judgement:
Appeal (Criminal Appeal No. 15 of 1950) from a judgment and order of the High Court of Madras dated 19th August, 1947, in Criminal Revision Petitions Nos. 1017 and 1018 of 1946 rejecting an applica tion to set aside the conviction and sentence of the appel lant by the Sessions Judge of Guntur under clauses 22 and 27 of the Motor Spirit Rationing Order, 1941.
Special leave was 323 granted by the Privy Council and the, appeal was originally registered as Privy Council Appeal No. 14 of 1949.
The case was subsequently transferred to the Supreme Court.
K. Bhimasankaran (Durga Bai, with him) for the appel lant.
R. Ganapathi Iyer, for the respondent.
March 19.
The judgment of the Court was deliv ered by FAZL ALI J.
This appeal, which has been preferred after obtaining special leave to appeal from the Privy Council, is confined to the single question whether mens rea is neces sary to constitute an offence under section 81 of the De fence of India Rules.
The facts of the case are briefly these.
The appellant is the licensee of two petrol filling stations Nos. 552 and 276 at Guntur but is a resident of Chirala, 40 miles away.
He is a Presidency First Class Bench Magistrate at Chirala and manages what has been described as a vast business at several places.
Venkatarayudu and Dadda Pichayya, his employees, were respectively in charge of the aforesaid filling stations.
In 1946, the appellant and his two employ ees were tried before the Sub Divisional Magistrate of Guntur in respect of offences under the Motor Spirit Ration ing Order, 1941, and were convicted in each of the cases on the 18th July, 1946.
In the first case, the charges against the appellant and the employee in charge of the pump in question therein were that they on the 27th June, 1945, at Guntur, supplied petrol to a cars without taking coupons, in contravention of clause 22 read with clause 5 of the said Order promulgated under rule 81 (2) of the Defence of India Rules and that they, on the same day and at the same place, accepted coupons relating to two other cars in advance without supplying petrol, in contravention of clause 27 of the Order.
The charges in the second case were that the appellant and the employee in the second pump similarly supplied during the period of 24 hours from 6 a.m. of the 28th June, 1945, petrol to 4 motor vehicles 324 without taking coupons, in contravention of clause 22 read with clause 5, accepted coupons of three other vehicles in advance without issuing petrol, in contravention of clause 27, and supplied petrol to two other vehicles against cou pons but without making necessary endorsements and particu lars on the reverse of the coupons infringing thereby clause 27A of the said Order.
The Sub Divisional Magistrate, Guntur, found the appellant and the employee concerned in each case guilty of the charges brought against them and sentenced the appellant (with whose case alone we are now concerned) to a fine of Rs. 30 on the first count an d Rs. 20 on the second in the first case with simple imprisonment for one week in default, and to a fine of Rs. 20 on each of the three counts in the second case with one week 's impris onment in default.
The plea of the appellant before the Magistrate was that he was the presiding 1st Class Bench Magistrate at Chirala, that he was carrying on business in petrol at various centres through servants and he had issued instructions to them not to deviate from the rules under any circumstances and that he could not be made liable for transgression of the rules committed by his employees.
The Magistrate however overruled the plea and convicted the appellant as stated above.
The appellant thereafter pre ferred an appeal to the Sessions Judge at Guntur, who, while setting aside the conviction of the appellant on the second count in each case, confirmed the conviction and sentence in respect of the other charges, on the 9th September, 1946.
This was confirmed in revision by the High Court at Madras on the 19th August, 1947.
Thereupon, the appellant applied to the Privy Council for special leave which was granted on the 9th July, 1948, limited to the single question whether mens rea is necessary to constitute an offence under rule 81 of the Defence of India Rules.
The question to be decided in this appeal arises upon the plea taken by the appellant.
, which has been already referred to, and the assumption on which the courts below have proceeded in dealing with the case.
The plea of the appellant that he was not present at 325 Guntur when the alleged offences were committed has not been negatived by the lower courts, but they have held that he was nevertheless liable, as the question of mens rea was not relevant to the offences with which the appellant was charged.
This view is set out very clearly in the following passage which may be quoted from the judgment of the trial Magistrate: "It is argued on behalf of accused 1 that he is not a resident of Guntur and that he has no knowledge of any infringement committed by accused 2.
If any breach of the rules is committed by either proprietor or his servant, both are guilty whether they had the knowledge of the breach or not.
The question of mens rea will, of course, affect the measure of punishment but it cannot affect the conviction (vide .
" Before deciding the question as to how far mens rea is material to conviction for the offences with which the appellant is charged, it is necessary to refer to the rele vant provisions of the Defence of India Rules and the Motor Spirit Rationing Order, 1941.
Rule 81(2) of the Defence of India Rules empowers the Central or the Provincial Govern ment to provide by order, in certain circumstances, for regulating amongst other matters, distribution, disposal, use or consumption of articles or things and for requiring articles or things kept for sale to be sold either generally or to specified persons or classes of persons or in speci fied circumstances.
The Central Government in pursuance of the authority thus conferred made the Motor Spirit Ration ing Order, 1941, for "securing the defence of British India, the efficient prosecution of the war and for maintaining supplies and services essential to the life of the communi ty.
" Clause 2(d) of the Order defines "dealer" as meaning a supplier carrying on the business of supplying motor spirit as a retail business and includes a person having charge of a supply of motor spirit controlled by Government from which any person is furnished with motor spirit for private use.
Sub clause (m) defines "supplier" as meaning a person carry ing on the business of supplying motor 326 spirit.
Clause 5, which is the next relevant provision, runs thus : "Motor spirit required for any vehicle not covered by clause 3 or clause 4 shall be furnished or acquired only against the surrender to a supplier at the time of supply of valid ordinary coupons or of a valid supplementary coupon and only in accordance with any conditions or instructions appearing on or attached to the coupons.
" Clause 22 lays down: "No person shall furnish or acquire a supply of motor spirit otherwise than in accordance with the provisions contained in this order.
"Clause 27 is to the following effect:" No person shall surrender to a supplier and no supplier shall accept special receipts or coupons at a time other than the time at which the supply of motor spirit authorised by the special receipts or coupons or acknowl edged by the receipts is furnished." Clause 27A runs as follows : "When motor spirit is furnished against the surrender of one or more coupons, the supplier shall immediately endorse, or cause to be endorsed, on each coupon so surren dered the registration or other identifying mark of the vehicle to which the motor spirit is furnished.
" Rule 81(4)of the Defence of India Rules, which provides for the imposition of a penalty, says that "if any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both.
" It is contended on behalf of the respondent that though ordinarily a person should not be held liable for the crimi nal acts of another and no person can be charged with the commission of an offence unless a particular.
intent or knowledge is found to be.
present, mens tea is not of the essence of the offences with which we are concerned in this case and the appellant must be held liable for the acts of his employees.
The question raised in this appeal was con sidered by the Privy 327 Council in Srinivas Mall Bairolia vs King Emperor(1).
In that case, the appellants before the Privy Council were convicted under the Defence of India Rules relating to the control of prices and were sentenced to terms of imprison ment.
The 1st appellant was acting as Salt Agent for part of the district of Darbhanga.
He had been appointed to this office by the District Magistrate, and it was his duty to sell to licensed retail dealers the supplies of salt which were allocated by the Central Government to his part of Dharbanga district.
The second appellant was employed by the first appellant and had been entrusted with the duty of allotting the appropriate quantity of salt to each retail dealer, and noting on the buyer 's licence the quantity which he had bought and received.
By rule 81 (2) of the Defence of India Rules, the Provincial Governments were empowered to make orders to provide for controlling the prices at which articles or things of any description whatsoever might be sold.
The Defence of India Act, 1939, under which the rules were framed, empowered the Provincial Governments to dele gate the exercise of their powers to certain officers, and the power to provide by order for controlling the prices at which various articles (among them salt) might be sold, had been delegated to the District Magistrates.
Rule 81 (4) of the Rules provided for the punishment of persons guilty of contravening any such orders.
Both the appellants were jointly charged with having sold salt on 3 days in July, 1943, to three named traders, in each case at a price ex ceeding the maximum price which had been fixed by order of the District Magistrate.
The 1st appellant was also sepa rately charged, in respect of the same sales, with having abetted the 2nd appellant 's contravention of the order.
The trial Magistrate acquitted the 1st appellant of the substan tive offences but convicted him on the 3 charges of abet ting.
The Sessions Judge and the High Court in revision confirmed the convictions.
The Privy Council ultimately upheld the conviction of the appellants on the merits but with regard to the view taken by the High Court that even if the first appellant was (1) I.L.R. 26 Pat.
46. 328 not proved to have known of the unlawful acts of the second appellant, he was still liable on the ground that ' 'where there is an absolute prohibition and no question of mens rea arises, the master is criminally liable for the acts of the servant", their Lordships observed as follows: "With due respect to the High Court, their Lordships think it necessary to express their dissent from this view.
They see no ground for saying that offences against those of the Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind.
See the judgment of Wright J. in Sherras vs De Rutzen(1).
Offences which are within that class are usually of a comparatively minor character, and it would be a surprising result of this delegated legislation if a person who was morally inno cent of blame could be held vicariously liable for a serv ant 's crime and so punishable ' with imprisonment for a term which may extend to three years. ' Their Lordships agree with the view which was recently expressed by the Lord Chief Justice of England, when he said: ' It is in my opinion of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless the statute, either clearly or by necessary implica tion rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind: Brend vs Wood(2) '" In our opinion, the view of the law as propounded by the Privy Council is the correct view, and, applying it to the present case, it is difficult to hold the appellant guilty of the offence under clause 22 read with clause 5 of the Motor Spirit Rationing Order, 1941.
The language of clause 22 does not lend support to the contention that even an innocent master will be criminally liable for an act of his servant.
This clause has already been quoted, but, to make the point clear, it may be stated that it provides that no person shall furnish . motor spirit otherwise than in accordance (1) , 921.
(2) (1946) 110 J.P. 317, 318 329 with the provisions contained in the Order.
The clause is not aimed specifically against a supplier, but is general in its language, and will hit the individual person, whether he be the supplier or not, who contravenes the provision.
The language of the clause also suggests that only the person who furnishes motor spirit contrary to the provisions of the Order will be affected by the contravention.
In the course of the arguments, reference was made on behalf of the appellant to the decision of the Bombay High Court in Isak Solomon Macmull vs Emperor(1) which is a case relating to the contravention of clause 22 of the Motor Spirit Rationing Order.
In that case, the learned Chief Justice, who delivered the judgment, referred to the well established rule that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the defendant should not be held guilty of an offence under the criminal law unless he has a guilty mind.
Relying upon this rule, he held that where a servant sells petrol to a bogus customer in the absence of coupons m contravention of the Motor Spirit Rationing Order, and the master is not present at the time nor has he any knowledge of the supply of petrol by the servants to the bogus custom er, the master cannot be held to be vicariously liable for the act of the servant.
In our opinion, this decision is correct and is directly applicable to the present case.
We have yet to deal with the third charge in the second case, which relates to the infringement of clause 27A of the Motor Spirit Rationing Order.
That clause, as already stat ed, makes it incumbent upon the supplier to endorse, or cause to be endorsed, the registration or other identifying mark of the vehicle to which the motor spirit is furnished.
The substance of the charge on which the appellant has been convicted is that these particulars were not endorsed on several coupons against which petrol had been supplied.
Here again, the main contention put forward on behalf of the (1) A.I.R. 1948 Bom.
43 330 appellant was that the appellant cannot be held guilty inasmuch as the default in question was committed not by him personally, but by his servants.
Having regard to the language of the clause, however, this contention cannot be accepted.
Clause 27A, as we have already seen, throws the responsibility for making the necessary endorsement on the supplier.
The definition of the word 'supplier ' in the Act has already been quoted, and there can be no doubt that if clause 27A is contravened, a person who comes within the definition of the word 'supplier ' must be held guilty of the contravention.
The object of this clause clearly is that the supplier of petrol should set up a complete machinery to ensure that the necessary endorsements are made on the coupons against which petrol is supplied.
It is conceivable that in many cases the default will be committed by the servants of the supplier, who are in charge of the petrol pump, but that fact by itself will not exonerate the suppli er from liability.
In Mousell Brothers vs London and North Western Railway( '), Viscount Reading C.J., dealing with a case under the Railways Clauses Consolidation Act, 1845, observed as follows : "Prima facie, then, a master is not to be made criminal ly responsible for the acts of his servant to which the master is not a party.
But it may be the intention of the Legislature, in order to guard against the happening of the forbidden thing, to impose a liability upon a principal even though he does not know of, and is not party to, the forbid den act done by his servant.
Many statutes are passed with this object.
Acts done by the servant of the licensed holder of licensed premises render the licensed holder in some instances liable, even though the act was done by his serv ant without the knowledge of the master.
Under the Food and Drugs Acts there are again instances well known in these Courts where the master is made responsible, even though he knows nothing of the act done by his servant, and he may be fined or rendered amenable to the penalty enjoined by the law.
In those [1) [1917] 2 K.B.D. 836 at 844.
331 cases the Legislature absolutely forbids the act and makes the principal liable without a mens rea.
" In the same case, Atkin J. expressed the same view in these words : "I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants.
To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be per formed, and the person upon whom the penalty is imposed.
If authority for this is necessary it will be found in the judgment of Bowen L.J. in Reg.
vs Tylor(1). ' ' In Mullins vs Collins(2), the servant of a licensed victualler having knowingly supplied liquor to a constable on duty without the authority of his superior officer, it was held that the licensed victualler was liable to be convicted although he had no knowledge of the act of his servant.
In dealing with the case, Blackburn J. observed thus: "If we hold that there must be a personal knowledge in the licensed person, we should make the enactment of no effect.
" There are many other cases in England in which the same view has been enunciated, and some of them have been col lected and classified in the judgment of Wright J. in Sher ras vs De Rutzen(3), The principle laid down in these cases has been followed in several cases in this country also.
In this view, the appeal is allowed in part, and while the conviction and sentence imposed on the (1) (3)[1895] IQB.
918,922.
(2) [1874] L.,R. 9 Q. B. 292 332 appellant on the first charge in both the cases are quashed, the conviction and sentence on the third charge in the second case are affirmed.
Appeal allowed in part.

dataset_name: IN-Abs

summary:
Unless a statute either clearly or by necessary implica tion rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind.
Clauses 22 and 25 of the Motor Spirit Rationing Order, 1941, read with the Defence of India Rules, 1939, do not rule out the necessity of mens rea.
Therefore, where the employees of the licensee of a petrol filling station supply petrol to a car owner without taking coupons and thus act in contravention of the provisions of the said clauses, the licensee, who was not present when the wrongful act was done and had no knowledge of it, could not be convicted for contravention of the said clauses under r. 81 (4) of the Defence of India Rules, 1939.
Clause 27 of the said Order is however differently worded and imposes a duty on the supplier to endorse or cause to be endorsed the registration or other identifying mark of the vehicle to which petrol is furnished and if these particulars are not endorsed by his employees on the petrol coupons against which petrol is supplied the supplier would be liable even if he had no knowledge of the wrongful act of his employees.
Srinivas Mall Bairolia vs King Emperor (I.L.R. 26 Pat.
46, P.C.) and Isak Solomon Macmull vs Emperor (A.I.R. referred to.


judgement:
Civil Appeal No. 903 of 1976.
Appeal from the Judgment and Order dated the 15 7 1976 of the Orissa High Court in OJ.C No. 698 of 1976.
G. Rath, Advocate General, Orissa, R.K. Mehta for the Appellants.
Vepa Parthasarthy and C.S. Rao for Respondents.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is by the State of Orissa represented by the Secretary, Revenue Department, against the judgment of a Bench of the Orissa High Court on a cer tificate of fitness granted by it.
The respondent herein is a land holder whose ceiling surplus was determined by the Revenue Officer under section 43 of the Orissa Land Reforms Act, 1960, as amended by Act 13 of 1965 and subsequently by Act 29 of 1976.
The Revenue Officer rejected the plea of the respondent that there was a partition between him and his sons and determined the surplus extent as 12.08 standard acres.
The respondent preferred an appeal before the Sub Divisional Officer and the Sub Divisional Officer confirmed the order of the Revenue Officer and dismissed the appeal Against the order of the appellate authority the respondent filed a revision before the Additional District Magistrate, Gan jam.
The Additional District Magistrate held that the appellate orders trader section 44 were final and that no revision lay to him.
The respondent thereupon filed a petition under Articles 226 and 227 of the Constitution challenging the order of the Additional District Magistrate rejecting the. revision petition.
A Bench of the Orissa High Court by an order dated 15th July, 1976, allowed the writ petition holding that the Additional District Magis trate had powers to revise the order of the appellate au thority passed under section 44 by virtue of the powers conferred on him under section 59 of the Act.
The High Court came to this conclusion that a revision was entertain able tinder section 59 by the Additional District Magistrate even before the amendment introduced by Orissa Act 29 of 1976, the details of which will be referred to later.
The only question that arises in this appeal is whether an order passed by the appellate authority under section 44 which has become 9 502 SCI/77 558 final under section 44(2) is capable of revision by the Collector under section 59 before the amendment of the Act in 1976.
Section 44 runs as follows : "44.
(1) On the termination of the proceedings under Section 43, the Revenue Officer shall by order confirm the draft statement with such alterations or amendments as may have been made therein under the said Section.
(2) An appeal against the order of the Revenue Officer under 'sub section (1 ) con firming the statement if presented within thirty days from the date of the order shall lie to the prescribed authority and subject to the results of such appeal, if any, the orders of the Revenue Officer shall be final." Under section 44(1) the Revenue Officer confirms the draft statement and under section 44(2) an appeal lies to the prescribed authority against the order under sub section (1) and subject to results of such appeal, if any, order of the Revenue Officer shall be final.
Section 58 provides a right of appeal to any person aggrieved by an order passed under any of the sections enumerated in sub section.
As the decision in this case will depend upon the construction that is put upon section 59 we extract section 59(1) and (2) in full.
Revision: (1 ) The Collector may revise any order passed in appeal by any officer below the rank of a Collector under this Act and the Board of Revenue may revise any order passed by the Collector under this Act and the period of limitation for such revision shall be as may be prescribed.
(2) For the purposes of sub section (1) the Collector or the Board of Revenue as the case may be may suo motu or on application of either party or any interested person call for and examine the record of any matter in respect of any proceedings under this Act as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed thereon and if in any case if appears that any such decision or order shall be modified, annulled, reversed or remitted for reconsideration, the Collector or Board of Revenue as the case may be, may consider accordingly.
" Sub section ( 1 ) provides that the Collector may revise any order passed in appeal by any officer below the rank of a Collector under this Act.
It also empowers the Board of Revenue to revise an order passed by the Collector under the Act.
Sub section (2) enables the collector or the Board of Revenue suo motu or on the application of the party con cerned call for and examine the record in respect of any proceedings under the Act and modify, annual, reverse or remit for reconsideration such a decision to the lower authority.
The section as if stands does not put any re striction on the power of revision by the Collector or the Board of Revenue for it states that the Collector or the Board of Revenue may revise any order passed under this Act which would 559 include an order passed under section 44(2).
Again sub section (2) of section 59 provides that the Collector or the Board of Revenue may examine the record of any matter in respect of any proceedings under the Act which would include the proceedings under section 44(2).
The submission of the learned counsel for the appellant is that the power of revision under section 59 is restricted to an appeal that is disposed of under section 58 and is not available against an order passed under section 44(2).
The learned counsel very strongly relied on the wording of section 44(2) which provides that the order of the Revenue Officer shall be final subject to the result of an appeal provided under section 44(2) and therefore submits that no other relief is available to the aggrieved party.
The learned counsel in contrast referred us to section 58 where the order of the lower authority is not stated to be final subject to the result of the appeal, As no finality is provided for orders passed on appeal under section 58, the submission was that a revision under section 59 is available for those orders but orders passed under section 44(2) are final and they are not subject to revision under section 59.
There is no doubt that section 44(1) provides that the order of the Revenue Officer shall be final subject to the result of an appeal under section 44(2) while no such final ity is mentioned in the case of an appeal under section 58.
But this cannot conclude the matter for the powers of revi sion conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Act and sub section (2) empowers the Collector and the Board of Revenue to set aside any irregu larity in respect of any proceedings under this Act.
As the power of revision is not restricted we are unable to accept the contention of the learned counsel that because of the wording of section 44(2) providing.
that the order of the Revenue Officer subject to the result of the appeal would .be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59.
We do not find any conflict between the two sections and the provision as to finality under section 44(2) is provided for so that in the absence of the aggrieved party proceeding further in the matter the consequences of the vesting of surplus lands under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded with.
The learned counsel drew our attention to the amendment to the Orissa Act by Act 29 of 1976.
The Orissa Land Reforms (2nd Amendment) Act ', 1975, and submitted that the amendments introduced to section 44, 45 and 59 would make it dear that the legislature understood that the sections as they stood before the amendment did not enable the Collector to exercise revisional jurisdiction over orders passed by the appellate authority under section 44(2) of the Act.
By the amending Act.
section 44, sub sections (2) and (3) are amended.
Sub section (2) of section 44 as it originally stood provided that subject to the result of such appeal, if any, the orders of the Revenue Officer shall be final and sub section (3) provided that the draft statement as con firmed or as modified in appeal shall be final and con 560 clusive.
By the amendment sub section (2) is recast and sub section (3) provides that the draft statement as con firmed or as modified in appeal on revision shall be final and conclusive.
The amendment specifically provides for a revision.
The amended sub section (1) of section 59 pro vides that on an application by party aggrieved by any order passed in an appeal under any provision of this Act filed within the prescribed period, the prescribed authority may revise such order.
Though the amendment to section 44(3) makes it clear that a right to revision is provided for orders passed under section 44(2), we do not think that this could mean that section 44(2) as it originally stood did not provide for power of revision to the Collector under section 59.
In our opinion, amendment does not make any difference.
The learned counsel for the appellant submitted that section 44(3) is in the nature of a special provision and should be construed as an exception to section 59 on the principle of harmonious construction.
In support of this plea the learned counsel referred to the decision in The J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U.P. & Ors.
In construing the provisions of clause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legisla tive intention is that every part of the statute should have effect, and a construction which defeats the intention of the rule making authority must be avoided.
This decision does not help the appellant for in our view in applying the rule of harmonious construction with a view to give effect to the intention o(the legislature the court will not be justified in putting a construction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue.
It may be noted that the Act is of exproprietory nature and the determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer.
In such circumstances, it is only 13roper to presume that the legislature i,tended that any error or irregularity should.
be rectified by higher authorities like the Collector and the Board of Revenue.
In our view it will be in conformity with the intention of the legislature to hold that section 59 confers a power of revision of an order passed under section 44(2) of the Act.
The learned counsel next referred to a decision of this Court in The Bengal Immunity Company Limited vs The State of Bihar and Others.(2) The rule of construction is stated at p. 791 in the following terms by Venkatarama Ayyar ,J. speaking for the Court : "It is a cardinal rule of construction that when there are in a Statute two provi sions which are in conflict with each other such that both of them cannot 'stand, they should, if possible.
be so interpreted that effect can be given to both, and that a con struction which renders either of them inoper ative and useless should not be adopted except in the last resort.
This is what is known as the rule of harmonious construction.
One application of this rule is that when there 561 is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprised therein.
" Construing section 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the above deci sion.
We agree with the view taken by the Orissa High Court that the language of section 59(1) is wide enough to enable the Collector to revise any order including an appellate order under section 44 of the Act.
In the result the appeal is dismissed with costs.
S.R. Appeal dismissed.

summary:
Under Section 43 of the Orissa Land Reforms Act, the Revenue Officer determines the ceiling surplus and on the termination of the proceedings thereunder, the Revenue Officer u/s 44(1) confirms the draft statement; u/s 44(2) an appeal lies to the prescribed authority against the order under sub section (1) and subject to results of such appeal, if any, order of the Revenue Officer shall be final.
Sec tion 58 provides a right of appeal to any person aggrieved by an order passed under any of the Sections enumerated in subsection (1).
Sub section (1) of section 59 provides that the Collector may revise any order passed in appeal by any officer below the rank of a Collector under this Act.
Section 59(1) also empowers the Board of Revenue to revise any order passed by the Collector.
Sub section (2) enables the Collector or the Board of Revenue sue motu or on the application of the party concerned call for and examine the record in respect of any proceedings under the Act and modify, annual reverse or remit for reconsideration.
In the proceedings u/s 38 of the Act the plea of the respondent landlord that there was a partition between him and his sons was rejected by the Revenue Officer who deter mined the surplus extent as 12.08 standard acres.
The appeal preferred before the Sub Divisional Officer having failed, the respondent filed a revision before the Additional District Magistrate.
The Additional Magistrate held that the appellate orders u/s 44 are final and that no revision lay to him.
The writ petition filed against this order filed by the respondent was allowed by the Orissa High Court by its order dated 15 7 1976 holding that the Additional Magistrate had powers to revise an order of the appellate authority passed u/s 44 by virtue of the powers conferred on him under section 59of the Act.
Dismissing the appeal by certificate, the Court, HELD: (i) The language of section 59(1) of the Orissa Land Reforms Act is wide enough to enable the Collector to revise any order including an appellate order under section 44 of the Act.
[561 B] (ii) In applying the rule of harmonious construction with a view to give effect to the intention of the legisla ture the court will not be justified in putting a construc tion which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue.
[560E] In the instant case, the Act is of expropratory nature and the determination of the excess lands is done by the Revenue Officer.
The legislature intended that any error or irregularity should be rectified by higher authorities like the Collector and the Board of Revenue.
[560E] J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U.P. & Ors. ; held not applicable.
The Bengal Immunity Company Ltd. vs The State of Bihar & Ors.
[1955] 2 S.C R. 603 referred to.
(iii) It cannot be said that there is any conflict between section 44(1) and 8.
58 inasmuch as section 44(1) provides that the order of the Revenue Officer shall be final, sub ject to the result of appeal u/s 44(2), while no such final ity 557 is mentioned in the case of an appeal u/s 58.
The provision as to finality u/s 44(2) is provided for so that in the absence of the aggrieved party proceeding further in the matter, the consequences of the vesting of surplus lands u/s 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded with.
[559 D F] (iv) The amendment to 8.
44(3) by the Amendment Act of 1975 making it clear that a right to revision is provided for orders passed u/s 44(2) does not make any difference.
The amendment could not mean that section 44(2) as it originally stood did not provide for power of revision to the Collec tor ' u/s 59.
[560 A B]


judgement:
ivil Appeal No. 796 of 1977.
V. Ramana Reddy and M.L. Varma for the Appellant.
P.P. Rao and G.N. Rao for Respondent 1 3.
P. Ramachandra Reddy, Advocate General and A.P.B. Par thasarathi for Respondent No. 4.
The Judgment of the Court was delivered by KIRSHANA IYER, J.
Nationalisation of road transport service is of strategic significance to the country 's devel opment and new legal issues arise as private operators, threatened with elimination, battle against such schemes.
One such obstacle to the proposed nationalisation of the route Nellore Ramapuram by the Andhra Pradesh Government is the subject matter of this appeal by certificate, the High Court having considered it substantial and novel enough to qualify under Article 133 of the Constitution.
The point raised is short, the order under appeal brief, but the problem is thorny, with extra territorial overtones and anomies in application.
Can a route, whose termini lie within .the same State but which traverses in its course one or more other States, be designated as inter state route ? If yes, then the exercise in nationalisation proposed by the respondent State cannot materialise into an 'approved scheme ' unless as desiderated by the proviso to Section 68D(3) of the (hereinafter re ferred to as 'M. V. Act '), the previous approval of the Central Government is secured.
Here, admittedly, no such approval has been obtained and the notified route does pass over a short distance of about 564 8 km.
through Tamil Nadu.
The route Nellore Ramapuram was, according to counsel for the existing private operator, an inter state route and non compliance with Section 68D(3) of M.V. Act aborted the nationalisation.
The counter submis sion by the State which appealed to the.
High Court was that the decisive test turned on whether both the termini fell within the same State and it did in this case, and so no question of inter state route arose.
At the first flush, an inter state route may be of two categories, either connecting two states or traversing two or more states.
Black 's Legal Dictionary considers inter state to mean 'Between two or more states; between places or persons in different states; concerning or affecting two or more states politically or territorially.
And that accords with commonsense.
The 'termini test ' as presented by coun sel for the State, may lead to strange results, fatal to federal ideas.
A route which originates in Srinagar, runs down South to Kanya Kumari and rises North to end again in Kashmir, completing a Bharat darshan, cannot sensibly be called an intrastate one, without doing gross violence to language, geography and federalism.
And in the absence of a statutory definition of inter state route, non violence to English and conformance to commensense dictate the adoption of the conventional meaning that if a route traverses more than one state it is inter state.
The statutory sensitivity to one State permitting stage carriages from within its territory into another is reflect ed in Section 63(1) and (4).
68D(3) proviso and Section 20 of the Road Transport Corporation Act, 1950.
We are skirt ing the constitutional question of extraterritorial powers but are confining ourselves to a mere interpretation of the provisions of the Act.
'Route ' is defined in Section 2(28A) to mean a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another.
The point is that it is not a notional line 'as the crow flies ' but the actual 'highway as a motor vehicle travels from one terminus to another.
The inference is inevitable that a route is transformed into an interstate one, if the highway it covers passes through more than one State.
This easy breakthrough is seemingly obstructed by two rulings of this Court relied on by counsel for the State, although the High Court while granting the certificate, felt that these decisions did not really cover the case on hand.
Khazan Singh(1) dealt with a case where the termini of the concerned routes were located in different states and so, by any test, were inter state routes.
There, in passing and not as ratio of the case, an observation fell from the Court: "An inter state route is one of which one of the termini falls in one State and the other in another State.
" Undoubtedly, where the termini fall in different states the route is inter state.
But that does not exclude other categories of inter state routes such as where it crosses a State other than the originating State (1) [1974] (2)S.C.R. 562 565 although gets back into it later.
If the territory of more than one State is covered, even if both the termini eventu ally fail within the same state, the route is inter, not intra state.
Ordinarily not invariably the 'two termini ' test is a working solution, not an inflexible formula.
Aswathanarayan vs State (1) had something to say on inter state route: "An inter State route is one in 'which one of the termini is in one State and the other in another State.
In the present case both the termini are in one State.
So it does not deal with inter State routes at all.
It is urged that part of the, scheme covers roads which continue beyond the State and connect various points in the State of Mysore with other States.
Even if that is so that does not make the scheme one connected with inter State,routes, for a road is different from a route.
For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States.
But any portion of it within a State or even within a District or a sub division can be a route for purposes of stage carriages or goods vehicles.
That would not make such a route a part of an inter State route even though it lies on a road which runs through many States.
The criterion is to see whether the two termini of the route are in the same state or not.
If they are in the same State, the route is not an interState route and the proviso to section 68 D(3) would not be applicable.
The termini in the present case being within the State of Mysore, the scheme does not deal with inter State routes at all, and the contention on this head must be rejectcd." (emphasis supplied).
The facts and discussion bear out abundantly that there is nothing in the ruling to suggest that even if a route traverses territory of another State it is none the less an intra State route if the points of beginning and ending fall within one State.
It is a fallacy so to construe that decision.
What is repelled in that case is the contention that if a high way run through many States, any portion of that high way which is picked out for running a bus service as a route, should also be deemed to be inter state for the only reason that such a route (though its entire length falls within a single State) overlaps a road which crosses many States.
The very definition of route in Section 2(28 A) is sufficient to extinguish that argument and this Court rightly, if we may so with respect, rejected it.
We cannot confuse between road and route.
If the whole of the route lies within a single State it is intra state and not inter state, even though the road over which the route lies runs beyond the borders of that single State as national highways do.
In Abdul Khader Saheb(2) a totally untenable submission was put forward and unhesitatingly turned down that if the nationalised route fell within a single State it should nevertheless be regarded as interState route for some mysti cal reason, viz., that it overlaps a longer route which is admittedly an inter State route.
It is elementary that (1) [1955] (I) S.C.R. 87 at pp.
100 1Ol.
(2) ; 566 there can be inter state routes which run into or through more than one State.
A part of that long route may itself be a separate route and may fall wholly within a single State in which case the former may be inter state while the latter will be an intra state route.
In Abdulkhader 's (1) case the Court observed: ".
The Bellary scheme provides for nationalisation of an intra State route and not an inter State route and the aforesaid provision can have no applicability.
If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter State Route.
It is sought to be argued from this that even if Bellary Chintakunta route which is shown as item 34 in Bellary Scheme has been nationalised it does not make the scheme one connected with inter State route.
Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amrit sar and passes through many Sates and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route part of an inter State route even though it lies on the road which runs through many States.
The above argument can possibly have no validity so far as the present case is con cerned.
The scheme which was under considera tion in the decision relied upon was in re spect of an intra state route.
It appears to have been argued that as the scheme was con cerned with an inter state route the approval of the Central Government was necessary as required under the proviso to Section 63D(3) of the Act.
This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter state route at all and no question arose of the applica bility of the proviso to section 68D(3).
In the present case there is no scheme of national isation relating to the inter state route from Bellary to Manthralaya.
The Bellary Scheme is confined to the intra state routes, one of those being the Bellary Chintakunta route.
It may be that that portion overlaps the inter state route from Bellary to Manthralaya but so long as it is an intra state route it could be nationalised by the State of Mysore under the provisions of section 68D." No further comment is necessary.
We are inclined to the view that the route, passing, as it does through part of Tamil Nadu, is inter state ' What is the effect of this finding over the scheme of nationali sation ? Wholly invalidatory ? or else, what ? The proviso to Section 68D(3) i.e. Central Government approval has not been complied with and so qua inter state route the nation alisation does not become effective.
Even so, two factors can together salvage this nationalisation scheme.
(1) ; 567 There can be no doubt that the scheme notified by one State will, even in the case of an inter state route, oper ate to the extent it lies within that State.
Its extra territorial effect depends on securing of prior Central approval under the proviso to Section 68D(3).
That being absent, the permit granted in one State may still be valid in another State if the condition specified in the 2nd proviso to Section 63(1) is fulfilled, We may as well ex tract Section 63 (1 ) to that extent relevant.
Validation of permits for use outside region in which granted (1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been counter signed by the Regional Transport Authority of that other region and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Trans port Authority concerned: x x x . .
Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in any other State and the length of such part does not exceed six teen kilometres, the permit shall be valid in other State in respect of that part of the route which is in that other State notwith standing that such permit has not been coun ter signed by the State Transport Authority or the Regional Transport Authority of that other State.
" The portion of the route falling outside Andhra Pradesh (both termini being within that State) is admittedly less than 16 kin.
and so no question of counter signature by the State Transport Authority or the Regional Transport Authori ty of Tamil Nadu State arises.
The conclusion follows that the portions of the inter state route which fall within Andhra Pradesh stand nationalised, and consequently excludes private operators.
But that strip of the inter state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport buses could ply on that strip also in view of the 2nd proviso to Section 63 (1) of the M.V. Act.
We may point out that section 20 of the Road Transport Corporations Act (a Central Act) provides for extension of the operation of the road transport service of a corporation of one State to areas within another State.
We are not directly concerned with such a scheme as is contemplated by that provision since passage over a neighbouring State if the length of such intersection does not exceed 16 km.
is saved by the 2nd proviso to Section 63(1) of the M.V. Act.
We, therefore, reach the conclusion that (a) the route Nellore Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so 568 far as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effec tive over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but (d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act.
In this view, the appeal must substantially fail except to the extent of the little modification we have indicated, which does not profit the appellant.
In the circumstances, while dismissing the appeal, we direct the parties to suffer their costs throughout.
S.R. Appeal dismissed.

summary:
The Nellore Ramapuram route passing over a short dis tance of 8 K.m.
through Tamil Nadu was proposed to be natio nalised by the Andhra, Pradesh Government.
The appellant an existing private operator on the route challenged the scheme on the ground that the route being an inter state route, noncompliance with section 68 D(3) of the aborted the Nationalisation.
The High Court held that the decisive test turned on whether both the termini fall within the same state and it did in this case and so on question of inter state route arose.
On appeal by Certifi cate the court HELD: (1) (a) The route Nellore Ramapuram is an inter state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and (c) the nationalisation cannot become effective over the strip in Tamil Nadu and ,private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corpora tion may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to section 63(1 ) of the .
[567H, 568 A B] (2) The definition of 'Route ' in section 2(28A) of the Act is not a notional line "as the crow flies" but the actual highway as a motor vehicle traverses from one terminus to another.
A route is transformed into an inter state one, if the highway it covers passes through more than one state.
An inter state route may be of the categories either con necting two states or traversing two or more states.
[564 D E] (3) Ordinarily not invariably the two termini test is a, working solution and not an inflexible formation.
The termini test may lead to strange results, fatal to federal ideas.
A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, without doing violence to lan guage, geography and federalism.
And in the absence of a statutory definition of inter state route non violence to English and conformance to commonsense dictate the adoption of the conventional meaning that if a route traverses more than one state it is inter state.
[564 B C, D] (4) Undoubtedly, where the termini fall in different states the route is inter state.
But that does not ex clude other categories of inter state route such as where it crosses a state other than the originating state although gets back into it later.
If the territory of more than one state is covered even if both the termini eventually fall within the same state, the route is inter not intra state.
[564H, 565A] 563 Kazan Singh ; ; Ahwathanarayan vs State ; pp.
100 101.
explained.
(5) If the whole of the route lies within a single state it is intra state and not inter state, even though the road over which the route lies runs beyond the borders of that single state as national highways do.
It is elementary that there can be inter state routes which run into or through more than one state.
A part of that long route may itself be a separate route and may fall wholly within a single state in which case the former may be inter state while the latter will be an intra state route.
[565G H, 566A] (6) There can be no doubt that the scheme notified by one State will, even in the case of an inter state route, operate to the extent it lies within that State.
Its extra territorial effect depends on securing of prior Cen tral Government approval under the proviso to Section 680(3).
However, the permit granted in one state may still be valid in.
another state, if the condition specified in the 2nd proviso to section 63(1) is fulfilled.
The portion of the route, in the instant case, falling outside Andhra Pradesh (both termini being within that state) is admittedly less than 16 k.m.
and so no question of countersignature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu arises.
The portion of the inter state route which fell within Andhra Pradesh stand nationa lised and consequently exclude private operators.
But that strip of the inter state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport Buses could ply on that strip also in view of the 2nd proviso to section 63(1) of the .
[567 A B, E F]


judgement:
Appeal No. 1792 of 1971.
Appeal from the Judgment and Order dated the 31st March, 1970 of the Gujarat High Court in Special Civil Application No. 545/66.
R.H. Dhebar, S.K. Dholakia and A.C. Bhatia for the appel lant.
R.M. Mehta and Girish Chandra, for Respondent.
94 The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is against the judgment of Gujarat High Court dismissing petition under article 226 of the Constitution of India filed by the appel lant for a writ of certiorari or other appropriate writ to quash two notices issued by the respondent to the appellant under section 148 of the Income tax Act, 1961 (hereinafter referred to as the Act of 1961).
The matter relates to the assessment years 1957 58 and 1959 60.
The appellant is a public limited company which carries on the business of manufacture of pottery and sani tary wares at Morvi and other places in the State of Guja rat.
In respect of the assessment year 1957 58, the corre sponding accounting year for which ended on July 31, 1966, the appellant filed its return under the Indian Income tax Act, 1922 (hereinafter referred to as the Act of 1922).
The predecessor in interest of the responded by assessment order dated April 16, 1959 assessed the total income of the appel lant at Rs. 4,60,372.
In computing the said income the Income tax Officer allowed depreciations amounting to Rs. 5,05,487.
For the assessment year 1959 60 the appellant like wise filed return.
Assessment order in respect of that year was made on March 30, 1961 and the income of the appel lant was assessed at Rs. 11,04,650 after allowing depreciation of Rs. 3,57,926.
On October 5, 1965 a letter was addressed on behalf of the respondent to the appellant stating that there had been a mistake in the calculation of the depreciation allowance in respect of certain items of the capital assets of the appellant for the period covered by the assessment years 1955 56 to 1962 63.
As a result of the mistake, it was stated, a sum of Rs. 2,39,723 had been allowed as deprecia tion allowance in excess of the permissible limit.
Enclosed with the letter was a chart showing excess depreciation allegedly allowed during the above mentioned period.
The excess amounts of depreciation for the years 1957 58 and 1959 60 were mentioned in the chart to be Rs. 37,869 and Rs. 26,945 respectively.
The appellant company was asked if it had any objection to the rectification of the mistake, the above letter was followed by another letter wherein the respondent wrote to the appellant that "the mistake in depriciation arose because the initial depriciation was not taken into account in finding out whether the total depreciation allowed exceeded the original cost".
On Febru ary 2, 1966 the Income tax Officer addressed 'another letter to the appellant stating that for the assessment years 1957 58 and 1959 60 the income of the appellant had escaped assessment for failure of the appellant to disclose all material facts within the meaning of section 147(a) of the Act of 1961.
The appellant in reply stated that depre ciation calculation sheets had been worked by the income tax authorities and there was no failure on the part of the appellant to disclose all facts.
The impugned notices were thereafter issued on March 4, 1966 by the Incometax Officer to the appellant stating that he had reason to believe that income of the appellant chargeable to tax for the assessment years in question had escaped assessment within the meaning of section 147 of the Act of 1961.
The Income tax Officer accordingly stated that he proposed to recompute and reas sess the income/loss/depreciation 95 allowance for the aforesaid years.
The appellant was called upon to furnish returns in the prescribed form within 30 days from the date of the service of the notices.
It was also mentioned that the notices were being issued after obtaining the necessary satisfaction of the Commissioner of Income tax.
The appellant thereafter filed writ petition in the High Court on April 29, 1966.
According to the case of the appellant, there was no omission or failure on its part to disclose fully and truly all material facts necessary for the assessment.
All material facts, it was stated, regard ing the acquisition of various capital assets from time to time were on the record of the department.
The fact that initial depreciation on the new assets had been allowed was also on the record of the department.
If there was any oversight on the part of the Income tax Officer, the appel lant, it was claimed, could not be held responsible for that.
The petition was resisted by the respondent and the affidavit of Shri N.M. Baxi, Income tax Officer was filed in opposition to the petition.
According to that affidavit, the appellant did not disclose in the return that initial depreciation in respect of certain items of capital assets had been allowed in the past and that the same should be taken into account while calculating the depriciation allow able for the assessment years in question.
The High Court found that the first requirement of section 147(a) of the Act of 1961 was satisfied inasmuch as the Income tax Officer had reason to believe that the income of the appellant for the two assessment years in question had escaped assessment.
The mistake arose because of the fact that the initial depreciation allowance which had been allowed to the appellant in respect of some of the items of the capital assets was not taken into account while comput ing the depreciation allowance during the relevant years.
As a result of that, it was found that the depreciation allowance during the various years, including the initial depreciation, exceeded the original cost of those items of the capital assets to the appellant.
Dealing with the question as to whether there was omission or failure on the part of the appellant to disclose truly and fully all mate rial facts, it was observed that the appellant was bound to disclose the fact that initial depreciation had been allowed in respect of the items of capital assets in question during the previous years.
The appellant as such .was held to have failed to disclose all material facts.
The plea of the appellant that all the material facts were already on the record of the department, in the opinion of the High Court, did not make material difference.
In result, the petition was dismissed.
Before dealing with the contentions advanced in appeal, it may be apposite to refer to the relevant provisions.
According to section 10 of the Act of 1922, the tax shall be payable by an assessee under the head "Profits and gains of business profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him.
Such profits or gains shall be computed after making a number of allowances.
Those allowances include those 96 allowed in respect of depreciation, as mentioned in clauses (vi) and (vi a) of sub section (2), the material part of which at the relevant time read as under: (vi) in respect of depreciation of such buildings, machinery plant or furniture being the property of the assessee, a sum equivalent . to such percentage on the written down value thereof as may in any case or class of cases be prescribed, and where the buildings have been newly erected or the machinery or plant being new, not being machinery or plant entitled to the development rebate under clause (vi b), has been installed, after the 31st day of March, 1945, and before the 1st day of April, 1956, a fur ther sum (which shall however not be deductible in determining the written down value for the purposes of this clause) in respect of the year of erection or installation equivalent, (a) in the case of buildings the erection of which is begun and completed between the st day of April 1946 and the 31st day of March 1956 (both dates inclusive), to fifteen per cent, of the cost thereof to the assessee; (b) in the case of other buildings, to ten per cent of the cost thereof to the assessee; (c) in the case of machinery or plant, to twenty per cent, of the cost thereof to the assessee; Provided that (a). . . . (b). . . . (c) the aggregate of all allowances in respect of depreciation made under this clause and clause (vi a) or under any Act repealed hereby, or under the Indian Income tax Act, 1886 (II of 1886), shall, in no case, exceed the original cost to the assessee of the buildings, machinery, plant or furniture, as the case may be; (vi a) in respect of depreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further sum (which shall be deductible in determining the written down value) equal to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) in not more than five successive assessments for the financial years next following the previous year in which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April, 1949, and ending on the 31st day of March, 1959," 97 It is apparent from the above provisions that depreciation of three distinct kinds could be allowed in respect of buildings, machinery and plant.
The first category was of ordinary depreciation equivalent to such percentage on the written down value thereof as may be prescribed.
The second category was of depreciation of buildings, newly erected, or new machinery or plant not being machinery or plant entitled to development rebate under clause (vi b) which has been installed after the 31st day of March 1945 and before the st day of April 1956 equivalent to such percentage if the cost thereof as is prescribed.
Such initial depreciation was granted in the first year of the construction of the build ing or installation of the plant or machinery.
This cate gory of depreciation was not deduction in determining the written down value for the purpose of clause (vi).
The third category of depreciation was additional depreciation which was claimable for a period of five years in respect of buildings, newly erected, or new machinery or plant in stalled after the 31st day of March 1948 in terms of clause (via).
The depreciation permissible under this category was deduction in determining the written down value.
Clause (c) of the proviso to clause (vi) of sub section (2) of section 10, however, makes it clear that the aggre gate of all three categories of depreciation allowance was in no case to exceed the original cost to the assessee of the building, machinery or plant, as the case may be.
The case of the respondent is that the amount of depre ciation allowed to the appellant in respect of certain items of capital assets for the two assessment years in question was so much that the aggregate of all allowances in respect of depreciation made under clauses (vi) and (vi a) of sub section (2) of section 10 of the Act of 1922 exceeded the original cost to the appellant of those items of the capital assets.
There was thus a violation of the provisions of clause (c) of the proviso to section 10 (2)(vi) of the Act.
The above mistake, it is stated, occurred because the initial depreciation which had been allowed in respect of those items of the capital assets was not taken into account in computing the depreciation regarding those items in the two assessment years in question.
The present is, therefore, a case, according to the respondent, of income escaping assessment under section 147 of the Act of 1961.
Reliance in this connection is placed upon clause (d) of Explanation (1) to section 147 of the Act of 1961, according to which it would be a case of income escaping assessment where excessive depreciation allowance is comput ed.
The material part of section 147 of the Act of 1961 reads as under: 147.
Income escaping assessment.
If (a) the Income tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any 8 1458SCI/76 98 assessment year to the Income tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) Notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assess ment year concerned (hereafter in section 148 to 153 referred to as the relevant assessment year) .
" According to section 148 of the Act of 1961, before making the assessment, reassessment or recomputation under ' section 147, the Income tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 139; and the provisions of the Act shall, so for as may be, apply accordingly as if the notice were a notice issued under that sub section.
The Income tax Officer has also, before issuing such notice, to record his reasons for doing so.
Section 149 prescribes the time limit for the notice.
The time limit in a case not falling under clause (ii) of sub section (1) of section 149, with which we are not concerned, shall be eight years from the end of the relevant assessment year.
In case falling under clause (b) of section 147, however, the time limit for the notice is four years from the end of the relevant assessment year.
Clause (a) of section 147 of the Act of 1961 corresponds to clause (a) of sub section (1) of section 34 of the Act of 1922.
The language of clause (a) of section 147 read with sections 148 and 149 of the Act of 1961 as also the corre sponding provisions of the Act of 1922 makes it plain that two conditions have to be satisfied before an Income tax Officer acquires jurisdiction to issue notice under section 148 in respect of an assessment beyond the period of four years but within a period of eight years from the end of the relevant year, viz., (i) the Income tax Officer must have reason to believe that income chargeable to tax has escaped assessment, and (ii) he must have reason to believe that such income has escaped assessment by reason of the omission or failure on the part of the assessee (a) to make a return under section 139 for the assessment year to the Income tax Officer, or (b) to disclose fully and truly material facts necessary for his assessment for that year.
Both these conditions must co exist to confer jurisdiction on the Income tax Officer.
It is also imperative for the Income tax Officer to record his reasons before initiating pro ceedings as required by section 148(2).
Another require ment is that before notice is issued after the expiry of four years from the end of the relevant assessment years, the Commissioner should be satisfied on the reasons recorded by the Income tax Officer that it is a fit case for the issue of such notice.
The duty which is cast upon the asses see is to make a true and full disclosure of the primary facts at the time of the original assessment.
, 99 Production before the Income tax Officer, of the account books or other evidence from which material evidence could with due diligence have been discovered by the Income tax Officer will not necessarily amount to disclosure contem plated by law.
The duty of the assessee in any case does not extend beyond making a true and full disclosure of primary facts.
Once he has done that axis duty ends.
It is for the Income tax Officer to draw the correct inference from the primary facts.
It is no responsibility of the assessee to advise the Income tax Officer with regard to the inference which he should draw from the primary facts.
If an Income tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for re opening assessment [see Income tax Officer vs Lakhmani Mewal Das(1)].
The words "omission or failure to disclose fully and truly all material facts necessary for his assessment for that year" postulate a duty on the assessee to disclose fully and truly all material facts necessary for his assess ment.
What facts are material and necessary for assessment will differ from case to case.
In every assessment proceed ing, the assessing authority will, for the purpose of com puting or determining the proper tax due from an assessee, require to know all the facts which help him coming to the correct conclusion.
From the primary facts in his posses sion, whether on disclosure by the assessee,or discovered by him on the basis of the facts disclosed, or otherwise the assessing authority has to draw inference as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable see Calcutta Discount Co. vs Income tax Offi cer(2)] as further observed in that case: "Does the duty, however, extend beyond the full and truthful disclosure of all primary facts ? In our opinion, the answer to this question must be in the negative.
Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure.
It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn.
It is not for somebody else far less the assessee to tell the assessing authority what inferences, whether of facts or law, should be drawn.
Indeed, when it is remem bered that people differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences whether of facts or law he would draw from the ' primary facts.
" Keeping in view the principles enunciated above, we may deal with the contention advanced on behalf of the appel lant that the present is not a case in which action could be taken under section 147(a) of the Act of 1961.
This contention has been controverted (1) (2) 100 by the learned counsel for the respondent, who has canvassed for the correctness of the view taken by the High Court in the judgment under appeal.
It would appear from what has been ' discussed above that one of the essential requisites for proceeding under clause (a) of section 147of the Act of 1961 is that the income chargeable to tax should escape assessment because of the omission or failure on the part of the assessee to dis close fully and truly all material facts necessary for his assessment.
The present is not a case where the assessee had omitted or failed to file the return.
Question then arises as to what has been omission or failure on the part of the assessee to make a full and true disclosure.
There is nothing before us to show that in the return filed by the assessee appellant, the particulars given were not cor rect.
Form C under rule 19 of the Indian Income tax Rules, 1922 at the relevant time gives the form of return which had to be filed by the companies.
Part V of that form deals with depreciation.
The said part requires a number of columns to be filled in by the. assessee.
It has not been suggested that any of the information furnished of any of the particulars given in those columns by the appellant company were factually incorrect.
Nor is it the case of the revenue that the appellant failed to.
furnish the particu lars required to be inserted in those columns.
Indeed, the copy of the return has not been filed and consequently no argument on that score could be or has been addressed before us.
Part V of the form no doubt requires the assessee to state the written down value in column No. (2).
Such writ ten down value had to be specified without taking into account the initial depreciation because such depreciation in terms of clause (vi) of section 10(2) of the Act of 1922 could not be deducted in determining the written down value for the purpose of that clause.
The case of the appellant is that in determining the amount of depreciation at the time of the original assessment for the two assessment years in question, the Income tax Officer relied upon the written down value of the various capital assets as obtaining in the records of the department.
This stand has not been contro verted.
When an income tax officer relies upon his own records for determining the amount of depreciation and makes a mistake in doing so, we fail to understand as to how responsibility for that mistake can be ascribed to an omission or failure on the part of the assessee.
It also cannot be disputed that initial depreciation in respect of items of capital assets in the shape of new machinery, plant and building installed or erected after the 31st day of March 1945 and before the 1st day of April 1956 is normally claimed and allowed.
It seems that the Income tax Officer in working 'the figures of depreciation for certain items of capital assets lost sight of the fact that the aggregate of the depreciation, including the initial depreciation, al lowed under different heads could not exceed the original cost to the assessee of those items of capital assets.
The appellant cannot be held liable because of this remissness on the part of the Income tax officer in not applying the law contained in clause (c) of the proviso to section 10(2)(vi) of the Act of 1922.
As observed by Shah J. in Commissioner of Income tax vs Bhanji Lavji,(1) section 34(1)(a) of the Act of 1922 (corresponding to section 147 '(a) (1)79 I,T.R. 582.
S.C. 101 of the Act of 1961) does not cast a duty upon the assessee to instruct the Income tax Officer on questions of law.
It may also be mentioned that so far as the assessment for the assessment year 1957 58 is concerned, the assess ment order was once rectified and at another time revised.
Despite such rectification and revision, the above mistake in the calculation of the depreciation remained undetected.
It was only in October 1965 that the Income tax Officer realised that higher.
amount of depreciation had been al lowed to the appellant than was actually due.
A letter to that effect was consequently sent to the assessee on Octo ber 5, 1965.
It was, however, nowhere mentioned in that letter that the higher amount of depreciation had been allowed and the income as such had escaped assessment because of the omission or failure on the part of the asses see to disclose truly and fully all material facts.
Refer ence to such omission or failure came only in a subsequent communication.
The submission made on behalf of the appel lant is not without force that reference was made to asses see 's omission or failure to disclose truly and fully all material facts because it was realised that after the expiry of four years from the end of the relevant assessment year, no action for reopening of assessment could be taken on the basis of detection of mistake alone unless there was also an allegation that the income had escaped assessment because of the omission or failure of the appellant to disclose fully and truly material facts.
Looking to a11 the facts, we are of the opinion that it cannot be said that the excess depre ciation was allowed to the appellant company and its income as such escaped assessment because of its omission or fail ure to disclose fully and truly all material facts.
It has been said that the taxes are the price that we pay for civilization.
If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well versed with the law on the sub ject.
Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue.
At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that state issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi judicial controversies as it must in other spheres of human activity.
So far as income tax assessment orders are concerned, they cannot be reopened on the scope of income escaping assessment under section 147 of the Act of 1961 after the expiry of four years from the end of the assess ment year unless there be omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment.
As already mentioned, 'this cannot be said in the present case.
The appeal is conse quently allowed; the judgment of the High Court is set aside and the impugned notices are quashed.
The parties in the circumstances shall bear their own costs throughout.
P.H.P. Appeal aIlowed.

summary:
The appellant a Public Limited Company filed its Income Tax Return relating to the assessment years 1957 58 and 1959 60 under the Income Tax Act, 1922.
The Income Tax Officer passed assessment orders on 16 4 1959 and on 30 3 1961 respectively in respect of the two years.
Certain depreciation was allowed by the Income Tax Officer for both the years.
On 5 10 1965.
the Income Tax Officer addressed a letter to the appellant stating that there had been a mistake in the calculation of the depreciation allowance.
The appellant was asked by that letter if it had any objec tion to.
the rectification of the mistake in the calculation of the depreciation amounts.
for the above mentioned two years.
On 2nd February, 1966, the Income Tax Officer ad dressed a letter under section 147(a) of the Income Tax Act, 1961 alleging that the income of the appellant had escaped assessment for failure of the appellant to disclose all materials facts.
The appellant in his reply stated that the depreciation was calculated by the Income Tax authorities and there was no failure on the part of the appellant in disclosing all the facts.
Thereafter, the Income Tax Offi cer issued the notices on 4 3 1966 stating that he had reasons to believe that the income of the appellant charge able to tax for the assessment years in question had escaped assessment within the to meaning of section 147 of the 1961 Act.
The appellant was called upon to furnish fresh return.
The appellant challenged the said notices by filing a Writ Petition in the High Court.
According to the appellant there was no omission or failure on its part to disclose fully and truly all material facts necessary for the assess ment; that all material facts were placed before the assess ing authority; and that the fact that initial depreciation on the new assets had been allowed was also on the record of the department.
It was further contended that if there was any oversight on the part of the Income Tax Officer the appellant could not be held responsible.
The respondent filed an affidavit in the High Court contending that the appellant did not disclose in the return that initially depreciation in respect of certain items of capital assets had been allowed in the past and that the same should be taken into account while calculating the depreciation allow able for the assessment years in question.
The High Court dismissed the Writ Petition on the ground that there was an omission or failure on the part of the appellant to disclose truly and fully the fact that the initial depreciation had been allowed in respect of items of capital assets in ques tion during the previous years.
Under section 10 of the 1922 Act an assessee is liable to pay tax under the head "Profits and Gains of Business, Profession or Vocation, carried on by him".
Such profits or gains shall be computed after making a number of allowances.
Those allowances included the allowances provided by section 10(2)(vi) which deals with depreciation under section 147(a) of the Income Tax Act, 1961.
if the Income Tax Officer has reason to believe that the reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, income charge able to tax has escaped assessment for that year he may subject to the provisions of sections 148 to 151 assess or reassess such income or recompute the loss or the deprecia tion allow 93 ance as the case may be.
According to section 148 of 1961 Act before making the assessment, reassessment, or recompu tation under section 147, the income Tax Officer shall serve on the assessee a notice containing all or any of the re quirements which may be included in a notice under section 149(1).
The Income Tax Officer has also before issuing such notice to record his reasons for doing so.
Section 149 prescribes a time limit for the notice.
The time limit in respect of section 147(a) is 8 years.
Allowing the appeal, HELD: 1.
Two conditions have to be satisfied before an Income Tax Officer acquires jurisdiction to issue notice under section 148 beyond the period of 4 years but within the period of 8 years: (i) The Income Tax Officer must have reason to believe that income chargeable to tax has escaped assessment; (ii) He must have reason to believe that such income has escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly material facts necessary for his assessment for that year.
The duty which is cast upon the assessee is to make a true and full disclosure of the primary facts at the time of the original assessment.
The duty of the assessee in any ease does not extend beyond making a true and full disclosure of primary facts.
Once he has done that his duty ends.
It is for the Income Tax Officer to draw the correct inference from the primary facts.
It is no responsibility of the assessee to advise the Income Tax Officer with regard to the inference which he should draw from the primary facts.
If an Income Tax Officer draws an inference which appears subsequently to be erroneous mere change of opinion with regard to that inference would not justify initiation of action for reopening assessment.
[98 E G, H, 99 A B] Income Tax Officer vs Lakhmani Mewal Dass, followed.
What facts are material and necessary for assessment will differ from case to case.
Calcutta Discount Co. vs Income Tax Officer, , followed.
The Income Tax return has to be filled in form, No. C under rule 19 of the Income Tax Rules, 1922.
Part V of that form deals with depreciation.
The said part requires a number of columns to be filled in by the assessee.
It has not been suggested that any of the information furnished or any of the particulars given in those columns by the appellant Company were factually incorrect.
When Income Tax Officer relies upon his own records for determining the amount of depreciation 'and makes.
a mistake in doing so, the respon sibility for the mistake cannot be ascribed to an omission or failure on the part of the assessee.
[99 D 100 B D, E F] Commission of Income Tax vs Bhanji Lavli, fol lowed.
(Taxes are the price that is paid for civilisation.
It is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well versed with the law on the subject.
Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue.
At the same time, it has to be borne in mind that the policy of law is that there must be a point of finality in all legal proceed ings).


judgement:
As Nos.
1172, 1354, 1355 and 1751 of 1972.
(Appeals by Special Leave from the Judgment and Order dated the 27.9.1971 of the Kerala High Court in O.P. No. 1339/70 W.A.No. 8/70, W.A. No. 420/69 and O.P. No. 862 of 1969 respectively.) AND Civil Appeal No. 2275 of 1972 679 (Appeal by Special Leave from the Judgment and Order dated the 18.11.1971 of the Andhra Pradesh High Court in Writ Petition No. 5662/70).
AND Civil Appeals Nos.
1015/73, 1865/74 and CA No. 506/76.
(From the Judgments and Orders dated the 7 9 72, 22 7 74, and 30 10.1975 of the Andhra Pradesh High Court in Writ Petitions Nos.
4717/71, 3914/74 and 4213/75 respectively).
AND CA No. 1866 of 1973 and 1867/73.
(Appeals by Special Leave from the Judgment and Order dt.
the 15.2.1972 of the Andhra Pradesh High Court in Writ Petition No. 2933 and 3385/71 respectively.) AND Civil Appeal No. 1234 of 1974.
(Appeal by Special Leave from the Judgment and Order dated the 18.10.1973 of the Andhra Pradesh High Court in S.A. No. 360 of 1972).
AND Civil Appeal Nos.
1300 and 1393 of 1976.
(From the Judgment and Order dated the 5 12 1975 of the.
Kerala High Court in Writ Appeals Nos. 414 & 415 of 1975).
AND Civil Appeal No. 1313 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 10.3.1976 of the Orissa High Court in O.J.C. No. 531/74).
Niren De, Attorney General of India in CAs 1171, 1354 1355; V.P. Raman, Addl.
General in CAs 2275 and 1313 with B. Datta in CAs 1172, 1355 and 2275 and Girish Chandra, for the appellants in all the appeals.
Vepa Sarathi, N. Sudhakaran and P.K. Pillai for respond ents in CA 1172/72.
Vepa Sarathi (1354) K.M.K. Nair and Mrs. B. Krishnan for respondents in CAs 1354, 1751/72 and 1300 and 1393 of 1976.
Mrs. section Gopalakrishnan, for respondent in CA 1355.
K. Jayaram and K. Ram Kumar for respondents in CAs 1866 67, 1015/73 and 1865 of 1974 and 506/76.
Mrs. Veena Devi Khanna, for respondent in CA 2275/72.
C.S. S Rao, for respondent in CA 1313/76.
The respondents in all these fourteen ap peals, some of which are on certificate and some by special leave, are extra departmental agents connected with the postal department.
Six of these.
appeals are from the Kerala High Court, seven from the Andhra Pradesh High Court and one from.
the Orissa High Court.
These respondents were either dismissed or removed from service during the period between January 1, 1966 and June 18, 1974, and admit tedly the order of dismissal or removal was passed without complying with the provisions of Article 311(2) of the Constitution.
The question in each case is whether the respondent held a civil post as contemplated in Article 311 of the Constitution; if he did the dismissal or removal, as the case may be, would be unquestionably invalid for non compliance with Article 311(2).
The conditions of service of the respondents are gov erned by a body of rules called the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 (hereinafter called the rules) issued under the authority of the Government of India.
Rule 2(b) of the rules defining "Extra Departmental Agent" includes within the category, among others, Extra Departmental Sub Postmaster 's, Extra Departmental Branch postmasters, Extra Departmental Delivery Agents, and several sections of class IV employees.
Eleven of the respondents arc extra departmental branch postmas ters, one is an extra departmental delivery agent, and two are class IV extra departmental employees.
In all these cases the High Courts have found that the respondents held civil posts under the Union of India and the orders termi nating their services in violation of Article 311 (2) of the Constitution were invalid.
This Court in State of Assam and others vs Kanak Chandra Dutta(1) has explained what a civil post is.
In that case the respondent who was a Mauzadar in the Assam Valley was dismissed from service in disregard of the provi sions of Article 311 (2).
It was held that "having regard to the existing system of his recruitment, employment and functions", he was "a servant and a holder of a civil post under the State", and therefore entitled to the protection of Article 311(2).
This Court observed: " . a civil post means a post not connected with defence and outside the regu lar civil services.
A post is a service or employment . .
There is a relationship of master and servant between the State and a person holding a post under it.
The exist ence of this relationship is indicated by the State 's right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration.
" (1) [1967]1 S.C,R. 679 (682).
681 A post, it was explained, exists apart from the holder of the post.
"A post may be created before the appointment or simultaneously with it.
A post is an employment, but every employment is not a post.
A casual labourer is not the holder of a post.
A post under the State means a post under the administrative control of the State.
The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post.
" Turning now to the rules by which the respondents were admittedly gov erned, it appears that they contain elaborate provisions controlling the appointment, leave, termination of services, nature of penalties, procedure for imposing penalties and other matters relating to the conduct and service of these extra departmental agents.
There is a schedule annexed to the rules naming the appointing authorities in respect of each category of employees.
Rule 5 states that the employ ees governed by these rules shall be entitled to such leave as may be determined by the Government from time to time and provides that if an employee fails to resume duty on the expiry of the maximum period of leave admissible and granted to him or if an employee who is granted leave is absent from duty for any period exceeding the limit upto which he could have been granted leave he shall be removed from the service unless the Government decides otherwise in the exceptional circumstances of any particular case.
The services of employees who had not put in more than three years ' continu ous service are liable to be terminated at any time under rule 6 for unsatisfactory work or for any administrative reason.
The rules also indicate the nature of penalties which may be imposed on an employee and the procedure for imposing them.
A right of appeal is provided against an order imposing any of the penalties on the employee.
Various other conditions of service are also provided in these rules.
It is thus clear that an extra departmental agent is not a casual worker but he holds a post under the administrative control of the State.
It is apparent from the rules that the employment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular ' time.
Though such a post is outside the regular civil services, there is no doubt it is a post under the State.
The tests of a civil post laid down by this Court in Kanak Chandra Dutta 's case (supra) are clearly satisfied in the case of the extra departmental agents.
For the appellants it is contended that the relationship between the postal authorities and the extra departmental agents is not of master and servant, but really of principal and agent.
The difference between the relations of master and servant and principal and agent was pointed out by this Court in Lakshminarayan Ram Gopal and Son Ltd. vs The Gov ernment of Hyderabad.
(1) On page 401 of the report the following lines from Halsbury 's Laws of England (Hailsham edition) Volume 1, at page 193, article 345, were quoted with approval in explaining the difference: (1) ; 682 "An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor.
A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work, an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result.
An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal.
An agent, as such is not a servant, but a servant is generally for some purposes his master 's implied agent, the extent of the agency depending upon the duties or position of the servant.
" The rules make it clear that these extra departmental agents work ' under the direct control and supervision of the authorities who obviously have the right to control the manner in which they must carry out theft duties.
There can be no doubt therefore that the relationship between the postal authorities and the extra departmental agents is one of master and servant.
Reliance was placed on behalf of the appellants on two decisions, one of the Orissa High Court Venkata Swamy vs Superintendent, Post Offices(1) and the other of the Madras High Court V. Subbaravalu vs Superin tendent of Post Offices.(2) The judgment in these cases were rendered before the elaborate rules governing the conduct and service of these extra departmental agents were brought into operation in 1964.
We do not therefore think an examination of these two decisions will be relevant or useful for disposing of the appeals before us.
The appeals are accordingly dismissed with costs: one set o[ hearing fee in respect of all the appeals except C.A. 1172 of of 1972 and C.A. 2275 of 1972 in which separate orders as to costs was made earlier.
S.R. Appeals dismissed (1) AIR 1957 Orissa 112.
(2) AIR 1961 Madras 166.

summary:
The respondents in all these appeals are "extra depart mental agents" within the meaning of Rule 2(b) of the Posts and Telegraphs Extra Departmental Agents (Conduct of Service) Rules, 1964 issued under the authority of the Government of India.
They were either dismissed or removed from service during the period between January 1, 1966 and June 18, 1974, admittedly without complying with the provi sions of article 311(2) of the Constitution.
The question in each case is whether the respondent held a "civil post" as contemplated in article 311(2) of the Constitution.
The High Court of Kerala, Andhra Pradesh & Orissa held that the respondents held a civil post under the Union of India and the orders terminating their services in violation of article 31.1(2) of the Constitution were invalid.
Dismissing the appeals the Court, HELD: (1) An "extra departmental agent" held a "civil post" and his dismissal or removal would be invalid, if there was non compliance with article 311 (2) of the Constitu tion.
[680 B C. 682 E] (2) An extra departmental agent is not a casual worker, but he holds a post under the administrative control of the State.
It is apparent from the 1964 Rules that the em ployment of an extra departmental agent is in a post which exists "apart from" the person who happens to fill it at any particular time.
Though such a post is outside the regular civil service, there is no doubt it is a post under the State.
[681 E F] State of Assam & Ors.
vs Kanak Chandra Dutta ; @ 682 applied.
(3) The 1964 rules make it clear that these extra departmental agents work under the direct control and super vision of the authority who obviously have the right to control the manner in which they must carry out their du ties.
There can be no doubt, therefore, that the relation ship between the Postal Authorities and the extra departmen tal agents are of master and servant.
[662 C E] Venkataswamy vs Superintendent, Post Offices, AIR 1957 Orissa 112; V. Subbaravalu vs Superintendent of Post Offices, AIR 1961 Madras 166, held inapplicable.