judgement:
Civil Appeal No. 2212 of 1977.
Appeal by Special Leave from the Judgment and Order dated 11 5 19 of the Punjab and Haryana High Court in General Sales Tax Reference No 16/74.
A. K. Sen, A. R. Lal and Ashok Grover for the Appellant.
J. D. Jain and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
The short question which arises for determination in this appeal is whether 'dryer felts ' manufactured by the assessee fall within the category of "all varieties of cotton, woollen or silken textiles," specified in Item 30 of Schedule `B ' of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the Act) If they are covered by this description, they would be exempt from Sales Tax imposed under the provisions of the Act, otherwise they would be liable to sales tax.
The assessing authorities held that the `dryer Felts` manufactured by the assessee were not "textiles" within the meaning of Item 30 of Schedule 'B ' and they were, therefore, not exempt from sales tax.
The 'Tribunal, on appeal, also took the same view and rejected the claim of the assessee to exemption from sales tax in respect of sales of `dryer felts '.
The assessee thereupon moved the Tribunal for making a reference to the High Court and on this application, the following question of law was referred by the Tribunal for the opinion of the High Court: "Whether on the facts and circumstances of the case, the products manufactured by the petitioner are not covered by Item 30 of Schedule 'B ' of the Punjab General Sales Tax Act, 1 1948, and therefore, not exempt from sales tax both under the Punjab General Sales Tax Act, l948 and the Ccntral Sales Tax Act, 1956.
" 547 The Reference was heard by Division Bench and on a difference of opinion between the two Judges constituting the Division Bench, the Reference was placed before a third Judge.
The third Judge held that 'dryer felts ' were not included in the expression 'textiles occurring in Item 30 of Schedule 'B ' of the Act and were, therefore, not exempt from sales tax and on this view the question referred to h Court was answered against the assessee and in favour of the Revenue.
The assessee thereupon preferred the present appeal with special leave obtained from this Court.
It is clear from section 5 sub section (1) of the Act that it levies sales tax on the taxable turnover of a dealer subject to the provisions of the Act.
Sub section (2) of section S defines "taxable turnover" mean that part of a dealer 's gross turnover during any period which remains .after deducting therefrom inter alia his turnover on the sale of goods declared tax free under section 6.
Section 6 provides that no tax should be payable on the sale.
of goods specified in the first column of Schedule 'B ' subject to the conditions and exception, if ' any set out in.
the corresponding entry in the second column thereof any no dealer shall charge sales tax on the sale of goods which are declared tax free from time to time under this section.
Schedule 'B ' sets out in the first column, various categories of goods which are declared tax free under section 6 and Item 30 specifies the folloing category of tax free goods: All Varieties of cotton, woollen or silken textiles including rayon artificial silk or nylon whether manufactured by handloom or powerloom or otherwise but not including pure silk fabrics, carpets, druggets, woollen durees and cotton floor durees. ' ' The question is: whether 'dryer felts ' manufactured by the assesee fell within this category of goods so as to be exempt from sales tax ? Can it be said that 'dryer felts ' constitute a variety of cotton or woollen textiles ? The answer to the question depends on what is the true meaning of the word "textiles ' as used in Item 30 of Schedule `B '.
Now, the word 'textiles ' is not defined in the Act, but it is well settled as a result of several decisions of this Court.
Of which we may mention only a few, namely, Ramavatar Budhaiprasad vs Assistant Sales Tax officer, Akola(1) and M/s Motipur Jamindary Co. Ltd. vs State of Bihar (2) and the State of West Bengal v Washi Ahmed(3) (1) A. T. K. (2) A. I. R. (3) ; 548 that in a taxing statute words of every, day use must be construed not in thier scientific or technical sense but as, understood in common parlance.
The question which arose in Ramavatar 's case (supra) was whether betel leaves are vegetables and this Court held that they are not `irekldel within that term.
,This Court chuoted with approval the following passage from the judgment of the High Court of Madhya Pra desh in Madhya Pradesh Pan Merchant 's Association, Santard Market, Nagpur vs State of Madllya Pradeh(1): In our opinion, the word "vegetables ' ' cannot be given the con lprehellsive mcaning the term bears in natural nistory and has not been given that meaning in taxing statutes beC fore The term "vegetables ' is to be understood as com monly understood denoting thosc classes of vegetable matter which are grown in kitchen gardens and are used for thc table." And observed that "the word 'vegetables ' in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetabies which are grown in a kitchen garden or in a farm and are used for the table.
" This meaning of the worc. 'vegetables ' was reiterated in M/s Motipur Jamindary case where sugarcane was held not to fall witbin Lhe definition of the word 'vegetables ' ancl the same mcaning was given to the word 'vegetables in Washi Ahmed 's case (supra) where greerl ginger was helcl to be 'vegetables ' within thc meaning of that word as used in common parlance.
lt was pointed out by this Court in Washi Ahmed 's case (supIa) that the sarne principle of construction in .elation to words used in a taxing statute has also been adopted in English, Canadiall and Americar Courls.
Pollock B. pointed out in Gretfell vs 1.
R. c.(o).
that if a statutc contains language which is capable of being construed in a p3pular sense, such a statute is to tbe construed according to the strict or technical meaning of the laaguage contained in it, but is to be construed in its popular sense? meaning, of eourse, by the wor(ls "popular sense that which people conversant with the subject matter , w;tl.
wh ich the statute is dealing.
would attribute it." So also the Supreme Court of Canada said Planters Nut and Chocolate Co. Ltd vs 'The King(3) while interpreting the words 'fruits ' and 'vegetables ' in the Excise Act.
" They are ordinary words in every day use and are, therefore to be construed according to their popular sense".
The same rule was expressed in slightly different language by Story, J., in 200 Chests of Tea(4) where the learned Judge said that the parti (1) 7 section T. C. 99 at 102.
(2) [1876] I E. D. 242 at 248.
(3) (4) [1824] 9 Wheaton (US.) 430 at 438.
549 cular words used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the Legislature does "not suppose our merchants to be naturalists, or geologists, or botanists.".
" There call, therefore, be no doubt that the word 'textiles ' in Item 30 of Schedule 'B ' must be interpreted according to its popular sense, meaning "that scene which people conversant with the subject matter with which the statute is dealing would attribute to it".
There we are in complete Agreement with the Judges who held in favour of the Revenue and against the assessee.
But the question is: What result does the application of this test yield ? Are 'dryer felts ' not 'textiles ' within the ordinary accepted meaning of that word ? the word 'textiles is derived from the Latin 'texere ' which means 'to weave ' and it means any woven fabric.
When yarn, whether cotton, silk, woollen, rayon, nylon or of any other description as made out of any other material is woven into a fabric, what comes into being is a 'textile ' and it is known as such.
It may be cotton textile, silk textile, woollen textile, rayon textile, nylon textile or any other hind of textile.
The method of weaving adopted may be the warp and woof pattern as is generally the case in most of the textiles, or it may be any other process or technique.
There is such phenomenal advance in science and technology, so wondrous i. the variety of fabrics manufactured from materials hithereto unknown or unthought of and so many are the new techniques invented for making fabric out of yarn that it would be most unwise to confine the weaving process to the warp and woof pattern.
Whatever be the mode of weaving employed, woven fabric would be 'textiles '.
What is necessary is no more than weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric.
Moreover a textile need not be of any particular size or strength or weight.
It may be in small pieces or in big rolls: it may be weak or strong, light or heavy, bleach or dyed, according to the requirement of the purchaser.
The use to which it may be put is also immaterial and does not bear on its character as a textile.
It may be used for making wearing apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for drying the body.
A textile may have diverse uses and it is not the use which determines its character as textile.
It is, therefore, no argument against the assessee that 'dryer felts ' are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit. 'That cannot militate against 'dryer felts ' falling within the category of 'textiles ', if otherwise they satisfy the description of 'textiles '.
550 Now, what.
are 'dryer felts ' ? They are of two kinds, cotton dryer felts and woollen dryer felts.
Both are made of yarn, cotton in one case and woollen in the other.
Some synthetic yarn is also used The process employed is that of weaving according to warp and woof pattern.
This is how the manufacturing process is described by the assessing authority in its order dated 12th November, 1971 "the raw material used by .
the company is cotton and woollen yarn which they themselves manufactured from raw cotton and wool and the finished products called 'felts ' are manufactured on power looms from cotton and woollen yarn." 'Dryer felts ' are, therefore, clearly woven fabrics and must be held to fall within the ordinary meaning of the word 'textiles '.
We do not think that the word 'textiles ' has any narrower meaning in common parlance other than the ordinary meaning given in the dictionary, namely, a woven fabric.
There may be wide ranging varieties of woven fabric and they may go on multiplying and proliferating with new developments in science and technology and inventions of new methods" materials and techniques, but nonetheless they would all be textiles.
The analogy of cases where the word 'vegetables ' was held not to include betel leaves or sugar cane is wholly inappropriate.
There, what was disapproved by the Court was resort to the botanical meaning of the word 'vegetables ' when that word had acquired a popular meaning which was different.
It was said by Holmes, J., in his inimitable style: "A word is not a crystal, transparent and unchanged; it is the skin of a living Thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.
" Where a word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the Legislature.
The reason is that as pointed out by Story, J., in 200 Chest.
(of Tea (supra), the Legislature does "not suppose our merchants to be naturalists, or geologists, or botanists".
But here the word 'textiles ' is not sought by the assessee to be given a scientific or technical meaning in preference to its popular meaning.
It has only one meaning.
namely, a woven fabric and that is the meaning which it bears in ordinary parlance.
It is true that out minds are conditioned by old and antiquated notions of what are textiles and, therefore, it may sound a little strange to regard 'dryer felts ' as 'textiles ': But it must be remembered that the concept or 'textiles ' is not a static concept.
It has, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as 'textiles '.
Take for example rayon and nylon fabrics 551 which have now become very popular for making wearing apparel.
When they first came to be made, they must have been intruders in the field of 'textiles ' because only cotton, silk and woollen fabrics were till then recognized as 'textiles '.
But today no one can dispute that rayon and nylon fabrics are textiles and can properly be described as such.
`We may take another example Which is nearer to the case before his.
It is common knowledge that certain kinds of hats are made out of felt and though felt is not ordinarily used for making wearing , apparel, can it be suggested that felt is not a 'textile ' ? The character of fabric or material as textile does not depend upon the use to which it may be put.
The uses of textiles in a fast developing economy are manifold and it is quite common now to find 'textiles ' being, used even for industrial purposes.
If were look at the , we find in Chapter 59 occurring in section Xl of the First Schedule that there is a reference to 'textile fabrics and textile articles, of a kind commonly used in machinery or plant ' and clause (4) of that Chapter provides that this expression shall be taken to apply inter alia to 'woven textile felts. of a kind commonly used in paper making or other machinery. . . ".
This reference in a statute which is intended to apply to imports made by the trading community clearly shows that 'dryer felts ' which are woven textile felts. of a kind commonly used in paper making machinery" are regarded ill common parlance, according to the sense of ordinary traders and merchants, textile fabrics.
We have, therefore, no doubt that 'dryer felts ' are 'textiles ' within the meaning of that expression in Item 3() of Schedule 'B '.
We accordingly allow the appeal, set aside the Judgment of the High Court and answer the question referred by the Tribunal in favour of the assessee and against the Revenue.
The State will pay to the assessee costs throughout.
S.R. Appeal allowed .

summary:
The 'any felts ' manufactured by the appellant assessee were held by the assessing authorities to be not 'textiles ' within the meaning of Item 30 of Schedule 'B ' the Punjab General Sales Tax Act, 1318 and thereafter, on appeal the Tribunal and on reference the High Court also confirmed this view.
Allowing the appeal by special leave, the Court ^ HELD: 1. 'Dryer felts ' are 'textiles ' within the meaning of that expression in Item 30 of Schedule 'B ' to the Punjab General Sales Tax Act, 1948.
[551 E] 2.
In a taxing statute words of every day use must be construed not in their scientific or technical sense but as understood in common parlance, meaning "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it." [548 A, F] Ramavatar Budhaiprasad vs Assistant Sales Tax officer, Akola, A.l.R. , M/s.
Motipur Jamindary Co. Ltd. vs State of Bihar, A.l.
R. , State of West Bengal vs Washi Ahmed. ; and Madhya Pradesh Pan Merchant 's Association, Santara Market, Nagpur vs State of Madhya Pradesh, 7 S.T.C. 99 at 102 referred(1 to E Gretfell vs IR.C. [1876)] I exhibit D. 242 at 248, Planters Nut and Choco Co. Ltd. vs The King, [1951] 1 DLH 385 and 200 Chests of 'Tea, (1824) 9 Wheaton (U.S.) 430 at 438; quoted with approval.
Where a word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention us clearly expressed by the Legislature.
The reason is that the Legislature does not suppose our merchants to be 'naturalists, or geologists, or botanists".
In the instant case the word 'textiles ' is not sought by the assessee to be given a scientific in preference to its popular meaning.
It has only one meaning namenamely a woven fabric and that is the meaning or technical meaning which it bears in ordinary parlance.
[550 E G].
The concept of 'textiles ' is not a static concept.
It has, having regard to newly developing materials, methods techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language be regarded as textiles [550 H] The word 'textiles ' is derived from Latin 'texere ' which means 'to weave ' and it means woven fabric.
When yarn, whether cotton, silk.
woollen rayon, nylon or of any other description or made out of any other material is woven into a fabric, what comes into being is a 'textile ' and is known as such.
Whatever be 546 the mode of weaving employed, woven fabric would be 'textile '.
What is necessary is no more than meaning of yarn and weaving would mean binding or putting together by some process so as to form a fabric.
A textile need not be of any particular size or strength or weight.
the use to which it may be put is also immaterial and does not bear on its character as a textile.
The fact that the 'dryer felts ' are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit, cannot militate against 'dryer felts ' falling within category of textiles, if otherwise they satisfy the description of textiles.
The refers to textile fabrics in this sense.
[549 C D, E F., G H] Ramavatar Budhaiprasad vs Assistant Sales lax officer Akola; , and M/s. Motipur Jamindary Co. Ltd. vs Stale of Bihar, ; , distinguished.


judgement:
Civil Appeal No. 1501 of 1978.
Appeal by Special Leave from the Judgment and Order dated 18 1 1978 of the Delhi High Court in Civil Misc.
Petition No. 1120 W of 1977 and 109/78 in Writ Petition No. 585/77.
Soli J. Sorabjee Addl.
General, Girish Chandra for the Appellant.
13 549 SCI/78 736 section T. Desai, B. P. Maheshwari and Suresh Sethi for Respondent No. 1.
A. K. Sen and Vineet Kumar for Respondent No. 2.
ORDER An ad interim order of stay passed by the High Court of Delhi has been challenged before us in this appeal.
We should have hesitated to interfere with an interlocutory order following the usual practice in this Court.
But, where repercussions are incalculable and the basis of the direction; though interlocutory, is obscure, the ends of justice dominate and we may interfere if public interest so dictates.
Here is an order of the Company Law Board under sec.
408(1) of the , which gives a wealth of facts and a variety of reasons to support an ultimate direction which runs thus: "Since all the three conditions referred to in sub section (1) of sec.
408 of the , are established on the facts and circumstances of the case, the Company Law Board hereby appoint officers for three years, in addition to the existing directors of the company: 1.
Shri B. M. Kaul, Member, Railway Board (Retd.) 5 J 4 Jawahar Nagar, Jaipur.
Shri A. K. Mazumdar, Chief Secretary, Orissa Govt.
(Retd.) 26/2, Dover Road, Apartment No. 4, Calcutta 19. 3.
Shri P. K. Choksi, Senior Partner, Price Water house Pest & Co., B 4, Gillander House, Calcutta 1. 4.
Shri section K. Mitra, President, Institute of Cost & Works Accounts of India, 14 A/6 Western Extension Area, Karol Bagh, New Delhi 5. 5.
Shri P. A. section Rao, Formerly President of the Institute of Company Secretaries of India, C 7/7, Vasant Vihar, New Delhi.
Shri M. C. Bhatt, Joint Secretary, Govt.
of India (Retd.) B 22, Defence Colony, New Delhi 24. 7.
Shri Triloki Nath Sharma, Business Executive, 247, Mohan Nagar, G. T. Road, Sahibabad, Ghaziabad (U.P.) 737 The Company Law Board direct further under sub section (6) of sec.
408 of the Act that Shri B. M. Kaul will act as Chairman of the Board of Directors of the Company.
In accordance with the order passed by the Delhi High Court on 24th August, 1977, referred to hereinbefore the implementation of this order will be subject to any order that may be passed by the Delhi High Court in the matter pending before it." This order, which inducted seven additional directors was based on the ground that the affairs of the company in question "are being conducted in a manner which is prejudicial to the interests of the company and to public interest." The High Court, after hearing counsel on both sides, passed a laconic order that: "We consider that the proper order to be made, in view of the circumstances of the case, is to stay the operation of the order of the Company Law Board, dated 17th December, 1977, except as regards Shri P. K. Choksi, Shri section K. Mitra and Shri P. A. Rao, and also to direct that the said three gentlemen will not vote at the meetings of the Board of Directors till the disposal of the writ petition.
We order accordingly.
" A company of considerable financial dimensions and involved in operations using public resources as investment, naturally becomes the concern not merely of the Company Law Board but also of the economic process of the country.
The specialised body with responsibility to watchdog corporate process, is the Company Law Board.
When it investigates and reaches a definite conclusion and makes a consequential direction, it is entitled to prima facie respect unless there are glaring circumstances to the contrary.
We do not wish to make any observations on the merits of the matter since the High Court is seized of the case.
It may well be that the order of the Board may be vitiated by infirmities, legal or other.
It may also be that the reasoning of the Board and the factual foundation for it is sound.
In such situations, acting at an interlocutory stage, the benefit of reasonable doubt belongs to the specialised body.
Of course, as stated earlier, if there are good grounds to strike down the order, certainly the High Court has jurisdiction to stay its operation.
However, we find nothing stated in the order itself indicating why the High Court prima facie thought it necessary substantially to stay the operation of the Company Law Board 's order of induction of seven persons as directors.
Nor have we any light regarding the total eclipse of four directors and the partial eclipse of the other three.
Unfortunately, the inscrutable face of a sphinx does not go well with the judicial process.
Whatever might have been 738 the basis of the High Court 's order we do not make any comments thereon we are inclined to nullify the interim stay.
Our inclination is explained by the prefatory observations we have earlier made in this order.
To expatiate more may prejudice one side or the other.
To indicate this much is obligatory to explicate ourselves.
There was some argument at the Bar about an order under sec.
18AA of the Industries (Development and Regulation) Act, 1951, and its impact upon the order impugned before us.
Maybe, by virtue of that appointment, the entire company comes under the control of the authorised person appointed under that provision.
It is not for us to explore here the effect and import of the order of the Central Government under section 18AA and we desist from doing so.
All that we need do and that we can do in the present appeal is to allow it so that the Company Board 's direction in regard to seven additional directors will come into full force until the final decision of the High Court.
We allow the appeal.
We may make it clear that the learned Additional Solicitor General did assure the court that nothing which will stultify the two writ petitions before the High Court will be done by the Company Law Board or the Central Government.
We hope the High Court will dispose of the case very expeditiously.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The Company Law Board by its order dt.
17th December, 1977 inducted several additional directors in addition to the existing directors of the respondent company, under section 408(1) of the , since it was of the opinion that the affairs of the company in question "are being conducted in a manner which is prejudicial to the interest of the company and to public interest".
But the Delhi High Court passed an ad interim stay of the said orders, while admitting the writ Petition.
Allowing the appeal by special leave, the Court ^ HELD: Where repercussions are incalculable and the basis of the direction, though interlocutory, is obscure, the ends of justice dominate and the Supreme Court may interfere, if public interest so dictates under article 136 of the Constitution.
[736B] (2) A company of considerable financial dimensions and involved in operations using public resources as investment naturally becomes the concern not merely of the Company Law Board but also all of the economic process of the country.
The specialised body with responsibility to watchdog corporate process is the Company Law Board.
When it investigates and reaches a definite conclusion and makes a consequential direction, it is entitled to prima facie respect unless there are glaring circumstances to the contrary.
It may well be that the order of the Board may be vitiated by infirmities, legal or other.
It may also be that the reasoning of the Board and the factual foundation for it is sound.
In such situations acting at an interlocutory stage, the benefit of reasonable doubt belongs to the specialised body.
If there are good grounds to strike down the order certainly the High Court has jurisdiction to stay its operation.
[737D G]


judgement:
Civil Appeal No. 927 of 1976.
Appeal by Special Leave from the Judgment and order dated 5 3 76 of the Kerala High Court in O.P. No 2469/74.
V. M. Tarkunde, Frank Anthony, R. Satish and E. C. Agrawala for the appellant.
K. T. Harindernath and K. R. Nambiar for Respondents 1 3.
A. section Nambiar, Mrs. Pushpa Nambiar and Miss M. Poduval for Respondent No. 4.
611 Frank Anthony, R. Satish, and E. C. Agarwala for the Intervener Fr. Powathil.
The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal by special leave from the judgment of the Kerala High Court dismissing the appellant 's writ application for quashing the order dated June S, 1973 of the Regional Deputy Director of Public Instruction, Trivandrum and the order dated May 2, 1974 of the District Education officer issued pursuant to the order aforesaid of the Regional Deputy Director.
The constitutional question involved in this appeal is about the vires of Rule 12(iii) of Chapter VI of the Kerala Education Rules, 1959, hereinafter called the Rules.
The question is whether the said rule is violative of Article 30(1) of the Constitution.
In the year 1947 Dr. A. G. Pereira, a retired Medical officer, opened a High School at Kaniyapuram mainly for the, benefit of the students of the Christian community.
The sanction of the then Government of Travancore for opening the School was accorded to him by letter dated 21st February, 1947, Ext.
Subsequently the School was transferred to the Trivandrum Roman Catholic Diocese.
For the last more than 25 years the School was administered by this Diocese.
The appellant is the corporate Manager of the Schools belonging to the Roman Catholic Diocese of Trivandrum.
It is not in dispute that as a matter of fact only boy students were admitted ill the School till the end of academic year 1971 72.
In the year following the management built a separate building in the School compound to provide accommodation for girl students.
The Manager applied to the Regional Deputy Director for permission to admit girl students in the School, although according to his case, it was strictly not necessary to do so in law.
By letter dated June 5, 1973 Ext.
P 2 the Regional Deputy Director refused to give sanction for admission of the girl students.
The main ground of refusal of the sanction contained in the said letter is that St. Vincent 's High School, Kaniyapuram the School in question, was not opened as a mixed School, that is to say, for imparting education both to boys and girls and that "the School had been running purely as a boys ' School for the last more than 25 years.
where is also facility for the education of the girls of the locality in the near girls ' School situated within a radius of one mile.
" As mentioned in the letter, the Manager of Muslim High School, Kaniyapuram, which was a girl 's School said lo be situated within a radius of one mile from the School in question seems to have objected to the grant of permission for admission of girl students in the St. Vincent 's High School.
The girls ' School was 612 established by the Muslims and was also a minority institution within the meaning of Article 30 of the Constitution.
The appellant filed a revision before the State Government from the order of the Regional Deputy Director and pending revision many girl students were admit ted in the School.
The District Education officer wrote the letter dated 2 5 1974, Ext.
P 4 to the authorities of the St. Vincent 's High School that since the admission of girl pupils had been prohibited by the Regional Deputy Director no girl should be admitted in the School.
The appellant, thereupon, challenged the orders of the educational authorities by filing a Writ Petition in the High Court.
In the judgment under appeal the High Court has said that.
although girls School has been defined in Rule 6 of Chapter II of the Rules, a boys ' School is not defined either in The Kerala Education Act, 1958, hereinafter to be referred to as the Act, or in the Rules, since only boys were, admitted in the School for a long time the self imposed restriction by the management made it a boy 's School.
The authorities of the School could be prevented from admitting the girls in the School under Rule 12(iii) of Chapter VI of the Rules, even though a separate building has been constructed for them in the same compound.
In the opinion of the High Court, to quote its language: "The basis of the rule seems to be that it will be better for the girls to get instruction in girls ' schools as far as possible; and if there is a girls ' school why the parents of the minority community should insist on admission of the girls in boys ' school is ununderstandable.
By the time the child reaches the secondary school stage it would have grown up a little.
At that age to keep them under proper guidance and discipline the rule is made that they should as far as possible be given education in girls ' Schools only.
This is only in the nature of a regulation for discipline and morality.
It does not interfere with the power of administration of an educational institution by a minority community.
" There is no dispute that the School was an existing School within the meaning of Section 2(3) of the Act.
Thus within the permissible limits without violating the protection given to a minority institution under Article 30 of the Constitution, the Act and the Rules came to govern this School also.
As already stated, there is no definition of a boys ' School either in the Act or the Rules.
But in Rule 6 of Chapter II it has been provided "Schools where ad 613 mission to some or all of the Standards is restricted to girls shall be known as Girls ' Schools.
" Rule 12 in Chapter VI reads as follows: "Admission of Boys into Girls ' Schools: (i) All Primary Schools (Lower and Upper) shall be deemed to be mixed Schools and admission thereto shall be open to boys and girls alike.
But under special circumstances the Director may exempt particular institutions from this rule so that admission thereto might be restricted to boys or girls and in the absence of such special circumstances the Director may withdraw such exemption.
(ii) Admission to Secondary Schools which are specifically recognised as Girls ' Schools shall be restricted to girls only, but the Director may issue a general permission to boys below the age of twelve to be admitted to classes not higher than Standard VII in particular Girls ' Schools provided there are no Boys ' Schools in the locality.
But such boys on completing the age of twelve shall not be allowed to continue in such schools beyond the school year in which they complete the age of twelve.
(iii) Girls may be admitted into Secondary Schools for boys in areas and in towns where there are no Girls ' Schools and in such cases adequate arrangements should be made for the necessary convenience.
The admissions will be subject to general permission of the Director in particular Boys ' Schools which will be specified by him.
" The language of clause (i) indicates that in all Primary Schools admission shall be open to boys and girls alike and such Schools shall be deemed to be mixed Schools.
But it is open to the Director to exempt a particular institution from this Rule meaning thereby that if the School authorities so want, they may run the school for the admission of the boys or the girls only.
Similarly clause (ii) of Rule 12 suggests that admission to Secondary Schools which are specifically recognised as Girls ' Schools shall be restricted to girls only, but with the permission of the Director boys below the age of twelve may be admitted.
The purport of impugned clause (iii), however, is to enable the Director to permit the admission of girls into Secondary Schools for boys in areas and towns where there are 614 no girls ' Schools.
In other words if there are other girls ' Schools permission may be refused for admission of the girls in a School which has been run for imparting education to boys only.
The ambit and content of Article 30 of the Constitution has been the subject matter of consideration and pronouncement by this Court in several decisions starting from In Re The Kerala Education Bill, 1957(1) and ending with 9 Judges ' Bench decision of this Court in The Ahmedabad St. Xaviers College Society & anr.
vs State of Gujarat & anr.(2) In State of Kerala, etc.
vs Very Rev. Mother Provincial, etc.
,(3) Hidayatullah, C.J., speaking for the Court has said at page 740: "There is, however, an exception to this and it is that the standards of education are not a part of management as such.
These standards concern the body politic and are dictated by considerations of the advancement of the country and its people.
Therefore, if universities establish syllabi for examinations they must be followed, subject however to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students.
Such regulations do not bear directly upon management as such although they may indirectly affect it.
Yet the right of the State to regulate education, educational standards and allied matters cannot be denied.
The minority institutions cannot be allowed to fall below the standards of excellence expected to educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern.
While the management must be left to them, they may be compelled to keep in step with others.
These propositions have been firmly established in the State of Bombay vs Bombay Education Society (1955) 1 S.C.R., 568; The State of Madras vs S.C. Dorairajan, ; ; In re the Kerala Education Bill 1957 (1959) S.C.R. 995; Sidharajbhai vs State of Gujarat (1963) 3 S.C.R. 837; Katra Education Society vs State of U.P. & Ors. (1966) 3 S.C.R., 328; Gujarat University, Ahmedabad vs Krishna Ranganath Mudholkar and ors. (1963) Suppl.
1 S.C.R. 112 and Rev. Father W. Proost & ors.
vs State of Bihar ; In the last case it was said that the (1) [1959] section C. R. 995 (2) ; (3) [!971] I section C. R. 734.
615 right need not be enlarged nor whittled down.
The Constitution speaks of administration and that must fairly be left to the minority institutions and no more.
" In the case of St. Xaviers College, Ahmedabad (supra) the majority decision, although by separate judgments, has converged to the view that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right.
This right is not free from regulation.
Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration of the School in the matter of maintaining discipline, health, morality and morality and so forth.
Even the two learned Judges differing from the majority on some of the aspects of the matter under consideration before this Court in St. Xaviers College case did not depart from this fundamental principle.
The difference was mainly in the application of the principle in relation to some of the provisions of the impugned Statute.
As summed up by Das C.J., in the Kerala Education Bill case (supra), the right to administer an educational institution of their choice by a minority cannot mean a right to maladminister.
Of course in the application of the salient principles mentioned above opinions have differed from case to case and may differ.
Let us examine the constitutionality of Rule 12(iii) contained in Chapter VI of the Rules and the validity of the impugned orders contained in Exts.
P 2 and P 4.
The dominant object of the said Rule does not seem to be for the sake of discipline or morality.
Any apprehension of deterioration in the moral standards of students if co education is permitted in Secondary Schools does not seem to be the main basis of this Rule, although it may be a secondary one.
The very fact that girls can be admitted into a boys school situated at a place where there are no girls ' school in the town or the area leads to this conclusion.
It is to be remembered that no category of a school as a boys ' school is specified in the Act or the Rules.
Nor was our attention drawn to any provision enabling the educational authorities to force the school authorities to admit girls in a school where they don 't want to admit them.
The self imposed restriction by the management in vogue for a number of years restricting the admission for boys only, per se, is wholly insufficient to cast a legal ban on them not to admit girls.
The ban provided in Rule 12(iii) as already adverted to is of a very limited character and for a limited purpose.
Permission was granted to Dr. Pereira for opening the school in 1947 616 as a High School.
No restriction in terms was imposed for not admitting any girl students.
If the successor school authorities wanted to depart from the self imposed restriction, they could only be prevented from doing so on valid, legal and reasonable grounds and not otherwise.
As is apparent from the impugned order dated 5 6 1973 of the Regional Deputy Director of Public Instruction as also from the passage of the High Court judgment which we have extracted above the permission sought for by the appellant for admission of girls in the St. Vincent 's School was refused not on the ground of any apprehended deterioration of morality or discipline but mainly; or perhaps, wholly in the interest of the existing Muslim girls ' school, respondent No. 4, in the locality.
The basis of the Rule, as remarked by the High Court, seems to be "that it will be better for the girls to get instructions in girls ' schools as far as possible.
" If that be so, then clearly the Rule violates the freedom guaranteed to the minority to administer the school of its choice.
But, as already stated, in our opinion this is not the dominant object of the rule.
The Christian community in the locality, for various reasons which are not necessary to be alluded to here, wanted the girls also to receive their education in this school and specially of their community.
They did not think it in their interest to send them to the Muslim girls ' school which is an educational institution run by the other minority community.
In that view of the matter the Rule in question in its wide amplitude sanctioning the withholding of permission for admission or girl students in the boy 's minority school is violative of Article 30.
If so widely interpreted it crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30.
The Rule, therefore, must be interpreted narrowly and is held to be inapplicable to a minority educational institution in a situation of the kind with which we are concerned in this case.
We do not think it necessary or advisable to strike down the Rule as a whole but do restrict its operation and make it inapplicable to a minority educational institution in a situation like the one which arose in this case.
It follows, therefore, that the impugned orders dated 5 6 1973 and 2 S 1974 passed by the Regional Deputy Director and the District Education officer respectively are bad and invalid and must be quashed.
In the result, we allow this appeal and set aside the judgment and order of the High Court and grant the relief to the appellant to the extent and in the manner indicated above.
In the circumstances, we make no order as to costs.
P.H.P. Appeal allowed .

summary:
The appellant opened a High School mainly for the benefit of the students of the Christian community in the year 1947.
The necessary sanction was accorded by the Govt.
Of Travancore.
Only boys were admitted in the school till the end of the academic year 1971 72.
In the subsequent year, the management constructed building in the school compound to provide accommodation for girl students.
The Manager applied to the Regional Deputy Director for permission to admit girl students in the school.
The regional Deputy Director refused to give sanction for admission of the girl students.
The main ground of refusal was that the school was not opened as a mixed school and that the school had been running purely as a boy 's school for 25 years.
Another reason given was that there was facility for the education of the girls of the locality in a near by girls school which was established by the Muslims and was also a minority institution.
An appeal filed before the educational authority failed.
Under rule 12(i) of Kerala Education Rules, 1954 all primary schools are deemed to be mixed schools and the admission thereto shall be open to boys and girls alike.
Under the special circumstances the Director may exempt particular institutions so that admission thereto might be restricted to boys or girls.
Rule 12(ii) provides that admission to schools which are specifically recognised as girls ' schools shall be restricted to girls.
However, the Director has power to empower boys below 12 years up to 7th standard to be admitted.
Rule 12(iii) provides that the girls may be admitted in schools for boys if in the town there are no girls ' schools.
The appellant filed a writ petition in the High Court challenging the order of the educational authorities.
The High Court came lo the conclusion that since only boys were admitted in the school for a Long time the self imposed restriction by the management made it a boys ' school and that the authorities have powers under rule 12(iii) to prevent the school from admitting the girls.
The High Court held that the basis of the rules was that as far as possible girls should be given education in girls ' schools only and that it was in the nature of regulation for discipline.
Allowing the appeal the Court, 610 ^ HELD: (1) The ambit and content of article 30 of the Constitution has been the subject matter of consideration and pronouncement by this Court in several decisions.
[614 A] In Re The Kerala Education Bill 1957, [1959] SCR 995; The Ahemdabad St. Xaviers College Society & Anr.
vs State of Gujarat & Anr. ; referred to.
The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right.
The right is not free from regulation.
Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration of the school in the matter of maintaining discipline, health, morality and so on and so forth.
[615 A C] (2) The dominant object of rule 12 is not for the sake of discipline or morality.
Any appreciation of the deterioration in the moral standard of Students, if co education is permitted in secondary schools, does not seem to be the main basis of the rule, although it may be a secondary one.
[615 E F] (3) The self imposed restriction by the management in vogue for a number of years restricting the administration for boys only is wholly insufficient to cast a legal ban on them not to admit girls.
While granting the permission for opening the school no restriction was imposed for not admitting any girl student.
If the successor school authorities wanted to depart from the self imposed restriction, they could only be presented from doing so on valid, legal and reasonable grounds and not other vise.
The permission in the present case was refused in the interest of the existing Muslim Girls ' School.
If the basis of the rule is that girls should get instructions in girls ' school then the rule violates the freedom guaranteed to the minorities to administer the school of its choice.
However, that is not the dominant object of the rule.
The Christian community in the locality wanted the girls to receive their education in their school.
If rule 12 widely interpreted has empowered the government to prohibit a minority school from admitting girl students for the benefit of another girls ' school, it crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under article 30.
The rule, therefore, must be interpreted narrowly and should be held not applicable to minority educational institution in a situation like the present one.
The Court.
therefore, quashed the order of the Educational authorities.
[615 G H, 616 A F]


judgement:
N: Criminal Appeal No. 3 of 1977.
Appeal by Special Leave from the Judgment and Order dated 29 9 75 of the Punjab and Haryana High Court in Criminal Misc.
Petition No. 1755 M of 1975.
R. L. Kohli and Mrs. Urmila Sirur for the Appellant.
Hardev Singh and R. section Sodhi for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against an order dated the 29th September, 1975 of the Punjab and Haryana High Court at Chandigarh directing prosecution of the appellant for an offence under section 193 of the Indian Penal Code and asking the Registrar of the Court to lodge a complaint in respect of the aforesaid offence in the court of competent jurisdiction.
The circumstances giving rise to this appeal are: On the basis of recovery of the dead body of a minor girl of fourteen or fifteen years of age named Kaushalaya Devi from the residential house of one Bhajan Lal aged 35 years, resident of Abohar (hereinafter referred to as 'the accused ') on the night between the 14th and 15th of March, 1973 when his wife and children were away, the accused was tried for the murder and rape of the said girl.
To start with, the police did not effect the arrest of the accused who from the evidence recorded in the case appeared to be a big landlord.
Later on, however, on the statement of the father of the deceased girl, a case was registered against the accused and he was taken into custody at 1.00 P.M. on the 15th March, 1973.
Dr. C. D. Ohri who conducted the post mortem examination of the dead body of Kaushalaya Devi, deceased opined on the basis of the observations made by him that the death of the deceased had occurred as a result of asphyxia due to constriction of the neck which was ante mortem and sufficient in the ordinary course of nature to cause death The doctor further opined that the deceased had been raped and the person committing the rape on her was bound to receive some scratches on glans penis.
Accordingly at about 5.50 P.M. on the 15th of March, 1973, the police produced the accused before Dr. P. K. Mittal, Medical Officer, Nehru Municipal Hospital, Abohar, and requested him to opine as to (1) the nature of injuries on the person 725 of the accused, (2) the accused 's potency to perform the sexual intercourse and (3) whether the accused had performed sexual intercourse during the last 24 48 hours.
As according to the Govt.
instructions in force at the relevant time, the medico legal cases were to be examined by two doctors Dr. P. K. Mittal examined the accused in the presence of Dr. Mrs. L. K. Grewal who was also attached to his hospital and found the following injuries on his person: "1.
Circular bruise 2 1/2 cm in diameter present on the back of right arm 3 cm lateral to the axillary fold and 14 cm below the top of right shoulder joint, the circle being of upper lower arches with healthy central area.
In each arch there are separate specs of reddish violet bruises suggestive of teeth marks.
in diameter rounded bluish red bruise which is comparatively much fainter, present laterally to bruise No. 1.
It is uniform in appearance all over.
" In the opinion of both the doctors, injury No. 1 was the result of teeth bite but as regards injury No. 2, the doctors expressed their inability to give any definite opinion.
On examination of the private parts of the accused the doctors found that he was potent and capable of performing sexual intercourse.
During the course of the said examination.
the doctors also observed the whole of the glans penis and corona of the accused covered with a thick layer of yellowish material which smelt like smegma.
They, therefore, advised a thorough chemical and microscopic examination of the yellowish material to find out if it was a layer of smegma or not to enable them to answer the third query made by the police and vide their letter No. 426 dated the 15th March, 1973 referred the accused to the appellant who was posted as Chief Medical Officer, Ferozepur.
In their aforesaid forwarding letter, the doctors stated that they had not at all disturbed the layer of sample and had tried to take no sample so that the Chief Medical Officer "would examine the case in its original condition and order the sample of smegma to be taken and sent for chemical examination if he felt like doing so.
" The police, was not however able to take the accused to Ferozepur before the morning of the 17th of March, 1973.
Even on that day, it was only at six in the evening that the police could contact the appellant as he was stated to be away on an official errand.
On the aforesaid docket and the connected papers being put up before him, the appellant wrote back to Dr. P. K. Mittal saying that no special opinion by him was necessary and that he (Dr. Mittal) might send without any further delay the scrapping of the yellowish material mentioned by him 726 from the genitals to the Chemical Examiner, Punjab for opinion.
The communication addressed by the appellant to Dr. P. K. Mittal ran as under: "From Dr. section P. Kohli, Chief Medical Officer, Ferozepur.
To Dr. P. K. Mittal PCMs II, Medical Officer Incharge, Nehru Memorial Hospital, Abohar.
No. NL/Special 1 Dated 17 3 73 Subject: Medical legal examination of Bhajan Lal accused in rape and murder case.
Reference your letter No. 426 dated 15 3 73 on the subject noted above.
Regarding point No. 3 no special opinion by the under signed is necessary.
You may send the scrapping of the yellowish material from the genitals mentioned by you to the Chemical Examiner, Punjab for opinion.
You have already been telephonically instructed through the S.H.O. Police Station Abohar City on 15 3 73 at 6.00 P.M. to do the needful.
Further delay in the case must be avoided.
Report per return after compliance of order.
The full case of the accused is returned herewith.
Sd/ section P. Kohli, Detail attached Chief Medical Officer, (3) three only.
Ferozepur.
Received copy Sd/ Seen at 6.00 P.M.
H.C. No. 1121 Sd/ section P. Kohli, dated 17 3 73 17 3 73.
" On receipt of the aforesaid communication from the appellant, Dr. Mittal carried out the instructions contained therein but not with out a certain amount of resentment as appears from the letter Exh.
CL1/3 which runs as follows: 727 "From The Incharge, Nehru Memorial Hospital, Abohar.
To The Chief Medical Officer, Ferozepur No. 6 Dated 18 3 73 Subject: Medical Examination of Bhajan Lal accused.
Dear Sir, Reference your No. ML SPL /1973 dated 17 3 1973.
The accused Shri Bhajan Lal was presented to me on 18 3 1973 at 9.50 AM and I have done the needful as per instructions given by you.
I had referred the case to your goodself for final opinion as the Lady Doctor refused to give any opinion on the plea that she was not familiar with the appearance and smell of smegma and as for Govt.
instructions where two Doctors are unable to agree on one point the case is to be referred to Chief Medical Officer of the Distt.
for final opinion.
Your goodself verified the same on phone from the Lady Doctor.
I did not remember any instructions for taking the smear through the SHO Police and neither your goodself remember the same on your visit to this Hospital on 16 3 1973 and 17 3 1973 in connection with the same case.
Today again Lady Doctor is on leave and I am alone in the Hospital but still I am doing the needful under your instructions and to avoid any delay on my part.
This is for your information please.
Sd/ P. K. Mittal, 18 3 1973." The Chemical Examiner, Punjab as well as the Professor of Pathology, Medical College, Patiala whose opinion was sought by Dr. P. K. Mittal expressed their inability to carry out any test for smegma as they had no arrangement for the same.
The Additional Sessions Judge, Ferozepur who tried the accused sentenced him to death under section 302 of the Indian Penal Code for the murder of Kaushalaya Devi subject to confirmation by the High Court and to imprisonment for life under section 376 of the Indian Penal Code for committing rape on her but acquitted the other four persons who stood their trial jointly with the accused.
The murder reference and the appeal preferred by the accused against his convictions and sentences were heard 728 by a Division Bench of the High Court.
During the arguments before the High Court, counsel appearing for the accused vehemently contended that the appellant had failed to examine the glans penis of the accused regarding the presence or otherwise of smegma and also if both the doctors failed to examine the glans penis of the accused with a view to find out whether there were any injuries thereon or not, the accused was entitled to the benefit of doubt.
On this argument being raised, the learned Judges constituting the Division Bench felt that it was necessary in the interest of justice to examine the appellant who was working as Civil Surgeon, Ferozepur as in their view, the presence or absence of smegma on the glans penis of the accused was quite vital from the view point of the defence as well as from that of the prosecution.
They, therefore, summoned the appellant as a court witness and recorded his statement.
At the conclusion of the examination of the appellant, the learned Judges constituting the Bench felt that the appellant had intentionally made a false statement with a view to shield his own guilt and to help the accused.
They accordingly ordered the prosecution of the appellant under section 193 of the Indian Penal Code as stated above.
Upon hearing counsel on both sides and examining the record as well as the law bearing on the question in issue, we are satisfied that the impugned order cannot be sustained.
The only three matters regarding which the High Court appears to have thought that the appellant made a false statement are as follows: "(1) that the accused was never referred to or produced before him; (2) that he did not pressurise Dr. Mrs. L. K. Grewal 'to make the endorsement "I agree" on the copy of the medico legal report Exhibit C.W.1/1 '; and (3) that Dr. P. K. Mittal did not tell him on telephone on the 15th March, 1973 that Dr. Mrs. L. K. Grewal had shown her inability to give her opinion regarding the presence of the smegma on the glans penis of the accused.
" We shall deal seriatim with each one of the aforesaid portions of the appellant 's statement which in the opinion of the High Court are the offending portions.
Matter No. 1: Though it cannot be gainsaid that the appellant was not quite accurate in stating before the High Court that the case of the accused was not referred to him, it cannot be said that he intentionally or deliberately made a false statement in that behalf with 729 a view to shield his own guilt or to help the accused as observed by the High Court.
The words used by the appellant in answer to the question put to him by the High Court taken as a whole make it manifest that what the appellant meant to convey was that the accused was never physically produced before him.
We are fortified in this view by the material on the record which unmistakably reveals that the police never caused the appearance of the accused before the appellant at Ferozepur.
In his affidavit dated the 27th August, 1975, Harjit Singh, Head Constable, has categorically stated that it was he who along with Milkhi Ram and Bahadur Singh, Constables, took the accused on the morning of the 17th March, 1973 from Abohar to Ferozepur as he had been referred to the appellant by Dr. P. K. Mittal.
He has further affirmed that on reaching Ferozepur at about 10.00 A.M., he learnt that the appellant was away on tour; that he waited for the appellant and it was on his return from tour that he met him in his office at 6.00 P.M. with the aforesaid letter of reference given to him by Dr. P. K. Mittal; that at the time of his meeting the appellant, the accused was in the custody of the aforesaid two constables in the compound and he did not take him inside the office of the appellant and the S.H.O. Darshan Singh was not with him at the aforesaid time of his interview with the appellant.
The statement of Harjit Singh, Head Constable is fully corroborated by the following entries in the Roznamcha of the Police Station, City Abohar: "20.
Harjit Singh Arrival/Depar 17 3 73 H.C. City Abohar ture accused H.C. himself C. Bahadur Singh 589, Milkhi Ram 378 from P.S. City Abohar proceeded at 7.30 A.M. for Medical Examination by C.M.O. Ferozepur of Sh.
Bhajan Lal accused u/s 302/376 IPC Case No. 49/73 under the super vision of Sh.
Milkhi Ram.
Darshan Sing SI Departure of 3At6 20 A.M. Pro section 17 3 1973 ceeded to Feroze pur with a Lorry Vr.
No. 126268 60 for enquiry by SDM Ferozepur.
Arrival Reported back 40 18 3 19 P.M. after enquiry done by SDM Ferozepur.
730 In face of this strong documentary evidence, it is difficult for us to agree with the High Court that the appellant had intentionally made a false statement.
Re: Matter No. 2: There is also no material worth the name to justify the observations made by the High Court that the appellant had pressurised Dr. Mrs. L. K. Grewal 'to add the words "I agree" in the copy of Medico legal Report Exhibit C.W. 1/1 after the issue of notice to him. ' There was, in our opinion, absolutely no reason for the appellant to feel apprehensive so as to impel him to pressurise Dr. Mrs. L. K. Grewal to make any addition in Exhibit C.W. 1/1 in face of the aforesaid communication No. 426 dated the 15th March, 1973 which was jointly addressed to the appellant by Dr. P. K. Mittal and Dr. Mrs. L. K. Grewal.
In the said letter, there is not the slightest indication of any disagreement or conflict of opinion between Dr. P. K. Mittal and Dr. Mrs. L. K. Grewal.
The fact that there was no disagreement between the two doctors is further borne out from the absence of the words "I agree" (purporting to have been added by Dr. Mrs. L. K. Grewal) in Exhibit C.W. 1/2 as also from the absence of the following words in Exhibits C.W. 1/2 and C.W.1/1 which are copies of Exhibit C.W. 1/5: "Since I have no experience of conducting the examination of males in rape cases, I am not familiar either with the appearance or the smell of smegma.
Therefore, I cannot give any opinion whether the layer present on the glans penis is smegma or not.
Sd/ L. K. Grewal 15 3 1973.
" In view of the foregoing, it is not understandable how the question of disagreement between Dr. P. K. Mittal and Dr. Mrs. L. K. Grewal or of refusal on the part of Dr. Mrs. L. K. Grewal to give any opinion about smegma cropped up subsequently when there was not the slightest whisper about it either in the aforesaid letter dated the 15th March, 1973 jointly addressed by the said two doctors to the appellant or in Exhibits C.W. 1/1 and C.W. 1/2.
It seems that the question of disagreement between the aforesaid two doctors and of refusal on the part of Dr. Mrs. L. K. Grewal to give opinion about smegma were purposely introduced subsequently by some one other than the appellant with some oblique motive.
The remark in the above quoted letter dated the 17th March, 1973 addressed by the appellant to Dr. P. K. Mittal that the examination of smegma was unnecessary was also not without significance.
It 731 is well known in the medical world that the examination of smegma loses all importance after 24 hours of the performance of the sexual intercourse.
The following passage occurring at page 341 in Modi 's Medical Jurisprudence and Toxicology is apposite in this connection: "Presence of Smegma as Negativing Rape. 1.
In July 1921, Mt. Ramdevi aged 15 years, made a report that three young men, viz. Panchu, Dabi and Jodha had committed rape on her.
They were arrested and sent immediately to Modi for examination.
None of them had any mark of injury on their genitals or anywhere else on their bodies.
The first two had smegma on the glans penis covered by the foreskin; this proved that they could not have had sexual intercourse at least during the last twenty four hours.
The girl was also examined and found to have been used to sexual intercourse, at inasmuch as her hymen had old lacerations.
She had no mark of injury to her private parts or to any other part of her body.
The men were released.
On the 23rd February 1923, a man complained at the police station that one Dhani had committed rape on his daughter.
He was immediately arrested and sent to Modi for medical examination.
He found a uniform layer of smegma covering the glands penis, gave an opinion that he could not have had sexual intercourse during the last twenty four hours.
The man was released.
" It seems that the attention of the learned judges of the High Court was not drawn to the above quoted passage for if it had been so, they would have been spared of trouble of dwelling on the matter relating to examination of smegma after two or three days of the occurrence.
Matter No. 3: The observations made and the conclusions arrived at by the High Court in regard to this matter are also not warranted by the material on the record.
As already shown, there was no question of inability on the part of Dr. Mrs.L.K. Grewal to give her opinion regarding the presence or absence of smegma on the glans penis of the accused on the 15th March, 1973 when the aforesaid letter of the even date was written by her to the appellant jointly with Dr. P. K. Mittal.
Accordingly there was hardly any occasion for Dr. P. K. Mittal to tell the appellant on telephone on the 15th March, 1973 that Dr. Mrs. L. K. Grewal had shown her inability to give her opinion regarding the presence of smegma on the glans penis 732 of the accused, or for the appellant to verify the matter from Dr. Mrs. L. K. Grewal on telephone as suggested by Dr. P. K. Mittal in his above quoted letter dated the 18th March, 1973.
As observed earlier, the so called refusal on the part of Dr. Mrs. L. K. Grewal has been introduced by some interested party with an ulterior motive.
The High Court was also in error in adopting a negative approach to the question which it was called upon to determine.
Instead of trying to find out whether there was no prima facie case justifying the issue of notice to the appellant, it adopted a negative approach and tried to find out whether there was no prima facie case against the appellant.
This would be clear from the following observations made by the High Court at page 40 of the Paper Book: "At this stage, from the material which has been referred to above, it is difficult to hold that there is no prima facie case for coming to the conclusion that Dr. Kohli pressurised Dr. Mrs. Grewal to make the endorsement "I agree" on the copy of the medico legal report Exhibit C.D. 1/1.
" It is true that what the courts have to see before issuing the process against the accused is whether there is evidence in support of the allegations made by the complainant to justify the initiation of proceedings against the accused and not whether the evidence is sufficient to warrant his conviction, but this does not mean that the courts should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of criminal law in motion against the accused.
The moment this guiding principle is overlooked, the prosecution degenerates itself into persecution which often is fraught with evil consequences.
The language in which the above quoted observations of the High Court about the exercise of pressure by the appellant on Dr. Mrs. L. K. Grewal are couched shows that the High Court was itself not prima facie satisfied about the validity of the action that it was taking.
All this apart, the impugned order cannot be sustained for another reason.
It is now well settled that prosecution for perjury should be sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely.
It is also well recognised that there must be a prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.
(See Chajoo Ram vs Radhey Shyam & Anr.
In the present case, as the examination of smegma lost all importance after the lapse of 24 hours 733 of the performance of the alleged sexual intercourse as shown above, the aforesaid statement of the appellant was, in our judgment, not on a matter of substance and the appellant does not appear to have made any false statement with a mala fide intention.
In the circumstances, we do not think that any useful purpose will be served by subjecting the appellant to a lengthy vexatious and expensive trial which is not likely to end in his conviction.
For the foregoing reasons, we allow the appeal and set aside the aforesaid order of the High Court.
Before parting with the case, we would like to make a few observations with regard to the show cause notice issued to the appellant.
The said notice runs as follows: "IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Court on its own motion Criminal Misc.
No. 1755 M of 1975 Court on its own motion .
Petitioner Versus Dr. section P. Kohli, Civil Surgeon, Ferozepur .
Respondent Proceedings to show cause notice taken up by the Court on its own motion, vide order dated 30 4 1975, passed by Hon 'ble Mr. Justice B. section Dhillon and Hon 'ble Mr. Justice R. N. Mittal in Criminal Appeal No. 911 of 1974/M. Ref.
No. 46 of 1974.
Notice to : Dr. section P. Kohli, Civil Surgeon, Ferozepur.
WHILE disposing Criminal Appeal No. 911/74 and M. Ref.
No. 46 of 1974, the above proceedings have been taken up by this Court on its own motion against you for making a false statement in this Court.
NOTICE is hereby given to you that the case will be laid before this Court on 4 7 1975 (Actual date).
You are hereby directed to take the necessary steps to show cause in person or through counsel as to why proceedings under section 193 I.P.C. shall not be initiated against you: GIVEN under my hand and the seal of the Court, this 16th day of May, 1975.
By order of the High Court, Sd/ Deputy Supdt.
Criminal.
" 734 The notice besides being not happily worded is laconic.
It does not satisfy the essential requirements of law.
Nor does it specify the offending portions in the appellant 's lengthy statement which in the opinion of the High Court were false.
In cases of this nature, it is highly desirable and indeed very necessary that the portions of the witness 's statement in regard to which he has, in the opinion of the Court, perjured himself, should be specifically set out in or form annexure to the notice issued to the accused so that he is in a position to furnish adequate and proper reply in regard thereto and be able to meet the charge S.R. Appeal allowed.

summary:
In connection with the offences under Sections 302 and 376, medical opinion was sought by the Police as to (1) the nature of injuries on the person of the accused.
(2) the accused potency to perform the sexual intercourse and (3) Whether the accused had performed sexual intercourse during the last 24 28 hours, from one Dr. P. K. Mittal, Medical Officer, Nehru Municipal Hospital Abohar.
As according to the Government instructions in force at the relevant time, medico legal cases were to be examined by two doctors, Dr. P. K. Mittal examined the accused in the presence of Dr. Mrs. L. K. Grewal attached to the same hospital.
On examination of the private parts of the accused, the doctors observed the whole of the glans penis and corona of the accused covered with a thick layer of yellowish material which smelt like stigma.
They therefore advised a thorough chemical and microscopic examination of the yellowish material to find out if it was a layer of smegma or not to enable them to answer third query of the police and referred to the accused to the appellant who was posted as Chief Medical Officer, Ferozepur.
The doctors in their forwarding letter stated that they had not at all disturbed the layer so that the appellant would examine the case in its original condition and order the sample of smegma to be taken and sent for chemical examination if he felt like doing so".
The accused could be taken to Ferozepur by the police only two days later.
On going through the letter, the appellant wrote back saying that no special opinion by him was necessary and that Dr. Mittal himself could take the scrapping of the yellowish material and send the same to the chemical examiner Punjab for opinion.
The chemical examiner Punjab, as well as the Professor of Pathology, Medical College, Patiala, whose opinion was sought expressed their inability to carry out any test for smegma as they had no arrangement for the same.
The accused was convicted and sentenced to death under section 302 I.P.C. subject to confirmation of the High Court and to imprisonment for life under section 376 I.P.C. The accused in his appeal claimed benefit of doubt contending that the appellant as well as the other two doctors failed to examine the glans penis of the accused with a view to find out whether there were any injuries thereon or not.
On this argument being raised, the learned Judges constituting the Division Bench felt that it was necessary in the interest of justice to examine the appellant as a court witness.
They, therefore summoned the appellant as a court witness and recorded his statement.
At the conclusion of the examination of the appellant, the learned Judges felt that the appellant had intentionally made a false statement with a view to shield his own guilt and to help the accused.
They accordingly ordered the prosecution of the appellant under section 193 I.P.C.
Allowing the appeal by special leave the Court.
723 ^ HELD: (1) What the courts have to see before issuing the process against the accused is whether there is evidence in support of the allegations made by the complainant to justify the initiation of proceedings against the accused and not whether the evidence is sufficient to warrant his conviction, but this does not mean that the Courts should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of criminal law in motion against the accused.
The moment, this guiding principle is overlooked, the prosecution degenerates itself into prosecution which often is fought with evil consequences.
In the instant case, the language in which the observations of the High Court about the exercise of pressure by the appellant on Dr. Mrs. L. K. Grewal are couched shows that the High Court was itself not prima facie satisfied about the validity of the action that it was taking.
[732D F] (2) Prosecution for perjury should be sanctioned by courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely.
There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.
[732G H] In the present case, as the examination of smegma lost all importance after the lapse of the performance of the alleged sexual intercourse, the appellant 's statement was not a matter of substance and the appellant does not appear to have made any false statement with a malafide intention.
In the circumstances, no useful purpose will be served by subjecting the appellant to a lengthy, vexatious and expensive trial which is not likely to end in his conviction.
[732H, 733A B] Chajoo Ram vs Radhey Shyam & Anr.
[1971] 1 SCC p. 744 referred to.
(3) In the instance case (a) the appellant had not intentionally made a false statement.
The words used by the appellant in answer to the question put to him by the High Court taken as whole make it manifest that what the appellant meant to convey was that the accused was never physically produced before him which fact is amply proved by the strong documentary evidence viz. the affidavit of Harjit Singh Head Constable dt.
27th August, 1975 corroborated by the entries in Roznamacha of the Police Station, city Abhor of dt.
17th March, 1973.
(b) The question of disagreement between that two doctors and of refusal on the part of Dr. Mrs. L. K. Grewal to give opinion about smegma were purposely introduced subsequently by someone other than the appellant with some oblique motive and (c) It is well known in the medical world that the examination of smegma loses all importance after 24 hours of the performance of the sexual intercourse.
Non invitation of this fact to the notice of the learned Judges of the High Court has led to the error, regarding the examination of smegma after two or three days after the occurrence.
[728H, 729A D, 730G, 731A, E F] Observation: The show cause notice besides being not happily worded is laconic.
It does not satisfy the essential requirements of law.
Nor does it specify the offending portions in the appellant 's lengthy statements which in the opinion of the High Court were false.
In cases of this nature, it is highly desirable and indeed very necessary that the portions of the witness 's statement in regard to which he has, in the opinion of the Court, perjured himself, should be speci 724 fically set out in or form annexure to the notice issued to the accused so that he is in a position to furnish an adequate and proper reply in regard thereto and able to meet the charge.
[734A B]


judgement:
ivil Appeal No. 1 770 of 1972.
Appeal by Special Leave from the Judgment and order dated 30th November, 1971 of the Orissa High Court in O.J.C. No. 48 of 1968.
P. K. Chatterjee and Rathin Dass for the Appellant.
section V. Gupte, Attorney General and G. section Chatterjee for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
The short question raised in this appeal by special leave is whether section 8(1) of the Orissa Agricultural Income Tax Act, 1947 suffers from the vice of discrimination and as such hit by article 14 of the Constitution ? The appellant is the Mahant of Emar Math at Puri, which is an ancient public Hindu Religious Trust.
The trust owns considerable endowed properties both agricultural and non agricultural.
After the passing of the Orissa Agricultural Income Tax Act, 1947 (hereinafter called 'the Act '), the appellant as a trustee has been assessed in the status of an 'individual ' under the Act for the assessment years 1948 49 to 1967 68 in respect of the income derived from agricultural lands owned by the trust.
It appears that these assessments have been made after granting the exemption under section 8(1) of the Act which provides that "any sum derived from land held under such trust and actually spent for the said purposes (charitable or 658 religious purposes) shall not be included in the total agricultural income of such assessee".
By a Writ Petition No. 48 of 1968, filed under articles 226 and 227 of the Constitution, the appellant challenged the constitutional validity of section 8(1) of the Act under which the assessments were made principally on the ground that section 8(1) was discriminatory and hit by article 14 of the Constitution inasmuch as under the said provision in respect of non Muslim public trusts created for religious or charitable purposes the exemption contemplated therein was confined to such agricultural income as was actually spent for the public purposes of charitable or religious nature while in the case of Muslim trusts (wakfs) the entire agricultural income, whether spent for charitable or religious purposes or not, was exempt from the operation of the Act under section 9 of the Act.
The contention was refuted on behalf of the respondents.
On an examination of the provisions of sections 8 and 9 in the context of the scheme of the Act the Orissa High Court negatived the said contention and dismissed the Writ Petition on November 30, 1971.
The appellant has come up in appeal to this Court.
Since counsel for the appellant raised the self same contention before us in support of the appeal it will be desirable to set out the provisions of sections 8 and 9 of the Act in order to appreciate his submissions on the point.
Section 8 runs thus: "8.
Exemption of charitable or religious trusts: (1) Where the assessee is a trustee and the trust under which he holds the property is a trust, created for public purposes of a charitable or religious nature, any sum derived from land held under such trust and actually spent for the said purposes, shall not be included in the total agricultural income of such assessee.
(2) In this section purposes of a charitable nature include relief of the poor, education, medical relief and advancement of any other object of general public utility.
" Section 9 runs thus: "9.
Exemption of Wakf alal aulad.
All agricultural income of Muslim trusts referred to in section 3 of the Musalman Wakf Validating Act, 1913, created before the commencement of this Act, shall be excluded from the operation of this Act: Provided that the share of a beneficiary under a trust under the aforesaid Act, commonly known as Wakf alal 659 aulad, shall not be exempted and the tax may be realised from the mutawali and the basis of taxation shall be the share of each beneficiary.
Explanation.
For the purposes of this section, a beneficiary means the settler, his family, children and descendants.
" Since section 9 refers to Muslim trusts 'referred to in section 3 of the Musalman Wakf Validating Act, 1913 ', it would be proper to set out the provisions of section 3 of the Musalman Wakf Validating Act, 1913.
Section 3 of that Act runs ac follows. "3.
Power of Mussalmans to create certain wakfs.
It , shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Musalman law, for the following among other purposes: (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated: Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character." Mr. Mukherjee for the appellant contended that the exemption contemplated by section 8(1) of the Act is confined only to such part of the income derived from agricultural lands held under a public charitable or religious trust as is actually spent for the charitable or religious purposes while under section 9 all agricultural income of Musalman trusts (wakfs) irrespective of whether the same is spent on public purposes of charitable or religious nature or not is exempt from the operation of the Act; in other words in the matter of granting exemption between the agricultural income of two types of public trust created for charitable or religious purposes, the Act has practised hostile discrimination against agricultural income of non Muslim public trusts, the classification having no reasonable nexus with the object sought to be achieved by the statute which is to tax agricultural income derived from lands and to exempt the income so derived 660 by a public charitable or religious trust.
According to him though section 9 refers to all agricultural income of Muslim trusts "referred to in section 3 of the Musalman Wakf Validating Act, 1913, (Act VI of 1913), the wakfs contemplated by section 3 of the said Act (Act VI of 1913) include not merely Wakf alal aulad but also other wakfs where property has been permanently dedicated for any purposes recognised by the Musalman Law as religious, pious or charitable and this, he argued, becomes clear from sub clause (a) of section 3 which speaks of wakf created by a Muslim for the maintenance and support wholly or partially of his family, children or descendants; in other words, according to Mr. Mukherjee, section 9 of the Act is not confined to Muslim trusts known as wakf alal aulad but is applicable to all wakfs and, therefore, in case of wakfs other than wakf alal aulad the exemption granted by section 9 of the Act which is in respect of all agricultural income must be regarded as discriminatory as against the exemption granted by section 8(1) of the Act.
He, therefore, urged that section 8(1) which grants a limited exemption would be violative of article 14 of the Constitution.
On the other hand, the learned Attorney General appearing for the respondents contended that section 9 is confined to Muslim trusts commonly known as wakf alal aulad and all other Muslim trusts are covered by section 8(1) of the Act with the result that to all such Muslim trusts, other than wakf alal aulad, the limited exemption is applicable.
He urged that wakfs alal aulad do stand in a class by themselves and as such have been dealt with by section 9 in keeping with the objective of the Act.
He further urged that sections 8(1), 9 and 16 showed the scheme of the Act and if these provisions were considered in light of the main objective of the enactment it was clear that section 8(1) could not be held to be discriminatory or violative of article 14.
Before considering the rival contentions touching the constitutional validity of section 8(1) of the Act it would be proper to keep in mind the main objective as well as the scheme of the Act, particularly in regard to the charging provision and the provisions dealing with exemptions contained therein.
The Act, as its preamble would indicate, has been put on the Statute Book with the object of imposing a tax on agricultural income derived from lands situated in the State of Orissa.
Section 2(a) defines the expression "agricultural income" comprehensively.
The charging provision is contained in section 3 which provides that agricultural income tax at the rate or rates specified in the Schedule shall be charged for each financial year in accordance with and subject to the provisions of this Act on the total agricultural income of the previous year of every person; the proviso, however, states that no agricultural income tax shall be 661 charged on the agricultural income of the Central Government or any A State Government or any local body.
Section 5 prescribes limits of taxable income while section 6 prescribes the method and manner of determining the agricultural income of every assessee.
Then come the two material provisions dealing with exemptions, namely, sections 8 and 9 which have been reproduced above.
The other material section which deals with exemption is section 16 which provides that agricultural income tax shall not be payable by an assessee in respect of any amount actually spent by him out of his total agricultural income for the benefit of the people of the State or for charitable purposes, but this exemption is subject to the proviso that agricultural income tax shall be payable on the remainder of the total agricultural income of such assessee at the rate which would have been applicable if such deduction had not been made.
It is unnecessary to refer to other provisions as they are not material for our purposes.
The scheme if the Act, as disclosed by the aforesaid provision, is that under the charging provision agricultural income tax is levied on the total agricultural income of the previous year of every assessee subject to the exemptions which have been provided for under sections 8, 9 and 16.
It is also clear that whereas the exemption in regard to the amount actually spent for charitable purposes under section 8(1) is in relation to the agricultural income of a public charitable trust, the exemption of similar nature and extent contemplated by section 16 is in regard to the agricultural income of any assessee who may not be a trustee owing lands under a public charitable trust; in other words, in either case the exemption is confined to such part of the agricultural income which is actually spent by the assessee for charitable purposes.
The legislative intent of granting such a limited exemption having been thus clearly brought out by sections 88(1) and 16 of the Act, the question would be whether by enacting section 9 the Legislature really intended to accord or has actually accorded favourable treatment to Muslim trusts in the matter of granting exemption in the manner suggested by counsel for the appellant ? Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus: Whether sections 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature ? In other words is section 8(1) which confers a limited exemption as compared to section 9 hit by article 14 ? It 662 has not been disputed before us that Muslim trusts known as Wakf alal aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon plea that section 9 of the Act covers all Musalman wakfs and not merely wakfs known as the Wakf alal aulad and, therefore, it will be necessary to examine the provisions of section 9 in order to ascertain whether the plea that it covers all Musalman wakfs is warranted or not.
Section 9 in terms says that the exemption thereunder is confined to Muslim trusts "referred to in section 3 of the Musalman Wakf Validating Act, 1913" and the question is what wakfs are referred in section 3 of the Musalman Wakf Validating Act, 1913 (hereinafter called 'the Validating Act ').
The Validating Act, as we shall indicate presently, was enacted only for the purpose of validating wakfs in the nature of wakf alal aulad: As has been pointed out by this Court in Fazlul Rabbi Pradhan vs State of West Bengal and others,(1) wakfs (which were primarily family settlements in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act.
The leading decision of the Privy Council in that behalf rendered in Abul Fata Mahomed Ishak and others vs Russomoy Dhur Chowdhery and others,(2) caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary Object of removing the difficulties created by that decision.
The preamble of the Act makes this very clear.
Section 3 declares the right of a person professing Musalman faith to create a wakf (which in all other respects is in accordance with the provisions of Musalman law) for the maintenance and support wholly or partially of his family, children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the life time or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Musalman law as a religious, pious or charitable purpose of a permanent character.
Section 4 also declares that no such wakf as is referred to in section 3 shall be deemed to be invalid merely because of remoteness of benefit to charity.
In fact, section 3 s declaratory of a right of a Muslim to (1) A. I. R. (2) 22 Indian Appeals 76.
663 create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made, such family settlement (private wakfs) would be invalid.
It is conceivable that a deed or instrument of wakf may be a composite one, partly incorporating public wakf and partly private wakf but section 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private n wakf wakf alal aulad, the vaildity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not.
It is thus clear that section 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf alal aulad.
The exemption in section 9 of the Act, therefore, clearly applies only to Muslim trusts which are in the nature of wakf alal aulad.
This is also clear from the marginal note to section 9 as well as the proviso to the section.
If that be so then all other wakfs would squarely fall under section 8(1) and to all such wakfs the limited exemption contemplated therein would apply.
Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under section 8(1) and the other part will be covered by section 9, for, the language d section 8(1) is wide enough to include such a deed to the extent that it incorporates a public wakf.
In other words, Muslim trusts i.e. wakfs other than wakf alal aulad would be covered by section (8) (1) and to such wakfs the limited exemption contemplated by section 8(1) would apply.
If that be so, the gravamen of complaint that all wakfs (Muslim trusts) other than wakf alal aulad are receiving favourable treatment as against non Muslim public charitable trusts must fall to the ground.
As regards Muslim trusts which are in the nature of wakf alal aulad which alone are covered by section 9, the proviso clearly shows that the share of the beneficiary under such a trust far from being exempted is brought to tax and the tax is made realisable from the mutawali and read with the proviso the main provision really confines the benefit or exemption only to ultimate illusory or remote public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act.
In the result, we are clearly of the view that section 8(1) of the Act is free from the vice of discrimination under article 14 of the Constitution and the said provision is perfectly valid and constitutional.
The appeal is.
therefore, dismissed with costs.
S.R. Appeal dismissed.

summary:
The appellant is the Mahant of Emhar Math of Puri which is an ancient Public Hindu Religious Trust.
Being a trustee, the appellant has been assessed in the status of an "individual" under the Orissa Agricultural Income Tax Act, 1947 for the assessment years 1948 49 to 1967 68 in respect of the income derived from agricultural lands owned by the trust.
These assessments were made after granting the exemption under section 8(1) of the Act which provides that "any sum derived from land held under such trust and actually spent for the said purpose (charitable or religious purposes) shall not be included in the total agricultural income of such assessee.
" The appellant challenged the constitutional validity of section 8 (1) of the Act under which the assessments were made principally on the ground that section 8(1) was discriminatory and hit by article 14 of the Constitution, in as much as under the said provision, in respect of non public muslim trusts created for religious or charitable purposes the exemption contemplated therein was con fined to such agricultural income or was actually spent for the public purposes of charitable or religious nature, while in the case of muslim trusts (Waqfs) the entire agricultural income whether spent for charitable or religious purpose or not, was exempt from the operation of the Act under section 9 of the Act.
The Orissa High Court, negatived the said contention on an examination of the provisions of Sections 8 and 9 in the context of the scheme of the Act and dismissed the Writ Petition.
Dismissing the appeal by special leave the Court.
^ HELD: ( 1 ) section 8 ( 1 ) of the Orissa Agricultural Income tax Act, 1 947 is free from the vice of discrimination under article 14 of the Constitution and the said provision is perfectly valid and constitutional.
[663 G Hl (2) The scheme of the Act is that under the charging provision agricultural income tax is levied on the total agricultural income of the previous year of every assessee subject to the exemption which have been provided for under Sections 8, 9 and 16.
[661 C D] The legislative intent of granting of limited exemption is brought out by Sections 8(1) and 16 of the Act.
Whereas exemption in regard to the amount actually spent for charitable purposes under section 8(1) is in relation to the agricultural income of a public charitable trust, the exemption of similar nature and extent contemplated by section 16 is in regard to the agricultural income of any assessee who may not be a trustee owning lands under a public charitable trust, in other words, in either case, the exemption is confined to such part of the agricultural income which is actually spent.
by the assessee f. charitable purposes.
[661 D E] 657 (3) Section 9 of the Act, in terms, says that the exemption thereunder is confined to Muslim Trusts "referred to in section 3 of the Musalman Waqf Validating Act, 1913".
section 3 of the Validating Act refers only to muslim trusts which are in the nature of Waqf alal aulad.
The exemption in section 9 of the Act, therefore clearly applies only to Muslim Trusts which are in the nature of Waqf alal aulad.
The marginal note to section 9 as well as the proviso to the section make this clear.
[662 B, 633 B C] If that be so, then all muslim trusts other than Waqf alal aulad squarely fall under section 8 ( I ) and to all such waqfs the limited exemption contemplated therein would apply.
If that be so, the gravamen of complaint that all waqfs (Muslim Trusts) other than waqf alal aulad are receiving favourable treatment as against non Muslim public charitable trusts must fall to the ground.
[663 C, E] As regards Muslim trusts which are in the nature of waqf alal aulad which alone are covered by section 9 the proviso clearly shows that the share of the beneficiary under such a trust far from being exempted is brought tb tax and the tax is made realisable from the mutawali and read with the proviso the main provision really confines the benefit of exemption only to ultimate illusory or remote public charitable or religious purpose an(l is thus completely consistent with the object and scheme of the Act.
[663 F G] Fazlul Rabbi Pradhan vs State of West Bengal & ors ; , applied.