UNION OF INDIA v.

G. R. PRABHAVALKAR & ORS.

(with connected appeal) March 16, 1973

(A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J

States Reorganisation Act (37 of 1956) s. 115-Equation of Officers fronz diflerent States when integrated-Principles.

Under s. 115 df the States R ... organisation Act, 1956, the Central Government has to determine the principles governing the equation of posts and prepare a common gradation list by integration of sen.ices in different States which have been reorganised. The Central Governme.nt is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and the preparation of the gradation list. It must give full and fair opportunity to the parties affected to make representations and' must give proper consideration to those representations.

To assist the Central Government in thiS task and for a proper consideration of the representations the Central Government is empowered to establish an Advisory Committee.

It is not for the Court to lay down the principles to be adopted for the purpose of equation so long as the Central Government Acts properly according to the provisions of the Act.

The power of the Court is only to see that the authority has acted properly in accordance with the statute; and it cannot go into the merits of the equation of posts which is a matter within the province of the Central Government.. Further, in the case of equation of posts, especially among officers who arc allotted from other States, it cannot be done with any mathen1atical accuracy.

There will be some hardship or other caused to the officers of one particular region or the other. That is inevitable when service conditions of the officers coming from different regions vary. However, if a particular decision is 1nala fide or arrived on totally irrelevant or extraneous considerations such a deciion can be interferred with by Courts.

[722B-G]

Jn the present case, certain sales-tax officers of the Madhya Pradesh State were equated to grade JI officers of the Maharashtra State.

The , officers of the Bombay State filed a writ petition challenging the order of the Central Government, on the ground that they were not given an opportu.nity to make representations and that the decision had been arriv ed at taking into consideration irrelevant and extraneous ma.tters, and that the Madhya Pradesh officers should have been equated to grade JI[

officer~ of the Maharashtra State.

The proceedings were ad!ourned by the High Court to enable the Central Government to consider any repre,., sentations that may be made by the concerned officers.

After such consideration the Central Government expressed the view that the equation already made was correCt. The High Court, however, quashed the decisions Of the Central Government, on the grounds that relevant matters were not considered and that irrelevant and extraneous matters were taken into account.

Allowing the appeal to this Court, H

HELD : (I) It is true that a decision taken by the Central Govern ment without giving an opportunity to the officers affected to make repres;;:ntations is not a valid one.

But the earlier order in the present case

UNION v. G. R. PRABHAVALKAR (Vaidia/ingam, J.) 715

bas been struck down by the High Court, not on the ground that the Bombay Officers (petitioners) had not been given opportunity to lJ\ake representations, but on other grounds which are not tenable. [724B.Cl

(2) Assuming the Central Government did not give an opportunity to the Bombay Officers to make their representations before passing the earlier order the defect was rectified by the fresh orde" passed later.

[724C]

(3) The later order shows that the Central Government had considered only very relevant factors and that the decision had been taken in con~

formity with the provisions of the Act. The Central Government had con•tituted a Central Advisory Committee composed of the Chairman of the Union Public Service. Ccimmission, a retired Judge of the High Court and a retired Law Secretary to the Government of India. It was after taking into account the views of that Committee and having regard to the comments of the State Governments and the representations made by the officers concerned that the Central Government took the decision.

The four factors which had to be taken into account as per the decision at the conference of the representatives of the State Governments and Government of India were all duly considered by the Central Govern ment, and no irrelevant or extraneous matters have influenced the decision of the Central Governmei>t.

No. maia fides were urged against the authorities [722G; 7230-F; 725A-E]

(4) Section 115(5) (b) refers to a proper consideration of any representation made by any officer. This was satisfied in this case. There is no further obligation to give a personal hearing to the officers con cerned.

[726G-HJ

(5) The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union had become unfructuous. [727C-Dl

[In the circumstances it is not necessary. to consider the point raised by the appellant that where all the fur re!evant factors decided upon had been taken into consideration, the fact that certain. other additional matters relevant to the question had also been taken into account by the Central Government would not make the order of the Central Government erroneous]. r [725E--G; 276B]

Union of India &· Anr. v. P. K. Roy & Ors. [1969] 2 S.C.R. 186, N. Subba Rao etc. v. Union of India and others, [1972] 2 S.C.R. 862, B. Rajish Rai and others v. Union of India and others, [1973] 1 S.C.C. 61, Ryots of Garabandho and other VillaRers v. Zamindar of Parlakimedi and Another L.R. 70 Indian appeals 129, re'ferred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2303 of 1969.

Appeal by special leave from the judgment and dated February

25. 26, 1969 of the Bombay High Court in Misc. Petition No. 75 of 1967 and Civil Appeal No. 2304 of 1969.

Appeal by special leave from the judgment and order dated February 25, 26, 1969 of the Bombay High Court in Misc.

Petition No. 75/67.

F. S. Nariman, Additional So/icir-Genera/ of India, G. Das, A B. D. Sharma and S. P. Nayar, for the appellant, (in C.A. No.

2303) of Respondent No. 11 (in C.A. No. 2304).

K. K. Slnghvi, R. B. Datar; for respondents Nos. 1 to 7 (in both the appeals).

S. I. Des/1pande and A. G. Ranthparkhi, for respondents B Nos. 8, 10 to 13 (in C.A. No. 2303) and for the appellants (in C.A. No. 2304).

B. D. Sharma for respondent Nos. 14 & 15 (in C.A. N'.>.

2303) and respondent No. 8 (in C.A. No. 2304).

The Judgment of the Court was delivered by

VAJDIALINGAM, J.-These two appeals, by special leave, are directed against the judgment and order dated 25/26th February. 1969, of the Bombiay High Court in Miscellenous Petition No. 75

of 1967, quashing the orders of the Central Government as well as certain other orders equating the post of Sales Tax Officer of old D Madhya Pradesh with the post of Sales Tax Officer, Grade II, of. old Bombay. Civil Appeal No. 2303 of 1969 is by the Union of India and Civil Appeal No. 2304 of 1969 is by some of the Sales Tax Officers of the old Madhya Pradesh State. They are also respondents in the Union's appeal. The appellants, in the latter appeal, support the Union Government in all respects.

In the course of the judgment, we will refer to the array of parties as in E Civil Appeal No. 2303 of 1969.

Respondnts 8 to 13 and 15, along with s.ix others, were serving as Sales Tax Officers in the State of Madhya Pradesh. On the reorganisation of states as from November l, 1956, these 13 officers were allotted to the bilingual State of Bombay. By Noti- F fication dated November 16, 1957, the State Government issued an order for equation of the various posts. . The Sales Tax Officers from Madhya Pradesh wer~ equated with Sales Tax Officers Grade III of Bombay. At this stage it may be mentioned that in Bombay there were three Grades of Sales Tax Officers, being Grades I, II and ID. On the basis of tile equation adopted by the State Government, a seniority list was publi.shed on May 21, 1959. In the G meanwhile, the Sales Tax Officers allotted from Madhya Pradesh. not sll'lisfied with the decision of the State Govemment equating them with Grade III officers of Bombay, had made representations

to the Central Government. Their grievance was that they should have been equated with Grade II officers of Bombay. The Central Government, having due regard to the principles formuu lated earlier in consultation with the State Governments and after consulting the Central Advisory Committee con!ltituted for the purpvse, accepted the representation of the erstwhile Madhya

A Pradesh Officers and equated them with the Sales Tax Officers, Grade II, in the reconstituted Bombay State. . This decision was conveyed by the Central Government to the State authorities by its Jetter dated April 23, 1960. The State Government gave effect to the decision of the Central Government by its Resolution dated April 27, 1961; and on that basis published also a seniority list B on October 10, 1963, and invited representations and objection; from all the , officers. In this seniority list, the erstwhile Sales Tax Officers of the Madhya Pradesh State were equated with Grade II officers of the Maharashtra State and they were also given suitable ranks. From the records it is seen that only the first respondent, who was already a Sales Tax Officer in the Bombay State, filed a C representation.

His representation was rejected by the Central Government.

Respondents 1 to 7 and one G. S. Kochrekar (since deceased) filed Miscelleneous Petition No. 75 of 1967 in the High Court. under Article 226, challenging the decision of the Central Go,·- ernment and the State equating the Sales Tax Officers of the D erstwhile Madhya Pradesh State with the Sales Tax Officers, Grad: II, of the Bombay State. Their main ground of attack appears tO have been that in arriving at the decision the Central Government did not give an opportunity to th~ Bombay officers to make their representations and that the decision has been arrived at taking

into consideration irrelevant and extraneous matters.

The E Writ Petition was opposed by the Madhya Pradesh Officers. The Central Government was also added as a party at a later stage of the proceedings before the Hil!h Court. On behalf of the Central Government, an affidavit was filed by the Deputy Secretary, Ministry of Home Affairs, detailing the reasons for passing the order of April 23, 1960.. The proceedings were adjourned by the High Court to enable the Central Government to consider the represen- F tations that may be made by the concerned officers. Ultimately the Central Government, by its order dated February 15. 1969. expressed the view that the equation already made was correct.

The High Court has quashed the disions of the Central Government dated ApriL23, 1960 and February 15, 1969 as also the G Resolution dated April 27, 1961 and the seniority list published by the State Government.

The two grounds on which the High Court has quasned these orders and Notification are :-

( 1) if the matters relevant to be considered for the purpose of equation, are taken into account. the equation made by the Central Government is not . a rational one; and

(2) io eqµatinl( the Sales Tax Officers of Madhya

Pradesh with Sales Tax Officers, Grade TI, ol

of Bombay, the Central Government have taken into account irrelevant aJ!ld extraneous matters.

It is now necessary to advert to the relevant provisions oi. the statute, as also the various orders passed by the Central and State Governments. The States Reorganisation Act, 1956 (hereinafter to be referred to as the Act) was passed on August 31, 1956.

Under section 2(a), !st of November, 1956, is the 'appointed day', Part X contains provisions as to services. Section 114 deals with all India Services.

Section 115 contains provisions' relating to other services.

The provision relevant in this section is sub-section 5, clause (b), which is as follows:-

Provisions relating to other services.

"115 ( 5) The Central Government may by order established one or more Advisory Committees for the purpose of assisting it in regard to

• • • •

(~) the ensuring of fair and equitable treatment

to all persons affected by the provisions oi. this section and the proper consideration of any representation made by such person",

Section 117, which confers powers on the Central Government to give directions, is a.n follows :-

Power of Centra.l Government to give direction. l 17. "The Central Government may at any time

efore or after the appointed day give such directions to any State Government as may appear to it to be 1t1ecessary for the purpose of giving effect to the foregoing provisions of this part and the State Government shall comply with such directions".

In the affidavit of the Deputy Secretary to the Government of India, Ministry of Home Affairs, filed before the High Court, it has been stated that conferences were held in May 1956 between the representatives of the State Governments and the Government of India ln New Delhi and it was unanimously agreed that in determining the equation of posts, the following factors should be borne in mind:-

( 1 ) the nature and duties of a post;

(2) the responsibilities and J, owers exercised by the officer holdiag a post; the extent oi. the territorial or other charge held or responsibilities discharged;

/ I \

(3)

(4)

the minimum qualifications, if any, prescribd recruitme_nt to the post; and . ---- the salary of the post.

for

That such a decision was taken is also clear from the circular. of' the State Government dated December 11, 1957. This circular was published for the information of the officers that the general principles to l:Je i, orne in mind and referred to earlier, were to befollowed in the equation of posts. Those principles, it is further stated, were settled at a conference convened by the Government of India in May 1956, which was attended, among others, by the representatives of the former States of Bombay, Madhya Pradesh, Hyderabad, Saurashtra and Kutch.

It is further stated that the factors decided upon where also coosidered by the Integration Committee of Ministers and were found suitable and that the State

Governmnt was making equation of posts having due regard to these factors. The State Government by its Resolution dated November 16, 1957, e11uated the Sales Tax Officers of Madhya Pradesh with Sales Tax Officers Grade III of Boml:Jay. This led to representations being made by the Madhya Pradesh Officers to the Central Govem1ment.

In the affidavit of the Deputy Secretary, it is stated that under the provisions of section 115 (5) of the Act, the Central Government had constituted the Central Advisory Committee for the purpose of assisting it in giving proper consideration to the representations that are made by officers of gazetted cadres.

The Committee consisted of the Chairman c.f the Union Public Service Commission as its Chairman, Shri P. N. Sapru, Member, Rajya Sabha and a retired Judge of the Allahabad High Court and Shri K. Y. Bhandarkar, retired Law Secretary to the Government of India. It is further stated that the representations received from the ex-Madhya Pradesh Sales Tax Officers claiming equation with Grade II officers of Bombay were reforred to the said Ad- ofisory Committee for their consideration and advice. It is further stated that after taking into consideration the points raised by the officers in their representations, the comments of the State Government, the recommendations of the Advisory .Committee and other relevant factors, the Central Government decided that the post of Sales Tax Officer, Madhya Pradesh. (Rs .. 225-600) was to be equated with the post of Sales Tax Officer, Grade II, Bombay (Rs. 300-650). It.is further stated in the affidavit that this decision was conveyed to the State of Bombay tly the Ministry of Home Affairs, Government of India, in its letter dated April 23. 1960.

A persual of the order dated April 23, 1960, of the Central Government also bears out 'I.he above facts.

On April 27, 1961, the State Government amended its previous Resolution of 1957 so as to accord with the decision of the

Central Goyernme:it as co:itained in its letter dated April 23, 1960.

On th_e as1s _of this equauon, the State Government also published a semonty list on October 10, 1963, and called for objections.

The only representation dated January 9, 1964, received from the first respondent, who pressed his claim to be put in Grade II. was rejected ultimately by the Central Government and this led to the filing of the Writ Petition by the first respondent as well as certain other officers of the Bombay State.

The High Court has discussed at grea.t length the set-up and the scheme of the Sales Tax Officers in the two States, the nature of •the duties and powers exercised by 'them as well as their salary, method of recruitment, chances of promotion and other matter;.

The High Court took the four factors, which have been directed to tie borne in mind as a result of the conference held between the representatives of the State Governments and the Central Government and has come to the conclusion that these factors, if correctly apolied, will not justify the equation of the Madhya Pradesh officer' with the Sales Tax Officers, Grade II, of Bombay, In fact the view of the High Court is that on an overall assessment the Sale' Tax Officers in Madhya Pradesh area were in an inferior positio~ and that even the Sales Tax Officer, Grade III, of old Bombay State are superior to the Sales Tax Officers of Madhya Pradesh.

In another context, the learned Judges observe that no satisfactory material has been made available to the Court to show the supedority of the Stales Tax Officers of Madhya Pradesh over the Sale; Tax Officers, Grade III, of Bombay. The sum and subslance cf the reasoning of the High Court is that as the salary of the ol:l Madhya Pradesh officers is assured by the Act, they should be satisfied if they are equated with Sales Tax Officers. Grade III, of Bombay State.

The orders were finally struck down on the ground that the relevant factors for equation have n.ot been properly considered and that irrelevant matters have been taken into account.

It is seen from the judgment of the High Court that on Maren 19, 1968, the proceedings were adjourn_ed to enable the Central Government to consider the representations of the Bombay officers. The order of the High Court dated March 19, 1968, stii:tes that the counsel for the Union Government made a representat10n that it was willing to review the equation of posts of Sales i:ax Officers from the erstwhile State of Madhya Pradesh after heann)!

the affedted officers from the various integrating areas.

Te Government of India passed an order on February 15, 1969 •. in and by which the original decision dated April 23, 1960, equatmg the Madhya Pradesh officers with Sales Tax Officers Grade II of Bombay, was allowed to stand.

There is a reference in the judgment that this letter dated February 15, 1969, was given to the learned Judges and that it was also agreed to be shown to the counsel for the Writ Petitioners.

That the High Court has looked into this letter is also clear from the fact that it says that outside matters, like the hierarchy of the revenue officers under the Land Revenue Code, have been taken into account by the Central Government. There is no other indication in the judgment as to what attack was made on this decision on behalf of the Bomba¥ officers. This order of the Central Government also has been quashed by the High Court.

On behalf oi. the Union, the learned Additional Solicitor General has urged that the High Court has grossly mis-appreciated the nature of the jurisdiction that it was exercising in such matters.

It was pressed before us that the Central Government, having due regard to the principles that have bi:en laid down for the purpose of equation of posts and after a proper consideration of the repre--

sentations of the officers and the recommendations of the Advisory Committee, have equated the Madhya Pradesh Sales Tax Officers

with the Sales Tax Officers, Grade II, Bombay. In arriving at this decision, it is pointed out that no irrelevant factor has been taken into account and the decision is the only possible one that could be arrived at in the circumstances. The representationE made by the officers concerned have been properly considered as is mandatory under the provisions oi. the Act. The Central Government has acted according to the provisions of the Act. Under those circumstances, the learned Additional.Solicitor General urged that the order of the High Court quashing the orders in question was not justified. Mr. S. J. Deshpande, learned counsel for the appellants in Civil Appeal No. 2304 of 1969 and Mr. B. D.

Sharma, learned counsel, for the State of Bombay in both these matters have adopted the arguments of the Additional Solicitor General.

Mr. K. K. Singhvi learned counsel for the Bombay officers, has pointed out that the orders of the Central Government have been passed in violation of the principles oi. natural justice inasmuch as no opportunity given to the officers concerned to make their representation and they were not given a personal hearing before the Central Government decided against them.

Even the decisions arrived at, as pointed out by the High Court, are based on a consideration of irrelevant and extreneous factors.

He pointed oufthat the principles formulated the Central Government, in consultation with the State GovernmeJ\t, for equation of

H posts have not been given due regard. The counsel further urged that the equation made by the Central Government, if allowed to stand, will work greljt hardship to the Sales Tax Officers of Bombay, as it will materially affect their hances of promotion.

He further pointed ou1 that the State Government has, in accordance with the decision of the High Court, modified the decision equating the Madhya Pradesh officers with Sales Tax Officers, Grade II, of Bombay and, therefore, these appeals have become "infructuous.

In our opinion, the contentions of the learned Additional Solicitor General are well founded. The Central Government, under section 115 of the Act, has to determine the principles governing equation of posts and prepare a common gradation list by integration of services.

To assist it in the task of integration of "services and for"" a proper consideration of representations, the

Central Government is empowered to establish Advisory Committees. The Central Government is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and preparation of gradation lists.

It has also to give a full and fair opportunity to the parties affected to make their represd1tations; and the Central Government has also to give a proper consideration to those representations.

So long as the Central Government has acted properly according to the provisions of the Act, we are of the view, that a court cannot go into the meril5 or otherwise of equation of posts which is matter within the province "of the Central Government.

It is no doubt true that the Central Government must have due regard to the principles enunciated by it in consultation with the states for the purpose of equation of posts. It must not only give an opportunity to the concerned officers to make representations, but it must a15o give those representations a proper consideration. It is not within the province oi the courts fo lay down what are the principles to be adopted for purposes of equation.

That falls within the purview of the statute concerned and the authorities charged with such duty. The power of the courts is only "to see that an authority bas acted properly in accordance with the statute. If that is estabilished, the decision of the authorities concerned will have to stand. Ii a particular decision is ma/a fide or arrived at on totally irrelevant and extraneous considerations. such a decision can be interfered with by courts. In this case, no ma/a fides are alleged.

As to whether any extraneous or irrelevant factors have been taken into account will be dealt with later.

The High Court is of the view that the equation settled bv the Central Government affects prejudicially the officers of Bombay. By Madhya Pradesh officers being equated with Grade II officers of Bombay State, the High Court observes that-

( a) Bombay officers acting in Grade lI have to revert to Grade III;

U'i!JON v. G. R. PRABHAVALKAR (Vaidialingam, J.) 723

(b) Madhya Pradesh Sales Tax Officers have got large jumps in salary; and

( c) even the little chance of promotion is lost to the Bombay Officers till all the 13 officers from Madhya

radesh retire or are exhausted.

In our view, the High Court has grossly erred. In the case of equation of posts, especially among officers who are allotted from other states, it canno1 be done with .any mathematical accuracy.

There will be some hardship or. other caused to the officers of one particular region or other.

That is inevitable when the service conditions of the officers coming from different regions vary. When the Central Government was impleaded as a party in the Writ Petition before the High Court,. an affidavit of the Deputy secretary, Home Affairs, was filed.

That affidavit very exhaustively deals with the circumstances under which the Sales Tax Officers of Madhya Pradesh were equa1ed with Sales Tax Officers, Grade II, of Bombay by the Central Government's order dated April 23, 1960.

The Central Government had constituted the Central Advisory Commhtee as is required under sub-section 5 of section 115 of the Act.

The composition of the Committee has been 1eferred to earlier. It was, after taking into account the views of the Central Advisory Committee and having due regard to the comments of the State Governments, and the representations made by the officers concerned that the Central Government took the decision.

The factors which had to be taken into account as per the decision taken at the conference held in May, 1956, were all duly stated to have been considered by the Central Go"ernment.

We do not find that any irrelevant or extraneous matters have influenced the decision of the Central Government.

It is true that a decision taken by the Central Government without giving an opportuni1y to the officers affected to make representations, is not a valid one. It has been so held by this Court in Union of India & Anr. v. R. K. Roy & Ors. (1) The jurisdiction and powers of the Central Government under the Act have also been laid down in N. Suba Rao Etc. v. Union of India and Others(') and D. Rajish Raj and Others v. Union of India and Others('). One of the points that has been stressed by Mr.

Singllvi is that the decision of the Central Government dated April 23, 1960, is opposed to the principles of natural iustice inasmuch as the Bombay Officers had no opportunity of making any representations berore the said order was passed.

We have alreadv referred to the fact that originally the State Government equated the Madhya Pradesh officers with Sales Tax Officers, Grade III,

of Bombay.

The Madhya Pradesh Officers filed representations to the Cenfral Government against this equation. It is not clear from the records whether any counter 11epresentations were received by the Central Government from the Bombay officers. Nor is it clear whether the Central Government called upon the Bombay Officers to offer their comments or views on claims made by the Madhya Pradesh officers. Anyhow the order came to be passed on April 23, 1960. This order has been struck down by the High Court, not on the ground that the Bombay officers have not been given an opportunity to make representations, but on other grounds.

Assuming that the Central Government did not give an opportunity to the Bombay officers to make their representations before passing the order of April 23, 1960, the defect in this regard s1ands rectified by the fresh order passed on February 15, 1969.

We have already referred to the fact that during the hearing of the Writ Petition, after the Central Government was impleaded, a representation was made on its behalf that the Union Government was willing to review the equation of posts of Sales Tax Officers from the erstwhile State of Madhya Pradesh after hearing the affected officers from the various integrating areas.

This representation was incorporated in an order of court dated March 19, 1968 and the proceedings stood adjourned. There is no controversy that all the officers concerned, including the Bombay officers made representations to the Central Government. The Bombay officers wanted the order of April 23, 1960, to lie modified by equating the Madhya Pradesh officers with the Sales Tax Officers, Grade IIJ, of Bombay, as was originally done by the State Government. The Madhya Pradesh officers, on the other hand, reinforced their claim to sustain the order of April 23, 1960. The Central Government passed the order on February 15, 1969. which was made known to the learned Judges hearing the Writ Petition. In fact this is also one of the orders that has been struck down by the High Court. When the order has been struck d.own. it is quite reasonable to infer that the Court and all parties were fully aware of the very elaborate reasons given by the Central Government for equating the Madhya Pradesh Sales Tax Officers with the Sales Tax Officers. Grade 11, of Bombay. There was no attack, so far as we could see, levelled by the Writ Petitioners against this order of the Central Government excepting that a personal hearing was not given to them by the Central Government. The High Court brushed aside this order by a mere statement that the additional matter that was considered by the Central Government related tQI the hierarchy of revenue officers under the Land Revenue Code and that the said matter is outside those to be considered according to the minutes of the joint conference of the representatives of the State and the Central Governments.

1he order dated February 15, 1969, passed by the Central Government, together with the enclosures, is a very lengthy one.

It clearly shows that they had taken into account the representations made by the officers "'th in thei former State of Madhya Pradesh a11d the State of Bombay, the various affidavits and counter-affidavits filed ll). the High Coun, the representations made by the Bombay Officers, the commits of the State Government on those representations and the recommendations of the Central Advisory Committee. It is after a consideration of these matters that the Central Government decided to equate the Sales T~ Officers of old Madhya Pradesh with Sales Tax Officers, Grade II, of old Bombay. A copy of the explanatory memorandum to the recommenda- C lions of the Central Advisory Committee has also been forwarded by the Central Government to the State Government. The entire proceedings resulting in the 01der of February 15, 1969, leave no doubt in our minds that the entral Government have considered only very relevant factors and the decision has als.o been taken in conformity with the provisions of the Act. They also show that

the Cen!ral Government has given a proper consideration to the representations made blY the Bombay and Madhya Pradesh officers. The order deals with every one of the points raised in both sets of representations and it also gives elaborately the reasons for rejecting the represcll'tations of the Bombay officers and for accepting those of the Madhya Pradesh officers.

The learned Additional Solicitor General pointed out that it. is only necessary that the authorities concerned should bear in mind the four factors, referred to earlier, in the matter of equation of posts. According to him, when once these factors have been properly taken into account, the mere fact that certain other additional or incidental matters relevant to the que.stion have also been considered, will not vitiate the orders passed by the Central Government. In this connection the learned Additional Solicitor General drew our attention to the decision of the judicial Committee in R'yots of Garabend/r(J and Other Villagers v. Zemindar of Parlakimedi and Another('). The provision that the Judicial Committee had to consider was contained in sub-section 2 of section 168 of the Madras Estates Land Act, 1908, that in settling rents the Collector "shall have regard to the provisions of this Act".

The Judicial Committee held that these provisions only require that they must be taken into consideration by the officers concerned and it is impossible to say that there is a duty on the part cf the officers to keep rigidly within the limits imposed by these provisions. Based upon this decision, the con•ontion of the learned Additional Solicitor General was that even if certain ot\9r additional matters relevant to the question have been taken into

(I) L.R. 70 Indian Appeals 129. 14-L76!Sup, CI 73

SUPREME COURT REPORTS [1973] 3 s.c.ll.

account by the Central Government, its order cannot be considered to be erroneous. In our view, the earlier order dated April 23, 1960, as well as the latter order dated February 15, 1969, have both been passed by the Central Government having due regard to the prihciples settled for purposes of equation of posts. In this view, it is not necessary for us to consider the point raised by the learned Additional Solicitor General based upon the decision of the Judicial Committee.

This order of February 15, 1969, has not, in our view, received due consideration at the hands of the High Court.

On the other hand, the High Court has dealt mainly with the order dated April 23, 1960, as well as the consequential orders passed by the State Government. As we are satisfied that the order of February 15, 1969, has been passed by the Central Government on a proper consideration o.f all relevant factors and materials, it is not necessary for us to deal elaborately with the reasons given bi}' the High Court for striking down the previous order, except to say that

the High Court's view in respect of those matters is not justified.

Even the grievance that the Bombay officers did not have an opportunity to make my representation before the order dated April 23, 1960, was passed, has now been removed by the Central Government furnishing the said opportunity before it passed the order of February 15, 1969. Even before us, the learned counsel for respondents 1 to 7, has not been able to point out infirmities, if any, in this order.

The criticism of Mr. Singhvi, learned counsel, levelled against the order of February 15, 1969 that the Central Government did not give a personal hearing to the Bombay officers before passing the order, need not detain us long. Though such a grievance was made faintly during the argumell'ts in the Writ Petition, the High Court has not struck down even this order on this ground.

The High Court, in the judgment, has stated that the proceedings were adjourned on March 19, 1968, to enable "the Central Government to consider the representations of the Writ Petitioners". Therefore the High Court, which passed the order .of March 19, 1968, adjourning the proceedings had understood that the object of the said adjournment was to enable the Writ Petitioners to "make re presentations" and that the Central Government should properly consider the same. Admittedly, representations were made by the W'1t Petitioners an<l, as stated earlier by us, they have been dealt with by the Central G0vernment in its order dated Februarv 15. 1969.

Section 115(5)(b) refers to a proper consideration of anv rep•esentation made by any officer. This is satisfied in this case.

Mr. Singhvi, learned Counsel. drew our attention to the decisi"n of this Court in N. Subba Ra" Etc. v. Union of India And Others(1) and urged that it is implicit in the said decision

(I) [197212 s.c.c. 862.

that there is an obligation on the Central Government to give a personal hearing to the officers concerned under the Act. We have gone through the decision carefully and we do not find any basis for this contention. Therefore, there is no substance in this criticism of Mr. Singhvi.

Mr. Singh vi, learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on March 19, 1971, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay. This order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous.

In the result the judgment and order dated 25 /26th February, 1969, of the High Court are set aside and Civil Appeals Nos. 2303 and 2304 of 1969 are allowed. There will be no order as to costs in both the appeals.

V.P.S.

Appeals allowed.

UNION OF INDIA

G. R. PRABHAVALKAR & ORS

March 16, 1973

A. ALAGIRISWAMI

I. D. DUA

States Reorganisation Act

s. 115

s. 115

Central Government

Madhya Pradesh State

Maharashtra State

Bombay State

Madhya Pradesh

Central Govern

Government of India

Central Governmei

Section 115(5)

[1969] 2 S.C.R. 186

[1972] 2 S.C.R. 862

F. S. Nariman

G. Das

A B. D. Sharma

S. P. Nayar

K. K. Slnghvi

R. B. Datar

S. I. Des/1pande

A. G. Ranthparkhi

B. D. Sharma

VAJDIALINGAM

Union of India

Madhya Pradesh

November l, 1956

Bombay

November 16, 1957

May 21, 1959

Madhya

April 27, 1961

10, 1963

Maharashtra State

S. Kochrekar

Article 226

Ministry of Home Affairs

April 23, 1960

February 15. 1969

February 15, 1969

Central and State Governments

States Reorganisation Act, 1956

August 31, 1956

section 2(a)

Section 114

Section 115

section 5

Section 117

Centra.l Government

New Delhi

Hyderabad

Saurashtra

Kutch

section 115

Union Public Service Commission

P. N. Sapru

Rajya Sabha

Allahabad High Court

K. Y. Bhandarkar

State of Bombay

October 10, 1963

On the as1s of this equauon, the State Government also published a semonty list on October 10, 1963, and called for objections.

January 9, 1964

Maren 19, 1968

March 19, 1968

S. J. Deshpande

B. D.

Sharma

State of Bombay

K. K. Singhvi

section 115

Vaidialingam

Madhya

radesh

section 5

section 115

Singllvi

Madhya Pradesh

Cenfral Government

Central Governments

Cen!ral Government

section 2

section 168

Madras Estates Land Act, 1908

Singhvi

Central G0vernment

Februarv 15. 1969

Section 115(5)(b)

Singh vi

March 19, 1971

25 /26th February, 1969


STATE OF U. P.

KAILASH NATH AGARWAL & ORS.

March 16. 1973

[A. ALAGIIUSWAMI, I. D. DUA AND C. A, V AIDIALINOAM, JI,]

Cr. P.C.-s. 331(1)-Whether a District Mqlstratt is competent to grant pardon under the section when a Firs~ Class Magistrate, .before whom the enquiry proceedings wert pending, had rejected such a request.

Respondent entered into a conspiracy as a result of which they defrauded the railway administration during the year 1958-59, very large amounts. A charheet was filed against them under s. 120(B), 420, 467, 468 and 471 I.P.C.

The enquiry proceedings were started in the court of the 1st Class Magistrate, Kanpur.

The 2nd and 3rd respondents gave confessional statements and both of them made applicatiom& under s. 337 of Cr.P.C .. praying for grant of pardon. The Magistrate passed an order declining to grant pardon and rejected the applications. However, on behalf of the State, an application was lied before the District Ma, istrate, Kanpur, to grant pardon to reapondcnt 2 and 3 on c:ondition of their making a full disclosure of the whole caae. In the application, reference was made to the 'fact that a requeat made by tbele two acctJied for arant of pll'don was rejected by the Magistrate enquiring into the oft'ence.

The applica tion was oppoeed by repclf3deata No, 1 IDd 4 te 6 on the JfOUDd that the District MQistrate had no power to grant pardon when the enqulrina

Magistrate liad declined a limilar requat. The Diatrict Magiatrate r&o jected this contention and lfl!lted pardon to the 2nd: rapondent on con dition of hiJ making a full dilcloeure of the whole case.

The first responlleqt filed a criminal revi&ioo before the Diatrlet Judge K~J, npur, challenging this order. Ultimately it was heard bv a Civil and Sessions Judge, Kanpur.· It wu held that the District Magistrate was not competent to grant pardon to respondent No. 2. The Civil and Sessions Judge 'further held that the order of the Diatrict Magistrate was wholly without jurisdiction and therefore, referred the. matter to the Hiah

Court with a recommendation that the order of the District Magistrate granting pardon to the second resl.'ondent should be quashed. The High Court held that the District MagiStrate d no power to grant pardon after it had been once refused by the 1st Class Magistrate enquiring into the matter and that the order of the Diatrict Magistrate was revisable by the Civil and Sessions Judge and quashed the order of the District Magistrate, Kanpur. The question was whether the District Magistrate is competent under s. 337(1) of the Cr.P.C. tc, grant pardon to an accused when a 1st Class Magistrate before whom the enquiry proceedings had been pending had rejected such a request.

Partly allowing the appeal,

HELD: (i) A perusal of s. 337(1) shows that the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the First Class may tender pardon in the clrc; umstances mentioned therein at any stage of the investigation or enquiry into or trial of the offence.

But under the proviso if the offence is under enquiry or trial, only the District Magistrate and only the Magistrate making the enquiry or holding the trial, can exercise the power. Similarly where the offence

·*· A

·~ G

U.P. STATB v. K. N. AGARWAL (Vaidialingam, /.) 729

is under investigation, it is only a Magistrate having jurisdiction in the place where the offence might be enquired into or tried that can exercise the power. Even such a Magistrate can exercise that power only if the sanction of the District Magistrate has been obtained.

While there is a restriction on the powers of the Magistrate of the First Class, no such restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or enquiry into or trial of the offence. Emphasis is to be laid on the fact that the proviso to s. 337 which contemplates concurrent jurisdiction in the District Magis trate and in the Magistrate making an enquiry or holding the trial to tender pardons. The mere fact that a Magistrate of the first class enquiring into an offence has declined to grant pardon, as in the present case, does not take away the power or jurisdiction of the District Magistrate to entert.ain a fl.!fther apP.licati?n for t of pardo!l However, judicial propnety reqwres that 1f a higher authonty had dechned to tender pardon, a lower authority should not grant pardon except on fresh facts.

The above prinojple will apply even to proceedings under s. 338. [735B]

(ii) The question whether the State should have filed a revision against the order of refusal of the Magistrate, does not require an answer, because of the fact that the District Magistrate has got concurrent powers and that pe can be approached under s. 337 even after the Magistrate enquiring into the offence had declined to grant pardon.

[739D]

(iii) An order granting pardon is open to revision but whether the court whose powers are invoked for that purpose will interfere or not is a matter depending upon the circumstances in each case. Therefore, the first respondent's revision before the Sessions Court, was competent and a revision petition lies before this Court,

[740A]

(iv) A pardon granted bona fide is fully protected by the provisions df s. 529 of the Cr.P.C., but in view of the District Magistrate's power to grant pardon, it is not necessary that the State should rely on s. 529 Cleuse (g) of the Cr. P. C. [741A]

Kanta Prasad v. Delhi Administration [1958] S.C.R. 1218, A.!., Peiris

v. State of Madras [1954] Cr.L.J. 1638, State of Andhra Pradesh v. Che~

malapati Ganeswara & Anr. [1964] 3 S.C.R. 297 and M. M. Kochar v.

The State A.I.R. 1969, De_lhi 21, refed to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 193 of 1969.

Appeal by certificate from the judgment and order dated Sep4 tember 11, 1968 of the Allahabad High Court in Criminal Refer ence No. 284 of 1967.

0. P. Rana, for lfhe appellant.

B. P. Maheshwari and Saresh Sethi, for respondents Nos. 5 and 6.

The Judgment of the Court was delivered by

VAIDIALINGAM, J. The question that arises for consideration in this appeal by the State of U.P. on certificate is-

"whether a District Magistrate is competent under section 3 3 7 ( 1) of the Code of Criminal Procedure to

SUPREME COURT REPORTS [1973] 3 s.c.B..

grant pardon to an accused person when a First Class A Magistrate, before whom the inquiry proceedings had been pending, had rejected such a request".

Before we proceed to state the facts, it has to be mentioned that it has been brought to our noce that Sarwan Lal, the 4th respondent, died after the appeal was filed in this Court by the State. In consequence the appeal has abated against him. How4 ever, in the course of the judgment, we will have to refer to him also when we state the case of the prosecution.

The prosecution case against the accused was as follows :- The first respondent, Kailash N atli, along with Sarwan Lal, Moti Chandra and Smt. Shanti Devi, respondents 4 to 6 respectively, were the Directors of M/s M. K. Brothers (P) Ltd., Kanpur and were doing business in cotton in Kanpur.

In the course of their business, they used to purchase cotton from out stations and sell them to the textile mills at Kanpur. The second respondent, Kesardeo Budhia, was an employee of M/s M. K. Brothers (P) Ltd. and used to look after the work of taking delivery of cotton bales from the Kanpur railway station. The third respondent, Devi Prasad Agarwal, was a representative of J. K. Cotton Mills Kanpur.

In 1958 the financial position of M/s M. K. Brothers (P) Ltd. became very precarious and in consequence they com mitted considerable delay in clearing the consignments of cotton from the station premises and this resulted in their being liable for heavy arrears of demurrage and wharfage.

As the textile industry itself was facing a criis in 1958, the Government, with a view to give some assistance, granted several concessions. One such was that the consignees, who had their own railway sidings, were granted remission in respect of demur~ rage and wharfage payable to the railway authorities.

This enabled the consignees to take delivery of goods according to their convenience. In the said year, as M/s M. K. Brothers (P) Ltd. had received a large number of consignments of cotton bales, they evolved a scheme to avail themselves of the benefit granted to the textile industry by the Government.

For this purpose, they hatched a plan by which they misrepresented that the consignments of cotton bales received at Kanpur railway station, though in their name. actually belonged to M/s J. K. Cotton Mills Kanpur. The second respondent, an employee of M/ s M. K. Brothers, the third respondent, an employee of J. K. Cotton Mills and respondents 1

and 4 to 6, the Directors of M/s M. K. Brothers, entered into a conspiracy in furtherance of their object and as a result thereof they submitted false applications to the railway authorities on H behalf of J. K. Cotton Mills for remission on the representation that the goods had been consigned to J. K. Cotton Mills. In

U.P. sTATE V. K. N. AGARWAL (Vaidialingam, J.) 731

urtherance of the objct of this. conspiracy, they also made false !ndorsements on the atlway recetpts for transfer of the bales. As a result _of the conspuacy, they defrauded the railway administration dunng the year 1958-5? of very large amounts Acordingl a char"e-sheet was filed agamst respondents 1 to L. un~.ocr section; lZO(B), 420,467,468 and 471 of the Indian Pena, l Code.

B The inquiry proceedings were started in the Court of the First Class Magistrate, Kanpur, as the case was triable as a Sessions case. On June 30, 196_2, the second respondent, Kesardeo Budhia, made <1: confess10nal statement. Similarly, Devi Prasad Agarwal, the tlurd respondent, gave a confessional statement on July 12, 1963. Both responde_nts 2 and 3 made applications on c December 17, 1964, under section 33 7 of the Criminal Procedure

Court before !he Firt C_lass Magistrate praying for grant of pardon. The srud applications were supported by the prosecution, but the other accused opposed the grant of pardon. The Magistrate by' his order dated September 27, 1965, declined to grant pardon and rejected the applications of both the accused. How- .D ever, on behalf of the State its Special counsel filed an application on April 15, 1966, before the District Magistrate, Kanpur, to grant pardon to respondents 2 and 3 on condition of their making a full and true disclosure of the whole of the circumstances. In this application, it was stated that the First Class Magistrate, Kanpur, was inquiring into the matter and was recording evidence E of witnesses for the purpose of bdng satisfied that pri~ facie

case had been established.

It was stressed that the dtrect evtdence of conspiracy would be furnished by respondents 2 and 3 if they are granted pardon and examined as witnesses. Reference 'W-as also made to the effect that a request made by thos~ .acced for £rant of pardon was rejected by the Magistrate enqumng mto the p offences.

This application was opposed by respondents 1 and 4 to 6 on the ground that the District Magistrate has no po:ver to t pardon when once the enquiring Magistrate h~ decline~ a Mrrular request.

The District Magistrate rejected thiS onenllOn and_ held that he had jurisdiction to conside~ _the appcatton ~~ mcnts, notwithstanding the fact that the cnqmnng Magtstrate h.

C declined to grant pardon. On merits, the Magistrate held tha~ m

the circumstances it is enouoh if the second respondhnt, dKesdaratecdo Budh' 0 rd' "IY by ts or er J la alonco is tendered pardon. Acco

1~.:. :,37 to this accused . une I, 1966, he granted pardon under sectton disclosure of

~one on condition of his makin_g ful knd )~~~rrelating to the c Whole of the circumstances wuhm hiS now = Offences lf . Th . . . . 1 Revision No. 85 of 1966 b r e first respondent filed Cnnunah 11 'ng the order of the or~ the Distnct Judge, Kanpu~, c c~~lt with by the Civil stnct Magistrate which was ulttmate Y

"Z ...

SUPREME COURT REPORTS

and Sessions Judge, Kanpur.

The jurisdiction of the District Magistrate to grant pardon, after the First Class Magistrate having refused, was again the subject of debate before the Sessions court.

The State and the second respondent contended before the Civil & Sessions Judge that the Revision was not competent.

The Civil and Sessions Judge rejected the contention of the State that no revision lies.

It upheld the plea of the first respondent that the District Magistrate was not competent to grant pardon to Kesardeo Budhia.

The view of the Civil and Sessions Judge is that if the State was dis-satisfied with the order dated September 27, 1965, passed by the First Class Magistrate, that order should have been challenged in revision before the District Judge or the District Magistrate.

Not having done so, it cannot invoke the jurisdiction of the District Magistrate under section 337.

The Civil and Sessions Judge has further held that the order of the District Magistrate was wholly without jurisdiction and in consequence by his order dated June 16, 1967, referred the matter to the High Court with a recommendation that the order dated_ June 1, 1966, of the District Magistrate granting pardon to the second respon~ dent should be quashed.

This reference of the Civil and Sessions Judge before the High Court was Criminal Reference No. 284 of 1967. The High Court by its judgment and order dated September 11, 1968, has held that the District Magistrate has no power to grant pardon after it has been once refused by the First Class Magistrate enquiring 1 into the matter and that the order of the District Magistrate was revisable by the Civil and Ses'Sions Judge.

In this view, the High Court accepted the Reference and quashed the order dated June 1, 1966, of the District Magistrate, Kanpur.

Mr. Rana, learned counsel for the State, has raised three eontentions :

(1) The power under section 337 of the Criminal Procedure Code exercisable by the various Magistrates mentioned therein is concurrent and the District Magistrate in the circumstances of this case was competent to grant pardon to respon dent No.2. ( 2) The Revision filed by the first respondent before the Civil and Sessions Judge against the order of the District Magistrate was incompetent. ( 3) In any event, the grant of pardon by the District Magistrate is only an irregularity, which is cured by clause (g) of section 529 of the Criminal Procedure Code; and as such the High Court was in error in interfering with the said order.

,!)

U, P,· STATE v. K, N. AGARWAL (Vaidialingan,., J.) 733

Mr. B .. P. Maheshwari, learned counsel appearing for respondents 5 and 6, has supported the order of the High Court. According to him, the scheme of section 3 3 7 clearly shows that the question of granting or refusing pardon has to be dealt with in the circumstance and by the officers referred to therein.

When once that jurisdiction has been invoked before one officer, it cannot be reopened before another officer.

The counsel contended that it may be that if fresh facts have come to light later and are placed before the court, it may have jurisdiction to reconsider an order passed at the early stage of proceedings.

In this case, the State had not placed any material before the District Magistrate that was not already before the First Class Magistrate.

That being so, the District Magistrate had no jurisdiction to consider on the same facts a second request made for the same purpose.

Mr.

Maheshwan further pointed out that if the State was aggrieved by the order of the Magistrate dated September 27, 1965,. it should have challenged the same in revision before the Sessions Judge.

In view of these circumstances, he pointed out that the High Court had rightly held that the order of the District Magistrate was without jurisdiction.

It is now necessary to refer to the material provisions of the Criminal Procedure Code. Though section 337 is the relevant section, nevertheless, it is necessary to refer to section 338 also.

These two sections occurring in chapter XXIV dealing with "general pt; avisions as to i1,1quiries and trials" are as follows :

Tender of pardon to accomplice.

"3 3 7 (1 ) . In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to seven years, or any offence under any of the following sections of the Indian Penal Code, namely, sections 161, 165, 165A, 216A, 369, 401, 435 and 477A, the District Magistrate, a Presidency Magistrate, a Subdivisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or enquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, i'! the commission thereof: Provided that, where the offence is under inquiry or trial, no Magistrate of the first class Olther than the District Magistrate shall exercise the power hereby conferred

ess he is the Magistrate making the inquiry or hold mg the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inqUired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof."

( lA) "Every Magistrate who tenders a pardon under sub-section ( 1 ) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record:.

Provided that the accused shall pay for the same C unless the Magistrate for some special reason thinks fit to furnish it free of cost."

Power to direct tender of pardon.

"338. At any time after commitment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person suppOsed to have been directly or indirectly concerned in, or privy to, ll:fiY such offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person."

Section 435 ( 1) gives power to the High Court, the Sessions Judge and to the other authorities mentioned therein to call for records of inferior courts for the purposes mentioned therein.

Sub-section 4 provides that if an application under section 435 p has been made either to the Sessions Judge or the District Magistrate, no further application shall be. entertained by the other of them.

Section 529 occurring in Chapter XLV under the heading "Of irregular proceedings" deals with irregularities which do not vitiate proceedings.

The material part of this section relevant for the present purpose is as follows :-

Irregularities which do not vitiate proceedings.

"529. If any Magistrate not empowered by law to do any of the following things, namely :-

* * * * •

(g) to tender a pardon under section 337 or section H 338:

* • "' •

U.P. STATE v. K. N. AGARWAL (Vaidialingam, /.) 735

erroneously in good faith does that thing, his proceedings

shall not be set aside merely on the ground of his not being so empoWered."

A perusal of section 337 ( 1) shows that the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the First Class may tender pardon in the circumstances mentioned therein at any stage of the investigation or inquiry into or trial of the offence. But under the proviso, if the offence is under inquiry or trial, the District Magistrate and only the Magistrate making the inquiry or holding the trial can exercise the power. Similarly, where the offence is under investigation, it is only a Magistrate having jurisdiction in a place where the offence might be enquired into or tried. can exercise the power.

Even such a Magistrate can exercise that power only if the sanction of the District Magistrate has been. obtained. While there is rr restriction on the powers of the Magistrate of the First Class, no such restriction is to be found in the proviso on the powers of the District Magistrate either at the stage of investigation or inquiry into or trial ofthe offence. Sub-section 1 (A) makes it obligatory on the Magistrate tendering pardon to record his reasons for so doing and also of furnishing the accused 'with a copy of his order. No doubt, under the proviso, the accused has to pay for the same unless the Magistrate thinks fit, for some special reasons, to furnish the order free of cost.

Section 338 deals with the grant of pardon after the stage of commitment has been reached but before judgment is passed. It gives full power to the court, to which commitment is made, to tender pardon or order the Committing Magistrate or the District Magistrate to tender pardon on the same conditions. The question arose in Kanta Prashad v. Delhi Administration(~), whether the District Magistrate had power to tender a pardon under section 337 in lases where the offence was triable exclusively by the court of the Special Judge. Having regard to the provisions of the Criminal Law (Amendment) Act, 1952 and the scheme of section 3 3 7 of the Criminal Procedure Code, this Court held that as e court of the Special J ridge was in law a court of session, the District Magistrate had power to grant pardon.

The contention that under such circumstances the proper authority to grant pardon was the Special Judge was rejected, as the position of the Special Judge was similar to that of a Judge of a court of Session.

It was observed :

"The proviso to tion 33 7 of the Code of Criminal Procedure contemplates concurrent jurisdiction in the District Magistrate and the Magistrate making an

(I) [t 9SS] S.C.R.. 1218.

73la

SUPREME COURT REPORTS [1973] 3 s.c.R.

jnquiry or holding the trail to tender a pardon. According to the provisions of s. 338 of the Code, even after commitment but before judgment is passed, the Court to which the commitment is made may tender a pardon or order the committing Magistrate or the District Magistrate to tender a pardon. It would seem, therefore, that the District Magistrate is empowered to tender a pardon even after a commitment if the Court so directs. Under s. 8(2) of the Criminal Law (Amendment) Act, 1952, the Special Judge has also been granted power to tender pardon.

The conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon under s. 337 of the Code".

It will be noted from this decision that emphasis is laid on the fact that the proviso to section 337 contemplates concurrent jurisdiction in the District MagiBtrate and in the Magistrate making an inquiry or holding the trial to tender pardon. It is also emphasised that the conferment of the power to grant pardon on the Special Judge does not deprive the District Magistrate of his power to grant pardon under section 337. In A. /. Peiris v.

State of Madras(!), the question arose before this Court whether after commitment had already been made, the District Magistrate has power to grant pardon. From the facts mentioned in the judgment it is seen that on July 24, 1951, the police submitted the charge-sheet against the accused and one Albert. Albert, however, could not be traced and the other accused were committed to the Sessions on August 4, 1952. Albert was arrested on July 28, 1952, and his confession was recorded by the Magistrate after complying with all the necessary formalities required by law. On August 28, 1952, he was granted pardon by the District Magistrate, South Kanara. The evidence of Albert was relied on for convicting the other accused.

This Court rejected the contention that after commitmell't the only court having power to tender pardon was the court of Sessions Judge an.d not the District Magistrate.

It was observed :- "By section 338, Criminal Procedure Code, power is no doubt given after commitment is made to tender pardon, before judgment is passed, to any person supposed to have been directly or indirectly concerned with any offence or order the Committing Magistrate or the District Magistrate to tender the pardon. The section vests the court to which commitment is made, with power to tender pardon or order the Committing Magistrate or the District Magistrate to tender pardon during the trial of the case but it does not take away the power conler-

(l) 1954 Cr. L.J. 1638.

U.P. STATE v, K, N. AGARWAL (Vaidialingam, /.) 131

red under the proviso to section 3 3 7 (l) of the Criminal Procedure Code .... "

The proviso contains an additional provision which empowers the Distriot Magistrate to tender pardon where the offences are under inquiry or trial. The pre*

sent case is covered by the proviso to section 337 and not by section 338 of the Criminal Procedure Code. We hold, therefore, that the tender of pardon 1zy the District Magistrate on August 28, 1952, was valid".

In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao- & Anr. C> one of the questions that came up for consideration was. whether a pardon granted under section 337(1) by the Additional District Magistrate in a case, where an inquiry was pending before the District Magistrate, was illegal. It was contended that under section 337 only the powers of a District Magistrate, namely, the powers under entry 7(a) in Part V of Schedule ill of the Code of Criminal Procedure, as distinguished from the power under theproviso to the said section, can be conferred upon an Additional District Magistrate.

This Court, having regard to the order of Madras Government No. 3106 dated September 9, 1949, and entry 7(a) in Part V of Schedule III, rejected this contention. It is the view of this Court that. :

"The power conferred by sub-setion (1) of s. 337 on the different clauses of Magistrates is of the same character. The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate. But entry 7(a) in Part V of Sch. ffi.when it refers to the power of a District Magistrate under s. 337 (L) does not exclude the power under the proviso".

The decision referred to above clearly establish that the powers conferred on the District Magistrate and the other Magistrates under section 3 3 7 are concurrent and that a District Magistrate, even after commitment, has power to tender pardon. The proviso to section 337 ( 1) makes it clear that the District Magistrate, in addition to the Magistrates referred to fuerein, has power to tender pardon during inquiry into or trial of the offence.

Though the above decisions had no occasion to consider whether the District Magistrate has power to tender pardon, when the Magistrate en~ quiring into the offence has once refused, we are not able to find any such restriction placed upon the power of the District Magis~ H trate by the wording of the section itself. As the power confet:re<J

by sub-section 1 of section 337 on the different classes of Magis-

(1) [1964J 3 S.C.R. 297.

SUPREME COURT REPORTS [1973] 3 s.c.R.

trate is concurent and is oi. the sam~ character, it follows that the

wer to t7nder pardon can be exercised by everyone of the autho4 nue:s mntloned therein subject to the limitation specified in the

sectl?~ Its7lf. The mere fact that a Magistrate of the First Class enqlllnng mto the offence has declined to grant pardon, as in the case '?ef?re us, oes not take away the power or jurisdiction of the Distnct Magistrate to entertain a further application for grant

f pardon.

Thoug~ th~ District Magistrate has got power to consider a further apphcation, nevertheless, it is needless to state that he will have due regard to the views expressed . by the Magistrate for refusing to grant pardon. We must, however, state that judicial propriety requires that if a higher authority had declined to tender pardon, a lower authority should not grant pardon except on fresh facts which were not and could not have been before the higher authority when it declined to grant pardon. Even if pardon has been refused on one occasion, a further request may be made before the same Magistrate or the District Magistrate. But such a further request can be entertained and considered only if fresh or additional facts are placed biY the party concerned.

The above principles will apply even to proceedings under section 338. Even after commitment, a District Magistrate will have power to grant pardon. But if the court ()f Session had declined to grant pardon, the District Magistrate will not on the same facts ell'tertain a similar application for grant of pardon. It is necessary to bear in mind the principles stated above so that the authorities under sections 337 and 338 can exercise jurisdiction 'in harmony in order to further the interest of justice and avoid conflicting orders being passed.

The conlezmont of concurrent powers is also to be seen in section 498. Under sub-section 1, the IDgh Court or court of Session has got power to direct that any person be admitted to bail or to reduce the bail required by a police offict or a Magistrate.

Even though the Court of Session may have refused a request in this behalf for grant of bail, the High Court can be approached for a similar relief. Under sub-seotion 2, again power has been given to the High Court or Court of Session to order the re-arrest Of a person admitted to bail under sub-section 1.

G When the legislature intended that two authorities should not exercise jurisdiction on an identical matter, it has used appropriate language to that effect. For instance, under section 436(1), the Sessions Judge and the District Magistrate, in addition to the High Court and Sub-divisional Magistrate, have been empowered to can for and examine the records oi any proceedings before any inferior criminal court. Though it may appear from sub-section 1 that a District Magistrate can be moved even after the similar relief has been refused by the SessionS Judge or vice ver9tl, the

U.P. STATE V. K. N, AGARWAL (Vaidia/ingam, /.) 739

..A position is made clear by sub-section 4.

That sub*section pnr vides that if either the Sessions Judge or the District Magistrate has been moved, no further application shall be entertained by the other of them.

Though under sub-section 1 both of them have concurrent power, nevertheless, s.ub-section 4 clearly places a restriction on their powers by stating that if one ot them had been B moved, the other cannot entertain an application for the same purpose.

In view of the decisions of this Court referred to above, it is not necessary for us to refer to the decisions of the High Court taking one view or the other. From what is stated above, it follows that the view of the High Court that when once the Magistrate C enquiring into the offence had refused to grant pardon, the District Magistrate had no jurisdiction to entertain an application ior the same purpose, is erroneous ..

The further question is whether the State should have filed a revision against the order of the Magistrate dated September 27, 1965, refusing to grant pardon instead of approaching the District D Magistrate for the same purpose. This raises the question whether an order reftising to grant pardon is revisable ? The High Court has taken the view that the said order is revisable and that the State, if it was aggrieved, sh9Uld have filed a revision before the Sess!ons Judge.

We have already referred to . the fact that the first respondent had filed a revision before the Sessions Court E against the order oi the District Magistrate June 1, 1966. This revision has been held 1tr the High Court to be a proper one. As we have held that the District Magistrate has got concurrent powers and that he can be approached under section 337 even after the Magistrate enquiring into the offence has declined to grant pardon, the question wher the State should have filed a revision F against the order of the Magistrate becomes really academic. On the view expressed by us, the State was justified in approaching the District Magistrate even after the Magistrate had refused to grant pardon .

. However, the question regardin2 the revisability of an order granting pardon arises regarding the competency of the revision G filed by the first respondent before the Sessions Court challenl!ing the order of the District Magistrate dated June l, 1966. Section 435, which deals with the power to call for records of inferior courts, takes in the High Court, Sessions Judge, District Mastrate

and any S'!lb-divisional Magistrate emoowered bv the State G()vemment in that behalf. The power is given to call for and examine the records of any proceedings before anv inferior criminal court H for the purpose of satisfying itself as to the correctness. 1egality or propriety of "any finding, sentence or order recorded or nassed, and as to the regularity of any proceedings of such inferior Court

'' In our opinion, an order granting pardon under section A. 337 or 338 is certainly an order rorded or passed and the revisional court has got jurisdiction to consider the correctness, legality or propriety ot such an order. At any r; lte, tender of a pardon is certainly a proceeding of a criminal court. The revising authority can call for the records to satisfy itself as to the regularity of any proceedis of an inferior criminal court.

It B should also be noted that sub-section 1A of section 337 imposes an obgation on the Magistrate tendering pardon to record his reasons for so doing. Whether a revisional authority will interfere with the order of an inferior criminal court tendering pardon, is

altogether a different matter. That does not mean that a revisional court has no jurisdiction to entertain a revision against an order c granting pardon.

The decision that has been brought to our notice holding that section 435 cannot be invoked in the case or an order made either under section 337 or under section 338 is that of a learned single

Judge of the Delhi High Court in M. M. Kochar v. The State( 1 ) .

The learned Judge bas held that the tender of pardon and its I} acceptance by the person concerned is a matter entirely between the court and the person to whom pardon is tendered and that a co-accused bas no power to challenge the same, as it is a purely executive or administrative action and nO't a judicial decision.

Tendering of pardon, it is further stated, is only an exercise of one of the many prerogatives of the sovereign. After having held that E the High Court's jurisdiction cannot be invoked under section 435, the learned Judge on merits held that the tender of pardon was legaL

This decision ot the Delhi High Court was challenged before this Court in Criminal Appeal No. 109 of 1968. In its judgment dated September 16, 1968, this Court on merits agreed with the High Court that the tender of pardon was proper. The question F of the nature of the power exercised in granting pardon and the other question whether an order granting pardon was revisable by a superior court, were, however, left open. We have indicated earlier that an order granting pardon is open to revision, but whether the court whose l10wers are invoked for that purpose will interfere or not, is a matter depending upon the circumstances of G each case. Accordingly we hold that the first respondent's revision before the Sessions Court was competent and reject the second contention of Mr. Rana.

Coming to the third conention of Mr. Rana, it has been held by this Court in State of Andhra Pradesh v.

Cheemalapati Ganeshwara Rao & Anr. (2 ) that "a pardon granted bona fide is H

(1) A.I.R. 1969 Delhi 21.

U.P. STATE v. K. N. AGARWAL (Vaidialingllm, /.) 741

A fully protected by the provisions of section 529 of the Criminal Procedure Code". We have already extracted the relevant part of section 529. On the view expressed by us that the order of the District Magistrate granting pardon is legal and valid, it is not necessary for the State to rely on section 529, clause (g) in this case.

B In the result the order and judgment of the High Court dated September 11, 1968, in so far as it holds that the grant of pardon by the District Magistrate was illegal are set aside and to that extent the appeal is allowed in part. The order dated June 1,

1966 ol the District Magistrate, Kanpur, will stand restored.

S.C.

Appeal allowed in part.

1S-L761Sup.C .I ./73

STATE OF U. P

KAILASH NATH AGARWAL & ORS

March 16. 1973

I. D. DUA

s. 331(1)

s. 120(B), 420, 467, 468 and 471

I.P.C

1st Class Magistrate, Kanpur

s. 337

Cr.P.C

Diatrlet Judge K~J, npur

Civil and Sessions Judge, Kanpur

Kanpur

s. 337(1)

Cr.P.C

s. 337(1)

s. 337

s. 338

s. 337

s. 529

Cr.P.C

s. 529

[1964] 3 S.C.R. 297

P. Rana

B. P. Maheshwari

Saresh Sethi

VAIDIALINGAM

State of U.P.

section 3

Code of Criminal Procedure

Sarwan Lal

Kailash N atli

Moti Chandra

Shanti Devi

M. K. Brothers (P) Ltd.

Kesardeo Budhia

Devi Prasad Agarwal

J. K. Cotton Mills Kanpur

K. Brothers

J. K. Cotton Mills

M. K. Brothers

V. K. N. AGARWAL

Vaidialingam

July 12, 1963

section 33

September 27, 1965

April 15, 1966

District Magistrate, Kanpur

Kesardeo Budhia

section 337

June 16, 1967

September 11, 1968

June 1, 1966

Rana

section 337

section 529

B .. P. Maheshwari

section 3

Maheshwan

section 337

section 338

Indian Penal Code

Section 435

section 4

section 435

Section 529

section 337

section 337

section 1

Section 338

section 337

section 3

Code of Criminal Procedure

s. 338

s. 8(2)

s. 337

section 337

section 337

July 24, 1951

Albert. Albert

August 4, 1952

Albert

July 28, 1952

August 28, 1952

District Magistrate, South Kanara

section 338

Criminal Procedure Code

1954 Cr. L.J. 1638

section 3

section 337

section 338

section 337(1)

section 337

Part V of Schedule ill of the Code

Madras Government

September 9, 1949

Schedule III

s. 337

s. 337

section 3

section 337

section 1

section 337

section 338

sections 337 and 338

section 498

section 1

section 1

section 436(1)

section 1

section 4

section 1

section 4

section 337

Section 435

section 1A

section 337

section 435

section 337

section 338

Delhi High Court

section 435

September 16, 1968

section 529

section 529

section 529

June 1,

1966


COMMERCIAL TAX-OFFICER, BANGALORE, .ETC. ETC.

SRI VENKATESWARA OIL MILLS & ANR. ETC. ETC.

March 16, 1973

[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.] Central Sales Tax (Amendment) A.ct, 1959, s. 10 and Mysore Sales Tax Rules 1957, r. JS-Retrospective amendment-Jn correcting mis takes it is the law as amended that has lo be applied-Rule 38 has to be read with s. 10 of amending Act-A.ssessees cannot have adiantate of s. 10(1) without discharging burden placed on them ins. 10(1).

After the decision of this Court in Yadalam Lakshminarasimhiah Setty's case the President 'of India on June 9, 1969 promulgated tbe Cen tral Sales Tax (Amendment) Ordinance 1969 with tbe object of super seding the effect of that decision and to bring to tax sales effected by every dealer in the course of inter State trade or commerce notwithstand

ing the fact that no tax could have beeo levied under the sales-tax law ot the appropriate State if that sale had been an intra Sta!IY sale.

That provision was given retrospective effect but s. 10( 1) df the Amendment Act provided that if during the relevaJll period a dealer had not collected sales-tax on the ground tha~ sales-tax was not leviable on the sale in question under the unamended Act be would not be liable to pay sale .. tax under the amended Act. The burden of proving, however, that no sales-tax had been collected was plad by s. 10(2) on the dealer. The Ordmance was replaced by the Central Sales Tax (Amendment) Act, 1969. After the Amendment Act came into force the sales-tax authorities sought to reopen under r. 38 of the Mysore Sales Tax Rules 1957 the assessments made on certain dealers on the ground that these assessments suffered from mistakes apparent on the record.

In writ petitions filed by the dealers, the High Court of Mysore accepted their contention that the Sales Tax Officer lsid no jurisdiction to !'e9SSess the asoessees as it was impermissibl• for him to receive any additional evidence with a view to decide the ques tion whether the assessees had collected sales-tax on the turnover in question and consequently he could not take any assistance from rule 38.

Allowing the appeals by special leave filed by the Revenue.

HELD : It is well settled that if a subsequent legislation is given retrospective effect and is deemd to hll)>e been in force at the time when the order to be rectified was made, then the law to be applied is the amended law.

In other worys, for finding out whether there is a mistake apparent on the record the authority has to look to the amended law and not to the law that was in force at the time the original order \\'as made. [748Hl Rule 38 of the Mysore Sales Tax Rules must be read with s. 10 of the Amendment Act.

If so read it is clear that the assessin2 authorities be 1fore reassessing the dealers should afford them the opportunft}' to S'ltisfy them that they have not co'lected the tax.

If the impact of s. IO is ignor ed, as the High Court had done, then the assessments in -question afe liable to be reopened whether the assessees had collected tax or not. The assessees cannot have the benefit of s. 10(1) but not the burden of nroof placed on them under s. 10(2). [746E] ·

Yadafan1 Laksfuninarasilnhial1 Setty and Sons v. State of Mysore, 13 S.T.C. 583: State of Mysore v. Yada/Qm Lakshminarasimhiah Setty and Sons, 16, S.T.C. 231 (S.C.) M. K .. Venkatachalam, Income-tax Officer and .A.nr. v. Bombcy Dying and Manufacturing Co. Ltd., 34 I.T.R. 143 and

.A Mabwd Arecanut Syndicate (P) Lrd. represented by Its M"""l'r K.

Rania Rao, Arecanut Merchants, Shimoga_ v. Commercial Tax Qfficer, Shimoga and Ors.

Writ Petition No. 5223 of 1969-0.vil Appeal No. 2632 of 1972, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2593, 2594-2596, 2599, 2601-2605, 2609-2614, 2615, 2616, 2618, 8 2619-2627, 2628, 2629-2631, 2632 and 2634 of 1972.

Appeals by special leave from the judgment and order dated

Otober 12 and 13, 1971, November 15, 1971, October 25, and 13, 1971 and November 18, 1971 of the Mysore High Court at Bangalore in Writ Petitions Nos. 3978 of 1970, 1003-1005 of

1971. 5542, 6343, 6428, 6466, 6469, 6790, 6988, 7035, 7057, c 5504, 5514, 5525, 6001, 6082, 6110, 5959, 6111, 6775, 2779, 5538, 5540, 6080, 6081 and 6084 of 1969, 2780, 2925, 2926, 3347170, 5006 of 1970, 997 and 998 of 1971, 844 of 1971, and 699 of 1969.

A. K. Sen, S. S. Javali and M. Veerappa, for the appellants (in C.A. No. 2593).

M. Veernppa, for the appellants (in all other appeals).

K. Srinivasan and Vineet Kumar, for respondent No. 1 (in C.A. Nos. 2624, 2616, 2611, 2614 & 2544 & 2593) for the respondent (in C. A. Nos. 2594-2596 & 2628).

M .. C. Setalvad and K. N. Bhatt, for the respondents (in E C.A. No. 2598 in C.A. No. 2632).

K. R. Chowdhary and K. Rajendra ChowdhtlfY., for respondent No. 1 (in C. A. No. 2598).

S. P. Nayar and R. N. Sachthey, for respondent No. 2 (in C.A.

Nos. 2593, 2597-2605, 2606-2608, 2609-2614, 2615-2618, 2619-2627, 2633-2634).

The Judgment of the Court was delivered by .

HEGDE, J.-In these appeals by special leave, a common question of Jaw arises for decision and that question relates to the scope ancl effect of the Central Sales Ta11 (Amendment) Act, 1969.

The amendment in question came to be enacted under the following circumstances. The High Court of Mysore in Yadalam Lakshminarasimhiah Setty and Sons v. State of Mysore(1), held that under s. 8 (2) of the Central Sales Ta11 Act, 1956, prior to its amendment by Act 31 of 1958 a "sale" in the course of inter- State trade or commerce is to be ta11ed at the same rate and in H the same manner as it would have been tued, under the appropriate State law, if it had been an intra State transaction, but

fl) 13 S.T.C. 583.

without taking into consideration lhe mlnimdm twrnover fixed bly the State law for the purpose of determilring the liability of the "dealer" to be assessed under the State sales tax law. It further held that the words "same manner" in section 8(2) relate to the calculation of the tax and not refer to the procedure to be adopted while assessing the "dealer."

This decision was affirmed by the Supreme Court in State of Mysore v. Y addalam Lakshminarasimhiah Setty and Sons.(') Thereafter on June 9, 1969, the President of India promulgated the Central Sales Tax (Amendment) Ordinance 1969, with the object of superseding the effect of the decision in Y addalam Lakshminarasimhiah Setzy's case and to bring to tax sales effected by every dealer in the course of intrai State trade or commerce notwithstanding the fact that no tax could have been levied under the sales tax law of the appropriate State if that sale had been an intra State sale. The provision was given retrospective effect but it was provided in s. l 0 ( l ) of the Amendment Act :

"Where any sale of goods in the course of inter-state trade or commerce has been effected during the period between the 10th day of November, 1964 and the 9th day of June 1969, and the dealer effeating such sale has not collected any tax under the principal Act on the ground that no such tax could have been levied or collected in respect of such sale or any portion of the turnover relating to such sale and no such tax could have been levied or collected if the amendments made in the principal Act by this Act had not been made, then, notwithstanding anything contained in section 9 or the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turnover relating to such sale."

Sub-section ( 2) of s. 10 provided :

"For the purposes of sub-section ( 1), the burden of proving that no tax was collected under the principal Act in respect of any sale referred to in sub-section (1) or in respect of any portion of the turnover relating to such sale shall be on the dealer effecting such sale."

That Ordinance was replaced the Cen_tral Sales Tax (Amendment) Act, 1969. After the amendment came into force several Sales Tax Officers who had earlier assessed the assessees in accordance with the decision in Y adalam Lakshinaraslmhiah Setty' s case issued notices to those assessees proposing to reotify

(I)

S.T.C. 231.

A their assessments on the ground that the earlier assessments suffered from mistakes . apparent on the record. The respondents in these appeals resisted those notices on the ground that he had no competence to reopen the assessment. The Sales-tax Officers rejected that contention. Thereafter the respondents in these appeals challenged the orders made by the Sales-tax Officers before B the High Court of Mysore l:fy means of petitions under Art. 226 of the Constitution on two grounds viz. ( 1) ihat the Sales-tax Officer had no .iurisdiction to reopen the assessment as there was no mistake apparent on the record and (2) that the said Officer was in error in coming to the conclusion that the assessee had collected tax on the turnover which was earlier considered as c exempted.

The High Court accepted the first of the two aforementioned contentions viz. that the Sales Tax. Officer had no jurisdiction to reassess the assessees as it was impermissible for him to receive any additional evidence with a view to decide the question whether the assessees had collected sales tax on the turnovers in question and consequently he could not take any assist- D ance from the 38 of the Mysore Sales Tax Rules, 1957.

Before proceeding to examine the question of law arising for decision, it is necessary to note that in all the cases before us except in one which will be dealt with separately, we are told that

the assessees had been given opportunity to show that they had not collected sales tax in respect of the turnover with which they were concerned, but according to the OJJjcers concerned, the assessees had failed to discharge their burden. The finding of the assessing officers on this point is a finding of fact and was not open to review by the High Court in petitions under Art. 226 of the Constitution.

Rule 38 of the Mysore Sales Tax Rules, 1957 empowers the assessing, appellate or revising authority or the Appellate Tribunal at any time within five years from the date of any order passed by-it to rectify any mistake apparent on the record.

The High Court opined, in our opinion rightly that in order to attract the .power to rectify, it is not sufficient, ii there is merely a mistake in the order sougnt to be rectified. The mistake to be G rectified must be one apparent on the record. It is well settled that if a subsequent legislation is given retrospective effect and is deemed to have bieen in force at the time when the order to be rectified was made then the law to be applied is the amended lawsee M. K. VenkaNichaa/am, Income-tax Officer and Anr. v. •- Bombay Dyeing and Manufacturing Co. Ltd.(1). In other words for finding out whether. there is a mistake apparent on the record, H the authority has to look to the amended law and not to the law that was in force at the time the original order was made. The

0) 34 I.T.R. 143.

High Court had accepted this principle but rt proceeded to rule A that for finding out whether there was a mistake apparent on the record or not, it is not permissible for the Sales Tax Officer to take any . evidence whatsoever as the mistake to be rectified must be apparent on the record.

On that premises it held that because it is not permissible for the assessee to adduce additional evidence to show that they have not collected tax, It is not open to the B assessing authorities to reopen the assessments.

This approach is neither !ogical nor sound in law.

Section 10 of ihe Amendment. Act mitigates the rigor of the amendment made to s. 6 ol the Principal Act. But for s. 10 of the Amendment Act, every dealer would have had to pay tax on the turnovers in GUestiom whether he had collected taJt or not.

If the impact of s. 10 isignored, as the High Court has done, then the assessments in ques• C tion are liable to be re-opened whether the assessees had collected the tax or not. The assessees cannot have the benefit of s. 10(1) but not the burden of proof placed on them under s. 10(2). If the reasoning of the High CoUlt is correct then it is the' assessees who will bie deprived of the benefit ol s. 10(1) of the Amendment Act because there could not have been any finding in the original D assessment orders that the assessees had not collected tax. The legislative intention is clear and beyond doubt. The law gives a farther oppPrtunity to the assessees whose assessments are soµght to be reopened to satisfy the assessing authorities that they had not collected tax in respect of the turnovers in question. Rule 3 8 of the Mysore Sales Tax Rules must be read with s. 1 a of the E Amendment Act. If so read, it is clear that the assessing authori~ ties before rc::, assessing the dealers should afford them reasonable opportunity to satisfy them that they have not collected tax.

For the reasons mentioned above, we allow these appeal~. set aside the orders of the High Court and dismiss the Writ Petitions with costs. But in the case of Malnad Arecanut Syndicate (P) F Ltd., represented by its Manager K. Rama Rao, Arecanut Mar. chants, Shimoga v. Commercial Tax Officer, Shimoga and Ors.

(Writ Petition No. 5223 ol 1969-Civil Appeal No. 2632 of

1972) we are informed that rtification proceedings are still pending before the assessing authority.

If that is so, the sales tax officer shall proceed to dispose of the same according to law.

The G" respondents shall pay the costs of the. appellant in these appeals -one hearing fee .

G.C.

Appeals allowed.

COMMERCIAL TAX-OFFICER, BANGALORE,. ETC. ETC

March 16, 1973

K. S. HEGDE

P. JAGANMOHAN REDDY

H. R. KHANNA, JJ.

s. 10

Mysore Sales Tax Rules 1957

s. 10

s. 10(1)

Yadalam Lakshminarasimhiah Setty

India

June 9, 1969

s. 10( 1)

s. 10(2)

Central Sales Tax (Amendment) Act

After the Amendment Act

Mysore Sales Tax Rules 1957

High Court of Mysore

s. 10

s. 10(1)

s. 10(2)

Mabwd Arecanut Syndicate

Mysore High Court at Bangalore

A. K. Sen

S. S. Javali

M. Veerappa

M. Veernppa

K. Srinivasan

Vineet Kumar

M .. C. Setalvad

K. N. Bhatt

K. R. Chowdhary

K. Rajendra ChowdhtlfY.

S. P. Nayar

R. N. Sachthey

HEGDE

s. 8

section 8(2)

Supreme Court

Lakshminarasimhiah Setzy

10th day of November, 1964

9th day of June 1969

section 9

s. 10

Lakshinaraslmhiah Setty

Art. 226

Mysore Sales Tax Rules, 1957

Art. 226

Mysore Sales Tax Rules, 1957

Section 10

s. 6

s. 10

s. 10

s. 10(1)

s. 10(2)

s. 10(1)

s. 1