judgement:
ivil Appeal Nos.
282 283 of 1969.
Appeals by special leave from the Judgment and order dated the 15th October, 1968 of the Allahabad High Court in Second Civil Appeals Nos.
978/58 and 11 of 1959.
section Rangarajan, Mrs. section Bagga and Uma Jain for the Appellants.
K.L. Hathi, P.C. Kupur, R.S. Mehta, O.P. Verma and S.N. Singh for the Respondents.
The Judgment of the Court Was delivered by DESAI, J.
These two appeals by special leave arise from two Suits filed by Barkatullah and Sahfiullah for possession of land more 929 particularly set out at the foot of the plaint against the Zamindars and Prem Kumari and Noor Mohammad.
Briefly stated the plaintiffs ' A case was that they were Thekadars and the Theka was taken for personally cultivating the land and therefore under sec.
12 of the U P. Zamindari Abolition and Land Reforms Act, 1950 ( '1950 Act ' for short), they have become hereditary tenants and they were in possession of land on Ist April 1960.
It was alleged that the Zamindars had no right to lease the land after the plaintiffs became hereditary tenants yet Prem Kumari and Noor Mohammad took land on lease from Zamindars and entered possession after 1.4 1950.
It was alleged that the lessees from the Zamindar had no right to remain in possession as against hereditary tenants.
On this short ground the plaintiffs sought possession of the land.
The defendants were the Zamindars and two lessees contested the suit.
The averments made in para 4 of the plaint were not controverted specifically and it was merely stated that they are subject to additional pleas.
The only plea put forward on behalf of the lessees worth noticing is that the lessees were in cultivatory possession during the year 1359 F and being not a person who has become a bhumidar sirdar, Adhivasi or Asami is entitled to all the rights of Adhivasis under U.P. Land Reforms (Supplementary) Act, 1952 ( '1952 Act ' for short) The trial court dismissed the suit observing that the plaintiffs were Thekadars of the land and under sec.
12 of the 1950 Act have acquired rights of hereditary tenants but the lessees were in cultivatory possession in 1359 F and therefore have acquired the right of adhivasi.
Thekanama was held to be defective on the question of Theka being given exclusively for personal cultivation.
The two plaintiffs preferred two separate appeals and both the appeals were disposed of by the First Additional Civil and Sessions Judge, Gonda as per his judgment dated September 1, 1958.
Broadly stated, the learned Judge agreed with the findings of the trial court and dismissed the appeals.
The original plaintiffs carried the matter in .
second appeal.
Two separate appeals were preferred, by the time the appeals came up for hearing, a statement was made that both the plaintiffs have compromised the dispute inter Se and that the suit be treated as one and if the appeal is to be allowed, possession is to be given jointly to two appellants as against the respondents H The learned Judge disposed of both the appeals by common judgment reversing the decision of the trial court and the first 930 appellate court holding that the plaintiffs had acquired the status of A hereditary tenants and were in possession on 1.5.1950 and, therefore, the Zamindars had no right to dispossess the plaintiffs and induct the two lessees in possession.
It was further held that as the lessees came into possession under Zamindars who had no right to grant the lease possession of the lessees being thus unlawful against the plaintiffs, they could not have acquired the Adivasis rights.
Accordingly, the suit was decreed and a decree for possession was granted in favour of the plaintiffs.
Hence these two appeals by special leave Both the original lessees have died and their heirs and legal representative are prosecuting these appeals.
Mr. Rangarajan, learned counsel for the appellants urged that in view of the finding of the trial court that there was no specific authority given to the Thekadars for personal cultivation of the lands comprised in the Theka, the Thekadars plaintiffs did not acquire the right of hereditary tenants under sec 12 of the 1950 Act.
This was the principal contention urged in these two appeals.
1950 Act was a measure of agrarian reform enacted with a view to abolishing the Zamindari system and for acquisition of intermediaries ' rights.
Section 4 provided for vesting of estates in the State free from all encumbrances with effect from the date to be specified by the State Government in a notification.
Sec. 6, inter alia, provided the consequences of the vesting of an estate in the State, one such being that all rights, title and interest of all the intermediaries shall cease and be vested in the State.
1 2 provides that the Thekadars would acquire the rights of hereditary tenants in certain circumstances.
It reads as under; "(1) Where any land was in personal cultivation of a person on the 1st day of May, 1950 as a Thekadar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then notwithstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entitled to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates.
931 (2) The fact that the land comprised in the theka has been in the personal cultivation of the thekedar since the commencement of the theka shall, notwithstanding anything contained in section 91 and 92 of the (I of 1872), be receivable in evidence for showing that the theka was of the nature referred to in sub section (1)".
1952 Act enacted certain supplementary provisions in respect of the 1950 Act.
3 of 1952 Act provided that every person who was in cultivatory possession of any land during the year 1359 Fasli but is not a person who as a consequence of vesting under section 4 of the 1950 Act has become a bhumidar, sirdar, adhivasi or asami under section 18 to 21 of the said Act shall be and is hereby declared to be, with effect from the appointed date (b) if the bhumidar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subjected to all the liabilities conferred or imposed upon an asami or an adhivasi.
There is an explanation to the section which is not material.
Original lessees claimed that they have acquired the status of Adhivasi under section 3 of 1952 Act.
It is not in dispute that the original plaintiffs were Thekedars.
It was however contended that unless the Theka was exclusively far personal cultivation of the land comprised in the Theka, the Thekedars would not acquire the status of hereditary tenants.
Sec. 12 which has been extracted herein before specifically provides that where any land is in personal cultivation of a person on the 1st day of May, 1950, as a Thekedar thereof and the Theka was made with a view to the cultivation of the land by such Thekedar personally then notwithstanding anything in any law, document or order of court, he shall be deemed to be hereditary tenant thereof entitled to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates.
This section came in for interpretation in Babu Noorul Hasan Khan vs Ram Prasad Singh & Ors (1) wherein it was held that a Thekedar of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of its vesting.
But this is subject to two exceptions; one such being as enacted in 5.
l 2 which provides that if such land was in personal cultivation of a person on the 1st day of May, 1950, as a 932 thekedar thereof and if the theka was made with a view to the A cultivation of land by such thekedar personally, then because of the non obstante clause occurring in sub sec.
(I) of section 12 of the Act, the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold land as such and liable to pay rent at hereditary rates.
If such hereditary tenant has lost possession he is entitled to regain his possession.
It was further held that if, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere Asami in accordance with sec.
13(2) of the Act.
This interpretation of sec.
12 was re affirmed in Raghunandan Singh & Ors.
vs Brij Mohan Singh & Ors(1) It would thus appear well settled that before a Thekedar can claim the status of a hereditary tenant, he must not only be a Thekedar but the Theka must be specifically granted for personal cultivation of the land included in the Theka by the Thekedar.
The question therefore, is whether in this case the land included in the Theka of the original plaintiffs provided for personal cultivation of the land by the Thekedar or personal cultivation was incidental to other rights and obligations such as collection of rent .
from the other tenants ? This would necessitate examination of the original document creating Theka.
That was not read to us, but Mr. Rangarajan relied upon the following observation in the judgment of the learned trial Judge: "I have read the context (sic) (possibly contract, of the Thekanama.
There is no authority given specifically or impliedly for personal cultivation by the Thekedars of the land comprised in the Theka unless there was such a provision.
I fear no rights of hereditary tenancy could have been acquired by the plaintiffs.
" It was urged that the learned Judge specifically came to the conclusion that the Theka was not created exclusively and specifically for personal cultivation of the lands involved in the Theka.
The learned appellate Judge found that the Thekedars were in actual possession and personal cultivation of the land for a period of 11 years.
He further found that the Theka would be deemed to have been granted for 933 personal cultivation and if the plaintiffs (Thekedars) have been found to be in personal cultivation of the suit on 1st May, 1950 as Thekedars, they would be entitled to the benefit of sec.
12 of 1950 Act.
The learned appellate Judge then concluded that it is satisfactorily proved that the plaintiffs Thekedars were in possession on 1st May, 1950.
However the learned Judge declined to grant relief to the plaintiffs on the finding that the lessees had acquired Adhivasis right under 1952 Act.
It clearly transpires from the findings of the first appellate court, which is the last fact finding court, that the Theka was for personal cultivation of the land involved in the Theka and the Thekedars were personally cultivating the land for a period of 11 years.
The High Court in second appeal noticed that the Thekedars were personally cultivating the land.
Nothing was pointed out to us to show that Thekedars had any other duty to perform such as collecting rent from other tenants.
There is nothing in the record to show that the Theka was as a consideration for some other duties to be performed by the Thekedars to the Zamindars.
Therefore, the conclusion is inescapable, that the Theka was created exclusively for personal cultivation of the land involved in the Theka by the Thekedars.
If it is clearly established that the Theka was created exclusively for personal cultivation of the land by the Thekedars, the ratio of the decision of this Court would lead to the conclusion that the Thekedars acquired the status of the hereditary tenants under sec.
12 of the 1 950 Act.
The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec.
3 of the 1952 Act.
Sec. 3 which has been extracted herein before provides that any person who has not become a bhumidar, sirdar, adhivasi or asami under 1950 Act if he is in cultivatory possession of any land during the year 1359 Fasli and if the bhumidar or sirdar was not such a person, such a person in cultivatory possession would acquire the status of an adhivasi.
The High Court then examined what is the significance of the expression 'cultivatory possession ' in sec.
The High Court rightly held that if the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees was not 934 lawful against the Thekedars.
The High Court rightly held that A the lessees could not be said to be in cultivatory possession of the land on the appointed day.
In reaching this conclusion, the High Court relied upon a decision of this Court in Sonawati & ors.
vs Shri Ram Anr.(1) The Court held as under: "The expression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation.
"Cultivatory possession" to be recognized for the purpose of the Act must be lawful and for the whole year 1359 Fasli.
A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of section 3 of U.P. Act of 1952.
We are of the view that the Allahabad High Court was right in holding in Ram Krishna vs Bhagwan Baksh Singh(2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal vs Muloo and ors.(B) that occupation by a wrongdoer without any right to the land is 'cultivatory possession ' within the meaning of section 3 of the U.P. Act 31 of 1952".
Therefore in order to obtain the benefit of sec.
3 of 1952 Act, the person claiming to be in cultivatory possession must show that his or her possession was lawful.
The High Court consistent with certain findings of the trial Court and the first appellate court held that possession of the lessees in 1359 Fasli was not lawful and this necessarily follows from the finding given by the courts that the Thekedars were in cultivatory possession of the plots in dispute on the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants.
We are in agreement with the conclusion recorded by the High Court.
935 It must therefore follow as a necessary corollary that the lessees did not acquire the right of adhivasi and the hereditary A tenants would be entitled to a decree for possession.
Accordingly, the appeals fail and must be dismissed.
The appeals are thus dismissed with costs.
H.S.K. Appeals dismissed.

dataset_name: IN-Abs

summary:
The plaintiffs, who were Thekedars, filed two suits for possession of land Leased out by the Zamindars to the defendants lessees on the ground that since the Thekedars had become hereditary tenants under section 12 of the U.P. Zamindari Abolition and Land Reforms Act, 1 950 and were in possession of that land on 1st day of May, 1950, the Zamindars had no right to grant lease and the lessees had no right to enter and remain in possession of that land after that date.
The lessees pleaded that they were in cultivatory possession of the land during the year 1359 Fasli and were entitled to all the rights of adhivasis under the U.P. Land Reforms (Supplementary) Act, 1952.
The trial court dismissed the suits observing that the Thekedars had acquired rights of hereditary tenants but the lessees were in cultivatory possession in 1359 Fasli who had therefore acquired the right of adhivasi.
The first appellate court dismissed the appeals.
The High Court in second appeal reversed the decision of the trial court and the first appellate court and decreed the suits.
On appeal, it was contended that since there was no authority given to the Thekedars for personal cultivation of the lands comprised in the Theka the Thekedars did not acquire the right of hereditary tenants under section 12 of the 1950 Act.
Dismissing the appeals, ^ HELD: Section 12 of the 1950 Act provides that if any land was given to a person for personal cultivation by him on the 1st day of May 1950, as a Thekedar thereof, then because of the non obstante clause occurring in sub section (I) of section 12 the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold the land as such and liable to pay rent at hereditary rates.
If such hereditary tenant has lost possession he is entitled to regain his possession.
If, however, the land was in the personal cultivation of the Thekedar who was appointed merely to collect rent from other tenants and incidentally allowed to cultivate the Sir, or Khudkasht land of the lessor then he will be a mere asami in accordance with section 13 928 of the Act.
Before a Thekedar can claim the status of a hereditary tenant, A he must not only be a Thekedar but the Theka must be specifically granted for personal cultivation of the land included in the Theka by the Thekedar.
[931 H, 932 A C] Babu Noorul Hasan Khan vs Ram Prasad Singh and Ors [1980] I SCR 977 and Raghunandan Singh and Ors vs Brij Mohan Singh and Ors.
, ; , referred to.
In the instant case the Theka was created exclusively for personal cultivation of the land involved in the Theka be the Thekedars and not as a consideration for some other duties to be performed by the Thekedars to the Zamindars.
The Thekedars were in possession of the land and were personally cultivating the land on the 1st day of May, 1950.
The Thekedars acquired the status of hereditary tenants under section 12 of the 1950 Act.
[933 C E] Section 3 of the 1952 Act provides that any person who has not become a bhumidar, sirdar, adhivas.
Or asami under the 1950 Act if he is in cultivatory possession of any land during the year 1359 Fasli and if the bhumidar or sirdar was not such a person, such person in cultivatory possession would acquire the status of an adhivasi.
To obtain the benefit of section 3 the person claiming to be in cultivatory possession must show that his or her possession was lawful.
[933 F G, 934 F] Sonawati and Ors.
vs Sri Ram and Anr., [1968] I SCR 617, referred to.
In the instant case since the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees in 1359 Fasli was not lawful.
Therefore the lessees did not acquire the right of adhivasi.
[933 H, 935 A]


judgement:
Civil Appeal No. 4264 of 1983.
Appeal by Special leave from the Judgment and Order dated the 25th April, 1979 of the Bombay High Court in Writ Petition No. 1117 of 1979.
V. section Desai and M. N. Shroff with him for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
A question frequently arises under the Agricultural Ceiling Acts passed by the State Legislatures as to whether the land owned and held by a wife as her separate property can be clubbed together with the lands held by her husband and the other members of the family for the purpose of computing the ceiling on the holding of the 'family unit '.
That question arises in this appeal under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961, (The Act ').
The respondent Vyasendra filed a return under section 12 of the Act showing the lands held by him and mentioning that certain lands which stood in the name of his wife were her separate property.
The Surplus Lands Determination Tribunal held under section 21 of the Act that the total holding of the respondent, including the land which was alleged to be the separate property of his wife, was 67 acres and 34 gunthas.
Since the ceiling under the Act is 54 acres, the respondent was asked to surrender an area admeasuring 13 acres and 34 gunthas.
The Additional Commissioner, Aurangabad, called for the record and proceedings of the Tribunal suo motu.
The respondent 3 contended in those proceedings that an area of 17 acres and 27 gunthas which was sold by his wife after the notified date, was wrongly included in the holding of the family unit on the basis that the sale was mala fide and was not supported by legal necessity.
By an order dated January 16, 1979 the Additional Commissioner remanded the matter to the Tribunal for a fresh inquiry into the question as to whether the sale of land effected by the respondent 's wife after the notified date was supported by legal necessity.
The contention was that the respondent 's wife had sold the land in order to meet the medical expenses in connection with her illness.
The respondent filed a writ petition (No. 1117 of 1979) in the High Court of Bombay against the judgment of the Additional Commissioner.
The contention of the respondent before the High Court was that the Additional Commissioner should have remanded the proceedings to the Tribunal not only for the purpose of determining whether the respondent 's wife had sold the land for the purpose of legal necessity but also for the purpose of determining whether the land which stood in the name of the respondent 's wife constituted her separate or Stridhan property.
This contention was accepted by the High Court which, by its judgment dated April 25, 1979 enlarged the scope of the remand by directing the Tribunal to inquire also into the question as to whether the land which stood in the name of the respondent 's wife was her separate property.
The correctness of the judgment of the High Court is challenged by the State of Maharashtra in this appeal.
By an order dated March 8, 1983 this Court had issued a show cause notice to the respondent stating therein that the matter will be finally heard and disposed of at the next hearing.
The show cause notice has been served on the respondent but he has not put in his appearance.
Shri V. section Desai, who appears on behalf of the appellant, contends that the High Court was in error in enlarging the scope of the order of remand passed by the Additional Commissioner by directing the Tribunal to hold an inquiry into the question whether the land which stood in the name of the respondent 's wife and which was sold by her allegedly for medical expenses, was her separate property.
This contention is well founded and must be accepted.
Section 3(1) of the Act provides, to the extent material, that no 'family unit ' shall after the commencement date, hold land in excess of the ceiling 4 areas as determined in the manner provided by the Act.
By subsection (2) of section 3, the land held by a family unit in excess of the ceiling area is regarded as surplus land, liable to be dealt with in the manner prescribed by the Act.
Section 4(1) of the Act, which is of crucial importance in this case, reads thus: "4.
Land held by family unit (1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit.
Explanation A 'Family unit ' means, (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses.
" It is clear from these provisions that all land held by each member of the family unit, whether jointly or separately, is to be deemed to be held by the family unit, for the purpose of determining the ceiling area which the family unit may retain.
The expression 'family unit ' is defined by the Explanation to mean "a person and his spouse. ".
The circumstance that the land held by a constituent member of the family unit is separate property or stridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling area which the family unit can retain.
The respondent, his wife and their minor sons and minor unmarried daughters, if any, are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit.
The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain.
The High Court was therefore in error in directing the Tribunal to 5 inquire into the question as to whether the land which stood in the name of the respondent 's wife and which was sold by her was her personal or separate property.
Assuming it was so, it is still liable to be aggregated with the land held by the respondent.
In the result, we allow the appeal, set aside the judgment of the High Court and confirm the order of remand passed by the Additional Commissioner, Aurangabad.
The Surplus Lands Determination Tribunal will inquire into the limited question referred to it by the Additional Commissioner, Aurangabad, only.
There will be no order as to costs.
H.S.K. Appeal allowed.

summary:
Whether the land owned and held by the wife as her separate property can be clubbed together with the lands held by her husband and the other members of the family for the purpose of computing the ceiling on the holding of the ' family unit ' under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.
Section 4(1) of the said Act provides that for the purpose of determining the ceiling area of the family unit all land held by each member of a family unit, whether jointly or separately, shall be deemed to be held by the family unit.
Explanation to section 4(1) states that 'Family unit ' means a person and his spouse and their minor sons and minor unmarried daughters, if any.
Respondent 's claim that certain land which stood in the name of his wife was her separate property was not accepted by the Surplus Lands Determination Tribunal, which included that land in the total holding of the respondent.
Before the Additional Commissioner, the respondent contended that the land which was sold by his wife after the notified date was wrongly included in the holding of the family unit.
The Additional Commissioner remanded the matter to the Tribunal for a fresh inquiry into the question as to whether the sale effected by the Respondent 's wife was supported by legal necessity.
On a writ petition filed by the respondent the High Court directed the Tribunal to enquire also into the question as to whether the land which was in the name of the respondent 's wife was her separate property.
On appeal, the appellant contended that the High Court was in error in enlarging the scope of the order of remand passed by the Additional Commissioner.
Allowing the appeal, ^ HELD: All land held by each member of the family unit, whether jointly or separately, is to be deemed to be held by the family unit, for the purpose of determining the ceiling area which the family unit may retain.
The circumstance that the land held by a constituent members of the family unit is separate property or stridhan property is a matter of no consequence whaatso 2 ever for the purpose of determining the ceiling area which the family unit can retain.
[4 E G] In the instant case the respondent, his wife and their minor sons and minor unmarried daughters, if any, are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit.
The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain.
[4 G H]


judgement:
ition (Crl.) No. 1369 of 1982.
(Under Article 32 of the Constitution.) Ram Jethamalani and Miss Rani Jethmalani for the Petitioner.
O.P. Rana and Mr. M.N. Shroff for Respondents Nos. 1 & 2.
K.G. Bhagat, Addl.
General, N.C. Talukadar,.
Miss A. Subhashini and Girish Chandra for Respondent No. 3.
616 The Judgment of the Court was delivered by CHANDRACHUD, C.J.
By this Writ Petition under Article 32 of the Constitution, the petitioner Mohd. Shakeel Wahid Ahmed challenges the validity of an order of detention dated November 7, 1981 passed against him by the first respondent, the State of Maharashtra, under Section 3 of the , herein referred to as 'the Act '.
Earlier, the petitioner 's wife had filed a habeas corpus petition in the Bombay High Court for the release of the petitioner, but that petition (Writ Petition No. 579 of 1982) was dismissed by the High Court on October 28, 1982.
The High Court held that three out of the four grounds on which the petitioner was detained were bad for one reason or another but that the remaining ground, namely, ground No. 1 did not suffer from any defect and was enough to sustain the order of detention.
While upholding the detention on one of the four grounds only, the High Court relied upon the provisions of section 5 A of the Act by which an order of detention made on two or more grounds is to be deemed to have been made separately on each of such grounds and consequently, such an order cannot be deemed to be invalid merely because some of the grounds are: (i) vague, (ii) non existent, (iii) not relevant, (iv) not connected or not proximately connected with such person or (v) invalid for and other reason whatsoever.
As stated above, three out of the four grounds on which the petitioner was detained have been held to be bad by the High Court.
Those grounds are mentioned in paragraphs 5.2, 5.3 and 6.1 of the grounds furnished to the petitioner.
Grounds 5.2 and 5.3 were held to be bad because they were neither relevant nor did they bear any "nexus, direct or indirect, with the detenu".
It would appear from the judgment of the High Court that this position was not controverted by the learned Public Prosecutor.
In so far as the fourth ground mentioned in paragraph 6.1 is concerned, the High Court held that it was bad because important material which was relevant to that ground was neither placed before nor considered by the detaining authority while passing the order of detention.
In view of the judgment of the High Court, only one out of the four grounds of detention, namely, the ground mentioned in paragraph 1.1 of the grounds furnished to the detenu requires consideration by us.
This petition along with a few other petitions was referred to the Constitution Bench for considering the validity of sections 5 A 617 and 11 of the Act.
We have already set out the purport of section 5 A. Section 11, which authorises the revocation of detention orders, provides by sub section 2 that the revocation of a detention order shall not bar the making of another order under section 3 against the same person.
In view of the conclusion which we have reached in this petition, it is unnecessary to consider the validity of these sections.
The surviving ground of detention contains the allegation that, working on a secret information received on January 13, 1981, the officers of the Marine and Preventive Wing of the Collectorate of Customs (Preventive), Bombay, intercepted a vessel named 'Manek Prasad ' in the sea off World ' at Bombay on February 2, 1981 at about 2 p.m. and seized therefrom wrist watches valued at Rs. 18, 89, 935/ , textiles valued at Rs. 18, 20 675, miscellaneous goods valued at Rs. 18, 769 and Indian currency of Rs. 1,540/ and 188 U.A.E. Dhirams.
It is alleged that none of the seven persons who were on board the ship possessed any documents authorising them to import the aforesaid goods.
The various sub paras of this ground refer to the material which connects the petitioner with the illegal import of the goods seized from the ship.
Shri Jethmalani who appears on behalf of the petitioner contends that the first ground of detention is bad for several reasons, most of which are directed to the question as to whether the detaining authority had applied its mind to the relevant facts and circumstances bearing on the question of the petitioner 's detention.
Only one of these reasons is valid and has to be accepted That reason is as follows: The petitioner was detained under an order dated November 7, 1981.
Prior to that, one Shamsi was detained under an order dated August 19, 1981 passed by the same Government of Maharashtra After considering the reference and the materials placed before it in Shamsi 's case, the Advisory Board reported to the State Government on October 19, 1981 that there was in its opinion no sufficient cause for Shamsi 's detention.
Shamsi was released, as he had to be, in pursuance of the Advisory Board 's opinion.
It is urged by Shri Jethmalani that one of the grounds on which Shamsi was detained being the same as ground No. 1 in this case, the fact that the Advisory Board had reported that there was 618 no sufficient cause for Shamsi 's detention ought to have been placed before the detaining authority which passed the order of detention against the petitioner.
According to the learned counsel, the failure of the State Government to place a highly relevant and important piece of material before the detaining authority vitiates the order of detention.
If the detaining authority in the instant case were apprised that the Advisory Board had reported on examining, inter alia, an identical ground that there was no sufficient cause for detention of another person involved in the same transaction, it may not have passed the order of detention against the petitioner, which is based on similar facts.
This submission is well founded and must be accepted.
It is clear that Shamsi was detained for engaging in a smuggling activity arising out of the same incident and transaction which forms the subject matter of ground No. 1 in the instant case.
The opinion of the Advisory Board that there was no sufficient cause for Shamsi 's detention may not have been binding on the detaining authority which ordered the detention of the petitioner but, it cannot be gainsaid that the fact the Advisory Board had recorded such an opinion on identical facts involving a common ground was at least a relevant circumstance which ought to have been placed before the detaining authority in this case.
Since three out of the four grounds on which the petitioner was detained have been held to be bad by the High Court, we have to proceed on the basis that the petitioner was detained and could validly be detained on the remaining ground only.
That ground is similar to one of the grounds on which Shamsi was detained, the transaction being one and the same, as also the incident on which the two orders of detention are based.
That is why the opinion of the Advisory Board in Shamsi 's case becomes relevant in the petitioner 's case.
The failure of the State Government to place before the detaining authority in the instant case, the opinion which the Advisory Board had recorded in favour of a detenu who was detained partly on a ground relating to the same incident deprived the detaining authority of an opportunity to apply its mind to a piece of evidence which was relevant, if not binding.
In other words, the detaining authority did not, because it could not, apply its mind to a circumstance which, reasonably, could have affected its decision whether or not to pass an order of detention against the petitioner.
It is contended by Shri Rana, who appears on behalf of the Government of Maharashtra, that there is distinction between the 619 petitioner 's case and that of Shamsi since, the petitioner is the brother of the consignor, Ashfaq, while Shamsi is not.
Counsel contends that by reason of this distinction in the facts of the two cases, the State Government was justified in not placing before the detaining authority in this case the fact that the Advisory Board had reported that there was no sufficient cause for detaining Shamsi.
We may assume that the petitioner is the brother of the consignor Ashfaq, since in these proceedings we cannot determine the truth of the various facts alleged by the detaining authority.
But the question for consideration is not whether the detaining authority would have been justified in passing the order of detention against the petitioner, even after being apprised of the opinion of the Advisory Board in Shamsi 's case.
The question is whether the order of detention was passed in this case after applying the mind to the relevant facts which bear upon the detention of the petitioner.
It seems to us plain that the opinion of the Advisory Board in Shamsi 's case was, at any rate, an important consideration which would and ought to have been taken into account by the detaining authority in the instant case.
That opportunity was denied to it.
Shri Rana contends that there were other grounds on which Shamsi was detained and the Advisory Board may have come to the conclusion that since those grounds were not enough to justify Shamsi 's detention, there was no sufficient cause for detaining him.
This argument also overlooks that it is not as if the opinion of the Advisory Board in Shamsi 's case was binding on the detaining authority in this case.
The substance of the matter is that the detaining authority in this case failed to apply its mind to the highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner now rests, in addition to something more, was not sustained by the Advisory Board in Shamsi 's case.
We cannot exclude a reasonable probability that since the Advisory Board had not sustained Shamsi 's detention on a ground which was common to him and the petitioner, namely, ground No. 1, the detaining authority would have, if at all, passed the order of detention against the petitioner on the remaining three grounds only.
Those three grounds have been held to be bad by the High Court and it is only by resorting to the provisions of section 5A of the Act that the High Court upheld the detention of the petitioner.
Shri D.N. Capoor, Secretary to the Government of Maharashtra, Home Department (Law and Order), has filed a 620 counter affidavit in this Court in answer to the Writ Petition.
In paragraph 14 of the said affidavit, Shri Capoor says that he had "ordered to issue detention order on 8.10.1981", after considering the entire material very carefully.
Shri Capoor says that he formulated the grounds of detention "contemporaneously" on 8.10.1981, that thereafter the order of detention and the grounds of detention were got typed and the Customs authorities were directed to supply to the detenu the copies of the statements which were placed before him.
According to Shri Capoor, it was after the receipt of copies of all the documents that the order of detention was issued on November 7, 1981.
The explanation offered by Shri Capoor as to why the opinion of the Advisory Board in Shamsi 's case was not placed before him is that the report of the Advisory Board in Shamsi 's case which is dated October 19, 1981, was not in existence when he "formulated and ordered to issue the detention order against the petitioner" in this case.
We see quite some difficulty in accepting this explanation.
In the first place, the fact that it was on October 8, 1981 that Shri Capoor had directed the detention of the petitioner is a matter of no consequence.
The order of detention was issued, that is to say passed, on November 7, 1981 and we must have regard to the state of circumstances which were in existence on that date.
Shri Capoor seems to suggest that the Advisory Board 's opinion dated October 19, 1981 came into existence after he had made up his mind to pass an order of detention against the petitioner on October 8, 1981 and therefore he could not take, or need not have taken, that opinion into account.
The infirmity of this explanation is that the order of detention was passed against the petitioner on November 7, 1981 and the Advisory Board 's opinion in Shamsi 's case was available to the State Government nearly three weeks before that date.
If that opinion were available before the order of detention was passed in this case, it was the duty of the State Government to place that opinion before the detaining authority in order to enable it to consider whether, an order of detention could be passed against the petitioner despite that opinion especially when, one of the grounds on which the two orders of detention are based is identical and relates to the same incident.
We would like to add that having seen the original order of detention which was made available for our inspection by the officers of the State Government, we were baffled to find that though Shri Capoor 's signature bears the date October 8, 1981, the column for date, in the left hand corner at the bottom of the order of detention, has remained or become blank.
621 For the reasons mentioned above, we set aside the order of detention dated November 7, 1981 passed against the petitioner by the Government of Maharashtra and direct that to the extent that his detention is attributable to the said order of detention, he shall be released forthwith.
P.B.R. Petition allowed.

summary:
The Customs officials intercepted a ship off Bombay and seized from it various articles worth several lakhs of rupees.
None of the seven persons on board the ship possessed any documents authorising them to import the goods.
On August 19, 1981, section one of the seven persons on board the ship, was detained under the provisions of ; but the Advisory Board reported that there was in its opinion no sufficient cause for his detention.
He was therefore released.
By an order dated November 7, 1981 the petitioner, who was also one of the persons on board the same ship, was detained under the COFEPOSA in respect of the same transaction.
While dismissing the habeas corpus petition filed by the petitioner 's wife, the High Court was of opinion that three out of the four grounds on which the petitioner was detained were bad for one reason or the other but that the first ground was enough to sustain the order of detention in that important material relevant to that ground was neither placed before nor considered by the detaining authority while passing the order of detention.
In the petition under Article 32 of the Constitution it was contended on behalf of the petitioner that had the detaining authority in the instant case been apprised that the Advisory Board, on examining an identical ground in the case of S had reported that there was no sufficient cause for detention of S who was involved in the same transaction, it might not have passed the order of detention against the petitioner which is based on similar facts and that its failure to place such highly relevant and important material before the detaining authority has vitiated the order of detention.
Allowing the petition, ^ HELD: The failure of the State Government to place before the detaining authority the opinion which the Advisory Board had recorded in favour of another detenu who was detained partly on a ground relating to 615 the same incident deprived the detaining authority of an opportunity to apply its mind to a piece of evidence which was relevant, if not binding.
In other words, the detaining authority did not, because it could not, apply its mind to a circumstance which reasonably could have affected its decision whether or not to pass an order of detention against the petitioner.
[618 B H] The opinion of the Board may not have been binding on the detaining authority but it cannot be gain said that the fact that the Board had recorded such an opinion on identical facts involving a common ground was at least a relevant circumstance which ought to have been placed before the detaining authority in the case.
The ground on which the High Court upheld the order of detention was similar to one of the grounds on which S was detained, the transaction being one and the same as also the incident on which the two orders of detention were based.
This is why the opinion of the Board in the earlier case became relevant in the present case.
[618 D F] It may be that there were other grounds on which S was detained and that the Advisory Board might have come to the conclusion that since these grounds were not enough to justify his detention there was no sufficient cause for detaining him.
But it is not as if the opinion of the Board was binding on the detaining authority.
The substance of the matter is that the detaining authority in this case failed to apply its mind to a highly relevant circumstance that an order of detention passed on the ground on which the detention of the petitioner rested, in addition to something more, was not sustained by the Advisory Board in the case of section The reasonable probability that, since the Advisory Board had not sustained S 's detention on a ground which was common to him and the petitioner, the detaining authority would have, if at all, passed the order of detention against the petitioner on the remaining three grounds only cannot be excluded.
Those three grounds had been held to be bad by the High Court.
[619 E H] The explanation of the detaining authority that the Board 's opinion dated October 19, 1981 came into existence after he had passed the order of detention on October 8, 1981 is not correct.
When the order of detention was passed on November 7, 1981 the Board 's opinion in Ss ' case was available to the State Government nearly three weeks before that date and it was the duty of the State Government to place that opinion before the detaining authority.
[620 E F]


judgement:
Civil Appeal Nos.
2120 & 2125 of 1970.
From the Judgment and order dated the 17th April, 1970 of the Delhi High Court in Civil Writ Petitions Nos. 133 & 134 of 1968 Kapil Sibal, Rameshwar Dial, Adarsh Dial and section Mittar for the Appellants.
K. B. Rohtagi for the Respondents.
The following Judgment of the Court was delivered by CHINNAPPA REDDY, J. BY a notification dated 31.1.68, the Delhi Municipal Corporation purported to enhance the fee for slaughtering animals in its slaughter houses from Re. 00.25p to Rs. 2.00 for each animal, in the case of sheep, goats and pigs, and li from Re. 1.00 to Rs. 8.00 for each animal, in the case of buffaloes.
The notification was quashed by the High Court of Delhi on the ground that the Corporation was really proposing to levy a tax under the guise of enhancing the fee.
The original rates were fixed in March 1953 and the revised rates were to take effect from February 1, 1968.
Some butchers of the city questioned the revision of rates on the ground that the proposed enhanced fee was wholly disproportionate to the cost of the services and supervision and was in fact not a fee, but a tax.
The High Court accepted the contention of the butchers on what appears to us a superficial view of the facts and principles.
Fortunately, the High Court has certified the case as a fit one for appeal under article 133 (1)(c) of the Constitution and the matter is now before us.
1002 During the pendency of the writ petitions in the High Court, by virtue of an interim arrangement, the Municipal Corporation was permitted to collect fee at the rate of Re. 00.50p.
per animal in the case of sheep, goats and pigs and Rs. 2.00 per animal in the case of buffaloes.
As a result, the Municipal Corporation realised a sum of Rs. 4,24,494 by way of fee for slaughtering animals in its slaughter houses.
Now, the budget of the Municipal Corporation under item XIV B showed a sum of Rs. 2,56,000 as the expenditure involved in connection with the slaughter houses.
Comparing the amount of actual realisation of fee at the rates permitted by the Court with the amount of expenditure as revealed by the budget and excluding from consideration all expenditure not show in the budget under item XIV B, the High Court came to the conclusion that even if the original fee was doubled the amount realised would be more than sufficient to meet the expenditure involved and there was, therefore, no warrant at all for increasing the fee eight fold.
So, it was said, the proposed fee was no fee but a tax for which there was no legislative mandate.
We shall presently point out the error into which the High Court fell on facts as well as principle.
A word on interpretation.
Vicissitudes of time and necessitude, of history contribute to changes of philosophical attitudes, concepts, ideas and ideals and, with them, the meanings of words and phrases and the language itself.
The philosophy and the language of the law are no exceptions.
Words and phrases take colour and character from the context and the times and speak differently in different contexts and times.
And, it is worthwhile remembering that word, and phrases have not only a meaning but also a content, a living content which breathes, and so, expands and contracts.
This is particularly so where the words and phrases properly belong to other disciplines. 'Tax ' and 'Fee ' are such words.
They properly belong to the world of Public Finance but since the Constitution and the laws are also concerned with Public Finance, these words have often been adjudicated upon in an effect to discover their content.
Commissioner of Hindu Religious Endowments, Madras vs Shri Lakshmindra Thirtha Swamiyar(1) is considered the locus classicus on the subject of the contradistinction between 'tax ' and fee?.
The definition of 'tax ' given by Latham, C.J. as "a compulsory exaction 1003 of money by public authority for public purposes enforceable by law and not payment for services rendered" was accepted, by the Court as stating the essential characteristics of a tax.
Turning to fees, it was said "a fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency", but it was confessed, "as there may be various kinds of fee, it is not possible to formulate a definition that would be applicable to all cases".
As regards the distinction between a tax and a fee, it was noticed that compulsion could not be made the sole or even a material criterion for distinguishing a tax from fee.
It was observed that the distinction between a tax and fee lay primarily in the fact that tax was levied as a part of a common burden, while a fee was a payment for a special benefit or privilege.
But it was noticed that the special benefit or advantage might be secondary to the primary motive of regulation in the public interest, as for instance in the case of registration fees for documents or marriage licences.
It was further noticed that Article 110 of the Constitution appeared to indicate two classes of cases where 'fees ' could be imposed: (1) where the government simply granted a permission on privilege to a person to do something which otherwise that person would not be competent to do and extracted from him, in return, heavy or moderate fees (ii) where the government did some positive work for the benefit of the person and money was taken as a return for the work done or services rendered, such money not being merged in the public revenues for the benefit of the general public.
It was however made clear that the circumstance that all the collections went to the Consolidated Fund of the State and not to a separate fund may not be conclusive.
The Court finally observed that there was really no generic difference between the tax fees though the Constitution had, for legislative purposes, made a distinction between a tax and a fee.
While there were entries in the legislative lists with regard to various forms of taxes, there was an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of matters that was included in it.
The implication seemed to be that fee had special reference to governmental action undertaken in respect to any of those matters.
In HH Sudhandra vs Commissioner for Hindu Religious & Charitable Endowments(1), the Court reiterated the principle that a levy in 1004 the nature of a fee did not cease to be of that character merely because there was any element of compulsion or coerciveness present in it, and aided.
"Nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of the service.
If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being a reasonable relation between the levy and the expenses incurred for rendering services, the levy would be in the nature of a fee and not in the nature of a tax . . but a levy will not be regarded as a tax merely because of the absence of unity in its incidence, or because of compulsion in the collection thereof, nor because some of the contributories do not obtain the same degree of service as others may.
" In Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa and Ors.(1) the Court while reiterating that there was an element of quid pro quo between the person paying the fee and the authority imposing it, said: "If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business, the cess is distinguishable from a tax and is described as a fee." Later it was said: "It is true that when the legislature levies a fee for rendering specific services to a specified area or to specified, class of persons or trade or business, in the last analysis such services may indirectly form part of services to the public in general.
If the special service rendered is distinctly and primarily meant for the benefit of a specified class or area the fact that in ben fitting the specified class or area the State as a whole may 1005 ultimately and indirectly be benefitted would not detract from the character of the levy as a fee.
Where, however, the specific, service is indistinguishable from public service, and in essence is directly a part of it, different considerations may arise.
In such a case, it is necessary to enquire what is the primary object of the levy and the essential purpose which it is intended to achieve.
Its primary object and the essential purpose must be distinguished from its ultimate or incidental results or consequences.
That is the true test in determining the character of the levy," In H.H. Swamiji vs Commissioner, Hindu Religious & Charitable Endowments Department and Ors.,(1) Chandrachud, CJ.
speaking for the Constitution Bench, emphasised the necessity as well as the sufficiency of a broad correlationship between the services rendered and the fees charged and discounted the attempts to go into minutiae to discover meticulously whether or not there was mathematical equality.
He said, "For the purpose of finding whether there is a correlationship between the services rendered to the fee payers and the fees charged to them, it is necessary to know the cost incurred for organising and rendering the services.
But matters involving consideration of such a correlationship are not required to be proved by a mathematical formula.
What has to be seen is whether there is a fair correspondence between the fee charged and the cost of services rendered to the fee payers as a class.
The further and better particulars asked for by the appellants under VI, rule 5 of the Civil Procedure Code, would have driven the Court, had the particulars been supplied, to a laborious and fruitless inquiry into minute details of the Commissioner 's departmental budget.
A vivisection of the amounts spent by the Commissioner 's establishment at different places for various purposes and the ad hoc allocation by the Court of different amounts to different heads would at best have been speculative.
It would have been no more possible for the High Court if the information were before it, than it would be possible for us if the information were before us.
to find out what part of the expenses incurred by the Commissioner 's establishment at various places and what part of the salary of his staff at those places should be allocated to the functions 1006 discharged by the establishment in connection with the services rendered to the appellants.
We do not therefore think that any substantial prejudice has been caused to the appellants by reason of the non supply of the information sought by them." In Southern Pharmaceuticals & Chemicals Trichur & Ors. etc.
vs State of Kerala & Ors. etc.
,(1) A.P.Sen, J. speaking for the Court noticed the broadening of the Court 's attitude and observed: "It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence, are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure for rendering the services is not by itself decisive.
That is because the Constitution did not con template it to be an essential element of a fee that it should be credited to a separate fund and not to the consolidated fund.
It is also increasingly realised that the element of quid pro quo stricto senso is not always a sine qua non of a fee.
It is needle to streess that the element of quid pro quo is not necessarily absent in every tax. .
The Traditional Concept of Quid Pro Quo Is Undergoing.
A Transformation.
" What do we learn from these precedents? We learn that is no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of taxpayers whereas a fee is a payment for services rendered, benefit provided or privilege conferred '.
Compulsion is not the hall mark of the distinction between a tax and a fee.
That the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax.
Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct .
a mere causal relation may be enough.
Further, neither the incidence of the fee nor the service rendered need be uniform.
That others besides those paying the fees are also benefited does not detract from the character of the fee.
In fact the special benefit or advantage to the payers of the fees may even be secondary as com 1007 pared with the primary motive of regulation in the public interest.
Nor is the Court to assume the role of a cost accountant.
It is neither necessary nor expedient to weigh too meticulously the cost of the services rendered etc.
against the amount of fees collected so as to evenly balance the two.
A broad correlationship is all that is necessary.
Quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax.
What do we have in the present case ? True, the Municipal Corporation has realised a sum of Rs. 4,24,494 by way of fees at the rate of Re. 00.50p.
per animal in the case of sheep, goats and pigs and Rs. 2.00 per animal in the case of buffaloes, whereas the budget of the Municipal Corporation showed under item XIV B that an amount of Rs. 2,56,000 was expended in connection with slaughter houses.
But as explained in the affidavit of Dr. A. C. Ajwani Deputy Health officer (Public Health) of the Municipal Corporation of Delhi, the amount of Rs. 2,56,000 covers only those items of expenditure as are reflected in item XIV B of the Municipal Budget.
The items of expenditure covered by item XIV B of the municipal budget are evidently those item of expenditure which arc incurred directly and excessively in connection with slaughter houses.
In addition there are several other items of expenditure connected with slaughter houses but which are not included in item XIV B.
To name a few, .
there is the expenditure involved in the purchase, maintainance and the use of trucks and other vehicles for the removal of filth and refuse from slaughter houses.
These expenses, though attributable to slaughter houses, are debited in the municipal budget under other heads such as transport, conservancy, petrol and oil etc.
There is also the expenditure incurred in connection with the maintainance of supervisory staff like a full time Veterinary officer, and a Municipal Health officer, Deputy Health officer, Zonal Health officer etc., a considerable part of those duties are connected with slaughter houses.
There is then the cost of depreciation of the buildings and fittings in the slaughter houses.
There is also the provision for expansion and improvement of slaughter house facilities.
There are several other items of expenditure the whole or part of which is attributable to slaughter houses.
Unfortunately, the High Court refused to look at any of these formidable items of expenditure on the ground that the Corporation could not ask the Court to look at any figures other than the figure mentioned under item XIV B of the municipal budget.
Aparently the High Court was under the impression that the fees collected should be shown to be related to 1008 expenditure incurred directly and exclusively in connection with the slaughtering of animals in its slaughter houses and also, shown as such in the municipal budget.
This was a wholly erroneous approach, in the light of what we have said earlier.
We have explained earlier that the expenditure need not be incurred directly nor even primarily in connection with the special benefit or advantage conferred.
We have also explained that there need not be any fastidious balancing of the cost of the services rendered with the fees collected.
It appears to have been common ground before the High Court that the price of meat had gone up about 10 to 12 times since the rates were original fixed.
If so, one wonders how the Municipal Corporation could be expected to effectively discharge its obligations in connection with the supervision of the slaughtering of animals in the slaughter houses maintained by it by merely raising the rates two fold and three fold.
The increase from Re. 00.25p to Rs. 2.00 per animal in the case of small animals and from Re. 1.00 to Rs. 8.00 in the case of large animals appears to us to be wholly justified in the circumstances of the case.
The appeal is therefore, allowed with costs the judgment of the High Court set aside and the Writ Petition filed in the High Court dismissed with costs.
S.R. Appeal allowed.

summary:
As per the rates fixed in the year 1953 by the Municipal Corporation of Delhi, the slaughtering fees were 0.25 paise for each animal, in the case of sheep, goats and pigs and rupees one for each animal in the case of buffaloes.
By a Notification dated 31.1.1968, the Corporation purported to enhance the slaughtering fee in both the categories eightfold, with effect from February 1 1968.
Some butchers of the city questioned the revision of rates on the ground that the proposed enhanced fee was wholly disproportionate to the cost of the services and supervision and was in fact not a fee, but a tax.
During the pendency of the writ petitions in the High Court, by virtue of an interim arrangement, the appellant, was permitted to collect slaughtering fees at double the rates fixed in 1953 and as a result thereof the Corporation realised a sum of Rs. 4,24,494/ .
The budget of the Corporation under item XIV B showed a sum of Rs. 2,56,000 as the expenditure involved in connection with the slaughter houses.
Comparing the amount of actual realisation of fee at the rates permitted by the court with the amount of expenditure as revealed by the budget and excluding from consideration all expenditure not shown in the budget from item XIV B, the High Court came to the conclusion that even if the original fee was doubled the amount realised would be more than sufficient to meet the expenditure involved and, therefore, there was no reason at all for increasing the fee eightfold and so the proposed fee was no fee but a tax for which there is no legislative mandate.
Hence the appeal by special leave.
Allowing the appeal, the Court ^ HELD: 1;1 The increase of the slaughtering fee from 0.25 P to Rs. 2.00 per animal in the case of small animals and from rupee 1.00 to Rs. 8.00 in the case of large animals was wholly justified, in the Circumstances of the case.
[1008 C D] 1:2 True, the Municipal Corporation has realised a sum of Rs. 4,24,494 way of fees at the rate of Re. 00.50 per animal in the case of sheep, goats 1000 and pigs and Rs. 2 per animal in the case of buffaloes, whereas the budget of the M.C.D. showed under item XIV B that an amount of Rs. 2,56,000 was expended in connection with slaughter houses.
The Items of expenditure covered by item XIV B of the Municipal Budget are evidently those items of expenditure which are incurred directly and exclusively in connection with slaughter houses.
There are several other items of expenditure the whole or part of which is attributable to slaughter houses like the expenditure involved in the purchase, maintenance and the use of trucks and other vehicles for the removal of filth from slaughter houses, conservancy, petrol oil etc.
, the expenditure incurred in connection with the maintenance of supervisory staff like a fulltime Veterinary officer, Municipal Health officer, Deputy Health officer and Zonal Head officers, the cost of depreciation of the buildings and fittings in slaughter houses, expansion and improvement of slaughter houses for utilities etc.
but actually debited to other heads of account under the Municipal budget.
Apparently, the High Court was under an erroneous impression that the fees collected should be shown to be related to expenditure incurred directly and exclusively in connection with the slaughtering of animals in its slaughter houses and also, shown as such in the Municipal budget.
[1007 B H, 1008 A B] 2.
Vicissitudes of time and necessitudes of history contribute to changes of philosophical attitudes, concepts, ideas and ideals and, with them, the meanings of words and phrases and the language itself.
The philosophy and the language of the law are no exceptions.
Words and phrases take colour and character from the context and the times and speak differently in different contexts and times.
Words and phrases have not only a meaning but also a content, a living content, which breathes, and so, expands and contracts.
This is particularly so where the words and phrases properly belong to other disciplines.
"Tax" and "Pee" are such words.
They properly belong to the world of public finance but since the Constitution and the laws are also concerned with Public Finance, these words have often been adjudicated upon in an effort to discern their content.
[1002 D G] 3.
From the decided cases beginning from Commissioner of Hindu Religious Endowments, Madras vs Shri Lakshmindra Thirtha Swamiyar ; till date, it is clear that: (i) There is no generic difference between a tax and fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of tax payers whereas a fee is a payment for services rendered; benefit provided or privilege conferred; (ii) Compulsion is not the hall mark of the distinction between a tax and fee; (iii) That the money collected does not go into a separate fund but goes into the Consolidated Fund does not also necessarily make a levy tax; (iv) Though a fee must have relation to the services rendered, or the advantage conferred, such relation need not be direct; a mere casual relation may be enough; (v) Further neither the incidence of the fee nor the service rendered need be uniform, (vi) That others besides those paying the fees are also benefited does not detract from the character of the fee; (vii) In fact the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest; (viii) Nor is the court to assume the role of a Cost Accountant.
It is neither necessary nor expedient to weigh too meticulously the cost, of the services rendered 1001 etc.
against the amount of fees collected so as to evenly balance the two and (ix) A correlationship is all that is necessary.
Quid pro quo in the strict sense is not the only true index of a fee; nor is it necessarily absent in a tax.
[1006 E H, 1007 A B] Commissioner of H.R. & C.E., Madras vs Shri Lakshmindra Thritha Swamiyar, ; ; H. H. Sudhundra vs Commissioner for Hindu Religious and Charitable Endowments, [1963] Supp. 2 S.C.R. 302; Hingir Rampur Coal Co. Ltd. and others vs The State of Orissa and others, [196] 2 S.C.R. 537; H. H. Swamiji vs Commissioner Hindu Religious & Chariiable Endowments Dept. and others, ; Southern Pharmaceuticals & Chemicals, Trichur and others etc.
vs State of Kerala and others; , referred to.


judgement:
Civil Appeal No. 1583 of 1970.
Appeal by special leave from the Judgment and order dated the 22 12 1969 of the Gujarat High Court in S.C.A. No. 1630 of 1969.
V. A. Bobde and A. G. Ratnaparkhi for the Appellant.
R. B. Datar and Ms. Madhu Moolchandani for the Respondent.
The Judgment of the Court was delivered by DESAI J.
Appellant Sureshbhai is the owner of land bearing Survey No. 21 situated at Village ode, Taluka Anand, District Kaira in Gujarat State.
One Nathabhai Zaveribhai and the present respondent were recorded as tenants on the tillers ' day i.e. Ist April, 1957.
Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 ( 'Tenancy Act for short) provided that on the 1st day of April, 1957 (hereinafter referred to as the tillers ' day) every tenant shall subject to the other provisions of the section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free from all encumbrances subsisting thereon on the same date the land held by him as tenant.
Section 32G provided for the follow up action of the compulsory purchase that ensues by the 994 operation of sec.
Section 32G thus envisages the determination of the price in accordance with the various provisions of the Act, of the land deemed to have been purchased by the tenant on the tillers ' day and the methodology of its payment.
In order to determine the price the Agricultural Lands Tribunal ( 'Tribunal ' for short) has to serve a notice in the prescribed manner to (a) all tenants who u/s 32 are deemed to have purchased the lands (b) all landlords of such lands; and (c) all other persons interested therein to appear before it on the date specified in the notice.
Sub sec.
2 provides that the Tribunal shall record in the prescribed manner, the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant.
Sub sec.
3 provides that where tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such a person is not willing to purchase the land and that the purchase is ineffective.
The remaining sub secs.
provide the manner and method of determining the price.
The Tribunal having jurisdiction in the area in which the land involved in the dispute is situated issued notice to Nathabhai Zaveribhai and the present appellant as well as the landlord of the land u/s 32G.
It appears both the tenants i.e. Nathabhai Zaveribhai and the present respondent refused to accept notice to remain present and when summons was served by substituted service both of them did not remain present The Tribunal accordingly declared the sale ineffective as provided by sec.
32G(3).
The Tribunal accordingly made its order annexure dated July 20, 1962 declaring that the sale is ineffective.
Subsequently the present respondent made an application u/s 32 PP requesting the Tribunal to determine the price of the land deemed to have been purchased by him being Survey No. 21 of Village ode on April 1, 1957.
It may be clarified that sec.
32 PP was designed to give a further opportunity to the tenant who had failed to appear before the Tribunal which led to the sale being held ineffective, to purchase the land.
This application was resisted by the appellant landlord The Tribunal held that the present respondent was not a tenant of the suit land and Nathabhai Zaveribhai was the only tenant who has not made an application u/s 32 PP and therefore the present respondent is not entitled to be declared a deemed purchaser and accordingly it is not necessary to determine the purchase price.
The respondent preferred an appeal to the Deputy Collector.
This appeal was dismissed by the Deputy Collector concurring with the findings of the Tribunal.
The respondent moved a revision petition u/s 76 995 of the Tenancy Act in the Gujarat Revenue Tribunal.
A learned member of the Gujarat Revenue Tribunal held that once the notice was issued to person who is shown to have purchased the land u/s 32 and if the sale is held ineffective because of his absence under sec.
32 G, in a subsequent proceeding u/s 32 PP it is not open to the landlord to challenge that such a person was not tenant.
Alternatively, on the merits it was held that the present respondent was tenant of the land on April 1, 1957 and he has become a deemed purchaser and the Tribunal was bound to determine the price.
The matter was accordingly remitted to the Tribunal.
Present appellant landlord moved a petition under article 227 in the High Court of Gujarat which was dismissed in limine.
Hence this appeal by special leave.
It is not in dispute that the notice u/s 32G was issued to the present respondent and Nathabhai Zaveribhai with a view to determining the price of land bearing Survey No. 21.
The notice was also served upon the appellant landlord.
In a proceeding for determining the price, the necessary parties are the landlord and the tenant as the tenant becomes the owner of the land by operation of law.
A statutory duty is cast on the Tribunal to proceed to determine the purchase price.
But as held by a Constitution Bench of this Court in Sri Ram Ram Narain.
Medhi vs The State of Bombay(1), that "the title of the landlord to the land passes immediately to the tenant on the tillers ' day and there is a completed purchase or sale thereof as between the landlord and the tenant.
The title of the land which was vested originally in the landlord passes to the tenant on the tillers ' day and this title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or commit default in payment of the price thereto as determined by the Tribunal.
" Thus, it is clear that the title passes by the operation of law.
The Tribunal has to determine the price as envisaged by section 32G.
In order to effectively dispose of the proceedings in the presence of the necessary parties, the Tribunal is under an obligation to issue notice to the landlord and the tenant.
Order of the Tribunal dated July 20, 1962 shows that both the tenants and the landlord were served.
The order further shows that the tenants refused to accept the notice and after substituted service did not remain present.
It 996 appears that the landlord remained present.
The Tribunal declared the sale ineffective on account of the absence of the tenants.
So far there is no dispute, It appears that the Legislature became aware of the fact that for want of legal literacy a sizeable number of tenants did not appreciate the implication of such a revolutionary measure and presumably under some influence of the landlord and the local atmosphere, the tenants did not appear before the Tribunal with the result that the statutory sales were declared ineffective.
The Legislature took notice of this phenomenon defeating an agrarian reform legislation and introduced sec.
32 PP by the Amending Act of 1965.
32 PP was designed to give a further opportunity to the tenant to purchase the land.
The relevant portion of sec.
32 PP reads as under; "section 32 PP.
Notwithstanding anything contained in sections 32G and 32P, where before the date of the coming into force of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1935 (hereinafter referred to in this section as "the said date") (i) any land has been at the disposel of the Collector under section 32P on account of the purchase of the land by the tenant thereof having become ineffective under sub section (3) of section 32G by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land, and" * * * Pursuant to this fresh opportunity afforded by sec.
32PP respondent made an application requesting the Tribunal to determine the purchase price.
The Gujarat Revenue Tribunal (Revenue Tribunal for short) held that the sale had become ineffective under sub sec.
(3) of sec.
32G by reason of the tenant failing to appear before the Revenue Tribunal and therefore in an application under sec.
32PP the status of the applicant being a tenant is no more open to debate or dispute and must be deemed to be concluded between the parties.
It is difficult to subscribe to this view.
32PP 997 confers a right upon a person claiming to be a tenant and the precondition is that he having failed to appear before the Tribunal in a proceeding u/s 32G, can make an application for determining the price.
In such a situation, the landlord is a necessary party.
The landlord can and would be entitled to contend that the person claiming to be a tenant and making an application u/s 32PP was not a tenant on April 1, 1957.
It is difficult to subscribe to the inter pretation of sec.
32PP adopted by the Tribunal.
Undoubtedly only that person is entitled to make an application u/s 32PP who having failed to appear before the Tribunal in a proceeding u/s 32G, the statutory saie was declared ineffective but on that account such person making an application under sec.
32PP must be accepted as tenant without further enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the language of sec. 32PP.
It is undoubtedly true that an application u/s 32PP can be made where the purchase of the land by the tenant has been declared ineffective u/s 32G(3) by reason of the tenant failing to appear before the Tribunal or making a statement expressing his unwillingness to purchase the land.
But it should not be overlooked that where a notice was sent by the Tribunal u/s 32G to the person to whom the Tribunal prima facie believed to be a tenant and if such a tenant did not appear and the Tribunal without anything more proceeded to declare the sale becoming ineffective, the application u/s 32 PP would not preclude the landlord from contesting the petition by showing that the applicant was not a tenant on 1.4.57.
In any proceeding u/s 32G and 32PP the most important issue to be determined is whether the person claiming to be a tenant was a tenant on April 1, 1957 and an additional issue will have to be determined in an application u/s 32PP whether to such a person notice had been issued u/s 32G and on his failure to appear the sale became ineffective.
The Revenue Tribunal appears to be of the view that unless the landlord challenged the order u/s 32G declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April 1, 1957 and is failure to appear without anything more would clothe him with the status of a tenant.
This approach overlooks the possibility of a person to whom notice is served, not appearing because he had nothing to do with the land.
In such a situation an unadjudicated inferential determination of status cannot preclude an inquiry into the status which is a sine 998 qua non for claiming the right in a subsequent proceeding between the parties.
Therefore the failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general principle of res judicata or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry.
There is only one situation which may preclude the enquiry in that if on receipt of notice the tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective, the landlord in subsequent proceeding under sec.
32 PP would be estopped from challenging the status of the applicant tenant.
Such is not the case.
Otherwise on a challenge by the landlord in a proceeding under sec.
32 PP the Tribunal have to determine the jurisdictional facts that (i) the applicant was a tenant on April 1, 1957 and (ii) that the sale was declared ineffective under sec.
35G. Therefore, the view of the Tribunal that in a proceeding u/s 32PP, the status of the applicant as a tenant is incontrovertible does not commend to us and is not correct.
Mr. Bobde contended that once the view of the Tribunal is not in consonance with law the only course open to us is to remit the matter to the Tribunal.
We are not inclined to accept the submission for the obvious reason that there is material on record that the respondent was a tenant on the relevant date.
Apart from a piece of circumstantial evidence that a notice was sent to the respondent both by a registered post and service was sought to be effected by substituted service on the basis of tenancy record, his name appears in the record of tenancy for certain years.
Further the landlord has not put on record his statement in the proceeding u/s 32G whether he disputed the status.
The landlord did not take any step under sec.
15 after the sale was declared ineffective.
Nathabhai Zaverbhai who according to the landlord was the only tenant of land was not examined by the landlord.
The cumulative effect of these circumstances would affirmatively show that the respondent was a tenant and if he was a tenant on the relevant date, the Tribunal was right in directing that the purchase price be determined.
This is the only point involved in this appeal.
As we find no merit in it, the appeal fails and is dismissed with costs.
H.S.K. Appeal dismissed.

summary:
By the operation of section 32 of the Bombay Tenancy and Agricultural Lands Act 1948 the respondent who was recorded as a tenant on the tillers ' day i e. 1st April, 1957 was deemed to have purchased the land from the appellant landlord subject to other provisions of the Act.
The respondent having refused to accept notice u/s 32G for determining the price of the land and failing to appear, the Tribunal declared the sale ineffective.
Subsequently the respondent made an application under section 32 PP that afforded a fresh opportunity to a tenant who had failed to appear before the Tribunal as a result of which the sale was held ineffective, requesting the Tribunal to determine purchase price of the land.
The Tribunal held that the respondent was not a tenant of the land and was not entitled to be declared a deemed purchaser and accordingly it is not necessary to determine the price The Deputy Collector dismissed the appeal preferred by the respondent.
The Revenue Tribunal in a revision petition held that once the notice was issued to a person who is shown to have purchased the land u/s 32 and if the sale is held ineffective because of his absence in the proceeding under section 32G, in a subsequent proceeding u/s 32 PP it is not open to the landlord to challenge that such a person was not tenant.
A petition under Article 227 of the Constitution moved by the appellant landlord was dismissed in limine by the High Court, Dismissing the appeal, ^ HELD: The view of the Revenue Tribunal is not correct.
Section 32 PP confers a right upon a person claiming to be a tenant to make an application for determining the price and the pre condition is that he failed to appear before the Tribunal in a proceeding u/s 32G.
In such a situation, the landlord is a necessary party.
The landlord can and would be entitled to contend that the person claiming to be a tenant and making an application u/s 32 PP was not a tenant on April 1, 1957.
Undoubtedly only that person is entitled to make an application u/s 32 PP who having failed to appear before the Tribunal in a proceeding u/s 32G, the statutory sale was declared ineffective but on that account such person making an application under section 32 PP must be accepted as tenant without further enquiry and without permitting the landlord to challenge the status of the applicant is not warranted by the 993 language of section 32 PP.
The Revenue Tribunal 's view that unless the landlord challenged the order u/s 32G declaring the sale having become ineffective on the footing that a person to whom notice was sent was a tenant on April 1, 1957 and his failure to appear without anything more would clothe him with the status of a tenant overlooks the possibility of a person to whom notice is served not appearing because he had nothing to do with the land.
[996 H, 997 A H] The failure of the landlord to question the sale being declared ineffective on account of the absence of the person to whom notice was sent and who defaulted would not either on the general principle of res judicata or principle analogous to constructive res judicata preclude the landlord from challenging the status in the subsequent enquiry.
There is only one situation which may preclude the enquiry in that if on receipt of notice the tenant did not appear and the landlord appeared and unequivocally admitted that the defaulting person was a tenant on the relevant date and on his failure to appear the sale should be declared ineffective, the landlord in subsequent proceeding under section 32 PP would be estopped from challenging the status of the applicant tenant.
[998 A.C]