judgement:
Appeals Nos.
1661 68 of 1959.
Appeals by special leave from the judgment and decree dated April 15, 1955, of the former Hyderabad (now Andhra Pradesh) High Court in Reference Nos. 198 and 199 of 1953 and 19 of 1954.
A.V. Viswanatha Sastri and K. R. Choudhri, for the appellant.
K.N. Rajagopal Sastri and D. Gupta,, for the respondent.
July 17.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The appellant, Rajah Hid section V. Jagannath Rao, was the Jagirdar of Jatprole Samasthan in the former Hyderabad State.
In the year 1357 Fasli, the Income tax Act (1357 Fasli) was passed by the Legislature, to come into force on Azur 1, 1357 Fasli.
The present appeals, with special leave, concern the assessment of the appellant 's income to income tax and super tax under the Act of 1357 Fasli for the assessment years, 1357 Fasli and 1358 Fasli, corresponding to 850 the years, 1948 49 and 1949 50.
They are directed against a common judgment of the High Court of Hyderabad, by which certain questions of law referred by the Income tax Appellate Tribunal, Bombay, in the assessment of the present appellant and some others, were answered by the High Court of Hyderabad against the present appellant.
The appellant had submitted returns of his income for the two accounting years under protest.
According to him, the Income tax Act, 1357 Fasli was ultra vires the by legislature.
For the account year 1356 Fasli, corresponding to the assessment year, 1357 Fash, the appellant had urged that the Act could not affect the income of that year, because it came into force only from Azur 1, 1357 Fasli.
The appellant also claimed to deduct certain expenses (details of which will be given later) under as.
14(5)(a) and (b) of the Act.
These were the three matters on which the Income tax Appellate Tribunal framed the following three questions for the decision of the High Court : "1.
Whether the Hyderabad Income tax Act is ultra vires in so far as it seems to levy a tax on Jagirs and Samasthans ? 2.Whether the provision relating to the taxation of income of 1356 F in the Hyderabad Income tax Act is intra vires ? 3.Whether the sum of Rs. 14,390 and Rs. 38, 079 or a part thereof, could be allowed as revenue deduction under section 14(5)(a) or 14(5)(b) of the Hyderabad Income tax Act ?" As stated already, all the three questions were answered by the High Court against the appellant.
He obtained special leave from this Court on three separate petitions for special leave, on December 17, 1966, and April 9, 1957, and filed the present appeals.
851 The second question mentioned above is covered by the decisions of this Court in Union of India vs Madan Gopal Kabra (1) and Rajputana Mining Agencies Ltd. vs The Union of India and another (2) and was, therefore, rightly answered against the appellant.
Mr. A. V. Viswanatha Sastri, counsel for the appellant, conceded frankly that he had nothing to urge against the decision of the High Court on that question.
We shall, therefore, confine ourselves to the two remaining questions in these appeals.
It may be mentioned that the ,first question also arises in Civil Appeal No. 17 of 1961, and what we say here will govern the disposal pro tanto of that appeal also.
The contention of the appellant on the validity of the Act is this : The Act was passed by the Hyderabad Legislative Assembly and was assented to by His Exalted Highness, the Nizam.
Under the Hyderabad Legislative Assembly Ain, there was a prohibition on the introduction of certain kinds of bills in the Assembly.
The appellant relies upon sub sections
(8) and (9) of section 18 of the Ain, which in their English translation read as follows "18.
There shall not be introduced into, or moved in the Assembly,, any bill, or motion, or resolution, or question, or other proceedings relating, to or affecting the following matter: (8)The relation of His Exalted e Highness with the holders of Samasthanis and Jagirdars and with such other grantees as derive grants from sanads.
(9)The powers of His Exalted Highness over the present or future grants, whether they be in the form of land or cash.".
(1) ; (2) ; 852 These two sub sections deal with laws affecting the relations between the holders of Samasthans and JaGirs on the one hand, and His Exalted Highness the Nizam, on the other.
The Act in question imposes a tax and does not seek to affect the relations aforesaid.
It is a little difficult to read into the Income tax Act any encroachment upon the relations between the holders of Samasthans and Jagirs and the Nizam.
Even if the Income tax Act can be said to affect indirectly those relations, it is manifest that it was passed with the assent of the Ruler, which admittedly was given.
There have been a number of rulings of this Court on the powers of Rulers of Indian States to promulgate laws in their States in the exercise of their sovereignty and on the nature of their sovereignty.
Two such cases of this Court 'Considered the legislative powers of His Exalted Highness the Nizam, and in those cases, it was held that the legislative power of the Nizam was not subject to any limitations or control of any kind whatever.
The first of these cases, Ameer un Nissa Begum vs Mahboob Begum (1) dealt with a Firman issued by His Exalted Highness the Nizam, and.
in dealing with his powers, in general and his legislative powers, in particular, it was observed by this Court as follow: "It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers.
He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities.
The 'Firmans ' were expressions of the sovereign will of the Nizam and they were binding in the same way as (1) A.I.R. 1955 &C. 352. 853 any other law; nay, they would override all other laws which were in conflict with them.
So long as a particular 'Firman ' held the field, that alone would govern or regulate the rights of the parties concerned though it could be annulled or modified by a later 'Firman ' at any time that the Nizam willed.
" The same view was reaffirmed in the second case reported in Director of Endowments, Government of Hyderabad vs A kram Ali (1).
It is contended that a limitation on the powers of the Legislative Assembly in Hyderabad State was created by the Ain, which was, in essence the supreme law, and any bill introduced in contravention of the Ain was void ab initio.
According to the learned counsel for the appellant, a law which was void at its inception remained so, even if subsequently assented to by the Nizam.
If one were to think in terms of a legislature of limited jurisdiction, this might be true.
Laws are really commands embodying rules of conduct emanating from one whose will is sovereign, or, in other words, supreme.
Legislative Sovereignty must be found to uphold the laws.
It depends upon the ' Constitution of a particular State, where it resides.
It may not reside in a Ruler but in a legislature where the Ruler has surrendered or been made" to surrender his powers, as, for example, the King in Parliament in England, or it may reside in ' an absolute and sovereign Ruler, who has not parted with it, the legislature being merely his amanuensis.
In the latter case, the will of the Ruler expressed as a rule of conduct is the law, whether made by him directly or through his legislature.
The Ain itself derived its authority from the Nizam only, and the Nizam, as the supreme legislator, could frame a law in derogation of the Ain, which was his own creation.
The Ain was (1) A. I. R. 854 not a supreme law such as a Constitution, the limits imposed by which could not be exceeded even by the Nizam.
The Ain prohibited the, introduction of laws of a particular kind in the Assembly, and the Nizam could reject them as being in contravention of the Ain even if passed by the Assembly.
The position, however, was not the same when a law which the Nizam could refuse to accept was accepted by him.
As a supreme legislator, the Nizam could have written out the entire Income tax Act in his own hand writing and signed it; and it would have been as valid and binding as the Ain itself.
It made no difference if the law was passed by a body of men and was sent to the Nizam for his assent, because on his assent, the law was as effective as if made by the Nizam himself.
The Nizam could withhold his assent to a law contrary to the Ain if he chose; but once he assented to it.
, the law derived its vitality, not from the act of the Legislative Assembly but from the act of the Nizam.
It could not be questioned any more than a Firman issued by the Nizam.
The Income tax Act must, therefore, be regarded as binding upon those affected by its terms, and the question whether it could be introduced in the Legislative Assembly hardly arises.
It must be regarded as a law emanating from His Exalted Highness the Nizam, the supreme legislator in the State, whose laws promulgated in any manner were binding upon the subject.
See Madhaorao vs State of Madhya Bharat (1).
The first question was thus answered correctly by the High Court.
It remains to consider the third question.
in the assessment year 1357 Fasli, a sum of Rs. 14,390 was claimed as expenses under a. Act (5) (a) or s.14(5)(b) of the Hyderabad Income tax Act.
A sum of Rs. 38,079 was similarly claimed for the assessment year 1358 Fasli.
The sum of Rs. 14,390 has been (1) ; , 855, ,shown in the assessment year as spent on account of "domestic servants, drummers and other paraphernalia", which the Income tax, Officer treated as personal expenditure.
The sum 'of Rs. 38,079 for the following year consisted of these items (a) Stables and elephants Rs. 16,907 (b) Festivals and Jatras Rs. 789 (c) Charity and subscriptions Rs. 11,233 (d) Body guards Rs. 9,150 _______________ Rs. 38,079 _______________ The Income tax Appellate Tribunal allowed these expenses as being admissible under cls.
(a) and (b) of section 14(5).
No reasons were given by the Tribunal for coming to this conclusion.
The High Court answered the question against the assessee without advertence to the two clauses.
The reason given by the High Court was as follows : "The jagirdar, however anxious he be to maintain his dignity, cannot claim deductions of money so spent professedly unless there be orders in exercise of prerogative powers of the grantor authorising such expenditures.
For example, he may be authorised by the Sanad creating his tenure to maintain elephants or bodyguards.
These expenditures would then though personal, be necessary and legal, because of the constitutional position of the grantor when the tenure was created and con tinued.
But the statement of the case should show the legal basis upon which deductions are allowed.
If the assessee was entitled to maintain elephants, stables, paraphernalia etc.
, under the grants, he should have filed them before the Income tax authorities.
Evidently this has not been done; at any rate there is no mention of the fact in the statement of the case.
In the result, the answer to the question is in the negative," 856 The relevant provisions of the law may now be read.
Section 14 (5) as translated by Messrs Ramchandra Rao Kurtadikar and B. V. Subbarayudu reads as follows : "In respect of income from land revenue paid to the Jagirdar by the holder of any non Khalsa land in lieu of the use or possession thereof and in respect of any income derived by giving over Abkari trees for extracting sendhi or toddy and from "Baitbak 'which under proviso 2 and Explanation respectively of clause (4) of section 2, is deemed to be non agricultural income, such income, profits and gains shall be computed after making the following allowances : (a)All such expenses not being his private or personal expenses which the assessee may incur in relation to such land or the inhabitants thereof towards management or superintendence or on works of public welfare.
(b)Such necessary expenditure as the assessee may incur under any law.
(c)Five per cent of the income chargeable to tax towards necessary expenses.
" The Tribunal, however, pointed out that the English text published by Government Press, Hyderabad, was slightly different.
It reads as follows : "14 (5) The income from land revenue paid to jagirdar by the occupier of non Khalsa land for its use or possession, the income that arises from renting of trees for extraction of sendhi or toddy, the income from Abkari rental$ and the income which under the provi sions of Section 2 (4) is deemed to be ,non agricultural ' income, all such incomes, profits 857 and gains shall be computed after making the following allowances namely: (a)all such expenditure,, not being, in the natureof capital, private or personal expenditure, incurred by the assessee in connection with land or its inhabitants for administration or on works of general improvement and benefit ; (b)any compulsory expenditure incurred by such assessee under any law in force and (c)in respect of compulsory expenditure five per cent of the income subjected to tax." A literal translation of cl.
(a) made by us reads as follows " 'All such expenditure which the assessee makes in connection with such land or its inhabitants on administration or works of public welfare, which expenses.
do not include, his private or personal expenses.
" This shows that the official translation is accurate., and we shall refer to it only.
The question thus is whether the expenditure in respect of which deduction is, claimed can be described to be private or personal expenditure of the assessee, or in connection with land and its administration.
The High Court apparently thought that unless it ' was incumbent upon the jagirdar by reason of his Sanad to maintain bodyguards.
, elephants, etc., the expenses could not but be regarded as private or personal.
In our opinion the High Court put the burden of proof somewhat strictly upon the assessee.
The Tribunal, though it gave no reasons.
, held that the expenses were incurred in relation to the management.
The conclusion is based on some evidence.
The maintenance 858 of elephants, $tables, bodyguards, etc., is not entirely for the Jagirdar 's personal or private ends, and cannot be said to be wholly unrelated to the management of the Estate.
Such equipage is considered part and parcel of the administration of an estate, such as jagir.
Elephants, drummers and bodyguards are used on occasions for administ rative purposes, and even if these might be few and far between, the expenditure must be regarded as one incurred in connection with land and its administration.
The expenses over drummers (but not over domestic servants) in the first year, and over stables, elephants and bodyguards (but not over festivals and jatras or on charities and subscriptions) in the second year, were deductible.
These expenses fall within c 1.
(a) of section 14 (5) as expenditure in connection with land or its administration, and they amounted to Rs. 26,057 in the year 1358 Fasli.
For the year 1357 Fasli, the amount debatable to these items from Rs. 14,390 will have to be determined. ' The evidence before us is not sufficient to state the exact amount.
We set aside the answer of the High Court, and answer the third question in the affirmative, to the extent indicated here.
In view of the partial success in these appeals, the parties shall bear their own costs in this Court.
A appeals allowed in part.

summary:
The appellant who was a jagirdar in the former Hyderabad State was assessed to income tax and super tax for the assessment years, 1337 Fasli and 1358 Fasli, corresponding to the years, 1948 49 and 1949 50, under the provisions of the Hyderabad Income tax Act, 1357 Fasli, which was passed by the Hyderabad Legislative Assembly and came into force on Azur 1, 1357 Fasli.
The appellant challenged the validity of the assessment on the grounds(1) that under the Hyderabad Legislative Assembly Ain the Assembly was prohibited from introducing bills which dealt with laws affecting the relations between the holders of jagirs on the one hand and the Nizam on the other, that the provisions of the Act in so far as they seemed to levy a tax on jagirs amounted to an encroachment upon the relations between the jagirdars and the Nizam, and that the bill introduced in contravention of the Ain was, void ab initio, even though it had been assented to by the Nizam, (2)that the Act could not affect, in any case, the income for the account year 1356 Fasli, corresponding to the assessment year 1357 Fasli, because the Act came into ' force only from Aur 1,1357 Fasli, and (3) that the Income tax Officer erred in disallowing the claim for deduction of the amount spent on account of maintenance of elephants, stables, drummers,, bodyguards, etc., in connection with management of the jagir Estate, and in treating the amount as personal expenditure.
Held, (1) that the Hyderabad Income tax Act, 1357 Fasli, did not affect the relations between the holders of Jagirs and the Nizam, and that even if it could be said to affect indirectly these relations, the Act having been passed with the assent of the Nizam, was valid, and the question whether it could be introduced in the Legislative Assembly did not arise as it must be regarded as a law emanating from the Nizam, the supreme legislator in the State, whose laws promulgated in any manner binding upon the subject,.
849 Ameer un Nissa Begam vs Mahboob Begum, A. I. R. 1955 section C. 352, Director of Endowments, Government of Hyderabad vs Akram Ali, A. 1. R. and Madhaorao vs State of Madhya Bharat, ; , applied.
(2)that the income for the 1356 Fasli was rightly assessed tinder the provisions of the Act for the assessment year 1357 Fasli.
Union of India vs Madan Gopal Kabra, ; and Rajputana Mining Agencies Ltd. vs The Union of India, ; , followed.
(3)that the maintenance of elephants, stables, drummers, and bodyguards by the jagirdar was not entirely for his personal or private ends but must be considered part and parcel of the administration of the estate, and the expenditure for such maintenance must be regarded as one incurred in connection with land and its administration within the meaning of section 14(5)(a) of the Act.
It was accordingly deductible for purposes of income tax.


judgement:
Appeal No. 349 of 1959.
Appeal from the judgment and order dated February 1, 1957, of the Punjab High Court, in Civil Writ Application No. 385 of 1955.
B. K. Khanna and D. Gupta, for the appellants.
The respondent did not appear.
May 4.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by certificate is preferred against the order of the Punjab High Court dated November 9, 1956, setting aside the order of the Consolidation Officer and directing him to proceed with the matter in accordance with law.
The respondents are members of a joint Hindu family and are evacuees from Pakistan.
On March 3, 1950, in lieu of the lands left by the family in Pakistan, the Custodian of Evacuee Property allotted to the said.
family 11 standard acres and 9 units of Grade 'A ' land in Pati Kankra, Shahabad Estate in Tehsil Thanesar in Karnal District.
The said units were valued as equal to 123 standard kanals and 18 standard marlas of 'A ' Grade land.
The family took possession of the said land, and, it is alleged, made improvements thereon.
On July 28, 1954, the State Government issued a notification under section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter called the Act), declaring its intention to make a scheme for the consolidation of the holdings.
On April 30, 1955, a draft scheme was proposed by the Consolidation Officer and published indicating, inter alia, that the respondents ' family would be given 84 standard kanals consisting of 50 standard kanals and 7 standard marlas of 'A ' Grade land, and 34 standard kanals and I standard marla of 'B ' Grade land.
The lands proposed to be substituted for the lands already allotted on quasi permanent tenure to the respondents ' family are admittedly of a lesser value than the land allotted to them earlier.
The said consolidation was not made 714 in strict compliance with the provisions of the Act, but pursuant to administrative directions given to the Consolidation Officer by the State Government.
Broadly stated, under the said directions the Consolidation Officer was directed to take into consideration, for the purpose of consolidation, the number of acres held by the evacuee and not the actual valuation at site of the land allotted to him.
The objections filed by the respondents were rejected by the Consolidation Officer.
By an order dated August 6, 1958, the Settlement Commissioner confirmed the scheme pro pounded by the Consolidation Officer.
Meanwhile, the (44 of 1954) became law; it came into force on October 9, 1954, i.e., after the Estate had been notified for consolidation of holdings.
On March 24, 1955, the Central Government issued a notification under section 12 of the Displaced Persons Act (44 of 1954) acquiring all the evacuee properties to which that Act applied.
This notification was issued before the scheme of consolidation was confirmed by the Settlement Commissioner.
On February 23, 1956, the Central Government issued a sanad conferring proprietary rights on the respondents in respect of the lands allotted to them in 1950.
This sanad was issued after the order of the Settlement Commissioner confirming the scheme of consolidation.
On November 9, 1955, i.e., before the said sanad was issued to them, the respondents filed a petition in the High Court of Punjab under article 226 of the Constitution praying for the issue of an appropriate writ to quash the said scheme of consolidation.
The High Court by its final order dated February 1, 1957, allowed the said objection and issued a direction to the Consolidation Officer to proceed with the matter before him in accordance with law.
Mr. Khanna, learned counsel for the State, raised before us the following two points: (1) The respondents had no legal right to maintain the petition under article 226 of the Constitution.
And (2) the directions issued by the State Government were validly issued and, therefore, the Consolidation Officer was 715 within his rights to formulate the scheme on the basis of those instructions. ' Re.
The existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction of the court under article 226 of the Consti tution.
The right that can be enforced under article 226 of the Constitution shall ordinarily be the personal or individual right of the applicant.
It may be first considered whether the respondents had such a right on the date when they filed the petition under article 226 of the Constitution.
They filed the petition on November 9, 1955, i.e., after the Central Government issued the, notification acquiring all the evacuee properties and before it issued the sanad conferring proprietary rights on the respondents in respect of the lands allotted to them.
The nature of interest of a displaced person in the properties allotted to him under the evacuee law has been authoritatively decided by this Court in Amar Singh vs Custodian, Evacuee Property, Punjab (1).
There, Jagannadhadas, J., speaking for the Court, after an elaborate survey of the law on the subject, came to the conclusion that the interest of a quasi permanent allottee was not property within the meaning of article 19(1)(f) and article 31(2) of the Constitution.
But the learned Judge made it clear that, notwithstanding the said conclusion an allottee had a valuable right in the said interest.
The learned Judge stated the legal position in the following words: "In holding that quasi permanent allotment does not carry with it a fundamental right to property under the Constitution we are not to be supposed as denying or weakening the scope of the rights of the allottee.
These rights as recognized in the statutory rules are important and constitute the essential basis of a satisfactory rehabilitation and settle ment of displaced land holders.
Until such time as these land holders obtain sanads to the lands, these rights are entitled to zealous protection of the constituted authorities according to administrative rules and instructions binding on them, and of the (1) [1957] S.C.R. 801, 836. 716 courts by appropriate proceedings where there is usurpation of jurisdiction or abuse of exercise of statutory powers.
" It may be mentioned that the learned Judge in coming to the conclusion noticed all the relevant Acts on the subject, including the (44 of 1954) and particularly section 12 thereof.
The observations of this Court indicate that notwithstanding such notification an evacuee has a valuable right in the property allotted to him, and that the said right is entitled to the protection of the constituted authorities and the courts.
A perusal of the relevant provisions of Act 44 of 1954 demonstrates the correctness of the said observations.
Section 10.
Where any immovable property has been leased or allotted to a displaced person by the Custodian under the conditions published (a) by the notification of the Government of Punjab in the Department of Rehabilitation No. 4891 S or 4892 S, dated the 8th July, 1949; or (b) by the notification of the Government of Patiala and East Punjab States Union in the Department of Rehabilitation No. 8R or 9R, dated the 23rd July, 1949, and published in the Official Gazette of that State, dated the 7th August, 1949, and such property is acquired under the provisions of this Act and forms part of the compensation pool, the displaced person shall, so long as the property remains vested in the Central Government, continue in possession of such property on the same conditions on which he held the property immediately before the date of the acquisition, and the Central Government may, for the purpose of payment of compen sation to such displaced person, transfer to him such property on such terms and conditions as may be prescribed.
Section 12.
(1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such 717 persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.
A reference to r. 14(6) of the rules made under the , will also be useful in this context.
Tinder that rule, the Custodian has no power to make any order after July 22, 1952, cancelling or varying the allotments made, subject to certain exceptions with which we are not concerned here.
The result of these provisions is that under the , the respondents became quasi permanent allottees in respect of the land allotted to them in 1950.
After July 22, 1952, the Custodian ceased to have any authority to cancel or modify the said allotment.
After the notification issued by the Government under section 12 of the Act, so long as the property remained vested in the Central Government, the respondents continued to be in possession of the property on the same conditions on which they held the property immediately before the date of acquisition, that is, under a quasi permanent tenure.
The contention that on the issue of the said notification, the respondents ceased to have any interest in the said land is without any foundation.
It is, therefore, clear that on the date when the respondents filed the petition in the High Court they had a very valuable, right in the properties allotted to them which entitled them to ask the High Court to give them relief under article 226 of the Constitution.
That apart, on February 23, 1956, the Central Government issued a sanad to the respondents conferring an absolute right on them in respect of the said properties.
Though the sanad was issued subsequent to the filing of the petition, it was before the petition came to be disposed of by the High Court.
At the time the High Court disposed of the petition, the limited right of the respondents had blossomed 91 718 into a full fledged property right.
In the circumstances of the case, the High Court was fully justified in taking note of that fact.
From whatever perspective this case is looked at, it is obvious that the respondents hate sufficient interest in the property to sustain their petition under article 226 of the Constitution.
Re (2).
The second point has absolutely no legs to stand upon.
The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, was enacted, in the words of the long title annexed to the Act, to, provide for compulsory consolidation of ' agricultural holdings and for the. prevention of fragmentation of agricultural holdings in the State of Punjab.
Under section 15 of the said Act, the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding.
There is no provision in the Act empowering the Consolidation Officer to deprive a person of any part of his property without allotting to him property of equal value or paying him compensation if he is allotted a holding of less market value than that of his original holding.
In the present case it is not disputed that while the respondents were allotted 123 kanals and 18 marlas of 'A ' Grade land on a quasi permanent basis by the Custodian and later confirmed by the Central Government, the consolidation proceedings gave him only 50 kanal 8 and 7 marlas of 'A ' Grade land, and 34 kanals and 1 marla of 'B ' Grade land.
The area given under the consolidation pro ceedings is admittedly of less value than that of the holding allotted to the respondents by the Custodian, and the Consolidation Officer has not paid any compensation for the deficiency.
This unjust situation in which the respondents have been placed is sought to be supported by learned counsel for the State on the basis of the instructions given to the Consolidation Officer by the State Government.
There is no provision in the Act empowering the State Government to 719 give any such instructions to the Consolidation Officer; nor does any provision of the Act confer on the State Government any power to make rules or issue notifications to deprive owners of land of any part thereof or to direct the Consolidation Officer as to how he should exercise his statutory duties.
Any such rule would be repugnant to the provisions of the Act.
That apart, no such statutory rule empowering the State Government to issue such instructions has been placed before us.
Both here as well as in the High Court, learned counsel appearing for the State has not been able to sustain the validity of such instructions on any legal basis.
The order of the appropriate officers confirming the 'scheme on the basis of the said instructions was obviously illegal and, therefore, was rightly set aside by the High Court.
In the result, the, appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondents, a joint Hindu family and evacuees from Pakistan, were allotted certain lands by the Custodian of Evacuee Property.
A draft scheme for consolidation of holdings was framed and published by the Consolidation Officer in pursuance of a notification by the State Government under section 14 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948.
The scheme under the directions of the State Government and contrary to the Act substituted lands of a lesser value for those already allotted to the respondents.
Objections filed by the respondents were rejected by the Consolidation Officer and the scheme was confirmed by the Settlement Commissioner.
Before the confirmation, the Central Govern ment by a notification under section 12 of the , acquired all evacuee properties and after the said confirmation issued a sand conferring proprietary rights of the said lands on the respondents.
The respondents bad moved the High Court under article 226 of the Constitution before the issue of the sanad but the matter was finally disposed of by the High Court thereafter by setting aside the said scheme and directing the Consolidation Officer to dispose of the matter according to law.
Held, that the notification issued by the Central Government under section 12 of the , did not put an end to the rights the respondents had in the lands originally allotted to them by the Custodian and they had the right to move the High Court under article 226 of the Constitution.
Sections 10 and 12 of the said Act read with r. 14(6) of the Rules framed under the , made it amply clear that the respondents held a quasi permanent tenure in the said lands and as such had a valuable right therein.
Such right continued while they remained in possession and the lands remained vested in the Central Government and with the grant of the sanad the limited right they had in the lands became a full fledged right of property.
Amar Singh vs Custodian, Evacuee Property, Punjab, [1957] S.C.R. 801, referred to.
The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, did not empower the Consolidation Officer to take away an allottee 's lands without giving him other lands of equal value or paying compensation nor did the Act empower the State Government either to do so in any way or to direct the Consolidation Officer as to how he should exercise his powers thereunder.
Since, in the instant case, the respondents ' lands had admittedly been substituted by lands of less value and no compensation had been paid to them, the High Court was right in setting aside the order confirming the scheme. 713


judgement:
Appeals Nos. 509 and 510 of 1960.
Appeals by special leave from the judgment and order dated October 26, 1956, of the former Madhya Bharat High Court Indore.
in Civil Misc.
Cases Nos. 26 of 54 and 48 of 55.
A. V. Viswanatha Sastri, C. B. Agarwala and A. G. Ratna parkhi, for the appellants.
R.J. Bhave and 1.
N. Shroff, for the respon.
dents.
July 26.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
,The appellant, the Indore Iron and Steel Registered Stock holders ' Association (Private) Ltd., is a 'registered Association whose constituent members carry on business generally in fabricated iron and steel material and more particularly in iron sheets, plain or corrugated, bars, rods, light and heavy structurals, nails, joints, wire nails and all kinds and varieties of wirer, and 926 pipes.
This business is carried on by the constituent members of the appellant at Indore and Ratlam at which places they have their registered offices.
The State of Madhya Bharat, by its Act No. 30 of 1950, imposed sales tax in the territory of Madhya Bharat on the sales of goods therein specified with effect from May 1, 1950, and under the provisions of the said Act the Commissioner of Sales Tax, Madhya Bharat, and the, Sales Tax Officer, Indore, who are respondents 2 and 3, were appointed authorities for the assessment of tax leviable under the Act and for its recovery in their respective areas.
Section 3 of the Act is the charging section and it provides for the incidence of taxation, Section 4, which deals with the application of the Act exemption and exclusion, provides by Sub section
(2) that no tax shall be payable under the Act on the sale of goods specified in the second column of Sch. 1 on conditions mentioned in column 3 of the Schedule.
" 'Iron and steel" appears in, Sch. 1 as item 39.
Section 5 prescribes the rate of tax and it provides that the tax will be recoverable as notified from time to time by the Government by publication in the official gazette subject to the condition that it shall not be less than Rs. 1 9 0 per cent or more than 61 per cent.
Section 4(3) authorises the Government by notification to modify Sch. 1 from time to time.
Similarly section 5(2) authorises the Government while notifying the tax payable by a dealer to notify the goods and the point of their sale at which the tax is payable.
It is by virtue of this delegated power that the State 'Of Madhya Bharat, respondent 1 purported to issue notifications to which we will presently refer.
On May 22, 1950.
a notification was issued under section 5(2) specifying serially the articles taxed, 'the stage of sale by traders in Madhya Bharat on which the tax is levied and the rate of sales tax per cent.
Item 27 in the list dealt with goods manu 927 factured from things (wastu) except gold and silver or goods manufactured from more than one metal (except circles and sheets of copper, brass and aluminium).
The notifications provided that the tax had to be paid by the producer or importer at that rate of Rs. 3 2 0 per cent.
Meanwhile article 286(3) of the Constitution had come into force.
This Article as it then stood provided that no law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community, shall have effect unless it has been reserved for the consideration of the President and has received his assent.
Thereafter Parliament by law proceeded to make the declaration as contemplated by this Article by section 2 of Act 52 of 1952 [Essential Goods (Declaration and Regulation of Tax on sale or purchase) Act] (hereafter called the Act) which was passed on August 9, 1952.
Section 2 of the Act provides that the goods specified in the Schedule are hereby declared to be essential for the life of the community.
Item 14 in the Schedule refers to ,iron and steel '.
Thus, as a result of these provisions in on and steel came to be declared as essential for the life of the community within the meaning of article 286(3) as from August 9, 1952.
Respondent 1 thereupon purported to give effect to the provisions of article 286(3) and section 2 of the Act by issuing two notifications on October 24, 1953.
By the first notification it was provided that no tax shall be payable enter alia on the sale of iron and steel. 'Iron and steel ' was placed at item 39 in the said Schedule.
The other notification issued on the same day by item 9 in the list provided for the sale of the articles specified in the said item.
This item reads thus: 928 Every kind of metal including copper brass, manganese, zinc, lead, mercury, bronze, nickel, aluminium, tin and their ore form (ex cluding iron, steel, gold and silver) and goods prepared any metal other than gold and silver, utensils and wires, goods prepared from one ore more than one metal, utensils and wires which also includes mangars, metal pieces and scraps, cutting and lantern, gas, stove and type letters (excluding circles and sheets of copper, bra,% and aluminium).
" It is common ground that under this notification the articles in which the constituents of the appellant deal would be liable to pay the sales.
tax in question.
After this notification was issued the appellant wrote to respondent 3 claiming exemption from payment of sales tax for the goods and articles in which its constituent members are dealing but this plea was rejected by the said respondent, and the constituent members of the appellant were called upon to pay sales tax each in respect of their individual turnover.
It was under these circumstances that the appellant filed two writ petitions under article 226 of the Constitution in the High Court of Madhva Bharat at Indore in which it challenged the validity of the assessment orders passed for the two years 1953 54 and 1954 55 respectively (Petitions Nos. 26 of 1954 and 48 of 1955).
The appellant 's case was that the articles in which the constituent members of the appellant dealt were covered by the parliamentary declaration contained in section 2 of the Act and as such were no longer liable to pay sales tax.
This plea was resisted by the respondents.
It was urged on their behalf that the notification issued by respondent 1 on October 24, 1953 was valid, and item 27 in the list notified brought the articles in question within the mischief of the Sales Tax Act and so the petitioners were not entitled to any writ as claimed by them.
The High Court has upheld the plea 929 raised by the respondents, rejected the contentions urged by the appellant and has dismissed the ' writ petitions filed by it.
It is against these orders of dismissal passed by the High Court in the two writ petitions filed by the appellant that the present appeals, No. 509 and 510 of 1960, have been brought to this Court by special leave granted by this Court.
Two points have been urged before us by Mr. Viswanatha Sastri, on behalf of the appellant, in support of these appeals.
It is urged that section 2 of the Act which contains the parliamentary declaration as contemplated by article 286(3) covers iron and steel as understood in their commercial sense.
The words "iron and steel" should not be interpreted in their narrow dictionary meaning.
They do not mean iron and steel as they come out after smelting but they mean articles exclusively made from iron and steel in which the identity of iron and steel has not been lost.
In other words, iron and steel in the context mean all articles made exclusively of iron and steel in which steel merchants normally and generally trade.
It is further argued that in construing the words " 'iron and steel" we must bear in mind the fact that the object, of article 286(3) is to safeguard the 'interest of the consumer in regard to the articles which Parliament may declare to be essential for the life of the community, and it is suggested that if the narrow dictionary meaning of the words is adopted it would not serve the said object and purpose of the constitutional provision.
Mr. Sastri has also relied on what he has described as the legislative history which indicates that the said words should receive a broad and wide construction in the context.
In that connection he has invited our attention to the provisions of ' section 2(d), section 3.
and the categories specified in the Second Schedule to the Iron and Steel 930 (Control of Production and Distribution) Order, 1941.
, These categories, according to Mr. Sastri unmistakably support his argument that the expression ",iron and steel" as used in the order was obviously used in a very wide and broad sense.
Similarly, he has referred to the provisions of section 2(a)(vii) of Act XXIV of 1946 [The Essential Supplies (Temporary Powers) Act, 1946] and section 2(a)(vi) of Act 10 of 1955 (The ).
His contention is that it would be legitimate for the Court to consider the legislative history in the matter of the use of these words and their denotation, and that the legislative history to which he has referred supports his argument that the words ',iron and steel" should receive a very liberal interpretation in determining the effect of the provisions of section 2 of the Act.
The High Court Was not impressed by this argument.
It has held that the words "iron and steel" as used in Entry 14 to Sch.
1 of the Act do not include within their ambit articles made of iron and steel such as those with which we are concerned in the present proceedings.
Mr. Sastri seriously questions the correctness of this conclusion.
It is clear that even if we were to accept Mr. Sastri 's contention in regard to the denotation of the words ",iron and steel" as used by the relevant provisions of the Act it would still have to be shown by the appellant that the impugned notification is invalid because it contravenes the provisions of article 286(3).
In other words, in order to succeed in the present appeals the appellant has to prove two facts, (1) that the words ""iron and steel" in respect of which the requisite parliamentary declaration has been made by section 2 of the Act include commodities like those with which we are concerned, and (2) that the impugned notification contravenes article 286(3).
It would thus be seen that unless the appellant succeeds in both these contentions the appeals are bound to fail.
Since 931 we have reached the conclusion that even on the assumption that the parliamentary declaration made by the relevant provision of the Act includes commodities with which we are concerned is correct it does not follow that the impugned notification contravened article 286(3) we do not propose to deal with the first point raised by Mr. Sastri.
In dealing with these appeals we would assume in hip, favour that the words "iron and steel" should receive the broad and wide interpretation for which he contends.
Assuming then that the articles in which the constituents of the appellant deal are covered by the parliamentary declaration made by the Act does it follow that the impugned notification contravenes article 286(3) ? That takes us to the provisions of article 286(3) which we have already cited.
This provision can be successfully invoked only if three conditions are satisfied.
The first condition is that the impugned law must be one which is made by the Legislature of a State which obviously means a State which came into existence under and after the Constitution ; and that shows that the impugned law must be a law made by the Legislature of a State subsequent to the Constitution.
This condition is satisfied in the present case because the impugned notification has been issued by virtue of the authority delegated to respondent 1 by Act 30 of 1950 and this Act was passed after the Constitution was adopted.
Let us then consider the second condition which is also in the nature of a condition precedent.
This condition requires that the impugned law must impose or authorise the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community.
There can be little doubt that this condition postulates that at the time when the impugned law is passed there is a [1962] preexisting declaration made by Parliament in regard to the essential character of a commodity.
The material words in respect of this condition are that the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community.
Therefore, if the parliamentary declaration follows the impugned enactment it cannot retrospectively affect the validity of the said enactment.
Article 286(3) contemplates that if in the face of an existing parliamentary declaration about the essential character of a commodity the Legislature of a State purports to impose or authorise the imposition of a tax on such commodity the enactment would be invalid unless the law made by the Legislature has been reserved for the consideration of the President and has received his assent.
The third condition emphasises that the impugned law must have been passed subsequent to the Constitution, because unless the relevant provision of the Constitution for the reservation of the law for the consideration of the President has come into force this condition cannot apply.
This requirement obviously means that the office of the President must have come into existence and so this condition can become operative only after the Constitution has come into force.
Therefore, the third condition supports the conclusion which arises from the words used in the first condition itself.
Thus the position is that Act 30 of 1950 satisfies the first condition but not the second.
It is conceded that the relevant provisions of the M. B. Act of 1950 authorise the, imposition of tax on the commodities in question and that the impugned notification is otherwise consistent with, and justified by, the said provision of the Act.
Now, if the said M. B. Act authorises the imposition of tax on the goods in question and the said goods were not declared by Parliament by law to be 933 essential for the life of the community before the date of the said: Act its validity cannot be challenged on the ground that it was not reserved for the consideration of the President and ha not received his assent.
It is only when all the conditions prescribed by article 286(3) are present that the validity of the impugned law can be successfully challenged.
The question about the construction of article 286(3) has been considered by this Court on two occasions.
In Sardar Soma Singh vs The State of Pepsu and Union of India(,), section R. Das, J., as he then was, who spoke for the Court has observed that it is quite clear that section 3 of Act 52 of 1952 does not affect the Ordinance there challenged for the said Ordinance was not made after the commencement of the Act, and that article 286(3) contemplates a law which can be but has not been reserved for the consideration of the ' President and has not received his assent.
This position clearly points to post constitutional law for there can be no question of an existing law continued by article 372 being reserved for the consideration of the President for receiving his assent.
This decision supports the conclusion that the law contemplated by the first condition specified in article 286(3) must be post constitutional law.
To the same effect are the observations made in the majority judgment of this Court in Firm of A. Gowrishankar vs Sales Tax Officer, Secunderabad (2).
In this connection it would be relevant to refer to section 3 of the Act itself.
It provides that no law made after the commencement of this Act by Legislature of a State imposing or authorising the imposition of t tax on the sale or purchase of any goods declared by this Act to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his (1) ; (2) A.I.R. 1958 S.C. 883.
934 assent.
This provision also shows that the declaration made by the Act was intended to be prospective in operation and it would affect laws made after the commencement of the Act, and that clearly must mean that if a law had been passed prior to the commencement of the Act and it authorised the imposition of a tax on the sale or purchase of certain commodities its validity cannot be challenged on the ground that the said commodities have been subsequently declared by the Act to be essential for the life of the community.
The impugned notification with which we are concerned and the Act under which it has been issued are thus outside the purview of section 3 of the Act.
That in substance is the finding made by the High Court on the second contention raised before it by the appellant.
In our opinion, the conclusion of the High Court on t is point is right.
In the result the appeals fail and are dismissed with costs.
Appeals dismissed.

summary:
The constituent members of the appellant Association, who carried on business in iron and steel articles were assessed to sales tax for the years 1953 54 and 1954 55 under a notification dated October 24, 1953, issued by the State of Madhya Bharat under section 5(2) of the Madhya Bharat Sales Tax Act, Samvat 2007, (Act No. 30 of 1950).
The appellant moved the High Court under article 226 of the Constitution challenging the validity of the assessment on the ground that the said articles were covered by the declaration made by Parliament by section 2 of the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952, that iron and steel were essential commodities within the meaning of article 286(3) of the Constitution which was operative from August 9, 1952.
The High Court found against the appellant.
Held, that even assuming that the words "iron and steel" in Entry 14 of the Schedule to the Act were comprehensive enough to include articles made of iron and steel, that would not necessarily render the notification invalid under article 286(3) of the Constitution.
Article 286(3), as it stood before the Constitution (Sixth Amendment) Act, 1956, could be successfully invoked only if three conditions were satisfied, (1) that the impugned legisla.
tion was one by the Legislature of a State, constituted under the Constitution, (2) that it was subsequent to the declaration made by the Parliament as to the essential character of the commodity and (3) that it could be, but was not, reserved for the President 's consideration and assent.
It was obvious, therefore, that a subsequent Parliamentary 925 declaration could not affect the validity of an enactment retrospectively.
Sardar Soma Singh vs The State of Pepsu and Union of India, ; and Firm of A. 'Gowrishankar vs Sales Tax Officer, Secunderabad, A. I. R. , referred to.
Although the Art, tinder which the impugned notification was made, satisfied the first condition, it did not satisfy the second or the third and, consequently, its validity could not be questioned under article 286(3) of the Constitution.
Held, further, that it was apparent from section 3 of the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952, that if a law had been passed prior to the commencement of the Act authorising the imposition of a tax its validity could not be challenged on the ground that the said commodity was subsequently declared by the Act to be essential for the life of the community.
The impugned notification and the State Act under which it was made were, therefore, outside the purview of section 3 of the Act.


judgement:
Appeal No. 401 of 1957.
Appeal from the judgment and decree dated June 15, 1954 of the Assam High Court in First Appeal No. 23 of 1950.
D. N. Mukherjee, for the Appellants.
B. Sen, P. K. Chatterjee and P. K. Bose, for the Respondent.
1961, May 5.
DAS GUPTA, J.
This appeal is from the judgment and decree of the High Court of Judicature in Assam affirming the judgment and decree made by the Subordinate Judge of Upper Assam Districts, in a suit brought by the respondent Shyamsundar Tea Co., Ltd., against the present appellants.
The 804 appellant companies are joint owners of Steamer service between Dibrugrah and Calcutta.
The main service is along the Brahmputra River.
Desang is one of the tributaries of the Brahmputra and meets the main stream at Desangmukh Ghat.
The plaintiff 's case in the plaint was that the defendant companies as common carriers received goods at Dillibari Ghat which is situated on the Desang about 70 miles up stream from Desangmukh Ghat for carriage "therefrom by boats to Desangmukh Ghat and then by their steamers to different stations on payment of freight".
It is further the plaintiff case that on September 10, 1946, the plaintiff company delivered 120 chests of tea to the defendants at Dillibari Ghat for carrying therefrom and delivery of the same at Kidderpore in Calcutta.
The boat carrying these.
tea chests sank; the tea chests were lost and could not be salvaged.
The accident was, according to the plaintiff, due to the negligence on the part of the defendant companies ' agents and servants.
On this ground of negligence as also on the ground that the companies as common carriers were liable to make good the loss whether or not there was negligence, the plaintiff claimed the sum of Rs. 1,6,224 12 0 is compensation for the loss.
The defendants raised a four fold defence.
The first contention was that there was no delivery to the defendants at all at Dillibari Ghat and the defendants did not undertake any carriage of the goods from Dillibari Ghat.
Secondly, it was said that the sinking of the boat was not due, to any negligence on the part of the defendants ' servants.
The third contention that the defendants were not a common carrier in respect of carriage of goods from Dillibari Ghat to Desang.
Lastly it was pleaded that in any case the conditions of the Forwarding Note which was executed by the plaintiff company completely absolved the defendants from all liability.
805 The trial Court held on a consideration of the evidence that the goods were delivered by the plaintiff to the defendants at Dillibari Ghat for carriage from there to Kidderpore, Calcutta.
It also held that the sinking of the boat was due to negligence on the part of the defendants ' servants.
Accordingly, without coming to a clear conclusion whether the defendants were common carriers or not in respect of this contract of carriage the Trial Court gave the plaintiff a decree for the sum as claimed.
On appeal the High Court of Assam affirmed this decree, though not for quite the same reasons.
The High Court agreed with the Trial Courts ' conclusion.
that there was delivery of the goods to the defendants by the plaintiff at Dillibari Ghat for carriage therefrom.
On the question whether the sinking of the boat was due to the negligence of the defendants ' servants the learned Judges of the High Court did not however accept the Trial Court 's view.
Their opinion, it appears, was that the plaintiff had not been able to establish the case of negligence on the part of the defendant 's servants.
The High Court however came to the conclusion that the defendants undertook this carriage from Dillibari Ghat in their capacity as common carriers and so the question whether there ,was negligence or not was irrelevant.
The High Court also found that the terms and conditions of the Forwarding Note did not in any way absolve the defendants from liability.
Accordingly, the High Court affirmed the decree made by the Trial Court.
It may be mentioned that though on both the points, viz., whether the delivery of the goods at Dillibari was to the defendants and whether the defendants were, for such carrying from Dillibari, common carrier, one of the learned judges, Ram Labhaya J. appears to have, been hesitant in coming to his conclusion but ultimately on both these points he agreed with the Chief Justice and 806 the agreed conclusions of both the learned judges were, as we have mentioned above.
The High Court gave a certificate under article 133(1)(c) of the Constitution and on that certificate the present appeal has been brought.
On behalf of the appellants Mr. Mukherjee has J. tried to persuade us to examine the findings of the Courts below that the plaintiff delivered the tea chests in question to the defendants at, Dillibari Ghat.
He tried to show that it was Meeneill and Company who used to run this boat service from Dillibari to Desangmukh and that the defendants had nothing to do with this business.
Apart from the fact that such a case that Macneill and Company used to carry on an independent boat service business to Desangmukh was not made in the plaint, we are satisfied that there is nothing that would justify us to depart from the well established practice of this Court not to interfere with eoncurrent findings of facts, of the Trial Court and the first court of appeal.
We may however indicate that having been taken through the evidence we have no hesitation in stating our agreement with that finding, ' viz., that the plaintiff delivered the tea chests in question to the defendants at Dillibari Ghat for carriage therefrom.
We see no reason also to interfere with the High Court 's findings that the plaintiff has not been able to establish its case of any negligence on the part of the defendants ' agents.
This brings us to the main question in controversy, viz., whether the appellants were common carriers of goods between Dillibari Ghat and Calcutta.
The appellants admit that they are common carriers between Desangmukh Station and all other places on its steamer routes.
They contend however that that does not make them common carrier between Dillibari Ghat or other 'places not in its steamer service route, to any places on the steamer service route. 'The respondent ' secase, on the other 807 hand is that once it is established that the defendants are common carriers within the meaning of the definition in the Carriers Act, they must be held in law to be common carriers whenever they undertake carriage of goods, unless with respect to the particular carriage they show definitely that they did not act as common carriers.
The Carriers Act, 1865 (Act III of 1.865) defines "common carrier" in these words " 'Common carrier ' denotes a person, other than the Government, engaged in the business or transporting for hire property from place to place, by land or inland navigation, for all persons indiscriminately." This definition is based on the English common law as regards the common carriers.
The common law in England developed from quite early times to make the profession of common carriers a kind of public service ; or as stated by Lord Holt in an early case "a public trust".
(Vide Lane vs Cotton) (1).
It is where such a public trust has been undertaken as distinct from t mere private.
contract that a carrier ceases to be a private carrier but becomes a public carrier or as English law calls "a common carrier.
" Explaining the distinction between a mere carrier and a common carrier, Alderson B, said in Ingate and Another vs Christis(2) "Everybody who undertakes to carry for anyone who asks him, is a common carrier.
The criterion is, whether he carries for parti cular persons only, or whether he carries for everyone.
If a man holds himself out to do it for everyone who asks him, he is a common carrier ; but if he does not do it for everyone, but carries for you and me only, that is a matter of special contract." (1) (2) ; The question in any particular case whether the carrier was a common carrier or a private carrier has therefore to be decided on the ascertainment of what he publicly professes.
This profession, it need hardly be mentioned may be by public notice or by actual indiscriminate carrying of goods.
It is also clear that the profession to carry goods indis criminately may be limited to particular goods or to particular routes or even is to two or more specified points.
In Johnson vs Midland Rly., Co.(3) the question arose whether the Railway Company were as common carriers bound to carry coal from Melton Mowbray to Oakham, Parke B, with whom Alderson B, Rolfe, B, and Platt B, agreed stated the law thus: "A person may profess to carry a particular description of goods only, for instance, cattle or dry goods, in which case he could not be compelled to carry any other kind of goods; or he may limit his obligation to carrying from one place to another, as from Manchester to London, and then he would not be bound to carry to or from intermediate places.
" Turning to the facts of the case before him the learned Baron stated: "Now, if the defendants stand in the situation of carriers at common law, they are not liable, because it does not appear in evidence that they ever had been a public profession by them that they would carry coals from Melton Mowbray to Oakham." Ultimately the learned Judge recorded the conclusion thus: "I think that the circumstances of their having undertaken to be carriers does not (3) ; , 809 bind them to carry from or to each place on the line, or every description of goods.
" This is goods authority for the appellants ' contention that the more fact that they are engaged in the transport of goods from certain places on their Steamer Service to other places does not necessarily justify the conclusion that whatever carriage they may undertake elsewhere is also done as a common carrier.
It is therefore necessary to examine the nature of the public profession made by the appellants with regard to the carriage of goods from Dillibari Ghat.
It is true, as pointed out by the appellants ' counsel that there is no public notice, as there is in respect of places on the Steamer Service route, with regard to carriage from Dillibari Ghat.
It is legitimate however to consider in this connection the usual conduct of the appellant companies in connection with carriage from Dillibari Ghat and other surrounding circumstances.
It has to be noticed that tea gardens which supply the bulk of the companies ' cargo traffic for its despatch steamers find it convenient and economical to bring, their goods to the nearest point on some river and to enter into contracts of carriage of goods from these points to places on the Steamer Service routes.
It appears clear from the evidence adduced in this case that for such carriage the tea gardens make requests to the appellants to arrange for carriage to the Steamer station and the companies invariably comply with such requests.
Their own witness, the Joint Agent at Dibrugarh, has said in this connection "We always try to give facilities to the interior tea gardens and to all customers whenever they require any help.
" He has not said a single word as to requests" of any customers for arrangements of carriage from Dillibari Ghat having been refused.
Indeed, when one remembers that it is by getting the custom from these interior tea gardens, not all of which are situated 'on or , near the main stream of the 810 Brahmputra that the companies are able to get sufficient cargo for their steamers, it was only natural that they would accept goods for carriage from places away from the main stream as indiscriminately as they do for carriage from stations on the main steamer route.
The defendants ' witness Mohammad Abdulla who is their Ghat Supervisor at Desangmukh has stated that "the Steamer Company bears expenses of the clearance of the rivers to make them navigable.
" Such conduct is consistent only with the case that the companies are anxious to receive whatever cargo they get for carriage from places on the river Desang and other tributaries to stations on the main steamer route for further carriage on the steamer route.
The service on these tributaries can therefore be reasonably described as a "feeder service" for the main route and the admitted public profession for indiscriminate carriage of the goods of every person on the main route cannot but attach to the service on these "feeder routes" also.
Against all this, Mr. Mukherjee pressed for our consideration three circumstances: (i) that the rate for carriage from Dillibari was not a fixed rate; (ii) that there was no regular service but boats were supplied only on requisition; and (iii) that the carriage was made without profit.
Nothing turns on the third fact assuming that it has been established that carriage from Dillibari to Desangmukh is made without profit.
If this is actually the case it is obvious that the defendants deliberately do this as a part of their business so as to attract good business on the main steamer service route where they hope to make sufficient profits to make up for the loss in feeder service.
The circumstance that there was no regular 811 service but boats were supplied only on requisition is also wholly irrelevant for ascertaining whether there was a public profession to carry indiscriminately.
Even if there was a regular service, there might not be a profession to carry indiscriminately ; whereas even if there was such a profession it would not necessarily happen that regular service should be maintained.
If, as the evidence appears to establish, the companies were ready to supply boats whenever requested, without picking and choosing, that would be sufficient public profession to act as a common carrier.
Nor is the fact that there was no fixed rate for carriage of goods from Dillibari to Desangmukh of any assistance to the appellants ' contention that they were not common carriers, for the law does not require that a common carrier must have one and the same rate for all goods.
The law was stated thus by Blackburn J. in G. W. Ry.
Co., vs Sutton (4) : "There was nothing in the common law to hinder a carrier from carrying for favoured individuals at an unreasonably low rate, or even gratis.
All that the law required was, that he should"not charge any more than was reasonable." "The requirement of equality of charges", as pointed out by Prof. Otto Kahn Fre und in the law of Carriage by Inland Transport (3rd Edition) at P. 190, "in so far as it existed, was entirely the creation of statute while the common law regards inequality as nothing more than possible evidence of 'unreasonableness.
" That there was no fixed charge for carriage from Dillibari can not therefore be any reason to think that appellants were not common carriers in respect carriage from Dillibari.
(4) at.
812 The next argument of Mr. Mukherjee was almost an argument of despair.
He points out that there was a Forwarding Note (exhibit B) executed by the plaintiff in respect of the journey from Desangmukh to Calcutta and there was a special contract there limiting the carriers ' liability.
If the appellants were really common carriers in respect of the carriage from Dillibari, is it conceivable, he asks, that there would not be a similar Forwarding Note covering the carriage from Dillibari to Desangmukh? That however is a totally wrong approach to the problem.
A common carrier may restrict his liability by special contract. 'But the absence of a special contract cannot show that he is not a common carrier.
The fact that the appellants did not,take care to make a special contract in respect of carriage from Dillibari is therefore wholly irrelevant.
On a consideration of the entire evidence therefore we are of opinion that the appellants did profess by their.
conduct, even if not by any public notice, that they would carry goods indiscriminately for all those who ask for such carriage from Dillibari to various places on their main steamer route.
They were thus common carriers in respect of the carriage of the plaintiff 's goods from Dillibari.
A last contention was raised, again, on the Forwarding Note.
It was urged.
that in any case this should be interpreted as covering the carriage from Dillibari also.
In terms the Forwarding Note was limited to the contract of carriage as from Desangmukh to Calcutta.
By no method of construction of the document can it be extended to the journey ' from Dillibari.
All the contentions raised in the appeal therefore fail.
The appeal is accordinly dismissed with costs.
Appeal dismissed.

summary:
The question whether a carrier is a common carrier or not has to be decided on its public profession and such profession may be either by public notice or by conduct.
It is immaterial if the carrying is limited to particular goods or particular routes or between specified points.
Lane vs Cotton12 Mod. 474; Ingate, vs
Christis, (1950) 3 Car.
and K. 61 and Jhonson vs Midland Rly., Co. ; , referred to.
803 Consequently, where, as in the instant case, the steamer companies, which were by public profession common carriers in the main stream and invariably agreed, when requested, to arranged for carriage of goods by boats from stations situated on its tributary to the steamer station, accepting goods as indiscriminately as in the steamer service, were sued for loss of goods in the tributary and the High Court, while reversing the finding of the trial court as to the negligence of the companies, affirmed its decree against them on the ground that they were common carriers.
Held, that the decision of the High Court was correct and must be affirmed.
There could be no doubt that the service in the tributary was in the nature of a feeder service to the main route and the public profession made in respect of the latter attached to it.
Held, further, that it was of no consequence that the feeder service yielded no profits.
Nor was regularity or otherwise of the feeder service a relevant consideration.
Law does not require that a common carrier must have fixed rate for carriage of all goods and the absence of such fixed rate in the feeder service was wholly immaterial.