judgement:
iminal Appeal No. 51 of 1959.
Appeal by special leave from the judgment and order dated May 16, 1958, of the Calcutta High Court in Criminal Appeal No. 2 of 1958.
A. section B. Chari, K. C. Jain and B. P. Maheshwari, for the appellant.
N. C. Chatterjee, H. R. Khanna and D. Gupta, for respondent.
April 19.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This appeal, by special leave, is from the order of the Calcutta High Court dated May 16, 1958, summarily dismissing the appeal of the appellant from the order of the learned Single Judge of the High Court convicting him on jury trial of offences under section 120 B read with section 471, Indian Penal Code, and on two counts under section 471 read with section 466, Indian Penal Code, with respect to two documents.
L. N. Kalyanam, who was also tried at the same trial and convicted of the offences under section 120 B read with section 471, Indian Penal Code, two counts under section 466, Indian Penal Code, and of the offence under section 109, read with section 471, Indian Penal Code, did not appeal against his conviction.
The brief facts of the prosecution case are that the appellant Purushottamdas Dalmia was one of the partners of the firm known as Laxminarayan Gourishankar which had its head office at Gaya and branch at Calcutta.
The Calcutta branch was located at 19, 103 Sambhu Mallick Lane.
On April 26, 1952, the appellant applied for a licence for importing rupees one crore worth of art silk yarn.
On May 2, 1952, the Joint Chief Controller of Imports, Calcutta, issued a provisional licence.
In accordance with the rules, this licence was to be got confirmed within two months by the Deputy or Chief Controller of Imports and on such confirmation it was to be valid for a period of one year.
The licence was to be treated as cancelled in case it was not got confirmed within two months of the date of issue.
This provisional licence was not confirmed within two months.
The appellant was duly informed of the refusal to confirm the licence.
The appellant 's appeal against the refusal to confirm the licence was dismissed in September 1952.
The provisional licences issued were returned to the appellant.
The letter communicating the dismissal of the appeal and the return of the licence was issued from the office of the Joint Chief Controller of Imports on September 26, 1952.
The letter dated September 29, 1952, from the office of the Chief Controller of Imports, New Delhi, informed the appellant with reference to the letter dated September 4, 1952, that instructions had been issued to the Joint Chief Controller of Imports and Exports, Calcutta, for re consideration of such cases and that he was advised to contact that authority for further action in the matter.
The appellant rightly, did not appear to take this letter to mean that the order of rejection of his appeal was still under further consideration.
He did not take any steps to contact the Joint Chief Controller of Imports and Exports on the basis of this letter.
Instead, he applied on October 7, 1952, for the return of correspondence.
That correspondence was returned to him on October 9, 1952.
Nothing happened up to March 31, 1953, on which date the appellant wrote to the Chief Controller of Imports, New Delhi, a long letter expressing his grievance at the action of the Joint Chief Controller of Imports and Exports, Calcutta, and requesting for a sympathetic decision.
The Chief Controller of Imports and Exports, by his letter dated April 20,1953, informed the 104 appellant that the order of the Joint Chief Controller of Imports and Exports could not be revised for the reasons mentioned in that letter.
This letter gave the wrong number of the appellant 's firm.
It mentioned its number as '16 ' instead of the correct number '19 '.
In other respects the address of this letter was correct.
The appellant states that he did not receive this letter.
In August 1953, the appellant met Kalyanam at Calcutta.
Kalyanam told the appellant that he could get the licence validated through the good offices of one of his acquaintances, Rajan by name, at Delhi.
Both these persons came to Delhi in August, 1953, and visited Rajan.
The appellant made over the file containing the licences to Kalyanam who in his turn made over the same to Rajan.
Two or three days later Kalyanam returned the licences containing the alleged forged endorsements to the appellant.
The forged endorsements related to the confirmation of the licence and its re validation till May 2, 1954.
The confirmation endorsement was purported to be dated July 2, 1952, and the re validating one purported to be dated April 25, 1953.
Thereafter, orders were placed on the basis of the re validated licence and when the goods arrived attempt was made to clear them at Madras.
The clearing office at Madras suspected the genuineness of the confirmation and re validating endorsements and finding the suspicion confirmed, made over the matter to the Police.
As a result of the investigation and preliminary enquiry, the appellant and Kalyanam were committed to the High Court for trial.
Eight charges were framed.
The first charge related to the criminal conspiracy between the two accused and was as follows: "That the said (1) Purushottamdas Dalmia and (2) L. N. Kalyanam along with the person or persons name or names unknown between the months of April and December one thousand nine hundred and fifty three at Calcutta, Howrah, Delhi, Madras and other places were parties to a criminal conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards, to wit, an 105 offence of forgery by certificate or endorsement of confirmation and an endorsement of validation of the Import Trade Control Licence being licence No. 331913/48 (the Exchange Control Copy whereof is Ext.
5 and the Customs Copy whereof is Ext.
6) purporting to be made by public servant, to wit, the officers and staff of the Chief Controller of Imports and Exports and/or the offence of fraudulently or dishonestly using the aforesaid licence containing the aforesaid forged certificates and endorsements as to the confirmation and validation thereof knowing or having reason to believe the same to be forged documents and thereby they the said (1) Purushottamdas Dalmia and (2) L. N. Kalyanam committed an offence punishable under Sectionl2O B read with section 466 and/or section 471 read with section 466 of the Indian Penal Code within the cognizance of this Court.
" Charges Nos. 2, 3 and 4 were with respect to the false endorsements on the copy of the licence Ext.
The second charge was under section 466, Indian Penal Code, against Kalyanam alone and charges Nos. 3 and 4 were against the appellant for abetting the offence of forgery by Kalyanam and of using the forged document as genuine.
Charges 5, 6 and 7 related to corresponding matters with respect to the licence copy Ext.
The eighth charge was against Kalyanam alone and was for his abetting the appellant in his committing the offence of fraudulently and dishonestly using as genuine the Customs Copy of the said licence, Ext.
The jury returned a verdict of 'not guilty ' with respect to charges Nos. 3 and 6 and also with respect to the charge of conspiracy under section 120 B read with section 466, Indian Penal Code.
The jury returned a verdict of 'guilty ' against the appellant on the charge of conspiracy under section 120 B read with section 471, Indian Penal Code and the other charges Nos. 4 and 7.
It is not disputed, and cannot be disputed, that forgeries were committed in the two documents Exts.
5 and 6.
The following points were raised by learned counsel for the appellant: 14 106 (i) The offences of using the forged documents as ,genuine were committed at Madras and therefore the Courts at Calcutta had no jurisdiction to try these offences under section 471 read with section 466, Indian Penal Code.
(ii) Alternative conspiracies could not be charged as they must be the result of different agreements between the conspirators.
(iii) The learned Judge misdirected the jury in putting certain matters before it in the form he had done.
The chief criticisms in this connection were that (a) the accused must have known from the ante dating of the confirmation endorsement that the re validation of the licence was a forgery; (b) even if the proper officer of the Department had signed the re validation, it would still be a forgery when it was ante dated; (c) the letter of the Chief Controller of Imports and Exports dated April 20, 1953, though wrongly addressed, must have reached the appellant; (d) the learned Judge expressed his opinions strongly and this could have unduly affected the mind of the jury and forced it to come to the same conclusions.
The jurisdiction of the Calcutta High Court to try an offence of criminal conspiracy under section 120 B, Indian Penal Code, is not disputed.
It is also not disputed that the overt acts committed in pursuance of the conspiracy were committed in the course of the same transaction which embraced the conspiracy and the acts done under it.
It is however contended for the appellant, in view of section 177 of the Code of Criminal Procedure, that the Court having jurisdiction to try the offence of conspiracy cannot try an offence constituted by such overt acts which are committed beyond its jurisdiction and reliance is placed on the decision in Jiban Banerjee vs State (1).
This case undoubtedly supports the appellant 's contention.
We have considered it carefully and are of Opinion that it has not been rightly decided.
The desirability of the trial, together, of an offence of criminal conspiracy and of all the overt acts committed in pursuance of it, is obvious.
To establish the offence of criminal conspiracy, evidence of the (1) A.I.R. 1959 Cal.
107 overt acts must be given by the prosecution.
Such evidence will be necessarily tested by cross examination on behalf of the accused.
The Court will have to come to a decision about the credibility of such evidence and, on the basis of such evidence, would determine, whether the offence of criminal conspiracy has been established or not.
Having done all this, the Court could also very conveniently record a finding of 'guilty ' or 'not guilty ' with respect to the accused said to have actually committed the various overt acts.
If some of the overt acts were committed outside the jurisdiction of the Court trying the offence of criminal conspiracy and if the law be that such overt acts could not be tried by that Court, it would mean that either the prosecution is forced to give up its right of prosecuting those accused for the commission of those overt acts or that both the prosecution and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence a second time and the accused will have to test the credibility of that evidence a second time.
The time of another Court will be again spent a second time in determining the same question.
There would be the risk of the second Court coming to a different conclusion from that of the first Court.
It may also be possible to urge in the second Court that it is not competent to come to a different conclusion in view of what has been said by this Court in Pritam Singh vs The State of Punjab (1): "The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver exhibit P 56 by him.
The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged.
That fact was found against the prosecution and having regard to the observations of Lord Mac Dermoidal quoted above, could not be proved against Pritam Singh Lohara.
in any further proceedings between the Crown and him." (1) A.I.R. 1956 section C. 415, 422. 108 In these circumstances, unless the provisions of the Code of Criminal Procedure admit of no other construction than the one placed upon them by the Calcutta High Court, they should be construed to give jurisdiction to the Court trying the offence of criminal conspiracy to try all the overt acts committed in pursuance of that conspiracy.
We do not find any compelling reasons in support of the view expressed by the Calcutta High Court.
It is true that the Legislature treats with importance the jurisdiction of Courts for the trial of offences.
Jurisdiction of Courts is of two kinds.
One type of jurisdiction deals with respect to the power of the Courts to try particular kinds of offences.
That is a jurisdiction which goes to the root of the matter and if a Court not empowered to try a particular offence does try it, the entire trial is void.
The other jurisdiction is what may be called territorial jurisdiction.
Similar importance is not attached to it.
This is clear from the provisions of sections 178, 188, 197(2) and 531, Criminal Procedure Code.
Section 531 provides that: "No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
" The reason for such a difference in the result of a case being tried by a Court not competent to try the offence and by a Court competent to try the offence but having no territorial jurisdiction over the area where the offence was committed is understandable.
The power to try offences is conferred on all Courts according to the view the Legislature holds with respect to the capability and responsibility of those Courts.
The higher the capability and the sense of responsibility, the larger is the jurisdiction of those Courts over the various offences.
Territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused 109 who will have to meet the charge levelled againt him and the convenience of the witnesses who have to appear before the Court.
It is therefore that it is provided in section 177 that an offence would ordinarily be tried by a Court within the local limits of whose jurisdiction it is committed.
It was said in Assistant Sessions Judge, North Arcot vs Ramaswami Asari (1): "The scheme of chapter XV, sub chapter (A) in which sections 177 to 189 appear, seems to me to be intended to enlarge as much as possible the ambit of the sites in which the trial of an offence might be held and to minimise as much as possible the inconvenience which would be caused to the prosecution, by the success of a technical plea that the offence was not committed within the local limits of the jurisdiction of the trying Court.
" It is further significant to notice the difference in the language of section 177 and section 233.
Section 177 simply says that ordinarily every offence would be tried by a Court within the local limits of whose jurisdiction it was committed.
It does not say that it would be tried by such Court except in the cases mentioned in sections 179 to 185 and 188 or in cases specially provided by any other provision of law.
It leaves the place of trial open.
Its provisions are not peremptory.
There is no reason why the provisions of sections 233 to 239 may not also provide exceptions to section 177, if they do permit the trial of a particular offence along with others in one Court.
On the other hand, section 233, dealing with the trial of offences, reads: "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239.
" The language is very peremptory.
There is a clear direction that there should be a separate charge for every distinct offence and that any deviation from such a course would be only in cases mentioned in sections 234, 235, 236 and 239.
It is true that it is not stated in express terms (1) Mad, 779, 782, 110 either in section 235 or section 239, that their provisions would justify the joint trial of offences or of persons mentioned therein in a Court irrespective of the fact whether the offences to be tried were committed within the jurisdiction of that particular Court or not.
But such, in our opinion, should be the interpretation of the provisions in these two sections.
The sections do not expressly state that all such offences which can be charged and tried together or for which various per.
sons can be charged and tried together must take place within the jurisdiction of the Court trying them.
The provisions are in general terms.
Sub sections (1) to (3) of section 235 provide for the offences being charged with and tried at one trial and therefore provide for the trial of those offences at one trial in any Court which has jurisdiction over any of the offences committed in the course of the same transaction.
The illustrations to section 235 also make no reference to the places where the offences were committed.
In particular, illustration (c) can apply even when the offences referred to therein were committed at places within the territorial jurisdiction of different Courts.
Similarly, section 239 provides for the various persons being charged and tried together for the same offence com mitted in the course of the same transaction are accused of different offences committed in the course of the same transaction.
Such offences or persons would not be tried together if some of the offences are committed by some of them outside the jurisdiction of the Court which can try the other offences, if the contention for the appellant be accepted and that would amount to providing, by construction.
an exception for these sections.
As sections 235 and 239 of the Code are enabling sections, the legislature, rightly, did.
not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction together.
The omission to make such peremptory provision does not necessarily indicate the intention of the legislature that the Court having jurisdiction to try certain offences cannot try an offence committed 111 in the course of the same transaction, but beyond its jurisdiction.
No definite conclusion about the approval of the legislature to the interpretation put on the provisions of sections 235 and 239, Criminal Procedure Code, by the Calcutta High Court in Bisseswar vs Emperor (1) or by the Madras High Court in In re: Dani (2) and in Sachidanandam vs Gopala Ayyangar (3) can be arrived at when it is found that there had been some cases which expressed the contrary view.
The case law having a bearing on the question under determination is, however, meagre.
In Gurdit Singh vs Emperor (4) the conspiracy to murder a person was entered into in the district of Montgomery in Punjab and the attempt to murder that person in pursuance of that conspiracy was made within the jurisdiction of the Magistrate at Roorkee in the United Provinces.
Broadway,.
J., said: "It appears that, rightly or wrongly, an allegation has been made that the abetment by conspiracy or by instigation took place, in the Montgomery District, and that, therefore, the case can be tried either at Roorkee or in Montgomery.
Section 180, Criminal Procedure Code, is clear on this point and no further discussion is needed.
" In In re: Govindaswami (5) a person murdered A and B, one after the other, in the same night.
The houses of A and B were divided by a street which formed the boundary between two districts.
The accused was sent up for trial for the murders of A and B to the various Courts having Jurisdiction to try the offences of the murder of A and of the murder of B.
The learned Judges said: "There is a further aspect of the case on which we would like to make some observations.
These two cases of alleged murder by the same appellant one after the other that same night brought as they were into the same confession should obviously have been tried by one and the same (1) A I.R. (2) A.I.R. 1936 Mad.
(3) Mad.
991, 994.
(4) 517.
(5) A I. R. 1953 Mad 372, 373.
112 Sessions Judge.
The street between the houses of Govindan Servai and Malayappa Konan appears however to have been a boundary between the districts of Tiruchirapalli and Tanjore and one murder was committed in the jurisdiction of the Sessions division of Tiruchirapalli and the other in the jurisdiction of the Sessions division of Tanjore.
This appears to have been the only reason why two separate charge sheets were laid in respect of these murders.
The learned Public Prosecutor agrees that there was no impediment to the two murders being tried together under section 234(1), Cr. P. C., and it is indeed obvious that one Court should have dealt with both these murders.
" The two cases could not be tried by any one of the two Sessions Courts if the provisions of section 234, Criminal Procedure Code, were subject to the provisions of sections 177 to 188 with respect to the territorial jurisdiction of Criminal Courts.
In Sachidanandam vs Gopala Ayyangar (1) Odgers, J., relying on the case reported as Bisseswar vs Emperor (2) held that unless the abetment of an offence took place within its territorial jurisdiction, a Court could not avail itself of the provisions of section 239 to try such abetment along with the principal offers.
He observed: "I am doubtful about the matter, I must say; but giving the best consideration I can to it, and with this expression of opinion of the Calcutta High Court, I am inclined to think that jurisdiction, being the foundation of the charge, is to be imported or understood as present in all the subsequent procedure set out in the Code; and if that is so, it clearly must govern section 239." The approval of the Legislature of a particular construction put on the provisions of an Act on account of its making no alteration in those provisions is presumed only when there had been a consistent series of cases putting a certain construction on certain provisions.
(1) Mad.
991, 994 (2) A.I.R. 1924 Cal.
113 Lastly, an implied support to the view we are inclined to take is to be obtained from the observations of the Judicial Committee in Babulal Choukhani vs The King Emperor ( 1): "Nor is there any limit of number of offences specified in section 239(d).
The one and only limitation there is that the accusation should be of offences 'committed in the course of the same transaction '.
Whatever scope of connotation may be included in the words 'the same transaction ', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a, circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it.
The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.
,, This indicates that the only limitation on the jurisdiction of the court to charge and try together various persons in pursuance of the provisions of cl.
(a) of section 239, Criminal Procedure Code, is that the accusation against those persons should be of offences committed in the course of the same transaction.
It cannot be disputed that the accusation against the accused with respect to the overt acts committed by them in pursuance of a conspiracy is with respect to offences committed in the course of the same transaction and that therefore persons accused of these offences can be tried together at one trial in pursuance of the provisions of el.
(a) of section 239.
We therefore hold that the Calcutta Court had jurisdiction to try the appellant of the offences under section 471 read with section 466, Indian Penal Code, even though those offences, in pursuance of the conspiracy, were committed at Madras.
The second contention for the appellant is really to the effect that the appellant was charged with two conspiracies in the alternative and that such a charge (1) (1938) L.R. 65 I.A. 158,175, 176.
15 114 is unwarranted by law.
This, however, is not the correct interpretation of the charge of conspiracy framed against the appellant.
The charge was one of conspiracy, it being a conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards.
The particular offence to be committed was described in the alternative.
One was to commit an offence of forgery and to use the forged document and the other was the offence of fraudulently or dishonestly using the licence containing the forged certificates and endorsements.
The expression 'and/or ' in the first charge simply meant that the offences they had conspired to commit consisted either of the offence to commit forgery and subsequently to use the forged document as genuine or the object was merely to use the licence with forged endorsements even though there was not any conspiracy to commit forgeries in the licences.
In other words, the charge was that the appellant and Kalyanam entered into a conspiracy to commit offences punishable with rigorous imprisonment for two years or upwards and that the offences contemplated to include the offence of using the licence with forged endorsements and may also include the offence of forging the licence.
Thus there was no case of two alternative conspiracies.
The conspiracy was one and it being doubtful what the facts proved would establish about the nature of offences to be committed by the conspirators, the charge illustrated the offence in this form.
In his charge to the jury the learned Judge said at page 14: "In this case from the circumstances, it may not be very clear whether they actually made an agreement among themselves to do or cause to be done forgery of the document or whether they merely agreed to use it as a genuine document knowing that it was a forged document.
Therefore, the charge is in the alternative that either they agreed among themselves to do or cause to be done the forgery of this document or rather, the forgery of the endorsements of confirmation or revalidation; or in the alternative, they agreed among themselves regarding user of such a forged document knowing 115 that it is forged.
So both and/or ' is mentioned in the charge, either they agreed to commit forgery or they agreed to use it knowing it is forged or they agreed to do both, both to commit forgery and use it knowing it to be a forged document.
" Such a charge is justified by the provisions of section 236 of the Code.
We are therefore of the opinion that the charge of conspiracy does not suffer from any illegality.
We have carefully considered all that has been said in connection with the alleged misdirections in the charge to the jury and are of opinion that the charge does not suffer from this defect.
The Judge has at places expressed in unequivocal language what appears to him to be the effect of certain pieces of evidence.
But that, in our opinion, has not been in such a setting that it be held that the jury must have felt bound to find in accordance with that opinion.
The Judge has, at various places, stated that the jury was not bound by his opinion, that it had to come to its own conclusion on questions of fact and that it was the function of the jury to decide all questions of fact.
There is nothing wrong in telling the jury that even if the endorsements had been made by the proper departmental officer and they were ante dated, forgery would have been committed.
That is the correct proposition of law.
The ante dated document would be a false document.
Knowledge of ante dating the endorsements, naturally conveyed knowledge of the commission of forgery.
The mistake in the letter dated April 20, 1953, from the Chief Controller of Imports and Exports, is not such as to lead to the conclusion that the letter could not have been delivered to the proper addressee.
The appellant 's firm is located at 19, Sambhu Mallick Road and the address of this letter gave the number as 16.
Shop No. 16 could not have been at much distance from Shop No. 19.
The postman delivering letters at the two shops must be the same.
Postmen get to know the regular addressees by their names and ordinarily locate them even if there be some slight error or even omission in the address.
The letter 116 addressed to the appellant 's firm is not proved to have returned to the dead letter office or to the Chief Con troller of Imports and Exports.
If it was delivered by the postman at the Shop No. 16, ordinary courtesy requires that shop would have sent over the letter to the neighboring Shop No. 19.
The appellant 's conduct in not taking any action to find out what was the result of his representation to the Chief Controller of Imports and Exports is consistent with the view that he did receive the reply of the Chief Controller of Imports and Exports.
In the circumstances, an expression of opinion that the letter would have reached the appellant cannot be said to amount to a misdirection.
The learned Judge is perfectly justified to ask the jury to take into consideration the probabilities of a case, where no definite evidence, in connection with an incidental matter, exists.
We do not consider that the contentions raised do amount to misdirections.
In view of the above, we, see no force in this appeal and accordingly dismiss it.
Appeal dismissed.

summary/full:
The appellant was convicted by the Court of Session, High Court, Calcutta, of offences under section 120B read with section 471 and section 471 read with section 466 of the Indian Penal Code in respect of an import licence.
His appeal against the order of conviction and sentence passed by the trial judge was summarily dismissed by the High Court.
Although the conspiracy was entered into at Calcutta the offences of using the forged documents as genuine were committed at Madras.
It was contended on behalf of the appellant in this Court that the said offences having been committed outside the territorial jurisdiction of the Calcutta Courts, they had no jurisdiction to try the offences under section 471 read with section 466 of the Indian Penal Code, even though committed in pursuance of the conspiracy and in course of the same transaction.
Held, that the desirability of trying all the overt acts committed in pursuance of a conspiracy together is obvious and SS.
177 and 239 of the Code of Criminal Procedure, properly construed, leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction.
jiban Banerjee vs State, A.I.R. 1959 Cal.
500, overruled.
Pritam Singh vs The State of Punjab, A.I.R. 1956 S.C. 415, referred to.
Babulal Choukhani vs The King Emperor, (1938) L.R. 65 I.A. 158, relied on.
It is evident from the relevant provisions of the Code of Criminal Procedure that of the two types of jurisdiction of a criminal court, namely, (1) that of trying a particular offence and (2) its territorial jurisdiction, while the former goes to the root of the matter and any transgression of it renders the entire trial void, the latter is not of a peremptory character and leaves the place of trial open.
Assistant Sessions judge, North Arcot vs Ramaswami Asari, Mad. 779, referred to.
Although SS. 235 and 239(a) of the Code of Criminal Proce dure do not expressly so provide, there can be no doubt that 102 they contemplate the joint trial of offences and persons mentioned therein in a court whether or not all the offences to be tried by it are committed within its territorial jurisdiction, the only limitation being that the offences must have been committed in the course of the same transaction.
Section 177 of the Code, therefore, does not control section 239.
No presumption as to the approval of the Legislature of a particular construction of a statute can be drawn from the absence of any statutory modification of its provisions unless there is a consistent series of decisions in favour of that construction.
Case law discussed.


judgement:
No. 24 of 1960.
Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
C. B. Aggarwala and K. P. Gupta, for the petitioners.
N. section Bindra and D. Gupta, for respondents Nos. 1, 2 and 4.
K. L. Mehta and K. L. Hathi, for respondent No. 3. 1961.
April 19.
The Judgment of the Court was delivered by section K. DAS, J.
This is a writ petition under article 32 of the Constitution in respect of a dharmasala, an adjoining temple and some appurtenant shops, standing on a piece of land near the railway station at Barnala, district Sangrur, in the State of Punjab.
The petitioners are sons, grand sons and daughter of one Lala Ramji Das, and widow of one Tara Chand, a predeceased son of Lala Ramji Das.
The case of the petitioners in short is that Lala Ramji Das, who died in 1957, had built the dharmasala, temple and shops out of the funds of the joint family consisting of himself and the petitioners near about the year 1909 and during his life time managed the dharmasala, temple and shops on behalf of the joint family.
The dharmasala was built for the benefit of the traveling public and was used as a rest house by travelers; three deities were installed in the 71 temple and members of the public offered worship therein, though there was no formal dedication; and the shops were let out on rent for the upkeep of the dharmasala and temple.
They allege that after the Sri death of Ramji Das they came into possession of the properties in question but in January, 1958, the respondents, namely, the State of Punjab, some of its officials ' and the Municipal Committee, Barnala, by force and without any authority of law dispossessed them from the dharmasala in question and further deprived them of the control and management of the said dharmasala and temple and are seeking to interfere with their management and control of the shops appurtenant thereto.
The Municipal Committee, it is stated, was put in possession of the dharmasala and has opened its office in its main room.
The petitioners first asked for a copy of the orders in pursuance of which these acts were committed, but were unable to obtain the same.
The petitioners then made an application under article 226 of the Constitution in the Punjab High Court, which was rejected on the preliminary ground that the matter involved disputed questions of fact.
An appeal was also dismissed on the same ground.
The petitioners then filed the present petition and contend that the orders in pursuance of which the acts of dispossession have been committed as well as the acts themselves, constitute a flagrant infringement by the State and its officials of the fundamental right of the petitioners to hold and possess the properties in question unless and until they are evicted in due course of law, and accordingly they have prayed that: (i) a suitable writ, order or direction be issued quashing the illegal orders of the State Government, the Deputy Commissioner, Sangrur, and the Sub Divisional Magistrate, Sangrur, if any, culminating in the handing over of possession, management and control over the dharmasala, the temple and the shops to the Municipal Committee, Barnala, district Sangrur; (ii) a suitable writ, order or direction be issued 72 prohibiting the respondents from interfering with the management and control of the petitioners over the temple and the shops and with the realization of rent of the shops by the petitioners; (iii) a suitable writ, order or direction be issued to the respondents to withdraw their possession, control and management over the dharmasala and other properties and to put the petitioners in possession over the same; and (iv) such other and further writ, order or direction be issued which this Court may deem fit and proper in the interests of the petitioners.
It is necessary at this stage to recite briefly some of the earlier history relating to the dharmasala, temple and shops, so far as such history is available from the undisputed documents filed before us.
It is not disputed that the land on which the dharmasala, temple and shops stand was "nazul" property of the then State of Patiala.
Sometime in 1909 Lala Ramji Das who was carrying on a joint family business in the name and style of Faquir Chand Bhagwan Das asked for permission to construct a dharmasala on the land in question which was near Barnala railway station and therefore convenient, to travellers who come to that place.
At first, permission to build a dharmasala was granted by the then Patiala Government in favour, of the Choudhuris of Barnala bazar, who.
were unable however to get together adequate funds for the purpose.
Ramji Das then asked for sanction to construct the dharmasala in the name of the firm Faquir Chand Bhagwan Das and at the firm 's expense sometime in May, 1909.
This sanction was granted and communicated to Ramji Das by the Assistant Surgeon inching of Barnala hospital, who was presumably in charge of public health arrangements at Barnala.
The sanction was made subject to the following conditions (see exhibit A), "(1) No tax be, taken for this land from them.
(2) The shopkeepers will arrange 'Piao ' (shed for the arrangement for supplying drinking water) for the passengers and will maintain it.
73 (3) Plans of the building which they want to construct should at first be presented before me (Assistant Surgeon in charge).
(4) They will be responsible for observing cleanliness and sanitary rules and will construct good drains.
(5) No permission to construct any shop will be granted.
The building will be constructed only for the passengers.
(6) If the abovementioned conditions are not fulfilled, the State will dispossess them of the land.
" In 1909 the dharmasala was constructed with an inscription on stone to the effect "Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909.
" It appears that though one of the conditions was that permission to construct shops would not be granted, a number of shops were later constructed with the permission of the authorities concerned for meeting the expenses for the maintenance of the temple and dharmasala.
Soon after, that is in 1911, there was a complaint against Ramji Das (exhibit B) in which allegations were made to the effect that Ramji Das was utilising the dharmasala for his private purpose, etc.
Nothing appears to have come out of this complaint.
Sometime in January, 1925, Ramji Das himself appears to have made a statement to the Tahsildar, Barnala, in which he said: "This inn land was given to me by the Govern ment by way of wakf.
I invested money on the building from my own funds for charitable purpose.
I do not want to reap any benefit.
The Government will be within its rights to keep watch over it and maintain its accounts anyway it likes but it may not be used as a Government building and nor anyone be allowed to have a permanent abode therein.
It may be specifically reserved for the convenience of incoming and outgoing passengers.
The income derived from the shops by way of rent be spent over its repairs.
The income of rent is Rs. 15 to 16 per month.
I have appointed one man as inn keeper at the rate of Rs. 11 per month out of 74 this income for its supervision.
He will remain over there permanently." This statement was made in the course of an enquiry which was started earlier, the exact date of which is not ascertainable from the documents in this record but may have been instituted in 1920.
On April 7, 1928, the Revenue Minister, Patiala State, passed an order which said that though the land on which the dharmasala had been built was originally Government land (nazul property), it would not be proper to declare it as such and the dharmasala should continue to exist for the benefit of the public.
The order concluded with the following direction: "It would be proper if the inn be kept as it is for the public benefit, but it is hereby ordered that neither Ramji Das nor any other person will be competent to transfer it in any manner.
Ramji Das will look after it in the capacity of a Manager and the income accruing therefrom will be spent on the inn for the public benefit.
And if Ramji Das or any other person or Manager will transfer it, then any such transfer will be considered unlawful and invalid and in such an event the Government will eschewer it but even then this inn will be used for the public benefit.
No Government servant will make therein a permanent abode and nor would it be sold as Nazool property.
" The trouble did not end however with the order of the Revenue Minister.
A re investigation appears to have been ordered, presumably at the instance of the Sanatan Dharma Sabha, Barnala.
Again, an enquiry was hold and it was found by the Nazim, district Barnala, that the dharmasala and temple were constructed by Ramji Das; that he employed three employees one bandit for worship etc., one for looking after the travelers, and a third to keep the premises clean; that there was no order to take accounts from Ramji Das; and that repairs etc.
were carried out from the rents of the shops.
The Nazim, however, said in his order that the 'Sarai ' was declared to be that of the State, and presumably he said so on the ground that it stood on Government land.
Later, Ramji Das 75 obtained further permission to make a raised platform and other extensions, details whereof are not necessary for our purpose.
We then come to 1954.
On September 10, 1954, one Gopal Das, Secretary, Congress Committee, Barnala, filed a petition to the Revenue Minister, Patiala, in which various allegations were made against Ramji Das and it was prayed that Ramji Das be suspended and the management of the dharmasala etc.
be taken over by the State.
This petition was enquired into by the Tahsildar, who again found that the dharmasala was constructed by Ramji Das on Government land, that the dharmasala was for public benefit and that Ramji Das had been managing it all along.
He reported, however, that Ramji Das was bound to render accounts and as he had failed to do so and considered the property to be his own, he should be removed and past accounts called for.
The matter was then referred to the Legal Remembrance of the State Government.
This officer referred to the earlier order of the Revenue Minister and pointed out that the dharmasala and temple, though built on Government land, were not Government property and even though Ramji Das was repudiating the existence of a public trust, he was working as trustee of a trust created for public purposes of a charitable or religious nature and could be removed only as a result of a suit under section 92, Civil Procedure Code.
The matter appears to have rested there and no further action was taken against Ramji Das on the petition of Gopal Das.
We may refer here to a somewhat earlier order of the Revenue Minister dated December 13, 1954, in which there was a direction that a deed of trust should be executed appointing Ramji Das and two other persons as trustees.
No such trust deed appears to have been executed.
We now come to the last part of the story.
After the death of Ramji Das on December 10, 1957, the petitioners continued the management of the dharmasala, temple and the shops appurtenant thereto.
This was not seriously disputed before us.
The petitioners 76 paid the necessary taxes and electric charges for which they obtained receipts; they also realised the rent of the shops.
On or about December 23, 1957, Gopal Das and some others describing themselves as members of the public, Barnala, made an application that since Ramji Das was dead, new arrangements should be made for the proper management of the dharmasala which is used for the benefit of the public.
This led to fresh researches into the old papers, and this time the Sub Divisional Officer, Barnala, recommended that in the interest of Government (sometime before this Barnala come into the Punjab State) the Municipal Committee, Barnala, should take immediate charge of the management of the dharmasala.
This recommendation was affirmed by the Deputy Commissioner, Sangrur, who wrote to the Punjab Government for necessary sanction of the recommendation.
The sanction has not been produced before us, but learned Counsel for the respondents has produced before us the letter which the Deputy Commissioner wrote.
This letter says: "Subject:Management of 'Sarai ' near Railway Station, Barnala.
One Shri Ramji Das was appointed as Manager vide order of the Revenue Minister of the erstwhile State of Patiala dated 26 12 1987Bk of the property, as cited subject.
The Manager was only to look after the property and to utilize the income of the property for the improvement of the 'Sarai ' for publi c welfare.
Shri Ramji Das, manager is reported to have died and there is none else to manage 'Sarai '.
The section D. O., Barnala, has recommended that in the interest of the Government, the management of the 'Sarai ' may immediately be entrusted to the M. C., Barnala.
I also fully agree with the views of the section D. O., Barnala, who has accordingly been directed to hand over the management to the M. C. in anticipation of approval of the Government." In pursuance of the direction given by the Deputy Commissioner, the Kanungo presumably in accordance 77 with the orders of the Sub Divisional Officer, Barnala, dispossessed the petitioners from part of the dharmasala on January 7, 1958, and made over charge of the same to the Municipal Committee, Barnala.
The petitioners challenge these orders as being without authority of law and complain that these orders and the acts committed in pursuance thereof, amount to a flagrant violation of their fundamental rights under articles 14, 19 and 31 of the Constitution.
They say that they have been deprived of property by the State and its officers in pursuance of executive orders without authority of law; they have been denied equal protection of the laws; and their fundamental right to hold property has been violated in the most arbitrary manner which is destructive of the basic principles of the rule of law guaranteed by the Con stitution.
On behalf of the respondents an affidavit has been made by the Sub Divisional Officer, Barnala, in which it has been stated, inter alia, that "the property is trust property of a public and charitable character and the petitioners are not entitled to claim any property rights in respect of the same".
Assuming that the property is trust property of the nature suggested, no attempt has been made in the affidavit to show under what authority of law the State or its executive officers were justified in taking the action that was taken against the petitioners in respect of the dhar masala.
Learned Counsel for the respondents has sought to justify that action on the ground that the petitioners were mere trespassers and as the land on which the dharmasala stood belonged to the State, the respondents were entitled to use the minimum of force to eject the trespassers.
Secondly be has contended, on the strength of the decision of this Court in Sohan Lal vs The Union of India (1), that there is a serious dispute on questions of fact between the parties in this case and also whether the petitioners have any right or title to the subject matter of dispute; therefore, proceedings by way of a writ are not appropriate in this case inasmuch as the decision of the (1) [1957] S.C.R. 738.
78 Court would amount to a decree declaring a party 's title and ordering restoration of possession.
We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights.
There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Ramji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of section 60(b) of the Easements Act, 1882.
These are disputed questions which we do not think that we are called upon to decide in the present proceeding.
The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State; with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharmasala, temple and shops and managed the same during his life time.
After his death the petitioners, other members of the joint family, continued the management.
On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature.
A trustee even of a public trust can be removed only by procedure known to law.
He cannot be removed by an executive fiat.
It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakoor Chunder Parmanick vs Ramdhone Bhuttacharjee (1); Lala Beni Ram vs Kundan Lall (2) and Narayan Das Khettry vs Jatindranath (3).
These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit.
It is, therefore, impossible to hold (1) (2) (1899) L. R. 26 I.A. 58.
(3) (1927) L.R 54 I.A. 218.
79 that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State.
If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose.
Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State 's Legal Remembrancer.
It is well recognised that a suit under section 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust.
Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made ill 1925 and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a more trustee.
Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order.
We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order.
The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.
As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed questions of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909.
It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law.
The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executive orders.
Those orders must be quashed and the respondents must now be restrained from interfering with the 80 petitioners in the management of the dharmasala, temple and shops.
A writ will now issue accordingly.
Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law.
The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated.
In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property.
As pointed out by this Court in Wazir Chand vs The State of Himachal Pradesh (1), the State or its executive officers cannot in terfere with the rights of others unless they can point to some specific rule of law which authorises their acts.
In Ram Prasad Narayan Sahi vs The State of Bihar (2) this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others.
We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority.
Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only.
The reasons given for this extraordinary action are, to (1) ; (2) ; 81 quote what we said in Sahi 's case (supra), remarkable for their disturbing implications.
For these reasons, we allow the application with costs and a writ will now issue as directed.
Petition allowed.

dataset_name: IN-Abs

summary/full:
One Ramjidas built a dharmasala, a temple and shops appurtenant thereto with the joint family funds on Government land with the permission of the Government.
After his death the other members who were in management and possession of those properties were dispossessed by the State, its officers and the local Municipality which was put in possession.
The petitioners applied to the Punjab High Court for the issue of appropriate writs under article 226 of the Constitution, but the petition was dismissed on the, preliminary, ground that the matter involved disputed questions of fact.
An appeal against that order was also dismissed on the same ground.
The petitioners then moved this court under article 32 of the Constitution.
Their case was that they had been evicted without authority of law and in violation of the Constitution.
It was urged on behalf of the State that the property being trust property built on Government land, the petitioners were mere trespassers liable to be ejected with the minimum amount of force and relying on the decision of this Court in Sohal Lal vs The Union of India, it was further urged that redress by way of writs was wholly inappropriate in disputes on questions of fact and title.
Held, that on the admitted facts of the case the petitioners could not be trespassers in respect of the dharmasala, temple and shops, nor the State the owner of the property, irrespective of whether it was a trust, public or private.
The maxim, that what is annexed to the soil goes with the soil, is not an absolute rule of law in this country, and if the State wanted to remove the constructions or resume the land, it should have taken appropriate legal action for the purpose.
Thakoor Chunder Parmanick vs Ramdhone Bhuttacharjee, , Lala Beni Ram vs Kundan Lall, (1899) L.R. 26 I.A. 58, and Narayan Das Khettry vs jatindranath, (1927) L.R. 45 I.A. 218, referred to.
Even if Ramjidas was no more than a trustee, that would not give the State or its officers the right to take the law into their 70 own hands and the argument that the petitioners were tres passers and could be removed by an executive order must be rejected not merely as specious but highly dangerous in its implication.
It was not necessary in this case to determine disputed questions of fact, nor as regards the precise rights of the petitioners.
It was enough that they were bona fide in possession of the property and could not be removed except by authority of law.
The executive action taken in the present case must be deprecated as being destructive of the basic principles of the rule of law; it was a highly discriminatory and autocratic act which deprived a person of the possession of property without reference to any law or legal authority.


judgement:
Appeal No. 461 of 1957.
Appeal by special leave from the judgment and decree dated July 5, 1954.
of the Punjab High Court in L. P. A. No. 29 of 1953.
N. section Bindra and Sardar Singh, for the appellant.
P. D. Ahuja and H. P. Wanchoo, for respondent No. 1.
471 1961.
March 21.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave from the judgment of the Punjab High Court and arises out of a suit for possession of land brought by Munshi Ram, respondent.
The following pedigreetable will be useful in understanding the claim put forward by the respondent: Heman Karori Laghi Maghi Jai Dayal (issueless) Gobind Ata Nanak Chand Santu Munshi Ram (adopted son) plaintiff Hans Raj Salig Kam ( Defdt.) MunshiRam (adopted by Ata) The claim of Munshi Ram was with respect to the property left by Nanak Chand who is his natural grandfather and also Santu.
There is no dispute now about the property of Santu and we are concerned in this appeal only with the property of Nanak Chand.
Nanak Chand died in 1939.
Munshi Ram 's natural father Hans Raj had predeceased Nanak Dhand.
Munshi Ram himself was adopted by Ata in 1918 before the death of his natural father Hans Raj which took place in 1920.
It will be clear from these dates therefore that Hans Raj never succeeded to the property of his father Nanak Chand and Munshi Ram had been adopted by Ata even before Hans Raj 's death.
The case of Munshi Ram was that he was entitled to one half share of the property left by Nanak Chand as his their, according to Zamindara custom.
The parties, it may be Mentioned, are Brahmins and Munshi Ram claimed joint possession of the half share of the property left by Nanak Chand on his 472 death.
The suit was resisted by Salig Ram (defendant appellant) who is the other son of Nanak Chand.
His case was that Munshi Ram was not entitled either according to personal law or the riwaj i am of Amritsar district to any share in the property left by Nanak Chand.
The trial court held that Munshi Ram was entitled to succeed to the property left.
by, Nanak Chand along with Salig Ram and decreed the suit accordingly Salig Ram went in appeal to the District Judge but failed.
He then went in second appeal to the High Court but the second appeal was also dismissed The High Court having refused to grant a certificate the appellant applied to this Court for special leave which was granted; and that is how the matter has come up before us.
In questions regarding succession and certain other matters, the law in the Punjab is contained in section 5 of the , No. IV of 1872.
Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu law where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as is referred to in cl.
(a) thereof.
Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to Justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters.
The position therefore that emerges is, where the parties are Hindus, the Hindu law would apply in the first instance and whosoever asserts a custom at variance with the Hindu law shall have to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger.
As was pointed out by Robertson, J., as far back as 1906 in Daya Ram vs Sohel Singh and others (1), "in all cases under section 5 of the , it lies upon the person asserting that he is ruled (1) 1906 P. R. No. 110.
473 in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is.
There is no presumption created by the clause in favour of custom; on the contrary it is only when the custom is established that it is to be the rule of decision.
" These observations were approved by the Privy Council in Abdul Hussein Khan vs Bibi Sona Dero and another (1).
The same view has been taken by this Court in Ujagar Singh vs Mst.
Jeo (2).
We have therefore in the first instance to apply Hindu law to the parties to this suit, and it is only when a custom different from Hindu law is proved that rights of the parties would be governed by that custom.
Munshi Ram 's case was that he was adopted by Ata according to custom (i.e., in accordance with the mode prevalent in the community for purposes of adoption) during the lifetime of Hans Raj.
Thus Munshi Ram having been adopted by Ata would have no right left in the family of his natural father Hans Raj, unless the adoption was in the dvyamushyayana form.
It was however never the case of Munshi Ram that the adoption was in dvyamushyayana form and so far as Hindu law is concerned, if it applies to this case Munfshi Ram would not be entitled after the adoption to succeed to the property left by Nanak Chand.
But Munshi Ram 's case was that according to Zamindara custom he was entitled to succeed to half of the properties left by Nanak Chand.
The question therefore arises: what the Zamindara custom is in the present case.
In the plaint the custom was not actually pleaded, though strictly speaking this should have been done.
However, the custom that is relied upon is to be found in para.
48 of the Digest of Customary Law in the Punjab by Rattigan at p. 572, 13th Edition.
This paragraph appears in section V dealing with "Effect of Adoption on Succession" and is in the following terms: "An heir appointed in the manner above described ordinarily does not thereby lose his right to succeed (1) (1917) L. R. 45 I. A. 10, 13.
(2) [1959] SUPP.
2 S.C. R. 781 60 474 to property in his natural family, as against collaterals, but does not succeed in the presence of his natural brothers.
" It is not disputed before ,is that para.
48 applies in the case of adoption also; but what is contended on behalf of the appellant is that para.
48 only mentions a custom prevalent throughout the Punjab while the riwaj i am of Amritsar district from which area the parties come also records a custom confined to that area which really governs the parties.
It appears that in 1865 the riwaj i am of Amritsar district stated that "an adopted son will not be a co sharer amongst his brothers, in the property left by his natural father", i.e., a son given away in adoption will not inherit in the natural father 's family.
We may in this connection refer to Jai Kaur and others vs Sher Singh and others (1), where this Court held that "there is therefore an initial presumption of correctness as regards the entries in the Riwaj i am and when the custom as recorded in the Riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the Riwaj i am should ordinarily prevail except that as was pointed out by the Judicial Committee of the, Privy Council in a recent decision in Mt. Subhani vs Nawab (2), that where, a,% in the present case, the Riwaj i am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it.
" As females are not concerned in this case, the entries in the riwaj i am of Amritsar district in 1865, if they conflict with para.
48 of Rattigan 's Digest,, should prevail.
On that view Munshi Ram would have no right to succeed in the family of his natural father after he was adopted by Ata.
The High Court, however, pointed out that there were decisions of courts which did not accept the riwaj i am of Amritsar district of 1865 as laying down the correct custom and therefore para.
48 of the Digest by Rattigan would still prevail.
(1) A.I. R. (2) A.I.R. 1941 P.C. 21. 475 In this connection the High Court relied on Majja Singh and others vs Rain Singh (1).
That was however a case of Jats and not of Brahmins and the person who was adopted in that case was an only son.
That case would not therefore necessarily override the custom so far as it applies to Brahmins.
In any case the position is made clear by the Manual of Customary Law prepared in 1911 12 by Mr. Cralk.
The custom recorded in that compilation is that with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even if the latter dies without leaving any other son.
The High Court however pointed out that the Brahmin,,; and khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father.
In 1940 the customary law of Amritsar district was again compiled and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father.
The position as it emerges from a comparison of the entries in the riwaj i am of 1865, 1911 12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para.
48 should be adhered to as Brahmins and Khatris did not accept the extreme position that as on given away in adoption was excluded altogether from succeeding in his natural father 's family as recorded in 1911,12.
This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911 12 that a son given away in adoption succeeded in the family of his natural father if he had no brothers though the High Court did not notice this part of the answer in the riwaj i am of 1911 12.
The conclusion therefore at which we arrive is that amongst Brahmins and (1) 1879 P.R. No. 43 476 Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed.
Now let us see how this proposition works out in the present case.
In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but, to the property of Nanak Chand his natural grandfather.
If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj.
But Hans Raj, having died in the lifetime of his father (Nanak Chand), never succeeded to the property of his father.
The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand.
But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand.
In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj.
But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para.
48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi tam who would be representing his father.
The argument on behalf of Munshi Ram is that though for the purpose of representation Munshi Ram would be treated as if he stood in the shoes of his father, the representation could not go further and it could 'not be held that there were two sons of Nanak Chand living it the time of his death, one of whom in the guise of Munshi Ram was adopted away.
We cannot accept this 477 argument; and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj.
As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para.
48 of Rattigan 's Digest.
The position therefore is that neither under Hindu law nor under the custom recorded in para.
48 can Munshi Ram succeed to the property of Nanak Chand.
We therefore allow the appeal and set aside the decree of the courts below and dismiss the suit of the plaintiff respondent so far as the property of Nanak Chand is concerned.
In the circumstances we also order the parties to bear their own costs throughout as the High Court did.
Appeal allowed.

summary/full:
M, a Hindu belonging to the Brahmin community in the Amritsar District of Punjab, instituted a suit for the possession of a half share in the property left by his natural paternal grandfather.
His father had predeceased him, but another son of his grandfather was alive.
He had been adopted away in a different family but he claimed that according to the custom of his community in the district he was entitled to get his share in the estate of his natural grandfather.
The based his claim on the principle of representation that he, stepped into the shoes of his natural father.
Held, that under section 5 of the , the law applicable to Hindus in Punjab in respect of questions regarding succession and other matters referred to in that section, is Hindu law in the first instance, but where a custom different from Hindu law is proved then the rights of the parties would be governed by that custom; and whosoever asserts a custom at variance with Hindu law has to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger.
Held, further, that in the Amritsar district of Punjab amongst Brahmins and Khatri s, a son given away in adoption can succeed to the property of his natural father if there is no other son of the natural father, but if there is another son he cannot succeed.
Held, also, that in the present case neither under Hindu law nor under the customary law of Punjab could M succeed to the property of his natural grandfather.


judgement:
No. 85 of 1959.
Writ Petition under article 32 of the Constitution of India for the enforcement of fundamental rights.
A. V. Viswanatha Sastri, R. section Pathak, section N. Andley, Rameshwar Nath and P. L. Vohra, for the petitioner.
K. N. Rajagopala Sastri and D. Gupta, for respondents Nos. 1 and 2. 1961.
April 14.
The Judgment of the Court was delivered by section K. DAS,J.
One Ranjit Singh is the petitioner before us.
The respondents are the Commissioner of Income tax, Lucknow, the Income tax Officer, Lucknow, and the Collectors of three districts in Uttar Pradesh, namely, Dehra Dun, kanpur and Lucknow, being officers under whose orders certain properties of the petitioner and his family have been attached in pursuance of a notice of demand issued under section 29 of the Indian Income tax Act, 1922, in circumstances which we shall presently state.
The facts are shortly these.
In 1948 the Central Government referred a number of cases in which the petitioner was concerned to the Income tax Investigation Commission set up under the relevant provisions 968 of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947), hereinafter referred to as the Act.
On May 30, 1948, the Secretary of the Commission issued a notice to the petitioner to furnish a list of businesses or concerns in which the petitioner was interested and to produce the account books, registers etc.
relating thereto.
The petitioner complied with the notice.
Then, an Autho rised Official appointed by the Commission commenced an investigation into the cases in February, 1949, and in due course submitted a report to the Commission.
The Commission heard the petitioner and on April 16, 1949, submitted a report under section 8 A(1) of the Act.
The findings of the Commission appear from the following extract from their report: "The total tax payable on the undisclosed in come upto March 31, 1947 would accordingly be Rs. 6,61,917. . . . . .
The amount of Rs.6,61,917 may be recovered from Mr. Ranjit Singh and from the family assets in the hands of Mr. Ranjit Singh.
In view of the admission recorded as number (iii) in para 6 supra, the tax will also be recoverable from the properties acquired between 1939 and 1947 in the names of Mrs. Ranjit Singh and Mr. Ranjit Singh 's sons Baljit Singh and Satendrajit Singh.
In the circumstances, we recommend that no penalty be levied on the assessee in respect of non disclosures and false or incorrect statements so far made either to the income tax authorities or in the course of the present proceedings (including those before the Authorised Official).
Mr. Ranjit Singh and Mr. Vaidyanatha Ayyar (representative of Mr. Ranjit Singh) have asked that they be allowed sufficiently long time to pay up the tax.
It has been represented that out of taxes already assessed by the Income tax Department about Rs. 3,86,000 is still due and the addition of the amount leviable under this report will bring the assessee 's total liability to about 10 1/2 lakhs.
Mr. Ranjit Singh has asked that he may be permitted to pay up this sum in not 969 more than five years, in instalments of not less than a lakh of rupees at a time.
While we do not wish to go into the details of the offer, we recommend this request for time for favourable consideration by Government." Then, on November 7, 1949, the petitioner, his wife and two sons submitted a petition to the Commission in which they accepted the findings of the Commission as correct and offered to pay the tax in instalments in accordance with certain terms of settlement.
Some of these terms are: "3.
We offer to pay the aforesaid amount of Rs. 6,61,917 as per the following instalments: (1) on or before the 31st March, 1951 Rs. 1,00,000.
(2) on or before the 31st March, 1952 Rs. 2,31,000.
(3) on or before the 30th June, 1952 Rs. 3,30,917.
We, however, pray that so far as the last instalment is concerned in case we are unable to pay the same by the date mentioned above and are able to satisfy the Central Board of Revenue that we have failed to raise the money for reasons beyond our control and for no fault of our own, a suitable extension of time may be granted.
5.In respect of the other instalments, we agree that in case of default in the payment of any one of them, the whole amount of tax outstanding at the time shall become immediately payable.
" The report of the Commission and the terms suggested by the petitioner for a settlement were accepted by the Central Government and an order was passed under section 8 A(2) of the Act on November 21, 1949, which stated in its operative part that a demand notice be served immediately by the Income tax Officer concerned under section 29 of the Indian Income tax Act, 1922, on the petitioner in accordance with the terms and conditions of settlement and that all such other proceedings under the Indian Income tax Act or under any other law as may be necessary be taken with a view to enforce the payment of the demand and terms and conditions of the settlement.
122 970 The respondents allege that a demand notice was accordingly issued to the petitioner on December 2, 1949.
The petitioner alleges, however, that he received the notice in or about April, 1950, after the Constitution of India had come into force.
Thereafter, in pursuance of the demand notice certain payments were made by the petitioner.
The petitioner was, however, unable to make full payment within the stipulated periods mentioned in the demand notice.
The result was that according to the terms of settlement the whole amount outstanding at the time became immediately payable by the petitioner.
Then, certain properties of the petitioner and his family were attached by the Collector of the district concerned in pursuance of the orders received from time to time from the Income tax Officer.
On June 8, 1959, the petitioner filed the present writ petition challenging the legality of the demand notice dated December 2, 1949, and the subsequent proceedings taken in pursuance of that notice.
The case of the petitioner is that after the coming into force of the Constitution of India on January 26, 1950, the demand notice could not be given effect to and the proceedings taken in pursuance of that notice are unconstitutional inasmuch as they violate his fundamental rights guaranteed by the Constitution.
In the petition a reference has been made to Articles 14,31 and 19(1)(g) of the Constitution, but the argument before us has proceeded on the contention urged on behalf of the petitioner that there has been a violation of the fundamental right of equal protection of the laws guaranteed to him under article 14 of the Constitution inasmuch as he has been dealt with differently from other debtors who owe money to the State under a contractual liability.
The substantial prayer of the petitioner is for the issuance of a writ of mandamus directing the respondents not to give effect to the notice of demand dated December 2, 1949, nor to take any proceedings for enforcing the terms of settlement and for recovery of the sums specified therein.
The petition has been contested by the respondents and the principal point taken on their behalf is that 971 the legality of the demand notice dated December 2, 1949, cannot be challenged by the petitioner on the strength of the provisions of the Constitution, because the Constitution is prospective and not retrospective; secondly, it is contended on behalf of the respondents that the subsequent proceedings taken in pursuance of the demand notice aforesaid do not in any way violate the right of equal protection of the laws guaranteed under article 14 of the Constitution.
It is convenient at this stage to refer to some of the earlier decisions of this Court on the question of con.
stitutionality of some of the provisions of the Act.
On May 28, 1954, this Court delivered judgment in Suraj Mall Mohta and Co. vs A. V. Visvanatha Sastri and Another (1).
It is not necessary to state the facts of that decision.
It is enough to say that it was held therein that sub section
(4) of section 5 of the Act war, bad, as it offended the provisions of article 14 of the Constitution.
Sub section (4) of section 5 of the Act having been declared void, Parliament passed the Indian Income tax Amendment Act (33 of 1954) amending section 34 of the Indian Income tax Act, 1922.
As a result of this amendment, the validity of sub section
(1) of section 5 of the Act came in for challenge on the ground that the Income tax Officer could pick out some out of the class of substantial tax evaders and refer their cases under sub section
(1) of section 5 while dealing with other such persons under amended section 34 of the Indian Income tax Act.
In Shree Meenakshi Mills Ltd., Madurai V. A. V. Viswanatha Sastri and Another(2), sub section
(1) ' of section 5 of the Act was held to be bad on that ground.
It should be noted that in none of the petitions disposed of by that judgment had any assessment been made under the Act and this Court only prohibited further proceedings before the Commission under the Act, Finally, on December 20, 1955, came the decision of this Court in M. CT.
Muthiah & two Others vs The Commissioner of Income tax, Madras & Another (3).
In that case, on a reference under B. 5(1) of the Act, the Commission submitted its report to Government under (1) ; (2) (3) 972 s.8(1) of the Act on August 26, 1952 that is, after the coming into force of the Constitution, and the Central Government made its order under section 8(2) of the Act on September 16, 1952.
In these circumstances it was held: "The result, therefore, is that barring the cases of persons which were already concluded by reports made by the Commission and the directions given by the Central Government under section 8(2) of the Act XXX of 1947 culminating in the assessment or reassessment of the escaped income, those cases which were pending on the 26th January 1950 for investigation before the Commission as also the assessment or reassessment proceedings which were pending on the 26th January 1950 before the Income tax Officers concerned in pursuance of the directions given by the Central Government under section 8(2) of the Act would be hit by Article 14 of the Constitution and would be invalidated.
" Lastly, came the decision in Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan and Another (1).
That was a case of a settlement under section 8 A of the Act as in the present case, but the fact which distinguishes that case from the present is that the settlement there was made after the commencement of the Constitution.
It was held therein that the settlement was the result of a procedure which became discriminatory after the commencement of the Constitution and was therefore bad, and as the discriminatory process of investigation continued even after the commencement of the Constitution, the principle laid down in Syed Qasim Razvi vs The State of Hyderabad and Others (2 ) did not apply.
The point which requires emphasis with regard to these earlier decisions is this: they all dealt with the operation of a discriminatory procedure under the different provisions of the Act after the commencement of the Constitution.
The position in the case under our present consideration is that the settlement, the order under section 8 A(2) of the Act, and even the notice of damaged in pursuance of that order all these took (1) [1959] Supp. 1 S.C. R. 528.
(2) 973 place before the coming into force of the Constitution, and this ' vital distinction must be borne in mind in considering the contentions urged by learned Counsel for the petitioner.
The main contention is that the proceedings taken against the petitioner in pursuance of the order under section 8 A(2) are violative of the guarantee of equal protection of the laws under article 14 of the Constitution.
There are, however, two subsidiary contentions which do not directly raise any question of the violation of a fundamental right, and these may be disposed of before we deal with the main contention.
In his petition the petitioner has stated that he received the demand notice dated December 2, 1949 in or about April, 1950.
In the counter affidavit of the respondents it has been stated that the assessee was informed of the demand early in December, 1949.
A copy of the order of the Central Government under section 8 A(2) of the Act dated November 21, 1949, was sent to the petitioner; there is an endorsement in the office copy of the demand notice dated December 2, 1949, that it was sent by registered post, acknowledgment due.
Thereafter, the petitioner paid part of the tax on different dates without raising any objection that he had not received the demand notice before April, 1950.
It was for the first time in April, 1959, some ten years after, that the petitioner asked for a copy of the order under section 8 A(2) and information as to the date when he had received the regis tered notice of demanad.
He also asked for an inspection of the file.
This was, however, refused.
Then, the petitioner made the statement that he had received the demand notice in or about April, 1950.
He said that the statement was based on his knowledge; he did not disclose the source of his knowledge nor did he say how he remembered ten years after, without reference to any documents, that he had received the demand notice in or about April, 1950.
We are unable to accept the statement as correct.
On the materials in the record it is clear that the proceedings against the petitioner culminating in the service of the notice of demand against him were all completed 974 before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under article 14 of the Constitution; for it is well settled that the Constitution is prospective and not retrospective.
On the construction of section 8 A of the Act it has been argued that after the order made by the Central Government under sub section
(2) thereof, a fresh assessment was necessary and as no such assessment was made, all subsequent proceedings for recovery of the tax are illegal.
This is a point which has not been specifically taken in the petition.
That apart, we do not think that there is any substance in this contention.
We may here read section 8 A, so far as it is relevant: "section 8 A. (1) Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him, the Commission shall, if it is of opinion that the terms of the settlement contained in the application may be approved, refer the matter to the Central Government, and if the Central Government accepts the terms of such settlement, the Commission shall have the terms thereof recorded and thereupon the investigation, in so far as it relates to matters covered by such settlement, shall be deemed to be closed.
(2) For the purpose of enforcing the terms of any settlement arrived at in pursuance of sub ,section (1), the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940) or any other law may be taken against the person to whom the settlement relates, and, in particular, the provisions of the second proviso to clause (a) of sub section (5) of section 23, section 24B, the proviso to sub section (2) of section 25A, the proviso to sub section (2) of section 2 6 and sections 44 and 46 of the Indian Income tax Act, 1922 shall be applicable to 975 the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrears of income tax within the meaning of those provisions.
" The scheme of section 8 A is different from that of section 8.
The latter section contemplates an assessment or reassessment in accordance with the direction of the Central Government; see sub section
(4) of s, 8.
That is not the position under section 8 A, sub section
(2) whereof provides for the enforcement of the terms of any settlement arrived at in pursuance, of sub section
There is Do doubt a reference to certain special provisions of the Indian Income tax Act, 1922, regarding assessment of partners in a registered firm, tax payable by the representative of a deceased person etc.; but the reference to those provisions does not necessarily mean that a fresh assessment must be made.
They merely show that these special provisions will be applicable in appropriate cases.
Sub section
(2) ends by saying that "sections 44 and 46 of the Indian Income tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrears of income tax within the meaning of these provisions.
" This clearly shows that the true scope and effect of the sub section is to enforce the terms of any settlement arrived at in pursuance of sub section
(1) and to recover any sum specified in such settlement as if it were income tax or arrear of income tax in accordance with the provisions of sections 44 and 46 of the Indian Income tax Act, 1922.
We are unable, therefore, to accept the construction which learned Counsel for the petitioner seeks to put on the sub section.
This brings us to the main contention that the petitioner has been subjected to a discriminatory procedure after the coming into force of the Constitution by reason of section 8 A(2) of the Act.
Learned Counsel for the petitioner has put his argument in the following way.
He has submitted that what the petitioner agreed to pay to Government was really a 976 debt arising out of a contract viz., the settlement between him and Government and the petitioner is one amongst the larger class of persons who are debtors of Government; against all other debtors Government have the ordinary remedy by way of suit but against the petitioner a special remedy is provided which is more drastic and envisages the imposition of a penalty under section 46 of the Indian Income tax Act, 1922, if the petitioner is in default in making a payment of the amount due.
This, it is argued, is a discriminatory procedure which has been continued even after the coming into force of the Constitution.
We are unable to accept this argument as correct.
First of all, the petitioner does not really belong to the larger class of persons whom learned Counsel has characterised as debtors of Government.
The petitioner belongs to a special class who had evaded payment of Income tax and had entered into a settlement to pay the amount due as income tax or arrear of income tax.
For this class of persons the procedure laid down in section 8 A(2) is one and the same, and no discrimination is made in favour of or against any member of the same class.
The classification is a, reasonable classification having a just relation to the object of the pro vision.
For the recovery of the amount due as income tax or arrear of income tax all these persons are treated on the same, footing.
Neither is there any discrimination between them and other persons similarly placed in the matter of recovery of income tax.or arrears of income tax.
Secondly, it is open to the legislature to make a law as to how particular Government dues should be realised and if the law applies equally to all persons similarly situated, no objection call be taken to such law on the ground of discrimination.
The truth of the matter is that what the petitioner agreed to pay to Government is really income tax which should have been paid in regard to the relevant assessment years but which had escaped assessment and therefore the recovery is to be made according to income tax law.
That is all that section 8 A(2) says.
In the decisions of this Court to which we bad earlier adverted, what was held to be bad was 977 the application of a discriminatory procedure after the coming into force of the Constitution;.
even in Basheshar Nath 's case (1) the Commission applied the discriminatory procedure after the coming into force of the Constitution and then submitted its report on May 24, 1954, and the Central Government accepted the settlement on July 5, 1954.
It was held that the settlement itself was vitiated by the discriminatory procedure adopted by the Commission.
That is not the position here.
In this case everything was con cluded before January 26, 1950, when the Constitution came into force, including the issuance of a notice of demand.
All that remained to be done was the recovery of the amount according to the notice of demand.
Therefore, the crucial question is is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before ,January 26, 1950? We are unable to answer this question in favour of the petitioner for the reasons which we have already stated.
Learned Counsel for the petitioner relied on the decision in M. L. M. Muthiah Chettiar and Others vs Commissioner of Income tax, Madras (2).
The facts of that case were entirely different and no question arose there of considering the provisions of section 8 A (2) of the Act.
For these reasons we hold that there is no merit in the petition which is, accordingly, dismissed with costs.
Petition dismissed.
(1) [1959] SUPP.
1 S.C.R. 528.

summary/full:
In 1948 the Central Government referred a number of cases in which the petitioner was concerned, to the Income tax Inves tigation Commission set up under the relevant provisions of the Taxation on Income (Investigation Commission) Act, 1947.
After the Commission had submitted the report under section 8 A(1) of the Act, in which the total tax payable on the undisclosed income upto March 31, 1947, was estimated, the petitioner applied for a settlement of his case by offering to pay the amount of tax in instalments and by agreeing to pay the whole amount immediately in case of default in payment of any of the instalments in time.
The Central Government accepted the terms suggested by the petitioner and passed an order on November, 21, 1949, under section 8 A(2) of the Act directing the service of a demand notice on the petitioner and recovery of the tax in accordance with the terms and conditions of the settlement.
On December 2, 1949, a notice of demand was issued to the petitioner who, in pursuance thereof, made certain payments.
But as the petitioner was unable to make full payment within the stipulated periods, the whole amount outstanding became immediately payable and certain properties belonging to him and his family were attached by the Collector of the district Concerned for the recovery of the amount.
On June 8, 1959, the petitioner filed a writ petition tinder article 32 of the Constitution of India challenging the legality of the demand notice dated December 2, 1049, and the subsequent proceedings taken in pursuance of that notice on the ground that after the coming into force of the Constitution of India on January 26, 1950, they were violative of the fundamental right of equal protection of the laws guaranteed under article 14, inasmuch as what he had agreed to pay the Government as a result of the settlement was really a debt, and he had been dealt with differently from other debtors who owed money to the State under a contractual liability.
Held, (1) that the proceedings against the petitioner cul minating in the service of the notice of demand against him were all completed before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under 967 article 14 of the Constitution, because it is well settled that the Constitution is prospective and not retrospective; (2) that the true scope and effect of sub section
(2) of section 8 A is to enforce the terms of any settlement arrived at in pursuance of sub section
(1), which was really income tax which had escaped assessment; (3) that the petitioner belonged not to the larger class of debtors of Government but to a special class which had evaded payment of income tax for which the procedure laid down in section 8 A(2) was one and the same, and that the classification being reasonable having a just relation to the object of the provision, the recovery procedure cannot be challenged as discriminatory under article 14.
Suraj Mail Mohta and Co. vs A. V. Visvanatha Sastri and Another, [1955] 1 S.C.R.448, M. CT.
Muthiah & two Others vs The Commissioner of Income tax, Madras & Another, ; and Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan and Another, [1959] Supp. 1 S.C.R. 528, distinguished.