judgement:
Civil Appeal Nos.
2780 2782 of 1977.
Appeals by Special Leave from the Judgment and Order dated 22 8 1977 of the Madras High Court in C.R.P. Nos.
559 561/77.
K. Parasaran, Solicitor General of India and A.V. Rangam for the Appellant.
T.S. Krishnamurthy Iyer, section Srinivasan and A.T.M. Sampath for the Respondent.
The Judgment of the Court was delivered by SHINGHAL, J.
These appeals by special leave are directed against a common judgment of the Madras High Court dated August 22, 1977, in three revision petitions against the orders of the State Transport Corporation, Madras, dated February 16, 1977, by which the High Court allowed the revision petitions and remitted the cases to the Regional Transport Authority for fresh consideration in the light of its observations.
The High Court directed further that the revision petitioners before it as well as the present appellant Corporation would continue to provide transport facilities on the route in question until the disposal of the renewal applications of the revision petitioners.
The facts of the three appeals are quite simple and are not in controversy.
They have been heard together at the instance of the learned Counsel for the parties and will be disposed of by this common judgment.
The controversy relates to the plying of vehicles on the Salem Krishnagiri route.
The facts of one of the three cases have been placed for our consideration by the learned Counsel for the parties and they have informed us that they are sufficient for the adequate disposal of all the appeals.
Balkrishna Bus Service and Company, respondent No. 2, was a private operator on the aforesaid route.
Its permit was due to expire on October 9, 1974, and it applied for its renewal within the time 71 prescribed by law.
Its application was notified on June 5, 1974, under section 57(3) of the , hereinafter referred to as the Act.
Objections to the renewal application were filed by the Anna Transport Corporation Limited, which is the present appellant, on June 25, 1974.
The Corporation, at the same time, also applied for the grant of a permit to it.
A controversy therefore arose in the matter and the Regional Transport Authority fixed December 21, 1974, for its hearing.
The case was, however, adjourned.
Balakrishna Bus Service and Co., in the meantime, filed a writ petition and challenged the validity of rule 155 A of the Motor Vehicle Rules of the State and obtained a stay of the hearing of the matter which was pending before the Regional Transport Authority.
A draft scheme for the route from Mettur to Kallakurchi via Omalur and Salem was published on June 4, 1976, and it formed a sector of the Salem Krishnagiri route.
The validity of aforesaid Rule 155 A was finally upheld by the High Court on June 29, 1976.
It therefore dismissed the writ petition and directed the Regional Transport Authority to dispose of the pending application for renewal within a month.
The Regional Transport Authority rejected that application on October 30, 1976, and granted a permit to the present appellant.
The State Transport Appellate Tribunal confirmed that order.
The matter was taken to the High Court in revision and that led to the passing of the impugned judgment.
The facts are, therefore, quite simple.
There is no controversy about them, and they are sufficient for the disposal of the present appeals by special leave.
It is not disputed before us that the section applicable to the controversy is section 68F of the Act.
The High Court, in fact, not only decided the revision petitions with reference to that section but rightly took the view that the controversy before it fell within the purview of sub section (1D) thereof.
It, however, held on a reading of this Court 's decision in Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr.,(1) that the case fell within the purview of the so called "rider" to proposition No. 2 set out in that judgment with reference to the proviso to sub section (1D) of section 68F of the Act.
The sub section reads as follows, (1D) Save as otherwise provided in sub section (1A) or subsection (1C) no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class 72 of road transport service in relation to an area or route or portion thereof covered by such scheme: Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under section 68C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub section (3) of section 68D.
It is not in controversy that sub section (1A) or sub section (1C) of section 68F are not applicable to the controversy.
The rest of sub section (1D) provides that no permit shall be granted or "renewed" during the period intervening between the date of publication under section 68C of any scheme and the date of publication of any approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by that scheme.
As has been stated, a draft scheme of road transport service of the appellant Corporation was published on June 4, 1976, under section 68C of the Act and, as has been mentioned, that scheme overlapped a section of the Salem Krishnagiri route.
It follows, therefore, that by virtue of the clear provision of sub section (1D) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the aforesaid scheme under section 68C, that is, after June 4, 1976, and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service.
The High Court therefore clearly went wrong in thinking that the case fell within the purview of the proviso to sub section (1D) and it consequently erred in taking into consideration the so called rider to proposition No. 2 mentioned in this Court 's judgment in Cheran 's case (supra).
The proviso would have been applicable only if the period of operation of the permit of the respondents had expired after the publication of the scheme prepared under section 68C; but that was not so in this case.
It has also to be remembered that in this case it was the respondent (private operator) who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order.
On a plain reading of sub section (1D) of section 68F of the Act, we have therefore no hesitation in allowing the appeals with costs.
We may however add that if no approved or modified scheme has been published so far, the proper course for the Regional Transport Authority would be to keep the three renewal applications pending and not to treat them as dismissed.
The stay orders are vacated.
N.V.K. Appeals allowed.

summary/full:
Section 68F(1D) of the provides that no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by that scheme.
Respondent No. 2 was a private operator operating a Stage carriage route.
Its permit was due to expire on October 9, 1974 and it applied for its renewal.
The application was notified on June 5, 1974 under section 57(3) of the .
Objections to the renewal application were filed by the appellant Corporation on June 25, 1974 which also simultaneously applied for the grant of a permit to itself.
The Regional Transport Authority fixed December 21, 1974 for hearing and the case was adjourned.
In the meanwhile, respondent No. 2 filed a Writ Petition and challenged the validity of Rule 155A of the Motor Vehicles Rules and obtained stay of the hearing of the matter which was pending before the Regional Transport Authority.
The validity of the said rule was upheld by the High Court and the writ petition was dismissed.
A draft scheme of road transport service of the appellant corporation was published on June 4, 1976 under section 68C of the Act and that scheme overlapped a section of the route operated by respondent No. 2.
The Regional Transport Authority rejected the application of respondent No. 2 on October 30, 1976 and granted a permit to the appellant, which order was confirmed by the State Transport Appellate Tribunal.
The High Court, however in revision took the view that the matter fell within the purview of sub section (1D) of section 68, but held on a reading of the decision in Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr. ; , that the case fell within the purview of the "rider" to proposition No. 2 set out in that judgment with reference to the proviso to section (1D) of section 68F of the Act and allowed the revision petitions.
Allowing the appeals to this Court, ^ HELD: (i) By virtue of the clear provision of sub section (1D) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the scheme under section 68C, and the date of publication of the approved or modified scheme, in favour of any person in any class of road transport service.
[72E] 70 (ii) The High Court clearly went wrong in thinking that the case fell within the purview of the proviso to sub section (1D) and it consequently erred in taking into consideration the so called rider to proposition 2 mentioned in the judgment in Cheran 's case.
[72F] (iii) The proviso would have been applicable only if the period of operation of the permit of the respondent had expired after the publication of the scheme prepared under section 68C; but that was not so in this case.
[72F] In the instant case, it was respondent No. 2 who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order.


judgement:
Civil Appeal No. 1950 of 1979 From the Judgment and Order dated 24 4 1979 of the Andhra Pradesh High Court in Election Petition No. 8/78.
Govindan Nair and A. Subba Rao for the Appellant.
P. P. Rao, T. Ramachandran, K. Ramkumar and Venkataramani for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal by Shri Thammanna is directed against a judgment, dated April 24, 1979 of the High Court of Andhra Pradesh, whereby the election petition filed by Shri V. Krishna Reddy, respondent 7 herein, against the returned candidate, Shri K. Veera Reddy (Respondent 1 herein) was dismissed.
The material facts are these: In the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 respondents 1 to 4, 6, 7 and the appellant filed their nominations for Amarchinta Assembly Constituency.
Polling took place on February 25, 1978 and Shri K. Veera Reddy, respondent 1, was declared elected on February 27, 1978.
He secured 34727 votes while his nearest rival, respondent 2, got 29,419 votes.
The appellant obtained 822 votes only.
Shri V. Krishna Reddy, (Respondent 7 herein), being a voter for 198 Amarchinta Assembly Constituency in Mahabubnagar District filed an election petition in the High Court to get the election of the first respondent declared void on the ground that on the date of filing the nomination paper as well as on the date of the election, this respondent had subsisting contracts with the Government of Andhra Pradesh and as such, he was under Section 9A of the Representation of the People Act, 1950 (hereinafter referred to as the Act) disqualified to be chosen to fill the seat.
All the candidates who had filed their nominations, were joined in the election petition as respondents.
The appellant was impleaded as original respondent 5.
The election petition was contested by respondent 1, (K. Veera Reddy) only.
The appellant (i.e. original Respondent 5) did not file any written statement.
He did not lead any evidence, nor did he cross examine the witnesses produced by respondent 1 or the Election Petitioner.
He did not participate even in the arguments.
A preliminary objection has been raised by the learned counsel for respondent 1.
It is submitted that Shri Thammanna is not competent to maintain this appeal, because he does not fulfil the character 76 of a "person aggrieved" by the judgment of the High Court.
It is emphasised that it was not necessary for the election petitioner to join Shri Thammanna as a respondent because no relief was claimed against him; that he was impleaded as respondent 5 only as a matter of form that he did not participate in the proceedings before the High Court; nor joined issue with Respondent 1.
It is pointed out that according to the judgment of the High Court, the contest was only between the Election Petitioner and Respondent 1, while the original Respondents 2 to 7, including Thammanna, were proceeded against ex parte.
In short, the objection is that since the appellant could not be said to be a party adversely affected by the judgment of the High Court, he has no locus standi to prefer this appeal.
In reply, Shri Govindan Nair, learned counsel for the appellant submits that Shri Thammanna was not a mere proforma respondent but was a person who was entitled to apply and join as a party under Section 86(4) of the Act within fourteen days from the date of commencement of the trial and subject to any order as to security for costs.
Such a person is entitled under the law by virtue of his status as a party respondent to file an appeal against the decision of the High Court, if he feels aggrieved by the same.
The very fact that the original respondent 5, has filed this appeal shows that he is a person aggrieved by the decision of the High Court, dismissing the Election Petition.
It is maintained that the mere fact that the appellant did not file any written statement or participate actively in proceedings before the High Court, or that the Election Petitioner has not joined him as a co appellant, is not sufficient to deny him the status of a "person aggrieved".
It is argued that in an election petition, the petitioner is not the dominus litis but acts as a representative of the whole body of electors in the constituency, that is why an election petitioner cannot at his sweet will abandon the election petition or withdraw from it without complying with the procedure prescribed, and if he does so, in view of sections 109 and 110 of the Act, the Court can allow another voter or respondent to continue the petition.
According to the counsel, since an appeal is only a re hearing of the original petition any party to the original proceedings who feels aggrieved, is entitled, in accordance with the principle underlying Sections 108 and 109 of the Act, to file an appeal, even if the original Election Petitioner neglects or abstains from doing so.
Shri Nair further submits that the High Court has wrongly stated that the appellant (being original respondent 5) was also proceeded against ex parte; that, in fact, the appellant was present in the High Court on most of the dates of hearing, although he remained quiescent. 77 In the alternative, it is submitted that if it is assumed that the appellant was proceeded against ex parte in the High Court, the final determination in the impugned judgment will be deemed to be in the nature of an ex parte decree against him.
In that view of the matter also, according to the learned counsel, the appellant has the necessary locus to maintain this appeal, against that ex parte determination.
In support of his contention, Shri Nair has referred to K. K. Kamaraja Nadar vs Kunju Thevan and Ors(1), Inamati Mallappa Basappa vs Desai Basavaraj Ayyappa & Ors.(2), A. Sreenivasan vs Election Tribunal, Madras(3) and Adi Pherozshah Gandhi vs H. M. Seervai, Advocate General of Maharashtra, Bombay.(4) Before dealing with the contentions advanced on this preliminary point, let us have a look at the relevant provisions of the Act and the Code of Civil Procedure.
Section 87(1) of the Act lays down that every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits.
In other words the provision of the Code of Civil Procedure apply to the trial of an election petition only where there is no express provision in the Act and there is no inconsistency with the Act.
Section 98 indicates the categories of orders which the High Court may make at the conclusion of the trial of an election petition.
Such an order may be an order "(a) dismissing the election petition, or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
" Section 99 requires that the High Court shall at the time of making an order under Section 98 in the case where any charge of corrupt practice having been committed at the election is proved, make a further order naming the person or persons guilty of the corrupt practice and also paying costs.
Section 116A runs thus: "Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court 78 on any question (whether of law or fact) from every order made by a High Court under Section 96 or Section 99.
" Sub section (2) prescribes a period of thirty days limitation within which such an appeal is to be preferred.
In this context Section 116C may also be seen.
It reads as follows: "116C(1) Subject to the provisions of this Act and of the rules, if any, made thereunder, every appeal shall be heard and determined by the Supreme Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from any final order passed by a High Court in the exercise of its original civil jurisdiction; and all the provisions of the Code of Civil Procedure, 1908 and the Rules of the Court (including provisions as to the furnishing of security and the execution of any order of the Court) shall, so far as may be, apply in relation to such appeal.
" It may be seen that although Section 116A confers a right of appeal from an "order" made under Section 96 or 99, and Section 116C from "any final order" passed by the High Court in proceedings in an election petition, neither of these two sections mentions or catalogues the person or persons who have a right of appeal against such orders.
Barring the exceptional provision in Section 116A, which marks a departure from the Code of Civil Procedure, Section 116C is substantially analogous to Section 96(1) of the Code of Civil Procedure, 1898 which provide "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorized. " Just as the term "decree" in Section 96(1) of the Code means an adjudication which "conclusively determines all or any of the matters in controversy in the suit", the expression "any final order" as used in Section 116C of the Act contemplates a conclusive determination of all or any of the matters in controversy in the election petition between the parties.
Clauses (a), (b) and (c) of Section 98 illustrate such "final orders" which have been made appealable under Section 116C of the Act.
In the instant case, the order sought to be impeached in this appeal is of the category mentioned in clause (a) of Section 98 of the Act.
Section 98 also does not specifically mention as to who can appeal against the final orders mentioned therein.
Section 116C of the Act makes the Code of Civil Procedure applicable to the hearing and determination of appeals filed under the Act.
Since the substance and principle embodied in Section 96(1) of 79 the Code is not inconsistent with anything in the Act, we may legitimately look for guidance to Section 96 (1) and other provisions of the Code and also the general principles which govern the right of appeal thereunder.
This being the position, the basic conditions and postulates which govern the right of appeal under Section 96(1) of the Code will apply to an appeal under Section 116C of the Act, also.
As a general proposition, therefore, it may safely be stated that before a person is entitled to maintain an appeal under Section 116C, all the conditions mentioned below, must be satisfied: (1) that the subject matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition, (2) that the person seeking to appeal has been a party in the election petition, and (3) that he is a "person aggrieved", that is a party who has been adversely affected by the determination.
In the present case, these conditions, particularly Nos. (1) and (3), have not been fulfilled.
Before the High Court the appellant did not, at any stage, join the contest.
He did not file any written statement or affidavit.
He did not engage any counsel.
He did not cross examine the witnesses produced by the Election Petitioner and the contesting respondent 1.
He did not appear in the witness box.
He did not address any arguments.
In short, he did nothing tangible to participate in the proceedings before the High Court.
It was not obligatory for the Election Petitioner to join the appellant as a respondent.
There were no allegations or claims in the election petition which would attract Section 82 of the Act.
From that point of view, the appellant was not a necessary party to be impleaded.
Of course, if the appellant had made an application within the time prescribed, in compliance with Section 86(4) of the Act, the Court would have been bound to join him as a respondent.
But the question of Section 86 (4) coming into play never arose as the Election Petitioner had already impleaded the appellant as Respondent 5 in the election petition.
Even so, Respondent 5 did not join the controversy.
He neither joined issue with the contesting respondent 1, nor did he do anything tangible to show that he had made a common cause with the Election Petitioner against Respondent 1.
In fact, the only parties between whom the matters in controversy were at issue, were the Election Petitioner and Respondent 1.
The other respondents, including the appellant, did not participate or side with either contestant in that controversy.
80 Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case, nevertheless, normally "a 'person aggrieved ' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something." (As Per James L. J. in Re Sidebothem referred to by this Court in Bar Council of Maharashtra vs M.V. Dabholkar(1) and J. N. Desai vs Roshan Kumar.(2) In the face of the stark facts of the case, detailed above, it is not possible to say that the appellant was aggrieved or prejudicially affected by the decision of the High Court, dismissing the election petition.
We are further unable to accept the wide argument, that since an election petition is in the nature of a representative action on behalf of the whole body of electors in the constituency, on neglect or failure of the election petitioner to file an appeal against the order of dismissal of his election petition, any other elector, particularly who is a respondent in the election petition, can, in view of Sections 109/110 of the Act, be substituted for him for the purpose of filing and continuing the appeal.
It is true that an election petition once filed cannot be abandoned or withdrawn by the petitioner at his sweet will.
Section 109 provides: "(1) An election petition may be withdrawn only by leave of the High Court.
(2) Where an application for withdrawal is made under sub section (1) notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the Official Gazette.
" Section 110 provides the procedure for withdrawal of an election petition.
Its sub section (2) mandates that "no application for withdrawal shall be granted if, in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed".
Sub section (3) lays down that if the application for withdrawal is granted, the petitioner shall be ordered to pay the whole or part of the costs incurred by the respondent.
It further requires that notice of withdrawal shall be published in the Official Gazette.
Clause (c) of Sub section (3) is material.
It provides that any person who might himself have been a petitioner, may within 81 fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and on compliance with the conditions as to security, shall be entitled to be substituted and continue the proceedings upon such terms as the High Court may deem fit.
Section 111 provides for report of the withdrawal by the High Court to the Election Commission.
Section 112(1) provides for abatement of election petition on death of the sole petitioner.
Sub section (2) requires the fact of abatement to be published.
Sub section (3) entitles any person who might himself have been a petitioner to apply and be substituted in place of the deceased to continue the proceeding upon such terms as the High Court may think fit.
Section 116 makes a similar provision on the death of a respondent.
As pointed out in Bijayananda Patnaik vs Satrughna Sahu(1), the principle behind these provisions is that "an election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections.
The public of the constituency also is substantially interested in it, as an election is an essential part of the democratic process.
That is why provision is made in election law circumscribing the right of the parties thereto to withdraw.
Another reason for such provision is that the citizen 's at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices.
That is why provision is made for substituting any elector who might have filed the petition in order to preserve the purity of elections.
" But it is equally clear from the language, setting and scheme of the provision in Sections 109 to 116, that they do not, either, in terms, or, in principle, apply to appeals or the procedure to be followed at the appellate stage before the Supreme Court.
Firstly, these provisions are to be found in Chapter IV, under the main caption : `WITHDRAWAL AND ABATEMENT OF ELECTION PETITIONS '.
Then, the provisions of these sections, also, repeatedly refer to the withdrawal or abatement of `election petitions ' and also to procedure in respect thereof before the `High Court '.
The provision relating to Appeals in Sections 116A, 116B and 116C, have been included separately, in Chapter `IV A ', captioned "APPEALS".
Secondly, Section 116C, as already noticed, enjoins upon the Supreme Court to hear and determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court.
No doubt, this is, "subject to the provisions of the Act the rules if any, made thereunder".
But this clause 82 only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded expressly or by necessary implication by any provision of the Act.
There is no provision in Chapter IV A of the Act, analogous to Sections 109 to 116 of the Act, which curtails, restricts or fetters an appellant 's right to withdraw an appeal.
Nor is there any such provision in the Code or the Rules of this Court which does so.
If the intention of the Legislature was that the provision of Sections 109 to 116 which apply to the withdrawal of election petitions should also govern the withdrawal of appeals, there was no difficulty in inserting similar provisions in Section 116C or elsewhere in Chapter IV A.
In this view we are fortified by the decision of this Court in Bijayananda Patnaik 's case (ibid).
In that case the provisions of Sections 116 A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration.
The facts were that one S filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly.
On the appellant, B 's application, the Tribunal dismissed the petition under Section 90(3), for non compliance with the provisions of Section 82 of the Act.
S went in appeal under Section 116 A to the High Court.
Subsequently, S applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal.
In appeal by special leave, this Court held that S had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so.
In this connection, the observations made by Wanchoo, J. (as he then was), speaking for the Court, at page 547 of the Report, are apposite and may be extracted : "When sub section (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions of the Act, it means that the provision must be an express provision in the Act or such as arises by necessary implication from an express provision. .
There is however, no express provision in Chap.
IV A dealing with appeals, which deals with the question of withdrawal of appeals under that Chapter.
Nor do we think that sections 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed.
One reason for this view may at once be stated.
The losing party is not bound to file an appeal and if he does not, nobody else has the right to do so.
The 83 object apparently is that the election petition filed should, if any voter so desires, be heard and decided.
The sections dealing with substitution on death of the petitioner lead to that view : see sections 112 115.
There is no such provision for appeals.
It seems to us that if Parliament intended that the provisions of sections 109 and 110 which deal with withdrawal of election petitions before a tribunal shall also apply to withdrawal of appeals before the High Court under Chap.
IV A an express provision could have been easily made to that effect in section 116 A by adding a suitable provision in the section that the provisions of sections 109 and 110 would apply to withdrawal of appeals before the High Court as they apply to withdrawal of election petitions before the tribunal.
In the absence of such a provision in Chap.
IV A, we do not think that the High Court was right in importing the principles of sections 109 and 110 in the matter of withdrawal of appeals before the High Court.
So far therefore as the question of withdrawal of appeals before the High Court under Chapter IV A is concerned, it seems to us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would have in the matter of withdrawal of an appeal from an original decree passed by a civil court within the local limits of its civil appellate jurisdiction without any limitation on such powers because of sections 109 and 110.
The High Court thus has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under section 116 A as in the matter of an appeal from an original decree before it, and there is no warrant for importing any limitation in the matter on the analogy of sections 109 and 110 of the Act, which expressly deal only with election petitions and not with appeals under section 116 A." On the above reasoning, it was further held that the provisions regarding withdrawal applicable to ordinary Civil Appeals before the High Court are applicable, also, to appeals under Section 116 A. Under Order XXIII, Rule 1(1) of the code of Civil Procedure, an appellant has the right to withdraw his appeal unconditionally, and if he is to make such application, the High Court has to grant it.
If an appellant, who is an aggrieved person under Section 116 C of the Act, has got a right to withdraw or abandon his appeal unconditionally, a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so.
In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very 84 limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act.
In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election petitioner to continue the proceeding under Section 110(3) (c) of the Act.
It will bear repetition that the appellant took no interest, whatever, in the controversy in the Election Petition which was confined only to the election petitioner and respondent 1.
Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116 C, have not been fulfilled in the instant case.
The appellant cannot, by any reckoning, be said to be a `person aggrieved ' by the decision of the High Court, dismissing the Election petition.
We, therefore, allow this preliminary objection and on that ground dismiss this appeal with costs.
section R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
One V. Krishna Reddy filed an election petition against Veera Reddy, respondent No. 1, a returned candidate in the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 on the ground that the returned candidate was disqualified to be chosen to fill the post under Section 9A of the Representation of People Act, 1951 inasmuch as he has subsisting contracts with the Government of Andhra Pradesh.
The appellant, Thammarna was impleaded as original respondent No. 5 though he is not a necessary party.
He did not file any written statement.
Neither did he lead any evidence nor did he cross examine the witnesses produced by respondent No. 1 and the election petitioner.
In fact, he did not even participate in the arguments before the High Court.
In the appeal filed by Thammanna against the Judgment dated April 24, 1979 of the High Court of Andhra Pradesh dismissing the election petition filed by Krishna Reddy, a preliminary objection was raised as to whether the appellant had the locus standi to maintain the appeal.
Dismissing the appeal, the Court, ^ HELD: (1) The appellant cannot, by any reckoning, be said to be a 'person aggrieved ' by the decision of the High Court, dismissing the Election Petition.
[84C] (2) Before a person is entitled to maintain an appeal under Section 116C of the Representation of the People Act, 1951 which is analogous to Section 96(1) of the Civil Procedure Code, all the following three conditions must be satisfied: (1) that the subject matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition.
(2) that the person seeking to appeal has been a party in the election petition, and (3) that he is a "person aggrieved", that is a party who has been adversely affected by the determination.
In the present case, these conditions, particularly Nos. (1) and (3) have not been fulfilled.
[79B D] 74 (3) Just as the term "decree" in Section 96(1) of the Civil Procedure Code means an adjudication which "conclusively determines all or any of the matter in controversy in the suit", the expression "any final order" as used in Section 116C of the Representation of the People Act contemplates a conclusive determination of all or any of the matters in controversy in the election petition between the parties.
[78F G] (4) The appellant was not a necessary party to be impleaded as there was no allegations or claims in the election petition which would attract section 82 of the Representation of the People Act.
In this case, the question of the Court joining him as a party respondent under Section 86(4) of the Act also did not arise, as he was impleaded before the High Court as respondent No. 5 though it was not obligatory for the Election Petitioner to do so.
Even so, respondent No. 5 did not join the controversy.
He neither joined issue with the contesting respondent No. 1 nor did he do anything tangible to show that he had made a common cause with the Election Petitioner against respondent No. 1.
In fact, the only parties between whom the matters in controversy, were at issue, were the Election Petitioner and Respondent No. 1.
[79F H] (5) Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case, nevertheless, normally a 'person aggrieved ' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something.
[80A B] Bar Council of Maharashtra vs M. V. Dabholkar, [1975] 2.S.C.C. 703 and J. N. Desai vs Roshan Kumar A.I.R. 1976 S.C. 576 at p. 534 referred to.
(6) The principle that election petition is a representative action on behalf of the whole body of electors in the constituency has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Representation of the People Act and its application cannot be extended to appeals under the Act.
Firstly, these provisions are to be found in Chapter IV, under the main caption: 'WITHDRAWAL AND ABATEMENT OF ELECTION PETITIONS '.
Then, the provisions of these sections, also repeatedly refer to the withdrawal or abatement of 'election petitions ' and also to procedure in respect thereof before the 'High Court '.
The provision relating to Appeals in Sections 116A, 116B and 116C, have been included separately, in Chapter 'IV A ', captioned "APPEALS".
[81E G, 83G H, 84A] Secondly, Section 116C, enjoins upon the Supreme Court to hear and determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court.
No doubt this is, "subject to the provisions of the Act and the rules if any, made thereunder".
But this clause only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded expressly or by necessary implication by any provision of the Act.
There is no provision in Chapter IV A of the Act, analogous to Sections 109 to 116 of the Act, which curtails, restricts or fetters an appellants ' right to withdraw an appeal.
Nor is there any such provision in the Code or the Rules of this Court which does so.
If the intention of the Legislature was that the provision of Sections 109 to 116 which apply to the withdrawal of election petition, should also govern the withdrawal of appeals, there was no difficulty in inserting similar provisions in Section 116C or elsewhere in Chapter IV A. [81G H, 82A C] 75 Bijayananda Patnaik vs Satrughna Sahu, [1964] 2 S.C.R. 538 at p. 545, followed.


judgement:
ition No. 631 of 1980.
Under Article 32 of the Constitution.) Ram Jethmalani, M. M. Lodha and Harjinder, Singh for the Petitioner.
R. B. Datar, R. N. Sachthey and M. N. Shroff for the Respondents.
FAZAL ALI, J. (Vacation Judge) The detenu was detained under sub Section (t) of Section 3 of The Conservation of Foreign Exchange and Prevention of Smuggling Activities (in short COFEPOSA) by the Government of Gujarat by its order dated January 30, 1980.
The order was passed by Mr. P. M. Shah, Deputy Secretary to the Government of Gujarat who authenticated the said order on behalf of the State Government.
The detenu while making a representation to the State Government also prayed for supply of documents to him in order to make a more effective representation.
These documents however were supplied on March 27, 1980 although the order of detention was itself confirmed on March 21, 1980.
In the representation sent to the Government, the detenu had made a specific prayer that his representation should be forwarded to the Central Government for being considered.
In support of the rule, Mr. Ram Jethmalani, counsel appearing for the detenu raised two points before this Court.
In the first place it was submitted that the counsel on behalf of the detenu has expressly pleaded that the grounds of detention were couched in English, a language which the detenu did not understand at all and these grounds were not explained to him.
A specific ground on this aspect of the matter has been taken in ground No. XIII at page 21 of the petition which may be extracted thus: "That the detenu does not know English.
The grounds of detention and the order of detention were in English.
No vernacular translation of the grounds was given nor they were explained to detenu in a language known to him." This allegation seems to have been denied by the respondents in para 14 of the affidavit of Mr. P. M. Shah, on behalf of the detaining authority, where he stated that the grounds were explained to the detenu in the language known to him.
It was averred in para 5 that one Mr. A. K. Sharma, Police Inspector, C.I.D. (Crime Branch), Ahmedabad had explained to the detenu the order of detention and the grounds communicated to him on January 30, 1980.
This affidavit, in my opinion, is wholly inadmissible in evidence.
If it was 14O0 a fact that Mr. Sharma had personally explained the grounds to the detenu then the respondents should have filed an affidavit of Mr. Sharma himself to show that he had actually explained the contents of the grounds to the detenu by translating the same in the language which he understood.
No such affidavit is forthcoming.
No Contemporaneous record has been produced to show that Mr. Sharma had actually explained or translated the grounds to the detenu.
The service of the ground of detention on the detenu is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie.
In case of Hadibandhu Das vs District Magistrate, Cuttak & Anr. ; , it was clearly held that merely oral explanation of an order without supplying him a translation in a script or language which the detenu understood amounted to a denial of right of being communicated the grounds.
Tn the instant case, it is not even alleged in the affidavit of Mr. Shah that any translation or translated script of the grounds was furnished to the detenu.
In case of Hadibandhu Das vs District Magistrate, Cuttack & ground alone.
I would however like to observe that in cases where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language which he understands.
A bare denial at the stage when Habeas Corpus petition is filed in the court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation.
We have pointed out in several cases that courts frown on detention without trial and insist on the strict compliance of the constitutional safeguards enshrined in Article 22(5) to the letter of the law, because a non compliance of these safeguards would itself be sufficient to vitiate the order of detention.
Despite our repeated observations, unfortunately, however the detaining authority continues to pass orders of detention in a casual or cavalier fashion with the result that the courts are compelled to release the detenus.
We hope an trust that in future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the Constitution more particularly because the liberty of the subject is.
in peril.
14O1 Another ground taken by Mr. Ram Jethmalani in support of the rule is that although the detenu had made a specific prayer in his representation to the State Government that his representation should he forwarded to the Central Government for consideration under section 11 of the Act, yet the detaining authority did not choose to forward the representation to the Central Government at all.
This position is admitted and the defence taken is that as the detenu had himself sent a copy to the Central Government, the detaining authority did not think it necessary to forward the representation to the Central Government.
This defence is wholly unacceptable.
Section l l of the Act confers a constitutional right on the detenu to have his representation considered by the Central Government.
It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is.
The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation of the detenu to the Central Government.
For these reasons therefore I am satisfied that the continued detention of the detenu in this case is legally invalid.
I therefore allow this application and direct that the detenu be released forthwith.
As the detenu has now been transferred to Bhavnagar, the order be sent to the Jailor at Bhavnagar.
S.R. Petition allowed.

summary/full:
Allowing the petition, the Court ^ HELD: 1.
Where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenu, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenu in the language, which he understands.
[14O0 D E] A bare denial at the stage when the Habeas Corpus petition is filed in the court by the detaining authority that those formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation.
[14O0 E F] Hadibandhu Das vs District Magistrate, Cuttack and Anr. ; followed.
Courts frown on detention without trial and insist on the strict compliance of the constitutional safeguards enshrined in Article 22(5) to She letter of the law, because a non compliance of these safeguards would itself be sufficient to vitiate the order of detention.
[14O0 F G] 3.
Section ll of COFEPOSA confers a constitutional right on the detenu to have his representation considered by the Central Government.
It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever worth it is.
The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation to the Central Government.
[14O1 B D] [The Court expressed the hope that in future the detaining authorities should fully apply their mind so as to result in a strict compliance of the constitutional safeguards contained in the Constitution, more particularly, be cause the liberty of the subject is in peril.]


judgement:
ivil Appeal Nos.
437 437 and 1460 of 1970.
Appeals by Special Leave from the Judgments and orders dated 24 3 1969 & 10 11 1969 of the Kerala High Court in Writ Appeal Nos, 451/79, 630/69 & 807/69.
A. B. Divan, M. Vellapally and T. M. Ansari for the Appellant in CA 437/70.
M. Vellapally and T. M. Ansari for the Appellant in C.A. 438/ 70.
Kapil Sibal, M. Vellapally and T. M. Ansari for the Appellant in C.A. 438/70.
Kapil Sibal, M. Vellapally and T.M. Ansari for the Appellant in 1460/70.
K. T. Harindranath and K. M. K. Nair for the Respondents in all the appeals.
The Judgment of the Court was delivered by KAILASAM, J.
These three appeals are by special leave granted by this Court against the judgment and order of the High Court of Kerala in Writ Appeals Nos. 451, 630 and 807 of 1969 respectively.
The questions that arise for consideration in all the three appeals and the same and can be dealt with together.
As the facts so far as they are necessary for decision in these appeals are similar, we will confine the judgment to the facts in Civil Appeal No. 437 of 1970.
The appellant in Civil Appeal No. 437 of 1970 is Travancore tea Estates Co. Ltd. Vandiperiyar in Kerala State.
The 1st respondent is the State of Kerala and respondents nos.
2 and 4 are the authorities functioning under the Kerala Motor Vehicles taxation Act (Act 24 of 1963) which will hereafter be referred to as the Act, was brought into force on 1 7 1963.
The Act provides that "a tax at the rates fixed by the Government by notification in the Gazette not exceeding the maximum rates specified i the First Schedule shall be levied on all Motor Vehicles used or kept for use in the State.
" The appellant company owned 17 motor Vehicles, tractors, trailers and lorries all of which are registered in the company 's name under the .
The company alleged that the vehicles were purchased by it solely and exclusively for use in the estates and intended to be used only for agricultural purpose and were not used nor kept for use in the State as contemplated under section 3 of the Act.
The company is a tea plantation having eight estates which lie contiguous to each other and have an extent of 1391 9422.44 acres in the aggregate.
The company for the purpose af plantation are maintaining roads fit for vehicular traffic in the eight estates covering a length of 131 miles in the aggregate on 23rd September, 1964 a Bedford Lorry owned by the company and bearing registration No. KLK 1540 was seized by the police and taken into custody under section 13 of the Act.
According to the appellant the seizure was effected in Tengamullay Estate which is one of the eight estates owned by the company.
The company wrote to the Department on 28 12 1964 stating that the vehicle was being used for agricultural purpose on private roads in the Estates and the company is not liable to pay tax and asked for the release of the vehicle.
On the company paying a sum of Rs. 3,150/ as tax under protest for the period between 1 7 63 to 31 12 94, the vehicle was released.
The department proceeded to prosecute the appellant in the Peermade 1st Class Magistrate 's Court and the case is still pending, The appellant company filed o. P. No. 199/65 before the High Court of Kerala claim in that they were not liable to pay any tax on the motor vehicles.
The High Court by its judgment dt.
3rd March, 1966 directed the Regional Transport officer, Kottayam 2nd respondent herein, to examine the question raised in the writ petition and to pass final orders.
It also directed that if the petitioner was aggrieved with the order he was at liberty to approach the High Court.
In the meanwhile it directed stay of prosecution and collection of tax the matter was taken up for consideration by the 2nd respondent.
The 2nd respondent rejected the pleas of the appellant and by his order dt.
12 4 68 held that the 13 vehicles mentioned in the original Petition were liable to pay was under they act.
The appellant filed a petition before the High Court for appropriate relief.
The High Court disposed of the petition o. P. No. 2173/68 along with o. P No. 2081/68 filed by Peermade Tea Co. who are the appellants in C.A. 438/70 in this Court, by a common order dt.
19th December, 1968.
The learned Judge held that the language in section 3 of the Act showed that there is a departure from the legislative policy of restricting the tax liability only to vehicles using pubic roads.
It held that the tax is imposed by section 3 on alt the motor vehicles used or kept for use in the State irrespective of any question as to whether they are used or kept for G use on pubic roads or not.
It rejected the contention on behalf of the appellant that legislature must be taken to have intended to levy such tax only on motor vehicles using or kept for use on public roads.
The learned Judge also held that the Act is not beyond the competence of the legislative powers of the State as the tax is leviable by the State in respect of all motor vehicles are used or kept for use in the State quite irrespective of any question as whether or not such vehicles are used on public roads.
1392 Aggrieved by the decision of the single Judge the appellant took the matter up on Letters Patent Appeal.
The main contention raised on behalf off the appellant was that the learned single Judge was in error in holding that all motor vehicles used or kept for use in the State quite irrespective of any question as to whether or not they are used on public roads, is erroneous in so far as it related to motor vehicles used or kept exclusively for use in private estate and not used or kept for use on the public roads of the State.
The Letters Patent Bench affirmed the decision of the single Judge and rejected the appeal.
The constitutional validity of the Act was not questioned before the Bench.
Holding that the legislative Entry 57 if the State list only required that the vehicles should be suitable for use on roads and the charging section only provided that the vehicle should be used or kept for use in the State the required conditions were satisfied and there would be no justification for reading into the statute words that and not there, and restricting the levy only on vehicles using public roads.
While not contesting the correctness of the observation of the Bench of the Kerala High Court that the levy cannot be restricted to vehicles using the public roads, it was submitted that the words in section 3 cl.
(1) of he Act "shall be levied on all motor vehicles used or kept for use in the State" should be confined to vehicles used or kept for use on the public roads of the State, and not to vehicles that arc intended to be confined within the premises of the Estate.
In other words the controversy between the parties before the R.T.O. the single Judge of the High Court and the Bench of the High Court can be stated by extracting the question at issue as framed by the R.T.O. "I understand that the roads used by these vehicles (even those within the estates) come under the definition of "Public Roads and Public Place" since at present I have .
not afforded opportunity to the company to refute the basis on which that fact is to be found.
I make it clear that I am not relying on that matter as a basis for this order and I reserve my right to investigate that matter if needed be later.
I assume for argument sake (without conceding) that the estate roads are private roads.
Even in that case, I am of .
the view that the company 's vehicles are liable to pay tax.
It is not in dispute that the vehicles are used and are kept for use within the State (The company roads arc within the Kerala State).
It is also not disputed that the vehicles are registered and their registration certificates are current and they are usable motor vehicles.
The tax levied under the K.M.V.T. Act is a tax on the possession of usable motor 1393 vehicle and it is realised for the propose of State Revenue.
Such being the nature of the levy according to me, I feel that irrespective of the question whether the road on which the vehicle is intended to be used is private or public, the tax is attracted.
" The question that falls for decision is whether on the assumption that the motor vehicles are used or kept for use within the estate, and not intended to be used on public roads of the State; the tax is leviable? In order to appreciate the question raised, it is necessary to refer to the relevant entry in the Constitution, the provisions of the Act and the and the decision relating to the question rendered by this Court.
(Entry 57 in List II of the Constitution relates to taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III.
This entry enables the State Government to levy a tax on all vehicles whether mechanically propelled or not, suitable for use on roads.) (emphasis supplied).
There is no dispute that the vehicles are mechanically propelled and suitable for use on roads.
Section 3 of the impugned Act (Kerala Motor Vehicles Taxation Act (Act 24 of 1963) provides that a tax "shall be levied on all motor vehicles used or kept for use in the State.
" The levy is within the competence of the State legislature as entry 57 in List II authorises by on vehicles suitable for use on roads.
It has been laid down by this Court in "Bolani Ores Ltd. vs Orissa," that under Entry 57 of List II, the power of taxation cannot exceed compensatory nature which must have some nexus with the vehicles using the roads i.e. public roads.
If the vehicles do not use the roads, notwithstanding that they are registered under the Act, they cannot be taxed.
If the words used or kept for use in the State is construed as used or kept for use on the public roads of the State, the Act would be in conformity with the powers conferred on the State legislature under Entry 57 of List II.
If the vehicle are suitable for use on public roads they are liable to be taxed.
In order to levy a tax on vehicles used or kept for use on public roads of the State and at the same time to avoid evasion of tax the legislature has prescribed the procedure.
Sub section 2 of sec.
3 provides that the registered owner or any person having possession of or control of a motor vehicle of which a certificate of registration is current shall for the purpose of this Act be deemed to use or kept such vehicles for use 1394 in the State except during any period for which the Regional Transport Authority has certified in the prescribed manner that the motor vehicle has not been used or kept for use.
Under this sub section there is a presumption that a motor vehicle for which the certificate of registration is current shall be deemed to be used or kept for use in the State.
This provision safeguards the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public roads of the State.
At the same time the interest of the bonafide owner is safeguarded by enabling him to claim and obtain a certificate of non user from the prescribed authority.
In order to enable the owner of the vehicle or the person who is in possession or being in control of the motor vehicle of which the certificate of registration is current to claim exempting from tax he should get a certificate in the prescribed manner from the Regional Transport Officer.
Section 5 of the Act provides for exemption from payment of tax under certain circumstances.
It enables the registered owner or the person having possession or control of such vehicle to give previous intimation in writing to the R.T.O. that the vehicle would not be used for such period and at the same time surrender certificate of registration and permit of the vehicle.
Section 6 enables the registered owner or a person in possession or control of such a vehicle to get refund of tax if conditions specified in section 6 are satisfied.
Thus in order to enable the registered owner or person in possession or control of a vehicle to get exemption of tax, advance intimation of the R.T.O. along with the surrender of certificate of registration is necessary.
The provision of section 3, sub sec.
(2) as well as 6. 5 and section 6 are meant to prevent evasion of tax and to provide for exemption from tax in proper cases.
Though the purpose of the Act is to tax vehicles that are used or kept for use on the public roads of the State, the State is entitled for the purpose of safeguarding the revenues of the state and to prevent evasion of the tax, to enact provision like provision as in section 3 raising ' a presumption that the vehicle is used or kept for use in the Situate without any further proof unless exemption is claimed under section 3(2), section 5 and s.6.
It may be observed that reading sections 3, 5 and 6 it is clear that a levy of tax is contemplated only on the vehicles.
that are used or kept for use on the public roads of the state.
`While we agree with the contentions of the learned counsel for the appellant that the tax is only eligible on vehicles used or kept for use on public roads, we must deserve that in order to claim exemption from payment of tax requirements of section 3(2) or sections 5 and 6 should be satisfied.
Surrender of the registration certificate 1395 contemplated under section 5 is for making sure that the motor vehicle is not being put to any use and does not have the effect of annulling the certificate of registration.
If the requirement contemplated under the Act is not satisfied the registered owner or person m possession or control of the vehicle would not be entitled to claim any exemption from payment of tax '.
It remains for consideration as to what is the appropriate order that should be passed on the facts and circumstance of this case.
As a general proposition of law as exemption from payment of tax had not been claimed and obtained as required under this Act, the appellant would be liable to pay tax but as already pointed out and set out clearly in the order of the R.T.O., the question that was raised and disputed was whether on the assumption that the vehicles were kept for use in the states alone and not for use on the public roads of the State, tax is leviable.
The authorities proceeded on the basis that even assuming that the vehicles were not intended to be used on the public roads, they are liable to tax.
In this view, the appellant did not apply for exemption or notify non user as required under the provisions of the Act.
But on the facts and circumstances of the case it is clear that the appellant claimed for exemption from tax on the ground that it was not being used on the public roads.
In the circumstances of the case we have to take it that though, in terms, requirement of sections 3 and 5 have not been complied with, in effect the requirements have been satisfied as the dispute proceeded throughout on that basis.
But as has been specifically stated by the R.T.O., the question whether estate roads are.
public roads is reserved for further investigation and decision.
Equally the R.T.O. will be at liberty to act under section 5(2) of the Act and decline exemption from the liability to pay tax for the relevant period if on verification it is found that the vehicle has been used during that period on the public road.
Before concluding, we would refer to a contention raised by the learned counsel based on the decision of this Court in Bolani Ores Ltd. vs Orissa, (supra).
The plea of the learned counsel is that the word "motor vehicle" should be understood as defined by section 2(18) of the and excluded from taxation motor vehicles "used solely upon the premises of the owner.
" As the vehicles with which we arc concerned were claimed to have been kept for use solely in the premises of the company, it was contended that the vehicles are not exigible to tax.
This Court in the decision cited was dealing with the Orissa Motor Vehicles Taxation Act, 1930.
Section(2c) of the Orissa Taxation Act adopted the definition of Motor vehicles Act as found in Motor Vehicles Act, 1914.
The Motor vehicles Act. ]914 was repealed and replaced by the Motor Vehicles The definition of motor vehicle ' in section 2(18) of the excluded motor vehicles used solely upon the premises of the owner.
The Orissa Motor vehicles Taxation Act was amended and orissa Amendment Act, 1943 re enacted the provisions of the Taxation Act. 'Motor Vehicles ' was defined under section 2(18) of the excluding vehicles used solely upon the premises of the owner.
Subsequently the definition of 'motor vehicle ' under section 2(18) of the was amended by the Act 100 of 1956 which confined the exemption from taxation to "motor vehicles of a special type adopted for use only in a factory or in any other enclosed premises.
" The exemption from tax only be claimed after amendment to section 2(18) by Act, 100 of 1956, if the vehicle was of special type adopted for use only in a factory or in any other enclosed premises and the exemption that was avail able before the amendment by Act 100 of 1956 to Motor Vehicles used solely upon the premises of the owner was taken away.
This Court held "if the subsequent, Orissa Motor Vehicles Taxation (Amendment) Act, 1943, incorporating the definition of`motor vehicle ' referred to the definition of 'motor vehicle ' under the Act as then existing, the effect of this legislative method would, in our view, amount to and incorporation by reference of the provisions of section 2(1) of the Act in section 2(c) of the Taxation Act .
Any subsequent argument in the Act or a total repeal of the Act under a fresh legislation on that topic would not affect the definition of 'motor vehicle ' in section 2(c) of the Taxation Act.
" As a result this Court held that the definition of 'motor vehicle ' given in section 2(18) of the Motor Vehicles Act, 1939 before the amendment by Act 100 of 1956 was applicable.
Relying on this decision, the learned counsel submitted that the test that is to be applied to determine whether motor vehicle is liable to tax or not is whether it comes under the exemption provided by under section 2(18) of the before the amendment.
We are unable to accept the contention mainly on the ground that the Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963) came into force on 18 3 63.
Section 2(1) of the Taxation Act provided that words and expression used but not defined in the Motor Vehicle Act, 1939 (Central Act 4 of 1939) shall have the meaning respectively assigned to them in that Act.
On the date when the Kerala Motor Vehicles Taxation Act was enacted, was amended by Act 10() of 1956 and the amended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use only in a factory or in any other enclosed premises.
The amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the ,.
amendment of the definition of 'Motor Vehicle ' by Act 100 of 1956 1397 In this view we feel that the decision in Bolani 's case (supra) will not be of any assistance to the learned counsel for the appellants.
The appeals are allowed to the extent indicated above.
But in the circumstances there will be no order as to costs.
S.R. Appeals allowed in part.

summary/full:
The Kerala Motor Vehicles Taxation Act (Act 24 of 1963) was brought into force on 1 7 63.
The Act provides that a "tax at the rates fixed by the Government by notification in the Gazette not exceeding the maximum rate specified in the First Schedule shall be levied on all motor vehicles used or kept for use in the state".
The appellant company owned 17 motor vehicles, tractors, trailers and lorries all of which are registered in the Company 's name under the Motor Vehicles Act.
The Company alleged that the vehicles were purchased by it solely and exclusively for use in the estates and intended to be used only for an cultural purpose and were not used nor kept for use in the State as contemplated under section 3 of the Act.
The Company is a tea plantation having eight estates which lie contiguous to each other and have an extent of 9422.44 acres in the aggregate.
The Company for the purpose of plantation are maintaining roads fit for vehicular traffic in the eight estates covering length of 131 miles in the aggregate.
On 23rd September, 1964 a Bedford Lorry owned by the Company and bearing registration No. KLK 1540 was seized by the Police and taken into custody in Tangamullay Estate which is one of the estates owned by the Company but later released on payment under protest a sum of Rs. 3150/ as tax for the period between 1 7 1963 to 31 12 64.
The appellant Company filed O.P. 199/65 before the High Court of Kerala claiming that they were not liable to pay any tax on the Motor Vehicles The High Court remanded the matter to the Transport Authority for a finding on the question raised.
Since the Transport authorities was of the view that Section 3 covers private roads as well and decided against the appellant, the appellant moved the High Court once again in O.P. 2173/68.
Having lost before the single bench and the Division Bench in the Letters Patent appeal, the appellant same up in appeal by special leave.
Allowing the appeals in part, the Court ^ HELD: 1.
On reading sections 3, S and 6 of the Kerala Motor Vehicles Taxation Act (Act 24 of 1963), it is clear that a levy of tax is contemplated only on the vehicles that are used or kept for the use on the public roads of the State.
[1394G] Bolalni ores Ltd. vs State of Orissa, ; @ 155, explained and distinguished.
Entry 57 in List IT of the Constitution relates to taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tram 1389 cars subject to the provisions of entry 35 of List III This entry enables the A State Government to levy a tax on all vehicles whether mechanically propelled or not, suitable for use on roads.
Section 3 of the Kerala.
Motor Vehicles Taxation Act (Act 24 of 1963) provides that a tax "shall be levied on all motor vehicles used or kept for use in the State".
The vehicles in the instant case are mechanically propelled and suitable for use on roads.
The levy is within the competence of the State Legislature as Entry 57 in List.
II authorises the levy on vehicles suitable for use on roads.
[1393 B E] 3.
In order to levy a tax on vehicles used or kept for use on public roads of the Stare and at the same time to avoid evasion of tax the legislature has prescribed the procedure.
Under sub section 2 of section 3 there is a presumption that a motor vehicle for which the certificate of registration is current shall be deemed to be used or kept for use in the State.
Section 3(2) safeguards the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public roads of the State.
At the same time the interest of the bonafide owner is safeguarded by enabling him to claim and obtain Q certificate of non user from the prescribed authority.
In order to enable the owner of the vehicle or the person who is in possession or being in control of the motor vehicles of which the certificate of registration is current to claim exemption from tax he should get a certificate in the prescribed manner from the Regional Transport officer.
Section 5 provides for exemption from payment of tax under certain circumstances.
Section 6 enables the registered owner or a person in possession or control of such a vehicle to get refund of tax if the conditions specified therein are satisfied.
Thus in order to enable the registered owner or person in possession or control of a vehicle to get exemption of tax, advance intimation to the R.T.O. along with the surrender of certificate of registration is necessary.
The provision of section 3 sub sec.
(2) as well as section 5 and section 6 are meant to prevent evasion of tax and to provide for exemption from tax in proper cases.
Though the purpose of the Act is to tax vehicles that are used or kept for use on the public roads of the State, the State is entitled for the purpose of safeguarding the revenue of the State and to prevent evasion of the tax to enact provision like provision as in section 3 raising a presumption that the vehicle is used or kept for use in the State without any further proof unless exemption is claimed under section 3(2), section 5 and section 6.
[1393 G H, 1394 A G] 4.
In order to claim exemption from payment of tax requirements of section 3(2) or sections 5 and 6 should be satisfied.
Surrender of the registration certificate contemplated under section 5 is for making sure that the motor vehicles is not being put to any use and does not have the effect of annulling the certificate of registration.
If the requirement contemplated under the Act is not satisfied the registered owner or person in possession or control of the vehicles would not be entitled to claim any exemption from payment of tax.
[1394 H. 1395 A Bl 5.
The Kerala Motor Vehicles Taxation Act, 1963 (Act 24 of 1963) came into force on 18 3 63.
Section 2(1) of the Taxation Act provides that words, and expression used but not defined in the (Central Act 4 of 1939) shall have the meaning respectively assigned to them in that Act.
On the date when the Kerala Motor Vehicles Taxation Act was enacted, was amended (by Act 100 of 1956) and the emended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use 1390 only in factory or in any other enclosed premises.
This amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the amendment (by Act 100 of 1956) of the definition of "motor Vehicle" in section 2(18) of the (Central), 1939.
[1396 F H, 1397


judgement:
ivil Appeal Nos.
1088 of 1976 and 480 of 1977.
Appeals from the Judgments and Orders dated 19 4 1976 and 12 10 1976 of the Gujarat High Court in S.C.A. No. 495/76 and S.C.A. No. 1641/76 respectively.
P.R. Mridul, P.H. Parekh and C.B. Singh and Miss Vineeta Caprihan for the Appellant in CA No. 480/77.
65 Gobind Das, A.N. Karkhanis and T. Sridharan and Mrs. Sunanda Bhandare for the Respondent in CA No. 480/77.
Y.S. Chitale, P.H. Parekh, R. Karan Jawala and Miss Vineeta Caprihan for the Appellant in CA No. 1088/76.
Y.M. Tarkunde, K.L. Hathi and P.C. Kapur for the Respondent in CA No. 1088/76.
Shanker Ghosh, G.B. Pai, and D.N. Gupta for the Intervener.
(Superintendent, Mines and Quarries, Bisra Stone Lime Co. Ltd. & Anr.) Anil Kumar Gupta for the Intervener (Baba Jha Bhai Talekar).
The Judgment of the Court was delivered by GUPTA, J.
A common question arises for consideration in these two appeals relating to the mode of calculating fifteen days ' wages of a monthly rated employee under section 4(2) of the (hereinafter referred to as the Act).
Section 4(2) provides: "For every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days ' wages based on the rate of wages last drawn by the employee concerned: Provided that in the case of a piece rated employee, daily wages shall be computed on the average of the total wages received by him for a period of three months immediately preceding the termination of his employment, and, for this purpose, the wages paid for any overtime work shall not be taken into account: Provided further that in the case of an employee employed in a seasonal establishment, the employer shall pay the gratuity at the rate of seven days ' wages for each season." "Wages" has been defined in section 2(s) of the Act as follows: ""wages" means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employment and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.
" It is not necessary to state the facts in any great detail.
In both cases the respondent was a monthly rated employee and the appellant, a public limited company, was his employer.
In Civil Appeal No. 1088 of 1976 (Shri Digvijay Woollen Mills Limited appellant vs 66 Shri Mahendra Prataprai Buch respondent) the respondent ceased to be an employee on attaining the age of superannuation after completing 19 years of service.
The appellant company calculated the amount of gratuity payable to him on the basis that fifteen days ' wages was half of the monthly wages last drawn by him.
The respondent demanded an additional sum as gratuity on the ground that his monthly wages should be taken as what he got for 26 working days, his daily wages should be ascertained on that basis and his fifteen days ' wages worked out accordingly, not by just taking half of his wages for a month of 30 days or fixing his daily wages by dividing his monthly wages by 30.
The Controlling Authority under the Act accepted the respondent 's contention and his decision was affirmed by the appellate authority.
A division bench of the High Court of Gujarat at Ahmedabad summarily dismissed the petition under Article 227 of the Constitution made by the appellant company challenging the decision of the authorities under the Act.
The learned Judges however gave reasons in support of the order made.
The appeal before us is by special leave.
In Civil Appeal 480 of 1977 (The Maharana Mills Limited appellant vs Shri Gopal Das Ladhabhai Kakkad respondent) the respondent resigned his job after a little over 22 years of service.
The appellant company paid him gratuity calculating his daily wages by dividing his monthly wages by 30 and computing fifteen days ' wages on that basis.
Here also the respondent claimed an additional sum as gratuity and the basis of the claim was the same as in the other appeal.
The Controlling Authority accepted the respondent 's contention and the appellate authority affirmed his decision following the view taken by the Gujarat High Court in the other case.
In this case also the Gujarat High Court summarily rejected the petition made by the appellant company challenging the decision of the authorities under the Act.
This appeal however is brought on a certificate granted by the High Court.
In dismissing the petition in Digvijay Woollen Mills case the division bench of the Gujarat High Court observed as follows: "The employee is to be paid gratuity for every completed year of service and the only yardstick provided is that the rate of wages last drawn by an employee concerned shall be utilised and on that basis at the rate of fifteen days ' wages for each year of service, the gratuity would be computed.
In any factory it is well known that an employee never works and could never be permitted to work for all the 30 days of the month.
He gets 52 Sundays in a year as paid holidays and, therefore, the basic wages 67 and dearness allowance are always fixed by taking into consideration this economic reality. .
A worker gets full month 's wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days.
The other extra holidays may make some marginal variation into 26 working days, but all wage boards and wage fixing authorities or Tribunals in the country have always followed this pattern of fixation of wages by this method of 26 working days.
" The view expressed in the extract quoted above appears to be legitimate and reasonable.
Ordinarily of course a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employees who work for 26 days a month followed by the Gujarat High Court cannot be called perverse.
It is not necessary to consider whether another view is possible.
The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act.
We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse.
Incidentally, to indicate that treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth and General Mills Company Ltd. vs Workmen and other etc.(1) which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi.
In the award schemes were framed relating to the payment of gratuity.
The expression "average of the basic wage" occurring in the schemes was explained by this Court as follows: "It was also urged by Mr. Ramamurthi that the expression "average of the basic wage" in the definition of "wages" in Cl.
4 of the Schemes is likely to create complications in the implementation of the Schemes.
He urged that if the wages earned by a workman during a month are divided by the total number of working days, the expression "wages" will have an artificial meaning and especially where the workman is old or disabled or incapacitated from rendering service, gratuity payable to him will be substantially reduced.
We do not think that there is any cause for such apprehension.
The expression "average of the basic wage" can only mean the wage earned by a workman during a month divided by the number of days for which he has worked 68 and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable.
Counsel for the employers agree to this interpretation.
" In the view we take we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view or the other on the question involved in these appeals; also, the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days ' wages under section 4(2) of the .
The appeals are dismissed, in civil appeal 480 of 1977 with costs, in civil appeal 1088 of 1976 this Court while granting special leave on September 22, 1976 had directed the appellant to pay the costs of the appeal in any event accordingly respondent Mahendra Prataprai Buch will be entitled to his costs.
P.B.R. Appeals dismissed.

summary/full:
Section 4(2) of the provides that for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of 15 days ' wages based on the rate of wages last drawn by the employee concerned.
The employers sought to pay gratuity by dividing the workman 's monthly wages by 30 and computing the 15 days ' wages on that basis but the workman demanded that his monthly wages should be taken as what he got for 26 working days and not by taking half of his wages in a month of 30 days.
The Controlling Authority upheld the workman 's contention.
In dismissing the employer 's petition under article 227 of the Constitution the High Court observed that a worker received a full month 's wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days and, therefore, gratuity payable to him should be calculated on this basis.
Dismissing the employers ' appeals, ^ HELD: The view taken by the authorities, and upheld by the High Court, is not in any way unreasonable.
Although a month is understood to mean 30 days, the manner of calculating gratuity payable under the Act to employees who worked for 26 days a month followed by the High Court cannot be called perverse.
[67C] Treating monthly wages as wages for 26 working days is not new or unknown.
The expression "average of the basic wage" occurring in an award has been interpreted by this Court to mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable to the workman.
[67D & H] Delhi Cloth and General Mills Company Ltd. vs Workmen and others etc., [1969]]2 SCR 107, referred to.