judgement:
Appeal No. 558 of 1964.
176 Appeal by special leave from the judgment and order dated December 16, 1963 of the Rajasthan High Court in D. B. Election Appeal No. 74 of 1963.
R. K. Garg, section C. Agarwal, D. P. Singh and M. K. Ramamurthi,for the appellant.
G. section Pathak and Naunit Lal, for the respondent.
The Judgment of the Court was delivered by Subba Rao J.
The appellant, Sheopat Singh, and two others, namely Ramchander Chowdhary and Suria Ram, contested the election for a seat in the Rajasthan Legislative Assembly from Hanumangarh constituency.
The appellant polled, 1,285 votes Ramchander Chowdhary, 18,217 and Surja Ram, 1,285 votes.
The appellant was declared elected.
The respondent, One of the ' electors, filed an election petition under section 8 1 of the Representation of the People Act, 1951, hereinafter called the Act, for setting aside the election of the appellant on various grounds. 'Me Election Tribunal.
by its order dated June 18.
1963, held that the respondent had failed to substantiate the allegations made against the appellant and, on that finding, dismissed the petition.
Against the said order, the respondent preferred an appeal to the High Court of Judicature for Rajasthan at Jodhpur.
A Division Bench of that Court heard the appeal and came to the, conclusion that the appellant was guilty of a corrupt practice under sub section
(4) of section 123 of the Act in publishing a poster, exhibit 3, which contained a statement of fact about the personal character and conduct Of Ramchander Chowdhary, one of the candidates in the election.
On that finding, it set aside the order of the Election Tribunal and declared the election of the appellant void.
The appellant, by special leave, has preferred this appeal to this Court against the said order of the High Court.
In Learned counsel for the appellant raised before us two points, namely, (i) that exhibit 3, the poster, published and circulated by 'the appellant is not hit by the provisions of section 123 (4) of the Act and (ii) that the election petition should have been dismissed d under section 85 of the Act on the ground that it had not impeded Hariram, another duly nominated candidate who withdrew his candidature before the election and against whom allegations of corrupt practice were made.
The first argument of the learned counsel is elaborated thus.
Under section 123(4) of the Act the burden is upon the person who; is to impute corrupt practice described thereunder to establish the ingredients of corrupt Practice laid down therein.
He has 177 not only to prove that the elected candidate published a statement of fact, which is false, in relation to the personal character or conduct of another candidate, but also that he believed it to be false or he did not believe it to be true.
He has to prove further that the said statement was calculated to prejudice the prospects of the other candidate 's election, that is to say that the voters had the knowledge that the corrupt practice or practices were attri buted to him and because of that knowledge did not vote for him.
In the instant case, exhibit 3 contained only general allegations against the misrule of the Congress Party and even if the statements can be related to Ramchander Chowdhary, there is no evidence that the voters knew that it was he who was referred to in the poster.
The first question is whether exhibit 3 is hit by the provisions of section 123(4) of the Act.
Before we consider the terms of the document it will be convenient and useful to notice the ingredients of the section.
It reads Section 123 (4) : The publication by a candidate or his agent or by another person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
The sub section may be dissected into the following component parts relevant to the present enquiry: (1) the publication of any statement of fact by a candidate; (2) that fact is false; (3) the candidate believes it to be false or does not believe it to be true; (4) the statement is in relation to the personal character or conduct of the candidate; and (5) the said statement is one being reasonably calculated to prejudice the prospects of the other candidate 's election.
An election is the expression of a popular will.
It shall be so conducted that the popular will shall be reflected on the basis of the policy of the party which the candidate represents and on big merits.
That object cannot be achieved unless freedom of speech t assured at the election and the merits and demerits of a candidate, personal as well as political, are prominently brought to the notice of the voters in the constituency.
At the same time it shall not be allowed to degenerate into a vilification campaign aimed at bringing down the personal character or conduct etc.
of the 178 candidates without any basis whatsoever.
The subsection is designed to achieve this dual purpose, namely, freedom Of speech and prevention of malicious attack on personal character 'Dr conduct etc.
of rivals.
The purity of an election is sought to be maintained without affecting the freedom of expression.
The sub section prohibits any statement of fact in relation to Personal which is not only false but character or conduct of any candidate, which is not only false but also the candidate making it either believes it to be false or does not believe it to be true it implies that a statement of fact relating to the personal character or conduct etc.
of a candidate can be made, if it is true.
Even if it is false, the candidate making it is protected, unless he makes it believing it to be false or not believing it to be true, that is to say statements which are not true made bona fide are also outside the ambit of the provision.
To be ' within the mischief of sub section
(4) of section 123 of the Act such a statement shall satisfy another test, namely, it shall be a statement, reasonably calculated to prejudice the prospects of the election Of the candidate against whom it is made.
The word "calculated" r means designed: it denotes more than mere likelihood and imports a design to affect voters.
It connotes a subjective element, though the actual effect of the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect.
The emphasis is on the calculated effect, not on the actual result, though the latter proves the former.
But what is important to notice is that it is not necessary to establish by positive evidence that.
the voters, with the knowledge of the contents of the statement, were deflected from voting for the candidate against Whom the statement was made.
As considerable stress is laid upon the burden of proof, reference may be made to the judgment of this Court in T. K. Gangi Reddy vs M. C. Anjaneya Reddy(").
In that case, dealing with the question of burden of proof, this Court observed: "Burden of proof has two distinct meanings, viz., (i) the burden of proof as a matter of law and pleading, and (ii) the burden of proof as a matter of adducing evidence. . .
The first remain , constant and the second shifts." The burden of proof as a matter of law and as a matter of adducing evidence is on the respondent, who seeks to get the election set aside, to establish corrupt practice; but, if he adduces sufficient evidence, as in this case we are satisfied he has, the burden of (1) , 268.
179 adducing evidence shifts on to the appellant.
That apart when the entire evidence has been adduced in the case the question of burden of proof becomes merely academical.
In this case the High Court considered the relevant evidence and came to the conclusion that the respondent has proved his case.
No error has been committed by the High Court in this regard.
One of the important ingredients of the sub section is that the statement shall be made in relation to the personal character or conduct etc.
of another candidate.
What is the meaning of the expression "personal character or conduct" ? This question has been considered by this Court in two decisions.
In Gangi Reddy 's case (1), dealing with the said expression, this Court observed at p. 266 thus: "The words 'personal character or conduct ' are so clear that they do not require further elucidation or definition.
The character of a person may ordinarily be equated with his mental or moral nature.
Conduct connotes a person 's actions or behaviour. .
What is more damaging to a person 's character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political ' career in Inder Lal vs Lal Singh(2), this Court again, adverting to this aspect, observed thus: "In discussing the distinction between the private character and the public character, sometimes reference is made to the "man beneath the politician" and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician, it does not touch his private character.
" After referring to obvious statements which affect the private character of a person, this Court proceeded to state "But there may be cases on the border line where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not.
" It is not necessary to refer to other decisions cited at the Bar.
(1)[1960] (2) [1963] Supp.
3 S.C.R. 114,122.
180 The boundary between personal character and conduct and public character and conduct is well drawn, though, sometimes, it is thin.
Sometimes a statement may appear to touch both the candidate 's personal as well as Public character.
But a deeper scrutiny enables a court to ascertain whether there is a reflection on his personal character or on his public character.
To illustrate: suppose a statement is made to the effect that a minister has taken a bribe in making an appointment or in giving a contract.
He, has taken the bribe in the course of discharging his duties as a minister, but his act of taking bribe does not solely reflect on his public character.
By taking a bribe he does not discharge his Official duties; taking a bribe has nothing to do with his official or public duty it reflects on his moral and mental fire.
His position as a minister may have given him the opportunity to take a bribe but the taking of the bribe is mainly attributable to his deficiency in personal character.
We, therefore, hold that any statement made, which reflects on the mental or moral character of a person is a reflection on his personal character, whereas any criticism of a person 's political or public activities and policies is outside it.
The fact such a statement is made in the course of a political or public activity does not make it any the less a statement in relation to his personal character or conduct.
It is a question of fact in each case under what category a particular statement falls.
Now let us have a look at the terms of exhibit 3.
It is a big poster in which some portions have been printed in bold letters.
There is a large size photo of the appellant on the right top corner and the symbol of the communist party at the end.
The poster runs thus: "Bounties of the Cement of the Rajasthan Canal.
Cinema of seven lakhs in Ganganagar and magnificent kothis in the neighbourhood of Jaipur 's "Rajmahals".
Open loot in liquor contracts by Gandhi 's devotees and improper transfer of lands.
Hanumangarh 's gentlemanliness, honest and public welfare faced with the corrupt, permit loving and "police raj" of the Congress.
Give proof of bravery, modesty and selflessness by giving vote to Sheopatsingh Makkasar who would bravely sacrifice himself for the glory and prestige of Hanumangarh.
Election (Ears of com and sickle) Symbol 181 Vote for ears of corn and sickle, the symbol of prosperity,progress and popular rule.
" Learned counsel for the appellant contends that the poster does not overstep the limits of reasonable criticism of the opposite candidate and that it says only generally that under the Congress rule many corrupt practices are going unheeded and that if the appellant is elected he would rectify the defects and restore the glory and prestige of Hanumangarh.
It is not necessary in this case to ascertain whether all the misdeeds narrated in the poster refer to Ramchander Chowdhary, for we are satisfied that the first paragraph clearly and reasonably refers to his activities.
The vernacular word for "bounties ' is "barkatain".
The first paragraph of the poster means that the cinema theatre of Rs. 7 lakhs in Gangangar was the barkat of the cement of the Rajasthan canal.
That means by misappropriating the cement of the Rajasthan Canal the cinema theatre worth Rs. 7 lakhs was built.
Ex facie the poster does not say who misappropriated the cement and to whom the cinema belonged.
But the words in the context of the well known facts can reasonably lead only to one inference.
At the crucial time, Ramchander Chowdhary was the Minister in charge of the Rajasthan Canal Project.
During the election at Ganganagar a cinema theatre known as Adarsh Theatre was being put up.
It is admitted by the appellant and his agent that the theatre referred to in the poster is the Adarsh Theatre and it belongs to Ramchander Chowdhary and his sons.
In the context, therefore, it is manifest that the poster meant to convey the idea that Ramchander Chowdhary misappropriated the cement of the Rajasthan Canal, of which he was in charge, and built a big theatre in the name of his sons.
That is to say the act of misappropriation was in clear terms attributed to Ramchander Chowdhary.
To make a statement that a minister has misappropriated the cement in his charge and built a theatre from out of the proceeds is certainly a reflection on his personal character and conduct.
Learned counsel 's contention that it may mean that somebody other than the Minister might have misappropriated the cement and sold it in the black market and that the Ganganagar cinema theatre might have been built from and out of the cement purchased therefrom.
This is rather an unnatural rendering of the clear recitals in the first paragraph of the poster.
The word "barkatain" shows that Rs. 7 lakhs was derived from the cement for the canal.
If the minister or his sons purchased cement in the blackmarket, the building cannot be the bounty of the cement of the Rajasthan Canal.
In that event only the cement misappropriated by somebody would have been used for building the 182 cinema.
The cost of building the theatre would have been borne by the minister and his sons not out of the gift made from the cement of the Rajasthan Canal.
We are, therefore, clearly of the opinion that the first paragraph of the poster is a direct reflection on the personal character of Ramchander Chowdhary.
Even so, learned counsel for the appellant argues that it has not been established that the appellant made the statement believing it to be false or not believing it to be true.
P.W. 4, Dharam Pal, under whose supervision the cinema theatre was built, stated that 4,000 bags of cement were used in its construction and that 2,000 of these bags were obtained from the cement factory of Sawai Madhopur, 1,585 bags from the cement factory at Charkhidadri and the remaining 415 bags were purchased locally against permits issued by the department concerned.
This evidence has been accepted by the High Court.
On the other hand,not only the appellant did not adduce any evidence to rebut the evidence adduced by the respondent but the appellant as well as his witness, D.W. 7, admitted in the witness box that Ramchander Chowdhary was an honest man.
In this state of evidence, the respondent, on whom the burden of proof lay, discharged that burden and the High Court rightly found in his favour.
The next facet of the argument is that there is no evidence in the case that the said statement was one reasonably calculated to prejudice the prospects of the election of Ramchander Chowdhary.
It is asked, how could the statement deflect the voters from voting in favour of the said Ramchander Chowdhary, if they did not know that the cinema theatre that was being built in Ganganagar belonged to Ramchander Chowdhary or his sons It is further said that there is no evidence in this case that all or any of the voters knew the fact that the cinema theatre belonged to Ramchander Chowdhary or his sons.
Reliance is placed upon the decisions delivered in the context of libel actions.
In Nevill vs Fine Art and General Insurance Co. Ltd.(1) Lord Halsbury, L.C., accepted the principle that the questioned document should be taken in a defamatory sense by those to whom it was published according to the primary meaning of the language used in it.
In The Capital and Counties Bank Ltd. vs George Henty & Sons(2) for the purpose of ascertaining whether a statement was defamatory the test whether the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand (1) (2) 183 it in a libellous sense.
In that case the House of Lords came to the conclusion that it did not.
This test is relied upon in support of the argument that the voters should have known that the first paragraph of the poster referred to Ramchander Chowdhary, for without such knowledge, it could not have prejudiciously affected Ramchander Chowdhary 's chances in the election.
We are not dealing with a libel action.
We do not, therefore, propose to refer to similar cases on libel cited at the Bar.
We do not express any opinion thereon.
We are only concerned with the express terms of section 123(4) of the Act.
The only question, therefore, is whether the said statement was reasonably calculated to prejudice the prospects of Ramchander Chowdhary 's election.
On behalf of the appellant it was not contended either before the Election Tribunal or before the High Court that the voters had no knowledge, of the fact that the cinema theatre at Ganganagar belonged to Ramchander Chowdhary or his sons.
That apart, as we have pointed out earlier, the object with which the statement was made is the crucial test.
Here it is established that Ganganagar cinema theatre belonged to Ramchander Chowdhary 's sons.
It is proved that Ramchander Chowdhary was the minister in charge of the Rajasthan Canal.
He was the only effective candidate against the appellant.
The appellant 's intention in making that statement was therefore obvious and that was to attack the personal character of Ramchander Chowdhary in order to prejudice his prospects in the election.
He must have reasonably calculated that the voters, or at any rate the voters in and about the locality where the cinema theatre was being put up, had knowledge of the fact that it was being constructed by the minister or his sons.
It cannot also be said that when a big cinema theatre at a cost of Rs. 7 lakhs was being put up in Ganganagar, the voters in and about that place would not have known about the ownership of that building.
The fact that the building was brought in for attacking" the personal character of Ramchander Chowdhary, a rival candidate, clearly indicates that the appellant knew that the voters had knowledge of its ownership and expected that it would create the impression which it manifestly intended to convey.
On these facts, if the High Court held that the statement was reasonably calculated to prejudice the rival candidate 's prospects in election, we cannot say that the finding is not supported by evidence or admitted facts placed before the High Court.
It was a reasonable inference from the facts found by the High Court.
We, therefore hold that exhibit 3 is hit by section 123 (4) of the Act and, therefore, the High Court rightly held that the appellant was guilty of corrupt practice.
184 To appreciate the second contention some facts may be recapitulated.
Hariram, the father of the appellant, was one Of the candidates who stood for the election.
His nomination paper was held to be valid.
But, later on, he withdrew his candidature.
In the election petition it was stated that the appellant got printed from lqbal Printing Press, Sri Ganganagar, hundreds and thousands of posters and leaflets containing grossly libellous and highly defamatory imputations against Ramchander Chowdhary and that the appellant himself and through his workers and supporters got them published by affixing them at conspicuous places in every village of the constituency and freely distributed them among the electors.
In one of the annexures the names of the distributor of the posters and leaflets are given as Sheopat Singh, the appellant, and his father, Hariram, among others.
But there is no allegation that Hariram published the statement believing it to be false or not believing it to be true.
Under section 82 of the Act a petitioner shall join as respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition.
Under section 85 of the Act, "if the provisions of. section 82 have not been complied with, the Election Commission shall dismiss the petition".
Assuming that Hariram was a candidate within the meaning of section 82 of the Act, the question is whether allegations of any corrupt practice were made against him in the petition.
The only allegation made was that the appellant got published through him and others the said statement; but there was no allegation that Hariram believed the statement to be false or did not believe it to be true.
In the absence of any such averment, it cannot be held that there was any allegation of any corrupt practice within the meaning of section 8 2 (b) of the Act against Hariram.
In that event, as there was no allegation of a corrupt practice against Hariram, the penal provisions of section 85 are not attracted.
In this context a novel argument has been advanced before us.
Publication with guilty knowledge under section 123 ( 4) of the Act, the argument proceeds, is a composite act and it involves two elements, namely, (i) the statement of fact, and (ii) its publication; and, therefore, all persons who take part in one or other of the said elements will be guilty of the corrupt practice, even though some of them have and others do not have the guilty knowledge.
If this argument be accepted, not only the person who makes a false statement of fact and gets it published through his servant, but his innocent servant who mechanically obeys the order of his master would be guilty of a corrupt practice.
This contention is obviously untenable.
185 Under section 123 (4) of the Act mens rea is a necessary ingredient of the corrupt practice and the person who publishes a statement, whether he is the author of it or not, does not commit a corrupt practice, unless he has the requisite knowledge.
The sub section does not accept the doctrine of constructive knowledge.
The High Court has correctly held that the petition was not liable to be dismissed on the ground that Hariram was not included as respondent.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
The election of the appellant to a seat in the Legislative Assembly of "the State was challenged by the respondent, an elector, on the ground inter alia, that by publishing a poster which contained a statement of fact about the personal character and conduct of one of the rival candidates, the, appellant was guilty of a corrupt practice under section 123 (4) of the Representation of the People Act (43 of 1951).
The Tribunal dismissed the petition, but the High Court reversed the decision of the Tribunal.
In the appeal to the Supreme Court., it was contended that : (i) the poster, published and circulated by the appellant was not hit by the provisions of section 123(4) the Act and (ii) the election petition should have been dismissed under 85 of the Act on the ground that another candidate against whom allegation of corrupt practices were made was not impleaded.
HELD : (i) Section 123(4) is designed to achieve the dual purpose of protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals.
A statement which reflects on the mental or moral character of a person is a reflection on his personal character, whereas any criticism of a person 's political or public activities and policies is outside it.
The sub section also requires that the candidate making the statement believes it to be false or does 'not believe it to be true, and it shall be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made.
The word "calculated" means designed it denotes more than mere likelihood and imports a design to affect voters.
Applying these tests and on a consideration Of the entire evidence, the appellant by publishing the poster was guilty of a corrupt practice within the meaning of the sub section.
[178A E; 18OC E; 183H].
T. K. Gangi Reddy V. M. C. Anjaneya Reddy, and Inder Lal vs Lal Singh, [1963] Supp. 3 S.C.R. 114, referred to.
(ii)As regards the candidate who was not impleaded the only allegation made in the election petition was that the appellant got the poster published through him and others, but there was no allegation that the candidate believed the statement to be, false or did not believe it to be &W. in the absence of any such averment it cannot be said that there wall anY allegation of any corrupt practice within the meaning of section 82(b) Of Act against such candidate.
Also, under section 123 (4) mens rea is a necessary ingredient of the corrupt practice and the person who publishes a statement, whether he is the author of it or not, does not commit a corrupt practice, unless he has the requisite knowledge.
As there was no allegation of corrupt practice against the candidate who was not impleaded, the penal provision of section 85 are not attracted and the petition was not liable to be dismissed.
[184E H; 185A].


judgement:
: Criminal Appeals Nos. 211 to 217 of 1962.
Appeals by special leave from the judgment and order dated May, 5, 1962, of the Madhya Pradesh High Court (Indore Bench) at Indore, in Criminal Appeals Nos. 216, 222 and 227 to 231 of 1961.
C. B. Agarwala and Rameshwar Nath, for the appellant.
B. Sen and I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Ayyangar J.
These seven appeals are connected as they relate to the same appellant and the point involved in each is identical.
They are before us by virtue of special leave granted by this Court and are directed against the common judgment of the Indore Bench of the High Court of Madhya Pradesh convicting the appellant of a contravention of the Indian Iron & Steel (Scrap Control) Order, 1943.
The accused, the appellant before us, was the President of the Scrap Dealers Association at Indore and he was prosecuted before the learned Additional City Magistrate, Indore City in seven sets of criminal cases filed by the State of Madhya Pradesh alleging contravention of section 8(4) of the Iron & Steel (Scrap Control) Order, 1943 by selling or causing to be sold scrap iron to different customers on different dates at a rate higher than was authorised by notification dated September 30, 1952 issued by the Steel Controller under the said order.
He was acquitted by the Additional City Magistrate but on appeals preferred by the State Government, the learned Judges set aside the acquittal and convicted him of the offences and sentenced him to pay a fine of 325 Rs. 100 in each case with imprisonment in default of payment of fine.
It is the correctness of this judgment of the High Court that is canvassed before us by the appellant in these appeals.
To appreciate the points raised by the appellant it is necessary to narrate briefly the history of the legislation on the topic of control over the price at which scrap was permitted to be sold by dealers.
The Defence of India Act, 1939 enabled the Central Government to frame rules, among others, "for maintaining supplies and services essential to the life of the community (vides.
" In pursuance thereof Rule 81 (2) of the Defence of India Rules empowered the Central Government "so far as appears to them to be necessary or expedient for .
maintaining supplies and services essential to the life of the com munity" to provide by order, inter alia, (a) for controlling the pi ices or rates at which articles or things of any description whatever may be sold. . and for relaxing any such prices or rates".
By virtue of this power, the Central Government promulgated the Iron & Steel (Scrap Control) Order, 1943 (hereinafter referred to as the Indian Scrap Order) on February 25.
This Order to whose provisions we shall have to make some reference later would normally have lapsed on the expiry of six months after the revocation of the proclamation of emergency because of the provisions of section 102(3) (a) of the Government of India Act, 1935.
In order to avoid this result, the Emergency Provisions Continuance Ordinance, 1946 was promulgated on September 25, 1946 which continued several orders in relation to the control of production, distribution etc.
of essential commodities, and Indian Scrap Order among them, and this ordinance was replaced by a permanent legislation the Essential Supplies (Temporary Powers) Act, 1946 (Act 24 of 1946) which also contained a provision for the continuance of the Control Orders in force [vide section 17(2)].
Section 8(4) of the Indian Scrap Order prohibited the sale of scrap in excess of the prices fixed therefore by the Controller.
It is not disputed that the sales in regard to which the appellant has been prosecuted were in excess of the maximum there specified.
Several defences were raised but of these those which now survive are only two: (1) The legal effect of the parallel provisions on the same subject viz., control over the sale price of scrap which were in force in the Part B State of Madhya Bharat which comprised Indore, and (2) Whether the appellant as the President of the Scrap Dealers Association which was an unincorporated body could be held liable for, a sale in excess of the sup./64 8 326 authorised maximum price effected by a Munim or Munims of the Association.
We shall now proceed to narrate in brief outline the history of the parallel provisions relative to control over the sale price of Scrap in the Part B State of Madhya Bharat.
These provisions undoubtedly continued in force in the State till September 12, 1950 when the Indian Scrap Control Order, 1943 was in terms made applicable in that State and the principal point raised by Mr. Agarwala was whether a certain notification which had been issued under the State law and was in force on that date continued in force even thereafter.
The State legislation on this topic started on October 9, 1948 with the promulgation of the Madhya Bharat Essential Supplies (Temporary Powers) Ordinance, 1948, which was a reproduction of the Indian Essential Supplies (Temporary Powers) Ordinance, 1946.
When this Ordinance was replaced in India by the Essential Supplies (Temporary Powers) Act, 1946, the same process was repeated in Madhya Bharat by the enactment of the Essential Supplies (Temporary Powers) Act (Samvat 2005) (Madhya Bharat Act III of 1948).
Among the "essential, commodities" dealt with by the State enactment were iron and steel [vide section 2(3)(7)].
Section 4 of the Act read: "4.
Powers to control production, supply, distribution etc., of essential commodities.
(1) The Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodities, or for securing their equitable distribution and availability at fair prices may by an Order notified in the Official Gazette provide for regulating or prohibiting the production, supply, distribution and movement thereof, and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (c) For controlling the prices at which any essential commodity may be bought or sold; to quote only the material words.
In exercise of the powers thus conferred the Director of Civil Supplies, Madhya Bharat, to whom the powers in that behalf were delegated by the State Government, promulgated on June 4, 1949 the Madhya Bharat Iron, Steel and Scrap (Production, Procurement and Distribution) 327 Control Order, 1949.
Clause 5 of this Order empowered the Director of Civil Supplies, Madhya Bharat to specify from time to time the maximum prices wholesale and retail at which "iron and steel, scrap or specified articles made thereof" may be sold (a) by a producer, (b) by a controlled stockholder, (c) by a registered stockholder (d) by a controlled dealer and (e) by a scrap merchant.
The several categories of persons whose sales were thus regulated were defined in the Order.
Acting under this provision, the Director Civil Supplies issued a notification on the same date June 4, 1949 which read: "In exercise of the powers conferred on the Director under clause 5(1) of the Madhya Bharat Iron, Steel and Scrap (Production, Procurement and Distribution) Control Order, 1949, I hereby specify that the Price Schedules as may be in force for the time being under .
Iron and Steel Scrap Control Order in the Indian Union in respect of sales by producers, controlled and Registered Stockholders and Scrap Merchants shall apply mutatis mutandis to sales by the aforesaid persons in Madhya Bharat; provided however, that the Registered Stockholders shall sell to Controlled Dealers at II column rates of the Government of India Price Schedule for the time being in force, that Iron and Steel which they receive at column I rate from the producers and at column III rate, that Iron and Steel which they receive from the Controlled Stockholders at column II rates : provided also that controlled Dealers in Madhya Bharat shall sell to consumers at a profit margin of not exceeding Rs. 30 per ton; subject however, in all cases to such local extra charges as may be fixed by me or the officers authorised by me in this behalf.
" It is only necessary to add that there were similar Orders passed under the Indian Scrap Order, 1943 in which also the classification of dealers etc., proceeded on the same lines.
The form of the notification by the Steel Controller to the Government of India, referred to in this notification was on the following lines : There was a schedule to the notification fixing the maximum prices and it was divided into five columns.
First was the number of the item, the second was the description or classification of the material and the next three which were headed columns I, II and III dealt with specified maximum basic prices per ton for sale at Calcutta, Bombay and Madras.
There were adjustments 328 indicated for arriving at the prices chargeable at other centres.
Column I specified the prices for sales by Controlled Sources other than those mentioned in column 11.
The second column was headed "specified prices fixed for sales by scrap merchants who have been declared controlled sources" and the ,last or third column specified the maximum for sales by all persons other than those mentioned in columns I and 11.
Different maxima were fixed for sale by persons falling under the three columns, the first column price being the lowest, the second t little higher and the last which included sales by retail dealers to the consuming public being the highest.
It is common ground that the Scrap Dealers Association, Indore of which the appellant was the President had been declared "a Controlled Source" ' so that the maximum prices at which members of the Association which was an unincorporated body could sell, were those specified in column II of the schedule.
It is not necessary to set out the prices at which the actual sales which wore stated to be in violation of the law, took place, but it is sufficient to state that admittedly the servants of the Association sold scrap iron at prices higher than those fixed in column II and at prices fixed for column III.
The first submission of Mr. Agarwala learned Counsel for the appellant was that the sale by the Association at the column ]II price was authorised and legal because of a notification issued by the Government of Madhya Bharat dated August 26, 1949.
The principal point argued before us in respect of this notification is as to whether this notification was alive and in force on the date of the sales in 1956 which were the subject of the several prosecutions and whether it has survived subsequent Indian legislation extended to the State to which we shall advert presently.
But before proceeding to do so, it would be convenient to consider the nature of that notification.
The Scrap Dealers Association of Madhya Bharat appear to have made a representation to the State Government that though the dealers in Scrap as constituent units of the Association were treated as a Controlled Source and secured advantages thereby and were bound to sell at prices fixed in column II, still the Association should 'be accorded special privilege and be permitted to sell at prices fixed for the residuary class of dealers in column III.
This representation was considered by an Advisory Committee appointed by the State Government and a direction was given that "a change be made to the extent that at present for the goods which is sold to consumers by the Scrap Association 329 at the regional headquarters they will be allowed to charge column III rates on the goods instead of column II rates.
" It is stated that the Association has been selling at these rates ever since.
There is no doubt that if this direction stood, and we need only add that the validity of this direction was not challenged by the respondent as beyond the powers of the State Government, the appellant could not have been guilty of the offence with which he was charged.
But the question is whether this direction or this modification of the prices fixed under section 5(1) of the Madhya Bharat Scrap Control Order by incorporating the notification by the Steel Controller of the Government of India in its text, subsisted in 1956 when the sales which are stated as being in contravention of the Indian Scrap Order, took place.
We have already seen that the notification dated June 4, 1949 which we have extracted earlier, was issued under the Madhya Bharat Iron and Steel etc., Control Order, 1949 pro mulgated under the Madhya Bharat Essential Supplies (Tem porary Powers) Act, 1948.
The Madhya Bharat Act, however, stood repealed by virtue of the provisions of the Essential Supplies (Temporary Powers) Amendment Act, 1950 (Act 52 of 1950) under which the Essential Supplies (Temporary Powers) Act, 1946 was extended to the Part B States as and from such dates as might be specified by the Central Government.
By a notification issued by the Central Government the Essential Supplies Act, 1946 was made applicable to the Part B State of Madhya Bharat from August 17, 1950.
The effect of this extension was provided for by section 10 of Act 52 of 1950 which enacted : "1O. Amendment of section 17, Act XXIV of 1946.
After sub section (3) of section 17 of the said Act, the following sub section shall be inserted, namely (4) If immediately before the day on which this Act comes into force in a Part B State, there is in force in that State any law which corresponds to this Act, such corresponding law shall on that day stand repealed in so far as it relates to any of the essential commodities governed by this Act: Provided that any Order made and in force immediately before that day in the said State shall continue in force and be deemed to be an Order made under this Act, and all appointments made, licences or permits granted, and directions issued, under any such Order and in force immediately before that day shall likewise continue in 330 force and be deemed to be made, granted or issued in pursuance of this Act.
" If the main part of sub section
(4) stood alone without the proviso, the effect would have been not merely a repeal of the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 which was "a corresponding law" which was in force in that State, but with that repeal, all the subordinate legislation enacted thereunder including the Control Orders as well as the Orders of the Director fixing prices would also have stood repealed.
By virtue of the proviso, however, notwithstanding the repeal of the parent enactment, the Orders made under it were continued and were to be deemed to have been made under the Indian Act.
Mr. Agarwala laid considerable stress on the proviso and urged that by reason of its language it continued in force not merely the Madhya Bharat Scrap Order of June 4, 1949 and the price fixation by the Director under section 5 ( I) of that Order on the same date, but also the variation in the prices to be charged by the Association effected by the Government Order dated August 26, 1949 which enabled that body, notwithstanding its being a dealer specified in column II to sell at prices fixed for persons falling under column M. We need not pause to consider whether the direction or the notification dated August 26, 1949 is "a direction issued under any such order" within the proviso to section 17(4) but shall proceed on the basis that it is, accepting the construction suggested by learned Counsel.
But the replacement of the Madhya Bharat law on this topic by the law in force in India did not stop with that effected by Act 52 of 1950.
By a notification of the Government of India dated September 12, 1950, the Indian Scrap Order, 1943 was extended to Madhya Bharat.
It is really the legal effect of this extension that calls for scrutiny in these appeals.
The notification by which the Indian Scrap Order was extend ed to Madhya Bharat, no doubt, did not expressly provide for the repeal of the "Madhya Bharat Scrap Iron & Steel etc., Order, 1949", but if the two Control Orders cannot operate simultaneously, it would be obvious that the Indian Scrap Order would have repealed and replaced the State law.
In the first place, even if the provisions contained in the two sets of Orders were in identical terms, it might be proper to hold that the Indian Scrap Order replaced the State law in order to give some meaning and effect to the extension of the Indian Scrap Order to Madhya Bharat.
But that is not the position here.
There are 331 marked differences between the provisions of the two Orders such that it would not be possible for the two to stand together.
For instance, Rule 3 of the Indian Scrap Order prohibits producers from acquiring or agreeing to acquire scrap except and in accordance with a written order of the Controller etc.
There is no rule corresponding to this in the Madhya Bharat Scrap Order.
In line with this, in Rule 6 of the Madhya Bharat Order which corresponds to Rule 8(4) of the Indian Scrap Order, there is no prohibition against acquisition for a higher price than the maximum fixed, such as is to be found in Indian Order.
Again, Rule 7 of the Madhya Bharat Order relating to the restrictions on the movement of scrap has no corresponding provisions in the Indian Scrap Order.
Illustrations of this type of variation may be multiplied, but this is unnecessary as it was conceded that the provisions contained in the two orders were not identical.
What we desire to emphasise is that the two orders, though achieving substantially the same object, are not identical in their provisions.
If that is so, it is obvious that on the extension to Madhya Bharat of the Indian Scrap Order, the Madhya Bharat Scrap Order would stand repealed and be replaced by the Indian law.
Mr. Agarwala, however, submitted that this would not follow because according to him the Madhya Bharat Scrap Order had some sort of higher efficacy or stood on a footing superior to the Indian Scrap Order by reason of its having been continued by the proviso to section 17(4) to Act 24 of 1946, the argument being that the notification etc., should be deemed to be one under the Essential Supplies (Temporary Powers) Act itself.
This argument, even if sound, does not really help the appellant, for the Indian Scrap Order itself was preserved by a saving of the same type and couched in exactly the, same language in the Essential Supplies (Temporary Powers) Ordinance, 1946 and the Act of the same name of 1946 [vide section 17(2) & (3) of Act 24 of 1946].
Besides, just as an order made or notification issued.
under the Essential Supplies (Temporary Powers) Act, 1946 could be amended, modified or cancelled, even if the Madhya Bharat Scrap Control Order and the notifications issued thereunder are deemed to have been passed under the Act of 1946 which is what learned Counsel contends, they could surely be modified.
amended or replaced by other subordinate legislation originating from the same parent Act.
The Indian Scrap Order, 1943 was one such, because it is deemed to have been made under that 332 Act.
When the Indian Scrap Order was extended to Madhya Bharat, the result was that it effectively replaced the Madhya Bharat Order on the same topic.
Even granting that the Madhya Bharat Scrap Order of June 4, 1949 was repealed on the extension to that territory of the Indian Scrap Order, Mr. Agarwala urged that the direction contained in the notification of the State Government dated August 26, 1949 was a special law which stood unaffected by the extension of the Indian Scrap Order to Madhya Bharat.
That when the Indian Scrap Order was extended it carried with it the notifications issued by the Controller from time to time and that after the extension of the Scrap Order to Madhya Bharat, all sales of scrap would have to be effected only in conformity with the prices fixed by the 'notifications issued under the Scrap Order was not contested.
Nor was it disputed that on the terms of the notifications issued fixing the prices at which several classes of dealers might effect sales tinder the Indian Scrap Order, the Association of which the appellant was the President would have fallen under column 11 and would have been bound to sell scrap only at the prices fixed in that column.
But it was submitted that the fact that even before the extension of the Indian Scrap Order to Madhya Bharat in September, 1950 tinder the very provisions of the notification dated June 4, 1949 itself the maximum prices fixed in Madhya Bharat were only those prescribed by the Controller in India and that the deviation in regard to these prices permitted to the Association was thus in effect a local modification of the Indian Order and that consequently the direction issued by the State Government on August 26, 1949 and which was continued even after the repeal of the Madhya Bharat Temporary Powers Act, 1948 by reason of the proviso to section 17 (4) of the Act 24 of 1946 was not affected by the extension of the Indian Scrap Order to Madhya Bharat.
We find ourselves unable to accept this argument.
The concession allowed to the Association by the notification dated August 26, 1949 could be looked at from one of two alternative positions.
The direction could be viewed as in effect a modification of the prices fixed under section 5 (1) of the Madhya Bharat Order by the Director so that in law it should be deemed to have been incorporated in that price fixation and became, as it were, the price fixed by the Controller.
The effect of this would be that in Madhya Bharat before the extension of the Indian Scrap Order, the maximum prices chargeable by the specified type of dealer falling under 333 column It would be those applicable to dealers in column III.
If this were the true position, the result would be that when the Indian Scrap Order was made applicable to Madhya Bharat without a saving or special provision as regards sales by the Association, it would supersede that law and the special classification effected by the Madhya Bharat law would cease to be in force.
In this respect the fact that the prices fixed in Madhya Bharat for sales by dealers etc., specified in the three column corresponded to those fixed by the Controller in India, would be wholly irrelevant, for the authority by which the fixation was effected would be traceable to Madhya Bharat and not the Indian law.
The other alternative would be that the notification dated August 26, 1949 was an independent piece of subordinate law making under the Essential Commodities Act and the Madhya Bharat Scrap Order, and it was this aspect that was stressed by Mr. Agarwala.
Even if that be so, the appellant would derive no advantage from this, because there has been t repeal not merely of the Madhya Bharat Essential Supplies Act no doubt with a saving but of the Madhya Bharat Scrap Order without a saving and on the repeal of the Scrap Order under which the Subordinate rule or regulation was effected the latter would also stand repealed.
As explained by Lord Reading C.J. in Watson vs Winch(1): "It has been long established that, when an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed) as if it had never existed. .
It would follow that any bye law made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bye law notwithstanding the repeal.
" Admittedly there is no saving clause either in the notification of the Central Government by which the Indian Scrap Order was extended to Madhya Bharat nor, of course, in the Scrap Order itself.
As the parent order under which the notification was made his been repealed without a saving the effect must be that the notification dated August 26, 1949 must, if it were held to be an independent subordinate legislation, be held also to have been repealed.
Mr. Agarwala next referred us to section 24 of the General Clauses Act No. X of 1897 and urged that the notifica (1) , 690.
334 tion would be a bye law that would have continued notwithstanding the repeal of the Madhya Bharat Scrap Order.
Section 24 of the General Clauses Act runs thus: "24.
Where any Central Act or Regulation, is after the commencement of this Act, repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or bye law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re enacted, continue in force and be deemed to have been made or issued under the provisions so re enacted, unless and until it is superseded by any appointment, notification, order scheme, rule form or by law, made or issued under the provisions so re enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5A of the Scheduled Districts Act, 1874, or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and reextended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re enacted in such area or part within the meaning of this section.
" We consider that this submission is entirely without force.
Mr. Agarwala fairly conceded that the language of section 24 would not cover a repeal of the Madhya Bharat Scrap Order by the introduction into the Madhya Bharat territory of the Indian Scrap Order.
1943, but he suggested that even though the section was in terms inapplicable, he could invoke the principle underlying it.
But this argument, however, proceeds on assuming that section 24 was declaratory of the common rule of interpretation and that even in the absence of section 24 the same principle of law would apply.
The position apart from a statutory provision such as is found in section 24 of the General Clauses Act, is thus summarised in Craies on Statute Lent, 6th Edn. 334: "If the statute under which bye laws are made is repealed, those bye laws are impliedly repealed and cease to have any validity unless the repealing statute contains sonic provision preserving the validity of the bye law notwithstanding the repeal.
This follows from the rule . when an Act of Parliament is repealed it must 335 be considered (except to transactions passed and closed) as if it had never existed." This submission has, therefore, no merit and must be rejected.
The second of the points urged by Mr. Agarwala was that the Scrap Dealers Association was an unincorporated body consisting wholly of retail dealers and that as each of them individually was a dealer who could himself have sold at the column M rate, the Association could not be penalised for selling at that rate.
As an unincorporated body, he submitted, it was merely the aggregate of its members and so would have the rights of its constituent units.
There is no force in this point either.
Apart from the definition of "person" in the General Clauses Act as including an unincorporated body of persons, what we are concerned with is not sales by individual dealers who composed the Association, but sales by and through the Association.
It was the Association that was given the facility of obtaining scrap at more favourable prices than dealers and it was that body which was subjected to control in the shape of having to sell what it had purchased from controlled sources at the prices specified in column II.
Lastly, it was faintly urged by Mr. Agarwala that the appel lant was merely the President of the Association and could not be held liable for the sales effected by its employees.
There was no dispute that the sales were by the Association and at prices fixed by that body.
It was also admitted that these prices were in excess of the prices specified for sales fixed for the Association.
under section 8 of the Essential Supplies (Temporary Powers) Act, 1946, "Any person who abets the contravention of any order. shall be deemed to have contravened that order." In the circumstances, we do not see bow this affords any defence to the appellant.
The result is that these appeals fail and are dismissed.
Appeals dismissed.

dataset_name: IN-Abs

summary:
The Indian Scrap Order, 1943, passed under the Defence of India Rules, was after the expiration of the said Rules, preserved by the Essential Supplies Act, 1946.
By (Central) Act 52 of 1950, the said Act was extended, inter alia to the Part B State of Madhya Bharat.
That State already had its corresponding law on the subject, namely, the Madhya Bharat Essential Supplies Act, 1948, under which the Madhya Bharat Scrap Order, 1949 had been issued.
While extending the Cen tral legislation to the Part B States, Act 52 of 1950 also laid down, in section 17(4) that the "corresponding law" in the State would stand repealed, with a proviso that the orders, directions etc., issued under the repealed law would continue.
The appellant who was President of the Scrap Dealers Association, Indore, was prosecuted under the allegation that the Association had sold scrap iron at rates higher than those fixed under the Indian Scrap Order.
The defence taken was that the prices at which the sales had been effected were those fixed by a notification dated 26th August, 1949 under the Madhya Bharat Scrap Order which continued in force.
The appellant was acquitted by the trial Court but was convicted by the High Court and appealed to the Supreme Court by special leave.
The contentions of the appellant were : (1) The Madhya Bharat Scrap Order had not been expressly repealed by the Indian Scrap Order and therefore it continued by force of the proviso to section 17(4) of the Act 52 of 1950, and, in any case, the notification dated 26th August, 1949, continued in force as an independent piece of subordinate legislation.
(2) The appellant as President of the Scrap Dealers Association which was an unincorporated body could not be held liable for a sale in excess of the authorised maximum price effected by a Munim or Munims of the Association.
HELD : (i) The Central notification by which the Indian Scrap Order was extended to Madhya Bharat, no doubt, did not expressly provide for the repeal of the Madhya Bharat Scrap Order, but the provisions of the two Orders were not identical and they could not, therefore, operate simultaneously.
It was therefore obvious that on the extension to Madhya Bharat of the Indian Scrap Order, the Madhya Bharat Scrap Order was repealed and replaced by the Indian law.
[331D].
(ii) The notification in question could not survive even if it was treated as an independent piece of subordinate legislation under the State law.
According to Craies, if the statute under which by laws are made is repealed, those bye laws are impliedly repealed and cease to have any validity unless the repealing statute contains some provision preserving the validity of the by laws, notwithstanding the repeal.
As the parent 324 order under which the notification dated August 26, 1949, was made had been repealed without a saving, the effect was that the said notification also stood repealed.
(333D; 333G H; 334H].
(iii) The definition of 'person ' in the General Clauses Act includes within that term an unincorporated body of persons.
In the present case it was the Association that was given the facility of obtaining scrap at more favourable prices than dealers, and it was that body which was subjected to control in the shape of having to sell what it had purchased from controlled sources at specified prices.
The argument could not be accepted that the Association as such could not be penalised for selling at unauthorised rates.
The appellant as President of the Association was liable to be convicted by virtue of section 8 of the Essential Supplies (Temporary Powers) Act, 1946 which made the abetment of contravention of any order under the Act, also an offence.
[335C D,E F].
Watson vs Winch.
and Craies on Statute Law.
6th Edn. 332, referred to.


judgement:
Appeal No. 401 of 1964.
Appeal by special leave from the judgment and order dated October 14, 1963, of the Mysore High Court in N.F.A. No. 139 of 1963 and M.F.A. No. 141 of 1963.
317 G. section Pathak and Dipak Datta Choudhri, for the appellant.
M. K. Nambiyar, and R. Gopalakrishnan, for respondent No. 1.
The Judgment of the Court was delivered by Wanchoo J.
This is an appeal by special leave against the judgment of the Mysore High Court in an election matter.
An election was held to the Bangalore South (Scheduled Castes) constituency in February 1962.
Four persons stood for election including the appellant and Munichinnappa respondent No. 1, who obtained the highest number of votes and was declared elected.
The appellant then filed an election petition challenging the election of respondent No. 1 on a number of grounds.
In the present appeal we are concerned only with one ground, namely, that respondent No. 1 was not a member of any of, the scheduled castes mentioned in the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as the Order).
Respondent No. 1 claimed that he belonged to the scheduled caste listed as Bhovi in the Order.
The appellant on the other hand contended that respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the Order and consequently respondent No. 1 could not stand for election from a scheduled caste constituency.
The Election Tribunal held that the caste mentioned as Bhovi in the Order was a subcaste amongst the Voddars and that only this sub caste was included in the Order and not the entire Voddar caste.
The Tribunal also held that respondent No. 1 did not belong to the sub caste of Bhovi and therefore was not eligible for standing as a candidate from the scheduled caste constituency.
Consequently the election was set aside and re election ordered by the Tribunal.
Respondent No. 1 went in appeal to the High Court and his contention was that he belonged to the scheduled caste Bhovi mentioned in the Order and was therefore entitled to stand for election from the scheduled caste constituency.
The High Court held that Voddar caste as such was not included in the Order, but considering the facts and circumstances in existence at the time when the Order was passed in 1950, the Bhovi caste mentioned therein was no other than Voddar caste.
It therefore allowed the appeal holding that respondent No. 1 being a Voddar must be held to be a member of the Bhovi caste mentioned in the Order and dismissed the election petition.
The High Court having refused leave to appeal, the appellant got special leave 318 from this Court, and that is how the matter has come up before US.
The main contention on behalf of the appellant is that a person is only entitled to stand for election from a scheduled caste constituency if he is a member of a caste specified in the Order and that it is not open to any one to claim that though he is not a member of a caste specified in the Order and is a member of some other caste, that other caste is included in the caste specified in the Order.
It is submitted that wherever a caste has more than one name, the Order specifies the other name in brackets and that even where a particular caste is spelt in more than one way, the Order has included in the same entry the various spellings of the same caste.
Therefore, as the caste Bhovi specified in the Order does not mention the caste Voddar in brackets thereafter, it was not open to the Tribunal to take evidence to the effect that Voddar caste is no other than the Bhovi caste.
It is therefore urged that the High Court was wrong in looking into the evidence that was produced before the Tribunal and then coming to the conclusion that the caste Bhovi mentioned in the Order was meant for the caste Voddar and that such evidence should not have been allowed by the Tribunal.
If such evidence had not been allowed the respondent who is a Voddar by caste could not stand for election for the Voddar caste is not mentioned in the Order at all.
Article 341 of the Constitution which deals with Scheduled Castes is as follows: "(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races, or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory,, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
" Clause (1) provides that the President may with respect to any State, after consultation with the Governor thereof, by public 319 notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State.
The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under article 341 after consultation with the Governor where it relates to such castes in a State.
Clause (2) then provides that Parliament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl.
(1) any caste, race or tribe or part of or group within any caste, race or tribe.
The power was thus given to Parliament to modify the notification made by the President under cl.
Further cl.
(2) goes on to provide that a notification issued under cl.
(1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl.
Clearly therefore article 341 provides for a notification and for its finality except when altered by Parliament by law.
The argument on behalf of the appellant is based on the provisions of article 341 and it is urged that a notification once made is final and cannot even be revised by the President and can only be modified by inclusion or exclusion by law by Parliament.
Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl.
(1) it is not open to any one to include any caste as coming within the notification on the basis of evidence oral or documentary, if the caste in question does not find specific mention in the terms of the notification.
It is therefore urged that the Tribunal was wrong in allowing evidence to show that Voddar caste was the same as the Bhovi caste mentioned in the Order and that the High Court was in error when it held on the basis of such evidence that Voddar caste was the same as the Bhovi caste specified in the Order and therefore respondent No. 1 was entitled to stand for election because he belonged to Voddar caste which was the same as the Bhovi cast.
It may be accepted that it is not open to make any modifica tion in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is.
also a part of caste A and therefore must be deemed to be included in caste A.
It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order [see Aray, (Mala) Dakkal (Dokkalwar) etc.].
Therefore, 320 generally speaking it would not be open to any person to lead evidence to establish that caste B (in the example quoted above) is part of caste A notified in the, Order.
Ordinarily therefore it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order.
But that in our opinion does not conclude the matter in the peculiar circumstances of the present case.
The difficulty in the present case arises from the fact (which was not disputed before the High Court) that in the Mysore State as it was before the re organisation of 1956 there was no caste known as Bhovi at all.
The Order refers to a scheduled caste known as Bhovi in the Mysore State as it was before 1956 and therefore it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentions the caste Bhovi as a scheduled caste.
It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956.
But when it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to courts to find out which caste was meant by Bhovi is to take evidence in that behalf.
If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste.
But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mentioned as Bhovi in the Order, one has to deter mine which was the caste which was meant by that word on its inclusion in the Order.
It is this peculiar circumstance therefore which necessitated the taking of evidence to determine which was the caste which was meant by the word 'Bhovi ' used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re organisation of 1956.
Let us then turn to the evidence which has been given in this case to prove that it was Voddar caste which was meant by the word Bhovi included in the Order.
In this connection reliance has been placed on a communication made to the then government of Mysore as far back as 1944 on behalf of Voddar caste and the Order of the then government of Mysore in February 1946.
It seems that a resolution was passed by the Voddar caste ,at a conference in July 1944 in which it was resolved that the 321 name of that caste be changed from Voddar to Bhovi.
This resolution was processed in the Secretariat.
Eventually an order was passed on February 2, 1946 in these terms: "Government are pleased to direct that the community known as 'Vodda ' be in future called 'Boyi ' in all Government communications and records.
" Since then it seems that in all government records the Voddar caste has been known as Boyi, for it is not disputed that Voddar and Vodda are the same.
It seems therefore reasonable to infer when the President made the Order in 1950 after consultation with the Rajpramukh of Mysore whom he was bound to consult under the Constitution before passing the Order with respect to the State of Mysore that the caste Vodda was included in the Order as Bhovi because of the Order of the then government of Mysore of February 1946.
We shall deal with the difference in spelling later but it does appear that the caste Voddar was not mentioned as such in the Order because the name of that caste was changed in 1946 for all government purposes by the Order of the then government of Mysore.
Therefore if the Order had mentioned the caste as 'Boyi ' there would have been no difficulty in holding that it meant the Voddar caste in view of the Order of the then Mysore Government of February 1946 to the effect that the Voddars had given up their original name and had changed it to Boyis from 1946.
It is however urged that the Order does not mention the caste Boyi but the caste Bholvi and that wherever there is a difference in spelling of the same caste, the Order has provided for that also; (see for example, Bhambi, Bhambhi, Shenva, Chenva; etc.).
Therefore when the Order provided the inclusion of the caste Bhovi therein it could not refer to Voddar caste, for the change of name that was sanctioned by the then government of Mysore in 1946 was from Voddar to Boyi.
Here again there is force in the contention that where the same caste was spelt differently, the different spellings have been provided in the Order as illustrated already. 'But the same difficulty which faced us in considering the question whether Voddar caste was meant by the caste Bhovi included in the Order arises when we consider the difference in spellings, for it is not in dispute that there was no caste known as Bhovi in the Mysore State as it existed in 1950 when the Order was passed.
As the President could not have included in the Order a non existent caste it means the word 322 'Bhovi ' relates to some caste in Mysore as it was before 1956 and we have therefore to establish the identity of that caste and that can only be done by evidence.
In that connection the High Court has held that ever since the Order of 1946, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same.
The High Court therefore has not attached any importance to the change in the English spelling in the peculiar circumstances of this case.
In this connection attention may be drawn to the notification of the then government of Mysore dated February 2, 1946 where Voddar caste is spelt in three ways in the same notification; at one place it is spelt as Voddara, at another place as Yoddar and at two places as Vodda.
It seems therefore that we cannot attach undue importance to the spelling in English in this case when we know that there was no specific caste known as Bhovi in Mysore State as it was before 1956 and we have to determine which was the caste which was meant by the use of that term in the, Order.
In this connection we may also draw attention to another copy of the same notification which was issued by another department of the Government.
In that copy Voddara has been spelt as Vaddara and Boyis as Bovis.
It seems to us therefore that the High Court was right in the peculiar circumstances of the present case in not attaching any importance to difference in spelling in English, and to treat Bhoviv as the same as Boyis.
We do not think it necessary to refer to the various census reports, which have been referred to by the Tribunal and the High Court for they only show bow the same caste has been differently spelt.
In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order.
We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out therefore which caste was meant by the word Bhovi as used in the Order.
But for this fact it would not have been open to any party to give evidence to the effect that (for example) caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies.
In this view of the matter, the appeal fails and is hereby dismissed with costs.
Appeal dismissed.

summary:
M, the candidate elected from Bangalore South (Scheduled Castes) constituency claimed to belong to Bhovi caste which was one of the Scheduled Castes mentioned in the Constitution (Scheduled Castes) Order, 1950, but in the election petition filed against him by the appellant it was alleged that he belonged to Voddar caste which was not men tioned in the Order and that therefore he was not entitled to stand for election from the Scheduled Caste constituency.
The Election Tribunal recorded evidence on behalf of M to the effect that the Voddar caste was none other than the Bhovi caste.
The Tribunal held on the basis of the evidence produced that Bhovi was a sub caste of the Voddar caste, that M did not belong to the Bhovi sub caste, and that therefore he was not entitled to stand from the constituency.
The High Court however held that although Voddar caste as such was not included in the order, yet considering the facts and circumstances in existence at the time when the Order was passed in 1950, the Bhovi caste mentioned therein was the game as the Voddar caste.
On this finding it dismissed the election petition.
The appellant filed an appeal before this Court by special leave.
It was contended on behalf of the appellant that : (1) the High Court was wrong in looking into the evidence that was produced before the Tribunal and then coming to the conclusion that the caste Bhovi mentioned in the Order was meant for the caste Voddar (2) the Tribunal should not have allowed evidence to be produced which would have the effect of modifying the Order which was exhaustive, and gave full particulars of each scheduled caste recognised by it including alternative names and alternative spellings.
HELD : From the evidence it was clear that in 1950 when the Order was passed there was no caste in the then Mysore State which was known as Bhovi.
The Order could not have intended to recognise a caste which did not exist.
It was therefore necessary to find out which caste was meant by the use of the name Bhovi and for that purpose evidence was rightly recorded by the Tribunal and acted upon by the High Court.
It is only in such extraordinary circumstances that evidence can be so recorded.
Generally speaking it would not be open to any person to lead evidence to establish that his caste includes or is the same as another caste which is notified in the Order.
[32OA G; 322F G].


judgement:
Criminal Appeal No. 191 of 1962.
Appeal by special leave from the judgment and order dated April 9, 10 and 12 of 1962 of the Gujarat High Court in Criminal Appeal No. 426 of 1961.
A. section R. Chari, and R. A. Gagrat, for the appellants.
H. R. Khanna, R. H. Dhebar and B. R. G. K. Achar, for the respondent.
The Judgment of the Court was delivered by Subba Rao J.
This appeal by special leave raises an interesting question involving the construction of section 34, read with section 301 of the Indian Penal Code.
The appellants who are 11 in number were accused Nos. 1 to 10 and 12 in the Sessions Court, Mehsana.
The case of the prosecution may be stated thus : In the village of Aithor there are about 300 houses of Kadva Patidars and about 15 to 20 houses of Leva Patidars.
On January 16, 1961, at about 8 P.m. seven persons, who are Leva Patidars, came to the chowk where there is a pan shop cabin of Girdhar Shanker.
These seven persons were, Rama Bhupta, Lakha Madha, Hira Punja, Jetha Nagar, Parshottam Prabhuva, Manor Madha and Gova Shiva.
At the same time the 12 accused also came to that place.
Accused 1 to 6 were each armed with a muzzle loading gun; accused 7, 288 8, 11 and 12 were armed with sticks; accused 9 and 10 were armed with dharias.
Accused I to 4 fired their guns and Rama Bhupta fell down and died near the door of the cabin of Girdhar.
Accused 5 and 6 fired their guns and Lakha Madha was injured.
Accused I fired his gun again and Jetha Nagar received injuries.
Accused 5 and 6 fired again and Hira Punja was injured.
Accused 7 to 12 were inciting accused 1 to 6 to kill all these persons.
Other specific acts were attributed to some of the accused.
The learned Sessions Judge held that Rama Bhupta was killed as a result of the firing by accused 1 to 4, that Lakha Madha was injured by the firing by accused 5 and 6, that Jetha Nagar was injured by the firing by accused 1, that Hira Punja was injured by the firing by accused 5 and 6, that accused 12 caused stick injuries to Lakha and that accused 8 caused injury on the tongue of Parshottam Prabhuva.
The Sessions Judge also held that the 12 accused constituted an unlawful assembly, but their common intention was not to kill Rama Bhupta but only Madha who was not present in the chowk.
He acquitted all the accused under section 302, read with section 149, of the Indian Penal Code, but convicted accused I to 4 under section 302, read with section 34, of the Indian Penal Code and sentenced them to imprisonment for life and to a fine of Rs. 2,000 each; lie convicted all the accused under section 324, read with section 149, of the Indian Penal Code for causing injuries to Hira Punja and others.
Accused 5 to 12 were also convicted under section 326, read with section 34, and section 324, read with section 149 and section 148, of the Indian Penal Code and they were sentenced to various periods of imprisonment and fine.
The accused preferred different appeals against their convictions and sentences and the State of Gujarat filed appeals against the acquittal of accused 5 to 12 under section 302, read with section 149, of the Indian Penal Code.
The State of Gujarat also filed a criminal revision for enhancing sentences passed against all the accused, but it did not file any appeal against the acquittal of accused I to 4 on the charge under section 302, read with section 149, of the Indian Penal Code.
The High Court convicted accused I to 4 under section 302, read with sections 301 and 34, of the Indian Penal Code and confirmed the sentence of life imprisonment passed on them, but set aside the fine imposed on them.
So far as the other accused i.e., accused 5 to 12, are concerned, they were convicted under section 302, read with sections 301 and 34, of the Indian Penal Code and also under section 302, read with section 149, of the said Code.
In the result, the High Court sentenced all the accused to imprisonment for life for the said offences.
289 It is common case that if the conviction of accused 1 to 4 tinder section 302, read with section 34 and section 301, of the Indian Penal Code, was set aside, all the accused would have to be acquitted in regard to the major offences.
It is also not disputed that if the conviction of accused I to 4 under the said sections was confirmed, the appeal filed by the other accused would fail.
The only question, therefore, is whether the conviction of accused I to 4 under section 302, read with sections 34 and 301, of the Indian Penal Code, was correct.
In the appeal Mr. Chari, learned counsel for the appellants, contends that accused I to 4 could not be convicted under section 302, read with section 34, of the Indian Penal Code, as there was no common intention to kill Rama, but Rama was killed under the mistake that he was Madba.
l A mistake by one or other of the accused, the argument proceeds, cannot possibly be "in furtherance of the common intention" of the accused.
He further argues that the provisions of section 301 of the Indian Penal Code cannot be invoked in the circumstances of the case.
To appreciate the argument of the learned counsel it would be convenient at this stage to note exactly the finding given by the High Court.
The High Court found that the common intention of the accused was to kill Madha, that accused 1 to 4 shot at Rama mistaking him for Madha, as Rama had dressed himself in the habiliments similar to those in which Madha used to dress himself and, therefore, the accused shot at Rama under the mistaken belief that be was Madha.
Section 34 of the Indian Penal Code reads "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." Section 34 was subject of judicial scrutiny in innumerable cases.
The expression "in furtherance of the common intention of all" was not in the original section, but was inserted in the section by section 1 of Act XXVII of 1870.
The Judicial Committee in Barendra Kumar Ghosh vs Emperor(1) defined the expression "criminal act" in the said section thus: "A criminal act means that united criminal behaviour which results in something for which an individual (1) Cal.
197 (P.C.) : L.R. 52 I.A. 40 290 would be punishable if it were all done by himself alone,that is, in a criminal offence.
" The Judicial Committee in Mahbub Shah vs King Emperor(1) laid down the following 'conditions for its application: "To invoke the aid of section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.
This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre arranged plan.
As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.
" It is, therefore, clear that the criminal act mentioned in section 34 of the Indian Penal Code is the result of the concerted action of more than one person; if the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself.
The question is what is the meaning of the expression "in furtherance, of the common intention".
The dictionary meaning of the word "furtherance" is "advancement or promotion".
If four persons have a common intention to kill A, they will have to do many acts in promotion or prosecution of that design in order to fulfill it.
Some illustrations will clarify the point.
Four persons intend to kill A, who is expected to be found in a house.
All of them participate in different ways.
One of them attempts to enter the house, but is stopped by the sentry and he shoots the sentry.
Though the common intention was to kill A, the shooting of the sentry is in furtherance of the said common intention.
So section 34 applies.
Take another illustration.
If one of the said accused enters the room where the intended victim usually sleeps, but somebody other than the intended victim is sleeping in the room, and on a mistaken impression he shoots him.
The shooting of the wrong man is in furtherance of the common intention and so section 34 applies.
Take (1) L.R. 72 I.A. 148, 153.
291 a third variation of the illustration.
The intended victim has a twin brother who exactly resembles him and the accused who is entrusted with the part of shooting the intended victim, on a mistaken impression, shoots the twin brother.
The shooting of the twin brother is also in furtherance of the common intention.
Here also section 34 applies.
If that much is conceded we do not see any justification why the killing of another under a mistaken impression of identity is not in furtherance of the common intention to kill the intended victim.
When the accused were shooting at Rama believing him to be Madha, they were certainly doing a criminal act in furtherance of the common intention which was to kill Madha.
They killed Rama because they believed that they were shooting at Madha.
Mr. Chari argues, how can a mistake committed by one of the accused be in furtherance of a common intention ? For it is said that to commit a mistake was not a part of the common intention of the accused.
But the question is not, as we have pointed out, whether the committing of a mistake was a part of the common intention, but whether it was done in furtherance of the common intention.
If the common intention was to kill A and if one of the accused kills B to wreak out his private vengeance, it cannot possibly be in furtherance of the common intention for which others can be constructively made liable.
But, on the other hand if he kills B bona fide believing that he is A, we do not see any incongruity in holding that the killing of B is in furtherance of the common intention.
We, therefore, hold that without the aid of section 301 of the Indian Penal Code it can be held that when accused I to 4 shot at Rama they shot at him in furtherance of their common intention to kill Madha.
Now let us see the impact of section 301 of the Indian Penal Code on section 34 thereof.
Section 301 reads: "If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.
" This section deals with a different situation.
It embodies what the English authors describe as the doctrine of transfer of malice or the transmigration of motive.
Under the section if A intends to kill B, but kills C whose death he neither intends nor knows himself to be likely to cause, the intention to kill C is by law 292 attributed to him.
If A aims his shot at B, but it misses B either because B moves out of the range of the shot or because the shot misses the mark and hits some other person C, whether within sight or out of sight, under section 301, A is deemed to have hit C with the intention to kill him.
What is to be noticed is that to invoke section 301 of the Indian Penal Code A shall not have any intention to cause the death or the knowledge that he is likely to cause the death of C.
In the instant case this condition is not complied with.
The accused shot at a particular person with the intention of killing him though under a misapprehension of his identity.
In that case, all the ingredients of sections 299 and 300 of the Indian Penal Code are complied with.
The aid of section 301 of the Indian Penal Code is not called for.
We are, therefore, of the opinion that section 301 of the Indian Penal Code has no application to the present case.
For the foregoing reasons we hold that all the accused are liable under section 302, read with section 34, of the Indian Penal Code.
If we reach this conclusion, it is conceded that no other point arises in this appeal.
The appeal fails and is dismissed.
Appeal dismissed.

summary:
Where four persons shot at the deceased with the intention of killing him but under a misapprehension that he was some one else they could be found guilty of an offence under section 302 of the Indian Penal Code, read with section 34 of the Code.
It would be a case of killing the deceased in furtherance of their common intention to kill the other, and there would not be any necessity to invoke section 301 of the Code to find them guilty.
In fact that section would apply only to cases where there was, no intention to cause the death, or knowledge that death was likely to be caused, of the deceased.
[291D E, H; 292A B].
Barendra Kumar Ghosh vs Emperor, L.R. 52 I.A. 40 and Mahbub Shah vs King Emperor, L.R. 72 I.A. 148 referred to.


judgement:
ivil Appeal No. 799 of 1963.
Appeal by special leave from the judgment and decree dated March 1, 1961 of the Allahabad High Court in Special Appeal No. 205 of 1958.
section P. Varmaa for the appellant.
C. B. Agarwala, O. P. Rana and Atiqur Rehman, for the respondents.
337 The Judgment of the Court was delivered by Subba Rao J.
This appeal by special leave raises the ques tion of the scope of the retrospective operation of the U.P. Agricultural Income tax (Amendment) Act, 1956 (U.P. Act No. 14 of 1956).
The facts are simple and they are as follows: On January 10, 1953, for the assessment year 1952 53, the Additional Collector, Banaras, assessed the appellant to agricultural income tax under the U.P. Agricultural Income tax Act, 1948 (U.P. Act 3 of 1949).
On February 9, 1956, U.P. Agricultural Income tax (Amendment) Ordinance, 1956 (2 of 1956) was passed enacting that the word "Collector" shall always be deemed to include Additional Collector.
That Ordinance was later replaced by the U.P. Agricultural Income tax (Amendment) Act 14 of 1956.
On an application filed by the appellant, the Collector by his order dated May 9, 1956, revoked his earlier order and directed the Additional Collector to proceed to assess the appellant in accordance with law.
Thereupon, the Additional Collector resumed proceedings and on June 7, 1956, passed a fresh assessment order imposing a tax of Rs. 42,761 on the appellant, and on July 4, 1956, he issued a notice to the appellant for payment of the tax.
On August 7, 1956, the appellant filed a petition under article 226 of the Constitution in the High Court of Judicature at Allahabad for quashing the order of assessment and the notice issued pursuant thereto.
The petition was heard, in the first instance, by Tandon J., who dismissed the same with costs.
The appeal preferred by the appellant against that order to a Division Bench was also dismissed.
Hence the present appeal.
Mr. section P. Varma, learned counsel for the appellant contended that (i) the respondent 's right to assess the appellant to tax was barred by limitation and, therefore, the Act could not have the effect of reviving the said right; and (ii) the amount of malikhana could not be in law the subject matter of assessment.
The second point was not raised in the High Court.
We did not permit the learned counsel to raise the point for the first time before us.
The first point turns upon the relevant provisions of Act 3 of 1.949 and Act 14 of 1956.
Under Act 3 of 1949 the defi nition of "Collector" did not include "Additional Collector".
Act 14 of 1956 received the assent of the Governor on April 17, 1956, and was published in the U.P. Gazette (Extraordinary) 338 dated May 19, 1956.
Section 2 of Act 14 of 1956 reads: "In section 2 of the U.P. Agricultural Income Tax Act, 1948 (hereinafter called the Principal Act), for clause (4), the following shall be and be deemed always to have been substituted "(4 a) 'Collector ' shall have the meaning as in the U.P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act.
" Section 11 of the Act reads "Where before the commencement of this Act any Court or authority has, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector or Additional Assistant Collector incharge of a sub division merely on the ground that the assessing authority had no jurisdiction to make the assessment, any party to the proceedings may, at any time within ninety days from the date of commencement of this Act apply to the Court or authority for a review of the proceedings in the light of the provisions of this Act, and the Court or authority to which the application is made shall review the proceedings accordingly and make such order, if any, varying or revising the order previously made, as may be necessary to give effect to the provisions of the Principal Act as amended by sections 2 and 8 of this Act.
" A combined reading of the said provisions establishes that if an application for review was filed within the time prescribed, the previous proceedings would be restored and the parties would be relegated to the position which they had occupied before the proceedings were quashed on the ground of want of jurisdiction.
In this case proceedings were initiated by the Additional Collector on January 10, 1953, for the purpose of assessing the appellant for the assessment year 1952 53.
There was no flaw in the said proceedings except that the Additional Collector was not authorized by Act 3 of 1949, as it then stood, to make the said assessment.
The, Collector quashed those proceedings by his order dated November 26, 1955.
After the amending Act was passed, within 90 days therefrom the appropriate income tax authority had filed an application before the Collector to review his order.
The Collector reviewed the order and 339 set aside the same.
The result was that the proceedings before the Additional Collector were restored.
As by the amendment the Additional Collector must be deemed to have been the Collector from the inception of the Principal Act itself, the said proceedings must be deemed to have been initiated before the proper authority under the Principal Act.
In this view no question of limitation could possibly arise, for the proceedings were initiated in time and must be deemed to have been pending throughout and the fresh assessment was made in the said proceedings.
The decisions cited by the learned counsel are really beside the mark.
He relied upon the judgments of this Court in section C. Prashar vs Vasantsen(1), and Commissioner of Income tax Bihar vs Lakhmir Singh(2).
One of the questions raised in those cases was whether an amending Act revived a remedy which had become barred before the amendment was introduced.
That aspect of the question has no relevance to the present enquiry.
Here we are dealing with an Act whose constitutionality is not questioned.
It has expressly conferred power on the appropriate authority to review its previous order if an application was filed within the time prescribed.
When once that power of review was exercised, the proceedings were reopened.
In this view, no question of the application of an amending Act to a barred claim would arise.
In the result we hold that the order of the High Court is correct and dismiss the appeal with costs.
Appeal dismissed. (1) [1964] 1 S.C.R. 29.
(2) [1964] 1 S.C.R. 148.

summary:
The appellant was assessed to agricultural income tax by the Assistant Collector, Banaras, U.P. Act 3 of 1949, under which assessment was made, mentioned only the 'Collector ' a.,, competent to make assessment.
The assessment made by the Assistant Collector was therefore set aside by the Collector.
Subsequently the law was amended by U.P. Act 14 of 1956 to provide that the word 'Collector ' would include 'Assistant Collector ' and that the Collector could review his earlier orders quashing assessments on the ground of want of jurisdiction, if application for review were made to him by any of the parties within 90 days of the coming into force of the amendment.
Such application having been filed in the appellant 's case, the Collector set aside his earlier orders quashing the assessment, and the Assistant Collector made a fresh assessment.
The fresh assessment was challenged by the appellant by writ petition in the High Court and having failed there, The appellant came to the Supreme Court by special leave.
It was contended on behalf of the appellant that the assessment made by virtue of the provisions of the amending Act was barred by limitation because the retrospective operation of the provisions relating to jurisdiction would not extend the time for making the assessment.
HELD : The Collector 's order on the review application had the effect of restoring the earlier proceedings.
No question of limitation could possibly arise, for those proceedings were initiated in time and must be deemed to have been pending throughout, and the fresh assessment was made in those very proceedings.
[339 A B].
section C. Prashar vs Vasantsen, ; and Commissioner of Income tax, Bihar vs Lakhmir Singh, A.I.R. , held inapplicable.