judgement:
Appeal No. 1733 of 1967.
Appeal by special leave from the Award dated April 10, 1967 of the Industrial Tribunal, Delhi in Reference I.D. No. 241 of 1961.
M.K. Ramamurti, Shyatnala Pappu, Vineet Kumar and Madan Mohan, for the appellants.
S.V. Gupte, Lalit Bhasin, S.K. Mehta and K.L. Mehta, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
Two workmen, Gulab Singh and Satya Pal, were appointed by the respondent company in December 1956 and February 1955 respectively under the designation of copy holders.
It was alleged that they were entrusted with the duties of proofreaders and therefore they claimed that they should be treated as such.
In July 1959 the management issued an order in which the two workmen were described as copy holders.
It was alleged that in spite of this order the management continued to give the workmen the work of proof readers.
A dispute whether the two workmen should be treated as proof readers having arisen and having been espoused by the Delhi Union of Journalists, the Delhi Administration, by a notification dated AUgust 2, 1961 referred it to the Industrial Tribunal, Delhi.
The management contended that the said dispute was an individual dispute and not an industrial dispute and that that being so it was wrongly referred to the Tribunal and the Tribunal had no jurisdiction to adjudicate it.
The Tribunal raised the preliminary issue, namely, whether the dispute relating to the said two workmen was an industrial dispute.
The Tribunal held that 915 it was not an industrial dispute but was only an individual dispute of the two workmen and therefore it had no jurisdiction to adjudicate the said reference.
The workmen obtained special leave from this Court and that is how this apppeal has come up before us for disposal.
Apart from the oral evidence, the appellants relied on two documents, exhibit WWI/A, which purported to be the minutes of a meeting held on November 15, 1960 of 17 working journalists and exhibit WB/1 purporting to be the minutes of a meeting of the executive committee of the Delhi Union of Journalists held on December 1, 1960.
The union maintained that these two resolutions were proof of espousal of the dispute, the first by an appreciable number of the co workers of the two aggrieved workmen and the second by the union and therefore the dispute though originally an individual dispute was converted into an industrial dispute.
The Tribunal rejected exhibit WW1/A, namely, the minutes of the alleged meeting of the 17 working journalists in the employ of the respondent company as unreliable.
The Tribunal next considered whether, even assuming that the said 17 working journalists espoused the cause of the two workmen that espousal transformed the dispute in question into an industrial dispute, in other words, whether they constituted an appreciable number sufficient to change the dispute into an industrial dispute.
At the material time the Branch office of the respondent company at Delhi consisted in all of 388 employees, out of whom 140 were working in the Press.
The working journalists numbered 131, out of whom 63 were outstation correspondents and the remaining 68 were working journalists performing their duties in Delhi and New Delhi.
The Tribunal held that though the said 63 working journalists were outstation journalists they nevertheless belonged to the staff of the respondent company 's Delhi Branch, and therefore, could not be excluded from consideration.
The question which the Tribunal posed to itself was whether 17 out of the said 131 working journalists could be said to be an appreciable number.
According to the Tribunal, even if those 63 outstation correspondents were excluded and only 68 working journalists were considered, 17 of them would not constitute an appreciable number sufficient to convert the said dispute into an industrial dispute.
It also held that mere passing of a resolution without anything done to follow it up was not sufficient to constitute espousal.
There was no evidence that after passing the said alleged resolution on November 15, 1960 anything further was done.
On these facts the Tribunal did not consider the aforesaid resolution, assuming that it was passed, as constituting espousal.
As regards the resolution dated December 1, 1960 the minutes of the meeting of the executive committee of the Delhi Union of Journalists were produced before the Tribunal.
The minutes 916 stated that the meeting after considering the representation made to it by the employees of the Indian Express decided to take up the case of the two workmen and authorised the office bearers of the union to initiate the necessary proceedings.
The Tribunal found that the union initiated a fresh dispute before the Conciliation Officer and that there was no pending case initiated earlier, i.e., before December 1, 1960 by another union as alleged by the appellants which could have been continued by the union.
A copy of the statement of claim filed by the union before the Conciliation Officer was also produced before the Tribunal.
There was evidence that 31 working journalists employed in the respondent company had become the members of the Delhi Union of Journalists.
But they had joined the union after the said order of July 1959.
The Tribunals ' view was that the said 31 working journalists having joined the Delhi Union of Journalists after the cause of action had arisen in July 1959, the said resolution of the union 's executive committee would not constitute espousal as there would be no nexus between the dispute and the union, and therefore, the resolution dated December 1, 1960 did not have the effect of converting the said dispute into an industrial dispute.
Mr. Ramamurti, for the appellants, contended that the resolution dated December 1, 1960 coupled with the fact that the union initiated conciliation proceedings in respect of the demand of the said two workmen was sufficient to transform the dispute into an industrial dispute.
On the other hand, Mr. Gupte, appearing for the company, contended that a dispute which is prima facie an individual dispute may assume the character of an industrial dispute if it is taken up or espoused by an appreciable body of the workmen of the establishment.
Espousal by a union is regarded as sufficient, for, that means that it is an espousal by an appreciable number of workmen in that establishment.
If such a dispute is espoused by an outside union, the workmen of the establishment, appreciable in number, must be members of such a union.
On these contention, the question for our determination is whether the Delhi Union of Journalists can be said to have espoused the dispute of the two.
workmen; if so, whether it did in time, and whether the union not being exclusively a union of the workmen employed in the* respondent company, could espouse the said cause.
The resolution dated December 1, 1960 passed by the executive committee of the union was not disbelieved by the Tribunal.
That, coupled with the fact that the union authorities initiated the conciliation proceeding, must mean that the union had espoused the cause of the two workmen.
The dispute arose in July 1959 when the management refused to treat the two work 917 men as proof readers.
Thereafter the executive committee, after considering a representation made to it by the employees of the respondent company, as the resolution reads, passed the said resolution authorising the office bearers of the union to initiate proceedings in the matter of the said dispute and the secretary accordingly initiated proceedings before the conciliation officer.
In these circumstances, it is not possible to appreciate how the espousal by the union can be said to be beyond time as such espousal can only take place after and not before the dispute arose, or as counsel put it, the cause of action arose.
In The Bombay Union of Journalists vs The Hindu, Bombay(x) this Court in clear terms laid down that the test of an industrial dispute is whether at the date of the reference the dispute was taken up and supported by a union, or by an appreciable number of workmen.
There being no doubt of the union having taken up the cause of the two workmen before the reference the first two parts of the question must be answered in the affirmative.
The next question is whether the cause of a workman in a particular establishment in an industry can be sponsored by a union which is not of workmen of that establishment but is one of which membership is open to workmen of other establishments in that industry.
In Central Provinces Transport Services Ltd. vs Raghunath Gopal Patwardhan(2) this Court noted that decided cases in India disclosed three views as to the meaning of an industrial dispute: (1) a dispute between an employer and a single workman cannot be an industrial dispute, (2) it can be an industrial dispute and (3 ) it cannot per se be an industrial dispute but may become one if taken up by a trade union or a number of workmen.
After discussing the scope of industrial dispute as defined in sec.
2(k) of the Act it observed that the preponderance of judicial opinion was clearly in favour of the last of the three views and that there was considerable reason behind it.
In the Newspapers Ltd. vs The State Industrial Tribunal, U.P.(3) the third respondent was employed as a lino typist by the appellant company.
On an allegation of incompetence he was dismissed from service.
His case was not taken up by any union of workers of the appellant company, nor by any of the unions of workmen employed in similar or allied trades.
But the U.P. Working Journalists Union, Lucknow, with which the third respondent had no concern, took the matter to the Conciliation Board.
On a reference being made to the Industrial Tribunal by the Government the legality of that reference was challenged by the appellant company on the ground that the said dispute could not be treated as an industrial dispute under the U.P. ' which defined by sec. 2 an industrial dispute as having the same (1) ; (2) ; (3) ; 918 meaning assigned to it in sec.
2(k) of the Central Act.
This Court upheld the contention observing that the notification referring the said dispute proceeded on an assumption that a dispute existed between the employer and "his workmen", that Tajammul Hussain, the workman concerned, could not be described as "workmen", nor could the U.P. Working Journalists Union be called "his workmen" nor was there any evidence to show that a dispute had got transformed into an industrial dispute.
The question whether the union sponsoring a dispute must be the union of workmen in the establishment in which the workman concerned is employed or not had not so far arisen.
It seems.
such a question arose for the first time in the case of Bombay Union of Journalists vs The Hindu, Bombay(1).
The decision in that case laid down (1) that the excluded its application to an individual dispute as distinguished from a dispute involving a group of workmen unless such a dispute is made a common cause by a body or a considerable section of workmen and (2) the members of a union who are not workmen of the employer against whom the dispute is sought to be raised cannot by their support convert an individual dispute into an industrial dispute.
Persons who seek to support the cause must themselves be directly and substantially interested in the dispute and persons who are not the employees of the same employer cannot be regarded as so interested.
The Court held that the dispute there being prima facie an individual dispute it was necessary in order to convert it into an industrial dispute that it should be taken up by a union of the employees or by an appreciable number of employees of Hindu, Bombay.
The Bombay Union of Journalists not being a union of the employees of the Hindu, Bombay, but a union of all employees in the industry of journalism in Bombay, its support of the cause of the workman concerned would not convert the individual dispute into an industrial dispute.
The members of such a union cannot be said to be persons substantially and directly interested in the dispute between the workman concerned and his employer, the Hindu Bombay.
But in Workmen v, M/s. Dharampal Premchand(2) this Court, after reviewing the previous decisions, distinguished the case of Hindu, Bombay and held that notwithstanding the width of the words used in sec.
2(k) of the Act a dispute raised by an individual workman cannot become an industrial dispute unless it is supported either by his union or in the absence of a union by a number of workmen, that a union may validly raise a dispute though it may be a minority union of the workmen employed in an establishment that if there was no union of workmen in an establishment a group of employees can raise the dispute which becomes an industrial dispute even though it is a dispute relating to an individual (1) [19623] S.C.R. 893.
(1) [1965] 3 S.C.R. 394.
919 workman, and lastly, that where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same, industry, if such a union takes up the cause of the workman working in an establishment which has no union of its own, the dispute would become an industrial dispute if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute.
The evidence of the union secretary was that in 1959 60, 31 working journalists of the respondent company were members of the Delhi Union of Journalists.
It was nobody 's case that these 31 members did not continue to be the members of that union in 1960 61 also.
If the number of working journalists in the respondent company were to be taken as 68 membership of the union by as many as 31 working journalists would certainly confer on the union a representative character.
Even if the number of working journalists were to be taken as 131, it woUld not be unreasonable to say that 31, i.e., about 25 % of them would, by becoming the members of the union, give a representative character to the union.
It is clear from the evidence that at the material time there was no union of working journalists employed by the respondent company.
Therefore, in accordance with the decision in the Workmen vs M/s. Dharampal Premchand(1) the union can be said to have a representative character qua the working journalists employed in the respondent company.
There can be no doubt that the union had taken up the cause of the two workmen by its executive committee passing the said resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer.
Though the grievance of the two workmen arose in July 1959 when the management declined to accept them as proof readers the union had sponsored their cause before the date of reference as laid down in the case of Hindu, Bombay. 'That being the position it cannot be gainsaid that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis a vis the working journalists in the employ of the respondent company.
We must, therefore, hold that the Tribunal 's view that the dispute was not an industrial dispute was incorrect.
The award, therefore, will have to be set aside and the appeal of the workmen allowed.
There will be no order as to costs.
R.K.P.S. Appeal allowed.

summary:
The workmen were appointed by the respondent company under the designation of copy holders and an order in July 1959, issued by the management, expressly described them as such.
It was alleged however, that despite this order, the management, both before and after the date of the order, had always given to the workmen the work of proofreaders.
A dispute arose whether the two workmen should be treated as proof readers and the executive committee of the Delhi Union of Journalists, at a meeting on December 1, 1966, after considering the representation made to it by the two employees, decided to take up their case and thereafter initiated conciliation proceedings.
Eventually, the Delhi Administration referred the dispute.
to the Industrial Tribunal.
It was contended by the management before the Tribunal that the dispute was an individual dispute and not an industrial dispute so that the Tribunal had no jurisdiction to adjudicate it.
The Tribunal accepted this contention.
Evidence was led before the Tribunal to show that the working Journalists employed by the respondent company numbered 131 out of whom 68 were employed in Delhi.
Out of these, 31 were members of the Delhi Union of Journalists which was an outside union and which they had joined after July 1959.
The Tribunal 's view was that the 31 working journalists having joined the Union *after the cause of action had arisen in July 1959, the resolution of the union 's executive committee would not constitute espousal of the workmen 's dispute as there would be no nexus between the dispute and the Union, and therefore, the resolution dated December 1, 1960 did not have the effect of convening the dispute into an industrial dispute.
In appeal to this Court by special leave, HELD: The Tribunal 's view that the dispute was not an industrial dispute, was incorrect.
Bombay Union of Journalists vs The Hindu, Bombay, ; , Central Provinces Transport Services Ltd. vs Raghunath Gopal Patwardhan; , , Newspapers Ltd. vs State Industrial Tribunal U.P., ; and Workmen vs M/s. Dharampal Premchand, [1965] 3 S.C.R. 394, referred to.
The espousal by the union could not be said to be beyond time as such espousal could only take place after and not before the dispute arose or the cause of action arose.
The test of an industrial dispute is whether at the date of the reference the dispute was taken up and supported by a union, or by an appreciable, number of workmen.
In the present case this test was clearly satisfied.
[917 C] If the number of working journalists in the respondent company were to be taken as 68, membership of the union by as many as 31 working journalists would certainly confer on the union a representative character.
Even if the number of working journalists were to be taken as 131, it 914 would not be unreasonable to say that 31, i.e. about 25% of them would, by becoming the members of the union, give a representative character to the union.
At the material time there was no union of working journalists employed by the respondent company.
Therefore, in accordance with the decision in the Workmen vs M/s. Dharampal Premchand the union could be said to have a representative character qua the working journalists employed in the respondent company.
The union had taken up the cause of the two workmen by its executive committee passing a resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer.
Though the grievance of the two workmen arose in July 1959, when the management declined to accept them as proof readers the union had sponsored their cause before the date of reference as laid down in the case of The Hindu, Bombay. 'That being the position it could not be gain said that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis a vis the working journalists in the employ of the respondent company.
[919 C G]


judgement:
ivil Appeal No. 1451 of 1968.
Appeal from the judgment and decree dated March 11, 1965 of the Andhra Pradesh High Court in A.S. Nos. 93 and 169 of 1957.
Rajeshwara Rao and B. Parthasarathi, for the appellant.
D. Munikanniah and A.V.V. Nair, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate from the judgment of the High Court of Andhra Pradesh dated March 11, 1965 in A.S. Nos. 93 and 169 of 1957.
The appellant was a firm of dealers in pulses at Vijayawada.
It was sending pulses like green gram and black gram to other States viz.: Bombay, Bengal, Madras and Kerala by rail in the course of their business.
The consignments were addressed to 'self ' and the railway receipts were endorsed in favour of Banks for delivery against payments.
The purchasers obtained the railway receipts after payments and took delivery of the goods.
The total turnover of the business of the appellant for the year 1949 50 was Rs. 17,05,144 2 2.
Of the said turnover a sum of Rs. 3,61,442 7 3 represented the turnover of sales effected outside the then Madras State.
For the assessment year 1949 50 the Deputy Commercial Tax Officer collected sales tax on the total turnover without exempting the value of the sales effected outside the State.
The appellant was permitted to pay sales tax under(r. 12 of the Madras General Sales Tax (Turnover and Assessment) Rules.
The appellant submitted monthly returns and paid sales tax without claiming any such exemption till the end of January, 1950.
But in, the returns for the months of February and March, 1950 the appellant claimed exemption on sales effected outside the State.
The appellant submitted a consolidated return exhibit A 18 to the Deputy Commercial Tax Officer on March 30, 1950 claiming exemption in respect of a sum of Rs. 10,37,334 7 9 being the value of the sales effected outside the 745 State or the period commencing from April 1, 1949 and ending January 31, 1950.
The Deputy Commercial Tax Officer fixed the taxable turnover of the appellant at Rs. 17,05,14 4 2 2 and issued a notice exhibit A 23 dated October 24, 1950 to show cause why the appellant should not be assessed accordingly.
The appellant was thereafter held liable to pay tax amounting to Rs. 26,642 14 0 on a net turnover of Rs. 17,05,144 2 2.
The appellant preferred an appeal to the Commercial Tax Officer and a revision petition to the Board of Revenue, Madras but was unsuccessful.
The appellant, therefore brought a suit for the recovery of Rs. 21,270 13 0 being the amount of tax illegally collected from him together with interest, contending that the sales effected outside the State could not be taxed under article 285 (1)(a) of the Constitution of India.
The State of Madras contested the suit on the ground that the sales were taxable as they fell within the purview of explanation 2 to section 2(h) of the Madras General Sales Tax Act, 1939 hereinafter referred to.
as the Act).
The Subordinate Judge held that for the period from April 1, 1949 to January 25, 1950 the appellant was not entitled to impeach the assessment on the turnover relating to sales outside the State.
As regards the period from March 26, 1950 to March 31, 1950 the Subordinate Judge took the view that the past of the turnover relating to, outside sales was not liable to salestax but as there was a single order of assessment for the entire period the entire assessment was illegal.
Again the judgment of the Subordinate Judge both the appellant and the respondent filed appeals A.S. No. 93 of 1957 and A.S. No. 169 of 1957 to the High Court of Andhra Pradesh.
But its order dated April 18, 1960 in Appeal No. 169 of 1957 the High Court called for a finding from the trial court as to whether the appellant was able to prove the facts entitling him to invoke the explanation to article 286(1)(a).
By its order dated July 21, 1962 the trial court submitted a finding to the effect that in view of the decision of the Supreme Court in India Copper Corporation Ltd. vs The State of Bihar(1) the burden of proof was not on the appellant and that the finding will have to be given in its favour.
But by its order dated March 5, 1963 the High Court directed the Subordinate Judge to record a finding after considering the evidence adduced by the appellant as to whether the goods in question were delivered for consumption within the delivery States.
In its order dated March 22, 1963 the trial court, after considering the evidence given by the appellant 's witnesses came to the conclusion that the deliveries were not made for purposes of consumption within the delivery States only.
The High Court by a common judgment dated March 11, 1965 in A.S. No. 93 and 169 of 1957 held that the appellant could not claim the benefit under article 286(1)(a) of the Constitution in the (1) 12S.T.C. 56.
746 absence of evidence as to how the wholesalers disposed of the goods after obtaining delivery and therefore the entire turnover for the year 1949 50 would be assessable to tax.
In the result A.S. No. 169 of 1957 flied by the respondent was allowed and A.S. No. 93 of 1957 filed by the appellant was dismissed.
The Madras General Sales Tax Act, 1939 was enacted in exercise of the legislative authority conferred upon the Provincial Legislatures by Entry 48 of List II read with section 100(3) of the Government of India Act, 1935.
The explanation to section 2(h) of this Act is as follows: "Notwithstanding anything to the contrary in the Indian the sale or purchase of any goods shall be deemed, for the purpose of this Act, to have taken place in this Province, wherever the contract of sale or purchase might have been made.
(a) If the goods.
were actually in this Province at the time when the contract of sale or purchase in respect thereof was made or, (b) in case the contract was for the sale or purchase of future goods by description, then, if the goods are actually produced in this Province at any time after the contract of sale or purchase in respect thereof was made." Under Entry 48 of List II of the Government of India Act, 1935the Provincial Legislatures could tax sales by selecting some fact or circumstances which provided a territorial nexus with the taxing power of the State even if the property in the goods sold passed outside the Province or the delivery under the contract of sale took place outside the Province.
Legislation taxing sales depending solely upon the existence of a nexus, such as production or manufacture of the goods, or presence of the goods in the Province at the date of the contract of sale, between the sale and the legislating Province could competently be enacted under the Government of India Act, 1935.
[see Tata Iron & Steel Ca.
Ltd. vs The State of Bihar(1) and Poppatlal Shah vs The State of Madras ( 2 ) ].
By article 286 of the Constitution certain fetters were placed upon the legislative powers of the States as follows: "(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (1) ; (2) [19531 S.C.R. 677.
747 (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India.
Explanation.
For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State.
(2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce; Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the Government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions of this clause, continue to be levied until the thirty first day of March, 1951.
(3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." Therefore, by incorporating section 22 of the Madras Act read with article 286, notwithstanding the amplitude of the power otherwise granted by the charging section read with the.
definition of 'sale ', a cumulative fetter of triple dimension was imposed upon the taxing power of the State.
The Legislature of the Madras State could not since January 26, 1950, levy a tax on sale of goods taking place outside the State or in the course of import of the goods into, or export of the goods out of, the territory of India, or on sale of any goods where such sale took place in the course of inter State trade or commerce.
By the Explanation to article 286(1)(a) which is incorporated by section 22 of the Madras Act a sate is deemed to take place in the State in which the goods are actually delivered as a. direct result of such sale for the purpose 748 of consumption in that State even though under the law relating to sale of goods the property in the goods has by reason of such sale passed in another State.
In the State of Bombay and Anr.
vs The United Motors (India) Ltd.(1) it was held that since the enactment of article 286(1)(a) a sale described in the Explanation which may for convenience be called an "Explanation sale" is taxable by that State alone in which the goods sold are actually delivered as a direct result of sale for the purpose of consumption in that State.
With a view to impose restrictions on the taxing power of the States under the pre Constitution statutes, amendments were made in those statutes by the Adaptation of Laws Order.
As regards the Madras Act the President issued on July 8, 1952 the Fourth Amendment inserting a new section, section 22 in that Act.
It runs as follows: "Nothing contained in this Act shall be deemed to impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase takes place (a) (i) outside the State of Madras, or (ii) in the course of import of the goods into the territory of India or of the export of the goods out of such territory, or (b) except in so far as Parliament may by law otherwise provide, after the 31st March., 1951, in the course of inter State trade or commerce, and the provisions of this Act shall be read and construed accordingly.
Explanation : For the purposes of cl.
(a)(i) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State.
" By this amendment the same restrictions were engrafted on the pre Constitution statute as were imposed by article 286 of the Constitution upon post Constitution statutes.
As regards the sales for the period from April, 1949 to January 25, 1950 it was admitted before the Deputy Commercial (1) ; 749 Tax Officer that the goods were actually in the Madras State at the time the contract of sale was concluded.
It was for this reason that the Deputy Commercial Tax Officer negatived the claim which the appellant made in respect of those sales.
It appears that in the trial court the appellant challenged the constitutional validity of explanation to section 2(h) of the Act.
But in view of the decision of this Court in the Tata Iron & Steel Co 's case(1) and Poppatlal Shah 's case(2) counsel on behalf of the appellant did not seriously dispute the validity of the assessment in regard to sales from April 1, 1949 to January 25, 1950.
With regard to the period from January 26, 1950 to March 31, 1950 the contention of the appellant ' is that the High Court was in error in holding that the burden of proof was on the appellant to show that there was not only delivery of goods for consumption within the delivery States but there was actual consumption of the goods in those States.
In our opinion the argument is well founded and must be accepted as correct.
In India Copper Corporation 's case(3) it was pointed out by this Court that if the goods were as a direct result Of a sale delivered outside the State of Bihar for the purpose of consumption in the State of first delivery, the assessee would be entitled to the exemption from sales tax by virtue of the Explanation to Art 286(1)(a) of the Constitution and it would not be necessary for the assessee to prove further that the goods so delivered were actually consumed in the State of first destination.
In the present case the Subordinate Judge has, upon a consideration of the evidence adduced by the parties stated in his report dated June 27, 1962 that the intention of the appellant was that the sale and delivery should be for the purpose of consumption in the delivery States.
It is true that in his subsequent report dated March 22, 1963 the Subordinate Judge gave a different finding.
But it is obvious that the subsequent report of the Subordinate Judge is vitiated because the principle laid down by this Court in India Copper Corporation 's case(3) has not been taken into account.
Having regard to the evidence adduced by the appellant in this case we are satisfied that the part of the turnover which related to sale from 2, January 26, 1950 to March 31, 1950 was not liable to sales tax and the levy of sales tax from the appellant to this extent is illegal.
The next question arising in this appeal is whether the assessment order of the Deputy Commercial Tax Officer for the year 1949 50 is illegal in its entirety notwithstanding the fact that the State Government had a right to levy sales tax on outside sales (1) ; (2) ; (3) 12 S.T.C. 56. 750 which were effected prior to January 26, 1950.
It was argued for the appellant that the assessment must be treated as one and indivisible and if a part of the assessment is illegal the entire assessment must be deemed to be infected and treated as invalid.
In support of this argument reference was made to the decision of this Court in Ram Narain Sons Ltd. vs Assistant Commissioner of Sales Tax(1) in which this Court observed as follows: "The necessity for doing so; is, however, obviated by reason of the fact that the assessment is one composite whole relating to.
the pre Constitution as well as the post Constitution periods and is invalid in toto.
There is authority for the proposition that when an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid in toto." The Court cited with approval a passage from the judgment of the Judicial Committee in Bennett & White (Calgary) Ltd.and Municipal District of Sugar City No. 5(2).
"When an assessment is not for an entire sum, but for separate sums, dissected and earmarked each of them to a separate assessable item, a Court can sever the items and cut out one or more along with the sum attributed to it, while affirming the residue.
But where the assessment consists of a single undivided sum in respect of the totality of property treated as assessable, and when one component (not dismissible as 'de minimis ') as on any view not assessable and wrongly included, it would seem clear that such a procedure is barred, and the assessment is bad wholly.
That matter is covered by authority.
In Montreal Light, Heat & Power Consolidated vs City of Westmount(3) the Court (see especially per Anglin, C.J) in these conditions held that an assessment which was bad in part was infected throughout, and treated it as invalid.
Here their Lordshis are of opinion, by parity of reasoning, that the assessment was invalid in toto.
" Applaying the principle to the special facts are circumstances of the case the Court set aside the orders of assessment and directed that the case should be remanded to the Assessment Officer for reassessment of the appellants in accordance with law.
The same principle was applied but with a different result in the later case (1) 6 S.T.C. 627 at 637.
(2) at p. 816.
(3) 751 the State of Jammu & Kashmir vs Caltex (India) Ltd. (1) in which the question arose as regards the validity of an assessment of sales tax of all retails sales of motor spirit.
The Petrol Taxation Officer assessed the respondent to pay sales tax for the period January 1955 to May, 1959 under section 3 of the Jammu & Kashmir Motor Spirit (Taxation of Sales) Act, 2005.
The respondent applied under section 103 of the Constitution of Jammu & Kashmir and a single Judge of the High Court held that the respondent was liable to pay sales tax only in respect of the sales which took place during the period January to September, 1955 and issued a writ restrainig the appellants from levying tax for the period October, 1955 to May, 1959.
On appeal a Division Bench of the High Court quashed the assessment for the entire period.
On appeal to this Court it was held that though there was one order of assessment for the period January 1, 1955 to May 1959 the assessment could be split up and dissected and the items of sale could be separated and taxed for different periods.
It was pointed out that the sales tax was imposed in the ultimate analysis on receipts from individual sales or purchases of goods effected during the entire period, and, therefore, a writ of mandamus could.
be issued directing the appellant not to realise sales tax with regard to transactions of sale during the period from September 7, 1955 to May, 1959.
A similar question arose for determination in an American case [Frank Rattarman vs Western Union Telegraph Co.(2)].
The question in that case was "whether a single tax, assessed under the Revised Statutes of Ohio, section 2778, upon the receipts of a telegraph company which receipts were derived partly from inter state commerce and partly from commerce ' within the State but which were returned and assessed in gross and without separation or apportionment, is wholly invalid, or invalid only in the proportion and to the extent that the said receipts were derived ,from interstate commerce".
It was held unanimously by the Supreme Court of the United States that the assessment was not wholly invalid but it was invalid only in proportion to the extent that such receipts were derived from interstate commerce.
It was observed that where the subjects of taxation can be separated so that that which arises from interstate commerce can be distinguished from that which arises from commerce wholly within the State, the Court will act upon this distinction, and will restrain the tax on interstate commerce.
while permitting the State to collect that upon commerce wholly within its own territory.
The principle of this case has been consistetly followed in American cases: [see Bowman vs Continental Company(3)].
This case has been cited with approval by this Court in The State of Bombay (1) 17 S.T,C. 612.
(2) ; (3) C.I./69 4 752 vs The United Motors (India) Ltd.(1) wherein it was observed that the same principle should be applied in dealing with taxing statutes in this country also.
In the present case we are of opinion that though there is a single order of assessment for the period from April 1, 1949 to March 31, 1950 the assessment could be split up and dissected and the items of sale separated and taxed for different periods.
It is quite easy in this case to ascertain the turnover of the appellant for the pre Constitution and post Constitution periods for these figures are furnished in the plaint by the appellant himself.
It is open to the Court in these circumstances to sever the illegal part of the assessment and give a declaration with regard to that part alone instead of declaring the entire assessment void.
For these reasons we hold that the appellant should be granted a declaration that the order of assessment made by the Deputy Commercial Tax Officer for the year 1949 50 is invalid to the extent that the levy of sales tax is made on sales relating to.
goods which were delivered for the purpose of consumption outside the State for the period from January 26, 1950 to March 31, 1950.
The result is that the appellant is entitled to a refund of the amount illegally collected from him for the period from January 26, 1950 to March 31, 1950.
The trial court has already found that the appellant is entitled to claim exemption with regard to.
turnover for this period to the extent of Rs. 3,34,107 15 6 and the tax payable on this sum is Rs. 5,220 7 0.
The appellant is.
therefore, entitled to a decree for the refund of Rs. 5,220 7 0.
The appellant is also entitled to interest at 6% per annum from the date of suit till realisation of this amount.
For these reasons we allow this appeal and set aside the judgment of the Andhra Pradesh High Court dated March 11, 1965 in A.S. Nos. 93 and 169 of 1957 and allow this appeal to the extent indicated above.
There will be no order with regard to costs.
R.K.P.S. Appeal allowed.
(1) ; at 1097.

dataset_name: IN-Abs

summary:
The appellant, a dealer in pulses in Vijayawada in Madras State made certain sales outside the State during the assessment year 1949 50.
The appellant claimed exemption from sales tax of sales effected outside the State during the year but the Deputy Commercial Tax Officer disallowed the claim.
A first appeal and a revision petition to the Board of Revenue were unsuccessful.
The appellant thereafter brought a suit for the recovery of tax collected from him with interest contending that part of sales effected outside the State could not be taxed under article 285(1)(a) of the Constitution.
The Trial Court held that the assessment to tax of the sales during the period from April 1, 1949 to January 25, 1950 ' could not be impeached but the sales from January 26 to March 31 outside the State were not liable to sales tax; as there was a single order of assessment 'for the whole year, the entire assessment was illegal.
In appeal to the High Court, and upon a direction from that Court, the Trial Court gave a finding that deliveries of the goods were not made for purposes of consumption within the delivery State only.
The High Court.
therefore.
allowed the appeal holding that the appellant could not claim the benefit under Article 286(1)(a) in the absence of evidence as to how the whole sales disposed of the goods after obtaining delivery and therefore the entire turn over for the year 1949 50 would be assessable to tax.
In the appeal to this Court, it was contended inter alia (i) that the High Court was in error in holding that the burden of proof was on the appellant to show that there was not only delivery of goods for consumption within the delivery States but there was actual consumption of goods in those States: (ii) the assessment must be treated as an indivisible one and if a part of the assessment was illegal, the entire assessment must be deemed to be infected and treated as invalid.
HELD: Allowing the appeal, (i) The part of the turnover which related to sales from January 26, 1960 to March 31.
1960 was not liable to sales tax and the levy of sales tax from the appellant to this extent was illegal.
It was rightly contended that the appellant did not carry the burden of showing that there was not only delivery of goods for consumption within the States but that the goods were actually consumed in those States.
[749 C] India Copper Corporation Ltd. vs The State of Bihar, 12 S.T.C. 56 relied upon.
744 (ii) In the present case though there was a single order of assessment for the period from April 1, 1949 to March 31, 1950, the assessment could be split up and dissected and the items of sales separated and taxed for different periods.
It was possible to ascertain the turnover of the appellant for the pre Constitution and post Constitution periods from the figures furnished in the plaint by the appellant himself.
It was, therefore.
open to the Court in these circumstances to sever the illegal part of the assessment and give a declaration with regard to the illegal part alone instead of1 declaring the entire assessment void.
[752 B] Case law referred to.


judgement:
: Criminal Appeal No. 208 of 1966.
Appeal by special leave from the judgment and order dated February 22, 1966 of the Patna High Court in Criminal Appeal No. 530 of 1962 and Government Appeal No. 44 of 1962.
A. S.R. Chari, M.K. Ramamurthi, G. Ramamurthy and Vineet Kumar, for the appellant.
B.P. Jha, for the respondent.
695 The Judgment of the Court was 'delivered by Sikri, J.
Fourteen persons were tried by the learned Second Additional Sessions Judge, Bhagalpur, on various charges.
Out of these 14 persons Sheo Prasad Sharma and Ram Prasad Sharma were charged under section 302, i.
P.C. Sheo Prasad Sharma was charged under section 302 for having intentionally caused the death of Qudrat Mian by shooting him down with his gun whereas Ram Prasad Sharma was charged under this section for having shot down with his gun Kaleshwar Yadav and thus having caused the murder of this person.
The Second Additional Sessions Judge, Bhagalpur, convicted Sheo Prasad Sharma under sections 304, 324/34, 201 and 148 and sentenced him to seven years rigorous imprisonment.
The appellant, Ram Prasad Sharma was convicted under sections 326/149, 324/ 34, 201 and 148,/.P.C. and sentenced to four years rigorous imprisonment.
Seven other accused were also convicted but it is not necessary to mention the sections under which they were convicted.
Five of the accused persons were acquitted by the learned Second Additional Sessions Judge.
Two appeals were filed before the High Court, one by the State and the other by the nine convicted persons, including Ram Prasad Sharma.
Both the appeals were heard together.
The High Court accepted the appeal of the State as far as Ram Prasad Sharma was concerned and convicted him under section 304, I.P.C., in connection with the shooting and causing the death of Kaleshwar and sentenced him to rigorous imprisonment for seven years.
The convictions of seven others were altered from under sections 326/149 to one under sections 304/149 but the sentence of four years rigorous imprisonment was maintained.
In other respects the convictions were maintained.
The High Court, however, quashed the convictions under section 201, I.P.C. The nine convicted persons filed petition for special leave to appeal.
This Court by its order dated October 4, 1966 rejected the petition except as regards Ram Prasad Sharma and his appeal is now before us.
The prosecution case as accepted by the High Court was, in brief, as follows.
On August 15, 1960, at about 1.30 or 2 p.m., by the side of a Danr (water channel) known as Chaksafia Danr at village Bindi about five miles away from.
Police Station Banka, a serious occurrence took place.
The Chaksafia Danr runs between village Bindi which is to its east and Banki which is to its west and then goes further north to village Bhadrar and other villages.
Lands of several villages, namely, Bhadrar, Nayadih, Uprama, Basuara, Jitnagar, Majhiara, Banki, etc.
are irrigated from the water of this Danr and there are detailed entries regard LI4Sup.
C.I, 69 15 696 ing the respective rights of the different villages in the Fard Abnashi which was prepared at the time of the last survey.
It appears that the villagers of different villages who enjoy the above rights go in in a body every year during the rainy season for 'clearing tins Danr in order mat there may not be any obstruction in the flow of water therein.
On the date of occurrence, i.e. August 15, 1960, a number of persons of villages Bhadrar, Nayadih, Uprama, Basuara, Jitnagar and Bhatkunki went along with spades to clear this Danr in the .usual course and some of them had lathis also with them.
The total number of persons were estimated to vary from about 150 to 'about 400.
When they reached the brick kiln, which exists in Malmala Tikar they were confronted by a mob of 40 to 50 persons including all the convicted persons.
Sheo Prasad Sharing and Ram Prasad Sharma were armed with guns and Patel Thakur was armed with a pharsa and the remaining accused except Dhanusdhari Mehta were armed with bhalas.
It may be mentioned that in the First Information Report Dhanusdhari Mehta was alleged to have been armed with a pistol but this allegation was subsequently given up.
Dhanusdhari Mehta was a retired inspector of police; his son Ram Prasad Sharma was a practising lawyer at Bhagalpur at the time of the occurrence in question.
On seeing this crowd of villagers, Sheo Prasad Sharma directed them to return and threatened to shoot them if they failed to do so.
There was some exchange of hot words and brick bats were thrown by both sides.
Sheo Prasad Sharma thereafter fired one shot towards the sky but the villagers did not disperse.
Then Dhanusdhari ordered his two sons Ram Prasad Sharma and Sheo Prasad Sharma to open fire on the villagers.
On this both Ram Prasad Sharma and Sheo Prasad Sharma opened fire with their guns on the villagers.
One shot fired by Sheo Prasad Sharma hit one Qudrat Mian and he fell down and died on the spot.
One other villager was alleged to have been shot by Ram Prasad Sharma and he died on the spot.
A number of villagers sustained gun shot injuries and as a result of the firing by Sheo Prasad Sharma and Ram Prasad Sharma, who are estimated to have fired about 12 rounds, the villagers dispersed.
Sobban Mandal, one of the injured persons went to the Police Station with three other injured persons, namely, Chotan Rai, P.W. 5, Jagdeo Choudhary, P.W. 8 and Kishori Prasad Singh, P.W. 12, who had also sustained gun shot injuries.
The learned Additional Sessions Judge had rejected the prosecution story that Kaleshwar Yadav was shot and killed during the occurrence.
He had come to the conclusion that Kaleshwar Yudav had died prior to the date of occurrence.
The High Court has accepted the prosecution version and it is this finding which is 697 being seriously challenged by the learned counsel for Ram Prasad Sharma, appellant.
The learned Additional Sessions Judge had rejected the version of the prosecution regarding the shooting down of Kaleshwar Yadav mainly on the basis of entries in an attested copy of the Chaukidar 's hath chitha (Ext.
D) according to which the death of Kaleshwar took place in Gopalpur mauza on August 12, 1960, that is, three days prior to the occurrence.
The learned Additional Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention.
Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Yadav was shot down by the appellant Ram Prasad Sharma.
According to the entries in this document, Ext.
D, Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza and in the remarks column of this register he is described as "Bahanoi (brother in law) of Asarfi Yadav.
" We looked at the attested copy produced in Court and we were unable to ascertain the date on which the attested copy had been obtained by the defence.
The only dates this document bears are the date of attestation (October ' 15, 1960) by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission by the Additional Sessions Judge (June 25, 1962).
As rightly pointed out by the High Court the learned Sessions Judge took this copy on record in an extraordinary manner.
The prosecution evidence closed on June 21, 1962 and on June 25, 1962, this attested copy was admitted in evidence without any proof.
On the same day an order was passed calling for the original.
On the very next day the public prosecutor filed a petition objecting to the admission of this document and alleged, that the document was bogus.
The hearing of the argument thereafter proceeded on July 4, 1962.
The Public Prosecutor again filed a petition that this document be not taken in evidence.
The learned Additional Sessions Judge disposed of this petition with the following order: "Let the petition be placed with the record.
The original has once again been called for.
The matter will be discussed in the judgment.
" It is pointed out by the High Court that there is no further reference to the document in the order sheet.
After the arguments concluded on July 7, 1962, the case was adjourned for judgment.
The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about 698 its genuineness.
The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document.
The High Court, following Sanatan Senanati vs Emperor(1) and Brij Mohan Singh vs Priya Brat Narain Sinha(2), held that the document was inadmissible in evidence.
We agree with the conclusion arrived at by the High Court.
Section 35 of the Evidence Act provides: "An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties.
As observed by this Court in Brij Mohan Singh vs Priya Brat Narain Sinha,(2), "the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it ' himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high." No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty.
In the result we must hold that exhibit D. the hath chitha, was rightly held by the High Court to be inadmissible.
The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant, Ram Prasad Sharma.
The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone 'wrong in coming to the conclusion.
The High Court states that ten witnesses have named Kaleshwar being the second person who was shot.
Further, Kaleshwar 's son and widow, P.Ws 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a kudal and had gone to Chaksafia Danr alongwith others.
They further deposed that on the next day they learnt from Nandai Lal Singh, P.W. 17, that Kaleshwar had. been killed.
The High Court further accepted the explanation of P.W. 1, who had made the F.I.R., that he had named Gholtan as being the person shot and killed by Ram ' Prasad because he had heard a hulla that Gholtan had been murdered.
It seems to us that the High Court came to a correct (1) A.I.R. 1945 Pat. 489.
(2) [19651 3 S.C.R. 861 ,864.
699 conclusion and was right in accepting the explanation of P.W. 1.
The learned counsel further contends that it was doubtful that 12 rounds would have been fired.
He points out the number of injuries received by the villagers.
But these injuries support the prosecution story.
From the injuries on the various persons examined by Dwarka Nath Prasad, P.W. 41, apart from the .persons who had died and whose bodies had been held to ' have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as ' 14 lacerated wounds and another had 10 lacerated wounds.
Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired.
In the result the appeal fails and is dismissed.
G.C. Appeal dismissed.

summary:
The appellant was tried for an offence under section 302 I.P.C. as well as for other offences in connection with an incident in which two persons were killed and several injured.
The allegation against the appellant was that he caused the death of one K by shooting him with a gun in the course of the alleged incident.
The Additional Sessions Judge who tried the case convicted the appellant for offences under sections 326/149.
324/34, 201 'and 148 I.P.C. but acquitted him in respect of the murder of K.
In so doing he relied upon an attested copy filed by the defence which purported to be the copy of an entry in the Chaukidar 's hath chitha according to which K died three days before the alleged incident.
He also relied on the fact that the name of 'K was not mentioned as a victim in the First Information Report of the incident.
In appeal the High Court convicted the appellant under section 304 I.P.C. for causing the death of K, holding that the alleged entry in the hath chitha had been wrongly admitted in evidence by the trial judge and that the deficiency in the F.I.R. was sufficiently explained.
Appeal against the High Court 's judgment was filed by special leave.
HELD: (i) The attested copy of the Chaukidar 's hath chitha was not admissible in evidence because the entry in question was not proved to have been made by a public servant in the discharge of his duties.
[699 E] Sanatan Senanati vs Emperor.
A.I.R. 1945 Pat.
489 and Brij Mohan Singh vs Priya Brat Natain Sinha.
; , relied on.
(ii) K 's death at the time and place alleged by the prosecution was established by sufficient evidence and the High Court was right in acCepting the explanation of the. maker of the F.I.R. for the absence of K 's name therein.
[699 F]


judgement:
tion No. 102 of 1969.
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus.
Vinoo Bhagat, for the petitioner.
S.P. Mitra, G.S. Chatterjee for Sukumar Basu, for the respondents.
The Judgment of the Court was delivered by Sikri, J.
This is a petition under Article 32 of the Constitution by Shyamal Chakraborty who has been detained under the (hereinafter referred to as the Act).
Three grounds have been urged by the learned counsel why we should issue a writ of habeas corpus directing his release: (1) that the detenu 's representation was not considered by the Government, (2) that the grounds furnished to the detenu mentioned offences under the Indian Penal Code and cannot be used for the purpose of detaining the detenu except in emergencies and (3) that the grounds do not have any relation to the maintenance of public order.
Following are the facts as they emerge from the affidavits on record: The detenu was detained by an order No. 3846 D.D. (S) dated 13th November, 1968 passed by the Commissioner of Police, Calcutta in exercise of powers conferred on him by section 3(2) of the Act.
The detenu was arrested on November 13, 1968 and was served with the grounds of detention both in English and in vernacular on the same day.
On 15th November.
1968, the Commissioner of Police reported the fact of such detention of the petitioner together with the grounds and other particulars having bearing on the necessity of the order to.
the State Government.
On 19th November, 1968, the Governor was pleased to approve the said order of detention under section 3(3) of the Act and on the same day the Governor submitted the report to the Central Government under section 3(4) of the Act together with grounds and other particulars having bearing on the necessity of the order.
On 7th December, 1968, his case was placed before the Advisory Board under section 9 of the Act.
On 6th January, 1969, the Advisory Board after consideration of the materials placed before it was of the opinion that there was sufficient cause for detention of the petitioner.
The petitioner had not submitted any representation to the State Government till then.
By an order dated 8th January, 1969 the Governor was pleased to confirm the order of detention.
It appears that on the 13th January, 1969 and 16th January, 1969 the detenu made 764 representations.
After the receipt of these representations the same were sent by the Home Department to the Commissioner of Police for his report.
On 1st April, 1969 the Commissioner of Police informed the Home Department that he did not recommend the release of the petitioner.
But the representations of the petitioner were not received back from the Commissioner of Police with his letter of the 1st April, 1969.
Later on the Commissioner of Police sent back the representation dated 13th January, 1969 to the Home Department.
This Court on 28th March, 1969 issued a notice under Article 32 of the Constitution to the Commissioner of Police and to the State Government to show cause why rule nisi should not be issued made returnable three weeks hence.
On receipt of this notice the State Government refrained from passing any order on the representation dated 13th January, 1969.
The representation dated 16th January, 1969 is untraceable, but effort is being made to trace it.
According to the Commissioner of Police it was on the same lines as the representation dated 13th January, 1969.
It is necessary to.
reproduce the grounds of detention served on the detenu and they are in the following terms : "You are being detained in pursuance of a detention order made under sub section (2) of section 3 of the (Act IV of 1950) on the following grounds: You have been acting in a manner prejudicial to the maintenance of public order by the commission of offences of rioting, assault etc.
as detailed below: (1) That on 28 6 68 at about 6 p. m.
you along with your associates being armed with lathis, iron rods, acid bulbs etc.
committed a riot in Kumartuli Park in course of which you severely assaulted Shri Amal Krishna Roy of 20A, Abhoy Mitra Street and iron rods, acid bulbs etc.
were indiscriminately used endangering human lives.
(2) That on 23 7 68 at about 6.10 p.m. you along with your associates being armed with lathis, iron rod, hockey sticks etc.
attacked constables Sankar Lal Bose and Jagdish Singh both of Shyampukur P.S. on Kaliprosad Chakraborty Street near the Gaudiya Math who went there to.
discharge their lawful duties, as a result of which constable Sankar Lal Bose sustained bleeding injuries on his person.
(3) That in the night of 3 10 68 between 11.50 p.m. and 1.30 a.m. you along with your associates being 765 armed with deadly weapons took part in a riot at Rabindra Sarani from Bug Bazar Street crossing to Kumartuli Street crossing in course of which bombs, brickbats and soda water bottles were indiscriminately hurled endangering human lives.
You are hereby informed that you may make a representation to the State Government against the detention order and that such representation should be addressed to the Assistant Secretary to the Government of West Bengal, Home Department, Special Section, Writers ' Buildings, Calcutta and forwarded through the Superintendent of the Jail in which you are detained as early as possible.
You are also informed that under section 10 of the (Act IV of 1950) the Advisory Board, shall, if you desire to be heard, hear you in person and that if you desire to be so heard by the Advisory Board you should intimate such desire in your representation to the State Government".
Coming now to the first point raised by the learned counsel it seems to us that there has been no breach of the provisions of the Act.
This Court has held that it is obligatory on the Government to deal with the representations made by the detenu, but the facts recited above show that the detenu did not choose to make a representation before the Advisory Board dealt with the matter, and further the State Government was in the process of dealing with the representation when this Court issued the notice.
Moreover, in the representation dated 13th January, 1969, the detenu barely stated that the grounds were false and that the detenu was a poor man and the family conditions were miserable and he was living peacefully, in the town and had never committed any act which was manifestly prejudicial to the maintenance of public order or communal harmony.
He prayed that "under the circumstances, I am to request you to kindly produce.
me before the Advisory Board and release me.
" At that stage it was impossible to produce him before the Advisory Board.
The Advisory Board had already dealt with the matter.
Under these circumstances we are unable to say that there has been a breach of section 7.
We trust that the State Government will now immediately deal with the representation or representations and pass a suitable order.
It will be convenient to deal with the points 2 and 3 mentioned above together.
It is true, as urged by the learned counsel for the petitioner, that this Court has consistently held that the grounds must have relevance to the maintenance of public order, and that they should not relate merely to the maintenance of 766 order.
It is true, as laid down by this Court, that the contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large.
As Ramaswami, J., put it in Pushkar Mukherjee & Ors.
vs The State of West Bengal(1), "in this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest.
" The question which arises is this: do the grounds reproduced above relate merely to maintenance of order or do they relate to the maintenance of public order ? It will be noticed that the detenu in each of these cases acted along with associates who were armed with lathis, iron rods, acid bulbs etc.
It is clearly said in ground No. 1 that he committed a riot and indiscriminately used acid bulbs, iron rods, lathis etc.
endangering human lives.
This ground cannot be said to have reference merely to maintenance of order because it affects the locality and everybody who lives in the locality.
Similarly, in the second ground, he alongwith his associates prevented the police constables from discharging their lawful duties and thus affected everybody living in the locality.
In ground No. 3, again the whole locality was in danger as the detenu and his associates were armed with deadly weapons and these were in fact used for indiscriminately endangering human lives in the locality.
The object of the detenu seems to have been to terrorise the locality and bring the whole machinery of law and order to a halt.
We are unable to say that the Commissioner of Police could not in view of these grounds come to the conclusion that the detenu was likely to.
act in a manner prejudicial to the maintenance of public order in the future and it was necessary to prevent him from doing so.
The fact that public order is affected by an act which was also an offence under the Indian Penal Code seems to us to be irrelevant.
In the result the petition fails and is dismissed.
G.C. Petition dismissed.

summary:
The petitioner was arrested and detained by an order of the Commissioner of Police, Calcutta under section 3(2) of the .
According to the grounds of detention supplied to him his activities were prejudicial to the maintenance of 'public order '.
The petitioners ' case was placed before the Advisory Board and on obtaining its opinion the Governor confirmed the order of detention.
It was after this that the petitioner made representations to the State Government.
Then he filed the present petition under article 32 of the Constitution based on the following grounds: (i) that there was a breach of section 7 of the Act inasmuch as his representation 's were not considered by the Government; (ii) that the grounds furnished to him mentioned offences under the Indian Penal Code and these could not be used for the purpose of detention except in emergencies: (iii) that the grounds did not have any relation to 'public HELD: (i) It is obligatory on the Government to deal with the representations made by the detenu, but in the present case the detenu made his representations only after the Advisory Board had dealt with the matter.
The State Government was in the process of dealing with his representation.
In the circumstances it could not be said that there had been a breach of section 7 of the Act.
[765 E G] (ii) The contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large.
[766 A] Pushkar Mukherjee & Ors.
vs The State of West Bengal, ; , applied.
The grounds of detention supplied to the detenu in the present case showed that on one occasion he took part in rioting along with associates armed with lathis, iron rods and acid bulbs.
On another occasion he took part in assaulting a constable on duty.
On a third occasion he and his associates were armed with deadly weapons which were actually used in indiscriminately endangering human lives in the locality.
[766 C D] From, these activities the object of the detenu seems to have been to terrorise the locality and bring the whole machinery of law and order to a halt.
The conclusion of the detaining authority that the detenu was likely to act in a manner prejudicial to the maintenance of public order in the future and it was necessary to prevent him from doing so, was justified.
[766 E F] 763 The fact that public sector was affected by an act which was also an offence under the Indian Penal Code .was irrelevant.
[766 F]


judgement:
vil Appeals Nos. 1537 to 1545 of 1968.
Appeals from the judgment and order dated April 4, 1963 the Assam High Court in Civil Rules Nos. 233 to 236 and 238 to 242 of 1961.
Naunit Lal and S.N. Choudhury, for the appellants (in all the appeals).
M.C. Chagla and Sukumar Ghose, for the respondents (in all the appeals).
The Judgment of the Court was delivered by Grover, J.
These are nine connected appeals by certificate from a judgment.of the High Court of Assam & Naggland whereby nine petitions filed by the respondents under article 226 of the Constitution were allowed and the assessment orders made under the provisions of the Assam Agricultural Income tax Act, 1939, hereinafter called the 'Act ', were quashed.
The facts may be first stated.
D.C. Choudhuri and S.C. Dutt petitioners in ,four of the writ petitions owned the Martycherra Tea Estate in the district of Cachar which they had purchased on January 1, 1948.
They sold this Estate on July 9, 1953.
From January 1, 1948 to July 9, 1953 they carried on the business of cultivation, manufacture and sale of black tea at the said Estate under a partnership of which they were the sole partners.
The partnership firm was served with a notice under the Indian Income tax Act, 1922 hereinafter called the Income tax Act and was assessed to income tax for the assessment year 1951 52.
Appeals were filed against the assessment order before the Appellate Assistant Commissioner of Incometax and the Income tax Appellate Tribunal in which substantial reliefs were given to the assessee.
After the sale of the Tea Estate these assessees ceased to have any agricultural income.
The case of the assessees as laid in the writ petition was that on January 25, 1961, a letter was received by one of them from the Agricultural Income tax Officer directing both the 'assessees to furnish returns of their agricultural income for the assessment years 1949 50 to 1953 54.
Thereafter they received a notice of demand under section 23 of the Act for payment of a certain amount as agricultural income tax for the assessment year 1950 51.
The assessment 782 order was stated to have been made under section 20(4) of the Act.
Similar orders were made and demands created with regard to the subsequent years, namely, 1951 52, 1952 53 and 1953 54.
All these assessment orders were challenged by means of four petitions under article 226 of the Constitution.
Apart from other points which were raised the main objection taken was that no notice under section 30 of the Act had been served at any time in respect of the assessment covered by the impugned orders.
Such a notice could be served only within three years of the end of the financial year.
In the absence of service of the aforesaid notice within the prescribed period the Income tax Officer had no jurisdiction to make any assessment nor could such an assessment be made after the expiry of a period of three years from the end of each financial year.
The other set of petitions.
under article 226 of the Constitution was filed by the company The Eastern Tea Estate Private Ltd. This company owned two tea estates, the Chandna Tea Estate and the Martycherra Tea Estate.
The Chandna Tea Estate was purchased from the Indian Tea and Mill Industries Ltd. in 1950 and the Martycherra Tea Estate was purchased from M/s. D.C. Choudhuri and S.C. Dutt on July 9, 1953.
The case of the company was that no notice had been received under section 19(2) of the Act for the assessment years 1951 52 to 1955 56 and therefore no returns were filed.
On October 9, 1959 the company received a letter from the Agricultural Income tax Officer, Shillong asking it to submit returns in respect of Martycherra Tea Estate for the assessment year 1950 51 onwards.
The company addressed a communication to the Agricultural Incometax Officer on November 18, 1959 saying, inter alia, that no notice had been served on it under the Act previously and as it also owned the Chandna Tea Estate it proposed to submit returns for the years in respect of which it was liable under the Act.
On October 19, 1959, the company received a notice under section 19 (2) of the Act directing it to submit the return in respect of the previous year for Martycherra Tea Estate.
In response to the notice the company submitted the return for the year ending December 31, 1958 showing the agricultural income from tea estates.
A number of notices were served subsequently and there was further exchange of correspondence.
It was alleged in the petitions filed by the company that a letter was received dated January 23, 1960 from the Agricultural Income tax Officer in which it was stated that the company had failed to submit the returns for the years 1950 51 to 1958 59 and it was asked to show cause why the assessments for these years should not be completed summarily.
After further exchange of correspondence the company received an assessment order dated June 19, 1961 in respect 783 of the assessment year 1951 52 which was made under section 20(4) of the Act together with a notice of demand for payment of a certain amount of agricultural income tax.
Similar assessment orders were passed under section 20(4) and demands created in respect of the assessment years 1952 53, 1953 54, 1954 55 and 1955 56.
All these assessments were challenged by means of five petitions under article 226 of the Constitution.
The main point raised in all these petitions was that unless individual notices under section 19(2) of the Act had been served no assessment could be made under section 20(4) except by way of proceedings under section 30 of the Act.
In the returns which were filed by the Agricultural Incometax Officer to all the petitions filed in the High Court it was maintained that the assessees had refused to accept the service of the notices under sections 19(2) and 30 of the Act.
The notice under section 19(1) had been published in the Assam Gazette and the assessees were bound to make a return pursuant to that notice.
It was denied that there was any necessity of serving notices under sections 19(2) or 30 of the Act and that the assessments which had been made were barred by limitation.
A division bench of the Assam & Nagaland High Court consisting of Mehrotra, C.J. and S.K. Dutta, J. allowed all the petitions but delivered separate judgments.
The learned Chief Justice held that where no return had been filed pursuant to a general notice under section 19(1) the Agricultural Income tax Officer was bound to proceed under section 30 and issue a notice under section 19(2) of the Act within the prescribed period, namely, three years of the end of the financial year.
He further held that there was no service of notice on the respondent in respect of the assessment years in question either under section 19(2) or section 30 of the Act.
S.K. Dutta, J., came to the same conclusion as the learned Chief Justice but he relied on a judgment of the Calcutta High Court in Commissioner of Agricultural Income tax vs Sultan Ali Gharami(1) in which a dissent had been expressed from the Bombay judgment in Harakchand Makanji & Co. vs
Commissioner of Income tax, Bombay City(2) on the question as to when proceedings relating to assessment could be regarded as having commenced.
According to the learned judge if no return is made in response to a public notice under section 19(1) of the Act and no individual notice is served under section 19(2) there would be no pending proceedings and it would be a case of escaped assessment.
But this would be so only after the expiry of the financial year.
In other words after the publication of the notice under section 19(1) there would be no escapement of income till the end of the financial year.
Once the financial year is over and no return has been made in response to a notice under (1) (2) L15 Sup.
CI/69 6 784 section 19(1) and no individual notice has been served under section 19(2) a case would arise of "escaped assessment for the financial year." The relevant provisions in Chapter IV of the Act may now be noticed.
Sections 19 and 20 contain provisions similar to sections 22 and 23 of the Income tax Act.
Under section 19(1) of the Act the Agricultural Income tax Officer before the specified date shall give notice by publication in the press or otherwise requiring every person whose agricultural income exceeds the limits of taxable income prescribed in section 6 to furnish within such period not being less than 30 days as may be specified a return in the prescribed form setting forth his agricultural income during the previous year.
Sub section (2) provides that in the case of any person whose total agricultural income is, in the opinion of the Agricultural Income tax Officer, of such amount as to render such person liable to payment of agricultural income tax for any financial year, he may serve in that financial year a notice requiring him to furnish within the prescribed period a return.
Sub section (3) enables a person who has not furnished a return within the time allowed by or under sub section (1) or sub section
(2) to furnish a return or a revised return at any time before the assessment is made.
Thus sub sections
(1), (2) and (3) of section 19 of the Act are identical with and correspond to sub sections
(1), (2) and (3) of section 22 of the Income tax Act.
Under section 20 of the Act if the Agricultural Income tax Officer is satisfied that a return made under section 19 is correct and complete he has to assess total agricultural income of the assessee 'according to it.
If he has reason to believe that such a return is incorrect or incomplete he has to serve a notice requiring the person who has made the return to produce any evidence on which he may rely in support of the return.
After hearing such evidence as the person making the return may produce and such other evidence as the officer may require on specified points the assess ment order is to be made.
These are the provisions of sub sections
(1), (2) and (3).
Sub section
(4) is in the following terms : "If the principal officer of any company or other person fails to make a return under sub section (1 ) or, sub section (2) of section 19, as the case may be or having made the return, fails to comply with all the terms of the notice issued under sub section (2) of this section, or to produce any evidence required under sub section (3) of this section, the Agricultural Incometax Officer shall make the assessment to the best of his judgment, and determine the sum payable by the assessee on the basis of such assessment Provided. . . . ." 785 Turning to section 23 of the Income tax Act, sub sections (1), (2) and (3) thereof correspond to sub sections (1), (2) and (3) of section 20 of the Act.
Sub section (4) of section 23 reads : "if any person fails to make the return required by any notice given under sub section (2) of section 22 and has not made a return or a revised return under sub section (3) of the same section or fails to comply with all the terms of a notice issued under subsection (4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub section (2) of this section, the Incometax Officer shall make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment and in the case of a firm may refuse to register it or may cancel its registration if it is already registered".
Provided . . . " Section 30 of the Act which corresponds to section 34 of the Incometax Act which deals with income escaping assessment may now be reproduced : "If for any reason any agricultural income chargeable to agricultural income tax has escaped assessment for any financial year, or has been assessed at too/ow a rate or has been the subject of undue relief under this Act, the Agricultural Income tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income tax on such agricultural income or, in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 19, and may proceed to assess or reassess such income, and the provisions of this Act shall, so far as may be, apply 'accordingly as if the notice were a notice issued under that sub section: Provided . . . ,, The principal contention raised on behalf of the appellant is that for an assessment to be made under section 20(4) of the Act it is not necessary that proceedings should have been taken under section 30.
The argument is that assessment proceedings commence with the publication of a general notice under section 19(1) and it is open to the Agricultural Income tax Officer to make 786 the best judgment assessment under section 20(4) without any limitation as to time.
It is not necessary to issue any individual notice under section 19(2) or to initiate proceedings under section 30 in such a situation.
Reliance has been placed on the observations in Harakchand Makanji & Co. vs Commissioner of Income tax, Bombay City(1) that once a public notice is given under sub section (1) of section 22 of the Income tax Act, which is similar in terms to section 19(1) of the Act, the assessment proceedings should be deemed to have commenced and there is no obligation on the Income tax Officer to serve an 'assessee individually as well.
But in the same case it was said that "a notice under section 34 is only necessary if at the end of the assessment year no return has made 'by the assessee and the Income tax authorities wish to proceed under section 22(2) by serving a notice individually.
It may then be said that as the assessment year had come to an end and as no return had been furnished and as the authorities wished to proceed under section 22(2) they should not do so without a notice under section 34".
The above view was approved by this Court in The Commissioner of Income tax, Bombay vs Ranchhoddas Karsondas, Bombay(2), but the portion which has been extracted does not support the contention which has been pressed on behalf of the appellant.
Indeed it has been relied upon more firmly by the counsel for the respondents.
If this view is accepted to be correct it follows that a notice under section 30 of the Act, in the present case, would be necessary if at the end of the assessment year no return has been made by the assessee and the authorities wish to proceed under section 19(2).
The case would be entirely different where he himself chooses voluntarily to.
make a return.
This he can do after the publication of a general notice under section 19(1) of the Act.
If the return is filed no question arises of any income having escaped assessment.
The return under the provisions of section 19(3) of the Act can be furnished at any time before the assessment is made.
This is what this Court held in The State of Assam Anr.
vs Deva Prasad Barua & Anr.(3).
The position is altogether different if no return has been made by the assessee and where income has not been assessed at all because for one reason or the other no assessment proceedings were initiated.
That would be a case of "escaped assessment" within section 30 of the Act.
The matter was examined at length by this Court in Ghansyam Das vs Regional Assistant Commissioner of Sales Tax, Nagpur(4) with reference to the provisions .
of the Central Provinces & Berar Sales Tax Act, 1947.
The (1) (2) ; (3) [1969] 1 S.C.R. 698.
(4) ; 787 following principles were laid down in that case which are noteworthy : (1) In the case of a registered dealer the proceedings before the Commissioner started factually when a return was made or when a notice was issued to him either under section 10(3) (under which the Commissioner has to issue a notice if no return is submitted) or under section 11(4)(which provides for the best judgment assessment) of the Sales Tax Act.
The statutory obligation to file a return did not initiate the proceedings.
(2) Once a statutory return was filed pursuant to a notice under section 10(3) or section 11 of the Sales Tax Act the proceedings did not come to an end until the final assessment was made.
(3) The expression "escaped assessment"in section 11A of the Sales Tax Act included that of a turnover which had not been assessed at all because for one reason or the other no assessment proceedings were initiated and no assessment was made in respect thereof.
Keeping in view the above principles it must be held that in the absence of a return having been filed by the assessees in the present case pursuant to a general notice under section 29(1) of the Act assessment could be made only after due notice section 19(2) or by initiating proceedings under section 30 of the Act.
Section 19(2) requires that an individual notice is to be served in the financial year.
If no notice is served under that section proceedings under section 30 can be initiated by a notice in accordance with that section within three years of the end of that financial year.
In this connection it may also be remembered that section 43(2)(a) of the Act confers a valuable right on the assessee in the matter of choosing the forum for the assessment.
According to that provision an assessee may on receipt of the first notice served on him under section 19(2) apply to the Agricultural Income tax Officer by whom such notice is served, to be assessed at the usual place of residence or at the place where the accounts relating to his agricultural income are kept.
The Agricultural Income tax Officer can then make an order that the assessee shall be assessed at the place specified in the application or he has to refer the matter to the Assistant Commissioner of Agricultural Income tax whose decision shall be final.
No such right is conferred on the assessee with reference to publication of a general notice under section 19 (1 ).
It shows, therefore that the proceedings for assessment under the Act can be initiated only by 788 notice trader section 19(2) or by having resort to the provisions of section 30 of the Act.
Counsel for the appellant has sought to make a distinction between the decision given under the provisions of the Incometax Act by pointing out that under section 20(4) of the Act best judgment assessment can be made on the failure to make a return under sub section (1) or sub section (2) of section 19 whereas under section 23 (4) of the Income tax Act such an assessment can be made only where any person fails to make the return required by any notice given under sub section (2) of section 22 which is equivalent to section 19(2) of the Act.
This distinction is hardly material when the principles which have been laid down by this Court are kept in view.
In support of his contention counsel for the appellant has also called attention to a decision of the Privy Council in Gokuldas Ratanti Mandavia vs Commissioner of Income tax(1) in which the provisions of the East African Income tax (Management) Act, 1952 came up for consideration.
Those provisions are altogether different and the decision rested on the wording of section 71 of that enactment.
It cannot, therefore, be of any assistance in the present case.
For the reasons given above the appeals fail and they are dismissed with costs.
One hearing fee.
V.P.S. Appeals dismissed.

summary:
The assessee, owners of a tea estate in Assam, after carrying on the business of cultivation, manufacture and sale of tea during the years 1948 to 1953 sold the tea estate on July 9, 1953.
In 1961, they received a notice from the Agricultural Income tax Officer to furnish returns of their agricultural income for the assessment years 1949 50 to 1953 54 in respect of that tea estate.
They did not submit any returns.
Thereafter, they received a notice of demand under section 23 of ' the Assam Agricultural Incometax Act, 1939, for payment of the tax assessed on best judgment basis under section 20(4).
The assessees were not served with any notice under s.19(2) which provides for a notice to be served personally on the assessee, during the respective years, nor under section 30 of the Act which deals with escaped assessment.
The purchasers of the tea estate were served.
in 1961, with assessment orders under section 20(4) in respect of the assessment years 1951 52 to 1955 56 with notices of demand for payment of the tax assessed for each year.
These assessees were also not served with any notice under section 19(2) or section 30.
All the assessees challenged the assessments in writ petitions and the High Court allowed the petitions.
In appeal to this Court, it was contended that the assessment proceedings commenced with the publication of a general notice under section 19(1), that it was open to the Agricultural Income tax Officer to make a best judgment assessment under section 20(4) without any limitation as to time and that it was not necessary to issue any individual notice under section 19(2) or to initiate proceedings under section 30.
HELD: Notwithstanding the difference in language between section 20(4) of the Act and section 23(4) of the Income tax Act the principles laid down by this Court in interpreting sections 22, 23 and 34 of the Income tax Act apply in the interpretation of sections 19, 20 and 30, the corresponding sections of the Assam Agricultural Income tax Act.
[788 A C] On those principles the publication of the general notice in any financial year under section 19(1) of the Assam Act to furnish a 'return o.f one 's agricultural income in the previous year, does not initiate proceedings against an assessee unless such assessee files a return.
If no return is made pursuant to the general notice under section 19(1) assessment could be made against an assessee under section 19(2), serving an individual notice on that assessee during that financial year.
Once that financial year is over, and no return has been made in response to the general notice under section 19(1) and no individual notice has been served under section 19(2), there would arise a case of escaped assessment; and, the only way to bring that income to tax is to initiate proceedings by a notice in accordance with section 30 within 3 years of 781 the end of that financial year.
Since no such proceedings were initiated in the present case, the assessment orders.
were rightly quashed.
[787 E H] The Commissioner of Income tax, Bombay vs Ranchhodas Karsondas, Bombay, ; , Ghanshyam Das vs Regional Assistant Commissioner of Sales tax, Nagpur; , and The State of Assam vs Deva Prasad Barua, [1969] 1.
S.C.R. 698, followed.