judgement:
Appeal No. 2034 of 1969.
Appeal from the judgment and order dated May 7, 1969 of the Punjab and Haryana High Court in Civil Writ No. 850 of 1969.
K. L. Gosain N. N. Goswamy, section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the appellant.
Harbans Singh and R. N. Sachthey, for respondents Nos. 1 and 2.
section V. Gupte and section K. Gambhir, for respondent No. 18.
The Judgment of the Court was delivered by Hegde, J.
This appeal by certificate arises from the decision of a Division Bench of the Punjab and Haryana High Court in a writ petition wherein the appellants challenged the validity of proceedings under sections 4, 6, 9 and 17 (2) (c) of the Land Acquisition Act, 1894 as amended by the Punjab Legislature.
For convenience sake we shall refer to that amended Act as 'the Act '.
The High Court dismissed the writ petition.
It appears that several contentions were sought to be advan ced before the High Court but in this Court only three con tentions have been pressed for our consideration i.e. (1) the acquisition in question being one for a company proceedings should have been taken under sections 38 to 44(B) of the Act, the same having not been taken, the Proceedings taken are void; (2) there was no urgency and hence recourse should not have been had to section 17 of the Act and (3) Section 17(2) (c) is inapplicable to the facts of the case.
Now we may state the facts,relevant for the purpose of deciding the questions in dispute.
873 On 14/17 March, 1969, Government of Haryana issued a notification under section 4 of the Act notifying for acquisition the land concerned in this case.
The notification further directed that action under section 17 (2) (c) of the Act shall be taken on the ground of urgency and the provisions of section 5 A shall not apply in regard to the said acquisition.
The preamble to the said notification says that "whereas it appears to the Governor of Haryana that land is likely to be required to be taken by Government, at public expenses, for a public purpose, namely for the setting up a factory for the manufacture of Chine ware and Porcelain ware including Wall Glazed Tiles etc.
at village Kasser.
Tehsil Jhajjar, District Rohtak, it is here by notified that the land in the locality described in the specification below is likely to be required for the above purpose".
On March 18, 1969 the Government isued a notification under section 6 of the Act acquiring the land for a public purpose On March 28, 1969 notices under section 9 of the Act were served on the appellants.
On April 8, 1969, the appellants filed the writ petition giving rise to this appeal.
The allegations in the writ petition include the assertion that there was no urgency in the matter of acquiring the land in question and therefore there was no justification for having recourse to section 17 and thus deprive the appellants of the benefit of, section 5 A of the Act.
It was further alleged therein that the acquisition in question was made for the benefit of a company and hence proceedings should have been taken under sections 38 to 44(B) of the Act and that there was no public purpose involved in the case.
It was further pleaded that the land acquired was not waste and parable land and that section 2 (c) of the Act did not confer power on the Government to dispense with the proceedings under section 5 A.
In the counter affidavit filed by the Deputy Director of Industries (Administration), Government of Haryana On behalf of the State of Haryana, the above allegations were all denied.
Therein it is stated that at the instance of the State of Haryana, Government of India had issued a letter of intent to a company for setting up a factory for the manufacture of Glazed Tiles etc.
in village Kasser.
That project was to be started with the collaboration of a foreign company, known as Pilkington Tiles Ltd. The scheme for setting up the project had been finalised and approved by the concerned authorities.
on November 26, 1968, the Government wrote to one of the pro moters of the project, Shri H. L. Somany asking him to com plete the "arrangements for the import of capital equipment and acquisition of land in Haryana State for setting up of the proPosed factory".
It was further stated in that communication the Government was pleased to extend the time for compleing the Project upto April 30, 1969.
Under those circumstances it 8 74 had become necessary for the State of Haryana to take imme diate steps to acquire the required land.
It was under those circumstances the Government was constrained to have recourse to section 17 of the Act.
The Government denied the allegation that the facts of this case did not come within the scope of section 17 (2) (c).
It was also denied that the acquisition in question was not made for a public purpose.
We have earlier seen that in the notification issued under section 4, it had been stated that the acquisition was made "at public expenses, for a public purpose" namely for the setting up a factory for the manufacture of China ware and Porcelain ware including Wall Glazed Tiles etc.
In the writ petition it was not denied that the acquisition in question was made at "public expenses".
All that was challenged in the writ petition was that the purpose for which the acquisition was made not a public purpose.
There is no denying the fact that starting of a new industry is in public interest.
It is stated in the affidavit filed on behalf of the State Government that the now State of Haryana was lacking in industries and consequently it was become difficult to tackle the problem of unemployment.
There is also no denying the fact that the industrialization of an area is in public interest.
That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government.
That is a socioeconomic question.
This Court is not in a position to go into that question.
So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Govern.
men+ it is made for a public purpose is 'not open to challenge, Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose.
Unless it is shown that there was a colorable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not see Smt.
Somavanti and ors.
vs The State of Punjab(1) and Raja Anand Brahma Shah vs State of U.p.(2).
On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.
In view of the pleadings referred to earlier it is not open to the appellant to contend that the State Government had not contributed any Amount towards the cost of acquisition, We were informed at the bar that the State Government had contributed (1) (2) ; 875 a sum of Rs. 100/ towards the cost of the land which fact is also mentioned in the award of Land Acquisition Officer.
That being so it was not necessary for the Government to proceed with the acquisition under Part VII of the Act see Somavanti 's case(1).
Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency, The Government of India was pleased to extend time for the completion of the of project upto April 30, 1969.
Therefore urgent steps had to be taken for pushing through the project.
The fact that the St ate Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the notification was issued, there was urgency or not the conclusion of the Government in a given case that there was urgency entitled to weight, if not conclusive.
This takes us to the question of applicability of section 17 (2) (c) to the facts of the case.
The appellant had denied in the affidavit that the entire land acquired is either waste or arable Iand That contention of his has not been examined by the High Court.
Therefore we have to proceed on the basis that the case does not come within the scope of section 17(1).
The State has also not purported to act under section 17 (1).
It has purported to act under section 17 (2) (c).
Therefore we have to see whether the State could have proceeded on the facts of this case under section 17 (1) (c).
Section 17 as amended by the Punjab Act 2 of 1954, Punjab Act 17 of 1956 and Punjab Act 47 of 1956 to the extent necessary for our present purpose reads thus : "17 (1) In cases of urgency whenever, the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1) take possession of any waste or arable land needed for public purposes or for a Company.
Such land shall there upon,vest absolutely in the Government free from all encumbrances.
Explanation (2) In the following cases, that is to say (a) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the 'immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side or ghat, station or of (1) 876 providing convenient connection with or access to any such station; (b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land for the purpose of any library or educational institution or for the construction, extension or improvement of any building or other structure in any village for the common use of the inhabitants of such village, or any godown for, any society registered under the (Act 11 of 1912), or any dwelling house for the poor, or the construction of labour colonies or houses for any other class of people under a Govermnent sponsored 'Housing Scheme or any irrigation tank, irrigation or drainage channel, or any well, or any public road; (c) Whenever land is required for a public purpose which in the opinion of the appropriate Government is of urgent importance, the Collector may, immediately after the, publication of the notice mentioned in sub section (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances.
Provided that the Collector shall not take possession of any building or part of a build ing under this sub section Without giving to the occupier thereof at least ' forty eight hour 's notice of his intention so to do .
(3) In every case under either of the preceding subsections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crop and three (if any) on such land and for any other damage sustained by them caused by sudden dispossession . (4) In the case of any land to which in the, opinion of the appropriate Government, the provisions of subsection (1) or sub section (2) are applicable, the appropriate Government may direct that the provisions of section 5 A shall not apply. 877 Herein we are only concerned with the scope of section 17 (2) (c) as the vires of section 17(2) is not challenged.
Section 17(2)(c) if read by itself is plain.
It seems to permit the appropriate Government to direct that the provisions of Section 5 A shall not apply whenever land is required for public purpose which in the opinion of the appropriate Government is of urgent importance.
The conditions precedent for the application of section 17 (2) (c) are ( 1 ) that the land must be required for a public purpose and (2) the appropriate Government must be of the ,opinion that the purpose in question is of urgent importance.
But it was urged on behalf of the appellants that we should apply ejusdem generie rule in interpreting section 17 (2) (c).
The contention on behalf of the appellants was that though section 17 (2) (c) read by itself covers a very large field, that provision should be given a narrower meaning because of the provisions in section 17(2) (a) and (b).
It was urged that as the general words contained in section 17 (2) (c) follow the specific words of the same nature, in section 17 (2) (a) and (b), those general words must be understood as applying to cases similar to those mentioned in section 17 (2) (a) and (b).
The ejusdem generis rule is not a rule of law but is merely a rule of construction to aid the courts to find out the true intention of the legislature.
If a given I provision is plain and unambiguous and the legislative intent is clear, there is no occasion to call into aid that rule ejusdem generis rule is explained in Halsbury 's Laws of England (3rd Edn.).
36 p. 397 paragraph 599 thus "As a rule, Where in a statute there are general words following particular and specific words,, the general words must be confined to things of the same kind as those specified, although this, ' as a rule of construction, must be applied with caution, subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament.
For the ejusdem rule to apply, the specific words must constitute a category, class or genus; if they do constitute such a category, class or genus, then only things which belongs to that category, class or genus fall within the general words.
It is observed in Craies on Statute Law (6th Edn.) p. 181 that : "The ejusdem generis rule is one to be applied With caution and not pushed too far, as in the case of many decisions, which treat it as automatically appli 878 cable, and not as being, what it is, a mere presumption in the absence of other indications of the intention of the legislature.
The modem tendency of the law, it was said, is "to attenuate the application of the rule of ejusdem generis".
To invoke the application of the ejusdem generis rule there must be a distinct genus or category.
The specific words must apply not to different objects of a widely differing character but to something which can be, called a class or kind of objects.
According to Sutherland Statutory Construction (3rd Edn.) Vol.
II p. 395, for the application of the doctrine of ejusdem generis, the following conditions must exist.
(i) The statute contains an enumeration by specific words; (ii) The members of the enumeration constitute a class; (iii) The class is not exhausted by the enumeration; (iv) A general term follows the enumeration and (v) There is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.
The scope of the ejusdem generis rule has been considered by this Court in several decisions.
In State of Bombay vs Ali Gulshan(1); it was observed: "Apart from the fact that the rule must be confined within narrow limits, and general or comprehensive words should recive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applied.".
In Lilavati Bai vs The State of Bombay,(2) it was observed "The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the legislature presumed to use the general words in a restricted sense,; that is to say, as belonging to the same genus ' as the particular and specific words.
Such a restricted mean (1) ; (2) ; 879 ing has to be given to words of general import only where the context of the whole scheme of legislation requires it.
But where the content and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning," The same view was reiterated by this Court in K. K. Kochini vs State of Madras and Kerala(1).
Bearing in mind the principles set out earlier, we shall now consider whether the general import of the words, in section 17 (2) (e) should be cut down in view of section 17 (2) (a) and (b).
Under cl.
(a) of section 17(2), the acquisition is to be made by the Railway Administration when owing to any sudden change 'in the, channel of any navigable river or other unforeseen emergency it becomes necessary for the administration to acquire the immediate possession of any land for the maintenance of the traffic or for the purpose of making thereon a river side or ghat station or for providing convenient connection with or access to any such station.
We would like to emphasize that under this provision, the acquisition can only be made by the Railway Administration and that when it considers that immediate possession (of any land is necessary for the purposes mentioned therein, Under el.
(b) of sub section
(2) of section 17, before an acquisition can be made, the Collector must form an opinion that it has become necessary to acquire the immiediate possession of the land concerned for the ' purposes mentioned therein.
Under cl.
(c) of section 17(2), the acquisition can be made only when the appropriate Government forms the opinion that because of urgent importance, the concerned land has to be acquired for the purposes mentioned in that provision.
Under el.
(a) the derision to acquire has to be made by the Railway Administration.
Under el.
(b), the acquisition can be made only on the formation of the required opinion by the Collector.
Under el.
(c) the acquisition can be made only when the requisite opinion is formed by the appropriate Government.
Further under el.
(a) the acquisition has to be made to meet certain unforeseen emergency as a result of which the immediate possession of the land is necessary.
Under el.
(b) the Collector must form an opinion that it has become necessary to acquire the immediate possession of land but under el.
(c) the requirement is that the appropriate Government must form the opinion that the acquisition is of urgent importance.
Under cls.
(a), (b) and (c) of sub section
(2) of section 17, the decision to acquire land has, not to be made by the (1) A.I.R. 1960 S.C. 105.0.
(1) A.I.R. 1960 s.c. 1050 880 same authority but by different authorities.
Further the conditions under which the acquisition has to be, made differ from clause to clause.
Therefore there is no basis to say that the general words in cl.
(c) follow the particular and specific words in cls.
(b) and (c).
Nor can it be said that the specific words contained in cls.
(a) and (b) constitute a category, 'class or genus.
Hence we are unable to accept the contention that in interpreting cl.
(c) of section 17(2), we should apply the rule of ejusdem generis.
As none of the contentions taken by the appellants are ac ceptable, thise appeal fails and is dismissed.
But in the circumstances of the case we make no order as to costs.
K.B.N. Appeal dismissed.

summary:
In March 1969, the respondent State issued a notification under section 4 of the Land Acquisition Act, 1894, as amended by the Punjab Legislature, for acquisition of the appellants ' land.
The notification stated that the land was likely to be required to be taken by Government, at public expense, for a public purpose, namely,.
the setting up of a factory for the starting of an industry and, further that action under section 17(2)(c) would be taken on the, ground of urgency and provisions of section 5A will not apply in regard to the said acquisition.
The appellants filed a writ petition in the High Court questioning the validity of the acquisition on the ground, inter alia, that there was no urgency in the mattelr, of requiring the land ', therefore recourse to section 17 was not justified.
The state government pleaded that since the Government of India had extended the time for completion of the project till April 30, 1969, it, had become necessary to take immediate steps to acquire the land.
The High Court dismissed the petition.
In the appeal to this Court it was contended that (i) the acquisition in question being one for the benefit of a Company, proceedings should have been taken under sections 38 to 44B of the Act,, and that there was no public purpose involved in the case; (ii) there was no urgency and hence recourse could not be had to section 17 of the Act; and (iii) section 17(2) (c) was inapplicable to the facts of the case, because, though section 17(2)(c) read by itself covered a very large field, applying the ejusdem generis Rule that provision had to be given a narrower meaning because of the provisions of section 17(2)(a) and (b).
Dismissing the appeal, HELD : (i) On the facts of the case the purpose for which land was acquired was a public purpose.
The question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government.
So long as it is not established that the acquisition is sought to be made for some collateral purpose or that there is a colourable exercise of power the declaration of the government that it is made for a public purpose is not open to challenge.
[874 E G] Smt; Somavanti and Ors vs State of Punjab, [1963] 2 S.C.R. 774 and Raja Anand Brahma Shah vs State of U.P., ; , referred to.
In view of the fact that the State Government had contributed towards the cost of acquisition it was not necessary to proceed with the acquisition under Part VII of the Act.
[875 A] 8 7 2 (ii) On the facts of the case there was urgency.
The conclusion of the Government in a given case that there was urgency is entitled to weight, if not conclusive.
(iii) In interpreting cl.
(c) of section 17(2) the rule of ejusdem generis, ,cannot be applied.
If a given provision is plain and unambiguous and the legislative intent is clear there is no occasion to call into aid that rule.
Under cls.
(a), (b) and (c) of sub section
(2) of section 17 the decision to acquire, land has not to be made by the same authority but by different authorities.
Further, the conditions under which the acquisition has to be made differ from clause to clause.
Therefore, there is no basis to say that the general words in cl.
(c) follow the particular and specific words in cls.
(b) and (c).
[877 E; 879 H] State of Bomby vs Ali Gulshan, , Lilavati Bai vs Stat of Bombay, ; , K, K. Kochuni vs State of Madras, A.I.R. 1960 S.C. 1050, referred to.


judgement:
iminal Appeal No. 83 of 1954.
Appeal by Special Leave granted by the Supreme Court by its Order dated the 14th September, 1953 from the Judgment and Order dated the 5th June, 1953 of the High Court of Judicature for the State of West Bengal at Calcutta in Criminal Revisions Nos. 1205 and 1204 of 1952.
Ajit Kumar Dutta, (A. K. Dutt and section Ghose, with him), for the appellants.
C. K. Daphtary, Solicitor General of India, (P. A. Mehta, P. G. Gokhale and N. C. Chakravarty, with him), for the respondent.
1027 1954.
November 30.
The Judgment of the Court was delivered by MUKHERJEA, J.
This appeal, which has come before us on special leave, is directed against a judgment of Chunder, J. of the Calcutta High Court dated the 5th of June, 1952, rejecting the appellants application for quashing of certain criminal proceedings started against them and pending before a special court constituted under a notification of the Government of West Bengal issued under West Bengal Act XII of 1952.
To appreciate the contentions raised on behalf of the appellants it would be necessary to narrate a few antecedent facts.
The two appellants along with four other persons, one of whom as died since then, were placed on trial before the First Special Tribunal, Calcutta, which was one of the Tribunals constituted under the Criminal Law Amendment Ordinance XXIX of 1943 passed by the Governor General of India under section 72 of the Government of India Act, 1935, on charges of bribery as also of conspiracy under section 120 B of the Indian Penal Code, read with section 420 of the Code which was later on replaced by section 409.
The trial ended in conviction of all the accused, though not on all the charges brought against them and by its judgment dated the 26th May, 1952, the Tribunal sentenced them to various terms of imprisonment and fine.
It may be convenient to refer here to two of the provisions of Ordinance XXIX of 1943 under which the trial was held and which are material for our present purpose.
One of these relates to the composition of the special tribunal and section 4(1) of the Ordinance lays down that "a special tribunal constituted under this Ordinance shall consist of three members".
This provision was modified by section 3 of Ordinance I of 1950 which lays down that so far as the First Special Tribunal at Calcutta is concerned, for the words "three members" occurring in section 4(1), the words "two members" shall be substituted.
The other material provision is contained in section 5(1) of the Ordinance as it stood after the amendment of 1946, 132 1028 read with sub section (2) of the same section.
Section 5 (1) provides that "the Central Government may from time to time, by notification in the official Gazette, allot cases for trial to each special tribunal" , and section 5(2) lays down that "the special tribunal shall have jurisdiction to try the cases for the time being respectively allotted to them under sub section (1) in respect of such of the charges for offenses specified in the schedule as may be preferred against the several accused".
The result, therefore, is that although a number of offenses are specified in the schedule, it is not all cases of these offenses which are to be tried by the special tribunal but only such of them as the Central Government may, in its discretion, allot to the tribunal.
To proceed with the narrative of facts, there were separate appeals taken by all the five accused against the judgment of the special tribunal, mentioned above, to the High Court of Calcutta under the provisions of the Ordinance itself.
The appeals were heard by a Division Bench consisting of Chakravartti, C. J. and Sinha, J.
The learned Judges did not enter into the merits of the cases but allowed the appeals on two points of law which, according to them, vitiated the entire trial.
It was held in the first place that the special tribunal, which consisted of three members to wit Mr. Barucha, Mr. Joshi and Mr. Bose at the material time, legally ceased to exist on and from the 16th of December, 1949, when Mr. Bose, one of the members, resigned.
It is true that the Amending Ordinance I of 1950 was passed on the llth of January, 1950, but as the tribunal was not reconstituted as a fresh tribunal by means of a fresh notification in the gazette as required by section 3 of the new Ordinance, the two remaining members could not be regarded as a legally constituted tribunal within the meaning of the Ordinance and all the proceedings before it after the resignation of the third member, including the judgment delivered by it were void.
It was held in the second place that as section 5(1) of the Ordinance XXIX of 1943 as it stood after the amendment of 1946, read with section 5(2) autho 1029 rises a special court to try not all cases of offences specified in the schedule but only those which the State Government may in its discretion direct it, became repugnant to Article 14 of the Constitution as soon as the Constitution came into force.
The trial held after the 26th of January, 1950, was therefore bad and although no evidence was taken after that date the discriminations in the shape of departures from normal procedure were involved even in the stage of arguments and pronouncement of judgment against the accused, and the conviction and sentence must consequently be set aside.
After holding the trial to be bad by reason of the illegalities mentioned above, the learned Judges proceeded to consider what should be the final order passed in the appeals.
Having regard to the voluminous evidence on the record, they did not consider it proper to make an order of acquittal in these cases.
They indeed felt distressed by the fact that the accused had already undergone the strain of a protracted and harassing trial for nearly four years but held that such considerations could not weigh with a court so as to restrain it from making an order which the law requires.
The order passed by the High Court was that the accused should be retried in accordance with law by a court of competent jurisdiction, it being left to the State Government to decide whether actually the trial should be proceeded with or not.
This order was pronounced on the 29th of April, 1952.
On the 30th of July, 1952, the West Bengal Act XII of 1952 came into force following an ordinance laying down similar provisions which amended in certain respects the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act of 1949.
On the 22nd August, 1952, three special courts were constituted by a notification of the Government of West Bengal under section 4(2) of this Act of 1949, one of them being described as the West Bengal Second Special Court; and by a notification dated the 19th of September, 1952, Mr. N.L. Some was appointed Special Judge to preside over this Court.
On the 8th of October, 1952, a notification was issued allotting the case against the 1030 Appellants and their co accused to this second court for trial and on the 12th of November, 1952, a fresh petition of complaint was filed by one Kalidas Burman, Inspector of Police, Delhi Special Establishment, against the accused under section 120 B, read with section 409 and sections 409 and 109 of the Indian Penal Code.
On the 21st of November following, summonses were issued in pursuance of the complaint and within 6 days from that date all the five accused moved the High Court of Calcutta and rules were issued in their favour calling upon the State Government to show cause why the process issued on the basis of the petition of complaint filed by Kalidas Burman should not be quashed.
All these rules came up for hearing before Chunder, J. sitting singly and the rules were discharged on the 5th of June, 1953.
The appellants, who were the petitioners in Revision Cases Nos. 1204 and 1205 of 1952, prayed for leave to appeal to this court against this order of the single Judge which was rejected.
They subsequently obtained special leave from this court, on the strength of which the case has come before us.
The substantial point raised by Mr. Dutt, who appeared in support of the appeal, is, that section 12 of the West Bengal Act XII of 1952 operates as a bar to the trial of this case under the Act.
It is argued that under orders of the High Court passed in the appeals, it is the original case, which was commenced before the First Special Tribunal, Calcutta, under the Central Ordinance XXIX of 1943 which is being retried by the special court constituted under the West Bengal Act XII of 1952.
This case, it is pointed out, was pending before the High Court on the 9th April, 1952, which was the date of the commencement of the West Bengal Ordinance preceding the Act and to such cases the provisions of the Act have been expressly made inapplicable by section 12.
It is to be noted that the West Bengal Criminal Law Amendment (Special Courts) Act, (Act XXI of 1939) was amended by the West Bengal Ordinance VIII of 1952 which came into force on the 9th of April, 1952, and this Ordinance was subsequently replaced by 1031 West Bengal Act XII of 1952.
Section 12 of the Act provides as follows: "Nothing in this Act shall apply to any proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than a special court".
Mr. Dutt contends that the present case is nothing but a continuation of the original case which was tried by the First Special Tribunal of Calcutta under the Central Government Ordinance XXIX of 1943 and against the decision of which Tribunal appeals were taken to the High Court.
The appeals were pending before the High Court when Ordinance VIII of 1952 was passed and consequently section 12 of Act, XII of 1952 would exclude the application of the provisions of the Act to the present case.
For a proper determination of the question it would be necessary first of all to examine the precise scope and object of section 12 of the West Bengal Act XII of 1952.
This, as said above, has only amended certain provisions of the earlier Act XXI of 1949.
Act XXI of.1949 provides for the establishment of special courts presided over by special Judges and they are to follow a particular procedure in the trial of cases assigned to them which differs in certain respects from the procedure laid down in the Code of Criminal Procedure and to that extent is prejudicial to the accused.
Section 4(1) of Act XXI of 1949, as it stood before the amendment of 1952, provided that "the Provincial Government may from time to time by notification in the official gazette allot cases for trial to a special Judge"; and subsection(2) of the section laid down that "the special Judge shall have jurisdiction to try cases for the time being allotted to him under sub section (1) in respect of such of the charges for the offences specified in the schedule as may be preferred against the several accused, and any such case which is at the commencement of this Act or at the time of such allotment pending before any court or any other special Judge shall be deemed to be transferred to the special Judge to whom it is allotted".
The result of 1032 the combined operation of the two sub sections therefore was that all the cases of offences specified in the schedule were not to be tried by a special court but those only could be tried, which the Provincial Government in its discretion might allot to it.
Further there was nothing to prevent the Provincial Government from allotting a case already pending before an ordinary court to a special court constituted under this Act.
A provision which allows the Government an unfettered discretion to choose from amongst the cases of offences, specified in the schedule to the Act, which of them, it would allot to the special tribunal for trial according to the special procedure, the rest being left to be tried in the ordinary way, became, after the coming into force of the Constitution, open to the charge of being obnoxious to the equal protection clause embodied in Article 14 of the Constitution.
This defect was removed and the chance of discrimination eliminated by the Amending Ordinance VIII of 1952, which was afterwards enacted into Act XII of 1952.
Section 4 of the Ordinance replaced section 4 of the Act and sub section (1) of this section laid down that "notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law, the offences specified in the schedule shall be triable by special courts only".
There was no provision in this new section of the Ordinance, corresponding to section 4(2) of the Act under which cases of offences specified in the schedule pending before ordinary courts could be transferred to special courts.
This in sense was anomalous and as the position created by section 4(1) of the Ordinance was that offences specified in the schedule were compulsorily triable by special courts, a difficulty could legitimately arise with regard to cases pending before ordinary courts and the question could be raised whether the ordinary courts would have jurisdiction at all to proceed with trial of these cases after the enactment of section 4(1) of the Ordinance.
It seems clear that in order to obviate this difficulty section 12 was introduced in Act XII of 1950, which replaced Ordinance 1033 VIII of 1952, and the section expressly provides that the Act would not apply to proceedings pending before any court other than a special court on the date that Ordinance VIII of 1952 came into force.
All these pending cases, therefore, could not be allotted to or tried by a special court under the Act.
The question, for our consideration is whether the prohibition created by section 12 is attracted to the facts of the present case.
Now what was pending before the High Court on the 9th April, 1952, were the appeals taken by the appellants and their co accused against the judgment of the First Special Tribunal, Calcutta, constituted under the Central Ordinance XXIX of 1943.
We may agree with the learned counsel for the appel lants that the High Court not being a special court, the provisions of section 12 of the Act could not apply to these proceedings, but this by itself would be of no assistance to the appellants .
To attract the operation of section 12, it is necessary to show that the proceedings which are now before the Special Court under West Bengal Act XII of 1952 were pending before a court other than a special court on the 9th April, 1952.
In our opinion the expression "proceedings in a court other than a special court" occurring in section 12 means and refers to proceedings relating to trial of a case in the original court and not to proceedings in appeal.
If we look to the provisions of Act XII of 1952, we would find that all of them relate to matters concerning constitution, jurisdiction, and powers of the special courts and the special rules of procedure which they are to apply in the trial of cases, and not one of them has any reference to an appeal.
The object of the legislature in enacting section 12, as stated above, was that cases pending before an ordinary or a non special court at the date when the Ordinance came into existence and which were being tried in the ordinary way, should not be brought on to or tried by the special courts in spite of the provi sion of the new section 4(1) introduced by the Ordinance into the Act.
This reason manifestly could have no application to appellate proceedings, for there 1034 could be no question of cases pending in appeals being allotted to special courts for trial.
How the case is to proceed further if the appellate court directs a rehearing would depend entirely on the order which the appellate court passes and is competent in law to pass.
If the appeal court directs retrial by an ordinary court, as the court competent to try the case or that is the implication of the order, the jurisdiction of the special court would be barred not by reason of section 12 of the Special Act but by reason of the order made by the appeal court.
In our opinion the pendency of the appeals before the High Court on the relevant date could not attract the operation of section 12, but as the appeals were taken to the High Court from the decision of a court other than a special court as contemplated by Act XII of 1952, whether the retrial directed by the High Court could be held by a court under Act XII of 1952, would depend on the nature and effect of the order which the High Court has made.
The High Court did not acquit the accused, nor make any order of discharge in their favour.
They set aside the conviction and sentence and directed the retrial of the accused by a competent court in accordance with law if the Government chose to proceed against them.
We agree with Mr. Dutt that ordinarily an order of retrial means a further trial by the same Tribunal which took cognizance of the case and before which the case must be deemed to be pending until it is finally disposed of in one way or other recognized by law.
In this case the accused were neither acquitted, nor discharged, but the High Court set aside the proceedings of the special court on the ground that the trial held by it became void on and from the 26th January, 1950, as section 5(1) of the Ordinance under which the allotment of the case was made and the Tribunal acquired jurisdiction to try it became void and inoperative as soon as the Constitution came into force, by reason of its being in conflict with Article 14 of the Constitution.
The Special Tribunal, therefore, from which the appeals came to the High Court must be held according to the decision of 1035 the High Court itself to have lost seisin of these cases after the 26th January, 1950, and they had no jurisdiction to proceed with the trial.
As the High Court directed these cases to be tried by a competent court, they could not possibly be sent back for trial to the Special Tribunal assuming that any such Tribunal existed or could be constituted by the Central Government.
The only court which was competent to try these cases would be the special court under Act XII of 1952 and its jurisdiction could not be ousted as the order of the High Court itself proceeded on the footing that no trial could be held by the Tribunal con stituted under Ordinance XXIX of 1943.
The jurisdiction of the special court not being ousted by section 12 of the Act or by the order of the High Court, we are unable to hold that the proceedings before it should be quashed.
The result is that the appeal is dismissed.

dataset_name: IN-Abs

summary:
Section 12 of the West Bengal Act XII of 1952 provides: " Nothing in this Act shall apply to any proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance 1952 in any court other than a Special Court".
On appeal taken by the appellants to the High Court of Cal cutta against their conviction by the First Special Tribunal Calcutta constituted under the Criminal Law Amendment Ordinance of 1943 the High Court set aside the conviction on the ground, inter alia that the Special Tribunal was not properly constituted.
The High Court directed that the accused should be retried in accordance with law by a court of competent jurisdiction, it being left to the State Government to decide whether actually the trial should be proceeded with or not.
On the 30th July 1952 the West Bengal Act XII of 1952 came into force following an Ordinance laying down similar provisions which amended in certain respects the provisions of the West Bengal Criminal Law Amendments (Special Courts) Act of 1949.
In August 1952 three Special Courts were constituted by a notification of the Government of West Bengal, one of them being described as West Bengal Second Special Court.
The case against the appellants was allotted to this second court for trial.
It was contended on behalf of the appellants that section 12 of the West Bengal Act XII of 1952 was a bar to the trial of the pre sent case under the Act and that under the orders of the High Court passed in the appeals it was the original case which was commenced before the First Special Tribunal Calcutta under Central Ordinance XXIX of 1943 which was being retried by the Special Court constituted under West Bengal Act of 1952.
The present case was pending before the High Court on the 9th April 1952 which was the date of the commencement of the West Bengal Ordinance preceding the Act and to such cases the provisions of the Act had been made expressly inapplicable by section 12 and that the present case was nothing but a continuation of the original case which was tried by the First, Spe 1026 cial Tribunal Calcutta under the Ordinance of 1943 and against the decisions of which appeals were taken to the High Court.
Held, (repelling the contention) that what was pending before the High Court on the 9th April, 1952 were the appeals taken by the appellants (and their co accused) against the judgment of the First Special Tribunal Calcutta constituted under the Central Ordinance XXIX of 1943 and in order to attract the operation of section 12 it was necessary to show that the proceedings which were pending before the Special Court under West Bengal Act XII of 1952, were pending before a Court other than a Special Court on 9th April 1952.
The expression "proceedings in a court other than a Special Court" occurring in section 12 means and refers to proceedings relating to The trial of a case in the original court and not to proceedings in appeal.
The object of the legislature in enacting section 12 was that cases pending before an ordinary or a non special court at the date when the Ordinance came into existence and which were being tried in the ordinary way should not be brought to trial or tried by the Special court in spite of the provisions of the new section 4 (1) introduced by the Ordinance into the Act.
This reason manifestly could have no application to appellate proceedings for there could be no question of cases pending in appeals being allotted to special courts for trial.
How the case was to proceed further, if the appellate court directed a rehearing would depend entirely on the order which the appollate court passed and was competent in law to pass.
Accordingly, as the High Court did not acquit the accused or make an order of discharge but simply set aside the conviction and sentence directing the retrial of the cases by a competent court, the only court which was competent to try these cases would be the Special Court under Act XII of 1952 and its jurisdiction could not be ousted as the order of the High Court itself proceeded on the footing that no trial could be held by the Tribunal constituted under Ordi nance XXIX of 1943.


judgement:
Appeal No. 23 of 1967.
Appeal by special leave from the judgment and order dated October 9, 1963 of the Patna High Court in M.J.C. No. 824 of 1963.
section N. Prasad and R. B. Datar, for the appellant.
B. P. Jha, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by Shelat, J.
This appeal, by special leave, is against the judgment of the High Court of Pitna dismissing in limine the writ petition Med by the appellant challenging the order of his dismissal from service passed by the Government of Bihar.
865 The appellant was first appointed as a stenographer, Sub Inspector of Police in 1940 in the Police Service of the State.
After the requisite training in the Police Training College at Hazaribagh, he was posted as a Sub Inspector in 1950 in Champaran District.
In 1954, he was promoted to officiate as an Inspector of Police.
In June 1955, he worked in Saharsa District as an officiating Inspector of Police.
In July 1955, he received a notice to show cause why disciplinary proceedings should not be taken against him in a matter relatng to certain cloth recovered at Katihar Police Station in a Police Case under sections 379 and 414 of the Penal Code.
The appellant submitted his reply denying any misapropriation by him.
On September 26, 1955, he was served with a charge sheet heet alleging misappropriation and connivance by him of misappropriation by two constables named therein .
This was followd by an enquiry held by the Deputy Superintendent of Railway police at Samastipur.
The appellant alleged that the enquiry was held at partially behind his back and was, therefore, bad. ' In April 1956, the Deputy Superintendent of Police submitted his findings to the Superintendent of Railway Police, Samastipur holding that the charges against the appellant had been established.
These findings were than submitted to the Inspector General of Police with a recommendation that the appellant should be awarded exemplary punishment.
In September 1957, the Inspector General served a second show cause notice on the appellant to show cause why he should not be dismissed.
The appellant submitted his reply and also appeared in person.
By his order dated September 30, 1958, the Inspector General exonerated the appellant from the said charges.
But on the basis of certain adverse remarks in the confidential character roll of the appellant, he passed an order reverting the appellant to his substantive rank of Sub Inspector of Police for a period of one year.
This order clearly was one of penalty.
Admittedly, there was no charge against the appellant founded on the said adverse remarks.
The adverse remarks on the basis of which the order of reversion was passed were, as the said order itself pointed out, never notified to the appellant.
Nor was any opportunity to explain those remarks ever afforded to the appellant before the order of reversion was passed.
Aggrieved by the said order the appellant filed an appeal before the Government.
On November 7, 1959, the Government set aside the order of reversion passed by the Inspector General.
That was the relief prayed for by the appellant in his said appeal.
The order was set aside on the ground that no opportunity had been given to the appellant to explain the said adverse remarks, 866 and that therefore, it was legally unsustainable.
But the Govern , ment passed instead an order of dismissal disagreeing with the findings of the Inspector General and agreeing with the findings given by the enquiry officer, by whom the appellant had been found guilty.
On a further appeal to the Governor having been dismissed by the Government, the.
appellant filed a writ petition in the High Court.
On January 18, 1962, the High Court allowed the writ petition setting aside the Government 's order of dismissal, but directed that the appellant 's appeal should go back to the Government for disposal according to law. ', The Government thereupon served a notice on the appellant to show cause why he should not be dismissed from service.
That notice was issued on, the strength of rr.
851 (b) and 853 A of the Bihar & Orissa Manual, 1930.
The appellant thereupon gave his reply and requested for a personal hearing.
The request for personal hearing was rejected.
About a year after the High Court 's order quashing the Government 's order of dismissal, the Government issued an order dated March 5, 1963 reinstating the appellant, but at the same time suspending him from service.
On June.
15, 1963, the Government passed the order dismissing the appellant from service.
Hence, the appellant filed once more the present petition which the High Court dismissed in limine.
The question is whether it was competent for the Government, in an appeal filed by the appellant against the said order of reversion passed by the Inspector General Police, to set aside the findings of that officer by which he exonerated the appellant from the said charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer.
The appellant was governed by the , 5 of 1861.
Sec. 2 of the Act deals with the constitution of the police force and provides that the entire police establishment under a State Government shall, for the purposes of the Act, be deemed to be one police force, and shall be constituted is such manner as shall from the to time be ordered by the State Government.
3 provides that "The superintendence of the police throughout a general police district shall vest in and, shall be exercised by the State Government to which such district is subordinate.
" Under section 4, the admistration of the police throughout a general police district is vested in the Inspector General of Police, and in such Deputy Inspectors General of Police and Assistant InspectorsGeneral as the State Government shall deem fit.
7 runs as follows "Subject to the provisions of article 3 1 1 of the Constitution, and to such rules as the State Government may 867 from time to time make under this Act, the InspectorGeneral, Deputy Inspectors General, Assistant inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the sub ordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the following punishments to any police officer of the subordinate rank who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely.
" The section then sets out the punishments which the said officers can impose, namely, fine, confinement to quarters, deprivation of good conduct pay and removal from any office of distinction or special emolument.
It is clear that the Act itself confers on the Inspector General power to impose in suitable cases the penalty of dismissal, suspension and reduction, subject of course, to the provisions of article 311 and the rules made under the Act.
The power of superintendence conferred on the State Government by section 3 must, therefore, be read in the light of the provisions of section, 7 under which the Legislature has conferred specific powers to the officers mentioned therein.
Therefore, the State Government cannot interfere with, under the purported exercise of the general power of superintendence under section 3 with an order passed by any one of the officers mentioned in section 7 in exercise of the power conferred on them by that section, unless there is some provision which authorises or envisages such interference.
Under section 46(2), the State Government has been given the power to make rules from time to time by notification in the official gazette consistent with the Act, Inter alia : "(a) to regulate the procedure to be followed by Magistrates and police officers in the discharge of any duty imposed upon them by or under this Act; (c)generally, for giving effect to the provisions of this Act.
" It would seem that in pursuance of the rule making power under section 46 (2) rules have been made which are to be found in the Bihar & Orissa Police Manual, 1930.
The Manual has not been produced before us.
But we find r. 851 set out by the High Court 868 in its judgment in the first writ, petition filed by the appellant, reported in Makeshwar Nath vs Bihar(1).
The rule so set out reads 'as follows : "General rules as to appeals (a). . (b) Against an order of, dismissal, removal reduction, withholding of promotion or peri odical increment. there shall be one appeal in each case as follows; Against an order passed by a Superintendent, to the Deputy Inspector_General; Against an original order passed by a Deputy Inspector General, to the Inspector General; Against an original(order passed by the Inspector General, to the Local Government.
(c) The order of the appellate authority on any such appeal shall be final.
" Under this rule an appeal would lie before the Government against the order of the Inspector General reverting the appellant to his substantive post of Sub Inspector for one year.
Such an appeal was in fact filed by the appellant.
But no appeal was filed by the department against the order of the Inspector General exonerating the appellant of the charges of misappropriation and connivance of misappropriation by the two constables.
Under r. 851 (b), therefore, the only question before the Government was whether the order of reversion should be sustained or not.
There was no other matter by way of an appeal before the Government by the department or by any one else being aggrieved against the order of the Inspector General by which he held that the charges.
against the appellant had not been established.
That being so, the Government could pass in exercise of its appellate power under r. 851 (b) such an order as it thought fit in the appeal filed by the appellant, i.e. either upholding the order of reversion or setting it aside.
In the absence, of any other appeal, the Government could not sit in judgment over the findings of the Inspector General given by him under the power conferred upon him by section 7 of the Act.
An appeal before the Government having been provided for under r. 851 (b), presumably both by the delinquent police officer, as also by the department, if aggrieved by an order passed by the Inspector General, there would also be no question of the Government exercising, its general power of superintendence under section 3 of the Act.
The (1) A.I.R. 1962 Pat.
276. 869 exercise of such a power is ordinarily possible when there is no provision for an appear unless there are other provisions providing for it.
The order of dismissal passed by the Government in the appeal filed by the appellant therefore, was not sustainable.
We are, however, informed by counsel that the Government of Bihar has framed two rules, r. 853 and r. 853 A. Rule 853, a copy, of which has been furnished to us, provides "Memorials and Revision.
No petition or memorial which is a representation against an order passed in a disciplinary case shall be submitted to any authority other than the authority which under the rule for the time being in force is empowered to enter am the appeal.
No memorial or revision was filed either by the appellant or any one else before the Government, which was the appellate authority which could entertain such a memorial or revision.
Assuming that under r. 853 the Government could suo moto revise the order of the Inspector General, an appeal having been filed before I it, it could not so act.
The fact that the power of revision is con feared on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appellate authority felt that the order was so unjust or unreasonable that it shold act under its revisional power.
That was not the case of the Government before us.
Nor did the Government say so in the impugned order.
Therefore, there was no occasion for the Government to revise the order passed by the Inspector General exonerating the appellant of the charges preferred against him.
In its order, dated January 31, 1963, the Government, no doubt, has referred to rr.
8 5 1 (b) and 8 5 3 A as being the rules under which it purported to act for the purpose of making the impugned order of dismissal.
Rule 851 (b), as already pointed out, however, confers no such power.
As regards r. 853 A, it is neither set out in the impugned order, nor in the statement of case of the respondent State.
We called for its production, or even its copy but counsel for the State expressed his inability to produce the same.
Further, counsel for the appellant told us that even if r.853 A had been framed, it cannot operate because so far it has, not been published in the official gazette as required by section 46(2).
Counsel for the State was not in a position to throw any light whether the said rule has been framed or not and if framed whether it was notified in the Gazette.
In these circumstance he could not rely upon that rule to sustain the order of dismissal passed by the Government.
We have, therefore, to go upon r. 851 (b), which clearly does not empower the Government to pass an order such as the one impugned by the appellant on the ground 870 of its revisional power or any such similar power under section 3 of the Act.
In the absence of any other provision of law or any rule conferring on the State Government the, power to pass an order of dismissal in exercise of its revisional power or power of general superintendence, the general principle must prevail, namely, that an appellate authority in an appeal by an aggrieved party may either dismiss his appeal or allow it either wholly or partly and uphold or set aside or modify the order challenged in such appeal.
It cannot surely impose on such an appellant a higher penalty and condemn him to a position worse than the one he would be in if he had not hazarded to file an appeal.
Since under r. 851 (b) an appeal to the Government has been provided for and the Government had under that rule the appellate authority to dispose of appeals filed before it against the original order passed by the Ins pector General, it could not resort to any general power of superintendence except in cases where there is a provision conferring such a power in addition to its appellate authority and in the manner envisaged by such a provision.
In our view, the High Court was not right in dismissing the appellant 's writ petition.
The appeal has, therefore, to be allowed and the order of the State Government quashed as being without jurisdiction.
The consequence is as if the appellant was never dismissed, and continued to remain in the, police force to which he was attached.
The respondent State will pay to the appellant the costs both of this appeal and also of the writ petition filed by him in the High Court.
G.C. Appeal allowed.

summary:
At the relevant time the appellant was in the service of the State of Bihar as officiating Inspector of police.
After a departmental inquiry against him the report of the enquiry officer was submitted to the Inspector General of Police with the recommendation that the appellant should be given exemplary punishment.
Under section 7 of the the Inspector General had power to impose in suitable cases penalty of dismissal, suspension and reduction.
The Inspector General exonerated the appellant, from the charges laid against him but on the basis of certain adverse remarks in the confidential character roll of the appellant he passed an order reverting the appellant to the substantive rank of sub inspector of police for a period of one year.
These adverse remarks had never been notified to the appellant nor was,any opportunity to explain them ever offered to him before the order of reversion was passed.
In appeal the State Government set aside the order of reversion passed by the Inspector General on the ground that no opportunity had been given to the appellant to explain the adverse remarks, but the Government instead passed an order of dismissal disagreeing with the findings of the Inspector General and agreeing with the findings given by the enquiry officer by whom the appellant had been found guilty.
On further appeal to the Governor having been dismissed by the Government the appellant filed a writ petition in the High Court.
The High Court allowed the writ petition but directed that the appellant 's appeal should go back to the government for disposal according to law.
The Government thereupon served notices on the appellant to show cause why he should not be dismissed from service.
The notice was issued oh the strength of rr.
851(b) and 853 of the Bihar and Orissa Police Manual, 1930.
The appellant thereupon gave his reply.
About a year after the High Court 's order quashing the Government 's order of dismissal, the Government issued an order reinstating the appellant but at the same time suspending him from service.
This was followed by an order dismissing the appellant from service.
The appellant once more filed a petition in the High Court which was dismissed in liming.
By special leave the present appeal, was filed.
The question for consideration was, whether it was competent for the Government, in an appeal filed by the appellant against the order of reversion passed by the Inspect(* General of Police to set aside the findings of that officer by which he exonerated the appellant from charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer.
HELD:(1) The Act itself confers on the Inspector General power to impose in suitable cases the penalty of dismissal, suspension and reduc L1100Sup.
Cl/71 864 tion,subject to the provisions of article 311 and the rules made under the Act.
The power of superintendence conferred, on the State Government by s.3 must, therefore, be read in the light of the provisions of section 7 under which the legislature has conferred specified powers to the officers mentioned therein.
Further, an appeal before the Government having been provided for under r. 851 (b), presumably both by the delinquent police officer, as also the department, if aggrieved by an order passed by the Inspector General, there would also be no question of the Government exercising its general power of superintendence under section 3 of the Act.
The exercise of such a power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it.
[867 D 869 A] (ii)Under r. 851(b) the only question before the Government was whether the order of revision should be sustained or not.
There was no other matter by way of an appeal before the Government by the department or by anyone else being aggrieved against the order of the Inspector General by which he held that the charges against the appellant had not been established.
That being so, the Government could pass in exercise of its appellate power, under r. 851 (b) such an order as it ' thought fit in the appeal filed by the appellant i.e., either upholding the order of reversion or setting it aside.
In the absence of any other appeal, the Government could not sit in judgment over the findings of the Inspector General given by him under the power conferred on him by section 7 of the Act [868 E G] (iii)The order of the Govertunent could not also be defended under r. 853.
Assuming that under r. 853 the Government could suo moto revise the order of the Inspector General, on appeal having been filed before it, it could not so act.
The fact that the power of revision is conferred on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appeuate authority felt that the order was so unjust or unreasonable that it should act under its revisional power.
That wae not the case of the Government in the present case.
[869 D E] [whether the order of the Government could be defended under r. 853A could not be considered because the existence of the rule was not proved.]


judgement:
Appeal No. 1059 of 1970.
Appeal from the judgment and order dated February 18, 1970, of the Gujarat High Court in Special Civil Application No. 387 of 1968.
D. V. Patel and Vineet Kumar, for the appellant.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This appeal by certificate arises out of a writ petition filed by the respondent which is a Society registered under the Bombay Cooperative Societies Act 1925 challenging the collection of octroi by the appellant which is the Una Nagar Panchayat.
The appellant is a local body constituted under the Gujarat Panchayat Act 1961, hereinafter called the "Act, which came into force with effect from April 1, 1963.
Prior to its enactment the Bombay Municipal Act 1901, as applied to Saurashtra, was in force in that region of the present State of Gujarat.
Under its provisions Una Municipality was constituted.
It was collecting octroi on commodities which were imported into the municipal limits of Una under the Saurashtra Terminal Tax and Octroi Ordinance 1949.
Under section 3 of that Ordinance the Government could impose the tax mentioned thereunder in the cities and towns specified or included later in Schedule 1.
One of these taxes was a terminal tax on goods imported into or exported from the terminal tax limits.
Octroi as defined by section 2(2) included a terminal tax.
Section 4 gave the power to the Government to make rules by notification for the purpose of carrying out the purposes of the Ordinance.
Rules were framed under section 4 in the Gujarati language.
It was provided therein that the collection of Octroi and terminal tax would be done through the Sudhrai of the area entered in the schedule to the ordinance.
It is apparent that under the Ordinance it was ' the State Government which imposed the octroi or the terminal tax in the cities and towns specified in the Schedule and the Sudhrai was only an agency for collection thereof.
By a notification dated December 12, 1949 issued under the Ordinance the Government of.
the erstwhile State of Saurashtra included the town of Una in the Schedule 'to the Ordinance.
Thus 409 octroi and terminal tax, became leviable in that town on certain.
commodities imported there.
Section 9 of the Ordinance must also be noticed.
According to it the Government was to maintain it separate fund in respect of all monies received by it on account of any of the taxes specified in section 3 for every city or town or 'local area specified in Schedule I and such fund after deducting there from the expenditure incurred in connection with the levy and collection of such tax was to be applied for the benefit of the inhabitants of the city or town or local area for which it was maintained.
The purpose of levying the octroi duty or terminal tax.
under the Ordinance clearly was to add t o the revenue of the local body for the benefit of the people residing within the Jurisdiction of that particular local body.
So long as Una Municipality remained a municipality as con stituted under the Act of 1901, there was no difficulty in the matter of collection of the octroi.
After the Act came into force the Nagar Panchayat replaced the Municipality in Una.
It continued to collect the octroi till 1967 when the respondent, for the first time, raised an objection that it was not entitled to do so.
As the Nagar Panchayat persisted in making the collection a petition.
under article 226 of the Constitution was filed in the Gujarat High Court.
It has been held by the High Court that since in the Rules, promulgated under the Ordinance in Gujarati the collecting agency has been described as Sudhrai which means a municipality the Nagar Panchayat was not competent to collect the octroi under the Ordinance as it did not fall within the meaning or definition of the term "municipality".
In, our judgment the High Court was in error in coming to the conclusion that the Nagar Panchayat was not entitled to carry on the work of collection of octroi under the Ordinance even though, the Ordinance which imposed liability to pay remained in force.
Under section 307 of the Act where any local area was declared to be a grain or nagar under section 9 and if that area was co extensive with the limits of a municipal district or municipal borough the municipality functioning in such local area was to cease to exist and in its place an Interim Gram Panchayat was to be constituted.
According to clause (c) of that section the unexpended balance of the municipal fund and property including arrears of rates, taxes and fees belonging to the municipality and all rights and powers which vested in the municipality were to vest in the Interim Gram or Nagar Panchayat fund until a new panchayat was constituted in accordance with the provisions of section 308(1).
Clause (g) provided that all officers and servants in the employ of the municipality were to become officers and servants.
of the Interim Panchayat under the Act.
Clause (k) was in the following terms 410 "Any law (other than the municipal law) or any rule, by law, notification or order issued under such law, which was applicable to and in force in the local area immediately before it was declared as a gram or nagar under section 9, shall continue to apply to and to be in force in the local area until it is super seded".
Section 308 dealt with the term of office of an Interim Panchayat and the steps to be taken to hold election for a new Gram or Nagar Panchayat.
The appellant in the present case is indisputably the duly constituted Nagar Panchayat.
Section 307 of the Act leaves no room for doubt that wherever it Nagar Panchayat was constituted in place of the municipality the municipality disappeared and all its funds including the right to realise taxes etc., vested in the Nagar Panchayat.
In other words it was the Nagar Panchayat which was to function as the local body in the area previously constituted as a municipality.
Clause (k) of section 307 clearly saved all laws or rules which were applicable to the local area which formed a municipality and they were to continue to, apply and to remain in force in the area for which the Nagar Panchayat came to be constituted.
By no stretch ,of reasoning could it be said that the Ordinance did not become applicable to the cities and towns specified in Schedule I which came to be constituted as Grams or Nagars under the Act.
It is true that no fresh rules were promulgated under the Ordinance adapting the new terminology but even about the word Sudhrai It is, a moot point whether it means only a municipality as constituted under the Act of 1901.
An argument was raised before the High Court that the Guja rati expression "sudhrai" meant any local self governing authority.
The High Court observed that this expression as used in the Octroi rules could not have a wider connotation than the expression " municipality" in section 9 of the Ordinance.
When section 307(k) of the Act saved the operation of all, laws and rules etc., other than the municipal law the intention of the legislature was precise and definite and it is futile to suggest that the Ordinance was not covered by this saving clause.
The object underlying clause (c) of section 307 was to vest in the Nagar Panchayat the entire municipal fund including the arrears of taxes and fees as also the powers and rights relating thereto which previously vested in the municipality.
The octroi which was being collected under the Ordinance clearly fell within the ambit of clause (c).
The power and the right, therefore, had passed to the Nagar Panchayat and it was fully entitled to exercise it.
Even if in the rules framed under the Ordinance certain expression created a difficulty that could not defeat the right and the power conferred on the Nagar Panchayat 411 by the Act of realising and collecting the octroi which was being done under the Ordinance as saved by clause (k) of section 307.
If on account of the absence of proper adaptation in the rules made under the Ordinance any difficulty is being experienced in the collection of octroi it is always open to the State Government to make those clarifications and adaptations and indeed it would be expedient and desirable to do so.
So long as the new rules are not framed under the Ordinance or adaptations are not made thereunder the Nagar Panchayat can certainly make the (collection and through the officers who discharge the same duties as were being performed by their counterparts mentioned in the rules.
This is what seems to have been done up till 1967 without any objection by any one.

summary:
The Appellant, Nagar Panchayat, Una, a local body, was constituted under the Gujarat Panchayat Act, 1961, which came into force 'from April 1, 1963.
Prior to this enactment, the Bombay Municipal Act, 190 1, as applied to Saurashtra, was in force in that region of the present State of Gujarat and under its provisions the Una Municipality was constituted.
This Municipality was collecting octroi on commodities imported into the municipal limits of Una under the Saurashtra Terminal Tax and Octroi Ordinance 1949.
Section 3 of that Ordinance empowered the State Government to impose the tax mentioned thereunder in the cities and towns specified or included later in Schedule 1.
One of these taxes was a terminal tax on goods imported into or exported from the terminal, tax limits.
Section 4 gave powers to the Government to make rules by notification for the purpose of carrying out the purposes of the Ordinance.
Rule 4, which was framed in Gujarati language, provided that collection of octroi and terminal tax would be done through the "Sudhrai" of the area entered in the schedule to the Ordinance.
After the Act of 1961 came, into force and the Nagar Panchayat replaced the Municipality, it continued to collect the actroi till 1967, when the respondent filed a petition under Article 226 challenging the competence of the Nagar Panchayat to collect the octroi.
The High Court held that since in the Rules promulgated under the Ordinance in Gujarati the collecting Agency had been described as "Sudhrai" which means Municipality, the Nagar Panchayat was not competent to collect the octroi under the Ordinance as it did not fall within the meaning or definition of the term "Municipality".
On appeal to this Court, HELD : Allowing the appeal : The High Court was in error in coming to the conclusion that the Nagar Panchayat was not entitled to carry on the work of collection of octroi under the Ordinance even though the Ordinance which imposed liability to pay remained in force.
Section 307 of the Act leaves no room for doubt that wherever a Nagar Panchayat was constituted in Place of the municipality, the municipality disappeared and all its funds including the right to realise taxes etc.
vested in the Nagar Panchayat.
In other words it was the Nagar Panchayat which was to function as the local body in the area previously constituted as a municipality.
Clause (k) of section 307 clearly saved all laws or rules which were applicable to the local area which formed a municipality and they were to continue to, apply and to remain in force in the area for which the Nagar Panchayat came to be constituted.
There was no force in the contention that the Ordinance did not become applicable to the cities and towns specified in Schedule I which came to be constituted as Grams or Nagars under the Act.
[410 C] 408 Even if in the rules framed under the Ordinance certain expression created a difficulty that could not defeat the right and the power conferred on the Nagar Panchayat by the Act of realising and collecting the octroi which was being done under the Ordinance as saved by clause (k) of section 307.
[410 H]