judgement:
Criminal Appeal No. 168 of 1979.
From the Judgment and Order dated 29.9.1978 of the Madhya Pradesh High Court in Criminal Appeal No. 1094 of 1976.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This appeal by special leave is di rected against the judgment of the High Court of Madhya Pradesh confirming the conviction of the appellants for the offences under sections 147 and 302/149, I.P.C., and sen tence to undergo imprisonment for life.
The appellants and four persons acquitted by the trial court were tried for the murder of one Hanuwa.
The prosecution alleged that motivated by group rivalry the accused persons attacked Hanuwa with tabbals and lathis on July 11, 1975 at about 8. 30 A.M.
The occurrence happened on the track across the field leading to village Mungeli.
Hanuwa accompanied by his mother Baiyanbai and sister Birjhbai was on his way to Mungeli to supply milk.
When he reached Ghotora near Nayagaon village.
the accused persons advanced towards him and mounted attack.
As a result of the injuries sustained, Hanuwa died on the 104 spot.
When Baiyanbai tried to intervene, she too was as saulted, Baiyanbai lodged the first information report at 12.00 noon the same day against these appellants and others who were finally chargesheeted.
Baiyanbai (PW 1) and Birjhbai (PW 5) were the two eye witnesses who unfolded the prosecution case.
Mangal (PW 4) and Dilashbai (PW 6) deposed to having seen appellants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance.
The medical evidence disclosed that Hanuwa sustained in all seven in juries: two incised wound on the scalp resulting in multiple fracture of the parietal bone and tear of right lobe of the brain: two confusions and three bruises on the forearm, right upper arm scapular region and buttock.
Injuries sus tained by PW 1 was incised wound in between right thumb and index finger which could be caused with any sharp object.
The plea of the accused was that they were falsely implicat ed due to enmity.
The learned Sessions Judge accepted the prosecution evidence and convicted these appellants finding that they were members of an unlawful assembly and death of Hanuwa was caused by the members in prosecution of the common object of the assembly.
Arjun, Bhikam, Nanku and Parethan were given the benefit of doubt in view of the discrepancies in mentioning their names and they were ac quitted.
The High Court on appeal agreed with the findings of the trial court and confirmed the conviction and sen tence.
The conviction of the appellants is assailed before us mainly on the ground that the two eye witnesses in the case are close relations of the deceased deeply interested in involving the appellants on account of the enmity and their evidence was required to be scrutinised with great care and caution and the trial court as well as the High Court failed to exercise the necessary caution with the result conviction has been wrongly recorded leading to miscarriage of justice.
According to the appellants ' learned counsel, the evidence of the eye witnesses read along with the medical evidence renders the prosecution case highly improbable and doubtful about the presence and participation of the appellants in the assault.
It is submitted that the tendency to involve innocent persons by merely mentioning their names is dis cernible and in the absence of independent corroboration the conviction based on the testimony of PW 1 and PW 5 is unwarranted.
We have considered these arguments in the light of the material evidence analysed and discussed by the courts below.
We find that the conviction of the appellants is principally based on the evidence of 105 PW 1 and PW 5, the mother and sister of the deceased.
Though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses.
It is an accepted proposition that in the case of group rivalries and enmities.
there is a general tendency to rope in as many persons as possible as having participated in the assault.
"The courts have, there fore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them", vide Baldev Singh vs State of Bihar, AIR 1972 SC 464.
This Court has in several decisions pointed out that "where there is enmity between the two factions then there is a tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent members of the opposite faction in a criminal case and that therefore the Court has in all such cases to sift the evidence with care and convict only those persons against whom the prose cution witnesses can be safely relied upon without raising any element of doubt", vide Raghubir Singh vs State of U.P., AIR 1971 SC 2 156.
On a perusal of the judgment of the High Court, we find that the necessary caution had not been observed in the approach to the evidence.
The occurrence happened on a narrow track.
The deceased Hanuwa was going ahead of his mother and his sister was still behind.
The witnesses noticed the assailants only when they approached the deceased.
The evidence is not clear that the assailants were seen by Baiyanbai or Birjhbai hiding behind the bushes and emerging from the hiding place.
Th witnesses stated that the accused persons surrounded the victim and each one of them assaulted him with the weapon they had.
PW 1 stated that some of the assailants had given more than one blow and Parsadi assaulted her when she tried to intervene.
If a group of more than 15 persons encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the victim.
We have re ferred to the medical evidence which shows that besides the two incised wounds on the scalp which proved fatal Hanuwa had only five minor injuries on his person.
PWs 1 and 5 did not state who caused the head injuries.
They have not at tempted to attribute any one of the injuries to any particu lar assailant.
The evidence is in general terms.
Even in the first information report, PW 1 only stated that the persons named therein attacked Hanuwa with tabbals and lathis and caused his death.
In a melee where several people are giving blows at one and the same time it will be impossible to particularize the blows.
If any wit 106 ness attempts to do it, his veracity is doubtful.
But it cannot be forgotten that it is simpler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close cross examination.
Therefore, the nature of the injuries sustained by the victim assumes importance.
The nature of the injury sustained in spite of the assertion of the concerted attack with lathis and tab bals by several assailants numbering over 15 renders the evidence doubtful about the participation of such a large number of persons.
When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased, Hanuwa, the necessary inference is that not more than seven persons might have participated in deliver ing the blows.
Therefore, the presence of more than seven persons is doubtful.
This aspect of the case has not been given due weight by the High Court while appreciating the evidence in the case.
"Where an occurrence takes place involving rival fac tions it is but inevitable that the evidence would be of a partisan nature.
In such a situation to reject the entire evidence on the sole ground that it is interested is to shut one 's eyes to the realities of the rural life in our coun try.
It has to be borne in mind that in such situation easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and has to be eschewed and, therefore, the evidence has to be exam ined with utmost care and caution and the Court has to adopt a workable test for being assured about the role attributed to every accused" vide Muthu Naicker vs State of Tamil Nadu, We have therefore to see whether the testimony of PW I and PW 5 as against all or any of the appellants before us finds corroboration with the material on record.
The trial court had acquitted four persons for the reason that their names had been left out in the narration at some stage or the other.
PW 1 before giving the first information had deliberations with her son PW 3.
The finding of the trial court is that in narrating the incidence to him, PW 1 had omitted to mention the names of Arjun and Bhikam.
Before Court, PW 1 did not implicate Nanku.
The name of Parethan does not find a place in the F.I.R. It is for these reasons the trial court acquitted them.
On such acquittal, it is clear that there had been conscious effort to rope in inno cent persons by merely naming them.
Therefore, the apparent conflict between the medical evidence and the eye witness 's account could not have been overlooked.
We are of the opin ion that the High Court has not observed the necessary caution in accepting the evidence in 107 general terms to uphold the conviction of all the appel lants.
We are thus constrained to consider whether there is any evidence from independent sources to lend assurance to the version of PWs I and 5 regarding the participation of any of these appellants.
We have indicated that the presence of at least seven persons at the scene is probable having regard to the nature of the injuries and the manner of the attack.
It is also clear from the manner in which the incident happened that the assailants acted in prosecution of the common object to cause the death of the victim.
We have no doubt in our mind that more than five persons have actually participated in the crime.
We have clear evidence regarding the identity of only four persons.
Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident.
This evidence lends assurance to the testimony of PW I and PW 5 regarding their participation in the crime.
We are of the view that the conviction of these four persons i.e. Baran, Karan, Bhagau and Parsadi has been rightly sustained.
However, regarding the rest of the appellants, there is scope of genuine doubt and we are obliged to give the benefit of doubt to them.
We accordingly set aside the conviction and sentence of the appellants.
namely, Budhwa, Chandu.
Kushwa, Bhuwan, Rajaram.
Nanda, Chatur, Hari Gannu, Pardeshi and Dukhiram and they are acquitted of the charges.
Their bail bonds stand cancelled.
The appeal is dismissed so far as Parsadi, Baran, Bhagau and Karan are concerned.
These appellants shall surrender to suffer the unexpired portion of the sentence.
The appeal is disposed of as above.
P.S.S. Appeal dis posed of.

dataset_name: IN-Abs

summary:
The appellants were convicted for offence under Ss. 147, 149 and 302 IPC for murdering a villager.
The prosecution case was that motivated by group rivalry the accused persons numbering over fifteen attacked the deceased with tabbals and lathis while he accompanied by his mother, PW 1, and sister, PW 5, was on his way to a nearby village to supply milk.
As a result of the injuries sustained the deceased died on the spot.
When PW 1 tried to intervene, site too was assaulted.
She lodged the FIR thereafter the same day against the appellants others.
At the trial PW 4 and PW 6 deposed to having seen appel lants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance.
The medical evidence disclosed that the deceased had sustained in all seven injuries, two incised wounds on the scalp, two contu sions and three bruises.
The trial court found that the appellants were members of an unlawful assembly and death of the deceased was caused by them in prosecution of a common object.
The High Court on appeal agreed with the findings of the trial court.
In the appeal by special leave, it was contended for the appellants that the courts below had failed to exercise the necessary care and caution that was required in scrutinising the evidence of the two eye witnesses who were close rela tions of the deceased and deeply interested in involving the appellants on account of enmity, and that in the absence of independent corroboration the conviction based on the testi mony of these witnesses was unwarranted.
Disposing of the appeal, the Court, 102 HELD: 1.1 It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to involve as many persons of the opposite faction as possi ble by merely naming them as having participated in the assault.
The court, therefore, has in all such cases to sift the evidence with utmost care and caution and convict only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt.
[107C D] Baldev Singh vs State of Bihar, AIR 1972 SC 464; Raghu bir Singh vs State of U.P., AIR 1971 SC 2156 and Muthu Naicker vs State of Tamil Nadu, , referred to.
1.2 The conviction of the appellants was principally based on the evidence of PW 1 and PW 5, the mother and sister of the deceased.
Though their evidence was not to be discarded as interested, necessary caution should have been observed in accepting the same in upholding the conviction of all the appellants.
[104H; 105A] 2.1 In a melee, as in the instant case, where several people are giving blows at one and the same time it will be impossible to particularize the blows.
If any witness at tempts to do it, his veracity is doubtful.
But, it is sim pler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close crossexamination.
Therefore, the nature of injuries sus tained by the victim assumes importance.
[105H; 106A] 2.2 PWs 1 and 5 stated that the accused persons sur rounded the victim and each one of them assaulted him with the weapon they had.
PW 1 stated that some of the assailants had given more than one blow, They did not state who caused the head injuries.
They have not attempted to attribute any one of the injuries to any particular assailant.
The evi dence was in general terms.
If a group of more than fifteen persons had encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the vic tim.
The medical evidence shows that besides the two incised wounds on the scalp which proved fatal the deceased had only five minor injuries on his person.
[105E G] 2.3 When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased the necessary inference would be that not more than seven persons might have participated in delivering the blows.
therefore, the presence of more than seven 103 persons is doubtful.
This aspect of the case has not been given due weight by the High Court while appreciating the evidence.
[105H; 106A C] 3.1 The manner in which the incident happened also makes it clear that the assailants acted in prosecution of the common object to cause the death of the victim.
There is no doubt that more than five persons had actually participated in the crime.
There is clear evidence regarding the identity of only four persons.
Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident.
This evidence lends assurance to the testimony of PW 1 and PW 5 regarding their participation in the crime.
[107B C ] 3.2 The conviction of these four persons has, therefore, been rightly sustained.
Regarding the rest of the appellants there is scope of genuine doubt.
Their conviction and sen tence are accordingly set aside.
[107D]


judgement:
vil Appeal Nos.
4843 44 of 1990.
From the Judgment and Order dated 28.10.1988 of the Rajasthan High Court in D.B. Civil W.P.
No 966of 1986 and 121 of 1985.
Dr. L.M Singhvi, P. Agarwal, S.K. Jain, Sahid Rizvi and D.K. Singh for the Appellant.
N.S. Hegde, Additional Solicitor General, J.D. Jain, R. Mohan, R.A. Perumal, Hemant Sharma, Ms. A. Subhashini and Ms. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted in all the cases.
Pursuant to the resolution passed by certain State Legislatures including that of Rajasthan under clause 1 of Article 252 of the Constitution, Parliament enacted The Water (Prevention & Control of Pollution) Act,1974 (Act VI of 1974), (hereinafter called the '1974 Act '), to provide for the prevention and control of water pollution, the maintaining or restoring of wholesomeness of water, the establishment 123 of Boards for the prevention and control of water pollution, the conferring on and assigning to such Boards powers and functions relating thereto and for matters connected there with. 'Pollution ', as defined in section 2(e), means "such contamination of water or such alteration of physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water as may, or is likely to, create a nuisance or render such water harmful or inju rious to public health or safety, or to domestic, commer cial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of acquatic organisms".
"Sewage effluent" according to section 2(g) means "effluent from any sewerage system or sewage disposal works and includes sullage from open drains".
"Trade efflu ent" according to Section 2(k) includes "any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any trade or industry, other than domestic sewage".
Section 3, 4 and 13 provide for the con stitution of a Central Board, a State Board and a Joint Board, respectively.
Section 16 enumerates the functions of the Central Board constitution for promoting cleanliness of streams and wells in different areas of the State.
Section 17 sets out the functions of the State Board which, amongst others, include preparing a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and for securing its execution; inspec tion of sewage or trade effluents, works and plants for the treatment of sewage and trade effluents: evolving methods for treatment of sewage and trade effluents and for the disposal thereof and laying down standards of treatment of sewage and trade effluents to be discharged into any partic ular stream.
Sections 21 and 22 confer power on the State Board or any officer empowered by it to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from any other place into any stream or well and to send the samples for analysis to the Laboratory established or recognised for that purpose by the concerned Board.
Section 24 prohibits the use of any stream or well for the disposal of polluting matters.
Section 25 imposes restrictions on new outlets and new discharges.
Section 25(1) reads as under: "Subject to the provisions of this section, no person shall, without the previous consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade effluent into a stream or well, or begin to make any new discharge of sewage or trade effluent into a stream or well.
" 124 Under these provisions the application for consent has to be made to the State Board in the prescribed form containing the particulars relating to the proposed construction, installation or operation of any treatment or disposal system or of any extension or addition thereto.
Sub section (7), which is relevant for our purpose, reads as under: "The consent referred to in sub section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board.
" Section 26 provides that persons discharging sewage or trade effluent into a stream or well before the commencement of the Act shall apply for consent within a period of three months of the constitution of the State Board.
If the State Board refuses to grant consent or withdraws consent already granted an appeal is provided to the appellate authority.
Section 29 confers revisional powers on the State Government to call for the records of any case where an order has been made by the State Board under Sections 25, 26 and 27 for the purpose of satisfying itself as to the legality or propriety of any such order.
Failure to comply with the requirements of the statute is punishable under Chapter VII.
Thus, this law aims at prevention and control of water pollution.
On 7th December.
1977, the President gave his assent to the Water (Prevention and Control of Pollution) Cess act,1977(Act No. XXXVI of 1977), (hereinafter referred to as 'the 1977 Act ').
This Act was enacted to provide for the levy and collection of a cess on water consumed by persons carrying on certain industries, with a view to augment the resources of the statutory Boards for the prevention and control of water pollution.
Section 2(c) defines "specified industry" to mean "any industry specified in Schedule I".
Power (Thermal & Diesel) Generating Industry is included at item No. 14 in Schedule I to the Act.
Section 3 which is the charging section inter alia provides that there shall be levied and collected a cess for the purposes of the 1974 Act and utilisation thereunder.
The Cess under sub section (1) is made payable by every person carrying on any specified industry to be calculated on the basis of water actually consumed for any of the purposes specified in column 1 of Schedule II, at such rate not exceeding the rate specified in the corresponding entry in column 2 thereof.
Schedule II enumerates in column 1 the purposes for which water is consumed and sets out the maximum rate of cess therefore in column 2.
The rare of cess for industrial cooling is three fourths of a paisa, per 125 kilolitre, while it is one paisa per kilolitre for domestic purpose.
Where water gets polluted and the pollutants are easily bio degradable, the rate is 2 paise per kilolitre but where the pollutants are not easily bio degradable and are toxic, the rate is two and a half paise per kilolitre.
It is obvious that the rate of cess depends on the degree of pollution.
It may also be noticed at this stage that the cess is to be calculated on the basis of the water 'con sumed ' for any of the purposes specified in column 1 of Schedule II at the rate set out in the notification issued by the Central Government not exceeding the rates specified in column 2 of the said schedule.
Section 4 provides for affixing of meters for the purposes of measuring and record ing the quantity of water consumed.
Section 5 requires every person carrying on any specified industry and every local authority, liable to pay the cess under section 3, to fur nish returns in such forms and at such intervals containing such particulars as may be prescribed to the officer or authority appointed therefore.
The officer or authority to whom the return has been furnished under section 5 is charged with the duty to make an inquiry as to the particu lars stated in the return and then pass an assessment order stating the amount of cess payable by the concerned person or local authority, as the case may be.
Section 14 pre scribes a penalty for failure to file a return and section 11 provides a penalty for failure to pay the cess within 'the specified time.
Any person or local authority aggrieved by an order of assessment made under section 6 or by an order imposing penalty under section 11, may file an appeal under section 13 within the prescribed time.
Section 7 provides for a rebate if the cess is payable.
It reads as under: "Where any person or local authority, liable to pay the cess under this Act, instals any plant for the treatment of sewage or trade effluent, such person or local authority shall from such date as may be prescribed, be entitled to rebate of seventy per cent of the cess payable by such person or, as the case may be, local authority.
" The expressions 'sewage ' and 'trade effluents ' having not been defined would have the same meanings respectively assigned to them under the 1974 Act.
Section 17 empowers the Central Government to make rules for carrying out the pur poses of the Act.
Under that section, the Central Government made the Water (Prevention & Control of Pollution) Cess Rules, 1978, (hereinafter called 'the Rules ').
Rule 6 there of deals with rebate.
Under that rule where a consumer instals any plant for the treatment of sewage or trade effluent such consumer becomes entitled to the rebate under section 7 on or from the expiry of 15 days from the 126 date on which such plant is successfully commissioned and so long as it functions successfully.
The appellant, the Rajasthan State Electricity Board constituted ' in 1957 under section 5 of the , established a Thermal Power Station on the bank of River Chambal in Kota for generating energy.
It admittedly consumes water from the river for Condensor Cooling.
The water drawn from the river is filtered and thereafter passes through an enclosed pipeline over the condensor unit for cooling the condensor, After the water is used for cooling, it is treated as a trade effluent in the neutralisation plant installed by the appellant at consider able expense with a view to preserving the wholesomeness of water before it is discharged into the river.
After conden sor cooling, the water passes through an enclosed under ground steel pipeline of the length of about 478 meters upto the seal pit.
On reaching the seal pit the water is pumped to a height of about 22 feet from where it is made to fall into an open channel and is then carried in that channel to a distance of about 150 feet before it plunges into the river.
In this manner the water at the seal pit comes in contact with air.
Its temperature is reduced firstly by the 22 feet fall into the open channel and thereafter by cover ing a distance of about 150 feet before getting merged in the river or stream.
The temperature is thus brought down to below 40 deg.
C, the standard prescribed under the Minimum National Acceptable Standards published by the State Board.
The appellant had also installed a 0.4 MGD plant for treat ment of sewage.
Both these plants, contends the appellant, are working satisfactorily.
The appellant submitted monthly returns of the water consumed from river Chambal for its Thermal Station, units 1 and 2, for the period from July, 1983 to January, 1984 and February, 1984 to June 1984.
The Assessing Authority, re spondent No. 2, assessed the cess at Rs. 13, 13,710 for the first period and Rs.9,42,013 for the subsequent period.
No rebate was allowed under section 7 of the 1977 Act on the ground that the so called neutralisation plant was not a plant for the treatment of sewage or trade effluents within the meaning of the said provision.
Nothing was said about the plant for the treatment of sewage.
The appellant filed an appeal under section 13 in respect of the cess claimed for the period from July, 1983 to January, 1984.
The appel late authority dismissed the appeal holding that the cess was correctly assessed and the appellant was not entitled to rebate.
In respect of the assessment for the period from February, 1984 to June, 1984 the appellant submitted a review petition which was rejected by respondent No. 2.
The appellant then preferred an appeal but the 127 same was dismissed as barred by limitation.
The appellant preferred separate Writ Petitions Nos.
12 1/85 and 966/86 in the High Court challenging the two assessment orders.
In the former writ petition the High Court granted interim stay against the recovery of the disputed cess amount to the extent of seventy percent till the disposal of the writ petition.
In the second writ petition since the appellant had already paid the amount of cess, the application for stay did not survive but for future assessment orders, it directed the appellant to pay thirty percent regularly and the remaining seventy percent with interest at 15% per annum in the event the challenge failed.
Both the aforesaid writ petitions were finally disposed of by a Division Bench on 28th October.
1988 which dismissed them holding that the cess was correctly assessed and the appellant was not enti tled to rebate.
In taking this view the Division Bench came to the conclusion that there was no material on record to show that the appellant had applied for consent of the State Board to instal a plant either under section 25 or section 26 of the 1974 Act nor was there evidence to show that such consent was given.
It, therefore, opined that the authori ties below had rightly concluded that the benefit of rebate under section 7 was not admissible to the appellant.
While dismissing the writ petitions the Division Bench, however, observed as under: "Anyhow if the consent after the period of assessment in dispute has either been obtained for discharge of effluent etc., or can be deemed to have been obtained and if the treatment plants are working satisfactorily, the petitioner shall be entitled to rebate according to the provisions of rules for that period.
" It follows therefrom that the Division Bench refused to grant rebate to the extent of seventy per cent for want of consent under section 25 or 26 of the 1974 Act.
Feeling aggrieved by the Judgment and order passed by the Division Bench of the High Court, the appellant pre ferred special leave petitions (Civil) Nos. 1429 and 2157 of 1989 challenging the dismissal of the said two writ peti tions.
During the pendency of these proceedings several assessment orders came to be made for the subsequent periods upto may, 1989 for the water consumed at the appellant 's Thermal Units.
The Assessing Authority also refused to grant rebate, The appellant preferred appeals against the assess ment orders passed from time to time but to no avail.
In stead of approaching the High Court the appellant has filed Special Leave Petitions Nos. 3223, 3262, 128 3272, 4599 and 4600 of 1990 in this Court against the said assessment orders as well as the refusal to grant rebate on the ground that similar questions were involved in the earlier two special leave petitions which were pending in this Court.
We have granted special leave in all cases under Article 136 of the Constitution and we now proceed to dis pose them of by this common Judgment.
Dr. Singhvi, the learned counsel for the appellant con tended that the 1977 Act was an independent piece of legis lation and was not, what he called, 'the pari materia or parasite legislation ' to the 1974 Act, and hence once it is shown that the appellant had installed a plant for the treatment of a trade effluent within the meaning of section 7 of the 1977 Act read with rule 6 of the Rules, the appel lant was entitled to rebate regardless of whether or not the appellant had secured the consent of the State Board under section 25(1) of the 1974 Act.
He contended that the State Board 's consent became necessary only if an outlet new or altered was sought to be used for the discharge of sewage or trade effluent in the stream and not otherwise.
In the present case, contended Dr. Singhvi, the appellant had put up an independent sewage plant for the treatment of sewage and an independent neutralisation plant for the treatment of water discharged from the condensor cooling plant of the Thermal Station.
So far as the former is concerned the consumption of water is negligible; the bulk consumption takes place at the condensor cooling plant from where water is discharged after use at a temperature far above the standard of 40 C, which if discharged into the stream with out treatment would be harmful and injurious to acquatic organisms in the stream.
That is why the neutralisation plant was necessary to bring down the temperature of water to 40C or below before its actual discharge in the stream.
At the point where this water merges into the stream its temperature is below 40 C and therefore it ceases to be a contaminated trade effluent.
Since the outlet is used for the discharge of this water which is no more polluted it cannot be said that it is used for the discharge of a trade effluent within the meaning of section 25(1) of the 1974 Act.
According to Dr. Singhvi the enactment being essential ly for the prevention, control and abatement of pollution of streams and wells.
the duty to ensure the purity of streams and wells is cast on the State Board and for the effective performance of the same, section 25( 1) ' provides for previ ous consent if any new or altered outlet is intended to be brought use for the discharge of sewage or trade effluent.
But no such previous consent would be necessary if uncontam inated water is sought to be discharged into the stream.
In other words according to Dr. Singhvi the expression 'trade effluent ' in section 2(k) must be read 129 in the context of the purpose and object of the law and the mischief it seeks to curb.
Yet, by way of abundant caution, the appellant applied for the grant of consent under section 25/26 of the 1974 Act by the letter dated 9th April, 1984 for the neutralisation plant and by the letter dated I2th April, 1984 for the sewage plant meant for the colony of workmen situate within the power Station.
Under sub section (7) section 25 since the State Board neither granted nor refused consent within the period of four months from the receipt of the applications, it must be deemed to have been granted unconditionally on the expiry of the said period.
Lastly, he pointed out that during the pendency of the two writ petitions in the High Court, the Secretary of the State Board granted the required consent and conveyed it by his letter No. F. 5(B I4)RSEB/Tech/86/11472 dated 24th March, 1988.
Therefore, when the Division Bench of the High Court disposed of both the writ petitions the consent of the State Board under section 25(1) was already granted and hence the High Court was not right in making the observations it made in paragraphs 7 and 9 of the impugned judgment.
We may clarify that in the present appeals we are not concerned with the legality and validity of the levy of cess.
Dr. Singhvi, however, stated that the appellant re served the right to challenge the validity of the 1977 Act, if the interpretation placed by the authorities below on the true scope and meaning of section 7 read with rule 6 is found to be correct.
We may state that since we are not required to go into the question of Parliament 's competence to enact the 1977 Act, we do not propose to delve into this aspect of the matter.
Now, on a plain reading of sub section (1) of section 25 it becomes clear that the previous consent of the State Board is necessary where any new or altered outlet is pro posed to be used for the discharge of sewage or trade efflu ent into a stream or well.
If what is discharged in the stream or well is not a pollutted 'trade effluent ' (section 2(k)) or a 'sewage effluent ' (section 2(g)), can there be any question of seeking the previous consent of the State Board? The appellant has a separate sewage plant.
Since the bulk of the water is consumed at the condensor cooling plant and the same is recycled into the stream, the question is whether what is discharged in the stream can be said to be a trade effluent? Dr. Singhvi emphasised that the consent of the State Board would not be necessary under section 25(1) for the discharge of that recycled water, unless it is shown that what the appellant discharged in the stream or river was polluted water, According to Dr. Singhvi, the use of water at the condensor cooling plant merely raises the temperature of water above the tolerance limit 130 of 400 C. if the water is discharged in the river or stream before its temperature is reduced to 400 C or below, it may well be contended that within the broad meaning of the expression 'pollution ' in section 2(e), it was imperative for the appellant to obtain the previous consent of the State Board for making use of that outlet.
But if, on the other hand, it is shown that the temperature of water is brought down to the prescribed standard and the water is no more harmful or injurious to acquatic organisms in the river or stream i.e. is not polluted, the discharge of such water cannot be equated with discharge of a trade effluent.
This raises a mixed question of law and fact, viz., whether the recycled water returned to the stream in the same condition in which it was drawn with the temperature reduced to less than 400 C, can still be said to be a 'trade effluent ' requiring consent under Section 25( 1)? It may, in this context be mentioned that samples of the trade effluent were collected by the State Board for analysis on 24th May, 1984.
By letter dated 3rd December, 1984, the appellant requested the Assistant Engineer, State Board, to supply a copy of the analysis report which was refused by the letter dated 26th December, 1984.
The appellant was informed that the monitor ing results conducted by the Board .were not supplied to the concerned industries.
He added that the appellant could get the sample tested, if so desired, at the Board 's Laboratory on payment basis.
We think that if the Board was in posses sion of this vital information, it should have in all fair ness brought it on record rather than withhold it.
If that information was available on record Dr. Singhvi 's contention could have been met.
We are, however, not inclined to raise any adverse inference as was suggested.
We now come to the second limb of Dr. Singhvi 's submis sion.
According to him, section 7 of the 1977 Act is not dependent on the Board 's consent under section 25(1) of the 1974 Act.
In fact neither section 7 nor rule 6 speak about the same.
All that section 7 says is that any person or local authority which is liable to pay cess can claim rebate of 70% of the cess payable by him or it, if he or it has installed a plant for the treatment of sewage or trade effluent, as the case may be.
A plant has undoubtedly been installed for the treatment of sewage and no dispute in that behalf was raised before us.
However, as the bulk consump tion of water from the river is used at the condensor cool ing plant the question is whether the appellant can be said to have installed a plant for the treatment of a trade effluent.
The Appellate Authority took the view that a 150 ft. long channel meant for carrying the trade effluent cannot be described as a treatment plant.
The appellant contended that the treatment plant installed by it comprises of an 131 arrangement to lift the water to a height of 22 ft. and then drop it from that height into an open channel so that it cools down on coming in contact with the atmosphere and then flows towards and into the river.
It would appear that this arrangement was not specifically brought to the notice of the authorities below including the High Court and it seems the authorities decided the question of the existence of the treatment plant on the premise that it consisted of merely a single 150 ft. long channel.
However, this aspect has to be looked into.
The High Court has, however, taken the view that in the absence of consent under Section 25( 1 ), the appellant is not entitled to rebate.
We find it difficult to agree with this view.
Section 7 as well as Rule 6 do not envisage the Board 's consent under Section 25(1) of the 1974 Act as a sine qua non.
Under section 7 the consumer has only to show that he has installed a plant for the treatment of sewage or trade effluent and that it functioned successfully during the relevant period to earn rebate.
Section 25(1) operates in a different field and has nothing to do with a plant installed for the treatment of a trade effluent although the grant of consent to a new outlet can be conditional on the existence of a plaint for the satisfactory treatment of effluents to safeguard against pollution of the water in the stream.
The High Court refused the claim for rebate as it erroneously thought that the prior consent of the State Board was a must.
That is why in the concluding part of the Judgment it observed that if the consent is subsequently obtained or deemed to be obtained and the plant is working successfully, the appellant will be entitled to rebate.
Since we are of the view that the Board 's consent under Section 25(1) was not imperative, we think that that part of the High Court 's order cannot be sustained.
So far as the 1977 Act is concerned it would be neces sary to consider the true scope and meaning of section 7 and rule 6.
On a plain reading of the said provisions it would be necessary to decide (i) whether water discharged from the condensor cooling plant can be said to be a 'trade effluent ' by reason only of the fact of its temperature being above the prescribed standard, (ii) whether but for the treatment given to it as described by the appellant and set out above such water would have been discharged in the stream or river at a temperature above 40 deg.
C, and (iii) whether the ar rangement made by the appellant as set out above can, there fore, be described as a plant for the treatment of a trade effluent.
These and the related questions must be answered to effectively deal with the appellant 's claim for rebate.
The authorities below including the High Court have not applied their minds to these essential for deciding the question of grant or refusal of 132 rebate.
If it is found that the plant in question is one for the treatment of a trade effluent, the appellant would be entitled to rebate notwithstanding the absence of consent under section 25(1) of the 1974 Act.
We feel that the par ties did not focus their attention on these vital aspects and, therefore, failed to place on record the material essential for deciding the application for grant of rebate.
In the circumstances, we are left with no alternative but to remit the matter to the Assessing Authority with a direction to permit the appellant as well as the State Board to place on record such material as is considered relevant and there after give the parties an opportunity of being heard before deciding the matter.
The Assessing Authority should do so without being influenced by the previous orders of the authorities as well as the High Court.
In the meantime i.e. till the Assessing Authority decides the matter afresh, the appellant will continue to pay 30% of the cess amount and will file an undertaking in this Court within eight weeks from today to the effect that in the event the appellant is finally found liable to pay the balance of 70% the appellant will pay the same with interest at 15% per annum within six months from the final determination.
The appeals are allowed accordingly.
Having regard to the facts and circumstances of these cases, we make no order as to costs.
Y. Lal Appeals allowed.

summary:
The Water (Prevention & Control of Pollution) Act, 1974 was enacted inter alia to provide for the prevention and control of water pollution, the maintaining or restoring of wholesomeness of water, etc.
Section 25 of the said Act provides that no person shall without the consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or trade effluent into a stream or well, or begin to make any new discharge of sewage or trade effluent into a stream or well.
Section 26 lays down that persons discharging sewage or trade effluent into a stream or well before the commencement of the Act shall apply for consent within a period of three months of the Constitution of State Board.
Thereafter the was enacted to provide for the levy and collection of cess on water consumed by persons carrying on certain industries, Power (Thermal & Diesel) Generating Industry was one such industry included at item No. 14 in Schedule I to the Act.
Section 3 of the 1977 Act provides that there shall be levied and collected a cess for the purposes of the 1974 Act and utilisation thereunder.
The cess under the Act is made payable by every person carrying on any specified industry and the same has to be calculated on the basis of the water actually consumed at rates speci fied in the Schedule.
Section 7 of the Act provides for rebate.
The appellant has established a Thermal Power Station on the bank of River Chambal for generating energy.
It consumes water from the river for condensor cooling.
After the water is used for cooling, it is treated as a trade effluent in the neutralisation plant before it is discharged into the river.
According to the appellant, the temperature, 121 after following the prescribed procedure, is brought down to below 40 C, when it is discharged into the river.
The appel lant had also installed a 0.4 MGD plant for treatment of sewage.
According to the appellant both these plants are working satisfactorily.
The appellant, as required by the rules, submitted monthly returns of the water consumed from the river for its Thermal Station for the period from July 1983 to January 1984 and February 1984 to June 1984.
The respondent authority.
assessed the cess at Rs.13,13,710 for the first period and Rs.9,42,013 for the subsequent period.
No rebate was allowed under Section 7 of the 1977 Act on the ground that the so called neutralisation plant was not a plant for the treatment of sewage or trade effluent within the meaning of the said provision.
The appellant filed an appeal under section 13, in respect of the cess claimed for the period July 1983 to January 1984, but the appellate authority dismissed the same holding that the cess was correctly assessed and that the appellant was not entitled to rebate.
As regards the period from February 1984 to June 1984.
the appellant submitted a review petition which was rejected by respondent No. 2.
Thereupon, the appellant filed separate writ petitions before the High Court challenging the assessment orders.
Both the writ petitions were dismissed by the High Court.
The High Court opined that there was nothing on record to show that the appellant had applied for consent of the State Board to install a plant either under section 25 or section 26 of the 1974 Act nor was there any evidence to show that such consent was given.
It accordingly held that the author ities under the Act had rightly disallowed the claim of rebate to the appellant under section 7.
Against the orders of the High Court as also against various assessment orders which were passed subsequent to the orders of the High Court the appellant has filed these appeals, after obtaining special leave.
Allowing the appeals, and remanding the cases to the Assessing Authority for fresh disposal, this Court HELD: A plant has undoubtedly been installed for the treatment of sewage and no dispute in that behalf was raised.
However, as the bulk consumption of water from the river is used at the condensor cooling plant the question is whether the appellant can be said to have installed a plant for the treatment of a trade effluent.
[130G] The Appellate Authority took the view that a 150 fl.
long channel meant for carrying the trade effluent cannot be described as treatment plant.
The appellant contended that the treatment plant installed 122 by it comprised of an arrangement to lift the water to a height of 2211.
and then drop it from that height into an open channel so that it cools down on coming in contact with the atmosphere and then flows towards and into the river.
[130H; 131A] Section 7 as well as Rule 6 do not envisage the Board 's consent under Section 25(1) of the 1974 Act as a sine clua non.
Under Section 7 the consumer has only to show that he has installed a plant for the treatment of sewage or trade effluent and that it functioned successfully during the relevant period to earn rebate.
Section 25(1) operates in a different field and has nothing to do with a plant installed for the treatment of a trade effluent although the grant of consent to a new outlet can be conditional on the existence of a plant for the satisfactory.
treatment of effluents to safeguard against pollution of the water in the stream.
[131C E] Since the Board 's consent under Section 25(1) was not imperative that part of the High Court 's order cannot be sustained.
[131E]


judgement:
vil Appeal Nos.
4043 and 1370 of 1987.
221 From the Judgment and Order dated 20.11.1987 and 4.3.1987 of the Jammu & Kashmir High Court in L.P.A. No. 20/1987 and in Suit No. 235/86.
K. Parasaran, Ms. section Janani and Ms. Urmila Kapur for the Appellant in C.A. No. 4043/87.
P. Chidambaram, P.H. Parekh and Ms. Gitanjali Mathrani for the Appellants in C.A. No. 1370/87.
M. Beg, E.C. Agarwala, Atul Sharma, Vijay Pandita and Ms. Purnima for the Respondents in C.A. No. 4043/87.
E.C. Agarwala and Atul Sharma for the Respondents in C.A. No. 1370/87.
Ashok Mathur for the State of Jammu and Kashmir and Advocate General.
The Judgment of the Court was delivered by THOMMEN, J.
Civil Appeal No. 4043 of 1987.
The question which arises in this appeal is as regards the validity of clause (iii) of sub section (3) of Section 1 of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966 (hereinafter referred to as "the Act").
The challenge against the clause on the ground of its alleged violation of Article 14 of the Constitution was rejected by the High Court of Jammu & Kashmir.
The High Court, following its earlier decision in The J & K Bank Ltd. vs State of J & K & Another, AIR 1987 J & K 18, upheld the validity of the clause.
The impugned provision, as it stood at the relevant time, reads: "1(3) Notwithstanding anything contained in sub section (2), nothing in this Act shall apply to (ii) Omitted (iii) any tenancy in respect of any house.
or shop where the income of the tenant, whether accruing within or outside 222 the State, exceeds rupees 40,000 per annum; Explanation: the word 'income ' means 'net income. '" The appellant, the Delhi Cloth & General Mills Limited is the tenant of the building in question.
Its claim for the protection of the Act was disallowed by the courts below on the ground that clause (iii) of sub section (3) of Section 1, read with the Explanation, was attracted in respect of the appellant.
According to the appellant, the impugned clause is discriminatory and arbitrary because it draws an artificial distinction between tenants on the basis of their income.
Those tenants earning net income below Rs.40,000 per annum are fortunate enough to be protected by the beneficial provisions of the Act, while a person like the appellant whose annual net income is undoubtedly in excess of the statutory limit of Rs.40,000, is unreasonably and unfairly denied the protection of the Act.
This statutory discrimina tion, it is contended, places persons like the appellant at the mercy of the landlords who can easily evict them by recourse to the far less restrictive provisions of the and on the strength of their agreements of lease.
Counsel for the appellant submits that the impugned clause does not take into account the nature of the build ing, but only the income of the tenant.
The income of the landlord himself is irrelevant.
The protection of the Act is withheld or extended, dependent solely on the financial capacity of the tenant and without regard to the need of the landlord or the age or other conditions of the building or any other factor.
Treating tenants differently with refer ence to their annual income is not an intelligible classifi cation, for the income of a tenant may vary from year to year, depending upon the nature of his business and other factors.
This variation in income may expose him to eviction in a particular year when the business is prosperous but protects him from eviction when the business declines and income falls.
Furthermore, counsel says.
"income" is not a clear and precise concept.
Limiting it to net income does not make it clearer.
What are the permissible deductions to arrive at the "net", the Act does not say.
The Section is invalid because it is too broad or vague.
Any classification based on such vague differentia is unintelligible and, therefore, violative of Article 14.
In any view, counsel submits, the classification sought to be made between per sons falling on either side of the 223 specified income has no reasonable relation to the object sought to be achieved by the statute.
Counsel relies on the observation of this Court in Rattan Arya & Others vs State of Tamil Nadu & Another, ; declaring Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as unconstitutional.
Counsel also relies upon the decision of this Court in Motor General Traders & Another vs State of Andhra Pradesh & Others, ; declaring Section 32(b) of the A.P. Buildings (Lease, Rent and Evic tion) Control Act, 1960 as unconstitutional.
These decisions, in our view, are easily distinguisha ble.
In Rattan Arya (supra) this Court stated that a dis tinction between residential buildings leased on rent not exceeding Rs.400 per month and all other buildings whether residential or non residential was an unreasonable classi fication.
There was no reason why non residential buildings leased on rent of Rs.400 per month or less should be treated differently from residential buildings of like rent or why in the case of residential buildings the limit should have been limited to Rs.400 per month.
To so restrict the protec tion of the Act was an unreasonable classification.
In the Motor General Traders (supra), this Court stated that to arbitrarily prescribe a cut off date, i.e., August 26, 1957, for denying the protection of the Act, without regard to the age of the building or to the extent of realisation of the investment by the owner was an unreasonable classification.
These decisions do not, in our view, support the contentions of the appellant.
On the other hand, a classification with reference to economic realities was upheld by this Court in Kerala Hotel & Restaurant Association & Ors.
vs State of Kerala & Ors., [1990] 1 JT SC 324.
This Court stated "those who can afford the costlier cooked food, being more affluent, would find the burden lighter.
This object cannot be faulted on princi ple and is, indeed, laudable".
Though that principle was stated in a different context, significantly this Court accepted a classification based on financial capacity.
The classic and oft repeated test to be applied when the constitutionality of legislation is questioned with refer ence to Article 14 of the Constitution is what is stated by this Court in Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolkar & Others, S.R. Das, CJ.
stated: "In order, however, to pass the test of permissible classi fication two conditions must be fulfilled, namely, (i) that the 224 classification must be rounded on an intelligible differen tia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question.
" The object of the enactment in question is undoubtedly to protect the weaker section of tenants from.
unreasonable eviction and unfair rent.
The legislature, at the same time, did not desire to discourage persons from constructing buildings.
The twin legislative object is the protection of economically weaker tenants and encouragement of construc tion of buildings.
While protection is thus afforded to deserving tenants, construction of new buildings is encour aged by exempting buildings occupied by richer classes of tenants from the provisions of the Act.
While a building is covered by the Act when occupied by a tenant whose annual net income is less than the specified amount, the protection is withheld when the same building is occupied by a richer tenant whose annual net income is higher than the specified amount.
Where a building is occupied by more than one ten ant, the applicability of the Act to each of them would depend upon his net income.
It is the tenant that the legis lature intends to protect and not the landlord or his build ing.
The test adopted by the legislature for this purpose is with reference to the tenant 's net income, whether accruing inside or outside the State, as on the date of the land lord 's application for eviction as well as on the date of the decree for eviction.
The legislative object is, there fore, to protect tenants who are economically weaker in comparison to those affluent tenants falling outside the specified limit of income, and at the same time to encourage construction of new buildings which will result in better availability of accommodation, employment opportunity and economic prosperity.
This is a reasonable classification which does not suffer from the vice of being too vague or broad.
Classification based on income is well known to law.
Such classification has a reasonable relation to the twin legislative object mentioned above.
We see nothing unreason able or irrational or unworkable or vague or unfair or unjust in the classification adopted by the impugned provi sion.
Nor is there lack of clarity in the concept of "income" or "net income".
Income is money or other benefit periodi cally received.
It is profit or revenue and not capital.
It is a gain derived from capital or labour or both.
Net income is income obtained after deducting all expenses incurred for the purpose of earning the income.
It is income minus oper ating expenses.
The concept of net income is what it is 225 ordinarily understood to be in common parlance, and not necessarily limited by the technicalities of any fiscal enactment.
See in this connection the observation of the Jammu & Kashmir High Court in Banarasi Das vs Jagdish Raj Kohli, AIR 1960 J & K 5.
The legislature in its wisdom is presumed to understand and appreciate correctly the problems of the State and the needs of the people made manifest by experience.
Absent blatant, disregard of constitutional provisions, legislative innovation by social and economic experimentation must be permitted to continue without judicial interference.
The High Court, as stated earlier, followed its earlier decision on the construction of the Section in The J & K Bank Ltd. vs State of J & K & Another, AIR 1987 J & K 18.
In that case, speaking for the Division Bench, Anand, CJ.
stated as follows: "In our opinion, the challenge to vires of section 1(3)(iii) of the Act is not well founded.
Undoubtedly, the Act is a piece of social and beneficial legislation.
The Legislature knows and correctly appreciates the needs of its people.
In its supreme wisdom it denied the protection of the Act to ten ants whose annual income exceeds Rs.40,000.
Social legisla tion of this type is designed to protect the interest of a class of society who, because of their economic conditions, deserves such protection against their arbitrary eviction.
The legislation is intended to protect weaker and poorer classes of the tenants and there is, therefore, an intelli gible differentia between the tenants whose annual income is Rs.40,000 and those whose annual income is more than Rs.40,000.
In construing article 14, the aid whereof has been pressed into service by the learned counsel, the Court is not required to adopt a doctrinaire approach which would choke the beneficial legislation.
It is open to the legisla ture to recognise the degree of harm and while doing so it can always make reasonable classification.
Article 14 for bids class legislation but no reasonable classification.
With a view to pass the test of reasonable classification, there must exist intelligible differentia between persons or things grouped together from those who have been left out and there must be a reasonable nexus with the object to be achieved by the legislation.
Keeping in view the object which the legislation seeks to achieve, it can be safely said that there is reason 226 able nexus between the classification made by the legisla ture in the impugned section and the object sought to be achieved.
We also find that there is an intelligible differ entia between the tenants who are sought to be protected by the Act from those who are denied the protection of the Act.
We are in complete agreement with what has been stated by the learned Chief Justice.
Accordingly, we see no merit in this appeal.
It is dismissed with costs here and in the courts below.
Civil Appeal No. 1370 of 1987.
This appeal is brought by a nationalised bank.
In view of our judgment in Civil Appeal No. 4043 of 1987, ' we dis miss this appeal with costs here and in the High Court.
N.P.V. Appeals dis missed.

summary:
The appellant, a tenant, claimed protection of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966.
The courts below disallowed the claim, on the ground that clause (iii) of sub section (3) of Section 1, read with the Expla nation was attracted in respect of the appellant.
The appellant challenged the validity of clause (iii) of sub section (3) of Section 1 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 before the High Court on the ground that it violated Article 14 of the Constitution.
The High Court, following its earlier decision in the J & K Bank Lid.
vs State of J & K & Another, AIR1987 J & K 18 upheld validity of the clause.
In the appeal before this Court, the appellant tenant contended (i) that the clause was discriminatory and arbi trary, because it drew an artificial distinction between tenants on the basis of their income, in that while those tenants earning net income below Rs.40,000 per annum were protected by the beneficial provisions of the Act, those with annual net income in excess of the statutory limit of Rs.40,000 were unreasonably and unfairly denied the protec tion and this statutory discrimination placed them at the mercy of the landlords, who could easily evict them by recourse to the far less restrictive provisions of the Transfer of 219 Property Act, 1882 and on the strength of their agreements of lease, (ii) that the clause did not take into account the nature of the building, or the need and income of the land lord or any other factor and withheld or extended protection solely on the financial capacity of the tenant, which could vary from year to year, depending upon the nature of his business and other factors, thus exposing the tenant to eviction when the business was prosperous, but protecting him when the business declined and income fell, (iii) that "income" was not a clear and precise concept; limiting it to net income did not make it clearer, and the Act did not indicate the permissible deductions for arriving at the "net" and (iv) that the Section was invalid because it was too broad or vague and any classification based on such vague differentia was unintelligible and, therefore, viola tive of Article 14; and in any view, the classification sought to be made between persons falling on either side of the specified income had no reasonable relation to the object sought to be achieved by the statute.
Dismissing the above appeal, and another similar appeal (Civil Appeal No. 1370 of 1987), this Court, HELD: 1.1 The object of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 is undoubtedly to protect the weaker section of tenants from unreasonable eviction and unfair rent.
At the same time, the legislature did not desire to discourage persons from constructing buildings.
Thus, while protection is afforded to deserving tenants, construction of new buildings is encouraged by exempting buildings occupied by richer classes of tenants from the provisions of the Act.
While a building is covered by the Act when occupied by a tenant whose annual net income is less than the specified amount, the protection is withheld when the same building is occupied by a richer tenant whose annual net income is higher than the specified amount.
Where a building is occupied by more than one tenant, the applica bility of the Act to each of them would depend upon his net income.
It is the tenant that the legislature intends to protect and not the landlord or his building.
The test adopted by the legislature for this purpose is with refer ence to the tenant 's net income, whether accruing inside or outside the State, as on the date of the landlord 's applica tion for eviction as well as on the date of the decree for eviction.
[224B E] 1.2 The legislative object is, therefore, to protect tenants who are economically weaker in comparison to those affluent tenants falling outside the specified limit of income, and at the same time to encourage construction of new buildings which will result in better availability of 220 accommodation, employment opportunity and economic prosperi ty.
This is a reasonable classification which does not suffer from the vice of being too vague or broad.
[224E F] 1.3 Classification based on income is well known to law.
Such classification has a reasonable relation to the twin legislative object of protecting economically weaker tenants and encouraging new constructions.
There is nothing unrea sonable or irrational or unworkable or vague or unfair or unjust in the classification adopted by Section 1(3)(iii) of the Act.
[224F; 22SD] 1.4 The legislature in its wisdom is presumed to under stand and appreciate correctly the problems of the State and the needs of the people made manifest by experience.
Absent blatant disregard of constitutional provisions, legislative innovation by social and economic experimentation must be permitted to continue without judicial interference.
[225B] The J & K Bank Ltd. vs State of J & K & Another, AIR 1987 J & K 18, approved.
Rattan Arya & Others vs State of Tamil Nadu & Another, ; and Motor General Traders & Another vs State of Andhra Pradesh & Others, ; , distin guished.
Kerala Hotel & Restaurant Association & Ors.
vs State of Kerala & Ors., [1990] 1 JT SC 324, relied on.
Krishna Dalmia vs Shri Justice S.R. Tendolkar & Others, ; , referred to. 2.
There is no lack of clarity in the concept of "in come" or net income.
Income is money or other benefit peri odically received.
It is profit or revenue and not capital.
It is a gain derived from capital or labour or both.
Net income is income obtained after deducting all expenses incurred for the purpose of earning the income.
It is income minus operating expenses.
The concept of net income is what it is ordinarily understood to be in common parlance, and not necessarily limited by the technicalities of any fiscal enactment.
[224G H] Banarasi Das vs Jagdish Raj Kohli, AIR 1960 J & K 5.
re ferred to.


judgement:
vil Appeal No. 277 1 of 1981.
From the Judgment and Order dated 5.2.1980 of the Andhra Pradesh High Court in S .A.
No. 526 of 1977.
Jagdish K. Agarwal (N.P.) for the Appellant.
A Subba Rao for the Respondents.
KANIA, J. This is an appeal by special leave from the decision of a learned Single Judge of the Andhra Pradesh High Court in Second Appeal No. 526 of 1977.
As we are, with respect, in agreement with the conclu sions arrived at by the learned Single Judge of the High Court, we propose to set out only the bare facts essential for the purposes of our judgment.
The appellant was the plaintiff and the respondent was the defendant in Suit.
O.S. No. 789 of 1973 filed in the Court of the Third Assistant Judge, City Civil Court, Hyd erabad.
The appellant prayed for a decree for recovery of possession of the suit premises from the respondent and for mesne profits till the delivery of possession of the prem ises.
The case of the appellant was that she was the owner of the suit premises and the respondent was in the occupa tion of the said premises on payment of Rs.30 per month.
The respondent had been 215 irregular in the payment of the said rent and had been a source of perpetual nuisance.
It was on this ground that the eviction of the premises was sought by the appellant.
In his written statement the respondent took a preliminary objec tion that the City Civil Court had no jurisdiction to enter tain the suit as the suit fell within the jurisdiction of the Rent Controller at Hyderabad.
Two petitions had earlier been filed by the appellant before the Rent Controller for eviction of the respondent and the Rent Controller had rejected the same on the ground that the purported tenancy of the respondent was hit by section 3 of the A.P. Rent Control Act and hence, the eviction suit was not entertain able by the Court of Rent Controller.
This conclusion was arrived at on a plea to the said effect taken by the re spondent.
In the Court of learned Third Assistant Judge of the City Civil Court at Hyderabad the respondent took up the plea that the suit fell exclusively within the jurisdiction of the Rent Controller and hence the City Civil Court had no jurisdiction to entertain the suit.
Certain pleas were made regarding amendments in the law with which we are not con cerned in this appeal.
What is material to note for our purposes is that the learned Assistant Judge took the view that as the respondent had, before the Rent Controller, taken up the plea that it was not the Rent Controller but the City Civil Court which had the jurisdiction to entertain the eviction petition against him, and the said plea was upheld, it was not open to the respondent to take up the inconsistent plea before the City Civil Court that it was the Rent Controller and not the City Civil Court which had jurisdiction to entertain the proceedings.
It was held that the respondent could not be allowed to approbate and repro bate and that he was estopped by way of pleading to take up an inconsistent plea regarding jurisdiction.
On the basis of this conclusion, and other conclusions with which we are not concerned, the suit was decreed by the learned Assistant Judge in favour of the appellant.
The decision of the learned Assistant Judge was upheld in an appeal filed by the respondent in the Court of the learned Additional Chief Judge of the City Civil Court at Hyderabad.
On a second appeal preferred by the respondent, the learned Single Judge of the High Court took the view that in matters of jurisdiction the question of estoppel does not arise.
If the City Civil Court has no jurisdiction to entertain the suit, the doctrine of estoppel could not be invoked so as to confer jurisdiction on the Court of City Civil Court.
On the question of jurisdiction the learned Judge took the view that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller.
216 Learned counsel for the appellant submitted that the learned Judge of the High Court was in error,as the earlier decisions of the Rent Controller to the effect that it was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant against the respondent, constituted res judicata between the parties on the question of jurisdiction.
It was submitted by him that, even if that decision was wrong, the issue of jurisdiction was finally decided between the par ties and that decision was that it was the Civil Court and not the Rent Controller that had the jurisdiction to enter tain and dispose of the suit for eviction.
He further sub mitted that the respondent could not be permitted to take inconsistent pleas as he was barred by the principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who had the exclusive jurisdic tion to entertain the suit.
He placed reliance on a decision rendered by a Division Bench comprising two learned Judges of this Court in Avtar Singh and Others vs Jagjit Singh and Another, ; which took the view that the Civil Court 's decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit.
In that case the Civil Court declined jurisdiction.
The Civil Court took the view that it had no jurisdiction to try the suit in question and directed the return of the plaint for representation to the appropriate Revenue Court.
When the claim was filed in the Revenue Court, the Court took the view that it had no juris diction to try the claim.
Thereupon, a suit was again insti tuted in the Civil Court for the lame relief.
This suit failed throughout on the ground of res judicata.
I?he High Court affirmed the dismissal and the Division Bench of this Court took the view that the High Court was right in taking the view hat the principles of res judicata were applicable to the issue of jurisdiction.
In our opinion, the contention of learned counsel for the appellant cannot be upheld.
We find that in Mathura Prasad Bajoo Jaiswal and Others vs Dossibai N.B. Jeejeebhoy; , at p. 836 a Bench comprising three learned Judges of this Court has taken the view that a decision on the question of jurisdiction of the court or a sure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit.
The Court observed: "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correct ness or otherwise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litiga tion between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined 217 in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceed ing between the same parties.
But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in section 11 of the Code of Civil Procedure means the right litigated between the par ties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.
Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of proce dure cannot supersede the law of the land.
" The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta vs Gobind Ram Bohra (dead) through his Lrs.; , We find that the decision of three learned Judges of this Court in Mathurn Prasad Bajoo Jaiswal and Others vs Dossibai N.S. Jeejeebhoy, has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh and Others vs Jagjit Singh and Another, and hence, to the extent, that the judg ment in Avtar Singh 's case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law.
In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law and in this case the question of jurisdiction is a pure question of law.
In our view, therefore, the High Court was, with re spect, right in its conclusions arrived at and the appeal must be dismissed.
The appeal is dismissed.
Looking to the facts and cir cumstances of the case there will be no order as to costs.
G.N. Appeal dis missed.

summary:
The Respondent landlord filed a suit under the Andhra Pradesh Rent Control Act for recovery of possession and for mesne profits.
The apPellant defendant raised a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit.
In the two eviction petitions filed earlier by the appellant, the Respondent took the plea that since the alleged tenancy was hit by Section 3 of the A.P. Rent Control Act, eviction suit was not entertainable by the Rent Controller.
Decreeing the suit in favour of the appellant, the trial Court held that it was not oPen to the Respondent to take such inconsistent plea regarding jurisdiction; that he cannot be allowed to approbate and reprobate and he was estopped from doing so.
On apPeal by respondent, the deci sion was upheld by the First Appellate Court.
On a second apPeal preferred by the respondent, the High Court reversed the trial court 's order.
Aggrieved by the decision of the High Court, the appel lant preferred this apPeal, by special leave, contending that the principles of Res Judicata and estopPel were ap plicable.
Dismissing the apPeal, this Court, HELD: 1.
A court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law.
[217F] 214 Mahtura Prasad Bajoo Jaiswal and Ors.
vs Dossibai N.B. Jeejeebhoy; , ; Sushil Kumar Mehta vs Gobind Ram Bohra (dead) thro ' his Lrs.; , ; relied on.
Avtar Singh and Ors.
vs Jagjit Singh and Anr., ; ; referred to.
In the instant case, the question of jurisdiction is a pure question of law.
The High Court was right in its conclusions that in matters of jurisdiction to entertain the suit, doctrine of estoppel could not be invoked; and that the City Civil Court had no jurisdiction to entertain the suit, as it lay exclusively within the jurisdiction of the Rent Controller.
[216A B]


judgement:
ivil Appeal Nos.
1431 33(NT) of 1976.
Appeals by Certificate from the Judgment and Order dated 27.2.
1976 of the Ahmedabad High Court in Income Tax Refer ence Nos. 129 and 168 of 1974.
J.H. Parekh.
P.H. Parekh and Ms. Shalini Soni, for the Appellant.
S.C. Manchanda.
K.P. Bhatnagar and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
These appeals under certificate arise from the common judgment of the High Court of Gujarat in the Commissioner of Income Tax, Gujarat 111 vs Poonjabhai Vanma lidas.
The assessee is the same in all the cases.
The assessment years in question are 1964 65.
1965 66 and 1967 68.
In the relevant previous years.
the assessee received certain amounts and they were assessed under sec tion 41(4) of the Income Tax Act, 1961 (hereinafter referred to as the "1961 Act").
The contention of the assessee was that he was not assessable under section 41(4) of the 1961 Act because these amounts had been written off as bad debts in the year 1959 60 and his claim tot deduction, though initially disallowed by the Income Tax Officer.
was subse quently allowed by the Income Tax Appellate Tribunal in I.T.A. Nos.
673 676 (AHD) dated 12.7.
The business of the assessee had discontinued prior to the previous year in which any part of the amount was received, and consequently, it was contended.
these amounts when received were not assessable to income tax under section 41(4) of the 1961 Act as that section was not in pari materia with section 10(2)(xi) of the Income Tax Act, 1922 ( '1922 Act ') in terms of which the amounts had been written off as bad debts.
This contention was rejected by the Income Tax Officer and the amounts were brought to tax.
The orders of assessment were confirmed by the 209 Appellate Assistant Commissioner.
On further appeal by the assessee, the Tribunal held, accepting the assessee 's con tention, that the amounts could not be taxed under section 41(4) of the 1961 Act, for that section had no application to amounts written off in 1959 60 in terms of section 10(2)(xi) of the 1922 Act when it was in force.
On a refer ence, the High Court held that the amounts in question were includable in computing the taxable income of the assessee in respect of the relevant years under section 41(4) of the 1961 Act.
The questions referred were accordingly answered by the High Court against the assessee and in favour of the Revenue.
Hence the present appeals.
Section 10(2)(xi) of the 1922 Act reads: "10.
Business: (1) . . . . . . (2) Such profits or gains shall be computed after making the following allowances, namely: (xi) when the assessees 's accounts in respect of any part of his business, profession or vocation are not kept on the cash basis, such sum.
in respect of bad and doubtful debts, due to the assessee in respect of the part of his business, profession or vocation, and in the case of an assessee carrying on a banking or money lending business.
such sum in respect of loans made in the ordinary course of such business as the Income tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the books of assessee: Provided that if the amount ultimately recovered on any such debt or loan is greater than the difference between the whole debt or loan and the amount so allowed, the excess shall be deemed to be a profit of the year in which it is recovered and if less, the deficiency shall be deemed to be a business expense of that year; There is no dispute that the assessee 's accounts were not kept on cash basis.
There is also no dispute that the assessee 's business had discontinued prior to the year of recovery of the amounts in question, If the amounts had been received prior to the repeal of the 1922 Act the entire transaction would have been covered by the provisions of 210 section 10(2)(xi) of that Act, and the business having been discontinued prior to the relevant years of receipt, these amounts would not have been taxable.
See Commissioner of Income Tax, Madras vs Express Newspapers Ltd., But the amounts in question here were recovered after the coming into force of the 1961 Act which repealed the 1922 Act.
The question, therefore, is whether the amounts which had been written off in terms of section 10(2)(xi) of the 1922 Act, but subsequently received after the repeal of that provision.
could be brought to tax in terms of the relevant re enacted provisions.
Tax is sought to be levied under the 1961 Act in terms of section 41(4) which reads: "41.
Profits chargeable to tax . 4.
Where a deduction has been allowed in respect of a bad debt or part of debt under the provisions of clause (vii) of sub section (1) of section 36, then, if the amount subsequently recovered on any such debt or part is greater than the difference between the debt or part of debt and the amount so allowed, the excess shall be deemed to be profits and gains of business or profession, and accordingly charge able to income tax as the income of the previous year in which it is recovered, whether the business or profession in respect of which the deduction has been allowed is in exist ence in that year or not.
This sub section.
refers to the deduction allowed in respect of a bad debt under the provisions of section 36(1)(vii) of the 1961 Act which reads as follows: "36.
Other deductions (1).
The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 (vii) subject to the provisions of sub section (2), the amount of any debt, or part thereof, which is estab lished to have become a bad debt in the previous year: 211 Significantly sub section (4) of section 41 of the 1961 Act specifically states that tax is attracted whether or not the business or profession in respect of which the deductions had been allowed continued to be in existence in the year of receipt.
This is a fundamental deviation from the earlier provision contained in section 10(2)(xi) of the 1922 Act.
Furthermore, sub section (4) of section 41 specifically says that the deductions should have been allowed in respect of a bad debt under the provisions of section 36(1)(vii) in order to attract section 41(4).
The assessee, therefore, contends that the relevant provisions of the two enactments are not in pari materia, and what has been allowed as a deduction in terms of section 10(2)(xi) of the 1922 Act cannot be brought to tax under section 41(4) of the 1961 Act.
Any order made under section 10(2)(xi) of the 1922 Act under which a debt was written off would not attract tax on recovery of the whole or part of such amount unless the business itself continued to exist at the time of the recovery.
Furthermore, the assessee contends that sub section (4) of section 41 of the 1961 Act is at tracted only where the bad debt was written off in terms of section 36(1)(vii) of that Act, and not in terms of section 10(2)(xi) of the 1922 Act, the provisions of which are not in pari materia with either section 36(1)(vii) or section 41(4).
Rejecting the contentions of the assessee, the High Court held that there was no inconsistency between the relevant provisions of the two enactments and that section 24 of the was attracted as a result of which the order in terms of which the amounts had been written off was deemed to have been made under the re enacted provisions, as contained in section 36(1)(vii), and consequently the amounts recovered on any such debt were chargeable under section 41(4).
Section 25 of the , in so far as it is material.
reads: "24.
Continuation of orders, etc., issued under enactments repealed and re enacted Where any Central Act or Regulation is, after the commencement of this Act, repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye?law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re enacted, continue in force, and be deemed to have been made or issued under 212 the provisions so re enacted, unless and until it is super seded by any appointment, notification, order, scheme, rule, form or bye law made or issued under the provisions so re enacted . " The effect of section 24 of the , in so far as it is material, is that where the re pealed and re enacted provisions are not inconsistent with each other, any order made under the repealed provisions is deemed to be an order made under the reenacted provisions.
The question, therefore, is whether the provisions of the repealed section 10(2)(xi), under which the bad debts were written off as irrecoverable in the books of the assessee, are in terms re enacted by the repealing Act.
A comparative table furnished i.
The Law and Practice of Income Tax, Kanga and Palkiwala (Seventh Edition Volume II) shows that section 10(2)(xi) of the 1922 Act is equivalent to sections 36(1)(vii), 36(2) and 41(4) of the 196 1 Act.
The repealed section 10(2)(xi) is thus a composite section containing the ingredients of the re enancted sections 36(1)(vii), 36(2) and 41(4).
Consequently when a debt is written off by an order in terms of section 10(2)(xi) of the 1922 Act, the Income Tax Officer exercises the same power as he would have exercised on the enactment of section 36(1)(vii) of the 1961 Act.
These two provisions are, therefore, consistent with each other.
Section 36(1)(vii) is subject to the provisions of sub section (2) of that section.
Therefore, both sections 36(I)(vii) and 36(2) of the 1961 Act, being two of the ingredients of section 10(2)(xi) of the 1922 Act, must be read together with reference to an order under which debts had been written off.
Accordingly, in the light of section 24 of the , the relevant order made under section 10(2)(xi) of the 1922 Act with reference to which the debt in question had been written off, is deemed to be an order made under section 36(1)(vii) of the 1961 Act and such order is what is contemplated under section 41(4) of that Act.
Any amount which is recovered on any such debt is attracted by the provisions of section 41(4) of the 1961 Act and is, therefore, chargeable to tax in terms of that sub section to the extent of the 'excess ' specified therein.
The contentions of the assessee thus fail, and the appeals are accordingly dismissed.
No order as to costs.
P.S.S. Appeals dismissed.

summary:
Section 10(2)(xi) of the Income Tax Act, 1922 provided for deduction of bad and doubtful debts.
The proviso thereto laid down that if the amount ultimately recovered on any such debt was greater than the difference between the whole debt and the amount allowed the excess shall be deemed to be a profit of the year in which it was recovered.
These provi sions were re enacted in the Income Tax, Act, 1961 as section 36(1)(vii) provides, subject to the provisions of sub section
(2), for deduction of amount of any debt established to have become a bad debt in the previous year, whereas section 41(4) provides for bringing to tax amounts of such bad debts, if recovered subsequently, as the income of the previous year in which it was recovered, whether the business in respect of which the deduction had been allowed was in existence in that year or not.
Certain amounts which had been allowed to be written off as bad debts in terms of section 10(2)(xi) of the Income Tax Act, 1922 in the year 1959 60, but subsequently received by the assessee were sought to be brought to tax in the assessment years 1964 65, 1965 66 and 1967 68 under section 41(4) of the Income Tax Act, 1961.
The assessee 's business had discontin ued prior to the relevant years of recovery of the amounts.
The orders of assessment were confirmed by the Appellate Assistant Commissioner.
The Tribunal, however, held that the amounts could not be taxed under section 41(4) of the 1961 Act for that section had no application to amounts written off in 1959 60 in terms of section 10(2)(xi) of the 1922 Act when it was in force.
On a reference, the High Court held that the amounts in question were includable in computing the taxable income of the assessee in respect of the relevant years under section 41(4) of the 1961 Act.
It took the view that there was no incon sistency between the relevant provisions of the two enact ments and that section 24 of the was attracted as a result of which the order in terms of which the amounts 207 had been written off was deemed to have been made under the reenacted provisions, as contained in section 36(1)(vii).
In these appeals by certificate, it was contended for the appellant that the relevant provisions of the 1922 Act and 1961 Act were not in pari materia, that section 41(4) would be attracted only where the bad debt had been written off in terms of section 36(1)(vii), and that what has been allowed as a deduction in terms of section 10(2)(xi) of the 1922 Act could not on recovery be brought to tax under section 41(4) of the 1961 Act, unless the business itself had continued to exist at the time of recovery.
Dismissing the appeals, the Court, HELD: 1.
If the amounts had been received prior to the repeal of the 1922 Act the entire transaction would have been covered by the provisions of section 10(2)(xi) of the Act, and the business having been discontinued prior to the relevant years of receipt, these amounts would not have been taxable.
[209H; 210A] Commissioner of Income Tax, Madras vs Express Newspapers Ltd., referred to.
2.1 The effect of section 24 of the , in so far as it is material, is that where the re pealed and re enacted provisions are not inconsistent with each other, any order made under the repealed provisions would be deemed to be an order made under the re enacted provisions.
[212B] 2.2 Section 10(2)(xi) of the 1922 Act is equivalent to sections 36(1)(vii), 36(2) and 41(4) of the 1961 Act.
The repealed section 10(2)(xi) is thus a composite section containing the ingredients of the re enacted sections 36(1)(vii), 36(2) and 41(4).
Consequently, when a debt is written off by an order in terms of section 10(2)(xi) of the 1922 Act, the Income Tax Officer exercises the same power as he would have exercised on the enactment of section 36(1)(vii) of the 1961 Act.
These two provisions are, there fore, consistent with each other.
Section 36(1)(vii) is subject to the provisions of sub section (2) of that sec tion.
Therefore, both sections 36(1)(vii) and 36(2) of the 1961 Act, being two of the ingredients of section 10(2)(xi) of the 1922 Act, must be read together with reference to an order under which debts had been written off.
Accordingly, in the light of section 24 of the General Clause Act, 1897, the relevant order made under section 10(2)(xi) of the 1922 Act with reference to which the debt in question had been written off, would be 208 deemed to be an order made under section 36(1)(vii) of the 1961 Act and such order is what is contemplated under sec tion 41(4) of that Act.
Any amount which is recovered on any such debt is attracted by the provisions of section 41(4) of the 1961 Act and is, therefore, chargeable to tax in terms of that sub section to the extent of the 'excess ' specified therein.
[212C G]