judgement:
ION: Civil Appeal No. 1028 of 1976.
Appeal by Special Leave from the Judgment and Order dated 8 3 1976 of the Punjab and Haryana High Court in Civil Writ Petition No. 354/75.
AND CIVIL APPEAL NOS.
1029 1032 OF 1976 Appeals by Special Leave from the Judgment and Order dated 8 3 1976 of the Punjab & Haryana High Court in C.W.P. Nos.
564 and 582/75 and C.W.P. Nos. 1988 and 2000/76 respectively.
AND CIVIL APPEAL NO.
1033 OF 1976 Appeal by Special Leave from the Judgment and Order dated 31 5 1976 of the Punjab and Haryana High Court in C.W. Petition No. 2580/76.
AND CIVIL APPEAL NO.
1034 OF 1976 Appeal by Special Leave from the Judgment and Order 10 6 1976 of the Punjab & Haryana High Court in Civil Writ Petition No. 2890/76.
955 AND CIVIL APPEAL NO.
1035 OF 1976 Appeal by Special Leave from the Judgment and Order dated 28 6 1976 of the Punjab & Haryana High Court in Civil Writ Jurisdiction No. 3216 of 1976.
M. C. Bhandare, A. K. Sen, (in CA 1029/76), Mrs. Sunanda Bhandare, A. N. Karkhanis, Miss Malini Poduval and G. R. Sethi (in CA 1031/76).
Soli J. Sorabjee, Addl.
(In CA 1028/76), Hardev Singh for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
In these appeals by special leave, we are called upon to pronounce on the validity of section 31 of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as 'the Act '), the Notification dated the 13th January, 1968 issued thereunder by the Government of Punjab and the liability of the appellants to pay purchase tax under the Act in respect of the turnover relating to the purchases of paddy made by them during the relevant period.
The appellants are dealers in paddy and engaged in the business of millers in the State of Punjab.
They buy paddy from growers or katcha adatias, convert it into rice and sell rice.
Most of the rice manufactured by them is purchased by the State Government under food procurement orders.
A brief history of the relevant provisions of the Act is as follows: Under the Act as it was originally enacted, there was no provision levying tax on the purchase turnover of the goods dealt with by a dealer as defined in the Act.
The Act was amended by Punjab Act No. 7 of 1958 which received the assent of the Governor on April 18, 1958 and the amending Act came into force at once.
The amending Act brought about the following changes in the Act: In the long title of the Act, after the word "sale", the words "or purchase" were inserted.
Clause (d) of section 2 of the Act which defined the expression 'dealer ' was amended so as to bring within the scope of that expression a person who purchased any goods in the course of trade or business.
The turnover relating to purchases made by a dealer subsequent to the commencement of the amending Act of certain goods was made liable to payment of tax.
The 956 word 'purchase ' was defined by clause (ff) of section 2 which was introduced by the amending Act as follows: "2.
(ff) 'purchase ' with all its grammatical or cognate expressions, means the acquisition of goods other than sugarcane, foodgrains, and pulses for use in the manufacture of goods for sale for cash or deferred payment or other valuable consideration otherwise than under a mortgage, hypothecation, charge or pledge.". (The rest of the clause is not necessary for the purpose of these cases).
Section 4 of the Act was amended by imposing tax on purchases also subject to sections 5 and 6 of the Act.
It is, however, seen from clause (ff) of section 2 that the purchase of foodgrains was not covered by the definition and remained unaffected by the above amending Act.
The Act was further amended by Punjab Act No. 13 of 1959 which deleted the words "other than sugarcane, foodgrains and pulses" in clause (ff) of section 2.
Section 6 of the Act was repealed and substituted by a new section which read as follows: "6.
Tax free goods. (1) No tax shall be payable on the sale of goods specified in the first column of Schedule C subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof and no dealer shall charge sales tax or purchase tax on the sale or purchase, as the case may be, of goods which are declared tax free from time to time under this section.
(2) The State Government after giving by notification not less than three months ' notice of its intention so to do may by like notification add to or delete from Schedule B or Schedule C and thereupon Schedule B or Schedule C, as the case may be, shall be deemed to be amended accordinglly.
" It is seen from the above provision that the turnover relating to the sale of goods mentioned in the first column of Schedule 'C ' to the Act subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof was exempted from payment of tax.
By Punjab Act No. 24 of 1959, the above section 6 was substituted by a new section which read as follows: "6.
Tax free goods. (1) No tax shall be payable on the sale of goods specified in the first column of Schedule B 957 subject to the conditions and exception, if any, set out in the corresponding entry in the second column thereof and no dealer shall charge sale tax on the sale of goods which are declared tax free from time to time under this section.
(2) The State Government after giving by notification not less than three months ' notice of its intention so to do, may by like notification add to or delete from Schedule B and thereupon Schedule B shall be deemed to be amended accordingly.
" By Punjab Act No. 18 of 1960, clause (ff) of section 2 of the Act which had undergone some alteration when Punjab Act No. 24 of 1959 came into force was substituted by a new clause which read: "2.
(ff) 'purchase ', with all its grammatical or cognate expressions, means the acquisition of goods specified in Schedule C for cash or deferred payment or other valuable consideration otherwise than under a mortgage, hypothecation, charge or pledge.
" The effect of the said amendment was that the turnover relating to the purchase of goods mentioned in Schedule 'C ' to the Act became liable to tax subject to the other provisions of the Act.
Section 4 of the Act was also amended by the introduction of sub section (2 A) providing that notwithstanding anything contained in sub sections (1) and (2) of section 4 of the Act, no tax on the sale of any goods should be levied if a tax on their purchase was payable under the Act.
Originally seven items of goods had been specified by the State Legislature in Schedule 'C ' to the Act.
By the Punjab General Sales Tax (Amendment) Act, 1965 (Punjab Act No. 28 of 1965) section 31 was inserted in the Act authorising the State Government to amend Schedule 'C '.
It read as follows: "31.
Power to amend Schedule C The State Government, after giving by notification not less than three months ' notice of its intention so to do, may by notification add to, or delete from, Schedule C any goods, and thereupon Schedule C shall be deemed to be amended accordingly.
" The words 'three months ' in the above section were substituted by 'twenty days ' by Punjab Act No. 7 of 1967.
958 In exercise of the power conferred by the above provision, the State Government issued the Notification on the 15th January, 1968 adding paddy and rice as items (8) and (9) in Schedule 'C '.
The result was that the turnover relating to the purchase of paddy and rice became exigible to payment of purchase tax under the Act in the hands of the purchasers with effect from the 15th January, 1968.
Aggrieved by the said notification, the appellants who became liable to payment of purchase tax on the turnover relating to the purchases of Paddy made by them filed petitions under Article 226 of the Constitution on the file of the High Court of Punjab and Haryana questioning the validity of section 31 of the Act, the Notification dated the 15th January, 1968 issued thereunder and their liability to payment of purchase tax.
The principal contentions urged by the appellants before the High Court were (1) that section 31 of the Act which authorised the State Government to amend Schedule 'C ' to the Act by adding certain items making the turnover relating to their purchases liable to tax was void on the ground that it suffered from the vice of excessive delegation of legislative power and therefore the notification issued thereunder was also void and (2) that the appellants who were carrying on the business of manufacturers of rice could not be denied the benefit of section 5(2) (a) (ii) of the Act which authorised the deduction from the gross turnover the turnover relating to the sales of paddy effected in their favour notwithstanding the inclusion of paddy in Schedule 'C ' to the Act.
The High Court rejected both the contentions of the appellants and dismissed the writ petitions.
Hence these appeals under Article 136 of the Constitution.
In this Court also, the very same contentions which were urged before the High Court were urged in support of the appeals with some slight variations.
The first contention urged by Mr. M. C. Bhandare, learned counsel for the appellants was that section 31 of the Act which authorised the State Government to vary Schedule 'C ' to the Act by adding certain goods whose turnover was not liable to payment of sales tax before suffered from the vice of excessive delegation of legislative power and in the alternative he submitted that even if the said provision was otherwise valid, it could not be interpreted as including within its scope the power to issue a notification which would run counter to the express legislative policy of the Act contained in section 5(2) (a) (ii) thereof which had been enacted with the avowed purpose of giving assistance to manufacturing industries.
959 A review of the decisions of this Court to some of which we will presently refer shows that the delegation of power by the legislature to a local authority or to the Executive Government to vary or modify an existing law would not be unconstitutional so long as such delegation does not involve the abdication of essential legislative power by the legislature.
Such delegations of legislative power have been upheld by this Court on several varied and diverse grounds such as the scheme and policy of the statute under which the power is delegated, the presence of guidelines in the statute regarding the exercise of delegated power, the lack of time for the Legislature to make provision with regard to all the details involved in the administration of the law, the incapacity of the Legislature to foresee all future events, the nature of the subject matter of legislation and the nature of the donee of power etc.
Even in matters relating to taxation law, it has been consistently held that the Legislature can delegate the power to fix rates of tax provided there are necessary guidelines regarding such fixation on the ground that in a modern society, taxation is one of the methods by which economic and social goals of the State can be achieved and the power to tax, therefore, should be a flexible power and capable of being easily altered to meet the exigencies of circumstances.
Such delegation has been held to be not amounting to delegation of essential legislative function.
In Powell vs Appollo Candle Company Limited(1) the Judicial Committee of the Privy Council was called upon to decide whether section 133 of the Customs Regulation Act of 1879 of New South Wales which conferred the 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 unconstitutional, the Privy Council observed: "It is argued that the tax in question has been 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 declar 960 ing Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature." In J. W. Hampton Jr. & Company vs United States(1) the validity of the action of the President to make changes in the rates provided in the Tariff Act, 1922 under the power delegated by the Congress arose for consideration.
That was challenged as a forbidden delegation of legislative power to executive authority.
The challenge was negatived by the Supreme Court of the United States on the ground that the Congress had laid down by legislative act an intelligible principle to which the person authorised to fix the rate of customs duties on imported merchandise was to conform.
The principle enunciated in the above two decisions has been substantially adopted and followed by this Court in two cases (1) Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh & Ors.
(2) and (2) Municipal Corporation of Delhi vs Birla Cotton, Spinning and Weaving Mills, Delhi & Anr.(3) to which we shall refer hereafter.
In Rajnarain Singh vs The Chairman, Patna Administration Committee, Patna and Another(4) where an earnest attempt was made to analyse and explain the judgment of this Court in re.
The Delhi Laws Act, 1912(5).
Bose, J. after referring in detail to the observations made by the learned Judges in the latter case observed at page 301: "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.
" In Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh & Ors.
(supra) where this Court was called upon to decide whether section 6(2) of the C.P. and Berar Sales Tax Act, 1947 which authorised the State Government after giving by notification not less than one month 's notice of its intention so to do by a notification 961 after the expiry of the period of notice mentioned in the first notification to amend Schedule II to that Act was constitutional, it was held that it was not unconstitutional for the Legislature to leave it to the executive to determine details relating to the working of the taxation laws, such as the selection of persons on whom the tax was to be laid, the rates at which it was to be charged in respect of different classes of goods and the like and that the power conferred on the State Government by section 6(2) of that Act to amend the Schedule relating to exemption was in consonance with the accepted legislative practice relating to the topic.
In that connection at page 435, this Court observed: "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." The next case to which reference may be made is Corporation of Calcutta & Anr.
vs The Liberty Cinema(1) where the majority upheld the fixaion of a tax on cinema shows by the Corporation of Calcutta even though the Calcutta Municipal Act of 1951 prescribed no limits to which the tax could go.
In that case, reliance was placed on the case of Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh & Ors.
(supra) and it was held that the fixation of rate of tax could be left to a non legislative body provided the Legislature gave necessary guidance for such fixation.
This Court in that case found guidance in the various provisions of the statute including the fact that the body which had been authorised to levy the rate was a municipal body whose fiscal requirements were restricted by the nature and area of its jurisdiction.
In Municipal Corporation of Delhi vs Birla Cotton, Spinning and Weaving Mills, Delhi & Anr.
(supra) Hidayatullah, J. (as he then was) upholding the imposition of a tax by the Delhi Municipal Corporation in exercise of the power granted to it under the Delhi Municipal Corporation Act 66 of 1957 observed at page 287 as follows: "The doctrine that Parliament cannot delegate its powers, therefore, must be understood in a limited way.
It only means that the legislature must not efface itself but 962 must give the legislative sanction to the imposition of the tax and must keep the control in its own hands.
There is no specific provision in the Constitution which says that the Parliament cannot delegate to certain specified instrumentalities the power to effectuate its own will.
The question always is whether the legislative will has been exercised or not.
Once it is established that the legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality (provided that it has not parted with its control) there can be no question of excessive delegation.
If the delegate acts contrary to the wishes of the legislature the legislature can undo what the delegate has done.
" In Devi Das Gopal Krishnan & Ors.
vs State of Punjab & Ors.(1) the validity of section 5 of the Act (as originally enacted) which conferred on the Government power to levy tax at such rates as the Government might fix arose for consideration.
This Court held that such conferment of power on the Government to levy tax at the rates determined by it without any statutory limitation or guidance was void.
This Court, however, held that after section 5 was amended by Punjab Act No. 19 of 1952 by imposing the restriction that the rates determined by the State Government should not exceed two paise in a rupee was valid as the Legislature had delegated the power to the Government to determine the rates subject to the restriction mentioned above.
In the course of the above decision, Subba Rao, C.J., dealing with the decision of this Court in Corporation of Calcutta vs Liberty Cinema (supra) observed: "If this decision is an authority for the position that the Legislature can delegate its power to a statutory authority to levy taxes and fix the rates in regard thereto, it is equally an authority for the position that the said statute to be valid must give a guidance to the said authority for fixing the said rates and that guidance cannot be judged by stereotyped rules but would depend upon the provisions of a particular Act.
To that extent this judgment is binding on us.
But we cannot go further and hold, as the learned counsel for the respondents asked us to do, that whenever a statute defines the purpose or purposes for which a statutory authority is constituted and empowers it to levy a tax a that statute necessarily contains a guidance to fix the rates: it depends upon the provisions of each statute.
" 963 In Sita Ram Bishambher Dayal & Ors.
vs State of U.P. & Ors.(1) the validity of section 3D(1) of the U.P. Sales Tax Act, 1948 which authorised the levy of a tax on the turnover of first purchases made by a dealer or through a dealer acting as a purchasing agent in respect of such goods or class of goods, and at such rates, not exceeding two paise per rupee in the case of foodgrains, including cereals and pulses, and five paise per rupee in the case of other goods and with effect from such date, as may, from time to time, be notified by the State Government in that behalf was questioned on the ground that the delegation of power to the State Government to determine the goods or class of goods whose purchase turnover would be liable to tax and the rates of purchase tax subject to the restriction imposed in that regard by that section suffered from the vice of excessive delegation.
Repelling the above contention and upholding the said provision, Hegde, J. speaking for the Court observed thus: "It is true that the power to fix the rate of a tax is a legislative power but if the legislature lays down the legislative policy and provides the necessary guidelines, that power can be delegated to the executive.
Though a tax is levied primarily for the purpose of gathering revenue, in selecting the objects to be taxed and in determining the rate of tax, various economic and social aspects, such as the availability of the goods, administrative convenience, the extent of evasion, the impact of tax levied on the various sections of the society etc.
have to be considered.
In a modern society taxation is an instrument of planning.
It can be used to achieve the economic and social goals of the State.
For that reason the power to tax must be a fexible power.
It must be capable of being modulated to meet the exigencies of the situation.
In a Cabinet form of Government, the executive is expected to refect the views of the legislatures.
In fact in most matters it gives the lead to the legislature.
However, much one might deplore the "New Despotism" of the executive, the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the legislatures to entrust more and more powers to the executive.
Textbook doctrines evolved in the 19th Century have become out of date.
Present position as regards delegation of legislative power 964 may not be ideal, but in the absence of any better alternative, there is no escape from it.
The legislatures have neither the time, nor the required detailed information nor even the mobility to deal in detail with the innumerable problems arising time and again.
In certain matters they can only lay down the policy and guidelines in as clear a manner as possible.
" When the validity of section 3 D of U.P. Sales Tax Act, 1948 was again challenged before this Court in Hira Lal Rattan Lal etc.
etc., vs State of U.P. & Anr.
, etc.(1) on the very same ground, it was again upheld by this Court with the following observations: "The only remaining contention is that the delegation made to the executive under section 3 D is an excessive delegation.
It is true that the legislature cannot delegate its legislative functions to any other body.
But subject to that qualification, it is permissible for the legislature to delegate the power to select the persons on whom the tax is to be levied or the goods or the transactions on which the tax is to be levied.
In the Act, under section 3 the legislature has sought to impose multi point tax on all sales and purchases.
After having done that it has given power to the executive, a high authority and which is presumed to command the majority support in the legislature, to select for special treatment dealings in certain class of goods.
In the very nature of things, it is impossible for the legislature to enumerate goods, dealings in which Sales tax or purchase tax should be imposed.
It is also impossible for the legislature to select the goods which should be subjected to a single point sales or purchase tax.
Before making such selections several aspects such as the impact of the levy on the society, economic consequences and the administrative convenience will have to be considered.
These factors may change from time to time.
Hence in the very nature of things, these details have got to be left to the executive.
" We shall now proceed to examine the validity of section 31 of the Act in the light of the decisions referred to above.
The expression 'dealer ' is defined in section 2(d) of the Act as "any person including a Department of Government who in the normal course of trade sells or purchases any goods, in the State of Punjab.
" Section 2(ff) of the 965 Act defines the expression 'purchase ' as "acquisition of goods specified in Schedule 'C ' for cash or deferred payment.
" The word 'sale ' is defined in section 2(h) of the Act as meaning "any transfer of property in goods other than goods specified in Schedule 'C ' for cash or deferred payment." Sub section (1) of section 4 of the Act which is the charging section provides that "subject to the provisions of sections 5 and 6, every dealer (except one dealing exclusively in goods declared tax free under section (6) whose gross turnover during the year immediately preceding the commencement of the Act exceeded the taxable quantum shall be liable to pay tax under the Act on all sales effected after the coming into force of the Act and purchases made after the commencement of East Punjab General Sales Tax (Amendment) Act, 1958." Section 5(1) of the Act authorises the State Government to determine the rates of tax payable on the taxable turnover of a dealer not exceeding the limit prescribed therein.
Subsection (2) of section 5 of the Act lays down the principles governing the determination of "taxable turnover".
During the relevant period, sub section (2) of section 5 of the Act read as follows : "5.
(2) In this Act the expression "taxable turnover" means that part of a dealer 's gross turnover during any period which remains after deducting therefrom (a) his turnover during that period on (i) the sale of goods declared tax free under section 6; (ii) sales to a registered dealer of goods other than sales of goods liable to tax at the first stage under sub section (1 A); declared by him in a prescribed form as being intended for resale in the State of Punjab or sale in the course of inter State trade or commerce or sale in the course of export of goods out of the territory of India, or of goods specified in his certificate of registration or use by him in the manufacture in Punjab of any goods, other than goods declared tax free under section 6, for sale in Punjab and on sales to a registered dealer of containers or other materials for the packing of such goods: Provided that in case of such sales, a declaration duly filled up and signed by the registered dealer 966 to whom the goods are sold and containing prescribed particulars on a prescribed form obtained from the prescribed authority is furnished by the dealer who sells the goods: (ii) . . (iii). . (iv) sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the , of goods for use by it in the generation or distribution of such energy; (v) sales or purchases of goods falling under section 29; (vi) the purchase of goods which are sold not later than six monts after the close of the year, to a registered dealer, or in the course of inter State trade or commerce, or in the course of export out of the territory of India; Provided that in the case of such a sale to a registered dealer, a declaration, in the prescribed form and duly filled up and signed by the registered dealer to whom the goods are soid, is furnished by the dealer claiming deduction.
(vii)Such other sales or purchases as may be prescribed; (b) the amount of sales tax included in the gross turnover.
" Section 6 of the Act during the relevant period read as substituted by Punjab Act No. 24 of 1959 with the modification made by Punjab Act No. 7 of 1967 which substituted the words "twenty days" in the place of "three months" in sub section (2) thereof.
Schedule 'A ' to the Act specified certain goods which were considered as luxury goods for purposes of levy of tax at the rates prescribed by the State Government under the first proviso to section 5(1), Schedule 'B ' to the Act referred to the items of goods which were treated as tax free goods under section 6 and Schedule 'C ' during the relevant period referred to the goods the turnover of which was subject to purchase tax.
The State Government was however, given power to amend all the three Schedules.
967 It is seen from the provisions of the Act referred to above that the Legislature while directing that the tax shall be levied on the turnover of sales and purchases of goods under section 4 left the rates of tax payable to be determined by the State Government under section 5(1) of the Act subject to the limits prescribed therein.
The Legislature after specifying the goods which should be treated as luxury goods, tax free goods and goods whose purchase turnover is liable to tax in Schedule 'A ', Schedule 'B ' and Schcdule 'C ' respectively has delegated the power to the State Government to amend Schedule 'A ' under the first proviso to sub section (1) of section 5, Schedule 'B ' under sub section (2) of section 6 and Schedule 'C ' under section 31 of the Act.
In each of these cases, the State Government can make the amendment only after giving previous publicity to its intention to do so thus giving an opportunity to interested parties to make representations, if any.
In the case of a democratic Government, this itself acts as a check on arbitrary exercise of power.
At this stage it is necessary to refer to sub section (2A) of section 4 of the Act and that provides that notwithstanding anything contained in sub sections (1) and (2) of section 4, no tax on the sale of any goods shall be levied if a tax on their purchase is payable under the Act.
The Act also contains the machinery for assessment and collection of tax.
It follows from the scheme of the Act that no tax is payable on the sale of goods specified in the first column of Schedule 'B ' subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column, thereof and no dealer shall charge sales tax on the sale of goods which are declared tax free.
In so far as goods included in Schedule 'C ' to the Act are concerned, tax can be levied only on their purchase turnover.
In the case of all other goods, tax is levied on their sales turnover subject to section 5 and other provisions of the Act.
When the State Government in exercise of its power under section 6(2) of the Act deletes any goods from Schedule 'B ', they cease to be tax free goods and their sales turnover would become liable to payment of tax.
When the State Government in exercise of its power under section 31 of the Act includes any goods in Schedule 'C ', their sales turnover would become exempt from payment of tax but their purchase turnover would become liable for payment of tax.
We are of the view that the delegation of power to the State Government to determine whether any class of goods should be included or excluded from Schedule 'C ' to the Act cannot be considered as unconstitutional in view of the decisions of this Court referred to above and in particular the decision in Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh & Ors.
(supra) where section 6(2) of the Central Provinces and Berar Sales Tax Act, 1947 corres 968 ponding to section 6(2) of the Act was upheld by a Constitution Bench of this Court.
The Constitution Bench while rejecting the challenge of section 6(2) observed thus: "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 subject 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.
" We are of the view that the case in so far as section 31 of the Act which is also an integral part of a single enactment and which authorises the State Government to amend Schedule 'C ' to the Act cannot be different from the case which was dealt with by the Constitution Bench.
If it is permissible for the Legislature to authorise the State Government to convert tax free goods into taxable ones, there is hardly any justification for holding that the State Government cannot be entrusted with the power to include goods in Schedule 'C ' making their purchase turnover taxable.
It was, however, argued by Mr. M. C. Bhandare that in the instant case, the inclusion of paddy in Schedule 'C ' to the Act was against the policy underlying the Act and, therefore, even though section 31 of the Act might be constitutionally valid, the notification issued by the State Government directing inclusion of paddy in Schedule 'C ' should be held to be outside the scope of section 31 of the Act.
In other words, he contended that having regard to the scheme of the Act, it was necessary for us to read section 31 of the Act as not delegating the power to the State Government to include paddy in Schedule 'C ' to the Act.
The argument of the learned counsel was that the appellants were purchasing paddy either from agricul 969 turists who had grown it on their land or from katcha adatias for purposes of manufacture of rice in the circumstances mentioned in section 5(2) (a) (ii) of the Act.
In either case no sales tax was being levied on the turnover relating to the sales in their favour by reason of item 39 of Schedule 'B ' to the Act which declared that agricultural or horticultural produce sold by a person or a member of his family grown by himself or grown on any land in which he has an interest whether as owner or usufructuary mortgage tenant or otherwise were tax free goods or of sub clause (ii) of clause (a) of sub section (2) of section 5 of the Act which required the turnover relating to sales to a registered dealer of goods specified in his certificate of registration for use by him in the manufacture in Punjab of any goods other than goods declared tax free under section 6 for sale in Punjab to be deducted from the gross turnover of any dealer in order to arrive at 'taxable turnover '.
It was argued that the tax payable under the Act was an indirect tax and since no sales tax was leviable, the appellants could purchase paddy before the issue of the impugned notification without being saddled with the liability of payment of sales tax.
The policy underlying section 5(2)(a)(ii) of the Act was that manufacturers of goods specified in the certificate of registration obtained by them should be able to acquire raw material for their industry without incurring the extra liability of sales tax.
This exemption which the appellants were enjoying was taken away indirectly by the State Government by including paddy in Schedule 'C ' to the Act resulting in the imposition of purchase tax in respect of its turnover on them.
Relying upon the decision of the High Court of Madras in Syed Mohamed & Co. vs The State of Madras(1) it was argued that sales tax was in effect tax on the transaction of sale of goods by one person to another and that it was unreasonable to assume that the Legislature contemplated different categories of transactions depending upon the point at which the tax was levied.
In support of this contention, our attention was also drawn to the observation made at page 571 in Devi Das Gopal Krishnan & Ors.
vs State of Punjab & Ors.
(supra) and in State of Assam vs Ramesh Chandra Dey & Ors.(2).
The learned counsel for the appellants contended that since the exemption from payment of sales tax accorded by the Legislature under item 39 of Schedule 'B ' and under section 5(2) (a) (ii) of the Act was in respect of the transaction of sale, it was not open to the Executive Government to take away the exemption by including paddy in Schedule 'C ' and since such inclusion was contrary to the express policy of the statute, section 31 of the Act must be so interpreted as not delegating the power to 970 include paddy purchased by the appellants in Schedule 'C '.
We are, therefore asked to hold that even though section 31 was not unconstitutional, the notification was not enforceable against the appellants.
The above argument is no doubt quite attractive but we do not find any substance in it since it overlooks the decision of the Constitution Bench of this Court in Pandit Banarasi Das Bhanot vs The State of Madhya Pradesh & Ors.
(supra) where it has been held that it is open to the Legislature to delegate the power to withdraw the exemption which has been given by the Legislature in respect of certain transactions specified in Schedule II to the C.P. and Berar Sales Tax Act, 1947.
Moreover it cannot be said that the principal object of the Act is to encourage manufacturing industry.
The Act is a fiscal legislation and its object is to collect revenue for the purpose of meeting the expenditure of the Government.
It is no doubt true that while levying tax under the Act, the Legislature may grant exemptions in certain cases and may decline to grant exemptions in other cases.
The question whether such exemption should be given or not is only incidental or ancillary to the principal object viz. the object of levying tax for the purpose of collecting revenue.
It cannot also be said that when certain goods are sold in favour of manufacturer, the seller is always entitled to deduct such sales turnover from the gross turnover.
He can do so only when such goods are specified in the certificate of registration obtained by the purchaser and they are used by him in the manufacture in Punjab of any goods other than goods declared tax free under section 6 of the Act for sale in Punjab.
Transaction in paddy cannot, therefore, be considered as having been generally exempted from payment of tax under the Act.
It is also to be seen that section 5(2)(a)(ii) of the Act grants exemption from payment of sales tax on the turnover of goods sold in favour of a manufacturer under the circumstances mentioned therein only to the seller and not to the buyer even though indirectly the buyer may be benefited thereby.
If the observation made by this Court in State of Tamil Nadu vs M. K. Kandaswami etc., etc.(1) that 'taxable goods ', 'taxable event ' and 'taxable person ' are three distinct concepts is borne in mind, there will be no room for any confusion.
In the instant case, the taxable event is the purchase of paddy and not its sale which alone attracts section 5(2) (a) (ii) of the Act and taxble person, that is person liable to pay tax, is the purchaser and not the seller.
The appellants cannot, therefore, complain that any exemption granted to them by the Act has been taken away.
Even though the liability to pay purchase tax may be on appellants, it is bound to have repercussions on the price at which they buy paddy and 971 the price at which rice manufactured by them out of that paddy is sold by them.
The tax payable under the Act admittedly being an indirect tax the tax burden would ordinarily fall on the consumer of rice and not on any of the intermediaries including the appellants.
The impugned notification cannot, therefore, be treated as one issued against the policy of the statute.
In view of the foregoing, we hold that section 31 of the Act and the Notification issued thereunder do not suffer from the vice of excessive delegation of legislative power.
We may at this stage refer to one other subsidiary argument urged on behalf of the appellants.
It is argued that because paddy and rice are not different kinds of goods but one and the same, inclusion of both paddy and rice in Schedule 'C ' to the Act would amount to imposition of double taxation under the Act.
There is no merit in this contention also because the assumption that paddy and rice are one and the same is erroneous.
In Ganesh Trading Co., Karnal vs State of Haryana & Anr.
arising under the Act, this Court has held that although rice is produced out of paddy, it is not true to say that paddy continued to be paddy even after dehusking; that rice and paddy are two different things in ordinary parlance and therefore, when paddy is dehusked and rice produced, there is a change in the identity of the goods.
The above decision follows the principle enunciated by this Court in State of Punjab vs Chandu Lal Kishori Lal in which it was held that cotton seeds when separated from cotton constituted distinct commercial goods different from cotton.
The above contention has, therefore, to be rejected.
In the result these appeals fail and they are dismissed.
The parties shall, however, bear their own costs.
N.K.A. Appeals dismissed.

summary:
Section 5(1) of the Punjab Sales Tax Act, 1948 authorises the State Government to determine the rates of tax payable on the taxable turnover of a dealer not exceeding the limit prescribed therein.
Sub section (2) lays down the principles governing the determination of the taxable turnover.
Schedule 'C ' of the Act refers to goods, the turnover of which is subject to purchase tax.
Section 31 of the Act which gives specific power to the State Government to amend Schedule 'C ' provides that after giving by notification, not less than three months ' notice of its intention so to do the State Government may add to or delete from Schedule 'C ' any goods and thereupon Schedule 'C ' shall be deemed to be amended accordingly.
By a notification dated January 15, 1968 the State Government added in Schedule 'C ', "paddy" and "rice" as items on which purchase tax could be levied.
As a result of this notification turnover relating to the purchase of paddy and rice became exigible to purchase tax in the hands of the purchasers with effect from that date.
The appellants who are dealers in paddy, buy paddy in the first instance and sell rice after converting paddy into rice.
They filed writ petitions in the High Court questioning the validity of s.31 of the Act and the notification issued thereunder and their liability to payment of purchase tax.
The High Court dismissed the writ petitions.
In appeal to this Court it was contended that section 31 of the Act which authorised the State Government to vary Schedule 'C ' by adding certain goods whose turnover was not liable to payment of sales tax earlier, suffered from the vice of excessive delegation of legislative power.
Dismissing the appeals, ^ HELD: 1(a) The delegation of power to the State Government to determine whether any class of goods should be included or excluded from Schedule 'C ' to the Act cannot be considered as unconstitutional.
[967G] (b) The case in so far as section 31 of the Act which is an integral part of a single enactment and which authorises the State Government to amend Schedule 'C ' to the Act cannot be different from the case which was dealt 953 with by the Constitution Bench, in Pt.
Banarsi Das Bhanot vs State of M.P.; , If it is permissible for the Legislature to authorise the State Government to convert tax free goods into taxable ones, there is hardly any justification for holding that the State Government cannot be entrusted with the power to include goods in Schedule 'C ' making their purchase turnover taxable.
[968 D F] (c) It is well established that the delegation of power by the legislature to a local authority or to the executive Government to vary or modify an existing law would not be unconstitutional so long as such delegation does not involve the abdication of essential legislative power by the legislature.
Such delegations of legislative powers have been upheld by this Court on several varied and diverse grounds such as the scheme and policy of the statute under which the power is delegated, the presence of guidelines in the statute regarding the exercise of delegated power, the lack of time for the legislature to make provision with regard to all the details involved in the administration of law, the incapacity of the legislature to foresee future events, the nature of the subject matter of the legislation and the nature of the donee of power etc.
Even in matters relating to taxation laws, it has been consistently held that the legislature can delegate the power to fix rates of tax provided there are necessary guidelines regarding such fixation on the ground that in a modern society, taxation is one of the methods by which economic and social goals of State can be achieved and the power to tax should be flexible and capable of being easily altered to meet the exigencies of circumstances.
Such delegation has been held to be not amounting to delegation of essential legislative function.
[959A D] Pt.
Banarsi Das Bhanot vs State of M.P. & Ors., ; ; Municipal Corp. of Delhi vs Birla Cotton, Spinning and Weaving Mills, Delhi & Anr., ; ; Corporation of Calcutta & Anr.
vs The Liberty Cinema, ; ; Sita Ram Bishambar Dayal & Ors.
vs State of U.P. State of U.P & Anr. etc., etc.
; ; referred to. 2(a) The argument that even though section 31 was not unconstitutional the notification was not enforceable against the appellants has no force.
In Pt.
Banarsi Das Bhanot vs State of M.P. it has been held that it is open to the Legislature to delegate the power to withdraw the exemption which has been given by the Legislature in respect of certain transactions specified in the Act under consideration in that case.
It cannot be said that the principal object of the Act is to encourage manufacturing industry.
The Act is a fiscal legislation and its object is to collect revenue for the purpose of meeting the expenditure of the Government.
It is true that while levying tax under the Act, the Legislature may grant exemptions in certain cases and may decline to grant exemption in other.
The question whether such exemption should be given or not is only incidental or ancillary to the principal object viz., the object of levying tax for the purpose of collecting revenue.
It cannot be said that when certain goods are sold in favour of a manufacturer, the seller is always entitled to deduct such sales turnover from the gross turnover.
He can do so only when such goods are specified in the certificate of registration obtained by the purchaser and they are used by him in the 954 manufacture in the State of any goods other than goods declared tax free under section 6 of the Act for sale in the State.
Transactions in paddy cannot be considered as having been generally exempted from payment of tax under the Act.
Section 5(2)(a)(ii) of the Act grants exemption from payment of sales tax on the turnover of goods sold in favour of a manufacturer under the circumstances mentioned therein only to the seller and not to the buyer even though indirectly the buyer may be benefited thereby.
[970A F] (b) The terms "taxable goods", "taxable event" and "taxable person" are three distinct concepts.
In the instant case the "taxable event" is the purchase of paddy and not its sale which alone attracts section 5(2)(ii) of the Act.
"Taxable person" i.e. the person liable to pay tax is the purchaser and not the seller.
The appellants cannot complain that any exemption granted to them by the Act has been taken away.
Even though the liability to pay purchase tax may be on the appellants, it is bound to have repercssions on the price at which they buy paddy and the price at which rice manufactured by them out of that paddy is sold by them.
The tax payable under the Act being an indirect tax, the tax burden would ordinarily fall on the consumer of rice and not on any of the intermediaries including the appellants.
The impugned notification cannot therefore, be treated as one issued against the policy of the statute.
[970G H, 971A B] State of Tamil Nadu vs M. K. Kandaswami, etc., etc.
; , ; referred to.


judgement:
Civil Appeal No. 1936 of 1978.
From the Judgment and Order dated 19 8 78/3 10 78 of the Bombay High Court (Nagpur Bench) in E.P. No. 1/78.
AND Civil Appeal No. 2387 of 1978 From the Judgment and Order dated 3 8 78/22 9 78/3 10 78 of the Bombay High Court (Nagpur Bench) in Election Petition No. 1/78.
M. C. Bhandare, B. P. Salve, A. N. Karkhanis and Mrs. section Bhandare for the Appellant in C.A. 1936/78.
N. M. Ghatate and section V. Deshpande for the Appellant in C.A. 2387/78.
M. N. Phadke, Mrs. V. D. Khanna and P. G. Palsikar for R. 2 in C.A. 1936 of 1978.
U. R. Lalit and V. N. Ganpule for R. 5 in C.A. 1936/78.
The Judgment of the Court was delivered by PATHAK, J.
These two appeals under section 116A of the Representation of the People Act, 1951 are directed against an order of the High Court of Bombay declaring void the election of Janardan Dattuappa Bondre to the 104 Chikhli Legislative Assembly Constituency, Maharashtra and declaring Bharat Rajabhau Bondre to be duly elected.
Civil Appeal No. 1936 (NCE) of 1978 has been filed by Janardan Dattuappa Bondre and Civil Appeal No. 2387 (NCE) of 1978 by Keshavrao Jaiwantrao Bahekar.
The parties will be referred to hereinafter according to their array in the former appeal.
General elections to the Legislative Assembly of Maharashtra were held in February, 1978.
The appellant Janardan Dattuappa Bondre, was declared elected to the 104 Chikhli Assembly Constituency.
He secured 27,785 votes.
The fifth respondent, Bharat Rajabhau Bondre was given 27,604 votes and the third respondent, Keshavrao Jaiwantrao Bahekar 27,447 votes.
The election of the 900 appellant was questioned by an election petition filed in the High Court of Bombay by a voter, the first respondent, Govindprasad Shivprasad Choudhary.
The High Court did not find substance in most of the grounds raised in the election petition, but having regard to the allegations made in respect of a number of ballot papers it allowed fresh scrutiny and recount of the votes.
The task was entrusted to a Special Officer of the High Court.
After considering his report and the material before it, the High Court made an order dated September 22, 1978 allowing the election petition, declaring the election of the appellant to be void and further declaring the fifth respondent to be duly elected.
The decision was rendered on the finding that after taking into account the votes now counted in favour of the different candidates, the fifth respondent was found to have received 191 votes more than the appellant.
This result was reached after denying to the appellant the benefit of 250 ballot papers cast in his favour but found included in the packet of Bahekar 's ballot papers.
If these 250 ballot papers are counted in favour of the appellant, it is not disputed that the result of the election must swing in favour of the appellant.
The submissions of learned counsel for the parties have, therefore, centred mainly on this aspect of the case.
The relevant portion of the report of the Special Officer reads: 'While the counting was in progress, it was found that in one envelope from Box No. 2 of candidate No. 4 Shri Bahekar, there were 278 ballot papers noted by the Returning Officer on the envelope but at the time of actual counting it was found that from them 28 ballot papers were of Shri Bahekar, while the remaining were of votes cast, in favour of candidate No. 3 Shri Janardhan Bondre.
Similarly, in the envelope of Shri Janardhan Bondre there were 408 ballot papers noted by the Returning Officer but at the time of actual counting of that envelope it was noticed that from out of 408 ballot papers, 158 only were of Shri Janardhan Bondre and the remaining were of Shri Bahekar.
It would be therefore clear that there was some mistake committed by the Returning Officer while packing the ballot papers in the two envelopes of Shri Bahekar and Janardhan Bondre.
" On the report of the Special Officer, it was contended before the High Court on behalf of the fifth respondent that it was not permis 901 sible to take into account the 250 votes cast in favour of the appellant and found in the packet of Bahekar because the order of the High Court directing a recount was limited to finding out whether any improper votes had been accepted in favour of the appellant and whether any proper votes of the fifth respondent had been rejected.
Relying on P. Malaichami vs M. Ambalam,(1), the High Court took the view that as the appellant had not filed a notice of recrimination under section 97 of the Representation of the People Act, 1951, it was not open to him to allege that any of his votes had been improperly counted in favour of some other candidate.
In the appeal filed by Janardan Dattuappa Bondre, the principal contention on behalf of the appellant is that the High Court has erred in holding that Section 97 comes into play.
It is vehemently contended that no notice of recrimination was necessary for the purpose of having the 250 votes, whose validity was never in dispute and which had been cast in favour of the appellant, counted in the total number of votes secured by the appellant.
It seems to us that the appellant is right.
The order for a recount was made by the High Court on an application made by the election petitioner.
The directions in the order required the Special Officer, among other things, to physically count the votes recorded in favour of the appellant, Bahekar and other candidates in order to ascertain whether those votes were less than the number of votes declared as having been respectively secured by them.
During the recount, the appellant applied to the Special Officer that if any votes cast in his favour were found to have been erroneously counted in the total of other candidates the mistake should be rectified by including them in his total.
A similar application was made by Bahekar.
The High Court rejected the appellant 's application on the ground that he had not filed a notice of recrimination.
It seems to us that when the High Court directed the "physical" count of the votes cast in favour of the appellant, Bahekar and others what was intended was a mechanical recount of those votes and nothing more.
It did not envisage any enquiry into their validity, and whether any of them had been improperly received.
When the appellant requested that the 250 votes cast in his favour but included in the packet pertaining to Bahekar shoud be counted in his total, he was asking for nothing more than the application of a mechanical process.
Those votes had never been regarded as cast in favour of Bahekar.
There was never any dispute that they were votes for the appellant.
Their validity was never doubted.
Plainly 902 what had happened was that by an error 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of Bahekar.
It is quite probable that as equal numbers of ballot papers of the two candidates were exchanged, the error occurred after the ballot papers of each candidate had been separately tied in bundles of 50, as is required by the "Handbook for Returning Officers".
After withdrawing the 250 votes of Bahekar from the appellant 's packet and the appellant 's 250 votes from Bahekar 's packet, the Special Officer could not stop there.
The 250 votes of each candidate had then to be counted in his total.
They were not valid votes.
The inclusion of the 250 votes cast in favour of the appellant was material for the purpose of determining the total number of votes received by him.
The accident that they were not placed in his packet but in Bahekar 's packet did not render them any the less votes belonging to the appellant.
Their inclusion in calculating the appellant 's total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition, his election should be declared void.
It was a process relevant to the first of the reliefs claimed by the election petitioner, that is to say, that the election of the appellant be declared void.
The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected.
as was observed in Jabar Singh vs Genda Lal,(1) where both reliefs are claimed in an election petition the Court must first "decide the question whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected".
A notice of recrimination under section 97 of the Act is necessary only where the returned candidate or other candidate disputes the grant of the further declaration sought by the election petitioner that he or some other candidate should be declared duly elected.
When the recount was taken, the High Court had not yet concluded that the election of the appellant was invalid.
It was in the process of determining that question, and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him.
These would include the 250 votes cast in his favour, even though they were found placed in Bahekar 's packet.
Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes.
His election cannot be declared void.
903 That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other canddiate would have been void if he had been the returned candidate.
Therefore, no notice for recrimination under section 97 was necessary.
In the circumstances, the High Court erred in declining to count the appellant 's 250 votes in his total on the ground that no notice of recrimination under section 97 of the Act had been given.
In P. Malaichami vs M. Ambalam (supra), on which the High Court relied, the facts were different.
In that case, the recount ordered did not inolve the mere mechanical process of counting the valid votes cast in favour of the parties.
It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules, 1961, "with all its implications".
The validity of the votes was to be under re examination.
And if the returned candidate intended to take the benefit of such a recount against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had been claimed, it was necessary for him to file a notice of recrimination.
In the present case, the appellant was concerned with his claim to his 250 votes.
The claim did not involve any reconsideration of the validity of any votes, whether cast in his favour or any other candidate; what was called for was a mere mechanical process of counting.
That every order of recount does not bring section 97 into play was laid down by this Court in Anirudh Prassad vs Rajeshwari Saroj Das & Ors.(1) We are of opinion that the High Court should not have declined to include in the appellant 's total votes the 250 votes cast in favour of the appellant but included in the packet of Bahekar.
If those votes are included in the appellant 's total, the appellant secures the highest number of votes and is entitled to be declared elected.
In the circumstances, it is not necessary to consider the other contention of learned counsel for the appellant that the High Court was in error in directing a recount of the ballot papers.
A submission was made by learned counsel for the fifth respondent that the postal ballot papers were printed in Hindi and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened.
The point was raised before the High Court and, has, in our opinion, been rightly repelled.
On the material before us it is not possible to say that the result of the election has been materially effected by that irregularity.
904 In the appeal filed by Bahekar, the contention raised for him is that on a proper and complete recount of the votes cast for the respective candidates it is he who should be declared duly elected.
We are not satisfied that the grounds raised have any substance, and we see no force in his appeal.
In the result, Civil Appeal No. 1936 (NCE) of 1978 is allowed and Civil Appeal No. 2387 (NCE) of 1978 is dismissed.
The order of the High Court declaring the election of the appellant void and declaring the fifth respondent duly elected is set aside.
The election petition is dismissed.
The appellant is entitled to his costs throughout against the second and the fifth respondents in the election petition as well as in the appeal filed by him.
The remaining respondents will bear their own costs in that appeal.
All the parties will bear their own costs in the other appeal.
N.V.K. C.A.1936/78 allowed.
C.A.2387/78 dismissed.

dataset_name: IN-Abs

summary:
The appellant was declared elected to the State Assembly in the General Election in 1978.
He secured 27785 votes.
The fifth respondent was given 27,604 votes and the third respondent 27,447 votes.
The election of the appellant was questioned by an election petition filed in the High Court by a voter, the first respondent.
Having regard to the allegations made in respect of a number of ballot papers, the High Court allowed fresh scrutiny and recount of the votes, and entrusted the task to a Special Officer of the High Court.
The Special Officer pointed out that in one envelope from the box of the 3rd respondent out of 278 ballot papers 28 were of the 3rd respondent while the balance of 250 were the votes cast in favour of the appellant.
Similarly in the envelope of the appellant out of 408 ballot papers found in this box only 158 were votes cast in his favour and 250 were in favour of the 3rd respondent and that by reason of this some mistake was committed by the Returning Officer while packing the ballot papers in the two envelopes of the appellant and the 3rd respondent.
On the report of the Special Officer, it was contended before the High Court on behalf of the fifth respondent that it was not permissible to take into account the 250 votes cast in favour of the appellant which were found in the packet of the third respondent because the order of the High Court directing a recount was limited to finding out whether any improper votes had been accepted in favour of the appellant and whether any proper votes of the fifth respondent had been rejected.
The High Court relying on P. Malaichami vs M. Ambalam, ; took the view that as the appellant had not filed a notice of recrimination under section 97 of the Representation of the People Act, 1951, it was not open to him to allege that any of his votes had been improperly counted in favour of some other candidate.
On the basis of the report of the Special Officer the High Court held that the fifth respondent had received 191 votes more than the appellant and declared the appellant 's election to be void.
It declared the fifth respondent to be duly elected.
In the appellant 's appeal to this Court it was contended that the High Court had erred in holding that section 97 comes into play and that no notice of recrimination was necessary for the purpose of having the 250 votes, whose validity was 898 never in dispute and which had been cast in favour of the appellant, counted in the total number of votes secured by the appellant.
^ HELD: 1.
When the High Court directed the "physical" count of the votes cast in favour of the appellant, third respondent and others, what was intended was a mechanical recount of these votes and nothing more.
It did not envisage any inquiry into their validity, and whether any of them had been improperly received.
When the appellant requested that the 250 votes cast in his favour but included in the packet pertaining to the third respondent should be counted in his total, he was asking for nothing more than the application of a mechanical process.
These votes had never been regarded as cast in favour of the third respondent.
There was never any dispute that they were votes for the appellant.
Their validity was never doubted.
Plainly what had happened was that by an error, 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of the third respondent.
[901G 902A] 2.
The accident that they were not placed in his packet but in the third respondent 's packet did not render them any the less votes belonging to the appellant.
Their inclusion in calculating the appellant 's total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition his election should be declared void.
It was a process relevant to the first of the reliefs claimed by the election petition, that is to say, the election of the appellant be declared void.
The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected.
[902C E] 3.
A notice of recrimination under section 97 of the Act is necessary only when the returned candidate or any other candidate disputes the grant of the further declaration that he or some other candidate should be declared duly elected.
[902F] In the instant case when the recount was taken, the High Court had not yet concluded that the election of the appellant was invalid.
It was in the process of determining that question, and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him.
These would include the 250 votes cast in his favour, even though they were found placed in the third respondent 's packet.
Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes.
His election cannot be declared void.
That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other candidate would have been void if he had been the returned candidate.
Therefore, no notice for recrimination under section 97 was necessary.
[902G 903A] 4.
The appellant was concerned with his claim to his 250 votes.
The claim did not involve any reconsideration of the validity of any votes, whether cast in his favour or any other candidate.
What was called for was a mere mechanical process of counting.
Every order of recount does not bring section 97 into play.
[903D E] Jabar Singh vs Genda Lal ; , 60; Anirudh Prasad vs Rajeshwari Saroj Das & Ors., ; referred to.
P. Malaichami vs M. Ambalam ; ; distinguished.
The High Court should not have declined to include in the appellant 's total votes the 250 votes cast in favour of the appellant but included in the packet 899 of the third respondent.
If those votes are included in the appellant 's total the appellant secures the highest number of votes and is entitled to be declared elected.
[903F]


judgement:
Appeal No. 195 of 1955.
Appeal from the judgment and order dated the 30th day of December 1953 of the Nagpur High Court in Miscellaneous Civil Case No. 35 of 1952.
Kirpa Ram Bajaj, Hardyal Hardy, with him) for the appellant.
C. K. Daphtary, Solicitor General of India (G. N. Jo8hi and R. H. Dhebar, with him) for the respondent.
February 17.
The Judgment of the Court was delivered by DAS C.J.
This is an appeal from the judgment and order passed by a Bench of the Nagpur High Court on the 30th December, 1953 in Miscellaneous Civil Case No. 35 of 1952, whereby the Bench answered in the negative the question that had been referred to them by the Income Tax Appellate Tribunal, Bombay under section 66(1) of the Indian Income Tax Act, 1922 (hereinafter referred to as the Act).
In connection with the assessment for the assessment year 1949/1950 of Dulichand Laxminarayan, an unregistered firm, an application was made under section 26 A of the Act before the Income Tax Officer, Raigarh for its registration as a firm constituted under a Deed of Partnership dated the 17th February 1947.
In the opening paragraph of that deed the names and descriptions of the parties thereto were set out in the following words: "We, Dulichand Laxminarayan Firm, through Malik (partner) Laxmi Narayan son of Laljimal, Laxmi Narayan Chandulal Firm through Malik (partner) Chandulal son of Nanakchand, Mulkhram Bholaram Firm through Malik (partner) Tekchand son of Bholaram, Jeramdas Hiralal Firm through 157 Malik (partner) Beharilal son of Asharam and Mangatrai Ganpatram through Malik (partner) Ganpatram son of Mangatrai, Agarwar Bani, aged 50, 40, 28, 25, 45 residing at Raigarh are partners in equal shares with effect from 5 1 1946 in the firm Dulichand Laxminarayan in whose name Importers ' Licence of cloth is issued for Raigarh State group Raigarh, Jaipur Saraigarh, Udeypur and Sakti State, on the following terms and conditions. . . .
Then follow 15 clauses containing the terms on which the partnership business was agreed to be done.
At the foot of the deed signatures were appended in the following order one below the other: Laxminarayan for Dulichand Laxmi Narayan.
Beharilal for Jairam Das Hiralal.
Ganpatram for Mangatrai Ganpatram.
Tekchand for Mukhram Bholaram.
Chandulal for Laxminarayan Chandulal.
It is common ground that out of the five constituent parties Dulichand Laxminarayan, Jairamdas Hiralal and Laxminarayan Chandulal are separate firms constituted under three separate deeds of partnership and that Laxminarayan, Beharilal and Chandulal, who signed the deed on behalf of those firms are partners in their respective firms.
There is also no dispute that Mukbram Bholaram is the name of a business carried on by a Hindu undivided family of which Tekchand, who has signed for it, is the Karta.
It is also conceded that Mangatrai Ganpatrai is an individual.
The application for registration was signed by the same five individuals who bad signed the deed of partnership.
Finding that Dulichand Laxminarayan constituted under the aforesaid Deed of Partnership dated the 17th February 1947 consisted of three firms, one Hindu undivided family business and one individual and taking the view that a firm or a Hindu undivided family could not as such enter into a partnership with other firms or individuals, the Income Tax Officer held that the said Dulichand Laxminarayan could not be registered as a firm under section 26 A and 21 158 accordingly on the 26th February 1950 he rejected the application.
On appeal the Appellate Assistant Commissioner held that when a firm entered into a partnership with another firm the result in law was that all the partners of each of the smaller firms became partners of the bigger firm and, therefore, there was no legal flaw in the constitution of the bigger firm of Dulichand Laxminarayan.
He, however, took the view that, as the application for registration had not also been signed personally by all the partners of those three smaller firms as required by section 26 A of the Act and rule 2 of the Rules framed under section 59 of the Act, there was no valid application for registration and consequently the firm could not be registered.
The result was that on the 5th August 1950 the Appellate Assistant Commissioner dismissed the appeal.
The assessee appealed to the Income Tax Appellate Tribunal.
The Tribunal agreed with the Appellate Assistant Commissioner that a valid partnership had been brought into existence but reversed the decision of the Appellate Assistant Commissioner on the ground that as all the five executants of the deed had signed the application for registration, the requirements of law had been satisfied.
Accordingly on the 12th June 1951 the Tribunal directed registration of the firm.
On the application of the Commissioner of Income Tax, Madhya Pradesh the Tribunal under section 66(1) of the Act drew up a Statement of Case and submitted to the High Court of Nagpur the following question of law, namely: Whether on the facts of the Case the assessee is entitled to registration under section 26 A of the Income Tax Act? The reference came up for hearing before a Bench of the Nagpur High Court on the 30th December 1953.
Following their own judgment delivered earlier in the day in Miscellaneous Civil Case No. 189 of 1951, Jabalpur Ice Manufacturing Association vs Commissioner of Income Tax, Madhya Pradesh and Bhopal(1), (1) 159 the High Court answered the referred question in the negative.
In view, however, of the importance of the question involved in the reference the High Court, under section 66 A(2) of the Act, gave a certificate of fitness for appeal to this Court.
Hence the present appeal.
Section 26 A of the Act under which the application for registration was made provides as follows: (1) Application may be made to the Income tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income tax or supertax.
(2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be varied in such manner, as may be prescribed; and it shall be dealt with by the Income tax Officer in such manner as may be prescribed.
The relevant portion of rule 2 of the Rules made under section 59 of 'the Act runs thus: "Any firm constituted under an Instrument of Partnership specifying the individual shares of the partners may, under the provisions of section 26 A of the Indian Income tax Act, 1922 (hereinafter in these rules referred to as the Act), register with the Income tax Officer, the particulars contained in the said Instrument on application made in this behalf.
Such application shall be signed by all the partners (not being minors) personally, or. . .
At the hearing before us it was at one time suggested that the partners of the firm consisted of the five individuals who had signed the deed and each of them had an ' equal share as specified therein and that as all the said five partners had signed the application for registration the requirements of section 26 A of the Act and rule 2 had been fully complied with and the assessee should have been registered as a firm for the purposes of the Act.
A perusal of the deed and par 160 ticularly the portions hereinbefore set out indicate beyond any doubt that the intention of the parties quite clearly was that each of the three constituent firms and not the particular member of each of the said three firms who had signed the deed for his respective firm was to be the partner in the bigger firm constituted under this deed.
The contention that only the five individual executants of the deed were the partners of the newly created firm runs counter to the apparent tenor of the deed and cannot be entertained.
Indeed learned counsel appearing in support of this appeal did not press this point.
The main argument before us has centred round the larger question as to whether a firm as such can be a partner in another firm.
Section 26 A of the Act quoted above postulates the existence of a firm, for otherwise no question of its registration can possibly arise.
The Act, however, does not indicate what a firm signifies or how it is to be constituted.
Indeed section 2(6B) of the Act clearly provides,inter alia, that "firm" and "partnership" have the same meanings respectively as they have in the .
We have, therefore,, to go to the last mentioned Act to ascertain what a firm is and how it can be created.
Turning, then, to the we come to section 4 which defines 'partnership", "partner", "firm" and "firm name" in the words following: 4.
Definition of "Partnership", "Partner", "firm" and "firm name: "Partnersbip" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.
Persons who have entered into partnership with one another are called individually "partners" and collectively "a firm", and the name under which their business is carried on is called the "firm name".
This section clearly requires the presence of three elements, namely (1) that there must be an agreement entered into by two or more persons; (2) that the agreement must be to share the profits of a business; 161 and (3) that the business must be carried on by all or any of those persons acting for all.
According to this definition "persons" who have entered into partnership with one another are collectively called a "firm" and the name under which their business is carried on is called the "firm name".
The first question that arises is as to whether a firm as such can enter into an agreement with another firm or individual.
The answer to the question would depend on whether a firm can be called a "person".
There is no definition of the word "person" in the Partnership Act.
The , however, by section 3 (42) provides that "person shall include any company or association or body of individuals whether incorporated or not".
The firm is not a company but is certainly an association or body of individuals.
The argument is that applying that definition to the word "persons" occurring in section 4, one can at once say that an unincorporated association or body of persons, like a firm, can enter into a partnership just as by the application of that definition to section 4 of the a company can become a partner in a firm.
The definitions given in section 3 of the , however, apply when there is nothing repugnant in the subject or context.
It is difficult to say that there is anything repugnant in the context of section 4 itself which will exclude the application of that definition to the word "Persons" occurring in section 4.
Is there, however, anything repugnant in the subject of partnership law, which will exclude the application of that definition to section 4? As pointed out in Lindley on Partnership, llth Edition, at page 153, merchants and lawyers have different notions respecting the nature of a firm.
Commercial men and accountants are apt to look upon a firm in the light in which lawyers look upon a corporation, i.e., as a body distinct from the members composing it.
In other words merchants are used to regard a firm, for purposes of business, as having a separate and independent existence apart from its partners.
In some systems of law this separate per 162 sonality of a firm apart from its members has received full and formal recognition, as, for instance, in Scotland.
That is, however, not the English Common Law conception of a firm.
English Lawyers do not recognize a firm as an entity, distinct from the members composing it.
Our partnership law is based on English Law and we have also adopted the notions of English lawyers as regards a partnership firm.
Some of the mercantile usages relating to a firm have, however, found their way into the law of partnership.
Thus in keeping accounts, merchants habitually show a firm as a debtor to each partner for what he brings into the common stock and each partner is shown as a debtor to the firm for all that he takes out of that stock.
But under the English Common Law, a firm, not being a legal entity, could not sue or be sued in the firm name or sue or be sued by its own partner, for one cannot sue oneself.
Later on this rigid law of procedure, however, gave way to considerations of commercial convenience and permitted a firm to sue or be sued in the firm name, as if it were a corporate body (see Code of Civil Procedure, Order XXX corresponding to rules of the English Supreme Court Order XLVIII A).
The law of procedure has gone to the length of allowing a firm to sue or be sued by another firm having some common partners or even to sue or be sued by one or more of its own partners (see Order XXX, rule 9 of the Code of Civil Procedure), as if the firm is an entity distinct from its partners.
Again in taking partnership accounts and in administering partnership assets, the law has, to some extent, adopted the mercantile view and the liabilities of the firm are regarded as the liabilities of the partners only in case they cannot be met and discharged by the firm out of its assets.
The creditors of the firm are, in the first place, paid out of the partnership assets and if there is any surplus then the share of each partner in such surplus is applied in payment of his separate debts, if any, or paid to him.
Conversely, separate property of a partner is applied first in the payment of his separate debts and the surplus, if any is utilised in meeting the 163 debts of the firm (see section 49 of the ).
In the Indian Income Tax Act itself a firm is, by section 3, which is the charging section, made a unit of assessment.
It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited per,personality of a firm.
Nvertheless, the general concept of partnership, firmly established in both systems of Law, still is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm.
In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership.
According to the principles of English jurisprudence, which we have adopted for the purposes of determining legal rights "there is no such thing as a firm known to the law" as was said by James, L. J. in Ex parte Corbett, In re Shand(1) In these circumstances to import the definition of the word "person" occurring in section 3(42) of the into section 4 of the will, according to lawyers, English or Indian,, be totally repugnant to the subject of partnership law as they know and understand it to be.
It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into partnership with another firm or individuals.
It is not necessary to refer in detail to those decisions many of which will be found cited in Jabalpur Ice Manufacturing Association vs Commissioner of Income tax, Madhya Pradesh(2) to which a reference has already been made.
We need only refer to the case of Bhagwanji Morarji Goculdas vs Alembic Chemical Works Co. Ltd and others(3), where it has been laid down by the Privy Council that Indian Law has not given legal personality to a firm apart from the partners.
This (1) , 126.
(2) (3) 164 view finds support from and is implicit in the observations made by this Court in the Commissioner of Income Tax, West Bengal vs A. W. Figgies & Co. and others(1).
In Jai Dayal Madan Gopal(2), Sulaiman C. J. followed the Calcutta decisions and was not prepared to dissent from the view that the word "person" in section 239 of the should not be interpreted so as to include a firm.
The learned Chief Justice, however, expressed the view that it was difficult to say that there was anything in section 239 itself which made the application to that section of the definition of "person" as given in in any way repugnant.
The learned Chief Justice, however, does not appear to have con sidered whether there was anything repugnant in the subject of partnership law, as it prevails in this country, which operates to exclude the application of that deanition to the word "person" occurring in section 239 of the .
In our opinion, the word "Persons" in section 4 of the , which has replaced section 239 of the , contemplates only natural or artificial, i.e., legal persons and for the reasons stated above, a firm is not a "person" and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual.
In this view of the matter there can arise no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm under section 26 A of the Act.
The learned Advocate for the appellant then urges that at any rate the partnership was not illegal, for there was no legal impediment in the way of all the members of all the three constituent firms and the karta of the Hindu undivided family and the individual entering into an agreement and that, therefore, a valid partnership was constituted by the deed of partnership under consideration.
Assuming that this contention is possible in view of the language which (1) ; ; (2) 165 has been used in this deed for describing the parties, the position of the appellant will not improve, for in order to be entitled to the benefit of registration under the Act, it will have to be shown that the shares of all individual partners are specified in the deed and that all the partners have personally signed the application for registration as required by section 26 A of the Act read with Rule 2.
The deed specifies that each of the five constituent parties is entitled to an equal, i.e., 1/5 share but it does not specify the individual shares of each of the partners of each of the three smaller constituent firms.
Further all the members of those three firms have not signed the application for registration personally.
It is said that each of the three persons who executed the deed for the three smaller firms must be regarded as having the authority of their co partners in their respective firms to sign the application for registration just as they had their authority to execute the deed itself for them.
Even if they had such authority as to which there is no evidence at all on the record the section and rule 2 require that each partner (not being minors) must sign personally.
That admittedly has not been done, and., therefore, the application was not in proper form.
In our judgment the answer given by the High Court to the question is correct.
This appeal must, therefore, be dismissed with costs.

summary:
In connection with the assessment for the assessment year 1949 1950 of Dulichand Lakshminarayan an unregistered firm, an application was made under section 26 A of the Indian Income Tax Act, 1922 before Income Tax Officer, Raigarh, for its registration as a firm constituted under a Deed of Partnership dated 17th February, 1947.
In the opening paragraph of the deed the names and descriptions of the five parties thereto were set out.
The signatures of five per sons were appended on behalf of five parties respectively at the foot of the deed.
It was common ground that out of the five constituent parties, D.L., J.H., and L.C., were separate firms constituted under three separate deeds of partnership.
The three different persons who signed the deed on behalf of those three firms respectively were partners in their respective firms.
The fourth party M.B. was the name of a business carried on by a Hindu undivided family of which the person who signed it was the karta.
The fifth party M.G. was an individual.
The Income Tax Officer rejected the application on the ground that Dulichand Lakshminarayan, constituted under the deed dated 17th February 1947, consisted of three firms, one Hindu undivided family business and one individual and that a firm or a Hindu undivided family could not as such enter into a partnership with other firms or individual, 155 The assessee 's appeal to the Appellate Assistant Commissioner was dismissed but it succeeded before the Income Tax Appellate Tribunal who directed registration of the firm.
On the application of the Commissioner of Income Tax under section 66(1) of the Income Tax Act the High Court held that on the facts of the case the assessee was not entitled to registration under section 26 A of the Income Tax Act.
On appeal to the Supreme Court: Held that a perusal of the deed would indicate beyond any doubt that the intention of the parties quite clearly was that each of the three constituent firms and not the particular member of each of the said three firms who had signed the deed for his respective firm was to be the partner in the bigger firm constituted under this deed.
The contention that only the five individual executant of the deed were the partners of the newly created firm was against the tenor of the deed and was therefore without force.
Section 26 A of the Indian Income Tax Act postulates the existence of a firm.
The Act, however, does not indicate what a firm signifies or how it is to be constituted.
Section 2(6 B) of the Act clearly provides, inter alia, that "firm" and "partnership" have the same meaning respectively as they have in the .
Section 4 of the (which gives the definitions of "partnership", "partner", "firm" and "firm name") clearly requires the presence of three elements namely (1) that there must be an agreement entered into by two or more persons: (2) that the agreement must be to share the profits of a business; and (3) that the business must be carried on by all or any of those persons acting for all.
The general concept of partnership according to both systems of law, English as well as Indian, is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm.
In other words a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership.
The word "persons" in section 4 of the , which has replaced section 239 of the Indian Contract Act, contemplates only natural or artificial, i.e., legal persons and therefore a firm is not a person and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual and there is no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm unders.
26 A of the Act, as in the present case.
Jabalpur Ice Manufacturing Association vs Commissioner of Income Tax, Madhya Pradesh and Bhopal ([1965] , Exparte Oorbett, In re Shad, ([1880] ; , 126), Bhag 156 wanji Morarji Goculdas vs Alembic Chemical Works Co. Ltd. and others , Commissioner of Income Tax, West Bengal vs A. W. Figgies & Co. and others ([1954] S.C.R. 171), and In re Jai Dayal Madan Gopal, ([1933] I.T.R. 186), referred to.


judgement:
: Special Leave Petition (Crl.) No. 489 of 1979.
From the Judgment and Order dated 9 11 1978 of the Kerala High Court in Crl.
R.P. No. 260/77.
K. T. Harendra Nath and T. T. Kunhikannan for the Petitioner.
The Order of the Court was delivered by KRISHNA IYER, J. The Petitioner has pressed before us certain points of law which have not been urged before the High Court and so we are unable to examine the tenability of those points.
For this reason, petition must be dismissed.
Counsel drew our attention to the fact that although the episode, which is the subject matter of the prosecution under section 16 (1A) (i) read with section 7(i) and section 2(1A) of the prevention of Food Adulteration Act, took place allegedly in 1972.
There was inexplicable, inordinate delay in trial.
The case was tried in 1977 which, according to counsel, prejudiced the petitioner considerably.
We are aghast at the traumatic impact on criminal justice inflicted by delayed trials when human memory becomes faded and vivid testimony is withheld.
The present case is an instance in point.
We feel strongly that the trial courts in the country should ensure that, in the spirit of Article 21 of the Constitution, food adulteration cases, 5 which involve imprisonment, are tried expeditiously so that neither the prosecution nor the accused is prejudiced by unusual procrastination.
We express the hope that the High Court concerned will issue peremptory directions to trial Judges demanding expeditious disposal of such cases.
In the present case, prosecution evidence, as regards taking of samples, is perhaps not as good as it would have been had the trial been prompt.
We do not want forensic martyrdoms for prosecutions in food adulteration cases, thanks to tarred trials blamable on the judicial process.
The State Government has a duty to sanction the required courts in obedience to the mandate of Article 21 which implies judicial justice without undue delay.
Maybe, there is some grievance for the petitioner that he was disabled in defending himself properly, hampered by the lapse of five years, but unfortunately the point was not pressed before the High Court; and, we do not think it proper to investigate the substantiality of the prejudice.
As for the sentence, true that, in this case, it is not shown that the petitioner is a big merchant.
Perhaps he was a petty dealer and counsel represents that the trade has been wound up.
It is also submitted that the petitioner has served about three months out of the six months of imprisonment.
Having regard to the totality of circumstances, it is open to the petitioner to move the State Government to remit the remaining portion of the sentence, if so advised, and it would be for the Government to consider at all whether it should exercise its power of remission and its impact on society.
N.K.A. Petition dismissed.

summary:
HELD : The trial courts in the country should ensure that in the spirit of Article 21 of the Constitution, food adulteration cases which involve imprisonment are tried expeditiously so that neither the prosecution nor the accused is prejudiced by unusual judicial procrastination.
The High Court concerned should issue peremptory directions to the trial judges demanding expeditious disposal of cases.
The State Government has a duty to sanction the required courts in obedience to the mandate of Article 21 which implies judicial justice without undue delay.
[4H, 5A B] It would be for the State Government in the instant case to consider at all whether it should exercise its power of remission and its impact on the society.
[5D E]


judgement:
Civil Appeal No. 2317 of 1969.
From the Judgment and Order dated 29 8 1968 of the Punjab and Haryana High Court in Civil Writ No. 2713/68.
N. N. Keswani for the Appellant.
The Order of the Court was delivered by UNTWALIA, J.
In this appeal filed by certificate, several points have been urged by learned counsel for the appellant.
We do not consider it necessary either to state all the points or discuss them as none of them except one has got any substance.
The point of substance which in our opinion must succeed in this appeal is as to whether even on the face of the Notification issued under Section 4 of Land Acquisition Act, 1894 (hereinafter called the Act), an Order under Section 17(4) dispensing with the compliance with the provisions of Section 5A was validly made.
The paragraph of the Notification which incorporated 94 apparently the order exercising the power under Sub Section (4) of Section 17 of the Act reads as follows: "Further in exercise of the powers under the said Act, the Governor of Punjab is pleased to direct that action under Section 17 shall be taken in this case on the grounds of urgency and provisions of section 5A will not apply in regard to this acquisition.
" It is to be clearly understood that under Sub Section (4), the appropriate Government may direct that the provision of Section 5A shall not apply where in the opinion of the State Government, the provisions of Sub Section (1) or Sub Section(2) are applicable, otherwise not.
For making the provisions of Sub Section (1) applicable, two things must be satisfied that the land in respect of which the urgency provision is being applied is waste or arable and secondly that there is an urgency to proceed in the matter of taking immediate possession and so the right of the owner of the land for filing an objection under Section 5A should not be made available to him.
In the portion of the Notification which we have extracted above, it is neither mentioned that the land is waste or arable nor has it been stated that in the opinion of the Government, there was any urgency to take recourse to the provisions of Section 17 of the Act.
A direction to the Collector has been given to take action under Section 17 on the ground of urgency but this is not a legal and complete fulfillment of the requirement of the law.
It is to be remembered that the right of a person having any interest in the property to file an objection under Section 5A of the Act should not be interfered with in such a casual or cavalier manner as has been done in this case.
For the reasons stated above, we allow this appeal set aside the order of the High Court dismissing the appellant 's writ Petition, allow the writ Petition and strike down that portion of the Notification issued on 23 8 1967 under Section 4 of the Act which directed the exercise of power under Section 17.
The authorities, if so advised, may proceed further in the matter after giving an opportunity to the appellant of filing their objection under Section 5A. Since the other side has not appeared, there is no order as to costs.
N.V.K. Appeal allowed.

summary:
Allowing the appeal.
^ HELD: For making the provisions of section 17(1) applicable: (a) the land in respect of which the urgency provision is being applied should be waste or arable and (b) there should be an urgency for taking immediate possession requiring dispensation of the right of the owner for filing an objection under section 5A and this right should not be interfered in a casual or cavalier manner.
[94C, F] In the instant case the Notification under section 17(4) of the Act neither mentioned that the land is waste or arable nor that there was urgency to take recourse to the provisions of the Act.
[94D] The direction given to the Collector to take action under Section 17 on the ground of urgency is not a legal and complete fulfillment of the requirement of the law.