judgement:
ivil Appeal No. 4496 of 1989.
From the Judgment and Order dated 15.4.1986 of the Madras High Court in Writ Appeal No. 411 of 1986.
C.K. Sucharita for the Appellant.
B. Dutta, Additional Solicitor General, (N.P.), P.P. Singh and Mrs. Sushma Suri for the Respondents.
The following Order of the Court was delivered: Delay condoned.
722 Leave granted.
Heard counsel for the parties.
The appel lant, who is a freedom fighter was refused the grant of pension under the Swatantrata Sainik Samman Scheme by the Ministry of Home Affairs, Union of India and hence the appellant approached the High Court for the issue of a writ of certiorarified mandamus.
The appellant 's writ petition was dismissed by a learned single Judge and the writ appeal against the said order was also dismissed by a Division Bench.
Hence the present appeal by special leave.
Initially, the appellant sought the grant of pension on the ground that as a freedom fighter he was kept in police custody for fifteen days and after conviction he underwent imprisonment for three and a half months.
Since under the Freedom Fighters Pension Scheme, a freedom fighter must have undergone a minimum period of inprisonment for six months for his participation in the freedom struggle in order to get pension under that head, the appellant was refused pension.
Thereupon, he applied for grant of pension on another ground viz. that he had suffered permanent loss of vision in his left eye due to brutal lathi charge by the police against freedom fighters.
The appellant 's claim of permanent loss of vision in the left eye was duly certified by Government doctors.
The District Collector, after making a detailed enquiry, certified the claim of the appellant as a bona fide one and recommended his case for grant of pen sion by letter dated 13.9.84.
Accepting the report of the Collector, the Deputy Secre tary to the Government of Tamil Nadu addressed respondent No. 2 as under: "It is seen from the verification report that Thiru R. Narayanan, the freedom fighter has been permanently physically handicapped due to his involvement in the freedom struggle of the nation.
In the circumstances stated above.
I am directed to request that the Government of India may kindly be moved to sanction Swatan trata Sainik Samman Pension to Thiru R. Narayanan of Salem District.
" In spite of the medical certificates issued by Govern ment doctors and the recommendations of the District Collec tor and the State Government for grant of pension under the S.S.S. Pension Scheme, the Ministry of Home Affairs declined to grant pension to the appellant on the ground that "it is not possible to grant Samman Pension in terms of permanent incapacitation, hence your case stands rejected" by communi cation dated 30.4.85.
It was in such circumstances the appellant 723 moved the High Court of Madras for the issue of a writ of certiorarilied mandamus but failed to meet with success.
On notice being issued to the respondents, a counter affidavit has been filed on behalf of the Union of India by Shri Kishan Chand, Under Secretary, Ministry of Home Af fairs.
In the counter affidavit it has been stated as fol lows: "The alleged incapacity of his losing vision of one eye as a result of lathi blow during the freedom struggle is not considered as permanent incapacitation as contemplated under clause 3(e) under para 4 of the Scheme under the heading 'who is eligible '.
A person is eligible for the pension under the Scheme if he became permanently incapacitated during firing or lathi charge which would mean a person, in such a case, who has suffered complete loss of eye sight." . . . . . . . "The case of the petitioner has been consid ered and correctly rejected as per the terms of Scheme, the petitioner not being eligible for pension.
Moreover, the petitioner has not been able to produce any documentary evidence from official records of the relevant period in support of his claim of loss of vision in one eye.
In any case, the Government having decided as a policy in not treating loss of one eye as permanent incapacitation, a dis criminatory decision cannot be taken in favour of the petitioner.
" Learned counsel for the appellant urged before us that the respondents are not justified in construing clause 3(e) of Para 4 of the Pensions Scheme to mean that the incapaci ty, besides being permanent should also be of a total na ture, and as such the denial of pension to the appellant under clause (e) is unjust.
Under the Scheme a freedom fighter is eligible to receive pension if he satisfies one of the following clauses viz. (a) Had suffered a minimum imprisonment of six months (three months in the case of women); (b) Had remained underground for more than six months provided (i) he was a proclaimed offender; or 724 (ii) he was a person on whom an award for arrest had been announced or; (iii) he was a person against whom detention order had been issued but not served.
(c) Had been interned in his home or externed from his district provided the period of internment/externment was for six months or more.
(d) Had his property confiscated or attached and sold due to participation in the freedom struggle; (e) Had become permanently incapacitated during firing or lathi charge; (f) Had lost his job (Central or State Govern ment) and been thus deprived of his means of livelihood on account of his participation in the National movement.
" We are now concerned only with the interpretation of clause (e) of the Scheme.
The clause only refers to perma nent incapacitaton due to firing or lathi charge and not to total incapacitation.
The respondents would however take the stand that the incapacitation must not only be permanent but it must also be a total one.
Hence according to them, since the appellant has not lost vision in both the eyes, the incapacitation, though permanent is only partial and not total and as such he is not eligible to grant of pension under clause (e) of the Scheme.
The interpretation given by the respondents to clause 3(e) of Para 4 cannot be sustained because the words used in the clause are permanently incapacitated ' and not 'perma nently totally incapacitated. ' If the stand of the respond ents is to be accepted, it would be opposed to the plain meaning of the words and result in addition of more condi tions to the clause what the framers of the Scheme have laid down.
It cannot be disputed, in view of the certificates issued to him by the Government doctors that the appellant has suffered permanent incapacitation of his left eye due to lathi blows received by him during the freedom struggle.
The question would then be whether that incapacity would satisfy the requirement of clause (e) or not.
As already stated, clause (e) refers only to permanent incapacitation and not total incapacitation of a permanent nature.
It therefore follows 725 that the measure of test laid down by the clause is the permanent nature of the incapacitation and not the total nature of the incapacitation.
If clause (e) is to be inter preted in the manner set out in the counter affidavit, it would follow that a freedom fighter who has lost a leg or an arm cannot claim payment of pension on the basis of perma nent incapacitation inasmuch as the incapacitation suffered by him is not of both the legs or both the arms.
It would be the height of injustice to freedom fighters, who are a diminishing lot, to construe clause (e) in the said manner.
Highly inequitable therefore it would be for the appellant to be denied pension under the Scheme because he has suf fered loss of vision only in one eye and not in both the eyes.
The respondents have failed to see that under the Scheme if a freedom fighter had undergone imprisonment or had been underground for a minimum period of six months he can be granted pension.
In such circumstances can it be contended that a person who has permanently lost his power of vision in one eye due to firing or lathi charge cannot be granted pension unlike a person who has been in prison for six months or had remained underground for six months in order to evade arrest.
The Scheme has been formulated with a view to acknowl edge the services rendered to the country by patriotic citizens during the freedom movement and who had suffered at the hands of the British Rulers in one way or the other and to compensate them in some measure for their sacrifices for the sake of the country.
The respondents are therefore not justified in refusing to grant pension to the appellant under clause (e) of the Scheme on the ground that the perma nent incapacitation suffered by him does not satisfy the requirements of clause (e) of the Scheme.
The learned Single Judge and the Division Bench of the High Court, while re jecting the Writ Petition and Writ Appeal filed by the appellant, have only taken into account the period of im prisonment undergone by the appellant and the said period falling short of the prescribed minimum of six months and have not considered the appellant 's claim for pension under clause (e).
Before concluding the judgment we may also refer to two other objections that have been raised by the respondents in their counteraffidavits.
The first one is that the appel lant 's claim for pension under clause (e) is an after thought since he had putforth such a claim only after his claim for pension on the ground of incarceration had been rejected.
The second objection putforth is that: "the petitioner has not been able to produce any docu 726 mentary evidence from official records of the relevant period in support of his claim of loss of vision in one eye.
" There is neither justice nor grace in the respondent 's putting forth such objections.
No one can really expect official records to have been preserved for a period of 40 years to prove the treatment given to the petitioner for the injuries sustained by him during the freedom struggle.
Hence the objection relating to non production of official records of the relevant period by the appellant to prove the sus tainment of injury by him deserves outright rejection as well as outright condemnation.
As regards the criticism that the appellant 's claim under Clause (e) appears to be an after thought, this too merits instantaneous rejection.
As we have already pointed out, the government doctors who have examined the appellant have found his claim of permanent incapacitation of the left eye to be true and the State Government authorities have, after due enquiry, accepted the bona fides of the appellant 's claim and recommended his case for grant of pension under the S.S.S. Scheme by the respond ents.
Consequently, merely because the appellant, perhaps out of ignorance of the several heads under which the claim of pension could be made, had applied initially for grant of pension under clause (e), it can never be said that the present claim of the appellant is an after thought.
For all the aforesaid reasons, we allow the appeal with costs of Rs.2,000 and quash the impugned order of the re spondents dated 30.4.1985, set aside the judgment of the High Court and issue a rule absolute in favour of the appel lant as prayed for.
P.S.S. Appeal allowed.

summary:
Clause 3(e) of Para 4 of the Swatantrata Sainik Samman Pension Scheme of the Government of India entitles a freedom fighter to pension for having become permanently incapaci tated during firing or lathi charge in the freedom struggle.
The appellant applied for grant of pension on the ground that he had suffered permanent loss of vision in his left eye due to brutal lathi charge by the police against freedom fighters.
His claim of permanent loss of vision in the left eye was duly certified by Government doctors.
The District Collector after making a detailed enquiry, certified the claim of the appellant as a bona fide one and recommended his case for grant of pension.
The State Government also appended their recommendation.
The Ministry of Home Affairs, however, declined to grant pension on the view that loss of vision in one eye did not amount to permanent incapacita tion.
A single Judge of the High Court dismissed appellant 's writ petition and a writ appeal against the said order was also dismissed by a Division Bench.
In this appeal by special leave, it was contended for the respondents that the incapacitation under clause 3(e) must not only be permanent but it must also be a total one, and since the appellant had not lost vision in both the eyes the incapacitation, though permanent, was only partial and not total; and that the petitioner had not been able to produce any documentary evidence from official records of the relevant period in support of his claim.
721 Allowing the appeal, HELD: 1.1 The words used in clause 3(e) of Para 4 of the Pension Scheme are "permanently incapacitated" and not 'permanently totally incapacitated".
The measure of test thus laid down by the clause is the permanent nature of the incapacitation and not the total nature of the incapacita tion.
If clause (e) were to be interpreted to include total incapacitation then a freedom fighter who has lost a leg or an arm cannot claim payment of pension on the basis of permanent incapacitation inasmuch as the incapacitation suffered by him is not of both the legs or both the arms.
It would be height of injustice to freedom fighters to construe clause (e) in the said manner.
1724F; 725A B] 1.2 In view of the certificate issued to him by the Government doctors that the appellant had suffered permanent incapacitation of his left eye due to lathi blows received by him during the freedom struggle and the State Government authorities having, after due enquiry, accepted the bona fides of the appellant 's claim and recommended his case for grant of pension the respondents were not justified in refusing to grant him pension under clause (e) of the Scheme.
[724G, 726C, 725E] 2.
No one can really expect official records to have been preserved for a period of 40 years to prove the treat ment given to a freedom fighter for the injuries sustained by him during the freedom struggle.
Hence, the objection relating to non production of official records of the reley ant period by the appellant to prove the sustainment of injury by him .deserves outright rejection as well as out right condemnation.
[726B C]


judgement:
ivil Appeal No. 3241 of 1979 etc.
From the Judgment and Order dated 24.7.1979 of the Allahabad High Court in Civil Misc.
Writ Petition No. 11370 of 1975.
M.V. Goswami and Dr. B.S. Chauhan for the Appellant.
Prithvi Raj, R.S. Rana and Ashok K. Srivastava for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
In these appeals by special leave, the appellants assail the interpretation given to certain provi sions of Section 4A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 as amended by U.P. Acts 18 of 1973 and 20 of 1976 (hereinafter referred to as the Act) by the Allahabad High Court.
Conflicting interpretations had been given by single judges on the relevant provisions and hence a reference was made in Kallu vs State of U.P. & Ors., [1979] A.L.I. 1113 to which connected writ petitions were tagged on to a Division Bench for an authoritative pro nouncement on two questions viz. 569 "1.
What is the true scope and effect of sub clause (b) of clause 'firstly ' of Section 4 A? 2.
In particular, whether the said sub clause would take in the entire plot only if two crops were grown in every inch of the land covered by it." The Division Bench, in its reported judgment Kallu vs State of U.P., has discussed the matter and answered the two questions as under: "Clause 'firstly ' of Section 4 A requires the Prescribed Authority to form an opinion as to whether, during the material Fasli years, irrigation facilities were available from such sources as are enumerated therein in respect of any crop.
The relevant consideration is merely the existence of irrigation facilities and not its actual utilisation.
This is under standably so because if facilities are avail able and yet a tenure holder neglects to make use of them there is no justifiable reasons why he should have an advantage over those who have been up and doing while he has chosen to be idle and asleep.
We have already held that 'land ' and 'plot ' cannot be equated.
If irri gation facilities of the nature mentioned in sub clause (a) of clause 'firstly ' of Section 4 A are available only to a part of the total area of which a plot is comprised it cannot be held that irrigation facilities were available for the entire plot.
In such cases, the Pre scribed Authority on a correct interpretation of subclause (a) of clause 'firstly ' will have to treat only that area of a tenure holder 's plot as 'irrigated land ' to which irrigation facilities were available.
We are consequently of the opinion that if a large plot consist partly of an area to which irrigation facili ties are available as also some to which irrigation facilities are not available only that area thereof will be covered by sub clause (a) of clause 'firstly ' to which irri gation facilities were in fact available.
Of course 'usar land ' as defined in the Act and determined in the manner provided by the Rules will have to be excluded even though irriga tion facilities may have been available to it.
Similarly other varieties of land exempted under Section 6 will have to be excluded from consideration.
As far as sub clause (b) of clause 'firstly ' is concerned, the 570 requirement is 'that at least two crops were grown in such land in any one of the aforesaid years ' (emphasis supplied) The expression such land, it is obvious, means land referred to in sub clause (b) is 'in ' and not 'over ' and consequently if the crops were grown in any portion of the area of a plot to which irriga tion facility was available under sub clause (a) of clause 'firstly ', the entire area to which irrigation facility was available shall have to be treated as land in which two crops were grown.
The requirement of sub clause (b) of clause 'firstly ' of Section 4 A is not that every inch of the land to which irrigation facilities were available in the material years should have grown double crops.
To take a hypothetical example, if to a plot of land consisting of 50 acres, irrigation facilities were available to an area of 20 acres and on any portion of such 20 acres at least two crops were grown in any of the years 1378 Fasli to 1380 Fasli, the entire area of 20 acres to which irrigation facilities were available will have to be treated as irrigated land for the purpose of sub clause (b) of clause 'firstly ' of Section 4A.
The word 'in ' is one of common use.
If it is said that an individual lives in a particular building or locality it does not convey that he is in occupation of the entire building or locality.
Similarly when it is said that one has grown threes in a piece of land or raised crops therein, it does not signify that he has grown trees or raised crops over the entire land.
When the legislature by amending the Act made availability of irrigation facilities the basis for determination of the ceiling area and surplus land instead of the quality of the land it must have had some purpose in mind.
During the last decade farm technology and agricultural science have made rapid progress and human ingenuity coupled with labour and application of scientific know how has suc cessfully converted even deserts into green belts provided water was available.
Applica tion of scientific methods has made possible improvement in soil quality and its fertility.
It is not unreasonable to infer that when the Act was amended the legislature intended that if any land has irrigation facilities avail able to it and is not 'usar land ' and in some part of it 'dofash ' crops have in fact been raised in any of the relevant 'fasli ' years, a willing and hard working tenure holder by application of modern agricultural appliance and fertilisers can improve the productivity of the land and consequently no premium should 571 be available to those who fail to do so.
In this view of the matter, to take a concrete case to compute the area of a tenure holder 's irrigated land ' under clause 'firstly ' of Section 4A Prescribed Authority must find out the area of land to which irrigation facili ties of the prescribed nature were available for any crop during the relevant Fasli years, exclude therefrom 'usar land ' etc., and if it finds that over any part of such area at least two crops were grown it must hold the entire area of 'irrigated land '.
Such an interpreta tion resolves the problem which the Prescribed Authority would be faced with in determination of the 'irrigated land ' of a tenure holder where records reveal the growing of the crops on varying areas of his holding during the material Fasli Years." "For the reasons given, our answer to question No. 1, passed by the learned single judge is as follows: If in any portion of an area of plot or plots to which during the Fasli Years 1378 to 1380 irrigation facilities were available and over any portion of such area double crop had in fact been sown, the entire area 'of the plot to which irrigation facilities were available will be covered by clause 'firstly ' of Section 4 A since both the condition laid in subclause (a) and (b) will be complied with.
" "Our answer to question No. 2 is in the nega tive.
In as far as a contrary view has been taken with regard to the scope of sub clauses (a) and (b) of clause 'firstly ' of Section 4 A of the Act in Gasi Ram vs State of U.P., (supra) and similar opinion expressed in Surrinjpal Singh vs State of U.P., and Sitaram Tyagi vs State of U.P., (Writ No. 8115 of 1975 decided on 22nd September, 1978, 1978 AWC SCC 114 page 90 have not been correctly decided.
" Thereafter, the writ petitions were placed before single judges for decision on merits and the petitions came to be dismissed.
In Civil Misc.
Writ Petition No. 11370 of 1975 it was held that plot Nos.
595 and 224 belonging to the peti tioner had been rightly treated as irrigated land in their entirety for purposes of computation under the Act.
Against that judgment, Civil Appeal No. 3241 of 79 has been 572 filed.
In the other appeal which arises from the dismissal of Civil Misc.
Writ Petition No. Nil of 84, leave has been granted confined only to Plot No. 466.
The writ petition was dismissed following the ratio in Kallu vs State of U.P., (supra).
Though the appeals are directed against the dis missal of the two writ petitions, the real challenge in the appeals is to the ratio laid down by the Division Bench in Kallu vs State of U.P., (supra).
The appellants dispute the correctness of the view taken by the Division Bench and would contend that in order to classify a land as irrigated land, there should be evidence of 'assured irrigation and secondly the two crops in a fasli should have been raised on the entire extent of the land and not in a portion of the land alone.
The interpretation of the terms of Section 4 A of the Act assume importance because 'ceiling area ' and 'surplus land ' under the Act have to be computed on the basis of the 'irrigated land ' held by a tenure holder.
Originally, the 'ceiling area ' under the Act was to be determined on the basis of 'fair quality land '.
However, by amendments intro duced by U.P. Act 18 of 1973 and U.P. Act 20 of 1976, 'cei ling area ' and 'surplus land ' are to be determined with reference to the assured irrigation facilities available to land held by a tenure holder.
We may now have a look at the relevant portions of Section 4 A of the Act.
They read as under: "4 A. Determination of irrigated land.
The prescribed authority shall examine the relevant khasras for the yeas 1378 Fasli, 1379 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary, and thereupon if the prescribed authority is of opinion firstly, (a) that irrigation facility was available for any land in respect of any crop in any one of the aforesaid years; by (i) any canal included in Schedule No. 1 of irrigation rates notified in Notification No. 1579/W/XXIII 62 W 1946, dated March 31, 1953, as amended from time to time; or 573 (ii) any lift irrigation canal; or (iii) any State tube well or a private irriga tion work; and (b) that at least two crops were grown in such land in any one of the aforesaid years; or secondly, that irrigation facility became available to any land by a State Irrigation work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling of Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or thirdly, (a) that any land is situated within the effective command area of a lift irriga tion canal or a State tube well or a private irrigation work; and (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purpose of this Act.
EXPLANATION I. (Omitted) EXPLANATION II.
(Omitted) EXPLANATION III.
(Omitted) On a reading of Section 4 A, it may be seen that the Legislature has prescribed different kinds of tests on the basis of which the authorities have to determine whether a land is irrigated land or not for the purpose of determining the ceiling area of a tenure holder.
The two broad tests are (1) availability of irrigation facilities and (2) the factum of raising or the capability of the soil for raising atleast two crops in an agricultural year.
We may now examine the merits of the appellant 's conten tions.
The statute has been enacted "to provide for the imposition of ceiling on land holdings in Uttar Pradesh and certain other matters connected ,therewith.
" The preamble to the Act reads as under: 574 "Whereas it is necessary in the interest of the community to ensure increased agricultural production and to provide land for landless agricultural labourers and for other public purposes as best to subserve the common good.
And whereas a more equitable distribution of land is essential.
And, therefore, it is expedient to provide for the imposition of ceiling on land holdings in Uttar Pradesh for the aforementioned purposes.
" The Act is thus a piece of social legislation for achieving the several objectives set out in the preamble.
In order to give greater thrust to the objects underlying the Act, the Legislature has changed the basis for reckoning the ceiling area from that of 'fair quality land ' to that of "assured irrigation facilities" available to a land.
Coming now to the specific provisions of Section 4 A dealt with by the High Court, it may be seen that in order 'to form an opinion whether irrigation facility was avail able for any land from one of the sources mentioned in sub clauses (i), (ii) and (iii) in respect of any crop in anyone of the aforesaid years viz., Faslis 1378 to 15380, the Prescribed Authority is enjoined to examine the Khasras for those three Fasli years, the village map, other relevant records considered necessary and also to make a local in spection whenever it is necessary.
Hence there is no scope for contending that a Prescribed Authority may form his opinion without reference to relevant material, in an arbi trary or capricious manner, to the detriment of a tenure holder as regards the availability of assured irrigation facility to a land from one of the enumerated sources.
Consequently, there is no merit in the first contention of the appellant that in addition to the materials and records set out in the sub clause, there must be independent evi dence of assured irrigation facility before ever a Pre scribed Authority can form an opinion about a land having assured irrigation facility.
As regards the second contention relating to sub clause (b), the clause refers only to the growing of atleast two crops in a land found to be having assured irrigation facil ity in any one of the relevant years.
The sub clause does not contemplate the raising of two crops on the entire extent of the land.
The classification has to be made with reference to the potentiality of the land to yield two crops in one Fasli year and not on the basis of the actual raising of two crops on the entire 575 extent of the land.
Therefore, sub clause (b) cannot be read so as to mean that two crops should have been grown on the entire extent of a land having irrigation facility for classifying the land as 'irrigated land ' as it would have the effect of limiting the operation of the sub clause contrary to the legislative intent.
The High Court has taken the view that when the Legislature made amendments to the Act, it must have had in mind the advancement that has been made in agricultural science and farm technology and by reason of it a tenure holder can overcome hurdles and raise two crops in a year over the entire extent of a land having irrigation facility.
We need not go as far as that.
The normal presumption, in the absence of contra material, would be that the quality and content of soil of a land would be uniform throughout its extent.
Such being the case, if a tenure holder is able to raise two crops in a year in a portion of the land, then it would be logical to hold that the other portions of the land also would have the capacity to yield two crops if the tenure holder had utilised the entire extent to raise two crops instead of utilising a portion of the land alone.
The raising of two crops even on a portion of the land will prove, in the absence of material to show poor quality of soil in portions of the land due to salinity etc.
, the uniform nature and content of the soil of the entire land.
The High Court was therefore right in holding that the Prescribed Authority can treat a land, having assured irrigation facility, as 'irrigated land ' if the tenure holder had raised two crops even m a portion of the land during anyone of the prescribed years and that it is not necessary that the raising of the two crops should have been made on the entire extent of the land in order to classify the land as 'irrigated land '.
As the learned single judges have dismissed the writ petitions on the ground that the lands in question satisfy the tests laid down by the Division Bench in Kallu vs State of U.P., (supra), we do not find any merit in these appeals.
Consequently, both the appeals are dismissed but there will be no order as to costs.
R.S.S. Appeals dis missed.

dataset_name: IN-Abs

summary:
The appellants had Fried separate writ petitions in the High Court challenging the basis for determination of 'irr igated land ' under section 4A of the U.P. Imposition of Ceiling on Land Holdings Act, 1960.
In view of conflicting interpretations given earlier by Single Judges of that High Court, a reference was made to the Division Bench in the case of the petitioner/appellant Kallu Following the ratio laid down by the Division Bench in Kallu vs State of U.P., the writ petitions were dismissed.
Before this Court, the appellants disputed the correct ness of the view taken by the Division Bench, and contended that in order to classify a land as irrigated land, there should be evidence of 'assured irrigation ' and, secondly, that the two crops in a Fasli year should have been raised on the entire extent of the land and not in a portion of land alone.
Dismissing the appeals, this Court, HELD: (1) The Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 is a piece of social legislation for achieving the several objectives set out in the preamble.
In order to give greater thrust to the objects underlying the Act, the Legislature has changed the basis for reckoning the ceiling area from that of 'fair quality land ' to that of 'assured irrigation facilities ' available to a land.
[574C D] (2) On a reading of section 4A, it may be seen that the Legislature has prescribed different kinds of tests on the basis of which the authorities have to determine whether a land is irrigated or not for the purpose of determining the ceiling area of a tenure holder.
The two broad tests are (1) availability of irrigation facilities and (2) the factum of raising or the capability of the soil raising at least two crops in an agricultural year.
[573F G] 568 (3) There is no merit in the contention that in addition to the materials and records set out in the section there must be independent evidence of assured irrigation facility before ever a Prescribed Authority can form an opinion about a land having assured irrigation facility.
[574F] (4) Sub clause (b) of section 4 A cannot be read so as to mean that two crops should have been grown on the entire extent of a land having irrigation facility for classifying the land as 'irrigated land ' as it would have the effect of limiting the operation of the sub clause contrary to the legislative intent.
[575A] (5) The classification has to be made with reference to the potentiality of the land to yield two crops in one Fasli year and not on the basis of the actual raising of two crops on the entire extent of the land.
[574H] (6) The raising of two crops even on a portion of the land will prove in the absence of material to show poor quality of soil in portions of the land due to salinity etc.
the uniform nature and content of the soil of the entire land.
[575D]


judgement:
ivil Appeal No. 4108 of 1982.
From the Judgment and Order dated 23.12.
1981 of the Andhra Pradesh High Court in C.R.P. No. 3547 of 1981.
P.P. Rao, R. Venkataramani, V.G. Pragasam and Satya Mitra Garg for the Appellant.
P. Krishna Rao, B. Krishna Prasad and K.K. Gupta for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This is a tenant 's appeal by special leave against the order of eviction from a commercial prem ises at Gudur in Andhra Pradesh.
The Controller, the Appel late Authority and the High Court have concurrently found that the appellant was a wilful defaulter liable to be evicted.
Under document No. 1327 of 1969, a thirty year lease with an annual stipulated rent was granted in favour of one Narayanan, a partner of the hotel, for a term of 30 years beginning from 9th of 727 September, 1961.
For the first 15 years rent was stipulated at the rate of Rs. 150 per month and for the second span of 15 years rent was to be escalated to Rs.200 per month, and the tenant undertook to pay the rent by the 9th of every succeeding month.
The lease deed further stipulated: "Out of the advance of Rs.6,500, the second party shall deduct every month Rs.75 from the stipulated rent upto Rs. 1,500 and the balance of Rs.5,000 shall be paid back to the second party by the first party under valid receipt after the expiry of the lease period." Thus, by March 1971 the amount of Rs. 1,500 had been adjust ed and the landlord held Rs.5,000 refundable to the tenant.
Action for eviction was initiated on the plea that the tenant had failed to pay the rent for a certain subsequent period.
Courts below debated the main perhaps the only contention as to whether the plea of payment which the tenant advanced had been established.
On behalf of the landlord the account books of the Hotel were placed and the benefit of section 34 of the Evidence Act was claimed.
Lot of attention was bestowed in the Courts below on the question as to whether the oral evidence along with the presumption arising under section 34 of the Evidence Act had not established the position that no payment as claimed had been made.
On the finding that payment had not been established, eviction was ordered.
Two contentions have been advanced by Mr. P.P. Rao appearing for the appellant to maintain that the order of eviction was contrary to law and cannot be sustained.
Reli ance is placed on section 7 of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, (hereafter 'Act ') in support of the stand that the sum of Rs.5,000 which lay as advance in the hands of the respondent landlord was either refundable to the tenant or adjustable against rent and if out of the sum of Rs.5,000 the arrears were available to be adjusted, the tenant was not at all in ' default.
It has next been contended that the lease of 1969 was for a term of 30 years certain and eviction has been claimed against a contractual tenant during the subsistence of the lease.
Admittedly, the lease does not have a forfei ture clause so as to bring the matter within the ambit of section 111(g) of the Transfer of Property Act.
The application for eviction, a copy of which is available on the record (at p. 10 of the second paper book), refers to a notice in para graph 7 in the following terms: 728 "The petitioners caused a registered notice through their counsel dated 28.10.1973 to the respondent demanding the rent due and also for the eviction from the schedule mentioned premises since the respondent has become a wilful defaulter.
The respondent received the notice and has not chosen to give any reply.
" It, therefore, follows, appellant 's counsel has contended, that the lease remained unter minated and the right created under the lease cannot be taken away by filing an application for eviction on the plea of wilful default in the matter of payment of rent.
Section 7 of the Act as far as relevant, provides: "7 (2) Where the fair rent of a building has not been so fixed (a) the landlord shall not, after the commencement of this Act claim, receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent: Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one month 's rent by way of advance; (b) save as provided in clause (a), any sum paid in excess of the agreed rent whether before or after the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after such commencement, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord.
(3) Any stipulation in contravention of sub section (1) or sub section (2) shall be null and void.
" The lease deed described the amount of Rs.6,500 as advance at four places and stipulates adjustment of a sum of Rs. 1,500 out of it and the balance amount of Rs.5,000 to be paid back to the tenant after the expiry of the lease peri od.
The provio to section 7(2)(a) prohibits payment of any sum exceeding one month 's rent by way of advance and sub section
(3) declares the stipulation for payment of rent in advance beyond that of one month as null and void.
729 The receipt of Rs.6,500 by the landlord was, therefore, contrary to law and opposed to public policy.
A sum of Rs. 1,500 has already been adjusted in the manner indicated in the petition for eviction and the fact that a sum of Rs.5,000 was still held by the landlord was admitted there in.
On the facts appearing on the record it is thus clear that the landlord held a higher amount than the rent due on the date when the petition for eviction was filed on the plea of wilful default of payment of rent.
The stipulation of holding the excess amount of RS.5,000 free of interest to be refunded under a valid receipt after the expiry of the lease period is the null and void stipulation and the amount of Rs.5,000 in the hands of the landlord was an amount held by the landlord on account of the tenant on the date of filing of the petition for eviction.
This Court in Mohd. Salimuddin vs Misri Lal & Anr., ; had occasion to deal with a more or less similar situation arising under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947.
There, a sum of Rs.2,000 had been advanced by the tenant to the landlord stipulating adjustment of the loan amount_against the rent which accrued subsequently.
The landlord asked for eviction on the ground of arrears of rent by filing a suit.
The trial court had decreed the suit but the lower appellate court reversed the decree by holding that the tenant was not in arrears of rent since the amount advanced by the tenant was sufficient to cover the landlord 's claim of arrears.
The High Court, however, vacated the appellate judgment and restored that of the trial court holding that the loan amount by the tenant was in violation of the prohibition contained in section 3 of the Bihar Act and the tenant was in arrears of rent and liable to be evicted.
This Court set aside the judgment of the High Court by saying: "The view taken by the High Court is unsus tainable inasmuch as the High Court has lost sight of the fact that the parties to the contract were unequal.
The tenant was acting under compulsion of circumstances and was obliged to succumb to the will of the land lord, who was in a dominating position.
If the tenant had not agreed to advance the loan he would not have been able to secure the tenan cy.
" The Court referred to the doctrine of pari delicto and held that the same was not applicable against the tenant.
In M/s. Sarwan Kumar Onkar Nath vs Subhas Kumar Agarwalla, 730 ; , Salimuddin 's case came for consideration.
This was also a dispute under the Bihar Act where two months ' rent had been paid in advance by the tenant to the landlord on the stipulation that the advance amount would be liable to be adjusted towards arrears of rent, whenever necessary or required.
The Court held that the tenant could not be evicted on the ground of default in the payment of rent for two months even if the tenant failed to ask the landlord to make adjustment of the advance amount in the absence of any agreement requiring the tenant to inform the landlord as to when such adjustment is to be made.
This Court said that when the Rent Act prohibited the landlord to claim such advance payment, the tenant could not be consid ered to be a defaulter and the doctrine of pari delicto was not attracted to such a fact situation.
Mr. Rao building upon the ratio of these two decisions rightly contended before us that when the landlord had Rs.5,000 on tenant 's account with him which he was holding for years without paying interest and against the clear statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent.
In view of the fact that the stipulation that the amount would be refundable at the end of the tenancy is null and void under section 7(3) of the Act, the amount became payable to the tenant immediately and the landlord with Rs.5,000 of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for some months.
The second contention advanced before us is equally weighty.
The lease being for a term of 30 years is to expire in September, 1999.
As we have already said, the lease did not stipulate a forfeiture clause and in the absence of a forfeiture clause in the lease leading to termination by forfeiture, the contractual tenancy was subsisting under the provisions of the Transfer of Property Act and there could not be any eviction from such a tenancy.
We are somewhat surprised to find that these irresisti ble defences were not advanced in the Courts below and the course of the litigation was confined to a consideration of section 34 of the Evidence Act.
The appeal is allowed, the concurrent decision of all the three Courts below directing the tenant to be evicted are set aside and the application for eviction is dismissed with costs throughout.
Hearing fee in this Court is assessed at Rs.3,000.
P.S.S. Appeal allowed.

summary:
The proviso to section 7(2)(a) of the Andhra Pradesh Build ings (Lease, Rent and Eviction) Control Act, 1960 prohibits payment of any sum exceeding one month 's rent by way of advance, clause (b) thereto makes any such sum refundable or at the option of the tenant otherwise adjustable, and sub section
(3) declares the stipulation for payment of rent in advance beyond that of one month as null and void.
The appellant tenant took the demised premises on a thirty year lease beginning from September 9, 1969 and paid a large amount as advance, only a part of which was adjust able towards the stipulated rent in the subsequent months and the balance was to be paid back under a valid receipt after the expiry of the lease period.
The lease deed did not have a forfeiture clause.
The respondent land lord initiated action for eviction in October 1973 on the plea that the tenant had failed to pay rent for a certain subsequent period.
The tenant advanced the plea of payment.
The land lord placed the account books of the appellant and claimed the benefit of section 34 of the Evidence Act.
All the courts below found that the payment as claimed had not been estab lished.
In this appeal by special leave, it was contended that the balance of advance which lay in the hands of the re spondent landlord was either refundable to the tenant or adjustable against rent under section 7 of the Act, and if out of that sum the arrears were available to be adjusted the tenant was not at all in default; that the lease of 1969 being for a term of thirty years certain, eviction could not be claimed against a contractual tenant during the subsist ence of the lease, and that the lease did not have a forfei ture clause so as to bring the matter within the ambit of section 111(g) of the Transfer of Property Act.
726 Allowing the appeal by special leave, HELD: 1.
The stipulation in the lease deed that the amount of advance would be refundable at the end of the tenancy was null and void under section 7(3) of the Act.
The said amount became payable to the tenant immediately.
It was thus held by the landlord on account of the tenant on the date of filing of the petition for eviction.
The tenant could not, therefore, be considered a defaulter for a smaller amount by not paying the rent for some months.
[730D, 729BC, 730E] Mohd. Salimuddin vs Misri Lal & Anr., ; and M/s. Sarwan Kumar Onkar Nath vs Subhas Kumar Agarwalla, ; referred to.
The lease being for a term of thirty years was to expire in September, 1999.
The deed did not stipulate a forfeiture clause.
In the absence of such a clause the contractual tenancy was subsisting under the provisions of the Transfer of Property Act.
There could not, therefore, be any eviction from such a tenancy.
[730F]


judgement:
vil Appeals No. 26A42648 of 1987: From the Judgment and Order dated 7.5.
1987 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, Order No. 377 to 381/1987 D in Appeal Nos.
CD/SA/A Nos. 2451, 1989 to 1991 & 1992/86 D. V.C. Mahajan R.P. Srivastava and P. Parmeswaran for the Appellant.
T.A. Ramachandran and Mrs. J. Ramachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are four appeals by the Collector of Customs in the cases of M/s. Western India Plywood Mfg. Co. Ltd. and Kanara Wood & Plywood Industries Ltd. (herein after referred to as 'the assessee ').
A very short common point is involved in these appeals.
The assessee imported logs of timber from Burma.
Under the , timber is chargeable to cus toms duty at 60%.
(This we shall call the basic customs duty.) The relevant entry in the Schedule to the is under heading No. 44.01 which includes "wood and timber".
The Government had, however, issued a notification under section 25(1) of the exempting timber imported from certain countries of which Burma is one.
The result was that the basic customs duty payable by the assessee in respect of its imports we shall call this the effective basic duty was nil.
The assessee, however, was liable to pay an additional duty of customs in respect of its imports.
This additional duty may be referred to as the auxiliary duty of customs.
The levy of this duty is governed by the terms of notification No. 265 dated 8.12.1982 and its suc cessor notifications Nos.
59 of 1983 and 126 of 1984.
782 The last of these reads as follows: TABLE section No. Description of goods Rate (1) (2) (3) 1 Goods in respect of which Forty * per cent the rate of duty of customs of the value of specified in the said First the goods as Schedule, read with any determined in relevant notification of the accordance with Government of India for the the provisions time being in force is 60 per of Section 14 cent ad valorem or more.
of the (52 of 1962).
Goods in respect of which the Thirty * per cent rate of duty of customs of the value of specified in the said First goods as deter Schedule, read with any relevant mined in accord notification of the Government ance with the of India for .the time being in provisions of force is nil or less than 60 per Section 14 of cent ad valorem.
(52 of 1962) * These percentage are 30% and 20% in the notification of 1982 and 35% and 25% in the notification of 1983.
The terms of the notifi cations are otherwise identical.
Explanation: For the purpose of S1.
Nos. 1 and 2 in the above Table, the expression "the rate of duty of customs specified in the said First Schedule, read with any relevant notification of the Government of India for the time being in force", in relation to any article liable to two or more different rates of duty by reason of the country of origin of that arti cle, means that rate of duty which is the highest of those rates.
" The assessee cleared the goods by paying an auxiliary duty at 783 40%.
Subsequently, however, the assessee seems to have felt that its case falls under section No. 2 of the above notification and that it should have paid an auxiliary duty of only 30% and not 40%.
It, therefore, applied to the respondent for a refund of the excess duty allegedly paid by it.
This claim was rejected by the Assistant Collector.
However, on appeal, the Collector of Customs (Appeals) held that the assessee was entitled to the refund claimed and this order has also been confirmed by the Customs, Excise and Gold Control (Appellate) Tribunal (CEGAT).
The Collector of Customs has preferred these appeals.
The order of the Tribunal in the appeals preferred by the present respondent was a very short order in which the Tribunal followed its earlier decision in the case of M/s. Indian Plywood Company Limited, Bombay.
We have been taken through the decision of the Tribunal in the said case which is reported in (1987) 29 ELT page 559.
We have, therefore, had the benefit of the full reasoning of the Tribunal for reaching its conclusion.
We are of opinion that the Tribunal has erred in its interpretation of the notification set out above and that the assessee 's case is clearly covered by the explanation in the notification.
It is true that the main part of the notification provides for an auxiliary duty at 40% in cases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with any relevant notifica tion) is 60% or above and an auxiliary duty at 30% in cases where such effective basic rate is nil or less than 60%.
If the notification had stopped here, the assessee would have been perfectly within its rights to claim that the auxiliary duty payable by it would only be 30% because the effective basic rate in its case is nil.
However, the explanation has made an inroad into this simple rule.
It has provided that where there are two (or more) effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country of origin of the goods imported, then the auxil iary duty payable will be the higher of the two (or the highest of the) rates.
In the present case, when timber is imported from Burma and the other countries specified in the notification or notifications under section 25(1), the rate of basic duty is nil but if the goods are imported from other countries, the notification does not apply and a basic duty of 60% would be leviable under the entry in the First Schedule.
The result, therefore, is that when we read the rates specified in the First Schedule along with the rele vant notifications in respect of a particular article, namely, timber, we find that the effec 784 tive basic duty is leviable on it at two rates and this differentiation in rates is attributable to the country of origin in regard to the import.
Hence the explanation squarely comes into operation and the assessee will have to pay auxiliary duty by reference to the higher of the two rates of the effective basic duty, namely, 60%.
The contention on behalf of the respondent and this is also the view taken by the Tribunal appears to be that the explanation comes into operation only if there is more than one notification granting concession or exemption in respect of basic duty providing for different rates in respect of articles imported from different countries.
We are unable to see any warrant for reading any such restriction into the terms of the explanation.
As we see it, the terms of the explanation are perfectly clear.
It is this: that if, in respect of any article, there are :two or more effective basic duties in operation and the difference is referable to the country from which the article is imported, then the highest of the effective rates will govern the levy of auxiliary duty.
It does not matter whether the difference in the rates is because the First Schedule applies in certain cases and a concession notification applies in other cases.
Clearly, the use of the words "rate . . specified in the First Schedule, read with any relevant notification" does not necessarily require that there should be such a notifi cation; they mean: "the rates specified in the First sched ule read with the relevant notification, if any".
If there is no notification the rate specified in the First Schedule has obviously to be taken into account for purpose of the notification we are now concerned with.
It is.
therefore, not necessary that the differentiation referred to in the explanation should arise on account of the existence of more than one notification altering the basic duty set out in the Schedule.
Sri Ramachandran contended that the construction sought to be placed by us would lead to this anomaly that a person will have to pay an auxiliary duty even though the effective basic duty is nil.
This argument is without force for two reasons.
In the first place that is the direct result of the explanation and, therefore, if that is the clear intention of the statutory instrument, the anomaly cannot be helped.
The second and perhaps more appropriate answer to Sri Rama chandran 's contention is that the explanation is based on good reason.
It will be seen that in a case of this type as well as in cases governed by more than one notification, which make a distinction in the rate of duty based on the country of origin, there will be different importers import ing goods but paying basic duty at different rates.
The intention of the statute could well be that while for pur poses of basic duty a 785 differentiation in rates may be justified depending upon the country of origin that consideration would be totally irrel evant in the context of auxiliary duty.
In the context of auxiliary duty, it is .equitable that all importers should pay the additional duty at the same rate and that they should have no advantage or disadvantage inter se.
A grant of concession in the matter of auxiliary duty as well would result in widening the gulf between one importer and another and also that between such an importer and the local trader.
The provision, therefore, seems to have been deliberately enacted to achieve this result which is not really an anoma ly as described by Sri Ramachandran.
Sri Ramachandran sought to make same point on the use of the word 'article ' in the notification.
We do not, however, see any significance in the use of this word which has any relevance to the point at issue.
The word 'article ' is used because though a number of articles may be included in one item in the First Schedule, the relevant notification may not govern all of them and it may be restricted.only to some out of the many articles mentioned in the Schedule.
The notification and the explanation, therefore, make it clear that the auxiliary duty has to be calculated with reference to each article based on the effective basic rates of duty applicable to such article in terms of the First Schedule read with any relevant notification under section 25.
For the reasons mentioned above, we are of opinion that the auxiliary duty paid by the assessee was perfectly in order and that its refund applications are not maintainable.
We, therefore, set aside the order of the Tribunal and the Collector (Appeals) and restore the order of the Assistant Collector refusing refund to the assessee.
The appeals are, therefore, allowed.
In the circumstances of the case, we make no order as to costs.
N.P.V. Appeals allowed.

summary:
Under Heading No. 44.01 of Schedule to the , timber was chargeable to customs duty (basic effective duty) at 60%.
However, under a Notification issued by the Government under Section 25(1) of the , timber imported from certain countries was ex empted, but an additional duty (auxiliary duty) was payable on Such imports in terms of Notification No. 265 dated 1.12.1982 and its successor Notifications No. 53 of 1983 and 126 of 1984.
The assessee imported logs of timber from an exempted country, and as it was not liable to pay the basic duty, it cleared the goods by paying the auxiliary duty at 40%, with reference to the effective basic duty at 60%, as prescribed under Notification No. 126 of 1984.
Subsequently, however, the assessee felt that it should have paid an auxiliary duty of only 30%, and not 40% since no basic effective duty was payable on the goods imported.
It, therefore, applied to the respondent for refund of the excess duty paid by it.
This claim was rejected by the Assistant Collector.
On appeal, the Collector of Customs (Appeals) held that the assessee was entitled to the refund claimed.
This order was confirmed by the Customs Excise and Gold (Control) Appellate Tribunal (CEGAT), on the view that the explanation would come into operation only if there was more than one notification granting concession or exemption, in respect of basic duty, providing for different rates in respect of articles import ed from different countries.
Hence, the appeals by the Department.
Allowing the appeals, this Court, HELD: 1.
The Tribunal has erred in its interpretation of the Notification No. 126 of 1984.
The assessee 's case is clearly covered by 780 the explanation in the notification.
The auxiliary duty paid by the assssee was perfectly in order and its refund appli cations are not maintainable.
[783D, 785E] 2.1 The notification and the explanation make it clear that the auxiliary duty has to be paid with reference to each article based on the effective basic duty applicable to such article in terms of the First Schedule read with any relevant notification under Section 25.
[785D] 2.2 No doubt, the main part of Notification No. 126 of 1984 provides for auxiliary duty at 40% where rate of effec tive basic duty is 60% or above i.e. rates set out in First Schedule read with any relevant notification and at 30% where such effective rate is nil or less than 60%.
However, the explanation to the notification has made an inroad into this simple rule by providing that where two or more effec tive basic rates are applicable in respect of any article, and the differentiation in rates is referable to the country of origin, then the auxiliary duty payable will be the higher of the two, or highest of the rates.
[783E G] 2.3 In the instant case, when timber is imported from the countries specified in the notification or notifications under Section 25(1), the rate of basic duty is nil, but if the goods are imported from other countries, the notifica tion does not apply and a basic duty of 60% would be levi able under the entry in the First Schedule.
Thus, when the rates specified in the First Schedule are read along with the relevant notifications, it is found that the effective basic duty is leviable on it at two rates and this differen tiation in rates is attributable to the country of origin in regard to the import.
Hence, the explanation squarely comes into operation and the auxiliary duty will have to be paid by reference to the higher of the two rates of the effective basic duty, namely, 60%.
[783G H; 784A] 2.4 The differentiation referred to in the explanation need not arise on account of the existence of more than one notification, altering the basic duty set out in the Sched ule.
It does not matter whether the difference in the rates is because the First Schedule applies in certain cases and a concession notification in other cases.
If there is no notification the rate specified in the First Schedule has to be taken into account for purpose of the notification in question.
[784D E] 2.5 A person will have to pay an auxiliary duty even though the effective basic duty is nil.
That is the clear intention of the statutory instrument and the explanation is based on good reason.
It is equitable 781 that all importers should pay the additional duty at the same rate and that they should have no advantage or disad vantage inter se.
A grant of concession in the matter of auxiliary duty as well would result in widening the gulf between one importer and another and also that between such an importer and the local trader.
[784F; 785A]


judgement:
vil Appeal Nos.
3820 24 of 1988.
From the Order dated 2.6.1988 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Order No. 410 414/88 D, Appeal Nos.
CD/SB./659/86 D;C/1526/84 D, CD/SB/1522/86 D;C/1565/84 D and C/422/86 D. V.C. Mahajan, and P. Parmeshwaran for the Appellants.
V. Sridharan, A.R. Madhav Rao and V. Balachandran for the Respondents.
The Judgment of the Court was delivered by 777 RANGANATHAN, J.
These are appeals under section 130E(b) of the from an order passed by the Customs, Excise and Gold Appellate Tribunal dismissing the appeals preferred by the Collector of Customs in the cases of M/s. Hunsur Plywood Pvt. Ltd. and M/s. Veneer Mills.
The question raised involves the interpretation of Notification Nos. 59/83 and 126/84.
These notifications are identically worded in all material respects with notification no.265/Cus.
dated 8.12.
1982 and the question before us is directly governed by our judgment of even date in Civil Appeal Nos.
2644 48 of 1987 (Collector of Customs vs Western India Plywood Manufac turing Co. Ltd., [1989] Supp. 1 S.C.R. 779.
For the reasons set out in detail in the said judgment these appeals have to be allowed and the orders of the Assistant Collector reject ing the claims filed by the respondents have to be upheld.
When these matters were taken up, Shri V. Sridharan, appearing on behalf of the assessee respondents, drew our attention to section 5 of the .
He con tended that exemptions or concessions in respect of goods imported from certain countries are generally granted in pursuance of agreements entered into with those countries, that the expression "country of origin" has a special mean ing and its determination governed by special provisions and that, in view of this, the explanation to the notification in question has to be confined in its application only to a comparison of the rates applicable under notifications of concession to goods imported from certain "countries of origin".
In this case, though there are four different notifications, one each in respect of Burma, Nepal, Bangla desh and Bhutan, they are all notifications of complete exemption and the rate of auxiliary duty by reference to any one of them will according to the assessee, be the smaller rate mentioned in the relevant notification under considera tion.
The rate of basic duty in respect of other countries is 60% as there is no notification of exemption or conces sion in relation thereto.
The argument is that the last of these should be ignored and the basic auxiliary duty deter mined only by reference to the rates prescribed in the four notifications of exemption.
For the reasons set out in the judgment in the case of Western India Plywood Manufacturing Co. Ltd. we are unable to accept this contention.
We are unable to agree with the learned counsel that the interpretation given by us will be inconsistent with the agreement for concessional treatment that may have been entered into between the Government of India and the coun tries from which the goods in question are imported.
In the first place, there is no material in the case before us to show that the notification under section 25 was issued in 778 pursuance of an agreement under section 5 of the .
That apart, if this argument were sound, the auxiliary duty, in a case where imports from different countries attract different degrees of exemption under different notifications, should be determinable separately by reference to the effective basic duty notified in respect of each such country.
But admittedly, if there are different rates of effective duty notified for goods imported from different countries of origin, then, notwithstanding the agreement with each of these countries, the auxiliary duty under the notification now under consideration will not be determined, in respect of the import from each of such countries, by reference to the effective basic duty leviable in respect thereof, but will be determined with reference to the highest of the effective rates of duty applicable to all the imports.
If that be so, there is no reason why the position cannot be the same in a case like the present where the imports come from two sets of countries the imports from which attract two different effective basic rates of duty, although the difference arises because in respect of one set of counties there is no notification of concession while in relation to the other there is a complete exemption granted under a notification.
As we have pointed out, there is nothing in the language of the explanation that excludes such a case from its purview.
Considering the language of the notification before us, as we have explained in the case of Western India Plywood Manufacturing Co. Ltd. the result of reading the First Schedule along with the relevant notifications is that imports of timber into India from most countries is charged to effective basic customs duty as per the tariff in the Schedule whereas in respect of imports from Burma, Nepal, Bhutan and Bangladesh, the rate of effective basic duty is nil.
The position, therefore, is that the article in ques tion is liable to two or more different rates of effective basic duty based on the country of origin for the import.
It, therefore, follows that the auxiliary duty is to be determined with reference to the higher of the two effective rates of duty.
We, therefore, see no reason to reach a different con clusion in the present case from that arrived at by us in the case of Western India Plywood Manufacturing Co. Ltd. We, therefore, allow the appeals and restore the orders of the Assistant Collector rejecting the claims of refund filed by the assesses.
The appeals are allowed but there will be no order as to costs.
P.S.S. Appeals allowed.

summary:
Import of timber is charged to effective basic .customs duty at 60 per cent under the .
The Government of India had, however, issued notification under section 25 of the absolutely exempting timber imported from Burma.
But the importers are liable to pay auxiliary duty in terms of Notification No. 265 dated Decem ber 8, 1982 and its successor Notification Nos.
59 of 1983 and 126 of 1984, which prescribed two rates with reference to the rate of duty of customs.
The explanation thereto provides that where there are two effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country of origin of the goods imported, then the auxiliary duty payable will be the higher of the two rates.
The respondents had imported certain consignments of timber from Burma which were assessed to auxiliary duty at the higher rate as per notification.
The Appellate Tribunal held in favour of the assessee respondents.
In these appeals by the Revenue under section 130E(b) of the , it was contended for the respondents that exemptions Or concessions in respect of goods imported from certain countries were generally granted in pursuance of trade agreements entered into with those countries under section 5 of the Tariff Act, that the expression "country of origin" in the notification had a special meaning and its determina tion governed by special provisions, and that, therefore, the explanation to the notification in question had to be confined in its application only to a comparison of the rates applicable under notification of concession and basic auxiliary duty determined accordingly.
Allowing the appeals, 776 HELD: The auxiliary duty, in a case where imports from different countries attract different degrees of exemption under different notifications in pursuance of agreements under section 5 of the should be determinable separately by reference to the effective basic duty notified in respect of each such country.
But, if there are different rates of effective duty notified for goods imported from different countries of origin, then, notwithstanding the agreement with each of these countries, the auxiliary duty under such a notification will not be determined, in respect of the import from each of such countries, by reference to the effective basic duty leviable in respect thereof, but will be determined with reference to the highest of the effective rates of duty applicable to all the imports.
[778A C] in the instant case, there is no material to show that the notification was issued in pursuance of an agreement.
It is a case where the imports come from two sets of countries the imports from which attract two different effective basic rates of duty.
The differentiation arises because in respect of one set of countries there is no notification of conces sion while in relation to the other there is a complete exemption granted under a notification.
There is nothing in the language of the explanation that excludes such a case from its purview.
The auxiliary duty is, therefore, to be determined with reference to the higher of the two effective rates of duty.
[777H, 778C D, F] Collector of Customs vs Western India Plywood Manufac turing Co. Ltd., [1989] Supp. 1 SCR 779, applied.