judgement:
Appeal No. 167 of 1960.
Appeal from the judgment and order dated July 16, 1956 of the Assam High Court at Gauhati in Civil Rule No. 128 of 1954.
A. V. Viswanatha Sastri and Naunit Lal, for the appellant.
The Respondents did not appear.
April 14.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This appeal has been filed by the State of Assam against a judgment of the High Court of Assam dated July 16, 1956.
By the judgment under appeal, the High Court held that section 15 of the Assam Sales Tax Act, 1947, and Rule 80 framed under the Act were ultra vires, being a breach of article 286(2) of the Constitution.
The High Court granted a certificate under article 132(1) of the Constitution.
R. C. Dey, the answering respondent, is a wholesale dealer in tea, and has been in business since 1949.
He registered himself as a dealer under the Assam Sales Tax Act on January 14, 1950.
His business consists mainly of buying tea in Assam and selling it either in Assam or in Calcutta.
In respect of tea sold in Calcutta, R. C. Dey consigns the tea to himself after purchasing it in Assam.
This tea is then approved by prospective purchasers, to whom the documents of title are endorsed on receipt of the price.
In 1951, the Assam Sales Tax Act was amended by the Assam Sales Tax (Amendment) Act, 1951 (4 of 1951).
Section 15 of the Act before the amendment provided that in calculating the net turnover of a registered dealer for tax purposes all sales made to another registered dealer of goods specified in the latter 's certificate of registration were to be excluded from the gross turnover, if the goods were bought for resale.
By the amendment in 1951, the section was amended by the addition of the words "in the State" after the word "resale".
Thus, in calculating the net turnover of a registered dealer, the goods intended 988 for resale in the State could alone be excluded from the gross turnover.
This amendment was followed by amendment of the Rules.
Rule 80 was enacted to provide as follows: "80.
(1) A dealer who wishes to deduct from his gross turnover the amount of sales on the ground that he is entitled to make such deductions under clause (b) of sub section (1) of section 15 shall, on demand produce in respect of such sales the copy of the relevant cash memo or bill according as the sale is a cash sale or a sale on credit, and a true declaration in writing by the purchasing dealer or by such responsible person duly authorised by the purchasing dealer in this behalf that the goods in question are specified in the certificate of registration of such dealer.
(2) For purposes of this rule, the declaration shall be in the following form: I/We hereby declare that I/We have purchased the goods herein mentioned for the purposes for use in the manufacture of goods for sale in the State, or for use in the execution of a contract in the State or for resale in the State, and further declare that these goods have been specified in/our certificate of registration bearing No in the District of R. C. Dey filed a petition under article 226 of the Constitution, challenging the amendment and the Rule, and contended that they offended against article 286(2) and Part XIII of the Constitution, and were thus ultra vires.
He also submitted that the amendment and the Rules were void as offending article 19 (1)(g).
The last submission was given up in the High Court, and the objection about Part XIII of the Constitution, which was decided against him, must be taken to have been abandoned, because none appeared on his behalf to urge this point.
We need not refer to article 19 or Part XIII of the Constitution.
The High Court upheld his contention about article 286(2).
In the High Court, separate judgments were delivered by the learned Chief Justice and Ram Labhaya, J. They both agreed that section 15, as amended, and the Rule were ultra vires article 286(2).
The reasons given 989 by the learned Judges were different.
According to the Chief Justice, the amendment and the Rule had the effect of taxing sales in the course of inter State trade or commerce and were, therefore, illegal.
Ram Labhaya, J., held that the sale to R. C. Dey and the sale by him in Calcutta were separate sales, and that the first sale was not in the course of inter State trade or commerce, and was taxable.
He, however, held that though by section 3, which is the charging section, sales in the course of inter State trade or commerce were excluded from the ambit of the Act, this section remained only "a pious declaration", because its effect was not incorporated in the machinery section, namely, section 15.
According to the learned Judge, what was taxable under the Act was the net turnover of a registered dealer.
The machinery section showed how the net turnover was to be ascertained, and it provided that to arrive at the net turnover, certain deductions could be made from the gross turnover.
In the original section, anything which was sold for resale was so excluded; but by the amendment, the exclusion was only in respect of the sale of goods for resale in the State.
According to the learned Judge, if sales which did not lead to resale in the State were not excluded from the gross turnover, then the not turnover would comprehend such sales and, therefore, there was a taxation of sale of goods in the course of inter State trade or commerce.
Putting it briefly, while the learned Chief Justice felt that the, amendment and the Rule directly affected inter State trade or commerce, Ram Labhaya, J., held that they affected inter State trade or commerce indirectly, inasmuch as sales outside the State were not excluded from the gross turnover.
We shall take up these two points separately.
III so far as the decision of the Chief Justice is concerned, the point has been before this Court in another case.
In Endupuri Narasimham & Son vs State of Orissa and others (1), a similar question had arisen in connection with the Orissa Sales Tax Act, 1947.
In dealing with transactions such as these, this Court pointed out that only sales which affected inter (1) ; 990 State trade or commerce directly and were an integral part thereof, were saved under article 286(2).
On that Occasion, reference was made to all the authorities of this Court which had discussed the question from the angle of article 286(1) of the Constitution, and it was pointed out that the same reasoning applied also to article 286(2).
It was observed in the case as follows: "The argument on behalf of the petitioner is that, as the goods were purchased for the purpose of being sold to dealers outside the State, and they were, in fact, so sold, the purchases were in the course of inter State trade, and the levy of tax thereon was within the prohibition enacted by article 286(2).
We do not agree with this contention.
The transactions of sales which have been taxed were wholly inside the State of Orissa.
They were sales by persons in the State of Orissa to persons within the State of Orissa of goods which were in Orissa.
The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been im. posed.
The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State.
The former sales are in the course of inter State trade, and are not taxable under article 286(2), but the latter are purely intrastate sales, and tax imposed thereon does not offend article 286(2).
" These observations are entirely applicable in the context of the facts, as are to be found in this appeal.
Indeed, all that is necessary to apply the above passage to the facts of this case is to substitute "Assam" in the place of "Orissa".
In our opinion, this point must be held to be concluded against the respondent.
That leaves over for consideration the reasons given by Ram Labhaya, J., in his concurring judgment.
Section 3 of the Act which created a liability to tax, was amended by Act 4 of 1951 by the introduction of sub section (1)A in that section.
That sub section reads as follows: "(1)A. Nothing in sub section (1) shall, except in cases covered by the first proviso to sub section (12) of section 2 of this Act, be deemed to 991 render any dealer liable to tax on the sale of goods where such sale takes place: (i) outside the State of Assam; (ii) in the course of the import of the goods into, or export of the goods out of, the territory of India; or (iii) in the course of inter State trade or commerce except in so far as Parliament may by law otherwise provide.
" The introduction of sub section
(1)A did no more than repeat in the Act the prohibition contained in article 286.
The first two clauses of this sub section reiterate the prohibition contained in article 286(1), and the third clause reiterates the prohibition contained in article 286(2) of the Constitution.
The first proviso to section 2(12), which is referred to in sub section
(1)A, enacts the Explanation to cl.
(1) of article 286.
Now, it is quite clear that from the operation of the charging section sales of a particular character are kept out.
This provision saves from taxation all those transactions which, if they were taxed, would have fallen within the ban of article 286.
The effect of this saving is to make such transactions immune from taxation, and no further amendment of the law in the machinery section was necessary.
What section 15 does, is to grant an additional exemption in respect of sales in which the goods, though sold to a registered dealer, are meant for resale in the State, itself.
It is quite easy to see that unless this exemption was granted, it was possible that there would have been sales tax at more than one point, namely, at the point at which the first registered dealer sold to the second regis tered dealer and again, when the second registered dealer sold in his turn.
To avoid taxation at multiple points on transactions of sale of the same goods within the State, it was provided that the tax shall be paid only on the last sale and not on the previous sales, so long as the previous sales were from registered dealers to registered dealers in respect of goods mentioned in the registration certificate of the latter and provided the goods were for resale in the State.
When the charging section itself excluded taxation of sales in the course of inter State trade 992 or commerce, it was hardly necessary to look for a repetition of the same exemption in the machinery section.
It is an error to think that because the machinery section, namely, section 15, does not repeat the exemption given by the charging section, the turnover of a dealer would necessarily include the sales in the course of inter State trade or commerce.
Even if the net turnover did, so include such sales, the dealer would, under sub section
(1)A of section 3, be able to claim that those transactions were not taxable, because they fell within the ban of article 286(2) as well as section 3(1)A (iii) of the Act.
What has already been excluded by the operation of the Constitution and the Act cannot become taxable, because the net turnover has to be calculated in a particular manner.
From that net turnover, such sales must be excluded by the operation of article 286(2) and section 3(1)A of the Act.
In our opinion, the ban of article 286(2), which is again reenacted by section 3(1)A, makes it incumbent that the sales falling within those previsions should be excluded from the net turnover.
Reference was made to sub section
(2) of section 3, and it was said that sub section
(2) stated that every dealer to whom sub section
(1) did not apply, shall be liable to be taxed under this Act, and that there was no mention of subs.
(1)A there.
No doubt, sub section
(2) does not mention sub section
(1)A; but sub section
(1)A is not rendered ineffective by the omission.
Sub section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub sections of section 3.
Sub section (1)A has the added support of article 286, and the Constitution must prevail.
Thus, both article 286 and sub section
(1)A of section 3 are there to save from taxation all sales in the course of inter State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not.
In our opinion, the appeal must succeed.
The decision of the High Court under appeal is set aside, and the petition is ordered to be dismissed with costs here and in the High Court.
Appeal allowed.

summary:
Section 15 of the Assam Sales Tax Act, 1947, as originally enacted, provided that in calculating the net turnover of a registered dealer for tax purposes, all sales made to another registered dealer of goods specified in the latter 's certificate of registration were to be excluded from the gross turnover, if the goods were brought for resale.
In 1951, the section was amended by the addition of the words "in the State" after the word " resale", as a result of which the exclusion was confined only to sales of goods for resale in the State.
Rule 80 was framed to give effect to the amendment.
The petitioner, a registered dealer in Assam, and whose business consisted mainly of buying tea in Assam and selling it either in Assam or in Calcutta, chal lenged the legality of the amendment on the ground that the result of the amendment was that tax could be levied on interState sales and that, therefore, it contravened article 286(2) of the Constitution of India.
Held: (1) that a sale of goods to a dealer within the State who purchased them for the purpose of selling them to dealers outside the State, and who, in fact, so sold them, would not make it a sale in the course of inter State trade as the two sales were distinct and separate.
The first sale was an intra State sale and a tax imposed thereon did not offend article 286(2) of the Constitution.
Endupuri Narasimham vs State of Orissa, ; , followed.
(2) that section 15 of the Assam Sales Tax Act, 1947, and Rule 80 framed under that Act were not ultra vires article 286(2) of the Constitution.
The object of section 15 of the Act was to avoid taxation at multiple points and the amendment to that section in 1951 or Rule 80 did not enable the levy of tax on sales in the course of inter State trade twice.
Such sales were expressly saved from tax by the operation of article 286(2) and section 3(1)(A)(iii) of the Act.
Once those sales were outside the charging section there was no need to re enact that prohibition in section 15 which was a machinery section and would stand cut down by the limitation placed by the charging section and the Constitution. 987


judgement:
No. 84 of 1958.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights, G. C. Mathur, for the petitioners.
C. K. Daphtary, Solicitor General of India, B. Sen, R. H. Dhebar and T. M. Sen, for the respondent.
April 20.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This is a petition filed under Ga. article 32 of the Constitution challenging the validity of the excise tariff imposed by el.
(6) in entry 4(1) in the First Schedule to the (1 of 1944).
Petitioners Nos.
1 to 17 are tobacco cultivators and they carry on the trade and business of growing tobacco and of selling it in Kaimganj Tahsil in the District of Farrukhabad in Uttar Pradesh.
Petitioners 18 to 30 are partners or proprietors or agents of firms which are private bonded warehouse licensees and they carry on trade and business of purchasing tobacco from the cultivators and of selling the same to dealers or to other private warehouse licensees.
By their petition the petitioners have asked for a writ, direction or order in the nature of mandamus to be issued to the respondent, the Union of India, restraining it from levying excise duty on hooka and chewing tobacco under the impugned item and any other writ, direction or order which may be found suitable to 120 protect the fundamental rights of the petitioners to carry on their trade and business of dealing in hooka and chewing tobacco.
The attack against the validity of the impugned tariff item is based substantially on two grounds.
It is urged that the rates imposed by the impugned item are excessive and they virtually destroy the petitioners ' trade and it is argued that the impugned item is based on unconstitutional discrimination.
Mr. Mathur, for the petitioners, fairly conceded that he would not be able to substantiate the first ground of challenge, and indeed it is obvious that a challenge to tax law on the mere ground that the tariff imposed by the tax law is heavy cannot be enter tained.
That leaves the question of discrimination alone to be considered in the present petition.
For the purpose of this petition we will assume that if discrimination in respect of commodities taxed is proved it ultimately amounts to a discrimination against the persons taxed and therefore article 14 can be invoked in such a case.
Mr. Mathur contends that is the effect of the decision of this Court in Kunmathat Thathunni Moopil Nair, etc., vs The State of Kerala (1) and as we have just observed we will assume that such a challenge can be made against the validity of a taxing statute with provisions such as we have before us and deal with the petition on that basis.
The tariff entry in dispute as it now obtains under the taxing statute is entry 4 in the First Schedule.
It deals with tobacco.
Under this entry "tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth.
Clause I in entry 4 deals with unmanufactured tobacco and prescribes tariff per kilogram in respect of the several items specified in it.
Item (1) under this clause deals with five categories of tobacco which are flue cured and are used in the manufacture of cigarettes as indicated in the said five sub clauses.
Item (2) deals with tobacco which is flue cured and used for the manufacture of smoking (1) ; 121 mixtures for pipes and cigarettes.
Item (3) provides, for flue cured tobacco which is not otherwise specified; and item (4) is concerned with tobacco other than flue cured and used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes.
The, tariff varies from Rs. 16.15 nP. per kilogram to ' Rs. 1.65 nP. per kilogram.
That takes us to item (5).
This item deals with tobacco other than flue cured and not actually used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes or (e) biris.
The fourth clause under this item is tobacco cured in whole leaf form and packed or tied in bundles, banks or bunches or in the form of twists or coils.
For tobacco falling under the four clauses under item (5) the tariff is Rs. 1.10nP. per kilogram.
Clause (6) in this item with which we are concerned in the present petition deals with tobacco other than flue cured and not otherwise specified.
For this residuary clause the tariff prescribed is Rs. 2.20 nP. per kilogram.
This tariff is double the tariff prescribed for the classes in the preceding item.
Mr. Mathur 's grievance is that the tobacco with which the petitioners deal cannot be distinguished on any rational basis from the tobacco covered by item (5), cl.
(4), and so the imposition of a double tariff on the tobacco in which the petitioners deal is invalid inasmuch as it is based on unconstitutional discrimination.
The argument proceeds on the assumption that the tariff is prescribe by reference to the use to which tobacco is put and it is urged that the tobacco with which the petitioners are concerned is not actually used either for cigarettes or smoking mixtures or biris and the fact that it is broken and not whole leaf does not afford any rational basis for classification.
In dealing with.
this argument it would be relevant very briefly to refer to the report of the Tobacco Expert Committee whose recommendations have furnished the main basis for the present revised tariff in respect of tobacco.
In substance this report shows that the present tariff cannot be said to have been prescribed either wholly or even primarily by reference actually to the use of tobacco.
Tobacco, as the 16 122 Committee 's report points out, is a rich man 's solace and a poor man 's comfort.
Since it is used by all classes of people in various forms it is necessary to frame the tariff in such a way that the incidence of tax shall fall equitably on all classes of people using it.
The report then points out that the Intention Tariff based on the principle of intention was found to be, ineffective because the assessee 's declaration of intended use left large room for evasion of tax.
That is why the Intention Tariff was substituted by a flat rate of duty.
By experience it was found that even this method was not very effective or equitable and then was adopted the capability tariff.
Under this test the criterion of assessment was to be whether or not a particular specimen of tobacco was capable of use in bird manufacturing.
If so capable it was assessable on a higher rate, if not so capable then at a lower rate.
The report has examined the advantages of the capability tariff and has quoted the opinion of the Taxation Enquiry Committee which made its report in 1953.
The report considered the volume of evidence adduced before it and took into account all the suggestions made.
"In view of the practical difficulties brought before us", says the report, "we consider that, within the present tariff, the only workable and satisfactory method of classifying tobacco will be to prescribe standards readily identifiable either visually or by other simple tests and manipulations with a view to determine empirically what is capable and what is incapable of use in biris.
The position is complicated because the same tobacco is used for different purposes in different parts of the country according to the prevalent consumption habits of different types of tobacco"; and the Committee realised that any system of classification on a uniform basis for the whole of the Indian Union is bound to involve greater imposts on consumers of those areas where the prevalent custom is to consume a variety for chewing, snuff, hooka, cigar purposes while the same varieties are used in other areas for biris.
The conclusion of the Committee, therefore, 'was that the only criterion which is safe to adopt is the one relating to the physical form 123 of tobacco as affecting its suitability for biri making.
The Committee realised that it was very difficult to classify specified varieties as solely chewing tobacco because many of these varieties are also used for making snuff and for hooka purposes.
Normally, however, most chewing varieties are in whole leaf form and are ' cured by addition of moisture.
Tobacco cured in whole leaf form cannot be converted into flakes as readily as tobacco cured by dry curing methods, and in the opinion of the Committee, although it is possible to prepare flakes out of tobacco cured in whole leaf form the process of conversion into flakes causes much higher proportions to crumble into dust, raw and other unsalable forms.
The Committee was conscious that the whole leaf varieties after suitable manipulation can be utilised for biri manufacturing purposes but it thought that this could be done only after converting them into graded flakes, and even thereafter only by admixture with other tobacco on a small localised scale.
In regard to the broken leaf grades which the Committee recommended should be liable to assessment at the higher rate relief was recommended by permitting any owner to convert his broken leaf tobacco into fine rawa or dust in which form it will become physically unusable for biris.
According to the Committee, after such manipulation of physical form, the resultant, if it fulfils the specifications for rawa and dust, may be allowed assessment at the lower rate.
We have referred to these observations made by the Committee in its report because they clearly and emphatically bring out the distinction between "tobacco other than flue cured and not otherwise specified" which is the subject matter of the, residuary clause and "tobacco other than flue cured and not actually.
used for the manufacture of cigarettes or smoking mixtures for pipes or cigarettes or biris" covered by el.
By the test of physical form the two articles are different.
By the test of capability of user they are different and in a sense according to the Committee 's recommendations they partake of the character of different commodities.
In this connection it may be 124 pointed out that though the tariff impost on the tobacco falling under the impugned cl.
(6) is much higher, biris in the manufacture of which no process has been conducted with the aid of machines operated with or without the aid of power are not subject to any tariff, whereas cigars, chewing, cigarettes and biris in the manufacture of which any process has been conducted with the aid of machines operated with or without the aid of power are subject to tariff.
The problem which the Committee had to face was to classify tobacco other than flue cured which would be used for the manufacture of biris, and with that object cl.
(5) and el.
(6) have been devised.
Therefore, in our opinion, the distinction between tobacco falling under cl.
(5) and cl.
(6), according to the report of the Committee, is so clear and unambiguous and its relation to the object intended by the imposition of tariff is so clearly reasonable that the attack against its validity on the ground of unconstitutional discrimination cannot be upheld.
There is one more point to which Mr. Mathur referred and which may be incidentally considered.
Mr. Mathur contended that Nicotiana Rustica with which the petitioners deal is used exclusively for hooka and chewing in Uttar Pradesh.
The petition avers that the variety of Nicotiana Rustica which is used in biris is not grown in Uttar Pradesh and that all the tobacco which is grown in Kaimganj is Nicotiana Rustica which is either pit cured or ground cured.
It is used exclusively for hooka and chewing and is unfit for use in biris and cigarettes and is never so used.
The argument, therefore, is that this tobacco cannot, be legitimately taxed under the impugned clause.
Apart from the fact that the question as to whether the particular tobacco in which the petitioners deal falls under the impugned clause or not cannot be legitimately raised in a, petition under article 32, the answer to the plea is furnished by the counter affidavit and the report of the Committee.
In the counter affidavit the allegations made in regard to the exalusive user of Nicotiana Rustica are generally denied, and what is more the report of the Committee specifically points 125 out that though Rustica varieties of tobacco are generally not known to be used for biris, when they are cured in broken leaf grades they can be used with admixture with biri tobacco like Pandharpuri tobacco for imparting strength to biri mixtures, and so according to the Committee no generalisation in this matter is possible and it cannot be asserted that, all forms of this variety are incapable of use in biris.
Besides, it would be quite possible for dealers in the said varieties of tobacco to send them to other parts of the country where they are used for the purpose of manufacturing biris.
Therefore, the grievance made by the petitioners that the tobacco in which they deal can never be used for biris is obviously not well founded.
In the result the petition fails and is dismissed with costs.
Petition dismissed.

dataset_name: IN-Abs

summary:
Item 5 of entry 4(1) of the First Schedule to the Central Excise and Salt Act, 1944, imposes an excise duty of Rs. 1 10 nP. per kilogram on tobacco other than flue cured and not actually used for the manufacture of cigarettes, smoking mixtures for pipes and cigarettes or birds in the whole leaf form.
Item 6 imposes a duty of Rs. 2 20 nP. per kilogram on tobacco in the broken leaf form.
The petitioners who dealt in tobacco in the broken leaf form contended that their tobacco could not be distinguished on any rational basis from the whole leaf form in Item 5 and the imposition of a double tariff on their tobacco was invalid as it was based on unconstitutional discrimination, the tariff being on the basis of use to which the tobacco was put.
119 Held, that there was no unconstitutional discrimination in the imposition of the excise duty on tobacco in the broken leaf form.
Tobacco in the broken leaf form was capable of being used in the manufacture of biris while tobacco in the whole leaf form could not be so used economically.
The two forms of tobacco were different by the test of capability of user.
The tariff was not based either wholly or even primarily by reference to the use of tobacco.
There was a clear and unambiguous distinction between tobacco in the whole leaf form covered by item 5 and tobacco in the broken leaf form covered by item 6 which had a reasonable relation to the object intended by the imposition of the tariff.
Kunmathat Thathunni Moopil Nair vs The State of Kerala, ; , referred to.


judgement:
Appeal No. 456 of 1958.
Appeal by special leave from the judgment and order dated May 10, 1957, of the Rajasthan High Court (Jaipur Bench) at Jaipur in D. B. Civil Reference No. 17 of 1956.
WITH PETITION No. 87 of 1961.
Petition under article 32 of the Constitution of India for enforcement of Fundamental rights.
Bishan Narain, and Govind Saran Singh, for the appellant/petitioner.
N. section Bindra and T. M. Sen, for the respondents.
April 25.
The Judgment of the Court was delivered by 373 DAS GUPTA, J.
On April 1, 1950, the Deputy Custodian, Jaipur, made an order in proceedings instituted under section 19 of the Administration of Evacuee Property Ordinance declaring the appellant Dr. Mohammad Saeed a medical practitioner of Jaipur to be an intending evacuee.
By the same order a notice was directed to be issued to the respondent to show cause why he should not be declared to be an evacuee under section 2(d)(i) and section 2(d)(iii) of the Ordinance.
When thereafter the (Act XXXI of 1950), came into force ano ther notice was issued on the appellant under section 22(b) of the Act to show cause why his property should not be declared evacuee property on the ground that he had transferred a substantial portion of his assets to Pakistan.
On November 16, 1951, the Deputy Custodian, Jaipur held Dr. Mohammad Saeed to be an evacuee under section 2(d)(iii) of the Administration of Evacuee Property Ordinance, 1949.
He also held Dr. Mohammad Saeed 's property to be evacuee property under section 7 of the Ordinance and also under section 22(b) of the .
On appeal the District Judge, Jaipur, set aside this declaration of the appellant as an evacuee under section 2(d)(iii) of the Ordinance and remanded the case for a fresh decision in the light of the observations made by him.
As regards the order under section 22(b) the learned District Judge agreed with the Deputy Custodian that Dr. Mohammed Saeed had transferred a substantial portion of his assets to Pakistan between November 1947 and September 1948.
Being of opinion however that not only this act of transfer which took place before the 18th day of October, 1949, but other circumstances including the appellant 's conduct after October 18, 1949, have to be, taken into consideration before action under section 22(b) can be taken, he found that it was difficult to say that the appellant had been making preparations for his migration to Pakistan.
Accordingly he set aside the order made by the Deputy Custodian under section 22(b).
The 48 374 Custodian of Evacuee Property, Rajasthan, moved the Custodian General of Evacuee Property for revision of this order.
The Deputy Custodian General of Evacuee Property who heard this petition in revision was unable to agree with the District Judge 's findings on the question as regards the order under section 22(b) and accordingly made a reference under section 27(2) of the , to the High Court of Rajasthan.
The High Court rejected the contention raised on behalf of this appellant that the circumstances as to the transfer of a substantial portion of his assets should relate to an act done by any person, after, he was declared as an intending evacuee.
It further held that the fact that Dr. Mohammad Saeed had during the period from August 14, 1947 to October 18, 1949, transferred a substantial portion of his assets in India to Pakistan constituted under the law a preparation for his migration to Pakistan and that this justified a declaration by the Custodian of his property situated in Rajasthan in which Dr. Mohammad Saeed has a right or interest, to be evacuee property.
Accordingly, the High Court set aside the decision of the District Judge in respect of Deputy Custodian General 's orders under section 22(b) and directed the Custodian General or the Deputy Custodian General, if authorised to deal with it, to dispose of the proceedings in accordance with the decision of the High Court.
In accordance with this direction the Deputy Custodian General on August 10, 1957, held that the property of the petitioner was rightly declared to be evacuee property under section 22(b) by the Deputy Custodian.
The appeal has been filed against this decision by special leave granted by this Court.
After the appeal was heard in part on January 23, 1961, the hearing was adjourned to enable the appellant to make a writ petition.
A petition under article 32 of the Constitution was then filed on February 14, 1961, praying for a writ of certiorari and/or mandamus or direction to quash the order made under section 22(b).
The appeal and the petition have come up for hearing together.
375 As the writ petition challenges the validity of the law as enacted in section 22(b) it will be proper and convenient to take up that petition for decision first.
Of the several grounds urged in the petition against the validity of section 22(b) only one, viz., that section 22(b) contravenes article 14 of the Constitution has been pressed before us.
While however in the grounds as stated in the petition the attack was that discrimination had been made between persons declared as intending evacuee in respect of whose property proceedings had been started before the commencement of the Act and those in respect of whose property no such proceedings had yet been started and further that article 14 was contravened because a person declared to be an intending evacuee who had done one of the acts prescribed as constituting a preparation for migration to Pakistan, was denied the right to show that he had, in fact, no intention so to migrate and had made no preparation for the purpose and by imposing upon him a very grave penalty, neither of those contentions were urged at the hearing.
The only argument on the question of contravention of article 14 which Mr. Bishan Narain urged on behalf of the petitioner was that in two matters there was discrimination between an intending evacuee whose property was declared evacuee property under section 22(b) and an evacuee whose property might be declared to be an evacuee property, where the evacuee had done practically the same thing for which another person has been declared as an intending evacuee.
Learned Counsel has pointed out that under section 2(d)(iv) of the , as it stood after its amendment by Act 11 of 1953, a person who has after the 18th day of October, 1949, transferred to Pakistan without the previous approval of the Custodian his assets or any part of his assets situated in any part of the territories to which the Act extends is an evacuee; so that any property of such a person is evacuee property within the meaning of the Act.
When in respect of property of such a person an order has been made under section 7 of the Act declaring it to be evacuee property the evacuee or his heir will be entitled to make 376 an application for restoration of the property under section 16 of the Act, and after due inquiry the Central Government may, subject to the conditions specified in the section make an order restoring the property to the applicant.
Another benefit which a person who is an evacuee within the meaning of section 2(d)(iv) is entitled to, along with other evacuees, is that of section 13 of the Displaced Persons (Compensation and Rehabilitation) Act (XLIV of 1954), under which when any property of an evacuee has been acquired under section 12 there shall be paid to an evacuee compensation in respect of his property. . . . in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan.
Take however the case of a person, like the present petitioner who after the 14th day of August, 1947, and before the 18th day of October, 1949, transferred his assets or any portion thereof to Pakistan.
He would be an "intending evacuee" within the meaning of section 2(e)(i) of the Act and once a declaration had been made under section 19 that he was an intending evacuee his property would be liable to be declared evacuee property under section 22(b).
Even so however he would not get the benefit of section 16 of Act XXXI of 1950 or of section 13 of the .
The result of the several provisions of law of the , after it was amended in 1953 therefore is that if a person transferred his assets or any part of his assets to Pakistan without the previous approval of the Custodian after the 18th day of October, 1949, he would be an evacuee in law and his property will be liable to be declared an evacuee property, but he will still be entitled to restoration of the property under section 16 of the , and also to the benefit of section 13 of the (XLIV of 1954); but if a person transferred his assets or part of his assets to Pakistan between the 14th day of August, 1947, and the 18th day of October, 1949, he was liable 377 to be declared an intending evacuee at any date before the Amended Act of 1953 came into force and if that has happened, any property belonging to him was liable to be declared evacuee property under section 22 of the Act at any time before Chapter IV of that Act was repealed by the 1953 Act and even after that date if any proceeding under section 22 was pending on the ' date of the commencement of the 1953 Act.
But such a person would not be entitled to the benefit of either section 16 of the , or compensation under section 13 of the (XLIV of 1954).
This denial of benefits under section 16 of the 1950 Act and section 13 of the 1954 Act to one who has been declared an intending evacuee on the ground of transfer of assets to Pakistan amounts, it is urged by the learned counsel, to be a denial of equal protection of laws and it is contended that section 22(b) of the as it stood before the section war, repealed along with other sec tions of Chapter IV should be held to be void.
In our judgment, this contention is not well founded.
In the first place it is to be pointed out that a person who transferred assets between the 14th August, 1947, and the 18th October, 1949, and a person who transferred such assets after the 18th October, 1949, cannot properly be considered to be similarly circumstanced.
It has to be borne in mind that political relations between India and Pakistan were in a fluid and disturbed state immediately after the 14th August, 1947, but the position improved to a considerable extent by the 18th October, 1949, which it may be noticed was the date when the Administration of Evacuee Property Ordinance, 1949, was made.
Persons who had transferred assets between the 14th August, 1947, and the 18th October, 1949, may therefore reasonably have been considered by the legislature to form a class distinct in respect of the application of the law to their property from those who transferred assets after the 18th October, 1949.
We are not however concerned with the reasons or the wisdom of the policy which underlay the denial of the 378 benefits of section 16 of the and section 13 of the (XLIV of 1954) to those persons who had been declared intending evacuees because of having transferred assets between the 14th August, 1947, and the 18th October, 1949, while granting these benefits to those who were evacuees under the law as amended in 1953, because of transfer of assets to Pakistan after the 18th October, 1949.
What is clear is that the two groups of persons are not similarly circumstanced and so the denial of equal benefits to the two groups is not an infringement of the guarantee of equal protection of laws.
Next it is important to note that this differenceviz., that one group of persons is entitled to the benefits of the sections mentioned above while another group is not does not flow directly or necessarily from section 22(b).
What is characterised as discrimination between an evacuee and an intending evacuee is the consequence of the legislature 's omission to extend to the intending evacuees the benefits of section 16 of the 1950 Act and section 13 of the 1954 Act as mentioned above and not of the provisions under section 22(b) that under certain circumstances as specified therein the Custodian may declare the property of an intending evacuee to be evacuee property.
We do not think that it is possible to say therefore that section 22(b) of the contravenes article 14 of the Constitution.
The petition under article 32 of the Constitution therefore fails and is dismissed with costs.
The appeal raises the question of the effect of the application of section 22(b) of the Act to the facts of the present case.
Section 22(b), substituting therein for the words "he had done any of the acts specified in sub clauses (i) and (iii) of clause (e) of section 2" the words of only cluse 2(e)(i), reads thus: "If the Custodian is satisfied, after such enquiry as may be prescribed, that the circumstances relating to any person, in respect of whom a declaration has been so made on the ground that after the 14th 379 day of August, 1947, and before the 18th day of October, 1949, he has transferred to Pakistan his assets or any part thereof situated in any part of the territories to which this Act extends are such as may be prescribed as constituting a preparation for his migration to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or interest to be evacuee property and on the issue of such notification any property specified in the notification shall be deemed to be evacuee property which has vested in the Custodian within the meaning of this Act.
" It is important to notice the explanation to the section which runs thus: "Explanation: The following shall be deemed to be some of the circumstances prescribed under clause (b), namely (i) the transfer to Pakistan by any person referred to in that clause of a substantial portion of his assets situated in any part of the territories to which this Act extends, or (ii) the acquisition of, or the declaration of an intention to acquire, Pakistan nationality by any such person.
" It need only be mentioned that a declaration has been "so made" means that a declaration has been made under section 19 of the Act that he is an intending evacuee.
It is no longer in dispute that Dr. Mohammad Saeed had, before the order appealed from was made, transferred to Pakistan a substantial portion of his assets situated in Jaipur which is part of the territories to which this Act extends.
It is further not in dispute that this transfer was made before he was declared an intending evacuee.
The first contention raised on behalf of the appellant was that this transfer having been made before the declaration was made is not available for consideration for the purpose of an order under section 22(b).
The contention is clearly unwarranted.
On a normal grammatical construction of the words used by the legislature it is abundantly clear that the transfer to 380 Pakistan of a substantial portion of the assets shall be deemed to be one of the circumstances prescribed under clause (b) irrespective of whether the transfer took place before the declaration as intending evacuee was made or after such declaration.
What is necessary is that the circumstance must relate to any person in respect of whom a declaration that he is an intending evacuee has been made.
There is nothing to justify the conclusion that the circumstances in order that they may be taken into consideration must also come into existence after the declaration was made.
Indeed the scheme of the legislation appears to be that the fact that any portion of a person 's assets has been transferred to Pakistan is sufficient to make him liable to a declaration that he is an intending evacuee; but he becomes liable to the further declaration that his property is evacuee property, where it appears that what was transferred forms a substantial portion of his assets.
In some cases it may happen that what was transferred before his declaration as an intending evacuee formed a small part of his assets.
In such a case if later on other portions of his assets were transferred to Pakistan and the two transfers together amount to a transfer of a substantial portion of his assets, his property will be liable to be declared as evacuee property: It will be difficult to find any logic in the argument that when what was transferred before his declaration as intending evacuee was itself a substantial portion of his assets, such liability should not fasten.
Quite apart however from the question of logic or reasonableness it is quite clear from the language used in the section that the legislature in.
tended such circumstance of transfer of a substantial portion of assets to be available for consideration for the purpose of an order under section 22(b) whether or not the transfer took place before the person was declared as an intending evacuee or afterwards.
It was next urged that in any case it would be proper for the Custodian to take other circumstances including the later conduct of the intending evacuee to decide whether or not he should declare his property to be evacuee property.
It is unnecessary for 381 us to consider whether it is open to the Custodian to consider such other circumstances.
The section however gives a Custodian the authority to declare the property of a person who has been declared an intending evacuee to be evacuee property whenever the existence of any of the circumstances prescribed as constituting a preparation for his migrating to Pakistan is established.
Where, as in the present case, a Custodian in exercise of such authority has given such a declaration there is no reason for saying that the declaration has been improperly made.
In our opinion, the High Court was right in setting aside the order of the District Judge and in directing the Custodian General or the Deputy Custodian General to dispose of the matter in accordance with the views expressed by the High Court that on the facts proved in the case the order made by the Deputy Custodian declaring Dr. Mohammad Saeed 's property as evacuee property was right.
The order made by the Deputy Custodian General in compliance with the directions given by the High Court cannot therefore be assailed.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

summary:
The appellant was held to be an evacuee under section 2(d)(iii) of the Administration of Evacuee Property Ordinance, 1949, and his property was declared to be evacuee property under section 22 (b) of the Administration of Evacuee Property Act, 950, on the ground that he had transferred a substantial portion of his assets to Pakistan.
The relevant portion of section 22(b) runs thus: 372 "If the Custodian is satisfied, after such enquiry as may be prescribed, that the circumstances relating to any person, in respect of whom a declaration has been made on the ground that after the 14th day of August, 1947, and before the 18th day of October, 1949, he has transferred to Pakistan his assets or any part thereof situated in any part of the territories to which this Act extends, are such as may be prescribed as constituting a preparation for his migration to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or interest to be evacuee property. . " The contentions, inter alia, of the appellant were that (1) section 22(b) contravened article 14 of the Constitution and (2) that the circumstances as to the transfer of a substantial portion of his assets should relate to an act done after he was declared as an intending evacuee.
Held, that the two groups of persons who transferred their assets between the 14th August, 1947, and the 18th October, 1949 and persons who transferred their assets after the 18th October, 1949 were not similarly circumstanced and the denial of equal benefits to the two groups was not an infringement of equal protection of laws under article 14 of the Constitution.
The circumstance of transfer of a substantial portion of assets was available for consideration for the purpose of an order under S, 22(b) whether or not the transfer took place before the person was declared as an intending evacuee or afterwards.


judgement:
Appeal No. 3 of 1958.
Appeal from the judgment and decree dated October 8, 1956, of the Rajasthan High Court in Civil Regular Appeal No. 1 of 1953.
section T. Desai and B. P. Maheshwari, for the appellants.
N. C. Chatterjee and H. P. Wanchoo, for the respondent.
April 25.
The Judgment of the Court was delivered by SINHA, C. J.
The substantial question for determination in this appeal is whether or not the two hundis sued upon were admissible in evidence.
The learned Trial Judge held that they were, and in that view of the matter decreed the suit in full with costs and future interest, by his judgment and decree dated September 26, 1952.
On appeal, the High Court of Rajasthan at Jodhpur, by its judgment and decree dated October 8, 1956 allowed the appeal and dismissed the plaintiffs ' suit.
Each party was directed to bear its own costs throughout.
The High Court granted the necessary certificate under article 133(1)(a) of the Constitution.
That is how the appeal is before us.
It is only necessary to state the following facts in order to appreciate the question of law that has to be determined in this appeal.
The defendant respondent is said to have owed money to the plaintiffs, the appellants in this case, during the course of their business as commission agents for the defendant, at 335 Bombay.
Towards the payment of those dues, the defendant drew two mudatti hundis in favour of the plaintiffs, for the sum of 35 thousand rupees, one for 20 thousand rupees payable 61 days after date, and the other for 15 thousand rupees payable 121 days after date.
The plaintiffs endorsed the two hundis to G. Raghunathmal Bank and asked the Bank to credit their account with the amount on realisation.
On the date of their maturity, the Bank presented those hundis to the defendant, who dishonored them.
Thereupon the Bank returned the hundis to the plaintiffs.
As the defendant did not pay the amount due under those documents on repeated demands by the plaintiffs, they instituted a suit for realisation of Rs. 39,615, principal with interest.
On those allegations, the suit was instituted in the Court of District Judge, Jodhpur, on January 4, 1949.
It is not necessary to set out the defendant 's written statement in detail.
It is enough to state that the defendant admitted the execution of the hundis, but alleged that they had been drawn for purchasing gold in future and since the plaintiffs did not send the gold, the hundis were not honoured or accepted.
It was denied that the defendant owed any amount to the plaintiffs or that the hundis were drawn in payment of any such debt.
It was thus contended that the hundis were without consideration.
The most impor tant plea raised by the defendant in bar of the suit was that the hundis were inadmissible in evidence because they had not been stamped according to the Stamp Law.
On those pleadings, a number of issues were joined between the parties, but the only relevant issue was issue No. 2 in these terms: "Whether the two hundis, the basis of the suit, being unstamped, were inadmissible in evidence? (OD*)" (*which perhaps are meant to indicate that the onus was on the defendant in respect of this issue).
It appears that the defendant led evidence first, in view of the fact that the onus lay on him.
He was examined as D.W.5, and in his examination in chief he 336 stated, "I did not receive any gold towards, these hundis I asked them to return the hundis, but 'they did not return them.
, I had ' drawn the two hundis marked exhibit P. ' I and exhibit P. 2.
They are written in Roopchand 's hand.
I did not receive any notice to honour these hundis.
" His other witnesses, D.Ws. 1, 2 and 4 were examined and cross examined with reference to the terms of the hundis and as to who the author of the hundis was.
All along during the course of the recording of the evidence on behalf of the parties, these hundis have been referred to as exhibit P. I. and exhibit P. 2.
The conclusion of the learned Trial Judge on issue No. 2 was in these terms: "Therefore, in this case the plaintiff having paid the penalty, the two documents in suit having been exhibited and numbered under the signatures of the presiding officer of court and the same having thus been introduced in evidence and also referred to and read in evidence by the defendant 's learned counsel, the provisions of sec.
36 of the Stamp Act, which are mandatory, at once come into play and the disputed documents cannot be rejected and excluded from evidence and they shall accordingly properly form part of evidence on record.
Issue No. 2 is thus decided against the defendant.
" The suit was accordingly decreed with costs, as stated above.
On appeal by the defendant to the High Court, the High Court also found that the hundis were marked as Exs.
P. 1 and P. 2, with the endorsement "Admitted in evidence" and signed by the Judge.
The High Court also noticed the fact that when the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of the Marwar Stamp Act, 1914, authorised the Court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence.
Section 9 further provi ded that on the payment of proper stamp duty, and the required penalty, if any, the document shall be admissible in evidence.
It was also noticed that when the suit was filed in January, 1949, stamp duty and penalty were paid in respect of the hundis, acting upon the law, namely, the Marwar Stamp Act, 1914.
337 The High Court also pointed out that the ' documents appear to have been Admitted in evidence because the Trial court lost sight of the fact that in 1947 a new Stamp Act had come into force in the former State of Marwar, amending the Marwar Stamp Act of 1914.
The "new law was, in terms, similar to the Indian Stamp Act.
The High Court further pointed out that after the coming into effect of the Marwar Stamp Act, 1947 the hundis in this case could not be admitted in evidence, in view of the provisions of section 35, proviso (a) of the Act, even on payment of duty and penalty.
With reference to the provisions of section 36 of the Stamp Act., the High Court held that the plaintiffs could not take advantage of the provisions of that section because, in its opinion, the admission of the two hundis 'was a pure mistake '.
Relying upon a previous decision of the Rajasthan High Court in Ratan Lal vs Dan Das (1), the High Court held that as the admission of the documents was pure mistake, the High Court, on appeal, could go behind the orders of the Trial Court and correct the mistake made by that Court.
In our opinion, the High Court misdirected itself, in its view of the provisions of section 36 of the Stamp Act.
Section 36 is in these terms: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
" That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped.
The only exception recognised by the section is the class of cases contemplated by section 61, which is not material to the present controversy.
Section 36 does not admit of other exceptions.
Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the (1) I.L.R. 338 document is tendered in evidence.
Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed.
Section 35 is in the nature of a penal provision and has far reaching effects.
Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court.
The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.
The record in this case discloses the fact that the hundis were marked as Exs.
P. 1 and P. 2 and bore the endorsement 'admitted in evidence ' under the signature of the Court.
It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility.
Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, section 36 of the Stamp Act comes into operation.
Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order.
Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.
In our opinion, the High Court has erred in law in refusing to act upon those two hundis which had been properly proved if they required any proof, their execution having been admitted by the executant himself.
As on the finding,% no other question arises, nor was any other question raised before us by the parties, we accordingly allow the appeal, set aside the judgment and decree passed by the High Court and restore those of the Trial Court, with costs throughout.
Appeal allowed.

summary:
The respondent admitted the execution of two Hundis in suit which were tendered and marked as exhibits but denied consideration and raised the plea that the hundis exhibited were inadmissible in evidence as at the time the suit was filed in 1949 they had not been stamped according to the Stamp Law.
When the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of that Act authorised the court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence, whereupon the documents were admissible in evidence.
The High Court pointed out that after coming into force of the Marwar Stamp Act, 1947, (Similar to Indian Stamp Act) which had amended the 1914 Act, the hundis in question could not be admitted in evidence in view of the provision of section 35 proviso (a) of the Marwar Stamp Act, 1947, even on payment of duty and penalty and the appellant could not take advantage of section 36 of the 1947 Stamp Act, because 'the admission of the two hundis was a pure mistake as the Trial Court had lost sight of the 1947 Stamp Act and the appeal Court could go behind the orders of the Trial Court and correct the mistake made by, thAt Court.
Held, that once the Court, rightly or Wrongly decided to 43 334 admit the document in evidence, so far as the parties were concerned, the matter was closed.
The court had to judicially determine the matter as soon as the document was tendered in evidence and before it was marked as an exhibit in the case, and once the document had been marked as an exhibit and the trial had proceeded on that footing section 36 of the Marwar Stamp Act, 1947, came into operation, and, thereafter, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.
Such an order was not one of those judicial orders which are liable to be revised or reviewed by the same court or a court of superior jurisdiction.
Ratan Lal vs Dau Das, I.L.R. , disapproved.


judgement:
Appeal No. 20 of 1961.
Appeal by special leave from the judgment and order dated March 25, 1960, of the Patna High Court in Election Appeal No. 4 of 1959.
N. C. Chatterjee, D. P. Singh, M. K. Ramamurthy, R. K. Garg and section C. Agarwal, for the appellant.
D. Goburdhan, for respondent No. 1. 1961.
April 26.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the judgment of the Patna High Court in an election matter.
The brief facts necessary for present purposes are these.
There was a bye election held on December 21 and 22, 1958, to fill up a vacancy in the Bihar Legislative Assembly from the Dhanbad constituency.
Nomination papers for the same were to be filed on or before November 8, 1958.
A large number of persons filed their nomination papers on or before that date and among them were the appellant Rangilal Choudhury and the respondent Dahu Sao.
In the present appeal we are only concerned with these two.
The nomination paper of the respondent was rejected by the returning officer after scrutiny on November 11, 1958.
The bye election was duly held and the appellant was declared elected by a majority of votes.
Thereafter the respondent filed an election petition challenging the election of the appellant on a large 403 number of grounds.
In the present appeal we are only concerned with one of the grounds that the nomination paper of the respondent was improperly rejected.
The appellant 's contention in this connection was that the nomination paper was rightly rejected.
The election tribunal held that the nomination paper was rightly rejected and thereafter dismissed the petition.
The respondent went in appeal to the High Court, and the main point pressed in appeal was that the election tribunal was wrong in holding that the nomination paper of the respondent was rightly rejected.
The High Court agreed with the contention of the respondent that his nomination paper was improperly rejected and therefore allowed the appeal and set aside the election of the appellant.
The appellant 's application for leave to appeal to this Court having been rejected by the High Court, he applied for and obtained special leave from this Court; and that is how the matter has come up before us.
The only ground on which the nomination paper was rejected by the returning officer was that the proposer had nominated the candidate for election from Bihar and not Dhanbad assembly constituency.
The nomination was made on a Hindi form printed for the purpose by the Government.
Unfortunately, the printed form did not exactly conform to the Hindi printed form in the Rules framed under the Representation of the People Act, No. LXIII of 1951, (hereinafter called the Act).
The heading in the specimen printed form in the Rules requires the name of the State in which the election is held, to be filled in the blank space there; but in the printed form supplied to the respondent the name of the State was already printed in the heading and therefore the blank space had to be filled in with the name of the constituency.
The candidate therefore filled in the name of the constituency in the blank space in the heading.
Thereafter the proposer filled in the next part of the form which has five columns, after the main part which says that the proposer nominates so and so for such and such constituency.
In this main part, the name of the candidate and the name of the constituency 404 have to be filled in by the proposer.
In the particular form with which we are concerned now the name of the candidate was rightly filled in but the proposer instead of putting down the name of the constituency, namely Dhanbad, put down the name Bihar there.
So the proposal read as if the candidate was being nominated for the Bihar Assembly constituency.
The only objection taken before the returning officer was that the proposer had not mentioned the constituency for which he was proposing the candidate for election and therefore the nomination 'form was defective and should be rejected.
This found favour with the return ing officer, who rejected the nomination paper as already said, on the ground that the proposer had nominated the candidate for election for Bihar assembly constituency and not Dhanbad assembly constituency.
It may be mentioned that it is no one 's case that there is any constituency like Bihar assembly constituency.
It may also be mentioned that this.
was a bye election and not a General Election; and the question whether the nomination paper was rightly rejected will have to be considered in this background.
Now section 33(1) of the Act requires that a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer shall be filed on or before the date appointed for the nomination.
Section 33(4) lays down that on the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls; provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral roll; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked.
Section 36 then prescribes for the scrutiny of nomination papers and sub section
(2) (b) thereof lays down that the nomination paper shall be rejected if there has been a failure to comply with any 405 of the provisions of section 33.
But sub section
(4) lays down that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
The result of these provisions is that the proposer and the candidate are expected to file the nomination papers complete in all respects in accordance with the prescribed form; but even if there is some defect in the nomination paper in regard to either the names or the electoral roll numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation of the nomination paper about them and if necessary to allow them to be corrected, in order to bring them into conformity with the corresponding entries in the electoral roll.
Thereafter on scrutiny the returning officer has the power to reject the nomination paper on the ground of failure to comply with any of the provisions of section 33 subject however to this that no nomination paper shall be rejected on the ground of any defect which is not of a substantial character.
The main dispute in the High Court centered on the question whether the defect in this case on the ground of which the returning officer rejected the nomination paper was of a substantial character or not.
Generally speaking if the nomination paper does not disclose at all the name of the constituency for which the nomination has been made, the defect would be of a substantial character, for there would then be no way of knowing the constituency for which a candidate is being nominated.
But there may be cases where the nomination form shows the constituency for which the nomination is being made though there may be some defect in filling up the form.
In such a case it seems to us that if the nomination form discloses the constituency for which the nomination is being made even though the form may not have been properly filled in that respect, the defect in filling the form would not be of a substantial character.
It is true that in this case there was a defect in filling up the blank by the proposer inasmuch as he wrote the word "Bihar" before the words "assembly constituency" instead of 52 406 the word "Dhanbad", which he should have done; and if there were nothing else in the form to disclose the constituency for which the nomination was being made there would have been a substantial defect in the nomination form which would justify the returning officer in rejecting the same.
But the circumstances of the present case are rather peculiar.
We have already mentioned that the printed Hindi form which was used in this case printed the heading wrongly inasmuch as the heading was not in accordance with the heading prescribed under the Rules.
In the specimen form in the Rules, the blank space is meant for the State in which the election is being held; but because of the mistake in printing the heading in this case, the blank space could only be filled up with the name of the constituency, and that was what was done.
This name was filled in apparently by the candidate himself and not by the proposer.
But equally clearly the name of the constituency was there when the proposer in his turn came to fill up that part of the form which he had to fill.
It seems that the proposer was thus misled, as the name of the constituency was already there in the heading, to write the word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to indicate the constituency.
That was undoubtedly a defect in the form as filled in by the proposer.
The question however is whether in these circumstances it can be called a defect of a substantial character which would justify the rejection of the nomination paper.
It seems to us that the defect appeared partly because of the mistake in the printing of the Hindi form which was supplied to the candidates for the purposes of the nomination to this bye election.
The form however as put in clearly shows in the heading the particular assembly constituency for which the election was being held.
Then follows the part which has to be filled in by the proposer and there the proposer made a mistake in filling the word "Bihar" instead of the word "Dhanbad" in the blank space relating to the constituency.
Considering however that the name of the constituency was already there in the heading, it would in our 407 opinion be not improper in the circumstances of this case to say that the proposer was nominating the candidate for the constituency which was already mentioned in the heading.
It seems to us therefore that in view of the mistake that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the mistake of the proposer in putting in the word "Bihar" instead of the "Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad assembly constituency.
The returning officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was a bye election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper.
We therefore agree with the High Court that in the peculiar circumstances created by the mistake in printing the Hindi nomination form by the Government, the defect which has occurred in this case is not of a substantial character and it was quite clear that the nomination paper was for the Dhanbad assembly constituency and was in consequence improperly rejected by the returning officer.
As we have already said, this was the only ground on which the nomination paper was challenged as defective before the returning officer; but before the election tribunal the appellant also contended that the nomination paper was defective as columns 2 and 5 of the part which has to be filled in by the proposer were not properly filled in and were defective; and it was urged that the defect there was substantial and therefore even if the reason for the rejection of the nomination paper as given by the returning officer was not substantial, these defects were substantial and the rejection should be upheld on the ground of these defects.
Column 2 requires the electoral roll number of the proposer and column 5 of the candidate to be 408 filled in there.
Further according to the directions given in the form columns 2 and 5 should contain the name of the constituency, the part of the electoral roll and the serial number in that part.
The purpose of this provision is that the returning officer should be able readily to check that the proposer and the candidate are voters on the electoral roll.
In the present case only the serial number and the house number are mentioned in columns 2 and 5 and not the name of the constituency and the number of the part.
Undoubtedly therefore there was a defect in these two columns.
Apparently the constituency was the same, viz., Dhanbad, as will appear from the address given in column 4.
No part number could be given as the electoral roll in this particular case was not numbered by Parts.
The question is whether in these circumstances this defect can be called a defect of a substantial character.
In this connection we cannot ignore the provisions of section 33(4) of the Act, which casts a duty on the returning officer to satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll and gives him the power to permit the removal of any defect in this connection.
The returning officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections.
It is true that the failure of the returning officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character.
But considering the purpose for which the electoral roll numbers are given, it seems that the returning officer found no difficulty in checking that the proposer as well as the candidate was a voter on the electoral rolls.
The High Court in this connection referred to the evidence of the respondent who stated that when his nomination paper was taken up for scrutiny, the returning officer compared the names in the nomination paper with those in the electoral rolls.
It seems therefore that in this case the returning officer found no difficulty in tracing the names of the proposer and the candidate 409 in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5.
In the circumstances it must be hold that the defect was of an unsubstantial character and would not result in the rejection of the nomination paper.
We may in this connection refer to Karnail Singh vs Election Tribunal, Hissar and Other8 (1), where this Court observed that it was quite clear on the evidence that there was no difficulty in identifying the candidate and the candidate himself pointed out to the returning officer his own name in the electoral rolls.
Therefore the defect in columns 2 and 5 was in the circumstances held to be a technical one and not of a substantial character.
The principle of that case in our opinion applies to the present case also, for there is no doubt here that the returning officer found no difficulty in identifying the proposer as well as the candidate and as a matter of fact the evidence is that the candidate himself pointed out the place in the electoral rolls where his name was entered.
We therefore agree with the High Court that in the circumstances of this case the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be upheld on this further ground, which was not even urged before the returning officer.
We therefore dismiss the appeal.
In these circumstances we pass no order as to costs.
Appeal dismissed.

summary:
The appellant was elected as a member of the Bihar Legis lative Assembly in a bye election from the Dhanbad constituency by a majority of votes while the nomination paper of the respondent was rejected by the Returning Officer on the ground that the respondent 's proposer had nominated him for election from the Bihar and not Dhanbad assembly constituency inasmuch as in the nomination paper he wrote the word "Bihar" before the words "assembly constituency" instead of the word "Dhanbad".
This defect arose out of a mistake in the Hindi printed form of the nomination paper which did not exactly conform to the form prescribed by the Rules.
In an election petition by the respondent the Election Tribunal held that his nomination paper was rightly rejected but on appeal the High Court held that it was improperly rejected.
On appeal by special leave, Held, that in view of the mistake that occurred in the 402 printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the defect in the filling up of the form which resulted from a mistake of the proposer in putting the word "Bihar" instead of the word "Dhanbad" was not of a substantial character as contemplated under s 33 of the Representation of the People Act, 1951.
Held, further, that the defect arising out of the fact that columns nos.
2 and 5 were not properly filled was not of a substantial character as the Returning Officer bad no difficulty in checking that the proposer and the candidate were voters on the electoral rolls.
Karnail Singh vs Election Tribunal, Hissay, [1954] 10 E.L.R. 189, relied on.


judgement:
Appeal No. 356 of 1959.
Appeal by special leave from the judgment and order dated the November 18, 1957, of the Punjab 18 High Court at Chandigarh in Civil Miscellaneous Application No. 712 of 1956.
B. D. Sharma, for appellant.
Hardev Singh and A. G. Ratnaparkhi, for respondent No. 1.
Y. Kumar, for respondent No. 2. 1961.
April 17.
The Judgment of the Court was delivered by SHAH, J.
The Singer Sewing Machine Company hereinafter referred to as the company was, since the year 1934, the tenant for business purposes of a shop situate at Gurgaon in the State of Punjab and belonging to Pandit Kishan Lal hereinafter called the appellant.
One Ganpat Ram Khosla hereinafter referred to as Khosla was the Sales Manager of the company.
The Legislature of the State of East Punjab enacted Act III of 1949 called the East Punjab Urban Rent Restriction Act, 1949, to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom.
The Act granted protection to tenants of premises used for residential and non residential purposes.
By section 2, el.
(1), the expression "tenant" was defined, in so far as the definition is material, as meaning any person by whom or on whose account rent was payable for a building or rented land and included a tenant continuing in possession after the termination of the tenancy in his favour, but did not include a person placed in occupation of a building or rented land by its tenant, unless with the consent of the landlord.
By section 13, the right of the landlord to evict a tenant even in execution of a decree was restricted and the landlord could seek to evict his tenant by an application to the Controller in certain specified circumstances set out in that section.
On August 30, 1954, the company addressed a letter to the appellant intimating that it desired to close down its office in Gurgaon with effect from September 1, 1954.
The relevant part of the letter ran as follows: 19 "Now the Company has closed its agency busi ness at Gurgaon and Mr. Khosla will be carrying on Sewing Machine business in Gurgaon in your shop in his personal capacity and not as a Manager of Singer Company.
In order that there may not be any misunderstanding about the payment of rent in future, you are informed that from September, 1954 onwards Mr. Khosla will be personally responsible for the payment of rent of your shop.
" The appellant informed the company that unless vacant possession was delivered to him tenancy could not be validly determined, and that the company will be held responsible till such delivery for liability to pay rent and that in the event of possession being transferred to any other person, legal action will be taken against the company.
But the company delivered possession of the shop to Khosla and allowed him to occupy the shop in his personal capacity from September 1, 1954.
Thereafter, on October 31, 1954, the appellant applied under section 13 of the Act to the Controller for an order against Khosla and the company on three grounds, (1) that the company did not require the premises any longer while the appellant required the same for his own use, (2) that the company had neglected to pay rent since September 1, 1954, and (3) that the company had assigned or sublet the shop to Khosla without the written consent of the appellant.
Khosla and the company resisted the application contending that Khosla was the tenant of the appellant and that in any event, on August 28, 1954, the company through its local Supervisor had delivered possession of the shop to the appellant and that the latter agreed to treat Khosla as his tenant with effect from September 1, 1954.
The Controller rejected the pleas raised by Khosla and the company and ordered that possession be delivered by the com pany to the appellant.
In appeal to the District Court at Rohtak, the order passed by the Controller was confirmed.
In a petition under article 227 of the Constitution filed by Khosla in the High Court of Judicature for.
Punjab at Chandigarh, the order passed by the District Court was quashed.
The High Court was of the view that after August 31, 1954, the 20 company had no interest left in the tenancy and the tenancy being from month to month terminable at the will of the appellant, such tenancy could not be the subject matter of transfer or of sub letting.
The High Court therefore held that the order passed was without jurisdiction.
In the course of the judgment, the High Court observed that full rent had been paid even after September 1, 1954, and therefore the ground of non payment of rent "was not open to" the appellant.
It is accepted at the bar that in making this observation, the High Court was under a mis apprehension.
The rent accruing due was not paid to the appellant, but was deposited in court.
Against the order passed by the High Court, this appeal is preferred with special leave.
The Controller and the District Court found that the tenant of the shop in dispute was not Khosla but the company.
These two tribunals also found that possession of the shop was handed over by the company to Khosla without the consent of the appellant.
These findings were binding upon the High Court.
The only question which fell to be determined by the High Court was whether by unilateral action on its part, the company could require the appellant to treat Khosla as his tenant.
In our view, the High Court misconceived the nature of the tenancy.
A tenancy except where it is at will, may be terminated only on the expiry of the period of notice of a specified duration under the contract, custom or statute governing the premises in question.
A tenant does not absolve himself from the obligations of his tenancy by intimating that as from a particular date be will cease to be in occupation under the landlord and that some one else whom the landlord is not willing to accept will be the tenant.
It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in possession of the property demised (see section 108(q) of the Transfer of Property Act).
Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant.
Therefore, by merely assigning the rights, the tenancy of the 21 company did not come to an end.
It was observed by this court in W. H. King vs Republic of India (1): "There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other.
In the case of an assignment, the assignor continues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privily of estate.
The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary.
But in the case of relinquishment it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them.
Relinquishment of possession must be to the lessor or one who holds his interest: and surrender or relinquishment terminates the lessee 's rights and lets in the lessor.
" In the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla.
The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company.
The true position was therefore that the company did not immediately on the service of the notice cease to be a tenant; and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant, and he could not be regarded as a trespasser.
The High Court was therefore in our view in error in holding that the proceedings were not maintainable in the court of the Controller for possession.
Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the court of the Controller as the company for an order in ejectment.
We therefore allow the appeal, set aside the order passed by the High Court and restore the order passed by the District Court, Rohtak.
The appellant will be entitled to his costs in this court as well as in the High Court from Khosla.
Appeal allowed.

summary:
The Singer Sewing Machine Company, respondent 2 in the appeal, was the tenant in respect of a shop under the appellant and informed him that the company had closed its premises, that respondent I will conduct his business in the shop, and that he will be personally responsible for payment of rent, and in spite of the appellant 's protest and without his consent delivered possession of the said shop room to respondent 1.
Thereupon the appellant applied to the Controller under section 13 of the East Punjab Urban Rent Restriction Act, 1949, for eviction of the respondents and the Controller directed the company to deliver possession to the appellant.
The District Court confirmed the Controller 's order but the High Court set aside the order, in a petition under article 227 of the Constitution, as having been made without jurisdiction, holding that the company had no interest in the tenancy after August 31, 1954, and nothing had passed to the respondent 1.
Held, that the High Court was in error on both the points and its order must be set aside.
One of the obligations of a tenant under section 108(q) of Transfer of Property Act, on the determination of the tenancy, is to put the landlord in possession.
If the tenant fails to do so before the expiry of the period of notice, his tenancy continues and cannot be terminated by an assignment in favour of another.
W. H. King vs Republic of India, , referred C.to.
In the instant case, the company had not admittedly served the notice as required by law and, therefore, did not cease to be the tenant and since the respondent I was let into possession as assignee he was not a trespasser and, consequently, the proceeding before the Controller was maintainable against both.