judgement:
ivil Appeal Nos.
980 982 of 1971.
Appeals by Special Leave from the Judgment and Order dated the 9 2 70 of the Andhra Pradesh High Court in case Referred No. 1 of 1967.
R. Vasudev Pillai and P. K. Pillai for the Appellant.
R. M. Mehta and section P. Nayar, for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would disposed of three civil appeals Nos. 980 to 982 of 1971 which have been filed by special leave against the judgment of the Andhra Pradesh High Court on a reference under section 66 of the Indian Income tax Act, 1922 (hereinafter referred to as the Act) answering besides two other questions with which we are not concerned, the following question against the assessee appellant and in favour of the revenue: "Whether, on the facts and in the circumstances of the case, the sale proceeds were received from Government of India in British India?" The assessee company is a public limited company registered in what was at the relevant time the Nizam 's Dominion (hereinafter referred to as Hyderabad State) outside British India.
The matter relates to assessment years 1945 46, 1946 47 and 1947 48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 respectively.
The assessee company had a textile mill at Warangal in Hyderabad State.
During the Second World War the company supplied textile goods to the Department of Supplies.
Government of India under what was known as "Panel System".
The Government used to place bulk purchase orders with the company for the supply to goods according to specifications.
The delivery of the goods used to be made by the company FOR Warrangal.
After the goods were despatched, the assessee company submitted bill in form W.S.B. 116 giving details of the supply.
The prescribed form contained the following receipt: "Received Payment One anna Please pay by Cheque to Self stamp on ============== original Bankers copy only.
on Bank at. . .
Treasury Contractor 's Signature Contractor 's signature " The assessee used to enter the words "Hyderabad (Dn)" in the blank space after the word "at".
On the back of the bulk purchase order form, there were instructions that the payment was to be made by the Controller of Supply Accounts Bombay.
The Government of India issued general instructions to all textile mills in the Indian States that all payments were to be made "by cheque on Government Treasury in British India, or alternatively on a branch in British India, which 647 transacts Government business of the Reserve Bank of India".
All payments were made on behalf of the Government of India by cheques, which were sent to the assessee by post.
Some of these cheques were drawn on banks in British India and the others on banks in Hyderabad State.
All the cheques received from the Government, including those drawn on banks in British India, were collected through the assessee 's bankers in Hyderabad State.
In making the assessment the Income tax Officer held that the sale proceeds in respect of cheques, which had been drawn on banks in British India, were received by the assessee in British India and as such the assessee was liable to tax under the Act.
In respect of cheques drawn on the banks in Hyderabad State, the Income tax Officer held that no income had accrued in British India and was, therefore, not subject to assessment under the Act.
The assessee took the matter in appeal to the Assistant Commissioner claiming that no portion of the income had been received in British India.
The Appellate Assistant Commissioner held that the entire sale proceeds had been received in British India and he, therefore, passed an order enhancing the assessed amount.
On further appeal by the assessee the Income tax Appellate Tribunal upheld the order of the Assistant Commissioner.
At the request of the assessee the question reproduced above along with two other questions relating to the power of the Appellate Assistant Commissioner to enhance the amount of assessable income as also the question of limitation were referred to the High Court.
The High Court answered the question reproduced above as well as the other two questions with which we are not concerned, in favour of the revenue and against the assessee.
So far as the question reproduced above is concerned, the High Court took the view that the matter was concluded by the decision of this Court in the case of Indore Malwa United Mills Ltd. vs Commissioner of Income tax(1).
In appeal before us Mr. Vasudev Pillai on behalf of the appellant has assailed the judgment of the High Court and has contended that on the facts and circumstances of the case, the sale proceeds should be held to have been received by the assessee from the Government of India not in British India but in Hyderabad State.
There is, in our opinion, no force in this contention.
It would appear from the resume of facts given above that all payments were made on behalf of the Government of India by cheques and those cheques were sent by post from British India to the assessee.
The facts of the case and the course of dealings show that it was the understanding between the Government of India and the assessee company that the payment would be made on account of the goods supplied by the assessee by cheques.
The cheques were in the very nature of things to be sent from British India by post as that is usual and normal agency for transmission of such articles.
As the cheques were sent to the assessee company on behalf of the Government of India by post from British India in pursuance of an understanding between the parties, the payment to the assessee shall be treated to have 648 been made in British India.
The post office in such cases is taken to be an agent of the assessee company.
The position in law is that in the absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting of cheque would not operate as delivery of the cheque to the creditor.
Where, however, a cheque is sent by post in pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the purpose of receiving such payment.
The agreement or request need not, however, be express; it may also be implied to be spelt out from the facts and circumstances of the case.
The question of law arising in this case is not res integra and is concluded by three decisions of this Court.
In Commissioner of Income tax, Bombay South, Bombay vs Ogale Glass Works Ltd. the assessee, a non resident company carrying on business of manufacturing certain articles in the State of Aundh, secured some contract for the supply of goods to the Government of India.
The contract provided that "unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with instructions given in the acceptance of tender by cheque on a Government Treasury in India or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business.
" The assessee submitted the bill in the prescribed form and wrote on it as follows: "Kindly remit the amount by a cheque in our favour on any bank in Bombay.
" The assessee received cheques drawn on the Bombay branch of the Reserve Bank of India.
The assessee realised the amount of the cheques through the Aundh Bank.
It was held that the posting of cheques in Delhi in law amounted to payment in Delhi.
It was further observed that the circumstances of the case revealed an implied agreement under which cheques were accepted unconditionally as payment.
Even if the cheques, according to this Court, were taken conditionally the cheques having been not dishonoured, the payment related back to the dates of the receipt of the cheques and in law the dates of payment were the dates of the delivery of the cheques.
Income, profits and gains in respect of the sales made to the Government of India were accordingly held to have been received by the assessee in British India.
Dealing with the question of the understanding between the parties in that case, this Court observed: "According to the course of business usage in general to which, as part of the surrounding circumstances, attention has to be paid, under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal 's findings they were in fact received by the assessee by post." The above case been sought to be distinguished by Mr. Pillai on the ground that in that case the assessee had written on the bill form the 649 words: "kindly remit the amount by cheque in our favour on any bank in Bombay.
" It is said that the bill submitted by the appellant contained no such writing.
A similar argument was advanced on behalf of the assessee company in the case of Shri Jagdish Mills Ltd. vs Commissioner of Income tax(1) and it was held that the absence of such an express request would not make material difference if the course of dealings between the parties showed an implied request by the assessee company to send the cheques by post.
In Jagdish Mills ' case the assessee company was incorporated in Baroda State outside British India.
The company accepted orders for the supply of goods F.O.R. Baroda to the Government of India.
The manufacture and delivery of goods took place at Baroda.
The company after effecting delivery of the goods submitted bills in the prescribed form which contained the sentence that "Government should pay the amount due to the company by cheque.
" There was, however, nothing in the bills to show in what way the payment by cheque was to be made.
The company thereafter received at Baroda, in payment of its bills, cheques through post from the Government drawn on a Government Treasury or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business.
The company endorsed the cheques and sent them either to Bombay or Ahmedabad in its banking account at such places.
It was held that according to the course of business usage in general which was followed in the case, the parties must have intended that the cheques should be sent by post which was the usual and normal agency for transmission of such articles.
An implied request by the company to send the cheques by post from Delhi was accordingly inferred.
The post office was held to have become the agent of the assessee for the purpose of receiving those payments.
This Court consequently came to the conclusion that the amounts of cheques were received by the assessee in British India and as such were liable to be taxed under section 4(1) (a) of the Act.
The facts of the case of Indore Malwa United Mills Ltd. vs Commissioner of Income tax (supra) were similar to those of the present case.
In that case the assessee, a non resident, carried on the business of manufacturing textile goods at Indore, outside British India.
The assessee supplied textile goods to the Stores Department of the Government of India under orders placed by the latter with the assessee at Indore.
The delivery of the goods was F.O.R. Indore.
The bills contained the following instruction for payment: "Please pay by cheque to self on a bank at Indore.
" The Government of India drew cheques in favour of the assessee for the amounts of the bills on the Reserve Bank of India, Bombay and sent them by post to the assessee at Indore.
The assessee deposited the cheques in its account with the Imperial Bank of India, Indore and on clearance, the amounts were credited to that account.
Question which arose for decision was whether the assessee company was liable to pay tax in the taxable territories on the ground that the sale proceeds, which included the profit element therein, were received in the taxable territories.
It was held that if by an agreement, express or implied, between the creditor and the debtor or 650 by request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque, and to send the cheque to the creditor by post, the post office becomes the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him.
It was also held that there was an implied agreement between the parties that the Government of India would send the cheque by post to the assessee.
The sale proceeds which included the profit element therein were, in the opinion of this Court, received in British India where the cheques were posted, and the profits in respect of the sales were taxable under section 4(1) (a) of the Act.
Mr. Pillai has referred to the case of Commissioner of Income tax, Bihar & Orissa vs Patney & Co. This case cannot be of much help because in that case the assessee had expressly required the commission to be paid at Secunderabad outside British India.
It was because of this circumstance that this Court found that the rule laid down in Ogale Glass Works ' case (supra) did not apply and the money was not received by the assessee in British India.
So far as the present case is concerned it has already been pointed out above, that the circumstances of the case and the course of dealings between the parties show that there was an implied agreement or understanding between the parties that the money would be sent to the assessee by cheques posted from British India.
The High Court, in our opinion, rightly decided the question reproduced above against the assessee appellant and in favour of the revenue.
The appeals consequently fail and are dismissed but in the circumstances without costs.
V.P.S. Appeals dismissed.

summary:
The Government of India was placing bulk purchase orders with the assessee company, a textile mill, which had, during the assessment years 1945 46, 1946 47 and 1947 48, its registered office in the Hyderabad State outside British India.
After the despatch of the goods, the assessee was submitting its bill in the prescribed form which also contained the receipt.
The receipt had the words 'Please pay by cheque to self/Banker on Bank/Treasury at. . ' and the assessee used to enter the words 'Hyderabad (Dn).
in the blank space after 'at '.
But on the back of the bulk purchase order form, there were instructions that the payment was to be made by the Controller of Supply Accounts, Bombay, and the Government of India had also issued general instructions to all textile mills in the Princely States that all payments were to be made 'by cheque on Government Treasury in Br.
India, or alternatively on a branch in Br.
India, which transacts Government business of the Reserve Bank of India.
All payments were made on behalf of the Government of India by cheques which were sent to the assessee by post.
Some of the cheques were drawn on banks in Br.
India and others on banks in the Hyderabad State.
^ HELD: The sale proceeds should be held to have been received by the assessee from the Government of India in British India and not in Hyderabad State, and hence were subject to Indian income tax.
[647F G] In the absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting of the cheque would not operate as delivery of the cheque to the creditor.
Where, however, a cheque is sent by post in pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the purpose of receiving such payment.
Such an agreement or request need not be express and may be implied from the facts and circumstances.
[648A C] The facts of the case and the course of dealings show that it was the understanding between the Government of India and the assessee that the payment would be made on account of goods supplied by the assessee, by cheques.
The cheques were in the very nature of things to be sent from British India by post as that is the usual and normal agency for transmission.
As the cheques were sent to the assesseee on behalf of the Government of India by post from British India in pursuance of an understanding between the parties, the payment to the assessee shall be treated to have been made in British India to the agent of the assessee.
[647G 648A] Indo re Malwa United Mills Ltd. vs Commissioner of Income tax, ; Commissioner of Income tax, Bombay South, Bombay vs Ogale Glass Works Ltd. and Shri Jagdish Mills Ltd. vs Commissioner of Income tax, , followed.
Commissioner of Income tax, Bihar & Orissa vs Patney & Co. , distinguished.


judgement:
Civil Appeal No. 1436 of 1975.
Appeal by special leave from the Judgment and order dated 10 3 1975 of the Rajasthan High Court in D. B. Civil Writ Petition No. 384 of 1968.
Ahmed Bux, Beni Madhav Sharma, M/s. V.J. Francis & R.A. Gupta, Advocates for the appellants.
S.M. Jain & Sushil Kumar Jain, Advocates for respondent No. 1.
The Judgment of the Court was delivered by JASWANT SINGH,J.
This appeal by special leave is directed against the judgment dated March 10, 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No. 384 of 1968.
The facts leading to this appeal are: On July 1, 1961, Kishori Lal, the appellant herein, brought a suit in the court of the Assistant Collector, Baran, against Birdhi Lal, respondent No. 1, for possession of land comprised in khasra Nos. 513, 669 and 678 situate in village Balakhera of Anta Tehsil of Kota District under sections 180 and 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act).
By his judgment dated December 24, 1962, the 589 Assistant Collector dismissed the suit.
The appellant thereupon preferred an appeal to the Revenue Appellate Authority who allowed the same by his judgment dated November 9, 1963, and reversing the judgment of the Assistant Collector decreed the suit holding that Birdhi Lal was a trespasser.
Aggrieved by the judgment and decree of the Revenue Appellate Authority, Birdhi Lal took the matter in further appeal to the Board of Revenue, Rajasthan, but remained unsuccessful as the members of the Board affirmed the view taken by the Revenue Appellate Authority.
Dissatisfied with the decisions of the Revenue Appellate Authority and the Board of Revenue, Rajasthan, Birdhi Lal approached the High Court of Rajasthan by means of a petition under Article 226 of the Constitution.
The High Court by its aforesaid judgment and order dated March 10, 1975, allowed the petition and held that Birdhi Lal being a tenant within the meaning of section 5(43) of the Act and not a trespasser as conceived by section 5(44) of the Act, was not liable to be ejected from the land.
Dissatisfied with this judgment, Kishori Lal has come up this Court.
The learned counsel for the appellant has, while supporting the appeal, vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well established principles of law, the impugned judgment cannot be sustained.
Elaborating his submission, the learned counsel has submitted that since both the Revenue Appellate Authority and the Board of Revenue had concurrently held that Birdhi Lal was a trespasser and there was no error apparent on the face of the record, the High Court was not justified in interfering with the aforesaid decisions of the Revenue Appellate Authority and the Board of Revenue.
The contention advanced on behalf of the appellant is, in our opinion, wholly untenable.
The expression 'trespasser ' is defined in section 5(44) of the Act as follows: "5(44).
Trespasser shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him".
The above definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him.
In the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him.
The only point that we are, therefore, left to determine is whether Birdhi Lal took possession or retained possession of the land without authority.
The material on the record does not at all establish any of these elements.
On the other hand, as rightly pointed out by the High Court, the Parcha lagan, Exhibit A 3 and Pantinama, Exhibit A 4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent.
As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High 590 Court was perfectly right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue.
It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama (exhibit A 4), he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under section 180 of the Act.
Reference to section 180 of the Act shows that it applies only to suits for "ejectment of Khudkasht or Ghair Khatedar tenants or sub tenants".
Khudkasht is defined in section 5, sub section 23 as land "cultivated personally by an estate holder".
It also includes "land recorded as Khudkasht, sir, havala, niji jot, gharkhed in settlement records" at the commencement of the Act as well as "land allotted after such commencement as Khudkasht under any law".
Similarly, the components of rights to sub tenancy and gair khatedari tenancies are also determined by the provisions of the Act.
The High Court had recorded the finding, on this part of the case: "It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the Act as aforesaid, his claim was not upheld under section 180 so that the suit was decreed as one under section 183".
In other words, findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us.
It required necessary averments and proof of facts which were absent in the case.
It was, therefore, a completely hopeless plea which we cannot entertain at this stage.
For the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs.
M.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant brought a suit for possession of land against respondent Birdhi Lal, under Ss. 180 and 183 of the Rajasthan Tenancy Act, 1955.
The Assistant Collector, Baran, dismissed the suit, but the Revenue Appellate Authority allowed his appeal and held that Birdhi Lal was a trespasser.
A further appeal by Birdhi Lal was dismissed by the Board of Revenue, Rajasthan.
Thereafter, his application made under article 226 was allowed by the High Court.
The High Court held Birdhi Lal to be a tenant within the meaning of section 5(43), and not a trespasser as conceived by section 5(44).
On appeal by special leave, the appellants contended before this Court that the High Court was not justified in exercising appellate jurisdiction and interfering with the concurrent opinions of the Revenue authorities.
It was further contended that even if Birdhi Lal was held to be a tenant.
he was liable to be ejected, as the original suit had been framed alternatively under section 180 of the Act.
Dismissing the appeal, the court ^ HELD: (1) The material on record does not establish that Birdhi Lal took or retained possession of the land without authority.
The essential conditions for holding Birdhi Lal to be a trespasser under section 5(44) were manifestly not satisfied.
The High Court was right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue.
[589F H & 590A] (2) The alternative case under section 180 required necessary averments and proof of facts which were absent in the case.
The plea therefore, cannot be entertained.
[590 C D]


judgement:
Civil Appeal No. 1137 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 14 8 75 of the Punjab and Haryana High Court in C.W. No. 3995 of 1975.
J. Ramamurthi for the Appellants.
Janendra Lal and B. R. Agarwala for Respondents 2 and 3 The Judgment of the Court was delivered by KRISHNA IYER, J.
This appeal, by special leave, lends itself to a quick burial in view of the brief facts set out below.
The appellant has been an employee of the second respondent.
A notice was issued to him to show cause why disciplinary action should not be taken against him for certain items of misconduct imputed to him.
The then Secretary of the bank, Shri Daljit Singh, enquired into the allegations.
Thereafter, on April 1, 1975 the Secretary issued a notice to the appellant to show cause why his next increment should not be stopped by way of punishment; A reply was sent by the appellant by way of explanation and the Secretary accepting the explanation dropped the proceedings by order dated April 9, 1975 686 (Annexure III).
Thereafter, the Managing Director taking the view that Shri Daljit Singh, Secretary, had no power to inflict punishment on the employees of the bank and that therefore the proceedings culminating in the exoneration of the appellant were invalid issued a fresh memorandum which concluded thus: "After considering the said enquiry report along with other relevant documents, I am provisionally of the view to impose upon you a penalty of dismissal from bank services.
Before doing so, you are asked to show cause within 21 days from the receipt of this memorandum, why on account of findings of the said Enquiry Officer, into the charges, you should not be dismissed from the bank services.
In case no reply is received within the prescribed period, it will be presumed that you have no reply in this behalf and the proposed punishment will be imposed.
" The appellant was also suspended on the same date, viz., 7th July 1975.
Thereupon, a writ petition under articles 226/227 was moved by the appellant challenging the revival of the proceedings against him as illegal and opposed to natural justice.
The first point raised in objection by the second respondent is that the writ petition is premature since no action has been taken finally against the appellant, the disciplinary proceedings are still pending and the explanation of the appellant is under consideration.
It is only in the event of the appellant being punished that any grievance can arise for him to be agitated in the proper forum.
Other obstacles in the way of granting the appellant relief were also urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case premature.
No punitive action has yet been taken.
It is difficult to state, apart from speculation, what the outcome of the proceedings will be.
In case the appellant is punished, it is certainly open to him either to file an appeal as provided in the relevant rules or to take other action that he may be advised to resort to.
It is not for us, at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised or whether an appeal to the competent authority under the rules is the proper remedy, although these are issues which merit serious consideration.
We are satisfied that, enough unto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the 687 view we take that there is no present grievance of punitive action which can be ventilated in court.
After all, even the question of jurisdiction to re open what is claimed to be a closed enquiry will, and must, be considered by the Managing Director.
On this score, we dismiss the appeal but, in the circumstances, without costs.
Before parting with this case, we would like to make it clear that counsel for the co operative bank has not been able to show any power to suspend an employee pending an enquiry.
If that be so, the suspension of the appellant is plainly without the pale of law and he would be entitled to his salary during the period till final orders are passed.
Since the matter has been pending long enough, we are assured by counsel for the respondent that final orders may be passed within one month from to day.
M.R. Appeal dismissed.

summary:
Misconduct was imputed to the appellant by his employer, the second respondent.
The then Secretary of the bank enquired into the allegations and, after issuing a notice to the appellant for showing cause against punishment, accepted his explanation and dropped the proceedings.
Thereafter, the Managing Director of the Bank opined that the said Secretary was not empowered to punish a bank employee, and therefore, the proceedings culminating in the exoneration of the appellant were invalid.
The proceedings were revived, and the appellant was suspended.
His writ petition under articles 226 and 227 was dismissed by the High Court.
On appeal by special leave, the appellant challenged the revival of the proceedings against him, as illegal and opposed to natural justice.
Dismissing the appeal, the Court.
^ HELD: (1) There is no present grievance of punitive action which can be ventilated in court.
The writ petition is premature since no action has been taken finally, against the appellant.
[687A] (2) The co operative bank has not been able to show any power to suspend an employee pending an enquiry.
If that be so, the suspension of the appellant is plainly without the pale of law.
[687B]


judgement:
Civil Appeal No. 747 of 1975.
Appeal by Special Leave from the Judgment and order dated the 5 12 74 of the Punjab and Haryana High Court in Civil Writ Petition No. 6344/74.
M. K. Ramamurthi, J. Ramamurthi and Ramesh C. Pathak for the appellants.
681 J. L. Gupta, Janendra Lal and B. R. Agarwala for Respondents Nos. 5 to 22/75.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This Civil Appeal, by special leave under article 136, raises a common question of great moment, the decision of which may have a wider litigative fall out than may appear on the surface.
The first question expressed, manu brevi, is as to whether a writ may issue, under article 226, against a Society registered under the Punjab Cooperative Societies Act (Act XXV of 1961) setting aside a selection list at the instance of the aggrieved appellants who were not included therein.
The High Court (both the learned Single Judge and the Division Bench) following an earlier judgment of that Court in Dharam Pal vs State of Punjab held the writ petition to be incompetent, directed as it was against a Cooperative Society.
Shri M.K. Ramamurthy challenges the holding of the High Court on the score that the Punjab State Cooperative Land Mortgage Bank Ltd., (State Bank, for short) is 'other authority ' within the meaning of article 12 of the Constitution and, therefore, falls within the definition of State.
Consequently, a writ may issue against it.
Secondly, he contends that the State Bank is a public authority and, therefore, falls within the writ jurisdiction of the High Court.
His third plea is much wider in its sweep, for he urges that Cooperative Societies registered under the Cooperative Societies Act are subject to the jurisdiction of High Courts under article 226 of the Constitution, since this provision is widely worded and writs may be issued for any purpose against any person.
Foremost among his three points is the first one which he expressed with force, backed by decisions of this Court spanning a period ending with the recent decision in Sukhdev Singh vs Bhagatram.
According to his submission, the State Bank is more than a cere Cooperative Society, but has statutory powers and duties, exercises sovereign functions and must be assessed in its status with reference to the Punjab Land Mortgage Bank Act, 1957 (for short, the Mortgage Bank Act).
Chronologically we may mention that there was a Cooperative Societies Act, 1954 in the Punjab under which the present Society was registered, but that Act was repealed by the Punjab Cooperative Societies Act of 1961 (hereinafter referred to as the Cooperative Societies Act).
The present Society, though registered under the 1954 Act continues as a Society under the Cooperative Societies Act, 1961 and is a State Bank, as defined in section 2(h) of the Mortgage Bank Act.
A study of the two statutes, the trappings attaching to the Society, the other features of and powers vested in the Society, have all to be studied in their totality before testing the contention of the appellant in the light of the ruling of the Court.
Although great argument has been addressed in the special circumstances of the case, there is no need to investigate these questions apart from briefey adverting to them.
Maybe, in a different case, 682 where these issues directly and inescapably arise, this Court may have to pronounce on them, but where as here, the lis lends itself to disposal on a short point, to launch on a long debate about other arguments of importance may not be appropriate.
Of course, 'if you were to make little fishes talks, they would talk like whales ', as Dr. Johnson put it.
The whales of legal dispute do not challenge us here since the appellant is seeking relief which, on the face of it, cannot be granted for a different 'little fish ' reason.
A finger nail sketch of the facts is enough to bring out the crucial issues and the broad point on which we propose to dispose of this appeal.
The appellant is a permanent servant of the Punjab State Cooperative Land Mortgage Bank hereinafter referred as the Cooperative Bank) since 1964 and promoted in 1968 as an Assistant.
According to him, the Cooperative Bank is a statutory body established in pursuance of the Land Mortgage Bank Act, 1957, with power to frame subordinate legislation and thereby enjoying sovereign power.
Sections 11, 12, 15, 22 and 40 have been invoked to substantiate this thesis.
The purpose of this branch of the appellant 's submission is to make out that the Cooperative Bank is 'State ' within the meaning of article 12 of the Constitution and, therefore, subject to article 16 of the Constitution and the writ jurisdiction under article 226.
A further argument has been built on the edifice of the statutory provisions contained in the Punjab Cooperative Societies, Act, 1961.
Section 84A of this Act empowers apex societies under certain circumstances, to frame rules for their employees and such rules, it is contended, have been framed, having the force of law.
The Cooperative Bank is therefore a public authority which, in any view, is vulnerable to the writ of the High Court under its extra ordinary constitutional power.
Of course, Shri M. K. Ramamurthy has contended that even apart from all these considerations, any cooperative society, in view of its constitution under statutory provisions, may be amenable to the writ jurisdiction of the High Court.
His specific grievance in the present case is that promotions to three categories of higher posts, viz., Assistant Inspecting Officers, Junior Accountants and Accountants were made by direct recruitment contrary to what he contends are service rules but, in substance, are the result of collective bargaining with the management, as the writ petition itself reveals.
These triple categories of new posts have been filled, admittedly, without reference to the quota set apart for promotees, the defence of the respondent being that these new cadres are not covered by the agreement referred to in the writ petition.
The High Court was approached when a real apprehension of direct recruitment arose, praying for a writ, order or direction in the nature of mandamus requiring the respondent not to proceed with the processes resulting in filling up the posts of Accountants, Junior Accountants and Assistant Inspecting Officers in violation of the quota of 75% claimed by the appellant, under the agreement alleged to be binding on the Cooperative Bank and the employees.
Of Course, the recruitment went on and the new appointees are also arrayed as respondents in the writ petition.
However, the High Court dismissed 683 the writ petition on the preliminary ground that the writ was, in fact, directed against a Cooperative Bank registered under the Cooperative Societies Act and no writ would lie against such a body in the circumstances set out in the writ petition.
Indeed, the distinction between a body with a personality created by and owing its existence solely to a statute and an entity which is recognised by and is registered under a statute is real, dramatic and makes for a world of difference in jural impact.
Considerable argument was addressed before us based on the rulings reported as Mohanlal; Tewary, Sukhdev; and Praga Tools, apart from the ruling of this Court in Lakshmi Narain.
The question as to whether a Cooperative Society is a public authority has fallen for judicial notice and Amir Jamia contains an elaborate discussion of the controversal topic covering decisions, English and Indian.
It is also true that at least Madhya Pradesh (Dukhooram 1961 vs M. P. 269) and Calcutta (Madan Mohan have considered whether a writ will issue against a Cooperative Society, simpliciter, Kumkum Khanna deals with a private college governed by a University Ordinance.
Many other rulings have also been brought to our notice, but we do not think it necessary elaborately to investigate these issues notwithstanding the fact that Shri Gupta, appearing for the contesting respondent, challenged each one of the grounds stabilising his submissions on rulings of the Court, of the High Courts and the English Courts.
The reason why we are not inclined to add to the enormous erudition on the point already accumulated in case law is that a close perusal of the writ petition will disclose that essentially the appellant is seeking merely to enforce an agreement entered into between the employees and the Cooperative Bank.
There is no doubt that some of the legal problems argued by Sri Ramamurthy deserve in an appropriate case jurisprudential study in depth, although much of it is covered by authority.
But assuming, for argument 's sake, that what he urges has validity, the present case meets with its instant funeral from one fatal circumstance.
The writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the staff and the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all embracing promise to give a quota to the existing employees.
At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellant is that the remedy of article 226 is unavailable to enforce a contract qua contract.
We fail to see how a supplier of chalk to a government school or cheese to a government hospital can ask for a constitutional remedy under article 226 in the event of a breach of a contract, bypassing the normal channels 684 of civil litigation.
We are not convinced that a mere contract agreeing to a quota of promotions can be exalted into a service rule or statutory duty.
What is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority.
Private law may involve a State, a statutory body, or a public body in contractual or tortious actions.
But they cannot be siphoned off into the writ jurisdiction.
The controversy before us in substance will turn on the construction and scope of the agreement when the claim to a quota as founded cannot be decided in writ jurisdiction without going back on well settled guidelines and even subverting the normal processual law except perhaps in extreme cases which shock the conscience of the Court or other extra ordinary situation, an aspect we are not called upon to explore here.
We are aware of the wide amplitude of article 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course, without even statutory complexion, can be enforced by this short, though, wrong cut.
On this short ground the appeal must fail and be dismissed.
We do so, but without costs.
P.H.P. Appeal dismissed.

summary:
The appellants are permanent servants of the Punjab State Co operative Land Mortgage Bank and were working as Assistants since the year 1968.
The grievance of the appellants is that the contesting respondents were directly recruited to the higher post of Inspecting officers, Junior Accountants and Accountants in violation of Service Rules.
What the appellants call Service Rules is nothing but a contract arrived at as a result of the collective bargaining with the management.
The writ petition filed by the appellants was dismissed by the learned single Judge as well as the Division Bench of High Court on the ground that no writ petition was maintainable against a Cooperative Society under Article 226 of the Constitution.
On appeal by special leave the appellants contended: (1) The co operative Bank in question is "other authority" within the meaning of Article 12 of the Constitution and, therefore, falls with in the definition of State.
(2) The Co operative Bank is a public authority.
(3) Co operative Societies registered under the Co operative Societies Act are subject to the jurisdiction of High Courts under Article 226 of the Constitution, since this provision is widely worded writs may be issued for any purpose against any person.
Respondents contended: (1) that the Co operative Bank is not other authority or a public authority and no writ can lie against it.
(2) The appellants are trying to enforce the contractual obligation for which no writ can lie.
Dismissing the appeal, ^ HELD: (1) The Court did not decide the question whether a Co operative Society is other authority or public authority because it is clear from a close perusal of the writ petition that essentially the appellants are seeking merely to ensure an agreement entered into between the employees and the Co operative Bank.
At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellant is that the remedy of article 226 is unavailable to enforce a contract qua contract.
We are aware of the wide amplitude of Article 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course without even statutory complexion can be enforced under Article 226.
[683F H, 684 D]


judgement:
N: Criminal Appeal No. 234 of 1971.
From the Judgment and order dated the 26 3 71 of the Bombay High Court at Bombay in Criminal Appeal No. 1434 of 1970.
K. R. Chaudhury and K. Rajendra Chaudhury for the Appellant.
H. R. Khanna and M. N. Shroff for Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
Veera Ibrahim, appellant was accused No. 2 in the complaint filed by Assistant Collector of Customs, Preventive Department, Bombay before the Chief Presidency Magistrate for his prosecution along with one Abdul Umrao Rauf, accused No. 1, in respect of offences under sections 135(a) and 135(b) of the and section S of the Imports and Exports (Control) Act 1947.
The trial Magistrate convicted both the accused on all the three charges and sentenced them to two years rigorous imprisonment on each count with a direction that the sentences would run concurrently.
Against that judgment, two separate appeals were filed by the convicts in the Bombay High Court which acquitted both the accused of the offences under section 5 of the Imports and Exports (Control) Act, 1947 and under section 135(b) of the , but maintained their conviction on the charge under section 135(a) of that Act reducing the sentence to one years rigorous imprisonment, The High Court, however, granted a certificate under Article 134(1) (c) of the Constitution, on the basis of which, this appeal has been filed.
The main question with reference to which the certificate was granted by the High Court, was: whether section 108 of the is ultra vires the provisions of cl.
(3) of Article 20 of the Constitution ? But Mr. Chaudhry, appearing for the appellant, does not press this question now before us.
The first contention canvassed by the Counsel is that on the facts and circumstances of the case, the appellant 's statement recorded under section 108 of the , on the foot of which the appellant has been convicted, was hit by clause (3) of Article 20 because at the time of making that statement, the appellant was "accused of any offence" under section 124 of the Bombay Police Act, and the statement was obtained under compulsion of law.
Stress has been placed on the fact that the appellant was, in fact, arrested by the police on a charge under section 124 of the Bombay Police Act and the goods were seized under a Panchnama, prepared by them in the course of investigation.
In this connection, reference has been made to 674 M. P. Sharma and Ors.
vs Satish Chandra, District Magistrate, Delhi and Ors.(1) On the other hand, Mr. H. R. Khanna, appearing for the respondent submits that the words "accused of any offence" occurring in article 20(3) take in only that person against whom a formal accusation of an offence has been levelled.
Two other conditions for the applicability of this Clause, according to the Counsel, are: (a) that the testimony in question had been obtained under compulsion, and (b) it relates to the offence of which he stands formally accused.
These conditions, it is maintained, were not fulfilled in the present case.
Clause (3) of Article 20 provides: "No person accused of any offence shall be compelled to be a witness against himself".
From an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was "accused of any offence" secondly, that he made this statement under compulsion.
The phrase "accused of any offence" has been the subject of several decisions of this Court so that by now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit.
In R. C. Mehta vs State of West Bengal, this point came up for consideration in the context of a statement recorded by an officer of Customs in an enquiry under section 171 A of the Sea .
One of the contentions raised was, that a person against whom such an enquiry is made is a `person accused of an offence ', and on that account, he cannot be compelled to be a witness against himself and the statement obtained or evidence collected under the aforesaid provision by the officer of Customs is inadmissible.
This contention was repelled.
Shah J., speaking for the Court, made these apposite observations: "Under section 171 A of the Sea , a Customs officer has power in an enquiry in connection with the smuggling of goods to summon any person whose attendance he considers necessary, to give evidence or to produce a document or any other thing, and by cl.
(3) the person so summoned is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents and other things as may be required.
The expression "any person" includes a person who is suspected or believed to be concerned in the smuggling of goods.
But a person arrested by a Customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs officer to make a statement or to produce a document or thing, a person accused of an 675 offence within the meaning of article 20(3) of the Constitution.
The steps taken by the Customs officer are for the purpose of holding an enquiry under the Sea and for adjudging confiscation of goods dutiable or prohibited and imposing penalties.
The Customs officer does not at that stage accuse the person suspected of infringing the provisions of the Sea with the commission of any offence.
His primary duty is to prevent smuggling and to recover duties of customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea he is not accusing the person of any offence punishable at a trial before a magistrate".
After a survey of case law, the Court pointed out the circumstances, the existence of which is ordinarily necessary to clothe a person with the character of a "person accused of an offence": "Normally a person stands in the character of an accused when a First Information Report is lodged.
against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial the offence.
Where a Customs officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do under article 221) of the Constitution for the purpose of holding an enquiry into the infringement of the provisions of the Sea which he has reason to believe has taken place, there is no formal accusation of an offence.
In the case of an offence by infringement of the Sea and punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate".
The above quoted observations are a complete answer to the contention of the appellant.
In the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs officer under section 108, the appellant was not a person "accused of any offence" under the .
An accusation which would stamp him with the character of such a person was, levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under section 135(a) and section 135(b) of the .
True, that the appellant was arrested by the police on December 12, 1967 on suspicion of having committed an offence under section 124, of the Bombay Police Act and a Panchnama of the packages in the truck was also prepared.
But the factual ingredients of that offence are materially different from those of an offence under the .
This will be apparent from a bare reading of section 124 of the Bombay Police Act, which provides : "Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is 676 reason to believe is stolen property or property fraudulently obtained shall, if he fails to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term (which may extend to one year but shall not, except for reasons to be recorded in writing, be less taken one month and shall also be liable to the fine which may extend to five hundred rupees).
Even in respect of that offence, the police did not register any case or enter any F.I.R. which normally furnishes a foundation for commencing a police investigation.
The police did not open the packages or prepare inventories of the goods packed therein.
Indeed, the police appear to have dropped further proceedings.
They did not take any steps for prosecuting the appellant even for an offence under the Bombay Police Act, 1951.
They informed the customs authorities, who opened the packages, inspected the goods and on finding them contraband goods, seized them under a Panchnama.
The Customs authorities called the appellant and his companion to the Customs House, took them into custody, and after due compliance with the requirements of law, the Inspector of Customs questioned the appellant and recorded his statement under section 108 of the .
Under the circumstances it was manifest that at the time when the Custom officer recorded the statement of the appellant, the latter was not formally "accused of any offence.
" The High Court was therefore right in holding that the statement recorded by the Inspector of Customs was not hit by Article 20(3) of the Constitution.
The next question to be considered is, whether this statement was hit by section 24 of the Evidence Act.
The contention is that this statement was obtained under compulsion of law inasmuch as he was required to state the truth under threat of prosecution for perjury.
For reasons that follow, we are unable to sustain this contention.
To attract the prohibition enacted in section 24, Evidence Act, these facts must be established: (i) that the statement in question is a confession; (ii) that such confession has been made by an accused person; (iii)that it has been made to a person in authority; (iv) that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority; (v) such inducement, threat or promise, must have reference to the charge against the accused person; (vi) the inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person grounds, which would appear to him reasonable, for 677 supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
In the present case, facts (i), (iv) and (vi) have not been established.
Firstly, the statement in question is not a "confession ' within the contemplation of section 24.
It is now well settled that a statement in order to amount to a "confession" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
An admission of an incriminating fact, howsoever grave, is not by itself a confession.
A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a confession (see Pakala Narayana vs R.; Plavinder Kaur vs State of Punjab; Om Prakash vs State.
A perusal of the statement exhibit I made by the appellant before the Inspector of Customs would show that it contained exculpatory matter.
Therein, the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods, and alleged that the goods were not loaded under his instructions.
The deponent claimed to be an innocent traveller in the truck when he said: "I did not ask Mullaji (driver) what goods were being loaded in his lorry.
Mullaji was only my friend and I was not aware of any of his mala fide activities".
Moreover, the incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute any offence.
To bring home an offence under section 135 of the , in addition to the facts admitted in exhibit I, it had to be established further that these goods were contraband goods.
For these reasons, it could be said beyond doubt, that the statement exhibit 1 was not a "confession" within the meaning of section 24, Evidence Act.
Secondly, it has not been shown that the Customs officer though a person in authority had offered any inducement or held out any threat or promise to the appellant.
Christopher Soares, the Inspector of (Customs (P. W. 4) testified that no threats, coercion or inducements were used and that the statement exhibit 1 was made by the appellant, voluntarily.
While it may be conceded that a person summoned by an officer of Customs to make a statement under section 108 of the , is under compulsion of law to state the truth, the compulsion there under, assuming it amounts to a threat, does not proceed "from a person in authority" within the contemplation of section 24, but emanates from law.
Thirdly, the mere fact that the Inspector of Customs had, before recording the statement, warned the deponent of the possibility of his 678 prosecution for perjury in case he did not make the statement truthfully, cannot be construed as a threat held out by the officer which could have reasonably caused the person making the statement to suppose that he would by making that statement, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him for smuggling.
In view of what has been said above, we have no hesitation in holding that the statement exhibit 1, was not barred under section 24, Evidence Act.
The statement exhibit P 1 was clearly admissible under section 21, Evidence Act as an admission of incriminating facts.
Lastly, Mr. Chaudhry tried to contend that the incriminating facts admitted in exhibit 1 taken along with the other facts appearing in the evidence of prosecution witnesses, were insufficient to establish an offence under section 135, against the appellant because no notification under sub section
(2) of section 123, of the had been issued in respect of the import of the goods of the kind seized, and the aid of the statutory presumption under that section was not available to the prosecution.
We are unable to accept this contention.
While it is true that in the absence of the requisite notification, the statutory presumption under section 123 could not be invoked by the prosecution, the circumstances established unerringly raise an inference with regard to all the factual ingredients of an offence under section 135(b) read with section 135(ii) of the .
In exhibit 1 which was proved by P.W. 4, it is admitted that these packages which were later found to contain contraband goods by the Customs authorities, were surreptitiously loaded in the truck under cover of darkness at Reti Bunder (sea shore) from the side of sea side wall, in the presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck, and drove towards Sandhurst Station.
It is further admitted that some Bania paid Rs. 2,000/ to the appellant which was meant to be given to the driver of the truck.
Unfortunately, the truck skidded near the Dongri Police Station and came to a stop.
On hearing the impact of the accident, the police came out, took both the accused into the Police Station and seized the truck and the goods.
In short, the.
appellant had clearly admitted that these packages containing the contraband goods were imported surreptitiously from Reti Bunder under cover of darkness.
It was further established de hors the statement of the appellant, that these packages, on opening by the Customs officer, were found to contain contraband goods of foreign make.
They were brand new articles packed.
The circumstances of the arrest of the appellant while escaping 679 from the truck, the seizure of the truck and the goods, the contraband nature of the goods, the fact that at the time of the seizure, the goods, were in the charge of the appellant, the fact that no duty on these goods had been paid, the seizure of Rs. 2,000/ as cash from the appellant etc. were proved by evidence aliunde rendered by P. Ws. 1 and 2.
To some extent, the hostile witness, P.W. 5, also, supported the prosecution.
The circumstances established unmistakably and irresistibly pointed to the conclusion that the appellant was knowingly concerned in a fraudulent attempt at evasion, if not, fraudulent evasion, of duty chargeable on those contraband goods.
In the result, the appeal fails and is dismissed.
M.R. Appeal dismissed.

summary:
A truck was seized with its content of contraband goods for foreign make, on which no duty had been paid.
The appellant who was in charge of the goods, was arrested while escaping from the truck and Rs. 2000/ were seized from him.
His statement was recorded under section 108, .
The appellant and the driver of the truck.
were convicted by the Trial Court under Ss. 135 (a) and 135 (b) of the , and section 5 of the Imports & Exports (Control) Act, 1947.
The High Court upheld their conviction under section 135 (a) of the , and acquitted them of the other charges.
In appeal by leave granted under article 134(1) (c) of the Constitution, the appellant contended before this Court that his statement taken under section 108, , could not be used against him; firstly, as it was hit by article 20(3) of the Constitution on account of its having been taken while he was already an `accused ' under section 124, Bombay Police Act, and secondly.
it was barred under section 24, Evidence Act, the same being a confession obtained under compulsion of law.
It was also contended that in the absence of the requisite notification under section 123(2), , the statutory presumption under section 123 could not be invoked by the prosecution, and without the same, the facts of the case were insufficient to establish an offence against the appellant under section 135, .
Dismissing the appeal, the Court, ^ HELD: (1) To claim the benefit of the guarantee against testimonial compulsion embodied in clause (3) of article 20, it must be shown, firstly, that the person who made the statement was `accused of any offence ', secondly, that he made this statement under compulsion.
Only a person against whom a formal accusation relating to the commission of an offence has been levelled would fall within its ambit.
[674C D] R.C. Mehta vs State of West Bengal, [1969] 2 S.C.R. 461, applied.
(2) To attract the prohibition enacted in section 24 Evidence Act, these facts must be established.
(i) that the statement in question is a confession; (ii) that such confession has been made by an accused person; (iii)that it has been made to a person in authority; (iv) that the confession has been obtained by reason of any inducement threat or promise proceeding from a person in authority.
(v) Such inducement, threat or promise, must have reference to the charge against the accused person; (vi) The inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person ground, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him.
[676F H, 677A] 673 (3) A statement in order to amount to a `confession ' must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
An admission of an incriminating fact, however grave, is not by itself a confession.
A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a `confession '.
[677A C] Pakala Narayana vs R. 66 I. A. 66 Palvinder kaur vs State of Punjab , Om Prakash vs State, A.I.R. 1960 S.C. 409, referred to.


judgement:
Civil Appeals Nos. 805, 806 and 972 977 of 1973 From the judgment and decree dated the 8th June 1971 and 23rd November 1971 respectively of the High Court of Andhra Pradesh at Hyderabad in Appeal Suit Nos.
766 of 1968, 18 of 1969, 779, 780, 782 to 785 of 1968, respectively.
776 F. section Nariman, J. V. K. Gurunathan, T. V. Narasimhan Murty and A. Subha Rao, for the appellants.
P. Ram Reddy and P. P. Rao, for the respondents.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This batch of Appeals Nos. 805, 806 and 972 to 977 of 1973 by certificate from the judgments and decrees of the High Court of Andhra Pradesh in Appeals Nos.
766 of 1968, 18 of 1969, 779 of 1968, 780 of 1968, 782 of 1968, 783 of 1971, 784 of 1968 and 785 of 1968 raise a simple but an interesting question namely, whether for the supplies of rice made by the appellants in January and February, 1964, they are to be paid price according to the rate specified in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 dated March 23, 1964 or according to the rate specified in the Rice (Andhra Pradesh) Price Control order as it stood in 1963.
The question arises in the following circumstances: The appellants are millers and carry on the business of paddy and rice in the State of Andhra Pradesh.
On July 31, 1959, the Governor of Andhra Pradesh in exercise of the powers conferred on him by section 3 of the (Central Act X of 1955) hereinafter referred to as `the Act ' made an order called the Andhra Pradesh Rice Procurement (Levy) order, 1959 clause 3 of the order required every dealer and every miller to sell to the State Government on requisition served on him by the requisitioning authority at the controlled price (a) 40 percent of the quantity of rice held in stock by him at the commencement of the order and (b) 40 percent of the total quantity of rice purchased by him every day beginning with the commencement of the order.
Clause 2(a) of the order defined "controlled price" as meaning the maximum price fixed under section 3 of the Act for the sale of rice by the Central Government from time to time (emphasis supplied).
On December 19, 1963, the Central Government in exercise of the power conferred on it by section 3 of the Act made an order called the Rice (Andhra Pradesh) Price Control order, 1963, which extended to the districts of Krishna, West Godavari, East Godavari, Guntur, Nizamabad, Warangal and Nellore in the State of Andhra Pradesh.
Clause (2) of the order provided that the maximum prices at which the varieties of rice specified in column (1) of the Schedule to that order were to be sold in wholesale quantities would be as specified in the corresponding entries in column (2) of the said Schedule.
The said Schedule inter alia provided that Akkulu rice would be sold at Rs. 46.89 per quintal.
In compliance with the requisitions served on them by the requisitioning authority of the State of Andhra Pradesh, the appellants sold various quantities of that variety of rice to the Government of that State from January 26, 1964, to February 21, 1964, and were paid at the aforesaid rate of Rs. 46.89 per quintal.
By means of the Rice (Andhra Pradesh) Price Control (Second Amendment) order, 1964, dated March 20, 1964, the Central Government amended sub clause (1) of clause 2 of the Rice (Andhra Pradesh) Price Control order, 1963 and ordained that in the said sub clause for the words "the Schedule ', the words and figures schedule I shall be substituted.
on 777 March 23, 1964, the Central Government issued the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964.
Clause 2 of the order ran thus: 2.
In the Rice (Andhra Pradesh) Price Control order, 1963, in Schedule I, for the varieties of rice and the maximum prices thereafter, the following shall be substituted namely: ____________________________________________________________ Varieties or rice maximum price per quintal.
____________________________________________________________ 1.
Districts other than Nellore . . Akulu . 52 25 . . ____________________________________________________________ On the issue of this order, the appellants made representations to the Government of Andhra Pradesh requesting that for the aforesaid supplies of Akkulu rice made by them from January 26 to February 21, 1964, they should also be paid at the enhanced price of Rs. 52.25 per quintal.
As the representations made by them did not evoke a favourable response, they filed suits in the Court of the Subordinate Judge, Machilipatnam for recovery of the difference between the controlled prices specified in the Rice (Andhra Pradesh) Price Control order, 1963, dated December 19, 1963 and Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964.
The suits filed by them were decreed by that Court.
Aggrieved by these judgments and decrees the State of Andhra Pradesh preferred appeals to the High Court at Hyderabad which were allowed on the ground that is the supplies of rice were made by the appellants before the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, they were entitled only to the price specified in the Schedule to the Rice (Andhra Pradesh) Price Control order, 1963.
Dissatisfied with these judgments and decrees, the appellants applied for certificate under Article 133(1) (a) of the Constitution which was granted to them.
The sole question for determination in these appeals, as already indicated, is whether the appellants were to be paid price for the supplies to rice made by them from January 26, 1964, to February 21, 1964, at the rate of Rs. 46.89 per quintal the rate specified in the Rice (Andhra Pradesh) Price Control order, 1963, dated December 19, 1963 or at the enhanced rate of Rs. 52.25 per quintal as fixed by the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 dated March 23, 1964.
Mr. Nariman appearing on behalf of the appellants has laid great emphasis on the word "substituted" occurring in clause 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 and has urged that the claim of the appellants cannot be validity ignored Elaborating his submission, counsel has contended that as the prices fixed by the Government are meant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, regardless 778 of the dates an which the supplies were made.
We cannot accede to this contention.
It is no doubt true that the literal meaning of the word "substitute" is "to replace ' but the question before us is from which date the substitution or replacement of the new Schedule took effect.
There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect.
It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date.
The principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force.
(See Mani Gopal Mitra vs The State of Bihar.
The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently.
This view is in consonance with the provisions of section 3 of the Act and the Andhra Pradesh Rice Procurement (Levy) order, 1959 which clearly indicate that the price payable to the dealers and Millers for the supplies of rice made by them is the control price obtaining on the date when the sale is made.
Similar view is taken in the unreported decision dated April 20, 1962 of this Court in K. Appayya Shambhague and Co. vs The State of Mysore & Anr.
where it was laid down that the order made under section 3(2) (f) of the Act are offers of sale which the person on whom a requisition is served has no option but to accept and that the price that has to be paid is the controlled price fixed by the Government under section 3(2) (c) of the Act on the date when he goods are ascertained or when the property in the goods passes to the buyer.
This decision was followed by the High Court of Andhra Pradesh in The Union of India, represented by the Secretary, Ministry of Food and Agriculture, Government of India, New Delhi vs Kanuri Damodariah & Co. Alluri Venkatanarasiah, where it was held that an order under section 3(2) (f) amounts to an agreement for sale and the price payable for the quantities of rice supplied is a price payable in accordance with the price notified under the provisions of section 3(3) of the Act.
In the instant cases, the sale having been made before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, the appellants cannot justifiably claim the benefit of the increased price specified in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964.
The acceptance of the.
779 contention raised on behalf of the appellants will lead to grave consequences.
It will have the effect of reopening the transactions past and closed and would thus give rise to lots of difficulties.
Mr. Nariman has, in support of his contention, relied on the following passage occurring at p. 394 in Craies on Statute Law (Sixth Edition): "Explanatory and declaratory Acts retrospective Where a Statute is passed for the purpose of supplying an obvious omission in a former statute, or, as Parke J. (afterwards Baron Parke) said in R. V. Dursley ; , 469 "to `explain a former statute," the subsequent statute has relation back to the time when the prior Act was passed.
Thus in Att.
Gen vs Poughtt (1816) 2 Price 381, 392, it appeared that by a Customs Act of 1873 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s.
, but the Act omitted to state that it was to be 9s.
per cwt., and to remedy this omission another Customs Act 53 Geo.
c. 105) was passed later in the same year.
Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to pay the duty 9s.
per cwt., but Thomson C. B., in giving judgment for the Attorney General, said: "The duty in this instant was in fact imposed by the first Act, but the gross mistakes of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act, but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act.
" Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable. ' This passage has, in our opinion, no bearing on the question before us in view of the fact that the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 is neither explanatory nor declaratory, as sought to be interpreted by the counsel.
The contention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also be accepted.
The High Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the judgment and decrees passed by the Subordinate Judge, Machilipatnam.
In the result, the appeal, fail and are dismissed with cost, limited to one set.
M.R. Appeals dismissed.

summary:
Under section 3 of the , the respondent passed the Andhra Pradesh Procurement (Levy) order 1959, requiring every miller and dealer of rice (including the appellants) to sell to the respondent certain specified varieties and quantities of rice at controlled price on requisition being served on him.
Clause 2(a) of the order defined "controlled price" as the maximum price fixed by the Central Government from time to time under section 3 of the Act for the sale of rice.
On December 19, 1963, the Central Government Passed the Rice (Andhra Pradesh) Price Control order 1963, fixing the maximum price of akkulu rice at Rs. 46.89 per quintal.
The appellants sold several quantities of akkulu rice to the respondent from January 26, 1964, to February 21, 1964, and were paid at the controlled rate.
On March 23, 1964 the Central Government issued the Rice (Andhra Pradesh) Price Control (3rd amendment) order 1964, and substituted Rs. 52.28 for Rs. 46.89 as the maximum price per quintal, of akkulu rice.
The appellant 's claim for the benefit of the enhanced price for the earlier sales was rejected by the Government of Andhra Pradesh.
The appellants succeeded before the Subordinate Judge, Machilipatnam in their suits for recovery of the difference between the two controlled prices but lost before the High Court, in appeals preferred by the State of Andhra Pradesh.
It was contended before this Court that the prices fixed by the Government are for the entire season, and the appellants are entitled payment at the amended rates, regardless of the dates when the supplies were made, and that the word "substitute" infers retrospective effect.
Dismissing the appeals, the Court.
^ HELD: In the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date.
Statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force.
[778B C] (2) The property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies the made, the appellants had to be paid only at the controlled prices obtaining on the dates the sales were effects and not at the increased price which came into operation subsequently.[778 D] K. Appayya Shanbhague & Co. vs The State of Mysore and Anr.
(Unreported decision S.C. dated 20 4 1962); The Union of India.
represented by the Secretary Ministry of Food & Agriculture, Government of India, New Delhi vs Kanuri Damodariah & Co. Alluri Venkatanarasiah (1968) 1 An.
W.K. 81 and Mani Gopal Mitra vs The State of Bihar (1969) 2 S.C.R. 411, followed.


judgement:
Civil Appeal No. 2179 of 1970.
Appeal by Special Leave from the Judgment and Order dated the 1st May, 1970 of the Delhi High Court in Civil Revision No. 26 of 1970.
G. L. Sanghi, Girish Chandra and section P. Nayar for the Appellants.
K. B. Rohtagi, M. K. Garg, V. K. Jain and M. K. Rastogi for Respondent No. 1.
The Judgment of the Court was delivered by 764 KRISHNA IYER, J.
The moral of this case is that a short cut may often be a wrong cut in law, as in life.
The ratio of this appeal is that technicality will not triumph in courts of law and justice, where substantial public policy is involved and it is such public policy which humanistically protects provident fund and pensionary dues of government servants from claims of judgment creditors to attach in satisfaction of decrees.
The appellant, the Union of India, has come up in appeal, by special leave, challenging a laconic order of dismissal in Civil Revision made by the Delhi High Court, thus upholding the view of the executing court over ruling the contention of the State, objecting to the attachment of certain provident fund and pension dues held by Union of India (on behalf of the Rajya Sabha Secretariat) in trust for the judgment debtor who had been employed in the Rajya Sabha Secretariat.
The first court had held that the Union of India had no locus standi to object to the attachment by the decree holder on the score that an outsider to the suit without 'interest in the attached money ' has standing to intervene to dispute the attachability even if the sum was clearly immune to attachment in law.
The relevant reasoning is in these terms: "It is not the case of the Union of India that Union of India has any interest in the attached property so as to entitle Union of India to make an application under Order 21, r. 58 CPC.
In my opinion, if the attachment has been wrongly made it is for the judgment debtor to make an application to the court for releasing the provident fund or the compulsory deposits from attachment.
" The Court also expressed the view that it was premature to hold: "that attached money will fall within the definition of provident fund or compulsory deposit.
" In fairness to the Subordinate Judge it must be said he did feel 'inclined to agree that provident fund and compulsory deposits are not liable to any attachment under any decree or order of the civil court.
The ground which weighed with the trial court and has won the approval of the High Court is that "the Government has no interest in the attached money and therefore no standing to come to court.
The judgment debtor may file objections for release of the attached money.
The objections, if made, will be decided afresh on merits.
" It is apparent from this statement of facts that the courts below took the narrow view, with an escapist flavour which led to long litigation and large expense, that only the judgment debtor and not the Government could raise objections regarding non attachability of provident fund and pension amounts, as if Government were an officious intruder, bereft of any concern in the insultion of the amounts against execution of decrees of court.
The amount involved is small, but Shri Sanghi, for the appellant, contends that the question is one of principle and affects a wide circle of government servants.
We agree and indeed appreciate the State 's 765 anxiety to fulfil the policy of the statute on behalf of the weaker sections by taking up the burden on itself.
May be, it is like a test case ventilating a cause in which a large number of employees may be vitally involved.
We may make it clear here that the stand taken by Shri Rohatgi, counsel for the respondent, is two fold.
He argues firstly that this amount in the hands of Government is admittedly being held on behalf of the Rajya Sabha Secretariat servant who has just retired and, therefore, has lost the character of provident fund or pension.
The inhibition of attachment of provident fund and like amounts, even if valid, cannot apply to this class of sums which have suffered a metamorphesis.
Secondly, the Government has no right to move the court raising objection to the attachment since the judgment debtor is the only appropriate person who can do so.
We disagree.
Processual law is neither petrified nor purblind but has simple mission the promotion of justice.
The court cannot content itself with playing umpire in a technical game of legal skills but must be activist in the cause of deciding the real issues between the parties.
And one guiding principle is not to exaggerate the efficacy of procedural defects where issues of public concern are involved and a public authority vitally interested in the correct principle alerts the attention of the court to the problem.
A broadened view of locus standi loads to the futility of technical flaws where larger issues are involved and that is the trend of modern processual jurisprudence.
These general considerations were trite, yet too often ignored, and so need reiteration.
Further, the consumers of justice can have scant respect for a procedural policy which is obsessed more with who sparks the plugs of the court system than with what the merits of the rights or wrongs of the relief are.
A shift on the emphasis, away from technical legalistics, is overdue if the Judicature is not to aid its grave diggers.
We express the view strongly so that hopefuls may be dissuaded from taking up court time by playing up technicalities.
We may now move on to a consideration of the basic contentions and, before that, the basic facts may be briefly set down.
On March 31, 1967 a money decree for a little over Rs. 2,000/ was passed in Suit No. 516 of 1966 in favour of respondent No. 1 and against respondents 2 to 4 (who are ex parte).
A warrant or attachment of the 'funds ' of respondent No. 4, in the hands of the Rajya Sabha Secretariat, was sought and ordered.
It reads: "To The Pay & Accounts Officer, Rajya Sabha Secretariat, New Delhi.
Whereas judgment debtor No. 3, Shri section Krishnaswamy, an ex reporter has failed to satisfy a decree passed against him on the 31st day of March, 1967 in suit No. 516/66 in favour of M/s Jyoti Chit Fund and Finance P. Ltd., for Rs. 2193 50.
It is ordered that the defendant judgment debtor is hereby prohibited and restrained until the further 766 order of this Court from receiving from the Pay and Accounts Officer the following property in possession of the said Pay and Accounts Officer that is to say Rs. 2193 50 to which the defendant judgment debtor is entitled, subject to any claim of the said J. D. and the said Pay and Accounts Officer is hereby prohibited and restrained, until the further order of this court from delivering of the said property to any person.
Given under my hand and seal of the Court on 12th day of September 1968.
Sd/ Sub Judge 1st Class, Delhi.
" On service of the attachment order, objection was raised by the appellant, Union of India, on January 30, 1969 on the score that provident fund amounts and pensionary benefits were not liable to attachment and therefore the order may be rescinded.
The decree holder (respondent 1) successfully contested in the trial court and on the objection being over ruled, the appellant moved the High Court.
It may be stated, at this stage, that the trial Court did not actually investigate the claim of the appellant as to whether the whole, or part of the amount sought to be attached, represented provident fund or pensionary benefits nor did the High Court go into the question.
This means that even if we uphold the contention of the appellant, the case will have to go back for investigation on the merits We may formulate what has been indicated the actual points urged before us by Shri Sanghi and vigorously controverted by Shri Rohtagi.
(1) Is it permissible in law for amounts representing provident fund contributions and pensionary benefits to be attached, having due regard to sections 3 and 4 of the , section 11 of the Pensions Act and section 60(1), provisos (g) and (k) of C.P.C.? (2) Is the Union of India entitled to move the Court and request it to investigate the question that the whole or part of the sum in its hands on account of the judgment debtor as provident fund, compulsory deposits and pensionary benefits and, therefore, not liable to be attached, or is it out of bounds for a third party to the suit, like the Union of India, even if the step be taken pro bono publico by a relevant public authority, to invoke the jurisdiction of the Court in this behalf? (3) Is the Rajya Sabha Secretariat staff so totally separated from the Union of India that the latter cannot urge, in these proceedings, the claims belonging to employees of the said Secretariat in the civil court even if the attachment of the sums involved is contrary to law ? We are inclined to hold,, without hesitation that on all the points the appellant is bound to succeed.
A bare reading of sections 3 and 4 of the , read with section 2(a) of that Act, will convince anyone that attachment of amounts bearing their description are prohibited.
It will be a gross violation of legal mandates involving public interest if, in the teeth of such injunction, an attachment should still be ordered by a court.
The finer distinction sought to be made by Shri Rohatgi that because the appellant has already retired, therefore, the provident fund 767 and allied amounts have already fallen due and have ceased to possess the complexion of sums 'by way of provident fund under sections 3 and 4 ', is fallacious.
On first principles and on precedent, we are clear in our minds that these sums, if they are of the character set up by the Union of India, are beyond the reach of the court 's power to attach.
Section 2 (a) of the has also to be read in this connection to remove possible doubts because this definitional clause is of wide amplitude.
Moreover, s 60(1), provides (g) and (k), leave no doubt on the point of non attachability.
The matter is so plain that discussion is uncalled for.
We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retain their character until they reach the hands of the employee.
The reality of the protection is reduced to illusory formality if we accept the interpretation sought.
We take a contrary view which means that attachment is possible and lawful only after such amounts are received by the employee.
If doubts may possible be entertained on this question, the decision in Union of India vs Radha Kissen Agarwala & Anr.
erases them.
Indeed our case is an afortiori one, on the facts.
A bare reading of Radha Kissen makes the proposition fool proof that so long as the amounts are Provident Fund dues them, till they are actually paid to the government servant who is entitled to it on retirement or otherwise the nature of the dues is not altered.
What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in court to attachment.
We follow that ruling and over rule the contention.
It is possible to take a broad view that cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken.
Any public authority interested in the matter and not behaving partially as an officious busy body may bring to the notice of the court the illegality of the steps it proposes to take.
When the court 's jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party, like the judgment debtor in the instant case, appearing to defend himself.
The argument that the Rajya Sabha Secretariat is different from the Union of India is a new gloss which Shri Rohatgi has put upon his contention of locus standi.
He has pressed into service Articles 300 and 98(2) of the Constitution of India, neither of which is helpful or 768 applicable.
This point has the merit of novelty, little else.
Consequentially, we set aside the decision of the High Court and of the executing court, but this is not the end of the matter.
We direct the court of the Subordinate Judge to go into the merits of the objection raised by the Union of India as to whether the entire amount or any portion thereof held by it on behalf of the Rajya Sabha Secretariat staff, so far as the judgment debtor in this case is concerned, represents provident fund and compulsory deposits or pensionary benefits, excluded from attachability in execution of civil decrees under the provisions already adverted to.
If it is feasible to effect service of notice on the judgment debtor, well and good, but if it is not, the court cannot absolve itself of the duty to investigate into the merits of the claim or character of the amounts, so long as the Union of India is ready to make good its contention.
The appeal is allowed with costs in this Court.
M.R. Appeal allowed.

summary:
The appellant Union of India objected to the attachment of certain provident fund and pension dues held by it (on behalf of the Rajya Sabha Secretariat) in trust for the fourth respondent, an ex employee of the Rajya Sabha Secretariat.
The attachment was sought in satisfaction of a money decree held by the first respondent.
The High Court dismissed the appellant 's Civil Revision petition upholding the decision of the executing court.
In appeal by special leave, the appellant contended before this Court that although a third party to the suit, the state had acted pro bono publico, by objecting to the illegality of the proposed attachment, and that it was a question of principle, affecting a wide circle of government servants.
The respondent contended that the amounts having already fallen due, had lost the character of provident fund or pension under Ss. 3 and 4, and had become attachable, and also that the government had no locus standi to object to the attachment.
Allowing the appeal, the Court ^ HELD: (1) So long as the amounts are Provident Fund dues then, till they are actually paid to the government servant who is entitled to it on retirement or otherwise, the nature of the dues is not altered.
The government is a trustee for those sums and has an interest in maintaining the objection in court, to attachment.
[767D E] Union of India vs Radha Kissen Agarwalla & Anr. ; , followed.
(2) Cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken.
Any public authority interested in the matter, and not behaving as an officious busy body may bring to the notice of the court the illegality of the steps it proposes to take.
When the court 's jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party appearing to defend himself.
[767F G] (3) The argument that the Rajya Sabha Secretariat is different from the Union of India, has the merit of novelty, little else.
[767 G & 768H]