n

tum of holidays and leave. What the Tribunal can do on such reference is now intended to be achieved by the Standing Orders themselves in r<'B

pect of Industrial establishments to which the. Act

appli~. We have noticed th:i.tthe Certifying Offioor

as woll as tho appellate authority are, in subs tance, industrial authorities and if they arc given power to make provision for leave and holidays 1'11

they undoubtedly are given power to provide for termination of employment and suspension or dis missal for misconduct, there is nothing inconsistent with the spirit of the Schedule or with the object of the Act. Therefore, we are not satisfied that the authorities below were in error in holding that it was competent to them to make the additional provision in the Standing Orders as prescribed by paragraph 11 (7).

In the result, the appenl fails and is dismissed.

No order as to costs.

Appeal dismisseJl.

STATE OF BOMBAY

UMARSAHEB BURANSAHEB INAMDA

(S. K. DAS, K. SUBBA RAo and RAGHUBAR

DAYAL, JJ.)

Criminal Procedure Code-Offences commitl.ed in purBttance of Criminal conspiracy-One trial, if ptrmislible-Defecl in framing the charge, if curable-Code f Criminal Prowlurt

1898 (Act V of 1898), ss.222 (2), 235, 537, The respondents were charged and tried at the same trial with the offences of Criminal conspiracy and breach of trust committed in pursuance thereof during a period of more than one year.

The question arising for decision was whether, in the framing of the charge, contravention or the provisions of sub-s.(2) of s.222 which allowed a combined charge with respect to the amount embezzled within a period of one year, vitiated the triaJ.

Held, that the defect in the charge did not lead to any prrjudice t> the accused and therefore did not vitiate the trial in view of the provisions of s. 537 of the Code of Criminal Procedure.

When ail the offences committed in pursuance of a conspiracy are committed in course of the same transaction this can be tried together at one trial in view of s. 235(1) of 1he Code of CrimiI1al Procedure which provides 1h11t if hi one

tHI - f'lw B_.,, C_t

c. .. 1,1'.

B. K. P"""'

G 4i""'°"""4r J.

THE BAGALKOT CEMENT CO. LTD

ORS. (P. B. GAJENDRAGADKAR

K. N. WANCHOO, JJ.

cl. 5

s. 3

Section 4

cl. 5

cl. 5

cl. 5

Mines Act

Mines Act

section 6

clause 5

Schedule

19

cl. 5

s. 5

s. 6

Section 8

s. 9

Section 10

Section 10

Section 11

s. 12

Section 13

Section 13A

s. 13B

Section 14

s. 15

Section 15(3)

cl. 11

Clause 5

cl. 5

cl. 5

cl. 5

cl. 5

cl. 5

cl. 5

cl. 5

cl. 5

cl. 5

cl. 7

Clause 9

Chapter VI of the Factories Act, 1948

clause 5

cl. 10

cl. 10

cl.

10

clause 10

cl. 5

clause 5

clause 10

clause 8

clause 9

cl. 5

Criminal Procedure Code

s. 537

Code of Criminal Procedure

s. 235(1)


2 S.O.R.

SUPREME COURT REPORTS 711

they undoubtedly are given power to provide for termination of employment and suspension or dis missal for misconduct, there is nothing inconsistent with the spirit of the Schedule or with the object of the Act. Therefore, we are not satisfied that the authorities below were in error in holding that it was competent to them to make the additional provision in the Standing Orders as prescribed by paragraph 11 (7).

In the result, the appenl fails and is dismissed.

No order as to costs.

Appeal dismisseJl.

STATE OF BOMBAY

UMARSAHEB BURANSAHEB INAMDA

(S. K. DAS, K. SUBBA RAo and RAGHUBAR

DAYAL, JJ.)

Criminal Procedure Code-Offences commitl.ed in purBttance of Criminal conspiracy-One trial, if ptrmislible-Defecl in framing the charge, if curable-Code f Criminal Prowlurt

1898 (Act V of 1898), ss.222 (2), 235, 537, The respondents were charged and tried at the same trial with the offences of Criminal conspiracy and breach of trust committed in pursuance thereof during a period of more than one year.

The question arising for decision was whether, in the framing of the charge, contravention or the provisions of sub-s.(2) of s.222 which allowed a combined charge with respect to the amount embezzled within a period of one year, vitiated the triaJ.

Held, that the defect in the charge did not lead to any prrjudice t> the accused and therefore did not vitiate the trial in view of the provisions of s. 537 of the Code of Criminal Procedure.

When ail the offences committed in pursuance of a conspiracy are committed in course of the same transaction this can be tried together at one trial in view of s. 235(1) of 1he Code of CrimiI1al Procedure which provides 1h11t if hi one

tHI - f'lw B_.,, C_t

c. .. 1,1'.

B. K. P"""'

G 4i""'°"""4r J.

.i•• 81.,. •1 a.w._, ..

,, • .,,.JW ..... .-..1--

••Wu l!lll)al J.

712 Stn'REME COURT REPORTS (1962] SUPP.

series of ar.!S so connected togethrr a1 to form the same transaction, more offences than one 4fC co1nmittcd Uy the same person, he may be charged with and tried at one trial for evtry such offence.

Kadiri Kanhahammad '- The Stat• of Madl'tll, A. I. It.. 1960 S. C. 661, followod.

CRIMINAL ArPELLATE JURISDICTION : Crimi nal Appeal No. 237 of 1959.

Appeal from the judgment and order datwl February 10 and 11 of 1959, of the Bombay Hig':l Court in Criminal Appeal No. 1023/59 with Crinal Appeals Nos. 1048 and 1049 of 1958.

H. R. Khanna and P. D. Me1um, for the appellant.

S. 0. Patwardhan. J.B. Dadachanji, O.C. Mathur and Rauinder Narain, for the respondent No. 1.

1962. January 23. 'fhe Judgment of the Court was delivered by

RAOHVBAR DAYAL, J.-This appeal, on a ccrtifirate grantfd by the High Court of Bombay, rai;;; is the question whether the contravention of the provisions of eub-s. (2) ofs. 222 of the Code of Criminal Procedure, hereinafter called the Code, in the framing of the charge against an aecu.sed, vitiates the trial.

The facts leading to the appeal, in brief', are aa follows.

The respondents were charged and tried at tho tiamo trial of the offences under 1. 120B read with s. 406, I.P.C., and of an offence under s. 406 I. P. C., committed in pursuance of the criminal conspirncy t.hey had entered into. They were also tried, but acquitted of other offenciis oharged with.

They appealed against their conviction of the offence under s. 120-B read withs. 406, I.P.C., and of the offence under s. 406, I.P.C. The charge under

B. 406, I.P.C., was with respect to the commission of

Lreaoh of trust of a sum of Ra. 2,18,369/- between the period March 6, 1949, and June 30, 1950.

It was contended before the High Court that the charge framed contravened the provisions of sub-

2 S.C.R.

SUPREME COURT REPORTS 713

s. (2) of s. 222 of the Code which allowed a combined charge with respect to the amount embezzled within a period of a year. The High Court agreed with this contention and, holding the trial void, set aside the conviction of the respondents and acquitted them of those offences.

The High Court, however, maintained the order of acquittal 1s respect of the other offences.

The State of Bombay (now Maharashtra) has filed thi8 appeal against the order setting aside the conviction of the respondents.

It is not necessary for us to determine in this appeal the general question whether the contravention of the provisions of sub-s. (2) of s. 222 of thA Code, in the frnming of the chlirge, will always make the trial void, as, in this particular case, the offence under s. 406, I.P.C., charged against the respondents was said to have been committed in pursuance of a criminal conspiracy entered into by them. It will therefore suffice, for the purpose of this case, to consider whether such a defect in the charge vitiates the present trial.

Section 222 of the Code is one of the sections in Chapter XIX which deals with Form of Charges.

Sections 221, 222 and 223 deal with what should be mentioned in thP charge. The whole object of the charge is to inform both the prosecution, and the accused particularly, of the accusation the prosecution has to establis'ii and the accused has to meet.

So long as the accused knows fully what accusation he has to meet, any error in the narrat.ive of the rharge Ut!ed not be fatal to the trial. Sections 225, 23:?, 535 and 537 save the trial from being vitiated unless of course the accused has been prejudiced and failurtJ of justice has taken place.

Sections 233 to 239 deal with the joinder of charges, and t.bey speak not only of an aocnsed

'1ein~ charged with offences, but of such charges

State of Bor:nbay

•• Umarsalub Bt1ratuaheb lnamda

Jl.agJubar Doyal 1,,

81•'4 •f Bo.U41

•• u-1-.b .... ....,,,.1-d.

SUPREME OOURT REPORTS (1962] SUPP.

hcini; r tried separately or jointly. Section 233 states that for nvery distinct offence of which any person is accused, there sha.11 be a. separate cha.rge a.nci every such charge sha.11 be tried sepa.rately, except in the cases mflntioned in 88. 234, 235, 236 and 239.

It is clear tha.t the genera.I rule is that there should be a separate trial for eh distinct offence or which a person is accused.

It follows that each item of property of which an accused is alleged to havc committed breach of trust, constitutell one distinct offence and that, in general, it would be necessary to have as many trials as there be distinct

offencs of criminal breach of trust committ.ed by the accused. Buts. 222(2) provides that when the aooused is charged with criminal breach of trust, the charge may be with respect to the grOBB sum embezzled within a period of one year and that the charged Ro framed shall be doemed to be a charge of one offonoo within the meaning of s. ;/:14.

The charge framed in the prosent case was with reRpect to the groBB sum cm hczzled within a period of more than twelve months, the pPriod bl>ing between March fi, 1949 and June :10, 1950.

The charge therefore was in contravention of the provisions of

A. 222(2).

This defect in the charge, however, did not lead to 1my prejudice to the accuse<l in the trial and therofore did not vitiate tho trial, in view of the provisions of s. !i3i of the Code.

'l'ho charge could have been split up into two charges, one with respect to the offence of criminal

breach of trust comm itied with respect to the a.mount cmbl'zzlcd bet ween March fi, l!H!l and March 5, 1950 and the other with respect to the a.mount embezzled between March fl, 1!150 a.nd , June :lO 1950. The two offences of criminal breach of trust could have been tried toget.her in thr. present C:\Se, as the offences were said to have boon committed in pursuance of the criminal conspiracy entered into by the accused.

All the oft'eno611

2 S.C~R.

SUPREME COURT REp0RTS 715

committed in pursuance of the conspiracy are committed in the course of the same transaction and therefore can he tried together at one trial, in view of sub-s. ( 1 \of s. 235 of the Code which pro vides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence, It is therefore clear that no prejudice was caused to the accused by the defect

in the charge.

A similar view has been taken by this Court in Kadiri Kunhahammad v. The State of Madras(').

We may further point out that the High Court should not have expressed its opinion or passed any order with respect to the acquittal of the respondents for the other offences when the order of acquittal was not before it for consideration and when it had held the entire trial to be void on acco11nt of the contravention of the provisions of sub-a. (2) of s. 222.

We therefore hold that the trial of the respondents was legal and therefore allow the appeal and set aside the order of the High Court.

Their appeal airainst their conviction has not bet>n heard on merits and therefore we remand the case to the High Court for further hearing aocordinll' to law.

(1) A.I.R. 1960 S.C. 661 .

State of Bombay

Umarsaheb Buran.saheb Inamda

Raghuhar Dayal J.

STATE OF BOMBAY

UMARSAHEB BURANSAHEB INAMDA

S. K. DAS

K. SUBBA RAo

DAYAL, JJ.

Criminal Procedure Code

s. 537

Code of Criminal Procedure

s. 235(1)

S. 0

Code of Criminal Procedure

s. 406

I.P.C

s. 406

s. 120

I.P.C

s. 406

I.P.C

I.P.C

s. 222

s. 222

s. 406

I.P.C

Section 222

Sections 221, 222 and 223

Sections 225, 23

Sections 233 to 239

Section 233

s. 235

s. 222


SUPREME COURT REPORTS [1962] SUPP.

THE IN'CO!IIE TAX OI<'l<'ICER. MADRAS

S. K. HABIBULLAH, MADRAS

(S. K. DAs, M. HmAYATULT, AH a.nd J.C. SuAH, JJ.)

Income Tax-Aaaeument of firm complered prior to April 1, 1952 -P<ruw lo rtctify partner'.• asaeaamenl-lnrlividual and firm distinct enliliM -Mi.talce diacovererl in firm"' wiaeuni.nt.-

Parfners if can be ma4' liable -Inoorne Ta.i: Art, 1922 ( 11 of 1922), a. 35, els. I, 5.

M was a partner in two firms registered under the Indian Income Tax Act.

He submitted returru for assessment of lnc>me Tax for the years 1916-47 and 47-18 with regard to both the firms showing losses. The assessment of one of the firm for the year 1946-47 antl 47·48 was completed on 31. 10.50

and of the other for the year 1947 48 on :lO 6.51 whcrtby the los>e1 calcul•ted were less tha1 claimed by M before the Income Titx Officrr. On receipt of intimation of the orden passed in the asetrnents of the t No finru the Jnl.01nc Tax Officor issued on May +, 1953, notice to M to show cause why the assessment for the year 1946-47 and 47 .. 13 should not be rectified under s. 35 of the Act. M replied that he had no oh_jectinn if the ao:sessmcnt was cornplr:td according to law. On 27.3 .. i4 the Income-tax Offtcer revised the a1scssmt-nt in rtsper.t of the t\\'O yearo; after taking into account the share:: of the loses as comput<'d in the assessmrnt of the two firms. r.r rlieil on 17.4. j4 and his son H applied to the Con1n1issi':'.n('r of Income Tax for rt'vi1iutt of the orders. 'fhe Co1nn1hsinner held that s. 3'.i was properly invoked fer rectification of the as..o; essment. "fhe }Jigh Co-Jrt of Madras on a petition 1noved hy 11 ordered that a writ of certiorari to is!ne quash in!{ the ordtr. 'fhr Conunissio 1cr of Inco1nel tX came up in appc•I.

f/r/d, thats. 35 (1) of the Income T•< Acl empower< the lnc•>n1e Tax Authorities to rectify mi!t:t1'e:; apparent fro1n the record of crrtain ordcn pasd hy the1n.

But if the la\\' docs not authnri!\C the lnco1ne Tax Officer to rtctify the

assessn1~11t, assent could not validate what \\'as uuauthori..ed

lff/,[, f11rther. that for the purpose of assessment an individua1 and a firn1 art' distinct eutitits; and even if an indhi<lual is a partner of a firm, a ndstakt> disco\'crcd because of somethingcontainrd in the assessment of tht: fi.r111 i~ no.t !1 mistake apparrnt fron1 the record of assess1ncnt ol the 1nd1v1 dual partner.

Held, also, that the Legislature has given to cl. (5) of s. 35 which was incon:iorated with effect from April I, 1952, a partial retrospective operation .. The provision.enacted by

cl. (5) is not procedural in characer, it affects ve<ted rights of the assessre. Therefore in the absence of compelling reasons the court would not be justified in giving a greater retrospectivity to the provision than is warranted by the plain words used by the Legislature. Clause (5) of s. 35 docs not purport to amend cl. (I) of the same section. It conftrs additional power of rectification upon the Income Tax Authorities; and that power cannot be exercised in respect of a<Sessmont of firm which have been completed before the date on which the power was invested.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 557 and 558 of 1960.

Appeals from the judgment and order dated April 10, 1957, of the Madras High Court in W.P.

No. 952 of 1955.

K. N. RajagopalSastri and D. Gupt, a, for the appellants.

R. Thiagarajan, for the respondent.

1962. January 24. The Judgment of the Court was delivered by

SHAH, J.-One S. K. Mohideen-hereinafter referred to as the assessee-was a partner in two firms-Messrs. Dinshaw and Co. and Messrs. Palaniappa Chettiar and Co. The firms were registered under the Indian Income T3x Act. The assessee submitted returns of his income and incorporated therein the estimated share of his losses in the two firms at Rs .. .20,000/- and Rs. 10,000/-, for the assessment year 1946-47 and at Rs. nil and Rs. 12,436/- for the assessmel)t year 1947-48. The Income-tax Officer, V. Circle, Madras completed the assessment for the two years on February 20, 1950 after adopting the estimates furnished by the assessee, but he made a note that the lo11S0s accepted were subject to revision on ascertainment of correct particulars.

The assessment of Messrs. Dinshaw & Co. for the years 1946-47 and 1947-48 was completed on

Tire /ru:omelax Offi<tr, M adNs

S. K, Halibvllo,

MadraJ

Sluih J.

TM llllonvtu Ofjiw, M.drcs

B. IC. Hui!M/I_,,,

M1.Jr1s

11/Wi J.

718 SUPREME OOURT REPORTS [1962] SUl>P.

October 31, 1950 by tbe Income-tax Officer II Circle,

Madra.s and the proportionate share of the aSBessee

for the loBBcs was computed for the two years at Rs. 15,839/- a.nd Rs. 1,046/- respectively. Asseesmcnt of Messrs. Pa.lania.ppa. Chettiar & Co. for 1947-48 was completed by the Income-t.&x Officer, Special Circle on June 30, 1951 a.nd the share of the a.BBessce in the 1068 suffered by that firm wa.s computed at Rs. 2,009/-. On receipt of intimation.. of the orders p8!11ffld in the a.sseBBment of the two firms, the Income-tax Officer, V Circle, Madras

issued on May 4, .1953 notices to show ca.use why the assessments of the a.sse8800, for the years 1946- 4 7 a.nd 194 7 -48 ehould not be rectified under s. 35 of the Income-tax Act. On March 24, 1954, the a.sseSBee wrote to the Income-tax Officer stating : "This is to inform you that I have no objection in completing the assessments of the previous years in accordance with law". On March 27, 1954, the Income-tax Officflr rovisd tho aB8088ment of the al!&e88Ce in rcspett of the two yea.re after ta.king into account the aha.re of the losses as computed in the 8.8808Sments of the two firms.

The a.saessee died on April 17, 1954 a.nd hia son S. K. Ha.bibullah-hcreinafter referred to as the respondent-applied to the Commissioner of Income-tax, Madrae praying for revision of the ordol'IJ.

The CommiBBioner held that s. 35 was properly invoked for rectification of the assessments a.nd rejected the applications. But the High Court of Judicature at Madras in petitions under Art. 226 of the Constitution filed by the respondent ordered that writs of cerliorari do iBBue quaehing the ordere of the Income-tax Officer, V Circle. The Commissioner of Incomflt.&X, Madre.a appeals to tbie Coart with oertifioate of fitnllBB granted by the High Court.

The plea 01 the CommiBBioner that the 8886 BSee having assented to the rectification, it was not

2 S.C.R.

SUPREME OOURT REPORTS 719

open to the respondent to challenge the authority of the Income-tax Officer, has no force.

By his letter dated March 24, 1954 the assessee merely informed the Income-tax Officer that he had no objection to rectification according to law.

But if the la.w did not authorise the Income-tax Officer to rectify the assessment, assent could not validate what was unauthorised.

Section 35( I) empowers the income-tax authorities to rectify mistakes ii, pparent from the record of certain orders passed by them. The clause (omitting parts not material) provides that the Incometax Officer may at any time within four years from the date of any assessment order passed by him, on his own motion rectify any mistake apparent from the record of the aAsessment.

The power of rectification may be exercised subject to two conditions : (I) that there is a mistake apparent from the record of the assessment, and (2) that the order of rectification is made within four years from the date of the assessment sought to be rectified. The mistake which may be rectified need not be in the order itself : it may be in any part of the record or proceeding of assessment of the assessee. But for the purpose of assessment an individual and a firm are distinct entities and even if an individual is a partner of the firm, a mistake discovered because of something contained in the assessment of the firm is not a mistake apparent from the record of assessment of the individual partner. In Kanumarlapaudi Lakshminarayana Chetty v. First Additional

Incorne-tax Officer, Nellore{') in dealing with the question whether the record of the assessment of the firm may be regarded as the record of the assessment of the individual partner, Subba Rao, C.J. speaking for the Court observed, and, in our Judgment, correctly :

"But it is said that section 35 of the Act even without the amendment would have

(I) [ 1956] 29 I. T. R. •19.

I96Z

The Income-tax OJfictr, Modros v.

S. K. Habibullah,

lJ.tathas

ShahJ,

J'81

T1t1 /ncorrtta Offictr, .. \J ctiras

v. . S. K. HabibulkJh,

Modra1

ShdJ.

720 SUPREME COURT REPORTS [1002] SUPP.

enabled the Income Tax authorities to reopen the assessment on the ground that there was a mistake apparent from tho record. Bat from t.hc record of final asseBBment, it is impol!llihle to say that there was a mistake apparent from the record, for tho a.ssossing authority accepted a certain figure as representing the share of the assessees in the firm and made u final assessment. The mistake is not in the record but by & sµbsequent &1seRBment of the firm it was discovered that the earlier assessment was wrong to the extent of tho assessees' share in the firm. It is not a mistake apparent from the record bnt a mistake discovered from the disposal of another oase". ·

Section 35(1) of the Income-Tax Act could not therefore be resorted to by the Income-tax authori ties for rectifioation of the assessments of the assessee, for there was no error apparent from the record of those assessments.

The Income.tax Officer, however, sought to rely upon s. 35(5) whih was incorporated bys. 19 of the Indian Income-tax (Amendment) Act, 1953 (25 of l!l53) with effect from April l, 1952. The clause which was incorporated i1 in the following terms:-

"(5) Where in respect of any completed aBSessment of a partner in a firm it is found on tho MSessment or reassessment of the firm or any reduction or enhancement made in the income of the firm under section 31, Section 33, Section 33A, Section 33B, Section 66 or Section 66A that the share of the partner in the profit or loss of the firm has not been inoludcd in tho assessem<'nt of the partner or, if inducli>d, is not corre<"t, tho inclusion of the share in the assessment or the c0rreotion thcreuf, a11 the case may lw, shall he de<"med to be a rectification of a. miat.a.ke apparent from the record within the

meaning of this Section, and the provisions of sub-section (I) shall apply thereto accordingly, the period of four years referred to in that sub-section being computed from the date of the final order passed in the case of the firm,"

Clause (5) was one of a group of clauses, added by Act 25 of 1953, dealing with .rectification of assessments. Clause (5) dealt with inclusion of income or correction of the income of a partner in a firm consequent upon assessment or reassessment of the firm of which he was a partner. Clause (6) dealt with recomputation of total income of an assessee in consequence of modifications made in the Excess Profits Tax or the Business Profits Tax payable by an assessee subsequent to an assessment made under the Indian Income-tax Act.

Clause (7) dealt with rectification consequent upon modification of orders under s. 23A of the Income-tax Act cl.(8), which was enacted (in the form in which it now exists) by the Indian Finance Act, 1956, dealt with the rectifiaation consequent upon proceedings in reassessment under s. 34 (1) (al. or s. 31 (IA).

The Legislature by a fiction in all these classes of cases regarded the inclusion, correction, computation or reoomputation as rectification of a mistake apparent from the record and prescribed special terminii recokoning for the period of four years within which the rectification must be made, Under. cl. ( 5) with which alone we are directly concerned in these appeals, the inclusion of the share in the assessment of the partners or the correction thereof is deemed to be a mistake apparent from the record within the meaning of the section, and sub-s. (1) applies thereto accordingly-the period of four years being computed from the date of the final order passed in the case of the firm.

The discrepancy diiiclosd as a result of assessment. or reassessment of a firm between the share of a partner included in the individual assessment nf that par.tner and his share disclosed in tho

The lnconirtax Officer, }J.adrus

v, S. K. Hal:iibultah,

Madrcs

Tlw lomttox Offkt.r, Madras

S. K. H JbibuUah,

Ma./rar

BJuJi J.

722 SUPREME COURT REPORTS rl9621 St.:PP.

aRsessment of the firm was not an nror npparPnt from the record within the meaning of~. 3511) and the Legislature t-nacted a fiction making t}1p inclusion of thP share in the aRs•ssment or ccrnc tion th<reof such a mistake. If the inclusicn 0f the sh11re or the correction of the assefifimnt were an error apparent from the record and falling um'er

cl. (I) ofs. 35, the <'nactment of cl. (5) was plain ly unne()('sary. 'Vhen the Legislature has deliberat<>ly enacted a fiction of the nature set out in

cl. (5), e are unable to agr<'e with the contention raised hv counsel for the Revenue that the enactment o(thP. fiction was r:r-aburuktnti r, aute!n. R{lcti. fication 1.f the nature contemplated by cl. (/i) could not ha v" been effected under cl. (I), and to remove

tho lacuna the legislature declared that what waH not a mistake i-hould for the purpose of rectifica. tion of ase"Rill<'llt bo regarded a8 a mistake apparent from tlw record and provided a terminus for t.be C<'mputation of tho period of four years.

Th~ ,1Hsessments nf tho two firms Wl're com. pleted u long time b•fore April I, l!Jii::!. It is also commo11 ground that the indhidual assessments of the asscssce were not prO\isional but final aAAeRsments under s. :!3 (:{) of the Inm•me-tax Act.

The question whi"h falls to be considered is whether r<'lying upon cl. (5) of H. :15 an Incomotax Officer may rectify tho aso; essment of a person who is a partner of a firm when the assessment of the firm is C<mpleted before tht> 1st of April, I!Jii2.

The Legislature has given to cl. (;)) a partial r••trosptctivo operation.

The µrovision .. nacted by cl. (5) is not procedural in charactcr : it affects vested rihts of the Rllsessee. Therefore in the ahscmec of compelling reasons the court would not be ju-itilhd in giving a greater retros1l!'clivity to the prnvi"ion than is warranted by the plm words us<'cl by the Legislature.

As observed by

the Judicial Committee of the Privy Council in Income-tax Commissioner v. Khemchand Ramdas(') :

" x x x when once a final assessment is arrived at, it cannot, in their Lordships' opinion, be reopened except in the circumtances detailed in sections 34 and 35 of the Act x x x and within the time limited by those section." The orders of assessment are, eubject to the provisions relating to appeals, revisions, reassessment and rectification, finitl : it is not open to the Income-tax Officer to reClpen the assessment because he thinks fit to do so.

The provisions relating to assessments and rectification or reopening thereof are exhaustive, and may not be extended by analogies. The right to rectify an assessment may therefore be exercised in strict compliance with conditions prescribed by tbe statute in that behalf.

Before April I, 1952, rectification of assessment of an individual ori the disclosure of errors consequent upon assessment of the firm of which be is a partner was not for reasons already stated permissible under cl. ( 1) of s. 35. This power was conferred for the first time by cl. (5) as from April 1, 1952, and by the express words of the clause arose from the assessment of the firm. If by the law prevailing at the time when the assessment of the firm was mad.e, no such result as is contemplated by the new clause (5) arose, to givi> a larger retrospective operation than is dirccted, is to ascribe to the Legislature an intention dift'erent from the one expressed, and to make a larg<'r inroad upon the finality of that assessment than is permitted by the Legislature. Section 35(5) does not purport to amend cl. ( 1) ; that clause is left untouched by the amending statute.

It~ application, by fiction, is extended to other clauses of cases by declaring what in truth are not mistakes, as mistakes.

Clause (5), therefore, confers an

(I) (1938) L. R. 65 I. A. 236, 248.

Tile Income-tax Offu:ef', Mcdt-u

S. K. Habibullah,

Madru

&ah J.

lf62

Tiu lncolfl#-T ax 0 ffio.r, MaJ•as

8. K. Habilnd/1111,

J1 ttd, as

Shalo J.

724 SUPllEME COURT REPORTS (1962] SUPP.

additional power of rectification upon the Income tax authorities and "in the absence of compelling reasonR we will not bt1 justified in upholding the exercise of the power to assessments of firms which have been completed before the date on which the power was invested.

Some assistanco may be derived from the phraseolt>gy used by the legislature in cl. (fil whi<>h was enacted simultaneously with. cl. (5). That chuso provides, omitting parts which ar<' not material :

''Where the exoe@S profits t&x or the busi ness profits tax payable by an asst>BBce has bocn modified x x x x or where any excess profits tax or busineBB profit tall" has been assessed aft1>r the comple tion of the corresponding 888essmt>nt for incomo-tax (whether before or after the commenC('ment of th11 Indian Income-tax (Amendment) Aet, 1953), and in consequence thereof it is neceasary to recompute the total income of the assesSl'e chargeable to income-tax, such rccomputation shall be deemed to be a recti fication of a mistake apparent from the r1>cord within the meaning of this sectinn, x x x".

Manifestly, by the expreBB provisions contained in

cl. (6) tho fiction applies whether the assessment is completed before or after the commencement of the Indian Income-tax (Amendment) Act, 1953. Even though cl. (6) ia alo made retrospectively operative as from April l, 1952, the legislature has authorised the revenue authorities after April I, H!'i2 to pass

an order recomputing the total income of the assessee whether or not the asseasm,•nt was completod before the commencement of the Indian

Inco•oe tax (Amendmcnti Act, 1953. It is true that by the Explanation to that olaue. for the purpo8ed of this sub-soction, where the assessee is

a firm, the provisions of sub-s. (5) shall also apply as they apply to the rectification of the assessment of the partners of the firm, but thereby an intention to give a larger retrospective operation to cl. ( 5 ), in so far as it deals with rectification of assessments of partners consequential upon the completion of the assessment of the firm in which thay are partners, is not indicated. When the Legislature under

cl. (6) of~. 35 expressly authorised rectification in the circumstances mentioned therein even if the

assssment has been completed before the Indian Income-tax (Amendment) Act, 1953, and it made no such provision in cl. ( 5), it woald be reasonable to infer that the Legislature did not intend to grant to the revenue authorities a power to rectify assessments falling within cl. (5) where the firm's assessment was completed before April 1, 1952.

In our view, it was rightly held in Kandan Lal

v. Income-tax Officer(') following Kanumarlapudi Lakshminarayana Ghetty v. First Additional Income-

Tax Officer, Nellore (2) that cl.

(5) of s. 35 of the Indian Income-tax Act, which was enacted by the Income Tax (Amendment) Act, 1953, was not declaratory of pre-existing law, and as it clearly affected vested rights which had accrued to the assessee, must be deemed to have come into force from April 1, 1952. It had no greater retrospective effect than was expressly granted to it. The power to rectify assessment of a partner consequent upon the assessment of the firm of which he is a partner by including or

"orrecting his share of profit or los c0n therefore be exercised only in case of assessment of the firm made on or after April I, 1952. The Income-tax Officer has no jurisdiction under cl. (5) of s. 35 of the Act to rectify tho assessment of a partner of a firm consequent upon the assessment or

(I) ll95'l] 37 I.T.R. 3:li.

(2) li956] 291. T. R. 419.

191!

Tire lru:ome•tax Officer, Mat!ias

S. K. Habibultah,

Madras

Shah J.

19112 n. r ...... i.x Ofiur, JIHros

. ' S. Ir. Huihll.V., Jlw.,

SWJ.

726 SUPREME COU!t'f REPOI~T~ [ l ·• 2j SU Pf.

reaseessment of tho firm disclosing an error made before April I, 19.5~.

The appeals therefore fail and a.re dismissed with costs. One hearing fee.

Appeals dismissed.

KANBI KARSAN JADAV v.

STATE OF GUJARAT

(J. L. KAPUR and R.to.GIIUBAR DAYAL, , JJ.) Criminal Trial-Et-idenct of anrot'-r-Corroioration on mat.rial partiou/ara-Other circum•tanct• to be con•Utrtd- CMniical !Czaminer'• evidenct, if can bt taken into Conoi<kration tn duidt idtntily of haira-lndian Penal Code, 1860 (45 of 1860), 302, 201-IAdia EWknct Act, 1872 (1of1872), a. 45.

The appellant and two othcn were convicted for murder undtr "· 302 and 201 of the Indian Penal Code.

The High Court acc, pted the testimony of the appro'''r as being a reliable piece of evidence. It relieJ upon the <liscovery of the dtad body of the deceased at the instance uf t lte appellant and of hlord sralned buttons also at his instance and attached importanc(':.to tile scarf recovered from the pit \\here the dead body was alkgcJ to have been first buried and "hid1 had hair> both of the appellant as well as the deceased.

The apprll.mt contended that the evidence of the approver, even 1h.Jugh it had been accepted as true, was not corrohorated in 1naterial particulan connecting the appellant with the ofJCncc.

None of the recoveries arc corroborative of the statement of the approver to the extent of connecting the appcllanl with the offence committed ; on the other hand they are somewhat contradictory of the statement. fhc evidence of the CheJnical Examiner was not sufficient to prove that hairs on the scraf were of the appellant or of the deceased because the Chemical Examiner was no expert on this matter and his evidence WM not admissible under s. 45 of the Evidence ,\ct and, at the most, according to the Chemical Examiner the hairs resembled those of the appellant.

Held, that where the evidence of the approver is held not to be very helpful to the prosecution other circumstance>

S. K. HABIBULLAH, MADRAS

S. K. DAs

s. 35

s. 3

s. 35

s. 35

s. 35

Income-tax Act

s. 35

Art. 226

Section 35( I)

section 35

Section 35(1)

Income-Tax Act

s. 35(5)

section 31

Section 33

Section 33A

Section 33B

Section 66

Section 66A

Income-tax Act

s. 23A

Income-tax Act

Indian Finance Act, 1956

s. 34

s. 31

sections 34 and 35

s. 35

Section 35(5)

(1938) L. R. 65 I. A. 236

Amendmcnti Act, 1953

s. 35

Income-tax Act

s. 35

Penal Code, 1860

IAdia EWknct Act, 1872

Indian Penal Code

s. 45