judgement:
ivil Appeal Nos.
337 38 of 1982.
From the Judgments and order date 5.7.80 and 3.2.1981 of the Karnataka High Court in W.P. No. 543/1976 and 1217 of 1981 respectively .
R.N. Narasimamurthy.
Attorney General and P.R. Ramasesh for the Appellants.
G.L. Sanghi, A.K. Sen H.B. Datar.
K.R. Nagaraja.
N. Ganpathy, K.R. NambiaI, R.P. Ranga Swamy, R.B. Datar and Ms. c.
K. Sucharita for the Respondents .
R.S. Hegde for the impleded party.
DUTT, J.
These appeals by special leave preferred at the instance of the Secretary, Regional Transport Authority, Bangalore, and the State of Karnataka, are directed against the judgment of the Division Bench of the Karnataka High PG NO 1041 Court dismissing the appeal preferred by the appellants and affirming that of the learned Single Judge of the High Court whereby the Rule issued on the writ petition filed by the respondent No. 1 D.P. Sharma was made absolute.
The respondent No. 1, who is the owner of a public service vehicle, made an application on October 10, 1976 to the Regional Transport Authority for the grant of a special permit under sub section (6) of section 63 of the for the period from November 15, 1976 to November 22, 1976.
The Regional Transport Authority rejected the said application on the ground that the provisions of the Karnataka Contract Carriages (Acquisition) Act, 1976, hereinafter referred to as `the Act ', prohibit the grant of such permits.
The respondent No. 1 being aggrieved by the refusal by the Regional Transport Authority to grant a special permit filed a writ petition in the High Court.
A learned Single Judge of the High Court allowed the writ petition and directed the Regional Transport Authority to consider the application of the respondent No. I for the grant of special permit.
Against the judgment of the learned Single Judge, the appellants preferred a writ appeal to the Division Bench of the High Court.
The Bench took the view that the intention of the Legislature was that only a public service vehicle in relation to which a special permit had been issued when the Act came into force and which was not operating as a stage carriage should be acquired.
Accordingly, it was held that a public service vehicle in relation to which a special permit had not been issued when the Act came into force would not come within the definition of `contract carriage ' under section 3(g) of the Act and the prohibition contained in section 28 of the Act against the grant of contract carriage permit would not extend to the grant of special permit under sub section (6) of section 63 of the .
In that view of the matter, the Division Bench dismissed the appeal preferred by the appellants.
The only point that is involved in these appeals is whether after the coming into force of the Act, a special permit under section 63(6) of the can be granted under the Act.
The Act is to provide for the acquisition of contract carriages and for matters incidental, ancillary or subservient thereto.
The preamble provides, inter alia as follows: PG NO 1042 'Whereas contract carriages and certain other categories of public service vehicles are being operated in the State in a manner highly detrimental and prejudicial to public interest; And Whereas with a view lo prevent such misuse and also to provide better facilities for the transport of passengers by road and to give effect to the policy of the State towards securing that the ownership and control of the resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; And Whereas for the aforesaid purposes it is considered necessary to provide for the acquisition of contract carriages and certain other categories of public service vehicles in the State and for matters incidential.
ancillary or subservient thereto; It is apparent from the preamble of the Act that the primary object of the Act is acquisition of contract carriages with a view to preventing misuse and also to provide better facilities for the transport of bassengers by road Besides the prearmble.
we may refer to the Statement of Objects and Reasons for the Act which will show the back ground for the enactment of the Act.
The Statement of objects and Reasons for the Act is as follows: "A large number of contract carriages were being operated in the StaLe to the detriment of public interest and were also functioning stealthily as stage carriages.
This had to be prevented.
Article 39(b) and (c) enjoins upon the .
State to see that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth to the common detriment.
In view of the aforesaid it was considered necessary to acquire the contract carriages run by private operators Accordingly the Karnataka Contract Carriages PG NO 1043 (Acquisition) Ordinance, 1976 was promulgated.
The Bill "seeks to replace the Ordinance.
" The constitutional validity of the Act was challenged before this Court and a Constitution Bench of Seven Judges in State of karnataka vs Shri Ranganatha Reddy, [1978] I SCR 641 upheld the validity of the Act.
In considering the question of validity of the Act, this Court referred to the Statement of Objects and Reasons for the Act and on the basis of various affidavits filed on behalf of the State, observed that the operators were misusing their permits granted to them as contract carriage permits, and that in many cases the vehicles here used as stage carriages picking up and dropping passengers in the way.
Accordingly.
the Legislature thought that to prevent such misuse and to provide for better facilities to transport passengers and to the general public, it was necessary to acquire the vehicles permits and all right title and interest of the contract carriage operators etc.
Keeping in view the objects and reasons for the enactment of the Act, we have to consider whether after the coming into force of the Act, it is permissible to grant a special permit under section 68(6) of the .
But before we do that we may refer to the Scheme of the Act.
We have already referred to the preamble to the Act providing for the acquisition of contract carriages.
The Act shall be deemed to have come into force on January 30, 1976 as provided in sub section (3) of section 1 of the Act.
Section 2 contains a declaration that the Act is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India and the acquisition therefor of the contract carriages and other property referred to in section 4 of the Act.
Section 3 is the definition section.
Clause (g) of section 3 is an extended definition of contract carriage ' as given in section 3(2) of the .
and we shall presently refer to and deal with the definition in detail.
Clause (h. of section 3 of the Act defines 'contract carriage operator '.
Under clause (m) of section 3 of the Act, 'permit ' means the permit granted under the , authorising the use of a vehicle as a contract carriage.
Section 4 is the vesting provision of contract carriages etc.
Section 6 provides for the determination of the amount for the vesting of the acquired property under section 4 of the Act.
Section 14 bars the issuance of a fresh permit or renewal of the existing permit for the running of any contract carriage.
Sub section (l) of section 20 provides inter alia that all contract carriage permits granted or renewed in respect of PG NO 1044 any vehicle, other than a vehicle acquired under the Act or belonging to the Karnataka State Road Transport Corporation or referred to in section 24 of the Act, shall stand cancelled.
Sub section (3) of Section 20 provides that "no officer or authority shall invite any application or entertain any such application of persons other than the Corporation for the grant of permit for the running of any contract carriage".
It has been already noticed that the Act provides for acquisition of contract carriages.
The words 'contract carriage ' have been defined in section 3(R) of the Act as follows: 3(g). 'contract carriage ' shall have the same meaning as in clause(3) of section 2 of the and includes (i) a public service vehicle in relation to which a special permit has been issued under sub section (6) of section 63 of the : (ii) a public service vehicle in relation to which a temporary permit has been issued under sub section (l) of section 62 or sub section (lC) of section 68F of the ; (iii) a public service vehicle without a contract carriage permit but which is specified as contract carriage in the concerned certificate of registration; (iv) any right in or over such vehicles or moveable property, but does not include, (i) a tourist vehicle in relation to which a permit has been issued under sub section (7) of section 63 of the ; (ii) a vehicle operating as a stage carriage in relation to which on the 30th day of January, 1976 a temporary contract carriage permit or a special permit issued under sub section ( l) of section 62 or sub section (6) of section 63 respectively of the , is in force; (iii) a motor cab;" PG NO 1045 Under section 3(g), the 'contract carriage ' shall, in the first place, have the same meaning as in section 2(3) of the , which provides as follows: "2(3). 'contract carriage ' means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum (i) on a time basis whether or not with reference to any route or distance.
or (ii) from one point to another, and in either case without stopping to pick up, or set down along the line of route passengers not included in the contract, and includes a motor cab notwithstanding that the passengers may pay separate fares;" In the second place, section 3(g) gives an extended meaning to 'contract carriage '.
Under the extended meaning, 'contract carriage ' will include a public service vehicle in relation to which a special permit has been issued under section (6) of section 63 of the or in relation to which a temporary permit has been issued under sub section (l) of section 62 or sub section (IC) of section 68F of the .
It also includes a public service vehicle without a contract carriage permit but which is specified as contract carriage in the concerned certificate of registration.
We are not referring to clauses (iv) and (v) of the extended definition, as the same are not relevant for our purpose.
A 'public service vehicle ' has been defined in section 2(25) of the as meaning any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage.
Thus, it is apparent from the definition of 'public service vehicle ' that it includes a contract carriage and a stage carriage as well.
Under clauses (i) and (ii) of section 3(g) of the Act if a special permit under section 63(6) or a temporary permit under section 62(1) or sub section (lC) of section 68F of the has been issued, it will come within the purview of the definition of contract carriage '.
In other words, if a 'contract carriage ' or a 'stage carriage ' within the meaning of the has been issued a special permit or a temporary permit, as referred to in PG NO 1046 clauses (i) and (ii) of section 3(g).
such 'contract carriage ' or 'stage carriage ' will be a contract carriage within the meaning of section 3(g) of the Act.
Now we may refer to the latter part of the definition of 'contract carriage ' under section 3(g) of the Act which excludes certain vehicles from the definition of contract carriage '.
The exclusion that has been provided in clause (ii) is important for our purpose.
It excludes a stage carriage in respect of which a temporary contract carriage permit under section 62(1) or a special permit under section 63(6) of the is in force on January 3(), 1976, that is, the date on which the Act is deemed to have come into force.
Under clauses (i) and (ii) of section 3(g) of the Act, which form a part of the extended definition of 'contract carriage ', a public service vehicle, that is to say, a contract carriage or a stage carriage in respect of which a special permit under section 63(6) or a temporary permit under section 62(1) or section 68F(lC) of the has been issued, will come within the meaning of 'contract carriage ' under the Act.
On the other hand, if a special permit under section 62(1) or under section 63(6) of the was in force on January 30, 1976 in respect of a stage carriage, such a stage carriage will not be a 'contract carriage ' within the meaning of section 3(g) of the Act.
The High Court seems to think that if any special permit had not been granted to a public service vehicle when the Act came into force, such a vehicle will not come within the meaning of the definition of 'contract carriage ' under section 3(g).
This view of the High Court is not correct.
In clauses (i) and (ii) of section 3(g), the expression 'has been issued ' occurs.
It is submitted by the learned Advocate General of Karnataka that in view of the expression 'has been issued ', clauses (i) and (ii) contemplate the issuance of a special permit or a temporary permit after the coming into force of the Act.
It does not include the issuance of a special permit or a temporary permit earlier than the date of the commencement of the Act.
The learned Advocate General has placed reliance on an English decision in re Athlumne, Ex parte Wilson, In that case, the words 'where a date has been proved under the principal Act ' came to be construed and it was observed "But this form of words is often used to refer, not to a past time which preceded the enactment, but to a time which is made past by anticipation a time which will have become a past time only when the event occurs on which the statute is to operate.
" In our opinion, whether the expression 'has been ' occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction PG NO 1047 after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute.
In the instant case, the words 'has been ' contemplate the issuance of a special permit or a temporary permit as referred to in clauses (i) and (ii) of section 3(g) of the Act after the enactment of the Act which is clear from the exclusion clause (ii) of section 3(g) which excludes a stage carriage from the definition of 'contract carriage ', if special permits issued under section 62(1) or section h.(6) of the were in force on January 30, 1976.
It is difficult to interpret clauses (i) and (ii) of section 3(g) as contemplating the issuance of a temporary permit or a special permit.
as referred to therein before the coming into force of the Act.
Merely because of the use of the words has been in clauses (i) and (ii) of section 3(g), such an interpretation is not possible to be made, particularly in view of the legislative intent apparent from the exclusion clause (ii), namely.
that the Legislature only.
excluded a stage carriage in respect of which a temporary contract carriage or a special permit issued under section 62(1) or 63(6) of the was in force on January 30, 1976.
It has, however, been urged by Mr. A K. Sen learned counsel appearing on behalf of the respondent No. 1.
that a stage carriage vehicle in respect of which a special permit has been granted, is excluded form the operation of the Act.
counsel submits that the Act only contemplates the acquisition of a contract carriage within the meaning of the Motor vehicles Act and not a stage carriage in respect of which a special permit was or has been granted.
In support of his contention, the learned counsel has placed strong reliance on the definition of the word permit under section 3(m) of the Act, as meaning the permit granted under the , authorising the use of a vehicle as a contract carriage.
It is submitted by him that the contract carriage under the .
It is urged by the learned Counsel that the word permit used in the different provisions of the act will have the same meaning of the word as defined in section 3(m), that is to say, the permit granted under the for the use of a vehicle as a contract carriage.
In section 3(h) 'contract carriage operator ' has been defined as follows: PG NO 1048 "3(h). 'contract carriage operator ' means an operator holding one or more contract carriage permit and includes any person in whose name a public service vehicle is registered and is specified as a contract carriage in the certificate or registration of such vehicle ;" According to the learned Counsel, the word 'permit ' in section 3(h) refers only to permit granted in respect of a contract carriage under the .
Section 4 is the vesting provision of contract carriages.
Clause (a) of sub section ( 1) of section 4 provides as follows: "4 Vesting of contract carriages, etc. (1) On and from such date as may be specified by the State Government in this behalf by notification in respect of any contract carriage operator, (a) every contract carriage owned or operated by such contract carriage operator along with the permit or the certificate of registration or both as the case may be shall vest in the State Government absolutely free from all encumbrances;" Counsel submits that the word Permit ' in clause (a) refers to a permit granted to a vehicle for the use of a contract carriage under the .
In other words, the sum and substance of the argument of Mr. Sen is that the word 'permit ' in section .(m) relates to the permit granted to a vehicle for the use as a contract carriage under the and the definition with this interpretation should be applied to the word Permit ' occurring in the different provisions of the Act including section 3(h) and should also be applied to the word occuring in section 14 of the Act.
Section 14 provides as follows: "14 Fresh permit or renewal of the existing permit barred.
Except otherwise provided in this Act (1) no person shall on or after the commencement of this Act apply for any permit or fresh permit or for renewal of an existing permit for the running of any contract carriage in the State; and (2) every application for the grant of a permit or fresh permit Or for the renewal of the existing permit and all PG NO 1049 appeals or revisions arising therefrom relating thereto made or preferred before the commencement of this Act and pending in any court or with any officer, authority or Tribunal constituted under the shall abate.
" It is submitted that only the grant or renewal of a permit in respect of a 'contract carriage ' within the meaning of the is prohibited under section 14 of the Act, and such prohibition does not relate to a stage carriage for the running of the same as; contract carriage.
We are unable to accept the contention.
If the interpretation as given by Mr. Sen of the definition of the word 'permit ', under section 3(m) of the Act is accepted, it will make the definition of the words 'contract carriage ' under section 3(g) of the Act meaningless and nugatory and also set at naught the object of the Act and the clear intention of the Legislature to acquire a stage carriage as well in respect of which a special permit or a temporary permit, as referred to in clauses (i) or (ii) of section 3(g), has been granted.
The words 'contract carriage ' occurring in section 3(m) must, in our opinion, be read in the light of the definition as contained in section 3(g) of the Act.
So read, it is manifest that section 14 read with section 20(3) of the Act clearly bars the making of any application for a permit or fresh permit or for renewal of an existing permit for the running of a vehicle, whether a contract carriage Or a stage carriage.
as a contract carriage.
It is not disputed before use that the Act does not contemplate the vesting of stage carriage simpliciter But section 14 read with section 20(3) of the Act clearly, prohibits the grant or renewal of any permit for the running of any contract carriage.
A stage carriage in respect of which d temporary contract carriage permit or a special permit under section 62(1) or section 63(6) respectively of the was in force on January 3t) 1 ')76, has been excluded from the definition obtaining a permit under the .
But whether a special permit was granted in respect of a stage carriage or not, no such PG NO 1050 permit can be granted in respect of a stage carriage for the running of it as a contract carriage.
In other words, section 14 read with section 20(3) of the Act confers a monopoly on the Karnataka State Road Transport Corporation to run vehicles as contract carriages.
The High Court is not, therefore, right in its view that a public service vehicle in relation to which a special permit had not been issued when the Act came into force, would not come within the definition of 'contract carriage ' in section 3(g) and the prohibition contained in section 20 of the Act against the grant of contract carriage permit cannot extend to grant of special permit under section 63(6) of the .
But before we conclude, we may observe that but for the object of the Act as stated above, it would have been very difficult for us to interpret the provisions of the Act in view of bad drafting of the same.
Be that as it may, for the reasons aforesaid, these appeals are allowed and the judgment of the High Court is set aside.
The writ petition filed by the respondent No. 1 in the High Court is dismissed.
There will, however, be no order as to costs.
N.V.K. Appeals allowed.

summary:
Respondent No. 1, the owner of a public service vehicle, made an application to the Regional Transport Authority for the grant of a `special permit ' under section 63(6) of the Motor vehicles Act, 1939.
The Regional Transport Authority rejected the said application on the ground that the provisions of the Karnataka Contract Carriages (Acquisition) Act, 1976 prohibited the grant of such permit.
Aggrieved by the aforesaid order of refusal, respondent No. 1 filed a writ petition in the High Court and a Single Judge of the High Court allowed writ petition and directed the Regional Transport Authority to consider the application of responded No.1 for the grant of a special permit.
The Regional Transport Authority preferred a writ appeal.
The Division Bench of the High Court taking the view that the intention of the legislature was that only a public service vehicle in relation to which a special permit held been issued when the 1976 Act came into force and which was not operating as a stage carriage should be acquired, held that a public service vehicle in relation to which a special permit had not been issued when the Act came into force would not come within the definition of `contract carriage under section 3(g) of the Act and the prohibition contained in section 20 of the Act against the grant of contract carriage permit would not extend to the grant of special PG NO 1038 PG NO 1039 permit under sub section 6 of section 63 of the .
The Division Bench dismissed the appeal.
The Regional Transport Authority appealed by special leave to this Court.
On the question whether after the coming into force of the Karnataka Contract Carriages (Acquisition) Act, 1976, a special permit under section 63(6) of the can be granted under the Act.
Allowing the appeals, HELD: 1.
Section 14 read with Section 20(3) of the Karnataka Contract Carriages (Acquisition) Act, 1976 confers a monopoly on the Karnataka State Road Transport Corporation to run vehicles as contract carriages.
[1050A] 2.
Section 14 read with section 20(3) of the Act clearly prohibits the grant of renewal of any permit for the running of any contract carriage.
[1049C] 3.
The High Court was not therefore right in its view that a public service vehicle in relation to which a special permit had not been issued when the Act came into force, would not come within the definition of `contract carriage ' in section (g) and the prohibition contained in Section 20 of the Act against the grant of contract carriage permit cannot extend to grant of special permit under Section 63(6) of the .
[1050B C] 4.
Under clauses (i) and (ii) of Section 3(g) of the Act if a special permit under Section 63(6) or a temporary permit under Section 62(1) or sub section ( I C) of Section 68 F of the has been issued, it will came within the purview of the definition of `contract carriage '.
[1046C D] 5.
If a special permit under Section 62(1) or under Section 63(6) of the was in force on January 30, 1976 in respect of a stage carriage, such a stage carriage will not be a `contract carriage ' within the meaning of Section 3(g) of the Act.
[1046 D] 6.
Whether the expression `has been ' occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute.
[1046H; 1047A] PG NO 1040 In the instant case, the words `has been ' contemplate the issuance of a special permit or a temporary permit as preferred to in clauses (i) and (ii) of Section 3(g) of the Act after the enactment of the Act which is clear from exclusion clause (ii) of Section 3(g) which excludes a stage carriage from the definition of `contract carriage ', if special permits issued under section 62(1) or Section 63(6) of the were in force on January 30, 1976.
[1049F] 7.
The words `contract carriage ' occurring in Section 3(m) must be read in the light of the definition as contained in section 3(g) of the Act.
So read, it is manifest that section 14 read with section 20(3) of the Act clearly bars the making of any application for a permit or for renewal of an existing permit for the running of a vehicle, whether a contract carriage or a stage carriage, as a contract carriage.
[1049D E] State of Karnataka vs Shri Ranganatha Reddy.
and Athlumney Ex pate Wilson, referred to.


judgement:
Criminal Appeal No. 640 of 1988.
From the Judgment and Order dated 27.4.1987 of the Delhi High Court in Crl.
Rev. No. 221 of 1986.
B. Datta, Additional Solicitor General, Kitty Kumar Mangalam and Miss A. Subhashini for the Appellant.
Hardev Singh and R.K. Agnihotri for the Respondent.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Heard learned counsel for the parties.
The prosecution case, in short, is that to create fear and terror to commit murder and to aggravate tense situation some persons hatched a conspiracy to massacre the general public by placing transistor bombs at public places and also by placing them in public transports as trains, buses etc.
Many explosions took place in May 1985 in Delhi and parts of Uttar Pradesh in consequence whereof many persons were killed in Delhi and some places in Uttar Pradesh.
Several cases were registered in different police stations of Aligarh, Ghaziabad, Meerut and Khekra etc.
In Delhi F.I.R. No. 238 of 1985 was registered i.e. State vs Kartar Singh Narang etc.
wherein all the accused persons named therein were arrested except one Gurdeep Singh Sehgal who was declared as a proclaimed offender.
The accused Jagjit Singh and Gurvinder Singh turned approvers and they were granted pardon under Section 308 of the Code of Criminal Procedure, 1973.
They were examined as P.W. 1 and P.W. 2 in the committal case proceeding in the court of Chief Metropolitan Magistrate on December 24, 1985.
Both these approvers resiled from their statements in the court of the Committing Magistrate.
The accused persons were committed to the Court of Sessions to stand their trial for offences under Sections 121, 121A, 153, 153A, 302 and 307 I.P.C. and sections 3, 5 and 6 of Explosives Substances Act.
PG NO.
1096 On February 27, 1986, Surjit Kaur, another accused in the Transistor Bomb Case, against whom cases were pending in the Meerut, Ghaziabad and Aligarh Districts of U.P., moved an application under Section 406 of the Code of Criminal Procedure before this Court for transfer of criminal case pending in the court of Meerut to a court in Delhi.
This Court after hearing Counsel for the State of Uttar Pradesh has directed that criminal cases referred to at Serial Nos. 1, 2, 3 and 5 in paragraph 2 of the transfer petition stand transferred to the Court of the Chief Metropolitan Magistrate, Delhi and shall be tried along with the case instituted in the Court of the Chief Metropolitan Magistrate, Delhi arising out of F.I.R. No. 238 of 1985 of Police Station, Patel Nagar, New Delhi.
When the matter was taken up in the Court of Sessions, the respondent, Jagjit Singh, the approver moved an application that he cannot be examined as a witness as he had not accepted the pardon and did not support the prosecution version and he was forced to make a wrong statement by the police before the Metropolitan Magistrate.
The application was rejected by the Trial Judge after hearing the arguments of the parties on March 1, 1986.
Against this order, a Criminal Revision Petition No. 92 of 1986 was filed by the respondent, Jagjit Singh in the High Court at Delhi.
This application was heard by Jagdish Chandra, J who dismissed the petition on August 12, 1986 holding that the mandate of the law requiring that the approver shall be examined both before the Committing Magistrate as well as during trial as a witness, is binding not only on the trial court and the prosecution but also on the approver as well.
Thereafter, one of the accused person who was a proclaimed offender was arrested and a supplementary challan was filed in the Court of Metropolitan Magistrate, Delhi.
The respondent, Jagjit Singh was sought to be examined as an approver by the prosecution, in the said supplementary committal proceeding in F.I.R. No. 238 of 1985.
The respondent objected to his being summoned as an approver on the ground inter alia that he cannot be examined as a witness in a case though he is figuring as an accused person in other five cases on the same facts and circumstances which are being jointly tried.
The Chief Metropolitan Magistrate, Delhi dismissed the application by his order dated October 6, 1986.
Against this order the respondent Jagjit Singh filed Criminal Revision Petition No. 221 of 1986.
M.K. Chawla, J after hearing the parties allowed the Revision Petition and directed the State not to examine the respondent approver as an approver in case F.I.R. No. 238 of 1985.
PG NO.
1097 Aggrieved by this order this appeal by special leave has been filed by State.
It has been urged that the statement recorded under Section 164 of the Code of Criminal Procedure was not made by the respondent, Jagjit Singh voluntarily but it was obtained under coercion by the police.
It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate.
He should be arrayed as an accused in the case F.I.R. No. 238/85 and should be tried as an accused along with other accused in the said case.
This contention is not tenable in as much as the pardon granted to the respondent, Jagjit Singh was accepted by him and other approver, Gurvinder Singh who were examined as P.W. 1 and P.W. 2 in the court of the Committing Magistrate.
These approvers, of course, resiled from their statement in the court of the Committing Magistrate.
It has therefore, been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him.
This submission, in our considered opinion, is not tenable in as much as sub section (4) of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
It is therefore, a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court It does not matter whether the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfully concealed anything essential or has given false evidence contrary to the condition on which the tender of pardon was made.
It has been next contended that the grant of pardon is in the nature of a contract between the State granting the pardon on the one hand and the person accepting the pardon on the other hand.
As the State has the power to revoke the pardon at any time the approver has also got the reciprocal right to cast away the pardon granted to him.
This submission is also not tenable.
The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon.
Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance.
Section 306 clearly enjoins that the approver who was PG NO 1098 granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof.
It is because of this mandate, the State can not withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court.
The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court.
It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences.
In these circumstances, the question of casting away the pardon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance.
It has been submitted in this connection by citing a decision In re Arusami Goundan, AIR 1959 (Madras) 274 that the accomplice who has been tendered a pardon if at any stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions on which pardon was tendered to him and thereby incurs its forfeiture he should not be compelled by the prosecution to be examined as a witness before the trial court.
It has been observed even in the said case that the provisions of Section 337(2) of the old Code of Criminal Procedure, 1898 (5 of 1898) provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Sessions it has been held that: "The obligation to make a full and true disclosure would arise whenever the approver is lawfully called upon to give evidence touching the matter; it may be in the Committing court, or, it may be in he Sessions Court.
But, the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence.
If at any stage he either wilfully conceals material particulars or gives false evidence he would failed to comply with the conditions on which the pardon was tendered to him and thereby incurred its forfeiture.
Neither as a matter of reason or logic, nor as a matter PG NO 1099 of statutory interpretation can it be said that section 339(1) is dependent on or connected with section 337(2) in the sense that the approver must be examined both in the Committing Court and the Sessions Court before it can be held that he has forfeited his pardon.
It is sufficient if he fails to conform to the conditions on which the pardon has been granted to him at either stage." This decision has been considered in Emperor vs Shandino Dhaniparto, AIR 1940 (Sind) 114 wherein it has been held that: "When an accused after accepting pardon denies all knowledge of facts before the Committing Magistrate and the case is committed to Sessions Court the pardon cannot be forfeited before the accused is examined in the Sessions Court.
Once a pardon is tendered and accepted, section 337(2) renders it obligatory for the prosecution to examine the approver both in the Committing Magistrate s Court and in the Sessions Court should the case be committed.
Failure of the prosecution to examine the approver in the Sessions Court vitiates the trial.
" The provisions of Sections 337 and 339 of the old Code of Criminal Procedure are almost in identical terms with the provisions of Sections 306 and 308 of the Code of Criminal Procedure, 1973.
This submission on a plain reading of these sections, cannot be sustained.
It has been urged with great vehemence that the appellant, Jagjit Singh was granted pardon with regard to case F.I.R. No. 238 of 1985 whereas his name appears as an accused in the other four cases which have been directed to be tried along with above case wherein the facts are almost similar.
The appellant approver in such circumstances should not be examined by the prosecution as a witness in as much as his evidence may be used in the other criminal cases wherein he figures as an accused.
This is against the protection given by Article 2(3) of the Constitution of India.
It has, therefore, been submitted that the order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 directing the State not to examine the approver as a witness should not be set aside.
This contention is also not tenable in as much as once an accused is granted pardon under section 306 of the Code of Criminal Procedure, he ceases to be an accused and becomes a witness for the prosecution.
The only condition imposed by the provisions of the Act is that the approver must make a full and true disclosure of the whole of the circumstances within his PG NO 1100 knowledge relating to the offence and to every other concerned, whether as principal or abettor, in the commission thereof.
So long as the Prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court.
This has been made very clear by this Court in the case of A.J. Peiris vs State of Madras, AIR 1954(SC) 616 wherein it has been observed that: ". .We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness.
" We have already held hereinbefore that sub section 4 of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court.
So the appellant who has been granted pardon in case F.I.R. No. 238/85 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question.
It will be pertinent to mention here Section 132 of the which lays down that: "A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.
Proviso Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly.
Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution PG NO 1101 nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer.
The provisions of proviso to Section 132 of the clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly.
In view of this provision, the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis.
On the other hand, he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case.
This submission of the respondent is, therefore, not tenable.
It is pertinent to refer in this connection the decision of this Court in Laxmipat Choraria and Ors.
vs State of Maharashtra.
wherein it has been observed by Hidayatullah, J as he then was that: ". .
Under section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind.
The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can ii be prove i against him in any criminal proceeding except a prosecution for giving false evidence by such answer.
" So Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him.
For the reasons aforesaid, the appeal is allowed.
The judgment and order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 is hereby set aside.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
Many explosions took place in May 1985 in Delhi and Uttar Pradesh killing many persons.
Consequently, a number of cases were registered.
In Delhi, FIR No. 238 of 1985 was registered wherein the respondent and another accused turned approvers and were granted pardon under section 306 of the Code of Criminal Procedure, 1973.
Both these approvers however resiled from their statements in the Court of the Committing Magistrate.
Four Criminal cases pending in Meerut were later transferred by the Supreme Court to the Court of the Chief Metropolitan Magistrate, Delhi, to be tried along with the case arising out of FIR No. 238 of 1985.
In the supplementary committal proceedings in case FIR No. 238 of 1985, the respondent objected to his being summoned as an approver on the ground inter alia that he could not be examined as a witness in the case because he was figuring as an accused person in the other four cases on the same facts and circumstances, which were being jointly tried.
The Chief Metropolitan Magistrate dismissed the application.
The High Court allowed the respondent 's revision petition and directed the State not to examine the respondent as an approver in case F.I.R. No. 238 of 1985.
In the appeal before this Court, it was inter alia contended that the prosecution could not examine the respondent as a witness because he had cast away the pardon granted to him.
Allowing the appeal, HELD: 1.
The pardon granted to the respondent was accepted by him and he was examined as a prosecution witness in the Court of the Committing Magistrate, though he resiled from his statement there.
[1097C] PG NO 1093 PG NO.
1094 2.
It is a mandate of the provisions of the Criminal Procedure Code to the prosecution to examine the approver to whom pardon had been granted as a witness both in the Committing Court as well as in the trial court.
[1097E] 3.
Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offencc and to every other concerned whether as principal or abettor, in the commission thereof.
It is because of this mandate that the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him, till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court.
[1097H; 1098A B] 4.
The respondent who has been granted pardon in case F.I.R. No. 238 of 1985 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question.
[1100D] In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor vs Shandino Bhaniperto, AIR 1940 (Sind) 114 referred to.
Once an accused is granted pardon under section 306, he ceases to be an accused and becomes a witness for the prosecution.
So long as the prosecution does not certify that he has failed to make a full and true disclosure of the whole of the circumstance within his knowledge relating to the offence, he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court.
[1099H; 1100A B] A.J. Peiris vs State of Madras, AIR 1954 (SC) 616 referred to.
A witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to incriminate him directly or indirectly.
[1100G] 7.
The proviso to section 132 of the Indian Evidence Act clearly protects a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly.
[1101A] PG NO.
1095 8.
The apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused was without any basis.
On the other hand, he was absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver.
[1101B C]


judgement:
Appeals Nos.253 to 255 of 1955.
Appeals from the judgment and decree dated November 30, 1954, of the former Nagpur High Court in Misc.
Petitions Nos. 245, 279 and 308 of 1954.
N. C. Chatterjee and G. C. Mathur, for the appellant in C. A. No. 253 of 1955.
G. C. Mathur, for the appellant in C. A. Nos. 254 and 255 of 1955.
B. Sen, section B. Sen and 1.
N. Shroff, for the respondents in C. A. Nos. 253 and 254 of 1950 and for the State of Madhya Pradesh (Intervener).
C. K. Daphtary, Solicitor General of India and R. H. Dhebar, for the respondents in C. A. No. 255 of 1955 and for the State of Bombay (Intervener).
N. section Bindra and T. M. Sen, for the State of Punjab (Intervener).
April 3.
The judgment of section R. Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar JJ.
was delivered by Venkatarama Aiyar J. Bose J. delivered a separate judgment.
VENKATARAMA AIYAR J.
These are appeals against the judgment of the High Court of Nagpur in writ applications filed by the appellants impugning the validity of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947 (C. P. & Berar 21 of 1947), hereinafter referred to as the Act, imposing sales tax on materials used in construction works.
It will be convenient to refer to these provisions at this stage.
Section 2(b) of the Act defines " contract " as including " any agreement for carrying out for cash or deferred payment or other valuable consideration the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machinery 430 affixed to a building or other immovable property ".
Section 2(c) of the Act defines " dealer " as including a person who carries on the business of supplying goods.
In section 2 (d), " goods " are defined as including " all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property ".
Section 2(g) defines sale " as follows: " " Sale " with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; and the word 'purchase ' shall be construed accordingly.
" Section 2(h) defines " sale price " as including the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials, used in carrying out such contract, as may be prescribed.
" Turnover " is defined in section 2(j) as including the aggregate amount of the sale price received or receivable by a dealer in respect of the supply of goods in the carrying out of any contract.
The charging section is section 4(a), and it provides that dealers whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement of the Act.
Rule 4 of the Sales Tax Rules, 1947, provides that " in calculating the sale price for the purpose of sub cl.
(ii) of cl.
(h) of section 2, a dealer may be permitted to deduct from the amounts payable to him as valuable consideration for carrying out a contract, a sum not exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages ", and then follows a scale of percentages to be allowed in respect of different classes of contracts.
Acting on these provisions, the authorities constituted under the Act called upon the contractors within the State to furnish returns in respect of their receipts 431 from contract works for the purpose of assessment of sales tax, to which the appellants replied by instituting the proceedings, out of which the present appeals arise.
The appellant in Civil Appeal No. 253 of 1955 is a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, and he filed M. P. No. 245 of 1954 challenging the validity of the assessment which the respondents proposed to make, on two grounds.
He contended firstly that the Provincial Legislature had authority under Entry 48 of List 11, Sch.
VII of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works contracts was not a sale within that Entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires; and secondly that he was entitled to exemption under item 33 in Sch.
11 to the Act as enacted by Act XVI of 1949, and that the notification of the Government dated September 18, 1950, withdrawing that exemption was unconstitutional and void.
To appreciate this contention, it is necessary to refer to section 6 of the Act, which is as follows: 6 (1) " No tax shall be payable under this Act on the sale of goods specified in the second column of Schedule 11, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof.
(2) The State Government may, after giving by notification not less than one month 's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule, and thereupon such Schedule shall be deemed to be amended accordingly.
" Item 33 in Sch.
11 as originally enacted was " Goods sold by the Crown ".
This was amended by Act XVI of 1949 by substituting for the above words " Goods sold to or by the Crown ".
By an Adaptation Order of 1950, the words "State Government" were substituted for "Crown", and item 33 became "Goods sold to or by the State Government " In exercise of 432 the power conferred by section 6 (2) of the Act, the State issued a notification on September 18, 1950, amending item 33 by substituting for the words " Goods sold to or by the State Government " the words " Goods sold by the State Government ".
The resultant position is that the appellant who was entitled to exemption under Act XVI of 1949 in respect of goods sold to the Government could no longer claim it by reason of the notification aforesaid.
Now, the ground of his attack was that it was not open to the Government in exercise of the authority delegated to it under section 6 (2) of the Act to modify or alter what the Legislature had enacted.
The appellant accordingly claimed that the proceedings which the respondents proposed to take for assessment of sales tax were incompetent, and prayed that an appropriate writ might be issued restraining them from proceeding with the same.
In Civil Appeal No. 254 of 1955, the appellants are the Jabalpur Contractors ' Association, which is a registered body and certain contractors, and they filed M. P. No. 279 of 1954 questioning the validity of the proposed assessment on the same grounds as in M. P. No. 245 of 1954.
The appellant in Civil Appeal No. 255 of 1955, is the Madhya Pradesh Contractors ' Association, Nagpur, which is again a registered body, and it filed M. P. No. 305 of 1954, challenging the legality of the proceedings for assessment on the same grounds as in M. P. No. 245 of 1954.
All these three petitions were heard together, and by their judgment dated November 30, 1954, the learned Judges held that the expression " sale of goods" in Entry 48 was wide enough to coverall transactions in which property in the moveables passed from one person to another for money, and that, accordingly, in a building contract there was a sale within Entry 48 of the materials used therein, and that the provisions of the Act imposing tax thereon were valid.
But the learned Judges also held that the tax could be levied only on the actual value of the materials to be determined on an enquiry into the matter, and that the definition of " price " in section 2 (h) (ii) and r. 4 framed pursuant thereto were ultra vires 433 in that they laid down artificial rules for fixing the same by deducting certain percentages from out of the total receipts on account of labour.
As regards the notification dated September 18, 1950, the learned Judges held that it was within the authority conferred by the statute and was valid.
In the result, the impugned provisions of the Act were held to be valid except as to the definition of " price " in section 2 (h) (ii) and r. 4 of the Sales Tax Rules, 1947.
It is against this judgment that the above appeals have been preferred on a certificate granted by the High Court under article 132(1) of the Constitution.
Two contentions have been urged in support of the appeals : (1) that the Provincial Legislature has no authority in exercise of its power under Entry 48 to impose a tax on the supply of materials in works contracts as such supply cannot be said to be also of those materials within that Entry ; and (2) that the notification dated September 18, 1950, is bad as being an constitutional delegation of legislative authority.
As regards the first contention, the question is now concluded by the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) in which it has been held that the expression " sale of goods " in Entry 48 has the same meaning which it has in the Indian , that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials.
Mr. B. Sen appearing for the respondents has argued that even if the expression " sale of goods " in Entry 48 is construed in the sense which it has in the , that might render the impugned provisions of the Act ultra vires only in respect of a building contract which is one and indivisible, that there might be contracts which might consist of two distinct agreements, one for the sale of materials and another, for work and labour, and that in such a case, it would be competent to the State to impose tax on the sale of materials even construing that word in its (1) ; 55 434 narrow sense, and that these are matters which must be left to be investigated by the appropriate authorities.
That undoubtedly is the correct legal position as observed in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), and accordingly, when a question arises as to whether a particular works contract could be charged to sales tax, it will be for the authorities under the Act to determine whether the agreement in question is, on its true construction, a combination of an agreement to sell and an agreement to work, and if they come to the conclusion that such is its character, then it will be open to them to pro ceed against that part of it which is a contract for the sale of goods, and impose tax thereon.
(2) We have next to consider the contention that the notification dated September 18, 1950, is bad as constituting an unconstitutional delegation of legislative power.
In the view which we have expressed above that there is in a works contract no sale of materials as such, it might seem academic to enter into a discussion of this question ; but as there may be building contracts in which it is possible to spell out agreements for the sale of materials as distinct from contracts for work and labour, it becomes necessary to express our decision thereon.
Mr. Chatterjee appearing for the appellant in Civil Appeal No. 253 of 1955 contends that the notification in question is ultra vires because it is a matter of policy whether exemption should be granted under the Act or not, and a decision on that question must be taken only by the Legis lature, and cannot be left to the determination of an outside authority.
While a power to execute a law, it was argued, could be delegated to the executive, the power to make it must be exercised by the Legislature itself, and reliance was placed on the observations in Hampton J R & Co. vs United States (2), Panama Refining Co. vs Ryan (3), and Schechter vs United States (4), as supporting this position.
It was also contended that the grant of a power to an outside authority to (1) ; (2) ; ; , 629.
(3) ; ; , 458.
(4) ; ; 435 repeal or modify a provision in a statute passed by the legislature was unconstitutional, and that, in consequence, the impugned notification was bad in that, in reversal of the policy laid down by the legislature in Act XVI of 1949 that sales to Government should be excluded from the operation of the Act, it withdrew the exemption which had been granted thereunder, and the observations in re The etc.
(1), and the decision in Rajnarain Singh vs The Chairman, Patna Administration Committee, Patna and another (2), were strongly relied on as establishing this contention.
Mr. N. C. Chatterjee particularly relied on the following observations of Bose J. at p. 301 in Rajnarain Singh 's case (2) : " In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature.
Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above; it cannot include a change of policy.
" On these observations, the point for determination is whether the impugned notification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy.
Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like.
In Powell vs Appollo Candle Company Limited the question arose as to whether section 133 of the Customs Regulation Act of 1879 of New South Wales which conferred a power on the Governor to impose tax on certain articles of import was an unconstitutional delegation of legislative powers.
In holding that it was not, the Privy Council observed: "It is argued that the tax in question has been (1) ; , 787, 982, 984 (3) (2) ; 436 imposed by the Governor and not by the Legislature who alone had power to impose it.
But the duties levied under the Order in Council are really levied by the authority of the Act under which the Order is issued.
The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.
In these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature.
" In Syed Mohamed & Co. vs The State of Madras (1), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act.
Section 5 (vi) of that Act had left it to the rule making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins.
The validity of the rules was attacked on the ground that it was only the legislature that "as competent to decide who shall be taxed, and that the determination of that question by the rule making authorities was ultra vires.
The Madras High Court rejected this conntetion, and held on a review of the authorities that the delegation of authority under section 5 (vi) war, within permissible constitutional limits.
In Hampton J. R. & Co. vs United States (2), which was cited on behalf of the appellant, the question arose whether section 315(b) of the Tariff Act, 1922, under which the President had been empowered to make such increases and decreases in the rates of duty as were found necessary for carrying out the policies declared in the statute was an unconstitutional delegation, and the decision was that such delegation was not unconstitutional.
We are therefore of the opinion that the power conferred on the State Government by section 6(2) to amend the schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional.
(1) (1952) 3 S.T.C. 367 (2) ; ; , 629.
437 The contention of the appellant that the notification in question is ultra vires must, in our opinion, fail on another ground.
The basic assumption on which the argument of the appellant proceeds is that the power to amend the schedule conferred on the Government under section 6(2) is wholly independent of the grant of exemption under section 6(1) of the Act, and that, in consequence, while an exemption under section 6(1) would stand, an amendment thereof by a notification under section 6(2) might be bad.
But that, in our opinion, is not the correct interpretation of the section.
The two sub sections together form integral parts of a single enactment, the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government.
Section 6(1), therefore, cannot have an operation independent of section 6(2), and an exemption granted thereunder is conditional and sub ject to any modification that might be issued under section 6(2).
In this view, the impugned notification is intra vires and not open to challenge.
But on our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List 11 in the seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on construction works.
It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the sales tax authorities from deciding "whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category.
The parties will bear their own costs throughout, 438 BOSE J. I agree except that I prefer not to express an opinion about the validity of the power conferred on the State Government by section 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, to amend the schedule in the way in which it has been amended here.
I would leave that open for future decision.
Appeals allowed.

summary:
section 4(a) of the Central Provinces and Berar Sales Tax Act; 1947, provided that every dealer whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement 428 of the Act ; and by section 2(g) Of the Act, " sale . means any transfer of property in goods .
including a transfer of property in goods made in course of the execution of a contract.
Under section 6(1) of the Act no tax was payable on the sale of goods specified in Sch.
11 to the Act and section 6(2) enabled the State Government by notification to amend the schedule.
Item 33 in Sch.
11 as amended by Act XVl of 1949 and as adapted by the Adaptation Order of 195o, was " Goods sold to or by the State Government ".
In exercise of the power conferred by section 6(2) of the Act, the Government issued a notification on September 18, 1950, amending item 33 by substituting the words " Goods sold by the State Government ".
The appellant, a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, challenged the validity of the assessment which the respondent proposed to make on the appellant under the provisions of the Central Provinces and Berar Sales Tax Act, 1947, on the grounds (1) that the Provincial Legislature had no authority under Entry 48 Of List II, Sch.
VII of the Government of India Act, 1935, to impose a tax on the supply of materials in works contracts and that the provisions of that Central Provinces and Berar Sales Tax Act which sought to impose a tax thereon treating it as a sale were ultra vires, and (2) that he was entitled to exemption under item 33 in Sch.
11, to tile Act and that the notification of the Government dated September 18, 1950, withdrawing that exemption was bad as being an unconstitutional delegation of legislative authority : Held, that the expression "sales of goods" in Entry 48 has the same meaning which it had in the Indian , that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials.
The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd., ; , followed.
Per Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar JJ It is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like.
The power conferred on the State Government by section 6(2) of the Act to amend the Schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional.
Sub sections (1) and (2) of section 6 together form integral part of a single enactment the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government, and an 429 exemption granted under section 6(1) is conditional and subject to any notification that might be issued under section 6(2).
The notification dated September 18, 1950, is therefore intra vires.


judgement:
Civil Appeal No. 212 (NCE) of 1975.
From the Judgment and Order dated 26.6.1974 of the Kerala High Court in A.S. No. 510 of 1972.
V.C. Mahajan and C.V. Subba Rao for the Appellants.
T.S. Krishnamurthy and N. Sudhakaran for the Respondent.
The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J.
This appeal by special leave is against a judgment and decree of a Division Bench of the High Court of Kerala.
PG NO 1076 Short factual background is this.
The respondent was appointed on October 15 1951 as an ordinary industrial labourer at Naval Base Cochin.
He was October 25 1968 his services however were terminated under Article 310 of the Constitution.
No reason was assigned.
He instituted a suit in forma pauperise for declaration that the termination of his service was illegal and void ab initio.
In the alternative he claimed damages or compensation of Rs.75 000 for illegal termination.
The trial court awarded him Rs.25 000 as damages together with interest at 6 per cent per annum for the illegal termination of his services.
That decree was confirmed by the High Court of Kerala.
This appeal is directed against that Judgment of the High Court.
On July 30, 1976 a Bench of this Court dismissed the appeal on merits.
But upon review that judgment was set aside and the appeal was ordered to be listed for fresh disposal.
So the matter has come up before us.
There is no dispute on the material facts.
There is no challenge that the respondent was a permanent and confirmed civilian worker in the Defence Department.
In fact.
it is all admitted position between the parties.
He had a right to continue till he attained the age of 60 years.
Article 459(b) of the Civil Service Regulations provides for that.
It reads: "(b) A workman who is governed by these Regulations shall be retained in service till the day he attains the age of sixty years.
In this clause ' a workman ' ' means a highly skilled.
skilled.
semi skilled or unskilled artisan employed on a monthly rate of pay in an industrial or a work charged establishment .
The courts below have proceeded on the basis that Article 311 (2) of the Constitution was not applicable to the respondent but the Central Civil Services (Classification Control and Appeal) Rules 1965 (for short " 1965 Rules ' ') were however.
applicable.
Mr. Mahajan for the appellants contends that the reasoning of the Courts below is untenable and uncalled for.
We think that the counsel is on terrafirma.
There cannot be any dispute as to the non applicability of Article 311(2) to PG NO 1077 the case of respondent.
A civilian employee in Defence Service who is paid salary out of the estimates of the Ministry of Defence does not enjoy the protection of Article 311(2).
In L.R. Khurana vs Union of India, ; at 911, this Court observed: "The question whether the case of the appellant was governed by Article 311 of the Constitution stands concluded by two decisions of this court.
In Jagatrai Mahinchand Ajwani vs Union of India, C.A. 1185 of 1965 dated 6.2.1967 it was held that an Engineer in the Military Service who was drawing his salary from the Defence Estimates could not claim the protection of Article 311(2) of the Constitution.
In that case also the appellant was found to have held a post connected with Defence as in the present case.
This decision was followed in section P. Behl vs Union of India, C.A. 1918 of 1966 dated 8.3.1968.
Both these decisions fully cover the case of the appellant so far as the applicability of Article 311 is concerned. ' ' Now the only question is whether the 1965 Rules framed under the proviso to Article 309 of the Constitution proprio vigore apply to the respondent or become inoperative in view of article 310 of the Constitution? Article 310(1) deals with the tenure of office of persons serving the Union or the State.
It provides: "Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all lndia service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State." The article 310(2) deals with cases of persons appointed under contract.
The doctrine of pleasure of the President is thus embodied under Article 310( l).
The scope of this Article coupled with Article 309 has been explained in Ramanatha Pillai vs The State of Kerala, [l974] SCR 515 at 52l, where this Court observed: Article 309 provides that subject to the provisions of the Constitution, Acts of the appropriate Legislature may PG NO 1078 regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.
Therefore, Acts in respect of terms and conditions of service of persons are contemplated.
Such acts of Legislature must however be subject to the provisions of the Constitution.
This attracts Article 31()(1).
The proviso to Article 309 makes it competent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services or posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts under the Union and the State.
These Rules and the exercise of power conferred on the delegate must be subject to Article 310.
The result is that Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified.
Article 309 is, therefore, to be read subject to Article 3l0.
The operation of Rules made under the proviso to Article 309 on the pleasure doctrine embodied under Article 310(1) has been considered by this Court in Union of India vs Tulsi Ram, ; where it was observed at 483: "The opening words of Article 309 make that article expressly 'Subject to the provisions of this Constitution '.
Rules made under the proviso to Article 309 or under Acts referable to that article must, therefore, be made subject to the provisions of the Constitution if they are to be valid.
Article 3 lO( 1) which embodies the pleasure doctrine is a provision contained in the Constitution.
Therefore, rules made under the proviso to Article 309 or under Acts referable to that article are subject to Article 310(1).
By the opening words of Article 310(l) the pleasure doctrine contained therein operates ' Except as expressly provided by this Constitution".
Article 31l is an express provision of the Constitution.
Therefore, rules made under the proviso to Article 309 or under Acts referable to Article 309 would be subject both to Article 3l0(1) and Article 311.
This position was pointed out by Subba Rao, J. as he then was.
in his separate but concurring judgment in Moti Ram Deka.
case PG NO 1079 ; at 734, namely.
that rules under Article 309 are subject to the pleasure doctrine and the pleasure doctrine is itself subject to the two limitations imposed thereon by Article 311.
In Tulsi Ram case, the decision in Challappan 's case (Divisional Personnel Officer, 5.Rly.
Y. 1.R. Challappan, [1976l l SCR 783) which had taken a contrary view.
has been expressly overruled on the ground that rules cannot do what the second proviso to Article 311(2) denies.
" By virtue of Article 311(2), no civil servant can be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being beard in respect of the charges.
Article 311(2) thus imposes a letter on the power of the President or the Governor to determine the tenure of a civil servant by the exercise of pleasure.
Tulsi Ram case concerned with the exclusion of Article 311(2) by reason of second proviso thereunder.
We are also concerned with the exclusion of Article 311(2), if not by second proviso but by the nature of post held by the respondent.
We have earlier said that the respondent is not entitled to protection of Article 311(2), since he occupied the post drawing his salary from the Defence Estimates.
That being the position, the exclusionary effect of Article 3l1(2) deprives him the protection which he is otherwise entitled to.
In other words, there is no letter in the exercise of the pleasure of the President or the Governor.
It was, however, argued for the respondent that 1965 Rules are applicable to the respondent, first, on the ground that Rule 3(1) thereof itself provides that it would be applicable, and second, that the Rules were framed by the President to control his own pleasure doctrine.
and therefore, cannot be excluded.
This contention, in our opinion, is basically faulty.
The 1965 Rules among others, provide procedure for imposing the three major penalties that are set out under Article 311(2).
When Article 311(2) itself stands excluded and the protection thereunder is withdrawn there is little that one could do under the 1965 Rules in favour of the respondent.
The said Rules cannot independently play any part since the rule making power under Article 309 is subject to Article 311.
This would be the legal and logical conclusion .
The next contention urged for the respondent depends upon the admission made by the appellants before the High Court.
The appel lants seem to have admitted before the PG NO 1080 High Court that the 1965 Rules would be applicable to the respondent.
Relying on this admission it was argued before us that the decree under appeal should not be set aside.
The poverty of the respondent and the long drawn litigation by which the respondent has suffered immeasurably were also high lighted.
We gave our anxious consideration to this part of the submission.
It is true that the parties appear to have proceeded before the High Court that the 1965 Rules would be attracted to the case of respondent.
It might be on a wrong assumption of law.
The appellants cannot he estopped to contend to the contrary.
They are not bound by such wrong assumption of law.
Nor it could be taken advantage of by the respondent.
But the submission made before us about the poverty of the respondent and the long drawn litigation seems to be appealing.
It is a plus point in his favour under equity.
This Court while granting special leave has imposed a condition on the appellants that they will bear the cost of the respondent in any event.
That was evidently because of the need to have the law clarified and inability of the respondent to come up to this Court.
There cannot be any dispute about the poverty surrounding him.
He has instituted the suit as an indigent person.
There is yet another aspect.
When the respondent commenced the litigation and continued up to the High Court the law on the question was nebulous.
It was only thereafter an authoritative pronouncement was made by this Court with regard to the impact of Rules made under the proviso to Article 309 on the pleasure doctrine under Article 310(1).
These facts and circumstances therefore call for a sympathetic consideration of the case of respondent.
This Court will not deny any equitable relief in deserving cases.
The case on hand cannot be an exception to that rule and indeed it is eminently a fit F case.
We therefore accept the submission made for the respondent and decline to disturb the decree under appeal.
In the result the appellants succeed on the question on law but the respondent retains the decree in his favour purely on compassionate grounds.
The appellants also must pay the cost to the respondent as already bound.
A.P.J. Appeal allowed.

summary:
The respondent was a permanent and confirmed civilian worker in the Defence Department and he had a right to continue till he attained the age of 60 years.
His services, however, were terminated under Article 310 of the Constitution without assigning any reason.
He instituted a suit for declaration that the termination of his services was illegal and void ab initio.
In the alternative, he claimed damages or compensation for the illegal termination.
The Trial Court awarded him Rs. 25,000 as damages together with interest at 6 per cent per annum for the illegal termination of his services.
That decree was confirmed by the High Court.
The Courts below have proceeded on the basis that Article 311 (2) of the Constitution was not applicable to the respondent, but the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were, however, applicable.
In the appeal to this Court on behalf of the appellants it was contended that the reasoning of the Courts below is untenable and uncalled for.
On behalf of the respondent employee it was contended that the 1965 Rules are applicable to the respondent and that the decree under appeal should not be set aside.
The poverty of the respondent and the long drawn litigation by which the respondent was suffered immeasurably were also highlighted.
PG NO 1074 PG NO 1075 Allowing the appeal on a question of law this Court HELD: 1.
The respondent is not entitled to protection of Article 311(2) since he occupied the post drawing his salary from the Defence Estimates.
That being the position, the exclusionary effect of Article 311(2) deprives him the protection which he is otherwise entitled to.
In other words there is no fetter in the exercise of the pleasure of the President or the Governor.
[1079D E] 2.
The 1965 Rules among others, provide procedure for imposing the three major penalties that are set out under Article 311(2).
When Article 311(2) itself stands excluded and the protection thereunder is withdrawn there is little that one could do under the 1965 Rules in favour of the respondent.
The said Rules cannot independently play any part since the rule making power under Article 309 is subject to Article 311.
[1079F G] L.R. Khurana vs Union of India, ; at 911; Ramanatha Pillai vs The State of Kerala, ; at 521 and Union of India vs Tulsi Ram, ; , followed.
This Court will not deny any equitable relief in deserving cases.
The case on hand cannot be an exception to that rule and indeed.
it is eminently a fit case.
[1080F]


judgement:
No. 411 of 1987.
Under Article 32 of the Constitution of India.
T.U. Mehta, A. Subba Rao, P. Parmeshwaran, Harish N. Salve, N.D. Garg, Rajiv K. Garg, P.H. Parekh, Ms. Ayesha Misra and M.N. Shroff for the appearing parties.
Petitioners seek issue of appro priate writs to the Authorities to re validate the six Imprest Licences, with appropriate endorsement for the import of open General items under the Import Export Policy of 1982 83 (A.M. 1983).
15 This writ petition came up for preliminary heating along with Special Leave Petition (Civil) Nos. 2579 of 1987 and 2580 of 1987 preferred by the Union of India seeking leave to appeal from two Judgments of the Division Bench of the High Court of Judicature at Bombay in two other cases.
Petitioners are a recognised Export House for purposes of the Import Export Policy, 1982 83.
They applied for, and were granted, six imprest licences: (1) 2932347 dated 31.7.1982 for CIF value of Rs.65,28,500; (2) 293259 dated 20.8.1982 for Rs.1,14,49,263; (3) 0470538 dated 11.5.1982 for Rs.1,43,76,770; (4) 0449604 dated 12.5.1981 for Rs.1,32,39,130; (5) 0468397 dated 16.4.1982 for Rs.5,21,747; and (6) 2927607 dated 29.4.1980 for Rs. 1,47,16,238, for the import of uncut and unset diamonds with the obligation to fulfill certain export commitment for the export, out of India, of cut and polished diamonds of the FOB value, stipu lated in each of the imprest licences.
Petitioners claim that, pursuant to the said imprest licences, they had im ported uncut and unset diamonds and had also discharged their export obligations by exporting cut and polished diamonds of the requisite value as evidenced by the Redemp tionCertificates which are annexed as annexure V to the memorandum of writ petition.
Petitioners claim that in terms of para 185(4) of ImportExport Policy, 1982 83, they were entitled to the facility for the import of OGL items as is available in the case of replenishment licences issued to export houses under clauses (1) and (3) of para 185 of A M 1983 policy.
Para graph 185(4) of the AM 1983 provided: (4) The facility for import of OGL items available in subpara (3) above, may also be allowed, on merits, to Export Houses against their advance/imprest licences on account of which they are rendered ineligible to obtain REP licence.
In such cases, however, the value upto which the OGL import may be allowed, will not exceed the value to which the Export House would have been eligible to the REP licence, had he not obtained advance/imprest licence in question.
This facility will be available to the Export House after he has discharged the export obligation imposed on the ad vance/imprest licence.
Therefore, if by the time, the Export House becomes eligible to this facility, the advance/imprest licence has expired, or, if the original 16 validity left unused by that time is less than six months, the licensing authority will revalidate the licence simultaneously so as to give to the licence holder a time of six months for the purpose of importing OGL item under this facility.
However, the petitioners did not bestir themselves to seek the revalidation and endorsement for OGL items for quite some time thereafter.
It was only in the year 1986 they sought such revalidation and endorsement.
That was after a lapse of several years from the completion of their export obligations.
The Joint Chief Controller of Imports and Exports by his two decisions, one dated 5.8.1986 per taining to the Imprest Licence 2927607 dated 29.4.1980 and the other dated 9.4.1986, pertaining to the other five Imprest Licences declined the request.
These two orders are challenged in the writ petition.
The grounds for refusal in both the decisions are simi lar, except for the reference to certain relevant dates.
The grounds are, broadly, on two aspects.
The first pertains to the inordinate delay in seeking revalidation and endorse ment.
On this the communication says: "We are surprised to have received your letter No. nil dated 21.4.1986 forwarding therewith Imprest Licence No. 2927607 dated 29.4.1980 (exchange control copy) for the period AM 83 for grant of revalidation and endorsement for import of OGL items without debiting the licence in terms of para 1985 of Import Policy for the period 1982 83 after 5 years of the expiry of the licence for which the export obligation period was discharged on 25.10.80, 22/25.10.80, 29.10.80, 19.5.81, 5.5.81, 22.6.81, 5.5.81, 20.5.81, 29.6.81, & 22.9.81.
In other words, you have made a request for revalidation and endorsement under para 185 of AM 83 Policy after 4 years and 7 months from the discharge of the export obligation.
It is, therefore, obvious that you have not cared to apply immediately after discharge of export obligation and as such your request is grossly time barred . " The second aspect is as to the merits and permissibility of the claim.
The communication says: 17 " .
More over, in terms of para 185(7) to AM 83 Import Policy, Import of OGL items by Export houses under the provisions to sub paras (4) and (5) of para 185 of the said policy is subject to the condition that the shipments of goods shall take place within the validity of the OGL i.e. 31.3.86 or within the validity period of the Import Licence itself (within grace period) whichever date is earli er.
Since this date is over and the request has been made after 4 years and 7 months after the discharge of export obligation, question of permitting facility under the aforesaid provision does not arise.
Besides, there is no provision in the Import Export procedures for the period 1985 86 for grant of revalidation, in which period your request has been re ceived.
Para 73 of the said procedures states that no revalidation of import licences of emergency licences for CCPs will be allowed . . " The present writ petition challenge these orders.
The petitioners allege that their claims are similar to those made by M/s. Ripal Kumar & Co., and M/s. H. Patel & Co. who had filed writ petitions No. 2477 of 1984 and No. 1465 of 1984 respectively in the High Court of Judicature at Bombay for the issue of appropriate writs to the authorities to revalidate the Imprest Licences, that those writ petitions were allowed by the learned Single Judges of the High Court, whose decisions came to be affirmed in appeal by the Divi sion Bench; that Special Leave Petitions 4670 of 1986 and 7389 of 1985, respectively, preferred by the Union of India, against the said two judgments of the Bombay High Court were dismissed by this Court and that, therefore, the rejection by the authorities, of the petitioners ' claim for similar revalidation of the six Imprest Licences and endorsement for OGL items would, in view of grant of revalidation and en dorsement in those cases, be discriminatory and violative of Article 14.
It is contended for the petitioners that the grounds for refusal put forward by the authorities in the case of M/s. Ripal Kumar & Co., and M/s. H. Patel & Co., were exactly similar to those proffered in the case of petitioners also and that those grounds had been found by the courts to be insufficient in law to support the refusal.
Petitioners say that they made the demand for revalidation immediately after the decision of the Bombay High Court in M/s. Ripal Kumar & Co. 's case and that the rejection of the petitioners ' claim is wholly discriminatory, as there was no basis for any distinction to be made in petitioners ' case.
Apart altogether from the merits of the grounds for rejec tion 18 on which it cannot be said that the mere rejection of the Special Leave Petitions in the cases of M/s. Ripal Kumar & Co., and M/s. H. Patel & Co., could by itself, be construed as the imprimatur of this Court on the correctness of the decisions sought to be appealed against there is one more ground which basically sets the present case apart.
Peti tioners are re agitating claims which they had not pursued for several years.
Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else 's case came to be decided.
There case cannot be considered on the anology of one where a law had been declared unconstitutional and void by a Court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void.
There is also an unex plained, inordinate delay in preferring this writ petition which is brought after almost an year after the first rejec tion.
From the orders in M/s. Ripal Kumar & Co. 's case and M/s H. Patel & Co. 's case it is seen that in the former case the application for revalidation and endorsement was made on 12.3.1984 within four months of the date of the redemption certificate dated 16.11.
1983 and in the latter case the application for revalidation was filed on 20.6.1984 in about three months from the Redemption Certificate dated 9.3.1984.
On a consideration of the matter we think that, apart altogether from the merits of the other grounds for rejec tion, the inordinate delay in preferring the claim before the authorities as also the delay in filing the writ peti tion before this .Court should, by themselves, pursuade us to decline to interfere.
In Durga Prasad vs Chief Controller, I & E, this Court observed: " . .
It is well known that the exchange position of this country and the policy of the Government regarding Interna tional Trade varies from year to year and it would be rather odd for this Court to direct that an import licence be granted in the year 1968 in respect of alleged defaults committed by the Government in 1959 or 1962.
In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition.
" It is stated in the two communications rejecting the claim of the 19 petitioners that petitioners are entitled to an appeal as laid down in the appeal procedures in the policy.
If any such a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners ' case in any such appeal.
We, accordingly, decline to interfere and reject this writ petition.
N.P.V. Petition dismissed.

summary:
Petitioners, a recognised Export House for purposes of the Import Export Policy, 1982 83 were granted six imprest licences for the import of uncut and unset diamonds with the obligation to fulfil certain export commitment for the export of India, of cut and polished diamonds.
They did not seek the revalidation and endorsement for OGL items within the time prescribed under Paragraph 185(4) of the Import Export Policy 1982 83 (AM 1983).
Only in the year 1986, after a lapse of several years from the completion of their export obligations, they sought such revalidation and en dorsement.
The Joint Chief Controller of Imports and Ex ports, by two orders dated 5.8.1986 and 9.4.1986, declined the request, on grounds of inordinate delay in seeking revalidation and endorsement, and on merits and permissibil ity of the claim.
In the Writ Petition, the petitioners challenged these orders contending that in view of the grant of revalidation of imprest licences of two other Export Houses, consequent upon their writ petitions being allowed by the High Court and the Special Leave Petitions of the Government against the decision being dismissed by the Supreme Court, rejection by the authorities of the petitioners ' claim for similar revalidation, and endorsement of their imprest licences, was discriminatory and violative of Article 14 of the Constitu tion inasmuch as the grounds for refusal put forward by the authorities in those cases were exactly similar to those preferred in the case of the petitioners, and those grounds had been found to be insufficient in law to support the refusal, and that there was no basis for any distinction to be made in the case of petitioners who had made their demand for revalidation after the High Court 's decision in one of those cases.
Dismissing the Writ Petition, 14 HELD: Petitioners are re agitating claims which they had not pursued for several years.
They were not vigilant but were content to be dormant and.close to sit on the fence till somebody else 's case came to be decided.
Their case cannot be considered on the anology of one, where a law had been declared unconstitutional and void by a Court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void.
There is also an unex plained, inordinate delay in preferring this writ petition which is brought after almost a year after the first rejec tion.
[18B C] Apart altogether from the merits of the other grounds for rejection, the inordinate delay in preferring the claim before the authorities as also the delay in filing the writ petition before this Court does not pursuade this Court to interfere in this matter.
[18E] The rejection to this Writ Petition shall not prejudice petitioners ' case in the appeal, if such a right of appeal is available under the appeal procedures in the policy.
[19A] Durga Prasad vs Chief Controller, I & E, 1969(2) SCR 861, referred to.