STATE OF U. P. & ANR.

RAZA BULAND SUGAR CO. LTD., RAMPUR

February 27, 1979

(R. S. SARKARIA, P. S. KAILASAM AND 0. CmNNAPPA REDDY, JJ.) B

U.P. Agricultural Income-tax Act (1948)-S. 18 Assessment of tax-If •could be made against partners of a firm without issuing notice to the firm.

Plea not taken at the first instance-If could be raised later.

Two joint stock companies entered into agreements with a former Princely State for the grant of agricultural land on payment of fu1r and equitable land C reYenue.

Later the two companies formed into a partnership. firm.

On the merger of the State with the Union of India, the Assessing Authority under the

U.P. Agricultural Income-tax Act issued notices to the two companies to submit their returns of agricultural income, which the companies did.

In writ petitions filed by the companies cho.llenging the assessment orders 1 the High Court accepted the contention that since the lands were neither assessed to land revenue nor were they assessed to any local rate or cess as requird by s. 2(a) of the Act, they were not assessabl'e to agricultural income-tax and remanded the cases to the Assessing Authority for determination of this question.

Before the Assessing Authority, on remand the companies raised for the

-first time the contention that since no notice had been issued to the firm of which they were partners, the assessment was invalid. The Assessing Authority E rejected this contention. He also held that the ]ands satisfied the requirements of s. 2(a).

In writ petitions filed by the two companies a single Judge of the High Court upheld the contention that the Assessing . .<\uthority committed an error of lb 1w in assessing the two' partners without assessing the firm. This \'iew V>'as affirmed by a Division Bench on appeal.

On further appeal to this Court it was contended that in the absence of a prohibition in the Act, the two companies could be validly assessed to tax without assessing the firm .

Allowing the appeal,

HELO : 1. The Assessing Authority was not in error in assessing tax on the returns submitted by the two companies and therefore the argument that assessment of the companies, without assessing the firm, was not legal, is without sub&tance.

[ 425 H-426 A]

2. "Person" defined in the section means an individual and includes a firm or a company. [ 423 G]

3. There is nothing in the Act prohibiting the Assessing Authority frcm H proceeding against individuals forming a partnership. Section 18 enables the authorities, v;1hile proceeding with assessment of a firm or a company, not to

r '

A determine the tax payable by the firm or the company but to proceed to determine the agricultural income of each member of the firrn.

Tho provisions do not apply to a case \Vhere the returns were submitted by the partners and the assessment made on that basis. The section would be applicable if assess

ment proceedings against a firm are stopped and the share of the individual is to be determined under the provisions of s. 18.

[ 424 F]

4. The well established position under the Incometax 1\.ct (Central Act) \Vith regard to assessment of firms is that where a firm has not made a return it is op'en to the department to assess a. partner directly in Hpect of his share of the firm's income without resorting to the machinery provided under the Act and without making an assessment on the firm, the only prohibition hi!ing against double taxation. [424 HJ

C.I.T. v. Murlidhar Jhawar & l'urna Ginning & Pressing Factory, 60 lTR 95 SC; referred to.

5. Secondly, the plea that assessment proceedings ought to have been taken egainst the firm, was not taken by them in the first instance either before the Assessing Authority or before the High Court. This plea cannot be allowed to be taken at a later stage. The assessees submitted their returns on the basis of their respective incomes.

[425 F-426 A]

6. The Assessing Authority has oorr'ectly come to the conclusion that the agreement between the parties provided for payment of land revenue. r426

F-GJ

CIVIL APPELLATE JURJSDICTION : Civil Appeal No. 2281 of 1969

Appeal by Special Leave from the Judgment and Order dated 6th December, 1965 of the Allahabad High Court in Special Appeal No. 978/62.

Shiv Pujan Singh and M. V. Goswami for the Appellant.

B. P. Maheshwari and Suresh Sethi for the Respondent.

The Judgment of the Court was delivered by

KAILASAM, J.-This appeal is by the State of U.P. by special leave granted by this Court against the judgment and order of the High Court at Allahabad in Special Appeal No. 978 of 1962.

Two companies, the Raza Sugar Co. Ltd. and the Buland Sugar Co. Ltd., were incorporated under the Rampur State Companies Act, 1932.

Messrs. Govan Brothers (Rampur) Ltd. were the common managing agents of the two companies.

On 10th May, 1933 the Raza Ltd. and on 11th December, 1934, the Buland Ltd. entered into agreements with the erstwhile State of Rampur.

The agreements provided that the Rampur State should grant to the companies le.ases of the a§ficultural land with adequate irrigation facilities suitable for cultivation of sugar-cane.

The companies were required to pay fair and equitable land revenue which was to be agreed upon by the com-

• y

...

panies and the Rampur State.

On 5th May, 1935, a partnership deed was a executed by the Raza Ltd. and the Buland Ltd. constituting a partnership firm of the two companies in equal shares known as the Agricultural Company, Rampur. In the year 1939 the Rampur State leased 2,000 acres of land and in the year 1946 another 2,000 acres of land to the Agricultural Company, Rampur.

In 1949 the State of Rampur acceded to the Union of India and was merged with the State of Uttar Prades)l with effect from 1st December, 1949.

The Rampur State had agreed to exempt the Raza Ltd. and the Buland Ltd. from all taxes for a period of 15 years from the date of commencement of their business.

The U.P. Agricultural Income Tax Act was applied to the areas which formed part of the erstwhile State of Rampur on 1st July, 1950.

The Assessing Authority issued notices under section 16 ( 4) of the U.P. Agricultural Income Tax Act to the Raza Ltd. and the Buland Ltd. for furnishing returns of their agricultural incomes for the years 1357 F to 1361 F. It may be noted that the notice was not issued to the Agricultural Company, Rampur.

The Raza Ltd. and the Buland Ltd. submitted their returns. The Assessing Authority assessed the two companies to agricultural income-tax for the years concerned. The companies preferred an appeal against the assessment to the Commissioner, Rohilkhand.j)ivision, and also filed writ petition No. 2385 of 1959 in the High Court of Allahabad challenging the assessment orders.

On 17th April, 1961 the writ petition was allowed and the o.rder of assessment was quashed with a direction that fresh assessments may be made.

The Commissioner also directed the Assessing Authority to make fresh assessments in the light of the observations made by the High Court in its. judgment dated 17th April, 1961, allowing the writ petition No. 2385 of 1959.

When the Assessing Authority started fresh hearing in pursuanco of the order of the High Court an objection was raised with regard to the assessability of the two companies on the !lfOund that no notice had been sent to the Agricultural Company, Rampur.

The Assessing Authority negatived the plea and assessed the Raza Ltd. and the Buland Ltd. for the years 1357 F to 1361 F and also for the years 1362 F to 1363 F.

Against the order of the Assessing Authority the two companies which in the meantime became amalgamated as the Raza Buland Sugar Co. Ltd., Rampur, filed a writ petition No. l 982 of 1962 in the High Court of Judicature at Allahabad and prayed for the quashing of the assessment order dated 29th June, 1962. made by the Assessing Authority against the Raza Ltd. and the Buland Ltd. for the assessment years 1357 F to 1363 F.

The writ petition was heard by a single Judge of the High Court who by his order dated 4th October, 1962 allowed the writ petition; ou the ground that the Assessing Authority committed an error of law in assessing the two partners of the Agricultural Company, Rampur, and not assessing the firm as such.

Aggrieved by the order the State filed Special Appeal No. 978 of 1962 before the Division Bench of the High Court at Allahabad.

The Division Bench of the High Court by its order dated 6th December, 1965, dismissed the Special Appeal.

An application for leave to appeal to the Supreme Court was dismissed by the High Court.

The appellants then preferred Special Leave Petition No. 1724 of 1969 to this Court and on the leave being granted this appeal is now before us.

The main contention that has been raised before us by the appellants is that there being no express prohibition under the U.P. Agricultural Income Tax Act an assessment can be validly and legally made on the individual partners, in the present case the tWo companies, without proceeding against the firm. It was pleaded that the tax could be assessed either on the partnership firm or on the partners invididually and that the view O!f the High Court that ti1e tax can only be recovered from the firm is erroneous.

The facts of the case disclose that on receipt of a notice by the Assessing Authority under section 16(4) of the U.P. Agricultural Income Tax Act, the two cqmpanies Raza Ltd. and the Buland Ltd. submitted their returns relating to the income of the two companies.

In the return it was stated that the income was half of the incc 'lle received from the partnership firm, the Agricultural Company, Rampur.

The assessment was made on the basis of the returns.

The, assessn•ent was questioned before the Commissioner and in. the writ petition before the High Court of Allahabad on the ground that the lands were neither assessed to land revenue in the United Provinces nor were they subject to local rate or cess assessed and collected by an officer of the Provincial Government.

This contention was accepted by the I-Ugh Court which directed the Assessing Authority to determine the question whether the lands were assessed to land revenue, in the (; nitcd Provinces or they were subject to local rate or cess assessed and collected by an officer as required under section 2 (a) of the U.P.

Agricultural Income Tax Act, 1948.

After remand the Assessinjli Authority found that the lands from which the income accrued satfofied the requirements of the section.

For the first time before the Assessing Authority the point was raised that as no notice was issued to the partnership firm, the partners i.e. two companies cannot be proceeded with for assessment of the tax.

When this plea was rejected by the

, ,,.

t '

Assessing Authority the matter was taken up before the High Cot,

.first before a single Judge and then before the Division Bench, which accepted the contention of the two companies and held that in the absence of notice to the partnership firm proceedings cannot be taken 3gainst the two companies for assessment of the tax.

The relevant provisions unde.r the United Provinces Agricultural Income-Tax Act, 1948, may be noticed.

Section 2(5) defines "Assessee" as meaning a person by whom agricultural income-tax is payable. "Company" is defined under section 2(8) as meanin~ a company as defined in the Indian Income-tax Act, 1922. The Indian Income-tax Act, 1922, section 2(5A) defines a company as follows :-

"(SA) "company" means -

(i) any Indian company, or

(ii) any association, whether incorporated or not and whether Indian or non-Indian, which is or was assessable or was assessed as a company fC\f the assessment for the year ending on the 31st day of March, 1948, or which is declared by general or special order of the Central Board o! Revenue to be a company for the purposes of this Act;"

""Firm" is defined in section 2(9) as having the same meaning assigned 'to it in the Indian Partnership Act, 1932.

Section 4 of the Indian 'Partnership Act, 1932, states that "Pe.rsons who have entered into partnership with one another are called individually 'partners' and collectively a firm and the name under which their business is carried on is called the 'firm name' ". "Person" is defined in section 2 ( 11) as meaning an individual or association of individuals, owning or holding property for himself or for any other, or partly for his own benefit and partly for that of another, either as owner, trustee, receiver, manager, administrator or executor or in any capacity recognized by

law, and includes an undivided Hindu family, firm or company hut G does not include a local authC\fity.

It may be noted that by the definition the word "person" means an individual and includes a firm or a company. The liability of the person whether he be an individual. partner or the company for the agricultural income-tax is therefore beyond question.

The only point that is raised in this case is as to when there is a registered firm of which the two companies we.re partners the assessment proceeding& cannot be taken against the two partners, namely the two companies, without proceeding against the

firm.

In support of this contention section 18 of the U.P. Agricultural Income Tax Act was strongly relied on.

Section 18 confers the power to assess individual members of ce.rtain firms, associations and companies.

Sub-section (1) of section 18 enables the Assistant Collector with the previous approval of the Collector of the district concerned to pass an order under the circumstances stated in the sub-Sec. that the

sum payable as agricultural income-tax by the firm or association shall not be determined, .and thereupon the share of each member in the aicultural income of the firm or association shall be included' in his total agricultural income for the purpose of his assessmenL thereon.

Section 18(2) states that under certain circumstances the,· Collector may, with the previous approval of the Commissioner of thee area concerned, pass an order that the sum payable as agricultura" income-tax by the company shall not be determined and the.reupon the proportionate share of each member in the agricullural income of the company, whether such agricultural income has been distributed to the members or not, shall be included in the total agricultural income or such member for the purpose of his assessment thereon. The submission of the learned counsel for the respondent which was accepted by the High Court was that if the Agricultural Income-tax authorities wanted to p1oceed against the individual members of the firm they ought to have taken proceedings under section 18 (1) and in the absence of such proceedings the partners, in this case the two companies, could not have been proceeded with.

The argument thus presented though looks attractive does not stand scrutiny. There is nothing in th_e provisions of the Act prohibiting the Assessing Authority from proceeding against the individuals forming the partnership. Section 18 enables the authorities while proceeding with the assessment of a firm or a company not to determine the tax payable by the firm or the company but proceed to determine the agricultural income of each member of the. firm.

The prnv1sions do not apply to a case wher-o tre returns tlre submitted by the partners, as in this case, and the assessment made on that basis. fhe section would undoubtedly be applicable if assessment proceeding against the firm is stopped and the share of the individual is to be dete1 mined under the provisions of section 18. Our attention was not drawn to any provision in the Act which would bar the incometax authorities from proceeding against the individual partners on the returns submitted by the partners as such. Under the Indian Incom~ tax Act it has been held that where a firm has not made a return and has not offered its income for assessment, the Department may assess. a partner directly in respect of his share of the firm's income without resorting to the machinery provided under the Act and without making an assessment on the firm, (ClT v. Murlidhar Jhawar & Purna Ginning

~- '

u. P. STATE v. RAZA BULAND SUGAR co. (Kaiklsam, !.) 425

& Pressing Factory('). It has been further held that once the Department has exercised its option and assessed the partners individually it cannot therei1flcr assess the same income in the bands cf the firm as an unregistered firm. It is not necessary for us to refer to the distinction that is maintained under the Income-tax Act between a registered and unregistered firm for no snch distinction is maintained under the U.P.

Agricultural Income Tax Act. The only prohibition is against double taxation. In this case no assessment proceedings have been taken against the firm much less any tax imposed on it. The principle that is applicable in tax statutes is that the income is subject to tax in the hands of the same person only once. Thus, if an association or a firm is taxed in respect of its income the same income cannot be charged again in the hands of the members individually and vice versa.

The trust iucome cannot be taxed in the hands of the settlor and also in the hands of the trustee or beneficiary or in the hands of both the trustee as well as the beneficiary. These principles are, of course, subject to any special provision enabling double taxation in the statute.

In the circumstances, we are unable to share the view of the High Court that without proceeding against the firm the Assessing Authority was in error in proceeding against the two partners of the firm on the basi; of the returns submitted by them.

There is yet another objection to the upholding of the plea of the E respondents. Apart from submitting the returns their only plea in the earlier writ petition before the High Court was that the lands did not satisfy the requirements of the provisions of the U.P. Agricultural Income Tax Act in that they were not assessed to land revenue in the

United Provmces nor were they subject to local rate or cess.

This plea was accepted but the High Court remanded it for the detcrmina- F tion of the question whether the land was assessed to land revenue or was subject to local rate or cess.

The plea that the assessment proceedings ought to have been taken against the firm was not taken. This plea cannot be allowed to be taken in proceedings after remand. The objection was taken only before the Assessing Authority after remand. ft is true 1hat in the proceedings before the Assessing Authority the G assessment relating to two Fasli years 1362 and 1363 which did not form part of the proceedings before the High Court was also taken up.

But here again the returns were submitted by the two companies on the basis of their respective income.

In the circumstances, it cannot be said that the tax authorities were in error in assessing a tax on the returns submitted by the two companies. The plea, therefore, that the

II!

(1)_60 I.T.R. 95 (SC)

assessment on the two companies, in the absence of proceedings against the firm of which the companies were partners, is not legal cannot be 11pheld.

The second contention that was raised before us was that it has not been established that the lands were either assessed to land revenue in the United Provinces or were subject to local rate or cess assessed and collected by an officer of the Provincial Government.

As the Single Judge of the High Court and the Division Bench of the High Court accepted the plea of the assessees that the assessment proceedings against them could not be sustained because of the failure of the authorities to take proceedings against the firm, they considered it un- nccessary to go into this question.

It is unfortunate that this aspect of the matter was not considered either by the Single Judge or by the Division Bench of the High Court.

We do not think it desirable to remit the case to the High Court for the determination of this question as the matter has been long pending.

This plea has been elaborately considered by the Assessing Authority which has pointed out that agreements with the Raza Sugar Co. Ltd. and the Buland Sugar Co.

Ltd. show that it was stipulated that the Rampur State shall from time t~

tim~ grant to the Company lease of agricultural land.

It was further provided that such fair equitable land revenue as may be agreoo between the Rampur State and the Company shall be payable in respect of such land and shall be subject to revision by agreement every 15 years.

The lease also provided that fair and equitable water rales anc! cesses shall be payable in respect of the land.

In section 4(7) of the U.P. Land Revenue Act it is mentioned that the word ''i\fal Guzari" will be applicable where it has been duly assessed or has been determined by means of an auction or by any other means.

On a consi deration of all the relevant facts the Assessing Authority came to the conclusion that the agreement in favour of the companies provided for payment of land revenne and the word "rent" used in i:he leases has to be considered in relation to the original agreements and as such it is seen that the agreement provided for payment of land revenue. The learned counsel appearing for the respondents was unable to challenge the correctness of the finding of the Assessing Authority.

On a consideration of all the facts that were placed before the Assessing Autho· rity, we do not see any reason.for not accepting the conclusion arriver:

at by the Authority.

This issue also we find against the assessce.

In the result we hold that the High Court was in error in coming to the conclusion that the assessment proceedings against the respon·

... '

. -

I'"

dent were unsustainable.

We set aside the judgment and order of the High Court and restore the order of the Assessing Authority . ..

N.V.K.

Appeal allowed.

STATE OF U. P. & ANR

RAZA BULAND SUGAR CO. LTD., RAMPUR

February 27, 1979

R. S. SARKARIA

P. S. KAILASAM

0. CmNNAPPA REDDY, JJ.

Agricultural Income-tax Act

S. 18

Union of India

Agricultural Income-tax Act

s. 2(a)

s. 2(a)

Section 18

s. 18

Shiv Pujan Singh

M. V. Goswami

B. P. Maheshwari

Suresh Sethi

KAILASAM

High Court at Allahabad

Raza Sugar Co. Ltd.

Buland Sugar Co. Ltd.

Rampur State Companies Act, 1932

Govan Brothers (Rampur) Ltd.

10th May, 1933

Raza Ltd.

11th December, 1934

Buland Ltd.

Rampur

5th May, 1935

Rampur State

State of Rampur

State of Uttar Prades)l

1st December, 1949

Agricultural Income Tax Act

1st July, 1950

section 16

Agricultural Income Tax Act

High Court of Allahabad

17th April, 1961

Raza Buland Sugar Co. Ltd., Rampur

High Court of Judicature at Allahabad

6th December, 1965

Supreme Court

Agricultural Income Tax Act

section 16(4)

Agricultural Income Tax Act

I-Ugh Court

section 2

Agricultural Income Tax Act, 1948

Section 2(5)

section 2(8)

Indian Income-tax Act, 1922

Indian Income-tax Act, 1922

section 2(5A)

31st day of March, 1948

section 2(9)

Indian Partnership Act, 1932

Section 4

Partnership Act, 1932

section 2

section 18

Agricultural Income Tax Act

Section 18

section 18

Section 18(2)

section 18

Section 18

section 18

Income-tax Act

Agricultural Income Tax Act

Agricultural Income Tax Act

United Provinces

Raza Sugar Co. Ltd.

Buland Sugar Co.

Ltd.

section 4(7)

Land Revenue Act


• f

STATE OF M.P. & ANR. ETC. v.

RAM RAGHUBIR PRASAD AGARWAL I< ORS.

February 7, 1979

[V. R. KRISHNA IYER AND R. S. PATHAK, JJ.]

Madhya Pradesh Prathmik Middle School Tatha Madhyamik Shikshal (Pathya Pusthakon Sambandhi Vyavrutha) Adhinlyam, 1973.

(MP.

Act No. 13 of 1973). Ss. 2(d), 3, 4 and 5-Whether '1ate has power to compile and distribute its own text books. Mention of topics in bare outline whether constitutes 'syllabi'' in S. 2(d) .

Mere communtcation to concerned officialJ or Departments lvhether sufficient for 'publication' in s. (3).

The M. P. Prathmik Middle School Tatha Madhyamik Shiksha (Pla!hya Pus!hakon Sambandhi Vyavas!ha) Adhiniyam 1973 empowered the State Government to prescribe text books aceording to !!yllabus laid downand to undertake the preJ*l1'ation, printing and distribution of text books.

Section 2(d) of the Act defines "syllabi" M a document containing courses of instructions for each standard of primary, middle school and secondary r-.ducation. Section 3 empowers the Stnte Government, in the case of primary and middle school education, and the Board in the dlse of secondary education, to lay down the syllabi and publish the same. Section 4 makes the State Government the competent authority to prescribe the text-books in accordance with the syllabus laid down under s. 3. Section 5 empowers the State Government to undertake the preparation, printing and distribution of text-books itself or cause them to be done through such agency as it deems fit and on such terms and conditions as may be prescribed.

The appellant (State Government) exercised i~ po, ver under s. 5 of the Act and produced the necessary text-book for "Rapid Reading" an item in the syllabus for secondary schools and distributed it among the students in many schools.

Until then, the books of the respondent, a private publisher were in use.

The respondent challenged the action of the State Government in the High F Court on the ground that the State Government had not given consideration to the availability of text-books in terms of the "syllabi'' withprivate publishers as required by s. 5 of the Act, before it produced and distributed the text-books compiled by itself among the students of the secondary schools.

The High Court upheld the challenge and held that the statutory exercise envisaged under the Act had not been carried out before preparing and distributing the Government text books.

In the State Gove1nment's appeal to this Court it was contended that

(1) as s. 2(d) envisages syllabus as a document containing courses of instruction, a broad outline, a demarcation if the topic would be sufficient compliance and that there n€ed not be particularisation of details, and (2) 'publication' of the syllabus, essential under s. 3 means communication by the Board to the Government or the concerned authorities. On behalf of the respondent it was submitted that the mere mention of topics in bare outline, as in the instant case did not constitute 'syllabi' as defined in s. 2(d) and that to fclfil, 4-J96SCil79

A the statutory requisites a syllabus. for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law.

Allowing the appeal in part,

HELD : 1. The syllabus for 'Rapid Reading', suffers invalidation under s. 3 because it has not been published. The publication must precede the prescription of text-books under s. 4 or their preparation under s. 5.

[56C]

In the instant case the syllabus was published only on June 30, 1978 while the text-books were prescribed in October, 1977.

So ss. 3 and 4 have been breached and a fresh decision by Government prescribing text books for 'Rapid Reading' must be taken.

[56D]

2. The State Government shall take a fresh decision under ss. 4 and 5 read together.

If publishers of text-books or pro bona publico representationists communicate relevant matters bearing on the selection of text-books, their merits will be examined departmentally.

If, thereafter, Governn1ent conside:rs it proper to take over the text-books business under s. 5 it is free to do so.

The private sector has no 'right' and Government's jurisdiction is wide, although the State need not be allergic to private publishers if books of excellence, inexpensive a-nd well-designed, are readily available.

[560-H]

3. The laying down of the syllabus is a condition precedent to the prescription of text-books, because the courses of instruction follow upon and should be in conformity with the syllabus and text books are in implementation of the courses of instruction.

[50B]

4. To fulfil the statutory requisites, a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law. [510]

5. No prhtl1e publisher has a right under s. 4 that his text-book shall be prescribed or necessarily considered by Government. No such right as is claimed by the respondent-publisher has, therefore, been violated by the State Government.

[54C]

6. Tue syllabus for 'Rapid Reading' is not bad as falling short of definitional needs, although it is desirable for the Board to be more expressive when laying it down.

Wilful vagueness in syllabi will invite an adverse verdict.

[56AJ

7. A sy1labus may helpfully give general features but may not cease to be so solely because only an outline is silhouetted. 'Courses of Instruction' in s. 2(d) simply means the rubric for teaching, not more. It must be a syllabus of courses and so the courses must be spelt with relevancy, even though with brevity. [51G, 52A] ·

8. Functionally the syllabus must tell the publisher and pundits in the

concerned field sufficient to enable them to help Government under s. 4 to !"- ,

clloose text-books. If this minimum is not complied with the court will use the lancet and issue an appropriate writ. [52C-DJ

9. The expression "syllabi'' must be so interpreted as to fulfil the purpose of ss. 3 and 4 which means there must be sufficient information for those concerned to know generally what courses of instruction are broadly covered

I ,.

M. P. STATE V. R. P. AGARWAL 43

>-- under the heading mentioned, so that they may offer text-booki for such A courses.

If there is total failure here the elements of syllabi may well be held

1 '

to be non-existent, even though experts might daim otherwise. The law is \Vhlat the Judges interpret the statute to be, not what the experts in their monopoly of v..isdom assert it to be.

[52E-F]

10. 'Publication' means more than mere con1n1unication to concerned officials or departments. The purpose of s. 3 animates the meaning of the expression 'publish'. 'Publication is "the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. . . . an advising of the public; a making kno'Wll of something to then1 for a purpose." (52H,

53ABJ L

11. The legislative obj'e-ctive is to ensure that when the Board lays down

~ the 'syllabi' it must publish 'the same' so that when the stage of prescribing text-books according to such syllabi arrives, both the publishers and the State 1 Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text-books from the private market or compiled under s. 5 by the State Government. [53C]

12. "Publication" to the educational world is the: connotation of the expression.

Even the student and the teaching community may ht:vve to know what the relevant' syllabus for a subject is, "'hich means wider publicity than n1inimaI communication to the departmental officialdom.

[53D]

Only when they come to know about the syllabi prescribed representatives in the educational field or in the public sector m+ary be able to tell the State Government what type of text-books are available, what kind of books will make for excellence in teaching and what manner of material will promote the interests of the students in the subjects of study.

[53H-54A]

13. Government has plenary power under s. 5 to produce its own textbooks in tune with the sy11abi prescribed under s. 3. No private publisher can quarrel with it on the ground that his profit is affected or that the Sta.te sector acquires a monopoly in text book production.

The legislature has em- JX)Wered the State to do so and there is no vice of unconstitutionality whatever.

The caveat built into s. 5 by the legislature is that it la'Uthorises Government to enter the text-book field as a monopolist "if it considers so to do." [54E-F] <r

14. Nationalisation of the activity of preparation, printing or distribution of text-books is a serious step and resort to that measure calls for . a policy judgment.

[54G]

15. The Court should not sit in judgment over Government decisions in

x '

• ...

these matters save in exceptional ca6es.

The: law is complied with if Govern- G ment has, before undertaking action under s. 5, bestowed consideration on matters of relevance which may vary from time to time and from subject to subject.

Government may like to avoid expenditure from the public exchequer if books, inexpensive and qualitatively acceptable, are easily lavai1able.

The decision is that of the Government and it has :i. wide discretion. Publishers have no right to complain, and if the mind of the Government has been relevantly applied to the subject, courts must keep their hands off. [55B-C] H

Narainda• Tndurkhya v. State of M.P. & Ors .• (1974] 3 SCR 624; Black's Legal Dictionary, p. 1386, referred to.

S~PREME COURT REPORTS [1979] 3 s.c.a.

i A ClvIL APPELLATE JURISDICTION : Civil Appeal Nos. 2062-2063/

78.

Appeals by Special Leave from the Judgment and Order dated 20-9-78 of the Madhya Pradesh High Court in Civil Misc. Petition No. 403/78 .

A. K. Sen, K. K. Adhikari, S. K. Gambhir and Miss B. Ramrikhyanai for the Appellant.

N. C. Upadhaya, K. P. Gupta and B. B. Tawakley for Respondents 1-2.

The Judgment of the Court was delivered by

KRISHNA IYER, J.-If King Midas suffered from the course of turning into gold everythlng he touched, Indo-Anglian legalism suffers from the pathology of making mystiques of simple words of common usage when they are fouod in the Corpus Juris.

We cannot afford this luxury of legalistics, the besetting sin of Jaw-in-action. This acid comment is provoked by the prolonged debate carried on with logomachlc dexterity in this appeal against a meticulous judgment where the semantic complexity and definitional intricacy of innocent words like 'syllabus', 'courses of instruction' and 'publish' and the procedural mechanics for prescribing text-books for secondary education set out in a fasciculus of sections have been investigated.

Law, in a democratic, pluralist society sprea.ds over vast space~ where the Constitution of developing couotries, like ours, commands the State to adventure into a profusion of welfare measures and commits to the judicial process the interpretation of legislation, not to obfuscate but to objectify the meaning of enactments. The Justice System ceases to be fuoctional if courts do not make the technology

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of statutory construction serve the betterment of society. In Cardozo's .. __, lofty diction : 7 >

"We may figure the task of the judge, if we please, as tl{e task of a translator, the reading of signs and symbols given from without.

None the less, we will not set men to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read."(') If a broad and viable reading of statutory language were not adopted by Judges filled with the wish to make things work according to social justice courts may be classed with the dinosaurs.

{J) The Nature of the Judicial Process by Benjamin N. Cardozo.

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The State of Madhya Pradesh, alive to its obligation to promote education in widest co=onalty, with accent on quality and cost, among the impressionable generation, undertook the task Of statutory regulation of teaching material for 'primary education', 'middle school education', and 'secondary education'.

Then followed, in conformance with the rule of law, executive action, legislative m€:a!!ures, regulatory procedures and infra-structures, necessary for the incarnation of a State-directed but expert-oriented scheme of pre-university • education.

A painstakingly accurate and comprehensively detailed 1 , statement of the project, with an integrated analysis of the statutory J-- provisions and erudite enunciation of the law,, is found in the judgment ,: of Bhagwati, J. in Naraindas('), if we may say so with respect, that ! a repeat performance here again may be supererogatory.

We read that ruling into this judgment by incorporations, as it were, and content ourselves with a skeletal projection of the legislation with special reference to the key sections, viz, ss. 3, 4 and 5 of the Madhya Pradesh Act No. 13 of 1973. Its title is Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Samhandhi Vyavastha) Adhiniyam (hereinafter referred to, for short, as the 1973 Act).

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The respondent before us who was the petitioner before the High Court-is a private publisher. It may be cynical to say that textbooks are co=odity for consumers of school education and there is big money in the trade especially when the private sector in the book business has been enjoyiµg a ready market provided by th~ proliferation of schools and the obligatory purchase of text-books, once Government prescribes them.

So, behind the veil of 'educational excellence formulation of syllabi and competent text-books is the vast profit pouring into private publishers. In our system, unalloyed public interest litigation, through organisations crusading in the field, is yet 'a consummation devoutly to be wished', and private vested interests are the vociferous ventriloquists of public causes.

Democratic participation in the justice process gains reality only when popular organs blossom from the desert and enter the litigative oasis with fighting faiths.

Here the respondent successfully challenged before the High Court the validity of the prescription of the State's text-book for 'Rapid Reacting', an item in the syllabus for secondary schools. Once Government books were chased out, the respondent filled the vacuum since prior to the entry of the State his book on the subject had admittedly been legally in vogue.

The State has, by special leave, come up in appeal and secured a stay of operation of the judgment of the High

(!) Naraindas lndurkhva v. State of Madhya Pradesh & Ors. [1974] 3 S.C.R. 624.

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5UPREME COURT REPORTS (1979] 3 s.c.R.

Court, and its books are back in circulation in the schools.

A brief calendar of events shows that since the opening of schools this academic year Government text-books have been in use uptil now, barring for about a month between the judgment of the High Court and the stay ordered by this Court.

This bears upon monlding the relief since the benign power under Art. 226 is a special instrument of justice which, with flexible pragmatism and genius for equity inhibits social trauma even while upholding individual rights.

The writ jurisdiction is geared to community good.

. I There is a trichotomy of school education in Madhya Pradesh as __J_ in many other States-Primary, Middle and Secondary.

We are 7 , concerned in this case with the text-book controversy for secondary / schools.

The Board of Secondary Education, Appellant No. 2, was constituted under Act No. 23 of 1965 which also conferred power on it to prescribe courses of instruction in such branches of secondary education as it deemed fit.

Indeed, the Board was a functional entity with expert capability and entrusted with secondary education in its many facets.

Even the power to make regulations was given to the Board and it did make such regulations providing for appointment of Committees on Courses which, in turn, could lay down syllabi in the various subjects and recommend suitable text-books when required.

The courses approved by the Committee went to the Board and when sanctioned by the Board found their way in the printed prospectus which served as the guide-book for study and examination for the students. All that we need emphasise here is that the provisions of the 1965 Act and the regulations framed by the Board took good care of the Rule of Law as against behavioral caprice of administrative organs in this branch of education.

In 1973 the legislature enacted Act 13 of 1973, referred to earlier in this Judgment.

The provisions of this Act form the basis of the powers claimed by the appellants and the nidus of rights of the respondent alleged to have been violated.

The scheme of the statute runs as follows : Section 2 contains definitions and we are concerned particularly with s. 2 ( d) which tells us what the legislature means by the expression 'syllabi'.

The Section also defines 'text-book', although there is not mnch quarrel about its connotation in the case before us.

One of the basic disputes between the parties turns on the conceptual clarity of 'syllabi' as defined in s. 2(d). Section 3 clothes the State Government and the Board with powers vis-a-vis laying down of syllabi.

To narrow the scope of the dispute we may straightway state that s. 3(2) empowers the Board

to lay down 'syllabi' in the case of secondary education.

We may bave A. to take a close-up of this provision a little later.

But suffice it to say - for the present that the syllabus for 'Rapid Reading', wh'ch is the bone of contention before us, is within the province of the Board to lay down.

We may vivify the discussion by quoting the provisions of direct B concern in this case and they are ss. 2(d), 3 and 5.

"2. (d) syllabi" means a document containing courses of instructions for each standard of primary education, middle school education and secondary education;

3. (1) Subject to the provisions of sub-section (2) the State Government may, from time to time, in relation to primary education and middle school education and the Board may, from time to time, in

relation to secondary education lay down syllabi D and publish the same in such manner as may be prescribed.

(2) The syllabi laid down under the authority of the State Government in the case of primary education and middle school education and by the Board, in the case of the secondary education and in force immediately before the appointed day shall be the syllabi laid down and published for the purpose of sub-section ( 1) .

4. ( 1) The State Government may, by order, prescribe the text books according to syllabi laid down under section 3 :

Provided that text books for secondary education shall not be prescribed without prior consnUation with the Board.

(2) The text books prescribed by the State Government or the Board according to the syllabi referred to in sub-section (2) of section 3 and in force immediately before the appointed day shall, till they are changed in accordance with the provisions of this Act, be the text books prescribed for the purpose of sub-section (1) .

(3) As from the appointed day, no books other than the text books prescribed nnder sub-section ( 1) or referred to in sub-section (2) shall be used in any approved school or recognised school for imparting instructions in accordance with syllabi in primary education, middle school education or secondary education.

5. The State Government may, if it considers it necessary so to do, undertake the preparation, printing or distribution of text books itself or cause the text books to be prepared, printed or distributed through such agency as it may deem fit on such terms and conditions as may be prescribed."

Section 2( d) conceputalises 'syllabi'; s. 3 statutorises the modus operandi for fixing the 'syllabus'.

Once the syllabus is fixed, the follow-up is the prescription of text books in accordance with the syllabus.

Section 4 makes the State Government, the competent authority, to prescribe text-books in accordance with the syllabus laid down nnder •· 3.

Of course, even the provisions of text books for secondary education must be made by Government only after prior consultation with the Board.

This is obviously intended to ensure the quality of the text books which sometimes suffers at the hands of unenlightened departmental officers or unheeding political bosses too hubristic to listen to experts in the field.

It is vital to notice that until valid prescription of text-books under s. 4 (1) the books prescribed and in vogue immediately before the F change shall continue; that is to say, the legislature has taken care to avoid a gap when there would be no text books for the students to study and take their examinations.

The scheme of s. 4 is for the State Government to prescribe textbooks.

This may be done in one of the two ways.

Government may select from the private sector when text books are offered by publishers, if they satisfy quality control, price, social perspective and other relevant aspects.

Indeed, many publishers compete in the text-book market because it assures purchasers and profit.

However, for a variety of good reasons the State Government may consider it necessary to depart from the practice of picking and choosing from the private sector.

May be, books are of sub-standard quality; may be, the paper on which they are printed or the manner and design may be unsatisfactory; may be the cost is such that the poor children may be

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priced out It may also be that Government thinks that more excellence and better educational direction may be imparted to the impressionable generation of students at the secondary school level by the public sector getting such text-books compiled in conformity with the syllabi laid down by the concerned authority.

Section 5, therefore, makes it perfectly legitimate for the State Government to undertake the preparation, printing and distribution of text-books itself or cause them to be so done through such agency as it may deem fit and on such terms and conditions as may be prescribed. In short, the relevant provision creates a facultative public sector for text-book production and distribution.

What is significant to note is that the departure from the private sector and the "nationalisation" of textbook manufacture may be undertaken only if the State Government "considers it necessary so to do".

Once it comes to that judgment, the competence to deprive the private sector and entrnst to the public sector is beyond challenge.

In the present case, one of the subjects of secondary education is "Rapid Reading". The syllabus has to be laid down in this behalf.

Text-books need to be prescribed in conformity with the syllabi and then a decision has to be taken by the Government either to choose extant text-books from the private publishers or take over the operation itself if it considers it necessary so to do.

The first appellant, in the present case, chose to exercise its power under s. 5 and produced the necessary text-book for "Rapid Reading" and distributed it among the students in many schools.

Until then, the respondent's books were in use for "Rapid Reading".

Naturally, when his customers vanished and his profit was extinguished he came up to the Court contending that the statutory exercise had not been carried out before preparing and distributing the text books under s. 5 and that, for that reason, the Government text-books had to be withdrawn as invalid and his books, instead, resuscitated for circulation.

The specific grounds of invalidation relied on by the Writ Petitioner are many and the Jong Judgment of the High Court has lavished G discussion on these aspects. Counsel have sought to repeat the rival contentions before us.

But we do not think that it is necessary to embark upon the labyrinthine details or prolix analyses which have

egaged the learned Judges of the High Court. Nor do we think that extensive or intensive consideration of the decision in Naraindas's case

(supra) is called for since its ratio is clear and does not come in for H serious application in the present dispute. In this view, we proceed to specificate the precise issues pertaining to the decision as to whether

the production and distribution of text-books by the State Government, on its own, is liable to be voided on the score of any fatal statutory infirmity.

The laying down of the syllabus is a condition precedent to the prescription of text-books, because the courses of instruction follow upon and should be in conformity with the syllabus and text-books are in implementation of the courses of instruction.

The first question that falls for consideration, therefore, is as to whether there has been a legally sustainable laying down of the syllabus for "Rapid Reading". If there has been, the second crucial issue of importance is as to whether the State Government has given consideration to the availability of text-books in terms of the 'syllabi' with the publishers.

If such publishers have offered their text-books, Government may consider them from many angles and reach a conclusion that it is. necessary for the Government itself to undertake the preparation, printing and distribution of text-books in this regard or entrust these operations to a choosen agency.

The question is whether such a consideration had been bestowed by the Government as required by s. 5 before it produced and distributed the text-books compiled by itself among the students of the secondary schools.

Assuming there is any breach, the next question is whether such non-compliance spells invalidation of the text-books altogether.

Finally, assuming all the points against the State Government, should the Court make a realistic appraisal of the situation as it exists currently and mould the relief appropriately so that the student community, which has to take the examinations in a couple of months or so, may not be obliged to switch text-books belatedly in taking their examinations.

The ultimate concern of the judicial process is not to guarantee the profit of the private producers or to condone every executive sin but, within statutory parameters, to promote the educational welfare of the student community.

The core of the controversy turns on whether there is statutorily solemnised syllabus at all under s. 3(2) of the 1973 Act and, whether the State has the facultative power to compile and distribute its own text books under s. 5, even if there are. private publishers in the field with ready-made text-books.

This duplex challenge once disposed of, the other disputes do not merit mui; J:i discussion.

Naraindas (supra), heavily relied on by the respondent, is impeccable law but inapplicable here.

B True many points arise, according to counsel.

But abbreviation, without amputation, does justice to the /is and avoids forensic prolixity, and so we turn the focus on these two points and, in the light of

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our answers, structure the. relief to promote the interests of the invisible and inarticulate student secto.r for whose sake the law was made. The real party, in many litigative battles under Art. 226, is the community whose processual participation is alien to the adversary system inherited from an individualistic legal culture. The judges are the guardians of that silent sector until our system of procedure is re-structured.

This observation assumes prominence as we shape the remedy finally.

Section 3 as well as s. 5 must now come under the legal microscope.

Before that, we must bestow attention on a preliminary plea which respondent's . counsel, encouraged by his success at the High Court level, has urged before us.

He argues that the mere mention of topics in bare outline, such as has been done here by the Board of Secondary Education, does not constitute 'syllabi' as defined ins. 2(d).

To fulfil the statutory requisites, a syllabus for a subject must concretise and constellate courses of instruction, short of which it is no syllabus in the eye of law. If this be valid, no syllabus, no text-book; and no text-book, the status quo ante; and the book of the respondent being admittedly' extant immediately before, it gains legal re-incarnation and all the students shall have to do 'rapid reading' of his book for which they must first buy them.

The Board is the legislative instrument for laying down the syllabi and must be presumed to possess academic expertise sufficient to understand what is a syllabus.

Words of technical import whose signification is familiar for specialists in the field should not be petrified by courts based on verbalism. 'A little learning is a dangerous thing' and courts should not 'rush in', tempted by definitional attraction, where experts 'fear to tread'. Section 2(d) tells us that a syllabus is a document containing courses of instruction. A broad outline, a brief indication, a demarcation of the topic may well meet with lexical approval.

Moreover, s. 2(d) speaks of a 'course of instruction' .

This can be a bare. outline, a bald mention of the matter and does. not compel particularisation of details, even if it be desirable.

That part is taken care of by the next step of prescription of text-books. A syllabus may helpfully give general features but may not cease to be so solely because only an outline is silhouetted. For instance, 'music' without more, is not syllabus, because it may range wildly from weird noises which make music among African tribes but to an Indian ear may offensively amount to 'sound and fury signifying nothing' to a concord of sweet sounds or continuous flow of micro-notes which thrills the West and the East. But if 'sitar' or 'violin' is mentioned it illumines, although it still leaves much for imagination to fill in a

hurnlred details for instruction to be actually imparted in the class.

'Courses of Instruction' ins. 2(d) simply means the rubric for teaching, not more, although treacherous vagueness which disables textbook producers from responding to the Government by offering their books may be bad. It must be a syllabus of courses and so the courses must be spelt out with relevancy, even though with brevity.

To exemplify again, 'Justice' is not enough, Indian Justice System may fill the bill. Brief may be, but not blank.

While courts, will uot surrender their decisional power to the vagarious experts non-interference by courts in fields of specialists, save in gross cases, is a wise rule of guidance.

From this angle, we are not satisfied that for so elusive a subject as 'Rapid Reading', 'particularise or perish' should be the test.

The absence of syllabus cannot defeat the case of the State.

We stress, however, that, functionally speaking, the syllabus must tell the publishers and pundits in the concerned field sufficient to enable them to help Government under s. 4 to choose text-books.

If this minimum is not complied with the court will use the lancet and issue an appropriate writ.

Language permitting, the appropriate interprctational canon must be purpose-oriented.

Therefore, the expression "syllabi" must be so interpreted as to fulfil the purpose of ss. 3 and 4 which means there must be sufficient information for those concerned to know generally what courses of instruction are broadly covered under the heading mentioned, so that they may offer text-books for such courses. If there is total failure here the elements of syllabi may well be held to be non-existent even though experts might claim otherwise. The law is what the Judges interpret the statute to be, not what the experts in their monopoly of wisdom assert it to be.

Now we move on to s. 3 to verify what flaws vitiate the laying down of syllabi.

In this case if we predicate the existence of syllabus the next ingredient is its publication ''in such a manner as may be prescribed." Publication of the sylllbus is thus essential under s. 3 and when confronted by this requirement, Shri A. K. Sen, counsel for the State, sought to construe that expression to mean communication by the Board to the Government or other concerned authorities.

To publish, according to him, is to make known to those concerned. On the contrary, Shri Upadhyaya, counsel for the respondent, argued that

"to publish" was more than to communicate to the Government Departments and really meant making known to the community or the concerned section of the community.

Contextually speaking, we are satisfied that 'publication' means more than mere communication to concerned officials or Departments.

To publish a news item is to

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make known to people in general; "an advising of !he public or making known of something to the public for a purpose" (Black's Legal Dictionary, p. 1386). In our view, the purpose of s. 3 animates the meaning of the expression 'publish'. 'Publication' is "the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny ...... an advising of the public; a making known of something to them for a purpose." Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the 'syllabi' it must publish 'the same' so that when the stage of prescribing text-books according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text-books from the private market or compiled under s. 5 by the State Government itself.

In our view, therefore, "publication" to the educational world is the connotation of the expression.

Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom.

If this view be sound, the State Government has failed to comply with the requisite of publication of the syllabus before prescribing the text-books.

On that ground alone the order of the Government prescribing text-books must fail because the condition preceding such pres- E cription, namely, publishing of the syllabi has not been complied with.

We confine our observations only to the item relating to "Rapid Reading'" so that there is no need for reopening other subjects and syllabi and to create chaos or uncertainty.

What should be the follow-up action that the Court should adopt in issuing the necessary direction on this finding that, for want of publication of the syllabus, the prescription of text-books even under s. 5 must fail?

Neoossarily publication is important and we should insist that the State Government should not dismiss it as a ritual of little moment.

As we have earlier indicated, but may repeat for emphasis that there is an object in publishing the syllabi and this public purpose will be stultified to the prejudice of the school-going community if the syllabi are not made known to the public generally.

Only when they come to know about the syllabi prescribed, representatives in the educational field or in the public sector may be able to tell the State Government what type of text-books are available, what kinds of books will make for excellence in teaching and what manner of material will promote

SUPREME COURT REPOR!S [1979] 3 s.c.R.

the interests of the students in the subjects of study. If there are exisin¥ textb?oks, Govern_ment may give consideration for them or may mv1te op1mon of experts on their worh. Government may pay attention to the cost of the books so made available, their readability, their design and arrangement, the impression that they may produce on the plastic minds and a host of other factors.

All these possibilities may be frustrated if the syllabi are not published.

Wliat has been done in the present case by the State Government is to exercise its power under s. 5 to prepare, print and distribute textbooks of its own compilation. Certainly, this is well within the power of Gove.rnment under s. 5.

To dispel misapprehension we emphasise that no private publisher has a right under s. 4 that his text-book shall be prescribed or necessarily considered by Government.

No such right as is claimed by the respondent-publisher has, therefore, been violated by the State Government.

We upset Government's text-books, not because the respondent-publisher has a right to have his books necessarily considered by the Government, but because the syllabi have not been published prior to the prescription of text-books.

We must erase another possible confusion.

Government has plenary power under s. 5 to produce its own text-books in tune with the syllabi prescribed under s. 3.

No private published can quarrel with it on the ground that his profit is affected or that the State sector acquires monopoly in text-book production.

The legislature, in its wisdom, has empowered the State to do so and there is no vice of unconstitutionality whatever.

But there is a caveat built into s. 5 by the legislature. Before the State Government undertakes the preparation, printing or distribution of text-books or causes them to be so done by any other agency, it must bestow appropriate attention on the wisdom of the policy in the given circumstances.

Section 5 authorises Government to enter the text-book field as a monopolist "if it considers it necessary so to do." These are weighty words and cannot be slurred over.

Nationalisation of the activity of preparation, printing or distribution of text-books is a serious step and resort to that measure calls for a policy judgment.

Government must consider it necessary so to do an"d this consideration must imply advertence to relevant factors.

Myriad matters, material to a right decision, may be thought of since books are more than collection of information but mental companionship for good or evil.

School children require uplifting books, not such as pollute their minds or inject prurience.

Their creativity must be kindled and not stifled.

The presentation of subjects must be appetising, not inhibiting. The cost must be within the means of the

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poor Indian parent.

Availability of sufficient number of books within easy reach so as to avoid a. scarcity situation may be yet another criterion.

Indeed, it is beyond exhaustive enumeration to catalogue the considerations. We do not think that the Court should sit in judgment over Government decisions in these matters save in exceptional cases.

The law is complied with if Government bas, before undertaking action under s. 5, bestowed consideration on matters of relevance which may vary from time to time and from subject to subject. ,_ We need hardly say that Government may like to avoid expenditure

f from the public exchequer if books, inexpensive and qualitatively )._acceptable'. are easily available: The decision is that of foe Govern- . ment and 1t bas a wide d1scret10n.

Publishers have no tight to com-

~ plain, and if the mind of the Government has been relevantly applied to the subject, courts must keep their hands off.

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The construction we have put upon s. 5 gives Government power which is also a responsible power.

Indeed, all public power is a public trust and in that spirit ss. 4 and 5 must be executed.

On this basis, the direction that we give is that the State Government will publish, .under s. 3, the syllabus for 'Rapid Reading' as a first step.

Thereupon, representations from any relevant quarters, if received, will be considered under s. 4 so as to reach a decision on the prescription of the ext-books according to the syllabus.

This decision may be either !Al choose some text-books available in the field or to compile text-books on its own.

If the decision is the latter, Government is perfectly free to undertake preparation, printing and distribution.

It mny be right to caution the State while choosing text-books from ihe private sector or preparing such books on their own to remember the vital constitutional values of our nation.

Social justice is the corner stone of our Constitution. Freedom of expression is basic to our democratic progress.

The right to know, awareness of the implications of a sovereign, secular, socialist republic and its membership and the broad national goals incorporated in the Constitution are fundamental.

When education is a State obligation, when prescription of syllabi and text-books falls within the governmental function, when the constellation of values mandated by the Constitution is basic to our citizenship, the play of ss. 3, 4 and 5 must respond tg this script.

Instruction at the secondary school level must be promotional of these paramount principles.

Ultimately, it is Yonth Power that makes for a Human Tomorrow.· The felt necessities of our cultural integration and constitutional creed are fostered essentially at the school level. "Books are not merely the best companions but make or mar the rising generation.

We have reached the final.

What remains is to crystallise the conclusions and to formulate the directions.

The syllabus for 'rapid reading' is not bad as falling short of definitional needs, although it jg desirable for the Board to be more expressive when laying it down.

Wilful vagueness in syllabi will invite an adverse verdict. 'Rapid Reading', as a rubric, in itself, somewhat slippery as a substantive topic and so the syllabus for it also may share that trait. The new plea urged specifically for the first time at the argument stage in this Court (and controverted by the State) that no syllabus has been laid down, as a fact, for 'Rapid Reading' is too late to be permitted.

The syllabus for 'Rapid Reading' suffers invalidation under s. 3 because it has not been published.

The publication must precede the prescription of text-books under s. 4 or their preparation under s. 5.

Here the case of the State show that the syllabus was published only on June 30, 1978, while the text-books were prescribed in October 1977.

So ss. 3 and 4 have been breached and a fresh decision by Government prescribing text-books for 'Rapid Reading' must be taken.

We are not disposed, even as in the case of the plea of no syllabus for 'Rapid Reading', to consider the nascent discovery of Sri Upadhyaya, counsel for the respondent, that the two text-books prescribed for 'Rapid Reading' were not even in printed existence when they were prescribed.

Judicial proceedings, especially at the earlier stages, should not ordinarily be allowed to become the scene of newly discovered points of contention. There is no substitute for proper briefs and good home-work.

Never can controverted facts he raised de novo here.

We disallow the contention of non-existence of text-books in print or otherwise, when they were prescribed.

Reverting to the project of providing for the future course of action and to obviate the untowardness of a void in the syllabus and textbonks, we hold that the State Government shall take a fresh decision

Jtder ss. 4 and 5 read together. If publishers of text-books or probono publico representationists communicate relevant matters bearing on the selection of text-books and the wisdom of the State itself undertaking the task, Government will give thought to them. There is no need to wait idefinitely for such representations. If within one month from

•w they are received, their merits will be examined departmentally.

If, thereafter, Government considers it proper to take over the textbook business under s. 5 it is free to do so.

We make it clear that the private sector has no "right" and Government's jurisdiction is wide although the State need not be allergic to private publishers if books of excellence, inexpensive and well-designed, are readily available.

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These directions take care of the future.

But what about the A current academic year?

To change horses mid-stream may be disastrous.

Throughout the better part of the year, except for around a month, Government text-books have been in use.

The examinations are impending. To harass the young alumni by putting them through fresh books of the respondent (though in circulation last year) is an avoidable infliction.

Therefore, for the nonce, Government books for 'Rapid Reading' will continue in this year's classes.

We direct so.

Before the next academic year begins, Government will decide, under ss. 4 and 5, on preparing text-books itself or selecting from the private sector.

This will be done on or before March 31, 1979.

Jf the decision taken is either way, the books shall be well-stocked by th' end of May.

We allow the appeal in part and dismiss in part and as a corollary, ing dates and months but governmental processes are often 'paperlogged'.

The fear that •the State Government may not be sufficiently conscious of the due priority to be given to the tasks now set before it has persuaded us to issue these time-bound directions.

We allow the appea'I in part and dismiss in part and as a corollary, order the parties to bear their costs throughout.

N.V.K.

Appeal allowed in part.

5-196SCil79

f

STATE OF M.P. & ANR. ETC

RAM RAGHUBIR PRASAD AGARWAL I< ORS

V. R. KRISHNA IYER

R. S. PATHAK, JJ.

Ss. 2(d), 3, 4 and 5

S. 2(d)

Section 2(d)

Section 3

Section 4

s. 3

Section 5

s. 5

s. 5

s. 2(d)

s. 3

s. 2(d)

s. 3

s. 4

s. 5

June 30, 1978

ss. 3 and 4

ss. 4 and 5

s. 5

s. 4

s. 2(d)

s. 4

ss. 3 and 4

s. 3

s. 5

s. 5

s. 3

s. 5

s. 5

(1974] 3 SCR 624

A. K. Sen

K. K. Adhikari

S. K. Gambhir

B. Ramrikhyanai

N. C. Upadhaya

K. P. Gupta

B. B. Tawakley

KRISHNA IYER

Midas

Benjamin N. Cardozo

State of Madhya Pradesh

Bhagwati

Naraindas

ss. 3, 4 and 5

[1974] 3 S.C.R. 624

Art. 226

Madhya Pradesh

I There is a trichotomy of school education in Madhya Pradesh as J in many other States-Primary, Middle and Secondary.

Board of Secondary Education

Section 2

s. 2

s. 2(d)

Section 3

s. 3(2)

ss. 2(d), 3 and 5

section 3

section 3

Section 2( d)

s. 3

Section 4

s. 4

s. 4

Section 5

s. 5

s. 5

Naraindas

s. 5

s. 3(2)

s. 5

Naraindas

Art. 226

Section 3

s. 5

Section 2(d)

s. 2(d)

s. 4

ss. 3 and 4

s. 3

s. 3

A. K. Sen

Upadhyaya

s. 3

s. 5

s. 5

SUPREME COURT REPOR!S [1979] 3 s.c.

s. 5

s. 5

s. 4

s. 5

s. 3

s. 5

Section 5

s. 5

s. 5

ss. 4 and 5

s. 3

s. 4

ss. 3, 4 and 5

s. 3

s. 4

s. 5

ss. 3 and 4

Upadhyaya

ss. 4 and 5

s. 5

ss. 4 and 5


JAGDISH v.

STATE OF RA~STHAN

February 28, 1979

[S. MURTAZA FAZAL ALI AND 0. CHJNNAPPA REDDY, JJ.]

Penal Code-Sec. 302-Mutual assault-Injuries 011 the body of deceased very severe-Injuries on the person of accused superficial--ConJitions requisite to prove mutual assault-What are. )~

C The a.ppellant and four other accused who were -.:harged with an offence

under s. 302 IPC were acquitted of the charge but the appellant alone vras convicted and sentenced under s. 304 read with s. 34 IPC. Rejecting the vie\v of the trial court that since some of the accused had injuries on their bodles it was a case of mutual assault and that there was no intention to cause muni1!r, the High Court convicted the appellant under s. 302 IPC and sentenced hirr1 to life imprisonment.

Dismissing the appeal,

HELD : The High Court was right in pointing out that th~ findings of the Sessions Judge were not based on a proper appreciation of evidenc'e, The injuri1:s on the persons of the accused v.--ere extremely superficial and could be easily explained. The accused had not established that the injuries on their bodies were sustained in the course of altercation which resulted in the death of the decea:•- ed, so as to lay the burden on the prosecution to explain the :presence of the injuries. Before this obligation is placed on the prosecution two conditions must be satisfied viz., (i) that the injuries on the person of the accused were very serious and severe and not superficial and (ii) that the injuries had been caused at the time of the occurrence in question.

[429 A-H]

Jn 1he present case neith'er condition is satisfied. The i~1juries were extremely superficial and there was nothing to show that they were caused during altercation which resulted in the death of the deceasd. [430 A-Bl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 150 of 1972.

(From the Judgment and Order dated 3-3-1972 of the Rajasthan High Court in D. B. Criminal Appeal No. 354/69 and S. B. Criminal Appeal No. 121/69).

L. N. Gupta, (A.C.) for the Appellant.

Sobhagmal lain for the Respondent.

The Judgment of the Court was delivered by

-II -- '

JAGDISH v. RAJASTHAN (Fazal Ali, J.) 429

FAzAL ALI, J.-In this appeal under the Supreme Court (Enlargennent of Criminal Appellate Jurisdiction), Act, the appellant was convicted along wilh other accused by the Sessions Judge under s. 304 .Pt. 1 read with s. 34 of the I.P.C. and sentenced to five years R.I.

The State filed an appeal to the High Court against the acquittal of the appellant under s. 302 I.P.C. and other accused. The High Court while allowing the appeal of other accused also allowed the appeal of the State against the appellant Jagdish and set aside his acquittal under s. 302 I.P .C. and convicted him under s. 302 I.P .C. and sentenced him to life imprisonment.

We have gone through the judgment of the High Court which has given cogent reasons for holding that the Trial Court Judge was absolutely wrong in acquitting the appellant of the •charge under s. 302 I.P.C. The injuries found on the deceased were very severe which resulted in fracture of the scalp on the left perietal bone and also a fracture of the temporal bone. These were the two injuries which according to the prosecution were the cause of the -death of the deceased Jairam.

The Sessions Judge was of the opinion that as some of the accused persons had also injuries it was a case of mutual assault and therefore, there was no intention to cause murder.

The High Court has rightly pointed out that the findings of the Ses- sions Judge arc 'not based on a proper appreciation of the evidence.

It is true that the accused had some injuries on their persons.

The injuries on their persons were extremely superficial and could be easily explained.

As regards Nanda, it is true that he had five injuries out of which two are contused wounds. It was the evidence of D.W. 1 that he examined the injuries on 25-6-67.i.e. two to four days after the occurence. It has not been proved that all the injuries sustained by him were sustained in the course of altercation which resulted in the death of the deceased, so as to lay the burden on the prosecution to explain the presence of these injuries.

Even the contusions are not of serious nature. It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated.

But before this obligation is placed on the prosecution, two conditions must be satisfied ;

1. that the injuries on the person of the accused must be very serious and severe and not superficial;

2. that it must be shown that these injuries must have been caused at the time of the occurrence in question,

SUPREME COURT REPORTS

A In the instant case, none of these conditions are satisfied. The injuries. are extremely superficial and there is nothing to show that they were caused during the altercation which resulted in the death of the deceased. Having regard, therefore, to the ircumstances of the case, we find ourselves in complete agreement with the view taken by the High Court in convicting the appellant under s. 302 I.P.C. We find.

B no force in this appeal. It is dismissed.

N. K. A.

Appeal dismissed.

' )

JAGDISH

v.

STATE OF RA~STHAN

February 28, 1979

S. MURTAZA FAZAL ALI

0. CHJNNAPPA REDDY, JJ.

Penal Code

Sec. 302

s. 302

IPC

s. 304

s. 34

IPC

s. 302

IPC

Rajasthan High Court

L. N. Gupta

Sobhagmal lain

FAzAL ALI

The Judgment of the Court was delivered by
II -- '

JAGDISH v. RAJASTHAN (Fazal Ali, J.) 429

FAzAL ALI, J.-In this appeal under the Supreme Court (Enlargennent of Criminal Appellate Jurisdiction), Act, the appellant was convicted along wilh other accused by the Sessions Judge under s. 304 .Pt.

s. 304

s. 34

I.P.C

s. 302

I.P.C

Jagdish

s. 302

s. 302

s. 302

I.P.C

Jairam

Nanda

s. 302

I.P.C

N. K. A.