TATA ENGINEERING & LOCOMOTIVE CO. LIMITED A

DIE ASSISTANT COMMISSIONER OF COMMERCIAL

TAXES & ANOTifER

March 2, 1970 B

[J. C. SHAH, K. S. HEGDE, A. N. GROVER, A. N. RAY AND

I. D. DUA, JJ.]

Central Sales Tax A.ct, 1956-Trucks maaufactured In Biliar said from producer's stockyards in other States-Thoug/J agreement u•ith dealers envisaged fir1n advance orders, actual sales by allocat(o11 froni stockyards- /I inter-state sa/es--Wltetlzer S.T.O. bound to examine each transaction or C declde on general basis of silnilar transactions.

The appellant carried on the business of manufacturing trucks in Jamshedpur in the State of Bihar. It did not have any stockyard in the State but maintained such stockyards in different States for the purpose cl{ effective distribution of vehicles among its dealers. A form of agreement between the appellant and its dealers provided that• the company agreed to sell and supply from its Works at Jamshedpur or from its stockyanls D outside the State vehicles to the dealer which would be allotted to the dealer by the Company at its discretion. In another provision it was laid down that by the 15th of each month the dealer shall mail to the company his •latements containing firm orders for purchases to be effected during the next succeeding month.

In the course of its assessment to sale< tax for the years 1964-65 and 1965-66. the appellant claimed that as the demand for the vehicles far ex• E ceeded the production, no firm orders as envisaged in the dealership agree. ment had in fact been received. The actual procedure followed by the appellant was that the sales office of the app<:!ant in Bombay, after taking into account the production schedule nnd requirements in Jiffcrent States, instructed the factory to transfer stocks o'f vehicles to the stockyards in the various States by Stock Transfer Authorisations in which the model of the chassis and the number of units were mentioned. The stocks availabJe F in the stockyards were distributed from time to time to dealers taking care to ensure that the over-an supply to the dealers in any State \vas in propor .. lion to the number of orders pending with the dealer on May I, 1963 or on the basis of the off-take by the dealer during the year ending Septemher 30, 1961 as required by the Commercial Vehicl"' (Di; tribution and Sale) Control Order, 1963.

For this purpose allotments were made to the dealer for each month by an allocation Jetter by the sale• office. It wa; claimed that the trans'fer of the vehicles from the factory to the various G stockyards was a continuous process and was not related to the require¥ ment of any particular customer; that there tvas no connection between the Stock Transfer Authorisation and the allocation Jetter. It was the stock .. yard inchargc \.\'ho appropriated the rt:'quired number of vehicles to the contract of sale out of the stocks available with him. This was done after a delivery order had been addressed by the sales office at Bomll'ay to the ; tockyard incharge for delivery of stated number of vehicles of specified model to a particular dealer. Till such appropriation of vehicles.. it was 11

a1ays open to the company to allot anv vehiCfe t<' any purchaser or to tran!\fer the vehicles from the !itockynrd in one State to a stockyaJd in an other State.

However, the respondent Assistant Commissioner of Commercial Taxes levied tax under the Central sales Tax Act on all the vehicles which moved to the stockyards in the States other than Bihar from Jamshedpur. The appellant challenged the assessment orders in petitions filed under Article 226 but these were dismissed by the High Court. On appeal to this Court,

HELD : The order of the High Court and that df the Assistant Commissioner must be set aside.

(i) The explanation of the procedure followed by the appellant which prima facie seemed to be business-like and plausible, together with the proved absence of any firm -0rders, indicated that the allocation letters and the statements furnished by the dealers did not by themselves bring about transactions of sale within the meaning of Section 2(g) of the Central Sales Tax Act. It appeared from the material on record that generally the oompletion of the sales to the dealers did no: take place at Jamshedpur and the final steps in the matter of such completion were taken at the stockyards. E\(en on the assumption that anv orders had been. received by the appellant they could not be regarded as .anything but mere offers in view of the specific terms in the dealership agreement according to which it was open to the appellant to supply or not to supply the dealer with any vehicle in response to such orders.

There were, therefore, no firm con tracts which occasioned the movement df vehicles out of the State of Bihar. [870 D-871 Bl

(ii) Another serious infirmity in the order of the Assistant Commis-. sioner was that instead of looking into each transaction in order to find out whether a completed contract df sale had taken place which could be brought to tax only if tb.e movement of vehicles from Jamshedpur had been occasioned under a convenant or incident of that contract, the Assistant Commissioner made bis order on. the general basis that all transactions were of a: similar nature. The Assistant Commissioner was bound to examine each individUal transaction and then decide whether it constituted an Inter-State 'sale exigible to tax under tbe provisions of the Act.

[8781 CJ

Tata Iron & Steel Co. Ltd. Bombay v. S. C. Sarkar & Ors. [1961] 1 S.C.R. 379, Ben Gann Nilgiri Plantations Co. Cooncor & OtJ1ers v.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2105 and 2106 of 1969.

Appeals from the judgment and order dated July l, 1969 of the Patna High Court in Civil Writ Jurisdiction Cases Nos. 993 of 1968 and 72 of.1969.

'N. A. Palkhivala, Sant P. Mehta, P. C. Bhartari, and B.

Datta, for the appellant (in both the appeals).

Lal Narain Sinha, Advocate-General, State Sarwar A Ii and U. P. Singh, for the respondents appeals).

The Judgment o, f the Court was delivered by

of Bihar, S. (in . both the

Grover, J; The only P<>int for detennination in these appeals. by certificate is whether certain sales of motor vehicles manufac-

864 SUPJ.BWB COUJ.T J.BPOl.TS [1970] 3 s.c.R..

A tured by the appellant were inter-atate.sales and were liablo to t, ax

under the provisions of the Central Sales Tax Act 1956, hCrelllaftcr called "the Act".

The appcllant carries on the buainels of JD!Ulufacturing inter alia Tata M~ Benz trucks and bu.sal, chassis, i:rarts and accessories thercot at Jams!w1pur in the State of • These B are sokho the Government of India, the State Transport, Corporations, commercial and induatrial undertalcingJ and other persons.

These appeals relate to the •88C!ISmenta made by the Auistant Commissioner of 'Commercial Taxes, hereinafter called the "Alaiatant Commissioner", with rcprd to the assessment periods April 1, 1964 to March 31, 1965 and April I, 1965 to March 31, c

1966. As the points are cOmm.oo to botR the appeals we shall deal with the facts relating to the second period, namely, April l, 1965 to Match 31, 1966.

The appellant did not maintain any stockyard in the State of Bihar but in dilfercnt States stockyards were &eing maintained since Decembec 1964. This, it is stated, was done for the pur- D pose of more ellective distributi!'lt of the vehicles particularly among the network of dealers. These stockyards were rated

by the appellant's own personnel and the sales of the vchiclos, it is claimed, were elfectCd to the dealers as well as to the other u5crs in the different States from the stockyards. The dispute relates

only to the assessment made in respect of the vehicles which moved 1 from the manufacturing plant ill J amshedpur to the stockyards in diflerent States in the country. The sales tax was duly paid in accordance with the respective State laws on the sales ellected from the stockyards there.

The As.<i<tant Commissionei: has levied tax under the Act on all the vehiclei which moved to the stockyards in States other tJian f Bihar from J ams!w1pur. Tax amounting to Its. 173 la1tha was levied on April 1, 1966 for the period April 1, 1965 to September 30, 1965. The appellant moved the P'atna High Court under Art. 226 of the Constitution in April 1966 challenging the order of asSessment but petition was dismissed in llmini in April

1966. This Court was thereafter approached against the order G of the High Coun and special leave to appeal was granted.

The. appeal was finally allowed in February 1967 and the High Court was directed to entertain and decide the. petition on merits. In November 1967 an agreed order was made by which the previous order of assessment was set aside and fresh assessment was to be made in accordance with law. On January 24, 1968 the appel- H !ant addressed a detailed communication giving the entire procedure which was bting followed in the matter of sales of motor vehicles sent to dilfercni Stales from the works at Jariishedpur.

It appears that the Assistant Commissioner paid a personal visit to the head office of the appellant at Bombay and relevant records were shown to him there or later on according to his requisitions.

On March 13, 1968 he made e assessment order in which he created a demand for Rs. 2,79,13,599.32 by way of sales tax under the provisions of the Act on the vehicles which had moved from J amshedpur to the. stockyards in the various States and had been disposed of from there.

The appellant filed petitions under Art. 226 of the Constitution challenging the above order as also the assessment on similar lines for the period April 1, 1964 to March 31, 1965.

The petitions were dismissed by a division bench of the High Court.

The controversy throughout has. centered on the question whether the sales subjeeted to tax were of the nature which were covered by the provisions of the Act or whether those sales took place in the different States where the stockyards were situate and from where they were disposed of.

Sections 3 and 4 Qf the .Act may be read in this connection. ·

"3. A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase--

(a) occasions the movement of go11ds from one State to another; or

(b) is effected by a transfer of documents of title to the goods during their movement from one State to another.

Explanation I. ...................... .

Explanation II ..........•........•....•

"~. ( 1) Subject to the provisions contained in section 3; when a sale or purchase of goods is determined in accordance with sub-section (2) to take place inside a State such sale or purchase shall be deemed to have taken place. outside all other States. ·

( 2) A sale or purchase of. goods shall be deemed to take place inside a State if the goods are within the State-:-

(a r in the case of specific or ascertained goods, at .the time the contract of sale is made; and

(b) in the case of unascertained or future goods at the time of their appropriation to the contract of sale by the seller or by the buyer whether assent

of the other party is prior or subsequent to such appropriaiion.

El t. " xp ana ion, ..................... .

It is also necessary to refer to the definition of "sale" as given in s. 2(g). The substance of that definition is that sale means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration.

As observed in Tata Iron & Steel Co. Ltd. Bombay v. S. C. Sarkar &

Ors. ( 1 ) a transaction of sale is subject to tax under the Act on the completion of the sale.

A mere contract of sale is not a sale within the definition of "sale" in s. 2(g). A sale being transfer of property becomes taxable under s. 3 (a) "if the movement of goods from one State to another is under a covenant or incident of the contract of sale". In Ben Gorm N ilgiri Plantarions Co.

Cooncor & Others v; Sales Tax Officer, Special Circle, Ernakulam & Others('), the provisions of s. 5 of the Act came up for consideration and the principle settled by that decision would indisput ably be applicable to s. 3(a) of the Act.

It has been laid down that the sale in the course of export predicated connection between the sale and export, the two activities being so integrated that the connection between the two cannot be voluntarily interrupted without a breach of the contract or the compulsion arising from thernature of the transaction.

To occasion export there must exist such a bond between the contract of sale and the actual exportation that each link is inextricably connected with the one immediately preceding it.

The principle thus admits of no doubt, according to the decisions of this Court, that the sales to be exigible to tax under the Act must be shown to have occasioned the movement of the goods or articles from one State to another.

The movement must be the result of a covenant or incident of the con tract of sale.

The points which would require determination would be whether the transactions which have been subjected to tax were of sale within the definition of that expression contained ins. 2{g) and whether the movement of goods from Jamshedpur to the stockyards of the appellant in the different States was occasioned by any covenant or' incident of the contract of sale.

The procedure according to which dealings took place and supply of vehicles was made was outlined in a communication which was addres;-ed by the appellant to the Assistant Commissiop.er in February 1969.

PriorJo 1958 each dealer had to place every month what were caUed "firm orders" for the vehicles which the dealers wanted to purchase.

By 1958 Tata Mercedes Benz

(\) [1961] t S.C. R. 379:

D - E

vehicles are stated to have gained remarkable reputation for quality.

The demand fr exceeded th~ productio~ .. It was no longer necessary to restnct the ptoduct1on to any lumted demand or to depend on the number of firm orders for planning of production schedule.

Therefore about the year 1958 the appellant stopped insisting on the firm orders from the dealers.

It was asserted that the company's records did not contain any firm orders after 1958. It is unnecessary to mention certain circulars issued by the company prior to the promulgation in May 1963 by the Government of India of the Commercial Vehicles (Distribution and Sale) Control Order 1963 which was valid upto September

1967.

The Control Order provided for the general principles of distribution.

Pursuant to the Conlrol Order the appellant issued a circular dated June 14, 1963 asking the' dealers to submit the following statements at the end of each month instead of the weekly statements as submitted by them prior to the Control Order : (I) list of applications registered during the month; (2) list of retail sales during the month; (3) list of applications cancelled during the month and ( 4) stocks and sales report. The appellant explained that this was done to keep itselfinformed of the market movement and the sale prospects of the vehicles and to avoid any possibility of irregular allotment by the dealer. According to the appellant the extracts of the register kept by . the dealer, could not, under any circumstances, be equated to firm orders nor was there any relationship between the actual number of vehicles supplied and the informati<•n contained in the extracts.

A new form of dealership agreement (Ext, I) was introduced by the appellant after the promulgation of the Control Order.

Clause I (a) of this agreement provided that "the ompany agrees to sell and supply from its "works at Jamshedpur in the State of Bihar or from its-depots and stockyards outside the State of Bihar to the dealer" the vehicles which shall allotted to the dealer by the c.ompany at i\s discretion for resale in accordance with the provi-- s10ns of the agreement.

Clause 11 (b) is reproduced below :

"The dealer shall mail to the Company o~ the 15th of ech month, or so so that the Company will be in receipt thereof by the 20th of each month, his firm urder for purchases. to b.e effected d!lring the next succeeding month and his estimated requirements of the said vehicles for the two months following the next succeeding month, for the said vehicles.

Jn the communication which has been referred to before sent to' the Assistant Commissiner it had been emphasised that although the above clause regardmg the firm order was included in the

dalership agreement, in fact no finn orders were called for in view of the Control Order.

It was maintained that during the

relevant period sales were effected from the stockyards alone, the procedure adopted being as follows : The sales office of the appellant in Bombay, after taking into account the production schedule requirements of individual States, the Government directives and other relevant factors instructed the factory at Jamshedpur to transfer stocks of vehicles to the stockyards in the various States.

The instructions for transfer were given by the sales office by Stock Transfer Authorisation in which the model of the chassis and the number of units were mentioned. along with the name of stockyard to which the same were to be transferred. Pursuant to the Stock Transfer Authorisation the works prepared a Stock Transfer Memo which indicated the quantity of the vehicles to be transferred to the stockyard specified in the Memo. This memo was signed by the transport contractor appointed by the appellant for transportation of the vehicles to the stockyards.

On receipt of the vehicles at the stockyard any deficiency in or damage to the vehicles was noted by the stockyard incharge.

Unless the damage to the vehicles was set right they were not appropriated to any .contract of sale.

The stocks available in the stockyards were distributed from time to time to dealers takillg care to ensure that the overall supply to the dealers in any State would be in proportion to the number of orders pending with the dealer on May l, 1963 or on the basis of the off-take by the dealer during the year ending September 30, 1962 as required by the Control Order. For this purpose allotments were made to the dealer for each month by an allocation letter by the sales office.

It is claimed that the transfer of the vehicles from works to the various stockyards was a continuous process and was not related to the requirement of any particular customer whether a dealer or a corporation or a private individual.

These vehicles were transferred by way of stock to ihe stockyards or depots from where the transactions of sale were effected. It was pomted out that there was no connection between the Stock Transfer Authorisation and the allocation letter.

The vehicles were delivered to the dealers as and when they were available in the stockyards irrespective of whether or not allocation for the dealers had been made or notified to them.

There bad been many instances where the vehicles had been actually delivered from the stockyards prior to the issue of the allocation 1etter.

The vehicles delivered to the dealer from the stockyard were accounted for against the allocation over the period.

It was the stockyard incharge who appropriated the required number of vehicles to the contract of sale out of the stocks available with him and out dcwn the vehicle engine and chassis number in the •delivery challan.

This was done after a delivery order had been :addressed by the sales office at Bombay to the stockyard in-charge

for delivery of stated. number of vehcls of specifi~ model to a particular dealer.

Till .such appropr!ation of vhicles through specification of the engme and chassis numbers, 1t was always open to the company to allot any vehicle to any purchaser or to transfer the vehicles from the stockyard in one State to a stockyard in another State. ·

Now the Assistant Commissioner has not examined each transaction as indeed he ought to have done and has arrived at certain conclusions which appear to be wholly erroneous and are based on a complete misapprehension of the true position.

He has firstly treated the allocation or alloltment letters together with their confirmation as transactions of sale.

According to him once the availability of vehicles for allocat10n was determined for any particular month allocations were made to incliv1dual dealers and Stock Authorisation Memos were issued by the sales office at Bombay to the works at Jamshedpur.

The movement of vehicles from the works to the stockyards was the direct result of the allocations so made.

The conclusion on this pomt was m these words:-

"It was therefore clear that generally the movement of vehicles from works to the stockyards was not completely disassociated from the allocation made to the dealers.

Consequently it would (7) not be said that the movement of vehicles from the works at Jamshedpur was completely unrelated to contract of sale".

It was recognised that in some cases vehicles had been delivered to some dealers in advance against the allocation made for the following months.

The appellant further showed and this was accepted that 15 vehicles from the Delhi stockyard wec transferred to Karna! stockyard. After finding that the allocation letters together with their confirmation constituted transactions of sale the Assistant Commissioner referred to the dealership agreement and stated that on placing of the demand by the daler a complete contract came into existence.

He proceeded to regard the statements which were required to be furnished to the dealers in accordance with the letter dated June 14, 1963 addressed by the appellant to them as firm orders within the meaning of the relevant clause in the dealership agreement.

The final conclusion of the Assistant Commissioner was that as contemplated by clause 11 (b) of the dealership agreement every one of the dealers placed his demand or orders for supply which amounted to a contract for the sale of the vehicles deman.ded and clause 12 of the dealership agreement under which allocations were made by the appellant to the dealers amounted to fulfilment of orders. The appellant had throughout .maintained that firm orders were no longer placed with it by the dealers after 1958. .It has not been found or shown that

any such orders were i.n existence relating to the transactions in dispute.

Thus on the question that transactions of sale took place the decision of the Assistant Commissioner rested mainly on the al.ocation letters and the statements furnished by the dealers as requireJ by the circular of June 14, 1963.

It is somewhat unfortunate that the High Court fell into the same error as the Assistant Cummissioner as it accepted his findings on the ground that they were on questions of fact and could not be re-examined by the High Court.

It was said that the terms and covenants of the contract made it clear that since the vehi- . des were despathed in pursuance of orders irrespective of appropriation or specific vehicles being sent to specific dealers the despatch and supply to the dealers must of necessity be regarded d:> mcecrral part of a single transaction.

It is difficult to see what . contrnits the High Court had in mind because none have been shown to u.1 even by the learned Advocate General for the State.

He al5o relied largely .:m the findings of the Assistant Commissioner and urged that they were not open to re-examination.

The explanation of the procedure followed by the appellant Which prima facie seems to be business-like and pl.ausible together with the proved absence of any firm orders lends support to the argument pressed on its behalf that the allocation letters and the statements furnished by the dealers did not by themselves bring about transactions of sale within the meaning of s: 2 (g) of the Act.

The Assistant Commissioner himself found that sometimes •he vehicles were sent from the works at Jamshedpur even before an allocation letter had been issued.

It would appear from the inaterials placed before us that generally the completion of the sales to the dealers did not take place at J amshedpur and the final steps in the matter of such completion were taken at the stockyards.

Even if the appellant took into account \he requirements of the dealers which it naturally was expected to do when the vehicles were moved from t}\e work; s to the stockyards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him.

The appropriation of the -.•ehicles \Vas done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyard to another.

Even the Assistant Commissioner found that on some occasian vehicles had been moved from stockyard in one State to a stockyard in another State. It is not possible to comprehend how in -the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned bv any covenant or incident of the contract of sale.

As regard< the so called firm orders it has already been pointed out that none have been . shown to

~- E

have existed in respect of the relevant periods of assessment. Even <>n the assumption that any such orders had been received by the appellant they could not be regarded as anythmg but mere offers in view of the specific terms in Exh. I (the dealership agreement) according to which it. was open to the appellant to supply or not to supply the dealer with any vehicle in response to such order.

What was, therefore, relevant was the acceptance of firm orders occasioning the movement of vehicles out of the State of Bihar.

Another serious infinnity in the order of the Assistant Commissioner was (a matter which even the Advocate General quite fairly had to concede) that instead of looking into each transaction in order to find out whether a completed contract of sale had taken place which could be brought to tax only if the movement of vehicles from Jamshedpur had been occasioned under a convenant or incident of that contract the Assistant Commissioner based his order on mere generalities.

It has been suggested that all the transactions were of similar nature and the appellant's

representtive had himself submitted that a specimen trans1ction alone need be examined.

In our judgment this was a wholly wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with Jaw, was bound to examine each individual transaction and then decide whether it constituted an inter-State sale exigibJe to tax under the provisions of the Act.

Consequently the appeals are allowed and the order of the High Court and that of the Assistant Commissioner is set aside in so far as it relates to the assessments in dispute in the present appeals.

It will be open to the Assistant Commissioner to make a fres~ assesment n accord.ance. with law.

Te appellant shall be entttled to costs mcurred m this Court One hearing fee.

R.K.P.S.

Appeals allowed.

THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES & ANOTHER

March 2, 1970

C. SHAH

K. S. HEGDE

A. N. GROVER

A. N. RAY

I. D. DUA, JJ.

Jamshedpur

Bihar

Bombay

Jiffcrent

Septemher 30, 1961

Bomll'ay

Article 226

Section 2(g)

Central Sales Tax Act

[1961] 1 S.C.R. 379

'N. A. Palkhivala

Sant P. Mehta

P. C. Bhartari

B.

Datta

Lal Narain Sinha

State Sarwar A Ii

U. P. Singh

Central Sales Tax Act 1956

J amshedpur

P'atna High Court

Art. 226

January 24, 1968

Jariishedpur

March 13, 1968

Art. 226

April 1, 1964

March 31, 1965

Sections 3 and 4

section 3

s. 2(g)

s. 2(g)

s. 3

s. 5

s. 3(a)

Clause 11

May l, 1963

September 30, 1962

Delhi

Karna! stockyard

June 14, 1963

clause 11

clause 12


CBAJURAM

STATE OF JAMMU I: KASllMlll

March 3, 1970

[M. HIDAVATULLAH, C.J., A. N. RAV AND I. D. DUA, JI.)

lammu & Kashrrnr Prtventiv• D•t•ntion Act, 19~Dettntion raukr s. 3(2) road with s. 5-Detenu's right to make repr-ntation ii t/ejuted i/ grounds not explllined IP him in language understood by him or if grounds are vague-Detention becomes illegal.

The petitioner was detained under the order of the District Maaiatrate.

Jammu passed under s. 3(2) read withs. S of the Jammu & Kaabmir Preventive Detention Act, 1964 on March 30,

1969. He filed a petition under Art, 32 challenging his detention. Later he withdrew the ori&inal

petition and with the leave of the court filed another. In Ibis petition it was urged that the grounds of detention supplied to him were m F.qlilh which he as an illiterate person did not undentand; they wexe also not eJ<plained to him in the language undentood by him. It was further uraed that the grounds were vague. On behalf of the State the file relating to the detention of the petitioner was produced in court and att.ention was drawn to the copy of the grotmds setved on the petitioner at the bottom of which there was a thumb-mark alleged to be that of the petitioner and an endonement to the effect that the grounds were eJ<plained to the detenu in Urdu. The Additional SCctetary to t!ie Government filed an affidavit in reply to the first petition andthe Under Secretary in rq>Jy to the second petition.

HELD: (i) It is absolutely necessary that when dealing with a detenu who cannot read or understand English language or any language at all, that the grounds of detention should be explained to him as early as poui

ble in the language he understands so that he can avail himself of the statutory right of making a representation. To hand over to him a docu ment written in English and to obtain his thumb-impression on it in token of his having received the same does not comply with the requirements of r the Jaw which gives a very valuable right to the detenu to make a represen tation. [877 BJ

(ii) The endonement on the copy <If the grounds in the original file were in different inks and therefore the document could not be taken at its face value.

In the copy of the grounds filed with the affidavit on behalf of the State in reply to the first petition there was no endorsement to the effect that the contents had been eJ<plained to the detenu in Urdu. The G affidavit filed by the Under-Secretary in reply to the second petition could not be relied on because it bore erasures and substitution of. words at a significant place. [875 H-876 Cl

When there was contradiction between the affidavits filed by the peti tioner and by the State the Court had to determine which one was acceptable giving all the benefit of doubt to the detenu. In the present case the

aflidvit of the detenu had to be preferred and it must be held that the requirement df explaining the grounds to the detenu in his own language was not complied with [875 D; 876 HJ

(iii) The grounds charged the petitioner wi.th av!ng conspired with some leaders of Democratic conference, and havmg 10c1ted landless people

CHAJli RAM V J, & K. STATE (Hidayatullah, C.J.) 873

A of Rspura Tehsil to forcibly occupy the land comprised in Nandpur Mechaof RSpura Tebsil to forcibly occupy the )and comprised in Nandpur Mechato evict them. No details of the leaders of the conference or of the persons incited or the dates ori which he conspired or incited the squatters or the time when such conference took place were mentioned. It would be impossible for anybody to make a representation against such .grounds which, on the authorities of this Court. must be held to be vague. [877 D-E]

B Accordingly the detention of te petitioner must be declared illegal.

ORIGINAL JURISDICTION : Writ Petition No .. 32 of 1970.

Petition under Art. 32 of the Constitution of India for a writ in the nature of habeas corpus .

. H. K. Puri, for the petitioner.

R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Hidayatlluah C.J. The petitioner Chaju Ram was detained under the orders of the District Magistrate, Janunu passed under s. 3(2) read withs. 5 of the Jammu & Kashmir Preventive Deten tion Act, 1964 on March 30, 1969. The order was served on him the same day and on the original order, we find an endorsement by the Station House Officer to the effect that in compliance with the District Magistrate's order, he arrested Chaju at 6.30 P.M. and that the contents of the order were explained to him in Urdu by reading over the same to him in token of which his thumb impression was obtained on the face of the order. B !Death . this endorsement, there is a thumb impression although it is not stated thee whose thumb impression it is. In any event, this was in compliance with the direction given in the order itself that notice of the order should be given to Sh. Chaju by reading over the same to him.

 As required by s. 8 of the Act, grounds of the order of detention had to be disclosed to Chaiµ.

It is claimed that this was done on April 6, 1969 and that 'order has been produced before us.

The grounds sl!lted as follows :

G . "I. That Shri Chhaju s/o Gura is (sic) conspiracy with some other leaders of Democratic Conference-incited landless people of. RSpura Tehsil to forcibly occupy the land compnsed m Nandpur Mechanised Fann with te full knowledge that such action 0n their part' was likely to lead to disturbances in a sensitive border area.

2. As a result of his activities some area of the Nandpur Farm was occupied by landless peoole betee, n l 8;3-69 to ~5"2-69 who a!SQ constructed 'Jhug-

1!'~ on 1t.

Chha1u told them to persist in their illegal L!OSupCI{NP)70-11

activities and urged them to resist violently any attempt to evict them.

He told them the State Gov(\rnment would agree to allpt this land to them only if a situD; tion were created in which two or three persons were killed by Police fuing.

3. Squatters were evicted on 2~-3-68 so!11e of horn offered resistance.

Even after this, Chha1u continued his campaign of asking people of forcibly occupy vacant Gove11IIIllent land on a massive scale with the avowed objective of repeating a "Naxalbari" in our State."

We shall , co1lle to these grounds later. Chaju did not make a representation against his detent!on. and on August 29, 196~, Advisory Board held that the Distnct Magistrate was fully JUStified and that there was suffieient cause for his detention.

Chaju made a petition 'under Art. 32 of the Constitution for his release by a writ of habeas corpus in this Court.

Rule nisi on this petition was issued on- December 2, 1969. The petition was made from jail and contained not much material except to say that he had been illegaly detained for one year and was languishing in jail. In reply to the rule nisi, an affidavit was filed by the Additional Secretary to the Government of Jarnmu & Kashmir Home Department.

However, Chaju withdrew that pe ition wifh permission to file another petition and he has filed a second petition on January 20, 1970, In this petition he has stated in paras 3, 4 and 5 that he was given some papers five days after aaisakhi

(which fell on April 13, 1969) and being an illiterate person, he could not read the contents of the papers given. He also alleged that he was not explained the grounds of his detention and therefore he was deprived of his right of making a representat'on under the statute.

He also alleged that the grounds on which his detention had been ordered were vague and were not 'sufficient for him to make a representation if he cared.

At the hearing w~ confined the case only to these two points, namely, whether Cha1u was served the grounds of detention on April 6, 1969 as claimed in the reply affidavit and whether the contents of the grounds were explained to him in a lamruage understood by him, and secondly whether the grounds were" sufficie!1tly precise and detailed for Chaju to make a proper representatmn as he was entitled to do under the Preventive Detention Act.

In regard to the first question, there is an affidavit sworn to by the Under-Secretary to the Government filed in answer to the second petition made in. this Court. It is stated in that liffi.davit

E. •

CHAJU RAM V• J. & K. STATE (Hidayatullah, C.J.) 875 •

that the grounds were duly served upon the detenu, and in t!>ken of his having understood the same, he affixed his thumb impression thereon.

In answer to the allegation that the grounds were 5ervi:d on him five days after Baishakhi, the affidavit does not seek to controvert it but only says that the detention order was duly read over to the detenu and the contents of the order explained to him in he language he understood.

Therefore the claim of the Government is that on both the occasions, that is to say, when the detention order was served on him and also when the grounds were handed over to him, the contents of the documents were read over to him and translated to liim in the language he understood (Urdu) and therefore there was compliance with the provisions of the law.

Now, if we accept the affidavit of the Government, it is obvious that the affidavit of the detenu must be false.

Contrary-wise, if we accept the affidavit of the detenu, we must reject the material placed before us on behalf of the Government. In view of the contradictory nature of these two affidavits, we went into the matter very closely and satisfied ourselves which of the two affidavits is acceptable, giving all the benefit of doubt to the detenu, To begin with, the order of detention had an endorsement on it that the order should be communicated to Chaju by reading over the same to him.

This was probably done because we find an endorsement of the Station House Officer that he had read it over to him in Urdu.

The thumb impression on this document docs not state that: it is the thumb impression of Chaju, but as he has not raised a controversy about it, we accept it as his.

In contrast to this order, the grounds of detention did not have an enddrsement that the grounds should be explained to Chaju in the language he understood. In the affidavit in answer to the first petition, the grounds were filed but there was no endorsement on the copy of the grounds showing that it had been so read to him in Urdu and that he was explained the contents. Mr.

Sachthey, however brought to our notice the original file in which the copy of, the rounds which was served upon the detenu has an endorsement in Urdu that thev had been read over and fully explained. to him in Urdu. re is a thumb impression and against the thumb impression is noted that it is that of Chaju.

The date is April 6, i969.

The question is wh!ther in view of this endorsement we must hold that Chaju was properly explained the grounds of detention in Urdu which he understands. In our judgment, we cannot accept these documents at their face value. To beitln with. the three endorsements on the copy, that is to say, (a) that the document was read over to him ill Urdu, (b) the thumb impression ·

and ( c) the note that it is the thumb impression of Chaju, are in A two different inks if not three.

This raiSed a suspicion, that these might have been written later around the thumb impression taken from Chaju as was done when the order of detention was served on him. It may be recalled that at that time also there was an endorsement in English that it had been read over to him, but nothing had been written around the thumb impression of Chaju B whether in Urdu or otherwise to show that the thumb impression was that of Chaju.

We looked carefully at the affidavit filed in this Court which is a cyclostyled document. We find in para 6 a correction in a very significant place.

This correction has been made by typing certain words in the place between two lines with an oblique showing that it is an omission.

The words beneath C those added ..yords have been erased although some of them in part still appear.

Now it is signific<int that the words which have been added are as follows:

"understood the same he";

and the para now read as follows :

"Referring to para 7 of the petition, I say that the grounds were duly served upon the detenu and in token of having understood the same he affixed his thump impression thereon." (under lining by us)

The underlined words are the words which have been added in the place between the two lines.

It appears that what has been erased must be some other words appropriate to what preceded and what followed.

In our opinion the paragraph must have read:

;'Referring to para 7 of the petition I say that the grounds were duly served upon the detenu and in token of having received the same he affil[ed his thumb impression thereon."

The underlined words were erased and others substituted. There would be no occasion to erase one set of writing and write another if the words were there.

Of course Mr. Sachthey ingeniously suggests that this may be a case of erroneous typing necessitating the correction; but this correction comes at a significant spot after the detenu has sworn an affidavit that he was not explained the grounds of the detention in the lagua_ge which he understood, and further the original document wh•ch ts produced does not seem to bear authenticity because of"the changes of ink. In these circumstances and regard

being had to the fact that 011 the previo:is occasion in the affidavit there was no mention of having read over the grounds to him in the language he understood. we are constrained to hold that we

.. ---

CHAJU RAM V J. & K. STATE (Hidayatul/ah, CJ.) 877

shoulg not go by the affidavit of the Under-Secretary, ut in. re ference a, ccept the affidavit of the detenu.

The c; letenu 1s an illiterate person and it is absolutely necessary that when we are del!llirig with a detenu who cannot read or understand English language or any language at all that the groundS of detention should be explained to him as early as possible in the language he understands so that he can avail himself of the statutory right of making a representation.

To hand over to him the document written in English and to. obtain his thumb impression on it in token of his having received the same does not comply with the requirements of the Jaw which gives a very valuable right to the detenu to make a representation which right is frustrated by handing over to him the grounds of detention in an alien language.

We are therefore compelled to hold in this case that the requirement of explaining the grounds to the detenu in his own language was not complied with.

Even as to the grounds, we have something to say.

The pounds charge him with having conspired with some leaders of Democratic Conference and having incited landless people of RSpura Tehsil to forcibly occupy the land comprised in Nandpur _Mechanised Farm and. to have persuaded them to_rcsist violently any attempt to evict them.

No details of the le.1ders of the Conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place, are mentioned. It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here, must be held to be vague.

Therefore on both the twin grounds, namely, that he was deprived of his right to make a representation and also because the grounds in themselves were very vague, we

ust hold that there was no compliance with the law as laid down m the Jammu & Kashmir Preventive Detention Act.

The result, therefore, is that the detention must be declared to be unlawful and Cha1u must be declared to be entitled to his liberty.

He is ordered to be released.

The detenu was questioned by us and he expressed a desire that he may not be released in Delhi because he has no means of going back.

He asked to be releas'. ed in .Tammu.

We direct therefore that he sha'l be taken back

t~ tl_ie place where he Was in detention in J ammu and released w1th111 the shortest possible time. -

G.C.

Petition allowed.

I. D. DUA

s. 3(2)

s. 5

s. 3(2)

Kaabmir Preventive Detention Act, 1964

CHAJli RAM

Hidayatullah

Art. 32

Constitution of India

H. K. Puri

R. N. Sachthey

Hidayatlluah

Chaju Ram

s. 3(2)

Kashmir Preventive Deten tion Act, 1964

Chaju

s. 8

April 6, 1969

Chhaju

August 29, 196~

Art. 32

December 2, 1969

January 20, 1970

April 13, 1969

CHAJU RAM

Sachthey

April 6, i969

Chaju B

Kashmir Preventive Detention Act

Delhi


[M.

G. R. BAQUAL

STATE OF JAMMU & KASHMIR March 4, 1970

H!DAYATULLAH, C.J., J. c. SHAH,.

K. S. HEGDE, A. N. GROVER, A. N. RAY AND I. D. DUA, JJ.l

Civil Servicfficer, junior to others, 8elected for a post equivalent to a higher post-Whether amounts to seniority over others--ScofU of such selection.

The appellanf and respondents 2, 3 and 4 were superintendents in tho State Secretariat service, the appellant being junior to the th= respon dents.

In 1959, the appellant was appointed as Personal Assistant to the Chairman of the Legislative Council, and shortly thereafter, the three respondents were pro1noted as Under Secretaries.

In 1963, the appellant was transferred to the Secretariat as Under Secretary.

In 1964, the three respondents were promoted as Deputy Secretarie<.

On the question, whether by appointment as P.A. to the Chairman of the Legislative Council the appellant was senior to the respondents, and hence, was entitled to be also appointed as Deputy Secretary,

HELD : Under the Jammu and Kashmir Legislative Council Secretariat (Regulation and Conditions of Service) Rules, 1959, a P.A. to the Chairman df the Legislative Council is equated to a P.A. to a Minister who is equated to an Under Secretary.

But, in the present case, the appellant was not promoted to the post of P.A. to the Chairman. He was only selected to serve as P.A. and such selection did not confer on him any privilege beyond holding that post as long as the Chairman would have him.

Under r. 24 of the Rules also, it is the substantive oost that matters and there the appellant was junior to the respondents. (879 E-F,

G-H; 880 A-BJ .

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1584 of 1968.

Appeal from the judgment and order dated December 21, 1966 of the J ammu and Kashmir High Court in Writ Petition No. 40 of 1965.

A. S. R. Chari, K. R. Chaudhuri and K. Rajendra Chaudhuri,

for the appelll\nt.

G N. S. Bindra, R. N. Sachthe, v and B. D. Sharma, for respondent No. 1. ·

The Judgment of the Court was delivered by

Hidayatullah C.J.

This appeal arises from the judgment and order of the Jammu & Kashmir High Court, December 21 1966 H dismissing a petition under Art. 32(2-A) of the Jammu & Kash: mir Constitution filed by the petitioner/appellant G. R. Baqual

G. R. BAQUAL v. :t. &-K. STATE (Hidayatullah, C.J.) 879

A for certain reliefs on the ground that be J:ias been discriminated against and -punished without rect>urse to statutory provis10s and procedure.

The facts of the case are as .follows :

The appellant who, is a Graduate of. the Punjab University entered the Secretariat service of the Janunu & Kashmir State OI) Novembed!,, JJ946 as a clerk.

Later he was promoted as Superm, tendent on September 26, 1957 and was holding a grade of Rs. 150-15-300 \revised 200-20-300-25-400).

He was then appointed as Persorial Assistant in gazetted rank in the grade of Rs. 200-400 (revised 250-25-350-30-500) and became P.A. to the Chairman of the Legislative Council by his order dated October 23, 1959. The appellant was then transferred to the Civil Secretariat as an Under-Secretary on September 30, 1963 under Government orders in the same grade of Rs. 250-500.

He claimed seniority against other Under-Secretaries when on Apnl 14,. 1964, the Government promoted four Under-Secreta~ to the - post of Deputy Secretaries in the pay scale of Rs. 450-800 which included three of the respondents in this appeal.

He was not promoted and he , claimed that he was so entitled both on his seniority and under the statutory rules.

The case of the appellant is almost entirely based upon his appointment as Personal Assistant to the Chahman of the Legislative Council which is equated with an Under-Secretary under E the Jammu & Kashmir Legislative Council Secretariat (Regulation and cQllditions of Service) Rules, 1959. Under these rules, a.PA. to the Chainnan of the'Leislative Council is equated to a P.A. to a Minister and he is in his tum equated with an Under- Secretary and enjoys the same scale of pay.

This scale of pay is certainly higher than the scale of pay \which the Superintendent

geL~.

It was admitted before us that the appellant was not senior to the other Superintendents in the substantive post of Superintendent.

In other words, if everything had been equal, he would be junior to respondents Nos. 2, 3 and 4 and would take his tum for

promoton after them.

He claims seniority on the basis of his deputation as P.A. to the Chairman of the Legislative Council and his supposed equation to an Under-Secretary.

As a matter of fact, he was not promoted as_Under-Secretl!lry.

He was orily selected to serve as P.A. and that carried the pay and the gazetted rank.

It happens frequently in service that such selections are ma~ prticularly. in. Secrarial line by Ministers, Chairman of Legislative Council or Speaker. Even in this Court such selections are made of persons to serve as Secretaries to the Hon'ble Judges. 1:llis selectiori carr!es more pay while it lasts and gives a rank which the holder en1oys as a gazetted officer, but. it does

880 SUPREMll COURT REPORTS

[1970) 3 S.C.R.

not confer any more privilege. In matters of proml)tion and rankiqg, the substantive posts matter, anli here, the . appellant admits that he was junior to the others. . His appointment to a post which in emoluments was equal to that of an Undor-Secre-. tary was not in the regular line. It was by selection and could not therefore confer on him any privilege beyond holding that pC!St

as long as the Chairman of the Legislative Council would have him as his Personal Assistant.

The appellant tried to prove his case by referen'ce to rule 24 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. But that rule also says that the seniority of a person has. reference to the service, class, category or grade with reference to wbicli the question bad arisen and that such seniority shall be determined by the date of his first appointment in such class, service, category or. grade as the case may be. Here the service on. which emphasis should be placed is the post of Superintendent and there, the appellant admiis that he is junior to respondents 2, 3 and 4.

Therefore, neither on the basis of the statutory rule nor on t'1e . basis of any practice or convention is he entitled to.seniority fro'll

the post of Superintendent to the next grade.

He must take his tum in accordance with bis seniority as Superintendent which was his substantive po>t when his depuhtion began.

We see no force in this appeal which sh~'.I be dismissed.

There shall be no order as to costs.

V.P.S.

Appeal dismi.ised

G. R. BAQUAL

STATE OF JAMMU & KASHMIR

March 4, 1970

c. SHAH

K. S. HEGDE

A. N. GROVER

A. N. RAY

I. D. DUA, JJ

S. R. Chari

K. R. Chaudhuri

K. Rajendra Chaudhuri

G N. S. Bindra

R. N. Sachthe

B. D. Sharma

Hidayatullah C.J.

Art. 32(2-A)

G. R. Baqual

October 23, 1959

September 30, 1963

Apnl 14,. 1964


MANAGEMENT OF ADVANCE INSURANCE CO. LTD.

SHRI GURUDASMAL & ORS.

March 4, 1970

[M. HIDAYATULLAH, C.J., J. M. SHELAT, C. A. VAIDIALINGAM, A. N. GROVER AND A. N. RAY, JJ.j

Constitution of India; 1950, 1th Sch. List I Entry BO-Word 'State' in Entry-Whether includes 'Union Ti:rritories' after passing of Constitution (Seventh Amendment) Act, 1956-Adaptation of Laws (No. I) Order 1956 enlarging definition of 'State' in s. 3(5B) of General Clauses Act, IB97 to include Union Territorits-Efject of Order-Power of President to pass Order after expiry of period specified in Art. 372(2) of Constitu- ,.tion-Power is-sustained under nelV Art. 372-A.

Special Police Establishment Act 25 of 1946 as amended in 1952-· I'urporling to cteate Special Police Force "in Delhi '-Such fr>rce whether "belonging to" a 'State' within meaning of Entry BO-Consent of State Government to extetision of powers of Special Police Establisohment- Pr.oof-Consent already given in respect of certain offences subsists after new offences added by fresh notification.

Entry BO in List I of the 7th Sch. tffthe Constitution of India 1950 corresponding to entry 39 in the Federal List of the Government of Inia Act, 1935, empowered the Central Legislature inter alia to extend the powers and jurisdiction of members of the police force 'belonging to' any State to any area outside that State. with the consent of the State in which such area was situate.

Under the Constitution as originally adopted the States in the Indian Union were specified as Part A, B & C States and certain territories as part D territories. - By the Constitution (Seventh Amendment Act), 1956 the distinction between Part A & B States was abolished and Part C States and Part D tetritories came to be described as Union Terriories. The Delhi Special Police Establishment Act 25 of 1946 was passed under entry 39 of :he Federal List of the Government of India Act, 1935. As adaoted in 1950. the Ion~ title of the Act referred to Soecial Police Force 'for the State of Delhi'. After th~ Delhi Special Police Establishment (Amendment) Act '26 df 1952 the long title referred to a Special Police Force 'in Delhi'. The Adaptation of Laws (No. 3) Order

1956 substituted the words 'Union Territofies' in place of Part 'C' States in the Delhi Special Police Establishment Act.

On November 6, 1956 Notifjcation No. 7 /5/55-AVD wa. issued by the Central Government under s. 3 of the Act enabling the Special Police Establishment to investigate inter alia offences under ss. 409 and 477A of the Indian Penal Code.

By memorandum No. DPE/1260/6554-V, dated July 2, 1960, the Government of Maharashtra purported to express its consent to the extension to the State of Mah, rashtra of the oowers of Delhi Police Establishment to investigate into the offences mentioned in the Central Government Notification aforesaid dated November 6, 1956 and subsequent not; fications dated February 12, 1957, June 21, 1957 and August 27, 1957.

The aooo1lant comoany was charged in a comulaint filed by Incom~-tax Officer (Section X Contrail, Bombay with offences under ss. 409, 477A and 120B read with s. 409 df the Indian Panel Code. The case was reo; s•ered by the Suoerintendent of Police, Soeci>l Police Establishment, Delhi and investiation thereof was ordered to be conducted in the State of Maharashtra by an lnspectm under the Establishment. The appellant filed .• writ ,

petition under Art. 226 of lhe Constitution challenging the power of the Special Police Establishnt to investigate the case in the State of Maharashtra. The petition being dismissed, an appeal with certificate was filed in this Court. The contentions rai•ed on behalf of the appellant which fell for consideration were:

(i) that Act 25 of 1946 when it was made applicable to Union Territories as a result of Adaptation Order No. 3 of 1956 was thereby cut adrift from entry 80 which referred only to 'States'

(ii) that the enlargement of the definition of 'State' in s. 3(58) of the General Clauses Act to include Union Territories as respects the period after the Seventh Amendment of the Constitution was not effectively made by Adaptation Order (No. I) 1956 because the power of the President under Art. 372(2) expired in 1953; (iii) that Act 25 of 1947 as amended in 1952 purpoted to create a special police force in Delhi, and the Act was not thus not in accord with entry 80 in which the phrase used was 'belonging 'to any State,"; (iv) that tlie consent of the Maharashtra Govemmen( to the Central Government Notification dated November 6, 1956 extending to the State of Maharashtra, the power qf the State Police Establishment to investigate cases under s. 409 and s. 477A of the Indian Penal Code was not proved to have been obtained; (v) that in any case no fresh consent 'for the investigation of these oftences was obtained when by Notification dated February 18, 1963 the Delhi Special Police Establishment was empowered to investigate in Maharashtra certain other offenceS in addition to those mentioned in the earlier notifications.

HELD: (i) After the amendment of s. 3(58) of :he General Clauses Act by the Adaptation Order (No. 1) of 1956 the word 'State' in entry 80 of List I must be read as respects any period after the commencement of the Seventh Amendment of the Constitution so as to include 'Union Territories'. Therefore, members of a police force belonging to the Union Territory of Delhi could have their power and jurisdiction extended to another State with the consent of the Government of that State. ' Adaptation Order No. 3 of 1956 did not have the effect of taking Act 25 of 1946 outside the ambit of entry 80. (890 Cl

(ii) The power <If the President under Art. 372(2) to adapt and modify laws no doubt expired in 1953. But a fresh power equal and analogous to that under Art. 372(2) was conferred on President by Art. 372A which was introduced by the Constitu•ion Seventh Amendment Act, 1956.

Therefore, the amendment of the definition of 'State' in s. 3(58) of the General .Clauses Act by the Adaptation of Laws (No. 1) Order, was valid Ji' and had the effect of including Union Territories in entry 80 of the Union List [890 H; 891 F-0; 892 D-E]

Ramkishore Sen & Ors. v. Union of India & Ors. [1966] I S.C.R. 430 at 438 and T. M. Kanniyan v. Income-tax Officer, Pondicherry & Anr. [1968) 2 S.C.R. 103 at 108, referred to.

Ram Kishore Sen's case to Art. 372 held per incuriani.

(iii) Provisions of law must be read as far as possile with a view to their validity and not to render them invalid.

The expression 'belonging to' in entry 80 only conveys the meaning that it is a police force constituted and functioning in one area, which may be authorised to function in another area.

The change 'from "for" to "in" made in the long litle of Act 25 of 1946 by the amendment of 1952 makes no difference because both expressions fit with the meaning of the ohrase 'belonging to' in the entry.

In this way the Delhi Special Police &tablishment means a police 11 force constituted and functioning in the Union Territories in Delhi and it could not be said that Act 25 of 1946 as amended in 1952 was not in second with entry 80. (893 E-F]

(iv) There is a presumption oi regularity of official acts but even apart 'from it the memorandum of the Government of Maharashtra dated July 2, 1960 and the affidavit filed by the lender Secretary to the Government clearly established that the consent of the Government of Maharashtra to the notifications of the Central Government mentioned therein was duly given. [888 F]

(v) If by the notification dated February 18, 1963 ss. 409 and 477A Indian Penal Code ha:d been newly added, consent of the Government of Maharashtra would have been necessary. But that Government had on more than one occasion consented to the investigation in that State of those offences, and no fresh consent in respect of them was therefore necessary. [889 A-BJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2258 of 1968.

Appeal from the judgment and order dated October 18, 1968 of the Delhi High Court, Himachal Bench at Simla in Civil Writ No. 365 of 1968.

A. K. Sen and B. Datta, for the appellant.

D Jagadish Swarup, Solicitor-General, R. L. Melita and

R~ N.

Sachthey, for the respundents.

The Judgment of the Court was delivered by llidayatullah, C.J. On a corn, plaint, J anuar1 30, J 968 by the Income Tax Officer (Section X Central) Bombay, of the Commission of Offences under ss. 409, 477A and 120B read with s. 409 of the Indian Penal Code a case was registerd by the Superintendent of Police, Special Police Establishment, New Delhi.. Investigation was entrusted to an Inspector under the Establisbment.

It was to be made in Maharashtra State.

The appellant, which is a limited company, call~ the Management of' Advance Insurance Company Limited, thereupon filed a petition under Art. 226 of the Constitution in the High Court at Delhi challenging the right of the Special Police Establishment to investigate the case.

This petition was disposed of on October 18, 1968 by the High Court ordering its dismissal.

The present appeal is by certificate granted by the High Court.

G Before the High Court many questions were mooted.

Shortly stated the argument is that the Delhi Special Police Establishment is not constitutional and that it has no jurisdiction to investigate the cases in other States.

This argument has many facets which will presently appear.

Before we consider them it is necessary to say something about the original constitution of this Special

 H Police Establishment.

We are concerned todav with the Delhi Special Police Establishment Act of 1946 (XXV of 1946). This Act succeeded two

Ordinances which had been earlier passed by the Governor General and it had been amended from time to time by way .of adaptation and modification. It was passed when the Government of India Act 1935 was in force.

Entry No. 3 of the Provincial Legislative List in the 7th Schedule to the Government of India Act, 1935 read "police including r11.ilway and vil'age police".

Entry 39 of the Federal Legislative List was as follows :

"39. Extension of the powers and jurisdiction of members of a police force belonging to any part of l:lritish India to any area in another Governor's Province or Chief Commissioner's Province, but not so as to enable the police of one part to exercise powers and Jurisdiction elsewhere without the consent of the Government of the Province or the Chief Commissioner as the case may be; extension of the powers and jurisdiction of members of a police force belonging to any unit to railway areas outside that unit."

It wa~ substituted by the India (Provisional Constitution) Order 1947, as follows:

"39. Extension of the powers and jurisdiction of members of a police force belonging to any province to any area in another province, but no~ so as to enable the police of one province exercise powers and jurisd ; ction in another province without the consent of the Government of that Province; extension of powers and jurisdiction of members of a police force belonging to any unit to railway areas outside that unit.

In this entry "province., incjudes a Chief Commissioner's provice."

The explanation which was included in this last entry was to obviate the implication of the definition of a Provittce ins. 46(3) of the Act which read :

"In this Act the expression "Province" means unless the context otherwise requires, a Governor's Province, and ''Provincial" shall be construed accordingly."

The implication of tlie explanation was to apply entry 39 to the Chief Commissioner's i.'rovince in addition to Governor's Province.

In this way the jurisdiction exercisable under entry 39 was made co-extensive again with what was formerly British India, which, by s. 311 (1) of the Act, meant both kinds of provinces.

The prior history of the Act may be shortly noted. It has little bearing upon the questions in hand.

On July 12, 1943 the Governor. General enacted an ordinance ( XXH of 1943) in exercise of his powers conferred by s. 72 cl the Government of India Act which was continued in the Ninth Schedule to the Government of India Act, 1935. An emergency had been declared owing to World War II and the powers were exercisable by the Governor General.

The ordinance was called the Special Police Establishment (War Department) Ordinance, 1943.

It extended to the whole of British India and came i:nto force at once. By s. 2 ( 4) the Special Police Establishment (War Department) was constituted to exercise throughout British India the power and jurisdiction exercisable in a province by the members of the police force of that province possessing all their powers, duties, privileges and liabilities.

Under s. 4 the superintendence of the Special Police Establishment (War Department) was vested in the Central Government.

It was, however, provided by s. 3 as follows :

"Offences to be investigated by Special Police Establishment :-

The Central Government may by general or special order specify the offences or classes of offences committed in connection with Departments of the Central Government which are to be investigated by the Special Police Establishment (War Department), or may direct any particular offence committed in connection with a Department of the Central Government."

This ordinance would have lapsed on September 30, 1946.

Before that on September 25, 1946 another ordinance of the same name (No. XXII of 1946) was promulgated. This constituted a special police force for the Chief Commissioner's province of Delhi for investigation of certain offences committed in connection with matters concerning departments of the Central Government.

The scheme of this ordinance was slightly different.

Under s. 2 Soecial Police Establishment was constituted for the Chief Commissioner's Province of Delhi for !he investigation in that province of offences notified in s. 3.

This was notwithstanding the provisions of the Police Act of 1861. The Police Establi5hment had throughout the Chief Commissioner's Province of Delhi in relation to those offences the powers, duties, privileges and liabilities of the regular police officers subject, however, to any orders which the Central Government might make in this behalf.

Section 3 of the new ordinance was almost the same as s. 3 of the previous ordinance.

The only changes were that the offences had to be notified and the power to refer any particular cas~ was not reoeated. In the ordinance s. 5 provided that the consent of the Government of the Ge, r .:Jr'> Pro- •

vince or of the Chief Commissioner should be obtained to the extension before the powers would be exercised.

Ordinance No. XXII of 1946 was repealed by the Delhi Police Establishment Act 1946 (XXV of 1946) which re-enacted the provisions of the Ordinance. This Act was adapted and amended on more than one occasion.

First came the Adaptation L of Laws Order 1950, enacted under clause 2 of Art. 372 of the Constitution on January 26, 1950.

It made two changes.

The. first was throughout the Act tor the words "Chief Commissioner's Province of Delhi" the woras "State of Delhi" were subStituted and for the word "Provinces" the words "Part A and C States" were substituted. This was merely to give effect to the establishc ment of "States" in place of provinces under the scheme of our Constitution.

Next came the changes introduced by Part 'B States (Laws) Act, 1'51 (Act III of 1951). They were indicated in the schedule to that Act.

Those changes removed the words 'in the States' in the long title and the preamble.

The purpose of this was to remove reference to the States in the phrases "for the extension to other areas in the 'States".

The more significaht changes came in 1952 by the Delhi Special Police Establishment

(Ame11dment) Act 1952 (XXVI of 1952) .. In the long title (after the "Adaptation of Laws Orders 1950) the words were :

''An Act to make provision for the constitution of a special police force for the State of Delhi for the investigation of certain offences committed in connection with matters concerning Departments of the Central Government etc."

After the amendment the words read :

"An Act to make provision for the constitution of a special poice force in Delhi for the investigation of certain offences in Part C States ...

Similar changes were also made in the preamble and in s. 3 the reference to Departments of Government was also deleted.

The G change from 'for the State of Delhi' to 'in Delhi' was the subject of comment in the High Court.

To that we shall refer later.

In 1956 the Constitution (Seventh Amendment) Act, 1956 was enacted. Previously the Constitution specified the States as Parts A, B and C States and some territories were specified in Part D in the First Schedule.

Bv the amendment the distinction between Parts A and B was abolished.

All States (11reviously Part A and B States) were shown in the First Schedule under the

...

D • E

heading 'The States' and Part C States and Part D territories were all described as Union Territories.

Thereupon an Adaptation of Laws Order, 1956 was passed and in the Delhi Special Police Establishment Act 1946 all references to 'Part C States' were replaced by the expression 'union territory'.

Another significant change made by the Amending Act was to remove from s. 2 the words 'for the State of Delhi', and all references to offences by the words 'committed in connection with matters concerning Departments of the Central Government' were deleted.

The resulting position. in 1956 may thus be stated by quoting the pertinent sections :

"Section 2 (I) Notwithstanding anything in the Police Act, 1861, the Central Government may ccmstirute a special police force to be called the Delhi Special Police Establishment. . . for the investigation of offence~ notified' under section 3.

(2) Subject to any orders which the central Government may make in this behalf, members of the said police establishment shall have throughout in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein.

(3) Any member of'the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Cenfral Government may make in this behalf, exercise in any of the powers of the officer in charge of a police station In the area in which he is for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station discharging

th~ functions of such an officer within the limits of his station."

"Section 3. The Central Government may, by notification in the Official Gazette. specify the offeqces or class of offences which are to be investigated by the Delhi Special Police Establishment."

"Section 5 (1) The Central Government may by order extended to any area (including Railway areas) the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any qffences or classes of offences specified in a notification tinder section 3."

"Section 6. Nothing contained in section 5 sha]] be deemed to enable any member of the Delhi Special

Police Establishment to exercise powers and jurisdicuou in any area in (a State not being a Union territory or railway area) without the consent of the Government of that State."

The remaining sections need not be quoted here as they follow the scheme of the earlier ordinances and confer powers, junsdiction etc. equal to those of the regular police.

Those provisions are not in dispute.

After the passing of the 1946 Act a numbet of notifications succeeded which notified the offences which the Special Police '- Establishinent could investigate. On November 6, 1956 (Notn.

No. 7 /5/55-A VD) was issued under s. 3 cf the Act of 1946. It enabled the Special Police Establishment to investigate inter alia offences t1nder sections 409 and 4 77-A of the Indian Penal Code.

A memorandum (No. DPE/1260/6554-V) dated July 2, 1960 shows that the Government of Maharashtra consented to the D Delhi Special Police Establishment exercising powers and Jurisdiction in the State of Maharashtra in respect of offences mentioned in notifications of the Government of India dated November 6, 1956, February 12, 1957, June 21, 1957 and August 27, 1957.

The first notification has been referred to already.

The remaining three notifications were notJrought to our notice.

A doubt raised in the High Court and before us , that the Government of Maharashtra had not considered the matter or that the consent was not properly given, is sufficiently answered by the affidavit of the Under Secretary to the Government of Maharashtra dated July 18, 1968 in which it is clearly stated that the Chief Minister hacl considered the matter and given his consent and that under the Rules of Business he was quite competent to do so.

No argument has been advanced before tis which entitles the appellant to go behind the memorandum and the affidavit.

There is a presumption of regularity of official acts and even apart from it, the memorandum and the affidavit clearly establish that the consent was given.

It is. however, urged that the Government of India on February 18, 1963 issued another notification (No 25/12/62- A VD-IT) which superseded the earlier notification No. 25/7 /60- A VD dated January 21, 1961.

From this it is argued that the earlier notification to which consent was given by the Maharashtra Government had all been revoked and fresh consent ws thereore, necessary and has not been proved. In our judgment this 1s an argument of no avail.

It is true that if sections 409 and

A 4 77-A LP .C. were newly added, consent of the Government of Maharashtra would have been necessary. But the Maharashtra Government had on more than one OCClosion consented to the investigation in the State of Maharashtra of the offences.

The notifications mentioned those offences afresh With some other offences. In so far as the newly added offences are concerned, B the argument would have s9me validity bl\t not in respect of offences already assented to. We find no force in the argument since we consider the new notification as merely restating !he old notification after including some other offences in the new notification.

This brings us to the two main arguments.

The first is that after the Constitution (Seventh Amendment) Act which removed the description 'Part C States' from the Constitution and introduced the expression 'Union Territories' the present entry 80 of the Union List (corresponding to entry 39 of the.Federal Legislative List of the Government of India Act of 1935) cannot be read as enabling the power to be exercised in respect of a police force belonging to the Union Territories such as Delhi.

Entry No. 80 may be read here : •

"80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State."

. This entry speaks of a 'police force belonging to any State' and not of a police force belonging to the Union Territory.

The adaptation of the Delhi Special Police Establishment Act by the Adaptation of Laws (No. 3) Order, 1956 by substituting 'Union territories' in place of 'Part C States', it is said, cut the Act adrift from the entry under which the power could alone be exercised.

This power is limited in extent, it is argued, and cannot be used except as specifically conferred and it applies to a police force belongi, ng to a State and not Union territory.

In reply the provisions of the General Clauses Act, as adapted by Adaptation Order !No. 1) were brought to our notice.

Section 3(58) of the General Clauses Act was aC!apted to read :

"State"-

(a) as respects any period before the commencement of the Constitution (Seventh Amendment) U lSupCl(NP)/70-12

(b)

Act 1956 shall mean a Part A State, a Part B

Stat~ or a 'Part C State; and

as respects any period after such commencement. shall mean a State specified in the First Schedule to the Constitution and shall include a Uni<in rerrirory''.

Previously th~ delinition read :

"State'' shall mean a Part A State, a Part B State or a Part C Sr ate''.

This definition furnishes a complete answer to the difficulty which c is raised since Entrv 80 must be read so as to include Union territory.

Therefore members of a police force belonging to the Union territory can have their powers and jurisdiction extended to another Sta.te provided the Government of that State consents.

The Bombay State has consented as shown above.

Faced with this complete answer the appellants raised argu- D ment that the powers of adaptation of the President in relation to

thetGeneral Clauses Act came to an end in 1953 and the adaptation of the General Clauses Act is ineffective to give the ne\\· meaning of the word 'State' in Entry 80.

This argument need' 'ome consideration.

Article 367 which followed Art. 366 in which the terms O'.· the Constitution were expressly defined applied in addition the provisions of the General Clauses Act for the interpretation of an Act of the Legislature of the Dominion of India.

The Article. however, said that the General Clauses Act might be adapted and modified under Art. 372.

Under that article continuance of the laws in force in the territory of India immediately before the commencement of the Constitution was laid down by cl. ( 1).

Clause (2) then empowered the President to bring the provisions of any such law into accord with the provisions of the Constitution by making such adaptations and modifications of such laws whether b~ way of repeal or amendment as were required and by

prov1dmg m that order the date from which the law subject to the adaptation or mo<lification was to have effect.

The clause further provided that any such adaptation or modification shall

ot. be 4uestioned in any court of law. If this power had no time lumt the adaptation of the General Clauses Act in 1956 would be coyered by Art. 372(2) but the learned counsel for the appellant< pomted out that there was a time limit of 2 years (later extended to 3 years) in clause (3) of the article and that time limit expired in 1953. They contend that the definition' prior to the amendment would only apply.

ADVA!'CE INSURANCE co. v. GURUDASMAL (Hidayatul/ah, C.J.) 891

This argument overlooks the provision of a fresh power of :1daptation confered on the President of India by Art. 372-A

which was introduced by the Constitution (Seventh Amendment) A<:t J 95ti.

That article reads : ·

"3 72A. Power of the President to adapt laws.

( l )

(2)

For the purposes of bringing the provisions of any law in force in India or in any part thereof, immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956,

into accord with the provisions of this Constitution as amended by that Act, the President may by order made before the !st day of November,

I 957, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shail, as from such date as may be specified in the order. have effect subject to the adaptations and modifications so made, <lnd any such adaRtation or modification shall not be questioned in any court of law.

Nothing in clause (I) shall be deemed to prevent a competent legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause."

This conferred a power on the President of India to adapt any Jaw in force in India by making such adaptations and modifications, whether by way of repeal or amendment, as may be necessary and provide that the law so adapted or modified shall have effect subject to the adaptations or modifications so made nd the adaptations and .modification shall not be questioned.

This was a fresh power equal and analogous to Art. 372(2).

Therefore. when the President adapted the General Clauses Act by giving a new definition of 'State' the new definition appropriate to the purpose applied to the interpretation of the Constitution.

The word 'State' in entry 80 of Union List, therefore. applied to TTion Territories also. ··

Reference is made to Ramkishore Sen & others v. Unin" of India and others(') where the reference was to Art. 372.

This 1•as per inwriam as the proper reference ought to have been to

Art. 372A. It is also argued that the definition cannot be rad at all the places where the word 'State' occurs in the Constitution.

A number of such articles were brought to our notice. one such

(l) [l96fij J S.C.R. 430 at 438.

being Art. 246(2). It is contended that in that clause at least the definition cannot be read as including Union Territories and, therefore, the General Clauses Act, as amended, cannot be read in Entry 80 either.

The argument is correct that the definition cannot always be read.

But the answer is plain. The definitions apply unless there is anything repugnant m the subject or context.

After the Seventh Amendment India is a Union of States (Art. 1) and the territories thereof are specified in the First Schedule.

Then there are Union Territories which are mentioned separately.

There is thus a distinction between 'States' and union territories' which cannot be lost sight of.

When. the definition cannot be made applicable owing to the context or the subject, the word 'State' re{ers to States in the First Schedule only.

Such an occasion arose in T. M. Kanniyan v. Income-Tax Officer, Pondicherry and Anr., (') and Bachawat J. explained Art. 246 by holding that the definition of 'State' in two parts in the adapted section 3(58) of the General Clauses Act was repugnant to the . subject and context of Art. 246. There is nothing in the subject or context of Entry 80 of the Union List which can be said to exclude the application of the definition ins. 3(58). Indeed the Part C States were expressly mentioned in Entry No. 39 of the Federal List of the Government of India Act, 1935 (after its amendment in 194 7) and thus before the Seventh Amendment the definition of State (subject to the subject or context) included Part C States. Therefore, the definition of 'State' in s. 3 (58) in the General Clauses Act after the adaptation in 1956 applies and includes Union Territories in Entry 80 of the Union List.

Tlie last argument is that the Entry 80 of the Union List speaks of a police force 'belonging to any State' and this phrase was also used in the Government of India Act, 1935 to Entry 39 uf the Federal Legislative List both before and after its amendment in 1947. It is argued that in Ordinance XXILof 1946 the phrase wu 'for the Chief Commissioner's Province of Delhi' and it was repeated in Act XXV of 1946 till the phrase was changed to 'for Part C States'.

Thus the word 'for' took the place of the words 'belonging to' in the Entry. Then came the change to the pr<sent phrase 'a special police force in Delhi.'

It is pointed out tha, t the Special Police Establishment does not belong to the Union territory of Delhi, since the superintendence of it vests in the Central Government.

It is said that the force of the words 'belonging to' is not the same as that of the word ·n'. Therefore it is claimed that the Act is not in accord

with the Entry.

(l) (1~68] 2 S.C.R. l03 at JOB.

ADVANCE INSVl\ANCE co. v. ou•UDASMAL (Hidayatul/ah, C.J.) 893

Various meanings of the exple.%ion 'belonging to' are suggested ia the arguments before us.

On behalf of the appellants it is said that it meant 'employed by' and' not merely 'located in'. In this sense, it is argued, the Special Police Establishment did not belong to any State or Uaion territory.

On the other side it is argued that the words 'belonging to' convey no more than a territorial .nexus.

The police force'belongs to a part of India and it does not have to belong to a Provincial Government or a State Government or Government of a Union territory.

The extens10n of the powers, jurisdiction etc. of such a force is also in another part of India, placing again an emphasis on the territory.

This shows that the police force of one area operates in another area.

Now the scheme of the Constitution is that tbe Union territories are centrally administered and if the words 'belonging to' mean belonging to a part of India, the expression is equal to a police force constituted to function in ail area.

In this way the Delhi .Police Establishment means a police force constituted and functioning in the Union territory of Delhi.

Previously the same force functioned in the Chief Colll!llissioner's Province of Delhi, then in Part C State of Delhi and now it functions in the Union

territory Of Delhi . • It is no doubt true that the words are susceptible of the other meaning also but so long as the words are capable of bearing the meaning we have given it ii not necessary to discover another meaning under which the whole scheme would become void.

Provisions of Jaw must be read as far as is possible with a view to their validity and not to render them invalid. In our judgment the expressfon 'belonging to' only conveys the meaning that it is 'a. police force constituted and functioning in one area' which mav be ,'.lthorised to f1;1nction in another area.

The change from •for' to m makes no ddference because both expressions fit m with the meaning of the phrase 'belonging to' in the Entry.

We see no force in this argument also.

The result is that the appeal is devoid of force.

It fails and will be dismissed.

There will be no order about cosfJI.

G.C.

Appeal liismissed.

MANAGEMENT OF ADVANCE INSURANCE CO. LTD

GURUDASMAL & ORS

March 4, 1970

M. HIDAYATULLAH, C.J.

M. SHELAT

A. N. GROVER

A. N. RAY, JJ

Constitution of India

s. 3(5B)

General Clauses Act

Art. 372(2)

Art. 372

Special Police Establishment Act

Constitution of India

Seventh Amendment Act

Delhi Special Police Establishment Act

November 6, 1956

Central Government

s. 3

ss. 409 and 477A

Indian Penal Code

Government of Maharashtra

ss. 409, 477A and 120B

s. 409

Maharashtra

Art. 226

s. 3(58)

General Clauses Act

Art. 372(2)

Delhi

s. 409

s. 477A

Indian Penal Code

Delhi Special Police Establishment

s. 3(58)

General Clauses Act

Art. 372(2)

Art. 372(2)

Art. 372A

Seventh Amendment Act, 1956

s. 3(58)

[1968) 2 S.C.R. 103

Ram Kishore Sen

Art. 372

July 2, 1960

February 18, 1963

ss. 409 and 477A

Indian Penal Code

A. K. Sen

B. Datta

D Jagadish Swarup

R. L. Melita

R~ N.

Sachthey

llidayatullah

ss. 409, 477A and 120B

s. 409

Indian Penal Code

New Delhi

Maharashtra State

Art. 226

High Court at Delhi

October 18, 1968

Government of the Province

s. 311

July 12, 1943

s. 72

British India

s. 2

s. 4

s. 3

September 30, 1946

25, 1946

s. 2

s. 3

Police Act

Section 3

s. 3

s. 5

Delhi Police Establishment Act 1946

clause 2

Art. 372

January 26, 1950

Chief Commissioner's Province of Delhi

s. 3

First Schedule

First Schedule

s. 2

Section 2

section 3

central Government

Cenfral Government

Section 3

Section 5

section 3

Section 6

section 5

Delhi Special

Police Establishment

s. 3

sections 409 and 4

Indian Penal Code

D Delhi Special Police Establishment

July 18, 1968

Government of India

January 21, 1961

Maharashtra Government

sections 409

Delhi Special Police Establishment Act

General Clauses Act

Section 3(58)

General Clauses Act

First Schedule

General Clauses Act

Article 367

Art. 366

General Clauses Act

General Clauses Act

Art. 372

India

General Clauses Act

Art. 372(2)

Art. 372

Art. 372(2)

General Clauses Act

Art. 372

Art. 372A

Art. 246(2)

General Clauses Act

Art. 1

First Schedule

First Schedule

Bachawat

Art. 246

section 3(58)

General Clauses Act

Art. 246

s. 3

General Clauses Act

Government of India Act, 1935

Delhi .Police Establishment


PUNITHAVALLI AMMAL

\'.

RAMALINGAM (MINOR) AND ANR

March 4, 1970 [J. e. SHAH, K. s: 'HEGoE '.ANo A. N. GRovER, JJ.J

' Hindu La11-Wlzet/1er full 011•11ership acquired by widow under s. 14(1) of Hindu Succession :A.ct defeasib/e by adOption 1nade afte1 the enllc:unent, -

A Hindu died leaving behind his widow and daughters.

The properties le{t behind by the deceased were' inherited by the widow, and they \Vere in her possession when the Hindu Succession Act, 1956 came into force.

Subsequent to the enforcement of the Act, she adopted a son and thereafter settled a part of the property on one of the daughters. The_ adopted son challenged the validity of the settlen1ent deed contehdiuj? that the adoption must be deemed to relate back to the death of the 'vidow's husband and therefore she was incompetent to make the impugned alienation.

Rejecting the contention1 this Court;

HELD :-The rights conferred 'on a Hindu female under s. 14(1) of the Act are not restricted or limited IJy any rule of Hi.ndu law.

The section plainly says that the property possessed by a Hindu female on the date the Act came into force \\'hether acquired before or after the commencement of the Act shall be held by her as full owner thereof. The provision makes .a clear departure (rom the Hindu litw -texts or rules.

Those texts or rules cannot be used for circumventing the plain intendment of the provision. [897 F-GJ

'The fiction of relation back in the case of adoption under Hindu friw is 'based on Hindu la\v texts or rules or at any rate it is based ou interpretation of Hil.'ldu la\\·.

Therefore. by virtue of s. 4 of the Act that rule ceased to hh.ve effect from the date the Act came into force '''ith respect to any n1atter for which provision is made under the Act. [896 F-Gl

Yan1unabai and Ant v. Rani !11aharr.j Shreedlu1r M<1haraj anfi a11r.

F A.T.R. 1960 Born. 463; approved.

Shrinivr.s Krislianarao Kango v. Naray'an Derji Kongo a11d ors. r1955] 1 S.C.R. p. 1; Krishna111urthi J.'nsudeorao Deshpande v. Dlrrun•araj, [1%1] 1 S.C.R. 813, referred to.

Suk/11n111 and anl". v. Gauri Shat; kar and anr. [1968] 1 S.C.R. 4i6 referred to.

Civ1L APPELLATE JURISDICTION : Civil Appeal No. 139 of 1967.

Appeal from the judgment and Decree dated September 3. 1963 of the Madras High Court in Second Appeal No. 1021 of 1960.

B. Datta, for the appellant.

H M. Srinivasall, K. N. Ba/as11brama11ian and Lily Thomas, for respondent No. 1.

P. "AMMAL \', RAMAL!NGAM (Hegde, J.) 89 5

The Judgment of the Court was delivered by

J:legde, 1.

The question for decision in this appeal by certificate is whether the full ownership conferred on aHindu femak under s. 14(1) of the Hindu Succession Act (to be hereinafte1 referred to as the Actl is defeasible by the adoption made by her to. her deceased .husba!ld after the Act came into force.

The fdcts relevant for the purpose of deciding that question of law may now lie state<l.

One Somasundra Udayar of Poongavur village in Tanjavoor District di.ed orior to 1937 leaving behind him his widow Sellathachi\and tV:.i daughters K..ippaimal

nnd Punithavalli Ammal.

The properties left behind. by !he deceased were inherited by his widow and they were in her possession when the Act came into force on- June 17, 1956. By Yirtue of s. 14(1) of the Act Sellathachi became the full owner of the properties inherited by her from her husband.. On July

13, 1956, she adopted the plaintiff-1st respondent in this appeal.

Thereafter on June 19, 1957 she settled 9 acres l 6 cents of land and half share in a house inherited by her frotll her husband on her daughter Punithavalli Ammal, the appellnnt in this appeal.

The validity of this settlement deed was challenged by means of a sui! by the adopted son even during the life time of Sellathachi.

The settler who was impleaded as the !st defendant to the action died soon after the .insiitution uf the suit.

Various contentions were raised in defence but it is unnecessary to go into them. -The trial court dismissed the suit on the ground that iri view of s. 14(1) Sellathachi was the full ,,._, ner of the properties inherited by her from her husband ond hence the adopted son cannot impugn the alienation made by her.

This decision was upheld in appeal but in second appeal. :t division bench of th~ High Court of Madras reversed that deci- >ion holding that the adootion of the plaintiff must be deemed to relate back to the date of the death of Somasundara Udayar and therefore Sellathachi W?~ incompetent to make the-impugned alienation.

This correctness of this findin!! is in issue in this arpeal. ' -

According to Hindu law texts as interpreted by courts-, on adoption _by a Hindu widow, the adopted son acquires all the rights of an mirasa son and those rights relate ba9k to the date of the death of the adootive father-see Shri11i1'as Krish11arac• Ka11go v. Narayan Devji Kango and ors.('). Hence the estate held by a widow was a defeasible 'estate.

Ti)e same is the case with a person possessing title defeasible on adoption: not only hfs titk but also the title of all persdns claiming under hiJ11 will be

(t) [1955! l S.C.R. p. I.

SVPREME COVRT REPORTS

(1970) 3 S.C.R.

extinguished on adoption-see Krishnamurthi V asudeorao Deshpande v. Dhruwaraf('). In fact under the Benaras School of Mitakshra rule where a male coparcener is not entitled to alienate even for value his undivided interest in the coparcenary property without the consent of the other coparceners, the alienation effected 'by a sole surviving male coparccner can be successfully challenged by a person adopted subsequent to the alienation.

The fiction of relation back has been given full effec~ by courts and consequences spelled out a5 if the fiction is a fact.

The adopted son is deemed for all practical purposes, subject to some minor exceptions, to have born as an aurasa son on the date his adoptive father died. Admittedly but for the relevant provisions in the Act the settlement in favour of the appellant could have afforded no basis for resisting the claim of the adopted son.

Therefore we have to see whether the provisions of the Act have effected any change in the law as regards the fiction referred to.

Section 4( 1) of the Act provides :

"Save as otherwise expressly provided in this Act,-

( a) any text, rule or interpretation of Hindu Law or any custoln or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it inconsistent with any of the provisions contained in this Act."

It is undisputed that the fiction of relation back in the case I' of adoption under Hindu law is based on Hindu law texts or rule <;>r at any rate it is based on interpretation of Hindu law. Theretore that rule ceased to have effect from the date the Act came into force with respect to any matter for which provision is made . under the Act.

Hence we have to see whether the matter dealt with under s. 14 (1) impinges on the rule of adoption relating C back to the date of death of the adoptive father.

. doption is a ode of affiliation which con.ers a right of mhentance under Hindu law.

Under that Jaw a widow in the absence of any preferential heir succeeded to the estate of her deceased husband but she took only an estate known as widow's H estate.

After her death the property devolved on the nearest

P. AMMAL v. KAMAL!NGAM '(Hegde, J.) 197

reversioner of her husband. Section 14(1) of the Act made an important departure in that respect.

That section provides :

"Any property possessed by a female Hindu whether acquired before or after the commencemt of this Act, shall be held by her as full owner thereof and not as a limited owner."

The explanation to the section is not necessary for our present purpose.

It was conceded at the bar that Sellathachi was in possession of the property in dispute on the date the Act came into force.

By virtue of the aforesaid provision, she became the full owner of the property on that date. From a plain reading of s. 14(1l, it is clear that the estate taken by a Hindu female under that provision is an absolute one and is not defeasible under any circumstance. The ambit of that estate cannot be cut by any

i.ext, rule or interpretation of Hindu law.

The presumption of continuity of law is only a rule of interpretation. That presumption is inoperative if the language of the concerned statutory provision is plain and unambiguous.

The fiction mentioned earlier is abrogated to the extent it conflicts with the rights conferred on

a Hindu female under s. 14( 1) of the Act. In Sukhram and anr.

v. Gauri Shankar and anr. (1) this Court held that though a male member of a Hindu family governed by the Benaras School of Hindu .law is subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring aii interest in

that property by virtue of Hindu Succession Act is not subject to any such restrictions.

This Court held in S. S. M11nna Lal v ..

S. S. Rajkumar and ors. (2) that by virtue of s. 4 of the Act the legislature abrogated the rules of Hindu law on all matters in respect of which there is an express provision in the Act. In our opinion the rights conferred on a Hindu female under s. 14 (1) of the Act are not restricted or limited by any rule of Hindu law.

The section plainly says that the property possessed by a Hindu female 0!1 the date the Act came into force whether acquired before or after the commencement of the Act shall be held h\' her as full owner thereof.

That provision makes a clear depn:- ture from the Hindu law texts or rules.

Those texts or rules cannot be used for circumventing the plain intendment of ti provision.

In our judgment the learned judges of the Madras High Court were not right in limiting the scope of s. 14! 1) by taking the aid of the fi, tion ''lentioncd earlier.

That in our opinion ;,, wholly impe 1iss! .Je.

On the point under consideration the

(1) [1968]

J ,, C.R.476.

(2) [1962] J Supp. S.C.R. 41X.

SUPREME COURT REPORTS [1970) 3 s.c.R.

decision of the Bombay High Court in Yamunabal and anr. v.

Ram Maharaj Shreedhar Maharaj and anr. {1) lays down the law correctly.

In the result we allow this appeal and set aside the decree nnd judgment of the High Court and restore that of the trial court but in the circumstances of the case we make no order as to costs.

The 1st respondent will pay the Court fee payable by the appellant in this appeal.

Appeal allowed.

Y.P.

(1) A.I.R. 1960 Born. 463.

- A

PUNITHAVALLI AMMAL

RAMALINGAM (MINOR) AND ANR

e. SHAH

K. s: 'HEGoE '.ANo A. N. GRovER, JJ

s. 14(1)

s. 14(1)

s. 4

[1968] 1 S.C.R. 4

B. Datta

H M. Srinivasall

K. N. Ba

Lily Thomas

RAMAL!NGAM

legde

s. 14(1)

Hindu Succession Act

Somasundra Udayar

Tanjavoor District

ippaimal

nnd Punithavalli Ammal

June 17, 1956

s. 14(1)

Sellathachi

July

13, 1956

June 19, 1957

Punithavalli Ammal

s. 14(1)

High Court of Madras

Somasundara Udayar

Section 4( 1)

s. 14

Section 14(1)

Sukhram

Hindu Succession Act

s. 4

s. 14

Madras High Court

s. 14