judgement:
ivil Appeal No.309 of 1955.
Appeal from the judgment and order dated October 7, 1953, of the Orissa High Court in O.J.C. No. 37 of 1952.
C.K.Daphtary, Solicitor General of India and B.Sen (B. M. Patnik, Advocate, Orissa High Court with Special Permission of the Court and R. H. Dhebar), for the appellants, Nos. 1, 3 to 9 and 11 to 16 and the intervener.
H. Mahapatra and Gyan Chand Mathur, for the respondent.
December 6.
The following Judgment of the Court was delivered by BHAGWATI J.
This appeal with a certificate under articles 132 and 133(1)(c) of the Constitution arises out of a writ petition filed by the respondent in the High Court of Orissa under article 226 seeking to quash the proceedings taken by certain tenants of his private lands under the provisions of the Orissa Tenants ' Protection Act, 1948 (Orissa III of 1948), hereinafter referred to as the 1948 Act.
The respondent was the ruler of the erstwhile Khandapara State which merged with the Province of Orissa under the States ' Merger (Governor 's Provinces) Order, 1949 with effect from August 1, 1949.
The respondent had on December 14, 1947 entered into an agreement with the Governor General of India art, 3 Whereof provided that: 1069 " The Raja shall be entitled to full ownership, use, and enjoyment of all private properties (as distinct from State Properties) belonging to him on the date of the agreement.
" That article further provided that if any dispute arose as to whether any item of property was the private property of the Raja or State property, it shall be referred to such officer with judicial experience as the Dominion Government might nominate and the decision of that officer shall be final and binding on both parties.
The respondent claimed a number of properties and the matter was referred to the Adviser for Orissa States for determining whether all the items claimed by him could be regarded as his private pro perties.
On June 10, 1949, the Adviser communicated his decision that the respondent was entitled to 1,643 acres as his Khamar lands and 29 and odd acres as lands settled with his tenants.
The lands comprised in the present proceedings taken under the 1948 Act as aforesaid were declared to be the private properties of the respondent.
On March 3, 1950, the Orissa Legislature passed the Orissa Merged States ' (Laws) Act, 1950 (Orissa IV of 1950) hereinafter referred to as " the 1950 Act ".
Section 4 of that Act extended inter alia the 1948 Act to the areas merged in the absorbing Province of Orissa.
Section 7 provided for the modification of tenancy laws in force in the merged States.
The relevant provisions of that section so far as they are material for the purposes of this appeal may be set out herein: " Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of article 4 of the States Merger (Governor 's Provinces) Order, 1949: (a)all suits and.
proceedings between landlord and tenant as such shall be instituted and tried in revenue courts.
Explanation:In this clause the expression " landlord" shall mean a person immediately under whom a tenant holds land, and the expression " tenant " shall mean a person who holds land under another 1070 person and is or, but for a special contract, would be liable to pay rent for that land to that person: (h) when a person holds Khamar, nij jote or any other private lands of a Ruler, which has been recognised as such by the Provincial Government, he shall not be liable to ejectment but shall be liable to pay such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner, Northern Division, as the case may be and thereupon he shall acquire right of occupancy in respect of such lands: " On April 14, 1951, the State Legislature passed the Orissa Tenants Protection (Amendment) Act, 1951 (Orissa XVII of 1951) whereby the date the " 1st day of September, 1947 " wherever it was used in the 1950 Act, was substituted by the "I st day of August, 1949" for the purposes of the merged States areas and it was further provided that in such areas where neither the Madras Estates Land Act, 1908, nor the Orissa Tenancy Act, 1913 was in force the special laws or customs prevailing therein shall be taken into consideration for the application of that Act.
It appears that certain tenants who were in occupation of the private lands of the respondent were evicted by him during the year 1951 and other tenants were inducted by him and put in possession of the lands.
The tenants who were thus evicted applied to the Revenue Officer some time in 1952 for being restored to possession of their tenancy lands under the provisions of the 1948 Act, alleging that the respondent was their landlord and that he had unlawfully evicted them from their lands.
These were numbered as O.T.P. Act Cases Nos.
21 to 25 of 1952, 26 to 28 of 1952, 29 to 32 of 1952 and 33 to 41 of 1952.
Notice was issued to the respondent but it appears that be did not care to enter appearance before the Revenue Officer or to contest the applications.
On the ex parte evidence of the Applicants the Revenue Officer directed restoration of possession to them holding that they 1071 were in possession of the lands as tenants on the 1st day of August, 1949, and as such were entitled to the benefits conferred by the 1948 Act, as amended in its application to the merged States.
The respondent thereupon filed a writ petition under article 226 of the Constitution in the High Court seeking to quash the entire proceedings on the ground that in respect of the disputed lands he was not a " landlord " within the meaning of the 1948 Act.
The petition as filed averred that the fundamental right conferred upon the respondent by article 19 of the Constitution was infringed, that the provisions of the 1948 Act which were inconsistent with that article were void as being ultra vires the Constitution and the orders passed thereunder by the Revenue Officer were illegal and liable to be set aside.
This petition was filed by the respondent on August 11, 1952, A further petition was thereafter filed on February 26, 1953 invoking article 3 of the said Agreement and it was contended that by the application of the provisions of the 1948 Act, to the said private properties of the respondent, the respondent was deprived of the " full ownership, use and enjoyment " of the properties to which he was entitled under the said Agreement, and that under article 363 of the Constitu tion, no Court had jurisdiction to deal with any dispute arising out of any provisions of the said Agreement.
The decision of the Revenue Officer was thus called in question and it was contended that he had no jurisdiction to decide the dispute as to whether the tenants had any right to the personal properties of the respondent and as such the proceedings were liable to be quashed as being without jurisdiction.
The High Court accepted these contentions of the respondent and allowed the writ petition.
It accordingly directed the issue of a writ declaring that the proceedings under the 1948 Act taken by the Revenue Officer were void as being without jurisdiction and that they should be quashed.
The tenants then filed an application before the High Court asking for a certificate under articles 132 and 1072 133(1)(c) of the Constitution which was granted by the High Court.
The State of Orissa asked for leave to intervene in the appeal which leave was granted by this Court and the learned Solicitor General has appeared before us in support of the appeal, both on behalf of the tenants who are the appellants herein, and the State of Orissa, the Intervener.
It may be noted at the outset that no question has been raised in regard to the vires of the 1950 Act, which extended inter alia the 1948 Act to the areas merged in the absorbing Province of orissa.
That being so, section 7(h) of the 1950 Act in terms would apply to the appellants before us and they would not be liable to ejectment.
The answer of the respondent, however, is that (1) the Revenue Court had by virtue of article 363 of the Constitution no jurisdiction in the disputes between the appellants and him arising out of the provisions of the said Agreement dated December 14, 1947, (2) that the full ownership, use and enjoyment of the properties which was guaranteed to him under article 3 of the said Agreement was affected by the application of the provisions of the 1948 Act, to the said lands and (3) that, he was not a " landlord " and the appellants were not the " tenants " within the meaning of the terms as defined in the 1948 Act, and, that in any event, these lands were not recognised as such by the Provincial Government which recognition was a condition precedent to the application of section 7(h) of the 1950 Act to these lands and that therefore the appellants were not entitled to the protection thereof.
The first two contentions are inter related and can be disposed of together.
The lands in question were declared to be the private properties of the respondent and he was guaranteed under article 3 of the said Agreement full ownership, use and enjoyment thereof.
Article 363 only ousted the jurisdiction of the courts in regard to the disputes arising out of any provisions of the Agreement entered into by the Rulers of Indian States with the Government of India.
The dispute which had arisen between the appellants and the respondent in the present case could hardly be said to 1073 be a dispute arising out of any provisions of the said Agreement.
The full Ownership, use and enjoyment of the properties which were declared to be the private properties of the respondent was not sought to be affected by extending the 1948 Act, to the merged State of Khandapara.
The properties which had been declared to be the private properties of the respondent were not claimed as State properties but the whole legislation proceeded on the basis that the respondent was the owner of these properties wherein he had inducted tenants and what was sought to be done was to enact a measure for the protection of those tenants.
A measure for the protection of the tenants inducted by the respondent could hardly be said to affect the full ownership, use and enjoyment of these properties by the respondent.
It no doubt imposed certain restrictions on the absolute rights which the respondent claimed in regard to the user and enjoyment of the said properties; but these measures were imposed upon him in common with all the citizens of the Union and the justification for the same could be sought under cl. 5 of article 19 of the Constitution.
Similar contentions which had been raised on behalf of the erstwhile Rulers, whose States had merged with the Provinces, were answered by this Court in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1) and in Visweshwar Rao vs The State of Madhya Pradesh (2).
PatanjaliSastri C. J.observed in the former case at page 915: "But a short and obvious answer is that there was no contravention of any guarantee or assurance given by the Government under the covenant of merger, as the estates in question are sought to be acquired only as the " private property " of the Rulers and not otherwise.
The compensation provided for, such as it is, is in recognition of their private proprietorship, as in the case of any other owner.
" Mahajan J. (as he then was) observed in the latter case at page 1041 : " It is true that by the covenant of merger the , 915.
(2) , 1041, I054.
1074 properties of the petitioner became his private properties as distinguished from properties of the State but in respect of them he is in no better position than any other owner possessing private property.
Article 362 does not prohibit the acquisition of properties declared as private properties by the covenant of merger and does not guarantee their perpetual existence.
The guarantee contained in the article is of a limited extent only.
It assures that the Rulers ' properties declared as their private properties will not be claimed as State properties.
The guarantee has no greater scope than this.
That guarantee has been fully respected by the impugned statute, as it treats those properties as their private properties and seeks to acquire them on that assumption.
Moreover, it seems to me that in view of the comprehensive language of article 363 this issue is not justiciable.
" Das J. (as he then was) also observed in that case at page 1054: " The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler qua a Ruler.
It does not extend to personal property which is different from personal rights.
Further, this article does not import any legal obligation but is an assurance only.
All that the covenant does is to recognise the title of the Ruler as owner of certain properties.
To say that the Ruler is the owner of certain properties is not to say that those properties shall in no circumstances be acquired by the State.
The fact that his personal properties are sought to be acquired on payment of compensation clearly recognises his title just as the titles of other proprietors are recognised.
" It is clear therefore that neither article 363 nor article 362 of the Constitution would avail the respondent and the courts would have jurisdiction to entertain the dispute between the appellants and him which arose out of his action in ejecting them from his private lands.
The provisions of the said Agreement only protected his rights in the properties declared to be his private properties so that they could not be claimed at any time thereafter as State properties.
The did not dispute his ownership over the same but proceeded on the basis that they were his private properties and sought to impose upon him certain obligations in order to protect the rights of the tenants whom he had inducted therein and there was no infringement of the guarantee or assurances which had been given to him under article 3 of the said Agreement.
It could not also be urged that by imposing reasonable restrictions in the interests of the tenants on his right to acquire, hold and dispose of properties under cl. 5 of article 19 of the Constitution, the 1948 Act affected his rights of full ownership, use and enjoyment of those properties.
If anything was done by extending the 1948 Act to the merged State of Khandapara, it was done in the interests of the tenants and it was done for the protection of the tenants who were inducted by him and such restrictions did not affect the full ownership, use and enjoyment of his private properties, any more than they did in the case of other owners of lands.
As a matter of fact, under the terms of the 1950 Act which extended the 1948 Act to the merged State of Khandapara, he was entitled to the payment by "he tenants of such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner of the Northern Division as the case may be and so long as the tenants continued to pay such rent he was no worse off than were other proprietors of lands.
The tenants would no doubt acquire rights of occupancy in respect of such lands but the acquisition of the occupancy rights by the tenants would not be calculated to affect his right to full ownership, use and enjoyment of his lands, because he would be entitled to eject the occupancy tenants also if the tenants used the lands comprised in their holdings in any manner which rendered them unfit for the purposes of the tenancy or committed a breach of conditions consistent with the provisions of the tenancy laws in force in the merged State concerned on breach whereof they were under the terms of the contract between themselves and the landlord liable to be ejected.
As already stated I37 1076 these restrictions were for the protection of the tenants who were inducted on the lands by the erstwhile Rulers themselves and by the extension of the 1948 Act to the merged State of Khandapara, the respondent was treated in the same manner as any other citizen of the Union.
If at all there was any infringement of his rights to full ownership, use and enjoyment of his properties that was also in accordance with the provisions of the Constitution itself and whatever may have been the guarantee or assurance given to him under the terms of the said Agreement, it could not be absolute but would only be co extensive with the right to acquire, hold and dispose of property which is guaranteed to all the citizens of the Union under article 19(1)(f) of the Constitution.
These contentions of the respondent therefore are of no avail.
If, then, the provisions of the 1950 Act could be validly applied to the merged State of Khandapara in spite of article 3 of the said Agreement thus attracting the operation of the 1948 Act to his private lands it remains to consider whether the respondent was a landlord and the appellants were his tenants within the meaning of the terms as defined in that Act.
The contention of the respondent, in the first instance, is that under the terms of section 2(ii) of the Orissa Tenants Protection (Amendment) Act, 1951 (Orissa XVII of 1951) which added sub section
5 to section I of the 1948 Act, in such areas where neither the Madras Estates Lands Act, 1908, nor the Orissa Tenancy Act, 1913, was in force and the State of Khandapara was such an area the special laws or customs prevailing therein shall be taken into consideration for the application of that Act.
It is urged that the relationship between the respondent and the tenants whom he had inducted on his private properties was governed by special laws and customs and that therefore the application of the Act was excluded .
It is, however, to be observed that no such contention was ever taken in the proceedings before the Revenue Officer or before the High Court and it was urged for the first time in the course of the arguments before us.
The question is one of fact, 1077 whether any such special laws or customs were prevailing in the merged State of Khandapara, and we cannot allow the respondent to urge this contention for the first time before us.
We shall, therefore, proceed on the basis that the 1948 Act was quite properly extended to the merged State of Khandapara.
It is next contended that the definition of landlord and tenant given in section 2(c) and (g) of the 1948 Act did not apply to the relationship between the parties.
The definitions of these terms are as under: Section 2 (c). "landlord" means a person, whether a proprietor, sub proprietor, tenure holder or raiyat or under raiyat, either in the raiyatwari area or in the zamindari area or land holder or permanent undertenure holder, whose land a person, whether immediately, or mediately cultivates as a tenant; Section 2 (g). "tenant" means a person who, under the system generally known as Bhag, Sanja, Kata or such similar expression, cultivates the land of another person on condition of delivering to that person (i) either a share of the produce of such land, or (ii) the estimated value of a portion of the cropraised on the land, or (iii) a fixed quantity of produce irrespective of the yield from the land, or (iv) produce or its estimated value partly in any one of the ways described above and partly in another; but shall not include. . . . " It is urged that the tenants who were inducted by the respondent on these lands did not fulfil the terms of this definition and they were therefore not tenants and, as a logical corollary to that, the respondent could not be a landlord qua them.
It is also contended that even though these lands were declared to be the private properties of the Respondent under the decision of the Adviser for the Orissa States, that was a recognition of the lands as such by the Dominion Government and not by the Provincial Government; which recognition was a condition precedent of the application of section 7(h) of the 1950 Act to these lands.
Here 1078 also, the respondent is confronted with this difficulty that these questions were not mooted either before the Revenue Officer or the High Court in the manner in which it was sought to be done before us.
It was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952.
The lands in question were also assumed to have been recognised as the private lands of the respondent by the Government without making any distinction between the Dominion Government and the Provincial Government as was sought to be done before us.
Reliance was mainly placed by the respondent in the High Court on his plea that the jurisdiction of the Revenue Officer was barred under article 363 of the Constitution and it was nowhere urged that the appellants were not the tenants and be was not the landlord within the terms of the definitions contained in the 1948 Act or that in the absence of recognition of these private lands of his as such by the Provincial Government, the condition precedent to the application of section 7(b) of the 1950 Act was not fulfilled and that section has no application at all to these lands.
The determination of these questions also requires evidence in regard to the same and it would not be legitimate to allow these questions to be agitated for the first time at this late stage.
The matter is, however, concluded by the provisions of section 7(a) of the 1950 Act.
That section enacts a statutory extension of the definition of the terms landlord and tenant and provides that the expression 'Jandlord 'shall mean a person immediately under whom a tenant holds land, and the expression 'tenant ' shall mean a person who holds land under another person and is or, but for a special contract, would be liable to pay rent for that land to that person.
Whatever may have been the definitions of the terms landlord and tenant in section 2(c) and (g) of the 1948 Act, this definition contained in the explanation to section 7(a) of the 1950 Act makes the appellants 'the tenants 'and the respondents ' a landlord ' in regard to the lands in question.
This statutory extension of the definition of the terms 1079 'landlord ' and ' tenant ' therefore is sufficient, in our opinion, to repel the last contention urged on behalf of the respondent before us.
The respondent further contends that in spite of section 7 of the 1950 Act, enacting that all suits and proceedings between landlord and tenant as such shall be instituted and tried in revenue courts, the provisions of the 1948 Act in regard to the hierarchy of revenue courts and the procedure and the penalties provided therein are not attracted to the merged State of Khandapara.
The contention is that the provisions contained in the 1950 Act are special provisions which eliminate the operation of the general provisions contained in the 1948 Act, and in so far as nothing more is stated in regard to how the revenue courts are to act in the matter of the institution and trial of all suits and pro ceedings between landlord and tenant, there is a lacuna and the revenue courts as envisaged by the 1948 Act, have no jurisdiction to entertain the proceedings in question.
The simple answer to this contention of the respondent is that both these Acts have to be read together.
The 1950 Act is an Act to extend certain Acts and regulations to certain areas administered as part of the Province of Orissa.
The merged State of Khandapara is one of such areas.
By virtue of section 4 of this Act the 1948 Act is inter alia extended to the merged State of Khandapara and the provisions thereof are made applicable in that area.
The other sections of this Act enact further provisions which are applicable to these merged States including the merged State of Khandapara and section 7, in particular, enacts the modification of the tenancy laws in force in those merged States.
These provisions are therefore supplementary to those contained in the 1948 Act, and it follows that not only the provisions of the 1948 Act but also the provisions of the 1950 Act are applicable to the merged State of Khandapara.
If both these Acts are thus read together, as they should be, there is no inconsistency between the provisions of these Acts and it is clear that the provisions of sub section
(a) and (h) of section 7 of the which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties.
This contention of the respondent also therefore fails.
We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside.
We accordingly allow the appeal, set aside the order made by the High Court, and restore the orders passed by the Revenue Officer in the O.T.P. Act Cases Nos.
21 to 25 of 1952, 26 to 28 of 1952, 29 to 32 of 1952 and 33 to 41 of 1952.
The respondent will pay the appellants ' costs of this appeal as also of the writ petition in the High Court.
The State of Orissa will, of course, bear and pay its own costs.
Appeal allowed.

summary:
The respondent was the Ruler of the erstwhile State of Khandapara which merged in the State of Orissa on August 1, 1949.
Article 3 of the Agreement of Merger guaranteed that "the Raja shall be entitled to full ownership, use and enjoyment of all his private properties".
The Orissa Merged States ' (Laws) Act, 1950 extended the Orissa Tenant 's Protection Act, 1948 to the merged areas.
In 1951 the respondents evicted certain tenants.
The tenants applied to the Revenue Officer under the 1948 Act for being restored to possession on the allegations that the respondent was their landlord and that he had unlawfully evicted them.
The Revenue Officer allowed the applications and directed restoration of possession.
The respondent filed a petition under article 226 of the Constitution in the High Court for quashing the orders of the Revenue Officer contending, (1) that the application of the provisions of the 1948 Act to his private properties violated the guarantee given under the Agreement, (2) that article 363 Of the Constitution barred the Court from dealing with any dispute arising out of the Agreement, and (3) that the 1948 Act did not apply to him as he was not a landlord.
The High Court accepted these contentions and quashed the proceedings taken under the 1948 Act: Held, that the extension of the 1948 Act did not affect the full ownership, use and enjoyment of his properties guaranteed to the respondent under the Agreement.
The provisions of the Agreement only protected his rights to the properties declared to be his private properties so that they could not be claimed at anytime thereafter as State properties.
The guarantee given under the Agreement could not be absolute but could only be co extensive with the right to acquire, hold and dispose of property which is guaranteed to all citizens under article 19(1)(f) of the Constitution.
State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of 136 1068 Darbhanga, and Visheshwar Rao vs The State of Madhya Pradesh, , followed.
Held, that the jurisdiction of the Courts to entertain the applications under the 1948 Act, was not barred by article 363 Of the Constitution.
The dispute between the appellants and respondent was not a dispute which arose out of the Agreement of Merger, and so was not covered by article 363.
Held further, that the respondent was a landlord to whom the provisions of the 1948 Act applied.
Whatever may have been the definition of the terms landlord and tenant in SS.
2(C) and (g) of the 1948 Act the definitions contained in section 7(a) of the 1950 Act, made the appellants 'the tenants ' and the respondent 'the landlord ' in regard to the lands in question.


judgement:
Civil Appeal No. 1068 of 1976 From the Judgment and order dated 7.8.1974 of the Allahabad High Court in Special Appeal No. l02 of 1974.
R. K. Garg, V.J. Francis and N.M. Popli for the Appellant.
Anil Dev Singh and Mrs. section Dixit for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
SINGH,J.
This appeal is directed against the judgement of a 82 Division Bench of the High Court of Allahabad dated August 7, 1974 allowing the respondent 's Letters Patent appeal and setting aside the order of the learned Single Judge and dismissing the appellant 's writ petition made under Article 226 of the Constitution challenging the order of the State Government dated April 24, 1972 dismissing the appellant from the U.P. Civil Service (Executive Branch).
The appellant was in the service of the State of Uttar Pradesh as a member of the U.P. Civil Service (Executive Branch).
He was posted as Regional Transport Magistrate at Bareilly between June, 1962 to October, 1964.
A number of charges were framed against the appellant and the State Government referred the matter to the U.P. Administrative Tribunal constituted under the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules 1947 (hereinafter referred to as the Rules) for enquiry into those charges.
The Tribunal after recording evidence of the parties submitted its findings to the State Government on 27th May, 1970.
Out of six charges framed against the appellant the Tribunal recorded the finding that the first charge was not proved but it recorded findings against the appellant in respect of the remaining five charges.
The Governor issued show cause notice to the appellant on July 29, 1970 calling upon him to show cause as to why he should not be dismissed from service.
The notice was accompanied with a copy of the findings of the Tribunal.
The appellant submitted a detailed reply making comments on the findings recorded by the Tribunal on each of the charges.
The appellant submitted that there was no evidence to support the charges and the findings recorded by the Tribunal were not sustainable.
On receipt of the appellant 's reply to the show cause notice the Governor referred the same to the Tribunal in accordance with Rule l0(2) of the Rules.
The Tribunal considered the appellant 's reply to the show cause notice and his comments on the findings recorded by it earlier on the charges and thereupon it submitted a detailed findings to the Governor on 7.7.1971.
In that report the Tribunal on a detailed analysis of the evidence recorded the finding that there was no convincing evidence to uphold the charges framed against the appellant.
On receipt of the report of the Tribunal the State Government appears to have referred the matter to the Legal Remembrancer for his opinion.
The Legal Remembrancer disagreed with the findings recorded by the Tribunal by his report dated July 7, 1971 and he opined that there was sufficient evidence on record to uphold the charges 2 to 5 against the appellant.
In view of the opinion submitted by the Legal Remembrancer the Governor disregarded the findings recorded by the Tribunal and issued the impugned order dated April 24, 1972 dismissing the appellant from service.
83 The appellant preferred a writ petition under Article 226 of the Constitution before the High Court at Allahabad challenging the order of dismissal on a number of grounds.
C.S.P. Singh, J. allowed the writ petition by his order dated January 10, 1974 and quashed the order of dismissal.
The Respondent State of Uttar Pradesh preferred letters patent appeal before the Division Bench against the judgment of the learned Single Judge.
The Division Bench by its order dated August 7, 1984 allowed the appeal, set aside the order of the learned Single Judge holding that the appellant had been given reasonable opportunity of defence and there was ample evidence to sustain the charges and the order of dismissal did not suffer from any constitutional infirmity.
Hence this appeal.
The State Government had framed six charges against the appellant, and referred the same to the Administrative Tribunal for enquiry.
The Tribunal recorded findings that charge No. 1 was not proved, while remaining charges two to six stood proved against the appellant.
The State Government accepted the Tribunal 's findings on charges Nos. 2 to 5 but it disagreed with the Tribunal 's findings on charge No. 6 as it was of the opinion that the said charge was not made out.
The State Government issued notice to the appellant to show cause against the proposed punishment of dismissal from service.
The appellant submitted a detailed reply to the show cause notice assailing the findings of the Tribunal, on the ground that there was no evidence on record to sustain the findings of the Tribunal on charges Nos. 2 to 5.
On receipt of the appellant 's explanation, the State Government referred the matter to the Tribunal again and thereupon the Tribunal considered the matter and by its report on 7th July, 1971 it recorded findings that there was no convincing evidence to support the charges and sustain its findings recorded earlier on charges 2 to 5 against the appellant.
Charges 2 to 5 were of common pattern to the effect that the appellant had while posted as the Regional Transport Magistrate at Bareilly claimed travelling allowance at the rate of first class railway fare without having actually travelled in that class on four different occasions.
Three out of four journeys were alleged to have been made on 14th April, 1963, 26th May, 1963 and 11th September, 1963 from Bareilly to Nijibabad and the fourth journey was made on 30th April, 1963 from Nijibabad to Bareilly.
The appellant denied the charges and asserted that he had performed the aforesaid journeys in the first class and had paid fare for that class.
In its initial report dated 7th May, 1970 the Tribunal had recorded findings that there was evidence on record to sustain the charges but in its subsequent report dated July 7, 1971 the Tribunal after considering the appellant 's reply to the show 84 casue notice and after reappraising the evidence held that there was no convincing evidence to sustain its earlier findings on charges 2 to 5 in the light of the submissions made by the appellant in reply to the show cause notice.
We have carefully scrutinised the two reports of the Tribunal as well as the note of the Legal Remembrancer.
We are of opinion that the view taken by the Tribunal in its report dated July 7, 1971 was positive in nature that there was no convincing evidence to sustain the charges 2 to 5 against the appellant.
The Legal Remembrancer disagreed with the findings recorded by the Tribunal.
The Governor acted on the report of the Legal Remembrancer without recording any reasons for disagreeing with the findings of the Tribunal dated July 7, 1971 and passed the impugned order dated 24.4.1972 dismissing the appellant from service.
The High Court has held that the findings of the Tribunal dated.
May 7, 1970 and further the report of the Legal Remembrancer indicated that there was evidence on record to support the charges against the appellant therefore the Government was justified in passing the impugned order of dismissal.
The High Court further held that since there was some evidence on record which the Government found sufficient to sustain the charges, the Court had no jurisdiction to interfere with the order on the ground of inadequacy of the evidence.
The High Court held that the Governor was justified in accepting the opinion of the Legal Remembrancer and it was not necessary for him to record any reasons in disagreeing with the findings of the Tribunal dated July 7, 1971.
We do not find any justification for the view taken by the High Court.
The Tribunal was the inquiring authority.
It was entrusted with the duty of holding inquiry and submitting its findings to the Government.
In its initial report dated May 7, 1970 it recorded findings against the appellant but when the Governor referred the appellants reply to the show cause notice to the Tribunal, it reconsidered the matter in the light of the analysis of the evidence submitted by the appellant and thereupon it recorded a positive finding, that there was no convincing evidence to support its earlier findings on the charges.
The Tribunal acted within its jurisdiction in reappraising the evidence as the Governor had referred the matter to it under Rule 10(2) of the Rules.
The State Government without recording any reasons for not accepting those findings issued the impugned order of dismissal presumably on the basis of the opinion of the Legal Remembrancer.
The State Government did not record any reason as to why it ignore the findings recorded by the Tribunal.
If the State Government chose to pass the impugned order of dismissal, in all fairness it should have recorded reasons for the same and in order to afford reasonable 85 Opportunity to the appellant it was necessary for the State Government to communicate the reasons for disagreement with the Tribunal 's report to the appellant.
The report submitted by the Legal Remembrancer to the Government on the basis of which the impugned order was passed had never been disclosed or communicated to the appellant and he was denied opportunity to meet the same.
Article 311(2) before its amendment by the Constitution (Forty second Amendment) Act, 1976 contemplated reasonable opportunity of defence even at the stage of show cause notice.
In State of Andhra Pradesh vs S.N. Nizamuddin Ali Khan, ; an enquiry into certain charges was held by a High Court Judge against a Munsif Magistrate.
The Enquiry officer submitted its findings and recommended compulsory retirement.
The Chief Justice of the High Court also examined the evidence on his own and confirmed the findings of the Enquiry officer and made recommendation of compulsory retirement.
Both reports were sent to the Government and a show cause notice with the Enquiry officer 's report was issued to the respondent.
The Government issued orders retiring the Munsif compulsorily.
This Court held that since the supplementary report submitted by the Chief Justice to the Government was not given to the officer he had no reasonable opportunity of making his representation against the report of the Chief Justice and therefore, the order of compulsory retirement was vitiated.
The Court emphasised that the officer was denied the opportunity of being heard at the second stage of enquiry.
Indisputably, in the instant case the Governor acted on the report of the Legal Remembrancer which contained findings against the appellant but the copy of the same was not given to him.
Hence the appellant could get no opportunity of meeting the same.
The appellant was therefore denied opportunity of being heard at the stage of show cause notice.
We have carefully gone through the Tribunal 's report dated July 7, 1970.
We find that the Tribunal has categorically recorded a finding that there was no evidence on record to prove that the appellant did not purchase Ist class tickets in advance relating to the journeys in question.
The Tribunal observed that the evidence on record raised suspicion against the appellant but it observed that mere suspicion was not sufficient to hold that the charges had been proved against the appellant.
The Legal Remembrancer ignored the findings recorded by the Tribunal and concluded that the evidence on record duly proved charges 2 to 5 against the appellant.
On a perusal of the Legal Remembrancer 's note which is on record, we find that the entire approach of the Legal Remembrancer in considering the Tribunal 's findings suffered from errors of law.
While holding that the Tribunal 86 had committed error in holding that there was no evidence to prove charges against the appellant, he observed: "Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the court to review the evidence and to arrive at an independent finding on the evidence.
" The above observations of the Legal Remembrancer clearly indicate that he was of the opinion that the Tribunal had limited jurisdiction in reconsidering the findings recorded by it earlier against the appellant.
He proceeded on the assumption that the Tribunal had no authority to reappraise the evidence or to enter into sufficiency or adequacy of evidence while considering the question whether charges stood proved against the appellant on the evidence on record.
The principles applicable to judicial review of administrative actions or findings recorded in departmental disciplinary proceedings do not apply to a Tribunal which is like an inquiring authority while assessing the evidence on the charges framed against a delinquent officer.
The Tribunal was entrusted with the primary duty of making inquiry and record its findings on the charges.
In that process it could enter into adequacy, insufficiency or credibility of evidence on record.
The Legal Remembrancer was of the opinion that the Tribunal could not enter into the realm of adequacy or sufficiency of evidence and for that purpose he relied upon the well established principles of judicial review of administrative actions.
The Tribunal was not discharging the functions of a court but on the other hand it was acting as the inquiring authority and it had full power to reappraise the evidence and record its findings and in that process it was open to it to hold that the evidence on record was not sufficient to sustain the charges against the appellant.
The whole approach of the Legal Remembrancer was misconceived as a result of which he opined that the findings recorded by the Tribunal in appellant 's favour could be ignored.
We are of opinion that the State Government could not ignore the findings of the Tribunal applying the principles of judicial review of administrative actions by a court of law.
The State Government committed serious error of law in ignoring the findings of the Tribunal without giving an opportunity to the appellant to show cause against the proposed view of the Government and passing the impugned order on the basis of the report of the Legal Remembrancer.
The Tribunal 's findings dated July 7, 1970 clearly indicated that there was no evidence to sustain the 87 charges against the appellant and in that view the impugned order of dismissal could not legally be passed against the appellant.
In view of our discussion, we are of opinion that there was no evidence on record to sustain the findings on charges 2 to 5 against the appellant and further the appellant was denied reasonable opportunity of defence as contemplated by Article 311(2) as it then existed.
We further hold that the State Government 's order dismissing the appellant from service was illegal and unconstitutional.
We, therefore, set aside the order of the Division Bench of the High Court and allow the appellant 's petition and quash the order of dismissal dated April 24, 1972 and direct that the appellant shall be treated to be in service without break with all consequential benefits.
The appellant is entitled to his costs.
S.L. Appeal allowed.

dataset_name: IN-Abs

summary:
% The appellant was in Government service.
On a number of charges framed against him, the State government referred his case to the Administrative Tribunal for enquiry.
In respect of the six charges against the appellant, the Tribunal recorded findings that the first charge was not proved but it recorded findings against the appellant in respect of the remaining charges.
The Governor issued notice with a copy of the findings of the Tribunal to the appellant to show cause why he should not be dismissed.
The appellant submitted reply to the showcause notice, which was referred to the Tribunal for its consideration.
The Tribunal submitted a report dated July 7, 1971, recording the finding that there was no convincing evidence to uphold the charges framed against the appellant.
The State Government referred the matter to the Legal Remembrancer for opinion.
The Legal Remembrancer opined that there was sufficient evidence on record to uphold charges 2 to 5 against the appellant, which were of common pattern to the effect that the appellant had claimed travelling allowance at the rate of first class railway fare without having actually travelled in that class on four different occasions.
The Governor thereupon disregarding the findings of the Tribunal issued order dismissing the appellant.
The appellant challenged the order of dismissal by a writ petition in the High Court.
The High Court (Single Judge) allowed the writ petition and quashed the order of dismissal.
The respondent State preferred a Letters Patent appeal.
The Division Bench of the High Court allowed the appeal and set aside the order of the Single Judge of the High Court.
The appellant then moved this Court for relief by this appeal.
Allowing the appeal, the Court, 80 ^ HELD: After scrutiny of the two reports of the Administrative Tribunal and the note of the Legal Remembrancer, the Court found that the view taken by the Tribunal in its subsequent report dated July 7, 1971, was positive in nature that there was no convincing evidence to sustain the charges 2 to 5 against the appellant.
[84B] There was no justification for the view taken by the High Court.
The Tribunal was the inquiring authority.
In its initial report dated May 7, 1970, it had recorded findings against the appellant, but when the Governor referred the appellant 's reply to the show cause notice to the Tribunal for reconsideration of the matter, it recorded a positive finding that there was no convincing evidence to support its earlier findings.
The Tribunal had acted within its jurisdiction in reappraising the evidence in the light of the appellant.
The State Government issued the impugned order of dismissal on the basis of the opinion of the Legal Remembrancer without recording any reasons for disregarding the findings of the Tribunal.
If the State Government chose to pass the order of dismissal, in all fairness, it should have recorded reasons for the same, and in order to afford a reasonable opportunity to the appellant, it was necessary for the Government to communicate to him the reasons for disagreement with the Tribunal 's report.
The report of the legal Remembrancer on the basis of which the Government has passed the impugned order, had never been communicated to the appellant and he was denied opportunity to meet the same.
Article 311(2) before its amendment by the Constitution (forty second Amendment) Act, 1975, contemplated reasonable opportunity of defence even at the stage of show cause notice.
The appellant had been denied opportunity of being heard at the stage of show cause notice.
[84E H; 85A B;F] The Tribunal in its report dated July 7, 1971 had categorically recorded the finding that there was no evidence on record to prove the charge that the appellant had not purchased 1st class tickets in advance relating to the journeys in question.
The Tribunal had observed that the evidence raised suspicion against the appellant but mere suspicion was not sufficient to hold that the charges stood proved.
The Legal Remembrancer, ignoring the findings of the Tribunal, concluded that the evidence on record had proved charges 2 to 5.
The entire approach of the Legal Remembrancer in considering the Tribunal 's findings suffered from errors of law.
He was of the opinion that the Tribunal had no authority to reappraise the evidence or enter into the sufficiency or adequacy of the evidence.
The principles applicable to judicial review of administrative actions or findings recorded in departmental disciplinary proceedings do not apply to a Tribunal which is like an 81 inquiring authority while assessing the evidence on charges against a delinquent officer.
The Tribunal could enter into adequacy, insufficiency or credibility of evidence on record.
The Tribunal was not discharging the functions of a court but was acting as an enquiring authority therefore it had full powers to appraise the evidence and record its findings.
The approach of the Legal Remembrancer was misconceived as a result whereof he had opined that the findings of the Tribunal in appellant 's favour be ignored.
The State Government committed a serious error of law in ignoring the findings of the Tribunal applying the principles of judicial review of administrative actions by a court of law, without giving the appellant an opportunity to show cause against the proposed view of the Government, and in passing the impugned order on the basis of the report of the Legal Remembrancer.
In view of the findings of the Tribunal dated July 7, 1971 aforementioned, the impugned order of dismissal could not legally be sustained against the appellant.
[85F G; 86C H; 87A] There was no evidence on record to sustain the findings of charges 2 to 5 against the appellant, and further, the appellant was denied a reasonable opportunity of defence contemplated by Article 311(2) as it then existed.
The State Government 's order dismissing the appellant from service was illegal and unconstitutional.
The order of the Division Bench of the High Court was set aside, the appellant 's petition was allowed and the order of dismissal was quashed.
The appellant was directed to be treated in service without a break with all the consequential benefits.
[87B C] State of Andhra Pradesh vs S.N. Nizamuddin Ali Khan, ; , referred to.


judgement:
Civil Appeal No. 573 of 1988 From the Judgment and order dated 13.2.1987 of the Bombay High Court in W.P. No. 613 of 1984.
33 A.M. Khanwilkar and A.S. Bhasme for the Appellant.
B.N. Singhvi and A.K. Gupta for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Special leave granted.
This appeal raises an important question of law whether a Government servant after his retirement on attaining the age of superannuation is liable to be dealt with departmentally for any misconduct, negligence or financial irregularities committed by him during the period of his service.
Necessary facts giving rise to this appeal are that M.H. Mazumdar, the Respondent was in the service of the State of Maharashtra as Supply Inspector and he retired from service on attaining the age of superannuation on September 1, 1977.
After his retirement the respondent was served with a charge sheet on October 16, 1978 containing allegations of misconduct and negligence against him for the period he was in service.
Enquiry into those charges was held and the respondent was afforded full opportunity to defend himself.
On the conclusion of the enquiry the State Government issued orders on December 4, 1982 reducing the amount of pension payable to the respondent by 50 per cent permanently under Rule 188 of the Bombay Civil Services Rules.
The respondent challenged the validity of the Government 's order by means of a writ petition under Article 226 of the Constitution before the High Court of Bombay.
A Division Bench of that Court allowed the writ petition and quashed the State Government 's order dated December 4, 1982 on the ground that the State Government had no authority in law to take any disciplinary proceedings against the respondent as he had already retired from service.
Placing reliance on a decision of this Court in B.J. Shelet vs State of Gujarat & Ors. ; the High Court held that the initiation of disciplinary enquiry and the order of punishment was unauthorised and illegal.
The State of Maharashtra has preferred this appeal against the judgment of the High Court.
There is no dispute that the respondent had retired from service on attaining the age of superannuation on September 1, 1977 and charges were served on him on October 16, 1978 after about a year of his retirement.
Undisputably the proceedings against the respondent were initiated after the respondent ceased to be in service of the State 34 Government.
The proceedings culminated into an order of the State Government reducing the respondent 's pension by 50 per cent.
The question is whether the State Government was competent to take action against the respondent by reducing his pension.
Conditions for grant of pension to a Government servant of the State of Maharashtra are regulated by the Bombay Civil Services Rules (hereinafter referred to as the Rules).
Rule 184 provides for grant of pension admissible under the rules to Government servant who is borne on its establishment.
Rules 188 and 189 relevant for our purpose are as under: "188.
Government may make such reduction as it may think fit in the amount of the pension of a Government servant whose service has not been thoroughly satisfactory." "189.
Good conduct is an implied condition of every grant of pension.
Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided that before any order to this effect is issued, the procedure referred to in Note I to Rule 33 of Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed.
" The aforesaid two Rules empower Government to reduce or withdraw a pension.
Rule 189 contemplates withholding or withdrawing of a pension or any part of it if the pensioner is found guilty of grave misconduct while he was in service or after the completion of his service.
Grant of pension and its continuance to a Government servant depend upon the good conduct of the Government servant.
Rendering satisfactory service maintaining good conduct is a necessary condition for the grant and continuance of pension.
Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to a Government servant for misconduct which he may have committed while in service.
This Rule further provides that before any order reducing or withdrawing any part of the pension is made by the competent authority the pensioner must be given opportunity of defence in accordance to the procedure specified in Note I to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules.
The State Government 's power to reduce or withhold pension by taking proceedings against a Government servant even after his retirement is expressly preserved by the aforesaid Rules.
35 The validity of the Rules was not challenged either before the High Court or before this Court.
In this view, the Government has power to reduce the amount of pension payable to the respondent.
In M. Narasimhachar vs The State of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma & Anr., [1987] 2 SCC 179 similar Rules authorising the Government to withhold or reduce the pension granted to the Government servant were interpreted and this Court held that merely because a Government servant retired from service on attaining the age of superannuation he could not escape the liability for misconduct and negligence or financial irregularities which he may have committed during the period of his service and the Government was entitled to withhold or reduce the pension granted to a Government servant.
The High Court in our view committed serious error in holding that the State Government had no authority to initiate any proceedings against the respondent.
In B. J. Shelat vs State of Gujarat & Ors.
disciplinary proceedings had been initiated against the Government Servant for purpose of awarding punishment to him after he had retired from service.
The ratio of that decision is not applicable to the instant case as in the present case the purpose of the enquiry was not to inflict any punishment; instead the proceedings were initiated for determining the respondent 's pension.
The proceedings were taken in accordance with Rules 188 and 189 of the Rules.
It appears that the attention of the High Court was not drawn to these Rules.
The State Government had power to reduce the pension payable to respondent but having regard to the facts and circumstances, of the case we are of the opinion that the reduction of pension by 50 per cent was disproportionate to the charges proved against the respondent.
Two charges were framed against the respondent which are as under: "Charge No. 1.
He has made a farce of an enquiry, collected 6 permits from the Kolhapur Central Co operative Consumers Stores including the permit No. 007314 issued to Shri K.P. Khatavane with malafide intention after passing a receipt thereof to the Godown Keeper, of the said stores on 12.6.1974 and thereby tried to shield Shri K.P. Khatavane and his sons Baban Khatavane from criminal prosecution.
Charge No. 2.
He has deliberately and intentionally denied to have made 36 any enquiry regarding unauthorisedly lifting of 10 bags of Sugar on bogus or forged permit by Shri Baban Khatavane even though he was deputed for such enquiry by Shri A.R. Mane District Supply officer, Kolhapur and he had actually recorded the statement of Shri S.L. More, Godown Keeper of the said stores and Shri Hari Santu Pande, Cart driver and also collected above mentioned 6 permits from Shri More after passing a receipt thereof.
By denying the above fact he has helped Shri A.R. Mane, District Supply officer, Kolhapur for suppressing the case.
His failure in this regard leads to belief that he has conspired with Shri K.P. Khatavane and his son Shri Baban Khatavane with some ulterior motive and abatted them in the disposal of sugar in black market.
" On conclusion of the enquiry charge No. 1 was found to have been established while charge No. 2 was partially proved.
In his report to the State Government the Collector of Kolhapur held that the respondent 's action was helpful to Shri Khatavane to sell the sugar in the black market, and it amounted to a serious default on his part as a Government servant.
He recommended that since the respondent had already retired from service a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made The State Government accepted the findings and passed the impugned order reducing the pension by 50 per cent In our view the reduction of pension 50 per cent was too harsh and disproportionate to the misconduct proved against the respondent.
The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50 per cent would seriously affect his living.
Accordingly, we allow the appeal partly, and set aside the order of the High Court dated February 13, 1987, and the State Government 's order dated December 4, 1982 and direct the State Government to reconsider the question of reduction of respondent 's pension.
There will be no order regarding costs.
N.P.V. Appeal allowed.

summary:
% The respondent retired from State Government service on September 1, 1987, on attaining the age of superannuation.
About a year after his retirement, the respondent was served with a chargesheet containing allegations of misconduct and negligence for the period he was in service.
Enquiry into the charges was held and respondent was afforded full opportunity to defend himself.
On the conclusion of the enquiry a report was submitted by the Collector, holding that one of the two charges was established while the other charge was partly proved, and that the respondent 's action was helpful to one of the parties which amounted to a serious default on his part as a Government servant, and it was recommended that since the respondent has already retired from service, a lenient view should be taken and reduction in pension to the extent of Re. 1 per month be made.
The State Government accepted the findings and issued orders reducing the amount of pension payable to the respondent by 50% permanently under Rule 188 of the Bombay Civil Services Rules.
The respondent challenged the validity of the Government order before the High Court.
A Division Bench of the High Court allowed the writ petition and quashed State Government 's order on the ground that the State Government had no authority in law to take any disciplinary proceedings against respondent as he had already retired from service and the initiation of disciplinary enquiry and the order of punishment were unauthorised and illegal.
Allowing the appeal by the State.
partly, 32 ^ HELD: 1.1 Rule 188 of the Bombay Civil Services Rules empowers the Government to reduce the amount of pension of a Government servant whose service has not been thoroughly satisfactory.
Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to Government servant for misconduct which he may have committed while in service, after giving opportunity of defence in accordance with the procedure specified in Note I of Rule 33 of the Bombay Civil Services Conduct Discipline and Appeal Rules.
The State Government 's power to reduce or withhold pension by taking proceedings against Government servant even after retirement is thus expressly preserved by the aforesaid rules.
[34C, F H] 1.2 The High Court committed a serious error in holding that the State Government had no authority to initiate any proceedings against the respondent.
The purpose of the enquiry was not to inflict any punishment, and the proceedings were initiated for determining respondent 's pension.
The proceedings were taken in accordance with the Rules 188 and 189 of the Rules.
[35C E] 1.3 The Government had power to reduce the pension payable to the respondent but having regard to the facts and circumstances of the case, the reduction of pension by 50% was too harsh and disproportion ate to the misconduct proved against the respondent.
The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50% would seriously affect his living.
The order of the High Court and the State Government 's order reducing pension by 50% are set aside and the State Government is directed to reconsider the question of reduction of respondent 's pension.
[35E F; 36E G] B. J. Shelet vs State of Gujarat & ors.
; , , distinguished.
M. Narasimhachar vs The State of Mysore, [1960] 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma & Anr., [1987] 2 SCC 179, referred to.


judgement:
ivil Appeal No. 904 (NT) of 1988 From the Judgment and Order dated 10.11.1986 of the Kerala High Court in T.R.C. No. 162 of 1986 V.J. Francis for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
This is an appeal against the judgment and order of the High Court of Kerala dated 10th of November, 1986.
By the impugned judgment the High Court has dismissed the Tax Revision Case filed at the instance of the Sales tax authority.
The assessee respondent herein had purchased fresh frog legs and after removing the skin, washing and removing dirt etc.
and freezing it for the purpose of avoiding decomposition and decay, the said frog legs were exported.
The assessee claimed that they were entitled to the benefit of section 5(3) of the Central Sales tax Act, 1956.
In order to appreciate the question it is necessary to refer to the findings of the Tribunal.
The Tribunal found that what was purchased 100 by the assessee was fresh frog legs and, after freezing it for the purpose of avoiding decomposition and decay, it was exported.
It was, therefore, held by the Tribunal that what was purchased as fresh frog legs was exported by the assessee.
It was contended on behalf of the State that what was purchased was fresh frog legs and the same was not exported as such without freezing it.
The tribunal held that only frozen frog legs were exported.
Therefore, if followed that what was purchased and exported was one and the same commodity.
The frozen frog legs did not undergo, any material change in character.
The identity of the frog legs remained unchanged as such.
In that view of the matter the Tribunal held that the assessee was entitled to the benefit of section 5(3) of the aforesaid Act.
The High Court accepted this view.
In our opinion the question is concluded by a decision of this Court in M/s. Sterling Foods vs State of Karnataka and another; , That was a decision of a Bench of three learned Judges rendered on 21st July, 1986.
There the Court was concerned with Shrimps, prawns and lobsters locally purchased for complying with export orders and after the process of cutting their heads and tails, peeling, deveining, cleaning, freezing and packing, exported these outside India under prior contract of sale.
It was held that after such processing, shrimps, prawns and lobsters retained their original identity and did not become different commodities.
It was, therefore, held that the assessee was entitled to exemption from tax under section 5(3) of the in respect of purchase turnover of shrimps, prawns and lobsters, the purchases being of the same commodities which were exported.
There, the question was whether shrimps, prawns and lobsters subjected to processing like cutting of heads and tails, peeling, deveining, cleaning and freezing ceased to be the same commodity or become different commodity for the purpose of the .
This Court expressed the view that the test applied for the purpose of determining whether a commodity subjected to processing retained its original character and identity is as to whether the processed commodity is regarded in the trade by those who deal in it as distinct in identity from the original commodity or it is regarded, commercially and in the trade as same as the original commodity.
Every processing does not bring about a change in the character and identity of the commodity.
The nature and extent of processing may vary from one case to another and indeed there may be several stages of processing and perhaps different kinds of processing at each 101 stage.
With each process suffered, the original commodity experiences change.
But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct commodity that it can be said that a new commodity, distinct from the original, has come into being.
The test is whether in the eyes of those dealing in the commodity or in commercial parlance the processed commodity is regarded as distinct in character and identity from the original commodity.
See in this connection the observations of this Court in Deputy Commissioner of Sales Tax vs Pio Food Packers, ; Applying that test in M/s. Sterling Foods vs State of Karnataka & Anr.
(supra) the Court had found that processed or frozen shrimps, prawns and lobsters were commercially regarded as the same commodity as raw shrimps,.
prawns and lobsters.
These are in common parlance known as shrimps, prawns and lobsters.
There was no essential difference between raw shrimps, prawns and lobsters and processed or frozen shrimps, prawns and lobsters.
The only difference was that processed shrimps, prawns and lobsters were ready for the table while raw shrimps, prawns and lobsters were not, but still both are, in commercial parlance, shrimps, prawns and lobsters.
The aforesaid view also finds ample support from the decision of the Supreme Court of the United States in East Texas Motor Freight Lines vs Frozen Food Express 100 L Ed. 917 at 923, where the question was whether dressed and frozen chicken was a commercially distinct article from the original chicken.
The United States Supreme Court held that it was not a commercially distinct article but was commercially and in common parlance the same article as chicken.
The United States Supreme Court held that killing, dressing and freezing a chicken is certainly a change in the commodity.
But it is no more drastic a change than the change which takes place in milk from pasteurising, homogenizing, adding vitamin concentrates, standardising and bottling.
Applying the aforesaid tests to the facts of this case, we are clearly of the opinion that the High Court was right on the facts found by the Tribunal in this case that frozen frog legs is same as fresh frog legs, the process was only to prevent decomposition.
Reliance was placed on behalf of the revenue on a decision of the same Bench of three learned Judges of this Court in the case of Deputy 102 Commissioner of Sales Tax and another vs A.B. Ismail and others, [1986] Suppl.
S.C.C. 218.
This was a decision prior to the decision in Sterling Foods, (supra) which as we have mentioned before was rendered on 21st July, 1986 and this decision was rendered on 15th April, 1986.
In the subsequent decision no reference was made to the previous one because the facts were entirely different.
There it was the sale of meat, hides and skin, got after slaughtering goat and sheep.
It was held that it was taxable under section 5A(l)(a) of the Kerala General Sales Tax Act.
It was further held that goats and sheeps are distinct from meat, hides and skins.
The process of conversion from goat and sheep into mutton, hides and skin involves consumption and manufacture resulting in production of goods different from the original goods.
It was held that consumption was a word of wide import.
It denoted the taking in of something, to convert that something into another.
In that case, goats and sheeps underwent a process viz., slaughtering, and then came into existence meat, hides and skin.
The slaughter of the animals and their conversion into meat was the consequence of consumption of goats in a legal sense.
In such conversion, a process of manufacture could also be inferred.
There the Court considered the goat and sheep different from mutton from commercial circle and common parlance.
But that is not as in the case of frozen frog legs and fresh frog legs and these are essentially the same commodity.
In the aforesaid view of the matter, we are of the opinion that the High Court was right in the view it took.
The appeal is accordingly dismissed.
There will be no order as to costs.
N.P.V. Appeal dismissed.

summary:
% The respondent assessee had purchased fresh frog legs and after removing the skin, washing and removing dirt etc.
and freezing it for the purpose of avoiding decomposition and decay exported the said frog legs and claimed entitlement to benefit of section 5(3) of the .
It was contended on behalf of the State that what was purchased as fresh legs was not exported as such, without freezing them and, therefore, the assessee was not entitled to the benefit of the section.
The Sales Tax Tribunal held that the fresh frog legs purchased by the assessee and exported after freezing for the purpose of avoiding decomposition and decay, were one and the same commodity and the frozen legs did not undergo any material change in character and the identity of the frog legs remained unchanged as such, and, therefore, the assessee was entitled to the benefit of section 5(3) of the Act.
The High Court upheld the view of the Tribunal.
Dismissing the State 's appeal, ^ HELD: Every processing does not bring about a change in the character and identity of the commodity.
The nature and extent of processing may vary from one case to another and indeed there may be several stages of processing and perhaps different kinds of processing at each stage.
With each process suffered, the original commodity experiences change.
But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but, instead, is recognised as a new and distinct commodity that it can be said that a new commodity, 99 distinct from the original, has come into being.
The test is whether in the eyes of those dealing in the commodity or in commercial parlance the processed commodity is regarded as distinct in character and identity from the original commodity.
In the instant case, the High Court was right in holding, on the facts found by the Tribunal, that frozen frog legs are same as fresh frog legs, and the process was only to prevent decomposition.
M/s. Sterling foods.
vs State of Karnataka and another, and Deputy Commissioner of Sales Tax vs Pio Food Packers, ; . relied on.
East Texas Motor Freight Lines vs Frozen Food Express, ; at 923) referred to.
Deputy Commissioner of Sales Tax and others vs A.B. lsmail and others, [1986] Suppl.
SCC 218 distinguished.