judgement:
Civil Appeal No. 381 of 1965.
Appeal by special leave from the judgment and decree dated May 2, 1961 of the Allahabad High Court in Execution First Appeal No.10 of 1954.
Naunit Lal, for the appellant.
V.A. Seyid Muhammad and S.P. Nayar, for the respondents.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Allahabad High Court confirming the order of the District Judge dismissing an Execution Application filed by the appellant.
On June 16, 1948 the appellant entered into an agreement with Aziz Ahmed Khan respondent No. I for the sale of certain properties comprising houses and plots in the town of Bareilley.
The sale consideration of Rs. 1,45,000/ was stated have been already paid by the appellant to the vendor.
Subsequently disputes arose between the vendor and the appellant regarding the completion of the sale.
These disputes were refered to the arbitration of Shri R.R. Agarwal who gave an award on August 30, 1949 which was made a rule of the court on November 30, 1949.
A decree on the basis of the award was granted in favour of the appellant.
Sometimes after November 22, 1949 the vendor Aziz Ahmed Khan left India for Pakistan.
On December 7, 1950 the appellant moved the Deputy Custodian (Judicial) Meerut Circle for confirmation of the transfer under section 38 of the Administration of Evacuee Property Ordinance, 1949, (Ordinance No. 27 of 1949), or under section 40 of the (Act 31 of 1950).
On 9th May 1951 the Deputy Custodian accorded confirmation.
The Additional Custodian, however, took suo motu action in exercise of his revisional jurisdiction and set aside the order passed by the Deputy Custodian.
On April 4,.
1952 the appellant filed an application for execution of the decree passed on the basis of the award.
On May 10, 1952 objections were filed on behalf of the Custodian to the execution.
The District Judge held that the award made on August 30, 1949 could not have the effect of transferring the properties as the approval of the Collector had not been obtained under the notification dated July 29, 1949 which had been 798 issued under section 26 of U.P. Administration of Evacuee Property Ordinance No. 1 of 1949 and that on the date of the decree the transfer of properties could not be effected unless confirmed by the Custodian.
It was further held by him that no interest by way of charge in favour of the appellant had been created on the properties in dispute.
He was further of the view that section 17(1) of the Central Act of 1950 created a bar to execution of the decree.
The Execution application was consequently dismissed.
The appellant filed an appeal to the High Court which was dismissed.
When the appeal came up for hearing before this Court on February 22, 1968 it was.
considered expedient to have further findings on certain points.
The following questions were therefore framed and remitted to the High Court for that 'purpose.
(1) the date on which Aziz Ahmed Khan migrated to Pakistan.
(2) whether the properties of Aziz Ahmed Khan vested in the Custodian of Evacuee Property under U.P. Ordinance 1 of 1949 or Central Ordinance 12 of 1949 as made applicable to the State of U.P. by U.P. Ordinance 20 of 1949 or under the Central Ordinance 27 of 1949 or under Central Act of 1950.
The High Court remitted these matters to the District Judge.
His finding on the first question was that Aziz Ahmed Khan had migrated to Pakistan on some date after November 22, 1949.
On the second question he found that Aziz Ahmed Khan 's properties did not vest in the Custodian of Evacuee Property under any of the Ordinances or under the Central Act 31 of 1950.
Certain additional evidence was produced before the High Court.
The High Court expressed agreement with the conclusions of the District Judge on both the points.
It may be mentioned that on certain subsidiary points the.
learned District Judge had .also found that it had not been proved that a valid declaration under section 7(1) of the Central Ordinance 27 of 1949 or of the corresponding provision in the Central Act 31 of 1950 was made for declaring Aziz Ahmed Khan an evacuee.
In the opinion of the learned Judge such a declaration was necessary if his properties were to be declared evacuee properties.
In view of the findings which have been returned by the High Court on the points referred, it has been contended on behalf of the appellant that there could be no bar to the execution of the decree which was based on the award.
It is 799 pointed out that on the conclusions at which the High Court has now arrived the properties of Aziz Ahmed Khan were never declared to be evacuee properties either under the Central Ordinance 27 of 1949 or the Central Act 31 of 1950, and they could not vest in the Custodian unless they had been so declared after appropriate proceedings.
It is urged that the decree in favour of the appellant was of the nature of a decree passed in a suit for specific performance.
The court could and should have executed d conveyance in favour of the appellant since Aziz Ahmed Khan was no longer available or was refusing to do so and the confirmation of the Custodian could be obtained before the registration was effected.
According to the counsel for the appellant the Additional Custodian had declined to confirm the transfer at the previous stage because there was no deed of sale or transfer.
Counsel for the respondent has drawn attention to a decision of this Court in Azimunissa & Others vs The Deputy Custodian Evacuee Properties, District Deoria & Ors.(1) in which the effect of the declaration of U.P. Ordinance l of 1949 to be invalid by the courts came up for the consideration, as also of the subsequent evacuee legislation namely, Central Ordinance 27 of 1949, Central Act 31 of 1950 and the Administration of Evacuee Property (Amendment) Act, 1960.
It appears to have been held in that case that the property which had vested under the U.P. Ordinance 1 of 1949 continued to vest in the Custodian notwithstanding the ,fact that the High Court of Allahabad in Azimunnissa & Ors.
vs Assistant Custodian(2) held the vesting to be invalid.
This was the result of the introduction of section 8(2 A) in the Central Act of 1931 by the Central Amendment Act I of 960.
In the present case, however, Aziz Ahmed Khan migrated to Pakistan after November 22, 1949.
At that point of time it was Central Ordinance 27 of 1949 which was in force.
It appears highly doubtful that the respondent could take advantage of the.
provisions of automatic vesting contained in U.P. Ordinance 1 of 1949.
There is, however, a serious hurdle in the way of the appel lant even when the provisions of Central Ordinance 27 of 1949 or the Central Act 31 of 1950 are taken into consideration.
Section 38(1) of that Ordinance provided that no transfer of any right or interest in any property after the 14th day of August 1947 by or on behalf of an evacuee or by or on behalf of a person who had become an evacuee after the date of ' the transfer shall be effective so as to confer any rights or remedies on the parties to such transfer unless it was confirmed by the Custodian.
The provision of section 40 of the Central Act (1) ; (2) A.I.R. 1957 All.
LI5SupCI/69 7 800 31 of 1950 were similar though there was a certain change in the language.
Sub section (1) of that section was in the following terms : "No transfer made after the 14th day of August, 1947, but before the 7th day of May 1954, by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if, at any time after the transfer, the transferor becomes an evacuee within the meaning of section 2 or the property of the transferor is declared or notified to be evacuee property within the meaning of this Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act".
Under both these enactments transfer of property was ineffective unless confirmed by the Custodian even if it was made by a person who became an evacuee.
after the date of the transfer.
It was not necessary that the property should have been declared or notified to be evacuee property before the aforesaid provisions were attracted.
Under section 40(1) of the Act, the transfer was to be ineffective in both eventualities; (1) if the transferor became an evacuee within the meaning of section 2 after the transfer or (2) if the transferor 's property had been declared or notified to.
be evacuee property.
It is abundantly clear that if Aziz Ahmed Khan became an evacuee even after the transfer.
section 38(1) of the Ordinance and section 40(1) of the Act became applicable.
One of the meanings of the word "evacuee" as .given in the definition in section 2(d) of the Ordinance and of the Act was : Section 2(d)(i) "evacuee" means any person, who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear o.f such disturbances leaves or has, on or after the 1st day of March, 1947, left any place in a Province for any place outside the territories now forming part of India," Aziz Ahmed Khan became an evacuee within the meaning of the above definition.
It was necessary, therefore, for the appellant to have obtained the confirmation of the Custodian in respect of the transfer which had been made by Aziz Ahmed Khan in his favour of the properties in question.
The Additional Custodian declined to confirm the transfer and thus the condition precedent for the transfer to become effective remained 801 unsatisfied.
It is significant that even in the award which formed the basis of the decree it had been provided "the second party (Aziz Ahmed Khan) is hereby directed to execute the necessary documents in respect of the transfer by him of the properties referred to above within one month from the date of the receipt of the confirmation or approval according to law failing which the first party will, at his option, get the same executed and registered through court on the basis of this award which would be made a rule of the court.
Therefore according to the award the confirmation or approval of the Custodian had to be obtained before the transfer documents were to be executed and completed in accordance with law.
It was incumbent on the appellant to obtain the confirmation order before he could ask for any further steps to be taken by the courts in the matter of execution and registration of the transfer deed.
Under section 39 of the Central Ordinance 27 of 1949 no document could be registered of the nature mentioned in section 38 unless the Custodian had confirmed the transfer.
Similar provisions were contained in section 40 of the Central Act 31 of 1950.
The prayer in the Execution Application that the court might grant assistance "by execution of sale deed under the enabling para 5 of the Decree" could not be entertained or acceded to by the Executing Court.
There is one matter, however, on which we would like to express no view and leave it open to the appellant to take such steps as he may be advised.
Para 6 of the award which became part of the decree was as follows : "The claim of the first party for this transfer and exchange consideration is Rs. 1,50,000/ (one lac fifty thousand) on account of all principal money and interest and other expenses calculated to date against the second party Sri Aziz Ahmed Khan, which the second party will pay with interest at 12 per cent per annum in case the transaction and transfer of the properties referred to above in favour of the first part Sri Sardana is not confirmed or approved in any way and for any other reasons whatsoever.
Sri Sardana will force the payments against the properties referred to above.
and these properties are hereby charged with this claim and Sri Sardana will have his remedies to enforce the payment of the above claim against all other properties of the second party and also against his person.
" The High Court in the judgment under appeal dealt with this question as if the charge was on the evacuee property.
On the reasoning which has been pressed before us about the necessity 802 Of a declaration under the provisions of Central Ordinance 27 of 1949 or Central Act 31 of 1950 this part of the judgment does not appear to be correct.
We would, however, refrain from expressing any final opinion as in fairness to both sides this question should be left for being decided, if taken, in appropriate proceedings including proceedings before the Executing Court.
With the above observations the appeal is dismissed but in view of the entire circumstances we make no order as to costs.
Y.P. Appeal dismissed.

summary:
The first respondent entered into an agreement to sell his properties to the appellant.
Disputes relating to completion of the sale were referred to arbitration.
An award was made directing the first respondent to execute the documents in respect of the transfer by him within one month from the date of the receipt of the confirmation or approval according to law, failing which the appellant was at liberty to get it executed and registered through court.
The award was made a rule of the court on November 30, 1949 and a decree on the basis of the award was granted.
The first respondent left India 'for Pakistan so.me date after November 22, 1969.
The appellant moved the Deputy Custodian of Evacuee Property for confirmation of the transfer under section 38 of the Administration of Evacuee Property Ordinance, 1949 or under section 40 of the .
The Deputy Custodian accorded confirmation, but the Additional Custodian set aside the order of the Deputy Custodian.
The appellant filed an application for execution of the decree on the 'basis of the award to which objections were filed by the Custodian.
The District Judge held that on the date of the decree transfer of properties could not be effected unless confirmed by the Custodian, The appellant 's appeal to the High Court was dismissed.
In appeal to this Court, it was contended that there could be No. bar to.
the execution of the decree based on the award, since the respondent 's properties were never declared to be evacuee properties either under Central Ordinance 27 of 1949 or Central Act 31 of 1951 and that they did not vest in the Custodian unless they were so declared after appropriate proceedings.
Dismissing the appeal, HELD: Under the provisions of section 38(1) of Central Ordinance 27 of 1949 and section 40(1) of Central Act 31 of 1951, transfer of property was ineffective unless confirmed by the Custodian even if a person became an evacuee after the date of transfer.
It was not necessary that the property should have been declared or notified to be evacuee property before those provisions were attracted.
[800 D] In the present case the respondent had become an evacuee within the meaning of section 2(d) of the Ordinance and the Act.
The Additional Custodian declined to confirm the transfer made by the respondent and therefore the condition precedent for a valid transfer remained unsatisfied.
Further, even according to the award the confirmation or approval of the Custodian had to be obtained before the transfer of documents were to be executed and completed in accordance with law.
It was incumbent on the 797 appellant to obtain the confirmation order before he could ask for any further steps to be taken by the courts in the matter of execution and registration of the transfer deed.
[800 H]


judgement:
N: Civil Appeal Nos.
1629 to 1631 of 1968.
Appeals from the judgment and order dated January 29, 1965 of the Calcutta High Court in Wealth Tax Matter No. 372 of 1961.
B. Sen, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in 'all the appeals).
M.C. Chagla, R.K. Choudhury and B.P. Maheshwari, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate granted under section 29(1) of the Wealth Tax Act,1957 (hereinafter referred to as the Act) against the judgment of the Calcutta High Court dated January 29, 1965 in Wealth Tax Matter No. 372 of 1961.
The respondent is a company which is assessed to wealthtax for the assessment years 1957 58,1958 59 and 1959 60.
In computing the net wealth of the respondent on the respective valuation dates the Wealth Tax Officer proceeded under section 7(2)(a) of the Act and included the full value of the fixed assets as shown by the respondent in the respective balance sheets without any adjustment, after rejecting its contention that the fixed assets should be assessed at their written down value as computed for the purposes of income tax.
In the assessment order 791 for 1957 58 the Wealth tax Officer gave his reasons as follows : "The assessee claimed that since the full amount of depreciation which was admissible under the Incometax Act was not provided in the balance sheet the amount of depreciation not provided for earlier should now be deducted from the value of the assets in order to arrive at the net wealth.
This contention can hardly be accepted.
The depreciation allowable under the Income tax Act does not determine the market value of the assets.
The object of allowing depreciation in the income tax assess ment is quite different For the purpose of the wealth tax assessment the value of the assets as estimated by the assessee itself in its balance sheet has been accepted".
Similarly in his assessment order for 1958 59 the Wealth tax Officer stated as follows : "Excluding the value of land, the total value of the fixed assets as per balance sheet amounts to Rs. 60,53,811 whereas the assessee has shown in its return the value of the same at Rs. 7,69,435.
These values have been shown by the assessee on the basis of income tax written down value and not on the basis of the balance sheet values as required under the global system of valuation.
It is common knowledge that the values of the imported machinery has increased considerably during the last few years and, on the valuation date, I do not think that their value should be less than that provided for in the balance sheet".
On appeal the Appellate Assistant Commissioner confirmed the valuation of the fixed assets.
On further appeal the Income tax Appellate Tribunal held that it would be fair in the circumstances of the case to adopt the written down value of the assets as value thereof for all the years under appeal.
In the course of its order the Appellate Tribunal said: "The income tax assessment depreciation is calculated upon the original cost in a scientific and systematic manner with due regard to the nature of the asset.
Therefore, the written down value as determined in the income tax assessment may be taken as the fair index of the net value of the business assets in most cases . .
It cannot however be laid down as an inflexible rule of law that in every case the written down value must be taken to be the net 792 value of the business assets.
If that were so.
the Legislature would have said so in clear terms instead of indulging in the circumlocution in section 7(2)(a).
In this particular case, it appears, the assessee did not make any reserve for depreciation and the assets are old dating back from the inception of the business long ago.
In these circumstances, in our opinion, it would be fair to adopt the written down value of the assets as the value thereof for all the years under appeal . " At the instance of the Commissioner of Income tax the Appellate Tribunal stated a case to the High Court under section 27(1) of the Act on the following question of law : "Whether on the facts and in the circumstances of the case, for the purpose of determining the net value of the assets of the assessee under section 7(2) of the the Tribunal was right in directing that the written down value of the fixed assets of the assessee should be adopted as the value thereof, instead of their balance sheet value ?" By its judgment dated January 29, 1965 the High Court answered the question in the affirmative and in favour of the respondent.
Section 7 of the Act stood as follows at the material time : "(1) The value of any asset, other than cash, for the purposes of this Act, shall be estimated to be the price which in the opinion of the Wealth tax Officer it would fetch if sold in the open market on the valuation date.
(2) Notwithstanding anything contained in subsection (1), (a) where the assessee is carrying on a business for which accounts are maintained by him regularly, the Wealth tax Officer may, instead of determining separately the value of each asset held by the assessee in such business, determine the net value of the assets of the business as a whole having regard to the balance sheet of such business as on the valuation date and making such adjustments therein as the circumstances of the case may require.
793 In Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealth Tax, (Central) Calcutta(1) the appellant company had shown in its balance sheet for the period ending March 31, 19.57, the appreciated value on revaluation of its assets, after making certain adjustments, at Rs. 2,60,52,357 and had introduced in the capital reserve surplus a corresponding balancing figure of Rs. 1,45,87,000 representing the increase in the value of the assets upon re valuation.
For the purposes of wealth tax the officer took the sum of Rs. 2,60,52,357 as the value of the assets, whereas the company contended that an adjustment ought to be made in view of the increase in the value shown in the balance sheet on re valuation.
It was held by this Court that as no one could know better the value of the assets than the assessee himself, the Wealth tax Officer was justified in accepting the value of the assets at the vigour shown by the appellant company itself.
It was open to the appellant company to convince the authorities that that figure was inflated for acceptable reasons; but it did not make any such attempt.
It was also open to the Wealth tax Officer to reject the figure given by the appellant company and to adopt another figure if he was, for sufficient reasons, satisfied that the figure given by the appellant was wrong.
It is argued on behalf of the appellant in the present case that the High Court was not right in holding that the principle laid down by this Court in Kesoram Industries(1) case is not applicable.
In our opinion there is justification for this argument.
Under sub section (1 ) of section 7 of the Act the Wealth tax Officer is authorised to estimate for the purpose of determining the value of any asset, the price which it would fetch, if sold in the open market on the valuation date.
But this rule in the case of a running business may often be inconvenient and may not yield a true estimate of the net value of the total assets of the business.
The legislature has, therefore, provided in sub section (2) (a) that where the assessee is carrying on a business for which accounts are maintained by him regularly, the Wealth tax Officer may determine the not value of the assets of the business as a whole, having regard to the balancesheet of such business as on the valuation date and make such adjustments therein as the circumstances of the case may require.
The power conferred upon the tax officer to make adjustments as the circumstances of the case may require is also for the purpose of arriving at the true value of the assets of the business.
It is of course open to the assessee in any particular case to establish after producing relevant materials that the value given of the fixed as.sets in the balance sheet is artificially (1) ; 794 inflated.
It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date.
In the absence of any material produced by the assessee to demonstrate that the written down value is the real value, the Wealth tax Officer would be justified in a normal case in taking the value given by the assessee itself to its fixed assets in its balance sheet for the relevant year as the real value of the assets for the purposes of the wealth tax.
It is a question of fact in each case as to whether the depreciation has to be taken into account in ascertaining the true value of the assets.
The onus of proof is on the assessee who must produce reliable material to show that the written down value of the assets and not the balance sheet value is the true value.
If, therefore, the assessee merely claims that the written down value of the assets should be adopted but fails to produce any material to show that the written down value is the true value, the Wealth tax Officer is justified in rejecting the claims and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets.
In our opinion the High Court should have based its decision on the principle of Kesoram Industries(1) case and the question of law should be answered in the manner stated by us in this judgment.
But it is necessary to give certain effective directions in this case.
Section 27(6) of the Act requires the Tribunal on receiving a copy of the judgment of the Supreme Court or the High Court as the case may be to pass such orders as are necessary to dispose of the case conformably to such judgment.
This clearly imposes an obligation upon the Tribunal to dispose of the appeal in the light and conformably with the judgment of the Supreme Court.
Before the Tribunal passes an order disposing of the appeal there would normally be a hearing.
The scope of the hearing must of course depend upon the nature of the order passed by the Supreme Court.
If the Supreme Court agrees with the view of the Tribunal the appeal may be disposed of by a formal order.
But if the Supreme Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the Supreme Court.
If the Supreme Court has held that the judgment of the Tribunal is vitiated because it is based on no evidence or because the judgment proceeds upon a misconstruction of the statute, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the Supreme Court and on the merits of the dispute and re hear the appeal.
In all cases, however, opportunity must be afforded to the parties of being heard.
In Income(l) ; 795 tax Appellate Tribunal, Bombay vs
S.C. Cambatta & Co. Ltd.(1) the Bombay High Court has explained the procedure followed in the disposal of an appeal conformably to the judgment of the High Court.
Chagla C.J. in delivering the judgment .of the Court observed : ". . when a reference is made to the High Court e her under section 66(1) or section 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of.
It is only when the High Court decided the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides it, that the appeal finally disposed of . . it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under section 33 .
The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court.
" This passage was quoted with approval by this Court in Esthuri Aswathiah vs Commissioner of Income tax(2).
In the present case, therefore, the answer we have furnished to the question in the reference means that the Appellate Tribunal must now, in conformity with the judgment of this Court, act under section 27(6) of the Act, that is to say, dispose of the case after rehearing the respondent company and the Commissioner in the light of the evidence and according to law.
There will be no order as to costs.
G.C. (1) , 120.

dataset_name: IN-Abs

summary:
The respondent company was assessed to wealth tax for the assessment years 1957 58, 1958 59 and 1959 60.
In computing the net wealth of the respondent on the respective valuation dates the Wealth Tax Officer proceeded under section 7(2)(a) of the Act and included the full value of the fixed assets as shown by the respondent in the respective balance sheets without any adjustment, after rejecting` its contention that the fixed assets should be assessed at their written down value as computed for the purposes of income tax.
The Appellate Assistant Commissioner confirmed the valuation but the Income tax Appellate Tribunal held that it would be fair in the circumstances of the case to adopt the written down value of the asset 's as value thereof for all the years under appeal.
On reference being made to it under section 27(1) of the Wealth Tax Act the High Court held in 'favour of the respondent.
The Revenue appealed, HELD: The rule of valuation on the basis of market value under section 7(1) of the Act may not yield a true estimate of the net value of the total assets in the case of a running business.
The legislature has therefore provided in sub section
(2)(a) that when the assessee is carrying on a business for which accounts are maintained by him 'regularly, the Wealth Tax Officer may determine the net value of the business as a whole, having regard to the balance sheet of such business as on the valuation date and make such adjustments therein as the circumstances of the case may require.
The power conferred upon the tax officer to make adjustments as the circumstances of the case may require is also for the purpose of arriving at the true value of the assets of the business.
It is of course open to the assessee in any particular case to establish after producing relevant materials that the value given of the fixed assets in the balance sheet is artificially inflated.
It is also open to the assessee to establish by acceptable reasons that the written down value of any particular asset represents the proper value of the asset on the relevant valuation date.
In the absence of any material produced by the assessee to demonstrate that the written down value is the real value the Wealth tax Officer would be justified in a normal case in taking the value given by the assessee itself to its fixed assets in the balance sheet for the relevant year as the real value of the assets for the purposes of the Wealth tax.
It is a question of fact in each case as to whether the depreciation has to be taken into account in ascertaining the true value of the assets.
The onus of proof is on the assessee who must produce reliable material to show that the written down value of the assets and not the balance sheet value is the true value.
[793 E 794 C] 790 If, therefore, the assessee merely claims that the written down of the assets should be adopted but fails to produce any material to show that written down value is the true value, the Wealth tax Officer is justified in rejecting the claims and adopting the values shown by the assessee himself in his balance sheet as the true value of his assets.
[794 C D] Kesoram Industries & Cotton Mills Ltd. vs Commissioner of Wealthtax (Central) Calcutta, ; , applied.
(ii) Section 27(6) of the Act requires the Tribunal on receiving a copy of the judgment of the Supreme Court or the High Court as the ease may be to pass such orders as are necessary to dispose of the case conformably to such judgment.
[794 E] If the Supreme Court agrees with the view of the Tribunal the appeal may be disposed of by a formal order.
But if the Supreme Court disagrees with the Tribunal on a question of law, the Tribunal must modify its order in the light of the order of the Supreme Court.
If the Supreme Court has held that the judgment of the Tribunal is vitiated because it is based on no evidence or because the judgment proceeds upon a misconstruction of the statute, the Tribunal would be under a duty to dispose of the case conformably with the opinion of the Supreme Court and on the merits of the dispute and re hear the appeal.
In all cases, however, opportunity must be afforded to the parties of being heard.
[794 F H] Income tax Appellate Tribunal, Bombay, vs S.C. Cambatta vs Commissioner of Income tax, , applied.


judgement:
Civil Appeal No. 1232 1968.
Appeal by special leave from the judgment and decree dated June 18, 1968 of the Kerala High Court in Writ Appeal No. 46 of 1967.
M.R.K. Pillai, for the appellant.
T.A. Ramachandran, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Kerala High Court.
The facts may be firstly stated: The respondent was a non resident dealer carrying on business in Quilon, Ernakulam and Calicut in the State of Kerala.
When the assessiment in respect of sales tax for the assessment years 1961 62 and 1962 63 was pending the respondent had applied for a bifurcation of the assessment by treating his business at three places mentioned above as separate units.
This request was acceded to by the Board of Revenue.
The orders of assessment relating to the two years were made in April 1964 and March 1964 respectively.
The Sales Tax Officer issued notices in December 1965 for reopening the original assessment on the ground that certain turnover had escaped assessment.
The objection of the respondent to these notices having failed a writ petition seeking to quash the orders made by the Sales tax authorities was filed.
A learned Single Judge held that in respect of the assessment year 1961 62 the Sales Tax Officer had no jurisdiction or authority to proceed under Rule 33 of the Travancore Cochin General Sales tax Rules, 1950 which were in force 'at the material time.
It was found that the notice served in December 1965 relating to that 861 assessment year was beyond the time limit of three years prescribed by the rule.
As regards the assessment year 1962 63 the learned judge held that the time limit would expire on March 31, 1966.
Owing to the writ petition and the stay orders which had been made the assessment could not be completed.
The learned judge felt that it was owing to the orders of the court that the Sales tax authorities had been prevented from completing the assessment within the time.
While disposing of the writ petition it was observed that the Sales tax authorities would be at liberty to complete the proceedings initiated by the notice within the period of 59 days at the expiry of which the period prescribed by Rule 33 was to expire.
The respondent preferred an appeal to a division bench which set aside the direction granting 59 days extension for completing the assessment on the ground that the same was not justified under the law.
Counsel for the appellant has confined the appeal only to the proceedings relating to the assessment year 1962 63.
It is admitted that with regard to the other year 1961 62 the proceedings became barred.
It is contended before us that on a true construction of Rule 33 it should be held that the proceedings under that Rule have to commence within three years next succeeding that to which the tax relates and that it is not necessary that the entire proceedings relating to the escaped assessment should be completed within that period.
In other words if such proceedings under Rule 33 have been commenced within the period prescribed by the rule they can be continued even beyond the period of three years till a final order of assessment is made.
Reliance has been placed on a number of decisions of this Court some of which may be noticed.
In the State of Punjab & Ors.
vs Tara Chand Lajpat Rai(1) the question which came up for consideration was that where the Sales tax Authority issued a notice under section 11(2) of the Punjab General Sales Tax Act, 1948 before the expiry of three years from the termination of the period for furnishing returns but finalised the assessment order after three years from the aforesaid date, whether such an assessment could be said to be barred by time.
It was held that assessment proceedings commenced in the case of a registered dealer either when he furnished a return or when a notice was issued to him under section 11(2) of the Punjab Act and if such proceedings were taken within the prescribed time, though the assessment was finalised subsequently even after the expiry of the prescribed period no question of limitation would arise.
In The State of Punjab & Anr.
vs Murlidhar Mahabir Prashad(2) the question of law was whether on a proper interpretation of sub sections
(4) and (5) of section 11 of the Punjab.
Act the period of limitation was three (1) 19 S.T.C. 493.
(2) 21 S.T.C. 29. 862 years for making the assessment from the last date on which the return was to be filed or whether the order of assessment was valid even after it was made after a period of three years provided the necessary notice had been issued within that period.
The aforesaid provision of the Punjab Act may be read: "11(4) If a registered dealer, having furnished returns in respect of a period fails to comply with the terms of a notice issued under sub section
(2) the Assessing Authority shall within three years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer.
(5) If a registered dealer does not furnish returns in respect of any period by the prescribed date, the Assessing Authority shall within three years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess to the best of his judgment, the amount of tax, if any, due from the dealer".
Relying mainly on the observation in Ghanshyam Das vs Regional Assistant Commissioner of Sales Tax, Nagput(1) this Court held that the proceedings for assessment were valid because the same had been initiated within the period prescribed under section 11 (5).
The principle laid down in Tara Chand Lajpat Rai 's case(2) was followed.
Rule 33 of the relevant rules is in these terms: Rule 33 (1 ) "If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to tax in any year or if the licence fee has escaped levy in any year, the assessing authority or licensing authority as the case may be, subject to the provisions of sub rule (2) may at any time within three years next succeeding that to.
which the tax or licence fee relates determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable or levy the licence fee in such turnover after issuing a notice to the dealer or licences and after making such enquiry as he considers necessary.
" Now in view of the previous decisions the principle is firmly established that assessment proceedings under the Sales Tax Act must be held to be pending from the time the proceedings are initiated until they are terminated by a final order of assessment.
The distinguishing feature on which emphasis has been laid by (1) ; (2) 19 S.T.C. 493. 863 the counsel for the respondent is that the language employed in rule 33 is such as to lead to only one conclusion that the final determination of the turnover which has escaped assessment and the assessment of the tax have to be done within three years.
It is pointed out that in the other Sales tax provisions which came up for consideration in the cases mentioned above the words employed were "proceed to assess" e.g., sub sections
(4) and (5) of section 11 of the Punjab General Sales Tax Act.
Our attention has been invited to the appropriate dictionary meaning of the word "determine" which is "to settle or decide to come to a judicial decision (Shorter Oxford English Dictionary).
It is suggested that the word "determine" was employed in Rule 33 with a definite intention to set the limit within which the final order in the matter of assessment should be made, the limit being three years.
We find it difficult to accept that in the context of sales tax legislation the use of the words "proceed to assess" and "determine" would lead to different consequences or result.
In this connection the words which follow the word "determine" in Rule 33 must be accorded their due signification.
The words "assess the tax payable" cannot be ignored and it is clearly meant that the assessment has to be made within the period prescribed.
Assessment is a comprehensive word and can denote the entirety of proceedings which are taken with regard to it.
It cannot and does not mean a final order of assessment alone unless there is some thing in the context of a particular provision which compels such a meaning being attributed to it.
In our judgment despite the phraseology employed in Rule 33 the principle which has been laid in other cases relating to analogous provisions in sales tax statutes must be followed as otherwise the purpose of a provision like Rule 33 can be completely defeated by taking certain collateral proceedings and obtaining a stay order as was done in the present case or by unduly delaying assessment proceedings beyond a period of three years.
It is undoubtedly open to.
the legislature or the rule making authority to make its intention quite clear that on the expiry of a specified period no final order of assessment can be made.
Then taxing authorities would certainly be debarred from completing the assessment beyond the period prescribed as was the case in sub section
(3) of section 34 of the Income tax Act, 1922, but such is not the case here and we would hold that the assessment proceedings relating to the year 1962 63 were within time.
The appeal is allowed and the Judgment of the High Court is set aside.
The case shall g0 back to the High Court for disposal of such points as were previously not decided.
In terms of the previous order dated April 3, 1969, the respondents shall be entitled to costs in this Court.
G.C. L15Sup.
CI/ 11 Appeal allowed.

summary:
The respondent was assessed to sales tax in the State of Kerala for the year 1962 63 in March, 1964.
In December, 1965 the Sales Tax Officer issued notice under R. 33 of the Travancore Cochin General Sales Tax Rules, 1950 in force at that time for reopening the original assessment on the ground that certain turnover had escaped assessment.
According to the relevant portion of the said rule the assessing authority "may at any time within three years next succeeding that to which the tax relates determine to the best of his judgment the turnover which has escaped assessment and assess the tax payable on such turnover after issuing a notice to the dealer and after making such enquiry as he considers necessary".
The respondent 's objection to the notice having failed it filed a writ petition in the High Court.
The learned Single Judge who heard the writ petition felt that it was due to the orders of the court that the Sales tax authorities had been prevented from completing the assessment within the time allowed by Rule 33.
While disposing of the writ petition he observed that the Sales Tax Authorities would be at liberty to complete the proceedings initiated by the notice within a further period of 59 days.
The respondent preferred an appeal to the division bench which set aside the direction granting 59 days extension for completing the assessment.
The Revenue appealed.
On behalf of the appellant it was contended that on a true construction of Rule 33 it should be held that the proceedings under that rule: have to commence within three years next succeeding that to which the tax relates and that it is not necessary that the entire proceeding.s relating to the escaped assessment should be completed within that period.
On behalf of the respondent it was urged that the word 'determine ' in Rule 33 meant that the final determination of the turnover which had escaped assessment and the assessment of the tax have to be done within three years.
Allowing the appeal.
HELD: In view of the previous decisions of this Court in which provisions similar to Rule 33, namely, sub clauses (2), (4) and (5) of section 11 of the PUnjab General Sales Tax Act, 1948 came up for consideration, the principle is firmly established that assessment proceedings under the Sales Tax Act must be taken to be pending from the time the proceedings are initiated until they are terminated by a final order of assessment.
In these cases the initiation o.f proceedings within the prescribed period was considered sufficient.
The fact that the word used in Rule 33 is 'determine ' whereas in sections 11(4) and (5) of the Punjab Act the words 'proceed to assess ' are used, cannot, in the context of sales tax legislation lead to a different result.
r862 H 863 C] The words which follow the word 'determine ' in Rule 33 must be accorded their due signification.
The words 'assess the tax payable ' cannot be ignored and it is clearly meant that the assessment has to be made within the period prescribed. 'Assessment" is a comprehensive word and can 860 denote the entirety of proceedings which are taken with regard to it.
It cannot and does not mean a final order of assessment alone unless there is something in the context of a particular provision which compels such a meaning being attributed to it.
Rule 33 must not be so interpreted that it may be defeated by taking certain collateral proceedings and obtaining a stay order as was done in the present case or by unduly delaying assessment proceedings beyond a period of three years.
It must be interpreted like the analogous provisions considered in earlier cases.
This must particularly be so when there is no provision in the Rule in question analogous to.
sub section
(3) of section 34 of the Income tax Act, 1922 by which the Income Tax authorities were debarred from completing the assessment beyond the period prescribed.
[863 D G] The State of Punjab vs Tara Chand Lajpat Rai, 19 S.T.C. 493 and The State of Punjab vs Murlidhar Mahabir Prashad, 21 S.T.C. 29 applied.
Ghanshyam Das vs Regional Assistant Commissioner of Sales Tax, Nagpur, ; , referred to.


judgement:
Appeal No. 25 of 1969.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated December 11, 1968 of the Patna High Court in Election Petition No. 4 of 1968.
D. Goburdhun, for the appellant.
Birendra Prasad Sinha, S.K. Bagga, Harder Singh and section Bagga, for respondent No. 1.
Harder Singh, for respondents Nos. 2 and 3.
840 The Judgment of the Court was delivered by Hegde, J.
The principal question raised in this appeal under section 116A of the Representation of People Act, 1951 (to be hereinafter referred to as the Act) is as to the scope of section 23(3) of the Representation of People Act, 1950 (to be hereinafter referred to as the 1950 Act).
A few subsidiary contentions have also been canvassed.
They will be considered at the appropriate stage.
The election petition from which this appeal arises relates to the Darbhanga Local Authorities Constituency of the Bihar Legislative Council.
The calendar for the election for that constituency was as follows: 1.
Last date for filing nomination papers 2 4 1968.
Date of scrutiny of nomination papers 4 4 1968.
Last date for withdrawal of candidatures 6 4 1968.
Date of Poll 28 4 1968.
Date of declaration of result 29 4 1968.
Originally five candidates submitted their nomination for the election in question.
On scrutiny all of them were held to have been validly nominated.
Two of them later withdrew their candidatures within the period prescribed leaving in the field Shri Baidyanath Panjiar, the appellant herein, Shri Raj Kumar Mahaseth, respondent No. 2 and Shri Gangadhar, respondent No. 3.
There were six polling stations in the constituency.
134 votes were polled out of which 33 votes were polled at Dalsingsarai polling station.
Counting of the votes showed that the appellant had secured 45, the second respondent 49 and the third respondent 40, first preference votes.
As none of them obtained an absolute majority of the votes cast, the third respondent was eliminated and his second preference votes were taken into.
consideration.
14 of his second preference votes went to the appellant and 5 to the second respondent.
Therefore the appellant was declared elected.
His election was later challenged by the 1st respondent herein.
The High Court has set aside the election and declared the 2nd respondent elected on the ground that on counting the validly cast votes, the second respondent has secured more votes than the appellant.
It held that some of the votes Cast were not valid votes.
The controversy relating to the validity of some of the votes polled arose under the following circumstances.
In the electoral roll as it stood on the last date of filing nomination papers, the registered voters were only 123; 16 of the registered voters were of the members of Dalsingsarai Notified Area Committee.
On April 13, 1968, as per a notification under section 389(c) of the Bihar 841 and Orissa Municipal Act, 1922, 40 members were nominated as members to the said Notified Area Committee in place of the old members.
Most of them were newly appointed members.
To be exact 35 of the 40 members nominated were new members.
Thereafter the electoral roll was amended on the 27th April, 1968, just a day prior to the polling.
As per the amended electoral roll, there were 39 electors in the Dalsingsarai polling station.
Only four of them stood registered in the electoral roll as it stood on April 2, 1968.
12 of those who were electors under the original roll were removed from the roll.
33 out of the 39 electors included in the electoral roll relating to.
Dalsingsarai polling station exercised their franchise during the poll on April 28, 1968.
The question for consideration is whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over.
Provisions relating to the preparation of electoral rolls for the Legislative Councils ' Constituencies are found in Part IV of the 1950 Act.
Section 27(2) of the Act prescribes the mode of preparation of the electoral rolls regarding the local authorities constituencies of a Legislative Council.
Clause (e) of that sub section stipulates that provisions of sections 15, 16, 18, 22 and 23 shall apply in relation to local authorities ' constituencies as they apply in relation to assembly constituencies.
Section 22 deals with correction of entries in the electoral rolls.
Section 23 deals with the inclusion of names in the electoral rolls.
Sub section
(3) of that section provides that: "No amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nomination for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election.
" The object behind sub section
(3) of section 23 of the 1950 Act would be clear if we examine the scheme of the Act and the principles underlying that scheme.
Part III of the 1950 Act provides for the preparation of the electoral rolls for assembly constituencies.
Section 15 provides that for every constituency, there shall be an electoral roll which shall be prepared in accordance with the provisions of that Act under the superintendence, direction and control of the Election Commission.
Section 16 enumerates what disqualifications will disentitle a person from being enrolled as a voter.
Section 18 provides that no person shall be entitled to be registered in the electoral roll for any constituency more than once.
842 Section 18 enunciates the principle "one person one vote".
Section 22 provides for correction of entries in the electoral rolls.
Section 23 (1 ) permits a person whose name is omitted from the rolls to apply for inclusion.
Sub section (2) of section 23 authorises the electoral registration officer to include the name of the applicant in the rolls if he is satisfied that he is entitled to be registered.
The ,object of the aforementioned provision is to.
see that to the extent possible, all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls all those who are not qualified to be registered.
(3 ) of section 23 is an important exception to the rules noted earlier.
It gives a mandate to the electoral registration officers not to amend, transpose or delete any entry in the electoral roll of a constituency after the last date for making nominations for election in that constituency and before the completion of that election.
If there was no such provision, there would have been room for considerable manipulations, particularly when there are only limited number of electors in a constituency.
But for that provision, it would have been possible before the concerned authorities to so.
manipulate the electoral rolls as to advance the prospects of a particular candidate.
This would be more so if either all or a section of the electors are persons nominated to local authorities.
The legislative mandate like the one embodied in section 23(3) must be considered as mandatory not merely because of the language employed in that sub section but also in view of the purpose behind the provision in question.
In our opinion, cl.
23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date for making the nominations for election in that constituency and before the completion of that election.
Section 23(3) does not deal with any mode or procedure in the matter of registering the voters.
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances.
It puts a stop to the power conferred on them.
Therefore it is not a question of irregular exercise of power but a lack of power.
It was next urged by Mr. Goburdhan, learned Counsel for the appellant that section 23(3) of the 1950 Act is subject to section 27(2) of the same Act and therefore in view of the direction issued by the electoral registration officer to include the names of the electors in question, it was not open to the election petitioner to take any objection to the same.
We see no substance in this contention.
There is no conflict between sub section
(2) of section 23 and sub section
(2) of section 27.
In fact, as noticed earlier, the provisions of section 23 have been incorporated into section 27(2) in view of section 27(2)(e).
A fair reading of the various clauses in section 27(2) will make it clear that 843 the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election.
It was next urged that in view of section 62 (1 ) of the Act no valid.
objection can be taken to the franchise exercised by the electors whose names were included in the electoral roll on April 27, 1968.
Section 62 (1 ) says that "no person who is not, except as expressly provided by this Act, every person who is,.
for the time being entered in the electoral roll of any constituency shall be.
entitled to vote.
in that constituency.
" That provision no doubt stipulates that every person who is for the time being registered in the electoral roll of any constituency except as expressly provided by the Act shall be entitled to vote in that constituency.
The question is which is the electoral roll referred to in that section ? Is it the electoral roll that was in force on the last date for making nominations for an election or is it the electoral roll as it stood on the date of the polling ? For answering that question we have to go ' ' back to section 23(3) of the 1950 Act.
In view of that provision the electoral roll referred to in section 62 ( 1 ) of the Act must be understood to be the electoral roll that was in force on the last day for making* the nominations for the election.
It was next urged that even if we hold that in including fresh electors in the electoral roll on April 27, 1968, the electoral registration officer contravened section 23(3) of the 1950 Act, the same cannot be made a ground for invalidating the election as the contravention in question does not come within the purview of subs.
(1) ors.
100 of the Act.
This contention again does not appear to be sound.
Clause (d)(iii) of sub section
(1) of section 100 of the Act provides that if the High Court is of the opinion that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, it shall declare the election void.
We have earlier come to.
the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27, 1968.
Therefore votes.
of the electors whose names were included in the roll on that date must be held to be void votes.
That conclusion satisfies one of the conditions prescribed in section 100(1)(d).
We have now to see whether the other conditions prescribed in that clause namely whether the High Court on the material before it could have been of the opinion that the result of the election in so far as it concerned the returned candidate has been materially affected ' because of the reception of the votes which are void.
The High Court elaborately considered that question.
It has examined each one of the disputed votes and has come to the conclusion that if 844 those votes had been excluded, the valid votes received by the contesting candidates in the first count would have been as follows: Appellant 32 Respondent No. 2 46 Respondent No. 3 23.
In the second count after the elimination of the third respondent and taking into consideration the second preferences give by the electors, who gave their first preference to him the following would have been the position: Appellant 43 votes and Respondent No. 2 57 votes.
No matter was placed before us to show that this conclusion was wrong.
There was some controversy about two votes but we do not think it necessary to go into the same as any decision as regards their validity will not affect the final conclusion.
Before leaving this case, it is necessary to mention that at one stage of the arguments, the learned Counsel for the appellant contended that the decision of this Court in B.M. Ramaswamy vs B.M. Krishnamurthy and Ors.(1) governs the facts of this case.
But after some discussion he gave up that contention.
The ratio of that decision has no relevance for our present purpose.
In that case, the High Court came to the conclusion that the corrections in the concerned electoral roll had been made before the last date prescribed for filing nominations to the election but it came to the conclusion that the electors newly added to the list were not qualified to be registered as electors This Court overruled that finding holding that every person whose name finds place in the electoral roll must be ' held to be qualified to be a candidate whether he was qualified to be registered as an elector or not.
In other words it upheld the finality of the electoral roll as it stood on the last date for filing nominations for the election.
For the reasons mentioned above this appeal fails and the same is dismissed with costs.

summary:
Sub section (3) of section 23 provides that no direction for the inclusion of name in the electoral roll of a constituency shall be given after the last date for making nomination for an election in that constituency and before the completion of that election.
The appellant 's election to the Bihar Legislative Council was challenged on the ground that some of the votes cast in his favour were not valid because the names of the voters were included in the electoral roll after the last date for filing nomination.
The High Court set aside the election and declared the second respondent elected since on counting the validly cast votes the second respondent secured more votes than the appellant.
On the question whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over, HELD: The legislative mandate like the one embodied in section 23 sub section
(3) must be considered as mandatory not merely because of the language employed in that sub section but also in view of the purpose behind the provision.
The sub section does not deal with any mode or procedure in the matter off registering the voters.
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances.
It puts a stop to the power conferred on them.
Therefore it is not a question of irregular exercise of power but a lack of power.
[842 D.F.] There is no conflict between sub section (2) of section 23 and subs.
(2) of section 27 because a fair reading of the various clauses in section 27(2) will make it clear that it is the electoral roll of a constituency as it stood on the last date for making the nominations for an election in that constituency that is to be considered final for the purpose of that election.
[842 H]


judgement:
Civil Appeal No. 1359 1969.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated March 20, 1969 of the Punjab and Haryana High Court in Election Petition No. 1 of 1968.
Harder Singh, for the appellant.
R.K. Garg, S.C. Agarwala, D.P. Singh and Sumitra Chakravarti for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
This appeal under section 116A of the Representation of People Act, 1951 (to be shortly referred to hereinafter as the Act) is directed against the decision of the High Court of Punjab and Haryana in Election Petition No. 1 of 1968 on its file.
In that election petition, Kundan Singh, the 1st respondent to this appeal challenged the validity of the returning officer 's declaration that the appellant has been duly elected from the Hoshiarpur Local Authorities Constituency to the Punjab Legislative Council in the election held in April, 1968.
The High Court came to the conclusion that some of the votes polled in that election were invalid votes ,and if the valid votes alone are taken into consideration, as it should have been, then the 1st respondent is entitled to be declared elected.
It accordingly set aside the declaration made in favour of the appellant and declared the 1st respondent as having been duly elected.
We may now briefly state the material facts.
In March 1968, the Hoshiarpur Local Authorities Constituency was called upon to elect one member to the Punjab Legislative Council.
The election calendar was as follows: (1) The last date for filing nomination papers 12 3 1968.
(2) Date of scrutiny of the nomination papers 13 3 1968.
(3) The last date for withdrawal of candidatures 16 3 1968.
(4) Date of polling 7 4 1968.
(5) Date of counting and declaration of result 8 4 1968.
847 In that election, as many as five candidates contested.
They are the appellant and the respondents herein.
On April 8, 1968, the returning officer after counting the votes cast declared the appellant to be the successful candidate as he had secured one vote more than the 1st respondent.
The 1st respondent challenged that declaration in the aforementioned election petition on various grounds of which, at present, we are only concerned with one viz. that the vote of Hari Singh should have been held to be a void vote as his name was included in the electoral roll on April 5, 1968 i.e. just two days before the date of polling.
In his.
turn the appellant filed a recriminatory petition contending inter alia that the vote of Tarsem Singh was void as by the time the polling took place, he had become a government servant and the votes of two.
other persons namely Harjinder Singh and Balwant Singh were void as their names were included in the electoral roll after the last date for filing nominations for the election.
Other grounds taken in the recriminatory petition are not relevant for our present purpose.
They have not been pressed before us.
The election petition came up for trial before Mahajan, J.
The learned judge submitted the following question to a Full Bench for decision: "Whether allegation in para 4(a) pertaining to the vote of Hari Singh is correct and the vote was void and was polled in favour of respondent No. 1 in violation of the Rules and has.
materially affected the result of the election of respondent No. 1".
The Full Bench by majority came to.
the conclusion that the vote of Hari Singh was void as his name was included in the electoral roll of the constituency after the last date for making nominations for the election in that constituency.
Thereafter the case was sent back to Mahajan, J. for deciding the issues left undecided.
On the basis of the opinion expressed by the Full Bench, the learned judge came to the conclusion that the votes of Hari Singh, Harjinder Singh and Balwant Singh were void votes.
Consequently he recounted the votes validly cast and came to the conclusion that the 1 st respondent had been duly elected.
He gave a declaration to that effect.
As seen earlier, the main contention in this appeal relates to the true effect of sub section
(3 ) of section 23 of the Representation of People Act, 1950 (to be hereinafter referred to as "the 1950 Act") which prohibits the deletion of any entry or inclusion of any name in the electoral roll of a constituency after the last date for making nominations for an election in that constituency and before the completion of that election.
We have considered the scope of that provision in Baidyanath Panliar vs Sitaram Mahto and Ors.
(1) in (1) ; L15 Sup.
CI/69 10 848 which we have delivered judgment just now.
In view of that decision, the view taken by the majority of the Full Bench must be held to be correct.
Evidently under an erroneous impression that Harjinder Singh and Balwant Singh had voted against him, the appellant had contended in his recriminatory petition that their votes were invalid.
But on scrutiny it was found that one of them had given his first preference to him.
Now it is contended on his behalf that as the 1st respondent had not challenged the validity of those votes, the trial court could not have excluded from consideration the vote cast in his favour by one of those persons.
This is an untenable contention.
The votes of Harjinder Singh and Balwant Singh have been rejected on the ground that their names were included in the electoral roll in defiance of the mandate given under section 23 (3) of the 1950 Act.
What applies to.
Hari Singh equally applies to Harjinder Singh and Balwant Singh.
The fact that the 1st respondent did not challenge the validity of those votes is immaterial in the circumstances of this case.
The election petition and the recriminatory petition were parts of one enquiry.
As the validity of these three votes had come up for consideration and as it has been held that those votes are void votes, it necessarily ,follows that those votes must be excluded from consideration in determining the result of the election.
Another contention urged by Shri Harder Singh is that only the votes of those electors who had applied for the inclusion of their names in the electoral roll after the period mentioned in section 23(3) of the 1950 Act can be held to be void; as the person who cast his vote in favour of the appellant had applied for inclusion of his name some days before the last date for making nominations, the inclusion of his name in the roll after that date will not make his vote void.
in support of his contention, he placed tellance on the decision of the Patna High Court in Ramswaroap Prasad Yadav vs Jagat Kishore Prasad Narain Singh(1).
The ratio of that decision has no application to the facts of the present case.
That decision was rendered before sub section
(3) of section 23 of the 1950 Act was incorporated into the 1951 Act.
The mandate of that provision is plain and unambiguous.
It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date.
The only other contention that remains to be considered is that the High Court should have held that the vote of Tarsem Singh is invalid.
It is not disputed that Tarsem Singh 's name finds place in the electoral roll of the constituency but the argument was that as he had taken up government service subsequent to the inclusion of his name in the electoral roll, he became disqualified to be a (1) XVII E.L.R., 110.
849 member of any local board and therefore he was not entitled to vote in the elections This contention cannot be upheld.
Section 62 of the Act provides thus : "62(1).
No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950.
(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void.
(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police : Provided that nothing in this sub section shall apply to a person subjected to preventive detention under any law for the time being in force.
" In view of those provisions read with section 23(3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote.
The prohibitions contained in sub sections 3, 4 and 5 of section 62 of the Act do not apply to the case of Tarsem Singh.
Therefore we have to see whether the prohibition contained in sub section
(2) applied to his case.
That sub section says that no person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the 1950 Act.
This takes us to section 16 of the 1950 Act.
It reads thus: "16(1) A person shall be disqualified for registration in an electoral roll if he (a) is not a citizen of India; or 850 (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included : Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualifi cation under clause (c) of sub section (1) shall forthwith be re instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal.
" It is not the case of the appellant that Tarsem Singh had incurred any of the disqualifications mentioned therein.
No other provision of law in the Act or in any other law was brought to our notice disqualifying him from exercising his vote.
The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act.
We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not.
In view of section 30 of the 1950 Act, civil courts have no _jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the revision of any such roll.
Part III of the 1950 Act deals with the preparation of rolls in a constituency.
The provisions contained therein prescribe the qualifications for being registered as a voter (section 19), disqualifications which disentitle a person from being registered as a voter (section 16), revision of the rolls (section 21), correction of entries in the electoral rolls (section 22), inclusion of the names in the electoral rolls (section 23), appeals against orders passed by the concerned authorities under sections 22 and 23 (section 24).
Sections 14 to 24 of the 1950 Act are integrated provisions.
They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls.
It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a civil court or before a tribunal which considers the validity of any election.
In B. M. Ramaswamy vs B. M. Krishnamurthy and Ors.
(1) this Court (1) ; 851 came to.
the conclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election.
For the reasons mentioned above this appeal fails and the same is dismissed with costs.
Y.P Appeal dismissed.

summary:
In the elections to the Punjab Legislative Council from the local authorities constituency the appellant who was declared elected secured one vote more than the first respondent.
The first respondent challenged the election of the appellant on the ground that the vote of H should have been held to be void as his name was included in the electoral roll after the last date for the filing of nomination in defiance of the provisions of section 23(3) of the Act.
To this the appellant filed a recriminatory petition contending that the votes of two other persons B and S also were void as their names were included in the electoral roll after the last date for filing nominations.
He also alleged that the vote of another voter T was void as he had become a government servant by the time the polling took place and therefore was disqualified to be a member of any local board.
The High Court came to the conclusion that the votes of H, B and S were void and counting the validity cast votes declared the first respondent elected.
But when on scrutiny it was found that of B and S one of them had actually cast his first preference to the appellant he contended that as the first respondent had not challenged the validity of those votes the trial court could not have excluded from consideration the vote cast in his favour by one of those persons.
HELD: Section 23(3) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral 'rolls of a constituency after the last date for making the nominations for election in that constituency.
It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date.
[848 G] Baidyanath Panjiar vs Sita Ram Mahto, ; followed.
(ii) The election petition and the recriminatory petition are parts of one enquiry.
As the validity off the three votes had come up for consideration and as it was held that those votes were void it necessarily followed that the votes had to be excluded in determining the result of the election.
The fact that the first respondent did not challenge the validity of those votes was immaterial in the circumstances of the case.
[848 D] (iii) There is no provision in the Act which disqualified T from voting and the question whether a particular vote was a valid vote or not has to be decided solely on the basis of the provisions of the Act.
In view of section 30 of the 1950 Act the entries found in the electoral roll are final and civil courts have no jurisdiction to.
entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll.
[850 E] 846 B.M. Ramaswamy vs
B.M. Krishnamurthy, [1963] 3 S.C.R. 479, referred to.


judgement:
Civil Appeal No. 774 of 1966.
Appeal by special leave from the judgment and decree dated August 31, 1965 of the Punjab High Court in Letters Patent Appeal No. 91 of 1961.
Harbans Singh, for the appellant.
804 Bishan Narain and S.K. Mehta, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of a division bench.
of the Punjab High Court decreeing the suit filed by the respondent for possession of certain land by preemption.
The facts may be shortly stated: Santa Singh was the owner of some land in village Samadh Bhai, tehsil Moga.
He died leaving a widow Smt.
Sobhi.
He also left a daughter Smt.
Jai Kaur from his other wife.
On February 3, 1958 Smt.
Sobhi sold 73 kanals 14 marlas of land to the appellants, the sale consideration mentioned in the sale deed being Rs. 8,000/ .
Jai Kaur filed a suit for possession by pre emption of the land which had been sold by Smt.
Sobhi.
According to her a consideration of Rs. 4,000/ only had been paid by the vendee.
The trial court decreed the suit in May 1959 granting a decree for possession on payment of Rs. 6,500/ together with costs.
The second Additional Judge to whom an appeal was taken dismissed it.
In the High Court the learned Single Judge took the view that Smt.
Jai Kaur not being the daughter of the vendor Smt.
Sobhi had no right of pre emption under section 15(2) of the Punjab Pre emption Act, 1913 'as amended by the Punjab Pre emption Amendment Act, 1960.
The suit was dismissed.
Jai Kaur filed an appeal under clause 10 of the Letters Patent of the High Court.
Relying on an amendment made by the Punjab Pre emption Amendment Act 1964 in the first paragraph of clause (b) of sub section
(2) of section 15 of the Punjab Pre emption Act, hereinafter called the Act, the Division Bench reversed the judgment of the Single Judge and decreed the plaintiff 's suit.
The relevant provisions of the statute may now be noticed together with the amendments made in 1960 and 1964.
Section 15 of the Act was substituted by section 4 of the Amendment Act, 1960.
According to the substituted section the right of pre emption in respect of agricultural land and village immovable property shall vest thus : (1) (2) Notwithstanding anything contained in sub section (1) (a) where the sale is by a female of land or property to which she h,as succeeded through her father or brother or the sale in respect of such land or property is by the scan or daughter of 805 such female, after inheritance, the fight of preemption shall vest, (i) if the sale is 'by such female, in her brother or brother 's son; (ii) if the sale is by the son or daughter of such female, in the mother 's brother or the mother 's brother 's sons of the vendor or vendors;" By the Amendment Act 1964 in the first paragraph of section 15(2) (b) between the words "such" and "female" the words "husband of the" were inserted.
The result was that after the amendment the portion of clause (b) relevant for our purpose was to read as follows: "FIRST, in the son or daughter of such husband of the female.
" Now if the Amendment Act of 1964 could be regarded as having retrospective operation so as to affect pending proceedings there can be no dispute that the judgment of the division bench was light and must be affirmed.
The contention which has been raised on behalf of the appellants is that.
there is no indication in the Amendment Act of 1964 that it was to have retrospective operation and therefore the 'amendment made by it should be deemed to be only prospective.
It may be mentioned that by section 6 of the Amendment Act of 1960 a new section 31 was inserted in the Act.
That section provided, "no court shall pass a decree in a suit for pre emption whether instituted be,fore or after the commencement of the Punjab Pre emption Amendment Act of 1960 which is inconsistent with the provisions of the said Act." in Ram Sarup vs Munshi & Ors.(1) this Court held that the language used in section 31 was comprehensive enough so as to require an appellate court to give effect to the substantive provisions of the Amending Act whether the appeal before it was one against a decree granting pre emption or one refusing that relief.
Although section 31 was inserted in the Act for all times the phraseology employed therein does not show that its language was meant to cover those amendments which would be made subsequent to the Amendment Act of 1960.
The word "said" can have reference in the context only to the enactment of 1960 and to no other.
it would not be legitimate for the courts to give an extended effect to a provision used and words employed warranted such a course being followed.
That does not appear to be the case here.
It appears to us that the Amendment Act of 1964 was merely of a clarificatory or declaratory nature.
Even in the absence of the words which were inserted by the Amendment Act of 1964 in section 15(2)(b) the only possible interpretation and meaning of (1) ; 806 the words "in the son or daughter of such female" could have reference to and cover the sort or daughter of the husband of the female.
The entire scheme of sub section
(2) of section 15 is that the right of pre emption has been confined to the issues of the last male holder from whom the property which has been sold came by inheritance.
Looking at clause (a) of sub section
(2) where the properly which has been sold has come to the female from her ,father or brother by succession the right of pre emption has been given to.
her brother or brother 's son.
As has been observed in Mota Singh vs Prem Parkash Kaur & Ors.(1), the predominant idea seems to be that the property must not go outside the line of the last male holder and the right has been given to his male linea descendants.
Where the sale is by the son or the daughter of such female the right is given to the mother 's brother or their sons.
The principle which has been kept in view is that the person on whom the right of pre emption is conferred must be a male lineal descendant of the last male holder of the property sold.
This is so with regard to clause (a) of sub section
Coming to clause (b) where the sale is by a female of land or property to which she has succeeded through her husband or through her son in case the son has inherited the same from his father the right of pre emption is to vest firstly in the son or daughter of such female and secondly in the husband 's brother or husband 's brother 's son of such female.
Now if the son or daughter of the female who has sold the property could refer to her son or daughter from a husband other than the one from whom the property devolved on her, it would be contrary to the scheme and purpose of sub section
(2) which essentially is to vest the right of pre emption in the lineal descendants of the last male holder.
Similarly it is unthinkable that a husband 's brother or husband 's brother 's son should have reference to a husband to whom the property never belonged.
In other words it could never be intended that if a female has had a previous husband who has either died or with whom the marriage has been dissolved and the female has remarried and succeeded to the property of her second husband the brother or the brother 's son of her previous husband should be able to claim the right of pre emption when they had nothing whatsoever to do with the property sought to be preempted.
It would follow that under clause (b) the right of preemption would vest firstly in the son or daughter of the husband of the female meaning thereby either her own off spring ,from the husband whom she has succeeded or the son or daughter of that husband even from another wife.
If the above discussion is kept in view there is no difficulty in attributing a retroactive intention to the legislature when the Amendment Act of 1964 was enacted.
It is well settled that if a (1) I.E.R. [1961] Punj.
807 statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions.
We are in entire agreement with the following view expressed in a recent full bench decision of the Punjab High Court in Moti Ram vs Bakhwant Singh & Ors.
(1) in which a similar point came up ,for consideration: "A close analysis of paragraphs (First) and (Secondly) of clause (b) of sub section (2) of section 15 before the amendment introduced by Punjab Act 13 of 1964 would demonstrate that a son of the husband of a female vendor though not born from her womb would be entitled to preempt, particularly when the husband 's brother and even the son of the husband 's brother of that female are accorded the right of preemption.
To reiterate, the right of preemption is accorded manifestly on the principle of consanguinity, the property of the female vendor 'being that of her husband, and there is no reason why the step son should be excluded and the nephew of the husband included.
From this alone it must be inferred that the Legislature had intended to include a step son and consequently retrospective operation had to be given to the amending Act as such a construction appears to be in consonance 'and harmony with the purpose of the Act".
The result, therefore, is that the respondent was entitled to.
exercise, her right of preemption under paragraph First of cl.
(b) of sub section
(2) of section 15 even before the amendment made in 1964.
At any rate whatever doubts existed they were removed by the Amendment Act of 1964 which must be given retrospective operation.
The appeal consequently fails and it is dismissed with coats.
R.K.P.S. Appeal dismissed (1) I.L.R.[19681] Punjab 104, 120.

summary:
S, the owner of some land in a village in Punjab, died leaving a widow and the respondent, his daughter by another wife.
The widow sold a part of the land in February 1958 to the appellants, whereupon the respondent filed a suit for possession by pre emption of the land sold.
The trial court decreed the suit and a first appeal was dismissed.
A single bench of the High Court allowed the second appeal on the view that the respondent not being the widow 's daughter, had no right of pre emption under section 15(2) of the Punjab Pre emption Act, 1913, as amended by the Punjab Pre emption Amendment Act, 1960.
However, a division bench in a Letters Patent appeal, relying on an amendment made by the PUnjab Preemption Amendment Act, 1964 in section 15(2)(b), reversed the judgment of the single bench and decreed the suit.
It was contended in appeal to this Court that there is no indication in the Amendment Act of 1964 that it is to have retrospective operation and the amendment made by it should be deemed to be only prospective.
HELD: The Amendment Act of 1964 was merely of a clarificatory or declaratory nature.
Even in the absence of words which were inserted by the Amendment Act of 1964 under section 15(2)(b) the only possible interpretation and meaning of the words "in the son or daughter of such female" could have reference to and cover the son or daughter of the husband of the 'female.
The entire scheme of section 15(2) is that the right of pre emption has been confined to the issues of the last male holder from whom the property which has been sold came by inheritance.
[805 H] Under section 15(2)(b) the right of pre emption would vest firstly in the son or daughter of the husband of the female meaning thereby either her own off springs from the husband whom she had succeeded or the son or daughter of that husband even from another wife.
[806 G] In the present case the respondent was entitled to exercise her right of pre emption under paragraph First of clause (b) of section 15(2) even before the Amendment of 1964.
Whatever doubts existed they were removed by that Act which must be given retrospective operation.
[807 E F] Ram Sarup vs Munshi & Ors, ; and Mota Singh vs Prem Parkash Kaur & Ors., I.L.R. [1961] Punj.
614, 627; referred to.