judgement:
Criminal Appeals Nos.
244 246 of 1964.
829 Appeals from the judgment and order dated February 19, 1964 of the Allahabad High Court in Criminal Misc.
Applications Nos. 1853, 3043 and 3044 of 1963.
W.S. Barlingay, J. C. Jalwar and R. L. Kohli, for the appellant (in all the appeals).
J.P. Goyal and R. B. Pathak, for respondent No. 1 (in all the appeals).
The Judgment of the Court was delivered by Hidayatullah, J.
Kamla Prasad Singh the appellant had filed three complaints in the Court of the Additional District Magistrate, (Judicial) Varanasi for the prosecution of Harinath Singh (respondent No. 1) under section 218 Indian Penal Code.
In each of these complaints Harinath was a co accused with another.
In one, it was Mangla Prasad Pandey, Ahlmad, Court of Tahsildar, Sadar Varanasi, in another it was Ramchander Lekhpal of Village Balua and in the third it was Ram Samravlal Lekhpal of Village Cholapore.
In each case Harinath Singh was said to have abetted the offence committed by his co accused.
The circumstances in which the complaints were lodged were common and may now be briefly stated.
Certain Bhumidari lands in these villages were the property of Nankoo s/o Mehar Singh and Sumitra widow of one Ajudhia Singh.
On December 4, 1962, Nankoo sold his half share to Kamla Prasad Singh and some others.
Kamla Prasad 's com plaint is that Harinath Singh in conspiracy with the two Lekhpals got certain forged entries to be made in the Khasra after the sale in favour of Kamla Prasad, and applied for the correction of the Jamabandi.
The Ahlmad in conspiracy with Harinath Singh ante dated the said application to November 9, 1962, to make it appear that it was made prior to the sale deed and to shield the Lekhpals.
The application was entered in the register of Jamaband 's as Case No. 116 dated November 9, 1962 although the case bearing that number was one between Bhagwati Singh and Bhagwati of Birbalpura Kaswal Raja.
After the complaints were in Court, Harinath Singh filed an application under section 561 A of the Code of Criminal Procedure stating that the offence, if any, was one under section 193 of the Indian Penal Code and the provisions of section 195 of the Code of Criminal Procedure barred the private complaints.
The High Court accepted the application for the above reason and quashing the proceedings against Hari Nath Singh ordered his discharge.
In these appeals by certificate, the order of the High Court is questioned.
The first question is what are the distinct features of section 193 and section 218 of the Indian Penal Code.
Section 193 states the 830 punishment for giving false evidence in any stage of a judicial peoceeding or fabricating false evidence for the purpose of being used in any stage of judicial proceeding.
Section 191 defines the offence of giving false evidence and section 192 the offence of fabricating false evidence.
We may ignore section 191 because here admittedly there is no giving of false evidence as defined in the Penal Code.
The offence of fabricating false evidence comes into existence when a person causes any circumstances to exist or makes any false entry in any book or record or makes any document containing a false statement intending that such circumstance false entry or false statement may appear in evidence in a judicial proceeding etc.
and so appearing cause an erroneous opinion be formed touching a point material to the result of such proceeding.
The offence is a general one and does not specify the person, or the kind of document.
It may be any person and the fabricated evidence may be in any form.
Section 218 on the other hand deals with the intentional preparation of a false record by a public servant with the object of saving or injuring any Person or property.
The difference between the two sect tons is clearly noticeable.
Section 192 deals with judicial proceeding and the false evidence is intended to be used in a judicial proceeding.
Section 218 deals with public servants and there the gist is the intentional preparation of a false record with a view of saving or injuring any person or property.
This need not have relation to a judicial proceeding as such.
The bar of section 195 of the Code of Criminal Procedure which was invoked by Hari Nath Singh arises thus.
No Court can take cognizance of an offence under section 193 when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of such Court.
In these cases, Hari Nath Singh is charged with abetment of three offences committed by three public servants namely the two Lekhpals who have caused the preparation of an incorrect Khasra knowing it to be likely that they would thereby cause loss or injury to Kamla Prasad Singh and the other vendees.
Hari Nath Singh is charged in the third case with abetment of the act of the Ahlmad who is alleged to have intentionally made a false entry about the case intending that the false entry should be used in a judicial proceeding and wrong opinion be formed about the date of the institution of the proceeding.
It will appear from this that the alleged offence committed by the Ahlmad was clearly in or in relation to a proceeding, in Court.
In fact he made an incorrect entry about a case actually in Court with the intention that the date of the institution of the proceeding may be taken to be November 9, 1962 although the case was alleged to be instituted after December 4, 1962.
83 1 His offence (if any be proved against him) would fall within section 192.
Section 192 deals with fabrication of false evidence to be used in a judicial proceeding so as to cause an erroneous opinion to be formed on a material point.
Section 192 therefore completely covers the case against Ahlmad, and must cover the case of Hari Nath Singh the alleged abettor.
Section 218 Indian Penal Code does not apply in this case, because the record was not made with the object of saving or injuring any person or property.
The offence of section 192 Indian Penal Code is punishable under section 193 Indian Penal Code and the latter section is one of the sections mentioned in section 195 (1 ) (b) of the Code of Criminal Procedure, the gist of which has been reproduced above.
The decision of the High Court was therefore right that the Court could not take cognizance of the offence alleged against the Ahlmad and his abettor, because the offence was fabricating of false evidence in a case which was in fact pending and the false entry was made with the object that an erroneous opinion be formed on a material point.
Such a case could only be instituted by a Court in which or in relation to which this offence was committed and a private complaint was therefore incompetent.
The alleged offence against the Lekhpals and their abettor Hari Nath Singh in the other two cases is of a different order.
The offence of section 218 Indian Penal Code is not a minor offence, included within section 192.
It is a distinct offence which can be proceeded against without the bar of section 195 of the Code of Criminal Procedure.
There is some resemblance between section 192 and section 21 8 Indian Penal Code, because both deal with the preparation of a false record.
There the resemblance ceases.
Whereas in section 192, the record is prepared for use in a judicial proceeding with the intention that an erroneous opinion be formed regarding a material point, the offence in section 218 is the preparation of a false record by a public servant with the intention of saving or injuring any person or property.
The intention here was to save the property from the vendees namely Kamla Prasad Singh and others.
The offence was complete the moment the false record was made with the said intention and it was not necessary for the completion of this offence that the record should be used in a judicial proceeding so as to cause an erroneous opinion to be formed touching on a point material to the result of such proceeding.
In the Ahlmad 's case this latter condition was the most important ingredient.
In the case of the Lekhpals, it was immaterial whether the record would be produced in a judicial proceeding or not so as to cause an erroneous opinion to be formed.
The intention was to save the property from the effects of the sale and the preparation of the false record was therefore sufficient from this point of view.
In other words, the offence of the Lekhpals (if any be proved against them) would fall within section 218 and not section 192/193 of the Indian Penal Code.
It may fill in the latter sections if the entry 8 32 can be said to be in or in relation to a Court.
This cannot be said of the entries in the Khasra.
As section 218 is not named in section 195 of the Code of Criminal Procedure, the private complaint of Kamla Prasad Singh could be entertained by the Court and there was no bar.
To hold that a record such as is contemplated in section 218 Indian Penal Code is always one intended for use in a Court would put section 218 Indian Penal Code in section 195 of the Code of Criminal Procedure which the Code of Criminal Procedure has not thought of.
Therefore section 218 Indian Penal Code must be treated as an independent and distinct offence.
There could be a private complaint in respect of an offence under section 218 Indian Penal Code.
The result is that the case against Hari Nath Singh of abet ment of the act of the Ahlmad could not begin except on a complaint in writing of the Court concerned.
There was no bar to the commencement of the case against Hari Nath Singh and the two Lekhpals on the private complaint of Kamla Prasad Singh.
Accordingly Criminal Appeal No. 244 of 1964 shall be dismissed.
Criminal Appeals Nos.
245 246 of 1964 shall be allowed and the concerned cases will be remitted to the Court of first instance for trial according to law.
Y.P. Appeal No. 244 dismissed Appeals 245 246 allowed.

summary:
The appellant.
a private person, filed three complaints under section 218 I.P.C. for the prosecution of respondent 1 charging him in each ease with abetment of offences committed by three public servants.
In each complaint respondent 1 was a co accused with another in one with an Ahmad of Tahsildar 's Court.
in another with one Lekhpal, and in the third with the another Lekhpal.
The Ahmad was alleged 10 have intentionaIIy made a false entry about the case intending that the false entry should be used in a judicial proceeding and wrong opinion be formed, the Lekhpals were alleged to have caused the preparation of an incorrect Khasra knowing to be likely that they would thereby cause loss or injury to the appellant.
The respondent 1 filed an application under 561 A Cr.
P.C. slating that the offence, if any, was one under section 193 I.P.C. and the provisions of section 195 Cr.
P.C. barred private complaints, which the High Court accepted.
In appeal, this Court, HELD: The bar of private complaints applied 10 the case of Ahmad, but not to those of Lekhpals.
1832 C D] The difference between sections 192 and 218 I.P.C. is that the former deals with judicial proceeding and the false evidence is intended to be used in a judicial proceeding, while the latter deals with public servants, and there the gist is the international preparation of false record with a view of saving or injuring any person or property and need not have relation to a judicial proceeding as such.
I830 D] Section 192 I.P.C. covers the case against the Ahmad and respondent 1 and the offence is punishable under section 193 I.P.C. which is mentioned in section 195(1)(b) Cr.
P.C. No Court can take cognizance of an offence under section 193 except on the complaint in writing of such court.
The alleged offence against the Lekhpals and respondent 1, their abettor, in the other two cases was of a different order.
The offence of section 218 I.P.C. is not a minor offence included within section 192.
It is distinct offence which can be proceeded against without the bar of section 195 Cr.
The offence was complete the moment the false record was made with the said intention and it was not necessary for the completion of this offence that the record should be used in a judicial proceeding so as to cause an erroneous opinion to be formed touching on a point material to the result of such proceeding.
In the Ahmad 's case this latter condition was the most important ingredient.
[831 B C, D G]


judgement:
ivil Appeal No. 1260 of 966.
Appeal from the judgment and decree dated July 10.
1962 the Allahabad High Court.
Lucknow Bench in Special Appeal No. 551 of 1960.
C.B. Agarwala and O.P. Rana, for the appellants.
B.C. Misra, B.P. Jha and C.L. Lal, for the respondent.
849 The Judgment of the Court was delivered by Hidayatullah, J.
This is an appeal by the State of Uttar Pradesh against the judgment and order of the High Court of Allahabad, October 24, 1962, confirming_ in special appeal the decision of a learned Single Judge dated July 10, 1962.
By that order the High Court has set aside the order of dismissal made by the State Government against the respondent C. section Sharma on the ground that he did not have a fair enquiry before the Commissioner of Sales Tax when certain charges against him were inquired into.
The facts of the case are as follows.
The respondent C. section Sharma was appointed as a Sales Tax Officer in January 1949 and was transferred on April 1, 1950 to Hathras where he re mained till the end of September 1952.
An enquiry was made with reference to certain allegations against him during his period of stay at Hathras.
On October 3, 1952, he was transferred to Lakhampur Kheri and was ordered not to visit Hathras until allowed by the authorities.
It appears that in November 1952, an ex parte inquiry was made by the Assistant Commissioner and the proceedings were submitted with a preliminary report to 'lie Commissioner.
On the basis of this report an order of suspension was passed against him on February 18,1953 and he was placed for inquiry before the Commissioner.
A set of charges was delivered to him on April 15, 1953; then a supplementary charge sheet was issued on July 8, 1953.
Sharma asked for the inspection of the record of the preliminary inquiry as also the report, but he was told to submit his explanation to the charges first before inspection could be allowed.
He submitted his explanation and in compliance with the directions contained in the charge sheet issued to him, he submitted a list of three.
defence witnesses whom he wished to examine in support of his case.
He requested that the witnesses against him should be examined vivavoce in his presence before he was asked to meet that evidence and also wished to be heard in person.
On October 31, 1953, Sharma submitted the list of witnesses above mentioned.
On the same day the Commissioner informed Sharma that he would be permitted to produce the witnesses mentioned in his letter in due course.
In another communication he was told that another date would be fixed for hearing the witnesses in his defence.
It is not necessary to describe the charges here because many of them, though found against him by the Commissioner, were not accepted by the State Government.
The order of dismissal was based upon three allegations which are allegation No. 5 in charge No. 1 and allegations No. 1 and 3 in charges Nos. 2 and 3 respectively.
The Commissioner in his report found him guilty of these charges and also of other allegations which the State Government did not accept.
We shall refer to these charges presently after completing the narration of events which took place before the Enquiring Officer.
850 After the inquiry opened, the Commissioner did not examine the witnesses afresh, but their previous statements.
recorded at the earlier enquiry, were tendered in evidence and Sharma was asked to cross examine them.
Sharma duly cross examined those witnesses and then the question arose whether he would be allowed to lead his defence or not.
In the first application which he had made giving the list of witnesses he had named three witnesses and had also added that they were to be examined in relation to a specific charge about a car owned by him.
Oil February 2, 1954, he made an application for 20 (lays ' extension of time for giving the list of witnesses he wished to examine in his defence.
Third February had been fixed for summerising of the.
witnesses against him but no date till then.
,,.,Lis fixed for the examination of his defence witnesses.
His application of February 2, 1954 was rejected by the Commissioner on February 6, 1954, without fixing a date for the examination of the witnesses or for giving him an opportunity to give evidence in his own behalf.
Not knowing that he would not be even any further opportunity.
Sharma submitted a list of four witnesses oil February 10, 1954, but stated that he could not give the addresses of some of the witnesses because he did not know where they were.
On February 24, 1954, he again stated that he wanted to examine defence witnesses and to examine himself.
No order was how ever, made on these applications.
On April 8, 1954, the Commissioner made his report recommending the dismissal of Sharma and the order of the State Government was made after due opportunity to show cause why he should not be dismissed.
In reply to the show cause notice Sharma complained that he had not been allowed to lead evidence on his own 'behalf that is one of the contentions in the present case.
The charges against him which have been held proved against him and to which we have referred were as follows Charge No. 1, Allegation No. 5 "You accepted the accounts of Sarvsri Radhey Shiam Brij Kishore without due verification. " Charge No. 2, Allegation No. I "Sarvsri Damodar Das Radhey Shiam had been declared non assessable for 1948 49 and for three quarters of 1949 50 by your predecessor.
The Judge (Appeals) had also declared the dealer unassessable in an appeal against Your orders.
Still you assessed the dealers for the first three quarters to harass him.
Ultimately you declared the dealer unassessable." 851 Charge No. 3, Allegation No. 3 "You accepted Rs. 5001 from Mithoo Lal of the firm Noor Mohammed Mithoo Lal as bribe through Chhotey Lal vakil.
" In, addition to these charges there was a charge against him that he was in possession of a car which his means did not allow him to purchase andin respect of which he had made a reply that he had received this car from his father in law.
This was charge No. 4 and inrelation to this charge apparently he had cited the first list ofthree witnesses for the examination in his defence.
This charge was not accepted by the State Government when the matter reached it.
After the order of dismissal was made, Sharma filed a writ petition in the High Court of Allahabad asking that the order made against him be quashed and his allegations were that the enquiry against him was made by a Commissioner who was biased against him; that the witnesses for the enquiry were not examined viva voce in his presence but were only tendered for crossexamination and lastly that no adequate opportunity was given to him for summoning his defence witnesses or to examine himself.
The High Court in the two orders which were made, reached the conclusion that the enquiry was defective, but different reasons were given 'by the learned Single Judge and the Division Bench.
We need not go into this matter elaborately because in our opinion the appeal here must be dismissed because ' we are satisfied that no adequate opportunity was afforded to Sharma to lead his defence which the principles of natural justice required.
The first question is whether this inquiry was made under sub rule (1) or (3) of r. 55 of the Civil Services (Classification, Control and Appeal) Rules.
It is an admitted fact that Sharma was a temporary employee and therefore his case would fall to be governed by sub rule (3) of r. 55 if it could be said that the enquiry which was being made was for a specific fault or on account of his unsuitability for service.
Sub rule 1 ) of r. 55 is a general rule for enquiries where the conduct of a person is inquired into for misconduct but sub rule (3) says that that subrule shall not apply where it is proposed to terminate the employement of a probationer, or to dismiss, remove or reduce in rank a temporary government servant for any specific fault or on account of his unsuitability for the service.
Sub rule (3) says that in such cases, the probationer or temporary government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any.
shall be duly considered before orders are passed by the competent authority.
If the third sub rule applied, it is obvious that the kind of enquiry made complied with its requirements.
The first sub 852 rule, however, provides for a full blooded enquiry which is the counter part of a regular trial : witnesses have to be examined in support of the allegations, opportunity has to be given to the delinquent, officer to cross examine them and to lead evidence in his defence.
In our judgment the present case was governed by the first sub rule and not the third sub rule.
The third sub rule deals with the unsuitability of an officer for the service or with a charge for any specific fault.
This fault means a fault in the execution of his duties and not a misconduct such as taking bribe etc.
which are charges of a more serious nature, affecting the character of the individual concerned.
The collocation of the words "any specific fault" or "on account of unsuitability for service" give the clue of the distinction between the third sub rule and the first sub rule.
An officer who is, for example, habitually lazy or makes mistakes frequently or is not polite or decorous may be considered unsuitable for the service.
Another officer who makes a grievous default in the execution of his work may be charged for the specific individual fault, that is a dereliction or defect in the execution of that duty.
Where there is an allegation that an officer is guilty of a misconduct such as accepting bribe or showing favours, the matter is not one of specific fault in the execution of his work but something more.
That matter will fall to be governed by the first sub rule because you cannot charge a man with criminal conduct without affording him adequate opportunity to clear his character.
Mr. Aggarwal fairly pointed out that the Government had appointed the enquiring officer to take action under r. 55(1) and it is thus quite clear that Government viewed the matter also in this light.
It, therefore, follows that if the procedure under the first subrule had to be followed, adequate opportunity had to be given to Sharma to lead evidence on his own behalf to clear himself of serious charges which were levelled against him and give evidence on his own behalf.
It is obvious that he has not been able to lead his defence or to give evidence on his own behalf.
The question is whether he has to thank himself or the omission proceeded because of some action on the part of the enquiring officer.
Considering the whole matter we are satisfied that the enquiring officer was to blame and we shall now show why we think so.
Throughout the enquiry, as late as February 24, 1954, Sharma had again and again given indication that he would lead evidence in his defence.
At first he had given a list of three witnesses which he later amplified to four leaving out one from the original list and adding two new names.
He had also stated that he wanted to examine himself in his defence.
The learned Commissioner who was holding the enquiry on more than one occasion stated that he would be afforded this opportunity and also that a date would be fixed for the examination of the defence wit 853 nesses.
It is true that Sharma was playing for time and on the 2nd of February (before the date of hearing came) he put in an application that he would like an adjournment of 20 days before he submitted a final list of witnesses with their addresses.
This application was rejected on February 6, but between February 6, and April 8, when the report was made, two long months passed and it was possible for the Commissioner to have fixed a date, on which, if he was so minded, Sharma could bring his witnesses in support of his case or tender himself for examination.
No action was taken between February 6, 1954 and April 8, 1954 to enable Sharma to lead his defence, if any, in support of his part of the case.
This omission in our judgment was sufficient to vitiate the whole proceeding because no enquiry of this type in which there are charges of a criminal nature, can be said to be properly conducted when the defence of the officer is either frustrated or ruled out.
It was submitted by Mr. Agarwal,that the witnesses were being summoned by him to clear himself of the charge of owning a car without having the visible means to afford it and this charge was not accepted by the State Government.
This is true enough, but the State Government came on the scene much later.
In so far as the enquiring officer was concerned, he had accepted the allegation against Sharma and even if the original list be considered, Sharma was entitled to lead evidence with regard to the car itself.
It is possible that if a date had been fixed, he would, not only have led evidence with regard to the car, but would have brought witnesses to clear himself of other charges, but no such opportunity was clearly afforded to him.
Further before the case closed, the Commissioner had before him a list of four witnesses and fair play demanded, that he should have fixed a date and left it to Sharma to procure attendance of his witnesses on that date, but if no date was fixed, Sharma was not expected to bring hi,, witnesses day after day in the hope that the Commissioner would examine them any day.
The enquiry cannot be said to comply with the elementary principles of natural justice and therefore we have no hesitation in accepting the decision of the High Court that the enquiry was vitiated.
We may not omit to state that there was an allegation against the Commissioner that he was biased against Sharma.
It does appear that the Commissioner, in one of his letters, stated that he had heard witnesses and satisfied himself that Sharma was definitely corrupt.
This statement of the Commissioner showed that :he approached the case with a feeling that Sharma was guilty although the State Government cannot be said to share this bias of the Commissioner.
We would have said something more about this, if the occasion had demanded this, but as we are upholding the order of the High Court on the ground that no reasonable 8 54 opportunity was afforded to Sharma to lead his evidence, it is not necessary to say whether an officer in the position of the Commissioner, who on the basis of secret enquiries behind the 'back of ,delinquent officer has reached the conclusion that there are good grounds for holding that the officer is corrupt, should himself ,conduct the enquiry.
That matter may be left for consideration in another case.
On the whole, therefore, we think that the ends of justice will be served in maintaining the order made by the High Court.
The enquiry, if Government so decides, must proceed before an officer who will examine the witnesses in support of the charge in the manner laid down by this Court and afford Sharma an opportunity of leading his defence, if any.
The appeal, therefore, fails and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent was a Sales tax Officer under the Uttar Pradesh Government.
Inquiries against him in respect of some charges of corruption were first made by the Assistant Commissioner of Sales tax who examined some witnesses.
The enquiry was then passed on to the Commissioner who neither examined the witnesses against the respondent himself nor gave an opportunity to the respondent, despite the latter 's repeated 'requests to produce his defence witnesses.
On orders of dismissal being passed after the enquiry the respondent filed a writ petition before the High Court which succeeded.
The State appealed.
It was conceded on behalf of the State that the enquiry was under sub (1) or r. 55 of the Civil Services (Classification Control and Appeal) Rules.
The distinction between 'sub:ft. (1) and (3) was considered.
HELD: The third sub rule deals with the unsuitability of an officer for the service or with a charge for any specific fault.
This fault means a fault in the execution of his duties and not a misconduct such as taking scribe etc.
which are charges of a more serious nature affecting the character of the individual concerned.
The collocation of the words any specific fault ' or 'on account of unsuitability for service ' give the clue to the distinction between the third sub rule and the first sub rule.
[852B C] Sub rule (1) of r. 55 is the general rule for enquiries when the conduct of a person is inquired into for misconduct.
A person cannot the charged with criminal conduct without affording him adequate opportunity to clear his character.
If therefore the procedure under the first sub rule had to be followed adequate opportunity had to be given to the respondent to lead evidence on his own behalf to clear himself.
No such opportunity having been given the enquiry could not be said to comply with the elementary principles of natural justice and the High Court rightly held that the enquiry was vitiated.
[851 F G; 852 853 F G]


judgement:
Appeal No. 185 of 1966.
Appeal by special leave from the judgment and order dated March 20, 1962 of the Mysore High Court in Writ Petition No. 109 of 1960.
A.K. Sen, R. Ganapathy Iyer and R. Gopalakrishnan, for the appellants.
D.Narsaraju, T. A. Ramachandran and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgement of the Mysore High Court dated March 20, 1962 dismissing writ petition No. 109 of 1960.
The appellants had prayed therein for the grant of writ for quashing a. notice dated January 16, 1960 issued by the respondent under section 15 of the Excess Profits Tax Act, 1940 (Act XV of 1940), hereinafter called the 'Act ', calling upon the appellants to submit a return of the standard profits and the profits actually made during the chargeable accounting period from October 30, 1943 to October 30, 1944 on the ground that the profits had been under assessed.
The appellants carried on a business constituting themselves into a partnership called 'Guduthur Thimmappa & Brothers in 1934.
On the date of commencement of the business the part ners were G. Thimmappa, G. Ekambarappa, and G. Padmanabhan, each of the partners representing their respective joint families.
The business of the firm was in Bellary town and the partners of the firm were residents of Bellary town during the period the firm was carrying on business.
The, firm was dissolved on October 16, 1944.
Thimmappa, one of the partners, died on April 13, 1955.
For the chargeable accounting period from October 30, 1943 to April 30, 1944, the Excess Profits Tax Officer had taken steps to assess the "escaped" profits of the firm.
He issued the necessary notices to G. Padmanabhan and G. Ekambarappa as the partners of the dissolved firm.
He also issued notice to G. M. Prabhu and G. Lakshmidevamma as the representatives of G. Thimmappa.
The contention of the appellants, before the High Court was that as from November 1, 1956 the Act must be 866 deemed to have been repealed so far as Bellary district is concerned and therefore the respondent was not competent to take any proceedings for determining the escaped income under section 15 of that Act.
The High Court rejected the contention on the ground that, though the Act stood repealed by reason of the inclusion of Bellary district in Mysore State, the liability to pay tax on the escaped profits continued by virtue of section 6 of the General Clauses Act.
The question to be considered in this appeal is whether the appellants continued to be liable to be proceeded against under section 15 of the Act on the profits which had escaped taxation.
The present Bellary district was a part of the old Madras State which was a Part "A" State under the Constitution of India till its merger with the Mysore State on October 1, 1953 which was a Part "B" State.
The Mysore State continued to be a Part "B" State till November 1, 1956.
The Act extended, when first promulgated, to.
the territory of former British India.
After the Constitution came into force, section 1(2) of the Act was adapted so as to extend the operation of the Act "to the whole of India except Part 'B ' States" by the Adaptation of Laws Order, 1950.
After the formation of new States in pursuance of the States Reorgani sation Act, 1956 (Act 37 of 1956), sub section
(2) of section 1 of the Act was adapted by the President by Adaptation of Laws (No. 3) Order, 1956 dated December 31, 1956.
Section 1(2) of the Act as adapted read as follows : "It extends to the whole of India except the territories which immediately before the 1st November, 1956 were comprised in part 'B ' state." The result of the adaptation was that all the provisions of the Act stood repealed so far as the district of Bellary was concerned with effect from December 31, 1956.
It was contended on behalf of the appellants that it is not a case of repeal of the Act and so the provisions of section 6 of the General Clauses Act could not be invoked to sustain the validity of the notices issued by the respondent under section 15 of the Act.
It was argued that so far as the Act was con cerned, the Adaptation of the Laws Order, 1956 only modified the provisions of section 1 (2) of the Act and did not repeal the Act as such and the effect of the modification was that the provisions of the Act were no longer applicable to the Bellary district which was comprised in the territory of Part 'B ' State of Mysore immediately before November 1, 1956.
In our opinion there is no justification for the argument put forward on behalf of the appellants.
The result of the Adaptation of Laws Order, 1956 so far as the Act was concerned, was that the provisions of that Act were no longer applicable or in force in Bellary district.
To put it differently, the Act was repealed so far as the area of Bellary 8 6 7 district was concerned.
Repeal of an Act means revocation or abrogation of the Act and, in our opinion, section 6 of the General Clauses Act applies even in the case of a partial repeal or repeal of part of an Act.
Section 6 of the General Clauses Act states "Effect of repeal.
Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or Section 3(19) of the General Clauses Act defines an "enactment" as including "a Regulation and also as including any provision contained in any Act or in any such Regulation as aforesaid".
The argument was also stressed on behalf of the appellants that even if section 6(c) of the General Clauses Act was applicable there was no "liability incurred or accrued" as there was no assessment of escaped profits before November 1, 1956 when the adaptation was made.
We do not think there is any substance in this argument.
The liability of the appellants to tax arose immediately at the end of the chargeable accounting period and not merely at the time when it is quantified by assessment proceedings.
It follows therefore that the notice issued under section 15 of the Act was legally valid and the appellants representing the original partners of the firm continued to be liable to be proceeded against under that section for the profits which had escaped taxation.
In Wallace Brothers and Co. Ltd. vs Commissioner of income tax(1), the Judicial Committee expounded in clear terms the scope of a tax liability under the Income tax Act.
It was observed by the Judicial Committee as follows : ". . the rate of tax for the year of assessment may be fixed after the close of the previous year and the assessment will necessarily be made after the close of that year.
But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year, though quantification of the amount payable is postponed.
" The same view has been expressed by this Court in Chatturam Horilram Ltd. vs C.I.T. (2) in which the legal position was reviewed (1) , 244.
(P.C.) (2) 868 with regard to the question of charge to income tax.
In that case, the assessee company carrying on business in Chota Nagpur was assessed to tax for the year 1939 40, but the assessment was set aside by the Income tax Appellate Tribunal on March 28, 1942, on the ground that the Indian Finance Act, 1939, was not in force during the assessment year 1939 40, in Chota Nagpur which was a partially excluded area.
On June 30, 1942, a Regulation was promulgated by which the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from March 30, 1939.
Thereupon the Income tax Officer made an order holding that the income of the assessee for the year 1939 40 had escaped assessment and issued to the assessee a notice under section 34 of the Income tax Act.
The validity of the notice was questioned.
It was held by th Court that though the Finance Act was not in force in that area in 1939 40, the income of the assessee wasliable to tax in that year and, therefore, it had escapdently of the passing of the Finance Act but until the Finance Act It was pointed out that the income was chargeable to tax independing dently of the passing of the Finance Act but until the Finance Act was passed no tax could be actually levied.
The same principle was reiterated by this Court in Kalwa Devadattam vs Union of India(l).
The question in that case was whether the liability of a Hindu undivided family arose before or after partition of the family.
In that case, this Court speaking through Shah, J. stated in clear terms thus : "Under the Indian Income tax Act liability to pay income tax arises on the accrual of the income, and not from the computation made by the taxing authorities in the course of assessment proceedings; it arises at a point of time not later than the close of the year of account.
" The same view has been taken in a recent case by this Court in State of Kerala vs N. Sami lyer (2 ) .
In view of the principle expressed in these authorities we are of the opinion that the liability to pay excess profits tax accrued immediately at the end of the chargeable accounting period and that liability was preserved under section 6 (c) of the General Clauses Act even though the Act stood repealed so far as Bellary district was concerned with effect from November 1, 1956.
Mr. Narsaraju contended in the alternative that on the combined operation of section 53 of the Andhra Pradesh Act (Act 30 of 1953) and s ' 119 of the State Reorganisation Act (Act 37 of 1956) all the provisions of the Excess Profits Tax Act, 1940 remained in operation in Bellary district in spite of the Adaptation of Laws Order, 1956.
Section 53 of the Andhra Pradesh Act states as follows: (1) (2) A.I.R. 1966 S.C. 1415.
8 69 .lm15 "The provisions of Part 11 shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Madras or of Mysore shall, until otherwise provided by a competent Legislature or other competent authority, continue to have the same meaning. " .lm0
Section 119 of the State Reorganisation Act reads as follows "The provisions of Part It shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.
" Section 120 of this Act states : "For the purpose of facilitating the application of any law in relation to any of the States formed or territorially altered by the provisions of Part II, the appropriate Government may, before the expiration of one year from the appointed day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.
Explanation.
In this section, the expression "appropriate Government" means (a) as respect any law relating to a matter enumerated in the Union List, the Central Government; and (b) as respects any other law, (i) in its application to a Part A State, the State Government, and (ii) in its application to a Part C State, the Central Government.
" it was pointed out that the Act was in force in Bellary district When the Constitution came into force and the effect of section 53 of the Andhra Pradesh Act was to continue the operation of that Act so far as Bellary district was concerned.
The effect of section 119 870 of the State Reorganisation Act was to preserve the territorial operation of the law which was immediately in force before the date of the promulgation of that Act until such law was repealed by the competent legislature or a competent legislative authority.
There is great force in.
the argument advanced by Mr. Narsaraju on this point.
But it is not necessary for us to express any concluded opinion on this aspect of the case because we have already given reasons for holding that the appeal must be dismissed on the ground that the Act stood repealed by reason of the Adaptation of Laws Order, 1956 and the liability to pay tax on escaped profits continued under section 6 of the General Clauses Act.
We accordingly affirm the judgment of the Mysore High Court dated March 20, 1962 and dismiss this appeal with costs.
G.C. Appeal dismissed.

summary:
The District of Bellary originally belonged to the Part 'A ' State of Madras in British India.
On October 1. 1953 it merged in the Part 'B ' '.State of Mysore.
The Excess Profits Act, 1940 applied only to British India.
When Bellary District went to the Part 'B ' State of Mysore the Act ceased to apply to it.
After the , Mysore also became a Part 'A ' State.
But according to section 1(2) of the Adaptation of Laws (No. 3) Order dated December 31, 1956.
the aforesaid Excess Profits Tax Act was to extend "to the whole of India ,except the territories which immediately before November 1, 1956 were comprised in a Part 'B ' State.
" In 1960 the Excess Profits Tax Officer, Bellary gave a notice to the appellants under section 15 of the Act in respect of the period October 30, 1943 to October 30, 1944.
The appellants objected that the Act did not apply to Bellary district as immediately before November 1, 1956 it was in a Part 'B ' State.
The plea was rejected by the departmental authorities as well as by the High Court in a writ petition under article 226 of the Constitution.
In appeal.
by special leave, to this Court it was contended that so far as Bellary District was concerned it was not a case of repeal but only of non application of the Act, and thus section 6 of the General Clauses Act was not attracted.
It was further urged that even if section 6 applied no liability bad accrued or been incurred in terms of cl.
(e) of the section as there was no assessment of escaped profits before November 1, 1956 when the adaptation was made.
HELD : (i) The result of the Adaptation of Laws Order 1956 so far as the Act was concerned, was that the provisions of the Act were no longer applicable or in force in Bellary district.
To put it differently, the Act was repealed so far as the area of Bellary district was concerned.
Repeal of the Act means revocation or abrogation of the Act and section 6 of the General Clauses Act applies even in the case of a partial repeal, or repeal of part of an Act.
[866H; 867A] (ii)The case was covered by section 6(e) of the General Clauses Act.
The liability of an assessee to tax arises immediately at the end of the chargeable accounting period and not merely at the time when it is quantified.
by assessment proceedings.
It followed therefore that the 865 notice issued under section 15 of the Act was legally valid and the appellants representing the original partners of the firm continued to be liable to be proceeded against under that section for the profits which had escaped taxation.
[867 E F] Wallace Brothers & Co. vs Commissioner of Income tax, , Chatturam Horilram Ltd. vs C.I.T., ; Kalwa Devaduttam vs Union of India, and State of Kerala V. N. Same lyer, A.I.R. 1966 S.C. 1415, relied on.


judgement:
ivil Appeal No. 2586 of 966.
Appeals from the judgment dated November 17, 1966 of the Andhra Pradesh High Court in Writ Petition No. 1589 of 1965.
P. Ram Reddy and A.V.V. Nab ', for the appellants.
1. V. Rangacharya, B. Parthasarathy and P.C. Bhartari.
for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by certificate, is directed against the order of the Andhra Pradesh High Court, allowing a writ petition, filed by the respondent, under article 226 of the Constitution.
The facts leading up to the filing of the Writ Petition, by the respondent, may be briefly indicated.
In respect of Sri Swami Hathiramji Math.
Tirumalai, Tirupati, disputes arose regarding 89 3 the succession to the office of the Mahant of the Math, after the death, in 1947, of the then Mahant, Prayag Dossji.
An agreement seems to have been arrived at, on October 29, 1947, laying ,town the procedure for choosing a successor to the office of 'the Mahant, when a vacancy arises.
The Akada Panchayat appears to have been constituted the supreme authority, in such matters.
That agreement also provided, as to who, among the respondent, and one Chetham Doss, was to succeed to the office of the Mahant, on the death of one Narayan Doss.
Narayan Doss died on December 9, 1958, and Chetham Doss succeeded as Mahant.
The respondent filed O. section 84 of 1958, in the Subordinate Judge 's Court, Chittoor, for a declaration that he is entitled to succeed to the office of Mahant.
The suit was resisted, by Chetam Dass, on the basis that under the agreement of October 29, 1947, he was legitimately entitled to succeed as Mahant.
Sometime later, the respondent and Chetam Dass, entered into a compromise, by virtue of an agreement, dated July 15, 1961.
Both of theta agreed that Chetam Das was entitled to continue as Mahant, and that, after his death, the respondent was to succeed as Mahant.
III view of this agreement, the respondent got dismissed, as settled, O.S. 84 of 1958.
Chetam Dass died, on March 18, 1962, and the respondent claims to have succeeded as Mahant, in his own right.
But, according to the appellant, the Commissioner H.R. & C.E., Andhra Pradesh, received telegram stating that there was a dispute about the person who was to succeed as Mahant.
The, Assistant Commissioner, H.R. & C.E., took action, under section 53 of the Madras Hindu Religious & Charitable Endowments Act, 1951 (Act XIX of 1951).
(hereinafter called the Act), which is applicable to the State of Andhra Pradesh, and assumed charge, on March 24.
1962, of the Math and its properties.
The respondent filed.
on March 26, 1962, O.S. 24 of 1962, for a declaration that he is the rightful successor to the office of the Mahant of the Institution, in question.
The Commissioner, H.R. & C.E., was made a party to the suit.
The respondent also filed a revision, before the Government, on April 18, 1962, challenging the assuming charge of the Math, under section 53 of the Act, by the Assistant Commissioner.
The Government stayed further proceedings; and, in consequence, O.S. 24 of 1962, was withdrawn, by the respondent, on April 24, 1962.
The Government also passed an order, on June 5, 1962, stating that it was necessary to take action, for making suitable arrangements for the proper administration of the Math and its endowments, till the civil court decided as to who should succeed to the office of the Mahant.
In this connection, the State Government referred to an objection, received, from one Devendra Dass, stating that he is the proper person entitled to succeed to the office of the Mahant.
Ultimately, by the said order, the Government appointed the respondent, as an 894 interim Mahant, subject to the various conditions, laid down therein.
Devendra Dass filed writ petition No. 602 of 1962, on June 21, 1962, in the High Court, challenging this order of the State Government dated June 5, 1962.
That writ petition was, dismissed on August 27, 1962.
In the meanwhile, Devendra Dass, who was a minor, had instituted two suits, O.S. Nos. 50 of 1962 and 57 of 1962, to declare him as the person entitled to succeed to the office of the Mahant, on the death of Chetam Dass.
In the first suit he was represented, by one Mukundd Dos!,, as next friend, and in the second suit he was represented by one Bhagwant Doss, as the next friend.
When Devendra Doss attained majority, later on, he preferred to continue O.S. 50 of 1962.
and therefore O.S. 57 of 1962 was dismissed, as unnecessary.
On August 22, 1964, the Government passed an order, direct ing the respondent to show cause why its previous order, dated June 5, 1962, appointing the respondent, as interim Mahant, should not be cancelled.
This appears to have been issued, by the State Government, in view of the fact that the respondent was taking a particular attitude regarding the pada kanikkas received by him.
In the said order, the Government also proceeded, on the basis that it has no jurisdiction to appoint an interim Mahant when action is taken, under section 53 of the Act.
On receipt of this notice, the respondent filed writ petition No. 1534 of 1964, challenging the said order.
His claim appears to have been that he had succeeded to the office of Mahant.
in his own right, after the death of Chetam Dass, and that no action can be taken, under section 53 of the Act, and therefore, the question of the Government, either appointing him as interim Mahant.
or taking any action to cancel such an order, does not arise.
It is seen that further proceedings, in pursuance of the notice, issued by the Government, were stayed, by the High Court, pending the disposal of the writ petition.
The State Government passed an order, on September 9, 1965, framing certain charges, as against the respondent, and directing him to furnish his explanation.
regarding the same, and, at the same time, placed him under suspension.
The respondent filed, writ petition No. 1589 of 1965.
challenging this order of the Government, placing him under suspension.
In view of this writ petition, the earlier writ petition.
No. 1534 of 1.964, was dismissed, as infructuous, on April 14.
In the meanwhile, Bhagwant Doss, who had originally instituted O.S. No. 57 of 1962, as the next friend of Devendra Dass, and which suit was got dismissed by the minor, after attaining majority, instituted another suit, O.S. No. 69 of 1965 on September 29.
1965, claiming in his own right to be the person entitled to succeed to the office of Mahant.
This suit appears to be still pend 89 5 ing.
But O.S. 50 of 1962, which was decided to be continued, by Devendra Doss, was contested by the respondent and, ultimately, dismissed, on April 28, 1966.
It is stated that an appeal., A.S. No. 476 of 1966, has been filed, on November 17, 1966.
against this decree and it is still pending.
The main contention, taken by the respondent, in writ peti tion No. 1589 of 1965, was that he had already in law succeeded as Mahant, on March 18, 1962, when the presiding Mahant, Chetam Doss, died.
Therefore, according to him, there was no vacancy which can be aid to have occurred, in the office of the trustee of the Math, so as to give jurisdiction to the Assistant Commissioner, or the Commissioner, H.R. & C.E., to take action, under section 53 of the Act.
The respondent also relied upon the circumstance that the suit filed by Devendra Doss, O.S. 50 of 1962, had been dismissed and the Court had accepted his title to hold the office of the Mahant, on the basis of the Panchayat Agreement, dated October 29, 1947, as well as the agreement, dated July 15, 1961, entered into between him and the then Mahant, Chetam Dass.
The respondent also relied upon the circumstance that his assumption of office, as Mahant, on the death of Chetam Dass, has been approved, on March 18, 1962, by the supreme authority, namely, the Akada Panchayat.
The appellant resisted the claim of the respondent.
, on the ,,round that when Chetam Doss died, and the respondent attempted to take charge as Mahant, a claim was made, by one Devendra Doss, that he was the person, lawfully entitled to succeed to the office of the Mahant.
On the death of Chetam Doss, on March 18, 1962, a vacancy occurred, in the office of the trustee of the nath, and there is also a dispute, between the respondent and Devendra Doss, regarding the right of succession to such office.
In view of the fact that the necessary conditions, for invoking section 53 exist, the assumption of management of the Math was taken over, by the Assistant Commissioner, H.R. & C.E., for the proper management of the institution.
It was also pointed out that the suit instituted, by Bhagwant Doss, O.S. No. 69 of 1965, claiming in himself the right to succeed, as a trustee, was still pending and that also shows there is a dispute, regarding succession to the office of the trustee.
The appellant has also urged, that in any event, inasmuch as the respondent has been appointed, to manage the institution, by the department, under section 53 of the Act, and.
as he was continuing in such management by virtue of such appointment, the State had ample jurisdiction to pass orders either of suspending, or even dismissing the respondent.
The learned Judges of the High Court have held that the res pondent has succeeded as Mahant, on March 18, 1962, on the death of Chetam Dass, by virtue of the Panchayat Agreement, of October 29.
1947, and the compromise agreement, dated July 15, 896 1961.
Therefore, it Cannot be said that there was any vacancy in the office of the trustee of the Math, so as to enable the appellant to take action, under section 53 of the Act.
The High Court has, in this connection, referred to the findings recorded, by the Subordinate Judge 's Court, in favour of the respondent, in O.S. 50 of 1962.
The mere circumstance that after a person has succeeded to the office of the trustee, other people lay claims to that office, and institute litigation for that purpose, will not, according to the High Court, give jurisdiction to the appellants to take action, under section 53 of the Act.
The High Court is further of the view that the appellant 's action, in placing the respondent under suspension, is contrary to the directions given by the High Court, on April 9, 1965, pending the disposal of the writ petition.
The High Court is further of the view that the stand, taken by the appellants, is quite contrary to the earlier stand, taken in their order, dated June 5, 1962, wherein they had categorically stated that the civil Court 's decision will be conclusive and final, regardin the succession to the office of the Mahant.
This reason, is given by the High Court, as it was of the view that the appellant should give due respect to the decision, in O.S. 50 of 1962.
On these grounds the High Court quashed the order passed, by the State Government, dated September 9, 1966, placing the peti tioner, under suspension.
Mr. Rain Reddy, learned counsel appearing for the appellants.
has raised the same contentions that were taken, before the High Court.
In addition, counsel has also pointed out that the decision, in O.S. 50 of 1962, has not become final, inasmuch as Devendra Doss, who lost that litigation, has filed A.S. No. 476 of 1966, which is still pending.
Counsel further points out that, in view of the dispute raised, by Devendra Doss, by making a claim for the trusteeship or the Math, before the Government the writ petition, No. 602 of 1962, filed by the said party, Lis well as the various suits, referred to above, will clearly show that there is a dispute regarding the succession to the office of the trustee of the Math.
when a vacancy occurred, on the death of Chetam Dass, on March 18, 1962.
Therefore, action taken by the appellant, in the interests of the institution, was perfectly valid.
Counsel also urged that inasmuch as the respondent is functioning as Manager of the institution, by virtue of his appointment, on June 5, 1962, by the Government, subject to the conditions mentioned therein, the Government was competent to take disciplinary action, as against the respondent, for breach of those conditions.
Mr. 1.
V. Rangacharya, learned counsel for the respondent, of Lilly supports the reasons, given by the learned Judges of the High Court, for accepting the claim made by his client, in the writ petition.
897 The short question, that arises, for .consideration, is as to whether the Assistant Commissioner, H.R. & C.E., had jurisdiction to assume management of the Math, in question, under section 53 of the Act.
That will depend on the further question as to whether the State Government had jurisdiction to place the respondent, under suspension, as they have purported to do, 'by their order.
dated September 9.
The answer to the above question is to be decided, by reference to section 53 of the Act.
Section 53 of the Act.
occurs in 'Chapter IV, relating to Maths.
Sub section
(1) of that Section enables the commissioner or any two or more ' persons having interest and having obtained the consent, in writing, of the Commissioner, to institute a suit to obtain a decree for removing the trustee of ,a math or a specific endowment attached to a math, for any one or more of the grounds mentioned in cls.
(a) to (f) therein.
Section 53, which is the material section, and which relates to filling of vacancies, is as follows: "53.
(1) When a vacancy occurs in the office of the trustee of a math or specific endowment attached to a math and there is a dispute respecting the right of succession to such office or, when such vacancy cannot be filled up immediately or when the trustee is a minor and has no guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or when the trustee is by reason of unsoundness of mind or other mental or physical defect or infirmity unable to discharge the functions of the trustee, the Assistant Commissioner may take such steps and pass such order as he thinks proper for the temporary custody and protection of the endowments of the ' math or of the specific endowment, as the case may be, and shall report the matter forthwith to the Commissioner.
(2) Upon the receipt of such report, if the Commissioner, after making such inquiry as he deems necessary.
is satisfied that an arrangement for the administration of the math and its endowments or of the specific ' endowment, as 'the case may be, is necessary, he shall make such arrangement as he thinks fit until the disability of the trustee ceases or another trustee succeeds to the office, as the case may be.
(3) In making any such arrangement, the Commissioner shall have due regard to the claims of the ' disciples of the math, if any. 898 (4) Nothing in this section shall be deemed to affect anything contained in the Madras Court of Wards Act, 1902.
" Section 53(1) contemplates four contingencies, under which the Assistant Commissioner may take steps for the temporary ,custody and protection of the math.
We are concerned, in this case, only with the first contingency, referred to in that subsection.
Before that provision can be invoked, two conditions are necessary, viz., (a) a vacancy must have occurred, in the office of the trustee of a math; and (b) there must be a dispute, respecting the right of succession, to such office.
In this case, it is possible to say, in view of the claim made by Devendra Das.
and the litigations referred to, above, that there was a dispute Tespecting the right of succession to the office of the Mahant.
But in order to give jurisdiction to the appellant to take action, tinder the first contingency, referred to in sub section
(1) of section 53, the two conditions adverted to above, will have to exist.
In this case, it is the claim of the appellant that there was a vacancy, in the office of the trustee of the Math, on March 18, 1962, when Chetan Das died.
On the other hand, according to the resPondent, there was no vacancy in the office of the Mahant, it that time, because, on the death of Chetan Das, the respondent succeeded to the office of the Mahant.
Therefore, the point to be considered is, as to whether a vacancy has occurred, in the office of the trustee of the Math, on March 18, 1962.
That there must be an actual vacancy, unfilled, is clear, from the wording of section 53(1), when it deals with two different contingencies.
providing for the assumption of management.
Under the first contingency, a vacancy should have occurred in the office of a trustee of a Math, and there is a dispute in respect of the succession to such office.
That is, the office has not been filled in.
by anybody having a prima facie legal, right to assume management.
Similarly, the second contingency, contemplated unders.
53(1), when assumption of management can be made by the Department, is when a vacancy occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately.
This clearly shows that there must be a vacancy, as I fact, in the sense that nobody with any legal right has assumed Office of the trustee of a Math.
In this case, as we have pointed out earlier, the High Court has accepted the claim of the respondent that by virtue of the Panchayat agreement dated October 29, 1947, and the compromise agreement, dated July 1.5, 1961, the respondent has succeeded to the office of the trustee of the Math, on March 18, 1962, on the death of Chetan Das.
The supreme authority.
according to the High Court, the Akada Panchayat, has also 899 approved of the said appointment, by resolution of the same date.
We do not propose to consider the findings recorded in O.S. 50 of 1962, which are no doubt in favour of the respondent, because that decision is the subject of an appeal, in A.S. No. 476 of 1966.
Nor do we propose to consider the claim of Bhagwant Doss in O.S. 69 of 1965, which is still pending adjudication, at the hands of the Court.
But even without reference to those litigations, the view of the High Court that there is no vacancy in the office of the trustee of the Math which alone will give jurisdiction to the appellant to take action under section 53(1), can be accepted its correct, for the other reasons, mentioned by us, earlier.
Mr. Ram Reddy, learned counsel for the appellants, further points out that, in this case, the respondent is in management or the Math, by virtue of the appointment made, by the State Government, on June 5, 1962, and therefore the State Government is entitled to take disciplinary action against him for breach of conditions, under which he was holding that office.
Counsel also united our attention to the averments made by the respondent himself, in Writ Petition No. 602 of 1962, that the State Government has appointed him as interim Mahant.
The stand taken by the respondent, in writ petition No. 602 of 1962, cannot assist the appellant, because he was interested then in fighting the claim made by Devendra Dass, in the said writ petition.
In resisting such claim, he has, no doubt, made reference to the fact that his right to function, as Mahant, cannot be disturbed, as the State Government has appointed him a ,; interim mahant.
Therefore, the stand taken by the respondent, in the said writ petition, must be understood in the said context.
No doubt, normally, if it is established that the respondent 's only right to function as Manager of this institution, is exclusively on the basis of the Government order, dated June 5, 1962, there will be considerable force in the contention of learned counsel for the appellant that the State Government has got jurisdiction to take disciplinary action, against the respondent.
But 'the facts in this case show that the position is entirely different.
If the respondent, as held by the High Court with which view we are in agreement has succeeded to the office of the trustee of the Math, on the death of Chetam Dass, on March 18, 1962, in hi, ; own right, the mere circumstance that the Government also passe,; an order appointing him as interim Mahant, or Manager, later, will not take away the right of the respondent to function as trustee.
on the basis of his original right.
Once it is held that the respondent is not holding the office of the Mahant, exclusively on the basis of the order of the Government, dated June 5.
1962, it follows that the appellant has no jurisdiction to pass an order, placing the respondent under suspension, as that virtually amounts to a removal of the trustee of a Math.
The removal of 900 trustee of a Math can be done only in the manner, and in the circumstances, mentioned in section 52 of the Act.
Therefore, the view of the High Court that the order of the Government, placing the respondent Linder suspension, is not valid, is correct.
The result is, that the appeal fails, and is dismissed.
In the Circumstances of the case, there will be no order as to costs.

summary:
After the death of the Mahant of Sri Swami Hathiramji Math, Tirumalai, Tirupati, in 1947, an agreement was arrived at on October 29, 1947 resolving certain disputes regarding the succession to the office of Mahant and laying down a procedure for choosing a successor when a vacancy arose.
Furthermore, the Akada Panchayat was constituted the supreme authority in such matters.
One C.D. became the Mahant in 1958.
The respondent challenged the succession by a declaratory suit but eventually there was a compromise and in an agreement dated .July 15, 1961, it was agreed that C.D. was entitled to continue as Mahant, and that after his death the respondent would succeed him.
On the death of C.D. on March 18, 1962, the respondent claimed to have succeeded as Mahant in his own right and the Akada Panchayat approved the succession by a resolution on the same date.
However, the Commissioner Hindu Religious and Charitable Endowments Andhra pradesh, having received a telegram disputing the respondent 's claim, took action under section 53 of the Madras Hindu Religious and Charitable Endowments Act XIX of 1959 and assumed charge of the Math and its property on March 24, 1964.
The respondent thereafter filed a suit for a declaration that he was the rightful successor.
He also filed a revision before the Government challenging the action taken under section 53 whereupon the Government stayed further proceedings and the respondent therefore withdrew his suit.
On June 5, 1962 the Government issued an order stating that as there were disputes about who was the rightful successor, until the Civil Court decided this question, it was necessary to make suitable arrangements for the proper administration of the Math and its endowments; it therefore appointed the respondent as interim Mahant subject to various conditions laid down in the order.
in view of the respondent 's attitude in the discharge of certain of his duties, on August 22, 1964, the Government passed an order directing him to show cause why the previous order of June 5, 1962, should not he cancelled.
The respondent filed a Writ Petition against this order claiming that he had succeeded to the office of Mahant in his own right and that no action could be taken by the Government under section 53 other appointing him as interim Mahant or cancelling such appointment , the High Court thereupon stayed further proceedings in pursuance of the notice pending the disposal of the writ petition.
The State Government then passed a further order on September 9, 1965, framing certain charge , against the respondent, calling for his explanations to them '.Ind.
at the same time, placing him under suspension.
The respondent filed a second writ petition challenging this new order whereupon the earlier writ petition was dismissed as infructious.
The High Court allowed the second writ petition.
892 It was condendcd on behalf of the appellant that (i) on the death of C D. on March 18,1962, a vacancy occurred in the of]fire of Mahant and there was a dispute between the respondent and two other persons each of whom claimed the right of succession; suits had been filed by each of those two persons to establish their claims and ,tithough these had been dismissed, an appeal was pending in respect of one of them; view of this the necessary conditions existed for invoking the power under section 53 for the proper management of the Math; furthermore, that inasmuch as the respondent had been appointed to manage the institution by the department under section 53 of the Act, and, as he, was continuing in such management by virtue of that appointment, the State had ample jurisdiction to pass orders either of suspending or even dismissing the respondent.
HELD: Dismissing the appeal; The High Court had rightly held that 'there was no jurisdiction for the exercise of the power under section 53 of the Act.
(i) Before section 53 can be invoked.
two conditions are necessary viz., (a) a vacancy must have occurred in the office of the trustee of a Math; and (b) there must be a dispute respecting the right of succession to such office.
In the present case although it. was possible to say that there was a dispute resperting the right of succession to the office of Mahant, the further condition that there must be a vacancy could not be said to have existed and the High Court had rightly accepted the claim of the respondent that by virtue of the Panchayat agreement of October 29, 1947, the compromise agreement of Julv 15, 1961, and the approval given to his succeession by the Akada Panchayat.
he had succeeded as Mahant March 18, 1962, on the death of C.D. 1898 B D. H] (ii) If the respondent had succeeded as Mahant on the death of C.D., in his own right.
the mere circumsta 'nce that the Government also passed an order appointing him as interim Mahant, later would not take away the right of the respondent to function as Mahant.
Once it is held that he was not holding the office exclusively on the basis of the order of the Government of June 5, 1962.
it follows that the appellant had no jurisdiction to.
pass an order, placing the respondent under suspension, as that virtually amounted 10.
a removal of the trustee of a Math which could only be done in accordance with the provisions of section 52 of the Act.
[899 G 900 A]


judgement:
Appeal No. 897 of 1964.
887 Appeal by special leave from the judgment and order dated November 14, 1961 of the Allahabad High Court in Civil Revi sion No. 686 of 1953.
Bishan Narain and M. I. Khowaja, for the appellant.
Niren De. Addl.
Solicitor General, M. V. Goswami and Yogeshawr Parshad, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
The respondent firm, K. B. Bass & Co., instituted a suit on 13th April, 1951, for rendition of accounts against the appellant firm, Messrs Hulas Rai Baij Nath, alleging that the appellant was the commission agent of the respondent and that the accounts between respondent as the principal and appellant as the agent had not been settled since the dealings be an in the year 1941 onwards.
Tentatively, a sum of Rs. 2,100/ was claimed in the plaint.
In the written statement filed on behalf of the appellant, the suit was contested on various grounds; but for the purposes of this appeal, we need mention the pleas taken in only two paragraphs 8 and I 1.
In paragraph 8, it was pleaded that one Lala Shiva Charan, a partner of the respondent firm, had come with a Munim in the month of Agahan last and account.
,; were fully explained to him as worked out upto Kartik Sudi 15.
Sambat 2007.
In that statement of account, a sum of Rs. 10,677 14 3 was found due to the appellant from the respondent and the representatives of the respondent asked for two months ' time for making the payment of the amount found due.
It was thus urged that there was no occasion for rendition of accounts and the plaintiff 's suit was not fit to proceed according to law.
In paragraph I 1, the appellant pleaded that "if, in the opinion of the court, the court has jurisdiction to try the suit and it is necessary to tender the accounts, it is equitable that a decree for the amount which may be found due to the contesting defendant, after rendition of accounts, together with costs and interest be passed in favour of the contesting defendant, after necessary court fee being realized from the defendant.
" A number of issues were framed and the case was taken up for recording of evidence on several dates of hearing.
Some of the issues were even given up during the 'trial.
Ultimately, on 5th May, 1953, after a considerable amount of evidence had been recorded, an application was presented on behalf of the plaintiff respondent, for withdrawal of the suit.
The round given for withdrawal was that the respondent firm was in the charge of one Bhagwat Charan who had colluded with the appellant and litigation was going on between the respondent and Bhagwat Charan for effecting partition of the business.
Consequently, it was difficult to prosecute the suit, No prayer was made for permission to file a fresh suit.
The appellant filed an application objecting to this application for with.
L9Sup.
CI/67 13 888 drawal.
The main ground taken for contesting this application for withdrawal was that, in a suit of this nature, it is permissible to pass a decree in favour of the defendant if, on accounting, something is found due to him against the plaintiff, and it followed that, if the defendant paid court fee on 'the amount which was found due to him from the plaintiff, his position became that of ,A plaintiff himself and he became entitled to have 'the accounting done and to obtain a decree.
It was urged that the plaintiff 's game in withdrawing the suit after protracted duration and considerable expenditure on the part of the defendant was to defeat this right of the defendant.
The trial Court held that the right of the plaintiff in this suit to withdraw under 0. 23, r. 1 of the Code of Civil Procedure was inherent and such a right could be exercised at any time before judgment.
All 'that the defendant could claim was an order for costs in his favour.
The Court, therefore, dismissed the suit, awarding costs of the suit to the appellant.
The appellant filed a revision in 'the High Court of Allahabad against this order, with a prayer that the High Court may set aside the order of the trial Court and remand the suit for trial according to law.
The High Court dismissed the application for revision; and the appellant has now come tip to this Court in 'this appeal by special leave.
The short question that, in these circumstances, falls for decision is whether the respondent was entitled to withdraw from the suit and have it dismissed by the application dated 5th May, 1953 at the stage when issues had been framed and some evidence had been recorded, but no preliminary decree for rendition of accounts had yet been passed.
The language of 0.23, r. 1.
sub r.
(I ), C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and, if no permission to file a fresh suit is , ought under sub r.
(2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject matter under sub r. (3) of that Rule.
There is no provision in the Code of Civil Procedure which requires the Court to refuse permission .to withdraw the suit in such circumstances and to compel tile plaintiff to proceed with it.
It is, of course, possible that different considerations may arise where a set off may have been claimed under 0. 8 C.P.C., or a counterclaim may have been filed, if permissible by the procedural law applicable to the proceedings governing the suit.
In the present case.
the pleadings in paragraphs 8 and II of the written statement.
mentioned above, clearly did not amount to a claim for set off.
Further, there could be no counterclaim, because no provision is shown under which a counter claim could have been filed in the trial Court in such a. suit.
There is also the circumstance that the application for withdrawal was moved at a stage when no preliminary decree had been passed for rendition of account and, in fact, the appellant 889 was still contending that there could be no rendition of accounts in the suit, because accounts had already been settled.
Even in para 11, the only claim put forward was that, in case the Court found it necessary to direct rendition of accounts and any amount is found due to the appellant, a decree may be passed in favour of the appellant for that amount.
In this paragraph also, the right claimed by the appellant was a contingent right which did not exist at the time when the written statement was filed.
Even if it be assumed that the appellant could have claimed a decree for the amount found due to him after rendition of accounts, no Such right can possibly be held to exist before the Court passed preliminary decree for rendition of accounts.
It is to be noted that in the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent.
The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the appellant, who was the agent of the respondent, did not claim any rendition of accounts from the respondent.
In 'these circumstances; at the stage of withdrawal of the suit, no vested right in favour of the appellant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit.
It is unnecessary for us to express ,my opinion as to whether a Court is bound to allow withdrawal of a suit to a plaintiff after some vested right may have accrued in the suit in favour of the defendant.
On the facts of this case.
it is clear that the right of the plaintiff to withdraw the suit not at all affected by any vested right existing in favour of the appellant and, consequently, the order passed by the trial Court was perfectly justified.
On behalf of the appellant, reliance was placed on the views expressed by a Division Bench of the Madras High Court in Seethai Achi vs Meyappa Chettiar and Others (1), where the Court held: "Ordinarily, when the Court finds no impediment to the dismissal of a suit after the announcement of the withdrawal of theclaim by the plaintiff, it will simply say that the suit is dismissed as the plaintiff has withdrawn from it.
An order as to costs will also be passed.
But several exceptions have been recognised to this general rule. ]n suits, for partition, if a preliminary.
decree is passed declaring and defining the shares of the several parties, the suit will not be dismissed by reason of any subsequent withdrawal by the plaintiff, for the obvious reason that the rights declared in favour of the defendants under the preliminary decree would be rendered nugatory if the suit should simply be dismissed.
So also in partnership suits and suits for 890 accounts, where the defendants too may be entitled to some reliefs in their favour as a result of the settlement of accounts, the withdrawal of the suit by the plaintiff cannot end in the mere dismissal of the suit.
" We do not think, as urged by learned counsel, that the learned Judges of the Madras High Court were laying down the principle that, in a suit for accounts, a defendant is always entitled to relief in his favour and that the withdrawal of such a suit by the plaintiff cannot be permitted to terminate the suit.
In the context in which that Court expressed its opinion about suits for accounts, it clearly intended to lay down that the dismissal of the suit on plaintiff 's withdrawal is not to be necessarily permitted, if the defendant has become entitled to a relief in his favour.
But such it right, if at all, can in no circumstances be held to accrue before a preliminary decree for rendition of accounts is passed.
In fact, in mentioning suits for partition and suits for accounts, the Court was keeping in view the circumstance mentioned in the earlier sentence which envisaged that a preliminary decree had already been passed defining rights of parties.
In any case, we do not think that any defendant in a suit for rendition of accounts can insist that the plaintiff must be compelled to proceed with the suit at such a stage as the one at which the respondent in the present case applied for withdrawal of the suit.
The appeal, therefore, fails and is dismissed with costs.

summary:
In a suit for rendition of accounts, the defendant pleaded that accounts, had been settled and he was to get certain money from the plaintiff; that there could be no rendition of accounts; and that if the court concluded that rendition of account was necessary, a decree for the amount which may be found due to the defendant with costs and interest may be passed in favour of the defendant after necessary court fee was realised from the defendant.
While no preliminary decree for rendition of accounts had 'been passed, and, in fact, the defendant was .still contending that there could be no rendition of accounts in the suit.
the plaintiff applied for withdrawal of the suit.
The defendant opposed the withdraw claiming that in a suit of this nature, his position became that of a plaintiff and he became entitled to have the accounting done and to obtain a decree, and the withdrawal after protracted duration was to defeat this right of the defendant.
The trial Court allowed the withdrawal, which was upheld by the High Court.
In appeal by the defendant, this Court HELD : At the stage of withdrawal of the suit, no vested right in favour of the defendant had come into existence and there was no ground on which the Court could refuse to allow withdrawal of the suit.
There is no provision in the Code of Civil Procedure which requires the Court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it.
It is, of course, possible that different considerations may arise where a set off may have been claimed under 0.8, C.P.C., or a counter claim may have been filed,, if permissible by the procedural law applicable to proceedings governing the suit.
In the present case, the pleadings did not amount to a claim for set off.
Even if it be assumed that the defendant could have claimed a decree for the amount found due to him after rendition of accounts, no such right can possibly be held to exist before the Court passed a preliminary decree for rendition of accounts.
In the case of a suit between principal and agent, it is the principal alone who has normally the right to claim rendition of accounts from the agent.
The agent cannot ordinarily claim a decree for rendition of accounts from the principal and, in fact, in the suit, the defendant, who was the agent of the respondent, did not claim any rendition of accounts from the plaintiff.
[888F H] 889B D] Seethai Achi vs Meyappa Chettiar and Others, A.I.R. 1934 Mad, 337.
refered to