judgement:
Appeal No. 397 of 1960.
Appeal from the judgment and order dated. ' November 24, 1958, of the Kerala High Court ill I. T. R. No. 23 of 1957.
K. N. Rajagopala Sastri and I P.C. Menon, for the appellant.
A. V. Viswanatha Sastri Narayanaswami and R. Gopalakrishnan, for the respondent.
August 14.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by certificate ' granted by the High Court of Kerala raises the question of the application of a. 41(1) of the Indian Income tax Act (hereinafter called.the Act) to the fact of the case.
139 One P. B. Umbichi and his wife executed a deed dated December 20 191.5 creating thereunder a wakf of their properties.
It was provided therein.
, inter alia that the income from the properties mentioned therein should be utilised for the maintenance of their two daughters and their children on the female side.
For 40 years upto and inclusive of the assessment year 1954 55, the income tax assessments were made on the wakf through its manager under section 41 of the Act in the status of an individual.
But, for the assessment year 1955 56, the Income tax Officer treated the assessee as an association of persons, and, on the ground that the shares of the beneficiaries are indeterminate, levied tax at the maximum rate under the first proviso to section 41 of the Act.
On appeal, the Appellate Assistant Commissioner of Income tax held that the Income tax Officer was not right in holding that the members of the family were indeterminate, but he confirmed the assessment for the reason that, the shares were not specified among the individual members of the family and also between the members of the family on the one hand and the charitable and religious purposes on the other, the first proviso to section 41 would be applicable to the assessee.
On further appeal, the Income tax Appellate Tribunal took the View that the proprietary rights in the property in question vested in the Almighty and that the Mutawalli was only to look after ant administer the properties as a manager and, therefore, the proper person in whose hands the income from the properties should be assessed was the Mutawalli in his status as an "individual" at the rates applicable to an individual.
ID that, view, the appeal was allowed.
At the instance of the Commissioner of Income tax, the 'Appellate Tribunal referred to the High Court of Kerala the following question for its determination : "Whether in the facts and circumstances of the case, the first proviso to section 41 is applicable".
140 The High Court held that the said proviso was not applicable, as under the wakf deed the beneficiaries and their shares were ascertainable.
Aggrieved by the said order, the Commissioner of Income tax has preferred the present appeal.
Mr. Rajagopala Sastri, learned counsel for the Commissioner of Income tax, contended that on a fair reading of the terms of the wakf deed it would be clear that the Mutawalli was only directed to maintain the members of the family, that none of the members of the family had any ascertainable &hare in the income, and that, therefore, the case squarely fell within the first proviso to section 41 of the Act.
Mr. Viswanatha Sastri, learned counsel.
for the respondent, in addition to his attempt to sustain the construction put upon the wakf deed by the High Court, contended that the instant case fell outside the scope of section 41(1) of the Act, as the Mutawalli was only receiving the income, on behalf of the Almighty, that the Almighty was not a "Person", and that, therefore, as the main, section (lid not apply, the proviso also would not be attracted, with the result that the Muta award would have to be assessed as an "individual".
As the argument turns upon the construction of section 41 of the Act, it will be convenient at"the outset to read the relevant parts thereof.
"Section 41 : (1) In the case of income, profits or gains chargeable under this Act which. any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise, including the trustee or trustees under any Wakf deed which is valid.
under the , are entitled to receive on: behalf of any person, the 'tax shall be levied upon and recoverable from such. trustee trustees, 141 in the like manner and to the same amount as it would be leviable upon and recoverable from the pers on on whose behalf such income.
profits or gains are receivable, and all the provisions of this Act shall apply accordingly : Provided that where any such income, profits or gains or any part thereof are not specifically receivable on behalf of any one person, or where the individual shares of the persons on whose behalf they are receivable are indeterminate or unknown, the tax shall be levied and recoverable at the maximum rate, but, where such persons have no other personal income chargeable under this Act and none of them is an artificial juridical person, as if such income, profits or gains or such part thereof were the, total income of an association of persons.
" This section in term s applies to a trustee under a wakf deed which is valid under the .
Under the substantive part of.
the section, tax is leviable on the trustee of the wakf in the like manner and to the same amount as it would be leviable upon and recoverable from the beneficiary,that is,the assessment would be at the individual rates of tax applicable to the beneficiary.
But, under the first proviso to that section, there are two exceptions to the general rule, viz., (1) where the income is not specifically receivable on behalf of anyone person; and (ii) where the individual shares of the persons on whose behalf the income is receivable are indeterminate or unknown.
In those two circumstances tax shall be levied and recoverable at the maximum rate.
It is agreed that the first exception does not apply to the instant case.
But the question that falls to be decided is whether the individual shares of the persons on whose behalf the income is receivable are indeterminate or unknown.
The answer to the question depends upon the construction of the 142 provisions of the Wakf deed.
The Wakf deed was executed on December 20, 1950 by Umbichi and his wife dedicating their entire property, moveable and immoveable, of total value of rupees one lakh for the objects mentioned therein.
The Mutawalli appointed thereunder was directed to manage the properties in such a way as "to do acts necessary for charitable purposes and, to meet the maintenance expenses of their children and grand children and the female children that might be born to them in future, and to the male children born to the said female children".
The document proceeded to give further specific directions in the management of the properties.
After payment of taxes and meeting the expenses incurred for repairs and maintenance of the properties, the balance of the income should be utilised for the "daily necessary expenses of the house and food expenses as we are doing now", and for purchasing "dresses and other necessities for the then male and female members of the tarwad" and for conducting "nerchas (ceremonies) ,such as Yasin, Moulooth, etc., charitable ceremonies for feeding the poor and such other necessary expenses , and out of the balance, if any, the Mutawalli was directed to acquire properties yielding good income.
The rest of the recitals in the document are not relevant for the present purpose.
Can it be said that, under the document, the individual shares of the beneficiaries are specified ? The document does not expressly specify the shares of the beneficiaries; nor does it do so by necessary implication.
Indeed, ' the individual shares of the beneficiaries Are not germane to the objects of the document.
The Mutawalli was directed to bear, out of the income the expenses necessary for maintaining the members of the tarwad and to conduct the necessary religious ceremonies.
The distribution of the family income and: family expenses was left to the discretion of the 143 Mutawalli, the document also further contemplated that the Mutawalli by his prudent and efficient management would save sufficient amounts for purchasing properties.
The 'directions indicate beyond any reasonable doubt that no specified share of the income was given to any of the benefit series, and their right was nothing more, than to be maintained having regard to their reasonable requirements which were left to the discretion of Mutawalli.
While it is true that the number of beneficiaries would be ascertainable at any given point of time, it is not possible , to hold, as the High Court held, that under the document the beneficiaries had equal shares in the income.
The beneficiaries had no specified share in the income, but only had the right to be, maintained.
The construction put upon the document by the High Court cannot, therefore, be sustained on the plain wording of the document. 'We, therefore bold that under the terms of the document the individual shares of the beneficiaries are indeterminate within the meaning of the first proviso to section 41(1) of the 'Act.
If so, under the said proviso, the assessee is ,liable to pay income tax, at the maximum rate.
The alternative contention of learned counsel 'for the respondent remains to be considered.
The argument is that 'under the Wakf deed the properties vest in the Almighty and, therefore, the Mutawalli receives the income 'only on behalf of the Almighty and not on behalf of any person within the ' meaning of section 41(1) of the Act, with the result that section 41(1) is not applicable to the assessment in question.
The argument is rather subtle, but it has no force.
There are three effective answers to this contention Firstly, it was not raised before the High Court the only question argued before the High Court was whether the beneficiaries of the trust and their individual shares of the income of the trust were ascertainable.
144 Secondly, though under the Mahomedan Law the properties dedicated under a Wakf deed belong to the Almighty, it is only in the ideal sense, for the Mutawalli in the name of the Almighty utilises the income for the purposes and for the benefit of the beneficiaries mentioned therein.
Under the Mahomedan Law, the moment a Wakf is created all rights of property pass out of the wakf and vest in the Almighty. 'The property does not vest,in the, Mutawalli, for he is merely a manager and not a trustee in the technical sense. 'Though Wakf property belongs to the Almighty, the practical significance of that concept is explained ill Jeuwun Dass Sahoo vs Shah Kubeer ood deen (1) thus : ". . . .
Wakf signifies the appropriation of a particular article in.
such a manner as subjects it to the rules of divine property, whence the appropriator 's right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures .
" That is, though in an ideal sense the property yet in the Almighty, the property is held for the benefit of His creatures, that is, the beneflciaries. 'Though at one time it was considered that to constitute a valid Wakf there must be dedication of property solely to tbe Worship of God or for regious or charitable, purposes, the Wakf Validating ,Act, 1913, discarded that view and enacted by section 3 that a Mussalman can create a wakf for the maintenance and support, wholly or partially, of his family, children or descendants,provided the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
Section 4 of the said Act, goes further and says that a wakf shall not be invalid by the mere ' circumstance that tile benefit (1) (1840)2.
M.I.A. 390, 421.
145 reserved for the poor or for religious purposes is postponed until the extinction of the family It is, therefore, manifest that under the Mahomedan Law, the property vests only in the Almighty, but the Mutawalli, acting in ' His name, utilises the income for the advantage of the beneficiaries.
Therefore, the words ,,on behalf of any person" in section 41 of the Act , can only mean on behalf of the beneficiaries and not on behalf of the Almighty.
The third and more effective answer to the argument is that section 41(1) of the Act provides for a vicarious assessment in order to facilitate the levy and collection of income tax ' from a trustee in respect of income of the ' beneficiarios.
In express terms it equates the Mutawalli of a wakf to a trustee.
For the purpose of section 41 the Mutawalli is treated as a trustee and, on the analogy of a trustee, he holds the property for the benefit of the beneficiaries.
There is no scope for importing the Mahomedan Law of Wakf in section 41 when the section in express terms treats the Mutawalli as a trustee, though he is not one in the technical sense 'under the Mahome 'dan Law.
If the argument of learned counsel for the respondent be accepted, it would make section 41 of the Act otiose so far as wakfs are concerned, for in every case of wakf the property I would be held for the Almighty and not for any person.
We, therefore, reject this contention and answer the question in the affirmative.
In the result, we set aside the order of the High Court and hold that the, respondent was rightly assessed by the Income tax Officer at the maximum rate.
The appeal is allowed with costs.
Appeal Allowed.

summary/full:
The question for determination in the appeal was whether the wakf in question should be assessed to tax under s.41 (1) of the Indian Income tax Act.
1922, through the manager as individual or as an association of persons at the maximum rate under the first proviso to that section on the ground that the individual shares of the beneficiaries were indeterminate and unknown.
The wakf deed directed the mutawalli to do acts necessary for charitable purposes and to meet the maintenance expenses of the wakif 's children, grand children, the female children born in the future and the male children born to the said female children and after payment of taxes and meeting of expenses for repairs,and maintenance of properties, to utilise the balance of the income for daily necessary expenses of the house and for food for purchasing dresses and other necessities for the and female members of the tarwad.
for conducting specified ceremonies, for feeding the poor and for.
meeting such.
other then necessary expenses and thereafter to utilise the balance, if any, in acquiring properties yielding good income.
138 Held that under the terms of the wakf deed the individual shares of the beneficiaries were indeterminate within the meaning of the first proviso to s.41 (1) of the Indian Income tax Act, 1922, and as such the assessee was liable to pay income tax thereunder at the maximum rate.
It was not correct in view of ss.3 and 4 of the , to say that under the wakf deed the property vested in the Almighty and the Mutawalli did not therefore, receive the income on behalf of any person within the meaning of s.41 (1) of the Indian Income Tax Act and as such the proviso could not come into operation.
Under the Mahomedan law wakf property vests in the Almighty only in an ideal sense and the Mutawalli, acting in his name, utilises the income for the advantage of the beneficiaries.
The words "on behalf of any person" in s.41 of ' the Act, therefore, could only mean on behalf of the beneficiaries and not on behalf of the Almighty.
Jewun Doss Sahoo vs Shah Kubeer ood deen, (1 841) 2 M.I. A. 390, referred to.
Held, further, that there was no scope for importing the Mahomedan Law of wakf in s.41 of the Act since that section in express terms treated the Mutawalli as a trustee though he is not one in the technical sense under the Mohamedan Law.


judgement:
Appeal No. 328,of 1958.
Appeals from the judgment and order dated September 12, 1956, of the Calcutta High Court in Appeal from Original Order No. 15 of 1955.
B. Sen P. K. Chatterjee and P.K. Bose, for the appellants.
Dipak Datta Choudhri and P. D. Menon., for respondent No. 2. 1961.
August 16.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal raises the question of construction of the expression ,,telegraph line" in section 34(2)(b) of the (Act 9 'of 1910), (hereinafter called the ' Act).
The first respondent, Laxmi Narayan Chopra, carries on business, as motor coach builder;, under the name and style of "Chopra Motors" having, his factory at 139, Regent Park, Tollygunge in the suburbs of Calcutta., In the said factory a number of "Universal Electric Motors" are operated for the purpose of working electric drills.
Within a distance of 100 feet of the said factory, there is a Post and Telegraph Wireless Station, which, besides functioning as a coast station communicating with ships at sea, handles public messages in large volume from Darjeeling, Shillong, Gauhati, Agartala and New Delhi.
In or about Aril, 1953 severe electrical interference was observed in the said station and experts attributed the same.
to local induction from the first respondent 's factory.
On October 13, 1953, the Senior Electric Inspector issued a notice to the first respondent to show cause writing as to why an order under section 34(2)(b) of the Act, read with notification No. 4193 COM, dated August 1 14, 1929 requiring discontinuation of the operation of the Universal Electric Motors in the 149 said factory premises should ' not be made.
After some correspondence: on: December 1, 1953, the Senior Electric Inspector made an order under a. 34(2)(b) of the Act requiring the first respondent to remedy the injuries affecting the lines used for wireless telegraphic communications at the Wireless Receiving Centre.
On January 12, 1954, the first respondent filed a petition in the High Court at Calcutta under article 226 of the Constitution pray for a writ of mandamus or any other appropriate mug writ directing the appellants to withdraw and cancel the said order and to forbear from giving effect to the same.
The petition came up for hearing, in the first instance, before Sinha J., of that Court.
It was contended, interalia, that there was no "telegraph line" in the Post and Telegraph Wireless Station within the meaning of s.34(2)(b) of the Act, and, therefore, the notice issued by the Senior Electric Inspector was without jurisdiction.
Sinha J., rejected the contention and dismissed the petition.
But on appeal, a division bench of that High Court, consisting of Mookerjee, A. C, J., and H. K. Bose J., accepted the contention of the first respondent and issued a writ as prayed for.
The present appeal is directed against the said order.
Learned counsel for the appellants contends that the definition of ", 'telegraph line" in the , (Act 13 of 1885), which is included by reference in the Act, is wide, enough to take in electric lines used for the purpose of wire.
less telegraph and that the Appellate Bench of the High Court went wrong in invoking the old maxim contemporanea expositio est optima et fortissima in lege in construing the provisions of a modern state.
The first respondent is ex parte; but in this case hisviewpoint is forcibly expressed in the judgment of the High Court under appeal.
To appreciate the rival contentions, it is necessary at the outset.
to read I the relevant provisions of the Act and the Telegraph Act.
150 The Section 34.
(2) If at any time it is estab lished to the satisfaction of the appropriate Government (b)that any electric supply lines or other works for the generation, transmission, supply or use of energy are attended with danger to the public safety or to 'human life or injuriously affect any telegraph line, the appropriate Government may, by order in writing, specify the matter complained of and require the owner or user of such electric supply lines or other works to remedy it in such manner as shall be specified in the order, and may also in like manner forbid the use of, and the supply of energy to, any electric supply line or works 'until the order is complied with or for such time as is speci fied in the order.
Section 2.
In this Act, expression,.
; defined in the , or in the , have the meanings assigned to them in either of those Acts. .
The Section 3.
(1) "telegraph" means an electric, galvanic or magnetic telegraph, and includes appliances and apparatus for making, transmitting or receiving telegraphic telephonic or other communications means of electricity, galvanism or magnetism.
(4)"telegraph line" means a wire or wires used for the purpose of a telegraph with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus con nected therewith the purpose of fixing or insulating the same.
A combined reading of the relevant provisions of 151 the two Acts may be expressed thus: " 'Telegraph line" means a wire or wires used for the purpose of an appliance or apparatus for receiving telegraphic or other communications by means of electricity.
If it is established to the satisfaction of the appropriate Government that any works for the generation transmission supply, or use of electrical energy injuriously affects such a telegraph line the said Government is authorized to take appropriate action under.s. 34 of the Act.
It is not disputed that in the said factory a number of Universal Electric Motors are operated for the purpose of working electric drills and it is also established that the interference with the reception of messages at the Telegraph Wireless Station is, attributable to local induction from the said factory.
But the, dispute between the parties centers round the question whether the said interference with the reception of messages at the said Station injuriously affects any telegraph line within the meaning of section 34 of the Act.
The Telegraph Wireless Receiving Station clearly comes within the definition of "telegraph" in the Telegraph Act.
The Telegraph Act was passed in 1885.
"Telegraph" then meant "an electric, galvanic or magnetic telegraph and appliance, and apparatus for telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism".
At that time wireless telegraphy or radio had not been developed.
In the year 1914,s.
3(1) of the said Act was amended and the following words were inserted after the words "apparatus for" : " 'making transmitting or receiving".
With the result that, after the amendment, receiving of communications by means of electricity was included in the definition.
A wireles.
receiving station certainly receives communications by means of electricity, and therefore, it.
is "telegraph" within the meaning of said definition.
Though the., said station may be within the definition of "telegraph", the question still remains 152 whether there is a "telegraph line", for, under the definition, to be a ',,telegraph line" there shall.be a wire or wires used for the purpose of an apparatus receiving communications by means of electricity Under the heading "wireless telegraphy" in.
the Encyclopedia Britannica, Vol. 28, a brief but adequate description of a wireless telegraphy is given thus "A wireless transmitter is a device for producing rapid oscillatory motion of electri city which is the origin of electric waves.
Such electric waves are detected at a wireless receiving station b 'the effects of the rapidly varying electric and magnetic forces Which constitute the electric wave motion.
" Are any wires used for the purpose of the apparatus receiving the said communications ? In the Encyclopedia Britannica some of the receiving stations ate described and 'it shows that wires are invariably used as aerials for receiving the said communications.
In the present case , the Senior Electric Inspector filed an affidavit wherein he stated "it was established to my satisfaction that the operation and use of the 'Universal drills during the working hours of the factory caused serious interference by induction to the existing lines as well as to the receiving apparatus containing wires which are/were expressly used for telegraphic communication at the said centre.
" It is there fore manifest that wires are used for the purpose of the apparatus receiving communications that is, wires are used not only for the aerial but &ISO inside the apparatus.
A 'wireless transmitter transmits sound as electromagnetic waves and the said waves are detected by the.
aerial and fed into the receiving apparatus by wires.
To put it shortly the wires of the aerial as well as of the apparatus are used for the purpose of the apparatus receiving communications.
If so, it follows Chit the receiving 153 appartus employs "telegraph lines" within the meaning of section 3(4) of the Telegraph Act.
The High Court gave two reasons for rejecting the appellants ' contention.
The first reason is that the word line ' in the expression 'telegraph line ' connotes the existence of a defined channel of communication which has got a physical existence and that wireless telegraphy is dependent upon transmission through space of electric waves and that is not a defined physical channel.
We cannot accept this reasoning, for a telegraph line is not defined to mean a defined continuous physical channel from the point of transmission to the point of reception.
The definition, as we have pointed out, is comprehensive enough to take in any wire used for the purpose of an apparatus for receiving communications by means of electricity.
The second reason given by the learned Judges is that the expression " 'telegraph line", as used in section 34(2)(b) of the , has, in the absence of any new definition in that Act., to be given the same sense as the Legislature had intended in 1885 by the definition of that expression in the earlier Act.
This reason is based upon the maxim contemporanea expositio est optima et fortissima in lege (contemporaneous exposition is the best and strongest in law).
To state it differently, in the year 1885 the Legislature could not have dreamt of the future discovery of wireless telegraphy and, therefore, could not have intended to use the expression "telegraph line" in a comprehensive sense so as to take in electric wires of a receiving station of wireless telegraphy.
It is necessary to consider the scope of the said maxim in its application to the interpretation of modem statutes.
In Craies on Statute Law, 5th edn., the said rule is explained in the words of Coke thus at p. 77.
154 "This and the like were the forms of ancient Acts and graunts, and,, the.
ancient Acts and graunts must.
be ' 'construed and taken as the law was holden at that time when they were, made.", The discussion ended with the following words at p. 79 "In Assheton Smith vs Owen(1), Cozens Hardy, L. J. said do not think that the doctrine of contenporanea exposition can be applied in construing Acts which are, comparatively modern and the Court declined to apply the rule 1 to the interpretation of local Acts of 1793 and 1800.
" In Halsbury 's Laws of England, 2nd edn., Vol., 32, it is stated in the context of telegraph legislation thus at p. 4 The fact that new methods of telegraphy have been invented since the date of passing of the Acts containing the definition does not prevent the application of the Acts to such methods, provided that they answer the requirements and fall within the terms of the definition." In Sutherland 's Statutory Construction, 3rd.
edn., Vol. 2, dealing with the said maxim, the learned author states at p. 508 as follows "As a general rule it may be stated that legislative intent should be determined as of the time the legislation goes into effect.
But surrounding circumstances and situations occurring after the enactment of the statute may be of great or even conclusive assistance in determining a meaning which was intended to be conveyed.
Legislative standards are generally couched ill terms which have, considerable breadth.
Therefore a. status may be interpreted to include.
, circumstances or (1) , 213.
155 situations which were unknown or did not exist at the time of the enactment of the statute.
" Decided cases accepted the said liberal approach in construing modern statutes.
In The Attorney General vs The Edison Telephone Company of London (1),a telephone was held to be a "telegraph" within the meaning of the Telegraphs Acts, 1863 and 1869, although the telephone was not invented or contemplated in 1869.
Stephen, T., observed at p. 254 : "Of course no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing future discoveries as to the use of electricity for the purpose of conveying intelligence." The Privy Council in re Regulation and Control of Radio Communication in Canada ( 2) held that broadcasting fell within the m eaning of the expression in s.92 of British North America Act,1867, though at the time when that Act was made broadcasting was not in vogue.
In The King V. Brislan ; ex parte Williams(3) the question was whether a law of the Commonwealth Parliament with respect to radio broadcasting was one with respect to "Postal, telegraphic telephonic and other like services" under section 1(5) of the Australian Commonwealth Act, and the Court held that the words were wide enough to take in radio broadcasting.
In James vs Commonwealth of Australia(4),Lord Wright has state the principle in felicitous language thus (1) (2) (3) ; (4) , 641.
156 ". the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning.
" This Court in construing the words "sale of goods" in Entry 48, List II of the Seventh Schedule to the Government of India Act, 1935, accepted the aforesaid principle in The State of Madras V. Gannon Dunkerley and Co., (Madras) Ltd. (1),and restated it at p. 416 thus "The principle of these decisions.
is that when, after the enactment of a legislation, new facts and situations arise which could not have been in its contemplation, the statutory provisions could properly be applied to them if the words thereof are in a broad sense capable of containing them." The legal position may be summarized thus: The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern.
There is a good reason for this change in the mode of interpretation.
The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the Legislature.
It is perhaps difficult to attribute to a legislative body functioning in static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used.
It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made.
But in a modem progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware (1) ; 157 of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human.
activity.
Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.
We cannot, therefore, agree with the learned Judges of the High Court that the maxim contemporanea expositio could be invoked in construing the word "telegraph line" in the Act.
For the said reasons, we hold that the expression " 'telegraph line" is sufficiently comprehensive to take in the wires used for the purpose of the apparatus of the Post and Telegraph Wireless Station.
In the result, we set aside the order of the High Court and dismiss the petition filed by the first respondent.
The appeal is allowed, but, in the circumstances of the case, without costs.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
Severe electrical interference was observed in a Post and Telegraphs Wireless Station which was traced to the respondent No. 1 's factory where a number of motors, were operated for the purpose of working electric drills.
The Senior Electric Inspector issued a notice to the first res pondent to show cause as to why an order under s.34(2) (b) of the Indian Electricity Act requiring discontinuance of the operation of the electric motors in the said factory should not be made.
The first respondent challenged the said order by a writ petition contending inter alia that there was no "Telegraph Line" in the Posts and Telegraphs Wireless Station within the meaning of s.34(2)(b) of the Act.
The High Court held, firstly, that the word 'line ' in the expression telegraph line ' connotes the existence of a defined channel of communication which has got a physical existence and that wireless telegraphy is dependent upon transmission through space of electric waves and that is not a defined physical channel.
Secondly, the expression "telegraph line", as used in section 34 2)(b) of the Indian Elec tricity Act, has, in the absence of any new definition in that Act, to be given the same sense as the Legislature had intended in 1885 by the definition of that expression in the earlier Act.
This reason is based upon the maxim contemporaries exposition west optima et fortissima in lege (contemporaneous exposition is the best and strongest in law).
The appellants contended that the definition of "telegraph line" in the , was wide enough to take in electric lines used for the purpose of 147 wireless telegraph and the High Court went wrong in invoking the old maxim contemporanea expositio est optima et fortisima in lege in construing the provisions of a modern statute.
Held, that the combined reading of the relevant, provisions of the , and the , a "Telegraph line" is comprehensive enough and means a wire or wires used for the purpose of an appliance or apparatus for receiving telegraphic or other communications by means of electricity, and it need not be a continuous physical channel from the point of transmission to the point of reception.
A wireless transmitter transmits sound as electro magnetic waves and the said waves are detected by the aerial and fed into the receiving apparatus by wires.
So the wires of the aerials well as of the apparatus are used for the purpose of the apparatus receiving communications.
Thus, the receivingapparatus employs "telegraph lines" within the meaning ofs.3 (4) of the Telegraph Act, 1885.
Held, further, that the maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes, but not to interpreting Acts which were comparatively modem: The fundamental rule of construction is the same whether the court is asked to construe a provision of an ancient statute or that of a modern one, namely what is the expressed, intention of the Legislature.
In a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, and unless a contrary intention appeared, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.
The maxim "contemporanea expositio" could not be invoked in construing the word "telegraph line" in the .
Assheton Smith vs Owen, (1906)1 Ch.
179, Attorney General vs Edison Telephone Co. of London, (1880)6 Q. B. D. 244 In re Regulation and Control of Radio Communication in Canada, , The King vs Brislan,.
Ex parte Williams, ; and James vs Commonwealth ,of Austratia, , referred to.
State of Madras vs Gannon Dunkerley & Go.
(Madras) Ltd. ; , relied on., 148


judgement:
Appeals Nos.
474 to 501, 503 to 505, 508 to 512, 514 and 515 of 1959.
Appeals from the judgment and orders dated November, 28, 1956, in O. J. C. No. 213 of 1955 and dated December 4, 1956, of the Orissa High Court in O. J. C. Nos.
214 to 216, 218, 236 to 241, 244 to 248, 251, 261 to 264, 268, 269, 271, 279 to 282, 304 to 306, 318, 323, 324, 353, 357, 363 and 372 of 1955.
A. V. Viswanatha Sastri and M. section K. Sastri, for the appellants (in C. As.
474 487, 489 501 503 505 and 508 510 of 1959).
M. section K. Sastri, for the appellant ( In C. A. No. 488/1959).
G. C. Mathur, for the appellants (In C. As.
Nos. ,111, 512, 514 and 515 of 1959.) C. K. Daphtary, Solicitor General of India B. R. L. Iyengar and P.M. Sen, for the respondents.
August 22.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
These are 38 appeals against the judgment and orders of the High Court of Orissa dated November 28, 1956, by which 42 petitions under article 226 of the Constitution filed by the present appellants and some others were dismissed.
The High Court certified the cases as fit for appeal to this Court under article 132(1) of the Constitution.
The appellants are holders of pre settlement minor inams in the State of Orissa.
Their grants art, different both in regard to the time when they were made and the lands involved in them.
They were made for performance of services of deities and were classed as Devadayam grants in the revenue papers.
The grants in all these cases were not of whole villages but of certain lands and hence their classification as minor inams, and they comprised both the melwaram and kudiwaram rights 252 in the lands.
It is not necessary to refer to these cases separately, since a single argument was addressed before us involving the consideration whether Notification No.4971 XV 9154 E.A. dated July 15, 1955, issued by the Orissa State Government, and the Orissa Estates Abolition Act, 1951 (Act 1 of 1952) as amended by the Orissa Estate Abolition (Amendment) Act, 1954 (Act XXVII of 1954) were respectively beyond the competence of the State and the Orissa State Legislature.
By the original Act, all estates of the intermediaries were abolished, and on a notification by the Government, such,estates vested in Government.
By the amending, Act, the definition of ' "estate" was widened to cover even such;, minor inams, and then the impugned notification was issued.
The appellant contend that the original Act and the amending Act were, jointly or severally beyond the competence ,of the State Legislature and that the notification above mentioned was void without any effect.
The Bill resulting in the original Act was introduced on January 17, 1950, and the Act was passed by the Legislative Assembly September 28, 1951 It was reserved for the consideration of the president, Who gave his assent on January 23, 1952.
In; the Act, before its amendment in 1954, "estate" was defined as follows "2(g) 'Estate ' means any and held by an intermediary and included under; one entry in any of the general registers of revenue paying lands and revenue free lands prepared and maintained under the law for the time being in force by the collector of district , and includes revenue free lands not entered in any register and all classes of tenures or under tenures or an inam estate or part of an estate" By the amending act of 1954 this definition was substituted by another which, read: 253 "2(g) 'Estate ' includes apart of an estate and means any land held by or vested in an intermediary and included under one entry in any revenue roll or any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law relating to land revenue for the time be ing in force or under any rule, order, custom or usage having the force of law, and includes revenue free lands not entered in any register or revenue roll and all classes of tenures or under tenures and any jagir, inam, or muafi or other similar grant.
" In the original Act as well as in the Act as amended, there was a general provision in s.2(q) which may be read here : "(q) All words and expressions used in this Act but not defined in it, shall have, with reference to any part of the State of Orissa, the same meaning as defined in the tenancy laws and rules for the time being in force and in the absence of written laws and rules, as recognised in the custom for the time being obtaining in that part of the State of Orissa.
" In the original Act, a provision was inserted by s.3 of the amending Act to the following effect "3.
For the purpose of removal of all doubts it is declared that such lands and such rights in relation thereto and such persons who hold such lands and such rights as were heretofore covered by the definitions of the words 'estate ' and 'Intermediary ' in the Orissa Estates Abolition Act, 1951, shall not cease "to be so covered merely on the ground that by virtue of the provisions of this Act the said definitions have been amended and widened in scope.
" The meaning of the last provision is clear.
It takes away nothing from the ambit of the old definition, 254 but only adds thereto, as indeed the new definition of "estate" introduced by the amending Act shows only too plainly in its terms.
To complete the survey of the provisions which we way have to refer to in this judgment, we first set down the definition of "estate" as given in the Madras Estates Land Act, 1908, which was applied to Orissa.
Section 3(2)(d) of that Act defined " 'estate" as: "Any inam village, of which the grant has been made, confirmed or recognised by the Government, notwithstanding that subsequent to the grant the village has been partitioned amongst the grantees or the successors in title of the grantee or grantees.
" The argument in this case is based upon this definition, because in defining an estate ', whole villages which were inam were contemplated and not minor inams of lands only.
We shall refer to this later.
The amending Act was also reserved for the consideration of the President and was assented to by him.
When the Constitution was brought into force, the Bill of the Original Act had already been introduced in the Assembly.
On June 18, 1951, before the Act was passed by the Legislative Assembly, the Constitution (First Amendment) Act, 1951 bad been enacted, and article 31A inserted with retrospective operation in the Constitution.
Article 31A provided: "31A.(1) Notwithstanding anything contained in article 13, no law providing for (a) The acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights. shall be deemed to be void on the ground that it is inconsistent with, or takes away or sbridges any of the rights 255 conferred by article 14, article 19 or article 31 ; Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the "consideration of the President, has received his assent.
(2) In this article (a) the expression "estate ' shall, in relation to any local area.
, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam, or muafi or other similar grant. .
Article 31, before it was amended, by the constitution (Fourth Amendment) Act, 1955, provided inter alia that no property shall be acquired for a public purpose unless the law provided for compensation, and either fixed the compensation or specified the principles on which the compensation was to be determined and given.
(Cl.2).
By cl.
(3), it was provided that no law such as was referred, to in cl.
(2) was to have effect unless such law having been reserved for the consideration of the President had received his assent.
Clause (4) then provided : "(4) If any Bill pending at the commencement of this constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2)." The combined effect of these provisions of the Constitution was that there could be no compulsory acquisition of property for public purposes, unless the law provided for payment of compensation; 256 but the law could not be called in question on this ground if it had been reserved for the consideration of the President and had been assented to by him.
The assent, of the President was a condition precedent to the effectiveness of the law.
By the amendment of the Constitution and the addition of article 31A., no such law was to be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by Art.14, Art.19 or Art.31 , provided that it had been reserved for the consideration of the President and had received his assent.
By the definition clause, article 31A(2)(a), the expression " 'estate" was to have the same meaning in any local area, which it or its equivalent had in the existing law relating to land tenures in force in that area but was to include among others any.
"inam '.
The contention of the appellants is really twofold.
The first argument is that the benefit of article 31A might have been available to the original Act,.
as it was a law for the compulsory acquisition of property for public purposes but? not to the amending Act, which was not such, a law but only amended a previous law by, enlarging the definition of estate".
The second argument is that the word "estate" as.
defined in s.2(g) before its amendment did.
not apply to pre ,settlement minor inams of lands as it applied only to an "inam estate", and an "inam estate" bad the meaning which the definition of "estate" had in the, Madras Estates Land Act.
, viz., only whole "inam villages".
This, it is urged, follows from the provisions of s.2(q) of the Estates Abolition Act quoted earlier.
The first argument is clearly untenable.
It assumes that the benefit of Art.31A is only available to those laws which by themselves provide for compulsory acquisition of property for public purposes and not to laws amending such laws, the assent of the President notwithstanding.
This means that the whole of the law, original and amending, must be passed again, and be reserved for the 257 consideration of the President, and must be freshly assented to by him.
This is against the legislative practice in this country.
It is to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties.
In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect assented to a law for the compulsory acquisition for public purposes of these new categories of property.
The assent of the President to the amending Act thus brought in the protection of article 31A as a necessary consequence.
The amending Act must be considered in relation to the old law which it sought to extend and the President asserted to such an extension or, in other words, to a law for the compulsory acquisition of property for public purposes.
The argument that this was not an acquisition of an inam estate comprising a. *hole village and thus outside the Abolition Act.
itself has no substance.
No doubt, these minor inams, were not of whole villages but of lands and the grant included both the warms and there were thus no inter mediaries.
But they were inams nevertheless, and the Constitution defined and `estate ' an including any inam ', and the amending Act merely followed that definition.
The extended definition in the Constitution and a similar extended definition in the Act thus exclude resort to 'the general definition clause in s.2(q), of the Abolition let and the definition of "estate" in the Madras, Estates Land Act.
The definition of estate" introduced by the amending Act is sufficiently wide to cover such minor inams, and section 2(q) only applies, if a word or expression used in the Abolition Act is not defined therein.
258 If the minor inams are already within the definition of the word "estate", there is no need to go to s.2(q) or to any local law defining the word.
There can be no doubt that if the new definition of "estate" applies to minor inams then they are affected by the Abolition Act.
This, indeed, was conceded.
Learned counsel for the appellants also urged, through somewhat faintly, that the ejusdem generis rule should be applied to the definition of ",estate" in article 31A(2)(a) as also to the corresponding new definition in the Abolition Act.
This argument proceeds upon an assumption for which there is no foundation.
The ejusdem generis rule is applicable where as wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words.
This rule has hardly any application where certain specific categories are 'included ' in the definition.
The ejusdem generis rule may be applicable to the general.
words "other similar grant", which would take their colour from the particular categories, "jagir, inam, or muafi", which precede them, but the word "inam" is not subject to the same rule.
Once it is held that inams of any kind were included, it makes little difference if the inams were of lands and not of whole villages.
So also the fact that the holders of such inams cannot be described as intermediaries, or that they comprised both the melwaram and the kudiwaram rights.
Such a distinction would have significance, if the law abolished only intermediaries and not inams which it did.
Section 3 of the Abolition Act says "3(1) The State Government may, from time to time by notification, declare that the estate specified in the notification has passed to and become vested in the State free from all encumbrances.
" If the definition of the word "estate" was wide enough to include a minor inam and a notification was issued, the consequences of s.3 of the Abolition 259 Act must follow.
Such a law is not capable of being called in question on the ground that it abridges any fundamental right conferred by articles 14, 19 and 31, if it has been assented to by the President.
the notification was thus valid, if the law was valid.
In the result, the appeals fail, and are dismissed with costs, one set only.
Appeals dismissed.

summary/full:
The appellants were holders of pre settlement minor inams.
The grants were not of whole villages but of certain lands and they comprised both the melwaram and kudiwaram rights in the lands.
The definition of 'estate ' in the Orissa Estates Abolition Act, 1951, did not include a minor inam.
But by the Orissa Estates Abolition (Amendment) Act, 1954, the definition was enlarged to cover minor inams also.
Both the Acts had received the assent of the President.
The appe llants contended (i) that the Amendment Act of 1954 was not a law for the compulsory acquisition of property for a public purpose and was not saved by article 31 A of the Constitution and (ii) that the minor inams were outside the scope of the Abolition Act and could not be resumed.
Held, that the Amendment Act of 1954 was valid and was within the Protection of article 31A.
In assenting to this Act, the President assented to new categories of properties being brought within the operation of the abolition Act of 1951, and he, in fact, assented to the law for the compulsory acquisition for public purpose of these new categories of property.
Though the minor inams were not of whole villages and included both the warams, they were nevertheless inams" and the Constitution defined an "estate" as including "any" inam and fell within the scope of Abolition Act of 1951 as amended in 1954.
The ejusdem generis rule cannot be applied to Inam in the definition of "estate" in article 31A(2)(a) because particular categories like "jagir, in am or muafi", are included in the definition expressly even though the rule may apply to "other similar grants" which expression may take its colour from the categories named.
The ejusdem generis rule is applicable where a wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words, 251


judgement:
Appeal No. '285 of 1961.
Appeal from the judgment and order dated December 6 1960, of the Gujrat High Court in Special Civil Application No. 434 of 1960.
H.N. Sanyal, Additional Solicitor General of India, B. H. Dhebari, and T. M. Sen, for the appellants.
I.M. Nanavati, section N. Andley, Rameshwar Nath and P. L. Vohra, for the respondents.
August 21.
The Judgment of the Court was delivered by DAS GUPTA, J.
This appeal by special leave raises a question of the correct interpretation of some words in s.18A(1)(b) of the Industries (Development and Regulation) Act, 1951.
The Central Government made an order under section 15 of that Act appointing a committee of three persons for the purpose of making full and complete investi 173 gation into the circumstances of the case as it was of opinion that there had been.or was.
likely to be a, substantial fall in the volume of production in respect of cotton textiles manufactured in the industrial undertaking known as Hathisingh Manufacturing Company Ltd., Ahmedabad, for which having regard to the economic conditions prevailing there was no justification.
After the committee made its report the Central Government being of opinion thereupon that this industrial undertaking was being managed in a manner highly detrimental to public interest made an order under s.18A of the Act authorising Ambalal Shah (the first appellant before us) to take over the management of the whole of the said undertaking.
Against this order the industrial undertaking and its proprietor who are the two respondents before us filed a petition in the Gujarat High Court under article 226 of the Constitution praying for issue of writs directing the authorised controller and the Union of India not to take over the management on the basis of the order under s.18A. The main ground on which the application was based was that on a proper construction of s.18A(1)(b) the Central Government has the right to make an order thereunder only where the investigation made under section 15 was initiated on the basis of the opinion as mentioned in s.15(b) that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
It was also urged that in fact the committee appointed to investigate had not directed its investigation into the question whether the industrial undertaking was being managed in the manner mentioned above.
The other grounds mentioned in the petition which were however ' abandoned at the time of the hearing included one that.
the alleged opinion formed by the Government as mentioned in the order under s.18A was in the absence of any material for the same in the report 174 of the investigating committee and therefore ' was arbitrary, capricious and malafide.
On bahalf of the Government and the authorised controller it was urged that the question which one of the five opinions mentioned ins.
15 formed the basis of the investigation under that section was wholly immaterial.
The allegation that the investigating committee had not directed its investigation into the question whether the undertaking was being managed in a manner.
highly detrimental to the scheduled industry concerned or to public interest was also denied.
The High Court however came to the conclusion that on a correct construction of section 18A (1)(b) it was necessary before any order could be made thereunder that the investigation should have been initiated on the basis of the opinion mentioned in s.15(b) of the Act.
It also accepted the petitioners ' contention that no investigation had in fact been held into the question, whether the undertaking was being managed in a manner highly detrimental to public interest.
Accordingly it made an order "setting aside the order of the Central Government dated 28th July, 1960, and directing the respondents not to interfere with or take over the management of the undertaking of the first petitioner, namely "Hathisingh Mills" by virtue of or in pursuance of the said order".
It is against this decision that the present appeal is directed.
The principal question in appeal is whether the High Court is right in its view as regards the construction of section 18A.
The relevant portion of s.18A(1) runs thus "If the Central Government is of opinion that (a) x x x x (b) an industrial undertaking in respect of which an investigation has been made under section 15 (whether or not any directions 175 have been issued to the undertaking in pursuance of section 16), is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, the Central Government may, by notified order, authorise any person or body of persons to take over the management of the whole or any part of the undertaking or to exercise in respect of the whole or any part of the under taking such functions of control as may be specified in the order. . ." The dispute is over the construction of the words "an ]investigation has been made under section 15".
Section 15 is in these words "Where the Central Government is of the opinion that (a)in respect of any scheduled industry or industrial undertaking or undertakings (i)there has been, or is likely to be a substantial fall in the, volume of production in respect of any article or class of articles relatable to that industry, or manufactured, or produced in the industrial undertaking or undertakings, as the case may be, for which having regard to the economic conditions prevailing, there is no justification ; or (ii)there has been or is likely to be a marked deterioration in the quality of any article or class of articles relatable to that industry or manufactured or produced in the industrial undertaking or undertakings, as the case may be, which could have been or can be avoided; or (iii)there has been or is likely to be,, a rise in the price of an article or class of articles recitable to that industry or manufactured or produced 'in the industrial undertaking or undertakings.
As the 176 case may be for which there is on justification; or (iv)it is necessary to take any such action as is provided in this Chapter for the purpose of conserving any resources of national importance which are utilized in the industry or, the industrial undertaking or undertakings, as the case may be ;or (b)any industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, the, Central Government may make or cause to be made a full and complete investigation into the circumstances of the case by such person or body of persons as it may appoint for the purpose.
" It may be mentioned here that s.15(b) as it originally stood was amended in 1955 and it was after the amendment that the words as mentioned above appear.
Reference may also be made in passing to s16 under which once an investigation under s.15 has been commenced or completed the central Government if it considers desirable, may issue directions to the industrial undertaking or undertakings concerned in several matters.
Section 17 of the original Act was repealed in 1953 by Act 26 of 1953.
The same amending Act introduced into this Act two new chapters Chapter IIIA and Chapter IIIB of which s.18A in Chapter IIIA makes provisions as set out above for an order, by the Central Government authorising any person or body of persons to take over the management of the whole or any part of the under taking.
These provisions of section 18A it may be mentioned take the, place of :the. provisions that previously appeared in s.17(1).
That section, now repealed, had empowered the Central Government to authorise any person, or development council or any other 177 body of person,% to take,over the management of an undertaking or to exercise with respect thereto such functions of.
control as might be provided by the order, in one class of cases only viz.
, where after a direction had been issued in, pursuance of section 16 the Central Government was of opinion that the directions had not been complied with and that the industrial undertaking in respect of which directions had been issued was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
The present section
ISA empowers the Government to authorise any person or persons to take over the management or to excercise such functions of control as may be specified, in two classes of cases.
the first of these classes is mentioned in el.
(a) of s.18A(1), viz., where the Central Government, is of opinion that directions issued in pursuance of s.16 have not been complied with by an industrial undertaking.
The second class with which we are here directly concerned is mentioned in el.
(b) viz.
, where the Central Government is of the opinion that an industrial undertaking in respect of which an investigation has been made under s.15 is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest irrespective of whether any directions had been issued in pursuance of s.16 or not.
What is noticeable in the wording of this clause is that while an investigation under s.15 may be initiated in respect of an industrial undertaking where the Central Government is of any of the five opinions mentioned in s.15(a)(i), 15(a)(ii), 15(a)(iii), 15(a)(iv) and s.15(b), s.18A(1)(b) does not refer to any of these opinions( Indeed, it does not refer at all to the question of the initiation of the investigation and mentions only the making of the investigation under s.15.
Read without the addition of anything more, the language of s.18 A (1) (b) empowers the Central Government.to authorise a person or persons to take over the management of an industrial undertaking 178 or to exercise specified functions of control in respect of that undertaking,if the one condition of an investigation made under s.15 has been fulfilled irrespective of on what opinion that investigation was initiated and the further condition is fufillled that the Central Government is of opinion that such undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
The contention made on behalf of the respondents before us which found favour with the High Court is that when the legislature used the words "an investigation has been made under s.15" it meant "an investigation has been made under s.15 based on an opinion of the Central Government that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
" We should have thought that if the legislature wanted to express such an intention it would not have hesitated to use the additional words mentioned above,.
It was urged, however, on behalf of the respondents that these further words, viz., " 'based on an opinion of the Central Government that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest" are implicit in cl.(b) of s.18A. In his lengthy address to convince us of the correctness of this contention the learned counsel advanced in substance only two arguments.
The first is that it is only where the investigation under s.15 is initiated on an opinion mentioned in s.15(b) that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interestthat the report of the investigation can furnish the government with materials on which any opinion can be formed that an industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public inter est.
For this argument we can find no basis.
It appears to 170 us that where the investigation has been initiated, in respect of an industrial undertaking, on an opinion that there has been or is likely to be a fall in the volume of production for which having regard to the economic conditions there is no justification s.15(a)(i) or an opinion that there has been or is likely to be a marlied deterioration in the quality of any article which could have been or can be avoided s.15(a)(ii); or an opinion that there has been or is likely to be a rise in the price of any article for which there is no justification s.15(a)(iii); or an opinion that it is necessary to take action for the purpose of conserving any resources of national importance s.15 (a)(iv), the investigation in order to be complete must also consider the quality of the management of the undertaking just as it would so consider the quality of management where the investigation is initiated on an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
For, even when the investigation has been initiated on the Government 's forming any of the opinions mentioned in the four sub clauses of el.
(a) of s.15, the investigator has necessarily to examine three matters : (1) whether the opinion formed by the Government is correct; secondly, what are the causes of this state of things, viz., the unjustifiable fall in the volume of production or the deterioration in the quality of the article or the rise in the price of the articles or the necessity of an action for the purpose of conserving the resources ; and thirdly how this state of things, if it exists can be remedied.
In considering the second of these matters, viz., the cause of this state of things the investigator must examine how far and in what manner the quality of management is responsible for it.
He may come to the conclusion that the management is in no way responsible and that some other cause lies at the root of the difficulty.
He may hold on the other hand, that the 180 management is solely responsible or he may hold that while other causes.
also play their part the defect in the quality of management is. , also in part responsible.
Indeed, we find it difficult to understand how an investigator having embarked on an investigation.
ordered by the Government in respect of an industrial undertaking on the basis of one or more of the opinions mentioned in section 15 (a) can avoid an inquiry into the quality of the management of the industrial undertaking.
It is said that the use of the words "for which having regard to the economic conditions prevailing there is no justification" in cl.
(a)(i) indicate and circumscribe the scope of the enquiry and that the investigator would only try to ascertain whether or not the economic conditions are such that do or do not justify the fall in the volume of production and then to see, where necessary, how these economic conditions can be altered.
To say so is however to miss the entire scheme of the legislation providing for the investigation and for action following the same.
Clearly, the purpose of this legislation is to,enable the Central Government to take suitable action to remedy the undesirable state of things mentioned in the different clauses of s.15.
In order that Government may have proper materials to know what action is necessary the legislature empowered the Government to make or cause to be made "a full and complete investigation".
In section 18, it empowered the person or body of persons appointed to make investigation to choose one or more persons possessing special knowledge to assist in the investigation and further vested the investigating committee with all the powers of.
the Civil, Court under the Code of Civil Procedure, for the purpose of taking evidence,. on oath and for, enforcing the attendance of witnesses and compelling the production of documents and, material. objects.
The whole purpopse of the legislation would be frustrated unless the investigation could be "full and complete.
" No 181 investigation which has not 'examined the quality of management of the industrial undertaking could be said to be full or complete.
It was next contended that the use of the words "circumstances of the case" shows that the investigation had to be made only into the matter in respect of which the government has formed an opinion and not into anything else.
Assuming that it is so and that the investigator has primarily to conduct his investigation where the investigation has been initiated on the basis of an opinion as regards fall in production, into questions as regards such fall ; and similarly, where the investigation has been initiated on an opinion as regards the deterioration in quality, into the question of such deterioration, that does not other the fact that the investigator would have to try to ascertain the causes of the fall in production or: the deterioration in quality and this part, of the investigation would necessarily include an investigation into the quality of the management.
Learned Counsel contended that if an investigation made on the basis of one or more of the opinions mentioned in el.
(a) of s.15 was sufficient to furnish the materials on which the Government could form an opinion whether or not an industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, el.
(b) would by wholly unnecessary.
With this we are unable to agree.
There may be many cases where there may be information justifying the formation of opinion that the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, even though,.there are no materials for an opinion that there has been or is likely to be an unjustifiable fall in production or an avoidable deterioration in quality or an unjustifiable rise in prices or the necessity of taking action for the purpose of conserving resources as 182 mentioned in the four sub clauses of cl.
(a) of s.15.
It was also urged that it would be unfair to expect the management, where the investigation has been initiated on the formation of an opinion as mentioned in cl.
15(a), to lead any evidence as regards the quality of its management and so there is risk of the investigator being misled.
We can see no reason however for any management to have any doubt on the question that investigation would be directed among other things to the question of quality of management.
We believe that one of the first things that any management would do when an investigation is initiated on the basis of any such opinion would be to try to show how efficient it was and how in spite of the high quality of,its management the misdeeds of labour or the unsympathetic attitude of Government or the difficulties of transport or some other cause beyond their control was responsible for the undesirable state of things into which the investigation was being held.
The argument that except where the investigation has been initiated on the basis of an opinion mentioned in section 15(b) there would be no material for the Government to form an opinion that the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, therefore fails.
Equally untenable is the second argument advanced by the learned counsel that absurd results would follow if the words "investigation has been made under section 16" are held to include investigations based on any of the opinions mentioned in s.15(a).
Asked to mention what the absurd results would be the learned counsel could only say that an order under section 18A(1)(b) would be unfair in such cases, as the owner of an industrial undertaking would have no notice that the quality of management was being investigated.
That will be says 183 the learned counsel, condemning a person unheard.
This argument is really based on the assumption that when the investigation has been initiated on the basis of any of the opinions mentioned in cl.
(a), the quality of the management will not be investigated As we have stated earlier, there is no basis for this assumption.
We have therefore come to the conclusion that the plain words used by the legislature "in respect of which an investigation has been made under section 15" cannot be cut down by the restricting phrase "based oil an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
" We must therefore hold that,the construction placed by the High Court on these words in s.18A(1)(b) is not correct.
This brings us to the consideration of the other question raised, viz. , whether in fact the investigation had been held into.
the question whether.
the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
On this question the High Court came to a conclusion adverse to the appellants.
It is not clear how the respondents though abandoning the ground that Government had nonmaterial before it for forming the opinion that the undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, could still urge that no investigation had been actually held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
The question whether investigation had in fact been held or not into the question whether the industrial undertaking was being managed in a Manner highly detrimental to the scheduled industry concerned or to public interest, would be relevant only to show that the Government 184 acted without any material before it or acted mala facie.
If the allegation of ' mala fide or the allegation that there was no material before the Government for forming its opinion is abandoned, the question whether an investigation had in fact been held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest, becomes irrelevant.
We are satisfied however that the High Court was wrong in its view that it was not established that investigation had in fact been held into this question.
We find that the assertion in the petition under article 226 that the investigation had not been directed "towards any alleged mismanagement of the mills" was denied in the affidavit sworn on behalf 'of the Union of India.
When thereafter on October 10, 1960, affidavits in rejoinder filed on behalf of the petitioners affirmed 'that "no question was put which would suggest that the committee was investigating into any mismanagement of the mills," an affidavit of Mr. Thomas de Sa, who was a member of the investigating committee was, filed on behalf of the Union of India.
This affidavit made the categorical assertion that the "committee" investigated not only into the question relating to the fall in the volume of production in respect of cotton textiles manufactured in the said industrial undertaking but also made a full and complete investigation into the circumstances of the working of the said industrial undertaking including the management thereof and as to whether the said undertaking was being managed in a manner detrimental to the industry concerned or to public interest.
" The High Court has thought it fit to reject this testimony of Mr. De Sa for reasons which appear to us to be wholly insufficient.
It appears that during the hearing the Advocate General asked for time to file an affidavit preferably of Mr. P. H. Bhuta who was.
the lion official member of t he Committee of investigation but ultimately filed the 185 affidavit of Mr. De Sa and not the affidavit of ' Mr. Bhuta.
The High Court seems to think that as.
Mr. Bhuta was an independent member of the investigation committee while Mr. De Sa was in the service of the Government Mr. De Sa 's, statement is open to suspicion.
In our view such suspicion of, high public officials is not ordinarily .,justified.
, Mr. De Sa was as much a member of the investigating committee as Mr. Bhuta and so no less, competent than Mr. Bhuta to testify as regards the matter in issue.
We do not think it right to suspect his honesty merely because he is an officer of the Union of India.
The learned judges of the High, Court, appear also to have lost sight of, the fact that the questionnaire which annexed as annexure X to.
the, affidavit of the second respondent Rajendra Prasad Manek Lal itself includes a number of questions which show unmistakably that the quality of management was being enquired into.
A circumstance which appears to have weighed with the High Court is that the report of the committee which as the learned judges rightly say would be the best evidence to show "that there was in fact an investigation into the question of the management of the said undertaking" was not produced by the Union of India when called upon to do so by I. &.
Nanavati on behalf of the petitioners.
It is proper to mention that it does not appear that the learned judges themselves directed or desired the Advocate General to produce the report for their inspection.
It further appears that no written application for the production of the docu ment was made on behalf of the petitioners.
It does not seem to us to be fair to draw an inference against the Union of India merely because an informal request by the petitioners ' advocate was not acceded to.
In view of what happened in the court below we asked the appellants ' counsel whether he was prepared to produce the report before us.
The learned counsel readily produced the report and after examining the relevant portion 186 where the report deals with the question of management, we read it out in Court so that the respondents ' counsel could know the exact situation.
This portion of the report says : ,,that the management is in the hands of a young and inexperienced person ; and the committee of the opinion that the present manager is incapable of handling the affairs of the mills ; the present managing agents are incapable of investing any further The fact that the report does contain such an opinion is sufficient to show that an investigation was actually held into the question of the quality of the management as affirmed by Mr. De Sa.
The High Court 's view therefore that.
no investigation was hold into the question of the management of the undertaking wag wrong.
We have therefore come to the conclusion that the respondents were not entitled to any writ directing these appellants not to give effect to the, Government 's order under s 18A(1)(b).
We therefore allow the appeal, set aside the order of the High Court directing the issue of the writ and order that the application under article 226 of the Constitution be dismissed.
The appellants will get their costs both here and below.
Apnpeal allowed.

summary/full:
Being of the opinion that there had been a substantial fall in the volume of production in respect of cotton textiles manufactured in the respondent company, an industrial under taking, for which having regard to the economic conditions prevailing there was no justification, the Central Government made an order under s.15 of the Industries (Development and Regulation) Act,, 1951, appointing a committee of three persons for the purpose of making a full and complete investigation into the circumstances of the case.
After the committee made its report,the Central Government being of the opinion thereupon that the company was being managed in a manner highly detrimental to public interest, made an order under section 18 A of the Act authorising the first appellant to take over the management of the whole of the said undertaking.
The respondents challenged the legality of the order on the ground, inter alia, that on the proper construction of s.18.A the Central Government had the right to make the order under that section on the ground 172 that the company was being managed in a manner highly detrimental to public interest only where the investigation made under s.15 was initiated on the basis of the opinion,as mentioned in section 15(b), whereas in the present case, the investigation ordered by the Central Government was initiated on the formation of an opinion as mentioned in cl.
(a) (1) of section 15.
Held, that the order passed by the Central Government under section 18 A was valid and that the words.
used by the legislature in section 18A (1)(b) "in respect of which an investigation has been made under section 15" could not be cut down by the restricting phrase "based on an opinion that the.
industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.
" Section 18A (1)(b) empowers the Central Government to authorise a person to take over the management of an industrial undertaking if the one condition of an investigation made under section 15 had been fulfilled irrespective of on what opinion that investigation was initiated, and the further condition is fulfilled that 'the Central Government was of opinion that such undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest.