judgement:
Civil Appeal No. 1346 (NL) of 1981.
Appeal by Special leave from the Judgment and order dated the 5th February, 1981 of the Patna High Court in C.W.J.C. No. 531 of 1980 (R).
A. Minocha and Mrs. Veena Minocha for the Appellant.
O.P. Malhotra and P. P. Singh for the Respondent.
547 The Judgment of the Court was delivered by CHANDRACHUD, C.J.
The appellant was appointed as a Dresser in the Medical Department of the Steel Authority of India, formerly the Bokaro Steel Plant Ltd.
On March 1, 1975 he was dismissed from service as a result of a domestic inquiry on charges of misconduct consisting of absence from duty, falsification of entries in the registers, destruction of records, etc Since an industrial dispute was pending in the Labour Court, Bokaro, between the management and its workmen, and application was filed by the management under section 32(2) (b) of the , seeking approval of the Labour.
Court, Chota Nagpur, to the order of dismissal passed against the appellant.
The decision of that application was partly in favour of the appellant and partly against him.
By a judgment dated November 16, 1976, the Labour Court held that (i) the domestic inquiry was invalid because, the Chief Medical officer of Bokaro Steel Ltd. was neither competent to issue the charge sheet nor to constitute the Enquiry Committee which held the appellant guilty of the charges framed against him; but, that (ii) the management should be given an opportunity to adduce evidence to justify the order of dismissal.
The appellant filed a writ petition (No. CWJC 336 of 1976) against the second part of the Labour Court 's order, his contention being that the management should not be allowed to lead evidence to justify the order of dismissal.
The High Court issued a Rule on that writ petition and granted stay of further proceedings in the Labour Court.
The management filed a writ petition (No. CWJC 27 of 1977) against the first part of the order of the Labour Court by which it was held that the enquiry was vitiated.
The High Court of Patna, Ranchi Bench, dismissed both the writ petitions by a judgement dated April 26, 1978.
Being aggrieved by the judgment of the High Court which resulted in the dismissal of its writ petition, the management filed Civil Appeal No. 1682 (L) of 1978 in this Court, complaining of the finding of the High Court that it was not competent to the Chief Medical officer to charge sheet the appellant or to constitute the Enquiry Committee.
The appeal was dismissed by this Court on July 23, 1980.
The finding of the Labour Court and the High Court that the enquiry which resulted in the dismissal of the appellant was vitiated, was upheld by this Court.
548 The appellant did not appeal to this Court against the dismissal of his writ petition by the High Court.
Since the order of the Labour Court that the management should be allowed to lead evidence in order to justify the order of dismissal was not stayed by this Court in the appeal which was filed by the management, the Labour Court called upon it to lead its evidence.
The appellant filed an application objecting to the management leading the evidence but that application was dismissed by the Labour Court on August 24, 1978.
Being aggrieved by that order, the appellant filed a writ petition (No. 531 of 1980) in the High Court of Patna contending that the management should not be allowed to lead evidence, especially, because, instead of leading evidence, in pursuance of the order of the Labour Court, it had chosen to challenge the finding that the inquiry was vitiated.
The writ petition having been dismissed on February 5, 1981 by the Ranchi Bench of the High Court, the appellant has filed this appeal by special leave.
Section 33(2) (b) of the provides in so far as relevant, that though, during the pendency of a proceeding in respect of an industrial dispute it is open to the employer to discharge or punish a workman for any misconduct not connected with the dispute, no such workman shall be discharged or dismissed unless an application has been made by the employer to the authority before which the proceeding is pending, for approval of the action taken against the employee.
It is well known that in such a proceeding, it is open to the employer to lead evidence to justify the order passed against the employee.
The question as to the rights and obligations of the employer in that proceeding has come up before this Court in many cases.
It would be sufficient for our purpose, and more than that will be fruitless repetition, to notice two important decisions on this question which show that the right of an employer to lead evidence is governed by certain conditions.
In Delhi Cloth and General Mills Co. vs Ludh Budh Singh,(1) an employee was dismissed after an enquiry into allegations of misconduct.
Since an industrial dispute between the employers and their workmen was pending before the Industrial Tribunal, the employers made an application to the Tribunal under section 33 (2) (b) of the for permission to dismiss the 549 employee.
After the arguments in that application were over, the Tribunal reserved its judgment.
Thereafter, the employers filed an application praying that if the enquiry was found to be defective, they should be given an opportunity to lead evidence in order to justify the dismissal of the employee The Tribunal did not deal with this latter application, but held in the main proceeding that the findings of the enquiry officer were not in accordance with the evidence and therefore the enquiry was vitiated.
Accordingly, it refused permission for the dismissal of the employee.
In an appeal filed by the employers, it was held by this Court that in proceedings on a reference under section 10 or by way of an application under section 33 of the , in cases in which a domestic enquiry has been held it is open to the employer to rely upon it in the first instance, and alternatively, and without prejudice to its plea that the enquiry was proper, simultaneously adduce additional evidence before the Tribunal justifying its action.
The employer must avail of the opportunity to lead evidence by making a suitable request, before the proceedings are closed.
The Court found on the facts of the case that the employers had filed an application for adducing further evidence after the proceedings before the Tribunal had come to an end and the judgment was reserved.
Since the employers did not ask for an opportunity to lead evidence while the proceedings were pending, it was held that the Tribunal was justified in not considering the application filed by them for an opportunity to lead evidence to justify the order of dismissal.
In Shankar Chakravarti vs Britannia Biscuit Co, Ltd., the application made by the employers under section 33(2) of the Act was rejected by the Tribunal on the ground that the enquiry leading to the termination of the employer 's services was vitiated.
A writ petition filed by the employers to challenge the award of the Tribunal was dismissed by a learned single Judge of the Calcutta High Court.
In a Letters Patent Appeal filed by them, a Division Bench of the High Court held that after holding that the enquiry was vitiated, it was incumbent upon the Tribunal to given an opportunity to the employers to lead evidence to prove the charges made against the employee.
The matter was therefore remanded by the High Court to the Tribunal for giving an opportunity to the employers to lead further evidence, if they so desired Allowing the appeal filed by the employee, it was held by this Court that while adjudicating upon the legality or propriety of an order of termination of service, either under section 10 or under section 33 550 of the Act, no duty is cast on the Industrial Tribunal or the Labour Court to call upon the employer to adduce evidence to substantiate the charge of misconduct against the employee.
It is for the employer to avail of an opportunity to lead evidence by a specific pleading or by specific request.
If no such opportunity is sought nor is there any pleading to that effect, the Tribunal or the Labour Court is under no obligation to call upon the employer suo motu to adduce evidence to substantiate the charges against the employee.
Following the decision in Delhi Cloth and General Mills Co. vs Ludh Budh Singh, the Court held that since, in the case before them, there was neither a pleading nor was any request made at the appropriate time for an opportunity to lead evidence for substantiating the charges against the employee, the High Court was in error in giving that opportunity to the employer.
The Court rejected the contention of the employers that the request made by them in that behalf after the proceedings were adjourned for pronouncement of the award, should be taken into consideration and an adequate opportunity should be given to them.
The stage for asking for that opportunity, the Court said, had already passed.
It is doubtful whether the norms prescribed by these two decisions were followed strictly in this case.
The employers, who are respondent 2 to this appeal, filed an application under section 33(2) (b) of the Act, asking for the approval of the Labour Court to the order of dismissal which was passed against the appellant.
By that application, they did not ask alternatively for an opportunity to lead evidence to justify the order of dismissal.
The tenor of the judgment of the Labour Court dated November 16, 1976 shows that, in all probability, an oral request for permission to adduce evidence was made by the employers to the labour Court when the hearing of the application filed under section 33(2) (b) was coming to a close.
The appellant has taken up an extreme stand that the employers did not ask for such an opportunity at all and that the Labour Court gave them that opportunity of its own accord.
That contention is far fetched and cannot be accepted in teeth of the facts, both contemporaneous and supervening.
We will refer to those facts immediately.
In the first place, the judgment of the Labour Court does not support the allegation that the employers had not asked for an opportunity to lead the necessary evidence.
These protracted proceedings show that the appellant is a zealouslitigant, fairly well 551 informed as to his rights.
He has raised every possible objection under the sum in the proceedings before the Labour Court.
Indeed, it is unfortunate that he even went to the length of casting aspersions on the integrity of the Presiding Officer of the Labour Court.
It is unlikely that he would not have protested against the Labour Court granting permission to the employers to lead evidence, if no such opportunity was asked for by them.
He did raise many protests.
The events which supervened the Labour Court 's order strengthen the conclusion that there is no substance in the contention of the appellant that the Labour Court acted on its own initiative in allowing the employers to lead evidence.
After the writ petitions filed by the appellant and the employers were dismissed by the Patna High Court, the stay order which was passed by the High Court in the writ petition filed by the appellant was vacated.
Thereupon, the appellant himself filed an application in the Labour Court on May 4, 1978 saying that, in view of the fact that the writ petitions were dismissed by the High Court, the employers should be called upon to adduce evidence to justify the order of dismissal.
On August 24, 1978 the employers filed an application in the Labour Court to the effect, that the original documents which were kept by them in the custody of the Court may be returned to them, since they wanted to rely on those documents while leading evidence to justify the order of dismissal.
The appellant, on his own filed a list of witnesses whom he wanted to examine in the case.
On September 1, 1978 the employers examined certain witnesses in the Labour Court and they were cross examined by the appellant.
It is at this stage that the appellant made certain uncharitable remarks against the Presiding Officer which delayed the proceedings.
And, it is thereafter that the appellant filed an application in the Labour Court contending that the employers should not be allowed to lead evidence.
Thus, the order passed by the Labour Court allowing the employers to lead evidence has been accepted and acted upon by the appellant.
He has already given a list of his own witnesses and has cross examined the witnesses whose evidence was led by the employers.
It would be wrong, at this stage, to undo what has been done in pursuance of the order of the Labour Court.
Besides, the challenge made by the appellant to the order of the Labour Court has failed and the order of the Patna High Court dismissing the appellant 's writ petition has become final.
552 In order to get over these difficulties, it is urged by the appellant that there can be no estoppel against law and therefore, it is open to him to argue even at this stage that the Labour Court ought not to have passed the particular order.
In support of this contention reliance is placed by the appellant on two judgments of this Court.
In Chitturi Subbanna vs Kudapapa Subbanna, it was held by the majority that pure questions of law, not dependent on the determination of any questions of fact, should be allowed to be raised for the first time even at later stages of a litigation.
In Mathura Prasad Bajoo Jaiswal vs Dossibai N.B. Jeejeebhoy, this Court held that the question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court.
If, by an erroneous decision, the Court assumes jurisdiction which it does not possess its decision cannot operate as res judicata between the parties.
In this regard, the Court made a distinction between the decision of a question of fact and the decision of a question as regard the jurisdiction of the Court.
In so far as question of fact are concerned, the Court is not concerned with the correctness or otherwise of the earlier judgment while determining the application of the rule of res judicata.
Where, however, the question is purely of law and relates to the jurisdiction of the Court or where the decision of the Court sanctions something which is illegal, the party affected by that decision will not be precluded by the rule of res judicata from challenging the validity of the earlier decision.
The reason is, that the rule of procedure cannot supersede the law of the land.
We do not consider that either of these decisions can help the appellant.
A question of law which does not require fresh investigation into facts may be allowed to be raised at a later stage of a proceeding but, that is subject to the qualification that the question is not concluded by a decision between the same parties.
In this case, the question as to whether the Labour Court was right in giving an opportunity to the employers to lead evidence, is not being raised by the appellant for the first time in this Court.
It was raised by him in the writ petition which he had filed in the Patna High Court and that writ petition was dismissed.
In so far as the question of res judicata is concerned, if an erroneous decision on a question 553 of law is rendered by a Court by assuming jurisdiction which it does not possess, it may be possible to argue that the decision cannot operate as res judicata even between the same parties.
But, in the case before us, the Labour Court had the jurisdiction to decide whether to allow the employers to lead evidence or not.
It may have acted irregularly in the exercise of that jurisdiction but that is to be distinguished from cases in which the Court inherently lacks the jurisdiction to entertain a proceeding or to pass a particular order.
Besides, as we have stated earlier, though it would be true to say that the employers did not ask for an opportunity to lead evidence simultaneously with the filing of the application under section 33(2) (b) of the Act, it is not possible to hold on the basis of the data placed before us that they asked for such an opportunity after the proceedings had terminated.
What seems to have happened is that the application filed by the employers under section 33 (2) (b) of the Act was taken up for consideration first.
When the hearing of that application was nearing completion, but before the final orders were passed therein, the employers asked for an opportunity to lead evidence to justify the order of dismissal.
The Labour Court disposed of both the matters together by a common judgment which is dated November 16, 1976.
It held by one and the same order that the departmental inquiry was vitiated but that the employers should be allowed to lead evidence to justify the order of dismissal.
The appellant 's contention that the employers did not ask for an opportunity to lead evidence at all and that the Labour Court acted gratuitously is not possible to accept.
Thus, in passing the order allowing the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction.
For these reasons, we dismiss this appeal and hold that the employers may lead evidence to justify the order whereby the appellant was dismissed from service on March 1, 1975.
There will be no order as to costs.
A longtime has gone by since the appellant was dismissed.
Nine years is frightful delay.
A large part of that period was wasted in dealing with several obstacles raised by the appellant himself in the disposal of the matter, including the allegations which he made against the Presiding Officer of the Labour Court.
Twice, he obtained orders staying further proceedings in the Labour Court: once from the High Court in Writ Petition No. 336 of 1976 and then in this appeal.
As a result of these stay orders, the evidence has still remained to be recorded.
The Labour Court will now 554 complete that process and dispose of this matter as expeditiously as is humanly possible.
The employers may consider whether the trauma through which the appellant has gone during the last nine years is not enough punishment for him.
The employers are a public sector undertaking and they could lead the way in ensuring industrial peace and harmony.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was employed in a public sector undertaking.
He was dismissed on charges of misconduct consisting of absence from duty, falsification of entries in the registers destruction of records etc.
Since an industrial dispute was pending before the Labour Court between the Management and its workman an application was filed by the management under section 33(2) (b) of the seeking approval of the Labour Court to the order of dismissal passed against the appellant.
The decision of the application was partly in favour of the appellant and partly against him.
The Labour Court held: (1) that the domestic inquiry was invalid because the Chief Medical officer was neither competent to issue the charge sheet nor to constitute the Enquiry Committee which held the appellant guilty of the charges framed against him, and (2) that the management should be given an opportunity to adduce evidence to justify the order of dismissal.
The appellant filed a writ petition against the latter part of the Court 's order contending that the management should not be allowed to lead evidence to justify the order of dismissal.
The management on the other hand filed a writ petition against the former part of the order of the Labour Court by which it held that the enquiry was vitiated.
The High Court dismissed both the writ petitions.
545 The management filed an appeal in this Court complaining of the finding of the High Court that it was not competent for the Chief Medical officer to charge sheet the appellant or to constitute the Enquiry Committee.
The appeal was, however, dismissed and the findings of the Labour Court and the High Court that the enquiry which resulted in the dismissal of the appellant was vitiated, was upheld.
After the disposal of the above appeal, the Labour Court resumed hearing of the matter and allowed the management to lead evidence in order to justify the order of dismissal.
The appellant filed an application objection to the management leading evidence but that application was dismissed.
The writ petition filed by the appellant in the High Court was also dismissed.
In the appeal to this Court, it was contended on behalf of the appellant workman that the employer did not ask for an opportunity to lead evidence to justify the order of dismissal and that the Labour Court gave that opportunity on its own accord and that it was open to him to argue even at this stage that the Labour Court ought not to have passed the particular order.
Dismissing the Appeal, ^ HELD: 1.
(i) In a proceeding under section 33(2) (b) of the it is open to the employer to lead evidence to justify the order passed against the employee.
[548E] (ii) In passing the order allowing the employers to lead evidence, the Labour Court cannot be said to have acted without jurisdiction.
[553E] Delhi Cloth and General Mills Co. vs Ludh Budh Singh ; and Shankar Chakravarti vs Britannia Biscuit Co.Ltd. ; , referred to.
In the instant case, the employers who are respondent No. 2 filed an application under section 33(2) (b) of the Act, asking for the approval of the Labour Court to the order of dismissal which was passed against the appellant.
By that application, they did not ask alternatively for an opportunity to lead evidence to justify the order of dismissal.
The tenor of the judgment of the Labour Court shows that, in all probability an oral request for permission to adduce evidence was made by the employers to the Labour Court when the hearing of the said application was coming to a close.
The contention of the appellant that the employers did not ask for such an opportunity and that the Labour Court gave them that opportunity on its own accord, is farfetched and cannot be accepted.
[550E G] 2.
A question of law which does not require a fresh investigation into facts may be allowed to be raised at a later stage of the proceedings but that is subject to the qualification that question is not concluded by a decision between the same parties.
[552F] 546 Chitturi Subbanna vs Kudappapa Subbanna, ; , referred to.
In the instant case, the question as to whether the Labour Court was right in giving an opportunity to the employers to lead evidence, is not being raised by the appellant for the first time in this Court.
It was raised in the writ petition filed in the High Court.[552G] 3.
In so far as questions of facts are concerned, the Court is not concerned with the correctness or otherwise of the earlier judgment while determining the application of the rule of res judicata.
Where however, the question is purely of law and relates to the jurisdiction of the Court or where the decision of the Court sanctions something which is illegal the party affected by that decision will not be precluded by the rule of res judicata from challenging the validity of the earlier decision.
The reason is, that a rule of procedure cannot supersede the law of the land.
[552D E] 4.
If an erroneous decision on a question of law is rendered by a Court by assuming jurisdiction which it does not possess, its decision cannot operate as res judicata even between the same parties.
[553A] Mathura Prasad Bajoo Jaiwal vs Dassibal N.B. Jeejeebohoy, [1970]3 S.C.R. 830, referred to.
In the instant case the Labour Court had the jurisdiction to decide whether to allow the employers to lead evidence or not.
It may have acted irregularly in the exercise of that jurisdiction but that is to be distinguished from cases in which the Court inherently lacks the jurisdiction to entertain a proceeding or to pass a particular order.
What seems to have happened is that the application filed by the employers under section 33(2) (b) was taken up for consideration first.
When the hearing of that Application was nearing completion, but before the final orders were passed therein, the employers asked for an opportunity to lead evidence to justify the order of dismissal.
The Labour Court disposed of both the matters together by a common judgment.
It held by one and the same order that the departmental inquiry was vitiated but that the employers should be allowed to lead evidence to justify the order of dismissal.
[553B; D E]


judgement:
Special Leave Petition (Civil) No. 9013 9014 of 1984.
From the Judgment and order dated the 3rd August, 1984 of the Delhi High Court in C. W. No. 1890 and 1891 of 1984) Dr. L. M. Singhvi and Mrs. Bharati Anand for the Petitioners.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
We are dismissing both the Special Leave Petitions.
But we propose to give our reasons for doing so, which we do not generally do, as our attention has been invited to some judgments of High Courts which we consider have been wrongly decided, proceeding as they do on a misunderstanding of some observations of this Court.
A combined notification under sections 4 and 17 and a declaration under section 6 of the Land Acquisition Act were published in the Delhi Extraordinary Gazette on 18.6.1984 in regard to the acquisition of certain lends in the Village Bijwasan for the purpose of construction of a `New Transmitting Station for the Delhi Airport '.
Public Notice of the substance of the notification under section 4 was alleged to have been given in the locality on 17.7.
It was also alleged that the matter was under correspondence between various departments of the Government, for nearly eight years before the notification and the declaration were publi 591 shed in the Gazette.
A Writ Petition was filed in the Delhi High Court impugning the notification and the declaration on two grounds.
The first was that the delay of 29 days in giving public notice of the substance of notification in the locality after the publication of the notification under section 4 in the Gazette was fatal to the notification itself.
The second was that the very circumstance that a period of eight years was spent in interdepartmental discussion showed that there was no urgency necessitating the invocation of s 17 (4) of the Land Acquisition Act to dispense with the enquiry under section 5 A.
The High Court dismissed the Writ Petition in limine and the present Special Leave Petitions are directed against such dismissal.
The very two questions which were raised before the High Court were again urged before us and reliance was placed by Dr. L. M. Singhvi, learned counsel for the petitioners, on Narinderjit Singh vs State of Utter Pradesh,(1) Rattan Singh vs State,(2) section K Gupta vs Union of India,(3) Satish Kapur vs State of Haryana(4) and C. Suryanarayana vs Govt.
of Andhra Pradesh.(5) In addition, we have also perused Khub Chand vs State of Rajasthan,(6) State of Mysore vs Abdul Rajak,(7) Mohammad KHawaza vs Govt.
of Andhra Pradesh(5) and Sanjivaiah Nagar Depressed and Backward Classes Sangh vs District Collector, Hyderabad.(9).
Section 4 of the Land Acquisition Act is as follows: (1) "Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the sub stance of such notification to be given at convenient places in the said locality.
(2) Thereupon it shall be lawful for any officer, either generally or specially authorised by such Government in this behalf, and for his servants and workmen: 592 to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work if any proposed to be made thereon; to mark such levels, boundaries and line, by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle.
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house unless with the consent of the occupier thereof without previously giving such occupier at least seven days ' notice in writing of his intention to do so.
" It may be noticed at once that section 4 (1) does not prescribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the official Gazette or immediately thereafter.
Publication in the official Gazette and public notice in the locality are two vital steps required to be taken under section 4 (1) before proceeding to take the next step of entering upon the land under section 4 (2).
The time factor is not a vital element of section 4 (1) and there is no warrant for reading the words `simultaneously ' or `immediately thereafter ' into section 4 (1).
Publication in the official Gazette and public notice in the locality are the essential elements of section 4 (1) and not the simultaneity or immediacy of the Publication and the Public Notice.
But since the steps contemplated by section 4 (2) cannot be undertaken unless publication is made and public notice given as contempleted by s 4 (1), it is implicit that the publication and the public notice must be contemporaneous though not simultaneous or immediately after one another.
Naturally contemporneity may involve a gap of time and by the very nature of the things, the publication in the official Gazette and the public notice in the locality must necessarily be separated by a gap of time.
This does not mean that the publication and the public notice may be separated by along interval of time.
What is necessary, is that the continuity of action should not appear to be broken by a deep gap.
If there is publication in the Gaz 593 ette and if there is public notice in the locality, the requirements of section 4 (1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition.
If the notification and the public notice are separated by such a large gap of time it may become necessary to probe further to discover if there is any cause for the delay and if the delay has caused prejudice to anyone.
We may consider here an argument which is usually advanced against any time gap between the publication in the official Gazette and the public notice in the locality.
Section 5 A provides that any person interested in any land which has been notified under section 4 (1) may object to the acquisition of the land or of and in the locality within 30 days after the issue of the notification.
It is, therefore, suggested that if the publication of the notification in the Gazette is not immediately followed by a public notice in the locality, it may lead to a denial to the person interested of an opportunity to object to the acquisition.
We think, that this is too narrow an interpretation of section 5 A. Notice to interested persons of a proposed acquisition of land is given by publicising a notification to the effect that land in any locality is needed or is likely to be needed for any public purpose in two ways first, by causing publication of the substance of the notification to be given at convenient places in the locality.
There is no reason to confine the period of 30 days prescribed by section 5 A to one mode.
The period of 30 days may be reckoned from either the date of publication in the gazette or the date of public notice of the substance of the notification in the locality, whichever is later.
In our view, that is the only reasonable and practical way of construing section 5 A so as to advance the object of that provision, which is to provide a reasonable opportunity to interested persons to oppose the acquisition.
We particularly notice that section 5 A does not refer either to the date of publication in the official Gazette or the date of public notice of the substance of the notification in the locality.
It speaks of `the issue of the notification '.
This we consider is significant and, in the context, the words `the issue of the notification ' can only signify the completion of the prescribed process rather, the twin process of notifying the interested public of the proposed acquisition in the manner provided for by s 4 (1), that is by publication in the official Gazette and giving public notice in the locality.
In Khub Chand and Ors.
vs State of Rajasthan and ors.
(supra), this Court (Subba Rao, CJ.
and Shelat, J.) ruled out the contention 594 that public notice under section 4 (1) was not mandatory, and held that both publication in the official Gazette and public notice in the locality were pre requisites to further action under section 4 (2) of the Land Acquisition Act Non compliance with either of the requisites would render the land acquisition proceedings void.
In Narinderjit Singh vs State of Uttar Pradesh (supra), the question was about the effect of the failure to cause public notice of the substance of the notification to be given at convenient places in the locality.
The view taken in Khub Chand 's case was reaffirmed and it was further pointed out that the dispensing with of the enquiry contemplated by section 5 A by the issuance of a notification under section 17 (4) would make no difference to the necessity for strict compliance with both the requisites of section 4 (1).
It was said: "In our judgment the provisions of Section 4 (1) cannot be held to be mandatory in one situation and directory in another.
Section 4 (1) does not contemplate any distinction between those proceedings in which in exercise of the power under Section 17 (4) the appropriate government directs that the provisions of Section 5 A shall not apply and where such a direction has not been made dispensing with the applicability of Sec.
5 A. It lays down in unequivocal and clear terms that both things have to be simultaneously done under Section 4 (1), i.e. a notification has to be published in the official gazette that the land is likely to be needed for any public purpose and the Collector has to cause notice to be given of the substance of such notification at convenient places in the locality in which the land is situated.
The scheme of Section 4 is that after the steps contemplated under sub section (1) have been taken the officer authorised by the Government can do the various acts set out in sub section (2).
" The observation that "both things have to be simultaneously done" has led some High Courts to conclude that simultaneity of publication in the gazette and public notice in the locality is a mandatory condition of section 4 (1) and so to import an obsessive time factor.
It is not so.
What was apparently meant to be conveyed was that both things had to be done before the various acts set out in sub section (2) could be undertaken.
The question whether the publication in the official Gazette and the public notice in the locality had to be simultaneous or whether there could be a gap of time was not an issue at all in that case.
In State of Mysore vs Abdul Rajak (supra), this Court referring to section 4 (1) held, "the section 595 prescribes two requirements, namely, (1) a notification to be published in the official Gazette and (2) the Collector causing to give of the substance of such notification to be given at convenient places in the concerned locality", and, "unless both these conditions are satisfied, section 4 of the Land Acquisition Act cannot be said to have been complied".
The court also added "It is only when the notification is published in the (official Gazette and it is accompanied or immediately followed by the public notice, that a person interested in the property proposed to be acquired can be regarded to have notice of the proposed acquisition".
This sentence alongwith the sentence "both things have to be simultaneously done under section 4 (1)" occurring in Narinderjit Singh 's case have led to some confusion in some decisions of the High Courts.
We have already explained the observation in the Narinderjit singh 's case.
We are unable to read the observations in State of Mysore vs Abdul Rajak as laying down any general principle that every time gap between the publication in the Gazette and the public notice in the locality is fatal to the acquisition Apart from the physical impossibility of synchronising the publication in the Gazette and the public notice in the locality, one can visualise s.9 variety of circumstances which may bring about a time gap between the two.
There may be a break down of communications, there may be a strike or bandh as happened in one of the reported case in Andhra Pradesh Anjuman Ahmediyya, Muslim Mission vs State(1) or there may be some other justifiable reason.
This court did not lay down any general principle that an acquisition would be regarded as avoid if the notification published in the official Gazette was not accompanied or immediately followed by the public notice.
What in fact appears to have been said was that a person interested in the property can be regarded to have had notice of the proposed acquisition if both the requirements of section 4 (1) are complied with whether simultaneously or one after the other.
As we said no invariable rule was laid down that an acquisition would be regarded as void whenever there was a gap of time between the publication in the Gazette and the public notice in the locality.
We do not think that it is necessary to refer to the decisions of the High Courts in detail except to say that we consider Satish Kapur vs State of Haryana, Rattan Singh vs State, Suryanarayana Reddy vs Andhra Pradesh and Mohd. Khawaza vs Govt.
of A. P. were wrongly decided and that Sanjivaiah Nagar Depressed and Backward Classes Sangh vs District Collector, Hyderabad was rightly decided.
596 In the last mentioned case, there is reference to several earlier Division Bench judgment and the judgment of the Full Bench which the learned judges had followed.
In particular, the learned judges have referred to the following observations of a Full Bench of the Andhra Pradesh High Court in Shahnaz Salima vs Govt.
of A.P. (a decision which for some unknown reason has not been reported in any of the Law Reports); "There is no warrant for the contention that the publication in the official Gazette and the publication of the substance of the notification at convenient places in the said locality should be simultaneous and be done precisely at the same time.
If that were the intention of the Legislature, it could have said so.
Something which is not in the section cannot be imported into it.
The publication of the substance of section 4 (1) notification at convenient places in the locality is required out of anxiety of the Legislature to make it certain that it is brought to the notice of the affected persons.
What all that is required is that before any thing is done as contemplated by sub sec.
(2), the substance of section 4 (1) notification must be published in the locality of the land.
Several times it may prove to be a physical impossibility if simultaneous publication is insisted upon.
It is not possible to think that the Legislature has provided for an impracticable and at the same time unnecessary task.
What section 4 (1) requires is that section 4 (1) notification must be published in the official Gazette and its substance at convenient places in the said locality.
" We agree with these observations.
The other ground of attack is that if regard is had to the considerable length of time spent on interdepartmental discussion before the notification under section 4 (1) was published, it would be apparent that there was no justification for invoking the urgency clause under section 17 (4) and dispensing with the enquiry under section 5 A.
We are afraid, we cannot agree with this contention.
Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition.
This is bound to result in a multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects.
Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition.
It is, therefore, not possible to agree with 597 the submission that more pre notification delay would render the invocation of the urgency provisions void.
We however wish to say nothing about post notification delay.
In Jaga Ram vs State of Haryana, this court pointed out "the fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the notification was issued, there was urgency or not." In Kash Reddy Papiah v Govt of Andhra Pradesh, it was held, "Delay on the part of the tardy officials to take further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the notification and to hold that there was never any urgency." In the result both the submissions of the learned counsel for the petitioners are rejected and the special leave petitions are dismissed.
H.S.K. Petitions dismissed.

summary:
A combined notification under ss.4 and 17 and a declaration under section 6 of the Land Acquisition Act, 1894 which were published in the official Gazette in regard to the acquisition of certain lands were challenged in a writ petition before the High Court on two grounds: (1) that there was delay of 29 days in giving public notice of the substance of notification in the locality after the publication of the notification under section 4 in the Gazette and that delay was fatal to the notification itself, and (2) that since the matter was under correspondence between various departments of the Government for nearly eight years before the notification and the declaration were published in the Gazette, that showed that there was no urgency necessitating invocation of section 17(4) of the Act to dispense with the enquiry under section 5 A.
The High Court dismissed the writ petition in limine.
The present special leave petitions were directed against dismissal of the writ petition.
Dismissing the special leave petitions, ^ HELD: Section 4(1) of the Land Acquisition Act does not pres 589 cribe that public notice of the substance of the notification should be given in the locality simultaneously with the publication of the notification in the official Gazetter or immediately thereafter.
Publication in the official Gazette and public notice in the locality are two vital steps required to be taken under s.4(1) before proceeding to take the next step of entering upon the land under section 4(2).
The time factor is not the vital element of section 4(1) and there is no warrant for reading the words `simultaneously ' or `immediately thereafter ' into section 4(1), But since the steps contemplated by section 4(2) cannot be undertaken unless publication is made and public notice given as contemplated by section 4(1), it is implicit that the publication and the public notice must be contemporaneous though not simultaneous or immediately after one another.
Naturally contemporeneity may involve a gap of time and by the very nature of the things, the publication in the official Gazette and the public notice in the locality must necessarily be separated by a gap of time.
This does not mean that the publication and the public notice may be separated by a long interval of time.
What is necessary, is that the continuity of action should not appear to be broken by a deep gap.
If there is publication in the Gazette and if there is public notice in the locality, the requirements of section 4(1) must be held to be satisfied unless the two are unlinked from each other by a gap of time so large as may lead one to the prima facie conclusion of lack of bona fides in the proceedings for acquisition.
If the notification and the public notice are separated by such a large gap of time it may become necessary to probe further to discover if there is any cause for the delay and that if the delay has caused prejudice to any one.
[592 H and 593 A.B] The submission that if the publication of the notification in the Gazette is not immediately followed by public notice in the locality, it may lead to a denial to the person interested of an opportunity to object to the acquisition under section 5 A, has no force.
Section 5.A provides that any person interested in any land which has been notified under section 4(1) may object to the acquisition of the land or of any land in the locality within 30 days after the issue of the notification.
The section does not refer either to the date of publication in the official Gazette or the date of public notice of the substance of the notification in the locality.
It speaks of `the issue of the notification which, in the context, can only signify the completion of the prescribed process rather the twin process of notifying the interested public of the proposed acquisition in the manner provided for by section 4(1), that is by publication in the official Gazette and giving public notice in the locality.
Therefore, the period of 30 days may be reckoned from either the date of publication in the Gazette or the date of public notice of the substance of the notification in the locality, whichever is later.
[593C.G] Khub Chand vs State of Rajasthan, ; , Narinderjit Singh v State of.
Uttar Pradesh, AIR 1973 S.C. 552, State of Mysore vs Abdul Rajak, ; and Anjuman Ahmediyya, Muslim Mission vs State AIR 1980 A.P. 246, referred to.
Sanjivaiah Nagar Depressed and Backward Classes Sangh vs District 590 Collector, Hyderabad, AIR 1983 A.P. 142 and Smt.
Shahnaz Salima vs Govt.
of A.P., W.P. No. 3353/76 decided by a Full Bench of Andhra Pradesh High Court on Sept. 26, 1978, approved.
Satish Kapur vs State of Haryana, AIR 1982 P. and H 276, Rattan Singh v State, AIR 1976 Pand H 279 (F.B.), C. Suryanarayana vs Govt.
of Andhra Pradesh, AIR 1983 A P. 17 and Mohammad Khawaza vs Govt.
of Andhra Pradesh, AIR 1982 N.O.C. 270 (A.P), overruled.
It is not possible to agree with the submission that mere pre notification delay would render the invocation of the urgency provisions void.
Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition.
This is bound to result in a multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects.
Very often the delay makes the problem more and mere acute and increases the urgency of the necessity for acquisition.
[596H; 597A and 596G H] Jaga Ram vs State of Haryana, ; and Kashi Reddy Papaiah vs Govt of Andhra Pradesh.
AIR 1975 A.P. 269, referred to.


judgement:
ivil Appeal Nos.
1373 to 1376 of 1976.
525 Appeals by Special leave from the judgment and Order dated the 24th September, 1976 of the Andhra Pradesh High Court in Writ Petition Nos.
1400 to 1403 of 1976.
AND Civil Appeal Nos.683 686/77, 1062 1064 of 1977, 885 to 890 of 1978.
From the Judgment and Order dated the 31st Day of January, 1977 of the Andhra Pradesh High Court in Writ Petition Nos.
2898, 2940, 2946, 2948, 2899, 2900, 2904, 2901, 2902, 2903, 2941, 2947 and 2961 of 1976.
Ravinder Narain, O.C. Mathur, Talat Ansari, Kamal Mehta and Ms. Rainu Wallia for the Appellant.
Ms. A. Subhashini and Girish Chandra for the Respondent.
The Judgment of the Court was delivered by AMARENDRA NATH SEN, J.
These appeals and also the Special Leave Petitions arise out Writ Petitions filed by the Appellant as the petitioners in the High Court of Judicature, Andhra Pradesh at Hyderabad.
The High Court disposed of all the writ petitions by one common judgment.
For reasons stated in the judgment the High Court dismissed all the writ petitions.
This Court granted special leave to the appellant to file appeals against the dismissal of the writ petitions by the High Court and also directed some of the Special Leave Petitions to be heard along with the appeals.
As all the writ petitions were dismissed by one common judgment delivered by the High Court, we propose to dispose of all these matters by this judgment.
Two questions fall for determination in these appeals.
The first question is whether on a true construction of the Notification No. 23/70 dated 1.3.1970 issued by the Government of India, the appellant is entitled to claim exemption from the imposition of excise duty on fertilizers which, according to the appellant, are mixed fertilizers manufactured by the appellant.
The other question is whether the amount of commission paid by the appellant to its selling agents should be deducted as trade allowance in computing the value of the goods for assessment of excise duty.
526 It may be noted that some of these appeals are concerned with the first question, namely the exemption under the Notification No. 23/70 dated 1.3.1970, and in the remaining appeals the question of exclusion of the commission paid to the selling agent is involved.
Same questions are involved in the special leave petitions.
The broad facts about which there does not appear to be any serious dispute may be briefly noticed.
The appellant carries on business as manufacturers of diverse kinds of fertilizers at the factory situated at Vishakhapatnam.
The appellant considered that it would be advisable to entrust the sale of its products to organisations with experience in the sale of fertilizers, instead of the appellant itself organising sales of the fertilizers manufactured.
Accordingly, the appellant appointed M/s. E.I.D. Parry Limited and M/s. Rallis India Ltd, as their selling agents and entered into agreements with them for sale of fertilizers manufactured by the appellant on terms and conditions mentioned in the agreements entered into by the appellant with the selling agents.
Under the terms of the agreements the selling agents were appointed by the appellant and the selling agents were entrusted with the task of arranging the sale of the fertilisers for and on behalf of the appellant in consideration of receiving a commission of 3 1/2% calculated on the net realisable value, i.e., upon the gross sales realisation less excise duty and sales tax, freight expenses and discount and rebate.
This commission is the remuneration paid by the appellant to the selling agents for discharging the obligation of the selling agents under the agreement of selling the fertilisers.
In the absence of any such agreement the appellant would have been obliged to carry on the activity of organising the sales of its products on its own.
The Central Government issued a notification bearing No. 25/70 dated 1.3.70 which reads as follows: "In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts mixed fertilizers, falling under item No. 14HH of the First Schedule to the (1 of 1944) manufactured with the aid of power, from two or more fertilizers on all of which the appropriate amount of the duty of excise or, as the case may be, the additional duty under section 2 A of the Indian 527 Tariff Act, 1943 (32 of 1934), has already been paid, from the whole of the duty of excise leviable thereon.
Explanation: For the purpose of this notification, the term 'mixed fertilizers ' means mixtures of fertilizers ' containing more than one nutrient (nitrogen, phosphate or potash) and does not include single nutrient fertilizers like super phosphate manufactured from rock phosphate.
" On the basis of this notification the appellant had asked for exemption from the imposition of excise duty on fertilisers manufactured by it, claiming such fertilisers to be mixed fertilisers within the meaning of this Notification.
The appellant had also claimed deduction of the selling agency commission paid by the appellant to its selling agents for sale of the fertilisers manufactured by the appellant as trade discount in the matter of computation of excise duty payable on the fertilisers manufactured by the appellant.
The claims on both these accounts were disallowed by the Assistant Collector whose decisions were upheld by the Appellate Collector.
Aggrieved by the decisions of the authorities concerned, the appellant filed writ petitions in the High Court.
As we have earlier observed, the High Court by its common judgment refused to entertain the claims of the appellant under these two heads and dismissed all the writ petitions filed by the appellant in the High Court.
Against the decision and judgment of the High Court disallowing these claims these appeals with special leave granted by this Court have been filed by the appellant.
The case of the appellant in support of its claim for exemption under the Notification may be indicated.
The claim is made in respect of the Fertiliser known as 'Gromor N.P.K. 14 35 14 ' which, according to the appellant, is a mixed fertiliser qualifying for relief under the Notification.
The petitioner makes the case that Gromor N.P.K. 14 35 14 is manufactured with the aid of power mixing two imported fertilisers, namely, Rock Phosphate and Muriatic of Potash on which the appellant had paid proper duty.
The manufacturing process of the said fertiliser consists of treating Rock Phosphate with Sulfuric Acid which produces Phosphoric Acid.
When such Phosphoric Acid is treated with Ammonia, Mono and Di Ammonium Phosphate in Slurry form comes into existence.
To this slurry, Muriatic of Potash is added.
Thereafter the said mixed fertiliser comes into existence.
During the said process, a small quantity of Ammonium Sulphate is formed, but it is neither possible to 528 separate it nor is it possible to use it, as it is mixed with the other ingredients.
According to the appellant, Mono and Bi Ammonium Phosphate in Slurry form cannot be used as fertilisers for the reason that they are highly concentrated and in Slurry Form.
The contention is that since Gromor N.P.K. 14 35 14 is manufactured with the aid of power from the two fertilisers, it qualifies for exemption under the Notification.
In Support of the contention that the fertiliser Gromor N.P.K. 14 35 14 comes within the scope of the exemption under the notification, Mr. Setalvad, the learned counsel appearing on behalf of the appellant, has argued that on a plain reading of the language used in the Notification this fertiliser clearly comes within the ambit of the Notification and satisfies all the requirements laid down in the Notification for exemption under the said Notification.
Mr. Setalvad argues that the explanation added to the Notification cannot control or in any way affect the plain language used in the Notification.
It is his argument that taxing statutes and rules and notifications issued thereunder will have to be construed and understood with reference to the language used therein and there is no scope for speculation about the true intention or for trying to gather the true intention otherwise than by interpreting the language used therein.
Mr. Setalvad has further commented that the Trade Notice issued by the Government in November, 1974, purporting to qualify the Notification by seeking to lay down that the exemption only applied to physical mixture of duty paid fertilisers and not to mixed fertiliser produced as a result of Chemical reaction, is of no material consequence.
It is his comment that the exemption granted under the Notification cannot in any way be curtailed or taken away or otherwise affected by the issue of a Trade Notice purporting to qualify the meaning and scope of the Notification and the right of any party entitled to the benefit under the Notification cannot be taken away by any purported clarification of the Notification without amending the Notification itself.
It may be noted that before the High Court the very same contention was raised and the very same arguments were advanced.
The High Court has elaborately and very carefully considered the case made for exemption under the Notification and the arguments advanced in support thereof.
On a careful and proper consideration of the contention raised and the arguments advanced, the High Court, in our view, rightly disallowed the claim for exemption and rejected the arguments advanced.
While declining to entertain the claim in this respect the High Court held: 529 "What is exempted is 'Mixed fertilisers ' falling under item No. 14HH of the First Schedule to the Act.
Item 14HH refers to 'fertilisers, all sorts, but excluding natural, animal or vegetable fertilisers when not chemically treated '.
It is, therefore, manifest that the notification is concerned with only 'fertilisers ' and not with any other commodity.
This idea is further demonstrated from the word 'manufactured. .from two or more fertilisers '.
So, it follows that a mixed fertiliser, in order to win the exemption from duty, should be one which has been manufactured from two or more fertilisers.
When the notification once again used the word 'fertilisers ' its intention to emphasise that the exemption would be available only to mixtures of fertilisers becomes patent.
This meaning is further made clearer by the explanation which gives the meaning of the term 'mixed fertilisers ' as 'mixtures of fertilisers.
Therefore, there cannot be any hesitation to understand the meaning of the notification as purporting to grant exemption only to mixed fertilisers manufactured from two or more fertilisers.
It is not its purpose to grant exemption to mixtures of fertilisers and other commodities as well.
Shri Setalvad for the petitioner company strongly urged that if two or more fertilisers are used in the manufacture of mixed fertilisers, such fertilisers would be entitled to exemption dispite the use of other commodities like Sulphuric Acid and Ammonia.
According to him, what all the notification requires is the use of two or more fertilisers in the manufacture of mixed fertilisers and it does not matter if, in addition to two or more fertilisers, some other commodities are also used.
He also pointed out that had the Government of India wanted to limit the exemption in the manner in which the learned Government Pleader construed, then it would have used the word 'only ' before 'two or more fertilisers '.
Since that word does not occur, the exemption would be available even if other commodities are used.
If that were the intention of the notification, then it could have easily said 'manufactured from two or more fertilisers or other substances '.
Not only it omitted to say that, but on the other hand the notification throughout emphasises on the use of fertilisers and fertilisers alone.
The absence of the word 'only ' before 'two or more fertilizers ' does not stand in the way of understanding the real 530 intention of the Government of India.
To our mind, consequently, the true and natural meaning of the notification is that the exemption is available to mixed fertilisers alone.
If other commodities are also used in manufacturing the mixed fertilisers, then the said mixed fertiliser walks out of the exemption.
" The High Court has further observed: "We have already noted the averments in paragraph 8 of the writ petition describing the process of manufacture of NPK 14 : 35 : 14 and the fertilisers and commodities used therein.
The petitioner company itself stated that NPK 14 : 35 : 14 is manufactured by mixing with the aid of power from two imported fertilisers viz. Rock Phosphate and Muriate of Potash.
The Manufacturing process, according to the averments in the writ petitions consists of treating Rock Phosphate with Sulphuric Acid, which treatment produces Phosphoric Acid.
The Phosphoric Acid that is thus produced is further treated with Ammonia as a consequence of which Mono and Di Ammonium Phosphate in slurry form comes into existence.
Let us not think at the present of the Phosphoric Acid and Mono and Di Ammonium phosphate which come into existence in the process of manufacture.
Let us concentrate on the basic commodities used in the manufacture of this fertiliser.
From the averments in paragraph 8 of the writ petition it is obvious that not only the two fertilisers i.e., Rock Phosphate and Muriate of Potash are used, but also Sulphuric Acid and Ammonia are used.
The Sulphuric Acid and Ammonia used in the manufacture of NPK 14 : 35 : 14 are not created in the process of manufacture.
They are brought from outside and utilised in the process of manufacture just like the two fertilisers Rock Phosphate and Muriate of Potash.
This much is evident from paragraph 8 of the writ petition.
Undoubtedly Sulphuric Acid is an acid.
That can be seen not only from the very name it has, but also from the list of acids given in item 14 G of the First Schedule under the head 'acids '.
Ammonia, as can be seen from item 14HH which is under the heading 'gases ', is a gas, Sulphuric Acid and Ammonia are independent commodities which 531 are by themselves eligible to excise duty.
In contrast, when we come to item 14HH in the first schedule, it deals only with 'fertilisers '.
It purports to deal with fertilisers of all sorts excluding natural, animal or vegetable fertilisers, when not chemically treated.
It gives a number of commodities which are treated, under law, as fertilisers.
Entry 3 of item 14HH contains the words which the notification used.
It deals with mixed fertilisers manufactured with the aid of power from two or more fertilisers.
When in the Act itself this distinction between fertilisers, including mixed fertilisers, on one hand and acids like Sulphuric Acid and gases like Ammonia is pointed out and maintained, it is futile to argue that notification No. 25/70 grants exemption to mixed fertilisers which are manufactured from two or more fertilisers and acids and gases.
To say that is only to introduce something which is not in the notification.
We are, therefore, of the view that Gromor NPK 14: 35: 14 is not within the exemption given under the notification".
We entirely agree with the view expressed by the High Court.
We may also note that the High Court has further aptly pointed out: "The process of manufacture of NPK 14: 35: 14, bringing into existence several other, substances, and once again utilising them in the process, treating one substance with the other, cannot be said to be mixture of fertilisers as postulated by the notification.
So, it will have to be held that NPK 14: 35: 14 is not entitled to exemption under notification No. 25/70.
" It has to be borne in mind that the Explanation added to the Notification also forms a part of the Notification itself.
The Notification has to be construed as a whole and in properly interpreting the Notification, the Explanation which has been added to the Notification cannot be ignored.
The question as to whether the Explanation seeks to control the operation or the effect of the Notification is indeed immaterial, as the Explanation purports neither to control nor to alter but only seeks to explain.
What the Explanation provides is not in any way in conflict with or contrary to what the Notification provides.
532 Mr. Setalvad made a grievance that the authorities concerned had allowed the benefit of the Notification under similar circumstances to a rival company.
If the grievance of the appellant is true, the appellant may no doubt have reasons to feel sore about it.
We have, however, to point out that the grievance of the appellant even if it is well founded, does not entitle the appellant to claim the benefit of the Notification.
A wrong decision in favour of any particular party does not entitle any other party to claim the benefit on the basis of the wrong decision.
We are, therefore, clearly of the opinion that the fertiliser manufactured by the appellant in respect of which claim for exemption under the Notification is made is not a mixed fertiliser within the meaning and scope of the Notification and we have no hesitation in rejecting the case of the appellant, expressing our agreement with the reasons stated in the judgment of the High Court.
The other question raised on behalf of the appellant relates to the appellant 's claim for deduction of the commission paid to the selling agents from the assessable value of the goods manufactured in the matter of computation of the excise duty.
(The agreements which the appellant had with the selling agents clearly go to indicate that the selling agents who were being appointed were the agents of the appellant for sale of fertilisers on behalf of the appellant.
The agreement clearly provides that the selling agents will secure orders on behalf of the appellant, execute such orders on behalf of the appellant and will also remain liable to the appellant for realisation of the price of goods sold to various parties; and for such services rendered by the selling agents, the selling agents will be entitled to the commission stipulated in the agreement between the parties.
The agreement is essentially an agency agreement and the selling agents were being appointed as agents for sale and distribution of the product of the appellant on the basis of the terms and conditions stipulated in the agreement.) Clause 2 (a) of the agreement dated April 1, 1971 with M/s. Rallis India Limited which deals with the question of appointment clearly states: "Coromandel hereby appoints the agent as one of Coromandel Sales Agents for sale and distribution on behalf of Coromandel of the product in the territory. . ".
The commission which is paid by the appellant to the selling agents is for services rendered by them as such agents.
Such com 533 mission paid to agents for services rendered cannot be considered to be in the nature of any trade discount which may qualify for deduction in determining the assessable value of the goods for the purpose of imposition of excise duty under the Central Excise and Salt Act, 1944.
The decision of this Court in the case of M.C.V.S. Arunachala Nadar etc.
vs The State of Madras and Ors.
and the decision of the Court of Appeal in England In Relicenced Victuallers ' Mutual Trading Association Exparte Audain relied on by Mr. Setalvad are not of any assistance in deciding the question in the present case.
In the case of M.C.V.S. Arunachala Nadar Etc.
vs The State of Madras and Ors.(Supra) this Court was concerned with the question of constitutional validity of the Madras Commercial Crops Markets Act (Madras XX of 1933), the rules framed thereunder and also certain notifications issued in pursuance thereof.
Bye law 25 dealt with "Trade allowance applying to the market and notified area".
While considering the nature of trade allowance this Court observed at page 109: "What is a trade allowance ? Trade involves exchange of commodities for money, the business of buying and selling and the transaction involves the seller, the buyer, the commodity sold and the price paid for the sale.
Allowance means something given as compensation, rebate or deduction.
Under the section, the said deduction should be in any transaction in respect of commercial crops.
The deduction may be out of the commodity or out of the price.
The recipient may be the seller, the buyer or a third party.
When A sells a quantity of cotton to B for a hundred rupees, B, the purchaser, may deduct one rupee from the sale price and pay ninety nine rupees to A, he may keep that amount for himself, or pay the same to C.
So too, A, the seller, may purport to sell one mound of cotton but in fact deduct a small part of it, retain that part for himself or give it to C; or both A and B may fix the price of the commodity purchased at Rs. 102 but the purchaser pays one rupee to C; or it may be that payments have nothing to do with the price or the transaction, but both the parties pay 534 C a specified amount as consideration for the user of the premises or for the services rendered by him.
The question whether a particular payment is a trade allowance or not, depends upon the facts of each case.
Firstly, it must be a deduction in any transaction in respect of commercial crops.
If it is deduction out of the price or commodity agreed to be paid or transferred, it would be a trade allowance.
On the other hand, if the payment is de hors the terms of the transaction but made towards consideration for the use of the premises or services rendered, it would not be a deduction from the price or in any transaction.
" These observations were made in the context of the provisions of the Act and while construing the same.
They are of no assistance in considering the question raised in the present case.
It may further be noticed that in the instant case, there is no sale by the appellant to the agents to whom the commission is paid by way of remuneration for services rendered as agents of the appellant.
In the case of Relicenced Victuallers ' Mutual Trading Association Exparte Audain (supra), the Court of Appeal in England on a construction of the agreement observed that the word discount in the agreement must be construed as commission so that the agreement was not one to issue shares at a discount.
It is possible that in a given case, payment of what is termed as commission may, depending on the facts and circumstances of the case be in the nature of trade allowance, But every kind of trade allowance does not necessarily qualify for deduction in assessment of excise duty.
Commission paid to an agent for services rendered by him in the matter of sale or the product of the appellant on behalf of the appellant on the basis of the agreement the appellant had with its selling agents cannot be considered to be in the nature of such trade discount as may qualify for deduction in the computation of the assessable value of the goods for the purpose of levy of excise duty.
The commission paid to the selling agents is not a trade discount given either to the wholesale buyer or to the retail buyer.
It is not given to the consumer or the trader.
The commission paid on the basis of the agreement to the selling agent by way of remuneration for services rendered by the agent cannot by any process of reasoning be said to be trade discount payable or paid at the time of removal of the goods from the factory or any other 535 premises of manufacture or production for delivery at the place of manufacture or production.
The amount of commission paid to the selling agents, therefore, is not trade discount within the meaning of the Explanation to section 4 of the Act and does not qualify for any deduction.
In our view the High Court was clearly justified in rejecting this claim of the appellant.
Both the claims made by the appellant, therefore, fail and have been rightly rejected by the High Court.
We, accordingly, dismiss the appeals as also the Special Leave Petitions.
We, however, propose to make no order as to costs.
S.R. Appeal dismissed.

summary:
The appellant carries on business as manufacturers of diverse kinds of fertilizers at its factory at Vishakhapatnam.
The appellant appointed M/s E.I.D. Parry Limited and M/s Rallis India Ltd. as their selling agents and entered into agreements with them for sale of fertilizers manufactured by the appellant on terms and conditions mentioned in the agreements entered into by the appellant with the selling agents.
Under the terms of the agreements the selling agents were appointed by the appellant and were entrusted with the task of arranging the sale of the fertilizers for and on behalf of the appellant in consideration of receiving a commission of three and a half percent calculated on the net realisable value, that is, upon the gross sales realisation less excise duty and sales tax, freight expenses and discount and rebate This commission is the remuneration paid by the appellant to the selling agents for discharging the obligation of the selling agents under the agreement of selling the fertilizers.
In the absence of any such agreement the appellant would have been obliged to carry on the activity of organising the sales of its product on its own.
Based on a Notification issued by the Government of India bearing No. 23/70 dated 1.3.1970, the appellant, in respect of the fertilizers known as "Gromor N.P.K. 14 35 14" claimed exemption from the imposition of excise duty, as it is a mixed fertilizers qualifying for exemption.
The appellant also claimed deduction of the selling agency commission paid to its selling agents for sale of fertilizers manufactured by it as trade discount in the matter of computation of excise duty payable on the fertilizers manufactured by the appellant.
The claims on both these accounts were disallowed by the Assistant Collector whose decisions were upheld by the Appellate Collector.
Aggrieved by the decisions of the authorities concerned, the appellant filed Writ Petitions in the High Court.
The High Court by its common judgment refused to entertain the claims of the appellant under these two heads and dismissed all the Writ Petitions filed by the appellant in the High Court.
Hence the appeals with Special Leave granted by this Court.
524 Dismissing the appeals, the Court ^ HELD: 1: 1.
The fertilizers manufactured by the appellant in respect of which a claim for exemption under the Notification No. 23 of 1970 dated 1.3.1970 is made, is not mixed fertilizers within the meaning and scope of the Notification, since the process of manufacture of N.P.K. 14 35 14 brings into existence several other substances and once again utilises them in the process treating one substance with the other.
[532B C] 1:2.
The Explanation added to the Notification also forms a part of the Notification Itself.
The notification has to be construed as a whole and in properly interpreting the Notification, the Explanation which has been added to the Notification cannot be ignored.
The question as to whether the Explanation seeks to control the operation or the effect of the Notification is indeed immaterial, as the Explanation purports neither to control nor to alter but only seeks to explain.
What the Explanation provides is not in any way in conflict with or contrary to what the Notification provides.
[531G H] 1: 3.
A wrong decision by the Excise Authorities in favour of any particular party allowing the benefit of the Notification under similar circumstances to a rival company does not entitle any other party to claim benefits on the basis of that wrong decision.[532B] 2: 1.
The amount of commission paid to the selling agents is not a trade discount within the meaning of the Explanation to Section 4 of the Central Excise and Salt Act, 1944 and does not qualify for deduction in determination of the assessable value of the goods for the purpose of imposition of excise duty, though it is possible that in a given case, payment of what is termed as commission may, depending on the facts and circumstances of the case be in the nature of trade allowance.
But every kind of trade allowance does not necessarily qualify for deduction in assessment of excise duty.
Here the agreements make it clear that the commission paid to the selling agents is not a trade discount given either to the wholesale buyer or to the retail buyer.
It is not given to the consumer or the trader.
The commission paid on the basis of the agreement to the selling agents by way of remuneration for services rendered by the agent cannot by any process of reasoning be said to be trade discount payable or paid at the time of removal of the goods from the factory or any other premises of manufacture or production for delivery at the place of manufacture or production.
[534F H; 535A] M.C.V.S.
Arunachala Nadar Etc.
vs The State of Madras and Ors.
[1959] Suppl.
1 SCR 92; In Re: Licensed Victualler 's Mutual Trading Association Exparte Audain [1889] (42) Law Reports Chencery Division 1; discussed and held inapplicable.


judgement:
N: Petition for Special Leave to Appeal (Criminal) No. 1923 of 1984.
From the Judgment and Order dated the 19th June, 1984 of the Madras High Court in Crl.
Petition No. 8164/83, 8168, 8166 & 8170/83.
C.S. Vaidyanathan for the Petitioner.
The Order of the Court was delivered by VENKATARAMIAH, J.
The petitioner is the proprietor of M/s. Ratnam Food Stuff Co., Tuticorin.
He is an assessee under the Income tax Act, 1961 (hereinafter called 'the Act ').
For the assessment year 1977 78, he filed his return under the Act on January 20, 1978 disclosing an income of Rs. 13,380/ alongwith the profit and loss account, trial balance, income tax adjustment statement and a copy of the capital account.
The return was accepted.
On August 20 and 21, 1981, a search was conducted at the residence of the petitioner under section 132 of the Act which resulted in the seizure of several documents and account books which revealed the suppression of purchase of chicory seeds, the existence of several bank accounts, fixed deposits, investments in the names of his wife and daughters and several bank accounts not disclose in the statements filed alongwith the return.
The trading and profit and loss account for the assessment year 1977 78 filed alongwith the return showed that he had purchased chicory seeds of the value of Rs. 65,797/ as against Rs. 2,15,729/ as per the seized accounts.
There were several other wrong statements in the accounts.
On the basis of the allegation that the petitioner had deliberately filed a false return and had kept false accounts with the intention of using them as genuine evidence in the assessment proceedings, a complaint was filed against him in the Court of the Additional Chief Judicial Magistrate (Economic Offences), Madurai for taking action against him for offence punishable under section 276C and section 277 of the Act and under sections 193 and 196 of the Indian Penal Code.
Similarly three other complaints were filed against the petitioner for the same offences said to have been committed by him in respect of three succeeding assessment years 1978 79, 1979 80 and 539 1980 81 before the same Magistrate.
The petitioner thereupon filed four petitions under section 482 of the Code of Criminal Procedure before the High Court of Madras requesting it to quash the said proceedings contending that the launching of the prosecution in each of the four cases was a premature one on the ground that the reassessment proceedings started against him under the Act had not been completed.
All the four petitions were dismissed by the High Court by four separate orders dated June 19, 1984.
The petitioner has filed this petition before this Court under Article 136 of the Constitution for leave to appeal against the above said four orders of the High Court.
The only point which arises for consideration in this case is whether prosecutions for offences punishable under section 276C and section 277 of the Act and under section 193 and 196 of the Indian Penal Code instituted by the Department while the reassessment proceedings under the Act are pending are liable to be quashed on the ground that they were not maintainable.
The material parts of section 276C and 277 of the Act read as follows: "276C. Wilful attempt to evade tax etc. (1) If a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or impossible under this Act, he shall, without prejudice to any penalty that may be impossible on him under any other provision of this Act, be punishable, (i) in a case where the amount sought to be evaded exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.
If a person willfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three 540 years and shall in the discretion of the court, also be liable to fine.
Explanation. . . . . . . . "277.
False statement in verification etc.
If a person makes a statement in any verification under this Act or under any rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable, (i) in a case where the amount of tax, which would have been evaded if the statement or account had been accepted as true, exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less then six months but which may extend to seven years and with fine.
(ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine.
" The relevant parts of sections 193 and 196 of the Indian Penal Code read thus: "193.
Punishment for false evidence.
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which extend to three years, and shall also be liable to fine.
Explanation. . . . . . . . "196.
Using evidence known to be false.
Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. ' At the outset it has to be stated that there is no provision in law which provides that a prosecution for the offences in question cannot 541 be launched until reassessment proceedings initiated against the assessee are completed.
Section 279 of the Act provides that a person shall not be proceeded against for an offence punishable under section 276C or section 277 of the Act except at the instance of the Commissioner.
It further provides that a person shall not be proceeded against for an offence punishable under those provisions in relation to the assessment for an assessment year in respect of which penalty is imposed or imposable on him under clause (iii) of sub section (1) of section 271 has been reduced or waived by an order under section 273A.
The Commissioner has the power either before or after the institution of proceedings to compound any such offence.
In this case it is not claimed that the Commissioner has not initiated the proceedings for instituting the complaints.
No other legal bar for the institution of the proceedings is urged except stating that in the event of the petitioner being exonerated in the reassessment proceedings, the prosecutions may have to be dropped.
It is true that as observed by this Court in Uttam Chand & Ors.
vs Income tax officer, Central Circle, Amritsar(1) the prosecution once initiated may be quashed in the light of a finding favourable to the assessee recorded by an authority under the Act subsequently in respect of the relevant assessment proceedings but that decision is no authority for the proposition that no proceedings can be initiated at all under section 276C and section 277 as long as some proceeding under the Act in which there is a chance of success of the assessee is pending.
A mere expectation of success in some proceeding in appeal or reference under the Act cannot come in the way of the institution of the criminal proceedings under section 276C and section 277 of the Act.
In the criminal case all the ingredients of the offence in question have to be established in order to secure the conviction of the accused.
The criminal court no doubt has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Act.
It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court.
The criminal court has to judge the case independently on the evidence placed before it.
Otherwise there is a danger of a contention being advanced that whenever the assessee or any other person liable under the Act has failed to convince the authorities in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably 542 follow in the criminal court.
The High Court of Punjab and Haryana has correctly applied the rule regarding the maintainability of prosecution in such circumstances in M/s. Telu Ram Raungi Ram & Anr.
vs Income tax officer A Ward Hoshiarpur & Anr(1).
We do not however, agree with the view expressed by the High Court of Calcutta in Jyoti Prakash Mitter vs Haramohan Chowdhury.(2) In that case on a complaint made against the assessee for an offence punishable under section 277 of the Act, the Chief Metropolitan Magistrate issued process.
Thereupon the assessee questioned the validity of the initiation of the criminal proceedings before the High Court of Calcutta on the ground that until the penalty proceedings initiated in respect of the same period under section 271(1)(c) of the Act were finally disposed of, no complaint could be filed.
The contention of the assessee was that the prosecution was opposed to the principles of natural justice as he would be deprived of the benefit of a finding which was likely to be recorded in his favour in the penalty proceedings.
It was urged on behalf of the Department that the penalty proceedings under section 271(1)(c) had no direct bearing on the maintainability of a prosecution launched under Chapter XXII of the Act.
The High Court took the view which according to us is an erroneous one that the provisions of section 279(1A) of the Act established the necessity for the completion of the penalty proceedings before the institution of the prosecution and therefore as long as the penalty proceedings were pending the criminal proceedings could not be instituted.
Section 279(1A) of the Act merely states that a person shall not be proceeded against for an offence under section 276C or section 277 in relation to the assessment for an assessment year in respect of which the penalty imposed or imposable on him under clause (iii) of sub section (1) of section 271 has been reduced or waived by an order under section 273A. Section 273A(1)(ii) provides that notwithstanding anything contained in the Act, the Commissioner may, in his discretion, whether on his own motion or otherwise, reduce or waive the penalty if the conditions mentioned therein are satisfied.
The power conferred on the Commissioner under section 273A is an overriding power which he may exercise at his discretion.
It is only where the Commissioner reduces or waives the penalty imposed or imposable under section 271(1)(iii) of the Act in exercise of his discretion under section 273A, section 279(1A) comes into operation and acts as a statutory bar for proceeding with the prosecution under section 276C or section 277.
It does not, however, provide that merely because there is a possibility of the Commissioner 543 passing an order under section 273A, the prosecution shall not be instituted.
The reason given by the High Court of Calcutta, therefore, does not appeal to us.
It may be that in an appropriate case the criminal Court may adjourn or postpone the hearing of a criminal case in exercise of its discretionary power under section 309 of the Code of Criminal Procedure if the disposal of any proceeding under the Act which has a bearing on the proceedings before it is imminent so that it may take also into consideration the order to be passed therein.
Even here the discretion should be exercised judicially and in such a way as not to frustrate the object of the criminal proceedings.
There is no rigid rule which makes it necessary for a criminal court to adjourn or postpone the hearing of a case before it indefinitely or for an unduly long period only because some proceeding which may have some bearing on it is pending elsewhere.
But this, however, has no relevance to the question of maintainability of the prosecution.
The prosecution in those circumstances cannot be quashed on the ground that it is a premature one.
On a careful consideration of the relevant provisions of the Act, we are of the view that the pendency of the reassessment proceedings cannot act as a bar to the institution of the criminal prosecution for offences punishable under section 276C or section 277 of the Act.
The institution of the criminal proceedings cannot in the circumstances also amount to an abuse of the process of the court.
The High Court was, therefore, right in refusing to quash the prosecution proceedings in the four cases instituted against the petitioner under section 482 of the Code of Criminal Procedure.
The Special Leave Petition is, therefore, dismissed.
H.S.K. Petition dismissed.

summary:
The petitioner, an assessee under the Income Tax Act, 1961, filed income tax returns which were accepted.
Later a search of the petitioner 's residence revealed that the petitioner had suppressed certain business transactions and had kept false accounts.
On the basis of the allegation that the petitioner had deliberately filed false returns and had kept false accounts with the intention of using them as genuine evidence under the assessment proceedings, complaints were filed against him in the trial court for taking action against him for offences punishable under sections 276C and 277 of the Income Tax Act and under sections 193 and 196 of the Indian Penal Code.
The petitioner moved the High Court under section 482 of the Code of Criminal Procedure for quashing the proceedings contending that the launching of the prosecution was a premature one on the ground that the reassessment proceedings started against him under the Income Tax Act had not been completed.
The High Court dismissed the petitions.
The petitioner filed this petition for special leave to appeal.
The petitioner did not urge any legal bar for the institution of the proceedings except stating that in the event of the petitioner being exonerated in the reassessment proceedings, the prosecutions may have to be dropped.
Dismissing the petition for special leave, 537 ^ HELD: The pendency of the reassessment proceedings cannot act as a bar to the institution of the criminal prosecution for offences punishable under section 276C or section 277 of the Act.
The institution of the criminal proceedings cannot in the circumstances also amount to an abuse of the process of the court.
[543 E] There is no provision in law which provides that a prosecution for the offences in question cannot be launched until reassessment proceedings initiated against the assessee are completed.
[540 H] A mere expectation of success in some proceeding in appeal or reference under the Act cannot come in the way of the institution of the criminal proceedings under section 276C and section 277 of the Act.
In the criminal case all the ingredients of the offence in question have to be established in order to secure the conviction of the accused.
The criminal court no doubt has to give due regard to the result of any proceeding under the Act having a bearing on the question in issue and in an appropriate case it may drop the proceedings in the light of an order passed under the Act.
It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court.
The criminal court has to judge the case independently on the evidence placed before it.
Otherwise there is a danger of a contention being advanced that whenever the assessee or any other person liable under the Act has failed to convince the authorities in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the criminal court.[541 E H] Uttam Chand & Ors.
vs Income tax Officer Central Circle, Amritsar, (1982)133 I.T.R. 909, referred to.
M/s. Telu Ram Raungi Ram & Anr.
vs Income tax Officer, 'A ' Ward.
Hoshiar Pur & Anr., (1984)145 I.T.R. 111, upheld.
The view of the Calcutta High Court in Jyoti Prakash Mitter vs Haramohan Chowdhury that the provisions of section 279(1A) of the Income Tax Act established the necessity for the completion of the penalty proceedings before the institution of the prosecution and therefore as long as the penalty proceedings were pending the criminal proceedings could not be instituted was erroneous.
Section 279(1A) does not provide that merely because there is a possibility of the Commissioner passing an order under section 273A, the prosecution shall not be instituted.
[542 D; H; 543 A] Jyoti Prakash Mitter vs Haramohan Chowdhury, overruled.
It may be that in an appropriate case the criminal Court may adjourn or postpone the hearing of a criminal case in exercise of its discretionary power under section 309 of the Code of Criminal Procedure if the disposal of any proceeding under the Act which has a bearing on the proceedings before it is imminent so that it may take also into consideration the order to be passed therein.
Even here the discretion should be exercised judicially and in such a way as not to frustrate the object of the criminal proceedings.
There is no rigid rule which makes it necessary for a criminal court to adjourn or postpone the 538 hearing of a case before it indefinitely or for an unduly long period only because some proceeding which may have some bearing on it is pending elsewhere.
But this, however, has no relevance to the question of maintainability of the prosecution.
The prosecution in those circumstances cannot be quashed on the ground that it is a premature one.
[543 B D]